Court File and Parties

Ontario Court of Justice

Date: 2020-07-03

Court File No.: Elgin-Middlesex [London] 19-1085

Between:

Her Majesty the Queen

— and —

Travis Buckle

Before: Justice C.A. Parry

Heard on: January 13, 14, and 15, 2020

Reasons for Judgment released on: July 3, 2020

Counsel:

• Jason Nicol, for the Crown
• Lucas O'Hara, for the defendant Buckle

I. INTRODUCTION

[1] Cst. Travis Buckle attempted to arrest Dale Delaney on two outstanding warrants at London's Victoria Hospital on February 10, 2019. During the course of the arrest, Mr. Delaney landed face first on the floor in the middle of the emergency ward. As a result, Cst. Buckle stands charged with assaulting Mr. Delaney and thereby causing bodily harm to him.

[2] The Crown contends that Cst. Buckle's failure to properly announce the reason for the arrest violated s. 10(a) of the Charter and s. 29(2) of the Criminal Code, which rendered the arrest unlawful, and which in turn rendered the use of force employed in the execution of the arrest an assault. In the alternative, the Crown contends that Cst. Buckle used excessive force in making the arrest and thereby committed the offence for which he is charged.

[3] Through his counsel, Cst. Buckle contends that he did not violate the constitutional and statutory requirements to announce the arrest. Cst. Buckle further contends that he only applied the force he reasonably believed was necessary to effect that arrest. Cst. Buckle thereby contends that his use of force was permitted by s. 25(1) of the Code and that he therefore bears no criminal responsibility for applying force to Mr. Delaney during Mr. Delaney's arrest.

[4] For the reasons that follow, the Crown has failed to persuade me beyond a reasonable doubt that Cst. Buckle improperly failed to announce the reason for arrest. The Crown has also failed to satisfy me beyond a reasonable doubt that Cst. Buckle used more force than was reasonably necessary to execute Mr. Delaney's arrest.

II. FACTS NOT IN DISPUTE

[5] Two London Police Service Officers, Cst. Hadgembes and Cst. Mailloux, were at London's Victoria Hospital Emergency Department on February 10, 2019. The two of them were escorting a prisoner who required medical treatment. While awaiting admission, these officers saw Dale Delaney, Mr. Buckle's alleged victim, enter the emergency department and attend at the registration desk. Mr. Delaney had blood on his face and appeared injured and under the influence of alcohol.

[6] Cst. Hadgembes overheard Mr. Delaney's name and ran a police query. The query revealed that Delaney had two outstanding warrants for his arrest. One of the warrants was issued in response to Delaney's failure to appear on a scheduled court date for a pending criminal charge. Also, at least one of the warrants did not endorse Delaney's release by police, meaning that, when they arrested him, the police would be required to bring Delaney before a justice of the peace in bail court.

[7] Police policy dictated that two officers accompany any prisoner on a medical escort, consequently, Cst. Hadgembes could not leave his prisoner with Cst. Mailloux for the purpose of arresting Delaney. Consequently, Cst. Hadgembes performed a quick query to determine if any officers on duty were able to come to the hospital and arrest Delaney. The query revealed that Cst. Buckle was on duty and in service, so Cst. Hadgembes called Cst. Buckle on his cell phone to advise Cst. Buckle of the warrant and to seek his assistance in arresting Delaney.

[8] After speaking with Cst. Hadgembes, Cst. Buckle ran his own queries and confirmed the warrants. He then proceeded to the emergency department of Victoria Hospital for the purpose of arresting Mr. Delaney.

[9] By the time of Cst. Buckle's arrival, Cst. Hadgembes, Cst. Mailloux and their prisoner had been admitted into the treatment area of the emergency department, referred to as "the bubble." Mr. Delaney had also been admitted into the bubble. Liana Leonard became his primary care nurse.

[10] Prior to Cst. Buckle's arrival at the bubble and before Delaney had completed his course of treatment, Mr. Delaney attempted to depart the bubble. At the direction of the nurse, hospital security redirected Mr. Delaney back to his care area in the bubble.

[11] Upon his arrival in the bubble, Cst. Buckle spoke with Cst. Hadgembes and Cst. Mailloux. All the officers were in full uniform and easily recognizable as police officers. Cst. Buckle informed the other two that he had confirmed the warrant. Cst. Hadgembes in turn informed Cst. Buckle that Mr. Delaney had already tried to "make a run for it." Cst. Buckle then went to speak to Dr. Jones, Mr. Delaney's treating physician, to determine how long Mr. Delaney's treatment might take. Dr. Jones informed Cst. Buckle that he just needed to give Mr. Delaney a tetanus shot before discharging Mr. Delaney.

[12] Before Dr. Jones could finish with Mr. Delaney, Mr. Delaney got up and began to traverse across the bubble. Cst. Hadgembes described Mr. Delaney as making a "b-line" across the nursing station and heading towards the exit. Cst. Buckle also noticed Mr. Delaney departing prematurely and decided to make the arrest.

[13] When he caught up to Mr. Delaney, Cst. Buckle called out Mr. Delaney's name and announced that he was under arrest. Then, Cst. Buckle attempted to take physical custody of Mr. Delaney. During the course of the arrest, Cst. Buckle concluded it necessary to ground Mr. Delaney in order to effect the arrest. Mr. Delaney then suffered bodily harm when he landed face first on the ground.

III. MATERIAL FACTS IN DISPUTE

[14] The material facts in dispute centre largely upon the manner of the arrest. In particular, the main conflicts in the evidence concern the following:

(1) Whether Cst. Buckle reasonably believed Mr. Delaney was attempting to flee the emergency ward in an effort to evade an arrest;

(2) Whether Cst. Buckle announced the reason for the arrest;

(3) Whether Cst. Buckle ever placed a handcuff on any of Mr. Delaney's hands or whether Cst. Buckle ever even removed his cuffs from his pouch for the purpose of arresting Mr. Delaney;

(4) Whether Cst. Buckle made any other utterances or commands to Mr. Delaney during the course of the arrest;

(5) The degree to which Mr. Delaney physically resisted Cst. Buckle's attempt to arrest him and Cst. Buckle's subjective perception of this resistance; and

(6) The physical acts and force employed by Cst. Buckle during the course of his grounding of Mr. Delaney.

