Court File and Parties
Date: October 11, 2018
Court File No.: 17-1067
Ontario Court of Justice
Between:
Her Majesty the Queen
-and-
Desmond Gary Patrois
Before: Justice Michael G. March
Heard on: June 15, 2018 and September 27, 2018
Reasons for Judgment released on: October 11, 2018
Counsel:
- Caitlin Downing and Lauren Rock, Counsel for the Crown
- Desmond Gary Patrois, Accused acting on behalf of himself
Introduction
[1] Desmond Patrois ("Patrois") stands charged that on or about July 14, 2017, he did:
a) cause a disturbance by fighting in or near a public place contrary to s. 175(1) of the Criminal Code of Canada ("the Code"),
b) resist Cst. Burgins, a peace officer, in the execution of his duty contrary to s. 129(a) of the Code, and
c) assault Austin Simon ("Simon") contrary to s. 266 of the Code.
[2] The trial commenced on June 15, 2018 with Patrois entering pleas of not guilty. It spanned two days and concluded on September 27, 2018.
[3] The evidence adduced was fairly straightforward. The Crown called two police officers in its attempt to make out the essential elements of the alleged offences. Patrois testified in his own defence.
[4] Quite properly, at the conclusion of hearing from all of the witnesses, the Crown announced its intention not to seek a finding of guilt on the assault count.
[5] With Patrois' decision to testify and to deny the essential elements of the offences of 'cause disturbance' and 'resist arrest,' a W.D. analysis had to be applied to the evidence.
Constable Cranford
[6] Cst. Cranford testified that he attended a residence at 21:55 on July 14, 2018 in Arnprior with his partner, Cst. Burgins. They had made a trip there previously that evening. Simon had called police in respect of an earlier domestic incident. Patrois was present at or near the residence during both police visits. When the officers made known their intention to allow Simon a right of entry into the residence to collect his belongings, Patrois declared, "You are not coming in here. You can charge me with assault."
[7] This first sentence above, clearly a warning, was directed at Simon. The second sentence, a declaration, was aimed at police.
[8] Simon then apparently approached Patrois having exited a police cruiser on scene. Patrois started pushing or grabbing Simon in the chest area once the two men were within arm's length of one another. Cst. Burgins next grabbed Patrois' arms. Cst. Cranford turned to see Cst. Burgins had fallen to the ground. With that, Cst. Cranford told Patrois to put his hands behind his back. Cst. Cranford assumed Patrois had caused his partner to fall.
[9] Patrois did not immediately respond to Cst. Cranford's command. Accordingly, Cst. Burgins and he grounded Patrois. They placed him in handcuffs. They had difficulty applying them. Patrois is a large man in stature. It took one to two minutes to complete the process. Patrois was struggling according to Cst. Cranford. It was difficult to get Patrois' arms behind his back.
[10] Patrois was not injured. Police permitted him to walk to a grassy area before he had to prostrate himself. Once brought to his feet and handcuffed behind his back, Patrois was very compliant. In fact, the handcuffs were removed a short while later.
Constable Burgins
[11] Cst. Burgins clarified that police attended at 49 Sullivan Crescent, Arnprior. He arrived for the second trip there at 23:03. The intention of the officers was to keep the peace. Simon would be permitted to enter the residence to collect personal belongings.
[12] As it turned out, a garbage bag or suitcase had already been packed for Simon. He checked it, but explained he needed additional items for him and his children.
[13] Soon after, Simon, Patrois and Patrois' relatives on scene began chirping at one another. Cst. Burgins testified that Patrois began making his way toward Simon. When Patrois was within two metres of Simon, Cst. Burgins intervened. Cst. Cranford was holding Simon back. Patrois reached over Cst. Burgins and grabbed Simon. Cst. Burgins attempted to remove Patrois' grasp on Simon. Cst. Burgins' hand slipped. He fell backward. The officer quickly got to his feet again and told Patrois to put his hands behind his back. Patrois was not paying attention. His focus was on Simon. Cst. Burgins explained that when Patrois turned away from the officer while he tried to grab Patrois' arm, it was not aggressive. It was more in the nature of ignoring the officer's command.
