Court File and Parties

Ontario Court of Justice

Date: 2018-04-04

Court File No.: Brampton 3111 998 16 8989

Between:

Her Majesty the Queen

— and —

Adrian Thompson

Before: Justice G.P. Renwick

Heard on: 20, 21 September 2017, 07 March 2018

Reasons for Judgment released on: 04 April 2018

Counsel:

• T. Sarantis, A. MacArthur — counsel for the Crown
• P. Bawden, H. Saini — counsel for the defendant Adrian Thompson

RENWICK J.:

INTRODUCTION

[1] What began as a simple speeding ticket became anything but simple. The defendant faces two counts of assaulting police officers engaged in the lawful execution of their duties and one count of breaching a recognizance of bail. The initial detention of the defendant for speeding revealed that he was in possession of two cellular telephones. There was one main issue for my determination: Once the investigating officer determined through computer checks that the defendant was on bail for drug trafficking, with a condition that he believed prohibited the defendant from having possession of more than one cell phone, was the officer entitled to arrest the defendant? The defendant argued that the officer's misinterpretation of the term of his bail order did not provide objectively reasonable grounds for an arrest, and accordingly, when he spat upon the officers he did not commit a criminal offence. As well, given the actual wording of the bail order, the defendant submitted that an acquittal on all counts must follow.

[2] Given the many reasonable concessions made by counsel for the defendant at the start of this trial, the proceedings were brief and focussed. Constable Abdul Qadree and the defendant were the only two witnesses who testified. The defendant's outstanding (at the time) bail order and his letter of apology were the only exhibits introduced at trial.

GENERAL LEGAL PRINCIPLES

[3] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt. The prosecution's burden of proof never shifts during the trial. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any element of the offences charged beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that Mr. Thompson assaulted the police and/or breached his recognizance of bail, he will be acquitted of these charges.

[4] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance of probabilities. If after considering all of the admissible evidence I am sure that the defendant committed the alleged offence(s) I must convict him, since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, than I have a reasonable doubt and an acquittal must follow.

[5] I am aware that I can accept some, none, or all of what a witness says. Agreed facts, on the other hand, are accepted by the parties as proven. I have reminded myself to treat the evidence of all witnesses the same. Specifically, I am not to subject the defendant's testimony to greater scrutiny because of his role in the proceedings. That would be unfair and it would completely undermine the presumption of innocence, which does not shift from the defendant unless and until the prosecution has proven the charge beyond a reasonable doubt.

[6] Given that there are credibility issues at play in determining whether or not the prosecution has met its burden of proof, I must apply the principles articulated by the Supreme Court of Canada in R. v. W.D., as applied by subsequent cases and explained by academic commentary:

(i) I cannot properly resolve this case by simply deciding which conflicting version of events is preferred;

(ii) If I believe evidence that is inconsistent with the guilt of the defendant, I cannot convict the accused;

(iii) Even if I do not entirely believe the evidence inconsistent with the guilt of the defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the defendant must be acquitted;

(iv) Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and

(v) Even where I entirely disbelieve evidence inconsistent with guilt, the defendant should not be convicted unless the evidence that is given credit proves the defendant's guilt beyond a reasonable doubt.

[7] In the next part, I will outline some of the evidence. Although many of the facts were agreed as proven by the parties, the weight or significance of each fact is a determination that I must make. I will also provide an assessment of some of the viva voce testimony, with references to the evidence taken. Although I may not refer to all of what a witness said, I listened to each witness carefully, I have taken lengthy notes, and I have assessed the witness' testimony for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and their ability to observe, recall, and communicate.

THE EVIDENCE AND FINDINGS OF FACT

[8] I have carefully reviewed the transcripts and digital audio recordings of the evidence heard during this trial before considering the submissions and coming to a decision. I do not propose to reiterate all of the evidence, but I will note the parts that assist to understand my findings and the path to my decision-making.

[9] Constable Qadree testified that when he initially spoke with the defendant he observed two cellular telephones in the centre console cup-holder beside the defendant's right arm. The defendant admitted in his evidence that he did possess two cell phones and both were visible when the police dealt with him.

[10] However, as between the accounts of the two witnesses there is an issue as to whether or not the defendant moved one of the cell phones from the cup-holder and hid it inside the glove compartment when the officer had left to check his documentation at the police car. The defendant denied that this ever happened, but in two places his own evidence betrayed him.