IV. RESOLVING THE MATERIAL FACTS IN DISPUTE

A. General Observations

[15] I will begin by observing that I find Cst. Buckle's account of the evening to be both credible and reliable. Cst. Buckle withstood a very thorough and able cross-examination without revealing any significant reliability or credibility concerns. To the extent that the Crown challenges Cst. Buckle's version of the events, it does not do so by relying upon frailties revealed in cross-examination. Instead, the Crown challenges aspects of Cst. Buckle's evidence by relying upon the extent to which the evidence of the Crown's witnesses purports to conflict with Cst. Buckle. However, as I will discuss in more detail, I am not satisfied that the Crown's evidence is reliably capable of contradicting Cst. Buckle's evidence. Therefore, having considered the entirety of the evidence, I accept Cst. Buckle's evidence, albeit with some reservation on one issue, which I will discuss in due course.

[16] I will next discuss my general concerns with the reliability of the key Crown witnesses. As mentioned, due to various frailties of the evidence of the Crown's witnesses, their evidence neither causes me to reject nor even doubt Cst. Buckle's account – with, as I say, one exception. Indeed, as will be discussed further, I find that some of the evidence of the Crown's witnesses tends to lend support to Cst. Buckle's description of the arrest.

[17] There were four witnesses who purported to see some or all of the pursuit and arrest: Cst. Hadgembes, Nurse Barb Takacs, Nurse Sabrina Jim, and Nurse Liana Leonard.

[18] Unlike the nurses, Cst. Hadgembes did not purport to see the take-down or hear what may have been said during the take-down. Instead, he only purported to see the commencement of the arrest and Mr. Delaney's immediate resistance to that arrest. He then turned his attention back to his own prisoner and missed all but the beginning of the altercation which gave rise to the charge against Cst. Buckle. He did not purport to be able to see or hear any of the material facts in dispute. I therefore cannot accept the Crown's contention that Cst. Hadgembes evidence conflicts with Cst. Buckle's evidence on material issues.

[19] With regard to the nurses, I agree with defence counsel's contention that their evidence disclosed various irreconcilable inconsistencies between each other. In particular, the defence submits, and I substantially agree that their evidence differed on the following issues:

(1) The colouring scheme that denotes the various treatment areas of the bubble;

(2) Whether Constable Buckle approached Mr. Delany from the front, the side, or from behind;

(3) Whether Mr. Delany turned around when Constable Buckle called his name;

(4) Which of Mr. Delany's arms Constable Buckle grabbed onto;

(5) The first point of contact made by Constable Buckle on Mr. Delany;

(6) How Constable Buckle attempted to physically restrain Mr. Delany prior to the grounding;

(7) Whether Mr. Delany's arm was secured behind his back or not;

(8) Whether Mr. Delany turned towards Constable Buckle after his arm was restrained behind his back;

(9) The involvement of handcuffs during the arrest;

(10) The amount of time between Constable Buckle first making contact with Mr. Delany until he was on the ground;

(11) What commands Constable Buckle issued throughout his interaction with Mr. Delany;

(12) The resistance offered by Mr. Delany during the arrest, including whether he was pulling his arm that was secured away from the officer and to the front of his body;

(13) The positioning of Constable Buckle's hands on Mr. Delany during the grounding;

(14) Whether Mr. Delany was turning towards the officer right before the grounding or whether Mr. Delany was turning at all; and

(15) The positioning of Constable Buckle when Mr. Delany was on the ground.

[20] I note as well I am not satisfied that Cst. Buckle's pursuit and apprehension of Mr. Delaney was the primary focus of any of the nurses until the arrest was already in motion. This state of affairs leads me to have concerns about their ability to reliably reconstruct and make sense of the event.

[21] In addition to inconsistencies between the evidence of the nurses, each of their evidence also contained internal inconsistencies. For example, Nurse Takacs testified to seeing the apprehension and arrest from its inception, but in a prior police statement she told the police that she did not see the officer and Mr. Delany until they were already engaged. Ms. Takacs also waivered on the issue of which of Mr. Delaney's arms Cst. Buckle attempted to put behind Mr. Delaney's back. Her evidence also waivered on the issue of the precise words used and commands issued by Cst. Buckle during the arrest. For her part, Nurse Sabrina Jim's testimonial claim that she did not observe any handcuffs stood in contrast to an earlier statement she provided to the SIU ("Dale had one arm in a cuff…. Officer attempted to grab one wrist to cuff him"). When presented with this inconsistency, she ultimately admitted that Cst. Buckle may have procured cuffs and attempted to cuff Mr. Delaney. However, while admitting the cuffs likely came out, she was unsure if Cst. Buckle ever succeeded in clasping one onto Mr. Delaney. The uncertainty stemmed from her lack of any recollection of seeing a cuff removed. Similarly, Nurse Leonard initially testified that she did not see Cst. Buckle produce handcuffs after he had placed one of Mr. Delaney's hands behind his back. However, she subsequently agreed that she was telling the truth when telling the SIU investigators that she saw Cst. Buckle take out his handcuffs after getting one of Mr. Delaney's hands behind his back. As with Nurse Jim, she concluded that the cuffs were never applied because she did not see cuffs on Mr. Delaney when she stepped in to treat Mr. Delaney after the take-down.

[22] Due to the above noted inconsistencies between the evidence of the nurses and the above noted internal inconsistencies in each of their evidence, I have significant reservations about the reliability of their evidence. I must stress, however, that I do not have concerns with their honesty – that is the sincerity of their belief in the accuracy of their own individual observations. The above noted inconsistences are understandable, given the fast pace of the event, given their divided attention at the inception of the event, and given the varying times at which their focus turned primarily to the incident.

[23] I will now address the specific material facts in dispute.

