Court File and Parties

Court File No.: Halton 18-415 Date: 2019-04-18 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Stefano Fava

Before: Justice Lesley M. Baldwin

Heard on: December 10, 11, 12 and 17, 2018

Reasons for Judgment released on: April 18, 2019

Counsel:

• E. Roda, for the Crown
• E. Sapiano, for the defendant Stefano Fava

Judgment

BALDWIN J.:

Charges

[1] Stefano Fava is charged with Assaulting a Peace Officer lawfully engaged in the execution of his duty contrary to s. 270(1)(a) of the Criminal Code on January 27th, 2018 in Oakville.

[2] And further on the same date and place, with attempting to disarm a peace officer, contrary to s. 270.1(1) of the Criminal Code.

Trial Overview

[3] The trial took place over the course of 4 days – December 10th, 11th, 12th and 17th, 2018 and judgment was reserved to today (April 18, 2019) in order that I could review transcripts of the testimony given by the main witnesses and read the case law supplied by counsel during their submissions which I have done.

[4] One civilian witness and 3 HRPS Officers testified for the Crown. Mr. Fava testified on his own behalf.

Issues for Determination

[5] At the end of this trial there were three issues left for this Court's determination, namely:

1. Were the police acting in the lawful execution of their duty when they attended the accused's residence that day;
2. If so, did the accused assault Sergeant Dick, and;
3. Did the accused attempt to grab Sergeant Dick's taser?

Evidence

Testimony of Kimberley Tilley

[6] Mr. Fava and Ms. Kimberley Tilley had been in an on and off again intimate relationship starting in September or October of 2016. On the day in question, they were breaking up for good and Ms. Tilley was moving her belongings out of their shared residence.

[7] Both parties are of mature adult age. Mr. Fava was 50 years of age when he testified at this trial. Ms. Tilley testified that she has three grown children and two grandchildren. The parties have no children together.

[8] The parties have known each other for 18 years as they both worked for the same Insurance Company (that was founded by Mr. Fava's parents 50 years ago according to Mr. Fava).

[9] In the fall of 2016, Mr. Fava moved into Ms. Tilley's house in Milton when the intimate relationship began.

[10] In July of 2017 they moved into one of his (5) homes in Oakville. It was a small home on Stewart Street.

[11] Ms. Tilley moved out in August stating that they had a huge argument and fight and Mr. Fava was very physical with her. She had gone to bed with her underpants on and Mr. Fava ripped them off of her.

[12] On another occasion he had held her up against a wall with his arm around her neck. Mr. Fava had never hit her but he had grabbed her before.

[13] She moved back in October and left again in January about one week before the incident.

[14] Ms. Tilley testified that Mr. Fava would falsely accuse her of cheating on him. There was nothing she could do to make him trust her.

[15] The last straw for Ms. Tilley was when she had been spending an evening with her family babysitting her grandson. When she got home Mr. Fava told her that she had not been there, and that she had stopped on her way and that she "smelled like sex". Ms. Tilley told him that this was the last straw as he was tainting her relationship with her children and grandson and his behaviour had to stop. Despite being told this that evening, Mr. Fava continued on with his false allegations the next morning saying he smelled sex on her and calling her a cheater. Ms. Tilley packed up a few things and left to stay with a girlfriend as she had done before. Her girlfriends and her sister were aware of the situation.

[16] The evening before January 27th, 2018, Ms. Tilley texted Mr. Fava advising she was coming the next morning to get the rest of her belongings. All of her belongings were at the Stewart Street house.

[17] She arrived at the house the next morning and Mr. Fava was not there. A board had been placed up against the front door so she could not access the house with her front door key. She had no key to the back door.

[18] She texted Mr. Fava again to say that she was at the house. No response. She tried calling. No answer. Ms. Tilley's sister Kathleen was with her and waiting outside of the house.

[19] Ms. Tilley drove around the corner and saw Mr. Fava sitting in his office. He came out of his office and let Ms. Tilley into the house by unlocking the back door.

[20] Ms. Tilley and her sister began packing up her belongings. Mr. Fava sat on a couch in the living room drinking beer. According to Ms. Tilley, he had 5 beers within a couple of hours. Mr. Fava's attitude started to change – he became aggressive verbally. He was loud and was insulting her and blaming her for the end of the relationship.

[21] After several hours, Mr. Fava told her to hurry up and leave the house.

[22] A friend of Ms. Tilley, named Anita Naglie, had also attended the house to help with the packing.

