CITATION: R. v. Holmes, 2019 ONCJ 92

DATE: 2019·02·15

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DOUGLAS JASON HOLMES

Before Justice Susan M. Chapman

Heard on January 15 and 16, 2019

Judgment released on February 15, 2019

Jason A. Nicol............................................................................................. counsel for the Crown

Gary R. Clewley....................................................................................... counsel for the accused

CHAPMAN, J.:

Introduction

[1] Douglas Jason Holmes is a Toronto Police Service (TPS) officer who stands charged with assault causing bodily harm contrary to s. 267(b) of the Criminal Code. Officer Holmes saw a cyclist run a red light and stopped and eventually arrested him for failing to identify himself contrary to s. 218 of the Highway Traffic Act (HTA). The cyclist was taken to the ground by the officer during the course of his arrest and as a result broke his shoulder.

[2] The Crown concedes the lawfulness of the arrest but takes serious issue with the force used to execute it. There is little dispute as to the applicable principles of law that govern. Therefore, the primary issue for me to decide is whether or not Officer Holmes used excessive force when effecting the arrest of the cyclist such that the Crown has proven his guilt beyond a reasonable doubt. This requires a detailed review of the evidence.

Factual Circumstances

[3] The Crown called five (5) witnesses at trial – three (3) civilians and two (2) police officers. The Crown also introduced some photographs, maps and videos which assist in relation to the location and timing of events. The videos reveal that the entire interaction between Officer Holmes and the cyclist – from the time the cyclist was stopped to the time he ended up on the ground – was anywhere between 64 and 66 seconds.

The Initial Stop

[4] Officers Antoine and Hou have 18 and 23 year experience as Toronto police officers respectively. They testified at trial that they, Officer Holmes and a number of other police officers from 52 Division, were down at the Queens Quay on October 10, 2017 for the purpose of monitoring a union protest scheduled to take place at the Westin Harbour Castle hotel. It was around 5:00 p.m. and the protest had been delayed. While they were waiting, Officer Holmes told Officers Antoine and Hou that he had observed some bikes going through the red light at the T-intersection at the bottom of Yonge Street and had decided that he would do some Highway Traffic Act (HTA) enforcement. Shortly thereafter, Officer Holmes stopped a cyclist approximately 10 to 15 feet away from where Officers Antoine and Hou were standing.

The Arrest, Handcuffing and “Take Down”

[5] Mr. Oliver Santiago was riding his bike west bound on the Martin Goodman Trail when he was stopped by Officer Holmes. He has no criminal record and had not been arrested by a police officer prior to this day. The officer told him that he had run a red light and Mr. Santiago apologized. Officer Holmes had a conversation with Mr. Santiago and demanded on more than one occasion that Mr. Santiago produce identification. Mr. Santiago did not immediately comply with these requests for identification and instead engaged in “trial by roadside”. What was said during this conversation is somewhat contentious and will be resolved below. However, it is essentially agreed that the officer made a number of requests for identification and that at one point Mr. Santiago asked the officer what would happen if he did not produce identification and Officer Holmes told him that he would be arrested.

[6] Very shortly thereafter, Officer Holmes did arrest Mr. Santiago and started to handcuff his right hand as the latter stood still straddling his bike on the sidewalk. After having secured Mr. Santiago’s right hand, Officer Holmes walked behind Mr. Santiago to secure his left hand in the handcuffs. While standing behind him, Officer Holmes either pushed or threw Mr. Santiago to the ground. The reason he did so is at the heart of the matter and will be considered in detail below. Mr. Santiago landed on the pavement on his left side, with his helmet hitting the interlocking brick. He broke his shoulder and suffered some other injuries during the incident. When he was on the ground, Officer Holmes finished handcuffing him.

[7] Mr. Santiago was not sure exactly how he ended up on the ground as it all happened very quickly and Officer Holmes had been standing behind him. It seemed to him like Officer Holmes had grabbed his back and slammed him to the ground. His upper left chest hit the ground as did the left side of his head. The helmet Mr. Santiago was wearing at the time was filed as an exhibit at trial and the scratch marks done to it during the incident are apparent. Mr. Santiago could not say how much force the officer used to take him down but it was enough to break his shoulder.

[8] Officers Antoine and Hou were standing approximately 10 to 15 feet away from the encounter. Officer Hou did not think that there was any hesitation in Mr. Santiago stopping but Officer Antoine thought that there was. Both officers could hear Officer Holmes talking loudly to Mr. Santiago but they could not hear Mr. Santiago’s responses due to the noise in the area. They both heard Officer Holmes explain to Mr. Santiago why he was being stopped and arrested because P.C. Holmes has a loud voice. They both heard him make a demand for identification on at least two occasions[^1]. The officers also heard P.C. Holmes say to Mr. Santiago “don’t resist” at least once[^2]. As to the mechanics of the fall to the ground, Officer Hou testified that Mr. Santiago was “taken to the ground” and Officer Antoine testified that Officer Holmes was “grabbing him and they fell to the ground.” Officer Antoine testified that Mr. Santiago appeared confused but just stood there straddling his bike with P.C. Holmes almost directly in front of him right before the take down.