[11] During his examination in chief the following exchange took place:

Q: What's next?

A: Next, yeah, so he tells me that it smells like marijuana. Next he asks for my identification, ownership and insurance. I give it to him. He goes towards his car. At the time, because my fiancé heard the transaction and the rowing about the marijuana, she's calling me back, so I had answered the phone and to be honest with you whenever I have my run-ins with Peel Police I always have a phone on. I always have someone on the phone, whether it's my dad, my mom, my brother, I've been through this since – I picked up my first adult charge when I was 18 years old and ever since, anytime I get pulled over by these guys, by Peel Police, sorry, for referring to them like that, anytime I get pulled over by them, I have someone on the phone, always. Until they instruct me to turn off my phone. So I guess he realized that someone was on the phone when he came back. He immediately told me to hang up the phone. I told my fiancé "bye." He then told me right away that I'm being arrest – so when he went to the car he came like very quickly, like he didn't even really sit into the car, usually they go into the car, they do notes or whatever but he didn't even really sit in the car. Like immediately as he, as he did whatever on the computer, he ran back to the car, he opened the door and he told me to get out. So I said, "sir, what, like what's going, what's the problem, what's the issue," you know. And he said, "well, you're being under arrest for having two phones." And I said "two phones?" And he said "yeah, you had two phones in the console." I looked, two phones are in the console. I tried to explain to him, "sir, my daughter, I just dropped her to my aunt and my uncle at Pearson Airport, she's going to Kingston, Jamaica. She cannot, she's only 12 years old" – no, at the time she's 11 years old, she cannot – I even told – I even told him that I had a argument with her because she is very persistent that she wants to bring the phone and my aunt and I had to explain to her that she cannot bring the phone. As a matter of fact my, my same daughter went to Jamaica the end of August, that just passed, she went with her mother. She got robbed for her chain. Someone walked up, snatched her chain off and ran off.

[12] Then, further on in the examination in chief the defendant testified:

Q: How long would you estimate your car was searched for?

A: They searched the car for at least 15, 20 minutes. They searched the car very thoroughly. They searched every nook and cranny. They went in the ashtray. They went everywhere. They searched the car like they were not just – he had already showed me the phones. He already showed me the phones. He showed me the phones right away. So they were searching for something. In the hot sun. I was in the cruiser like sweating.

[13] I have considered and rejected the defendant's testimony that he never hid the second phone from Constable Qadree for several reasons:

(i) I believed Constable Qadree. I accept his evidence as truthful on this point, and throughout his evidence. Qadree testified consistently throughout his evidence. He did not embellish his testimony. The officer was balanced at all times. The officer specifically admitted that he told the defendant he was going to jail, which seems to have provoked the defendant to become physical and to eventually spit on the police. Even after the officer was assaulted by the defendant, the defendant admits that Constable Qadree remained professional in his dealings with the defendant despite his many provocations. The officer does not appear to have held it against the defendant that he was spat upon by him and I accept that even though the officer may have had a motive to be less than truthful with the court, he was entirely truthful throughout his evidence;

(ii) The defendant did not testify in a consistent manner in several areas (see below) and I reject his evidence in this area;

(iii) The defendant's evidence in these two areas is implausible when considered alongside evidence which I do accept. Why would the officer say "yeah, you had two phones in the console" unless that had occurred. It would have been easier to point to the two phones as a basis for the arrest, if one of them had not been moved. Moreover, there would be no reason for the officer to show the defendant the two phones he recovered from the defendant's car if they were both in plain view when the officer had removed the defendant from his car; and

(iv) To a lesser extent than the above noted considerations, and notwithstanding initial defence counsel's invitation to "disbelieve or not accept perhaps is a better way to put it, large swaths of Mr. Thompson's evidence, at the point where it is clear that he was losing control of himself," I find that at the point of being investigated when the officer left the defendant to attend the police car to perform a computer check, the defendant realised that he was breaching his bail order and he hid one of the cell phones to avoid an arrest and investigation. I find that at that moment in time, the defendant lost all perspective and due to having many negative experiences with Peel Police in the past, he hid the phone to avoid his certain arrest and he was not forthcoming with the court on this issue.