[23] Ms. Tilley asked Mr. Fava for more time because her son Joshua was coming with a Van to load items into.

[24] Ms. Tilley testified that Mr. Fava got louder and more forceful and continued to call her a cheater. He would get up into her face and stand very close to her while being loud.

[25] Ms. Tilley's sister spoke up and told Mr. Fava to shut up – they were just there to get Ms. Tilley's stuff and he didn't need to be there. Mr. Fava insisted he was not leaving.

[26] Ms. Tilley testified that her girlfriend Anita had called the police. She did not see Anita make the call but Anita told her that she had called the police said that if things escalated to call them back.

[27] Ms. Tilley testified that if her friend Anita had not called the police that she would have as things did escalate.

[28] Ms. Tilley testified that just before her son arrived they were getting her bed ready to take out at the front doorway. Mr. Fava was standing in her sister's space and her sister told Mr. Fava to back off. Then her sister pushed him with both palms of her hands facing forward on his shoulders.

[29] Mr. Fava reacted by lunging at her sister and both Ms. Tilley and her son, who had just arrived, had to pull Mr. Fava off of her sister.

[30] The police were called a second time and they arrived shortly after.

Arrival of the First 3 Officers

[31] Ms. Tilley testified that at this time she was very upset having to have her son get her boyfriend off of her sister. She was crying.

[32] When the police arrived Mr. Fava was yelling at Ms. Tilley blaming her for calling the police. She told him that she had not called them.

[33] When the police came to the door, Mr. Fava told them that they could not come in. Ms. Tilley was standing inside of the glass paned front door with Mr. Fava at the time. Ms. Tilley's relatives and friend were out on the driveway loading the vehicles.

[34] Mr. Fava repeatedly told the Officers at the door that they were "overstepping" and could not come in without a warrant.

[35] The lady Officer (identified later as Officer Campbell) told Mr. Fava that she did not need a warrant, she had been called on a domestic dispute matter and the police were there to ensure Ms. Tilley's safety.

[36] Ms. Tilley went to open the front door and Mr. Fava pushed it shut on the Officer. The Officer had put her foot in the door. There was another Officer beside her and it was "a push match, and you actually heard the door when the two people (Officers) were pushing…the door cracked and the (Officers) pushed their way in."

[37] Ms. Tilley was still crying at this point. The three Officers came in – two females and a male.

[38] The Officers asked her if she was okay and she said she was and she was here to get her stuff.

[39] Mr. Fava was still yelling at the Officers saying that they were overstepping; they can't be there; they don't know the law and that they needed to call his lawyer.

[40] Mr. Fava told one of the female Officers that he wanted the Sergeant there because they didn't know the law. The Officer told him that the Sergeant had been called and was on his way.

The Arrival of Sergeant Dick

[41] The Sergeant arrived very quickly and Mr. Fava was loud and yelling at him. The Sergeant said "Shush" to Mr. Fava. Mr. Fava repeated that the Officers were overstepping. "The Sergeant said to him you need to be quiet, you asked me to be here and I'm here."

[42] Ms. Tilley was sitting on a couch in the small living room at this time. "The Officers were in front of Steve. Steve was yelling at the Sergeant…and I recall Steve, he had his finger going at the Sergeant and him (repeating) that they didn't know the law."

[43] Ms. Tilley testified that Steve was very angry and he was pointing his index finger at the Sergeant's face. Steve's shoulders were back and his chest was puffed out.

[44] Ms. Tilley testified that she did not see Mr. Fava make contact with the Sergeant but she was not sure because of all the commotion that was going on. They all started to back up and went around a corner which exited into a small hallway where she could not see. She heard a lot of yelling.

[45] She next saw Mr. Fava on the floor near the front entrance and the police were handcuffing him. She heard the Sergeant tell Mr. Fava that he was putting him under arrest for assaulting him.

[46] Ms. Tilley testified that the Sergeant's demeanor was calm throughout. She remained seated on the couch and was still crying. The Sergeant placed her in a back bedroom and she did not see Mr. Fava again.

[47] In Cross-examination Ms. Tilley said that she did not feel threatened by Mr. Fava that day.

Testimony of Stefano Fava

[48] In his testimony in-Chief, Mr. Fava said that Ms. Tilley had described their relationship "very accurately" including the reasons for their break-ups.

