Court Information

Date: 2020-01-07 Toronto Region Ontario Court of Justice

Between: Her Majesty the Queen — and — Malcolm Chambers

Before: Justice L. Feldman

Heard on: October 21, December 10, 2019

Reasons for Judgment released on: January 7, 2020

Counsel:

• M. Pecknold for the Crown
• G. Grey for the accused Malcolm Chambers

FELDMAN J.:

Introduction

[1] Malcolm Chambers entered guilty pleas to three counts of Assault and one of Assault Peace Officer. He pled not guilty to Assault Peace Officer, Assault Peace Officer Causing Bodily Harm and Possession of Property Obtained by Crime.

[2] The defendant admits assaulting 3 civilian employees of Walmart who followed him outside the store after he refused to show his receipt to a security guard at the exit for items in his bag. He also admits that following his arrest, he kicked an officer in the leg and abdomen while being placed in a police cruiser.

[3] He submits, however, that there is a reasonable doubt on the evidence that in the course of being subdued he assaulted and injured one of the officers. He says, in addition, that the Crown has not met its onus of proving that he was in unlawful possession of the virtual reality goggles found in a Walmart bag in the parking lot.

The Evidence

[4] On July 5, 2018, at 8:15 p.m., Atul Chandra, a security officer at Walmart, was informed by a colleague, Rujen Tharmalingam, observing from video feed monitors in the company's office, that Mr. Chambers had concealed 2-3 items in a reusable Walmart bag he was carrying and had crossed the cash registers without making payment. He was riding a store scooter at the time and approaching the exit.

[5] There, the security guard was instructed to demand that the defendant produce a receipt before exiting. He did so. Mr. Chambers responded in a loud voice, "I don't have to show you fucking anything." He left the store.

[6] Shannen Perez, a Loss Prevention Officer, had also seen Mr. Chambers conceal an item in his bag. However, she signalled to the security guard to disengage, given safety concerns. She explained that as it was unclear what, if anything, had been taken, so that an arrest was questionable. She followed the defendant outside the main door.

[7] Mr. Chandra was also outside. On seeing him, Mr. Chambers swore at him and said, "why are you looking at me". He then ran at the witness, saying, "you are dead, I'm going to kill you". Unprovoked, he punched Mr. Chandra on his left shoulder, right side of his face, left cheek and jaw area using both hands, all while holding the reusable bag.

[8] Ms. Perez tried to push to pull the defendant away and held his arm, but he punched her in the face with a closed fist. Rujen Tharmalingam, had come outside and attempted to intervene. The defendant punched him on his head, left side of his jaw and his cheek.

[9] Mr. Chandra tried to push the defendant away from Mr. Tharmalingam, but was punched hard on his right temple for his trouble causing him to black out briefly. Mr. Tharmalingam and Ms. Perez tried to hold the defendant's arms, but he kept swinging them.

[10] At one point, all three employees attempted to back away, but Mr. Chambers kept coming at them. He punched Ms. Perez twice on the right side of her face with a closed fist. He told Mr. Chandra twice that he was "dead". Mr. Chandra asked some civilians who had gathered to call 911.

[11] Ms. Perez and Mr. Tharmalingam tried to get the defendant under control, but he began pushing them. Mr. Tharmalingam described him as "going crazy". He was yelling, "Do you know where I'm from, you're dead". He also bit Mr. Tharmalingam.

[12] A civilian intervened, pushing the defendant off the employees. The defendant then retrieved a shopping cart and attempted to hit Mr. Chandra, who used the cart as a shield. A second civilian pushed Mr. Chambers away from everyone in an effort to calm the situation. When he heard police sirens, the defendant ran down the parking lot and hid behind a shopping cart corral.

[13] Mr. Tharmalingam retrieved a reusable bag from the ground. Ms. Perez found electronic virtual goggles still in its Walmart packaging inside the bag and valued at $24.97. There was no receipt.

[14] Mr. Chamber's violence caused his victims injuries. Mr. Chandra was bleeding, had a cut to his lower inside lip, felt pain in his shoulder and suffered a concussion. He lost two days of work. Ms. Perez had a sprained right shoulder that remains susceptible to a recurrence. She had to take a few days off work. Mr. Tharmalingam did not complain of injuries.

The Police Intervention

[15] On arrival, the police observed Mr. Chambers yelling at some civilians and posturing aggressively. They approached him, one from in front and one behind. The defendant told them to leave him alone and began walking away. He resisted when they tried to restrain him.

[16] P.C. Crocker testified that he took hold of Mr. Chamber's arm, but he tensed up, clenched his fists and tried to pull away. He told the defendant not to resist and that he was being detained because of an assault. The officer said that although Mr. Chambers broke free, his escort P.C. Ben Chandler still had hold of his arm so that they were able to take him to the ground.