[14] As noted above, Constable Qadree was completely believable in his evidence. I accept his evidence as accurate where it differs from the defendant's in key respects. I have come to this conclusion because the defendant was not a reliable witness, his demeanor while testifying did nothing to assist his credibility, the defendant's answers in chief and cross-examination were not always responsive, it even appeared as if the defendant had a viewpoint that he wanted to assert, regardless of what was being asked, and most importantly, the defendant's evidence was inconsistent in several areas. Three such inconsistencies are noted below.

[15] Specifically, the defendant initially denied ever kicking Constable Qadree, but when he was pressed about this during cross examination he admitted that it was possible that he did so, but he did not intend to kick the officer. Secondly, in cross examination the defendant attempted to resile from the facts agreed to at the outset, which he initially adopted in his examination in chief, which included that he spat on both officers. Lastly, and most importantly, the defendant was inconsistent with respect to his understanding of the bail condition that formed the basis for his arrest and the charge before the court.

In cross-examination the defendant testified as follows:

Q: And eventually the court orders your release, right?

A: Correct.

Q: And when they do that they make it clear that you're not supposed to have more than one phone, right?

A: Correct.

Q: And it's not a, it's not a situation where you're allowed to possess multiple phones, as long as they're not issued in your name, right?

A: No, that's not what the court document stated.

Q: Forget what the court document say just for a sec. I'm trying…

A: I can't.

Q: …to figure out…

A: I can't…

Q: …what in your mind…

A: …that's what – that is what I follow. I follow what's right there on the paper.

Q: I'm talking about what was said in court. 'Cause you were there, we weren't.

A: What they said in court, yeah, what they said in court is exactly what they put on paper.

Q: So you're saying then, that on June 22nd, 2015 your understanding of the bail condition is that you can carry five cellphones, as long as only one of them is registered in your name?

A: When I was in court on that day?

Q: Well, you're saying – I took you back to court that day…

A: Yeah.

Q: …you're telling me you're following what's on the paper, right?

A: Correct.

Q: All right. So based on what's on this paper, condition six, you're telling me that you can be out on July 7th, 2016 with five cellphones, as long as only one…

A: As long as…

Q: …is registered…

A: ...they're not registered to me. So if I have five phones in a box and I'm going to go sell them or something, yeah, I can have five phones.

Q: You could have as many phones as you want, facing allegations…

A: As long as…

Q: …of drug trafficking…

A: …I'm not using all five of those phones and they're not registered to Adrian Thompson, I can use – I can have the phones in my car.

Q: Okay. And the other phone that you had that your daughter was using wasn't registered to you?

A: No.

Q: It was registered…

A: It was registered…

Q: …in your daughter's name?

A: …to Maya Thompson. Yeah. It's on, it's on – it's on minutes. It's – it's registered to Chatr.

And the cross-examination continued:

Q: The phone was once in your name?

A: That phone was once, yeah, in my name.

Q: And you're saying that it eventually got into your daughter's name?

A: As soon as I was taken onto bail for this thing, for the drug charges, right, I cancelled that phone and put it into my daughter's name.

Q: Okay. And again, your understanding of the condition as it reads here, is you're allowed to have as many phones as you want, as long as only one is registered in your name?

A: Yes. So one has to be registered to me and the officer in charge for that case is supposed to have the number for my phone, and I can only have one phone registered to me, meaning I can only be using one phone. I can only get calls on one phone.

Q: Well, you can use as many phones as you want, can't you?

A: No, I can't.

Q: Why not?

A: Because it's – they can't be under my name. If I could – I can use – so if I'm at home I can use the house phone.

Q: Forget the house phone. We're talking about cellphones now.

A: If my dad…

Q: That's what the condition says.

A: …is with me I can use his cellphone.

Q: All right. Why would it matter if dad's with you?

A: It could be anybody. I – if anybody's with me and my phone's not working I can use another phone.

The cross examination further continued:

Q: Let's say your phone broke.

A: If my phone broke then I'd use Mr. Bawden's phone.

Q: And when you're doing that nothing's wrong, right?

A: Nothing's wrong at all.

Q: Mr. Bawden doesn't need to be with you?

A: Well, actually, you bring a good point. Maybe if I get pulled over and they – like even in this instance, and they follow through with who the phone belongs to and it comes up Mr. Bawden, I'm probably breaching. 'Cause I shouldn't be using a phone in Mr. Bawden's name. I should be using a phone in my name and the officer should have the number at all times.