[49] Mr. Fava testified that he wanted everyone to leave the Stewart Street house on the day in question because "things were getting heated". He was being insulted by Ms. Tilley's sister and her Ms. Tilley's girlfriend.

[50] He was getting "exacerbated" by how long the move was taking.

[51] Mr. Fava agrees that he was drinking beer that day and would not have driven a vehicle. He denies being impaired.

[52] When the Officers showed up at the front door he was surprised and did not think that anything warranted them being there.

[53] He agrees that he pushed the door with his foot and tried to prevent them from coming in. He had not called them and he had his rights.

[54] The tall female Officer (Campbell) pushed the door open and she came in. He asked if they had a warrant – why were they there – and told them they were not required.

[55] The Officer told him "We are here for – we have a right to be here – we have a right to be here. I understood they'd need to check whatever's going on and I think she said something to the effect that, we are here to check on the safety of occupants or residents, the female I guess in this case."

[56] He told the Officer that she should take everybody and leave his building…they were overstepping…they were violating his rights and they need to speak to his lawyer. He asked for a Sergeant so that everyone would leave his house.

[57] When the Sergeant showed up he was immediately told to shut up or shh or to be quiet.

[58] He continued to tell the Sergeant that they were overstepping and he threatened to sue the police because they were not leaving his house.

[59] The other Officers were close to him when he spoke to the Sergeant and he felt "scared".

[60] When the Sergeant told him that he didn't need to speak to his lawyer or anyone he was "assertive and angry". The Sergeant looked him in the eye and said "Are we going to do this the easy way or the hard way."

[61] Mr. Fava stated his reply was "We'll do it your way."

[62] At this point Mr. Fava testified that he was "crapping my pants…scared…to death…because the look in the Sergeant's eyes was like somebody who wanted to kill him."

[63] Mr. Fava testified that he put his hands up like kind of feeling he was in peril.

[64] The Sergeant tapped his holster and told the other Officers to "grab him". The other Officers grabbed him and dragged him into the little cubicle area and he started knocking the crap out of me.

[65] Mr. Fava denied using his open hand to push on Sergeant Dick's chest before this or using his fingers to touch him before this. Mr. Fava denied pointing his finger in Sergeant Dick's face but doesn't recall because he does move his hands around when he gets animated.

[66] Mr. Fava denied attempting to reach for Sergeant Dick's taser.

[67] Mr. Fava testified that the police grabbed him and started punching him in the head.

[68] Mr. Fava testified that the police injured him as depicted in photographs Exhibit series #5. The photographer did not testify and there is no date on the photographs.

[69] The injuries complained of consists of bruising on his right side; a bruise on the left bicep; an injured eye; a concussion; PTSD.

[70] Mr. Fava testified that he slept at his mother's house in the living room on the couch with the light on for two and half months after the incident because he was "scared shitless". He still sleeps at his mother's house.

[71] In Cross-examination, Mr. Fava denied having pushed Ms. Tilley against a wall at some point or using his hand or arm on her neck. However, he "did grab Ms. Tilley and I put her in front of the mirror and I said 'Please tell the truth to both of us' when I alleged something". He agreed that what he alleged was that Ms. Tilley was a cheater.

[72] Mr. Fava agreed that he may have ripped Ms. Tilley's underwear off when they were wrestling on the bed about her cheating. "I probably grabbed her underwear in the wrestling." "I grabbed her underwear and they got torn because we were wrestling; that's what happened."

[73] Mr. Fava denied insulting Ms. Tilley or her sister on the day in question. He maintains that he was the one who was being insulted.

[74] Mr. Fava could not recall the altercation at the front door with Ms. Tilley's sister or having to be pulled off of the sister by Ms. Tilley's son Joshua.

[75] Mr. Fava testified for the first time in Cross-examination that after his release from the police station that evening, his nephew drove him to the Hospital. No corroboration of this was provided at trial and no complaint of excessive use of force by police was ever made. Excessive use of force was not put to any of the Officers that testified at this trial.

[76] In Cross-examination Mr. Fava denied being insulting to Ms. Tilley. He maintained that he was the one being insulted.

[77] Mr. Fava could not recall any incident at the front door involving Kathleen and Joshua.

[78] Later he stated that "I was reasonably calm. I was a little exacerbated it was taking as long as it was to finish with the mattress, but that's fine."

[79] Mr. Fava denied being angry at any point throughout the incident. He denied being upset and aggravated by the time the police arrived at the residence.

[80] Mr. Fava denied that he was yelling at any time. He described himself as having a "loud" voice.

