ONTARIO COURT OF JUSTICE DATE: 2022 01 27 Toronto

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

CHRISTOPHER HUTCHINGS

Before: Justice Newton-Smith

Heard on: June 15, 16, 17, September 21, 22, 23, October 5, 6, November 5, 15 and December 8, 2021

Reasons for Judgment released on: January 27, 2022

Counsel: R. Shallow, for the Crown P. Brauti, B. Badali, for the defendant Christopher Hutchings

REASONS FOR JUDGMENT

Newton-Smith J.:

CONTENTS

I. Introduction .. 2 II. The Evidence . 3 A. The Video and Audio Evidence . 3 (i) The TTC Video Footage . 3 (ii) The Driver’s Call to Transit Control 6 (iii) The In Car Camera . 6 (iv) The Booking and Release Videos . 7 B. The Evidence of Chase Richards . 9 (i) Mr. Richards’ Evidence in Chief 9 (ii) The Cross-Examination of Mr. Richards . 11 C. The Evidence of Officer Kirkwood . 13 D. The Expert Evidence . 14 (i) The Use of Neck Holds/Neck Restraints – Mr. Butler 14 (ii) Use of Force – Mr. Federico . 17 E. The Evidence of Officer Hutchings . 18 F. The Evidence of the Bus Driver 21 III. Issues and Analysis . 23 A. The Police Power to Arrest and to Use Force . 23 B. The Issues to be Determined . 24 C. Analysis . 24 (i) The Defence Evidence . 25 (ii) Mr. Richards’ Evidence . 27 (iii) The Social Context 28 (iv) Was There a Lawful Arrest? . 30 (v) Was Officer Hutchings Use of Force Reasonable, Proportionate and Necessary? . 30 IV. Conclusion . 31 Released: January 27, 2022 . 31

I. Introduction

[1] Mr. Hutchings is a police officer with the Toronto Police Service. He has been charged with assault. The incident giving rise to the charge occurred on December 13, 2019. That evening, while on shift, Officer Hutchings and his partner, Officer Tanouye, responded to a call from a bus driver regarding a “disorderly male” on his TTC bus. They arrived on scene to find the bus out of service and containing only the bus driver and Chase Richards. Mr. Richards was the subject of the driver’s complaint. The incident giving rise to the charge occurred during the course of Officer Hutchings’ interactions with Mr. Richards on the bus. It is captured in its entirety on the bus camera. There is, however, no sound.

[2] The Crown called Mr. Richards, one of the uniform officers who arrived on scene to assist, and two experts.

[3] Mr. Hutchings testified in his defence. The bus driver also testified for the defence.

II. The Evidence

A. The Video and Audio Evidence

(i) The TTC Video Footage

[4] The TTC video is comprised of four cameras which cover most of the interior of the bus. The front of the bus is captured but the view of the driver is blocked by a wall behind his seat. There are 17 minutes of relevant footage. A copy of the TTC video synchronised with the police radio transmissions was prepared and made an exhibit. It captures what is happening on the bus simultaneously with the audio of the police dispatch.

[5] As the video begins the bus is relatively busy and most of the seats are occupied. The route is the 133 Neilson in northeast Scarborough. The riders are racially diverse.

[6] The relevant footage begins at a bus stop. Several passengers exit through the back door. Mr. Richards then enters through the back door. All of the rest of the passengers boarding the bus do so from the front door beside the driver.

[7] As Mr. Richards enters the bus the driver’s arm comes into view and he appears to be gesturing. This captures the attention of some of the passengers who look towards the driver and then back towards the back of the bus. Meanwhile Mr. Richards has sat down at the back of the bus.

[8] After the driver has gesticulated with his arm, and the other passengers start looking towards the back of the bus, Mr. Richards stands up and looks towards the driver. As he does that another passenger, a light brown skinned man, walks to the front of the bus and speaks with the driver. Mr. Richards sits down again. After a brief conversation with the driver the man walks back to his seat. Mr. Richards then gets out of his seat and walks up to the driver. It appears as though the man has indicated to Mr. Richards that it is he, Mr. Richards, that the driver wants to speak to.

[9] The front of the bus has the driver’s seat to the left which is concealed by a full wall to the rear and a half wall to the side. There is a yellow line on the floor of the front of the bus which extends backwards from the driver’s seat and then across the bus in an L shape just past the front door. It delineates the area between the driver’s seat and the front doors. Towards the interior of the bus, and behind the yellow line, is a white line. It separates the front of the bus where the driver sits from the rest of the bus where the passenger seating is.

[10] A series of photographs of the interior of the bus were put into evidence. One of the pictures shows a large round red sticker on the floor of the bus. It is just behind the white line and reads “Stay back from white line”.

[11] When Mr. Richards goes up to speak to the driver he passes over the sticker saying “Stay back from white line” and steps over the white line. He then steps over the yellow line and stands inside the yellow markings directly beside the driver. This interaction starts at around 1 minute and 15 seconds (1:15) into the video.

[12] The driver can’t be seen but Mr. Richards’ face is captured on the camera as he leans in towards the driver. He appears to be arguing with the driver and is gesturing towards him with his arms. The bus is stopped as this is going on and a few passengers board. At 1:52 the bus starts moving again and the driver can be seen pointing towards the floor several times. Mr. Richards continues standing there gesturing with his arms. At 2:10 the bus pulls over and stops. Mr. Richards is still standing inside of the yellow line. The attention of most of the passengers is on the confrontation between Mr. Richards and the driver.

[13] Mr. Richards turns his body to face the interior of the bus. He looks agitated and appears to be speaking forcefully. He continues to gesture with his arms and has a presto card in his hand. He is standing in such a way as to block the entrance to the bus and still appears to be arguing with the driver. Occasionally he directs his attention to the passengers on the bus and appears to be addressing them.

[14] At 4:23, after this has gone on for about 3 minutes, the passengers start standing up and moving towards the front of the bus. Mr. Richards is talking to the driver and pointing at the yellow lines on the floor. One of the passengers, who has come to the front of the bus, starts talking to the driver as Mr. Richards steps back towards the front doors. Some of the passengers start getting of the bus as Mr. Richards stands at the front doors. He appears to be talking to them as they disembark.

[15] At 5:19 the police dispatch relays that “TTC is reporting a bus holding with a male refusing to get off and also not letting the driver drive standing right beside him”. At this point Mr. Richards is standing at the entrance to the bus gesturing with his arms.

[16] At 6:41 Mr. Richards sits down in the seat directly behind the driver. This is the first time that he leaves the area beside the driver delineated by the yellow lines and moves back behind the white line. The remaining passengers get off. As they get off a young black woman, who appears to be angry, says something to the driver.

[17] At 7:38, as the last of the passengers exit, Officer Hutchings and Tanouye’s car pulls up in front of the bus. Mr. Richards stands up again and steps back into the area beside the driver bordered by the yellow line. He is smiling.

[18] At 7:45 Officer Hutchings steps onto the bus and stands on the ramp a level below Mr. Richards who is between him and the driver. His partner, Officer Tanouye, is just behind him outside the bus. Mr. Richards turns his attention to Officer Hutchings. Mr. Richards is very close to Officer Hutchings. The officers are in plain clothes.

[19] When he steps onto the bus Officer Hutchings’ attention first goes to the driver and then he turns to Mr. Richards. The camera shows Mr. Richards from behind and Officer Hutchings from the front. Officer Hutchings appears to be saying something and gestures towards the driver a couple of times. Mr. Richards’ arms move several times and he appears to be pointing or gesturing towards Officer Hutchings. From their body language and gestures it appears that a confrontation is occurring. This goes on for over 15 seconds until, at 8:04, Officer Hutchings grabs Mr. Richards jacket in the upper arm area and pushes him backwards.

[20] Officer Hutchings pushes Mr. Richards into the seat behind the driver and lets go of him. Mr. Richards immediately gets up moving towards Officer Hutchings who pushes him down again. Again Mr. Richards gets up and again Officer Hutchings pushes him back down. When Mr. Richards again, and now for the third time, gets up and moves towards Officer Hutchings, Officer Hutchings grabs him with his right arm and pushes him back down. This time he keeps hold of Mr. Richards. It is now 8:11. This encounter takes approximately 6 seconds.

[21] Mr. Richards is wearing a bulky coat which obscures Officer Hutchings’ hand. It is not possible to tell from the video exactly where Officer Hutchings hand is placed, but it is somewhere in the region of Mr. Richards neck or clavicle.

[22] As Officer Hutchings holds Mr. Richards down in the seat with his hand it is clear that Mr. Richards is speaking. Mr. Richards has his right arm spread out to his side and is gesticulating with it. At 8:17 Mr. Richards moves his lips in a way that looks like he is swearing at Officer Hutchings saying, “fuck you”. Throughout this encounter Mr. Richards continues speaking and gesturing with his right arm.

[23] At 8:30 Mr. Richards pulls out a presto card. Officer Hutchings tries to take the card from him but Mr. Richards won’t let him. As this is going on Mr. Richards pushes himself up against the side of the bus elevating himself above Officer Hutchings. Mr. Richards’ head is higher than Officer Hutchings’. They remain in this position for over 5 seconds until 8:47 when Officer Hutchings picks Mr. Richards up and takes him to the ground using his left arm at the front collar of Mr. Richards’ jacket and his right arm at the back of Mr. Richard’s left arm. He braces Mr. Richards’ fall with his right leg.