THE COURT: Sorry, I just need a moment.

MR. SARANTIS: Sure.

THE COURT: What did you say about the officer?

A: Me?

THE COURT: I thought you said, "That's a good point. They follow through. I shouldn't be using a phone in Mr. Bawden's name and I should be using a phone in my name and the officer…

A: Has all right to breach me. Has all right to breach, breach me for my charge.

MR. SARANTIS: Q: Right. Because you're using a phone that's not in your name?

A: Correct. And I'd like to touch base like on what you said about my previous charges…

There is a brief interchange about that and then the cross examination continued:

Q: All right. So, if you're using a phone that's not in your name, in the car, and you're stopped by a police officer, you would think this officer has a right to breach me because I'm using a phone not in my name?

A: Correct.

Q: Right. So, if Mr. Bawden's phone is not by your ear but rather sitting in the console and he's not there, you're in the same spot, aren't you?

A: I'm in the same spot but that's not the situation here.

Q: Well, it's the exact same situation, isn't it?

A: No, it's not. I just dropped my daughter to the airport, I'm on my way home to bring her belongings and her cellphone, right.

[16] The defendant's evidence vacillated between being prohibited by his bail from using or possessing multiple cell phones. It is clear that at various points during the defendant's testimony he acknowledged that the intent of his bail condition was that he could not possess more than one cell phone, and that cell phone had to be registered with the officer in charge of his drug case. The significance of this admission is discussed later in these reasons.

[17] Constable Qadree testified that throughout his dealings with the defendant both phones were receiving communications. This was never denied by the defendant. I infer from this evidence that both cell phones in the defendant's possession were operable.

[18] As a result of all of the evidence I find as a fact that the defendant was in possession of two cell phones. One was registered in his name and pursuant to the terms of his bail order, the officer in charge of the defendant's drug charges was aware of that phone. The second cell phone was the one the defendant claimed was his daughter's phone, which he admitted he used to have registered in his name.

THE LEGAL ISSUES

[19] The legal issues raised during the trial can be stated as follows:

(i) Was Constable Qadree acting lawfully in the execution of his duties when he arrested and maintained physical custody of the defendant?

(ii) Was the defendant entitled to use force against the police?

(iii) Was the defendant in breach of his bail condition?

Was Constable Qadree Acting Lawfully When he Arrested the Defendant?

[20] It is helpful to reproduce the bail condition at issue. I have taken the wording directly from Exhibit 1, the recognizance of bail:

6. Do not possess more than once cell phone issued in your name, the number of which is to be registered with the OIC W. POULIMENOS, Badge #9511 or designate at Toronto Drug Squad (416-808-6100) within 24 hours of your release or of obtaining a cell phone and within 24 hours of any change of cell phone number.

[21] It is not disputed that Abdul Qadree was a fully uniformed police officer when he stopped the defendant for speeding. No issue is taken that the traffic stop was not arbitrary, nor was there any suggestion that the traffic stop was made for an improper purpose. The defendant suggested that if the officer had subjective grounds for believing that the defendant had breached his bail, this was not objectively reasonable. According to the defendant, the arrest made by Constable Qadree was unlawful and the defendant had every right to use force to repel the officer's unlawful arrest.

[22] This submission fails for several reasons.

[23] It is not contested that the officer held a subjective belief that the defendant was in possession of two cell phones that the officer believed belonged to the defendant. The officer testified in chief:

Q: What does it mean to you when you see that?

A: To me that means that the driver is not supposed to have more than one cellphone in his possession. And I had seen two, which were right next to his arm in the vehicle in the centre console. And the fact that he was a sole occupant in the vehicle, I was convinced and I believed that those cellphones belonged to the driver.

Q: Okay. So what did you do, if anything, as a result of getting that information from the, the search and also forming that belief that you just told us about?

A: Yes. At that point I decided to go out to the driver advising that he is breaching a condition and that he was being arrested at the time. Going to the driver's side again I approached the driver, explained to him the situation, told him that he had a condition not to possess more than one cellphone, but when I observed I saw that there was only one cellphone now at this point in the centre console. The driver said no, that he only had one cellphone, at which time I told him to step out the vehicle. He – I opened the driver door. At the time the driver was not very cooperative with me. I remember – I do recall when I told him to step out of the vehicle I had to physically restrain him and he was trying not to – he didn't want me to handcuff him, therefore I walked him to my vehicle where he – I do not recall exactly if I handcuffed him there or I had just brought him to the back of my cruiser, searched him and put – placed him in the rear of my cruiser.

