Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2023 07 21 COURT FILE No.: Central West Region 998 22 S1372

BETWEEN:

HIS MAJESTY THE KING

— AND —

Christopher Judge

Before: Justice J. De Filippis

Heard on: April 24 – 28, June 19, & July 6, 2023 Reasons for Judgment released on: July 21, 2023

Counsel: Mr. G. Leach......................................................................................... counsel for the Crown Mr. S. Buchanan......................................................................................... for the defendant

De Filippis J.:

INTRODUCTION

[1] On the morning of March 18, 2022, PC Molnar was dispatched to 59 Rykert Street in the City of St. Catharines in response to a 911 call about a drug deal in progress in the parking lot of the housing complex. On arrival at the scene, the officer saw the defendant sitting in a motor vehicle. After a brief discussion, the defendant suddenly ran away and was chased by the officer. There was a physical confrontation, and the defendant was also tasered. The defendant got back into his car drove out of the parking lot. In doing so, he struck PC Molnar’s police cruiser and two other vehicles. As the defendant left the parking lot, he encountered other police cruisers that had come to the scene. Those officers pursued the defendant through downtown St. Catharines until the pursuit was called off for safety reasons. The defendant was arrested days after these events.

[2] As a result of these events, the defendant was charged and with these Criminal Code offences:

• Assaulting PC Molnar with intent to resist arrest (s. 270(2))
• Assaulting PC Molnar while he was engaged in the execution of his duty (s. 270(2))
• Operating a conveyance and failing to stop at the scene of an accident (s. 320.16(1))
• Operating a conveyance and failing to stop while being pursued by a peace officer (s. 320.17(1))
• Operating a conveyance in a manner that was dangerous to the public (s. 320.13(1))
• Take a motor vehicle without the consent of the owner (s. 335)

[3] At trial, the defendant moved to exclude evidence because he was arbitrarily detained, contrary to s. 9 of the Charter of Rights and Freedoms and sought a stay of proceedings because the police used excessive force, contrary to s. 7 of the Charter. These motions were subject to a blended hearing, with the trial. The defendant testified with respect to the Charter claims. At the conclusion of submissions, I dismissed the motions for reasons to follow. The defendant did not testify on the trial proper, and it is understood that the evidence he gave on the Charter does not apply to the trial.

[4] This decision explains why I rejected the Charter claims and why I find the defendant guilty of the offences. In this regard, I note that at the close of his case, Crown counsel withdrew the charge of taking a motor vehicle without consent. These reasons do not reference the evidence relevant to that charge.

NON-CONTROVERSIAL FACTS

[5] After the events in question, DC Prinsens obtained video from CCTV cameras at 59 Rykert and PC Hrcak did the same with respect to CCTV cameras in downtown St. Catharines. 59 Rykert Street is a 120 unit townhouse complex. These video records reveal the events and timeline set out below:

• 6:15 AM – A silver Honda Civic motor vehicle arrives in parking lot at 59 Rykert Street
• 6:23 – A person exits from the passenger side of the Honda and goes out of camera view
• 6:33 – A police cruiser arrives and stops in the parking lot behind the Honda
• 6:34 – PC Molnar exits that police cruiser
• 6:35 – The defendant exits the Honda
• 6:37 – A foot pursuit begins involving the defendant and the officer and light flashes as the parties go out of camera view
• 6:39 – The defendant returns to the Honda followed by PC Molnar
• 6:40 – The Honda lights are activated, and it reverses from its parking spot
• 6:41 – The Honda collides with the police cruiser and two other parked vehicles as it leaves the parking lot
• 6:47:13 – The Honda ignores a red light on St. Paul Street as it crosses the intersection at intersection Ontario Street
• 6:47:18 – The Honda is travelling at a high rate of speed on St. Paul, past William Street. The vehicle headlights and rear lights are not on.
• 6:47:28 – Two police cruisers follow the Honda.
• 6:47:29 – The Honda approaches a three way stop intersection at St. Paul and James Street. There are people walking in the area. The Honda ignores a stop sign as it travels at a high rate of speed
• 6:47:39 – The Honda approaches the St. Catharines Bus Terminal at the intersection of St. Paul at Carlisle Streets. After a bus turns left, the Honda speeds through the intersection, facing a green light.
• 6:47:46 – The Honda, travelling behind a bus, almost hits it when it stops, swerves into the oncoming lane, and continues St. Paul Street, ignoring a stop sign at the intersection Academy Street.
• 6:48:06 – The Honda slows and rolls through a red light at the intersection of St. Paul and Queenston Streets A police cruiser approaches in the oncoming lane and makes a U-turn to follow the Honda. [As the pursuit has been called off, the Honda is not stopped by police]

[6] One of the motor vehicles struck by the Honda as it left 59 Rykert Street was a Mercedes. The other was a Ford Focus. The owners of both vehicles deposed that they were “write offs” and that their loss was covered by insurance, except for a $500 deductible.

