R. v. Dawkins, 2023 ONCJ 609

CITATION: R. v. Dawkins, 2023 ONCJ 609

DATE: February 16, 2023

Information No. 21-15001783

ONTARIO COURT OF JUSTICE

HIS MAJESTY THE KING

v.

MOKA DAWKINS

P R O C E E D I N G S

REMOTELY BEFORE THE HONOURABLE JUSTICE B. BROWN

on February 16, 2023, for a TORONTO, Ontario proceeding

APPEARANCES:

B. Willitts Counsel for the Crown

J. Penman Counsel for Moka Dawkins

BROWN, J. (Orally):

Introduction

Ms. Moka May Dawkins stands charged with a series of offences arising from March 26, 2021. Those charges include, assault with a weapon (water bottle) on John Munick. Assault to PC Matthew Vidal with intent to resist or prevent the lawful arrest or detention of herself. And similar assaults to PC Uros Mirkovic, PC Daniel Constantini, and PC Patrick Rourke.

She also stands charged with failure to comply with a probation order made on November 6, 2018, with respect to a term that should keep the peace and be of good behavior. She is also charged with mischief under $5,000 in relation to damage caused to the light of a parked motor vehicle on the same date and same location.

The Crown proceeded summarily. The defence served and filed a Charter application in relation to sections 7 and 12 of the Charter related to excessive use of force in the course of the arrest of Ms. Dawkins, and argued that there should be a section 24(1) stay of proceedings. There was no section 9 Charter application in relation to the actual arrest.

In the alternative, if the court does not order a stay of proceedings, the defence has requested a remedy for the section 7 and section 12 excessive use of force claim, of a reduction in sentence, in the event that Ms. Dawkins is found guilty on any of the charges.

In relation to the various charges on the ultimate issue, the defence has argued that Ms. Dawkins acted in self defence and that an acquittal should follow. There was an order excluding witnesses. There was an admission that Ms. Dawkins was on probation and required to comply with the probation order, which is the subject of the failure to comply charge.

There were many video clips filed in evidence from surveillance video and body camera footage from the various police officers on the scene during the course of dealings with Ms. Dawkins. The trial was originally scheduled for four days, beginning on September 6, 2022. However, it has continued well beyond that time for an additional three days.

The Crown called two civilian witnesses in the trial, Mr. John Munick, the complainant on the assault with the weapon charge, and Ms. Sasha Steinberg. The Crown also called four police witnesses, including PC Matthew Vidal, PC Uros Mirkovic, PC Daniel Constantini, and PC Patrick Rourke.

The defence called Ms. Dawkins as a witness on both the Charter application and on the trial.

Uncontradicted Evidence

The court was advised at the outset of this trial that Ms. Moka Dawkins identifies as a female and uses the pronouns, she/her. She has been referred to as a transgender female. She had a name change after she was charged with the subject offences and before the trial commenced.

At the outset of the trial, her name on the information was changed from Curtis Gordon Dawkins to Moka May Dawkins, consistent with her name change. She is also a racialized woman.

A focus of the defence was Ms. Dawkins' identity and questioning various witnesses with respect to occasions during her interactions with the police when they did not refer to the accused as she or a woman or use appropriate pronouns given her identity.

On some occasions in the course of what was a very dynamic and fluid situation, when officers were engaged in trying to arrest Ms. Dawkins, they used the term "he". On other occasions the word "she" was used by various witnesses, sometimes the same witness who on another occasion said "he", when trying to get Ms. Dawkins in the police vehicle while under arrest. A focus on the cross-examination of the officers related to questioning them as to why they had not referred to the accused as "she" rather than "he" in the course of their dealings with Ms. Dawkins on the scene. There was no point at which there was a discussion on the scene after the arrival of police officers with Ms. Dawkins as to how she wished to identify herself.

The complainant on the assault with a weapon charged, John Munick, sustained a cut to his face on his nose, arising from having been struck by Ms. Dawkins using a metal water bottle to hit him in the head. He also gave evidence which Ms. Dawkins denied, of Ms. Dawkins kicking him in the ribs when he was down on the ground, which is referred to below.

The mischief charge relates to an allegation that Ms. Steinberg observed where Ms. Dawkins used her metal water bottle to strike a rear taillight to a motor vehicle that was parked on Roncesvalles. While Ms. Dawkins did not specifically admit that action as noted below, she did admit in her testimony that she was swinging and essentially not paying attention to what she was swinging at.

As noted above, there were many body camera videos which were played in this trial over and over and over again, often broken down into split second clips which were used in the cross-examination of witnesses. The court bears in mind that events occur in real time and are often not perceived in split second clips, but rather are tiny segments of a dynamic fluid motion as during the course of the exchange between Ms. Dawkins and the various civilian people on scene and the police officers.

The probation order which is the subject of the failure to comply charge was filed as Exhibit 18. It was imposed on November 6, 2018 to follow an 18-month term of imprisonment. It was a 2-year probation order, and as noted above, Ms. Dawkins was subject to this probation order on March 26, 2021. She was required to keep the peace and be of good behaviour, pursuant to that order.

Analysis

By way of overview, the court will need to consider all of the evidence in this case, the credibility and reliability of that evidence, and make findings of fact. In addition, the court will need to consider the Charter applications in relation to excessive use of force in the arrest. If the court determines that there is a Charter breach, the court will need to consider whether it should as a remedy order a stay of proceedings. If there is a breach and there is no stay of proceedings, the court will need to determine if a remedy of a reduction of sentence should be imposed for the Charter breach. On the ultimate issue, the court will need to consider self defence, as it relates to the charges, but not on the mischief charge.

Ms. Dawkins is presumed to be innocent. The Crown must prove her guilt beyond a reasonable doubt. The defendant has no burden to prove anything, to explain anything, or to persuade the court of anything.

The principle of reasonable doubt also applies to the issue of credibility. The assessment of credibility is not a matter of choosing between competing versions or determining which is more credible or to be preferred. Where the defendant has testified or called evidence from other defence witnesses or exculpatory evidence has been elicited from other witnesses in the trial, that evidence is entitled to the benefit of the application of reasonable doubt in the assessment of its credibility and the fact finding that follows.

If that evidence is believed and it affords a defence, the defendant is entitled to an acquittal. Even if that evidence is not believed in the sense of believing it to be true, if it nonetheless raises a reasonable doubt, the defendant is entitled to that doubt and an acquittal will follow.

Even if that evidence is rejected, the Crown must still prove guilt beyond a reasonable doubt based on all of the evidence in the trial. A determination of guilt or innocence must not turn into a mere credibility contest between two witnesses or a bipolar choice between competing evidence called by the Crown and by the defence. This approach would erode the presumption of innocence and the burden on the Crown of proving guilt beyond a reasonable doubt. The court applies the law as set out by the Supreme Court of Canada In R. v. W.(D.)(1991) 1991 93 (SCC), 63 C.C.C (3d) 397 and other appellate case law dealing with credibility and the consideration of evidence. As the court reviews its reasons, it will not be giving case citations. However, if there is a transcript ordered, the court will provide the citations at that time.

Review of Evidence Called by the Crown

1. Evidence pertaining to assault with a weapon, John Munick:

In the chronology of events, this is the first allegation. It pertained to an assault allegation before the arrival of the police on the scene. On this charge, the court finds it helpful to review and consider the cell phone video of the incident together with the viva voce testimony of John Munick, Sasha Steinberg and Ms. Dawkins. The evidence of Ms. Dawkins and the other witnesses relating to events prior to the assault on Mr. Munick is as follows. By way of context, Ms. Dawkins testified that inside Helga's store, Helga used the "N" word in reference to her. This happened away from the witnesses and Mr. Munick, who were outside the store. There is no evidence that any of the parties outside the store heard or had knowledge of Helga stating this when it happened.

It is noteworthy and uncontradicted that Helga was at the time in her late 80s or early 90s. She suffered from dementia. Ms. Sasha Steinberg operated a business, Cider House, on Roncesvalles near Helga's store.

Ms. Steinberg heard a kerfuffle outside and went outside to see what was happening. At that time, she saw Moka Dawkins and Helga located two or three shops over from her business in a dispute. There were loud voices, shouting and yelling. She was not able to find out what had happened from Helga due to her dementia. Her only understanding of the incident between Helga and Ms. Dawkins was based on what Ms. Dawkins had told Ms. Steinberg.

Ms. Dawkins told her that Helga had accused her of stealing and had made some racially insensitive comments towards her and about her size and height. In cross-examination, she testified that she could not remember exactly the words Ms. Dawkins said Helga had used. She indicated that Helga said she did not carry anything in Ms. Dawkins' size, referring to Ms. Dawkins as being large. Ms. Steinberg indicated in cross-examination that she told Ms. Dawkins that Helga was elderly, to let this one go. She has dementia and she does not know what she is talking about. However, Ms. Dawkins was still angry.

John Munick testified he was waiting for his clothes in the dryer in the laundromat across the street from the incident and it was around 6:30 p.m. He was standing and he saw a person walking into Helga's store. He testified, he saw a male dressed as a female walk into the store, and within seconds, Helga walked out with a frightened look on her face. She did not know how to deal with the person.

Helga is 4 feet 8 inches tall and has dementia. He described Helga's world sometimes as not being the same as our world. The individual who had walked into the store was over six feet tall and he described this person as having a wild look on the face after the person was outside. Ms. Dawkins walked out of the store as Mr. Munick finished crossing the street towards Helga's store.

Mr. Munick described Ms. Dawkins as having this wild look in her eyes. Mr. Munick approached and saw Helga and Ms. Dawkins. Mr. Munick said, "Can't you see this little old woman? She looks frightened." And Ms. Dawkins yelled out, "I didn't know there was anything wrong." Mr. Munick said to Ms. Dawkins, "Can't you see there's something wrong with her? She has dementia." She's 4 feet 8 inches tall and 80 pounds.

At that point, Ms. Dawkins said something like, she did not realize what was wrong with her. Ms. Dawkins told him that Helga had used the N word in referring to her. As far as he knew, Helga did not have racist tendencies. Ms. Steinberg testified that she saw John (she did not know his last name, but it is apparent that this was the complainant, John Munick) step in and try to deescalate the situation. He explained to Ms. Dawkins that Helga was acting that way due to her age and illness.

Ms. Dawkins continued to pry and said it was not okay. John told Ms. Dawkins to let this go as she is clearly ill and old. He admitted that he probably told Ms. Dawkins to get on her way, and Helga to get on her way and just forget what had happened.

Ms. Dawkins testified that Mr. Munick made transphobic slurs towards her that made her fear for her safety. Ms. Steinberg was a witness who was outside for a portion of time when Mr. Munick and Ms. Dawkins were involved in the altercation. She testified that at no time did she hear Mr. Munick say anything transphobic. She stated that she would have remembered if he had said that, and she would have "thrown him under the bus" if he said that because she does not think such comments are appropriate. Mr. Munick denied using any words of transphobic slurs during the exchange he had with Ms. Dawkins. Specifically, Mr. Munick denied using transphobic terms such as calling her a "trans". He did not remember if he said that she was an it or a thing. He said he did not think he said that.

On the body cam video of Officer Cerqueira, at 7:06 p.m. after the time of the allegations and after Ms. Dawkins had been taken away under arrest, he was doing his laundry. At that time, the video showed that Mr. Munick did not want to get involved in the investigation. He said he was getting his clothes out of the dryer in the laundromat. He said he did not want to give a statement as he had said it had taken a long time for his blood pressure to go down. He, in that moment, referred to Ms. Dawkins as an "it", but explained it was probably a reflex anger moment that he was not in a good mood after what had just happened to him. He did not mean it intentionally.

On video, he was asked again to give a statement. He said, he wanted to calm down and to get something to eat. He did not engage in various slurs or racial comments related to Ms. Dawkins' gender or race. He was relatively quiet and he looked tired on the video.

