Ontario Court of Justice
Date: 2021 11 05 Court File No.: Brampton 030041
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
SCOTT DOUGLAS
Before: Justice David S. Rose
Heard on: September 20, 21, 22, 2021 Reasons for Judgment released on: November 5, 2021
Counsel: A. Cappell, counsel for the Crown H. Black, for the defendant Scott Douglas
Rose J.:
[1] Mr. Douglas is a police officer with the Peel Regional Police Force. In the afternoon of March 25, 2019 he arrested Mr. Trevaughn Titus. Mr. Titus was released unconditionally within minutes, but Douglas was charged with assault on Mr. Titus. Mr. Douglas was named on the Information as the defendant Cst. Scott Douglas badge #3765 Peel Regional Police. At this trial before me three witnesses were called: Mr. Titus for the Crown, Mr. Douglas in his defence and a use of force expert called by the defence Mr. Christopher Lawrence. Part of the events were captured by a video camera.
[2] At the outset Mr. Black admitted that Cst Douglas is the person on the video, that he chased Mr. Titus, took hold of him, that a struggle ensued and that the Cst. Douglas threw one punch to left side of Mr. Titus’ head. Date, time and jurisdiction as alleged on the Information were also admitted.
[3] These are my reasons for judgement on the trial.
Evidence
[4] Mr. Titus was 26 years old in March of 2019, and lived in an apartment at 90 Orenda Court in Brampton with his mother and two sisters. On March 25, 2019 at around 2pm he was sitting in a stairwell of his building with a friend Devon. At the time Devon lived on the same floor of the building as Mr. Titus. Mr. Titus is 6’3” and weighs 175 pounds. Mr. Titus described the stairwell as having two doors – one coming in from the building hallway, and another going outside. The outside door leads to a concrete pathway which goes out directly from that door, and then turns to the left 90 degrees and goes downward on an incline. That concrete pathway has a border or ledge on each side which is some 37” high. The pathway coming out of the exterior door is otherwise suspended about 3 stories above the ground, because that door comes out of the third floor.
[5] Mr. Titus testified that the stairway was a common place to gather for him, his friends, and others in the building. This caused problems, namely smoking in the stairwell. Mr. Titus knew that smoking in the stairwell was forbidden. Signs posted in the building said that, namely “No Smoking Maximum Fine $5000 Smoke Free By-Law”
[6] Mr. Titus testified that he was not smoking – anything – in the stairwell that day. As he was sitting with Devon the interior door to the stairwell opened slightly, and then was pushed open more quickly. Mr. Titus testified that he saw one police uniform, a police vest, and that his friend Devon then ran up the stairs. Mr. Titus ran at the same time, but he went out the exterior door. By then the police officer had not said anything to him and he said nothing himself. No words were exchanged as the door opened and Mr. Titus took flight.
[7] At that point the altercation was captured on a building surveillance camera.
[8] Mr. Titus testified that the police officer who opened the door said nothing, and that he didn’t say anything either. He just ran out the door. He was quickly grabbed by one officer who held him by the back. He spun around, and told the police to cuff him. By then another officer had arrived. He was first punched by one officer and then, as he crouched down, kneed in the head. Mr. Titus could not tell which officer first punched him and which one kneed him. He said he felt blood so he just fell to the ground and told the police to “...put the cuffs on me”.
[9] Mr. Titus was adamant that he was being cooperative, and had done nothing wrong. He said that when he fell to the ground he put his hands behind his back to receive handcuffs. After he was handcuffed he was pulled to his feet by the two officers. He denied making any form of aggressive or threatening movement to the police.
[10] Mr. Titus testified that as he was being lead off the ramp in handcuffs he was told he was under arrest for trespassing. He gave the police his address which turned out to be 90 Orenda Court. He was then told that he was under arrest for drugs. He was taken to a police car, and searched. Mr. Titus remembers that the police found some loose tobacco but no contraband. The altercation left Mr. Titus bleeding from the head.
[11] An ambulance arrived on scene and Mr. Titus was seen by the EMS personnel, but he declined their assistance. Once he was released he went on his own to William Osler Emergency Room and was seen by the medical staff. Documentation filed show that the Emergency Record from that day shows that he was seen by the Triage nurse at 14:55. The medical staff treated for him a head injury. A photograph filed shows Mr. Titus to have suffered from injuries to his head requiring stitches above his right eye, and swollen eye. The defence takes the position that Mr. Titus suffered the eye injury and cut forehead from Mr. Scott’s partner PC Tingle.