[9] As to Mr. Santiago’s demeanor at the time that he was dealing with him, Officer Antoine testified that he was “pretty good”, not overly upset or angry but concerned about his shoulder, and saying something about “I can’t believe this is happening”. Officer Antoine testified that he saw no issues with how the cyclist was acting. In cross-examination Officer Antoine agreed with the suggestion that Mr. Santiago’s attitude appeared to be one of “no big deal” when in fact that are many collisions in the area involving cars bikes and pedestrians.

[10] Two other men who were working in the area, Mr. Wolf and Mr. Soer, testified that they too saw the incident. Initially, they were pleased that the police were stopping a cyclist in that area for a traffic-related offence. However, their impression of the encounter quickly changed. Very soon after the interaction started, they saw Mr. Santiago taken to the ground and heard the crack of his helmet hitting the pavement from approximately 100 feet away. Mr. Soer described how he saw the officer “throw the cyclist face first to the ground” and for no good reason “knock him down when he wasn’t doing anything.” Mr. Wolf testified that he saw the officer “push”, “chuck” or “grab” the cyclist and that was how he ended up on the ground.

[11] Though both Messrs. Wolf and Soer took out their cell phones to record the encounter, given how quickly events unfolded, they were too late to capture any image of Mr. Santiago being taken to the ground. They can be heard saying things on the video such as “I wish I recorded that earlier man” and “that guy was just standing there on the bike and he hauled him off almost sideways and he cracked his head.” Both of these witnesses thought (wrongly) that Mr. Santiago had his hands already handcuffed behind his back before he was pushed to the ground because they did not see his hands move to the front of his person at any time during the encounter including when he fell face first to the ground. They thought the incident represented an act of police brutality.

Immediately Following the Arrest

[12] As Mr. Santiago lay on the ground, Officer Holmes finished handcuffing his hands behind his back and then searched him, removed his wallet from his right back pocket, and disengaged so that he could write up the ticket. Officer Antoine and Hou dealt with Mr. Santiago. It was clear to both Officers Hou and Antoine that Mr. Santiago was in pain. When asked, he verbally identified himself to P.C. Antoine as “Oliver”. P.C. Antoine un-handcuffed him and observed some minor abrasions to his left shoulder and helmet. They suggested to Mr. Santiago that he should take an ambulance to the hospital since he was clearly in pain. He chose to take a cab instead to St. Michael’s hospital where his injuries were diagnosed and treated.

[13] At the hospital, it was determined that he had broken his left clavicle and his right large toe. As well, pictures were filed of his other injuries including bruises and scrapes to his left knee and left shoulder and a circular abrasion on his right wrist where the handcuff had been secured. It took three months for his shoulder to heal and two months for his big toe to mend. Mr. Santiago ended up pleading guilty to the Highway Traffic Act offence and was fined $325.00.

Officer Holmes’ Testimony

[14] P.C. Holmes has been an officer with the Toronto Police Service for approximately ten years. He has spent his career in 52 Division doing primary response, largely traffic enforcement. He testified that the area where he stopped Mr. Santiago was one of some concern. Approximately a month prior to this incident, there was a cyclist struck by the car in the same driveway where he stopped Mr. Santiago. In fact, there was a campaign in his division to ensure traffic safety in that area and, when the protest was delayed, he decided that he would do just that. He observed a female cyclist stop at the intersection and then he saw Mr. Santiago drive around her and right through the intersection. This raised safety concerns for him.

[15] Officer Holmes was standing approximately 5 feet from the bike path when he put out his hand and directed Mr. Santiago to stop. Mr. Santiago did not pull over immediately and looked at him in a way that made him think that he was “about to do something” or “thinking about not stopping”. P.C. Holmes clarified in cross-examination that Mr. Santiago was not attempting to flee. Officer Holmes stepped onto the bike path and Mr. Santiago veered off the path and stopped beside him.

[16] Once Mr. Santiago stopped, Officer Holmes told him that when a cop directs you to stop you must stop. Mr. Santiago asked him why he was being stopped and he was told it was because he ran a red light and that he should produce identification. Mr. Santiago immediately apologized for going through the red light but Officer Holmes testified that he did not think the apology was sincere.

[17] According to Officer Holmes, when he was asked for identification Mr. Santiago became argumentative and acted like the stop was ridiculous. He tried to explain to Mr. Santiago the importance of stopping at that intersection but it was his opinion that Mr. Santiago was not receptive to what he had to say. Mr. Santiago began to debate the degree of danger presented at that particular T-intersection. P.C. Holmes explained to Mr. Santiago that he was obliged under the Highway Traffic Act to identify himself to which Mr. Santiago said “What if I don’t?” Officer Holmes then said “Simple. I will have to arrest you so give me your ID.” After saying this, he paused for a moment and waited for a response and when one was not forthcoming he said “you are under arrest” and reached into the front flap of his uniform and pulled out his silver handcuffs.

[18] With the handcuffs in hand, he grabbed Mr. Santiago’s right hand with his left hand and put one handcuff on his wrist while walking around him holding his arm until he was standing right behind him. When he was behind him, he realized that Mr. Santiago, who was still straddling his bike, had a backpack on him and that this would make it more difficult to handcuff him. Officer Holmes nevertheless preceded to attempt to complete the handcuffing.