B. Urgency: Cst. Buckle's Perception of Mr. Delaney's Flight

[24] I will begin with a discussion of Cst. Buckle's subjective belief about Mr. Delaney's intention to flee. Strictly speaking, the Crown does not directly contest Cst. Buckle's purported state of mind. Instead, the Crown contends that there exists no evidence of Mr. Delaney's actual intentions. The Crown contends that, in the absence of any proof of Mr. Delaney's actual intentions, Mr. Delaney's arrest was not urgent. By doing so, in my respectful view, the Crown erects a straw-man argument. The legitimacy of an arrest and the manner of an arrest must be judged upon the reasonableness of any subjective grounds held by the arresting officer: see R. v. Storrey, [1990] 1 S.C.R. 241; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, Criminal Code, s. 25. Mr. Delaney's actual intent is therefore not the issue.

[25] Turning to Cst. Buckle's state of mind when deciding to arrest Mr. Delaney, I conclude that he honestly and reasonably concluded that Mr. Delaney was fleeing in an effort to evade being arrested on a pending warrant and in response to the growing police presence in the emergency department. In coming to this conclusion, I note the following:

(1) Cst. Buckle had satisfied himself that a valid warrant for arrest existed;

(2) Cst. Buckle had satisfied himself that the warrant flowed from Mr. Delaney's failure to attend a court date for a pending criminal charge;

(3) From the existence of the bench warrant, Cst. Buckle reasonably concluded that Mr. Delaney would know about a pending criminal charge and corresponding missed court date;

(4) Cst. Buckle, Cst. Hadgembes, and Cst. Mailloux were all in full uniform and easily identifiable as police officers;

(5) Cst. Buckle had been informed by Cst. Hadgembes that Mr. Delaney had already tried to make a "run for it";

(6) Cst. Buckle knew that Mr. Delaney had not quite completed his course of treatment; and

(7) Mr. Delaney appeared to be making a straight line towards the exit through the centre of the bubble while apparently zipping up his coat. This description of Mr. Delaney's departure is corroborated by Cst. Hadgembes and supported, to some degree, by Liana Leonard (Mr. Delaney's primary care nurse).

(8) According to Cst. Buckle, even after he announced the arrest and placed his hand on Mr. Delaney, Mr. Delaney ignored Cst. Buckle and continued walking purposefully away.

[26] I further accept that Constable Buckle originally planned to delay the arrest until Mr. Delaney completed his treatment. Cst. Buckle's evidence on this point is supported by Dr. Jones. I also accept that once Cst. Buckle reasonably concluded that Mr. Delaney was fleeing the emergency room, he subjectively concluded that he had to arrest Mr. Delaney immediately to thwart Mr. Delaney's apparent attempt to escape. Mr. Delaney's apparent effort to flee and his apparent determination to ignore the declared arrest gave rise to what Cst. Buckle honestly and reasonably believed to be an unpredictable and urgent situation. I find that Cst. Buckle's decision to thwart the apparent flight at its inception was a reasonable one.

C. Cst. Buckle's Words Used when Announcing Arrest

[27] I will next address the issue of the words used by Cst. Buckle when announcing the arrest. The evidence of the witness on this issue was varied. Constable Buckle testified he caught up to Mr. Delaney and declared, "Stop, you're under arrest," then touched Mr. Delaney's shoulder, then said, "You're under arrest." According to Cst. Buckle, he did not articulate the reason for the arrest before attempting to take physical custody of Mr. Delaney, nor did he state Mr. Delaney's name. As he recalls it, he was attempting to prevent an apparent flight before complying with other arrest requisites. He further explained that Mr. Delaney kept moving and thus appeared to ignore his arrest declarations. Consistent with the evidence of Cst. Buckle, Ms. Jim did not purport to have heard Cst. Buckle call Mr. Delaney's name. She simply heard Cst. Buckle tell Mr. Delaney that he was under arrest. Similarly, Ms. Leonard testified that Cst. Buckle did not call Mr. Delaney's name, but only told Mr. Delaney that he was under arrest. However, Barb Takacs recalled Cst. Buckle's arrest announcement differently. In addition to recalling Cst. Buckle announcing the arrest, she also recalled Cst. Buckle call out Mr. Delaney's name and inform Mr. Delaney of the existence of an arrest warrant. Her assertion that Cst. Buckle explained the existence of a warrant was not explored in any detail by either counsel. As a result, her evidence does not reveal any plausible explanation for knowing the existence of a warrant, let alone recalling Cst. Buckle declaring it. Absent another plausible source for her awareness of the existence of the warrant, one of the most plausible explanations for her belief that the warrant was announced is that the warrant was indeed announced. Ms. Takac's evidence therefore causes me to doubt Cst. Buckle's assertion that he neither called Mr. Delaney's name nor announced the existence of the warrant. I am left believing that it is plausible he did both. In any event, given my conclusion that Cst. Buckle held an honest subjective belief that Mr. Delaney was deliberately fleeing the emergency department to evade a warrant, and given my conclusion that this belief was reasonable, Cst. Buckle had little time to carefully and methodically explain the arrest to Mr. Delaney. Cst. Buckle was operating with an honest and reasonable apprehension of urgency. He reasonably perceived Mr. Delaney to be the cause of that urgency. In these rushed circumstances, it is conceivable that he does not accurately recall the entirety of what he said to Mr. Delaney at the point of arrest. I therefore suspect Cst. Buckle may in fact have declared the existence of a warrant. Having said that, I cannot reject entirely Cst. Buckle's assertion that he did not do so, nor can I reject his assertion that his honest and reasonable sense of urgency motivated him to obtain physical control of Mr. Delaney before fully explaining the reason for the arrest.

