ONTARIO COURT OF JUSTICE

CITATION: R. v. Gavriiloglou, 2019 ONCJ 189

DATE: 2019 03 07

COURT FILE No.: Central East Region: Oshawa Courthouse 18-25005

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

GEORGE GAVRIILOGLOU

Before Justice Peter C. West

Evidence Heard on November 29, 2018

Oral Submissions heard on January 15, 2019

Oral Reasons given on March 7, 2019

Mr. O. Fitzgerald............................................................... counsel for the Crown

Mr. G. Gavriiloglou............................................................ representing himself

WEST J.:

[1] George Gavriiloglou was charged on January 7, 2018 with an assault on Omar Minawi and Wilful Damage. He was further charged on January 8, 2018, with Assault a peace officer, PC Sigmann, with intent to resist arrest and Mischief under $5000 respecting a Durham Regional Police vehicle. On November 29, 2018, Mr. Gavriiloglou entered not guilty pleas to all charges and commenced his trial, representing himself. The Crown proceeded by summary conviction on all charges.

[2] The Crown called a number of witnesses: Omar Minawi; Riley Banks; Stratos Gavriiloglou; PC David Hadad; and PC Adam Sigmann. Mr. Gavriiloglou did not testify in his own defence.

[3] There are a number of issues arising in this case:

1. The assault allegation respecting Omar Minawi involved an argument between Mr. Minawi and George Gavriiloglou where Mr. Gavriiloglou got very close to Mr. Minawi and was yelling with his hand clenched beside his body. The issue is whether on the totality of the evidence the Crown has proven beyond a reasonable doubt that an assault pursuant to s. 265((1)(b) was committed by George Gavriiloglou towards Omar Minawi.

2. The wilful damage charge related to shaving cream being applied to a mirror in the bathroom and writing with a marker on Mr. Minawi’s door to his room in the student apartment. The issue is whether these two items were damaged within the meaning of the section given the mirror was wiped clean and the door was painted by the defendant’s brother.

3. The issue which arises on the assault peace officer with intent to resist arrest charge is whether PC Hadad advised Mr. Gavriiloglou of the offences he was being arrested for and what impact this has on the lawfulness of the arrest. Further, there is an issue as to whether George Gavriiloglou assaulted PC Sigmann who was one of the four or five officers involved in Mr. Gavriiloglou’s arrest.

4. The mischief under charge is respecting damage to a DRPS police cruiser’s rear passenger side door frame. The issue is whether the door frame, which was bent or dislodged amounted to mischief. The door was able to be repaired by a DRPS mechanic according to the evidence.

Factual Background

[4] On January 7, 2018, Omar Minawi returned to the student house he shared with a number of other students, including Riley Banks, Stratos Gavriiloglou and George Gavriiloglou. Everyone left the apartment for the Christmas break, except George Gavriiloglou, who remained in his room on the second floor during the Christmas break.

[5] According to Mr. Minawi, he believed there was an apartment rule that there was to be no smoking on the second floor where the bedrooms were located. When Mr. Minawi returned the majority of the house smelled like weed (marihuana). When everyone left the house it was clean but now it was messy according to Mr. Minawi and Mr. Banks. Mr. Minawi was with his parents when he returned, they put things into the kitchen and then went to his room to unpack the things he had brought. The weed smell was stronger upstairs. Mr. Minawi was upset by the smell of marihuana after his parents left.

[6] At some point Mr. Minawi went into the hallway. He knocked on George’s door and confronted him about the marihuana smell coming from George’s room. Omar did not enter George’s room but spoke to George in the doorway when he answered his door. Omar told George they had discussed not smoking upstairs but George said he thought he could smoke in his room. Mr. Minawi said, “What the fuck George.” Omar left George’s door.

[7] Omar then spoke to another roommate, Riley Banks, who had returned to the house and attended the hallway on the second floor and during their conversation Omar said he planned to speak to the landlord about George’s smoking upstairs. George came out of his room into the hallway. He was angry and came close to Mr. Minawi. The conversation continued in the hallway. George had his hands at his side and one of his hands, according to Mr. Minawi, was clenched. George was yelling at Mr. Minawi. Omar told him he just wanted to talk and he was not going to fight. George stepped back and said to Omar, “I’m older than you, you have to respect me.” George told Omar, “You don’t know what I’ve been through, and if you snitch you’ll have to sleep with one eye open.” This was said at the end of the conversation, according to Mr. Minawi. Omar testified he was quite quiet throughout their interaction. He told George to please move back and calm down. George moved back.

[8] Mr. Minawi testified he wanted space as he was quite frightened. He thought he was going to get hurt. Later Mr. Minawi wanted to shake hands with George as he was concerned about the comment George made. He returned to George’s room and knocked on George’s door. George was not interested in shaking hands.

[9] Mr. Minawi testified George never raised his fist towards Mr. Minawi and his arm and hand were always at his side. George left and went back to his room and closed the door. Mr. Minawi said he texted Riley and after a while he left his room, locked it and went downstairs to speak to Riley.