[12] Mr. Titus was cross-examined about various charges which have been laid against him since this incident. He denied the truth of all of them. He was adamant that the police have had it out for him since the incident on March 25 with Csts. Douglas and Tingle. The domestic assault charge was withdrawn, but a month after his arrest on March 25 he was beaten by six police officers in the back of the Hansen building. That resulted in various charges which are still outstanding, and for which he adamantly denied the truth of the charges. He testified that those charges were because “...of the Douglas charge they’re trying to put something on me the month after”. He also admitted to being charged with possession of a stolen car in February of 2018, and testified that those charges were thrown out.
[13] Mr. Titus testified that on March 25, 2019 he had no outstanding arrest warrants, and he was perfectly compliant with his court conditions for the domestic assault charge release. He denied breaking any building rules as he sat with Devon in the staircase, was adamant that he was not smoking anything, nor was Devon. He was repeatedly questioned by Mr. Black about whether he or Devon was smoking in the hallway, and was quite clear that there was no smoking going on. He did not remember there to be a smell of marijuana in the stairwell that day. He admitted to telling the police that he had a very small quantity of marijuana on him that day, as well as tobacco, but his statement that he did not have drugs on him was truthful because marijuana isn’t drugs, anyone can buy it in a store.
[14] Mr. Titus was questioned about why he ran from Cst. Douglas that day. He explained that he was not frightened until Devon got scared, when he got scared too. He testified that the police knock on his door every day trying to get information and he “...wasn’t trying to like talk to the cops or nothing”. He explained that the police had been harassing his sister to give them information which might assist in an outstanding domestic assault charge against him. When pressed in cross-examination he said that it was the way in which the door was opened which frightened him.
[15] Mr. Douglas testified in his defence. He has been a police officer since 2012 and has spent the majority of his career policing the neighbourhood which includes 90 Orenda. He testified that he knows the Orenda Court neighbourhood well. He has been stationed at 22 Division for his 12 years as a police officer, and 22 Division has that address within its area. The owners of 85 Orenda Court have a standing agreement with Peel Police which gives the police the authority to enter that location and to act as an agent of the CAPREIT for purposes of enforcing the Trespass to Property Act (TTPA) s. 2(1)(b). An agreement dated March 27, 2019 was entered into evidence, which is after this incident, but it is in fact back dated to February 21, 2019. The reason for the backdating was never explained in evidence. Cst. Douglas testified that the purpose of the agreement fixes Peel police with the obligation to enter 90 Orenda and actively patrol the area, prevent crime, show visibility, and seek any crime that may be occurring.
[16] On March 25, 2019 Cst. Douglas was at 90 Orenda with his partner PC Tingle for an unrelated matter in a unit on the third floor. They had arrived at 1:32 pm and stayed for about 10 or 15 minutes. He was leaving that meeting and was walking down the hallway towards the door. Tingle was behind him. As he approached the door to the stairway he could hear people in the stairwell, and could smell burnt marijuana. The smell got stronger as they approached the stairwell and he believed that people he could hear were smoking marijuana. This was a prohibited activity, namely smoking in the stairwell, and PC Douglas decided that he would then investigate with a view to enforcing the TTPA. He believed his options were either to charge the offenders or alternatively speak to them, find out their names and caution them.
[17] When he opened the door Mr. Titus was sitting on the stairs and immediately ran out the exterior door. Another person was there too but he did not flee with Mr. Titus. Mr. Douglas decided to pursue Mr. Titus because he was evading him and Cst. Douglas had decided to make an arrest under the TTPA.
[18] Cst. Douglas chased Mr. Titus outside onto the concrete ramp. He caught Mr. Titus within a few feet of him leaving the doorway and grabbed him by his left arm, telling him to stop. Mr. Titus didn’t stop. Mr. Titus turned around to face Cst. Douglas. Cst. Douglas was by then telling the person to get down, but he didn’t. Cst. Douglas then delivered what was described as a distractionary punch to the left side of Mr. Titus’ face. Cst. Douglas explained that he delivered that strike because Mr. Titus wasn’t listening to him and he wanted to physically control him by getting him on the ground. Cst. Douglas wanted him to stop resisting, and Mr. Titus was a lot bigger than Cst. Douglas.