D. The Employment of Handcuffs During the Arrest

[28] Moving on, I shall next address the conflicting evidence on the question of Cst. Buckle's employment of handcuffs during the arrest. As noted, Cst. Hadgembes returned his attention to his own prisoner and consequently missed this portion of the arrest. Only the three nurses and Cst. Buckle offer evidence on this issue. Cst. Buckle testified that, after being ignored by Mr. Delaney, he attempted to put Mr. Delaney's left arm behind his back, then procured his handcuffs from his duty-belt pouch and cuffed Mr. Delaney's left hand. Based upon the way Cst. Buckle put Mr. Delaney's hand behind his back, Ms. Takacs assumed that Cst. Buckle was trying to cuff Mr. Delaney. Her account of this cuffing motion tends to support Cst. Buckle's claim that he actually did place a handcuff on one of Mr. Delaney's wrists. Similarly, while Ms. Jim denied seeing a handcuff get placed on Mr. Delaney's wrist, she did ultimately concede in cross-examination that Cst. Buckle may have been holding handcuffs and may have been trying to cuff Mr. Delaney. This concession was made after defence counsel confronted her with her earlier police statement in which she told police that Mr. Delaney did have one hand in a cuff and that she saw Cst. Buckle try to grab a wrist to cuff Mr. Delaney. As with Ms. Takacs, Ms. Jim's evidence tends to support Cst. Buckle's account more than it detracts from it on this issue. As with the other nurses, Ms. Leonard also ultimately admitted in cross-examination that it was possible Cst. Buckle took out his handcuffs to cuff Mr. Delaney. This concession arose in response to defence counsel presenting her with her prior police statement in which she informed the police that she saw Cst. Buckle take his handcuffs out. Ms. Leonard also described seeing Cst. Buckle place one of Mr. Delaney's hands behind his back – a description consistent with a cuffing motion. Again, her evidence tends to support Cst. Buckle's position on this issue more than it detracts from it. It does not surprise me at all that none of the nurses observed Cst. Buckle uncuff Mr. Delaney, nor does it surprise me that they appear to have honestly deduced from this non-observation that Cst. Buckle never cuffed Mr. Delaney. Mr. Delaney's face impacted the floor and made what one described as a sickening sound. Ms. Takacs immediately checked to see if Mr. Delaney was even alive. In my observation, all three nurses appeared to find the incident emotionally disturbing. All of their evidence suggested that at the moment of the takedown they were focussed on preserving Mr. Delaney's life. Cst. Buckle compellingly described how quickly and easily he could remove a single handcuff. Given their concern about Mr. Delaney, the nurses could easily have missed Cst. Buckle uncuffing Mr. Delaney. Therefore, having considered Cst. Buckle's evidence and the evidence of the nurses, I accept that Cst. Buckle did in fact place one cuff on Mr. Delaney's left wrist prior to grounding Mr. Delaney. I also accept that he quickly removed the cuff when he realized that Mr. Delaney had become unresponsive immediately after impacting the ground.

E. Verbal Commands Made by Cst. Buckle During the Course of the Arrest

[29] I now move on to the question of whether Cst. Buckle issued any other demands or directions to Mr. Delaney during the arrest. I accept that after Cst. Buckle successfully cuffed Mr. Delaney's left hand, he began his attempt to cuff Mr. Delaney's right hand. I accept that at this juncture he told Mr. Delaney, "Give me your other hand." I further accept that, as Mr. Delaney began to turn his body and move his left hand forward, Cst. Buckle repeated his demand, saying, "Give me your other hand." According to Cst. Buckle, as the struggle to cuff Mr. Delaney continued, he told Mr. Delaney, "stop turning to face me." While Ms. Takacs did not initially remember at trial whether Cst. Buckle made such demands, she told the SIU investigators that Cst. Buckle told Mr. Delaney to put his hands behind his back. She did not remember that demand until the defence presented her with her prior statement. She ultimately agreed that Cst. Buckle may have made other demands that she could no longer recall at trial. Ms. Jim was not asked to clarify whether Cst. Buckle made any utterances to or demands of Mr. Delaney after the announcement of the arrest. So, while she described a quick reflexive struggle resulting in the takedown – one that implicitly denies Cst. Buckle making demands of Mr. Delaney – I cannot be sure whether or not she would definitively disagree with Cst. Buckle's assertion that he tried to use verbal commands to gain control of Mr. Delaney. Ms. Leonard, on the other hand, explicitly disagreed with the suggestion that Cst. Buckle made any utterances after announcing the arrest. However, in her prior SIU statement, she told police that she could not remember whether Cst. Buckle asked Mr. Delaney to turn around. Despite this uncertainty at a point proximate to the event, she expressed certainty many months later. This conflicting stance troubles me and her explanation does not assuage my concerns. I therefore find her evidence on this issue unreliable. Therefore, having considered the evidence of the three nurses about Cst. Buckle's demands to Mr. Delaney after the arrest announcement, I accept the evidence of Cst. Buckle about the verbal commands used during his attempt to secure Mr. Delaney.

F. The Degree of Mr. Delaney's Physical Resistance, Cst. Buckle's Initial Response to that Resistance, and Cst. Buckle's Subjective Perception of that Resistance

[30] Turning to the question of Mr. Delaney's physical resistance of the arrest, I have concluded that none of the three nurses could offer a reliable account of the degree of force employed by Mr. Delaney. Ms. Takacs could not say whether Mr. Delaney was tensing himself in resistance to Cst. Buckle's attempt to gain physical control. Ms. Jim recalled Mr. Delaney pulling back away from Cst. Buckle, but admitted should could not discern the degree of force being used by Mr. Delaney when doing so. She was thus unaware of the degree of force that might be required to counteract such resistance. Ms. Leonard was unable to explain why Cst. Buckle was unable to get Mr. Delaney's other hand behind Mr. Delaney's back. This inability suggests an inability to perceive the degree of force at play in the interaction between Mr. Delaney and Cst. Buckle – quite understandable since she was not physically engaged in the struggle herself. Having considered the evidence of the nurses, and their various frailties, I accept Cst. Buckle's description of Mr. Delaney's physical resistance to the arrest.

[31] In particular, I accept that Mr. Delaney attempted to bring his cuffed left hand in front of his body while also turning to face Cst. Buckle. I accept that Cst. Buckle physically attempted to keep the Mr. Delaney's left hand behind his back while also reaching unsuccessfully for Mr. Delaney's right hand. I also accept that Cst. Buckle twice told Mr. Delaney to, "Give me your other hand". I further accept that Cst. Buckle's physical efforts and verbal commands were unsuccessful. I also accept that Cst. Buckle honestly and reasonably perceived Mr. Delaney to be attempting to bring his right hand around in front of him as he simultaneously rotated his body leftwards and attempted to bring his cuffed left hand in front of him. I accept that, having made both physical and verbal attempts to secure both of Mr. Delaney's hands in cuffs behind his back, Cst. Buckle concluded that his efforts were not working. I also accept that Cst. Buckle honestly and reasonably concluded that Mr. Delaney was actively and physically resisting arrest. Lastly, I accept that Cst. Buckle honestly and reasonably believed that additional dangers would arise if he released Mr. Delaney's cuffed hand while Mr. Delaney continued to resist arrest. Cst. Buckle subjectively and reasonable perceived himself to be in a potentially dangerous predicament.

