Court File and Parties

DATE: March 28, 2023 ONTARIO COURT OF JUSTICE

HIS MAJESTY THE KING v. DWIGHT WHITTAKER

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE GIOURGAS On March 28, 2023, at Toronto, Ontario.

APPEARANCES: Counsel for the Crown: H. How Counsel for Mr. Whittaker: B. Badali - Amicus

COURTROOM G OLD CITY HALL

Reasons for Judgment

GIOURGAS, J Orally:

Dwight Whittaker was arraigned on June the 15th, 2021, before me, alleging that on the 26th day of November, 2018, he committed various offences against peace officers and specifically, court officers at the courthouse at 361 University Avenue, where Mr. Whittaker was being tried before the Honourable Justice Kelly Byrne, in the Superior Court of Justice with a jury.

The Crown proceeded by summary conviction and the matter proceeded before me for what was supposed to be a four-day trial, with a Charter motion to be heard in a blended-evidence fashion. The Charter motion is for relief pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms for alleged violations of Mr. Whittaker's s. 7 and 12 rights under the Charter.

The trial had a long and tortured history. Initially, Mr. Whittaker was represented by Ms. Jessica Zita. She filed the Charter materials on his behalf and conducted the trial for the first few days. The trial was not completed during the allotted time and so had to be adjourned for several months into September 2021 for continuation. At that point, Mr. Whittaker discharged Ms. Zita and expressed a desire to represent himself.

Given the somewhat complex nature of the matter and with the consent of the Crown, I appointed amicus, Mr. Bryan Badali, to assist the court in ensuring that Mr. Whittaker's fair trial rights were protected. I am indebted to both the Crown, Ms. How, and to Mr. Badali for the cooperative and reasonable approach they took.

I recognize that when there are peace officers involved as complainants in a matter arising in the context of the execution of their duties, there are extrinsic pressures that a prosecutor must balance with her other obligations in carrying out her duties. Ms. How did so in a fair manner.

The Crown called many witnesses including court officers, their supervisors and the registrar in Justice Byrne's court. A cell video was played, which clearly captured the events relating to counts one to four. Interestingly, Officer Dicks, the officer whose interactions with Mr. Whittaker led to the incident in the cells, did not testify. The Crown’s information was that he was off on some sort of medical leave. Because of this factor, among others (Officer Dicks is the named complainant in counts one, three and four), the Crown decided to exercise her discretion and stayed counts one through four at some point during the evidence.

Another feature of this trial is that Mr. Whittaker absented himself for much of the trial. At various times, I urged Mr. Whittaker to participate but he only occasionally agreed. Mr. Badali, however, did an expert job in protecting Mr. Whittaker's fair trial rights, variously cross-examining witnesses to flesh out potential issues and making cogent submissions when required, including at the closing stage. Mr. Whittaker did, however, testify in his defence and he was provided with transcripts and disclosure along the way during the trial to assist him. Ms. How and Mr. Badali ensured that he had everything that he needed.

Although the Crown stayed counts one through four, the incident in the holding cells and, in particular, the cell video evidence, is relevant to the defence Charter motion. The remedy sought pursuant to s. 24(1) is a stay of proceedings. Although not specifically focused on the holding cell events, the motion, to my mind, especially for a self-represented litigant, must focus on the entirety of events that transpired in the courthouse on the day in question.

The Holding Cell Incident

Mr. Whittaker was held at Maplehurst, and Court Officers Pihura and Athanasiou were detailed to transport Mr. Whittaker to the courthouse for his continuing trial, Mr. Whittaker being in custody on that matter. Mr. Whittaker, the evidence disclosed, was a difficult inmate. Officer Athanasiou in particular, who has a low-key approach and is obviously patient, was often sent to deal with and transport Mr. Whittaker.

Mr. Whittaker had been searched at the detention centre and did not wish to be searched again upon arrival at the holding cells. He expressed this to the court officers. He was escorted to his holding cell after arriving at the courthouse. Officer Dicks assumed control of him and, as is evident on the cell video, he sought to search Mr. Whittaker.

