ONTARIO COURT OF JUSTICE DATE: 2022 09 19 COURT FILE No.: 19-15008996 (College Park, Toronto)

BETWEEN:

HIS MAJESTY THE KING

— AND —

CHEMAR GUILLAUME

Judgment

Before: Justice B. Jones

Heard on: July 25, 26, 27, 29, September 6 and 8, 2022 Reasons for Judgment released on: September 19, 2022

Counsel: E. Minchopoulos................................................................................. counsel for the Crown C. Guillaume.................................................................................................... self-represented

Jones J.:

Introduction

[1] Chemar Guillaume is charged with three counts of assaulting a peace officer (Criminal Code s. 270(1)(a)) and three counts of wilfully resisting a peace officer (Criminal Code s. 129(a)). On December 9, 2019, he was lawfully in custody at Old City Hall and made an appearance in 101 court. After the Justice of the Peace remanded his case to a future date, he is alleged to have refused to leave peacefully. The primary issues on this trial were whether the Crown has proven he intentionally assaulted and resisted the peace officers who escorted him from the courtroom.

[2] Mr. Guillaume brought an application alleging his rights were violated under sections 7 and 12 of the Charter. In brief, he alleges that the police used excessive force; that he sustained injuries that are documented in various forms of evidence; and that the conduct of the court officers constituted cruel and unusual punishment.

[3] The trial and Charter motion were heard in a blended hearing as I saw no prejudice to his fair trial interests by conducting the proceedings in this manner. The Crown agreed to produce all the officers Mr. Guillaume wished to hear from.

[4] Mr. Guillaume is presumed innocent. The Crown bears the burden of proving each element of the offences against him beyond a reasonable doubt. On the Charter application, Mr. Guillaume must establish that his rights were violated on a balance of probabilities.

[5] The Crown’s case consisted of the peace officers who were involved in the handling of Mr. Guillaume on December 9, 2019. Mr. Guillaume did not testify and nor did he call any other witnesses.

Assault – Peace Officer

[6] Section 270 of the Criminal Code provides:

270 (1) Every one commits an offence who

(a) assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer

[7] A person commits an assault when “without the consent of another person, he applies force intentionally to that other person, directly or indirectly”: Criminal Code section 265.

[8] The Crown must therefore prove that Mr. Guillaume intentionally assaulted the peace officers [^1] while they were engaged in the lawful execution of their duties. Mere recklessness on his behalf does not suffice: see R. v. Tyrell, 2021 ONCA 15 at paras. 34-38.

Wilfully Resist Peace Officer

[9] Section 129 of the Criminal Code provides:

129 Every one who

(a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty

is guilty of an offence.

[10] For this offence the Crown must prove that the complainants were peace officers, engaged in their lawful execution of their duties, and that Mr. Guillaume intentionally resisted them in order to prevent them from lawfully executing their duties.

[11] The word “obstruct” is not defined in the Criminal Code but prior judicial decisions have applied dictionary definitions when considering the scope of this offence. The Concise Oxford English Dictionary, 10th ed., revised, defines “obstruct” as: “1. block; be in the way of; 2. prevent or hinder”. In R. v. Soltys the British Columbia Court of Appeal applied the definition found in Black’s Law Dictionary which defines the term as "to impede; to interpose impediments to the hindrance or frustration of some act or service; such as to obstruct an officer in the execution of his duty": see also R. v. Khan, 2014 ONSC 6541 at para. 46.

[12] Whether or not there was an obstruction caused by the accused’s conduct is a factual question to be determined in the circumstances of each case. Not all conduct will rise to this standard. Conduct that is merely trivial or trifling is not meant to be encapsulated by the offence: see Khan at para. 71; R. v. King, 2018 NWTSC 33.

[13] In R. v. Kennedy, 2016 ONCA 879 at para. 36, the Ontario Court of Appeal held that the offence of resisting a peace officer requires more than being uncooperative. It requires active physical resistance.

Excessive Use of Force and the Charter

[14] Mr. Guillaume brought an application alleging that his rights under sections 7 and 12 of the Charter were violated by the actions of the peace officers on December 9, 2019.

[15] Section 7 provides citizens with a right to be secure against arbitrary force, especially physical violence, by state actors. It states:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[16] Section 12 deals with the degree to which the state may treat or punish an individual and provides that

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[17] In R. v. Nasogaluak, 2010 SCC 6, the Supreme Court of Canada examined the legal requirements surrounding a claim that the police used excessive force when handling a person in custody. The Court held that section 25 of the Criminal Code sets the limits on the use of force by peace officers. It provides:

25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(b) as a peace officer or public officer,

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.

[18] If the peace officers used force that was not reasonable, and went beyond what was lawfully required, that may constitute a violation of section 7 of the Charter.