[24] When Mr. Richards hits the ground at 8:52 he is mostly out of the camera view. The view is also obscured by Officer Tanouye who throughout the encounter is just behind Officer Hutchings.

[25] Once Mr. Richards is on the ground Officer Hutchings secures Mr. Richards’ hands behind his back at what looks to be his beltline and pins them there with his knee. Both officers appear to be looking for handcuffs and then Officer Tanouye leaves the bus. It is now 9:11. Once Mr. Richards is secured on the ground the bus driver gets out of his seat and off the bus.

[26] As he’s lying on the ground Mr. Richards is kicking his feet. At 9:18 Officer Hutchings appears to be pointing towards the ground above Mr. Richards’ head and leans down as if to speak to Mr. Richards. At 9:36 Officer Hutchings again gestures towards the ground beside Mr. Richards head.

[27] At 9:40 Officer Tanouye comes back on the bus. He has a pair of handcuffs in his hand and is followed by two uniform officers. There is a female officer, Officer Kirkwood and her male partner Officer Kalonka. Officer Kirkwood hands Officer Hutchings a pair of handcuffs which he puts on Mr. Richards. The officers have a brief conversation while Officer Hutchings takes Mr. Richards’ identification and hands it to Officer Kirkwood. She then leaves the bus with Mr. Richards identification in hand.

[28] Mr. Richards is on the ground and can’t be seen very clearly. Officer Hutchings can be seen to stand up and move away from him. Mr. Richards appears to roll over and Officer Hutchings pushes him back over with his foot. Officer Hutchings then sits down in a seat and pulls Mr. Richards over. Officer Tanouye has his foot on the bottom of Mr. Richards’ legs. Officer Kalonka is calmly standing by. Officer Hutchings is breathing heavily as if recovering from an exertion.

[29] Mr. Richards appears to roll over again. Officer Hutchings leans down and pulls him over again. This time he puts his foot on Mr. Richards’ back. It is now 10:53. As he is sitting there with his foot on Mr. Richards’ back Officer Hutchings is breathing heavily and talking to the other officers. Officer Tanouye still has his foot on Mr. Richards’ legs.

[30] At 12:10 Officer Kirkwood comes back on the bus. At 12:47 Officer Hutchings lifts Mr. Richards up. Mr. Richards is laughing and smiling. He stands there while Officer Hutchings searches his pockets and appears to be talking to the officers. They all continue standing there for a few minutes talking.

[31] At 15:50 Mr. Richards is walked off the bus by the uniform officers who take him to their cruiser. Officers Hutchings and Tanouye get off the bus. As they stand outside the bus they are joined by the driver who has been waiting on the sidewalk.

(ii) The Driver’s Call to Transit Control

[32] The driver made two calls to transit control.

[33] The first time he reported that he “need[ed] a guy off the bus”. He explained that he had asked the male to leave but he refused. During the course of this exchange the driver reports that the male is “now leaving” and he was “good”.

[34] Shortly thereafter the driver made a second call. This time he reported, “I need this guy off the bus. I thought he was gonna be [inaudible] but he’s not”. When asked what the male was doing the driver explained, “well I asked him not to come in the back door, he did. Then he came up here and he won’t leave me alone while I’m trying to drive the bus. So I can’t drive”. The dispatcher responded “ok, I’ll get the police to you, ok?” and the driver said, “yes, thank you very much”.

(iii) The In Car Camera

[35] The ICC footage from Officer Kirkwood and Kalonka’s cruiser was put into evidence. It begins with Officer Kalonka placing Mr. Richards into the back of the cruiser.

[36] As he does so Officer Kalonka can be heard telling Mr. Richards to listen to him. His tone of voice is calm but firm. Mr. Richards responds, “I will listen to the lady”. Officer Kalonka tells Mr. Richards that he needs to listen to him as well. Officer Kalonka then starts to speak but is interrupted by Mr. Richards saying, “what am I being arrested for?”. Officer Kalonka tells Mr. Richards that he is trying to explain and says, “you were in custody prior to us arriving on scene, I am going to go and find out but right now I think it’s cause disturbance”. Mr. Richards interjects, “I paid, I showed my presto card and I paid. I got choked, he physically choked me can I ask a question, the bus cameras are working right?”. Officer Kalonka says I don’t know I will go talk to the driver.

[37] When Officer Kirkwood gets into the driver’s seat she says to Mr. Richards, “we got here late and you were already on the ground so I couldn’t tell you what happened”. Mr. Richards responds by asking Officer Kirkwood if she’s a law-abiding citizen and then asks her why she joined the police. Officer Kirkwood tells him, “to help people right”. Mr. Richards responds, “whatever is happening right now just like in the past you know is going to come back, all the illegal stuff, not saying you are a bad cop, but what was done to me”.

[38] Shortly thereafter Officer Kalonka returns and tells Mr. Richards that the allegation is cause disturbance and mischief and he will be transported to the station. Officer Kalonka then reads Mr. Richards his rights to counsel. Mr. Richards indicates that he understands and says that he would like to call a lawyer. After this Mr. Richards again asks about the cameras on the bus. Officer Kalonka assures him that he will get them. Mr. Richards tells Officer Kalonka that he has been pleasant. Throughout this exchange the officers are polite and respectful with Mr. Richards and he in return becomes polite and cooperative.

[39] Mr. Richards appears uninjured and does not make any request for medical attention or complaint of injury.

(iv) The Booking and Release Videos

[40] Mr. Richards is brought into the booking room by Officers Kirkwood and Kalonka. The staff sergeant is Sergeant Tobin.

[41] Officer Kirkwood reports to the Sergeant that Mr. Richards is being charged with cause disturbance and mischief. She recommends a level 3 search, explaining that Mr. Richards has previous charges that include assault with a weapon and assault police.

[42] Sergeant Tobin asks Mr. Richards if he understands what he is under arrest for. Mr. Richards begins to protest. When Sergeant Tobin tells him that he’s not asking if he agrees but only if he understands, Mr. Richards reluctantly agrees that he understands. Sergeant Tobin begins to ask for information about where Mr. Richards lives. In response Mr. Richards gestures towards Officer Kirkwood and tells the Sergeant to get the information from “her” because “she already wrote it all down”. Mr. Richards then tell the Sergeant that he has “already been beat up so you know what I mean can I see a doctor”. Sergeant Tobin says to Mr. Richards, “let’s get through the booking and we’ll see if its necessary”. Mr. Richards does not have any visible or apparent injuries.

[43] When asked about drugs and alcohol Mr. Richards tells Sergeant Tobin that he had a couple of beers that evening and smoked some weed. When asked about injuries Mr. Richards says, “He choked me out on the bus. I can hardly breath right now. It’s hard for me to [inaudible]”. Sergeant Tobin asks Mr. Richards where the injuries are and Mr. Richards says, “my throat, my neck and my wrist and my back and my ankle, my leg”. Sergeant Tobin stops Mr. Richards, saying “slow down, it’s a pen not a magic wand”. To which Mr. Richards responds, “a lot of people type faster than I talk”. Sergeant Tobin says, “I’m not a typewriter” and again asks Mr. Richards to list his injuries. Mr. Richards continues on, “and my hand is also numb, there’s no blood flowing through any of it… both hands are sore, and my lower back, don’t forget my neck”.

[44] Sergeant Tobin, in an increasingly irritated tone, says “that’s the first thing I wrote down, are you not paying attention?”. Mr. Richards says antagonistically, “I can’t see what you’re writing I’m so far away from you”. Sergeant Tobin sarcastically responds, “but your ears work right, I told you that’s what I wrote”. The tone continues on in this fashion with Mr. Richards responding, “not as well, one of them was down on the ground so probably not as well”. Which prompts Sergeant Tobin to say, “you’re not on the ground now so they work now right, I’ve got written down sore throat and neck, twice I’ve told you that”. At this point Mr. Richards asks Sergeant Tobin his name and says, “sorry Officer Tobin”.

[45] Sergeant Tobin asks Mr. Richards to continue with his injuries. Mr. Richards says, “and the back of my head, he threw me against the glass, the back of my head is sore”. By this time the tone between Sergeant Tobin and Mr. Richards has become increasingly rude. While the tone began with Mr. Richards being belligerent and antagonistic, rather than rising above it Sergeant Tobin quickly became sarcastic and condescending towards Mr. Richards.

[46] When Sergeant Tobin asks Mr. Richards, “what else” with respect to his injuries Mr. Richards says, “My leg, back of my left calf”. This causes Sergeant Tobin to say, “you’re just listing body parts, what are your injuries?”. Mr. Richards responds, “my foot hurts, my left foot especially, both of them hurt, the most severe pain is the left foot”. He then continues on, “both arms, both legs, my wrists, the trauma from being abused mentally”. Sergeant Tobin responds in an equally belligerent tone, “I think you’re being ridiculous”. They get into an exchange which ends with Mr. Richards saying, “I was in good health until I was in the presence of your officers and now I’m not in good health because I was physically and mentally abused”.

[47] Eventually Officer Kalonka interjects and says, “what he’s asking you is before tonight were you in good health”. This gets the booking process back on track.

[48] When Sergeant Tobin asks Mr. Richards if he has ever had any thoughts of suicide. Mr. Richards says, “What, excuse me, no I haven’t.” Officer Kalonka again interjects and tries to explain the question. This prompts Mr. Richards to say, “No I have never, oh maybe when I was fucking arrested and you guys tried to kill me”.