Mr. Whittaker is admittedly a large man, although not tall, but powerfully built. Officer Dicks is both tall and powerfully built, as were most of the other court officers involved in the incident. Officers Pihura and Athanasiou certainly were.

Mr. Whittaker was also cuffed and was in leg shackles. Officer Dicks and Mr. Whittaker were in the holding cell together and other officers were positioned outside the cell. Officer Dicks motioned for Mr. Whittaker to turn around so that Officer Dicks could perform a pat down search for weapons or contraband from behind. Mr. Whittaker did not immediately turn around and may have almost imperceptibly flinched as Officer Dicks tried to direct him to face the other way. I could not discern any physical aggression on Mr. Whittaker's part and there was no evidence that he said anything threatening to Officer Dicks.

At that point Dicks took Mr. Whittaker to the ground and the other officers, several of them, rushed into the cell in order to assist their fellow officer. Their training kicked in and they tried to gain control of Mr. Whittaker. It appears that he was struggling but by that point several officers were using serious force upon Mr. Whittaker. Officer Dicks alleged to his fellow officers that Mr. Whittaker was trying to bite him, to bite his hand, and some of the other officers testified to witnessing this.

Officer Dicks began to strike Mr. Whittaker with closed fist punches and one can see his fist being drawn back and coming down on Mr. Whittaker repeatedly in the melee. I assume, although there is no direct evidence for this, that this is how Officer Dicks broke his hand, the subject of count four.

Eventually, the officers had sufficient control of Mr. Whittaker. He was prone, face down in the cell with officers holding on to various parts of his body. At that point Officer Dicks disengaged and stood up. As he proceeded to try and leave the cell he did not step around or over the prone Mr. Whittaker. Rather, as disclosed by the cell video, he placed one foot on Mr. Whittaker's back and then, to add insult to injury, rather than stepping over him, he placed his second foot on Mr. Whittaker's back and momentarily stood on Mr. Whittaker in a final act of humiliation. Only then did he step off Mr. Whittaker and exit the cell.

It is notable that Mr. Whittaker is a Black man. Officer Dicks is White, as were most, if not all of the other officers involved in subduing Mr. Whittaker. This context, to my mind, is relevant to any determination of the Charter motion, especially at the 24(1) remedy stage should we get there.

The Courtroom Incident

Eventually, Mr. Whittaker was brought to the courtroom he was to appear in before Justice Byrne. The evidence discloses that he was, unsurprisingly, upset when he appeared in court. He told the Court that he wanted to go to the hospital and his concerns were not addressed by the presiding jurist to his satisfaction. Mr. Whittaker grew frustrated and knocked over a plastic cup of water in the course of his interaction with the judge. She ordered that Mr. Whittaker be removed from the courtroom and she left the dais, hoping no doubt that things would cool down when court reconvened.

As the three court officers attempted to remove and escort Mr. Whittaker from the courtroom, he actively resisted. He forcefully punched Officer Pihura in the head and had to be pulled out of the prisoner’s box and taken to the ground. He was pepper sprayed. Ultimately, he was removed from the courtroom.

Analysis of Charges

In consideration of counts five through eight, counts which allege obstructing and resisting each of the three court officers: Athanasiou, Sampson and Pihura, and assaulting Pihura, I have the evidence of the three officers and the court registrar, as well as the evidence of Mr. Whittaker himself.

I have, of course, considered Mr. Whittaker's evidence in the context of R. v. W.(D.). If I believe Mr. Whittaker I must acquit. Even if I do not believe him, if his evidence raises a reasonable doubt, I must acquit on any count upon which it has had that effect. Finally, even if I reject his evidence in its entirety, I must still be satisfied that the balance of the evidence establishes guilt on each count beyond a reasonable doubt.

The evidence of the three officers and the registrar largely corroborated each other. The officers were acting under their lawful authority when they attempted to remove and escort Mr. Whittaker from the courtroom, as distasteful as that might have been for Mr. Whittaker given the earlier events in the holding cells. He actively resisted and obstructed the efforts of the officers to do so. He struck Officer Pirhura in the head.

I have considered the defences of reflex and self-defence and neither has an air of reality. Nor was excessive force used and, although the use of the pepper spray may not have been a commendable course of action, given the circumstances and the fast-developing situation, I am satisfied that it was reasonable.