[19] Officer Holmes testified that at this point that – when he was standing behind him and trying to secure the second handcuff – Mr. Santiago started struggling and pulling his wrists apart. P.C. Holmes told him not to resist but he continued to pull his wrists apart. At that point, P.C. Holmes positioned his left hand on Mr. Santiago’s left bicep while his other hand continued to hold Mr. Santiago’s handcuffed right hand. According to Officer Holmes, he told Mr. Santiago three times to stop resisting. However, Mr. Santiago pulled his left arm away and Officer Holmes lost control and so he pushed Mr. Santiago down. He testified that from the time he went to apply the handcuffs to the time he pushed Mr. Santiago was very quick – seconds.

[20] It was Officer Holmes impression that Mr. Santiago was “trying to be a little bit evasive, deceptive” and was determined to get out of a getting a ticket. When he asked him this last time for his identification, Mr. Santiago looked at him directly with a blank stare. He did not motion at all and so there was no indication of pending compliance. Officer Holmes denied that Mr. Santiago’s right hand was moving in unison with his because he was reaching for his own wallet. As far as Officer Holmes was concerned, there was no indication that Mr. Santiago had changed his mind and was going to produce the identification that was later found to be in his right back pocket.

[21] When asked in-chief why he did not just let him go at that point, P.C. Holmes testified because it was a “serious HTA traffic offence – he is failing to comply with legal obligations”. If he did not produce his identification, then P.C. Holmes could not write him a ticket or give him a warning and he would get away with impunity.

[22] In his evidence, Officer Holmes testified that he explained the situation to Mr. Santiago every step of the way. He denied flying off the handle. He did not want to arrest Mr. Santiago. He estimated Mr. Santiago’s height and weight at 5’ 9 to 5’ 11 and 190 to 200 pounds. Officer Holmes is 6 feet tall and 180 pounds. He testified that he would have accepted a verbal identification from Mr. Santiago had one been forthcoming. He then would have decided whether to ticket him or merely warn him.

[23] Officer Holmes testified that he did push Mr. Santiago during the course of that arrest. The reason Officer Holmes gave for pushing Mr. Santiago is set out in his testimony at various points including as follows:

• In-chief he testified that Mr. Santiago had been argumentative and pulled away from him when he was trying to place handcuffs on him. He did not know what Mr. Santiago was doing. The whole interaction was between 64 and 66 second and that was not long enough to assess whether or not Mr. Santiago represented a threat. He pushed Mr. Santiago “to create distance between me and him” so as to give himself the opportunity to “re-evaluate the situation.” He felt that he had no other options.

• In cross-examination, Officer Holmes testified that when Mr. Santiago pulled away from him he immediately pushed him away as he did not know what he was doing and this caused him concern. He pushed him away so that he could assess the situation as Mr. Santiago “might potentially have something … for safety purposes”. He was creating distance for his own safety and that was why he pushed him.

• When asked in cross-examination whether the grounding of Mr. Santiago was intentional on his part, he testified that he pushed him to create space. He agreed that the push was deliberate and that he stood behind Mr. Santiago with both of his hands in the area of his shoulder when he pushed him with enough force that he fell over his bike and onto the interlocking brick on the sidewalk.

• As for whether he purposely grabbed him, Mr. Holmes testified that it was “highly unlikely” that he did, as it was not his intention to injure Mr. Santiago. In cross-examination, the told the Crown that he was “reading too much” into a push and “my intent was to push him away from me”. He was concerned for his safety because he did not know Mr. Santiago and “why would anybody pull away from me?”

[24] In cross-examination P.C. Holmes testified that he is an experienced police officer and gets re-trained in use of force techniques every year. Grounding, or take down, is a technique used to neutralize threats. It is designed to gain compliance with non-compliant people. Most arrests occur without a take down. He agreed that a takedown involves a number of risks including to the person who is being taken down, particularly on a hard surface, such as inter-locking brick as in this case. Officer Holmes testified that he was not thinking about that at the time. When it was suggested to him that he surely he did not decide to slam someone onto a hard surface without regard to what might happen to them, P.C Holmes testified: “with all due respect Mr. Nicol, I didn’t have time to think of my surroundings, how hard the floor was or any of that. He acted and I responded.” He guessed that the surface was concrete but agreed that it was in fact inter-locking brick.

[25] Officer Holmes knows that there are both controlled and uncontrolled take downs. In a controlled take down the officer has a grip of the person on the way to the ground whereas in an uncontrolled take down the officer just pushes them down on their own. He agreed that this was an uncontrolled take down, though at other points in cross-examination he seemed to retreat from that position and suggested it was just a push to create space. He agreed that he did not have his hands on Mr. Santiago as he went to the ground. Mr. Santiago went down unchecked. Mr. Santiago was wearing shorts, a t-shirt and running shoes at the time. He could not say whether or not Mr. Santiago used his hands to try and break his fall as it all happened so quickly.

[26] As for alternatives to secure compliance, such as a show of force option, involving the other two police officers standing nearby, Officer Holmes at first testified that he wished that could have relied on this option but that the other two officers were not “participating” or “engaged”. He later testified that he could not count on the assistance of these other officers as he does not know their “capabilities” and “not every officer is equal, sir”.