[19] In R. v. Bissonnette, 2022 SCC 23, the Supreme Court held that the purpose of section 12 of the Charter is to protect human dignity and ensure respect for the inherent worth of each individual. It protects against the imposition of a punishment that is so excessive as to be incompatible with human dignity. It also protects against the imposition of a punishment that is intrinsically incompatible with human dignity.

Review of the Evidence

(1) Transcript of December 9, 2019 – 101 Court

[20] Mr. Guillaume was arrested and facing criminal charges. He was in custody and appeared before the presiding Justice of the Peace in 101 Court at Old City Hall on December 9, 2019. His case was remanded to December 10 for a bail hearing. A transcript of the proceedings that day was filed as Exhibit 1. The reason for the adjournment was that there was not enough time to reach his case. There were other individuals who had been in custody longer whose bail hearings had been prioritized. That is an unfortunate reality in our busy bail courts.

[21] Mr. Guillaume indicated he wished to represent himself and was disappointed that his bail hearing could not be reached. He was worried about being placed in the Toronto South Detention Centre and requested that he be sent to the Toronto East Detention Centre instead. The court indicated it had no jurisdiction for that request. Mr. Guillaume stated he was feeling suicidal and felt that he was not being treated fairly. Nevertheless, the Justice of the Peace confirmed his case was adjourned to the next day.

[22] Mr. Guillaume requested that the court officers not touch him as he was escorted out of the courtroom.

(2) Officer Crites

[23] Officer Crites has been a court officer employed with the Toronto Police Service since 2005. He was on duty on December 9, 2019 at Old City Hall in the capacity of an acting supervisor. He was working in the main cell area.

[24] His duties that day included managing and scheduling the other court officers in courtrooms. At approximately 4:30 p.m. he overheard a commotion and raised voices coming in the direction of 101 court. He saw Mr. Guillaume come around the corner from the 101 cell area.

[25] He identified a video of the cells at Old City Hall and confirmed it was an accurate video recording of the events that occurred between 4:34 pm and 4:36:29 p.m. In the video Mr. Guillaume and various officers – including Officer Crites – can be seen in the rather narrow hallway. Its width was estimated to be 3 – 3.5 feet. The other officers were escorting Mr. Guillaume from 101 court.

[26] He remembered a great deal of yelling. Mr. Guillaume seemed quite agitated. He was pulling away from the escorting officers and was trying to break free from Officer Perugini in particular who was holding his arms.

[27] He decided that Mr. Guillaume would be placed in a separate cell (#1-5) by himself. He ordered the other court officers to place him on the ground in order to gain better control of him. He continued to resist. He ordered one officer to employ leg irons and another officer to handcuff him behind his back. He could not recall specifically what commands he shouted out to Mr. Guillaume that day, but it would have included an order such as “place your hands behind your back.”

[28] His decisions were made in accordance with his training. He was concerned about the safety of the court officers, Mr. Guillaume, and other accused persons in custody.

[29] He did not observe exactly how Mr. Guillaume was brought the ground and nor did he recall which officers specifically carried out his order.

[30] He described Mr. Guillaume as being agitated, angry and loud. He was physically resisting the other officers by pulling away from them. At one point he observed Mr. Guillaume attempt to get at one of the officers with his hands, but he was not successful.

[31] After Mr. Guillaume was under control, another officer, Officer Pozzobon, called for an ambulance to take him to St. Michael’s hospital as he had sustained injuries. While Officer Crites did not remember if there was blood present in the hallway following the decision to place handcuffs and leg irons on Mr. Guillaume, he could not rule out the possibility. Three officers escorted him to the hospital. They were Officers Marshall, McDonald and Constantopoulos.

[32] In cross-examination he explained that inmates in custody are classified. Inmates would be assigned different cells depending on their classification. He could not recall what Mr. Guillaume’s classification was that day prior to this incident. He agreed that Mr. Guillaume himself may not have known or understood his classification and could have been confused about what cell he should enter.

[33] He did not remember if Mr. Guillaume kicked when the officers attempted to take him down.

(3) Officer Kearsey

[34] Officer Kearsey was on duty as a court officer on December 9, 2019 in 101 court. He noticed Mr. Guillaume become highly agitated in the prisoner’s box. He refused to leave when directed to do so. The Justice of the Peace ordered the court officers to remove him at approximately 4:30 p.m.

[35] Mr. Guillaume was yelling and arguing. Officer Perugini took him by the arm and said it was time to go. Mr. Guillaume pulled away and started flailing his arms. An elbow was thrown towards Officer Perugini but he was not sure if the officer was struck. He entered the prisoner’s box to help remove Mr. Guillaume from the courtroom. He came within three feet of him but had no physical contact.