He testified that using the word "it" was his mood after he had taken a beating. He thought she might have been high because she had a lot of power, he had an ass kicking from her. He was in pain and he was angry at the time. He is not racist. His comments on that video do not reflect him as being racist.

At some point, Ms. Steinberg went back into her store for a few minutes. She did not hear what was said between Ms. Dawkins and John when she was inside her business. She testified that the video recorded the portion of events when she was outside the second time. She returned outside when she heard a commotion again. While Ms. Steinberg was outside, she did not hear John say any transphobic comments — she would have remembered if that was said. It seemed that Ms. Dawkins did not let it go, and a physical fight ensued.

Mr. Munick was asked about the motion of him pushing away the arm of Ms. Dawkins (which was shown in the video up towards him) and he testified he did that because he did not want to get grabbed or hit by Ms. Dawkins. He described the motion as swatting away Ms. Dawkins' hand for self protection. He did not start the physical incident. He denied assaulting Ms. Dawkins and indicated that he would not try to start a fight with the person he had a good chance of losing, his odds were not good on that, as you can see (in the video bracket).

The video was played in cross-examination of Ms. Steinberg and she was asked about the motion of John in pushing away Ms. Dawkins' hand, which was outstretched in the air towards Mr. Munick. She testified, that was not an assault. He was pushing her hand out of his face. At that point she believed that Ms. Dawkins was harassing Helga, who was standing in front of her, as Ms. Dawkins yelled at Helga. At one point, Ms. Dawkins went after him and swung at John a number of times. John tried to walk away. Ms. Dawkins hit him with a metal water bottle.

There were a couple of cars around. Ms. Dawkins pushed him from behind as he had turned around to walk away. He fell onto the sidewalk on his back at one point and Ms. Steinberg helped him up. At one point, Ms. Steinberg tried to break up the fight. She intervened, placing herself between John and Ms. Dawkins, and she told John to walk away, but Ms. Dawkins continued to follow him. He did fall to the ground. He was bleeding from his head.

Over the course of events, people had tried to intervene, but Ms. Dawkins tried to continue the fight. One person called the police. By the end of the evidence in the trial, both Ms. Dawkins and Mr. Munick were in agreement that Ms. Dawkins struck him multiple times, including with the water bottle. The court considers the evidence below requisite for consideration of self defence, which is analyzed later in the reasons.

The video of a portion of this incident filed as Exhibit 5 shows Ms. Dawkins and Mr. Munick facing each other outside Helga's store on Roncesvalles. Ms. Dawkins had her arm raised and extended towards Mr. Munick's face, and as she did that, Mr. Munick pushed her arm away. Mr. Munick backed away and Ms. Dawkins slapped him. Ms. Steinberg walked along with Ms. Dawkins and Mr. Munick, placing her arm between them as she yelled "stop", in the direction of what appeared to be Ms. Dawkins. Ms. Dawkins persisted in continuing to approach Mr. Munick as he continued to back up. She struck him multiple times including striking him with a pink metal water bottle, in the head, with an over the head strike down to his head. You can hear a sound when the bottle strikes his head. The water bottle is dented after she strikes him in the head. The photograph of the water bottle marked as Exhibit 4 shows the dent to the bottle also.

Mr. Munick reached for his head after he was struck. Photos in evidence showed cuts to Mr. Munick's nose. Ms. Steinberg placed herself between the two, and Ms. Dawkins continued to try to assault Mr. Munick as he continued to back up. He tried to defend himself against Ms. Dawkins. Then the video stops abruptly, although the altercation does not necessarily appear to be over. The video clearly shows Ms. Dawkins swinging a metal water bottle multiple times towards Mr. Munick.

In cross-examination, Ms. Dawkins essentially agreed that had happened, at a later point in her cross-examination. She also agreed that her water bottle had come in contact with his head. The court acknowledges that there was no audio on this video to record what was being said between the parties. Mr. Munick also testified he was on the ground as Ms. Dawkins was upright. At that later point, she kicked him in the ribs twice. He testified that this stopped when a Good Samaritan intervened to stop the continuing attack by pulling Ms. Dawkins off of him. He was sore for two weeks after he was kicked in this way.

At this point, Mr. Munick got up and went to an upstairs apartment. This was not captured on the video as it was after the video. Ms. Steinberg was called as a witness and she testified as to the events related on the video above and seeing Mr. Munick down on the ground after he was struck by Ms. Dawkins with a water bottle. The defence argues that this was done in self defence. When one reviews the video and the viva voce evidence, the court would note that Ms. Dawkins struck her hand out towards the face of Mr. Munick. He responded by swatting her hand away, endeavoring to get the hand out of his face. The Crown submits that this was a defensive maneuver on his part.

Ms. Dawkins then swung at him with a fist and then with a steel bottle. Ms. Dawkins agreed in cross-examination that she swung at him six times by using her hand and a steel bottle. The only response or action of Mr. Munick was to swing back once with his fist after she attempted to strike him six times, but he missed hitting Ms. Dawkins.

While this was happening, it is clear from the video and from the cross-examination of Ms. Dawkins that Ms. Dawkins was continuously moving towards Mr. Munick and he was walking backwards away from her. At one point, the witness, Ms. Steinberg, went between the two and told Ms. Dawkins to stop.

Pedestrians gathered on the scene. Other people also tried to intervene by pulling Ms. Dawkins off of John. Towards the end, the police showed up. During this incident, John only swung back in self defence to get Ms. Dawkins off of him as he was being attacked. Photos of the metal water bottle were put in evidence showing it to be around 9 to 10 inches tall.

The video of the incident was played for Ms. Steinberg in court, and she indicated it recorded a portion. There was a portion where Ms. Dawkins had the water bottle raised up over her shoulder and then struck down with it. She pointed out the point at which Ms. Dawkins swung at John's head with the water bottle and hit his forehead. He put up his arms to protect himself, and he touched his forehead after he was struck. It was indicated that the bottle was dented after she struck John in the head.

There was approximately 10 minutes before and 10 minutes after the incident, not recorded. After the video, Ms. Dawkins continued to go after John. John repeatedly tried to step away. He could not. He was pushed by Ms. Dawkins and then fell on the sidewalk. The police arrived after that.

John Munick testified that Ms. Dawkins hit him twice with the aluminum water bottle. There was a scuffle, like wrestling, but she was too strong for him and she overpowered him no problem. He is 66 years old. He described Ms. Dawkins as being 6 feet 5 inches tall. He could not hit her back as she had a longer reach with her arm, and she still had the water bottle in her hand. He ended up on the ground for 8 to 10 seconds, and Ms. Dawkins kicked him in the ribs at least twice. He testified, he was sore for two weeks after that.

Another man pulled Ms. Dawkins off of him, and he thinks the two of them gone in a tussle. Later, he ran upstairs to a friend's apartment because Ms. Dawkins still kept coming after him. She wanted to keep going after him. He testified that they did not say anything to each other when this was going on. By the time that the police arrived, John was behind a door and Ms. Dawkins was trying to get at John behind the door. He testified that the photos in Exhibit 9 show the injuries to his face. He had a bit of a headache for a few days and his ribs were sore, as indicated above for at least two weeks. He had a hard time breathing, although it did not feel broken or cracked. It was painful but it appeared to heal within that two to three weeks.

After the arrival of the police on scene, Mr. Munick was shown on body-worn camera video clips, a notable cut to the bridge area of his nose which was bleeding. He was treated by EMS on scene and later had a bandage over the cut.

Assessment of Credibility of Mr. Munick

It is clear that Mr. Munick was essentially a bystander who tried to intervene in what he perceived was a situation involving the elderly, very petite woman with dementia, Helga. He felt sorry for her. As he saw an incident unfold across the street involving Helga and Ms. Dawkins, he crossed the street. He told Ms. Dawkins that Helga had dementia, being an elderly small woman, and suggested that Ms. Dawkins leave. It would seem on all the evidence in this trial that Ms. Dawkins was probably still angry about what she had related had happened moments earlier in the store when Helga made disparaging comments towards Ms. Dawkins.

In his effort to intervene, it appears that the actions and words of Mr. Munick incited Ms. Dawkins. Mr. Munick testified essentially that she turned her anger onto him. Mr. Munick withstood a very strong penetrating cross-examination. He made some admissions against interest, including that he could have used the word "it" in referring to Ms. Dawkins, but also maintaining that he did not believe he had made inappropriate comments related to Ms. Dawkins' transgender identity.

His evidence was largely consistent on all material matters both in examination in-chief and cross-examination. There is other relevant evidence in addition to the denial by Mr. Munick of name calling to Ms. Dawkins regarding various terms put in cross-examination by defence counsel relating to Ms. Dawkins being a transgender woman. The court would note that Ms. Steinberg did not hear Mr. Munick use any such names and that she would not have stood for that. While the name calling does not necessarily relate to the issue of self defence, this court would note that Mr. Munick might have called Ms. Dawkins some kind of name at some point, although not the types of names suggested by defence counsel. That is consistent with the observations of Ms. Steinberg, who was on the scene for the relevant events.

Although Mr. Munick made a reference to "it" in the laundromat, this was after he had been injured as he testified he was tired and had been injured. That was a moment no doubt of frustration and was not in the presence of Ms. Dawkins. The court would note that Ms. Steinberg and Mr. Munick did not really know each other. They did not know each other's full names.

Mr. Munick did not overstate matters. He testified he was hit in the head two times by the water bottle, whereas other evidence could potentially support a finding that he was struck with the water bottle three times. He maintained throughout that he did not want to fight Ms. Dawkins, and his actions on the video are consistent with that evidence. He admitted he suggested that Ms. Dawkins leave the scene. His evidence was consistent with the video portion of the events.

The injury, being the cut to his nose which is visible in photographic evidence, is consistent with his testimony. Mr. Munick's evidence was consistent in terms of the sequence of events over the many questions that were posed to him. He did not waver. He was not shaken in cross-examination. His evidence was consistent with both the video clip and the evidence of Ms. Steinberg. There were no inconsistencies of a material nature.

As noted above, the court also considered that Ms. Dawkins essentially admitted striking him, including the strike with the water bottle to his head. The court found Mr. Munick's evidence to be credible and reliable.

Assessment of Credibility of Ms. Steinberg

Ms. Steinberg was generally an objective witness. She did not know Mr. Munick other than to know him by the name, John. She did not know Ms. Dawkins. She was present for the relevant parts of the incident, although not the entire time that Mr. Munick and Ms. Dawkins were in each other's presence.

Although Ms. Steinberg admits that portions of her memory have faded over time, her evidence was consistent with what was recorded on the video. She was trying to stop Ms. Dawkins from continuing to assault Mr. Munick. Her evidence was consistent and she was not shaken on cross-examination. Her evidence was in large measure consistent with the evidence of Ms. Dawkins in terms of the assaults by Ms. Dawkins on Mr. Munick. Her evidence was largely consistent with the evidence of Mr. Munick. She did not overstate matters. She did not exaggerate. She did not say she saw things that she did not see, and she admitted that she was away for a part of the time. Her evidence was largely consistent with the evidence of Mr. Munick, consistent with the video evidence, and as well some aspects of the evidence of Ms. Dawkins. The court would find her evidence to be credible and reliable.

The court would also note that she was the only witness that saw Ms. Dawkins use the bottle to damage the parked car on the scene. She was clear in having seen that happen, although she did admit that Ms. Dawkins appeared to cause this damage by intending to strike Mr. Munick, but missing and striking the car instead with the water bottle. As noted below, Ms. Dawkins generally denied damaging this car, but did admit in cross-examination that she could not remember what she was swinging at. As noted below, the court does not accept Ms. Dawkins' denial of damaging the parked car. The court accepts the evidence of Ms. Steinberg as an accurate record of what happened and will as noted below find Ms. Dawkins guilty of the mischief charge.