[10] Riley was downstairs during the conversation in the hallway between Omar and George. Omar agreed he did not see George smoking marihuana but he could smell it. He agreed George did not raise a hand to him or hit him. Omar agreed Riley was just downstairs and would be able to hear everything said between them. Omar was not sure when Riley left and went downstairs to sit on the couch because he had spoken to him in the hallway upstairs after the first interaction.

[11] Mr. Minawi agreed he and George had been on good terms prior to this incident. Their relationship was okay. It was the way George came out of his room – it frightened Omar. He agreed George did not hurt him. He agreed they lived together and made jokes together. Omar had seen George have confrontations with his brother Stratos. Omar testified he was just upset about the smell of marihuana and did not want his clothes to smell like marihuana. When he said to George, “what the fuck George,” Mr. Minawi said he was not saying this to intimidate George. He was just upset because it was his understanding nobody would smoke upstairs at all. Mr. Minawi testified he did not raise his voice.

[12] Riley Banks lived in a room in the basement. When he returned to house on January 8, there were post-it notes on the walls. He testified three doors were kicked in, yet the photograph of Mr. Minawi’s room’s door, Exhibit 3, only showed some small writing on the door. No other photographs were filed showing any damage to any other doors in the apartment.

[13] When Riley left for Christmas break on December 6, he had cleaned the house completely. When he returned a month later on January 6, the house was a mess. Mr. Banks did not explain what he meant by this.

[14] He overheard Omar and George yelling at each other with both their voices raised. He testified he heard the conversation between them as he was sitting on the couch in the living room. Omar was upset about the smell of marihuana and confronted George. During the exchange he heard George say, “Don’t know what I am capable of.” Riley did not go upstairs during the yelling or after the comment. He heard George’s door slam after the comment. After that Riley went to his room in the basement.

[15] Riley testified he and Omar discussed what to do and they decided to call Stratos, George’s brother. Riley testified he did not hear George say Omar would have to sleep with one eye open.

[16] Stratos Gavriiloglou is George’s brother. He and Omar, George and Adrian all have rooms upstairs on second floor. Riley and Rath, another student, were in basement rooms. He spoke to Mr. Minawi through text and then met up with him. They met up at a police station in Oshawa on Simcoe. They were redirected to police station in Whitby the same day on Taunton. Stratos met up with Omar and Riley. He had been visiting his parents over Christmas. Stratos testified Omar and Riley were both worried but Stratos believed Omar was more stressed because he was quite sheltered. They were told by the police not to go back to house, so they checked into a hotel. George was texting Stratos but he ignored his brother’s texts because he was frustrated with him.

[17] Stratos testified he went back to the house on January 8, but had to enter through a bathroom window, as the doors were barricaded. The door has a pin code but the battery had been removed. A shoe shelf had been put across the front door on the inside. George was in his room. There was nobody else in the house when Stratos entered the house. Stratos testified there were punctured water bottles leaking in the house. Milk was punctured inside the refrigerator. There was shaving cream on the mirror, Exhibit 4. The furniture had been moved around and rearranged. He was shown Exhibit 3, photo of Omar’s door, which had been marked with writing by someone with a blue Sharpie.

[18] Stratos collected some things for Omar, which Omar had requested. He then spoke to George and left the house. He returned again on the same day, January 8, after his classes, with Riley to retrieve some further things. Only George was in the house.

[19] In cross-examination Stratos agreed on January 7, 2018, Dalhousie Court, where the house was located, was blocked off by the police. The tactical unit was there. The next day the street was not closed off by the police. Stratos saw the on-line articles about police closing Dalhousie Court to the public. There were photos with 10 police cars and ETF officers in full gear.

[20] When Stratos came back the second time with Riley Banks they came in through the front door because Stratos had removed the barricade and put the battery back in the pin code. Stratos testified he painted Omar’s door to cover the writing. The mirror was wiped clean.

[21] On January 8, 2018, Stratos and Riley Banks and some other friends of Stratos went back into the house on a third occasion. He was concerned for his brother’s safety and effected a citizen’s arrest and he and a friend held George down on the floor in the kitchen. Stratos called the police and 5 police officers came inside the house to arrest George. Stratos agreed he and his friend had George restrained and he could not move. When the police arrived George was already pinned to floor by Stratos and his friend. Stratos saw the police officers get on top of George and they pinned him to the floor. Stratos was not involved then and was not part of the scrum. Stratos believed the police restrained George a little harder than they should have but he believed it was because George was resisting. George was becoming more agitated and in his state of mind Stratos heard George saying he was talking to angels. The police officers were stopping people from recording the arrest with their phones.

[22] Stratos Gavriiloglou testified he went with his friend to try to diffuse the situation. He did not want his brother to be hurt or shot. He knew George would get upset if the police became involved. He told the police what he was doing. After he had George down on floor, he called the police and they came in through the front door, which Stratos left open. The police got on top of George and George started screaming and yelling. They handcuffed him and put on shackles and carried him out of the house. His brother smokes weed to calm himself but he can get into a mental state where Stratos is not there. He has not been diagnosed because he will not see a psychiatrist but Stratos knows there are mental health issues.