The officer also testified in chief:

Q: Prior to you asking or demanding Mr. Thompson to get out of the car and you handcuffing him by his car, did he say anything in respect to the phones?

A: He…

MR. SARANTIS: And I'll say, Your Honour, I'm adducing this simply to flesh out grounds and why Officer Qadree did what he did in relation to the, the charge before the court.

A: He did – I do recall him mentioning that the phone supposedly belonged to his daughter and that he was in possession it but at the time I had the grounds to arrest him and I was going to further investigate to see if what the accused was telling me is the truth. But at the time there was no other occupants of the vehicle and I had reasonable grounds and I was convinced that both phones do belong to the accused.

Further, early in cross-examination the following testimony was given by the officer:

Q: What I take from your evidence is that you advised him of your intention to place him under arrest immediately upon returning to his vehicle, his protestations began instantly and from that point forward it was a, a matter of controlling this increasingly irate man who is insisting that he should not be arrested, correct?

A: At that point, as I mentioned to you, the driver did not make any attempts to, to show me or to prove to me that the phone didn't belong to him, like I – as I mentioned. For my own safety and his behaviour towards me, he's still in the possession of a motor vehicle. He's – the vehicle could be turned on at any point and he can take off so I would not be standing there as – when he's extremely belligerent and refusing to step out of the vehicle to tell him go ahead, reach into the glove compartment. At the time I didn't even know where the phone was, 'cause now I had only seen one phone. So, you mentioned why I didn't ask him to open that phone, I had other safety concerns as well as him not cooperating with me, that was going on. That's why when we went back to the Division my intention was obviously not to charge him with the offence, I had given him several options and even back at the Division I gave him another – also an option to, to prove to me that those phones actually belonged to his daughter, or at least one of the phone, but he still did not, so.

Early during the continued cross examination of the officer on 21 September the following exchange took place:

Q: Mr. Thompson then instantly began to explain to you that he was not carrying that second cellphone, the iPhone on his own behalf, but rather had only had it in his possession because he had to take it from his daughter, who he had just taken to the airport to go to Jamaica, correct?

A: That's correct, however his behaviour, how belligerent and defensive he got and the fact that he put the phone away when I went to my cruiser, at that time he was not being very reasonable with me. I was being very respectful, I always kept my tone down when I was talking to him, but his behaviour made me feel like at this point I do have the reasonable grounds to arrest him. He is, like as I mentioned yesterday, in a possession of a motor vehicle, the keys are still in the ignition, the vehicle's on, I would not be debating with him while he's still inside the vehicle, upset and belligerent.

The officer re-iterated this evidence several questions later:

A: It's reasonably possible however as I mentioned, at this point all I have is what Mr. Thompson is saying, he did not reach to show me, he did not offer to show me any materials inside the phone. All he said was that it was his daughter's. As I mentioned I had reasonable grounds to believe that – that he was breaching his condition and the only way I could further investigate that is by arresting him, making sure that – just the fact that I arrested him doesn't necessarily mean that I would've charged him. However I could not be debating with him, as I mentioned, him sitting in a motor vehicle being belligerent. Maybe if his behaviour was different, he was more calm, I would've probably given him some more time and benefit of the doubt and maybe even ask him to show me materials inside the phone.

[24] I accept this evidence. It was not contested. In fact, it is corroborated by the defendant's evidence that he was asked to open the second phone back at the police station to establish he was not the user of that phone.

[25] The issue became whether or not there were objectively reasonable grounds to arrest the defendant for an apparent breach of his bail order. Objective reasonableness is far from objective certainty. The belief need not be proven to any degree as long as it is not unreasonable in all of the circumstances for the officer to have held that belief.

[26] The bail condition is very poorly worded. Leaving aside what harm is sought to be prevented by this wording, the officer was bound to consider the wording as he read it. On its face, one reasonable interpretation of the bail condition is that the defendant was prohibiting from possessing more than one cell phone registered in his name.

[27] This condition is problematic from an enforcement perspective, because it would be almost impossible, without obtaining judicial authorization to procure records from the cell phone service provider, to determine whether or not a particular cell phone was issued in the defendant's name. Despite this investigative hurdle, it is obvious that the defendant was an investigative source with exclusive knowledge of this fact.