[19] Cst. Douglas described the ramp where the altercation took place. It is three stories up and the wall of the ramp comes up to hip level - about 37 or 38”.
[20] The punch by Cst. Douglas did not stop Mr. Titus immediately. Within a very short period, perhaps seconds, Cst. Tingle was at the altercation and he kneed Mr. Titus in the face causing him to bend over. He was then grounded. Cst. Tingle’s kneeing left Mr. Titus with an open wound to the forehead.
[21] Cst Tingle remained with Mr. Titus on the ramp while Cst. Douglas went back into the stairwell to look for the other person he had seen with Mr. Titus. He looked for evidence of smoking, and couldn’t find any. The other person had left.
[22] Cst. Douglas returned to where Mr. Titus was with Cst. Tingle, and arrested Mr. Titus for Trespassing. Mr. Titus was handcuffed and taken to his police car.
[23] In fairly short order Mr. Titus gave Cst. Douglas his name and date of birth. Cst. Douglas confirmed that he lived at 90 Orenda and then released him unconditionally. As he explained, he could have charged him with Trespassing because he was smoking in the stairwell, but there was no physical evidence to confirm that. Mr. Titus had properly identified himself, and was indeed an occupant of 90 Orenda. That and the fact that Mr. Titus had an injury to the forehead lead him his discretion to not lay a charge.
[24] Cst. Douglas gave evidence about his use of force. He was trained, both as a new police recruit, and also on an annual basis to use the use of force wheel. The use of force wheel is a visual diagram which includes many concentric circles inside each other. It represents the various factors and considerations which a police officer in Ontario should incorporate in determining when and how to use force in dealing with the public or an arrestee. Cst. Douglas’ evidence on the topic leads me to find that he is quite informed about best practises involving the use of force. He was easily able to identify the various factors leading him to deliver a distractionary strike. He was easily able to explain why the distractionary strike was appropriate in the circumstances. In his evidence, once Mr. Titus swung around on the ramp and faced him he became more vulnerable to Mr. Titus and had concerns that he was exposed to being assaulted on the ramp. The ramp itself presented a risk because it was confined by a low barrier, and was three stories up. As Cst. Douglas explained, when Mr. Titus swung around to face him he was actively resisting the arrest, which called for an elevation of the use of force.
[25] Cst. Douglas was cross-examined closely on his reasonable grounds to arrest Mr. Titus. He had smelled marijuana which he believed was no more than 10 minutes old The stairwell was frequently used by people for smoking marijuana, which was a prohibited activity under the building rules and therefore the Trespass to Property Act. As Cst. Douglas explained “I believe that based on the information that I had with the strong odour and the individuals hanging out in the stairwell, it required a response from me as a police officer and as well acting as an agent for the Orenda Court properties”.
[26] Cst. Douglas explained that his decision to chase Mr. Titus was because he thought that he had been smoking marijuana, because he ran and was attempting to avoid the consequences. He was adamant that he thought he had come upon individuals smoking in the stairwell and that Mr. Titus was therefore engaged in a prohibited activity. He had fled, which was a failure to identify under the TTPA.
[27] The Defence called Chris Lawrence as a use of force expert. I qualified him to give opinion evidence in:
Police training with respect to use of force by a police officer including the meaning and interpretation of the use of force wheel and the role of distractionary strikes and the meaning of active resistance
[28] During the qualification ruling I declined to permit Mr. Lawrence to give an opinion about the video of the altercation between Cst. Douglas and Mr. Titus for two principle reasons: An opinion about the video would tend to elevate that piece of evidence in the trial well before its final weight could be argued; and secondly the facts which would tend to ground his opinion have been established and discussed at length in the evidence of both Mr. Titus and Cst. Douglas. A cost benefit analysis therefore weighed against his opinion on the video.
[29] Mr. Lawrence has many years of experience training police officers in the use of force. He is also quite experienced in the formulation of the guidelines by which officers are taught use of force. I found his evidence helpful.
[30] The use of force wheel which Cst. Douglas referred to in his evidence was a model which was arrived at in 2004 and adopted by the Ontario Ministry of Solicitor General. Mr. Lawrence was involved in its formulation and development. What is clear is that use of force wheel is a government directive which, if not a regulatory pronouncement as such, is a normative standard expected by the legislature in the training of Ontario police officers. It is not something which came about accidentally or for private purposes.