[23] PC David Hadad was a DRPS officer for just over a year when he testified on November 29, 2018. He met with Stratos, Omar and Riley in a Coffee Culture shop on January 7, 2018. He took a statement from Omar Minawi.

[24] He came into contact with George Gavriiloglou on January 8, 2018, at 11:01 pm. He was located in the living room of the house at 1906 Dalhousie Court, Oshawa. He observed several people inside the house. George Gavriiloglou was on his stomach, facing the floor, being held down by some of these people. PC Hadad held George down to the floor and other officers came to assist in the arrest. He arrested George Gavriiloglou at 11:09 pm. PC Sigmann, Sgt. Thomson and PC Pillena assisted. There were several other officers that he could not recall.

[25] According to PC Hadad’s evidence, George Gavriiloglou was not compliant at all, he was resistant. He was shouting and yelling profanities. He was instructed to place his hands behind his back but he put them under his stomach. PC Hadad testified he did not recall at the time but he believed Mr. Gavriiloglou was also spitting, although no spit landed on him. In my view this evidence was internally inconsistent. PC Hadad testified they were finally able to put handcuffs on Mr. Gavriiloglou, which were double locked. The police attempted to stand him up and when they did he immediately dropped his body weight. As a result he was carried out by four police officers, each grabbing a limb. PC Hadad walked behind the four officers carrying the defendant. Before he was removed from the house another officer got shackles, which were put on Mr. Gavriiloglou’s legs.

[26] George Gavriiloglou was arrested for the alleged assault on Omar Minawi and mischief that had occurred the night before, although George was not advised of the reasons for his arrest. When he was placed in the back of a police cruiser he kicked the passenger side door window, which pushed out the frame. The officers instructed him to stop. He stopped this and then began banging his head against the rear passenger side window 10-15 times. When they arrived at the police station PC Hadad observed the frame of passenger door was bent slightly. The door was not in that condition when he first went out that night.

[27] Once at the police station George Gavriiloglou was a lot calmer. He was searched by a special constable and was complying with their instructions. They noted something was clenched in his hand and when it was pried open a disposable razor blade was discovered. The handle had been broken off. Exhibit 5 are series of photographs showing the passenger door frame slightly bent.

[28] PC Hadad agreed when police arrived Mr. Gavriiloglou was already on the floor. He agreed that George did not assault any police officer from what he saw. He did not see George spit. PC Hadad testified the police had to unlock George’s hands by force. PC Hadad described the arrest as a “dynamic situation” but did not explain what this meant. PC Hadad testified he read the right to counsel and caution but did not advise Mr. Gavriiloglou what he was arresting him for. PC Hadad agreed Mr. Gavriiloglou had a right to know what he was being arrested for. PC Hadad testified Mr. Gavriiloglou was not advised what he was being arrested for until he calmed down, which was when he was paraded before the Sergeant at the police station. PC Hadad attempted to justify not advising Mr. Gavriiloglou why he was being arrested out of concern for the safety of the other people in the house. It is my view this is not believable in light of Stratos Gavriiloglou’s evidence, which I found to be internally consistent, not embellished, straight forward and candid. George was restrained on the floor by his brother and another person.

[29] PC Hadad did not recall George saying he could not breathe. PC Hadad agreed it was a possibility that a person would feel light headed with seven people on top of them and would have difficulty breathing. A lot of police officers had been called to attend the scene. The information provided was an individual was being held down by a number of people. On January 7, 2018, it was an incident command call out. PC Hadad testified there was information the person may have a gun. The Tactical Support Unit (TAC) was called out and they did not believe it was safe to enter the house. The officers may have had their guns out. PC Hadad agreed no weapon was ever found inside the house.

[30] PC Hadad testified Mr. Gavriiloglou was not complying as he would not walk to the police cruiser. Mr. Gavriiloglou was put into the cruiser because he would not walk. PC Hadad testified he checked his cruiser at the start of every shift and would note any damage he observed. He did not note any damage to the rear passenger door frame. There was no damage to the window itself. The window was not broken.

[31] PC Hadad knew Stratos was inside the house with others and that two or three people were on top of George and he was under control but denied receiving a text from Stratos advising the police to come to 1906 Dalhousie. He did not know who Stratos gave information to, however he believed there was a call to the police about a “disturbance” at 1906 Dalhousie. This was what he responded to.

[32] The previous day on January 7, 2018, PC Hadad testified Stratos advised him that his brother George was known to carry weapons and he may have a gun. It is noteworthy that Omar Minawi, Riley Banks and Stratos Gavriiloglou did not testify they told PC Hadad when they met with him in the Coffee Culture that George had a weapon or a gun. None of these witnesses described George Gavriiloglou possessing a weapon or gun during the incident in the house on January 7, 2018.

[33] PC Hadad could not recall the exact time the police shut down Dalhousie Court. A decision was made to do a command call and TAC were there. A decision was made it was not safe for the tactical team to enter the house and the police left. PC Hadad did not know what steps were taken to speak to George Gavriiloglou inside the house. PC Hadad was unaware of Stratos entering the house the next day or that Stratos and Riley Banks had entered the house as well and removed things from the house after speaking with George Gavriiloglou.