The way in which Ms. Dawkins struck the car arising from Ms. Steinberg's testimony is that although she appeared to intend to strike Mr. Munick, her swinging of the water bottle was a reckless action of swinging it and hitting the car. The court will address this issue further below as it considers the events of mischief and the mens rea of recklessness as set out in section 429 of the Criminal Code.

2. Evidence pertaining to assault allegations in relation to police officers:

PC Matthew Vidal and his partner, PC Uros Mirkovic were the first officers on the scene responding to a call for an assault in progress. The call indicated that there was someone holding a pink metal water bottle that had struck people in the head with it. The description was for a female, brown, 30 years, heavy build, tall frame. Another description related to the clothing worn by her.

The two officers arrived on scene at approximately 6:27 p.m. on Roncesvalles, and saw that a crowd had gathered. PC Vidal approached Ms. Dawkins, who stood with a pink metal water bottle in her hand, speaking to Ms. Steinberg, who was positioned in front of a door. Ms. Dawkins asked the officer who he was, and he stated that he is the police, that he is Matt. He asked Ms. Dawkins to step over and speak to his partner, who was PC Mirkovic. PC Vidal then spoke to Ms. Steinberg, who did not know the name of the complainant, Mr. Munick. At that point, a white male with a fresh cut to his mouth area approached PC Vidal. This male was shown on the video. He is described as a male, white, 60 years old. He advised the officer that John had been attacked by Ms. Dawkins (pointing her out) that this male had come over to break it up and he got cuffed (pointing to his cut lip).

He advised that John is inside, pointing to the closed door Ms. Steinberg had been standing in front of when Ms. Dawkins leaned down to talk to her in that area as the police arrived.

While PC Vidal was speaking to witnesses, PC Mirkovic testified, he spoke to Ms. Dawkins. Ms. Dawkins had been pointed out as the person who initiated the incident when the officers first arrived on scene. He tried to speak with her and to gain her name or identification. She just said, "Moka".

PC Mirkovic testified that he needed more than a first name. She would not give any further identification. He testified she was uncooperative. In cross-examination, he was asked why he was asking those questions and he indicated that it was standard practice in an investigation to determine the identity of the person. When pressed further in cross-examination about gender preference for Ms. Dawkins, he testified, the first step was to get her identity and then potentially go from there to asking about preferred pronouns and how she wished to be referred to. He did not get that far as his partner, PC Vidal, returned to his area and confirmed to him that he had grounds to place her under arrest and matters proceeded from that point. He asked Ms. Dawkins before PC Vidal returned, what was going on, but PC Mirkovic cannot recall her response.

It is quite apparent on the body-worn camera footage that Ms. Dawkins is a very tall woman with a very large build and size. She is taller and bigger than Mr. Munick, Ms. Steinberg, and various other people who were in her presence during the video clips.

The whole process of the police officers dealing with Ms. Dawkins was a very fluid and dynamic situation, which was broken down second by second multiple times in court in questioning the officers. The court is not going to summarize each and every separate view of each body-worn camera video clip. However, there was evidence from the body-worn camera video worn by PC Vidal and PC Mirkovic (although his camera came off and there was missing footage when it was not worn), PC Costantini (who was the 3rd officer on scene), PC Rourke (although his body-worn camera had also become disengaged for a large portion of events and did not record video for some time until Ms. Dawkins was secured in the police vehicle), PC Cerqueria and PC Hamilton.

The vantage points of each clip varied with the position of the officer wearing the cameras, but generally captured the same sequence of events after each officer's arrival on the scene. The court has viewed each of the body-worn camera clips many, many times, both in court and outside of court, to properly grasp the evidence and consider the testimony of the witnesses in court.

Arising from the availability of body-worn camera video evidence from many officers in this investigation, there are aspects of the events which are clear and uncontradicted. For example, the first two officers, PC Vidal and PC Mirkovic, arrived on scene on the east side of the street on Roncesvalles, just south of Howard Park Avenue at approximately 6:26 p.m.

After speaking to some people on scene, they proceeded to place Ms. Dawkins under arrest at approximately 6:28 p.m. Both officers and Ms. Dawkins were in a standing position at that time. The officers asked Ms. Dawkins to drop her stuff as they did not want anything in her hands while they placed her under arrest. Ms. Dawkins had the pink water bottle in her hand at that time and they wanted to remove any safety risks. PC Vidal placed one handcuff on Ms. Dawkins' right wrist. The officers asked her to put her other (which was her left arm) behind her back to be handcuffed. She did not comply. They were unable to place a cuff on her left wrist as she did not comply with their demands. She did not put her left arm behind her back to be cuffed. Officers told her to stop resisting more than once.

She was turning her body. They were unable to grab and handcuff her left wrist. She still did not give them her left arm or wrist. Officers told her they were going to take her to the ground.

In testimony, PC Vidal explained, it is standard practice to take a person down to the ground to get better control of the person. They again told Ms. Dawkins to stop resisting. They lost control of the handcuffs. PC Vidal explained that he was very concerned that with one wrist in a cuff, that meant that there was a big chunk of metal attached to her wrist, which if swung, meant there was a potential of being struck by the other handcuff. So in his mind, he wanted to take control as quickly as they could in the most safe way possible.

Ms. Dawkins held her hands under her body as she laid on her side. Ms. Dawkins flipped her body around on the ground preventing the officers from being able to secure her body and put the second handcuff on her left wrist. Ms. Dawkins was quite flexible and fast moving, bringing her knee and leg up to the area closer to Officer Mirkovic and towards her chest. She used her leg to go over the top of her body, over the officer's arm, and over to her left side which allowed her to turn her body to get up on her knees.

PC Vidal testified that she was swinging her legs, using her legs to kick PC Mirkovic. She kicked in and around his chest area. Her position changed to being on her back and PC Vidal testified, she was still resisting. PC Mirkovic testified that her legs were striking up towards him. At one point, his arm was almost in an arm lock as she attempted to strike him. Then she was on her knees with her face facing the sidewalk. Officers again asked her to give them her hands. At one point PC Mirkovic testified that Ms. Dawkins reached out towards him in his chest area and his body-worn camera was removed. It became dislodged in the process and fell on the ground.

At one point, she grabbed the keys to the police vehicle, which had also fallen on the ground in the struggle. Ms. Dawkins grabbed the body-worn camera, which was on the ground, and then held it in her hand under her body. Her left arm and wrist were still free, uncuffed. The officer took the camera from her and told her to stop grabbing "shit".

Ms. Dawkins said she had the right to protect herself against police violence as she laid on her side on the sidewalk, still not producing her left wrist for cuffing. The officer said to stop and to calm down. PC Mirkovic held her left arm on the ground as they spoke with Ms. Dawkins who made comments about "Are you stupid? That is how you know you are white".

At some point during the struggle, the testimony of PC Vidal was that he put over the radio that they needed more officers to assist. At this point, the officers still were unable to place the cuff on her left wrist. One officer said, "I need a hand, man". His other hand was trying to hold her leg down and his knee was on her other leg so that she could not get up, but she was still able to move.

In cross-examination, PC Vidal testified that he did hear Ms. Dawkins say after they told her she was under arrest for assault, that she was assaulted. He explained that at this point, Ms. Dawkins was getting pretty agitated. It was his intention once she was in custody to have the conversation with her asking about what had happened to her. He believed at that point after he had interviewed the people on the scene earlier that he had grounds to arrest her for assault. He wanted to remove any possible threat as she still was holding the water bottle, the weapon, in her hand. In cross-examination, PC Vidal testified that once she was in cuffs, he could go to speak to her elsewhere to get her entire side of the story.

A review of the video evidence shows that at this point, the officer still had not progressed in the process, still having placed only one handcuff on her right wrist, the same cuff that was put there at the outset. They had not gained control of Ms. Dawkins. They were not able to complete the process of handcuffing her. She maintained the position of her left arm, which was not cuffed, under her stomach, under her body on the ground. Then, a third officer arrived to assist, PC Costantini, at seconds before 6:30 p.m. An officer repeated, "You are under arrest. Put your hand behind your body". Again, Ms. Dawkins did not comply.

Officers turned her to get access to her left arm and wrist, and Ms. Dawkins then screamed that she can't breathe. The officer told her to put her arm behind her back, then you will get up. Seconds later, the second handcuff was placed on her left wrist at approximately 6:30 p.m. They then turned Ms. Dawkins on her side.

PC Vidal testified that Ms. Dawkins was on her stomach for about five seconds saying she could not breathe before they put her in the recovery position on her side. At various points in time on video, one can see the officers trying to catch their breath. Officers told Ms. Dawkins to calm down, to catch her breath and to give them the camera, Ms. Dawkins said "bitch" to the officers. Officer Mirkovic put the camera back on the front of his uniform.

It is quite clear in reviewing the footage that the officer was out of breath and breathing heavily as Ms. Dawkins laid on her side on the sidewalk. Then PC Rourke arrived on scene, and after checking with the three officers who were with Ms. Dawkins, asking them if they are good, he went over to speak to the witnesses.

Ms. Dawkins asked what they are arresting her for. The officer told her she was being arrested for assault and assault with a weapon. It is apparent on the video that Ms. Dawkins was yelling over the officer who was trying to tell her what she was under arrest for. She yelled, "on who?". She was shouting. The officer told her to shut up, although in cross-examination, PC Mirkovic testified that it was probably not the best tactic of de-escalation for him to tell Ms. Dawkins to shut up, although, he did tell her what she was under arrest for prior to that time.

At that point, PC Mirkovic testified in cross-examination that he put his hand on her face to push her head away as she continued to yell. He did not believe her face was touching the ground at that point.

She said she had the receipts. Then the officers lifted her up to an upright position. PC Mirkovic testified that Ms. Dawkins was facing him, arguing with him. He told her to move. She did not move, so he gave her a little push to move forward. Unfortunately, as they were moving, there was a fairly narrow space between two parked vehicles on the way to the police vehicle that they were heading to. As they walked by one vehicle parked on the left of them, it seemed that Ms. Dawkins almost tripped around that vehicle. PC Vidal explained, he was holding her arm, focusing on her, which seemed to be her left side, and he did not see how or why she tripped around the car.

PC Mirkovic testified, he was on the other side of Ms. Dawkins, and it appeared that both Ms. Dawkins and PC Vidal tripped as they went around the parked car, although they did not fall.

A moment later, at just before 6:31 and 46 seconds, Ms. Dawkins said something about "I should butt" or "bust your head". She then intentionally leaned over to PC Vidal and headbutted PC Vidal.

In viva voce testimony, PC Vidal testified that Ms. Dawkins headbutted him in the face, in the nose and teeth area. In cross-examination, PC Vidal testified that at the time, he thought his teeth were broken. He was startled by the blow. This blow caused PC Vidal to lose control of Ms. Dawkins. He let go of her as he fell stumbling backwards. He backed away, removing himself from the situation for a short time after he had been hit. He testified he had blurred vision after being headbutted at that point.

PC Mirkovic explained that after the headbutt to PC Vidal by Ms. Dawkins, Ms. Dawkins rushed towards him and he believed she was trying to strike him as well. They were not able to control Ms. Dawkins at that point as she was on her feet. They decided to gain better control of her and to do so by taking her down to the ground. Through the whole incident, PC. Mirkovic testified that Ms. Dawkins had been difficult to restrain. She had been very uncooperative and resistant, including after she struck PC Vidal. PC Constantini testified that after Ms. Dawkins head butted PC Vidal, Ms. Dawkins was out of control. They had no way to control her. She was much bigger than PC Constantini and she was resisting, twisting and turning, and the only option was to take her to the ground to control her. He was kicked in the shin but he did not know by whom.