[49] Following a brief discussion about release Sergeant Tobin goes to speak to the arresting officers, Officers Hutchings and Tanouye. When he returns, Sergeant Tobin informs Mr. Richards that he might be a candidate for release and that they will do a level 2 search. The search is conducted at the booking desk. After the search Sergeant Tobin asks to look at Mr. Richards’ feet to see if there are any injuries. All three officers look at his feet and agree that they cannot see any injury or swelling. Mr. Richards continued to insist that his calf was sore.

[50] Sergeant Tobin then asks Mr. Richards to stand up so they can examine the back of his head. Mr. Richards gets up and starts exclaiming, “Oh come on man, come on, she stepped on my foot, Jesus she stepped on my toes purposely, god’s sakes”. Officer Kirkwood responds, “I did not”. Mr. Richards insists that he needs a doctor. Sergeant Tobin tells him that he’s not going to send him to a doctor because he can’t see any injuries. Mr. Richards is then escorted from the booking room.

[51] Later that evening Mr. Richards was released from the station on a Promise to Appear having been charged with cause disturbance and mischief. The only conditions of his release were that he not enter any TTC vehicle and not possess any weapons. A different sergeant was present when Mr. Richards was being released. The sergeant was pleasant and polite with Mr. Richards, who in turn was also polite and cooperative. There was no further discussion of injury or requests for medical attention.

B. The Evidence of Chase Richards

(i) Mr. Richards’ Evidence in Chief

[52] At the time of trial Mr. Richards was 40 years old. He came to Canada from Jamaica at the age of 14. He has a grade 10 education, a certificate in building maintenance and a forklift operator licence. He has 3 children. He has a criminal record which starts in 1998, contains 7 sets of entries and ends in October of 2019 with a finding of guilt for a charge of cause disturbance. He is black.

[53] Mr. Richards testified that on the day in question he got on the bus by entering at the rear. He tapped his presto card and sat down with his earphones on. Shortly thereafter a fellow passenger told him that the driver wanted to speak with him. Mr. Richards got up and went to the front of the bus to speak with the driver. He testified that he said to the driver, “what’s the problem” to which the driver responded, “you got on at the back”. Mr. Richards testified that he told the driver that he had paid with his presto card and tapped it again to show that he wasn’t cheating.

[54] According to Mr. Richards, the driver “did not accept that” and told Mr. Richards that he didn’t want to ride with him because he smelled like cigarettes. Mr. Richards testified that he told the driver that he wouldn’t be standing beside him so his smell wouldn’t be a bother for him. Two passengers approached and one of them asked what the issue was. Mr. Richards responded by taking out his wallet and showing the man that he had sufficient funds. He again tapped his presto card to prove that he wasn’t cheating. According to Mr. Richards, at this point the driver announced that the bus was going out of service and everyone should get off.

[55] Mr. Richards testified that after the bus went out of service the driver told him to get out of his personal space. In his evidence Mr. Richards explained that the driver was referring to the yellow line which Mr. Richards referred to as his “safety barrier”. According to Mr. Richards this was the first time that the driver had mentioned anything about his personal space.

[56] Mr. Richards testified that he “couldn’t figure out why” the driver put the bus out of service.

[57] As the passengers were exiting the bus Mr. Richards told them that he hadn’t done anything, and that the driver had his own agenda, maybe it was ignorance or racism. Mr. Richards testified that he had no explanation for what was occurring other than the colour of his skin. According to Mr. Richards, one of the passengers, a woman, called the driver a “fucking piece of shit” and gave him the finger as she exited the bus.

[58] Mr. Richards testified that he remained on the bus because he was a young black man and he didn’t want to be accused of cheating and leaving the scene.

[59] This was not Mr. Richards’ first experience with a bus being put out of service on his account. He testified that years ago the “same thing” had happened. According to Mr. Richards, on the previous occasion he had paid $2.25 instead of $2.50. Mr. Richards testified that the bus driver made everyone get off the bus because he didn’t want to travel with him. On that occasion TTC constables came and Mr. Richards testified that he was issued a receipt for the $2.25 that he had paid.

[60] Mr. Richards testified that on the evening in question he was expecting TTC constables to come like on the previous occasion. However, this time he heard over the driver’s radio that it was the police who were on their way and so he sat down to wait for them.

[61] A few minutes later a car pulled in front of the bus and two plain clothes officers got out. Officer Hutchings boarded the bus with his partner behind him. Mr. Richards testified that he knew that they were police officers, although it was his evidence that they never identified themselves.

[62] According to Mr. Richards, as Officer Hutchings boarded the bus he said to the driver, “is this the motherfucker who is causing the problem?”. Mr. Richards responded directly to Officer Hutchings, saying, “I am not a motherfucker because I paid my fare”. It was at this moment, according to Mr. Richards, that Officer Hutchings grabbed him by the throat and threw him in the corner. Mr. Richards testified that he was then tackled to the ground where Officer Hutchings put a knee to his back and twisted his arms around.

[63] When the Crown played the video for Mr. Richards and asked him to narrate what was happening Mr. Richards added more detail. He testified that after he told Officer Hutchings that he wasn’t a “motherfucker”, Officer Hutchings first shoved him a couple of times pushing him backwards before grabbing him by the neck. Mr. Richards testified that Officer Hutchings had his hand around his throat and was choking him so he couldn’t breath. He told Officer Hutchings that he didn’t do anything and he couldn’t breath.

[64] Mr. Richards testified that, “they don’t believe you when you’re talking so he continued to choke me”. According to Mr. Richards, he just put his hands up in self defence and stood there while the officer cornered him like an animal and treated him like a dummy.

[65] He testified that he pulled out his presto card to show Officer Hutchings. However, when Officer Hutchings tried to take the card from him Mr. Richards refused to let him have it. His explanation was that Officer Hutchings had never asked him if he could see proof of payment and it was his property. He told Officer Hutchings to “fuck off”.

[66] Mr. Richards testified that he was sitting down when Officer Hutchings forcefully picked him up, sideways slammed him with his leg and tackled him to the ground.

[67] As he reviewed the portion of the video where Officer Hutchings had him on the ground, Mr. Richards exclaimed, “this is the best part. This is when, after he tackled me to the ground basically he kneeled into my back, like my upper back, and while his best friend or his partner stood on my lower legs”.

[68] Mr. Richards testified that he was frothing at the mouth and lifted up his head to spit on the ground. When he spat it was all just foam and Officer Hutchings told him, “that’s another charge”. He testified that he was kicking because of the pain of Officer Hutchings’ weight which was on his upper back, right above his shoulder blades and close to his neck.

[69] Mr. Richards testified that after the abuse Officer Hutchings decided to rest a foot on his back and take a pose. Officer Hutchings then took his wallet and went through it. According to Mr. Richards, as he did this Officer Hutchings was talking “smack” to him.

[70] After the uniform officers arrived and he was picked up off the ground Mr. Richards testified that he asked Officer Hutchings if he was Italian. His explanation for asking about Officer Hutchings’ ethnicity was that he “looked Italian”. Mr. Richards testified that after Officer Hutchings told him that he was Italian, Mr. Richards told him that he shouldn’t be a police officer.

[71] It was Mr. Richards’ evidence that Officer Hutchings never told him that he was under arrest. According to Mr. Richards it was not until he was placed in the cruiser that the uniform officers told him that he was under arrest for causing a disturbance. He asked them if the cameras on the bus were working because he knew that the cameras would show that he wasn’t causing a disturbance.

[72] Mr. Richards testified that he always got on at the back of the bus without incident, and believed that it was fine to do so because there was a presto machine at the back entrance.

[73] When asked by the Crown if he understood why this had happened to him, Mr. Richard’s responded, “No, I assume because I am a black man”.

(ii) The Cross-Examination of Mr. Richards

[74] In his examination in-chief Mr. Richards testified that that evening he had been coming from dinner with his girlfriend and was on his way to see his “buddy” when he got on the bus. In cross-examination Mr. Richards agreed that he had not in fact been with his girlfriend prior to getting on the bus. Rather he had been at a bar before with friends, had a beer or two and smoked a few joints.

[75] Throughout his evidence Mr. Richards repeated that he had paid his fare and was being wrongly accused by the bus driver. When it was put to him in cross-examination that the driver had said to him, “this has nothing to do you with not paying” Mr. Richards responded, “false”. When it was put to him that the driver had said to him, “just so you know you can’t enter through the back doors”, Mr. Richards again responded “false”. The cross-examination went on in this vein for some time. Eventually defence counsel put to Mr. Richards, “you have gone on and on and on about that you paid the fare and you were wrongfully accused of not paying the fare.” Mr. Richards responded, “Yes, I was. And that’s why I end up getting beat up and, charged, falsely, because I paid where there’s a presto machine”.

[76] Mr. Richards denied getting angry with the bus driver or raising his voice. When it was put to him that he looked angry and upset with the driver on the video, Mr. Richards responded that he was “disgusted”.

[77] Mr. Richards testified that he never knew, until he was being cross-examined at trial, that standing in front of the white line while a bus was moving was not allowed. He agreed that the driver had told him to get behind the white line, but denied that the driver told him that it was because he couldn’t drive the bus while Mr. Richards was in front of the white line. According to Mr. Richards, he did move back when the driver told him to.

[78] Mr. Richards admitted that when the police arrived he was smiling, but denied that he was looking to create conflict with the police.