[34] The front door was open when PC Hadad and PC Sigmann first went into the house. George Gavriiloglou was on floor on his stomach with two people on top of him. There was no yelling and screaming by George. Police took over, at least four or five officers were on top of him. PC Hadad did not have any notes of what was said by Mr. Gavriiloglou. PC Hadad advised in questions by me for first time that after Mr. Gavriiloglou was handcuffed to the rear someone got the shackles and a “spit” mask and put them on him. Mr. Gavriiloglou was not able to do anything as he was carried out to the police cruiser. According to PC Hadad, Mr. Gavriiloglou was under control by police within two minutes of police arriving inside the house.

[35] Later in his testimony PC Hadad indicated the information received from 911 was that George Gavriiloglou was inside the residence being held down to the ground by people in the residence. TAC were not called back to house despite the previous evening TAC being involved. PC Hadad testified when he and PC Sigmann entered the residence they did not have their firearms drawn despite the information that George Gavriiloglou might have a gun. PC Hadad again said he could not recall if Mr. Gavriiloglou said he could not breathe when the officers were on top of him. PC Hadad reiterated he did not see Mr. Gavriiloglou spit and he did not spit on PC Hadad. The “spit” mask was put onto Mr. Gavriiloglou’s face at the same time the shackles were put on.

[36] PC Sigmann has been an officer with DRPS for 12 years. He testified he received information of a “disturbance” at 1906 Dalhousie, George Gavriiloglou was being held down. The police entered the house. George Gavriiloglou was being held down on the floor in the kitchen area. Things were disoriented and there was a coffee table upside down or on its side in the living room. He believed there were 3 or 4 officers showing up at the same time. PC Hadad was with him.

[37] He was aware there were reasonable grounds to arrest George Gavriiloglou from the night before. The police took over from civilians holding down the accused. The officers attempted to effect the arrest of George Gavriiloglou but he was holding his arms underneath his stomach. He was holding onto his hands and kicking his feet. He also was spitting, making loud throat noises and he was told to stop resisting.

[38] PC Sigmann made an attempt to get his right arm out from under his body. He was yelling the police officers were ETF officers. It took 45 seconds to a minute to get him handcuffed. Four police officers carried him out of the house because he wouldn’t walk or cooperate and he was placed him in a police vehicle. He began kicking the door on rear passenger side. At some point leg shackles were put on his ankles, either in the house or in cruiser, PC Sigmann could not recall exactly when this occurred. He was yelling profanities at the police. He also hit his head against the window at least 15 times. PC Sigmann also believed a “spit” mask was put on Mr. Gavriiloglou to prevent any bodily fluids getting on police officers. It was a very hectic few minutes inside the house.

[39] The window frame was dislodged as a result of Mr. Gavriiloglou kicking the rear passenger door. This was not something he noticed prior to going out for his shift. Common practice to check the police vehicle before going out on duty. He was told by one of the DRPS fleet facilities officers that he was able to fix the door. This officer told PC Sigmann the cruiser did not have to go out for service. He did not know whether this cruiser would have been used the next day.

[40] PC Sigmann did not arrest George Gavriiloglou. PC Hadad did. Mr. Gavriiloglou was paraded before a Staff Sergeant.

[41] PC Sigmann was asked by the Crown how Mr. Gavriiloglou compared to other persons he had arrested over 12 years as a police office. PC Sigmann testified out of the 500 persons he has likely arrested over his 12 years as a police officer Mr. Gavriiloglou was in the top three, in terms of his resisting, which he described as violent, uncontrollable behaviour. This was something he did not see that often. It was like Mr. Gavriiloglou was on drugs, the strength he had was not something he anticipated for someone of his size and he estimated Mr. Gavriiloglou’s weight to be 160 pounds.

[42] PC Sigmann agreed he did not see Mr. Gavriiloglou spit on any officer. He did not hear the accused say he could not breathe. It was the framing around the rear passenger door window that held the glass that was dislodged.

[43] PC Sigmann was aware George Gavriiloglou had mental health issues from his brother Stratos from the January 7, 2018 meeting at the Coffee Culture. He knew when he entered house that they would be dealing with an individual who had mental health issues. PC Sigmann had dealt with many individuals with mental health issues, some who had been very violent when they were being arrested. He also agreed he had dealt with individuals who were under the influence of illicit substances who were violent with police when they were arrested. He agreed this was part of his job – what he does for a living. PC Sigmann knew from Mr. Gavriiloglou’s brother that the person they would be dealing with had mental health issues.

[44] George Gavriiloglou was not released on a surety bail until January 11, 2018.

Applicable Legal Principles and Analysis

[45] As in any criminal case, Mr. Gavriiloglou is presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness’ testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), R. v. Lifchus (1997), 1997 CanLII 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.) and R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.). Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings. I recognize that the rule of reasonable doubt applies to the issue of credibility.

[46] Mr. Gavriiloglou did not testify during his trial. There was no onus on him to testify and he does not have to prove his innocence. The onus remains on the Crown to prove George Gavriiloglou’s guilt beyond a reasonable doubt throughout this trial. A reasonable doubt is a doubt based on reason and common sense, one that arises logically from the whole of the evidence or absence of evidence.