EVIDENCE

[7] Mr. Donald Keep lives at 59 Rykert Street. His second-floor bedroom overlooks the parking lot. He testified that at 5:50 AM on the day in question, he looked out of his bedroom window and saw a young woman in the parking lot, about 30 feet away. He said she was “bouncing like a spring as if she was under the influence of a substance”. She stopped her movements “as if she was waiting for someone”. Mr. Keep dept watch and soon saw a motor vehicle pull into the lot and stop between two parked cars, one of which belonged to Mr. Keep. He added that a few days before this same vehicle was parked in the same spot. He said it was a Mazda sedan. The woman entered this car by the front passenger door.

[8] Mr. Keep called 911 because “obviously a drug deal was going on at this early hour of the morning”. A police cruiser arrived ten minutes later. A uniformed officer approached the driver’s side of Mazda and shone a flashlight on the window. A white male exited the driver’s side of the car. Mr. Keep testified that “it looked like the officer was going to pat down the man and all of a sudden the driver runs and is chased by officer”. The parties disappeared, but minutes later they returned to the parking lot. The man arrived first followed by the officer who was about ten feet behind. Both men were running. Mr. Keep saw the man being tasered by the officer. He fell to the ground, rolled over, and got back up. Mr. Keep testified that the man “looked at the officer and roared like a lion” and entered the Mazda. The Mazda reversed, hitting the police cruiser, and a Ford Focus and another car parked on the other side of the lot, and drove out of the lot. Mr. Keep noticed that two police cruisers entered the lot as the Mazda left and he thought there would be a collision. However, the Mazda “swerved to the side and got away”.

[9] Mr. Keep insisted that the car he saw the young woman enter was a beige Mazda. He said the woman was not carrying a purse or handbag. He did not see her again. He also insisted that he only spoke to the police once, when he called 911.

[10] Ms. Dena Fortin also lives in the Rykert Street housing complex. At approximately 6:35am, she looked out of her upstairs bedroom window and observed a police car behind a “grey compact vehicle”. She observed the uniformed police officer talking to the driver sitting in the vehicle. A marked police cruiser was in the area.

[11] Ms. Fortin next saw that the male driver of the small grey car standing beside the driver’s door, emptying his pockets as the officer was looking inside the vehicle. The driver put the items back in his pocket and walked to the front of the vehicle. As the man did so, the officer went to the passenger side of the car and shone his flashlight into it. Ms. Fortin testified that the officer put his flashlight away and walked toward the man while reaching for his handcuffs. The man “then took off running along the sidewalk toward the [housing] units”. The officer chased him, and she could hear the officer talking on his radio, asking for back up assistance, as the parties left her field of vision.

[12] Ms. Fortin got a cup of tea and returned to her window. She observed the parties in the area where the pursuit had begun. The man was on the ground and the officer was struggling to keep him down. She heard the officer yelling, “stay down, stay down”. She also noticed that the man was “big and stocky, much bigger than the officer”. The man got up and ran toward his vehicle. Ms. Fortin heard the officer shout that he must stop or be tasered. She observed the officer deploy his taser, but it did not affect the man. She heard the officer say, “stop or I will tase you again”. She said the officer used his taser three times. Notwithstanding this, the man went toward his car and then turned back and shout, “come on, let’s go”. The officer responded by shouting, “stop or you will get shot”. The man entered the grey car and reversed out of his parking spot. As he did so he hit the police cruiser and another car. As the grey car left the complex, Ms. Fortin saw other police cruisers enter with their emergency lights and sirens activated.

[13] Ms. Fortin testified that the entire incident observed by her lasted 10 – 15 minutes. During this time, apart from the use of the taser, she did not see the officer strike the man. She described the latter as non-compliant. Mr. Fortin added that “there have been constant problems in the complex with drug dealing from certain units” and that she has called police in the past about people in the parking lot who appear to be under the influence of drugs.

[14] Mr. Neil Taylor lives in a unit at 59 Rykert Street that overlooks an area between two townhouses. He has a criminal record and is facing outstanding charges. He was awakened by the sound of yelling and went his bedroom window. He saw a bit of a scuffle between a police officer and a man. The man ran away, and officer chased him. He heard the officer shout several times that he would use his taser if the man did not stop. The man made “a growling sound, like an animal sound” as he ran.