[36] He explained that court officers place a hand on inmates to escort them in order to maintain control. Mr. Guillaume began to physically resist him. He identified himself on the video footage of the cell area escorting Mr. Guillaume. He was directing him to follow Officer Perugini. Mr. Guillaume was yelling and upset. He was trying to use “light gloves” to let Mr. Guillaume’s frustration run its course, and understood it was a difficult time for people in custody. However he felt matters continued to escalate.

[37] Eventually he took Mr. Guillaume by the arm and he continued to resist by flailing his arms and legs. He was actively pulling away from him and the other officers trying to control him. Mr. Guillaume kicked backwards in a “donkey kick” and hit Officer Kearsey in his knee. This assault allegedly occurred off-camera.

[38] As they continued down the cell area hallway, Mr. Guillaume continued to actively resist the officers and they struggled to gain control of him. He had become assaultive and even more aggressive. Officer Crites commanded him and the other officers to take the inmate to the floor and use handcuffs and leg-irons. During this process Mr. Guillaume continued to resist them pulling his arms away in an effort to prevent the imposition of the restraints.

(4) Officer Webb

[39] Officer Webb has been a court services officer for 3.5 years. He was on duty on December 9, 2019. He was in the cells area at Old City Hall dealing with another inmate when he heard a commotion in the hallway at approximately 4:31 p.m.

[40] He noticed other officers – including Perugini and Kearsey – attempting to place a man in the “done cell” area next to the supervisor’s desk. At approximately 4:34 p.m. they entered into the area where he was present. He saw the inmate swing at Officer Perugini with his right hand and he intercepted this movement. The inmate seemed angry. Following that occurrence, he assisted with maintaining control of him but holding his right arm and leg. The rest of his involvement is captured in the video entered as Exhibit 2. He witnessed the inmate continuing to try and kick and punch while he was taken to the ground and handcuffs were placed on him. He was aggressive and refusing to cooperate.

[41] He testified that Mr. Guillaume was trying to punch and kick at him. He noted that his right leg was trying to swing up towards him.

[42] Officer Webb explained he was trained to use soft-hand techniques. The intent of his actions was to take hold and restrain the inmate; nothing more. He did not remember if he was ever actually personally struck. After the incident, he did sustain some minor cuts to his right arm however.

(5) Officer Pozzobon

[43] Officer Pozzobon was on duty as a supervisor on December 9, 2019. He worked at the Old City Hall courts from 2006 to 2021. He had a limited recollection of this incident and relied upon his notes and a review of the video evidence to assist in his testimony.

[44] He was present when Mr. Guillaume was struggling with the other court officers. He noticed he was being physically resistant as the officers attempted to place restraints on him. At the end of the incident, he noticed Mr. Guillaume had a bloody nose and blood on his face and he called for an ambulance. Nevertheless, he did not feel anything happened that constituted unprofessional conduct on behalf of the other officers.

[45] He took detailed notes of the entire incident. He had a notation that Mr. Guillaume was “kicking out” but not that he struck anyone specifically. He clarified that if an officer alleged Mr. Guillaume intentionally struck them, he would have made a note of that himself. He also had no personal notation of Mr. Guillaume punching anyone.

[46] He was certain Mr. Guillaume suffered his injuries, including a bloodied nose, from this incident. Yet he could not specify exactly how those injuries were sustained.

(6) Officer Perugini

[47] Officer Perugini was also on duty as a court officer. He was working in 101 court when Mr. Guillaume’s matter was being heard. The Justice of the Peace remanded his case. He was angry, shouting and visibly upset. The Court ultimately ordered him removed.

[48] At approximately 4:30 p.m. Officer Perugini attempted via verbal communications to have Mr. Guillaume accompany him out of the courtroom. He did not receive a response. He then told Mr. Guillaume he would place his hand on his arm to escort him. After he did this, Mr. Guillaume threw his left elbow back and struck him in the chest. It seemed like Mr. Guillaume did not want to stop addressing the court.

[49] Officer Perugini was clear that Mr. Guillaume was told to follow him out of the courtroom following the Justice of the Peace’s decision to adjourn his hearing to another day. There was a clear instruction and yet he simply intentionally resisted him as they progressed through the cell area.

[50] He let Officer Kearsey take him out the courtroom instead. He accompanied them. As they walked through the cell area Mr. Guillaume acted in an assaultive manner. His arms and legs were flailing. He saw Officer Kearsey get kicked in the leg. At that point he attempted to take control of Mr. Guillaume.

[51] When they eventually made their way into the main cell area a supervisor directed them to take Mr. Guillaume to cell 1-5. Mr. Guillaume used one of his free arms to try and lunge at him but another officer prevented him from making contact. As he became increasingly unruly the supervisor ordered them to take him to the ground. Officer Perugini brought him to the ground using his weight in the safest way he was trained. He continued to feel Mr. Guillaume struggling forcefully.