[27] Officer Holmes agreed that it is not uncommon for people to complain about tickets when they are being issued. It happens all of the time. He also agreed that this is what Mr. Santiago was doing that day. He agreed that throughout his interaction with him, Mr. Santiago was not yelling, threatening or swearing. He made no attempt to strike the officer or flee. He was not gesticulating, as his hands were at all times down by his sides. Officer Holmes maintained in cross-examination that there was some sign of agitation in Mr. Santiago but agreed that he was not belligerent.

[28] P.C. Holmes also agreed that, though there was an element of the unknown, Mr. Santiago did not present any immediate threat.

[29] Officer Holmes testified he took out the handcuffs and when Mr. Santiago gave him a blank stare he started to handcuff him. He agreed that he only waited for between 1 and 2 seconds for a response from Mr. Santiago. It did not occur to him that it might be difficult to arrest someone straddling their bike. He never asked him to get off of his bike. It didn’t cross his mind. Officer Holmes agreed that he did not tell Mr. Santiago where to put his hands when he was handcuffing him. He did not tell Mr. Santiago to move his hands to the back of his body because his hands were already down by his sides. He agreed that as he secured Mr. Santiago’s right hand with the handcuff Mr. Santiago did not pull away from him or offer resistance.

[30] As for the degree of force used, Officer Holmes agreed that he used both of his hands and enough force that Mr. Santiago fell to the ground face first. He agreed that Mr. Santiago hit the ground with considerable force, though he insisted that he did not hear his helmet crack off the pavement. P.C. Holmes denied the suggestion in cross-examination that he threw Mr. Santiago to the ground during the take down and insisted he pushed him instead. P.C. Holmes thought that he too ended up on the ground because he might have stumbled over Mr. Santiago’s bike, even though he was standing behind him and not also straddling his bike.

[31] P.C. Holmes agreed that after Mr. Santiago was face down on the ground he continued to handcuff him even though he presented no resistance at that time. When it was suggested to Officer Holmes in cross-examination that this arrest was in relation to a relatively minor Highway Traffic Act offence, Mr. Holmes was very reluctant to agree. He did agree that physical arrests for Provincial Offences Act offences are very rare.

[32] P.C. Holmes did not ask Mr. Santiago if he was hurt – he didn’t see the point, even though he was the arresting officer. The incident did not raise any red flags for him because “a lot of people claim to be injured during an arrest”. He then did agree that Mr. Santiago was actually injured during the arrest and that he did not think about notifying his supervisor or the SIU at that time as there was “no need to”. Instead, he continued to write the ticket while Officers Antoine and Hou dealt with Mr. Santiago.

[33] When it was put to him that he suggested Mr. Santiago not go to the hospital but to go home and “sleep it off”, Officer Holmes testified that he was suggesting different options to Mr. Santiago and that it was Mr. Santiago that made the final decision to go to the hospital in a cab. He denied the suggestion that he could care less about Mr. Santiago or his injuries and that while the other officers were dealing with his injuries he was instead concerned with the paper work. He denied that he did anything wrong or improper during the whole incident.

Position of the Parties

The Defence

[34] The defence submit that I should find Officer Holmes not guilty of assault causing bodily harm. He was just doing his job that day, consistent with his training. Mr. Santiago was bound and determined to get out of a ticket and became argumentative with the officer. I should not accept Mr. Santiago’s evidence that he had decided to comply with a request for identification (of any sort) and that he was moving his right hand back in unison with the officer for the purpose of getting his wallet out of his right back pocket. This does not make any sense as Mr. Santiago remained defiant throughout the encounter.

[35] Clearly he was resisting the handcuffing because P.C. Holmes told him at the time not to resist on three occasions during the encounter and the other officers heard him say this at least one time and possibly more. Mr. Santiago was prepared to, and did, lie about the officer stomping on his toe. In his email to the SIU, he purported to have a memory of this happening but one can’t have a memory of something that did not happen, which Mr. Santiago admitted to in cross-examination.

[36] As for the other civilian witnesses, their view of the situation is infected by lack of information and mis-information. For example, they assumed that Mr. Santiago’s hands were already handcuffed behind his back before he was pushed to the ground and in this they are clearly mistaken. It was because they did not know what was going on that they viewed this as an act of police brutality. Mr. Soer thought that two officers were involved in the take down when clearly it was only one. I should attach no weight to their evidence.

[37] A lawful arrest may be accompanied by reasonable force and that is what took place here. This was a single push in response to what Mr. Santiago did namely: run a red light, not identify himself after numerous requests to do so and a warning that he would be arrested if he did not, and showed some resistance during the handcuffing process. The Officer needed more time to learn who Mr. Santiago was and what he was capable of. It is not for the court to Monday morning quarterback the officer’s call but instead to put itself in the shoes of the officer. This was a fluid and dynamic situation. Mr. Santiago was resisting arrest and Officer Holmes did not know why. This was enough to suggest that Mr. Santiago represented a threat. Things can go badly very quickly in a situation like this. The officer acted reasonably in all of the circumstances.

The Crown

[38] The Crown argues that this is a clear case of excessive force used to effect an arrest. The Crown argues that Officer Holmes’ use of force in this case was unreasonable, unnecessary and not proportional to the circumstances. This was an arrest in relation to a very minor Provincial Offence Act infraction. This was not a gun call or a “domestic” in progress. Officer Holmes was not effecting an arrest in a dark alley in a high-crime neighborhood. This was a bicyclist in shorts in broad daylight that he was dealing with. There is no suggestion that Mr. Santiago was even suspected of possessing a weapon or fleeing a crime scene.