[15] Mr. Taylor went outside to investigate and found the parties in the parking lot. The man was in the driver’s seat of a car and the officer was standing to the side of it. The police officer kept yelling at the male to stop. He observed the officer with his firearm, but it was not discharged. Suddenly, the man reversed and collided with the police cruiser. The car hit other vehicles as it made its way out of the housing complex. During testimony, Mr. Taylor produced a one-minute video of part of the incident that he had taken with his phone. The video clip shows a Honda reversing quickly and colliding with other cars.

[16] PC Molnar began his shift on March 18, 2022, at 6 AM. He had joined the police force the year before. At 6:27 AM, he was dispatched to 59 Rykert Street for a drug related complaint. He had been to this housing complex for such complaints between five and ten prior occasions. He was operating a marked cruiser in his police uniform. He was advised the complainant, Donald Keep, had observed a potential drug deal going on in the parking lot and involved a woman walking to a beige Mazda.

[17] The officer arrived at 6:33 AM. Since he did not observe a beige Mazda, he contacted Mr. Keep from his personal cell phone to obtain further information on the drug deal he observed. Mr. Keep advised PC Molnar that the vehicle was still in the parking lot and directed him to a vehicle which was, in fact, a silver Honda, parked on the west side of the lot between a black Impala and a black Mercedes. PC Molnar spotted the vehicle and stopped his vehicle in the roadway portion of the parking lot horizontally behind it, approximately eight to ten feet away. He testified that he did not intend to block the Honda as, at this point, he had no reason to do so.

[18] PC Molnar approached the vehicle and observed a man reclined in the driver's seat of the vehicle. He identified himself as a police officer, advised the driver that he was there investigating a drug related call, and asked the driver the reason for of his presence in the parking lot. The latter told the officer that was waiting for his girlfriend, and in response to the officer’s inquiry, identified her as Jessica Simpson. PC Molnar suspected this information to be false because it is the name of a well-known celebrity. He also observed that the defendant was nervous in demeanour and stuttering in speech. He noted that his experience with drug complaints in this housing complex added to his suspicion about the defendant.

[19] When PC Molnar asked the defendant for his name, the latter searched his pockets and then the console area of the car. The officer clarified that he had not asked for identification, only his name. The defendant exited the vehicle and the officer saw that he had a red Milwaukee folding knife in his hand. The knife was folded, and the defendant did not appear aggressive. Nevertheless, for safety reasons, the officer asked him to leave the knife in the car. The defendant complied.

[20] The defendant did not verbally identify himself and told PC Molnar he left his wallet at home. The officer looked through the windows of the motor vehicle as he walked around the front of car to passenger side. He saw a clear glass bong in a black bag in the rear passenger side floor of the vehicle. It had a stem [pipe], that the officer recognized as a means of consuming crystal methamphetamine. Beside the black bag, he observed a clear Ziplock bag with clear white shards that appeared to be crystal methamphetamine.

[21] The interaction between the officer and defendant had lasted a few minutes. PC Molnar told the defendant he was under arrest for possession of illicit drugs and walked toward him to effect the arrest. The officer testified that the defendant said that “they were not his and that he had been clear for 12 years”. When the officer replied that they would “figure it out”, the defendant said, “fuck this” and bolted. PC Molnar chased him. In the result, the parties ran through the housing complex, toward a playground, and then looped back to the parking lot.

[22] Soon after the chase began, PC Molnar dropped the keys to his cruiser, stopped to pick them up, and caught up to the defendant at a northwest corner unit of the complex. It appeared the defendant had tripped as he was “on all fours”. The officer tackled the defendant and tried to handcuff him. He was on one knee as he did this, yelling to the defendant to stop resisting arrest.

[23] According to PC Molnar, the defendant “rolled away, got up and ran”. PC He resumed the chase and caught up to the defendant a second time after they had run through the to the boulevard. Again, the defendant ignored commands to stop resisting. Although the defendant is a few inches shorter than the officer he has a stockier build. The officer was unable to handcuff the defendant as “to resist, was violently flailing his arms, elbows, legs”. The defendant tried to push the officer away and was making all kinds of incoherent noises”. PC Molnar delivered several punches and knee strikes to gain control the defendant. He now realized that his chest radio was missing and was worried about the lack of communication. He had the defendant’s shirt pulled over his head and had a grip of his head. He held the defendant while he waited for back up. The defendant grabbed the officer’s legs, and the latter delivered more knee strikes. This did not subdue the defendant and he reached for the officer’s vest and belt. Concerned that the defendant would get hold of his firearm, the officer let go of him and stood up.