G. The Decision to Ground Mr. Delaney and the Choreography of the Takedown

[32] As indicated, faced what he perceived to be a once fleeing arrestee who was now physically resisting arrest, Cst. Buckle found himself in a predicament. I accept that, faced with this predicament, he quickly attempted to canvass his options in accordance with his training. I accept that he attempted to regain control of Mr. Delaney's left arm by using his own right hand to grab Mr. Delaney's left triceps while using his left hand to attempt to push Mr. Delaney's hand back behind his back. I also accept that Mr. Delaney continued to rotate leftwards, which had the effect of thwarting Cst. Buckle's efforts. In coming to this conclusion, my general observations about the reliability of the nurses' evidence causes me to conclude that they cannot refute Cst. Buckle's evidence on this point. In addition, I note that Ms. Takacs and Jim describe a rotational movement, which is generally consistent with Cst. Buckle's description of both the struggle prior to the takedown and the takedown itself. Having accepted Cst. Buckle's description of the struggle preceding the takedown, I also accept his assertion that he subjectively concluded that his efforts to complete the arrest Mr. Delaney, up to this point in time, were failing.

[33] Cst. Buckle testified that he quickly canvassed possible responses to Mr. Delaney's resistance as the two of them rotated during the struggle. He considered but rejected the idea of letting go of Mr. Delaney. He reasoned that the one loose cuff could become a weapon when attached by the other cuff to Mr. Delaney's hand. Accordingly, he testified that disengaging was entirely out of the question. He ruled out using pepper spray because they were in the close confines of an emergency room and he was concerned about contaminating those nearby. In addition, he testified that he considered but ruled out punching Mr. Delaney. While not specifically explaining why, I interpreted Cst. Buckle as exercising some restraint when rejecting this option. In accordance with his use of force training, he decided to ground Mr. Delaney. As the two men rotated in their struggle, Cst. Buckle looked for a clear space to ground Mr. Delaney. Cst. Buckle's description of his thought process was credible and not damaged during cross-examination.

[34] With regard to the choreography of the takedown, Cst. Buckle described altering the direction of his application of force on Mr. Delaney's arm, so as to throw Mr. Delaney off balance and spin him towards the ground, with one hand on the cuffed wrist and one hand on the upper portion of the same arm. His description closely mirrored a technique he learned during his training. This technique was described by Paul Bonner, an instructor at the Ontario Police College who testified on behalf of the defence. Mr. Bonner also introduced a video demonstration of the take-down technique. According to Bonner, officers are taught to use this technique on arrestees who have one hand cuffed but are resisting having the other hand cuffed. In my view, Cst. Buckle's description of his take-down of Mr. Delaney amounted to a near textbook example of the technique.

[35] Having watched the training video, I can understand how an officer employing the technique might reasonably expect the resisting arrestee to use his free hand to break his fall. It is clear from the evidence of Cst. Buckle that he expected Mr. Delaney to break his fall, despite Mr. Delaney showing some signs of impairment. Having seen the training video from the OPC and been told about Cst. Buckle's training, I accept that Cst. Buckle expected Mr. Delaney to use his free hand to break his fall. Unfortunately, of course, Mr. Delaney did not do so. As a result, when he landed face first on the floor, he immediately lost consciousness and suffered serious bodily harm to his face. In response, Cst. Buckle stood back and allowed the clearly horrified nurses to tend to Mr. Delaney. As he backed away, he apologized for a situation which I accept he clearly did not intend to create.

[36] To some degree, the evidence of some of the nurses supported Cst. Buckle's description of the takedown, even if there are some aspects of their description that differ from Cst. Buckle's. For example, Ms. Takacs' demonstrative evidence suggested an effort by Cst. Buckle to use Mr. Delaney's own momentum against him to ground him, as is done in judo. This aspect of her evidence seemed consistent with Cst. Buckle's. However, Ms. Takacs described Cst. Buckle as having his knee on Mr. Delaney's hands or back after Mr. Delaney hit the ground. This aspect of her evidence was contradicted by both Ms. Leonard and Ms. Jim – and I reject it. Ms. Leonard's evidence about the take-down was a bit more vague, but I did not interpret it is as being necessarily with Ms. Takacs description of the general choreography of takedown. The main points of departure between Ms. Leonard's description and Ms. Takacs' description was Ms. Leonard's rejection of the notion that Cst. Buckle put his knee into Mr. Delaney and her assertion that she saw Mr. Mr. Delaney's feet swoop past her as he fell. Ms. Leonard is the only witness to describe Mr. Delaney's feet sweeping through the air – having said that, I am not sure this description is necessarily at odds with the evidence of the other witnesses. Although Ms. Jim also described a rotational grounding, her evidence nevertheless offered the most striking contrast to Cst. Buckle. According to Ms. Jim, she saw Cst. Buckle use his other free hand to grab Mr. Delaney by the back of the neck as he forced him to the ground. Cst. Buckle, Ms. Takacs and Ms. Leonard all disputed any suggested that Cst. Buckle grabbed Mr. Delaney by the back of the neck with his free hand. Accordingly, I reject Ms. Jim's assertion or implication that Cst. Buckle used one hand to drive Mr. Delaney's neck and face towards the ground.

[37] In summary, there are aspects of the evidence of the three nurses that are generally consistent with Cst. Buckle's description of the choreography of the take-down. And while some aspects of some of their choreographies contrast with Cst. Buckle's, they also contrast with each other on these very same aspects. Accordingly, I accept Cst. Buckle's description of his near text-book take-down and reject any aspects of the nurses' evidence that purports to contradict it.