[79] Mr. Richards denied that Officer Hutchings had ever asked him to step back, or that he had sworn at the officer when he got on the bus. He denied that there was any exchange between himself, Officer Hutchings and the bus driver other than Officer Hutchings saying, “is this the motherfucker causing a disturbance?”. According to Mr. Richards, as soon as he responded, “I ain’t no motherfucker causing a disturbance” he was shoved into the chair and choked by Officer Hutchings.

[80] In cross-examination Mr. Richards denied that he was trying to gather spit as Officer Hutchings held him up against the seat. According to Mr. Richards, the hand at his throat and neck is what caused him to “foam up”. He agreed that he spat on the floor twice when Officer Hutchings had him down on the ground.

[81] Mr. Richards testified that throughout the incident he was compliant with Officer Hutchings and was not resisting or yelling and swearing. Although at other times in his evidence he agreed that swore and said “fuck you” to Officer Hutchings.

[82] When asked why he appeared to be smiling and laughing on the video when the officers brought him to his feet, Mr. Richards responded that it was a “painful smile”, and that he was laughing because he was relieved to be up from the ground. He then described himself as “grimacing in pain” not laughing. Later he again agreed that he was laughing but testified that he was, “just laughing at the verbal harassment that they were giving”.

[83] The booking video was put to Mr. Richards in cross-examination. He was asked what he was referring to when he told the officers, in response to being asked if he had ever had suicidal thoughts, “maybe when I was fucking arrested and you guys tried to kill me”. At first Mr. Richards testified that he could not recall having said this. Then he testified that he couldn’t recall what incident he was referring to. Then he said that he must have been referring to the T-Bone incident.

[84] The last entry on Mr. Richards’ criminal record relates to an incident referred to as the T-Bone incident. It occurred 18 months prior to this incident and resulted in a conviction for cause disturbance. Mr. Richards agreed that he had been filming a person who was sitting in his car outside of the T-Bones restaurant, that the police had come, there was an incident and he was arrested and charged. It was Mr. Richards’ evidence that he had been filming this person because he believed that he was an undercover police officer who had been following him. There was extensive cross-examination with respect to this incident during which Mr. Richards made no mention of the police trying to kill him. When asked why, Mr. Richards explanation was that “maybe” the police had tried to kill him, “not definitely”.

[85] Mr. Richards also could not recall having accused Officer Kirkwood of purposely stepping on his foot during the booking process, although he conceded that this was depicted on the booking video.

[86] After the incident Mr. Richards filed a complaint against the driver with the TTC. When that didn’t go anywhere Mr. Richards went to the mayor’s office. He testified that he received something “around” $39 000 from the mayor’s office. According to Mr. Richards, he received this money after telling them that he had paid the fare and been wrongly accused.

[87] In cross-examination Mr. Richards denied that he was still looking for financial compensation. However, an email was then put to him. The email had been sent by Mr. Richards to Mr. Brauti. Mr. Brauti is Officer Hutchings’ lawyer, and the person who was cross-examining him. The email was sent shortly after Mr. Richards’ first day of testifying. In the email Mr. Richards was looking for counsel to assist him with getting a larger settlement than he had already received. He wrote that he thought his lawyer should have gotten him more money, that the case was now on-going and it was getting a lot of press. Links to press articles were included in the email. Mr. Richards agreed that he had sent the email although didn’t realise that Mr. Brauti was actually Mr. Hutchings’ lawyer. He conceded that he was looking for more money, but denied that it was “about the money”.

[88] In re-examination the Crown asked Mr. Richards if he had ever used the name Trayvon Martin when talking to the police that evening. Mr. Richards responded, “absolutely not”. When asked how he was so sure Mr. Richards explained that he recalled talking about George Floyd and how George Floyd had been kneeled on just like he was and ended up dying.

[89] It was agreed that the George Floyd incident happened in 2020, after this incident.

[90] When asked in cross-examination about the conviction for assault peace officer on his record, Mr. Richards testified, “just like your client made up a story and gave me false charges it’s the same thing that’s basically what happened”.

C. The Evidence of Officer Kirkwood

[91] Officer Kirkwood joined the Toronto Police Service in 2007. At the time of the incident she was a police constable, as was her escort that evening Officer Kalonka.

[92] That evening she and Officer Kalonka heard the call over the police radio with respect to a disorderly male refusing to get off a TTC bus. They headed to the scene. When they arrived Mr. Richards was being held on the floor of the bus by Officer Hutchings.

[93] Officer Kirkwood described Mr. Richards as being in the prone position with his hands behind his back. Officer Hutchings had his knee to the small of Mr. Richards’ back. Officer Kirkwood was asked for her handcuffs which she gave to Officer Hutchings. She was then handed a piece of Mr. Richards’ identification. Officer Kirkwood testified that while Officer Hutchings executed the arrest she went back to her scout car to “run” Mr. Richards.

[94] When Officer Kirkwood returned to the bus, Officer Hutchings was seated and out of breath. Mr. Richards was still on the ground and was very angry and agitated. Officer Kirkwood testified that he was talking and swearing. She described him as aggressive. She testified that the officers were telling Mr. Richards to calm down and relax so that they could stand him up. They were concerned that in his current state Mr. Richards would hurt himself or one of the officers. After a brief discussion it was decided that she and Officer Kalonka would take Mr. Richards to their scout car.

[95] When Mr. Richards was first picked up from the floor of the bus he was smiling and laughing. Officer Kirkwood described him as cocky and “in their face”. She testified that he made reference to the Trayvon Martin case and told the officers that he was going to sue them. As she and Officer Kalonka walked him off the bus Mr. Richards calmed down.

[96] Once he was secured in the car Officer Kirkwood described Mr. Richards as fairly quiet and just wanting to know if there were cameras on the bus. Officer Kalonka went back to the bus to find out exactly what the charges were. After he returned and read Mr. Richards his rights to counsel they headed to the station. As they were starting off Officer Kirkwood asked Mr. Richards if he was ok and he responded, “I’m good”. He did not make any complaint of injury until they were at the station and he was being booked by Staff Sergeant Tobin.

[97] Officer Kirkwood testified that at one point during the booking process her foot grazed Mr. Richards’. She described it as “barely a touch” and entirely unintentional. Mr. Richards accused her of intentionally assaulting him which Officer Kirkwood testified was “entirely false”.

[98] Officer Kirkwood testified that she did not see anything that evening that lead her to believe that Mr. Richards was in any kind of jeopardy or medical distress.

D. The Expert Evidence

(i) The Use of Neck Holds/Neck Restraints – Mr. Butler

[99] The Crown called Chris Butler, an expert in police use of force. Mr. Butler was qualified to give expert evidence in, “the use of neck holds/neck restraints and associated issues in the context of use of force training and instruction for police officers in Canada”. He gave evidence with respect to various kinds of neck holds and restraints. He also gave evidence with respect to the use of force model used to train officers. Throughout the course of his evidence he also reviewed the TTC video.

[100] Mr. Butler testified that police use of force is “never pretty” but can be necessary. What matters when it comes to police use of force is the principle for using the force and whether it’s proportionate.

[101] With respect to use of force training, Mr. Butler testified that officers are trained to assess, plan and act in a continuous cycle. They are also taught that time and distance are essential for safety. A reactionary gap of at least two arms’ length between the officer and the individual creates time and distance. This is why officers are trained to routinely tell people to back up. Creating distance between the officer and the subject can make the situation safer and assist with de-escalation.

[102] Mr. Butler explained that stabilising and tactically controlling the scene are absolute pre-requisites to de-escalation. De-escalation is an essential component to use of force training.

[103] Officers are trained that once a person is arrestable the officer can make physical contact with the person to take control. Physical contact, or use of force, can also be appropriate where a person becomes assaultive. A person is considered assaultive if their behaviour leads the officer to believe that an assault is imminent.

[104] Officers are trained to look for physiological cues that can signal that an assault may occur. For example, anger, not following the direction of the officer, coming back into the officer’s space after being asked to move back, body language and tone are cues that a person may become assaultive.

[105] If there is a concern that an arrestable person is becoming assaultive officers are taught to place themselves in a superior tactical position. Mr. Butler described the situation where a person in custody attempts to rise above the officer as creating a “tactically very difficult situation” for the officer. He also testified that spitting creates very serious concerns for officers, and that it can be appropriate for an officer to attempt to “ground” a subject where there is a concern of spitting.

[106] Mr. Butler testified that officers are taught that, like a child with a tantrum, a person who is angry and physically aggressive may eventually burn themselves out. Telling a subject that they will be allowed to stand up once they calm down is common and appropriate in police training.

[107] With respect to neck restraints, Mr. Butler testified that there are two broad categories, respiratory and vascular. The former blocks the subject’s ability to breathe, the latter does not.

[108] Having watched the video Mr. Butler testified that he could not see any evidence of a vascular neck restraint being used.

[109] A respiratory neck restraint collapses the trachea and prevents air from travelling through. It is also referred to as a choke hold.

[110] When a respiratory neck restraint is employed, pressure is applied to the anterior portion of the throat which blocks a person’s ability to breathe. Officers are taught to never intentionally apply a respiratory neck restraint.

[111] Mr. Butler testified that respiratory neck restraints are also antithetical to two key elements in policing - de-escalation and compliance. This is because fighting to recover the ability to breath is an automatic response to having one’s airway blocked, and fighting is not the goal of de-escalation or compliance.