[52] In his subjective assessment, nothing Mr. Guillaume did that day was done with any kind of animus directed at him personally. Rather, he felt Mr. Guillaume was simply unhappy with this case not being reached and he chose to grant him the benefit of the doubt as much possible initially. He appreciates how emotionally challenging criminal court proceedings can be for people in custody. Hence his decision to back off and allow Officer Kearsey to take charge of escorting him through the cell area after he was struck in his chest by Mr. Guillaume’s elbow.

(7) Officer MacDonald

[53] Officer MacDonald assisted with transporting Mr. Guillaume to the hospital. He noticed dried blood on his nose. He had no entry in his notebook that Mr. Guillaume ever requested to speak to a police officer about pressing charges and would have made a notation if he heard such a remark.

(8) Officer Constantopoulos

[54] Officer Constantopoulos did not have an independent recollection of the events. He confirmed he was working on December 9, 2019 at Old City Hall and his notes were introduced, on consent, as past recollection recorded. He was working in the main cell area when Mr. Guillaume was brought there. He confirmed his role was simply to apply leg irons to Mr. Guillaume.

[55] He had a notation that he saw blood on Mr. Guillaume’s nose. He confirmed that he did not include in his notes that he ever saw Mr. Guillaume assault a court officer. If he witnessed that, he would have made a note of it. He also did not make a notation that he saw Mr. Guillaume being choked or punched by an officer. If he had seen that occurring, he would have assisted Mr. Guillaume immediately.

(9) Injury / Illness Report and Medical Records

[56] A Toronto Police Service injury / illness report from December 9, 2019 was introduced into evidence on consent. The report detailed that Mr. Guillaume sustained a bloodied nose during the course of the struggle in the cell area at Old City Hall. He was taken to St. Michael’s hospital and arrived at 17:20. He underwent an x-ray. He was seen by a doctor and was discharged at 21:48.

[57] Medical records from St. Michael’s hospital indicate he was treated for his injuries. He had soft tissue swelling on his left cheek and a small abrasion on his left calf.

[58] An accident / injury report was completed by Mr. Guillaume on December 9, 2019 and was filed as an exhibit on consent. A health care professional examined him and noted that he had redness around his left eye and that he was complaining of neck pain. A small laceration was also noted on his left leg.

Analysis and Findings of Fact

(1) Charter Applications

[59] Much of what happened on December 9, 2019 is not in dispute. A court transcript provides evidence of exactly what was said during Mr. Guillaume’s court appearance. It demonstrates he was in custody in 101 Court and seemed confused and displeased that his bail hearing was adjourned to a future date. It also recorded the Justice of the Peace ordering that he be removed from the courtroom.

[60] The officers called by the Crown testified as to their interactions with Mr. Guillaume after that point. It is important to place their evidence in its proper context. They were employed as court officers. Court officers are peace officers by definition: see Criminal Code section 2; R. v. Golbourne, 2017 ONSC 2653 at para. 66. The duties of court officers include the provision of courthouse security. The scope of court officers’ powers is set out in sections 137 and 138 of the Police Services Act, R.S.O. 1990, c. P.15 and prior court decisions. In brief, those duties include:

• Maintaining security and control of persons in custody who are required to attend court;
• Controlling and escorting accused persons in custody while they are lodged in holding cells and while being transported to and from court; and
• Maintaining security and order in courtrooms and the courthouse.

[61] This is a demanding job often requiring patience and understanding, but also the ability to keep the courtrooms and cell areas functioning and safe. Once Mr. Guillaume’s appearance in 101 court was finished, the Justice of the Peace had lawfully remanded him to a future date. He had to be removed from the courtroom for other inmates to have their cases heard. The officers attempted to reason with Mr. Guillaume initially but ultimately decided they needed to physically escort him.

[62] These officers testified calmly and rationally. They did not exaggerate their testimony and did not appear to harbour any ill-will or animus towards Mr. Guillaume. They felt their decision to physically escort him was necessary. They were authorized to use reasonable force under the applicable provisions of the Police Services Act and Criminal Code.

[63] I find them to be credible and reliable witnesses who acted professionally. Each officer admitted to the limitations of his observations that day and what he could, or could not, comment on without speculating. They showed an awareness of the needs of persons in custody and their often difficult personal circumstances.

[64] Officer Crites testified about Mr. Guillaume’s aggressive behaviour that day and the safety risk it presented. He was concerned about his safety and other officers’ safety. He only became involved because of the disturbance Mr. Guillaume was creating. He acted highly professionally in what was a potentially dangerous and fast-moving situation. He had an inmate under his officers’ supervision who was agitated, yelling, and compromising the safety of other persons in the cell area at the time. He had to quickly assess the situation and make a determination of how to get Mr. Guillaume under control. Relying on his training and experience he instructed his officers to place Mr. Guillaume in handcuffs and leg irons. These decisions are often unfortunate, but they must be made when it is appropriate to do so. I find this was one such occasion. Had Officer Crites not acted with due diligence as he did, the safety of the court officers and other inmates in the cell area would have been compromised. It was a reasonable response to Mr. Guillaume’s behaviour at the time.

