Court File and Parties
Information No.: 16-15001844
Ontario Court of Justice
Between:
Her Majesty the Queen
-and-
Tina Marie Rees
Before: Justice L.P. Thibideau
Heard on: March 14 and March 15, 2017
Reasons for Judgment released: May 3, 2017
Counsel:
- A. Leggett, Counsel for the Crown
- C. Fiorrillo, Counsel for Tina Marie Rees
Judgment
THIBIDEAU, J.:
[1] Charges
Tina Marie Rees is charged that on the 10th of March 2016 she obstructed police and assaulted an officer, P.C. Simpson, to resist the arrest of her son Frederick Rees-Moore.
[2] Admissions
Date and jurisdiction are admitted. During the course of the trial it became clear that the person involved is the accused before the court. There is no real issue as to identity.
The Facts
In the late morning of 10 March 2016 the Toronto police received information tending to show that a robbery with a gun was occurring at the Runnymede Subway Station. A call went out. P.C. Simpson and others responded. Other officers in their cruisers and P.C. Simpson in her cruiser stopped on the street in the area, having been flagged down by an adult male and his son.
[4] P.C. Simpson overheard some of the conversation between the civilians and the other officers on scene. Information was given about a robbery with gun at Western Technical Collegiate nearby. At this point the totality of the information available could mean either one or two robberies had been reported.
[5] The information regarding the school robbery was that the person of interest was a white-skinned male with orange hair whose name was Frederick, with the occurrence happening in the cafeteria. All three officers diverted to the school and found nothing happening in the cafeteria. They were called to attend the principal's office and started for there.
[6] They asked a student who was walking the same corridor for directions to the principal's office. He gave them directions.
[7] Only P.C. Simpson took particular notice of that student. She described him as having pale white skin, wearing a hoodie, under which she could see red hair, and when asked by her he told her his name was Frederick.
[8] At this point she was satisfied he was the male of interest. It should be noted his hair was braided, but this was not a part of the description received. Without words she took physical control of him, that is, held onto him and placed him under arrest.
[9] She believed she had reasonable and probable grounds to arrest for robbery based upon the following: 1) physical description compatibility; 2) matching name; 3) location at crime scene; and 4) timeframe.
[10] At the time in a loud voice, she was telling him he was under arrest for robbery and to go down to the ground. He was not compliant and resisted handcuffing and grounding by struggling, and pulling away.
[11] At this time the accused intervened in the process. P.C. Simpson recalls the female stating, "that's my son, get your hands off him", and also pulling and grabbing the right arm and shoulder of P.C. Simpson as she tried to arrest and gain control of the young male. The pulling and grabbing was not of long duration, but neither was it momentary. After 10 seconds or so another officer pulled the female off P.C. Simpson and the female quieted. That female was the accused, and the young male was her son. In fact, mother eventually assisted in calming her son down. There were no injuries to the officer.
[12] The result was Ms. Rees was arrested for the two charges before the court.
[13] After things calmed down the investigation for robbery continued and eventually it was determined that two separate robberies had apparently occurred in the same neighborhood. With respect to this school event, the arresting officer gave evidence she used the four-mentioned inculpatory indicators to form her opinion for arrest, with the young male's name provided as the final piece in the set of facts permitting arrest.
[14] Tina Rees gave evidence. Her version of what happened is different than the police witness versions on several points. All agree the three officers and mother and son and others were in a school hallway to begin with. She remembers her son being asked his name by one of the three to four officers, and her son replying calmly his name was Frederick. She then watched as P.C. Simpson grabbed her son as the other officers crowded around. The defendant grabbed her son's arms and he told her to let go. She could not because arms were locked together. She described P.C. Simpson as yelling and screaming with an aggressive attitude. She flatly denied touching P.C. Simpson.
[15] Having heard the various versions of what occurred during the arrest of Frederick, I am satisfied that the defendant did touch P.C. Simpson as a reaction to what she saw as unfair treatment of her son. The evidence of P.C. Simpson, P.C. Lalonde, and P.C. Kiss was consistent without being rote or rehearsed, that the defendant physically tried to separate P.C. Simpson from her son as she intervened, "to break the officer off from the arrest". Her reactions were consistently described as hands-on contact with P.C. Simpson, requiring other officers to free P.C. Simpson by verbal and physical means, from the defendant, over the timeframe of a few seconds, no more than a half a minute, according to P.C. Lalonde.