As will be noted below, in the circumstances, the court finds that there is insufficient evidence of an intentional application of force as an assault by Ms. Dawkins on PC Constantini. In essence, the court will note below that it finds a reasonable doubt as to whether PC Costantini could have been struck in the shin by accident by Ms. Dawkins, or alternatively, if he was struck in the shin by another person.

PC Rourke, after his arrival, was speaking to witnesses, but he heard in the background some arguing between the officers and Ms. Dawkins. He turned his body to see what was happening and he saw Ms. Dawkins headbutt PC Vidal. PC Rourke was shorter than some of the other police officers. He rushed over, asked PC Vidal to step out of the way and asked if he was okay. PC Rourke took over what had been the role of PC Vidal in trying to control Ms. Dawkins. After a brief struggle to control Ms. Dawkins, three officers took her down to the ground for what was the second time. PC Rourke with the other officers controlled Ms. Dawkins, taking her down to the ground. PC Rourke testified that Ms. Dawkins was resisting going down to the ground. In the process, PC Rourke's body-worn camera came off his uniform. He testified it was a dynamic situation. They wanted to get her on the ground to control her and reassess the situation.

At approximately 6:32 p.m. officers held her on the ground. PC Constantini testified he asked Ms. Dawkins if she was done kicking and headbutting people. He testified they were trying to control her, to calm her down, and to secure her. Ms. Dawkins responded, "Sure" or, "Yeah. I am done", in a way, the court would note from the video, appeared to be sarcastic. PC Rourke said he did not believe her. Then the officer changed positions.

Ms. Dawkins screamed. An officer said, "Oh, stop" in response. Then Ms. Dawkins yelled, "My wrist. My hormone therapy". At one point after that, PC Mirkovic explained that he had his knee on her leg and that he was crouched on his other knee. He was holding her in that position.

When she was on the ground, at one point, she said she could not breathe. PC Rourke then explained that he pushed her right elbow up so that she was not on her chest or stomach and so that in the changed position, she could breathe. When asked in cross-examination what he was doing with both of his hands on her wrist, suggesting she was in obvious pain, PC Rourke indicated that handcuffs are not comfortable. He indicated he had to switch his hand positions to have leverage. He did not put a wrist lock on her.

He explained that her jacket was still on her, which was evident in the video, that the cuffs might be uncomfortable as he did not know how tight they were. PC Rourke did not change the cuffs given what was going on at the time. He tried to hold her up so she was not lying on her chest, so he was propping her up by lying on her side. She was moved to this relief position which was on her side. His arm was looped through her right arm and he put his hand on her shoulder to keep her on her side to breathe properly.

His partner asked if he was okay to hold her on the ground, but then due to the weight differential, PC Rourke lost his grip. He tried to get better control of her and push her back onto her side. He explained he needed a little bit of leverage to adjust how he held her by the arm, and grab another part of the hand to push her onto her side. He did not intend to injure anyone. He had to switch his hands to hold her down so she would not move as they were about to put leg restraints on her. He strongly denied that he had twisted her wrist. He maintained that position throughout his evidence that he was not hurting her.

He also explained that he had pushed her down to her side because she started to move around and he did not want to get hit. He did not trust her. She had already headbutted someone and he did not want to be in that same scenario.

PC Vidal explained in testimony that leg restraints were used because Ms. Dawkins had been kicking through the whole incident and it is standard practice to use soft leg restraints in that situation. PC Vidal took the leg strap out to restrain her ankles and legs which they proceeded to put on her ankles. Ms. Dawkins was screaming while she was on the ground. As they held her down on the ground, she said they were hurting her, although she did not scream at that point. Then they raised her up from the ground.

They unsuccessfully tried to put her into the police vehicle with her upper torso first. It was then approximately 6:35 p.m. PC Constantini testified that the officers lifted her from that ground position up to the area of the police vehicle. It is apparent from the body-worn camera video that they tried to place her in the vehicle with the upper torso first rather than feet first. PC Costantini also testified that at one point, Ms. Dawkins intentionally buckled her knees so that they could not get her in the police vehicle.

The leg restraints were put on Ms. Dawkins' ankles to prevent her from kicking the police vehicle. The strap had to be taken around the outside of the vehicle door and into the front seat for the future trip to be driven to the police station.

When the officers tried to put Ms. Dawkins on the seat of the vehicle, PC Vidal told the officers to watch out for a kick. At one point, she was sitting on her buttocks on the seat of the vehicle. She leaned out of the vehicle and tried to headbutt PC Rourke, but she was not able to make contact with him. She had been at that point facing out of the police vehicle.

At another point when the officers tried to place her in the seat and she was facing the officers, PC Mirkovic testified that she tried to head butt PC Mirkovic as she appeared to be sitting on the seat. PC Mirkovic testified, he saw Ms. Dawkins try to kick PC Rourke as they tried to place her in a better seated position in the police vehicle as she faced towards them. PC Rourke testified that while she was in this position, Ms. Dawkins kicked him in the chest with both of her legs restrained together.

PC Mirkovic agreed that the officers were trying to shove her in place in the vehicle at that point, that it had been difficult to control her when she was resisting and not very cooperative at this point.

PC Vidal testified that he had other use of force options that he did not use on Ms. Dawkins, including a collapsible baton, OC spray, his taser, and his gun. PC Mirkovic testified that he had all of the use of force options; CEW, taser, pepper spray, baton, and firearm, and he did not use any of them because he did not deem any force was necessary in this instance.

The third officer who assisted with handcuffing, PC Constantini, testified he also had use of force options; pepper spray, baton, taser, and firearm, which he did not use as he did not find it necessary. When he arrived, he was the third officer on scene, and although Ms. Dawkins was not listening to their commands, they were able to handcuff her. There was no need to strike her or to use a taser.

PC Rourke testified that there was no need to use the force of use of force options he had, of baton, pepper spray, taser, or firearm, and his cuffs because she was already in cuffs when he arrived.

Officers were cross-examined about Ms. Dawkins at a couple of points lying on her stomach, and they agreed that this can make it very difficult to breathe and that she was turned to her side to relieve the situation. It is apparent that it only took place for a matter of a few seconds each of the two times.

PC Vidal in cross-examination testified that he had received training as it related to transgender people and that they are to be respectful and find out how transgender people would like to be referred to in terms of gender. It was his plan after finding out what had happened and everyone was safe to later speak and ask Ms. Dawkins how she identified as. He agreed she was wearing earrings and a ponytail on top of her head, he agreed it was possible that she was a transgender female.

He did not feel it was a good idea to ask her about gender at the very beginning, in front of a large crowd. He preferred the option of talking to Ms. Dawkins about it later, one to one. When asked in cross-examination of PC Vidal why neither PC Vidal nor the other officers made an inquiry as to a determination of gender identity, he explained that it was next to impossible to communicate with her. PC Mirkovic has also received training with respect to transgender people and the importance of gender, confirming someone's gender, and determining how the person wants to be referred to and which pronouns to use.

The officers were cross-examined in great and minute detail about whether they had referred to Ms. Dawkins as "he" or "she" and various officers explained that on occasion they had said "he" in the heat of the moment. It was obvious on the video that this was a very dynamic and violent situation dealing with Ms. Dawkins.

PC Constantini, the third officer on the scene to put the second handcuff on Ms. Dawkins, testified that he did not think that there was an appropriate time to ask Ms. Dawkins preferred pronouns. The situation was dynamic. She was out of control. Things happened very quickly. He did not have time to ask her about this issue.

He testified, they were concerned about her safety, their safety; one officer was head butted. There were so many factors and no appropriate time to talk about her pronouns.

At 6:41 p.m. PC Mirkovic read Ms. Dawkins rights to counsel for assault and assault peace officer. She was making noises and not listening, talking over the officer the whole time he was speaking. He asked her if she understood and she said, "No". He asked her if she wanted it read again. There was no Charter issue with respect to rights to counsel in this trial. He also read the caution to her, but she talked over him the whole time.

There is no doubt the court would find that various injuries were caused by the police officers trying to effect an arrest of Ms. Dawkins. PC Mirkovic testified he completed an injury report for Ms. Dawkins indicating abrasions and cuts to her left ear and left cheek. Ms. Dawkins did not advise as to other injuries and she refused medical attention when she was asked while in custody.

When asked about how Ms. Dawkins had sustained abrasions to her left ear and left forehead area, PC Mirkovic testified, he could not say how it happened, that they were on the ground a lot, flipping around. He did not believe it happened when he pushed her head away from him.

PC Vidal testified as did other officers that he was headbutted by Ms. Dawkins. He testified that he had redness and bruising around his nose which was more visible the next day, that it was very sore and tender. He also testified that his knees were cut up while they were trying to get Ms. Dawkins in cuffs.

Photographs of his injuries were taken the same day, not the following day. The photographs also showed a slight tear to his uniform pants of his left leg from the struggle on the sidewalk when it was just two officers with Ms. Dawkins. The scrape to his knee was approximately one centimetre. He also had redness in the area below his knee of approximately 6 centimetres.

PC Mirkovic testified that Ms. Dawkins had kicked him in the genitals. He could not remember exactly when she had done this to him, but he did maintain throughout that Ms. Dawkins had kicked him in the genitals during the struggle. She lashed out and struck him in the genitals. He did not agree and maintained in cross-examination that it was not accidental. It could not have just happened as an injury in the course of a struggle. He suffered soreness to his genital area. Photographs of injuries to PC Mirkovic were taken showing scrapes to his left knee, and below the knee area from portions of time when they were on the ground struggling with Ms. Dawkins. He described injuries and measurements in photographs to both of his knees and an abrasion and redness to his left elbow. The court will be referring to the injuries to Ms. Dawkins later on in the reasons.

The applicant has argued that the officers made no attempt to speak with Ms. Dawkins or to deescalate the situation.

It is critical that the court make findings of fact in terms of the interaction between Ms. Dawkins and the various police officers engaged in trying to affect an arrest of her in order to consider the Charter application. The existence of extensive video clip evidence which recorded various aspects of the actions of the parties is helpful in this analysis, although it did not record everything.

The court finds the viva voce testimony of the various witnesses helpful in interpreting what is shown in the various video clips. As with all witnesses in a trial, the court must consider credibility and reliability of the viva voce testimony.

Primarily, the evidence in this case as it relates to the period of time when the various police officers were on scene, is derived from the body-worn camera video clips of several officers. Nonetheless, it is important for the court to consider the viva voce testimony of all of the police witnesses and Ms. Dawkins. This testimony includes elaboration and explanation which is relevant and important for the court to consider relating to the issues in this trial.

The court made an order excluding witnesses, which means that the Crown witnesses were not able to hear the testimony of other Crown witnesses before giving their testimony.

Assessment of Testimony of Police Witnesses

The court would note the following. PC Matthew Vidal testified first. As with various other witnesses, he gave a portion of his testimony prior to the court playing the body-worn camera video. His evidence was consistent with the events shown on the video clip. The court would note, as with all of the witnesses, that many events occurred over seconds or even a few short minutes.

Witnesses were called upon to recall minute details. PC Vidal seemed to have a good memory of events and the court would note that he was the officer with the most notable allegation of assault, having been headbutted by Ms. Dawkins, in terms of the allegation. He was also one of the first officers on scene, and he remained until the end of relevant events.

His explanation for events such as his primary concern regarding one wrist being cuffed and the rest of the handcuffs being free and potentially available to be swung, made sense. His explanation as to the various steps he and PC Mirkovic took to try and gain control of Ms. Dawkins and put on the second handcuff also made sense. It was potentially an admission against interest as it required effectively an admission that they, two male uniform police officers could not control Ms. Dawkins after the arrest.

His evidence that he did not see if PC Mirkovic was struck in the genitals also made sense. Clearly, he was focusing on his role and trying to gain control as he was touching Ms. Dawkins. He also admitted when he did not see which hand of Ms. Dawkins did what. He was not overstating his ability to recount aspects of the event he did not see. His evidence that after the second handcuff was on, his thinking that the next move was how to safely take Ms. Dawkins from the sidewalk, getting her up and taking her to the police car for lodging in the back also made sense. That evidence was consistent with what was on the video.

