ONTARIO COURT OF JUSTICE

CITATION: R. v. Hines, 2018 ONCJ 197

DATE: 2018·03·27

COURT FILE No.: Toronto 4817 998 17-75000339

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

TYRONE ELLIOT HINES

Before Justice Richard Blouin

Heard on December 5, 6, 7 and 8, 2017

Reasons for Judgment released on March 27, 2018

Mr. Craig Brannagan ............................................................................ counsel for the Crown

Mr. Ronald Chu ............................................. counsel for the defendant Tyrone Elliot Hines

BLOUIN, J.:

Introduction

[1] In the early morning hours of September 25, 2016, the defendant and another man were involved in a physical confrontation inside a Popeye’s restaurant on Yonge Street. Much of that confrontation was recorded visually (no audio) by surveillance cameras positioned at different locations in the store. As a result of the confrontation, Christopher Humphries suffered a puncture wound to his left cheek. The defendant was arrested on the street outside the store after dropping a knife. That knife had blood on it – Mr. Humphries’ blood. As a result, Mr. Hines was charged with assault causing bodily harm, assault with a weapon, and uttering death threats regarding the confrontation with Mr. Humphries. Outside on the street, the defendant was also charged with weapons possession (the knife), possession of crack cocaine, and assaulting Detective Constable Tattersall (with intent to resist arrest).

[2] The interaction with police, including a disturbing in-car video depicting Hines placement in the police car and transport to the police station, was the subject matter of an application, pursuant to sections 7 and 12 of the Charter, for a stay of proceedings. The Crown conceded that one police officer (Brewer) employed excessive force in pepper spraying the defendant while handcuffed in the back of the police cruiser. The defendant argued that Brewer additionally used excessive force by striking the defendant in the face with his baton after he was handcuffed.

[3] The Crown called the complainant (Mr. Humphries), two store employees, and a customer regarding the confrontation inside Popeye’s. The Crown also called Detective Constables Tattersall, McDonald, and Li regarding the arrest outside Popeye’s. Constable Brewer, who the Crown refused to call as a witness, was called by this Court to allow both parties the ability to conduct cross-examination. The defendant testified only on the Charter application.

Crown Evidence

Christopher Humphries

[4] Mr. Humphries and a friend were in Toronto on September 24, 2016 to attend a hockey game at the Air Canada Centre. Humphries testified that he drank three beers (he remembered the exact number because of their expense) at the rink, and more at nearby bar after the game. Somewhere around 1 a.m., he and his friend stopped to eat at Popeye’s on Yonge Street. As they were leaving the restaurant, Humphries heard the defendant belligerently addressing the employees with profanity, and in racist terms. He decided to say something to Mr. Hines. Mr. Hines walked up to Humphries near the entrance and said, “I will fucking kill you, white boy”. When Hines returned to the front counter, Humphries followed to put himself between the defendant and the employees, “to try to diffuse the situation”. Humphries recalled that this confrontation resulted in a blow to his left cheek which felt not like a punch, but more like a pin stuck in his face. Humphries had observed Hines reaching into his pants before the blow and saw a shiny object (which looked like a ring) between his fingers. Humphries agreed that, although not intoxicated, he was not sober either.

[5] The confrontation continued outside of the restaurant after Humphries and his friend pushed the defendant towards the front door. After a very short period of time, police arrived on scene. Mr. Hines was engaged by police after the restaurant employees pointed him out as the aggressor (and not Mr. Humphries).

[6] Fortunately, a good deal of the relevant interaction between Hines and Humphries was captured by a restaurant surveillance video which, of course, provides the most reliable account of this unfolding event. That video, along with other eyewitness accounts, essentially confirm Mr. Humphries’ account. Again, the defendant did not give evidence about this confrontation.

[7] Humphries has a three-inch scar on his face, which was documented by the photograph entered as Exhibit 1. Although he initially thought the above injury was caused by the defendant striking him holding a ring, he came to believe that it was a knife. A police officer told him he was bleeding from the face, and also told him that the police had recovered a knife from the defendant with blood on it. That knife was later tested, and the blood on it was, in fact, that of Mr. Humphries.