Mr. Whittaker's testimony was evasive and at times unclear. It is not believable and does not raise a reasonable doubt. The Crown's evidence is cogent and reliable; I accept it in most regards and cumulatively, it satisfies me of Mr. Whittaker's guilt beyond a reasonable doubt on each of the counts.

Charter Motion and Remedy

But that does not end the matter. Mr. Whittaker has brought a stay application for the conduct of the court officers. While his notice, in the main, focused on force used in the courtroom, including being pepper sprayed after he had been taken to the ground, it became clear as the trial went on that the conduct of the officers, and particularly of Officer Dicks, in the holding cell, was going to be a significant issue on the application.

The events in the cells and the courtroom are interrelated. Mr. Whittaker's frustration in the courtroom was directly tied to what he had experienced a short time earlier in the cells. The Crown was aware that the conduct in the cells was going to be an issue on the application; I had signaled my intention to consider it.

In consideration of whether Mr. Whittaker's s. 7 and 12 Charter rights were violated, the cell video was a powerful witness. Officer Dicks was the primary actor in this event. He took Mr. Whittaker to the ground for no good reason that I could discern other than frustration with Mr. Whittaker's not immediately turning around to be searched. The other officers had to react and assist their colleague per their training and protocol, despite the fact that Officer Dicks' actions were unlawful in using force to take Mr. Whittaker to the ground.

Officer Dicks continued his unlawful actions in punching Mr. Whittaker repeatedly when he was on the ground and being subdued by multiple officers. Finally, Officer Dicks' conduct where he stepped and stood on Mr. Whittaker with both feet was unlawful and egregious conduct which, no doubt, had as a goal the humiliation of Mr. Whittaker.

It is hard to watch, as is the entire course of events in the holding cells. There is no doubt that Officer Dicks found Mr. Whittaker a frustrating person to deal with, but that in no way justifies his actions. We hold court officers, and peace officers generally, to a higher standard. Persons authorized by law to use force must exercise restraint. If they do not, situations like this one are created.

I am compelled to make adverse findings against a court officer charged with a difficult job maintaining peace in our courthouses and managing inmates who attend proceedings here and elsewhere. It is not an outcome that I relish. However, these are findings that I must make here; Officer Dicks' conduct on the day in question was, on the whole, entirely unlawful vis-à-vis Mr. Whittaker. Mr. Whittaker's actions after he had been taken to the ground were entirely justifiable. He was being unlawfully assaulted and was entitled to defend himself. His grounding, being beaten and then stood on were clear violations of his s. 7 rights.

I decline to make any findings under s. 12 of a Charter violation.

The issue then becomes a question of remedy. As I have already said, the events in the courtroom a little later are connected to what happened in the holding cell. A stay of proceedings is a remedy of last resort and must only be imposed in the clearest of cases. This is one of those cases. The conduct of Officer Dicks was egregious. Mr. Whittaker's s. 7 rights were deliberately violated. He was violently assaulted by a peace officer no less and, in the end, humiliated by Dicks' standing on him.

The context, as I mentioned earlier, is important. Mr. Whittaker is a Black man. A large white court officer gratuitously and humiliatingly stood on him after beating him. Mr. Whittaker was surrounded by other officers assisting Officer Dicks in subduing him. I do not fault the other officers, but it adds to the context in determining remedy. Any reasonable member of the public would be shocked by what transpired. A stay of proceedings must be imposed for the charges arising in the courtroom. It is the only remedy that could distance the administration of justice from this awful conduct. All the charges are stayed pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms.

Electronic Certificate of Transcript

FORM 3 ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act

I, Janice Young (Name of authorized person) certify that this document is a true and accurate transcript of the recording of R. v. WHITTAKER, Dwight in the Ontario Court of Justice (Name of case) (Name of court) held at 60 Queen Street W., Toronto (Court address) taken from Recording 4811_G_20230328_082825__6_GIOURGV, which has been certified in Form 1.

June 1, 2023 (Date) (Electronic signature of authorized person)

8393825130 (Authorized court transcriptionist’s identification number – if applicable) Ontario, Canada. (Province of signing)

A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.