The Assault Charge

[47] The first charge set out in the information alleges an assault on Omar Minawi contrary to s. 266 of the Criminal Code. Based on the evidence the applicable definition of assault is in s. 265(1)(b), which reads as follows:

A person commits an assault when

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

[48] In R. v. Horncastle, [1972] N.B.J. No. 87 (N.B.C.A.) at paras. 40 and 43 the New Brunswick Court of Appeal held it is sufficient to constitute the offence of assault when a threat is intentionally made to apply force to the person of another and there is the present ability to carry out that threat. Neither the degree of alarm felt by the person threatened nor the intent of the accused to carry out that threat are involved in the determination of the guilt of the accused. This case is cited with approval in R. v. Horner, [2018) O.J. No. 6917 (C.A.). In R. v. Horncastle (supra), the accused and his wife got into an argument whereupon the wife slapped the husband, he took hold of a shotgun, held it by the middle, tried to hit her with it, he swung it one way and another and then said he was going to shoot his wife and their 14 year old son. He then went into another room, got shotgun shells for the gun and while the wife and son were running to the next door neighbour, the wife saw her husband putting a shell into the gun.

[49] In Horncastle, the court held where the accused threatened by act or gesture to apply force by waving a gun around, loading it after stating he would shoot her and had at that point the present ability to carry out the threat, this amounted to an assault under s. 265(1)(b) despite no shot being fired.

[50] In R. v. Nurse, 1993 CanLII 14691 (ON CA), [1993] O.J. No. 336 the Ontario Court of Appeal set out the essential elements of an assault under s. 265(1)(b):

1. A threat to apply force to another person,

2. by an act or gesture, and

3. while having, or causing that other person to believe on reasonable grounds, that the person making the threat has the present ability to effect his purpose.

[51] The facts in Nurse, supra, involved the accused firing a shotgun in close proximity to a house without the intention of hitting the house, but with the intention of threatening the occupants of the house. This amounted to an assault as the accused caused the occupants to believe on reasonable grounds that he had the present ability to effect the purpose of applying force to them. The threat in the firing of the shotgun was the communication of a message they would be shot. Other contextual evidence included the fact that there was a fight earlier in the day between the parties, there were threats made following it, the occupants of the house on hearing the shots immediately took cover and the accused knew that the victims were inside the house when the shooting took place and it was the accused’s purpose to threaten and intimidate them.

[52] Other cases in Ontario, which address s. 265(1)(b) include R. v. Melaragni, [1992] O.J. No. 4178 (SCJ, Moldaver J., as he then was); R. v. Rita, [2007] O.J. No. 445 (Lampkin J. OCJ); R. v. Quesnelle, [2013] O.J. No. 6264 (Mulligan J., SCJ) and R. v. Salagan [2015] O.J. No. 4383 (Bondy J., OCJ).

[53] It was Mr. Minawi’s evidence that throughout his interaction with George Gavriiloglou he was calm and quiet. He did not raise his voice although he testified he was angry that George had smoked weed in his room on the second floor, which was contrary to what all of the roommates, including George Gavriiloglou had agreed to. Mr. Minawi’s evidence was in direct conflict and was inconsistent with Riley Banks’ evidence. Mr. Banks testified he was in the living room sitting on the couch and could hear everything concerning the interaction between Omar and George in the upstairs hallway. It was his evidence both Omar and George were yelling at each other with their voices raised. Mr. Banks testified he never heard George say to Omar, “If [he] snitched [he’d] have to sleep with one eye open.” Mr. Minawi testified he was the one who approached Mr. Gavriiloglou’s room and first knocked on the door and said, “What the fuck George.” This was heard by Mr. Banks in the living room and was part of the yelling he heard. I find there is a reasonable inference based on Mr. Banks’ evidence that Mr. Minawi yelled in an angry manner and tone, “What the fuck George” through Mr. Gavriiloglou’s closed door and this continued throughout his interaction and conversation with George Gavriiloglou. As a result of the significant discrepancies between Mr. Banks’ and Mr. Minawi’s evidence I am of the view it would be unsafe to rely on Mr. Minawi’s evidence to prove the charge of assault beyond a reasonable doubt.

[54] The assault alleged by the Crown alleged Mr. Gavriiloglou came out into the hallway after Mr. Minawi knocked on his door and stood close to Mr. Minawi with his hands by his side. Mr. Minawi testified he saw George had his right hand clenched at his side. Mr. Minawi testified George never raised his hand or shook it in an angry manner towards Mr. Minawi. On Mr. Minawi’s own evidence, George stepped back into the doorway of his room when Mr. Minawi asked George to step back when he came close to Omar. I do not accept Mr. Minawi’s evidence that George was clenching his right hand by his side. I find both George and Mr. Minawi were both raising their voices and were yelling at each other. I further find they were both angry about the others conduct and were expressing their anger through their words. I find on the evidence George Gavriiloglou did not by words or acts or gestures threatened Mr. Minawi. Further, I do not accept Mr. Minawi’s assertion that George Gavriiloglou threatened him by saying if Omar snitched he would have to sleep with one eye open. This was not heard by Mr. Banks and he was clearly in a position to hear it if in fact it was said by Mr. Gavriiloglou.