[65] Officer Kearsey impressed me with his calm and rational approach to testifying. He understood that inmates in custody might be confused or emotional. He did not want to become physically involved with Mr. Guillaume until it was absolutely necessary. He gave Mr. Guillaume some space to cool off and calm down. While he saw his elbow go near Officer Perugini’s chest while they remained in 101 court he did not assume that was an intentional assault, although it did result from his erratic behaviour. He took control of Mr. Guillaume based on his training and in an effort to try and get him to a cell as quickly and safely as possible. Even when he was kicked by Mr. Guillaume he testified that while he felt it happen he did not want to unfairly impute a motive to this action.

[66] Officer Webb was a relatively new officer. He had been working at Old City Hall since April of 2019. He testified clearly. He had a limited role with these events that only began after he noticed Mr. Guillaume attempt to throw a punch at Officer Perugini. He explained he relied upon soft-hand techniques to take control of Mr. Guillaume. He gave honest and detailed responses to questions in cross-examination but fairly and appropriately did not speculate about matters he did not personally observe. He did admit he did not remember some details, such as if leg-irons were placed on Mr. Guillaume.

[67] Officer Perugini testified in a very straight-forward manner. He explained he wanted to escort Mr. Guillaume out of 101 court at the presiding Justice’s orders in the least confrontational manner possible. He knew Mr. Guillaume was upset at his case being remanded. He showed concern for Mr. Guillaume and even cautioned him he would place his hand on him to move him along. After he was struck in the chest he allowed Officer Kearsey to take over the primary job of escorting Mr. Guillaume as he hoped that might make matters proceed more smoothly. He provided logical and straight-forward explanations for his conduct on the video including why he used the techniques he’d been taught in this very narrow space to bring Mr. Guillaume under control.

[68] In light of the suggestions made during the trial and Mr. Guillaume’s position on the Charter application, I make the following findings of fact. None of these officers punched Mr. Guillaume or placed him in a chokehold. I accept their evidence on these points specifically. The video does not show this occurring. Mr. Guillaume suggested to Officer Kearsey that he hit him while he was lying on the floor based on portions of Exhibit 2. He did not. Rather, the video simply shows Officer Kearsey applying handcuffs to him, as he was ordered to do by his supervisor.

[69] There were some inconstancies in their evidence. Officers Crites and Pozzobon did not witness the assault that Officers Webb and Perugini witnessed in the cell area near the supervisor’s desk. Officer Constantopoulos had no notation of an assault occurring in this area either. Officer Perugini testified that Mr. Guillaume hit him with his elbow on his chest with significant force but Officer Kearsey was not certain the elbow even made contact. Every officer has his own perspective. They were each providing an honest account of their own observations.

[70] In Nasogaluak, the Supreme Court noted the following at para. 35:

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. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

[71] In Goulbourne, supra, Justice Quigley of the Superior Court of Justice held that court officers are “entitled to use force as long as the force used is proportional, reasonable and necessary” and that the “use of force that is not excessive will not likely amount to a breach of section 7 of the Charter, even if that force gives rise to foreseeable injury”: see para. 66. See also R. v. Pan, 2012 ONCA 581, at para. 47; and Nasogaluak, supra, at para. 35.

[72] In Goulbourne an inmate was refusing orders to kneel on a bench so that the court officers could enter his cell and put restraints on him due to his behaviour. The inmate did not comply and instead took up a “fighting stance”. The officers entered his cell and punched him to gain control of him and to protect themselves. They forced him to the ground to take control of him. The officers made further strikes to the side of the inmate’s torso as they put handcuffs and leg restraints on him.

[73] Justice Quigley held that the court officers were acting lawfully. The inmate’s refusal to comply with the officers’ directions entitled them to use reasonable force: see para. 68. Importantly, the court also held that “the law does not require that the peace officers use the least amount of force possible… to restrain a non-compliant inmate” as court officers “have the right to ensure their safety in risky and uncertain situations”: see para. 69. They should be afforded some degree of latitude: see R. v. Asante-Mensah, 2003 SCC 38, at para. 73; R. v. Mulligan (2000), at para. 41.

[74] Similarly, Mr. Guillaume was refusing to cooperate with leaving 101 court after his case was adjourned. Officer Perugini was entitled to escort him out of the room and to place a hand on him to help move him along. Bail courts are notoriously busy courts and in order to ensure the court operates in an orderly and efficient manner, an inmate cannot simply unduly linger in court causing delay and potentially creating a backlog. The Justice of the Peace had informed Mr. Guillaume several times that his case could not be heard that day and he would return the next day in court. Based on his refusal to cooperate, Officer Perugini’s use of force was justified and as minimal as possible. It caused no harm to Mr. Guillaume.