Surveillance Camera Inside Popeye’s and Findings

[8] The video footage of the primary confrontation between Hines and Humphries displays that it was Humphries that approached Hines to confront him regarding his treatment of the restaurant employees. And, it is Humphries that initiates the physical contact between the two by pushing the defendant three times before any response. However, it is abundantly clear that it is Hines who moves toward Humphries to deliver the blow to the face which caused the wound to the face. I accept that Mr. Hines may well have possessed a belief (again, he did not testify) that a threat of force was being used against him and the video evidence would confirm that belief to be reasonable, but the act of striking another’s face with a knife between one’s fingers was not done for the purposes of defending that threat, nor was it, by any measure, reasonable in the circumstances.

[9] Because Hines’ left side of his body shielded his right, the viewer cannot see Mr. Hines reach into his pocket for a weapon, as Humphries indicated. But I conclude that is exactly what happened. In my view, there is no other inference that can be drawn from the evidence. Mr. Humphries, whom I believe, testified he was struck in the face with an object. Combined with his DNA found on the knife dropped outside by Mr. Hines, no other reasonable inference exists other than that Hines used that knife to stab Humphries. The submission that, since Humphries was bleeding, blood was somehow transferred to the knife was fanciful and not supported by any of the evidence.

[10] Accordingly, having found that this stabbing was not self-defence but instead an unreasonable and excessive use of force, the defendant will be found guilty of assault bodily harm and assault with a weapon. I also find that Hines threatened death since the only evidence I have on that issue is from Humphries (whom I found credible). I will stay the bodily harm count because it is encompassed in the assault with a weapon count (pursuant to R. v. Kienapple).

Arrest on Yonge Street

[11] Detective Constable Tattersall was on patrol with his partner Constable Brewer when a citizen stopped them on Yonge Street and told them about a possible fight at Popeye’s. When the police arrived, Brewer engaged Mr. Humphries. Tattersall, wanting to investigate this fight, or “anything else” that the confrontation might have been, saw Mr. Hines walking away and told him to stop. Tattersall caught up to Hines and told him to sit down on some steps at the corner of Yonge and Dundonald. Instead of sitting down, Hines walked away and dropped a knife onto the cement from his right hand in what Tattersall thought was done in a manner that suggested to him that Hines wanted to hide the knife from him. Tattersall did not know if Hines had other weapons. Tattersall grabbed Hines’ arm and told him he was under arrest, and to put his hands behind his back. Hines resisted by attempting to shove Tattersall. Tattersall tried to pull Hines to the ground but did not have the leverage to do so. He saw Brewer coming to his assistance and yelled, “He’s got a knife.” He was able to put a waist lock on Hines, and then throw him to the ground.

[12] Because Tattersall’s face was up against Hines’ body as he was trying to restrain him, he knew Brewer had his baton out but did not see how the baton was applied to Hines. Tattersall knew it had been used because of the lacerations to Hines’ face. Shortly thereafter, Hines was handcuffed by Tattersall since Hines “was willing to be handcuffed at that point – he had given up.” At some point later, Tattersall, and other officers were attempting to pry open Hines’ closed fist which held a bag of crack cocaine.

[13] Detective Constable McDonald, who arrived upon the scene of the arrest after Tattersall and Brewer, observed Hines to reach with his right hand (while in handcuffs) and grab something from the sidewalk and clasp it in his hands. That something, which McDonald “requested” Hines to produce by opening his hand, turned out to be crack cocaine wrapped in plastic.

[14] Constable Raymond Li arrived at the scene of arrest at a time when Mr. Hines was handcuffed but refusing to be placed face-down. Li could only see one hand cuffed and that his right hand was closed tightly. Other officers were able to open that hand and retrieve crack cocaine. Just before Hines was taken from the street to Li’s police cruiser the dashboard video became activated. Shortly thereafter, the rear view camera was activated by police which captured the interaction between police and the defendant in the rear seat of the cruiser. As a result, the pepper spray incident, what led up to it, and what occurred after it, are all present on video.