[16] The police version speaks of a maternal reaction to physically prevent a son from being arrested, complete with details of what was done by the officers involved to physically free P.C. Simpson from the defendant. P.C. Kiss remembered the defendant as a strong person, requiring a struggle to make her let go of P.C. Simpson. There is no confusion in the aggregate police version, which is more consistent with a common sense approach than the defendant's version, which in the circumstances is neither believed nor believable, and does not raise a reasonable doubt as to action and mindset.
The Positions
The Crown argues the set of inculpatory facts in the mind of the arresting officer to arrest the young male for robbery meets the subjective and objective tests for reasonable and probable grounds to arrest. That being so the physical interference with the arrest process by Tina Rees makes out the essential elements of both offences, the important factor being the officer was lawfully engaged in the execution of her duties as a police officer, arresting for robbery, an indictable offence.
[18] The defence argues the arrest for these offences was unlawful; it was not a proper section 495(1) Criminal Code arrest because P.C. Simpson lacked reasonable and probable grounds for that arrest. It is argued the arrest was unlawful because section 495(2) was breached. There should not have been an arrest without warrant because the public safety interest could have been satisfied without arrest.
Discussion
Context is important. The investigation revealed at that point in time there was a robbery in the school involving a gun. School was in and students were present in the hallway where the arrest happened. The Crown is entitled to argue that with the information available, and the school situation as it was, the risk of a perpetrator having a gun was real, and a public safety issue. Delay in securing the person of interest could be harmful.
[20] Other police witnesses made clear the school robbery complaint involved two persons with a gun. The white male as described, and named Frederick, and a black male named Daryl, both of whom were students. One of the complainants on the street was a student who was present at the school when his brother was robbed. He witnessed the event before running away and contacting his father, who flagged down the police.
[21] With respect to the charges before this court P.C. Lalonde saw P.C. Simpson pulled away from her arrest activity and held by the accused before the handcuffing. The same event was seen by P.C. Kiss. The event time was perhaps a half minute or less. The defence argues the police were confused as to what was happening where, and that the arrest in the school of Frederick was the result of weak, conflicting information, and that R&PG could not be present.
[22] Factually this is not the case. It is true there was a priority dispatch call to Runnymede Subway Station for armed robbery, and that this was the first focus. However, three officers flagged down on the street were provided with credible information by two upset persons, about an armed robbery at Western Technical Collegiate. One of the persons providing information was an eyewitness. The information provided was clear, precise and detailed to assist in determining what was done, where it was done, and by whom. The shift in focus to the school was appropriate and necessary to address the potential for harm and to conduct an investigation at a probable crime scene, the school. As put by P.C. Lalonde the main concern was a firearm in a school, and to respond immediately.
[23] The core issue argued is that the arresting officer Simpson lacked reasonable and probable grounds to arrest Frederick because the investigation was ongoing, the physical descriptors of the person of interest were insufficient, and the conduct of Frederick as observed by the officers did not indicate culpability. That being so, the arresting officer in arresting Frederick was not lawfully engaged in the execution of her duty, and as a result neither charge is proved.
Legal Principles
[24] In determining the issue certain principles apply. An arrest without warrant is prima facie illegal, but it may be legal if done in relation to an indictable offence committed, and the arrest is based on reasonable and probable grounds in relation to the person of interest and the offence. The onus is on the Crown to satisfy the court that these preconditions for arrest exist. A generic description of a person of interest is not enough. Regina v. Malaj. Also Justice Hill in Regina v. Censoni, 2001 O.J. No. 5189, canvassed and set out the law on reasonable and probable grounds and how it is to be assessed on judicial review. Reasonable and probable grounds exists on a continuum or spectrum of standard of proof, ranging from hunch, or speculation, at the low end, to proof beyond reasonable doubt on the high end. Reasonable and probable grounds lies above reasonable suspicion but below prima facie case, and well below balance of probabilities.
[25] The reasonable and probable grounds can be described as a credibly based probability, that is, a reasonable probability. The Queen v. Baron et al., 78 CCC (3d) 510 (SCC) pp 530-2. Reasonable and probable grounds has a subjective and an objective component. The subjective component amounts to an actual and honest belief that the suspect committed the offence, on the part of the arresting officer. It is not argued here by the defence that such an actual and honest belief is absent in our case. It is argued that the validity of the subjective belief does not survive objective scrutiny.