[31] Mr. Lawrence’ evidence was that an arrestee or detainee who runs away from an apprehending officer is actively resisting the officer. A distractionary strike is consistent with appropriate use of force. Mr. Lawrence was also clear that officers are not taught use of force in specific situations. Specifics are not trained, so the fact that an altercation happens on an elevated walkway is not a scenario he would expect there to be specific training. As he pointed out, specific training has problems, including the risk of injury during the training, and the fact that myriad real life circumstances cannot be anticipated during the training process.
[32] Mr. Lawrence was cross-examined on his opinion that a distractionary strike is appropriate when a detainee is moving away from an apprehending officer. He opined that in this case the ramp, with its relatively low barrier, limited the options of Cst. Douglass for stabilizing Mr. Titus. A horizontal wall was not available, so grounding was appropriate. Officers are taught to avoid inflicting damage to the arrestees head, but a distractionary strike was appropriate. Mr. Lawrence was pressed on whether a strike to the head area was a proportionate use of force in the circumstances. His evidence was that when there is a struggle the question is whether the officer will overcome the struggle. Unless greater force is used the officer will not prevail. It is not a matter of niceties, and it is preferable to deliver one stronger distractionary strike to affect the arrest, rather than a series of easier blows, which will have not effect on the arrest.
[33] Mr. Lawrence was questioned about the nature of the offence for which the arrest is being made and the level of force used. He resisted any suggestion that the two are necessarily tied. As he put it, if nothing is done to the apprehend an arrestee then the officer’s duty to arrest suspects and bring them before the Courts is defeated.
Issues
Credibility Issues
[34] While the bulk of the case was conceded by the Defence I would nonetheless find that Mr. Titus was a generally credible witness. He struggled to explain in cross-examination why he fled the stairway when Cst. Douglas opened the door to it. His answers were variously that he ran because his friend Devon fled, that he was scared and that he wasn’t scared. With that inconsistency identified I nonetheless find that he was generally credible. Most of his evidence was confirmed by the video tape of the struggle with Cst. Douglas, and his evidence is consistent with a racialized man who was doing nothing unlawful but ended up being chased by two police officers and received a cut to the head from the altercation. It is clear to me that he is distrustful of the police. Based on the evidence I heard in this case, I understand why.
[35] He was steadfast that he was doing nothing unlawful when he sat in the stairwell with Devon. Whether he ran from Cst. Douglas because he was fearful of the police or because Devon ran first or a combination of the two is unnecessary for me to decide. His evidence that he was doing nothing unlawful tended to be confirmed by the failure of either Cst. Douglas or Tingle to seize anything which confirmed the defence theory that he was smoking something in the stairwell.
[36] I also find Cst. Douglas to be a generally credible witness. He explained his decision making process in the events and withstood cross-examination by a seasoned Crown attorney. He faltered slightly when confronted with the lack of evidence which might support his original theory that Mr. Titus was smoking in the hallway. He would not admit that the case simply did not yield the evidence he expected and that he may well have been wrong about Mr. Titus’ breach of the TTPA. That however does not meaningfully detract from his overall credibility. I therefore do not completely reject his evidence that he smelled marijuana as he approached the stairs, and the smell grew as he approached the door.
Legal Issues
[37] In this case there is no question that a non-consensual application of force to Mr. Titus occurred. On its face the elements of the assault are made out. The issue in this case has been narrowed to the application of s. 25 of the Criminal Code. The Crown argues that the defence is not applicable in law because there is no air of reality to it, so it does not rise to the level where it can be considered by the trier of fact. The Defence argues that s. 25 is applicable and that it entitles Mr. Douglas to an acquittal.
[38] S. 25 provides a defence to persons involved in law enforcement when an assault is committed during the execution of law enforcement duties.
25 (1) Protection of persons acting under authority
Every one who is required or authorized by law to do anything in the administration or enforcement of the law (a) as a private person, (b) as a peace officer or public officer, (c) in aid of a peace officer or public officer, or (d) by virtue of his office, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
[39] There are three elements to the defence in this case: 1) a peace officer; 2) acting on reasonable grounds; and 3) using as much force as is necessary for the purpose. If all three elements are established then the accused has the benefit of that defence.