[39] The Crown agrees that there are some frailties in the evidence of some of its witnesses. Mr. Santiago was truthful and I should not discount this evidence because he initially thought it possible that the officer might have stomped his toe during the incident. He candidly admitted that he did not know how his toe got broken but it was reasonable for him to assume that it had something to do with the take down as it was not broken before the take down and was broken afterwards. If he was truly trying to embellish his evidence, he would have maintained in his evidence that this is what happened rather than immediately admitting that he did not know how his toe got broken. The Crown is not asking that the broken toe play any role in the cause bodily harm element of the offence in this case. However, nor does Mr. Santiago’s evidence on this point detract from his candour. Mr. Santiago was also candid about going through a red light and being argumentative with the officer.

[40] As for the evidence of Mr. Wolf and Mr. Soer, though they were mistaken in their assumption that Mr. Santiago’s hands were handcuffed behind his back, this does not detract from their impression that he had his hands behind his back at all times and did not even move them forward to break his fall. The videos that they made of the encounter record their spontaneous reaction to the scene unfolding in front of them. On the video they can be heard to say things like, that guy got “knocked to the ground for no reason” and this is a case of police brutality. This suggests that they were alarmed at the time of the encounter and not embellishing their evidence in court. They heard the crack of the helmet off the cement from approximately 100 feet away. This speaks to the degree of force used by Officer Holmes.

[41] The Crown points out that it is not unusual for people to complain about getting a traffic ticket. This is a very common interaction between the police and civilians. Mr. Santiago did not do anything threatening or aggressive. There were absolutely no verbal or physical threats of any kind. Even Officer Holmes admitted that he was not resisting him when he applied the first handcuff which suggests he was not belligerent – and indeed Officer Holmes appeared to concede that he was not belligerent at any time.

[42] Even if the force was justified, and even assuming it was reasonable to handcuff Mr. Santiago at all in these circumstances, the push to the ground was not reasonable or proportionate to the situation. This was not a simple push. It was done from behind with considerable force. The officer used sufficient speed and force to compel Mr. Santiago into the ground. In response to the defence argument emphasizing deference to the officer’s decision making in the moment, the Crown argues that I should not fall into the trap of turning the test into one that is purely subjective.

[43] Officer Holmes wanted instant compliance and when he did not get it he was annoyed and frustrated and that is why he pushed Mr. Santiago. Though he purported to know that he was only entitled to a verbal identification under the Highway Traffic Act, Officer Holmes testified that he should not have to ask just for his name. Again, there was no urgency in the situation. This all happened at lightning speed because it was driven by the officer’s agenda and not the circumstances. Officer Holmes admitted that he only waited a second or two before starting to handcuff Mr. Santiago as he stood staring at him blankly. Mr. Santiago has a low key demeanor, as testified to by the other witnesses on scene consistent with his presentation in court.

Analysis

The Legal Principles that Govern

[44] Section 218 of the Highway Traffic Act dictates that a police officer who finds any person contravening the Act, while in charge of a bicycle, may require that person to stop and provide identification of himself or herself. The section, and the case law interpreting it, make clear that the giving of one’s correct name and address is all that is required: R. v. Graham, [2000] O.J. No. 465; R. v. Walker, [2005] O.J. No 5071; R. v. Cassidy, [2007] O.J. No. 4269; R. v. Ramos, [2010] O.J. No. 3172. There was some issue in this case as to whether or not Officer Holmes was demanding of Mr. Santiago more than was required by the section, namely paper identification. In the end, whether he was or not he was, is of no moment. The Crown has quite properly conceded the lawfulness of the arrest and I will act upon that concession in analyzing this case. Therefore the primary issue I need to decide is: has the Crown proven beyond a reasonable doubt that Officer Holmes used excessive force in arresting Mr. Santiago such that it constitutes an assault causing bodily harm contrary to s. 267 (b) of the Criminal Code?

[45] There was essentially agreement between the parties as to the applicable law that governs. The police are permitted, as set out in s. 25 of the Criminal Code, to use force to affect a lawful arrest where the police officer believes on reasonable and probable grounds it is necessary, but only as much force as is necessary in the circumstances: See R. v. Nasogaluk, 2010 SCC 6, [2010] S.C. J. No. 6 at para. 35. See also R. v. Power, 2016 SKCA 29 at pages 329 to 335; R. v. DaCosta, 2015 ONSC 1586, [2015] O.J. No. 1235 at paras. 92 to 105. The police are entitled to use force to make an arrest as long as the force used is proportional, reasonable and necessary: see R. v. Nasogaluk supra and R. v. Pan (2012), 2012 ONCA 581, 292 C.C.C. (3d) 440 (Ont. C.A.) at paras. 45, 47. The degree of force necessary and reasonable to effect an arrest will vary with the circumstances and - “obviously the police will use a different approach when the suspect is known to be armed and dangerous than they will be in arresting someone for outstanding traffic tickets.”: R. v. Genest, 1989 CanLII 109 (SCC), [1989] 1 S.C.R. 59, at p. 89.