[112] Mr. Butler also gave evidence about another use of force technique, known as the clavical notch technique. Pressure is put on the upper torso where the clavical joins at the top of the sternum. This can be achieved by placing a hand at the base of someone’s throat and applying pressure. There is a nerve bundle in the jugular notch where the clavical bones meet. Inserting a digit such as a thumb into the jugular notch causes pain, the automatic response to which is for the subject to back away.

[113] Mr. Butler testified that the clavical notch technique is a legitimate use of force technique taught to officers for use in de-scalation and gaining control. It is a pressure point control technique that uses pain compliance. It is not a neck restraint or a choke hold. It does not cut of a person’s airway.

[114] Mr. Butler was taken through the TTC video.

[115] Watching the video at the point where Officer Hutchings had his hand near Mr. Richards throat, the point at which Mr. Richards testified that he was being choked, Mr. Butler testified that it was impossible from viewing his hand placement alone to tell whether Officer Hutchings had his hand and thumb applying pressure in a clavical notch technique or whether his hand was higher up in a respiratory choke hold. It was also possible, Mr. Butler testified, that Officer Hutchings simply had the palm of his hand on Mr. Richards clavicle applying pressure force. Which itself is another legitimate use of force technique.

[116] Mr. Butler testified that the video could provide other evidentiary clues as to what use of force technique was being used by the officer.

[117] When a person’s airway is obstructed they react by fighting to breathe and grasping at their neck. It’s a reflexive reaction to being choked. Mr. Butler testified that the fact that Mr. Richards had his hands out to his sides was “very strong evidence” that he was not being subjected to a respiratory choke hold of any kind.

[118] Another telltale sign of a respiratory choke hold is the inability to talk. A person whose airway is obstructed would not be able to yell. Mr. Butler testified that the fact that Mr. Richards was clearly verbalising something was also inconsistent with a respiratory choke hold.

[119] When shown the portion of the video where Officer Hutchings grounded Mr. Richards, Mr. Butler described the technique used as a “very standard balance displacement take down”. He testified that officers are taught to immediately pin the subject to the ground so that they cannot move with weight to either their hips or the back of the scapula, the back belt area, to prevent the person from being able to quickly flip over.

[120] Mr. Butler explained that prolonged weight force on the diagrammatic area can impair breathing and lead to positional asphyxia and so officers are taught to place their weight in the subject’s hip area. He testified that pinning someone in their lower torso is consistent with training and also makes it less likely that they will be able to spit on the officer. Similarly, resting a foot on someone’s shoulder is less likely to cause positional asphyxia than kneeling on them.

[121] Mr. Butler testified that Officer Hutchings use of his foot to keep Mr. Richards static could be an appropriate use of force to secure Mr. Richards and to prevent himself from being spat on.

(ii) Use of Force – Mr. Federico

[122] Mr. Federico is the former deputy chief of police. He retired after 45 years with the Toronto Police Service, having served in all ranks of the force. He was qualified to give expert evidence with respect to use of force in the Toronto Police Service.

[123] Mr. Federico gave the following evidence.

[124] Officers are taught that they are permitted to use force where reasonable and necessary.

[125] Force is only justified if it is connected to the necessary objective and not excessive. Whatever force an officer uses must be for a lawful objective and must be proportionate. Officers are not taught to use the most minimal force, they are taught to use reasonable force. What is important is that the officer be able to articulate why the level of force used was reasonable.

[126] Situations are dynamic and officers are expected to adapt to changing circumstances.

[127] Officers are trained to keep distance between themselves and the subject where possible. This is known as the reactionary gap. It allows the officer to react and take the opportunity that distance creates. It increases safety.

[128] The overarching principle is that officers take actions to ensure the safety of the people that they are dealing with.

[129] The officer’s individual perception is critical, but actions must be objectively reasonable and justifiable.

[130] Officers are trained that they can go “hands on” when someone is arrestable.

[131] Officers are taught to handcuff detainees to the rear. Often the only way to do that is to get the person onto the ground face down and cuff them to the back.

[132] Officers are taught that there is a risk of positional asphyxia when people are placed face down on the ground. They are instructed to be alert to the symptoms such as difficulty breathing, pain and expressions of complaint.

[133] While officers are instructed to get the individual off of their front as soon as possible, they are also taught not to do so until the situation is under control. It is recommended that uncooperative and resisting individuals be kept in the prone position.

[134] Where a person is yelling, swearing and carrying on a coherent dialogue there is no suggestion of positional asphyxia. When someone is brought to their feet after suffering from positional asphyxia it would not be typical that they would be smiling and laughing, rather a period of recovery would be expected.

[135] An officer’s decision to use force is defensible if it is based on objectively reasonable grounds. Officers know that whenever force is used they will be called on to explain why it was reasonable and necessary.

E. The Evidence of Officer Hutchings

[136] Officer Hutchings became a police officer in 1996. He rose through the ranks and in December of 2019 held the rank of detective in the Criminal Investigation Bureau at 43 division.

[137] On the night in question he was working a call-back shift. A call-back is an extra shift usually filled by constables, that can be taken by a supervisory officer. Officer Hutchings and his friend Officer Tanouye had volunteered for the shift to earn some extra money for Christmas.

[138] The shift started at 6 pm. They were in plain clothes and had been assigned a rental car rather than a scout car. Their first call of the evening was to the incident with Mr. Richards. The dispatcher informed them that a TTC bus was holding with a disorderly male who was refusing to get off, not letting the bus operator drive and standing right beside him.

[139] Officer Hutchings testified that in his experience TTC drivers were usually pretty good at vetting out when they needed the police and when not, so he considered a call to an unfolding incident on the TTC to be “elevated”.

[140] As they pulled up in front of the bus Officer Hutchings could see people running from the bus and passengers getting off. As he approached the bus Officer Hutchings could see Mr. Richards, the last remaining passenger, stand up. He was smiling. Because of this Officer Hutchings at first assumed that Mr. Richards was just getting off the bus like the rest of the passengers.

[141] Officer Hutchings testified that when he stepped onto the bus he introduced himself as Toronto Police. As he did so he was looking around for the individual that was the problem, expecting to see someone ranting and raving. Officer Hutchings turned to the driver and asked, “who’s the problem?”. The driver pointed at Mr. Richards and said, “he’s the problem”.

[142] Officer Hutchings testified that at this point Mr. Richards was “arrestable” for mischief. His grounds were based on the information as relayed by dispatch that the driver had requested assistance with a disorderly male who was refusing to let him drive the bus. That the driver had identified Mr. Richards as being the problem. And that Officer Hutchings could clearly see that the bus was out of service and the passengers had been forced to disembark and their journey interrupted on a cold December evening. Officer Hutchings testified that this information gave him reasonable and probable grounds to arrest Mr. Richards for mischief.

[143] Once the driver identified Mr. Richards as the problem Officer Hutchings testified that he suddenly realised that in his hasty approach to the bus he had put himself in a tactically bad situation. He was standing on the ramp in very close proximity to Mr. Richards, who was elevated above him and between him and the driver. Officer Hutchings did not have a “reactionary gap”, and Mr. Richards, being somewhat elevated, was in a tactically superior position. Officer Hutchings testified that he immediately realised that the only way to make the situation safe for himself and the bus driver, who was trapped in his seat, was to have Mr. Richards step back. And so he asked Mr. Richards to please step back.

[144] In his evidence Officer Hutchings described what happened as follows, “from the time the bus driver pointed at him and the time that I asked him to step back, he went from a smiling individual to an angry individual and as I’m asking him to step back, he is also responding to the bus driver and saying, “I’m not the motherfucking problem”. So now its gone from smiling, in an instant, to angry.”

[145] Officer Hutchings testified that from his training, and his experience as an officer, he could see where this was going. In an attempt to de-escalate the situation, Officer Hutchings again asked Mr. Richards to step back, saying, “Sir, I just need you to step back, I will talk to you in a second, could you just step back for me.” Mr. Richards responded by saying “fuck you” in a loud and aggressive tone. Officer Hutchings testified that it was the kind of tone and demeanour that gave him cause for concern. For a third time, and with more authority in his voice, Officer Hutchings said, “Sir, if you don’t step back, I’m going to place you under arrest. You need to step back now”. This time Mr. Richards responded by bringing up his hand, jabbing his finger at Officer Hutchings and saying, “fuck you”. It was in this moment, Officer Hutchings testified, that he considered Mr. Richards to be assaultive and decided to go “hands on”.

[146] In an effort to gain compliance, and make the situation safer, he attempted to push Mr. Richards into the seat behind the driver. Officer Hutchings testified that as he did so he told Mr. Richards to sit down. However, Mr. Richards was resisting and Officer Hutchings ended up pushing him against the barrier beside the driver instead of into the seat. From there he managed to push Mr. Richards into the seat.

[147] Once Mr. Richards was in the seat, Officer Hutchings testified that he released his hand in order to allow Mr. Richards to sit down of his own accord. But Mr. Richards got back up again repeatedly and Officer Hutchings had to keep pushing him back down.

[148] At this point, when Mr. Richards was continuing to refuse to follow direction and physically resisting commands, Officer Hutchings testified that he took the flat of his hand and applied downward pressure to Mr. Richards clavical. He did not, he testified, have his hand around Mr. Richards neck and was not choking Mr. Richards. While his hand was on Mr. Richards’ clavical pushing him down, Mr. Richards was continuing to say “fuck you”. Mr. Richards did not, Officer Hutchings testified, say that he was being choked or that he couldn’t breath.