[26] In reviewing the objective component of reasonable grounds the question is whether the officer's subjective opinion is supported by objective facts. Regina v. Berlinski, [2001] O.J. No. 377 (C.A.). That objective review is based on this test: Would a reasonable person standing in the shoes of a police officer with the facts known to the officer at the time believe reasonable and probable grounds existed? Regina v. Hall, 1995, 39 CR (4th) 66 (Ont. C.A.) pp 74-75, R. v. Oduneye (1995), 1995 ABCA 295, 15 M.V.R. (3d) 161 (Alta. C.A.).
[27] On scene investigations with their need for quick assessment and decision-making, are different from preparation of documents for a search warrant, for instance, both require reasonable and probable grounds. The dynamics which apply in an arrest situation are different than those that operate on an application for a search warrant. Need for speed and the presence of volatility, and rapidly changing situations prevent the luxury of something approaching judicial reflection in arrest situations. There is a different and lesser inquiry expectation for arrest situations than for an application for a search warrant. Regina v. Golub (1997), 117 CCC (3d) 193 (Ont. C.A.).
[28] It is well established that in the arrest situation particularly, reasonable and probable grounds is not an onerous threshold. It does not require testing in the same way as at trial with respect to evidence. But neither can it be so diluted as to threaten individual freedom. Regina v. Censoni, supra, Regina v. Wang, 2010 ONCA 435 (Ont. C.A.) para. 17.
[29] There are more principles applicable to the objective review on the subjective belief. It is error to test individual pieces of evidence to establish reasonable and probable grounds. To do so risks contravention of the Morin approach to evidence evaluation. The real question is whether the totality of the evidence offered provides reasonable and probable grounds on an objective standard. Regina v. Morin, [1988] 2 SCR 345, Regina v. Todd, 2007 BCCA 176, [2007] B.C.J. No. 892 (C.A.), Regina v. Shepherd, 2009 SCC 35 (SCC) para. 19.
[30] The defence has argued that because of the situation, two possibly linked geographically close robberies, and the confusion resulting therefrom, more investigation was required before any arrest. In addition, another occurrence at the school apparently unrelated, but contemporaneous, was handled differently with more apparent investigation. This should have caused the officer to not be so hasty to arrest. However, different officers may disagree with respect to what constitutes reasonable and probable grounds. As long as the minimum requirements are present for reasonable and probable grounds that suffices. The issue is presence of grounds, not whether the officer could have conducted a more thorough investigation. Regina v. Bush, 2010 ONCA 594 (Ont. C.A.) para. 60.
[31] To put it another way there is no minimum time period nor mandatory questioning that must occur before an officer can have objectively reasonable and probable grounds. Regina v. Bush, supra para. 60.
[32] An officer cannot simply consider incriminating factors. Exonerating factors must also be considered. It is the totality of the facts known to the officer, those which undermine the belief as well as those which support it, which must be assessed to determine if the requirement of reasonable and probable grounds has been met. Exculpatory, neutral or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favorable and unfavorable factors must be weighed in arriving at the conclusion. Regina v. Golub, supra, Regina v. Cooper, [1993] O.J. No. 501 (Prov. Div.), Regina v. Chehil, 2013 SCC 49, [2013] SCJ No. 49 paras 33-34.
[33] The totality of the circumstances must be looked at, tunnel vision is not permitted. Regina v. Debot, Regina v. Muller, 2014 ONCA 780.
[34] If reasonable and probable grounds exist reasonable force, as is necessary to effect arrest, is permitted.
Resolution
[35] The process is this. It must be determined first as a fact that the police officer subjectively believed she had reasonable and probable grounds. If not we need go no further. In this case there is ample evidence to show a firm subjective belief that reasonable and probable grounds existed for an arrest for armed robbery.
[36] Next it must be determined if that subjective belief was justifiable on objective overview or review. The objective overview test is tried and true. Would a reasonable person placed in the position of the officer be able to conclude there was reasonable and probable grounds for arrest? Regina v. Storrey.