[46] The appellate courts have frequently cautioned that the police action should not be judged against a standard of perfection or the force used measured with exactitude. They police are permitted a certain amount of latitude in the conduct of their duty when acting and reacting in difficult, dangerous and demanding situations: R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 24; R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3 at paras. 74-76; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250 at para. 83 and R. v. Bottrell (1981), 1981 CanLII 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.) at p.218. There should not be over-reliance upon reflective hindsight. The objective reasonableness of the officer’s conduct must be assessed from the standpoint of the reasonable person standing in the officer’s shoes: R. v. Tran, 2007 BCCA 491 at para. 12. Further, just as it is wrong to engage in ex post facto justifications of police conduct, it is equally wrong to ignore the realities of the situations in which police officers must make these decisions: R. v. DaCosta, supra at para. 99 and R. v. MacKay, 2012 ONCA 671 at para. 25.

[47] As noted by the court in R. v. Walcott, 2008 CanLII 11374 (ON SC), [2008] O.J. No. 1050 at para. 22 to 24, and as set out and relied upon in the judgment of Justice O’Marra in R. v. Eyo, [2012] O.J. No. 2791 at paragraph 7:

In assessing the reasonableness or necessity of the force used … a court should take into account all of the circumstances, including whether:

(i) The subject was acting in a hostile manner towards the police, resisting arrest or failing to comply with an officer’s arrest procedure;

(ii) The relative sizes and weights of the officer and the suspect;

(iii) The officer was at risk of harm;

(iv) The police knew the suspect had a history which might represent a threat to them; or

(v) The police understood that weapons might be on the premises.

[48] This case is largely fact-driven and I am mindful of the burden on the Crown to prove the accused’s guilt beyond a reasonable doubt.

Fact Finding in this Case

The Testimony of the Accused

[49] Officer Holmes testified at trial in his own defence. If I accept his evidence, I must acquit. If I do not accept his evidence but it raises a doubt, then I must acquit. Finally, even if I don’t accept his evidence and/or it does not raise a reasonable doubt, I must determine whether the Crown has proven its case against Officer Holmes beyond a reasonable doubt. If it has not, I must acquit: R. v. W.(D.)., 1991 CanLII 93 (SCC), [1991] 1S.C.R. 742.

[50] I have some significant concerns about Officer Holmes’ evidence. I found his evidence to be evasive and cavalier. These are some of the reasons why:

1. During his testimony, P.C. Holmes made disparaging remarks about his fellow officers and suggested that he could not rely on them to provide him with assistance, even if they were standing 10 to 15 feet away at the time, because he does not know their “capabilities” and “not all officers are equal”. The assertion that two more experienced police officers standing close by were not capable of providing him with assistance in the arrest of a bicyclist is not credible;

2. Officer Holmes was evasive in cross-examination on the issue of his intention when he pushed Mr. Santiago that day – in particular whether it was an intentional uncontrolled take down or merely a push to create space between them so that he could evaluate the situation;

3. Officer Holmes testified that originally he was not planning on giving Mr. Santiago a ticket but changed his mind during the encounter. I do not accept this. He went there for the purpose of issuing tickets to cyclists going through the red – as he is entitled to do. But his suggestion that he was exercising some considered discretion rings false;

4. In cross-examination, Officer Holmes was reluctant to agree that the bike path Mr. Santiago was travelling on was separated from the road in the area of the stop, even though the map shows that it is. When it was suggested to him in cross-examination that cars at that T-intersection are not travelling southbound into the lake, Officer Holmes testified that “stuff like that does happen”;

5. P.C. Holmes exaggerated both the seriousness of the offence committed and the dangerousness of the situation presented by Mr. Santiago’s conduct, throughout his evidence. He only reluctantly agreed in cross-examination that the intersection at Yonge and Bloor would likely be more dangerous for a cyclist than the one he was policing. To be clear, of course there are safety concerns associated with bicycles running red lights in Toronto and P.C. Holmes had every right to issue Mr. Santiago a ticket and arrest him when he did not provide his identification. But there was nothing about the offence itself that would lend itself to heightened concern for any urgency or officer safety despite any impression Officer Holmes tried to leave with the court;

6. In cross-examination Mr. Holmes denied that he was seeking paper identification from Mr. Santiago rather than the mere verbal identification he was entitled to pursuant to s. 218 of the Highway Traffic Act. Though he agreed that he preferred paper identification he denied that he was demanding that of Mr. Santiago. Yet the tenor of his overall evidence suggests that indeed he was looking for paper identification and that was certainly how Mr. Santiago reasonably understood his demands. He agreed that he did not ask Mr. Santiago for his name and/or address. He also testified that he should not have to just ask for a name. Again, this does not impact on the validity of the arrest. It does impact on Officer Holmes’ credibility.

The Crown’s Case

[51] I will now consider the evidence adduced by the Crown. Mr. Santiago was an honest witness. He readily agreed that he was arguing the merits of his case during the course of the discussion with Officer Holmes and that he was not immediately compliant with his demands for identification. He agreed that when the officer yelled at him to take out his identification he said “what if I don’t?” He testified that it was almost immediately that Officer Holmes placed his hand on his right wrist and started moving his arm back at which point Mr. Santiago said “ok, ok I’ll take it out”.