[24] PC Molnar grabbed his taser, and the defendant ran approximately twenty feet back to the parking lot. The officer followed and shouted, “stop… or you will get tased”. The defendant entered his car and then came back out and said, “let’s go”. The officer, cognizant that there was a knife in the car, deployed his taser from a distance of about three metres. The first prong struck the defendant below the sternum. The defendant was not defeated by this and screamed, “let’s go”. PC Molnar delivered a second taser cartridge to the defendant’s chest. The officer testified that the defendant “pulled out prong from below the sternum and screamed like a rabid animal”. With no cartridges left, the officer delivered a dry stun taser. This was also ineffective in defeating the defendant.

[25] PC Molnar saw the defendant reach into his car to obtain the red Milwaukee folding knife. He commanded him not to do so and added, “it’s just drugs, man, you don’t want to get shot”. The defendant replied with a “bear growl”. The officer backed away and pointed his firearm at him. The defendant entered his car and reversed, crashing into PC Molnar’s cruiser as well as other vehicles. The officer saw the Honda Civic go over a curb as it left the parking lot as other police cruisers arrived on scene.

[26] Defence counsel challenged the evidence of PC Molnar with particular reference to whether he had detained the defendant or ever had the requisite grounds to arrest him. The officer repeated that he had responded to a 911 call for service and that the defendant was not under arrest or detention when he first arrived and looked into his car. He added that he did not deliberately block the defendant’s car. He simply stopped in the parking lot roadway and approached the defendant’s vehicle. The officer conceded that the defendant had to strike his cruiser to get out of the parking lot. He did not consider the defendant to be detained and does not recall the defendant asking him if he was.

[27] PC Molnar repeated that on arrival he identified himself as a police officer, told the defendant he was investigating a drug related call, and asked him what he was doing in the parking lot. The officer did not believe the defendant’s girlfriend was Jessica Simpson, but the primary reason for his suspicions about the defendant was his nervousness, shaking, and failure to state his name. The officer described it as more than the usual nervousness people exhibit when dealing with him as a police officer. He denied asking the defendant to produce identification.

[28] The officer was challenged on his assertion that he saw a glass bong in the defendant’s car with a stem used to load crystal methamphetamine. He replied that he has seen this type of bong before with that stem. The officer denied that the defendant said the bong was for “weed” and explained how this device is different than the bongs used to consume marihuana. The bong was about 12 inches in height in a open black bag that looked like a duffle bag or cooler bag. He also saw clear white shards, consistent with crystal methamphetamine, in a clear bag beside the black bong bag. Both bags were on the floor of the rear passenger side of the car. The officer saw these items when he looked into the car window. He explained he did so because of the 911 call about drug activity as well as his observations of the defendant.

[29] PC Molnar testified that he decided to arrest the defendant once he saw the crystal methamphetamine and the related bong. He rejected the suggestion he told the defendant to empty his pockets. While this may have happened, he did not direct it because such a command creates officer safety issues as the defendant could have had a weapon in his pockets. The officer said he would follow protocol and arrest, handcuff, and then personally search the defendant. He added that this did not happen because when he told the defendant he would be arrested for possession of drugs, the latter said he had been clean for 12 years and ran away.

[30] PC Molnar confirmed that the defendant had a bloody face and cuts to his forehead. He said these injuries must be the result of being punched or falling to the ground. He denied “putting a choke hold” on the defendant or that he had been “driving his face into the pavement and added that he could have struck his face on the ground during a “dynamic fight”. The officer repeated that he used the taser because of the defendant’s aggressive posture his challenge to fight by saying, “let’s go”. The officer denied that it was deployed while the defendant ran away; he said the defendant faced him at the relevant time and that the dry stun was used because the defendant continued to resist.

[31] Ms. Helen Pandor was at her residence at 8806 Netherby Drive, when she received a telephone call from her brother at 7:20am. He brother, who was not in the home, told her that there was someone at the front door. He knew this because the security camera at the residence is linked to his phone.

[32] Ms. Pandor opened the door and observed a white male with blood on his forehead. It is not disputed that this is the defendant. The defendant told her that his car broke down and asked her to call a taxi to go to Port Robinson. His car was in the driveway. She asked him if he had been in an accident and the defendant replied that he had been “jumped”. Ms. Pandor called for a taxi and told the defendant to wait in the driveway for it. When the taxi arrived, she saw the defendant leave in it. After his departure she investigated the car that had been left on her property. She found a document identifying Matthew James as the owner of the vehicle and a “casino card” in the name of Christopher Judge.

[33] Later that evening, other individuals came and arranged for the car to be towed away. Still later, Ms. Pandor reported her interaction with the defendant to the police because she read on her facebook account that a man by the name of Christopher Judge was wanted by police.