V. ANALYSIS OF THE CROWN'S THEORIES OF CRIMINAL LIABILITY

A. The Two Main Avenues of Liability

[38] The Crown argues that Cst. Buckle is guilty of Assault Cause Bodily Harm for two reasons:

(1) First, the Crown argues that Cst. Buckle's failure to properly announce the arrest and the reason for the arrest renders the arrest unlawful, which in turn renders the entirety of the arrest an assault;

(2) Second, the Crown argues that Cst. Buckle used excessive force in effecting the arrest.

[39] As I will discuss below, I do not believe that either theory of liability can establish Cst. Buckle's guilt beyond a reasonable doubt.

B. The Lawfulness of the Arrest

[40] Section 495(1)(c) of the Code authorizes a peace officer like Cst. Buckle to arrest a person without a warrant if the officer has reasonable grounds to believe that there exists a warrant of arrest or committal for that person. The Crown does not dispute that there existed warrants for Mr. Delaney's arrest or that Cst. Buckle had confirmed their existence and thus reasonably believed those warrants existed. Section 495(1)(c) therefore provided lawful Cst. Buckle the lawful authority to arrest Mr. Delaney.

C. The Duty to Arrest

[41] Section 42(1)(d) of the Police Services Act imposed a duty upon Cst. Buckle to arrest anyone for whom he believed a lawful arrest warrant existed. Having regard to Cst. Buckle's reasonable subjective belief in the existence of a bench warrant for Mr. Delaney, Cst. Buckle's duty to arrest Mr. Delaney crystalized the moment he found Mr. Delaney. Cst. Buckle initially exercised his discretion to delay the arrest, and thus the fulfillment of his duty, until Mr. Delaney had an opportunity to complete his medical treatment. I would point out that, had Mr. Delaney then escaped unnoticed, Cst. Buckle could possibly have been criticized for failing to fulfil his duty when first spotting Mr. Delaney. In any event, when Cst. Buckle subjectively and reasonably believed that Mr. Delaney was forgoing his medical treatment in an effort to evade the police, he made the decision to execute the warrant. In doing so, he conformed with his statutory duty.

D. The Crown's Reliance Upon Non-Compliance with Section 10(a) of the Charter and Section 29 of the Code

[42] The Crown argues that Cst. Buckle failed to immediately inform Mr. Delaney of the reason for his arrest, thereby violating s. 10(a) of the Charter. Similarly, the Crown contends that Cst. Buckle's alleged failure to explain the reason for the arrest contravened s. 29(2) of the Code. The Crown contends that the non-compliance with Charter and the Code rendered the arrest unlawful, which in turn rendered any forced used during the course of the arrest an assault.

[43] I disagree with the Crown's contention for two reasons.

[44] First, as indicated previously, the evidence of Barb Takacs leaves me with a reasonable doubt about the allegation that Cst. Buckle failed to announce the reason for the arrest. As noted, Ms. Takacs testified that Cst. Buckle told Mr. Delaney of the existence of a warrant for his arrest. The Crown bears the burden of proving the offence beyond a reasonable doubt and the alleged failure to provide the reason for the arrest constitutes an essential element of this particular theory of criminal liability. Therefore, the Crown bears the burden of proving this essential element beyond a reasonable doubt. Having considered the authorities, I have concluded that the alleged declaration of the existence of an arrest warrant provided a sufficient explanation of the reason for the arrest. Given my state of reasonable doubt about whether the Crown has disproven the absence of this declaration, I am unable to conclude beyond a reasonable doubt that Cst. Buckle failed to comply with either s. 10(a) of the Charter or s. 29(2) of the Code. I will now explain why the mere declaration of the existence of a warrant suffices to comply with both s. 10(a) of the Charter and 29(2) of the Code.

[45] In 1974, the Supreme Court of Canada declared that an officer discharges his duty to inform the arrestee of the reason for the arrest by telling the arrestee of the existence an outstanding warrant: R. v. Gamracy, [1974] S.C.R. 640. In Gamracy, the court declared that the officer is under no duty to obtain the warrant or ascertain its contents to tell the accused of its contents. Gamracy was, of course, a common law decision. Since the advent of the Charter, there are conflicting Ontario authorities on whether Gamracy remains good law. In Wrightman, [2005] O.J. No. 1360, Justice Donohue, sitting as a summary conviction appeal court judge, affirmed Justice Hornblower's trial court conclusion [2004 ONCJ 210] that, with the advent of the Charter, s. 10(a) of the Charter requires the police to not only declare the existence of the arrest warrant but to also declare the charges to which the warrant pertains. However, in R. v. Trought, 2019 ONSC 2748, Justice Ricchetti expressly disagreed with the Wrightman decision and concluded that the police complied with s. 10(a) where they informed the arrestee of the mere existence of the warrant. At paras 173 to 178, he reasoned as follows [emphasis added]:

173 I am not persuaded by the analysis of Hornblower J., in the trial decision of Wrightman. There was no analysis of whether the "reason" for the arrest was probable grounds to believe there was an outstanding warrant rather than probable grounds relating to the underlying charges. With the greatest of respect to Donohue J. sitting as the Summary Conviction Appeal Court, there was little analysis on this point in the appeal reasons.

174 In my view, any analysis on this issue must start with the legal basis and actual basis upon which the person was arrested. In this case, the PRP officers were arresting Mr. Trought because they had reasonable grounds to believe there was an outstanding warrant for Mr. Trought's arrest, based on their CPIC search and discussions with Toronto police officers. The PRP officers were NOT arresting Mr. Trought on the underlying charges. The PRP officers were not there to arrest or investigate the underlying charges.

175 The PRP officers made it clear to Mr. Trought that they did not even want to question him or talk to him about the Toronto charges. In other words, in this case, it is clear Mr. Trought's arrest was pursuant to s. 495 of the Criminal Code and not because the PRP officer had reasonable and probable grounds to believe Mr. Trought had committed the underlying offences.

177 To accept the reasoning in Wrightman would require police officers to know precisely the underlying charges of an outstanding warrant from another jurisdiction and state those underlying charges to the person arrested.