[52] Despite his sincerity, there were some significant problems with Mr. Santiago’s evidence. He was asked during his evidence-in-chief how it was that his toe got broken during the incident and he testified that “I believe it was stomped on before I was thrown to the ground” and “he [Officer Holmes] might have used his right foot” to injure his toe before he was pushed to the ground. However, in cross-examination he readily agreed that he could not say how it was that his toe ended up broken during the incident. In his initial SIU statement he suggested it might have happened when he fell. Then, he sent an email to the investigating officer subsequent to his interview, on November 29, 2017, in which he purported to have a memory of Officer Holmes stomping on his toe and this “probably explains” how his toe got broken during the incident, though he would need to review the video of the incident to confirm. In that email he does say that everything happened so quickly that his memory is a blur. He told the SIU that this might have happened because he could not think of any other explanation for his fractured toe.

[53] Mr. Santiago was also wrong in engaging in a roadside argument with the officer concerning the merits of his offence and subsequent arrest. He continued to be wrong about these matters when discussing them subsequently with the SIU. But again, this was his honest belief at the time and one he abandoned long before trial. He pled guilty to the infraction in the summer of 2018. Again, this does not detract from his evidence on the key points. He does not know exactly how he landed on the ground or who helped him up afterwards but these are honest deficiencies in his evidence resulting from the fact that these things were mostly taking place behind him and not in front of him.

[54] In cross-examination, Mr. Santiago agreed that he got a ticket for going through a red light in his car on a subsequent occasion. He also agreed that he wanted to avoid getting a ticket that day, but denied that he would do everything he could to avoid one. He agreed in cross-examination that in the statement he wrote himself the day following the incident he stated:

“I know I challenged his authority by not quickly giving my identification on demand. Reason being I did not want a ticket or record. I was just shocked that he immediately handcuffed and threw me to the ground without any physical resistance from me.”

[55] Mr. Santiago thought that Officer Holmes had asked him two (2) not three (3) times for his identification, though he agreed in cross-examination that he described three such requests in his statement to the SIU and agreed with the suggestion put to him that the officers taking the statement from him were being “unfair” to him.

[56] Mr. Santiago vehemently denied the suggestion put to him in cross-examination that he pulled away from Officer Holmes when the officer was trying to handcuff him. He willingly moved his right hand back when the officer put his hand on it to move it back. He did not recall seeing the handcuffs come out before this point in time, though he did not dispute that this is what had happened. In cross-examination he agreed that he told the SIU: “I think he [Officer Holmes] was thinking I was going to grab a weapon” when he moved his right hand back towards his wallet in unison with the officer moving his right hand back to handcuff him. Officer Holmes does not suggest that he had any such concern. But this evidence does appear to corroborate Mr. Santiago’s evidence that he was reaching back for his wallet.

[57] As for the evidence of the other civilian witnesses, there are problems with the evidence of Mr. Wolf and even more so with that of Mr. Soer. In cross-examination Mr. Wolf testified that he was standing approximately 80 feet away from the cyclist at the time that he observed the incident. However, he agreed he told the SIU when he was interviewed by them three (3) days later that it was more like 30 or 40 feet away. Mr. Wolf insisted in cross-examination that when he started watching the interaction the bicyclist was straddling his bike and the officer was standing beside him and not in front of him, as some of the other witnesses had observed.

[58] Both Mr. Wolf and Mr. Soer agreed that they told the SIU at several points in their interviews that the bicyclist had both of his hands handcuffed behind his back. In this important regard, they are both mistaken. They both testified that they told the SIU that because both of the cyclist’s hands were behind his back and did not move forward even when he was thrown to the ground. Wolf testified that it did not look to him like Santiago was resisting the officer – he didn’t make a move.

[59] Sydney Soer testified that he was standing with Mr. Wolf when they saw a guy on a bike with two police officers dealing with him. Of course, he is mistaken on this fundamental fact. I attach no real weight to the evidence of either of these witnesses. I do accept that they saw Mr. Santiago standing with his hands behind his back during his conversation with Officer Holmes and that they heard his helmet crack off the pavement from 100 feet away.

Specific Findings of Fact

[60] The Crown’s case has some frailties as set out above. But at the end of the day, what happened on October 10, 2017 is not all that contentious. Though I have significant concerns about Officer Holmes’ credibility, I will nonetheless decide this case largely on his account of events, with some important exceptions specified below. After all, it is the reason for the uncontrolled take down of Mr. Santiago, rather than the fact of its occurrence, that is at the heart of this case.

[61] I find that when Officer Holmes signaled to Mr. Santiago to stop, it seemed to him that Mr. Santiago was hesitant in doing so, though not to the point of attempting to flee. I find that he explained to Mr. Santiago why he was being stopped and engaged in some roadside education with Mr. Santiago. I find that he asked for his identification as many as three times. I accept that he warned him that he would be arrested if he did not produce his identification and that it was only after the warning that he arrested Mr. Santiago.

[62] I find that Mr. Santiago was not in fact resisting the arrest. However, more importantly, I accept that Officer Holmes might have mistakenly believed that Mr. Santiago was offering some resistance. I accept that Mr. Santiago’s hands were moving around behind his back and making it a little difficult for Officer Holmes to complete the handcuffing. Officer Holmes did tell Mr. Santiago to stop resisting on more than one occasion. However, any perceived or actual resistance to the handcuffing was at most mild in nature and not at all aggressive. It was not the kind of resistance that would cause any realistic concerns for the safety of the officer or even the inevitability of the arrest.