[37] In this case, on our facts, it is clear that the arresting officer, P.C. Simpson, addressed her mind to four factors exclusively in arriving at her reasonable and probable grounds for arrest. The physical description of the person of interest made up of skin color, hair color; person located in same building as crime scene, near the cafeteria; time of contact with the person of interest, which was quite close in time to the alleged offence occurrence; and the name compatibility, Frederick. Her testimony made it clear no other facts entered her mind to influence her conclusion on reasonable and probable grounds. This is not a case of grounds not articulated at trial. In fact, by personal observation she must have been aware at the time of other facts that were exculpatory or neutral or equivocal, and should have been considered, even under the trying circumstances of an arrest in a relatively busy school corridor, with a gun at issue.
[38] The officer did not know the relationship between Frederick and the accused as son and mother until after arrest commenced. However, she must have been aware by personal observation that the two were together as they walked along the corridor, more or less beside the three officers, making their common way to the principal's office. She saw the two together when another officer asked Frederick for directions to the principal's office, before noticing his red hair. She asked him his name. It is clear the adult female was with him when he answered the officer. The timeframe for observation was short, but no less than the time to notice his skin color and hair color. The officer had no knowledge of how long the adult female and apparent student had been together. It could have been for a length of time, excluding him as a suspect in the very recent robbery in the cafeteria, or not. She observed the young male to act appropriately and respond verbally appropriately to questions asked by another officer and herself. None of the three officers were aware of any conduct, demeanor, or words to suggest guilty knowledge or police avoidance behaviour.
[39] The young person she saw engaged appropriately with three officers in the corridor. The result was that there were three facts that were part of the constellation of factors available to the officer for consideration that she did not factor into her assessment for reasonable and probable grounds: presence of an accompanying adult; unknown time with adult; and the appropriate response behaviour of the person of interest who did not demonstrate indicators of guilty knowledge. All these factors were non-inculpatory. The question then becomes, would these non-inculpatory factors weigh sufficiently with respect to the conclusion that reasonable and probable grounds existed so as to result in a finding that reasonable and probable grounds did not exist on objective overview?
[40] I am not satisfied on a balance of probabilities basis that reasonable and probable grounds existed on these facts, on objective overview. Rather, these non-inculpatory facts are sufficient only for investigative detention based on suspicion, permitting the officer to detain for further investigation, but not for arrest.
[41] I make this finding knowing that it is not proper for the purposes of judicial review to substitute a judge's view of what should have happened for that of the investigating officer at the scene, who does not have the luxury of time for reflection and advice. In this case the reasonable person, in the shoes of the investigating officer, would not have arrested but would have secured the person of interest for further investigation, given the mix of inculpatory and non-inculpatory facts that were present at the time.
[42] The arrest of Frederick Rees-Moore was unlawful with the result the officer was not engaged in a lawful execution of her duties. One of the essential elements of the offence of obstructing a police officer is that the officer be engaged in a lawful execution of duty. One of the essential elements of assaulting a police officer under section 270(1)(b) of the Code is that the assault be accompanied by an intention to prevent a lawful arrest. These elements being absent, each of the offences are not made out and there will be a finding of not guilty.
[43] The Crown argues that a simple assault, an included offence, is made out. The facts are these. The investigating officer lays hands on the person arrested, attempted to handcuff him. When he resisted he was taken down to the hallway floor by more than one officer and handcuffed and physically secured. These actions took place without lawful arrest.
[44] The defendant mother did two things. She yelled at the officers that the person was her son and told them to get their hands off him. When that had no effect, she pulled and grabbed at the arm and shoulder of P.C. Simpson for a short time, of about 10 seconds or so. These words and acts constitute minimal force to achieve the purpose of separating the police officer, not involved in the legal execution of duty, from her son. These words and acts in the circumstances were an appropriate minimal action of a person who had reasonable grounds to believe that force was being applied without consent to her son, and that the defendant acted to defend her son from force by the officer, and that the defendant's acts were appropriate and reasonable in the circumstances, to achieve the intended purpose, defending her son from illegal force. The defendant's actions constitute the lawful defence of a person other than herself, pursuant to section 34 of the Code. There will be a finding of not guilty for this included offence.
Dated at Toronto, Ontario
This 3rd day of May 2017
The Honourable Justice L.P. Thibideau