178 The law has never required the precision the Defence seeks to impose as a Charter right. The law only requires the person arrested to "generally" know the jeopardy so that the person detained can decide whether to submit to arrest and to properly exercise his s. 10(b) rights. As stated in R. v. Latimer, [1997] 1 S.C.R. 217, at para. 28:

Section 10(a) of the Charter provides the right to be informed promptly of the reasons for one's arrest or detention. The purpose of this provision is to ensure that a person "understand generally the jeopardy" in which he or she finds himself or herself: R. v. Smith, [1991] 1 S.C.R. 714, at p. 728.

Neither the Wrightman decision nor the Trought decision were appealed, leaving me with two conflicting Superior Court authorities on the continuing applicability of Gamracy. Like Trought, the Court of Appeal for Alberta continues to apply Gamracy: R. v. Gunn, 1997 ABCA 35, [1997] AJ No 44 (C.A.). Having considered these authorities, I am persuaded that the Trought decision is the correct one. As a result, I conclude that Gamracy remains good law and that an officer arresting an accused on an outstanding warrant is not required at the point of arrest to do more than to explain the existence of an arrest warrant.

[46] While I accept that Cst. Buckle probably failed to ever articulate the reason for the arrest, Barb Takacs' evidence leaves me in a state of reasonable doubt about this essential element. On this basis alone, the Crown cannot successfully rely upon Cst. Buckle's alleged failure to explain the reason for the arrest.

[47] Second, and more importantly, even assuming that Cst. Buckle did fail to announce the arrest, I am not satisfied a breach of s. 10(a) of the Charter or s. 29(2) of the Code occurred. I come to this conclusion for the reasons below.

[48] Section 10(a) of the Charter requires an officer to promptly inform an arrestee of the reason for the arrest. Binding appellate authority interprets the term "promptly" to be synonymous with the term "immediately": R. v. Gonzalez, [2017] ONCA 543 at para 123; R. v. Suberu, [2009] SCC 33 at paras 2 and 41. However, these same binding authorities permit some delay on the basis of concerns for either officer or public safety.

[49] Section 29(2) of the Code requires that notice of the reason for the arrest be provided where it is "feasible" to do so.

[50] I do not accept the Crown's contention that Cst. Buckle failed to immediately announce the reason for the arrest or failed to announce it when it was otherwise feasible to do so. Any ascertainment of the compliance with the immediacy requirement must be done with regard to the specific factual context of the case at hand. While estimates of the duration of the arrest vary somewhat, on any account, the duration of the episode could be measured in seconds. Ms. Leonard, for example estimated that it took less that 5 seconds to transpire between the point when Cst. Buckle first laid hands on Mr. Delaney and the point at which Mr. Delaney lay unconscious on the floor. Ms. Jim provided a similar estimate. Cst. Hadgembes was not far off from those two in his own time estimate. During this very brief, quickly evolving, and fluid episode, Cst. Buckle honestly and reasonably perceived Mr. Delaney to be in the process of purposefully fleeing from the police. Within that short time frame, Cst. Buckle at the very least told Mr. Delaney to stop and twice told him he was under arrest – even if he failed to get a chance to elaborate upon the reason for the arrest. I accept that Cst. Buckle honestly and reasonably perceived Mr. Delaney to be continuing in his attempt to evade arrest even as Cst. Buckle tried to gain physical control of him. I accept that Cst. Buckle intended to explain the reason for the arrest as soon as he got Mr. Delaney under control and prevented the apparent flight. Unfortunately, Cst. Buckle's brief attempt to control Mr. Delaney rendered Mr. Delaney unconscious and Cst. Buckle never got the opportunity to further explain the arrest. I am not prepared to accept that a delay of a few seconds, during which Cst. Buckle was announcing the arrest and thwarting an apparent flight from the scene, constitutes a delay that contravenes the immediacy requirement in s. 10(a) of the Charter. For the same reasons, I am not prepared to conclude beyond a reasonable doubt that Cst. Buckle violated s. 29(2) requirement to announce the reason for the arrest when it is feasible to do so. While "prompt" means "immediate", which also means "without delay", none of those terms necessarily mean "instantaneous" (without any perceptible passage of time). Context is everything. In examining context, it is important to remember that I look at the event in hindsight, an inherently static position relative to the fluid state of motion in which Cst. Buckle had to operate. Implicit in his questioning of Cst. Buckle and in his submissions, the Crown invites me to break down this fluid event frame by frame from my static vantage-point of hindsight, thereby artificially elongating time as it existed in Cst. Buckle's frame of reference and inserting opportunities for thought and action not realistically available to Cst. Buckle in his state of motion. In my view, the Crown's invitation must be resisted. The officer's subjective experience of the event must be the starting point of the court's objective scrutiny of the officer's compliance with the immediacy requirement. Having regard to the situation in which Cst. Buckle found himself, I cannot conclude beyond a reasonable doubt that he violated the immediacy requirement of s. 10(a) of the Charter or the feasibility requirement of s. 29(2) of the Code. Indeed, I am unable to conclude on a balance of probabilities that either of these requirements were violated.

[51] Before moving on to the issue of the lawfulness of Cst. Buckle's use of force, I wish to address one other issue raised in both the Crown's cross-examination of Cst. Buckle and in the Crown's submissions. The Crown suggests that alternative decisions about the timing, location, and sequence of the arrest would or may have resulted in different outcomes. The Crown raises this issue when challenging the existence of any urgency, an issue relevant to the immediacy requirement. The Crown also raises this issue when addressing the reasonableness of Cst. Buckle's use of force. To some degree, Crown's suggestion has merit. To another degree, it invites speculation. Perhaps Cst. Buckle could have waited until Mr. Delaney stepped outside of the hospital before attempting the arrest. Perhaps Cst. Buckle could have approached Mr. Delaney while he was still seated and waiting for medical treatment. Would things have turned out the same? We will never know. One can only speculate. However, in some circumstances, it might be improper to permit an officer to rely upon an exigency of his own creation to dispense with a constitutional or statutory duty. This case is not one of those circumstances, though. I do not view Cst. Buckle's conduct as being the cause of his own exigency. Mr. Delaney began what reasonably appeared to be a second deliberate attempted departure in the face of an obvious police presence and while a bench warrant for his non-attendance at court remained in effect. Cst. Buckle reasonably perceived that Mr. Delaney set the wheels in motion to move the situation from a state of calm to one of urgency. The evidence supports the accuracy of Cst. Buckle's perception of Mr. Delaney's intentions. This is not a case where Cst. Buckle created his own exigent circumstance.