[34] Ms. Toni Fournier is the taxi driver who came to Ms. Pandor’s home to pick up the defendant. She arrived at 7:39 AM and dropped him off in Port Robinson at 7:53 AM. He paid for the fare in cash. Ms. Fournier noticed that the defendant seemed to be in a hurry and had a couple of shopping bags with him.

[35] PC Rymarchuk responded to the radio request for assistance by PC Molnar. It was 6:30 AM and he heard PC Molnar report that he was in a foot pursuit. PC Rymarchuk was in uniform and operating a marked cruiser. He testified that other officers followed him to 59 Rykert Street in separated cruisers. At 6:43 AM, as the officer approached the housing complex, he heard another radio transmission from PC Molnar reporting that his taser had not been effective.

[36] PC Rymarchuk activated his emergency lights and siren as he entered the parking lot. He saw a small car come out at a high rate of speed and jump the curb as it exited the parking lot at Rykert Street. The officer turned his cruiser around and followed. He saw the fleeing car ignored a stop sign and Chesswood and Churchill Streets and proceed northbound on St. Paul Street. The car ignored another stop sign a T-intersection as it turned eastbound. PC Rymarchuk noted that his speed was 105 km/hr and the subject car was outpacing him. He testified that the posted speed limit for the streets in downtown St. Catharines is 50 km/hr. The car approached a bridge over train tracks and as it continued, “it went into the air and came down”. At this point, the “road sergeant” called off the chase.

[37] PC Rymarchuk testified that he followed the subject car for a distance of 1.1 km from the parking lot at 59 Rykert to the bridge when the pursuit was called off. He described the subject car as a silver Honda. He added that during the chase he never saw the brake lights illuminated on the Honda.

[38] PC Nete and PC Nenadovich arrived at 59 Rykert Street in separate cruisers at immediately after PC Rymarchuk. They observed the silver Honda for brief periods, at different locations in downtown St. Catharines, as it was pursued by PC Rymarchuk. Both officers testified that the Honda was speeding, never attempted to brake, and ignored several stops signs.

CHARTER MOTIONS

[39] The defendant is currently employed renovating a hotel. The defendant testified that on the day in question, he had been hired to fix a fence in Niagara on the Lake. He testified that he went to 59 Rykert Street sometime before 6 AM to pick up Ms. Jessica Simpson. She lived at the housing complex and was to assist him with the fence job. When she entered his car, the defendant noted that she did not have proper shoes and learned that she had forgotten her lunch. She left the vehicle to change shoes and get her lunch. Ms. Simpson did not return. As the defendant waited, a man who said he was a police officer arrived and knocked on his driver door window with his flashlight and told him he was there in response to a complaint about drug activity. The defendant replied that he was waiting for his partner for work. As the officer shone a flashlight into his car, the defendant said that that he did not have drugs and was going to work. He then asked if he was being detained as he noticed that a cruiser had blocked his car from leaving. The officer replied, “not yet” and asked the defendant for his name and who he was waiting for. The officer was incredulous when told the defendant was waiting for Jessica Simpson.

[40] The defendant testified that he had a had a “closed knife” in a cup holder in his car. The officer told him to place the knife on the passenger seat and step out of the motor vehicle. He did so. The officer walked around the car and looked into it with the use of his flashlight. When the defendant asked if he was being arrested, the officer replied that he was investigating. The officer said he saw a bong. The defendant explained that it was for “weed”. The officer said it was for methamphetamine and told the defendant to empty his pockets. When the defendant complied, he put “money bills” on the roof of the car and the blew away. The officer told the defendant to retrieve the money. The defendant said,” fuck this” and ran away.

[41] The defendant explained his decision to run on the fact that four months prior to this event, he was the subject of a home invasion by people who came with guns and said they were police officers. As he ran, he was struck by something and dropped to the ground. He assumes it was a taser. While rolling on the ground, the officer jumped on him and punched him. The defendant repeated that he did not know if the man was, in fact, a police officer. He did not punch back and just tried to avoid the blows. He managed to get on his feet to run back to his vehicle so he could leave the housing complex. He added that his leg was badly injured, and he could barely walk. When the parties arrived at his car, the officer tackled him again and delivered “lots of punches and kicks”, followed by another taser.

[42] The defendant produced a photograph, taken by a friend a few hours after his encounter with PC Molnar that shows injuries to his face. The defendant said this happened while he was on “all fours under a choke hold” by the officer. He explained he dropped to the ground headfirst and added, “I thought I was going to die, I could not breathe from running, [but] I got a burst of energy and was able to get up and toss him off me…I went to the door of my car, and he went for his firearm”. The defendant testified that the officer said, “I don’t want to shoot you” and added that throughout the encounter “he was muttering things you would not expect a police officer to say”. The defendant searched for his keys and found them under the driver’s seat. He testified, “I panicked, I had to get out of here or he would kill me, he was saying things, I the car started and he pointed the gun at me, I put car in reverse, tried to avoid the cruiser and hit it on the way out, I put car in drive and hit another car and hit a third, I couldn’t see what I was doing”. The defendant added that as he left the parking lot, “a few more police officers came in and I panicked even more”.