[149] As Officer Hutchings was pushing him against the seat, Mr. Richards elevated himself and pulled out his presto card. During this altercation Mr. Richards was continuing to swear and repeating that he had paid his fare. Officer Hutchings testified that he tried to take the presto card. He explained that he thought that this might indicate to Mr. Richards that he was willing to investigate the issue and would calm him down. However, Mr. Richards refused to let Officer Hutchings have the card and continued to elevate himself. Officer Hutchings testified that he heard Mr. Richards clear his throat as if to spit and decided that the safest thing to do would be to ground Mr. Richards.

[150] Once he had guided Mr. Richards to the floor, Officer Hutchings testified that he put his knee on Mr. Richards’ back at his beltline and brought his hands behind his back in order to handcuff him. It was at this point that Officer Hutchings realised that he had left his handcuffs in the car. Officer Tanouye, who was standing by, had also left his handcuffs in the car and went to get them.

[151] Officer Hutchings testified that while Mr. Richards was on the floor he spat twice. When he did this Officer Hutchings pointed at the spit and said to Mr. Richards, “come on man, now you’ve just put this bus out of order it needs to be decontaminated”.

[152] When Officer Tanouye returned the uniform officers were behind him. Officer Hutchings took Officer Kirkwood’s handcuffs and cuffed Mr. Richards. After he stood up Officer Hutchings put his foot on Mr. Richards sleeve to try to prevent him from rolling over. He did this because he didn’t want Mr. Richards to spit on them. However, Mr. Richards was able to immediately pull away and so Officer Hutchings decided to sit down and hold him down with his foot.

[153] Watching the video Officer Hutchings testified that he thought that this looked awful, and he understood why Mr. Richards thought that he was being used as a footstool. He explained that he was out of breath and wearing a police belt that prevented him from bending over. Using his foot to control Mr. Richards had seemed like the best option at the time.

[154] Officer Hutchings testified that Mr. Richards was not complaining that he was injured or unable to breath and continued to rant and swear. He kept Mr. Richards on the ground waiting for him to wear himself out and calm down. Officer Hutchings testified that once Officer Kirkwood started talking to him Mr. Richards calmed down enough that they could stand him up.

[155] When they stood him up Mr. Richards was smiling. He asked Officer Hutchings if he was going to be charged. Officer Hutchings testified that he said, “Of course. Like you just displaced a full bus of people out into the streets on a December night and contaminated the bus and made the driver fearful. You think you’re not getting charged? Of course you are.”.

[156] In response Mr. Richards asked Officer Hutchings if he was Italian. Officer Hutchings said “yeah”, and Mr. Richards said, “well then you don’t deserve to be a policeman”. Officer Hutchings testified that at this point Mr. Richards was getting into “stupid stuff” and he began to wonder if Mr. Richards had mental health issues.

[157] Officer Hutchings testified that the decision was made to take Mr. Richards back to the station so that he could be released on conditions preventing him from going back onto TTC property and causing more problems that evening.

[158] It was Officer Hutchings evidence that throughout the incident he was following his training and attempting to deal with a dynamic situation professionally, quickly and without injury to anybody. He testified that he felt that the situation went as well as it could have given Mr. Richards’ lack of compliance, and that upon reflection he had been unable to think of a better way to handle it.

F. The Evidence of the Bus Driver

[159] Frederick Hickey was driving the bus that evening. At the time Mr. Hickey had been driving buses for the TTC for 21 years. Throughout his career he had encountered many difficult passengers. He testified that while it was not uncommon for him to have to ask people to leave the bus, it was very rare for him to have to call police to have a passenger removed.

[160] At around 8:30 pm that evening Mr. Richards boarded his bus at the rear. Mr. Hickey called for him to tell him not to do that. Mr. Hickey testified that it was his practice to inform passengers of the rules. He had no intention of telling Mr. Richards to leave the bus, he simply wanted to inform him of the rule.

[161] Mr. Hickey testified that passengers are only allowed to board the bus at the back from subway stations. Several months prior to the incident he had verified this rule with the TTC to ensure that he was enforcing the rules correctly. He was informed by the TTC that the presto readers at the rear entrance were there for back up purposes only.

[162] When Mr. Richards came up to the front to speak to him, Mr. Hickey explained that he wasn’t allowed to enter from the rear doors. Mr. Hickey testified that Mr. Richards started arguing with him saying that he can come in any door that he wants, that there was a presto machine at the back and he has a right to use that door if he wants to.

[163] Mr. Hickey testified that he never accused Mr. Richards of not paying his fare. It was his evidence that that simply was not the issue. He was only trying to inform Mr. Richards of the rule forbidding rear boarding.

[164] Mr. Hickey testified that Mr. Richards continued to argue and would not leave him alone. He explained to Mr. Richards that he could not operate the bus if someone was standing in front of the white line. Mr. Richards refused to move.

[165] Mr. Hickey testified that Mr. Richards would not back away from him and wouldn’t listen. Mr. Richards kept arguing with Mr. Hickey, telling him that the white line rule was only for when the bus was busy. He then started telling Mr. Hickey that he was behind the yellow line. Mr. Hickey testified that no matter how much he explained Mr. Richards would not listen and was getting very close to him. He described Mr. Richards as becoming increasingly louder and more aggressive. Mr. Hickey called transit control to advise them of the problem. He thought this would cause Mr. Richards to back off.

[166] Mr. Hickey then decided to start driving the bus hoping that this would cause Mr. Richards to calm down and return to his seat. However, Mr. Richards remained and continued to argue. Mr. Hickey told him that if he didn’t move behind the white line, he was going to have to put the bus out of service.

[167] Mr. Hickey testified that he was almost at the end of his shift and the last thing that he wanted to do was to put the bus out of service delaying the end of his shift and inconveniencing all of the other passengers. However, Mr. Richards would not move away and was becoming more erratic and aggressive, swearing at Mr. Hickey. Mr. Hickey became afraid that Mr. Richards was going to physically assault him. He stopped the bus and called transit control again. This time they called the police.

[168] Mr. Hickey described himself as very afraid and desperate to get Mr. Richards away from him. In what he described as a moment of desperation, Mr. Hickey told Mr. Richards that he stank and to please get away from him. He testified that Mr. Richards had a strange odour to him, and while he normally would not comment on someone’s body odour, he was really panicking and saying anything to get Mr. Richards away from him.

[169] Mr. Hickey informed the passengers that the bus was going out of service. As the passengers disembarked Mr. Richards was telling them that it was his, the driver’s fault, and that he was an asshole. While most of the passengers were understanding, one woman called Mr. Hickey an “asshole” and told him “black lives matter”.

[170] Mr. Hickey testified that what happened had nothing to do with Mr. Richards being black.

[171] Mr. Hickey testified that he hoped that Mr. Richards would just leave but instead he sat down and waited. When the police pulled up in front of the bus Mr. Hickey told Mr. Richards that the police had arrived. Mr. Richards responded by saying “So? Fuck the police” and got up from his seat smiling.

[172] When Officer Hutchings got on the bus he asked Mr. Hickey what the problem was. Mr. Hickey told him, “I need this guy off the bus”. Mr. Hickey testified that Mr. Richards gestured towards him and said, “he’s the problem”. Officer Hutchings said to Mr. Richards, “let’s sit down and talk”. Rather than moving Mr. Richards said, “the driver’s an asshole”. According to Mr. Hickey, Officer Hutchings told Mr. Richards, “the driver’s a professional” to which Mr. Richards responded, “he’s not a professional he’s a fucking asshole”. Officer Hutchings then told Mr. Richards, “ok, well sit down, let’s talk”. Mr. Richards responded by saying, “fuck you”. Again Officer Hutchings said, “sit down” and again Mr. Richards said, “No, fuck you”.

[173] This back and forth lasted a short while with Officer Hutchings gesturing to Mr. Richards to sit down and Mr. Richards continuing to refuse saying “fuck you”.

[174] This was happening directly beside Mr. Hickey, with Mr. Richards slightly behind and out of his view. When Officer Hutchings moved towards Mr. Richards and pushed him they both went out of Mr. Hickey’s view. Mr. Hickey remained in his seat where he could hear the altercation but not see it. He testified that Mr. Richards was very loud yelling and swearing at the officers. Mr. Hickey did not hear anything that sounded like Mr. Richards was choking.

[175] Mr. Hickey testified that he was trapped in his seat. The situation was shocking to him. He described Mr. Richards as being “in the face of two police officers” causing him to be even more fearful than he had been previously. It was not until he could see in his rear view mirror that Mr. Richards was on the ground that Mr. Hickey got off the bus.

[176] Mr. Hickey waited outside of the bus. Mr. Hickey testified when Mr. Richards was eventually led of the bus in handcuffs he was smiling. As he walked past him, Mr. Richards looked Mr. Hickey straight in the face and smirked at him.

III. Issues and Analysis

A. The Police Power to Arrest and to Use Force

[177] Police officers are empowered to arrest a person where they have reasonable and probable grounds to believe that an offence is being, or has been, committed. Section 495(1) of the Criminal Code also empowers police to arrest a person who they believe, on reasonable grounds, is about to commit an offence.