[17] P.C. Crocker explained that to effect control he held the defendant's wrist and right elbow, but that Mr. Chambers pulled away in order to break his grip, which he did. The officer took the defendant's right arm again and put his arm on his neck, but the defendant pulled away, this time with force. P.C. Crocker had to use all his strength to get him down, but in the process felt pain in his right shoulder, as well as numbness in his hand. He was later diagnosed with a dislocated shoulder. He had persistent pain, was off work for a month and required physiotherapy for several months.

[18] Once Mr. Chambers was down and subdued, it was left to P.C. Chandler to handle him on his own. He stood the accused up, walked him to the scout car and placed him in the back seat. He testified that once inside, the defendant hit his head on the window, so that he opened the door again to deal with his detainee. The defendant tried to get out, but P.C. Chandler pushed him back. The officer said Mr. Chambers kicked him in his leg and abdomen, facts admitted on the guilty plea.

[19] P.C. Chandler agreed with Mr. Grey that the defendant was actively resisting when the officers initially attempted to apprehend him by tensing his muscles and moving his arms to 90 degrees as he was being held, later resisting passively when he was on the ground.

[20] Two of the civilian employees saw very little of the police interaction with the accused. Ms. Perez only observed the two officers with the defendant when he was on the ground. Mr. Tharmalingam saw the defendant being handcuffed.

[21] It was Mr. Chandra who said that when Mr. Chambers was detained by the police, he pushed and punched them in order to get away, then kicked them after being taken to the ground. That was not the recollection of the officers. Nor was it apparent on the in-car camera video.

[22] The video provides an objective view of the arrest. In it, the officers approach the accused, one from the front, the other from behind. They both have him by his arms, but the defendant raises his arms to a 90-degree angle, after which he is taken to the ground, then brought to his feet and walked to the scout car where he is forced into the back seat. He hits his head while yelling he did nothing wrong. He tries to get out of the car and kicks out at one of the officers who closes the door. The defendant also kicks the window.

[23] On the video, the accused is swearing. He says there is no reason to arrest him. He yells, "fuck you, white people… bitch…fuck you white people… no reason to put your hands on me, fucking fag". P.C. Chandler proceeds to put leg irons on him.

[24] Mr. Chambers complains further, "put their hands on me because I'm black…fucking idiot…fuck you white piece of shit…no reason to put their hands on me…whole bunch of them attacked me…fuck you, white piece of shit…they had no reason to put their hands on me…they were harassing me…I'm not a thief."

Did the Defendant Assault P.C. Crocker While Resisting Arrest?

[25] Mr. Grey, for the accused, submits that in initially resisting the police in the parking lot, Mr. Chambers pulled away forcefully, but did not intentionally apply force to P.C. Crocker, so as to assault him in the course of his active resistance. Neither police officer testified to such behaviour, nor was it apparent on the in-car camera video.

[26] It appears that it was only Mr. Chandra who saw an assault during these fast-moving events. He could not say where on the bodies of the officers Mr. Chambers made contact. It is possible the active back and forth resistance of the defendant resembled pushing, if not punching. He may also have seen Mr. Chambers kicking out at P.C. Chandler shortly after this at the scout car.

[27] In R. v. Hickey, the court held that where the police are attempting to arrest someone and exerting considerable force against that person, "the act of pulling his arm away from the police officer did not, in law, amount to an assault". Rather, the detainee's actions were more properly litigated under Code s. 129, that is, resisting a police officer in the execution of his duty.

[28] It is possible that in initially subduing Mr. Chambers, the officers paid no attention to aspects of his behaviour that were assaultive in nature. It would not be inconsistent with the defendant's continuing aggressiveness and intimidating manner to have done so. He was clearly resisting arrest with force. It is probable that the accused struck out at the officers as they moved in on him. But on all the evidence, I am not satisfied to the near certainty required in the authorities, that the defendant assaulted P.C. Crocker causing him bodily harm in the course of the initial resistance.

[29] Mr. Chambers will have the benefit of that reasonable doubt. The charges of assault and assault resist arrest causing bodily harm under s. 270(1)(a) will be dismissed.

The Possession Charge

[30] Mr. Chambers was observed placing items in a reusable bag while shopping at a Walmart store while using a scooter. He left the store bypassing the cash registers. He was confronted outside in the parking lot while holding the bag and in short order sought to get away from the police who had arrived within two minutes of receiving a radio call to attend. It is a reasonable inference that he discarded the bag in the course of these events that took a matter of minutes to unfold.

[31] One of the Walmart employees recovered a reusable bag containing store property still in its packaging with no receipt in the same area where all of this occurred. The only reasonable circumstantial inference to be drawn on all the evidence is that this was the bag carried by the defendant out of the Walmart store, one that contained an item not paid for. Mr. Chambers will be found guilty of possession of property obtained by crime.

Released: January 7, 2020

Signed: Justice L. Feldman