[14] There were neighbours and onlookers to all of the commotion. The real resistance, in Cst. Burgin's view, was Patrois' reluctance initially to put his hands behind his back.
[15] Under cross-examination, Cst. Burgins agreed he may have told Patrois approximately three times to let Simon go. Cst. Burgins denied Simon approached Patrois. Cst. Burgins disagreed that he approached from behind or chased after Simon. According to the officer, the decision was made to ground Patrois because he was not listening. He would not place his hands behind his back. He kept turning away. Once grounded, Cst. Burgins could not recall any difficulty in handcuffing Patrois.
[16] Cst. Burgins agreed that by the time Patrois was ready to be placed in the cruiser, he had calmed sufficiently to allow for the removal of the handcuffs.
[17] In re-examination, Cst. Burgins confirmed that Simon did not want charges to be laid against Patrois. Ultimately, police acquiesced and permitted the women, Patrois' relatives, to accompany Simon and the officers into the residence. Cst. Burgins' initial concern was the volatility of the situation, quite understandably. Emotions between the women and Simon were heightened in light of the earlier domestic conflict where Simon's partner had been taken away by police.
Patrois
[18] Patrois testified that he was informed of a domestic incident involving Simon and his niece, Kimberly Ann Patrois, on the evening in question. Csts. Cranford and Burgins were inside her residence on Sullivan Crescent with her. Kimberly Ann Patrois, Cst. Cranford and Cst. Burgins left. Patrois received assurances from another officer, Sgt. Nicholas, that he need not worry. No one was in any trouble.
[19] Patrois was still on scene when Csts. Cranford and Burgins returned. The officers had Simon with them. They intended to let him enter the residence. Patrois stood in front of the door as though he was guarding a hockey goaltender's crease. He declared loudly, "You won't be coming in the house." He shook his fist in the air.
[20] In response, Simon came up the driveway of the residence between two vehicles. He approached Patrois. Cst. Cranford was already at the entrance door to the residence some four feet behind Patrois. Patrois grabbed Simon's coat once he was close enough to do so. Cst. Burgins came running behind Simon while yelling at Patrois to let Simon go. When Cst. Burgins rounded Patrois and Simon, the officer fell. Patrois believed the fall may have been caused by his letting go of Simon's coat, as Cst. Burgins was grabbing Patrois' arm. Patrois was clear. He offered no violence to Cst. Burgins. However, Cst. Cranford may not have been aware of the cause of the fall. Cst. Cranford thus placed his left hand on Patrois' right forearm. Patrois understood that this was an indication on Cst. Cranford's part that he intended to arrest him. Police did so on the nearby lawn laying him face forward. Patrois maintained that he specifically recalled offering no resistance.
[21] At the time, Patrois weighted, he said, 335 pounds. He could not get up off the ground without the officers' help. He attributed any difficulty for the officers in handcuffing him to his large stature.
[22] He explained that the handcuffs were taken off when Simon left the scene with his friend. Patrois, by this time, was 99% calm. He offered that in his past role as a bouncer, he could control a room full of 300 drunk people.
[23] After being held by police for a brief period at their detachment, he was released. He then returned to his niece's residence.
[24] Under cross-examination, he explained that the fear he and his relatives entertained was that, if Simon were permitted to enter the residence unaccompanied, he may retrieve a gun. Apparently, Simon had told Patrois' niece about its existence a couple of days earlier. The Patrois family members were also concerned that Simon may steal contents from the house.
[25] Patrois contended that Simon did not live in the residence. Patrois thought that he had a right to suggest how police handled Simon's desire to obtain items from within.
[26] Patrois agreed that there was a crowd of onlookers to the commotion. He had participated in the creation of a scene. He confirmed that it was true - police simply could have accompanied Simon inside. Patrois maintained that all he was trying to do was have some form of accompaniment for Simon when he was inside the house collecting his things.