[75] Unfortunately, he reacted to the officer’s application of force in a manner that caused matters to escalate. He began to yell and became highly agitated. He pulled away from Officer Perugini intentionally and began flailing his arms. As a result of his physical resistance, Officer Kearsey entered the prisoner’s box to assist. He gave Mr. Guillaume some space and had no physical contact with him. At some point as this series of events unfolded, one of Mr. Guillaume’s elbows struck Officer Perugini. Officer Kearsey then placed a hand on Mr. Guillaume to maintain control of him and he continued to physically resist. Officer Kearsey testified that it was the officers’ protocol in the cell to have a hand on an inmate to ensure control of the inmate. There was nothing unusual about their treatment of Mr. Guillaume accordingly.

[76] Video surveillance entered as Exhibits 2 and 3 capture what occurred in the cell area afterwards. The video is not fluid streaming video and appears to jump from frame to frame. It shows Mr. Guillaume and the officers as he was escorted through the cell area. While it certainly demonstrates the commotion that unfolded my review of the video indicates that while Mr. Guillaume was being unruly and had to be controlled due to his continued refusal to cooperate with the officers I did not witness any acts of him intentionally assaulting the officers. There are, however, multiple points on both videos where he can be viewed actively resisting the officers’ attempts to escort him to his designated cell causing them to have to take control of him.

[77] Following the events in the cell area a use of force report and an injury illness report were prepared. They confirm Mr. Guillaume sustained injuries including a bloodied nose. An ambulance was called for him and he received medical care at St. Michael’s hospital. At the hospital he was examined by a doctor and discharged. Officer Crites and Officer Pozzobon took their duties as supervisors seriously and followed the proper procedure to ensure that Mr. Guillaume received the medical attention he required and the occurrence was properly documented. I find no fault with their handling of the situation whatsoever.

[78] At the same time, I accept that Mr. Guillaume was in a terrible emotional state when these events occurred. He was confused and anxious about his court appearance. He was concerned at the loss of his liberty and did not seem to understand why his bail hearing had to be delayed. He told the officers he felt suicidal. Emotions were running high and he was then physically escorted out of the courtroom. He did want this to happen and asked the officers not to touch him. But they did have the authority to do so and he reacted, unfortunately, in a manner that was confrontational.

[79] He sustained injuries that were not trivial from these events. Officer Kearsey was certain he did not have injuries when he began escorting him from 101 court. While the existence of these injuries is some evidence of the use of force used against him, I am not convinced that use of force was excessive. The correctional officers used verbal commands and minimal physical force initially. As Mr. Guillaume became more disruptive and resisted their efforts, they responded in a proportionate manner. The officers were concerned with his safety, and their own. In the heat of the moment, as matters rapidly and dynamically unfolded, their decisions were reasonable and understandable.

[80] It is very unfortunate that Mr. Guillaume sustained injuries that day. They may have been the inadvertent result of the officers’ response to his own unruly behaviour, perhaps by him coming into contact with the floor or an officer’s body. There was no direct evidence that established when the injuries occurred or who caused them. The work of correctional officers is difficult and will, at times, inevitably involve the lawful application of force against inmates who will not comply. Simply because someone was harmed during this process does not mean that the officers’ reacted unlawfully or in violation of an inmate’s constitutional rights.

[81] Officer Kearsey in particular demonstrated an awareness of the need to try and de-escalate the situation by giving Mr. Guillaume some time and space to potentially calm down. Those efforts did not succeed. Officer Perugini testified that he tried to use the safest techniques possible that he was trained to employ in these situations. He was aware of his obligations with respect to inmates and was merely trying to gain control of Mr. Guillaume at the direction of his supervisor. They testified with detailed responses about their actions, training and professional responsibilities. Their evidence is confirmed by the video surveillance footage.

[82] Supervisors Crites and Pozzobon testified as to what they saw and their concern for everyone’s safety involved. They reviewed the video footage with Mr. Guillaume in detail and explained why they did not have any concerns that any court officer had used excessive force or acted unprofessionally. They made detailed notes of their involvement. Both explained that had they seen anything that caused them concern Mr. Guillaume’s rights were violated they would have taken immediate action. Officer Pozzobon immediately called for him to receive medical attention that day once he noticed his bloodied nose. I accept their testimony.

[83] The officers’ collective evidence that they had to move Mr. Guillaume along, to ensure the bail court could continue to process cases at the presiding Justice’s direction, while also ensuring the safety of him and other inmates, is logical. I also accept their evidence that they only employed the techniques to gain control of him that were appropriate in the circumstances.