[28] During submissions, counsel for the defendant conceded that once the officer returned to speak with the defendant, he was entitled to use all of his observations, including any he made as he advised the defendant of the alleged breach, to supplement or improve his grounds for belief. This was a reasonable concession. It would defy common sense to freeze the officer's grounds at a moment in time and disregard any subsequent information that came into his possession as he approached the defendant and attempted to effect an arrest. Many unnecessary arrests and prosecutions can be avoided because officers are required to consider all circumstances, even those exculpating the suspect, up until the moment of arrest. Counsel also conceded that the officer can be believed when he said that he would have considered any exculpatory explanation offered to him had the defendant maintained a calm and rational demeanor.

[29] It was also conceded that the police are entitled to continue an investigation following an arrest, if there are reasonable grounds to make the arrest, initially. This confirms the law which is well known:

An arrest which is lawfully made does not become unlawful simply because the police intend to continue their investigation after the arrest.

[30] In R. v. Valentine, 2014 ONCA 147, our Court of Appeal confirmed the soundness of Constable Qadree's approach in a similar situation, at paragraphs 38-41:

Subjectively, the officer was aware of the facial breach. The CPIC check disclosed that the appellant was on bail for serious crimes and that his conditions of release included a curfew -- he was not permitted outside of his home between the hours of 10 p.m. and 5 a.m. The appellant was stopped for speeding at 10:20 p.m. The appellant was out past his curfew.

It is true that there was an employment exception and the evidence demonstrates that Constable Dowling became aware of it, at least through his exchange with CPIC. However, on its own, the officer's knowing about the employment exception does not necessarily lead to the conclusion that his belief that the appellant was in breach of his recognizance was unreasonable. Determining whether the employment exception operated at that particular time and in those particular circumstances depended on obtaining additional information about the circumstances in which the appellant was driving along Highway 401 late at night and then assessing the validity of that information

Constable Dowling had evidence of a clear facial breach. He only had the appellant's assurance that the exception to the curfew was in play. It was late at night. The appellant had serious criminal antecedents, was on bail for serious offences and was exhibiting threatening behaviour. In my view in these circumstances the officer is not required to investigate and try to rule out all possible explanations for the appellant's being out past his curfew before making an arrest.

The evidence indicated that the officer believed reasonable and probable grounds existed to arrest the appellant for breach of recognizance and that those grounds were justifiable from an objective point of view.

[31] Counsel for the defendant argued that the situation in Valentine was different from the defendant's because the condition at issue was permissive, unlike the curfew restriction in Valentine. Respectfully, this distinction is not determinative. It matters not in my view whether the bail condition is read permissively (you may possess one cell phone as long as it is registered in your name) or restrictively.

[32] In a similar case, the summary conviction appeal court found that the appellant was "hostile, uncooperative and threatening" and held:

Where the police have evidence of a facial breach of a term of bail or probation, and they are faced with volatile circumstances on the street, there is nothing wrong with making an arrest and then continuing the detention.

[33] The defendant's reaction to being investigated - hiding the second cell phone - undermined any innocent explanation for his possession and provided objectively reasonable grounds to believe he was not in compliance with this term of his bail order. The officer testified clearly that his belief was fortified when he came back to confront the defendant and one of the phones was now hidden from sight. The defendant's behaviour and his lack of cooperation exiting his car cemented the officer's reasonable grounds.

[34] I find that the arrest of the defendant was made upon reasonable grounds and the defendant's arrest was lawful in the circumstances. As a result, I conclude that Constables Qadree and Montgomery were acting in the lawful execution of their duty when they attempted to keep the defendant seated in the cruiser before he spat on them.

Was the Defendant Entitled to Use Force to Prevent the Police from Maintaining his Custody?

[35] There can be no doubt that when the defendant spat on the officers he was already under arrest, he had been handcuffed, and he had been seated in a locked police car for several minutes. It was at this point that Constable Qadree approached the defendant and opened the backseat door to ask the defendant if there was someone who could take possession of his car because he was going to jail. There can be no suggestion that the defendant's assault was his attempt to resist the prior arrest. The assault was the result of the defendant's loss of self-control long after he had already been placed under arrest. I find that when the defendant spat on the officers he did not do so to resist arrest, he did not do so to defend himself from an unlawful arrest, rather, he did so out of frustration and because he wanted to intentionally assault the officers. There is no controversy that the defendant spat in Constable Qadree's face and on Constable Montgomery's arm. Based upon all of the evidence and the defendant's concession that he spat on these two officers, I find that this was an intentional, non-consensual, unlawful application of force, beyond a reasonable doubt. This assault was not justified in law.