[178] In considering the reasonable grounds threshold, and what is required for an officer to believe that someone is “about to commit” an offence, Chartier C.J.M of the Manitoba Court of Appeal held in R. v. Alexson (T.L.) 2015 MBCA 5:

Under s.495(1)a() of the Code , officers do not have to wait until a person overtly threatens or becomes very violent before intervening. The threshold is much lower. In Shepherd , the Supreme Court of Canada reiterated that the reasonable grounds threshold is relatively low. An officer “need not demonstrate a prima facie case” (at para.23).

Alexson , at para.26.

[179] Section 25(1) of the Criminal Code permits police officers to use force to make an arrest as long as the force used is proportional, reasonable and necessary: R. v. Nasogaluak, 2010 SCC 6 at para 34.

[180] In considering whether police use of force is authorised by section 25(1), Lebel J, writing for a unanimous Supreme Court of Canada in Nasogaluak, cautioned:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances.

Nasogaluak , at para 35.

B. The Issues to be Determined

[181] Officer Hutchings used physical force against Mr. Richards. If he was not authorised to do so he committed an assault.

[182] In determining whether Officer Hutchings’ use of force was lawful there are two issues to be decided. Firstly, did Officer Hutchings have reasonable and probable grounds for an arrest. Secondly, did he act reasonably and with as much force as was necessary in the circumstances.

[183] Determining these issues involves an assessment of the credibility of the witnesses. As useful as the video evidence is, it alone cannot determine the issues as it lacks two crucial elements. It does not depict what was said, and it does not depict Officer Hutchings’ thought process.

[184] What was said, and why Officer Hutchings did what he did, are essential issues to be determined in this case. As such, much turns on the credibility of Mr. Richards and of Officer Hutchings. I must therefore be guided by the W.(D.) principles: R. v. W.(D.), [1991] 1 S.C.R. 742.

[185] If I believe the evidence of Officer Hutchings I must acquit. If I am left with a reasonable doubt having heard the defence evidence I must acquit. If I do not accept the defence evidence, or it does not leave me with a reasonable doubt, I must consider whether the Crown has proven its case beyond a reasonable doubt.

C. Analysis

[186] While the TTC video is not determinative of the issues, it is a useful tool in assessing the credibility and reliability of the witnesses. The video shows what happened. The extent to which the evidence of the witnesses is consistent with the video, or inconsistent with it, is a measure of the reliability and credibility of their evidence.

[187] The expert evidence also provides useful guidance in assessing the credibility and reliability of the witnesses. Both Mr. Butler and Mr. Federico gave evidence with respect to how police officers are trained in the use of force. The extent to which Officer Hutchings’ actions and evidence are consistent with that training is a significant factor in assessing his decision to use force, and the manner in which he used it.

[188] Mr. Butler also gave evidence with respect to how choking affects a person. The extent to which Mr. Richards’ actions on the video are consistent with the evidence of Mr. Butler is a measure of the reliability of his evidence.

(i) The Defence Evidence

[189] The evidence of Officer Hutchings is consistent with the TTC video.

[190] Officer Hutchings testified that when he boarded the bus he first asked the driver what the problem was. He then turned to Mr. Richards and asked him to step back. It was his evidence that he and Mr. Richards were engaged in a back and forth. He was telling Mr. Richards to step back so that he could speak with the driver and Mr. Richards was swearing and pointing his finger at him.

[191] The video shows Officer Hutchings boarding the bus and engaging in an interaction that appears to involve the driver and Mr. Richards. At one point, Officer Hutchings gestures towards the driver. Mr. Richards’ arm can be seen moving in a motion consistent with him pointing his finger at Officer Hutchings. This interaction occurs over 15 seconds. It is consistent with the interaction as described by Officer Hutchings.

[192] Officer Hutchings testified that it was not until he had told Mr. Richards three times to step back, and Mr. Richards had refused, becoming increasingly aggressive, that he went “hands on”. Consistent with this, the video depicts Officer Hutchings pushing Mr. Richards into the seat behind the driver after a 15 second interaction.

[193] Officer Hutchings testified that he released Mr. Richards to allow him to sit down of his own accord but Mr. Richards would not stay in the seat, repeatedly trying to get up. This is also what the video depicts.

[194] Officer Hutchings testified that after Mr. Richards repeatedly refused to comply, he forcefully pushed him with his hand at the base of Mr. Richards’ throat and against his clavicle. As he held Mr. Richards against the seat this way, Mr. Richards continued to swear at him. Officer Hutchings testified that he did not have his hand around Mr. Richards neck and was not choking Mr. Richards. While his hand was on Mr. Richards’ clavical pushing him down, Mr. Richards was continuing to say “fuck you”. Mr. Richards did not, Officer Hutchings testified, say that he was being choked or that he couldn’t breath.

[195] While it is not possible to see on the video exactly where Officer Hutchings’ hand is, what can be seen is not inconsistent with what Officer Hutchings described.

[196] What is possible to see on the video is that Mr. Richards has his arms outstretched. Mr. Richards is not grabbing at his throat or trying to move Officer Hutchings’ hand. It is also possible to see that Mr. Richards continues to speak throughout this encounter. At one point he appears to be saying “Fuck you”. Mr. Richards himself testified that during this encounter he was swearing at Officer Hutchings saying, among other things, “fuck you” and “I paid the fucking fare”.

[197] According to the Crown’s expert, Mr. Butler, Mr. Richards’ actions here are inconsistent with someone being choked. A person being choked reflexively grasps at their throat and attempts to remove the pressure that is blocking the airway. A person whose airway is blocked is unable to speak or yell. In the video Mr. Richards has his hands splayed out at his sides and is reaching for his presto card. In the video Mr. Richards is speaking.

[198] Officer Hutchings testified that throughout the encounter Mr. Richards was angry and aggressive, swearing at him and refusing to comply. This is also consistent with what can be seen on the video.

[199] For the portions of their encounter where Mr. Richards face is visible he appears to be angry and is saying things to Officer Hutchings, including “fuck you”. It is also apparent that he is not wilfully succumbing to the officer’s application of force. He repeatedly attempts to get up from the seat that Officer Hutchings pushed him into. When Officer Hutchings holds him against the seat, Mr. Richards pushes himself up. When Officer Hutchings attempts to take the presto card from him, Mr. Richards refuses to give it to him.

[200] Officer Hutchings testified that he grounded Mr. Richards because he thought that he was about to be spat on. He testified that when Mr. Richards was on the ground he spat twice.

[201] On the video, when Mr. Richards is on the ground, Officer Hutchings can be seen pointing to something. This is consistent with his evidence that he was pointing to the spit and telling Mr. Richards that he had just caused the bus to have to be decontaminated. In his own evidence Mr. Richards testified that he spat on the ground.

[202] On the video, when Mr. Richards is stood up, he is smiling and laughing. I find this behaviour to be incongruous with someone who has just been choked. It is, however, consistent with the belligerent and aggressive demeanour described by both Officer Hutchings and Mr. Hickey, the bus driver.

[203] Mr. Hickey, testified that he summoned Mr. Richards to speak to him about the fact that he entered at the rear of the bus. He explained that boarding at the rear is allowed only inside the station and not on the bus route. Mr. Hickey testified that he did not single Mr. Richards out because he was black, but because he had boarded the bus in a manner not permitted.

[204] The video shows that Mr. Richards was not the only racialized person on the bus, but he was the only person to board in contravention of the rule. This is consistent with the driver’s evidence.

[205] Mr. Hickey testified that he just wanted to educate Mr. Richards about the rule. However, Mr. Richards insisted on arguing with him and got into his personal space, refusing to stand behind the white line so that the bus could be safely operated.

[206] On the video Mr. Richards can be seen standing right beside the driver, and in front of the white line, for over 5 minutes. He appears on the video to be arguing with the driver the entire time. This is consistent with Mr. Hickey’s evidence.

[207] The calls that Mr. Hickey placed to the TTC dispatch are also consistent with his evidence.

[208] Mr. Hickey testified that after he told Mr. Richards that the police were on their way Mr. Richards said “So? Fuck the police”. Officer Hutchings testified that when he initially approached and boarded the bus, he did not think that Mr. Richards was the issue because he appeared to be happy and smiling. When the police arrive Mr. Richards can be seen on the video standing up and smiling. Again, this is consistent with the events as described by both Mr. Hickey and Officer Hutchings.

(ii) Mr. Richards’ Evidence

[209] Mr. Richards’ evidence is inconsistent with the video in several material respects. During cross-examination he was confronted with these inconsistencies but often continued to deny them.

[210] Mr. Richards denied that he was agitated or angry with the driver, claiming that he was, “just having a normal conversation”. This is inconsistent with the video which shows a prolonged confrontation between Mr. Richards and the driver which lasted for over 5 minutes. Throughout this time Mr. Richards is standing very close to the driver. It is clear from the video that they are not simply having a conversation.

[211] In cross-examination Mr. Richards agreed that the driver asked him to move behind the white line, but testified that, “as soon as he did ask me to move I did”. However, the video shows Mr. Richards standing right beside the driver, and in front of the white line, for over 5 minutes. During which time his facial expression and body language clearly suggest that he is arguing with the driver. He never moves away from the driver and behind the white line until the bus had been put out of service and the passengers were disembarking.

[212] When it was put to him in cross-examination that this was a lie, that he did not move when the driver asked, as he said that he did, Mr. Richards responded, “I’m not lying to you. You’re making stuff up as you go”.

[213] Mr. Richards denied that he was arguing with the driver. Eventually in cross-examination he testified that they were “having a discussion” and testified that he believed that it was the yellow line, and not the white line, that he was supposed to be behind. From his own evidence it is clear that he would not accept what the driver was telling him.