[84] Mr. Guillaume suggested through his questioning of the officers that he was choked and punched by at least one of them intentionally. Each officer denied committing either act or seeing any other officer do so. The video surveillance evidence does not demonstrate these actions either. To be absolutely clear, I find that these actions did not occur.

[85] I find their use of force was reasonable and proportionate. I therefore dismiss the application brought under sections 7 and 12 of the Charter.

(2) Assault Peace Officer Charges

[86] With respect to the charges of assaulting the peace officers, I have considered the totality of the evidence presented by the Crown.

[87] Officer Perugini testified that Mr. Guillaume was upset in court. He was visibly displeased with the Justice of the Peace’s decision to remand his case. He tried to communicate with him to have him leave the courtroom but he would not comply. He placed his hand on his arm to escort him and at that point Mr. Guillaume moved his left elbow backwards and struck him in the chest. It happened quickly. In cross-examination he stated that Mr. Guillaume did not appear to be “thinking in the process.” He also testified that he was “not sure what was going through [Mr. Guillaume’s] mind” when the elbow was thrown back in his direction.

[88] Officer Kearsey thought he was flailing about. He witnessed the elbow fly back but was not sure if it even made contact with Officer Perugini. He did personally experience what he described as a “donkey kick” at one point – by which he meant Mr. Guillaume kicked backwards and struck him. This happened off camera in the area between what’s captured by Exhibits 2 and 3. This could just as easily have been another feature of Mr. Guillaume recklessly acting out at the time rather than a conscious decision of his to assault the officers. Officer Perugini also witnessed this kick but did not provide significant details about it. It happened very quickly in the midst of this dynamic situation. On both officers’ versions of events, Mr. Guillaume was not facing them at the time this apparently happened and could not ascertain his intent.

[89] Officer Webb testified he saw Mr. Guillaume attempt to punch Officer Perugini in the cell area that was off-camera but he did not make contact. He also believed Mr. Guillaume attempted to strike at him. After that point, during the take down, he continued to kick and act out. He did not remember if he personally suffered any physical blows. Officer Perugini also testified that he saw Mr. Guillaume attempt to strike at him unsuccessfully. However, that detail was not provided by Officer Crites who was also present for this portion of the events. Officer Pozzobon was clear that he would have made a notation if he observed Mr. Guillaume strike at an officer. Yet he was present and had no such notation. Officer Constantopoulos also did not make such a notation and was adamant he would have done so if he witnessed an assault occur.

[90] As noted earlier, the video of the cell area does not capture anything that could be construed as a clear, intentional act of assault. It does show a chaotic, fast-moving situation between the officers and Mr. Guillaume. Officer Crites did not see anything that specifically establishes an assault either.

[91] Mr. Guillaume’s actions were certainly reckless and showed disregard for the safety of the court officers. He had physical contact with them and they reasonably perceived this as assaultive behaviour at the time. Yet I find Mr. Guillaume’s behaviour was the result of his emotional state. He should have controlled himself. However, I am not satisfied beyond a reasonable doubt he intended to assault the officers. Rather, I conclude he was lashing out wildly, in a very reckless manner, in a futile attempt to prevent them from controlling him.

[92] The events transpired over a relatively quick period of time and as Officer Kearsey put it, he was “flailing about” more so than striking at them. Officer Pozzobon also described his conduct as him “kicking out.” The mens rea requirement for this offence requires something more than recklessness: see Tyrell, supra. While his conduct caused injury to some of the officers and certainly required them to physically take control of him, I cannot say the Crown has met its burden. Officer Webb was not even sure he was actually physically contacted by Mr. Guillaume. While my doubt is sorely tested with respect to the counts of assaulting Officers Kearsey and Perugini, I nevertheless find him not guilty of each of the charges of assault peace officer.

(3) Wilfully Resisting Peace Officers – Section 129

[93] I have reached a different conclusion with respect to the offences charged under section 129 of the Criminal Code.

[94] Officer Perugini testified that Mr. Guillaume was ordered out of the courtroom by the presiding Justice of the Peace. He was then given clear instructions to follow him and Officer Kearsey to cell 1-3. Unfortunately, Mr. Guillaume continued to defy their directions and resisted them as they travelled through the cell area. The resistance included him physically, actively resisting them along the way. This continued after their supervisor ordered him to be taken to the ground. He simply would not comply and fought against their efforts to handcuff him and take him to the appropriate cell.

[95] Officer Kearsey testified that Mr. Guillaume would not leave the 101 court initially. He was already yelling and being aggressive. When he came out of the courtroom Mr. Guillaume did not walk in a direction consistent with the officers’ instructions. However, he did accept Mr. Guillaume may have been confused when he was being transported down the hallway captured in the video footage of Exhibit 3. At times he was also being compliant. I do not find his behaviour at this initial stage of his interactions with Officer Kearsey constitute the conduct required for an offence of resisting an officer.