[55] On the totality of evidence I find there was no assault by Mr. Gavriiloglou towards Mr. Minawi as he did not make a threat to apply force to Mr. Minawi by either an act or gesture, which are both essential elements of the offence under s. 265(1)(b). In all of the cases above where a finding of guilt was entered the accused engaged in making a threat to apply force through an act or gesture. It is my view that evidence is completely absent based on the findings of fact I have made. Further, I find there was no conduct by Mr. Gavriiloglou towards Mr. Minawi that would have caused him to believe on reasonable grounds Mr. Gavriiloglou intended to assault him and had present ability to carry through with that purpose. As a result, this charge is dismissed.

The Assault Peace Officer with Intent to Resist Charge

[56] The information alleged George Gavriiloglou assaulted Constable Sigmann with intent to resist or prevent the lawful arrest or detention of himself, contrary to s. 270 (1)(b) of the Criminal Code of Canada. Section 270(1)(b) provides:

270(1) Every one commits an offence who

(b) assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person.

[57] The information particularized that PC Sigmann was the police officer assaulted by George Gavriiloglou with intent to resist arrest. I find the evidence is clear that George Gavriiloglou was completely restrained by his brother, Stratos and a friend before the police arrived on scene. The police were called and advised by Stratos that his brother George was being restrained. Stratos Gavriiloglou had been interviewed the previous day on January 7, 2018, and told the police his brother suffered from mental health issues. This was confirmed by PC Hadad who interviewed Stratos and Omar Minawi and Riley Banks and PC Sigmann testified he was also aware of this from PC Hadad’s interview. On the totality of the evidence I find the police were aware that George Gavriiloglou suffered from undiagnosed mental health issues.

[58] PC Hadad, the arresting officer, testified Mr. Gavriiloglou was unable to move because he was restrained by his brother and one or two others. None of the police officers attempted to speak to George Gavriiloglou when they first came into the house. Instead, on the evidence, Stratos and his friends were pulled off of George and four of five police officers then jumped on top of George without advising him what they planned to do or the reason why. According to PC Hadad, Mr. Gavriiloglou was not advised of what charges he was under arrest for. His reason for this was because it was a “dynamic situation.” He did not explain what this meant. PC Hadad recognized Mr. Gavriiloglou had a right to know why and for what offence he was being arrested for.

[59] I find because George Gavriiloglou was completely restrained when the police first entered the house there was no “dynamic situation,” other than the situation created by the police themselves and their conduct. In my view this was a continuation of the over-reaction by the police from the night before when Dalhousie Court was blocked off and closed down to the public with TAC officers in attendance in full tactical gear. The explanation by PC Hadad for why this occurred was because it was believed George Gavriiloglou may have been in possession of a weapon or a gun. The underlying complaint to the police on January 7, 2018, was in respect of the allegation of assault I just dealt with above, at its highest a clenched hand at his side and a threat of violence if the complainant snitched to the landlord. The complaint did not involve the use of a weapon or a gun, in fact, none of the witnesses testified George Gavriiloglou had ever brandished a weapon or a gun at any time. The allegation did not involve a weapon or a gun yet a public street was closed down for several hours, with no effort by the police to even speak to Mr. George Gavriiloglou who was inside 1906 Dalhousie Court. The police then abruptly packed up everything and left this “supposedly dangerous” individual inside the house at 1906 Dalhousie Court. There was no further police surveillance put on the house to see if this “dangerous” individual left. The police actions from the previous night do not accord with common sense and demonstrate a significant and substantial over-reaction to what can only be described as an allegation of extremely minor criminal charges.

[60] In fact, the police were completely unaware that Stratos Gavriiloglou had entered 1906 Dalhousie on as many as three occasions and removed items for some of the residents. Stratos had unlocked the front door, put the batteries back in the pin code entry to the house and entered it with a number of his friends and his brother George’s friends to ensure George was not injured or shot by the police on January 8, 2018. Stratos Gavriiloglou testified he was concerned his brother could be shot or seriously injured if he did not enter the house to restrain him in light of the police response on the previous evening. Stratos testified the barricading of Dalhousie Court was shown on the news on television. This was why he brought his friends and his brother’s friends to the house to try to reason with him. After restraining George, Stratos contacted the police to advise they could come into the house to arrest George. It is of interest that the police prevented some of these individuals who were inside the house from recording the arrest of George Gavriiloglou by the police.

[61] In my view the manner in which the police entered the residence with four or five officers, maybe more, and immediately upon entering those officers jumped on top of George Gavriiloglou that these actions demonstrated the same over-reaction and disproportionate use of force observed the previous evening. When PC Hadad and PC Sigmann were asked about the police being notified about George Gavriiloglou being restrained in the house they both testified they were notified by dispatch as to a “disturbance” at 1906 Dalhousie. I do not accept their evidence on this issue. In fact, PC Hadad changed his evidence and indicated the information he received was George Gavriiloglou was being restrained inside the house. PC Sigmann testified he was aware before entering the house that George Gavriiloglou was being restrained by his brother. In my view given the number of police officers attending 1906 Dalhousie on January 8, 2018 this was a repeat of the over-reaction and disproportionate use of police resources displayed the previous night, perhaps on a slightly smaller scale given the TAC unit was not involved.