[81] Mr. Fava denied that Ms. Tilley was crying at any time.

[82] Mr. Fava maintained that the Officers and the Sergeant were aggressive. They stormed in and were telling him to be quiet.

[83] Mr. Fava denied pointing a finger in Sergeant's Dicks face or touching him in any way.

[84] Mr. Fava denied that there was any struggle with the police.

Testimony of Officer P. Froom and Cadet Caitlin Lynch

[85] (Note: Officer Campbell was on an indefinite leave and unavailable to testify)

[86] Officer Froom has been employed with the HRPS since 2015. He was coaching Cadet Lynch at the time.

[87] They received a dispatch call at 2:15 pm to attend Stewart Street house in Oakville. The caller's first name was Anita. She reported that a man and woman were having a verbal argument in the house. The man was yelling at the woman and had been drinking. The man had been physical with the woman in the past. The caller was calling from outside of the house where she could hear the yelling.

[88] Officer Froom and Cadet Lynch arrived at 2:27 pm. Officer Campbell was already at the front door and the Officers could hear the male yelling from inside the front door of the house. The people outside of the house were frustrated and upset.

[89] As Officer Froom and Cadet Lynch approached the front door it was opened and then Mr. Fava tried to shut the door on the 3 Officers.

[90] Mr. Fava was yelling 'you're not welcome here' – 'you need a warrant' – 'you're overstepping! Ms. Tilley was behind him at the door upset and crying and holding herself in a hug and looked fearful.

[91] Mr. Fava kept trying to prevent the Officers from entering by pushing back against the door.

[92] After 15 to 20 seconds of struggling to get in, Officer Froom heard a cracking sound from the old wooden glass paned door and the Officers entered.

[93] Mr. Fava threatened to sue the police for the damage to the door.

[94] Ms. Tilley was still crying and Mr. Fava kept stepping in between her and the Officers who tried to talk to her to see if she needed help. Mr. Fava was told that the police were there to check on the welfare of the female in the house and they had a duty to be there.

[95] Cadet Lynch added that she could smell alcohol on Mr. Fava's breath; he was aggressive and slurring his words.

[96] Officer Froom testified that he told Mr. Fava to stop stepping in front of the female or he would be arrested for Obstruct Police. Mr. Fava continued to interrupt his efforts to speak to the female to see if she was okay. She cried throughout their presence in the house.

[97] Mr. Fava kept yelling and said the police needed to speak to his lawyer and said he wanted a Sergeant to attend.

[98] At approximately 2:33 pm Sergeant Dick arrived at the house. Officer Froom quickly briefed him. Mr. Fava was still yelling and Ms. Tilley was still crying. The Officers still didn't know if she was okay and they were concerned for her safety.

[99] Both Officer Froom and Sergeant Dick tried to speak to Mr. Fava in the living room and calm him down. The living room in this tiny house is just steps away from the front door.

[100] Mr. Fava continued to yell and swear as before. He was pointing his finger in the Sergeant's face. Mr. Fava put his hand on Sergeant's Dick's chest and poked the Sergeant's chest with 2 fingers.

[101] Sergeant Dick grabbed Mr. Fava's shirt by the upper chest and put him up against a nearby wall to cuff and arrest Mr. Fava.

[102] At this time Officer Froom looked down and saw Mr. Fava's hand on the handle of Sergeant Dick's taser located on his duty belt. Mr. Fava's hand was fully on the taser.

[103] Officer Froom yelled 'don't touch his fuckin' taser' and grabbed Mr. Fava's right hand and pulled it off creating a gap between the Sergeant and Mr. Fava's hand so Mr. Fava couldn't grab anything else.

[104] Mr. Fava struggled to get away from Officer Froom's grip on his right arm and moved back into the house and then the hallway where Mr. Fava was grounded by all 4 Officers to prevent him from running out of the front door.

[105] Officer Froom did not see any injuries on Mr. Fava after the struggle to arrest him. Cadet Lynch also didn't see any injuries except perhaps a small cut on Mr. Fava's nose. There was no complaint of any injuries.

[106] (Note: Where I have not specified the testimony of Cadet Lynch it is consistent in all material respects with that of Officer Froom.)

Testimony of Sergeant Martin Dick

[107] Sergeant Dick has been with the HRPS since 2011 after serving as a police officer in Scotland for 16 years. He has held the rank of Sergeant since 2014.