First element – A Peace Officer enforcing the law
[40] There is also no question in this case that the defendant Scott Douglas was a Peel Regional Police officer on March 25, 2019, and that he was in the 90 Orenda Court building on his way from a police interview, in full uniform with his partner PC Tingle. The first element of the defence is established. The parties focussed on the trial on the second and third elements, namely reasonable grounds and necessary use of force.
Second element – Reasonable Grounds
[41] The defendant claims that he had reasonable grounds to arrest Mr. Titus. His evidence is that he smelled marijuana from behind a closed door, and heard voices. He was empowered to enforce smoking by-laws in the building as well as TTPA violations, which included smoking in the public areas. The question to be decided is whether Mr. Douglas had reasonable grounds for purposes of his s. 25(1) defence.
[42] In submissions I asked what the test for reasonable grounds was when the defence looks to s. 25(1). It has a subjective and objective component. The question is whether reasonable grounds existed based on the facts known or available to the officer when he found that belief. The question is not whether the belief turned out to be correct, but whether it was reasonable at the time, see R. v. Montison, 2020 ONCJ 464, at par. 428, per Kelly J..
[43] When the defence seeks a remedy under s. 24 of the Charter it must first establish a Charter violation on a balance of probabilities in order to obtain a remedy. When the defendant resorts to s. 25(1), not as a Charter violation but as a legal defence he need not prove anything. The Crown always bears the burden of proof on each element of the offence. The defence has a persuasive burden. Once put into play, the Crown must disprove the s. 25(1) defence beyond a reasonable doubt. There is more to the analysis because the language of s. 25(1) is normally a legal test. Reasonable grounds is a legal threshold, not factual one, see R. v. Shepherd, 2009 SCC 35, at par. 20, but one which itself is dependant on findings of fact.
[44] There is some authority for the proposition that reasonable grounds to arrest is purely a legal test. That was the ratio from Alexander v. Halley, 2009 MBQB 228, at par. 40 see also Tymkin v. Ewatski, 2014 MBCA 4, at par. 62. I would approach that authority with caution because both Alexander v. Halley and Tymkin v. Ewatski were both civil cases of false imprisonment. In Alexander v. Halley the parties were expressly not relying on the Criminal Code (supra at par. 5). Lastly on civil cases of false imprisonment defendant police officers bear an onus of proof on their defence on the trial proper.
[45] The nature of reasonable grounds is relevant for the determination of the scope of the defence under s. 25(1) because if ‘reasonable grounds’ is purely a legal test then the defendant cannot rely on that section if he is labouring under a mistake of law, and Mr. Douglas’ defence in s. 25 must first pass a legal threshold. In other words, if Cst. Douglas was wrong about having reasonable grounds to arrest Mr. Titus does that matter?
[46] There is, however, authority for the proposition that a police officer may lawfully arrest a person under a mistake of law. In R. v. Tim, 2020 ABCA 469 the police officer arrested the Appellant because he saw him in possession of a pill which he believed to be Gabapenin. The officer believed Gabapentin to be an illegal drug. Search incident to that arrest found other contraband. As it turned out, Gabapentin is not a controlled substance under the Controlled Drugs and Substances Act.
[47] In Tim the Appellant claimed that an arrest for a non-existent law was a Charter violation. A majority of the Court found that an arrest based on an error of law was not an unlawful arrest because the arresting officer was basing his decision on an existing statute which simply did not apply in the circumstances. It was a mistake of law which was objectively reasonable, in good faith. That form of mistake does not make the arrest illegal, see Tim (supra) at paras 25 – 37. This fits with older authority that a peace officer executing an unlawful order still has the benefit of the defence in s. 25 (1) unless the order is manifestly unlawful, see. R. v. Finta, 1994 SCC 129, at par. 115. In her dissent Justice Veldhuis held that an arrest based on an error of law simply does not satisfy the object component required before an arrest is in law based on reasonable grounds. It is implicit in the dissent that depriving the objective grounds component of lawfulness tends to denude the reasonable grounds threshold of important normative content. In other words the test of reasonable grounds must have an objective component of a reasonable person standing in the shoes of the police officer, see R. v. Storrey, 1990 SCC 125, at par. 16. The law tends to import knowledge of the law into the objective standard. The majority opinion in Tim is inconsistent with that view.