[62] Further, the evidence disclosed there was no assault on PC Sigmann, which is an essential element of the offence as particularized in the information. Mr. Gavriiloglou had his hands under his body and the police had some initial difficulty in getting his hands out from under him, which could perhaps amount to resistance on Mr. Gavriiloglou’s part. However, he was not advised why he was being arrested, there were four or five officers on top of him, which also leads to a reasonable inference that this added weight was what caused the initial difficulty in getting his hands out from under his body for the police to be able to handcuff him behind his back. PC Hadad conceded the possibility that four or five officers on top of an individual might create difficulty for that individual to breathe properly.

[63] In my view it is also significant that the whole incident inside the house, according to PC Sigmann, only took 45 seconds to a minute before Mr. Gavriiloglou was being lifted horizontally and carried to the cruiser handcuffed behind his back, with leg shackles and a “spit” mask applied as well. PC Hadad described the arrest and handcuffing as being very quick before Mr. Gavriiloglou was carried to his cruiser. In my view there was no assault of any police officer on the evidence I heard. I find based on the evidence of the officers Mr. Gavriiloglou was fully restrained and did not have the ability to effect his purpose as he was not in any position to either spit or hit or kick any police officer. PC Sigmann agreed with Mr. Gavriiloglou that he was not spit upon, struck or kicked by Mr. Gavriiloglou.

[64] Further, I found PC Sigmann’s description of Mr. Gavriiloglou’s behaviour as being one of the top three most violent arrests in the 500 arrests of his 12 years of policing to be incredible, disingenuous and completely unbelievable. First, in my view the question which produced this answer was improper as Mr. Gavriiloglou, who was unrepresented and was in no position to challenge the veracity of PC Sigmann’s evidence, as he was not provided disclosure of these other arrests. Second, PC Sigmann’s description of the level of violence exhibited by Mr. Gavriiloglou was completely inconsistent with the evidence of PC Hadad. Third, PC Sigmann’s evidence was internally inconsistent as he described the arrest taking only 45 seconds to a minute from the time they arrived until Mr. Gavriiloglou was being carried horizontally to the police cruiser. It is my view PC Sigmann deliberately embellished his description of Mr. Gavriiloglou’s conduct because of a concern that the police conduct had come close to crossing the line in terms of the police using excessive force. Having regard to the minor charges Mr. Gavriiloglou was being arrested for and the knowledge he suffered from undiagnosed mental health issues the police did not need four or five officers to jump on top of Mr. Gavriiloglou, particularly when he was completely restrained when the police entered 1906 Dalhousie, which they knew. Finally, it is my view one of the police officers who attended should have first spoken with Mr. Gavriiloglou and advised him of what he was being arrested for and then try to determine whether Mr. Gavriiloglou would be co-operative with the police. As the evidence disclosed this was not done as Mr. Gavriiloglou was not advised of the reasons for the arrest or what charges he was being arrested for.

[65] A further issue not raised by Mr. Gavriiloglou was the breach of his s. 10(a) Charter rights respecting his not being advised what he was under arrest for. Further, PC Hadad did not testify as to what he actually said to Mr. Gavriiloglou in terms of the right to counsel and whether he inquired if Mr. Gavriiloglou understood his right to counsel or if he wanted to speak to a lawyer. There was certainly a breach of Mr. Gavriiloglou’s s. 10(a) Charter rights but it is not necessary to consider s. 24(2) given the findings of fact I have made, namely, there was no assault of PC Sigmann and any difficulties in handcuffing Mr. Gavriiloglou were caused by the police conduct. Further, the whole incident was over in 45 seconds to a minute, which included the time it took to handcuff, shackle, attach a “spit” mask, carry Mr. Gavriiloglou horizontally and then throw him into the rear of a police cruiser. In my view the Crown has failed to adduce evidence of two of the essential elements of this charge and therefore has not proven the charge of assaulting PC Sigmann with intent to resist arrest beyond a reasonable doubt. This charge is also dismissed.

The Mischief under $5000 Charge

[66] The information alleges George Gavriiloglou wilfully damaged doors and a mirror, the property of Aaquib Azeem, the value of which was less than $5000.00. I did not hear any evidence as to who Aaquib Azeem was, although it is my assumption he is the owner of the house and landlord.