[15] As conceded by Mr. Brannagan, the best evidence regarding the events in the back seat of the cruiser is provided by the video. Although Li had seen the video before testifying, his evidence departed from the camera on two significant issues:

• Li testified that Hines “did appear to kick” the passenger door from the inside which resulted in Brewer opening the door to caution him regarding mischief. Li said he did not see the kick but heard it. In his notebook, Li wrote “male is kicking at the scout car door.” In cross-examination, he admitted he did not hear an impact sound on the video, but there must have been a kick because Brewer opened the door and cautioned Mr. Hines. I find there was no kicking and no sound that could be heard.

• Li maintained that Hines had been “argumentative” and “verbally combative” by “yelling, swearing,” according to his notes. This is not in any way true. The video shows that it was Brewer that was verbally combative and yelling and swearing at Hines.

[16] I conclude Constable Li to be a biased, untrustworthy witness. It appeared to me that he was attempting to justify the actions of his fellow officer. At least he was prepared to admit, near the conclusion of cross-examination, that his notes were clearly wrong.

[17] As indicated above, Mr. Hines did not testify on the trial issues. I accept Constable Tattersall’s evidence that the defendant possessed both the knife and the cocaine. Exhibit 2 provides enough confirmatory evidence that the continuity issue is not engaged. Tattersall did not attempt to oversell the assault police allegations. I accept that Hines shoved him during the arrest.

Excessive Force

[18] As indicated at the outset, Mr. Brannagan conceded that Brewer’s use of pepper spray was excessive force and a Charter violation. Mr. Chu also alleged that, in addition to pepper spray, excessive force was used in striking Mr. Hines in the face with a baton during the arrest. Those blows opened up two significant lacerations on the defendant’s face, which was made additionally painful by the application of pepper spray. The Crown refused to call Brewer, submitting that the defendant had the burden to prove facts that supported the Charter violation. While I agree the burden lies with the defendant to establish Charter violations, I ruled that fairness required this Court to call Brewer as a witness, allowing both counsel the opportunity to conduct cross-examinations. I did so because Brewer was, by nature of his actions that night, and by nature of his position as a police officer, a witness adverse to the defendant’s interest.

Constable Brewer

[19] Brewer admitted striking Hines with his baton. He is unable to remember the number of strikes or the exact location of the strikes. Brewer was aware of facial injuries suffered by Hines but unaware if the cause was his baton strikes or when he was taken to the ground. He maintained he was frightened by the knife, and Hines assaultive behaviour, and not knowing if Hines still had a weapon. He also maintained the blows were done to effect an arrest, and not after Hines was handcuffed.

[20] Constable Brewer’s status as a police officer is somewhat unusual. In September of 2017, he was convicted of Common Nuisance and Unauthorized Possession of a Firearm in Durham region arising from an incident that occurred on December 1, 2016. Constable Brewer had brought a handgun into the bedroom in which his spouse was sleeping, then followed her to the main floor holding the gun, put the gun in his own mouth, and then fired it eight times into the night sky outside his house. At the time, Brewer agreed he was suffering from depression, alcoholism and PTSD.

[21] In addition to the criminal record resulting from the incident above, Brewer admitted drinking while on duty and being disciplined for it in November of 2016. Brewer denies alcohol was a factor in this case and does not think his mental health problems were either. Essentially he was of the view that Hines was “being actively resistant” and was attempting to get out of his scout car when he employed pepper spray.

[22] While I found Constable Brewer’s evidence to be for the most part candid (and quite heartbreaking regarding his present condition), this last contention is demonstrably false. Mr. Hines was handcuffed to the rear and splayed out horizontally in the back seat of the scout car. Brewer stopped the scout car as it starts to leave the scene, and Brewer opened the door. Hines was not resisting; he was not kicking; and he certainly was not trying to escape.

[23] In my view, to insist escape was the reason for employing pepper spray undermines what was otherwise credible evidence. That false contention makes his evidence, that he was unsure that his baton strikes connected with the defendant’s face, virtually impossible to accept.