[27] Simon shouted that he was "…coming back to lock the house down" just before he departed with a friend. Patrois considered it his duty to safeguard his niece's home.
[28] Patrois estimated that Cst. Burgins was 20 feet away from Simon and him when he had hold of Simon's coat. Patrois told Simon very clearly that he would not be permitted entry. He queried why Simon could not have walked around him if he wished to avoid confrontation.
[29] At the root of the matter however, Patrois accepted that he was trying to do the job of the police. He really ought to have let the officers assume control of the situation.
[30] He denied that he ignored police commands. He said he did put his hands behind his back. He recalled only that Csts. Cranford and Burgins chose to hang on to his arms while they walked him to the grass to ground him. Patrois was certain that if Cst. Burgins had not fallen, no charges would have been laid against him.
[31] Patrois thought the wet weather was a contributing factor which led to Cst. Burgin's fall. He felt sorry for the officer. Generally, he is the type of person who helps police – not hinders them. However, he conceded that when officers suggest that he should do something, it is not his place to disagree.
Analysis
Cause Disturbance
[32] The Canadian Oxford Dictionary, 2nd ed, 2004 defines "fight" to include:
b. argue or quarrel.
While it is true that the physical encounter between Patrois and Simon did not amount to much, the issued challenges of each to the other did cause a disturbance. Their fight occurred in a public place. It drew the attention of onlookers. It truly caused a scene. Patrois readily agreed with all of this.
[33] If the police had not been there to intervene, I have little doubt that the fight could have escalated to an exchange of blows. Patrois had made clear – rather loudly – that a line was being drawn in the sand. Simon was not going into the house. Police told Patrois and his family members what was to occur. It was not unreasonable. Simon needed a few more things other than what had been pre-packed for him. Patrois had no right to stand in the crease – so to speak. The commotion he participated in creating on July 14, 2017 was avoidable. The police could have been permitted to do their job. Instead, Patrois' declaration of a prohibition on Simon's entry, conditional upon being accompanied, was the beginning of a very public uproar. I accept that Simon himself was loud, obnoxious and calling on Patrois' challenge. However, that provides no defence, nor any legal justification or excuse, for Patrois' conduct in starting the fight with Simon. Simply put, and as conceded by Patrois, he could have let the police do their job.
[34] Accordingly, I find that Patrois' evidence does not negative any element of the offence of 'causing a disturbance.' Nor does it raise a reasonable doubt as to what Patrois intended to do, and did do.
[35] On the basis of the officers' evidence collectively, and Patrois' own testimony, I am satisfied beyond a reasonable doubt that he caused a disturbance contrary to s. 175(1)(a) of the Code.
Resist Arrest
[36] On the issue of whether Patrois resisted arrest, the Crown's evidence is thin. Both Cst. Cranford and Cst. Burgins contended that Patrois was, in essence, ignoring their command to put his hands behind his back. Cst. Cranford said that Patrois struggled as the officers tried to place handcuffs on him. Cst. Burgin's evidence did not accord with Cst. Cranford's on this point.
[37] It may well be that Patrois, in causing the disturbance as he did with the posturing going on between Simon and him, may not have been immediately compliant. My sense of the time during which Patrois was distracted, with his focus squarely on Simon, was that it was short-lived. Within seconds, once Cst. Burgins regained his feet, Patrois was listening to police commands. He did plead to be grounded on the grass as opposed to the paved driveway. Under the circumstances, that request was not unreasonable. Indeed, the police saw the good sense in it, and acceded to it.
[38] In my view, any resistance offered by Patrois to Cst. Cranford's and Cst. Burgins' request that he put his hands behind his back was so fleeting that it ought not attract criminal liability. Patrois shall be acquitted on the 'resist arrest' charge.
Conclusion
[39] Having carefully considered the totality of the evidence, Patrois shall be found guilty of 'causing a disturbance,' but not guilty of 'resisting arrest.'
Dated: October 11, 2018
_______________________________
The Honourable Mr. Justice M. March