[52] To the contrary, viewed objectively, I find that Mr. Delaney set in motion a sequence of events that made it impracticable for Cst. Buckle to promptly explain the reason for the arrest. There exists authority for the proposition that

the person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, e.g., by immediate counter-attack or by running away.

see R v O'Donnell; R. v. Cluett, [1982] NSJ No 542 (N.S.S.C.A.D.), citing Christie v. Leachinsky, [1947] 1 All E.R. 567; see also R. v. Williams, [2009] O.J. No. 6516.

Cst. Buckle describes Mr. Delaney as engaged in a continuous effort to avoid and resist arrest. As noted, I accept his evidence. According to Cst. Buckle, Mr. Delaney appeared to have responded to the growing and obvious police presence by prematurely terminating his medical treatment and purposefully attempting leave the emergency room and evade police. When Cst. Buckle placed a hand on him and told him to "Stop, you're under arrest", Mr. Delaney ignored him and continued walking. When Cst. Buckle then grabbed Mr. Delaney's bicep and repeated the assertion that he was under arrest, Mr. Delaney stopped but almost immediately resumed his resistance to arrest by resisting being handcuffed. As Cst. Buckle attempted to secure Mr. Delaney's hands in cuffs, Mr. Delaney attempted to bring his hand in front of his body while also rotating to face Cst. Buckle. Cst. Buckle attempted to prevent Mr. Delaney's efforts with little success. There was never any appreciable gap in Mr. Delaney's resistance. Cst. Buckle's immediate focus was upon preventing the apparent flight and safely securing Mr. Delaney before turning to his other statutory and constitutional obligations. Unfortunately, Mr. Delaney's persistent efforts at avoiding arrest prevented any reasonable opportunity for a more timely explanation of the reason for the arrest. Accordingly, the Crown cannot rely upon a situation created by Mr. Delaney.

E. The Reasonableness of Cst. Buckle's Use of Force

[53] I cannot accept the Crown's contention that Cst. Buckle used excessive force in arresting Mr. Delaney.

[54] Section 25(1) of the Code effectively codifies the common law and permits the use of force by an officer purporting to arrest a person if

(1) There exists a lawful authorization or duty to arrest the person;

(2) The police officer possesses reasonable grounds to believe that the arrest is authorized; and

(3) The police officer does not use unnecessary force in making the arrest;

[55] As already noted, I have found that Cst. Buckle had reasonable grounds to believe a warrant for Mr. Delaney's arrest existed and that, accordingly, s. 495 of the Code provided the Cst. Buckle with the lawful authority to make an arrest.

[56] I turn, then, to the use of force justified by s. 25(1). This provision justifies an officer's use of force in circumstances where

(1) the officer subjectively believed that the use of force is necessary to carry out the arrest;

(2) the office had reasonable and probable grounds for that subjective belief; and

(3) the officer used no more force than was reasonably necessary: see R v Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206.

[57] The Crown bears the burden of proving beyond a reasonable doubt that Cst. Buckle's use of force was not justified by s. 25(1): see R. v. Fontaine, 2004 SCC 27, 183 C.C.C. 3d 1 (S.C.C.).

[58] I turn then to an assessment of the reasonableness of Cst. Buckle's subjective state of mind and the proportionality of his use of force. I accept that Cst. Buckle honestly and reasonably perceived that Mr. Delaney was intentionally evading and then resisting arrest for a warrant about which Mr. Delaney was aware. I accept Cst. Buckle's evidence that Mr. Delaney persistently resisted Cst. Buckle's attempts to cuff him, attempted to bring his cuffed arm in front of him, and attempted to turn to face Cst. Buckle. I infer that Cst. Buckle was concerned that Mr. Delaney could potentially pose a greater officer safety threat if he succeeded in his efforts to turn around. I accept Cst. Buckle's evidence that he was failing in his effort to force Mr. Delaney's hand behind his back. I further accept that Cst. Buckle considered but rejected the notion of disengaging. I accept as reasonable Cst. Buckle's subjective assessment that releasing Mr. Delaney's cuffed hand created a potentially more dangerous situation by providing a resistant arrestee with a potential weapon [the cuffs]. I further accept that Cst. Buckle quickly tried to canvass his options and ruled out pepper spray [due to the risk of exposing others present to the spray] and punching Mr. Delaney [a more violent form of intervention]. I accept that Cst. Buckle quickly chose a method he was trained to use when dealing with an arrestee who continues to offer resistance with one handcuff applied. I accept that Cst. Buckle considered this technique necessary in order to execute the arrest of his actively resistant arrestee. I further conclude that this belief was objectively reasonable. I also accept that Cst. Buckle reasonably believed that Mr. Delaney would break his fall with his free had as Cst. Buckle grounded him. I infer that he believed Mr. Delaney would come through the grounding without any appreciable harm. This belief was based upon his participation in live training exercises. I further accept that Cst. Buckle executed the takedown in a manner consistent with his training. Despite Mr. Delaney showing some signs of impairment, his symptoms were not so severe as to lead me to conclude that Cst. Buckle ought to have expected that Mr. Delaney would to fail to break his fall with his free hand. I therefore accept that Cst. Buckle subjectively believed that his grounding technique was reasonably necessary to execute the arrest, that this subjective belief was objectively reasonable, and that in executing this technique, Cst. Buckle used no more force than was reasonably necessary. Consequently, I conclude that the Crown has failed to prove beyond a reasonable doubt that Cst. Buckle's use of force was not justified by s. 25(1).

[59] Cst. Buckle must therefore be acquitted of the charge before the court.

Released: July 3, 2020

Signed: Justice C.A. Parry