Was the Defendant in Breach of His Bail Condition?

[36] Counsel for the defendant argued that if the bail condition is poorly worded the defendant is entitled to the most favourable interpretation of the term and this court is restricted to the actual wording of the condition, not an interpretation for which no evidence exists. Applying this argument, the bail condition prohibited the defendant from possessing "more than once cell phone issued in your name, the number of which is to be registered with OIC W. POULIMENOS…"

[37] On a strict reading of the condition as it is written, the only sense I can make of the term is that the defendant was prohibited from possessing a cell phone more than once that had been issued in his name and registered with Constable Poulimenos of the Toronto Drug Squad. On the evidence of the defendant, he was in possession of a cell phone he formerly possessed which had at one time been issued in his name. If I accept the defendant's submission, and apply a strict literal interpretation of the bail condition, on the uncontested evidence of the defendant I can easily find him guilty of the breach of recognizance charge. However, I am not prepared to accept this argument.

[38] Respectfully (if it was the intention of the learned Justice of the Peace to prohibit the defendant from subsequent possession of a cell phone once issued in his name), the suggested interpretation based upon a strict reading of the term is meaningless. It serves no rational purpose to prohibit someone from possessing a cell phone issued in her name if the phone is possessed by the person more than once. I completely reject this literal interpretation of the bail term.

[39] The prosecutor submitted that the bail condition is simply missing punctuation after the word phone. This interpretation also presupposes that "once" should be read as "one." This interpretation makes the most sense, argued the Crown, because the object of a bail order for an alleged drug trafficker is to prevent further drug trafficking, and prohibiting the possession of multiple cell phones is presumed to advance the stated goal. By adding a colon, for example, and reading "once" as "one," the condition reads:

Do not possess more than one cell phone; issued in your name, the number of which is to be registered with the OIC…

The prosecutor submits that this is not only the most reasonable interpretation, but it is the one understood by Constable Qadree.

[40] I agree with the defendant that there is no direct evidence of what the court actually ordered at the conclusion of the defendant's bail hearing. Defence counsel suggested that there is a line of judicial authority which holds that any ambiguity between what a court orders and the wording on the bail papers is to be resolved by reference to the verbal order of the court. I was not provided with any cases on this point. Moreover, submits the defence, in this case, because there is no transcript of the bail hearing, the Crown cannot rely on anything but the terms of the bail as they appear on the defendant's recognizance. I do note, however, that the defendant's evidence explaining his understanding of the bail term is the closest one can get to the meaning of the bail condition, on the record before me. The fact that the defendant hid the second cell phone is evidence which supports the inference that the defendant knew he was breaching his bail condition and he was attempting to avoid getting caught. This supports the interpretation of the condition urged by the prosecution.

[41] I am prepared to accept that condition 6 of the bail order has two typographical errors. First, there is punctuation missing after the first use of the word "phone." Second, the word "once" should read as "one." This accords with common sense. This prohibited the defendant from possessing more than one cell phone, which is a reasonable condition for someone facing many drug trafficking (and related) charges. This also accords with the defendant's evidence of his understanding of the prohibition in effect.

[42] I am satisfied on all of the evidence, beyond a reasonable doubt, that the defendant possessed more than one cell phone contrary to his bail order. He intended to be in possession of the phone so that he could bring it home for his daughter. This offence is one of general intent and in so doing the defendant knowingly breached a term of his bail.

CONCLUSION

[43] I conclude beyond a reasonable doubt that Constables Qadree and Montgomery were lawfully executing of their duty when they tried to prevent the defendant from exiting the police vehicle following his lawful arrest. I am satisfied on the basis of all of the evidence I accept, beyond a reasonable doubt, that the defendant spat upon both officers and committed an unjustified assault on each officer. As well, I am satisfied beyond a reasonable doubt that the defendant breached a term of his bail order by possessing more than one cell phone.

[44] Accordingly, I find Adrian Thompson guilty of all three counts as charged.

Released: 04 April 2018

Justice G. Paul Renwick