[43] The defendant admitted to the criminal record put to him in cross-examination. He could not recall the name of the client who hired him to fix the fence in Niagara on the Lake. He could not recall what unit Ms. Simpson lived in at the Rykert housing complex. He noted that he has not been able to contact her since this event and added that she might be in jail. When asked what Ms. Simpson would do to assist in the fence job, the defendant replied that she would help him cut the gate.

[44] The defendant explained the testimony of PC Molnar that he was reclined in the driver’s seat by stating that he was bent over reading paperwork by the light of his radio. When it was suggested that the radio would not produce much light, he responded that it was a custom radio that illuminated the paper.

[45] The defendant agreed that on arrival, PC Molnar identified himself as a police officer, advised he was there for a drug investigation, and asked for his name. The defendant testified that he could not tell if the person rattling the flashlight on his window was wearing a uniform because the light was in his eyes. The defendant testified that once he was outside his car, he saw a marked police cruiser in the parking lot. The following exchange occurred between counsel and the defendant:

Crown counsel: So, you saw it [the cruiser] before you said fuck this and started to run? Defendant: I don’t recall C: You asked the person if you were detained? D: Yes D: So, you knew he was an officer? A: Portraying to be an officer

[46] The defendant said that throughout the encounter with PC Molnar, he was not confident he was a police officer. He maintained this position notwithstanding that he saw the word POLICE in large block letters on his vest, was advised he was under arrest, and later tasered. He added that he only realized PC Molnar was a real police officer when he fled the complex in his car and saw other cruisers coming into the parking lot. He said he continued his flight because, “I was scared, I knew I was in serious trouble”.

[47] The defendant agreed that he did not report the previous home invasion. When his girlfriend did, the defendant declined to provide a statement to police. He explained this by pointing out that the assailants said they were police, and he was frightened to speak to the investigating officers. When asked if the assailants were dressed as police officers, he replied that the were dressed in black.

[48] The defendant does not recall PC Molnar with firearm in hand, say, “it’s only drugs, we’ll work this out”. He explained that he fled in his car because the PC Molnar was “doing things that were not becoming of an officer”. The defendant added that during the foot chase, the officer had called him a “cocksucker”.

[49] The defendant abandoned his car at the Panders’ home because it had overheated. His friend, a nurse, examined him and said he had a ‘massive concussion and cracked ribs”. He did not seek further medical assistance because he was scared. He added his doubts about whether PC Molnar was a police officer returned and he could not now be certain the police cruisers that had pursued him were legitimate because they “shut their emergency lights off”.

[50] In re-direct examination, the defendant conceded he initially thought PC Molnar was a police officer but did not comply with his directions for fear of being hurt. He repeated that his money had blown away in the wind when he emptied his pockets and that he thought he was about to be robbed.

[51] The Charter motions are to be determined based on the evidence called by the Crown and the testimony of the defendant. I received written submissions, supplemented by oral argument with respect to the claims that the defendant was arbitrarily detained and subjected to excessive force.

[52] I reject the evidence of the defendant on the relevant points in issue. It may be that he is not credible or unreliable or both. With respect to the latter, I note the evidence of several witnesses that during the encounter with PC Molnar, he made strange animal sounds, roaring like a lion and growling like a bear. Those witnesses, and the defendant himself, also noted his occasional strong bursts of energy and physical prowess. This evidence, not controversial, suggests he may have been under the influence of drugs. In the result, I need not decide the issue. Whatever the cause, I cannot accept his testimony.

[53] There is no air of reality to defendant’s assertion that he fled on foot within minutes of being approached by PC Molnar because he doubted that he was a police officer. I must add that his testimony on this essential point fluctuated; he denied such knowledge, then conceded it, then doubted it again, going so far as to doubt that the police pursuing him in downtown St. Catharines were real. In any event, it is impossible to believe this testimony.

[54] PC Molnar arrived in a marked cruiser. It may be that the defendant was previously the subject of a home invasion but that has nothing to do with his actions in the present case. The defendant’s stated response to the home invasion suggests much more was going on; he never reported the matter and refused to cooperate with investigators. Moreover, although the defendant contradicted himself later in testimony, he was confident the police cruisers coming into the housing complex as he fled in his car were driven by real police officers. He did not stop to seek their assistance in dealing with Molnar, the police imposter. He led those cruisers in a chase through the city. This cannot be explained, as he would have me believe, by “panic”.