He was focused on looking at the parked car as he led Ms. Dawkins to the police vehicle, and he freely admitted he did not see her trip around the vehicle. His explanation as to Ms. Dawkins tripping over the front bumper also made sense. It was potentially an admission against interest, as there was an implicit argument or suggestion that he should have led her around and away from the parked car. However, the court considers the nature of the interaction with Ms. Dawkins and that she was not complying with the earlier demand to be handcuffed and to movement. He also made an admission against interest, including going to the wrong police car, and with respect to difficulties they had in their ideas as to how to put her in the back seat.

He did not overstate his observations with respect to headbutting by Ms. Dawkins relative to PC Rourke stating that she attempted to headbutt him but did not make contact. He testified he did not see other officers being injured from his perspective. He was asked and answered many questions about the various types of training he has received regarding anti-racism and use of force, and he admitted that he might have a bias as to how he behaves towards a racialized accused. He also related the training and lessons he has learned in terms of dealing with people who are transgender.

He acknowledged from the outset, given Ms. Dawkins' appearance that she could very well have been a transgender female. He gave logical evidence that even though he has learned to ask how a transgender person wishes to be identified, that this is not generally expected to be explored until the whole situation is safe. His evidence was that the situation was not safe with Ms. Dawkins, still being quite agitated and still holding the weapon, the water bottle, in her hand.

He also testified that while he had grounds to arrest Ms. Dawkins, his investigation was not complete. He admitted that he and PC Mirkovic did not ask her side of the story or ask about gender identification before they arrested her. He agreed that the fact that his partner told Ms. Dawkins to "shut up" was not a good approach for an agitated person. He admitted that when the leg restraints were put on Ms. Dawkins, that the ankles were completely together. There was no space between them. This is not something that was captured on video.

The court also found his testimony that when he was headbutted by Ms. Dawkins, that there was adrenaline pumping and he initially tried to brush it off to be credible. He admitted later that he felt soreness and thought his teeth were broken. He also initially neglected to mention that his vision was blurry right after it happened, but the court finds his explanation for not giving that evidence initially as believable.

Photographs taken after the events showed on PC Vidal's uniform, scuffed dirt marks to the front of his pants below the knees, a hole in the front of the left leg under the uniform on his left leg, scrapes and red marks on his lower left kneecap and below. PC Vidal withstood an exhaustive cross-examination. Overall, the court found his testimony to be straightforward, credible and reliable when compared with the video evidence and the testimony of the other officers.

PC Uros Mirkovic testified as the second witness after his partner PC Matthew Vidal. He is taller than his partner. He was the officer who failed to get the handcuff on Ms. Dawkins' left wrist after his partner placed a handcuff on her right wrist. He explained the efforts he made to cuff the left wrist unsuccessfully.

He admitted he lost control and they decided to bring Ms. Dawkins down to the ground to gain control. He testified he did not want to injure her, but she was still resisting, and it was difficult to bring her down to the ground. Even when they got her down on the ground, he admitted, potentially an admission against interest as a tall police officer, that Ms. Dawkins continued to resist heavily and that he lost control of her arms, that he was unable to get her left arm out from under her stomach to cuff it. He also admitted that Ms. Dawkins had removed his body camera from his vest during the efforts to deal with her. However, he did say that he didn't think she had necessarily done that intentionally.

He also made an admission against interest in relation to Ms. Dawkins being on the ground and putting his hand on her face to push her head away because she was continuing to yell. He also admitted that when they got Ms. Dawkins to her feet after being cuffed and they were standing, that they asked her to go with them, and she was not moving, so he gave her a push. This push, it would seem, could account for the lack of balance that followed when Ms. Dawkins tripped around the parked car, although she did not fall to the ground. He also testified that this appeared to cause his partner to trip as well. He was holding Ms. Dawkins' other arm.

In cross-examination, he candidly admitted If from the perspective of Ms. Dawkins, she could have perceived that she was pushed, which was into the car, and that she was tripped. He also admitted that after Ms. Dawkins head butted PC Vidal, the officers holding her, again, lost control of her and had to take her down to the ground. He admitted grabbing her head as he felt she was about to headbutt him. This was before they took her down to the ground.

As the court considers his evidence, PC Mirkovic freely admitted that he and the other officers were unable to maintain control over Ms. Dawkins over a consistent period of time when she actively resisted them. It is apparent that they outnumbered her. He testified she remained uncooperative as they proceeded to try and put her in the police vehicle, that at one point they told her to stand, she did not stand and instead, kneeled down facing the vehicle. He also candidly admitted that although Ms. Dawkin struck him in the his genital area, he could not tell at which point in this exchange with her when she had done that, whether it was on the sidewalk during the initial stage of arrest or later in his dealings with her.

He also did not overstate events, testifying that when he and other officers tried to adjust her position in the police vehicle, she tried to headbutt him, but did not make contact with him.

He admitted in cross-examination that he has been trained in the importance of de-escalation and communication and training in race-based arrests and gender identification. His evidence reflected an understanding of the disparity between the police and racialized groups and the importance of dealing with people properly.

He admitted that by the time he arrived on the scene and saw Ms. Dawkins' appearance, it was a possibility she identified as a female. The court found his testimony that he asked Ms. Dawkins to identify herself, and she only gave her first name, and that he wanted her last name to confirm her identity, as believable. That is a proper step in the initial stage of a police investigation. He was forthright in admitting that although he asked her what was going on, he could not recall her response or if she said she was assaulted.

It was only a moment later that his partner came over, and they put Ms. Dawkins under arrest based on the grounds of PC Vidal. He also admitted that when they took her down to the ground because they still could not place the second hand cut on her, they were having continued difficulty. He could not recall how they got her down to the ground. However, both officers went down to the ground with her.

He also admitted as another potential admission against interest given his size, that she had his arm in a locked position, and he was afraid she was going to put his arm into a leg lock. However, she then flipped onto her knees. He also did not overstate Ms. Dawkins' action in relation to his body-worn camera coming off the front of his vest. He said she reached out towards his vest and it came off. He is not saying she did that on purpose.

It was a dynamic situation with arms and limbs moving forward as another admission against interest. He admitted that he should not have told Ms. Dawkins to "shut up" multiple times, that that was not the best de escalation of the situation.

He did specify that he told Ms. Dawkins she was under arrest for assault, assault with a weapon. In terms of his action pushing her face away, he maintained in his evidence that he did not push her face for it to touch the ground. He was asked in cross-examination various questions about how he referred to Ms. Dawkins on the scene, and at one point, the video shows him referring to Ms. Dawkins as "him".

He was also cross-examined about referring to Ms. Dawkins as "defendant", a reference which the court took issue with in relation to counsel as being a proper neutral term in referring to an accused.

From time to time, PC Mirkovic used "they" or "them" when referring to Ms. Dawkins, but he explained it was not his intent to misgender anyone. He candidly admitted that when Ms. Dawkins was in leg restraints, she would have found it very difficult to walk. It would not be very comfortable. He withstood an exhaustive cross-examination. Overall, PC Mirkovic made numerous admissions against interest and did not appear to overstate what he saw. His evidence was consistent and consistent with the videotape evidence in this trial and other officers. He was candid. Overall, he provided straightforward, credible, and reliable evidence.

PC Daniel Constantini was the third officer on the scene, the officer who was able to put the second handcuff on Ms. Dawkins' left wrist. He attended in response to a call that officers needed assistance. From his body-worn camera from the time he arrived on scene and the two officers were on the ground with Ms. Dawkins, it was clear that he pretty much ran over to help. Being the third officer, he was able to complete the procedure of getting the handcuff on her left wrist within a minute or so of his arrival. He admitted that at that point, he was able to do this without much resistance, and there was no need to strike her or use the taser on her to finish cuffing. He was not examined in chief or cross-examined to the extent of the first two officers.

He admitted later, following Ms. Dawkins' headbutting of PC Vidal, that it was a quick dynamic situation. It became out of control. They had no way to control Ms. Dawkins. She was much bigger than him. She was resisting, twisting, and turning. The only option, he testified, was to take her to the ground. This type of evidence of lesser size and implicitly strength and loss of control is also evidence for which a police officer is somewhat of an admission against interest. He was also candid in not overstating matters when he testified that he was kicked in the shin, but he didn't know by whom or how. Effectively, his evidence was such that there was no evidence that Ms. Dawkins assaulted him in the shin.

He did not see other officers injured by Ms. Dawkins other than PC Vidal being headbutted by her. He outlined the training he has had in relation to racialized accused and transgender persons. He acknowledged that he might have unconscious bias regarding race. He acknowledged that anyone, whether racialized or not, who was held on the ground, on the chest, or stomach, and cannot breathe could feel vulnerable and that he has never been in that position. He acknowledged in cross-examination that after she head butted PC Vidal and they lost control of her and had to take her to the ground, it appeared that that an officer tripped up her feet to get her down. He explained in cross-examination that given concerns about her safety and the officer's safety, the dynamic situation of Ms. Dawkins being out of control and things happening very quickly, there was no appropriate time to ask her how she wished to identify herself in terms of pronouns.

He was candid and straightforward. His evidence was internally consistent and consistent with the video evidence and in large measure, the evidence of the other officers. The court finds his testimony to be credible and reliable.

PC Patrick Rourke arrived on scene after PC Constantini. In his evidence, he made numerous admissions against interest. He admitted in examination in-chief that after he saw that Ms. Dawkins had headbutted PC Vidal, he felt a little bit of anger. He was thinking about the safety of the officers in a dynamic situation. He was challenged in cross-examination, that he is a police officer; not a civilian, in terms of allowing his emotions and getting angry. He responded that he is human, people get angry, emotions happen. He wanted to make sure that the officer who was headbutted was okay. Stress was heightened in the circumstances. Like other officers, he made admissions against interest as far as losing control of Ms. Dawkins at various points in time.

When questioned in detail about some of the movements, he explained that when they lifted her up from the ground on the street, normally, they would lift her up by going under the arm, but in this case, he put his left hand under her right elbow on the under position, and held her hood with his right hand. He explained the rationale for what the court would note was an awkward maneuver, that it could have been done that way because it was so quick and rushed. They were trying to pick her up as quickly as possible and hopefully put her in the cruiser and end the scenario. In that way, like other officers, he candidly admitted that various maneuvers were being done in light of the circumstances of them not having control of her, of the ongoing struggle, and the context of the situation.

He admitted he was holding her head in not the most graceful way, holding her collar to try and stabilize her head, to move her out of the way so she did not hit the back of the cruiser with her head. Later, it appeared that there was a small rip in her sweater in that area where he had previously grabbed.

He candidly admitted their effort to get her in the car and secure her was a failed attempt. It was not working. He also admit candidly that as they were trying to put her in the vehicle, it was more like passive rather than active resistance as she stated that she could not help because her legs were tied. When they changed their approach, he also admitted that she was sitting up and then would use that opportunity to try and headbutt another officer. He candidly admitted that at that point, he felt a little bit more anger. He had hoped to get the scenario done, but she was very noncompliant and resistant.

He felt more adrenaline since she had just tried to headbutt another officer. When asked to explain why he put his hand on her forehead, he explained she had headbutted one officer and just tried to headbutt another officer. He did not trust her and felt the best defence was to keep her forehead at a distance by using his arm.

He also candidly admitted that when she next kicked him in the chest with both of her feet, he was feeling frustration. It was getting more and more frustrating, a dynamic situation of trying to put her in the car. It was not like they were trying to hurt Ms. Dawkins. He admitted that when she kicked him, he grabbed her feet to push her back into the car. He did not overstate the effect of the kick, just indicating that there were no visible injuries. He just needed to catch his breath for a second.