[67] The only evidence respecting wilful damage allegedly caused by Mr. Gavriiloglou at the residence at 1906 Dalhousie Court came from Exhibits 3 and 4. Exhibit 4 shows some writing with shaving cream on the mirror in the bathroom. In my view the mirror was not damaged in any way given the shaving cream was simply wiped off, according to the evidence of Stratos Gavriiloglou. The writing shown on the door leading to Mr. Minawi’s room, Exhibit 3, was quite minor and was easily painted over by Stratos Gavriiloglou, based of his evidence. George Gavriiloglou argued there was no evidence called by the Crown to show he was the person who wrote on Mr. Minawi’s door; however, in my view there is a reasonable inference it was written by George Gavriiloglou given what was written. The door itself was not damaged. It could still be closed and locked and was not broken in any way. There was some evidence from Riley Banks that some of the doors in the house were apparently damaged but no description of that damage was ever brought out by the Crown in Mr. Banks’ evidence. No evidence was led from the other two witnesses who lived in the house (Omar Minawi and Stratos Gavriiloglou) as to any doors being damaged such that they could not be used for the purpose they were there for. No photographs were shown to Mr. Banks or the other witnesses respecting any other alleged damage inside the house. The only two photographs entered by the Crown were shown to Mr. Stratos Gavriiloglou were Exhibit 3 and 4. Exhibit 3 is a photograph of the door to Mr. Minawi’s room, which shows small writing in marker. Exhibit 4 is a photograph of the bathroom mirror, which has some writing in shaving cream.

[68] The Crown provided me with R. v. Jeffers, 2012 ONCA 1, [2012] O.J. No. 1 (C.A.) where the mischief in question dealt with the accused affixing posters to telephone poles. The trial judge found the posters “damaged” the poles and convicted the accused of mischief. The Court of Appeal found affixing posters to poles did not constitute damage and therefore the trial judge erred in law and the accused was acquitted of the charge of mischief. The Court of Appeal held: “To criminalize mischief, the damage must be more than negligible, more than a minor inconvenience. To prove damage the Crown must show that the usefulness or value of the property has been impaired, at least temporarily. (at para. 19). Laskin J.A. cited R. v. Quickfall (1993), 1993 CanLII 3509 (QC CA), 78 C.C.C.(3d) 563 (Que. C.A. at p. 566 as support for this proposition.

[69] In my view, on the totality of the evidence there was no evidence that the mirror’s usefulness or value was impaired in any way by the shaving cream as it was easily wiped off. Further the minimal amount of writing on Mr. Minawi’s door to his room as shown in Exhibit 4 did not interfere or impair the operation of the door in any way. It was still functional and worked as a door. The removal of the writing was easily accomplished by Stratos Gavriiloglou by painting the door. It still closed and was able to be locked to prevent entry. There was no evidence provided by the Crown amounting to damage to any other doors in the residence.

[70] There was some evidence that when Riley Banks and Omar Minawi returned from the Christmas break the previously clean house was messy. This was likely caused by Mr. Gavriiloglou and any friends he had over at the house while his roommates were away. However this was not conduct that amounted to mischief that needed to be criminalized. Consequently, in my view the Crown has failed to prove beyond a reasonable doubt that Mr. Gavriiloglou wilfully damaged the mirror and doors at 1906 Dalhousie Court and this charge is therefore dismissed.

The Wilful Damage Charge to DRPS Police Cruiser Rear Passenger Door

[71] Mr. Gavriiloglou was also charged with wilfully damaging the Durham Regional Police Cruiser he was put in by kicking at the rear passenger door. The only evidence I have respecting whether Mr. Gavriiloglou kicked the rear passenger door was provided by PCs Hadad and Sigmann, which is uncontested. Both officers indicated that the door frame was slightly bent. PC Sigmann testified he was told by one of the DRPS fleet facilities officers that he was able to fix the rear passenger door himself. This officer told PC Sigmann the cruiser did not have to go out for service to fix the door. PC Sigmann did not know when the rear passenger door was repaired and consequently, did not know whether or not this cruiser would have been used for service the next day.

[72] The law referred to above is equally applicable to this allegation. As Justice Laskin held in Jeffers, supra, “To criminalize mischief, the damage must be more than negligible, more than a minor inconvenience. To prove damage the Crown must show that the usefulness or value of the property has been impaired, at least temporarily” (at para. 19). Exhibit 5, Photos 5 to 8 and 15 show the upper frame of the rear passenger door, which appears to be “slightly dislodged” as described by both PCs Hadad and Sigmann. There is a slight gap between the upper part of the door frame where is closes and meets the back part of the SUV. The window itself was not damaged according to the officers and the interior of the rear passenger door does not display any damage in Exhibit 5, Photos 11, 12 and 19.

[73] The rear driver’s side door is also shown in Exhibit 5, Photos 17 and 18. Interestingly, these two photos show a similar gap between the upper part of the door frame where is closes against the back part of the SUV. The officers only described Mr. Gavriiloglou kicking the rear passenger side door. There was no evidence he also kicked the rear driver’s side door. It would certainly have been helpful if the Crown had called as a witness the fleet facilities officer who was able to fix the door frame without having to send the SUV out for service. There was no evidence called by the Crown that the SUV was not able to be utilized by the police – even temporarily.

[74] In my view it would be unsafe to find the Crown has met its onus of prove beyond a reasonable doubt on the evidence respecting this charge. There is no doubt Mr. Gavriiloglou kicked the rear passenger door, however, I am not sure whether “the usefulness or value of the property had been impaired, at least temporarily.” Therefore, on the totality of the evidence called by the Crown this charge must also be dismissed.

Released: March 7, 2019

Signed: Justice Peter C. West