[48] Tim is not binding on me, and I would approach the majority opinion with caution. A lawful arrest must have lawful grounds, which excludes the possibility of a mistake of law.
[49] With that established I have concerns about imposing an onerous threshold on any component of s. 25(1). There need only be an air of reality in order to be considered. Beyond that, the defence need only establish a credible basis for reasonable grounds in order to succeed on that aspect of the defence. That credible basis must be assessed on a modified subjective basis. It is not enough that the defendant officer believed himself that there were reasonable grounds. The reasonable grounds must incorporate a legal standard which is both correct in law, from the perspective of a reasonable person standing in the shoes of the defendant. The modified objective standard has been upheld in other Criminal Code defences, such as self-defence, see R. v. Khill, 2021 SCC 37, at par. 53.
[50] With that established I find that there is a credible basis to find that Cst. Douglas had reasonable grounds to act as he did, namely to arrest Mr. Titus. I would not find that the reasonable grounds was any more than that, but he has met the minimum threshold for that part of the defence. Cst. Douglas was not shaken in cross-examination on his smell of marijuana coming from the other side of the door. His evidence about smell is at odds with Mr. Titus, who denied that he was smoking anything. It is also not confirmed by any independent evidence such as a spent cigarette or marijuana butt.
[51] There is jurisprudence to support the proposition that smell of burnt marijuana alone cannot support grounds for a legal arrest for possession of marijuana. See R. v. Polashek, 1999 ONCA 3714, 118 O.A.C. 312 (C.A.), R. v. Boyd, 2013 BCCA 19, R. v. Thompson, 2013 ONSC 1527, at par. 166. Conversely, in R. v. Morris, 2013 ONCA 223, at par. 8 the Court found that there is no legal barrier to the use of smell evidence to support reasonable and probable grounds to arrest for possession of marijuana.
[52] Here, the offence is not possession of a substance that has been destroyed by ignition, as is the case with the older smell of burnt marijuana decisions. In this case the offence is smoking any substance in the common areas of the building. It is not a possession charge. It is a trespass charge about a prohibited activity. Cst. Douglas’ evidence was that the smell grew stronger as he approached the door, and he heard voices on the other side of the door. That latter fact was confirmed by the presence of Mr. Titus and Devon. The fact that there is no independent evidence to confirm Mr. Douglas’ evidence detracts from its weight, but the test for reasonable grounds is not the same as the exercise to establish a constitutional violation for purpose of a remedy under s. 24 of the Charter. He need only establish a credible basis for his reasonable grounds. At a minimum he has done that.
Third element – Did Cst. Douglas use necessary force?
[53] The evidence before me is that Cst. Douglas delivered a single punch to Mr. Titus’ head. That punch caused no apparent injury. The punch was delivered after Mr. Titus had been grabbed by Cst. Douglas in the process of attempting to arrest him and after Mr. Titus had swung around to face him, which Cst. Douglas had been trained to interpret as active resistance. Things happened quickly – in a matter of several seconds. Given the place of the encounter, namely on a ramp some height from the ground I find that Cst. Douglas’ decision to deliver one punch to Mr. Titus’ head was reasonable in the circumstances. He had been trained in the use of force and had no difficulty explaining how his training played out that day. His training was also explained by the expert witness Mr. Lawrence who opined that the use of force in this case was consistent with the training approved of by the Ontario government. There is no reason to diminish the weight of Mr. Lawrence’s evidence. He was straightforward in his evidence and there is no contradictory evidence against which his opinion can be compared. If we are to train police officers to deliver use of force, then officers are entitled to expect that making good on that training will not incur criminal culpability.
[54] The question in law starts with whether the arrest power was itself proper, particularly where arrest is not the only available legal remedy for an infraction under the Trespass to Property Act (TTPA), see Reverend Brother Walter A. Tucker & Michael J. Baldasaro v. Cadillac Fairview, 2005 ONCA 24579, at par. 18. Reverend Brother Tucker et al v. CF is a civil case where liability on the occupier turns on their lawful exercise of the arrest power.