[96] However, after he turns the corner in the cell area and enters into the next area captured by Exhibit 2, his behaviour had significantly escalated. He was not simply refusing to follow directions, but was turning away from both Officer Kearsey and Officer Perugini and pushed back on them. He kicked backwards at Officer Kearsey striking him. Even if this may have been unintentional the kick itself was still an act of resistance to the officers’ directions and done in attempt to thwart their physical control of him. He continued to flail his arms and was actively pulling away from Officer Kearsey. He, and other officers, were yelling commands at him to “stop resisting” and “calm down.”

[97] Both he and Officer Perugini had to hold his arms to prevent someone from being struck. Multiple other officers were also present when Mr. Guillaume began acting out in the cell area. Officer Crites in particular was sufficiently concerned with the situation that he ordered the other officers to take Mr. Guillaume to the ground and handcuff him. He personally told him words to the effect of “place your hands behind your back” and saw him trying to pull his arms away from Officer Perugini. Officer Pozzobon also described his conduct as resisting the other officers.

[98] Exhibits 2 and 3 depict Mr. Guillaume failing to comply in an orderly manner. He attempts to walk in directions contrary to the officers’ directions and he struggles with them regularly. Following the events that occurred in the main cell area, the video in Exhibit 2 from 16:34:00 forward captures him absolutely refusing to cooperate and multiple officers having to take control of him. While some of this conduct could be associated with someone simply being confused or upset, by the latter part of Exhibit 2 there is no room for doubt that his behaviour was done intentionally.

[99] These were acts of active physical resistance. In Kennedy, supra, the appellant repeatedly turned his body away during an arrest and pulled away from an officer. The Court of Appeal held that was sufficient for a finding of guilt: see para. 36. In R. v. Hang, 2021 ONSC 3166, the offender used his strength to try and prevent himself from being handcuffed. He was warned to stop and resisted by turning his body. That was also sufficient to justify a finding of guilt: see para. 144.

[100] Mr. Guillaume’s conduct with respect to Officers Perugini and Kearsey meets this standard. He had been resisting them in one form or another since he was removed from 101 court. The sum total of his conduct after his removal from court was clearly defiant and intended to prevent the officers from gaining control over him. After Officer Crites ordered them to take him to the ground and for him to place his hands behind his back he continued to physically resist. Officer Webb became involved and tried to take active control of his right arm and right leg. Mr. Guillaume also resisted those efforts through struggling and kicking for about a minute. He is found guilty of the counts of resisting a peace officer lawfully engaged in the execution of his duties accordingly.

Concluding Remarks

[101] The role of the Crown is unique in our system of criminal justice. Crown counsel are tasked with being strong advocates for the prosecution but are also expected to act as Ministers of Justice. They have a duty to ensure that the criminal justice system operates fairly to everyone involved – including the accused. The role of the Crown has been the subject of many decisions of the Supreme Court of Canada. In Boucher v. The Queen, [1955] SCR 16, the Court wrote the following:

It cannot be overemphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented; it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness, and the justness of judicial proceedings.

[102] In R. v. Regan, 2002 SCC 12, the Supreme Court explained that the Crown’s responsibility as a Minister of Justice is not confined to conduct in the courtroom but attaches to Crown counsel at all stages of their dealing with an accused person. These responsibilities are amplified in any case involving a self-represented person. The administration of justice will always be well-served by Crown counsel who both understand and show a genuine commitment to ensuring the fairness of the trial process for everyone involved.

[103] I want to publicly acknowledge that Ms. Minchopoulos presented the entire case for the Crown comprehensively and fairly. At several points in the trial she went out of her way to procure witnesses Mr. Guillaume wanted to hear from and to look into areas of potential evidence he believed were relevant. She also assisted him with navigating the video surveillance evidence whenever he requested it. She immediately followed up on disclosure requests made by Mr. Guillaume or at my direction without hesitation.

[104] As a self-represented individual Mr. Guillaume struggled with some of the expectations relating to trial preparation. In these cases there is of course a fundamental obligation on the court to take steps to ensure he was able to receive a fair trial. It is also incumbent on the Crown to be mindful of the fair trial rights of the accused and to take all reasonable steps to protect them. Ms. Minchopoulos acted in the finest traditions of her office throughout the course of this proceeding. The administration of justice was well-served by her professionalism.

[105] I also want to inform Mr. Guillaume that I was impressed with how he represented himself and conducted his defence. I understand the criminal justice system can be difficult for those lacking formal legal training. It was clear to me that he came prepared to each day of the trial and was prepared to cross-examine the officers. I thank him for his efforts too.

Released: September 19, 2022 Signed: Justice Brock Jones

[^1]: The Crown must also prove the accused knew the person(s) he assaulted were peace officers, but that element of the offence is not in dispute in this trial.