[55] The defendant claims he was at the housing complex before 6 AM to pick up Ms. Simpson so she could help him with a fence job. Her role was to help him cut the gate. It is not at all clear why such assistance was needed. In any event, it is said she showed up without proper shoes and or her lunch. She left to get those items and never returned. Why? She lives in the complex. Was there something about the police arrival that would have deterred her? It is reasonable to conclude she did not want to interact with the police because she was, in fact, the bouncy lady seen by Mr. Keep, and such activity at the place and time is consistent with having ingested drugs. I note that PC Molnar saw what he believed to be crystal methamphetamine in the defendant’s car. I need not decide whether the defendant had supplied Ms. Simpson with drugs; what I do find is that he was not truthful about his reason for being at the parking lot and meeting with her.

[56] There are other examples of why I reject the defendant’s evidence. His tale about bending down to read a document by his radio light is hard to accept. Why even a custom radio would give off such light is a mystery. I note that all cars have an interior light switch. Moreover, there is no other reference by the defendant or PC Molnar to papers in the car. Equally incredible is the suggestion that the defendant had a legitimate concern about being robbed by PC Molnar when money was produced from his pocket.

[57] Finally, the evidence of the civilian witnesses contradicts the defendant’s account of his encounter with PC Molnar. Accordingly, in the immediate paragraphs to follow, I decide the Charter motions on the Crown evidence. In this regard, as will be explained below, I have confidence in the truthfulness and accuracy of that evidence.

Detention and Arrest

[58] The test is not whether PC Molnar thought he had detained the defendant but whether a reasonable person would believe s/he was detained. However, not every interaction with the police will amount to a detention, even when a person under investigation for criminal activity is asked questions or delayed by contact with the police. Where the police believe a crime has been recently committed, they may engage in preliminary questioning of bystanders without giving rise to detention under s.9 and 10 of the Charter: R v Suberu, 2009 SCC 33 at paras 23, 28.

[59] PC Molnar responded to a 911 call from Mr. Keep about drug activity at a particular place. On arrival, the officer approached the vehicle and asked the defendant to identify himself. He did not. The officer saw a knife in the car. He asked the defendant to place it on the passenger seat and exit. This was done. The officer looked into the car and saw evidence of a drug offence. When the defendant heard this, he fled. Except for the fact that PC Molnar parked his cruiser behind the defendant’s car, it cannot be said that there was a detention during this encounter.

[60] In this case, assuming there was a detention, it was an appropriate investigative detention, based on the information received by PC Molnar and his observations. The encounter between the officer and defendant, before the latter bolted, lasted three minutes – from 6:34 AM to 6:37 AM (the entire incident, from arrival of the officer to the flight of the defendant in his car, lasted eight minutes).

[61] In R v Ahmed 2022 ONCA 640, Justice Coroza, speaking for the Court of Appeal for Ontario held as follows:

[24] The appellants argue that the trial judge erred in finding that the police had the requisite grounds to detain the occupants of the Charger, which infringed their s. 9 Charter rights. I disagree.

[25] The requirements for a justifiable investigative detention are twofold: (1) police officers must have reasonable grounds to suspect that the specific person is implicated in the criminal activity under investigation; and (2) the decision to detain must be reasonable on an overall assessment of all circumstances: see R. v. Mann …..

[26] The trial judge was required to take a common sense and practical approach to the issue. The trial judge determined that the police officers carried out a Charter -compliant investigative detention and protective pat-down search of the occupants. He found that the police had reasonable grounds to detain the three males to investigate their potential involvement in the reported gunfire. Although the police did not know whether the gunshots originated from the Charger, the trial judge was satisfied that the fact that the Charger matched the descriptions of the vehicle that was seen speeding away from the approximate location of the gunshots supported a reasonable suspicion that the occupants had knowledge of what occurred.

[27] In the end, the trial judge had little difficulty in concluding that the detention of the occupants was lawful.

[62] I find that the two-fold requirements for investigative detention are met in this case. I also find that once PC Molnar formed reasonable and probable grounds to arrest for possession of drugs after he observed what reasonably appeared to be crystal methamphetamine and a related bong in the defendant’s motor vehicle.

Use of Force

[63] The onus is on the defendant to demonstrate, on a balance of probabilities, that the police officers used excessive amounting to force amounting to a violation of his Charter rights. The Crown has the burden to show that the use of force was justified in the circumstances under s.25(1) of the Criminal Code: R v Creary #2, 2021 ONSC 4936 at para 15 and R v Robinson, 2019 ONSC 4696 at para 102.