[108] At 2:30 pm he received a call to attend the Stewart Street residence. He arrived at 2:33 pm.

[109] He saw 2 women and one man outside of the residence but had no contact with them. He met Officer Froom on the front porch and asked why he had been called. Officer Froom advised that Mr. Fava was agitated and saying that the police were overstepping. The Sergeant could hear Mr. Fava yelling from inside of the house.

[110] Sergeant Dick and Officer Froom went into the living room where Ms. Tilley was seated on a couch crying and Mr. Fava was shouting and screaming at Officer Campbell.

[111] Sergeant Dick asked Mr. Fava why he wanted him to attend the house.

[112] Mr. Fava shouted that his Officers were overstepping and was flailing his arms around in an aggressive manner. Sergeant Dick could smell the alcohol on his breath and observed that Mr. Fava's eyes were glossy.

[113] Sergeant Dick tried to explain to Mr. Fava why his Officers were not overstepping but Mr. Fava continued to shout over him and was not interested in what was being said to him. All of the Officers in the house were calm.

[114] Mr. Fava started waving his right index finger in the Sergeant's face – about 3 to 4 inches from his face – within a minute of his arrival at the house.

[115] Then while swearing at the Sergeant, Mr. Fava used his right hand to push his palm in the middle of Sergeant Dick's chest.

[116] Sergeant Dick grabbed Mr. Fava by the collar and pushed him up against the back wall to get control of Mr. Fava.

[117] Sergeant Dick told Mr. Fava not to put his hands on him and to calm down.

[118] Sergeant Dick then felt a tugging on the left side of his utility belt. He saw Mr. Fava's right hand grasped over the handle of his taser. Mr. Fava was facing him and was pulling on the taser.

[119] Officer Froom grabbed Mr. Fava's hand and forced it off of the taser stating to Mr. Fava to 'take your hand off his taser'.

[120] Mr. Fava continued to struggle away from the Officers as they tried to gain control of him. Mr. Fava moved around the corner and into the hallway near the front door where he was eventually grounded. Sergeant Dick observed no injuries on Mr. Fava and heard no complaints of any injuries.

[121] In Cross-examination Sergeant Dick testified that he absolutely did not bang his gun holster and tell Mr. Fava we can do this the easy way or the hard way.

[122] He said it was 'absolute nonsense' that he told his Officers to 'grab' Mr. Fava after that.

Position of the Parties

[123] Both parties in their submissions agree that the evidence has established that the police were confronted that day by an angry, arrogant, rude and loud man when they entered the Stewart Street home as a result of two 911 calls by Anita.

[124] Both parties agree that the leading case is R. v. Godoy, [1999] 1 S.C.R. 311.

Two police officers received a call from radio dispatch concerning a 911 emergency call originating from the accused's apartment in which the line had been disconnected before the caller spoke. Along with two back‑up officers they arrived at the accused's apartment and knocked on the door. The accused partially opened the door and when asked if things were all right inside responded that there was no problem. One of the officers asked if they could enter the apartment to investigate but the accused tried to close the door. The officer prevented him from shutting the door and the four officers entered the dwelling. The officer testified that as soon as they got inside, he heard a woman crying. He found the accused's common law wife in their bedroom, curled in a fetal position and sobbing. The officer observed considerable swelling above her left eye. He testified that she stated the accused had hit her. Based on these observations, the accused was placed under arrest for assaulting his wife. He resisted the arrest and in the ensuing struggle, an officer's finger was broken. The accused was charged with assaulting a police officer with the intent of resisting arrest. The trial judge dismissed the charge, holding that the officers' entry into the accused's apartment was unauthorized and that therefore all subsequent actions of the police, including the arrest of the accused, were illegal. The Ontario Court (General Division) allowed the Crown's appeal and ordered a new trial. The Court of Appeal upheld that decision.

Held: The appeal should be dismissed.

Public policy clearly requires that the police ab initio have the authority to investigate 911 calls, but whether they may enter dwelling houses in the course of such an investigation depends on the circumstances of each case. If police conduct constitutes a prima facie interference with a person's liberty or property, as it does here, the court must consider two questions: first, does the conduct fall within the general scope of any duty imposed by statute or recognized at common law; and second, does the conduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers associated with the duty. The common law duties of the police (statutorily incorporated in s. 42(3) of the Ontario Police Services Act) include the protection of life. The police duty to protect life is engaged whenever it can be inferred that the 911 caller is or may be in some distress, including cases where the call is disconnected before the nature of the emergency can be determined. The importance of the police duty to protect life warrants and justifies a forced entry into a dwelling in order to ascertain the health and safety of a 911 caller. While residents have a recognized privacy interest within the sanctity of their home, the public interest in maintaining an effective emergency response system is obvious and significant enough to merit some intrusion on a resident's privacy interest. However, the intrusion must be limited to the protection of life and safety; the police do not have further permission to search premises or otherwise intrude on a resident's privacy or property.