Defence Evidence

Tyrone Hines

[24] Mr. Hines testified only on the Charter application regarding his interaction with police and not on the trial. After the fight with Humphries, Mr. Hines was “rushed” by a police officer who grabbed his head and threw him face first to the ground. He was then kicked and punched to his back and face by another officer. He became frightened when an officer yelled “stop resisting” when he was not resisting. After he was handcuffed, the baton struck his face a couple of times. Hines yelled for someone to videotape the interaction. It was made clear that all this occurred before the video record from the dashboard camera of Constable Li’s vehicle was engaged (Exhibit 6).

[25] Mr. Hines also testified regarding the period of time that was captured by Exhibit 6. He maintained that he was not resisting during the journey from the pavement to that police vehicle, and that he was not kicking while inside the cruiser. He described the intense pain when he was pepper sprayed. He says he received a fractured orbital bone below the right eye. Photographs were taken by counsel during a visit to the Toronto South Detention Centre the day after the incident. They were made Exhibits 11(a)-(f), and show Mr. Hines to have a black eye and two significant lacerations requiring stitches to the right side of his face. As a result of the injuries, Mr. Hines is now on ODSP (Ontario Disability Support Plan). He suffers from PTSD and a pinched nerve in his neck. He now has a stutter which did not exist before this incident.

[26] Mr. Hines has a criminal record which was made Exhibit 10. He has numerous assaults, drug offences, breaches of court orders and offences of dishonesty (three separate counts of obstruct police). He admitted drinking earlier in the evening at a family function, and I note that I observed some unsteadiness in his gait when I viewed the Popeye’s video involving the lead up to his confrontation with Mr. Humphries. Hines was on probation at the time of this incident which led to him wanting to leave the scene quickly upon arrival of the police. He agreed it was possible he received a police demand to stop, but did not hear it. He also agreed that he dropped a knife as Tattersall testified he did.

[27] Mr. Hines presented no medical evidence regarding his physical and psychological injuries. An opportunity was given to defence to retrieve the medical records. Counsel assisted Mr. Hines but the only record (made Exhibit 12) was the hospital record from the night of the incident which outlines the basic injuries and not the longer term repercussions the defendant alluded to in his testimony.

Findings on Excessive Force

[28] As indicated above, Mr. Brannagan conceded from the outset that Brewer’s use of pepper spray, while the defendant was handcuffed in the back of the police cruiser, was not justified. This concession was inevitable, in my view, upon an objective viewing of the police car back seat video. Surprisingly, two police officers made disturbing attempts under oath to justify or explain obvious police brutality that was exhibited toward Hines after he was arrested and contained in that back seat (see paragraphs 15, 16 and 21 above).

[29] Unfortunately, the same reliable evidence was not available to allow an assessment of the arrest of Hines on Yonge Street. The camera (from PC Li’s dashboard) did not commence recording until after the arrest. And contrary to policy (see TPS Policy and Procedures Manual re: In-Car Camera System), no audio or video is provided by the first vehicle on the scene. Accordingly, I must rely on the accounts of two police officers and the defendant. For different reasons, I find it difficult to fully rely on any of those accounts to assist as to when and how Brewer used his baton. Although I find Tattersall to be a reliable witness, his focus was directed on handcuffing Hines and he was not in a physical position to observe his periphery during those chaotic seconds. He saw Hines’ injuries, and he knew Brewer employed his baton, but does not know how force was applied to Hines.

[30] Brewer’s credibility is compromised by his attempts to justify using pepper spray when no justification existed. And Hines, aside from a significant criminal record which in part shows dishonesty, was compromised by alcohol to some degree. I suspect Brewer may well have struck Hines in the face after he was handcuffed on the street, because Brewer’s excessive use of force displayed on camera moments later allows the viewer to assess his state of mind and actions during that continuum of time. But suspicion does not rise to the level of proof even on a balance of probabilities. Accordingly, I cannot conclude that Hines was struck in the face after being cuffed.