[214] Mr. Richards agreed that once the bus was put out of service the driver asked him to get off but that he refused saying, “why am I gonna leave when I’m in the right?”.

[215] Mr. Richards’ testified that when Officer Hutchings got on the bus he, Officer Hutchings, immediately said, “Is this the motherfucker who’s causing the problem?”. According to Mr. Richards, as soon as he responded, “I’m not a motherfucker, I paid my fare” Officer Hutchings grabbed him by the throat, threw him in the corner and tackled him to the ground.

[216] This is inconsistent with the video. According to Mr. Richards, Officer Hutchings grabbed him immediately when he responded. According to Mr. Richards there was no further exchange between them, and no requests for him to move back. This is inconsistent with the 15 seconds of exchange between Mr. Richards and Officer Hutchings that can be seen on the video.

[217] On the video Mr. Richards can be seen repeatedly trying to get up out of the seat, refusing to comply with Officer Hutchings’ physical commands. This is inconsistent with his evidence that he was “compliant”. It is also something that he left out entirely when he first testified as to what had occurred.

[218] According to Mr. Richards’ evidence he was choked by Officer Hutchings and could not breathe. His actions as depicted on the video are not consistent with the expert evidence proffered by the Crown with respect to what effect being choked has on a person.

[219] When he was stood up Mr. Richards can clearly be seen laughing and smiling on the video. This behaviour is consistent with the provocative and belligerent attitude described by the driver and officer Hutchings, and evidenced in the booking video. It is not consistent with someone who has just been choked or unjustly attacked.

[220] During the course of the booking video Mr. Richards displayed a combative and belligerent attitude. When asked if he had any injuries Mr. Richards got into a confrontation with Sergeant Tobin, listing all of his body parts. When asked if he had ever had suicidal thoughts he responded in a belligerent tone, “Oh yeah when you guys tried to kill me”. He accused officer Kirkwood of purposely stepping on his foot.

[221] Throughout her dealings with Mr. Richards as captured on the video and the in car camera Officer Kirkwood was nothing but calm and polite with Mr. Richards. I accept her evidence that she did not intentionally step on Mr. Richards foot.

(iii) The Social Context

[222] From the outset it has been Mr. Richards’ belief that this incident occurred because he is black. He believes that the bus driver singled him out and accused him of not paying because he is black. And he believes that over the course of this incident he was the victim of police brutality because he is black.

[223] I accept that this is what he believes. It is clear from his evidence that he has felt persecuted throughout his life because of the colour of his skin. He has had many encounters with the police throughout his life and has a criminal record of some significance. When cross-examined about the occurrences behind the convictions on his record his explanations involved allegations that he had been targeted and harassed by the police because he was black.

[224] It may well be that in his life Mr. Richards has suffered discrimination and harassment because of the colour of his skin. I would be surprised if he hadn’t. Racism is an ugly fact of our society. And one which our criminal justice system struggles to come to grips with. The Supreme Court of Canada has acknowledged and attempted to confront this reality. In R. v. Le, 2019 SCC 34, the majority stated:

We do not hesitate to find that, even without these most recent reports, we have arrived at a place where the research now shows disproportionate policing of racialized and low-income communities. Indeed, it is in this larger social context that the police entry into the backyard and questioning of Mr. Le and his friends must be approached. It was another example of a common and shared experience of racialized young men: being frequently targeted, stopped and subjected to pointed and familiar questions. The documented history of the relations between police and racialized communities would have had an impact on the perceptions of a reasonable person in the shoes of the accused.

Le , at para. 97

[225] In Le, Mr. Le’s perception of his encounter with the police was important and relevant to the question of whether or not he felt detained by the police. In this case, the important consideration is what motivated the police.

[226] It is the belief of Mr. Richards, and the position of the Crown, that he was targeted by the driver and the police because he was black. As defined in Le, racial profiling occurs, “when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or suspect treatment”: Le , at para.76.

[227] In R. v. Dudhi, 2019 ONCA 665, the Ontario Court of Appeal clearly stated that, “policing decisions based on race or racial stereotyping are not, by definition, objectively reasonable decisions”: Dudhi , at para.55. Justice Paciocco further acknowledged that, “racial profiling is as difficult to prove as it is pernicious…this makes it necessary for judges to consider all of the circumstances surrounding the police action.”: Dudhi , at paras 75-6.

[228] The question that I must ask myself. The question that should always be asked, and particularly where a racialized person is subjected to police use of force, is - was Officer Hutchings’ selection or treatment of Mr. Richards influenced by the fact that Mr. Richards is black?

[229] It was the bus driver, not Officer Hutchings, who selected Mr. Richards. The driver asked Mr. Richards to come forward and speak to him because Mr. Richards boarded the bus from the rear doors. Boarding at the rear of the bus was not permitted. There is no evidence and no suggestion that other people boarded at the rear but were not spoken to. The video evidence shows only Mr. Richards doing this. What the video also shows is that Mr. Richards was not the only racialized person on the bus. The passengers were a multicultural group.

[230] I do not find that there is any basis to suggest that the bus driver was racially motivated. His comment to Mr. Richards that he smelled was inappropriate and entirely unhelpful, but it was not racist. I accept the driver’s evidence that he was in a state of panic at the time that he made the comment and was just desperately trying to get Mr. Richards to back away.

[231] When Officer Hutchings arrived on scene the only suspect presented to him was Mr. Richards. Officer Hutchings did not choose Mr. Richards. This still, however, leaves the question of whether race played a role in his decision to arrest Mr. Richards, and in his use of force.

(iv) Was There a Lawful Arrest?

[232] The offence of mischief, as defined in section 430(1) of the Criminal Code, is committed when someone wilfully obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property. The act of wilfully causing a TTC bus to be put out of service, and thereby inconveniencing the passengers and disrupting their journey, constitutes an act of mischief.

[233] When Officer Hutchings arrived on scene it was clear that the bus had gone out of service. It was stopped at the side of the road and passengers were exiting and running in the direction of another bus. When Officer Hutchings boarded the bus only the driver and one passenger, Mr. Richards, remained. Prior to arriving on scene the information that Officer Hutchings had was that the driver had requested police assistance with respect to a disorderly male who was refusing to get off, standing right beside him and not letting him drive. Within seconds of his arrival Officer Hutchings was made aware that whatever the issue was it was between the driver and Mr. Richards.

[234] Both Officer Hutchings and the bus driver testified that the driver told Officer Hutchings that Mr. Richards was the problem. I accept that evidence. Both testified that Mr. Richards was swearing and argumentative and refused to comply with Officer Hutchings’ direction to step back. I also accept that evidence. It accords with what can be seen on the video. Mr. Richards’ version of events does not.

[235] Officer Hutchings testified that Mr. Richards tone, demeanour and level of aggression in his responses led him to believe that Mr. Richards was assaultive. It also led Officer Hutchings to believe that the bus had been put out of service as a result of Mr. Richards’ behaviour.

[236] What occurred when Officer Hutchings first got on the bus was critical. He testified that it was during this time that he came to the belief that Mr. Richards was arrestable and that force was required to affect that arrest. The video shows a 15 second confrontation between Mr. Richards and Officer Hutchings during this time. It shows Officer Hutchings repeatedly saying something to Mr. Richards.

[237] Mr. Richards’ version of events does not account for this. I accept Officer Hutchings’ account of what was occurring during this time. I also accept that what occurred then caused Officer Hutchings to believe that he needed to act swiftly and with force to take control of Mr. Richards and remove him from the vicinity of the bus driver.

[238] I accept that Officer Hutchings had probable grounds to arrest Mr. Richards at that time. Those grounds were both objectively and subjectively reasonable.

(v) Was Officer Hutchings Use of Force Reasonable, Proportionate and Necessary?

[239] The evidence of the Crown experts, Mr. Butler and Mr. Federico, was that the actions of Officer Hutchings, as captured on the video, could be a legitimate use of force depending on Officer Hutchings’ motivations. Neither expert testified that Officer Hutchings actions were inconsistent or incompatible with police training. On the contrary, both experts testified that all of Officer Hutchings’ actions could be explained by police training.

[240] Officer Hutchings testified that he used force on Mr. Richards in order to protect the safety of the bus driver and himself and arrest Mr. Richards. The bus driver was trapped in his seat behind Mr. Richards. Mr. Richards was angry, aggressive and refusing to comply with commands. Officer Hutchings feared that he was about to become violent. His fear was reasonable in the circumstances.

[241] I do not accept Mr. Richards’ evidence that he was choked by Officer Hutchings. Officer Hutchings pushed Mr. Richards back and held him against the seat with his hand. He did not choke him. Officer Hutchings was trying to make a dangerous situation safe for the driver and Mr. Richards was not complying. Once Mr. Richards was under control, compliant and had calmed down he was stood up. Mr. Richards had no injuries of any significance.

[242] The force used by Officer Hutchings was necessary, reasonable and proportionate to the circumstances in which he found himself.

IV. Conclusion

[243] I can understand how a member of the public would be shocked upon viewing the video. As I initially was. But that person would not be apprised of all of the facts and circumstances. Police use of force is never pretty and it is difficult to watch. But sometimes it is necessary. Having now heard all of the evidence I would be shocked if Officer Hutchings had not reacted swiftly and with force. I find Officer Hutchings not guilty.

Released: January 27, 2022 Signed: Justice Newton-Smith