In cross-examination, he admitted that the Toronto Police Service policy is to have communication and de-escalation all the way through a dynamic event, even if you get to the point of using force. However, he acknowledged that sometimes in dynamic situations, emotions do get high and that every scenario is different. He agreed in cross-examination that he can always try to deescalate if emotions are running high.

He stated that he has had training in terms of dealing with racialized suspects and in dealing with transgender community members. He candidly admitted that when he first arrived on scene, he heard Ms. Dawkins ask what she was arrested for and PC Mirkovic saying "assault", but that was all he heard. There was a lot, given his position, that he did not see, including Ms. Dawkins being tripped around the parked car.

He was challenged in cross-examination about a suggestion that he put her arm in an arm lock. He denied that suggestion and explained he was holding her arm, that he had to prop her up on her side and not on her chest. She needed to be off her chest so she could breathe properly. Because Ms. Dawkins weighed more than him, he needed to position his arm as shown in the video to hold her up because she weighs more than him. The court found that explanation believable when one carefully looks at that portion of the video evidence.

In somewhat of an intense cross-examination with respect to whether he was intentionally hurting Ms. Dawkins when she was down on the ground before being brought to the police vehicle, PC Rourke admitted that after she said, "You're hurting me" that he responded, you have been hurting everyone else. He explained that the stress level was high at that time and that he should not have made that comment.

He denied that he did anything to hurt her. He maintained at that point, his hand had not moved. The only thing that hurt her was the handcuffs, and he did not know how tight they were. He explained through cross-examination, going back and showing very short segments in time, when she said "You're hurting me", it was not from his actions as his hands had not moved. He was holding her steady.

In carefully watching the video and considering his explanation, it made sense to the court and was believable. He was not moving his hands to cause pain to Ms. Dawkins. He was holding her in place while the officers finished putting the leg restraints in place. He strongly denied that he engaged in intentional conduct to hurt her because he was angry and because she was a racialized transgender woman. He explained he was trying to get her as safely as he could and the other officers were also trying to help get her up.

He agreed that when the three officers pulled her up and out, that the procedure would be painful. He was holding her head so that her head would not hit the car. When he held her arm and pushed her elbow up, he was keeping her away from him given her prior headbutting and kicking, keeping her body away from him so he was not hit.

He maintained throughout that was not a pain compliance technique, although the cuffs probably still hurt her. He agreed that at no point did he communicate or de-escalate the situation with Ms. Dawkins, explaining that was due to the scenario.

The court does take into account the context of the continued resistance and actions of Ms. Dawkins throughout this exchange. At one point, he modified that he felt more frustrated than angry with Ms. Dawkins. While that was somewhat of an inconsistency, the court considers the context of what was happening with Ms. Dawkins at the time.

PC Rourke withstood what was the most grueling and penetrating cross-examination of all of the officers in this trial. He maintained his position and did not contradict himself in any material way. By and large, PC Rourke admitted his emotions, as the event was ongoing, were in play. Those were admissions against interest.

His denial with respect to a suggestion he inflicted pain on Ms. Dawkins' arm or wrist was considered in light of the sequence of events shown on the video. The court finds the video to be consistent with his testimony. The court accepts the denial as truthful. The court considers his evidence that at points in time, he felt frustrated or angry. The court found that forthright and candid testimony to be genuine and truthful. The court rejects the suggestion that he responded to that emotion by intentionally trying to hurt Ms. Dawkins. The court found his testimony to be credible and consistent with what was shown on the videos and reliable.

Review of Evidence of Ms. Dawkins

As the court has considered the testimony of the police witnesses in terms of credibility and reliability in light of the primary video evidence on the body-worn camera clips, the court also considers the testimony of Ms. Dawkins. There were no other witnesses called by the defence.

Ms. Moka Dawkins is 32 years old and works part-time at Toronto Metropolitan University and full-time at Centennial College. She identifies as a transgender female. She testified as to her background, growing up in a Christian family where she found it difficult for them to accept her identity. She came out fully in her early twenties. Her father disowned her, but her mother loves her. She is from Montreal.

Previously, she worked in the fashion industry and as a sex worker. She moved to Toronto in 2014. Defence counsel led in evidence the full contents of her criminal record with the translation to English for the French entries. She related various incidents of violence when she worked as a sex worker, including one where she was victimized and with a client with whom she testified she had to fight for her life, and he was killed. She was convicted of manslaughter in relation to that incident.

Currently, she does a lot of public speaking and is involved in a lot of community events. She has been recently a victim in an incident with a boyfriend with whom she had an abusive relationship. On the day of the allegations, she went on Roncesvalles and saw a blazer in the window of Helga's store that she liked. She went in the store and Helga was there. She testified that she approached Helga to ask about the blazer and pricing, and Helga called her the "N" word.

Helga told her to get out of the store. Helga ran out of the store. Ms. Dawkins testified she was shocked by what Helga had done. Ms. Dawkins then walked out of the store.

She testified she did not go after Helga, but left 30 to 40 seconds after Helga left the store. At that time, there were two or three people with Helga. In the examination in-chief, she indicated that people were shouting at her and accusing her of stealing and telling her to get out of there. In cross-examination, she testified that people were yelling at her, saying she did not belong there and to get out. She tried to explain, she just tries to support businesses with Black Lives signs and that she was new to the area and had just moved. She said that no one told her that Helga had dementia.

Ms. Dawkins tried to explain that she lived in the area and was trying to support businesses with Black lives Matter flags in the window. She said she did not steal anything. She was just asking about pricing.

John was there yelling something at Ms. Dawkins. She testified that she could feel John's energy coming in a disrespectful way, that he was going to "violate" her. She indicated she put her hand to the side to keep her distance. The COVID-19 public mandate was for six-foot spacing from people. She testified that John was coming towards her. She could feel this heat and she put up her hand to keep him away. She put up her arm to create distance. While she did not initially agree that she had put her hand and arm in his face, she ultimately agreed in cross-examination that because of his height, her hand was in his face.

The court will not repeat at this point the many inconsistencies and problems in her testimony that are listed below. Rather, the court will outline briefly the version she gave in her testimony, although there were changes in the version as listed below.

Ms. Dawkins testified that people told Ms. Dawkins to get out of there, that she did not belong there. She indicated that John started "transphobic verbalcation", words that the court did not understand. She indicated that he used the words, "tranny", "freak", and "animal". She testified she was not afraid to stand her ground.

Defence counsel played the video that showed Ms. Dawkins and John. She testified that she felt a little fearful, energy from John, and she put up her hand to create distance, but he disrespected her steps to ensure her safety, and he "punched" me. She indicated that he had come at her with transphobic violence in his communication and said to get out of here, that she did not belong there.

A lot was happening and she indicated the safest thing for her to do was to put up her hand to create distance as she felt him approaching. She indicated that John was aggressive with his language and the words he used.

She indicated she was scared because he did not move away. He was standing his ground in an aggressive state towards her, continuing to assault her verbally and instigate a situation and others around him more. She testified that John punched her in the arm. That was why her hand flew back. She indicated she was nervous. She had just been assaulted not long ago. She did not know how to deal with the situation. She put herself in a defensive manner. In this situation, she was not going to cower in her fear.

She just wanted him to get away. He was instigating others, which led to them trying to jump her. She explained she had hit or slapped towards John to create distance, hoping he would turn around and run. She did not want to leave her back open to others. She was scared for herself.

She needed a circumference of space around her to navigate. She was asked by her counsel why she did not walk away, and she walked towards John. She indicated with her experience in life, it is never safe to turn your back on someone who has attacked you. This time, John had attacked her, not the others yet, but she does not cower when she defends herself. When asked when shown the video, why she struck John with the water bottle, she indicated, "For my safety. I was scared at the moment. It was just how I reacted".

She indicated that John was continuing his verbal attacks on her, transphobic slurs, calling her a "trans freak" and an "animal". She was scared for her physical safety. Later, she indicated that John's slurs instigated others who were yelling at her from earlier. She indicated that another guy jumped in and tried to grab her from behind.

She had to fight him and John and one other person. She indicated that a crowd was around them. She saw two people's hands on her body. She was trying to avoid. She was fearful, defending herself against a community that knows each other.

It ended when John ran upstairs to some place into an apartment. She did not want John to get away because he had assaulted her, so she stood in front of the apartment door he ran through.

She indicated that after the video clip, which was after she assaulted John with a water bottle, that other people put their hands on her. Then, she agreed in cross-examination that a lot was going on. She is unable to say exactly what was happening as it related to events after the video ended. She said she was defending herself in a state of fear at the time.

She later testified that she was grabbed from behind by someone who started to punch her in the head. She turned around and swung at him. Her glasses flew off. There were a few punches to her upper body and head, and she swung back to defend herself. She explained that at the time, she did not have good relationships with the police. Her view was that she had not done anything. She thought from previous experienced in working retail, that they would look at the video footage, that she had walked to the store to ask, that a person had attacked her. She explained that she wore glasses and that they were knocked off her face when John's friend grabbed her from behind. When the body-worn camera video of PC Vidal was played and she was asked about the man with the recent cut on his face and knuckle, she indicated she did not recognize him, but seemed to indicate he had attacked her. This was the male who approached the police about being assaulted by Ms. Dawkins, as shown on the video of PC Vidal. Ms. Dawkins testified that he had punched her from behind repeatedly.

Ms. Dawkins was questioned as to what happened after Pc Mirkovic approached her. She testified there was a lot of confusion. She tried to explain her situation and what happened to her. Then this officer just came and told her she was being arrested for assault. She said, "I like - I did not assault anyone". She did not get a chance to finish her statement, and the police officer had his hands on her and cuffed her.

She said she was assaulted; the two had attacked her. She testified contrary to the words of the officer that she was resisting; she was not resisting. She testified she felt she was being treated unfairly, officers approached me, reached out to grab me. She indicated she had some belongings in her hands. He did not explain to me what was happening, why I was being arrested. He just came forcefully to touch me, put his hands on me, and began some twisting and body yanking and pulling began. They felt they needed to contain the situation. She indicated that there were two officers. None took the opportunity to take anything out of her hand. Both officers decided to put their hands on me and push me against the wall and tell me I am resisting, and they pushed me to the ground with belongings in my arms causing further physical injury to me. She testified, "I was not trying to resist the cops".

She indicated she was already in a state of fear for what had happened before. They did not allow me or show decency or compliance to their protocols and policies of how to interact with communities and people with diverse backgrounds. They just decided to react towards me to induce further pain. Later, they tripped her down to the ground. She had things in her hands; her purse, her water bottle, a shopping bag.

She indicated she did not feel like they were trying to arrest her, it was more like they wanted to fight her. She indicated she did not know what to do. It was scary. She did not know how to fight back in the situation.

She tried to explain what happened to show she was not resisting. They were not trying to use de-escalation skills, they just wanted to hurt her. The video was being played and she was asked to explain what was happening at various points. To 6:29 p.m. she indicated she was trying to sit up and get back up on her feet. She said she did not understand why they were mishandling her.

She did not have her hands to protect her upper body and impact on the cement. She was then on her back, and her knee came up. She indicated she was, trying to situate herself. She was not trying to hit or take an officer. At various points in her evidence, she wanted to make the point of being critical as far as critiquing the way officers were dealing with her, saying they were pulling and tugging at her in a different manner, not trying to work with each other, but against each other.

She wanted to get up right, she indicated, to explain the situation and make them understand she was not the one who needed to be arrested. She brought her leg up and over the officer to bring herself upright. She indicated she was not trying to kick the officer then. She again criticized the technique of the officers, stating the officers were not communicating with each other. They were trying to hurt her, to drag her body across hard concrete.