[63] As for his subjective belief, the highest Officer Holmes evidence can be put is that though Mr. Santiago did not pose an immediate threat, he pushed him away so as to create space between them so that he could re-evaluate the situation to determine if he might pose a threat. The defence suggest that the mere fact of the resistance was itself cause for concern.

[64] It is true that he did not know Mr. Santiago and that Mr. Santiago was being difficult. However, at no time did Mr. Santiago yell or swear at him, threaten him verbally or physically. He took issue with being stopped for going through a red light and was conducting what might be called a trial by roadside. This is not an uncommon experience for the police, including Officer Holmes, and though no doubt it can be a source of real irritation it did not raise any realistic safety concerns in this case. Considerable force was used in pushing Mr. Santiago and it was not done for the mere purpose of creating some distance between the two men, as testified to by Officer Holmes.

[65] Though as I have indicated I am deciding this case largely on the account of events testified to by Officer Holmes, including his evidence that this was a push and not a grab or throw of Mr. Santiago, I specifically reject his evidence that he pushed Mr. Santiago out of any safety concern. The testimony is seriously at odds with the facts that presented themselves to Officer Holmes that day and I reject it outright. Again, this was a relatively minor traffic offence by guy on a bike – not the type of offence that would ordinarily cause an officer great concern for their safety. There were many other officers around the area, including two 10 to 15 feet away. P.C. Holmes was standing behind Mr. Santiago and had already secured one of his hands in the handcuffs before pushing him to the ground. Mr. Santiago was straddling his bike. Officer Holmes could have just stepped back if he needed further time to evaluate the situation.

[66] Officer Holmes had only interacted with Mr. Santiago for at most 66 seconds by the time he forcibly pushed him face down to the pavement. Officer Holmes was annoyed and frustrated with Mr. Santiago. That is why he pushed him to the ground and not because it was necessary to effect his arrest. There was nothing in Mr. Santiago’s conduct that constituted a threat to the officer. It was suggested to some of the witnesses that Mr. Santiago’s attitude was one of confusion and a “this is ridiculous” sentiment. There was no suggestion that Mr. Santiago was aggressive much less violent. The highest the evidence could be stated is that Mr. Santiago was argumentative on that day and I find that he was. However, I observed Mr. Santiago when he testified and I agree with the Crown’s characterization of him as a mild mannered individual. That is consistent with what the other witnesses – police and civilian alike – testified to as his presentation on that day. With Officer Holmes, Mr. Santiago was argumentative but not belligerent or aggressive.

[67] I am satisfied beyond a reasonable doubt, on the totality of the evidence, that there was neither a subjective nor an objective basis for concern for safety in the circumstances Officer Holmes found himself in. There was no urgency in making the arrest. I find that P.C. Holmes was frustrated with Mr. Santiago for not immediately complying with his demands and that it was for this reason that he pushed him with considerable force from behind as he stood straddling his bike.

[68] There were other options available to Officer Holmes if he had in fact been concerned about a need to re-evaluate the situation and determine whether or not Mr. Santiago constituted a threat. He was standing behind him and Mr. Santiago was straddling his bike. It is difficult to imagine how Mr. Santiago could physically retaliate against the officer in these circumstances and there was absolutely no evidence that he made any effort do so. Officer Holmes agreed that Mr. Santiago did not represent an immediate threat. Officer Holmes could have simply stepped back from Mr. Santiago if he needed more time to evaluate the situation. He could have called on his fellow officers to assist him if he was genuinely concerned. His purported reason for not calling on his fellow officers is not at all credible.

[69] I find beyond a reasonable doubt that the force Officer Holmes used more force to effect the arrest of Mr. Santiago than was reasonable, necessary and/or proportionate to the circumstances. I do not do so on the basis of hindsight or second guessing. Rather, I have no doubt that when Officer Holmes pushed Mr. Santiago, he did so out of frustration and annoyance and not out of any genuine concern that pushing him was necessary to effect an arrest and/or to secure his own safety or the safety of others.

Conclusion

[70] Though he was entitled to arrest Mr. Santiago, and even handcuff him[^3] there was absolutely no need to push Mr. Santiago face down to the ground in these circumstances and it is on that basis that I find that Officer Holmes used excessive force and is guilty of the offence of assault causing bodily harm.

DATED: February 15, 2019 _______________________________

Justice Susan Chapman

[^1]: Officer Hou testified that he heard Officer Holmes ask for identification two (2) times as did Mr. Santiago, although the later witness told the SIU it was three times. Officer Antoine testified that he heard “multiple requests” for identification and Officer Holmes testified he made four (4) such requests.

[^2]: Officer Hou testified that he only heard Officer Holmes say “don’t resist” one time and that was a few seconds before he was on the ground. Officer Antoine testified that he heard Officer Holmes say something like don’t resist three times during the encounter.

[^3]: Whether or not Officer Holmes’ use of handcuffs was excessive in this case played no role in the Crown’s theory of liability. I am therefore operating on the assumption, without actually deciding, that the use of the handcuffs was reasonable in the circumstances of this case.