[55] In this case there is no dispute that Peel Police, including Cst. Douglas, was empowered by the landlord of 90 Orenda to enforce the TTPA. This included smoking in the common areas which was a prohibited activity by the landlord and therefore a violation of the TTPA under s. 2(1) (ii). A peace officer enforcing the TTPA may arrest a person found in violation of the TTPA on reasonable and probable grounds, see TTPA s. 9(1). There is an additional arrest power under s. 10 of the TTPA where the person is in contravention of s. 2(1) the TTPA and has freshly departed the premises and refused to give their name. In this case Mr. Titus certainly made a fresh departure, but there is no evidence that he ever refused to give his name. Mr. Titus’ flight, the arrest and Cst. Douglas’ punch to his head happened before Mr. Titus was given an opportunity to identify himself. I find that s. 10 is inapplicable.
[56] Cst. Douglas’ evidence was that Mr. Titus took flight upon the door to the stairway being opened. This would have signalled that the continuation of the offence of smoking in the common areas was no longer continuing. It ended with flight. There is more to the analysis in my finding. On the facts available to Cst. Douglas Mr. Titus had been smoking in a common area. That was the subject of a previous complaint by the landlord. Mr. Titus’ flight prevented Cst. Douglas from detaining and therefore identifying the individual thought to have violated the TTPA. Cst. Douglas did not know the identity of Mr. Titus until after arrest, even if his arrest was not necessary to preserve evidence because any evidence of smoking was left behind the two men in the stairwell. None was ever found, but arrest was not necessary for that.
[57] With all that considered, Cst. Douglas had a credible basis to arrest Mr. Titus. His evidence that simply allowing him to run away would have been contrary to the rule of law is credible. Heavy handedness is not the test. The TTPA permitted an arrest under the circumstances, and Cst. Douglas chose to use his discretion that way instead of letting Mr. Titus run away.
[58] Police officers have been given some latitude in the execution of their duties. It is because they have a difficult job by any measure, and must enforce the law quickly, sometimes on minimal information. That was captured by the Supreme Court in R. v. MacKenzie, 2013 SCC 50, 303 C.C.C. (3d) 281, at par. 62:
Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met. Police officers are trained to detect criminal activity. That is their job. They do it every day. And because of that, "a fact or consideration which might have no significance to a lay person can sometimes be quite consequential in the hands of the police" (Yeh, at para. 53). Sights, sounds, movement, body language, patterns of behaviour, and the like are part of an officer's stock in trade and courts should consider this when assessing whether their evidence, in any given case, passes the reasonable suspicion threshold.
MacKenzie involved the application of the reasonable suspicion test, but the same dicta can be used when assessing whether an officer exercised the discretion to arrest on reasonable grounds or simply let the person run away.
[59] What is a necessary use of force therefore has a similar subjective/objective test which applies throughout the legal landscape of s. 25 of the Criminal Code, see R. v. Nasogaluak, 2010 SCC 6, at paras. 34 – 35, R. v. Reid, 2010 ONSC 701, at paras. 142 – 143. The police conduct is not measured against a standard of perfection, see R. v. Furlotte, 2012 ONCJ 509, at par. 110, rather the issue is whether the police use of force was proportionate necessary and reasonable in the circumstances, see Nasogaluak at par. 32.
[60] In this case I find that Cst. Douglas applied only one punch to Mr. Titus’ head. That punch caused no apparent injury. The punch was delivered after Mr. Titus had been grabbed by Cst. Douglas in the process of attempting to arrest him and after Mr. Titus had swung around to face him, which Cst. Douglas had been trained to interpret as active resistance. Things happened quickly – in a matter of several seconds. Given the place of the encounter, namely on a ramp some height from the ground I find that Cst. Douglas’ decision to deliver one punch to Mr. Titus’ head was reasonable in the circumstances. He had been trained in the use of force and had no difficulty explaining how his training played out that day. His training was also explained by the expert witness Mr. Lawrence who opined that the use of force in this case was consistent with the training approved of by the Ontario government. There is no reason to diminish the weight of Mr. Lawrence’s evidence. He was straightforward in his evidence and there is no contradictory evidence against which his opinion can be compared. If we are to train police officers to deliver use of force, then officers are entitled to expect that making good on that training will not incur criminal culpability.
[61] Mr. Douglas has established a credible basis for each element of s. 25(1) of the Criminal Code and is entitled to its benefit. He will be found not guilty.
Released: November 5, 2021 Signed: Justice Rose