She was upset that homeless people were coughing all over the place. It was COVID-19. Officers put her physical health internally and externally in danger. She indicated she felt physically hurt, her head into the ground. She was on hormone therapy for 10 years. The side effect of taking estrogen and testosterone blockers is bone deterioration and muscle loss, that her body is not as tough as it looks, that her body was getting beat up like a punching bag at this point. (It is helpful to review the video alongside this evidence to consider the testimony. When asked why in the portion of the exchange on the sidewalk she had grabbed the officer's body cam, she said, because it was the only way she felt she could protect herself in the situation. She saw George Floyd, Breanna Taylor. This was not the first time she was attacked by men. She just wanted to make sure that whatever happened on camera to ensure her safety in the most respectful way possible. It is notable that after she grabbed towards the body camera, which was the camera PC Mirkovic, the camera was, of course, unable to record anything as it was detached on the ground, then held in Ms. Dawkins' hand, unable to record anything).

Then as the tape was played a bit further, just prior to completing the handcuffing of her second wrist, she stated on the video, "I have the right to protect myself from police violence". She explained that comment was made because she is a highly active member of Black Lives Matter community and few various communities. She knows what it's like to be discriminated against and to be violently attacked in a life and death situation with no one knowing your story or understanding your scenario in her community, especially trans — always news of interactions with police and trans being pushed to the back burner to deal with transparency, what takes place, to make trans look more aggressive than as victim.

She saw this as an opportunity to ensure her safety, to let her community know what was about to transpire, that she was not tolerating disrespect as it was happening. That is why she grabbed the camera. She was asked again and stated that she was at the time reflecting on Breanna Taylor, George Floyd and herself. She saw death.

She just wanted the camera to be there to make sure someone saw her reach for her safety while people were attacking her, looking at it knowing she was creating a safe space for herself, a scenario where she was scared and traumatized trying to secure her safety the best way she could that she was not the aggressor in the situation.

She again criticized the police for not knowing what they were doing, for trying to talk to her when she tried to situate herself. They put her down face first on the cement. She felt like they were trying to talk to a child, and they were not trying to assist her. She responded by trying to direct herself to take the initiative to sit herself up so everyone could realize what was going on, to conduct themselves in a proper manner.

As the second handcuff was being placed on her, she testified she was scared. It was a scary situation. She could not breathe, stating, I suffer asthma. In my head, thinking in the US, Floyd, seeing myself in the situation. There was a lot to take in. In that situation, I know I'm just trying to communicate through fear and not let fear choke me up. To let them know they're hurting me and I could not breathe.

She testified she was having trouble breathing and was taking short breaths to speak. She indicated, she sees abuse from men. She just reoriented herself in the situation and what was going on, asking what they were arresting her for, why is she on the ground? The officer pushed her face into hard concrete.

She said the side of her face was in contact with the ground. She was bleeding a bit — torn. She stated through fear, she still tried to communicate. There were gaps of silence as she tried to reorient the situation. She was confused. It was bizarre. They were clearly inflicting pain on her for no reason, no human approach in dealing with her.

After she was brought to her feet, she stated that one officer pushed her from behind into the car and caused her to trip and fall. She was tired of being beat on and getting no help. No one was listening to her. She wanted to let the community know that she is not a thief, that she supports businesses, that she was assaulted, that they were arresting the wrong person. She said she was in so much pain, she had to say enough is enough to react in a manner that seems aggressive but is a defensive mechanism.

She essentially admitted headbutting the officer. She said she did it in self defence because she was scared. She tried to tell them, I'm not the one you should be arresting, to tell the community what they were saying about me is not true. The officers put their hands me and shoved me down to the ground and cuffed me, and have the nerve to turn around and push me into a fucking car. Okay. I have so much to defend myself from in one situation. No one cares what I'm going through. I defended myself because I was handcuffed behind my back. There were three to four officers on me. They kept beating on me, so I headbutted him, and I ain't sorry. No one cared about me.

In relation to being pushed when proceeding towards the police vehicle, she was at first nervous, was scared for herself. She tried to explain her position but was beaten on when her face nearly hit the cement from a push, she just reacted in her fear. In terms of her views towards the police, she gave the following evidence. She said she respects the police. She respects when officers give you commands. She agreed that despite her views, she must follow the law. She agreed that when the police tell you, you are under arrest, you must comply. She understands this is not a choice.

When asked if she respects when an officer gives commands, she said she did not respect, but she obliges. She also agreed that even if she does not agree with the officers, that she had to comply with them. Essentially, it was clear in cross-examination that she disagreed with the approach taken by the police in this case. When asked if that was why she began to resist arrest, she stated that she did not resist.

It is clear in videos, the officers pulled her in two directions with bags in her hands. She did not have the opportunity to put down the bags. She did not want to lose her property. She did not know where her glasses were (and the evidence is that they had come off her face sometime before the arrival of the police). And she did not want to lose her purse and IDs. She was not given the opportunity to comply the way the officers wanted her to comply; they just put their hands on her immediately.

A careful reviewing of the video of PC Vidal shows that in terms of context, it is noteworthy that the arrest took place in an alcove entrance in front of a store away from other people as far as Ms. Dawkins' property. The officer asked Ms. Dawkins to drop her stuff. They did not want anything in her hands while they placed her under arrest. In cross-examination, she agreed that the officers told her to drop her things. Her purse and bottle went down on the ground, although it is not clear how they came to be out of her hands. She said she was unable to open her hand to drop her bottle. She did understand that the police were trying to place her in handcuffs. She admitted she was not about to change their minds. She was trying to explain the situation. She admitted that she thought by explaining the situation, that they would change their minds as to arresting her.

She agreed that arresting a person, placing handcuffs on while a person had a bunch of stuff in their hands, would be difficult. She agreed she was still holding the steel bottle she had used to assault John. She said the police did not give her an opportunity to comply with the arrest. She testified that at no point was she trying to resist the arrest. The Crown replayed the video where the officer said, "Stop resisting" at 6:28 or so.

She explained she was not resisting, it was just that each officer was pulling her in different directions. She agreed that if she did resist arrest, it would be normal to sustain some injuries and it would be normal for those injuries to be sustained to herself and also the police officers.

Despite the focus in the cross-examination of the police witnesses in this trial, it was interesting to note that when Ms. Dawkins was asked about whether the police used the proper pronouns when they referred to her, she indicated, the pronouns were not really a major focus at the time.

Photographs of the injuries to Ms. Dawkins were admitted in evidence. There were 12 images, although some of them were of the same injuries. They showed redness on her left cheek or what she referred to as a cement burn - more like a rash, and a slight abrasion in front of her left ear and at the base of her left ear lobe. They also showed redness to her left upper arm, an abrasion to her left index finger below the first joint beside a small scratch area, a small abrasion and a separate red mark to the outside of her left forearm, a small abrasion below her right knee with redness to the right knee and a bruise below that area, a larger bruise below her left knee, a small area of redness above the knee, and an abrasion to the outside of her left knee. She testified there was redness to her nose area, although that is hard to see in the photograph.

Ms. Dawkins also testified she had a lot of soreness to her body. She testified she had surgery to her right hand, which seems unrelated to the this case.

Assessment of Testimony of Ms. Dawkins

On many occasions, Ms. Dawkins contradicted herself. Her testimony in cross-examination and in-chief was characterized by numerous inconsistencies and contradictions. Some of those are as stated below.

One notable area was with respect to how the people reacted to her presence outside Helga's store. At one point, she said that John did not tell her to get out of the area. Later in her evidence, she said that John was more like, get the fuck out of here. This was also relevant in light of the evidence she gave with respect to self defence and getting away. It was notable as to whether others wanted her to leave, and if she left, that was what she said others were asking her to do.

There were occasions where she both contradicted herself and as well, were inconsistencies when compared to the video. For instance, her evidence changed over time with respect to her assaults on Mr. Munick. In her examination in-chief, she would not admit that she swung at John with the water bottle. In cross-examination, she admitted that she swung at John with the water bottle, three times.

She disagreed that she also used her fist to swing at John. Again, another inconsistency arises here. The video clearly shows her swinging with her empty hand; not just the water bottle, at Mr. Munick. The video was played again, and finally, she admitted she had swung at John without a water bottle in her hand. Later, she agreed that she had swung at John with her hand and no water bottle in her hand.

Then she admitted when shown the video again, that she had swung at John a second time without the bottle, but that she had not made contact with him. It was not until the video was played again that she finally admitted she had come in contact with him on the second swing contrary to her earlier denial, by stating that she believed her arm could have made contact with his arm. Then moments later, she resiled from her clear evidence and stated that she had not made contact with John on the second swing. She changed her story regarding her assaults on John over and over again.

The Crown then suggested that during a subsequent portion of the video, she swung at John with the water bottle and had made contact with John. Ms. Dawkins denied that. The video clearly shows she did make contact with John's head with the water bottle that she swung at John. The Crown replayed the video a few times and Ms. Dawkins modified her evidence to finally admit that there was a possibility, but she did not know if it hit his head or his arm. She did not know if she made contact. This process continued over and over.

Ms. Dawkins would not admit that her water bottle had come in contact with his head, stating that it was in contact with his arm, then maybe it was in contact with his arm, then, no, there was no contact because he ducked.

She did whatever she could to deny that she had hit him in the head with the water bottle, even faced with clear video evidence that she had done so. She then went back to saying she hit his arm; not his head, even though she said earlier she did not remember. At this point, she admitted that she had a sixth swing at John, a swing without the water bottle, and that John finally threw a punch and he missed her.

Getting to that point, Ms. Dawkins finally admitted that she had swung six times at John during the 30 second video, although she then stated, it was in self defence.

She was repeatedly confronted in cross-examination with video evidence contradicting her denials. Ms. Dawkins was very reluctant to admit her violent acts of swinging at John without the water bottle before swinging at him with the water bottle as she approached him, and he continued to try to back away. This reflects in a negative way on her credibility of misleading the court as to the attempt she made to strike John before she actually connected hitting him. Strangely, even after Ms. Dawkins admitted that course of conduct, she denied that she was the aggressor, swinging at John six times after she had put her hand in his face and he only swung once at the end. She stated all six swings were in self defence.

She testified that once John disrespected the barrier of her hand being up (which she earlier admitted was in his face) this left her in a vulnerable situation and she reacted in the 30 seconds, which was the video clip. She still believed John was the aggressor.

She testified she was hoping John would leave, and yet, the video clearly showed he was trying to leave, continuously trying to back away from an advancing Ms. Dawkins who was swinging at him and continuing to assault him.

There were many inconsistencies in the testimony of Ms. Dawkins as compared to the clear video record, some of which are stated as below.

Ms. Dawkins testified in cross-examination that John used a closed fist to knock her hand away and punch her arm. A careful viewing of the video shows that John did not use a closed fist when he pushed Ms. Dawkins' hand away, rather, he used an open hand.

At another point, she testified that her intention was to use the metal water bottle as a means of self defence. She stated that John would not run from her. He was standing his ground. He was aggressive in his language. He was instigating the situation and other people around him.

Again, the clear inconsistency in the video is that John continued to back away from Ms. Dawkins, and she continued to advance in a forward motion towards John, trying to strike him six times, some of those times with a metal water bottle. That was a clear inconsistency.

She was questioned about the point at which she was placed under arrest. The officer in the video said, "Give me your hand". She agreed, she did not give him her hand. Later, she testified that he never asked her to place her hand behind her back, nor did the officer say that he is placing her under arrest. He just said, "Give me your arm". It is clear on the video that the officers told her earlier, she was under arrest and to put her arm behind her back. The video clearly contradicts that evidence.

Another series of significant inconsistencies in her testimony related to her head butting PC Matthew Vidal. In examination in-chief, she testified, "I head butted him and I ain't sorry". Later in her examination in-chief, she changed that evidence to say that she did not actually make contact with him.

When asked for a final confirmation, if she agreed she had headbutted PC Vidal, she said, "I did not headbutt PC Vidal".