The forced entry into the accused's home was justifiable considering all the circumstances of this case. The police had a duty to ascertain the reason for the 911 call and had the power, derived as a matter of common law from this duty, to enter the apartment to verify that there was in fact no emergency. The fact that the accused tried to shut the door on the police further contributes to the appropriateness of their response in forcing entry. Having found that the police were authorized to enter the accused's dwelling, the Court of Appeal did not err in finding there were reasonable and probable grounds to arrest the accused.

[125] Mr. Sapiano also referred to 3 other cases: R. v. Kyriakidis, [2016] BCPC 165; R. v. Bursey-Young, [2017] ONCJ 289; R. v. D.L.M., [2018] B.C.J. No. 2844.

[126] I agree with the Crown that all of these other 3 cases are distinguishable on their facts and I will not be referring to them in these reasons.

[127] Mr. Sapiano submits that the police were not acting in the lawful execution of their duty and did not understand their authority in the circumstances of this case.

[128] In his submissions he referred to the Officers in this case as acting like 'cartoon characters' and fabricating evidence that made Mr. Fava look like a character out of a 'Monty Python' movie.

[129] I respectfully do not agree with Mr. Sapiano in his characterization of the Officers in this case.

Findings of Fact

[130] I have of course applied the 3-pronged test established in R. v. WD in assessing the evidence in this case.

[131] I agree with and adopt the Crown's submissions as part of my reasons for judgment in this case.

[132] I find as a fact that Mr. Fava was behaving in a difficult and controlling manner with Ms. Tilley right from the moment she tried to move all of her belongings out of the home they had lived in together just a week prior to the events in question.

[133] Mr. Fava was the insulting and belligerent one. Mr. Fava was physically aggressive with Ms. Tilley's sister and was demanding that those there to help Ms. Tilley move faster and get out of his house.

[134] It was the friend Anita who called 911 not just once, but twice, because of Mr. Fava's aggressive and abusive behavior.

[135] It was one of the responding Officers who called for Sergeant Dick's attendance at Mr. Fava's insistence.

[136] This is a more aggravated situation than that before the Supreme Court of Canada in Godoy (supra) where the police entered the home against the wishes of the accused on a 911 hang-up call.

[137] At the tail end of her testimony Ms. Tilley said she did not feel under threat by Mr. Fava that day. That statement must be put into the context that others were there with her – her friend and relatives and then the police. I have no doubt that if she had been alone with Mr. Fava she would have called the police herself as she testified to at the beginning of her evidence.

[138] Mr. Fava was oblivious to her distress. He did not even notice that she was crying. Four Officers testified that she was upset and crying throughout. Mr. Fava's aggressive behavior was apparent throughout.

[139] I find as a fact that the police were acting in the lawful execution of their duty when they entered the Stewart Street house.

[140] Officer Froom and Sergeant Dick gave direct evidence of an assault on Sergeant Dick by Mr. Fava within a minute or so of his arrival at the scene, and seconds later Mr. Fava's attempt to access the Sergeant's taser. Cadet Lynch's evidence was consistent with Mr. Fava's actions that support both of these offences.

[141] It is noteworthy that 3 Officers – one in-training – one recent Officer to the HRPS – and a third a very experienced Officer – all described the events in question in a consistent and detailed way.

[142] I reject as pure fabrication and bordering on delusional Mr. Fava's testimony in this case. His evidence conflicts on every level with all others present in the house that day.

[143] If Mr. Fava was injured during the struggle to control him by 4 officers, I do not know. Mr. Fava's evidence on this point, like all others, has no support from any of the others present in the house at the critical time.

[144] I find as a fact that Mr. Fava assaulted Sergeant Dick.

[145] I find as a fact that Mr. Fava attempted to take the Sergeant's Taser during the struggle to control him.

[146] Accordingly the Crown has proven this case beyond a reasonable doubt and findings of guilt are registered.

Released: April 18, 2019

Signed: Justice Lesley M. Baldwin