[31] I do, however, find that the injuries to Hines’ face were caused by Brewer’s baton. I cannot see how, even in this circumstance, blows to the arms and legs (“the delivery systems”) resulted in blows to the face. Hines testified that he was hit in the face. No officer could refute that. Brewer couldn’t recall and allowed that it was possible. Finally, a suggestion put to Brewer by Mr. Brannagan that it was possible that Hines’ injuries might have been caused by contact with the sidewalk is not supported by the photographic evidence in Exhibit 11. The lacerations that required stitches appear most vividly in Exhibit 11(e) as sharp-edged, and, as such, were more consistent with blows from a baton than the type of wounds one might suffer when hitting the sidewalk. There were no visible scrapes or abrasions. Accordingly, I believe Mr. Hines on the issue of injury causation.

[32] Having found Brewer’s baton to be the source of Hines’ injuries, I must consider whether those strikes were excessive force. There is not much question that that conclusion would follow if the strikes occurred after handcuffing, but here I must assess the baton strikes with a view to determine if they were reasonably necessary to get the defendant under arrest. It is always difficult to assess, in hindsight months afterwards, real time actions during a violent, chaotic episode. However, Constable Brewer is hardly a reliable witness regarding an assessment of reasonableness since he felt the use of pepper spray was justified, and he didn’t know that he struck the defendant on the cheek. As a result, on balance of probabilities, I find that the facial strikes were not reasonably necessary to effect the arrest. I am not convinced baton strikes to the hand, given they are part of the “delivery system”, were unreasonable.

Charter Remedy

[33] The defendant makes application pursuant to sections 7, 12, 24(1) of the Charter for a stay of proceedings as the appropriate remedy for excessive use of force employed by police. Police officers are permitted to use force during an arrest provided that it is reasonably necessary to effect the arrest, and is not disproportionate (Nasogaluak 2010 SCC 6, 2010 1 S.C.R. 206).

[34] A stay of proceedings is a drastic remedy, a remedy of last resort to be granted only in the clearest of cases (O’Connor 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411). The defendant submits that no remedy short of a stay of proceedings is appropriate. Alternative remedies, sentence reduction for example, would not send the necessary message that the justice system denounces police brutality.

[35] The defendant does not argue abuse of process in that the police conduct interfered with a fair trial. Rather, that it fell within the residual category referred to in paragraph 73 of O’Connor:

73 As I have already noted, the common law doctrine of abuse of process has found application in a variety of different circumstances involving state conduct touching upon the integrity of the judicial system and the fairness of the individual accused's trial. For this reason, I do not think that it is helpful to speak of there being any one particular "right against abuse of process" within the Charter. Depending on the circumstances, different Charter guarantees may be engaged. For instance, where the accused claims that the Crown's conduct has prejudiced his ability to have a trial within a reasonable time, abuses may be best addressed by reference to s. 11(b) of the Charter, to which the jurisprudence of this Court has now established fairly clear guidelines (Morin, supra). Alternatively, the circumstances may indicate an infringement of the accused's right to a fair trial, embodied in ss. 7 and 11(d) of the Charter. In both of these situations, concern for the individual rights of the accused may be accompanied by concerns about the integrity of the judicial system. In addition, there is a residual category of conduct caught by s. 7 of the Charter. This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.

[36] When determining if a stay is the appropriate remedy for the “residual” category, the approach taken by the Supreme Court in R. v. Regan sets out the appropriate test to be considered. There are three factors to be considered by a court asked to order a stay of proceedings, as set out in Regan 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 54 – 57:

(1) Will the prejudice caused by the impugned behaviour be manifested, perpetuated or aggravated through the conduct of a trial, or by its outcome;

(2) Is any other remedy reasonably capable of removing the prejudice; and

(3) If there should be doubt as to the appropriateness of a stay, how do the interests that would be served by a stay weigh against society’s interest in having a final decision on the charges on the merits?

[37] Applying the above test, I conclude that there is a societal interest in having a judicial decision on the merits regarding the knife attack on Mr. Humphries. A remedy exists to reflect police brutality, which can be factored into the sentence. The assault police, possession of the knife, possession of cocaine, and uttering threats charges will be stayed as the only remedy capable of expressing this Court’s condemnation of Constable Brewer’s excessive use of force, as well as a recognition of the significant harm caused to Mr. Hines resulting from this brutality.

Released: March 27, 2018

Signed: “Justice Blouin”