[64] The defendant bolted immediately after PC Molnar saw what was in the back of his car and advised he would be arrested. Later, when he abandoned his car, Ms. Pandor saw him leave in a taxi carrying shopping bags. The officer pursued him to effect the arrest. While doing so, the officer commanded the defendant to stop. This was ignored. When the officer caught up to the defendant, the latter resisted efforts to be taken into custody and pushed PC Molnar. The latter responded by inflicting punches and knee strikes on the defendant. Ms. Fortin confirmed the officer’s description of the defendant as “stocky” and “much bigger” that the officer. She also confirmed the defendant was “non-compliant”. In this regard, as previously explained, I do not accept that the defendant truly doubted that PC Molnar was a police officer.

[65] PC Molnar was unable to subdue the defendant and effect the arrest. As the defendant continued his flight on foot, the officer warned him he would be tasered if he did not stop. Ms. Fortin confirmed that the taser was deployed once the defendant had arrived back at his vehicle, turned to face the officer, and said, “let’s go”.

[66] PC Molnar failed in his efforts to arrest the defendant and take him into custody. In the dynamic unfolding of events, including the defendant’s resistance and aggression and the nature of the defendant’s injuries, I find that PC Molnar's use of force was no more than necessary in the circumstances.

ANALYSIS OF TRIAL ISSUES

[67] The Crown must prove its case beyond a reasonable doubt. A reasonable doubt is a doubt based on reason and common sense which must be logically based on the evidence or lack of evidence: R v Villaroman 2016 SCC 33. If the Defence calls evidence there must be an acquittal if the testimony is believed or the testimony is not believed, but nevertheless raises such a doubt. An acquittal will follow even if the Defence evidence is not believed and does not leave a doubt, based upon reason, but the remaining evidence fails to prove that the defendant is guilty: R v W.D. 1991 SCC 93. In determining if the Crown has discharged its burden of proof, all evidence may be considered.

[68] I do not consider the defendant’s testimony on the Charter motions at this stage of the trial. However, my findings of fact in that voir dire are part of my analysis of the remaining trial issues. I will not repeat that again.

[69] There is little dispute about what happened after the defendant left the parking lot. Although the Defence challenged the testimony of the pursuing officers about the speed at which the defendant travelled and whether his car was airborne as it went over the bridge. The defendant left the parking lot in a hurry, striking three cars and jumping a curb to avoid oncoming cruisers. I have no doubt that the pursuing officers were truthful and accurate in describing the way the defendant drove through downtown St. Catharines. Moreover, the fact that he ignored several stops signs is captured on CCTV. I have similar confidence in the testimony of PC Molnar and the two of the three civilian witnesses.

[70] Mr. Keep did not attempt to mislead me but is not a careful historian. He erroneously describes the car as a Mazda but on all the evidence it is clear it is the defendant’s Honda Civic. I find he is also mistaken about denying a second discussion with PC Molnar about the location of the car. The rest of his evidence accords with that of Mr. Taylor and Ms. Fortin. Their evidence was not undermined or contradicted. These witnesses, especially Ms. Fortin confirm the testimony of PC Molnar about his relatively brief and violent encounter with the defendant. Taken together it amounts to proof beyond a reasonable doubt of the offences in question.

[71] Having regard to my assessment of the Crown evidence and the findings made with respect to the Charter motions, the charges of assault with intent to resist arrest and assaulting a peace officer are proven.

[72] There is no dispute that the defendant hit three cars as he drove out of the parking lot. Two of the cars are “write offs”. I disagree with the Defence suggestion that the offence of failure to stop at the scene of an accident requires injuries. The wording of s. 320.1 makes clear that property damage also gives rise to duty to stop.

[73] The manner of driving as described by witnesses in the parking lot and the pursuing officers through downtown St. Catharines as well as the images captured on CCTV means that the defendant is guilty of failure to stop while being pursued by police. In coming to this conclusion I have considered R v McLean 2016 ONCA 38 para 6 and R v Hadi 2022 ONSC 2903 – para 123

[74] In R. v. Roy, 2012 SCC 26, the Supreme Court confirmed its past jurisprudence and restated the actus reus and the mens rea of dangerous driving in the following manner:

In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused's manner of driving, not the consequences, such as an accident in which he or she was involved.

The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances.

[75] Dangerous and failure to stop while being pursued by police are distinct offences but the evidence of both offences in this case are closely linked. The defendant, knowing he was being pursued by police, ultimately escaped by driving at high speed, through a downtown core, while ignoring several stop signs. There were people and other vehicles on the route he took and is a marked departure from the standard of a prudent driver.

[76] The defendant is found guilty of counts one to five in the Information.

Released: July 21, 2023 Signed: Justice J. De Filippis