Then she said, she was not sorry, in reference to defending herself. Clearly, she contradicted herself in terms of what she had done, in terms of the headbutt and what she felt about it. She finally said she tried to headbutt PC Vidal but there was no impact, meaning she had not made contact with him.

It is clear that she did this because she thought PC Vidal had pushed her when it was, in fact, PC Mirkovic.

She disagreed that she was resisting arrest when she tried to headbutt PC Vidal. She agreed that she knew that by head butting PC Vidal, she could break his nose, she could make his teeth fall out. She said she was reacting in fear to the earlier push. It was clear that she thought PC Vidal had pushed her as they were headed to the vehicle; not PC Mirkovic. She admitted in cross-examination that she used her head in a swinging motion, that she had headbutted PC Vidal. Then she said she did not connect with the officer, that she did not actually hit the officer's head with her head. She was regularly changing her evidence on this point.

An important issue related to whether she was cooperating with the police. After she was asked if she was going to stop kicking and headbutting them, she testified she said she was going to "cooperate". It is important to note that she never said on the video that she was going to cooperate; she just said "no" in response to their question. The video shows this. The use of the word "cooperate" which Ms. Dawkins introduced in her evidence, which was not on the video, is important as it would suggest an intent on her part to not resist the arrest.

Ms. Dawkins said that the officer, which would have been PC Rourke, twisted her arm, that there was a circular motion on the outside and around her arm, which caused her pain. The court carefully viewed the video, and it did not show any twisting of her arm. Rather, and consistent with the testimony of PC Rourke, it showed that he changed the position of his arms holding her; not twisting her arm.

She denied kicking the officer, who was PC Rourke, with her feet when she was in the police vehicle. Later, she stated, she did a kicking motion, but denied she intentionally tried to kick him. She denied that her feet came in contact with PC Rourke's chest. After playing the video and several more questions, Ms. Dawkins finally agreed that it was a possibility that her feet made contact with PC Rourke's body. She said it was a kicking motion, but not a kick. She said she was doing that to aid the officers to place her better in the car. Again, a review of the video belies that interpretation, the court would note. A playing of the video shows that she kicked the officer in the chest. The testimony she gave that she did this to assist the officers in getting her in the vehicle is totally unbelievable and is completely rejected by the court.

Ms. Dawkins denied that when she was with PC Vidal and PC Mirkovic, that her knee came in contact with PC Mirkovic. The video clearly shows contact was made. Throughout, she denied that her actions were of resisting the police arresting her. Again, the video belies that testimony of Ms. Dawkins.

Another denial she made related to the following. She indicated that she had not kicked Mr. Munick in the ribs when he was down. She indicated that he was upright and swinging. She also disagreed that another guy pulled her off of John.

These events were related as happening after the video was taken. At the same time, Ms. Dawkins testified late in the cross-examination that a lot was going on. She is unable to say exactly what was happening as it related to events after the video ended. Although the kicking of the ribs is not the subject of a specific charge, the later testimony of Ms. Dawkins cast doubt on her clear and outright denial that she had done that.

In a similar vein, Ms. Dawkins denied causing damage to the parked car by swinging the metal water bottle. Later in her evidence, as indicated in cross-examination, she admitted that when she was swinging, she did not pay attention to where she was swinging. This certainly cast doubt on her earlier explicit denial of having swung at Mr. Munick and hitting the car instead.

On various occasions in her testimony, Ms. Dawkins exaggerated the actions of others, including Mr. Munick and the police officers, to portray those people in a negative way and herself in a positive way. For example, she exaggerated the nature of the force used by Mr. Munick to push her hand away. When she finally admitted that she had put her hand in the area of his face, she stated that he did so with a closed fist rather than an open hand, as clearly shown on the video.

At another point in her cross-examination when she was asked how the police were hurting her, interestingly, she said she could not remember how she was being hurt, that most likely it was from being restrained or her arms being cuffed. She tried to portray the police actions in a bad light, yet could not specify what they had done to cause pain. She would be the person that would know what would have caused her pain.

She was prone to exaggeration when relating things that happened to her. For example, when she was being walked to the police vehicle while cuffed and she went around the parked car and stumbled or tripped, it is clear that she did not fall to the ground. Yet, almost every time she referred to that portion of events, she stated that she "almost hit" her face on the cement. The videos show how she leaned downwards as she stumbled and lost her footing, but did not fall down.

Ms. Dawkins disagreed that if someone sticks their hand in someone's face, it could be construed as an act of violence. She also disagreed that there could be a response of a reflex motion to knock the hand away. The court would note, again, with the careful viewing of the video, that the action of John appeared to be in the nature of a reflex motion to knock Ms. Dawkins' hand away from the area of his face.

At one point in cross-examination, Ms. Dawkins suggested the video evidence showed that someone was trying to jump her. That was not at all evident in the video evidence. Ms. Dawkins also testified in cross-examination that John never wanted to leave the situation, he did not want the fight to end, he instigated and provoked it, and he stood his ground in an ignorant stance. This is another inconsistency as the video clearly shows that John was backing up over quite some distance as Ms. Dawkins continued to advance in a forward motion towards him, hitting him with her hand, then swinging her water bottle, and then striking him in the head in an overhand, downward motion onto his head. The video also shows, immediately after that the bottle was dented.

Earlier in her evidence and examination, she testified that at the police station, the police never asked her about her injuries. In cross-examination, the Crown played the booking video which showed the officer clearly asking about her injuries. Finally, she admitted that the officer had asked her repeatedly about any injuries she might have.

She denied that she had contradicted herself in this regard. Ms. Dawkins was reluctant to admit propositions that are clearly correct. For example, she disagreed that striking a 65 year old man on the head with a metal water bottle could cause significant injury.

After a series of further questions in cross-examination, she finally admitted that using a water bottle on any person, striking the person in the head could cause significant harm. Again, this seemed another attempt to not colour her behaviour in a negative way.

She refused to admit clear, uncontradicted events, such as the fact that there had been a struggle when she was down on the sidewalk with the officers, just having been placed under arrest. The Crown had to ask her numerous times before she finally admitted, that had been a struggle, as clearly shown on the video.

Ms. Dawkins denied she was the aggressor with John and then ultimately agreed that after she had put her hand in his face, he had knocked her hand away and then she swung at John a total of six times; three times of which were with the metal water bottle. John responded physically, only after she finished swinging the sixth time at him, and he did not make contact with her. Clearly, he was not the aggressor.

Ms. Dawkins was reluctant to admit that Ms. Steinberg had tried to intervene to stop the assault. The video clearly shows that Ms. Steinberg was trying to stop Ms. Dawkins from striking Mr. Munick.

Although she indicated that Mr. Munick used transphobic slurs like "tranny" "freak" and "animal" she could not specify when those words were spoken. As noted above, Mr. Munick denied using such words with Ms. Dawkins, and Ms. Steinberg testified she did not hear such words uttered by Mr. Munick. Ms. Steinberg obviously would have had an issue if such words were spoken, and the court would find, would have remembered them if they were spoken.

Ms. Dawkins was reluctant to admit additional clear facts. She refused to agree with the suggestion that John weighs less than her. The video clearly shows a significant differential in the size and weight of Mr. Munick compared to Ms. Dawkins.

At various points in her testimony, Ms. Dawkins descended into the nonsensical. For example, when being asked about the stage where she was put under arrest and the officer asked her to put what was her left arm behind her back, she stated:

"Like I just said, at this point in time I was, secured my safety. The violence is coming from police. So, this is the only way, without –- I have already tried to comply, but there's no loophole in these type of areas where police officers are harming you and you are not trying to harm them, but you are not resisting the arrest neither. I wasn't trying to run away. I didn't move. I didn't try to grab my stuff and leave the scene; I didn't do none of that. I was not trying to resist at all. But, at this point in time I was just trying to secure my safety from these officers because they were not working, say, in a compliance way."

It was her position that she was complying when the officer told her she was under arrest and asked for her hand, and she did not give it to the officer. Her evidence made no sense and it was repeated at various times.

At another point, her evidence made no sense as far as getting up before having the second handcuff on. She testified that the only way the officer could get her second hand was if she stood up, and she previously indicated she had used her leg and flipped over and ended up on her back as she was trying to stand up. She testified that would calm down the situation if she moved from a lying down position with the officers holding her, to a standing position. Again, none of this made any sense whatsoever to the court.

At another point in cross-examination, she related not having the second cuff on; she said she had her hands under her stomach to protect her stomach. Then, when confronted with the action she took in taking her hand out from under her stomach to grab the officer's camera, she had no good answer as to why she did that in light of her evidence.

Ms. Dawkins stated that PC Mirkovic had pushed her face into the cement with so much force that her teeth could have been broken. The video showed that she was talking at that time and that there was a slight shadow between her face and the sidewalk as she was yelling freely about having the receipts. The court does not accept her testimony in this regard.

The court would note that the court has considered the numerous inconsistencies and concerns in relation to her testimony as outlined above. The court finds that Ms. Dawkins' evidence was absolutely not credible and the court totally rejects her testimony unless it is confirmed by other credible and reliable evidence.

Findings of fact

As noted above, the court rejects the testimony of Ms. Dawkins where it is not supported by other evidence which is credible and reliable. The court has noted in detail about the basis for accepting the evidence of John Munick and Sasha Steinberg, together with the testimony of PCs Vidal, Mirkovic, Constantini, and Rourke.

The court has found the body-worn camera video evidence to be very helpful in making its findings of credibility and reliability in relation to the witnesses and the findings of fact.

The court finds that after Ms. Dawkins left Helga's store, there was a discussion outside on the sidewalk. Mr. Munick had crossed the street from where he was doing his laundry after seeing Helga, a woman four feet eight inches in height, looking frightened, come out of her store, followed by Ms. Dawkins, who was over six feet tall.

At the time, Ms. Dawkins had a wild look in her eyes. John Munick said to Ms. Dawkins, "Can't you see this little old woman? She has dementia and she's four feet eight inches and eighty pounds". Ms. Dawkins said she did not realize what was wrong with her, but that Helga had used the "N" word, referring to her. Ms. Dawkins said it was not okay. Mr. Munick told Ms. Dawkins to let it go as she is clearly ill and old, and he probably told Ms. Dawkins to get on her way and for Helga to get on her way and just forget what had happened. Ms. Steinberg was present at that time. Mr. Munick did not refer to Ms. Dawkins using any transphobic slurs.

The court specifically rejects Ms. Dawkins' evidence that Mr. Munick was being aggressive with her in terms of actions, body position, or words. There was nothing going on of an aggressive nature on the scene towards Ms. Dawkins.

Ms. Dawkins put up her hand into Mr. Munick's face and Mr. Munick swatted away her hand. That led Ms. Dawkins to start an attack on Mr. Munick where she proceeded by advancing forward towards him with the metal water bottle in her hand. She swung at him with just her hand three times, and succeeded in hitting him on the arm. She then swung at him with the water bottle, three times. On two of those occasions, she hit him in the head with the water bottle, one time on the nose, which caused the cut and bleeding on the top of his nose. This was a one-sided event where Mr. Munick noted that Ms. Dawkins was much bigger than him. Her arm length and reach was longer than his arm and reach. Mr. Munick did not do anything until after he was struck the final time with the water bottle, and he touched his head in reaction to the blow. He tried to strike back at Ms. Dawkins with his bare hand, but missed. There was no contact.

Moments later, Mr. Munick fell down on the ground. Ms. Dawkins proceeded to kick him in the area of his ribs as he laid on the ground. Another bystander pulled Ms. Dawkins off Mr. Munick and ended the attack.

Moments later, Mr. Munick was able to get away and go upstairs to an apartment. Ms. Steinberg stood in front of the door to the apartment where Mr. Munick had gone. The police were called.

Ms. Dawkins approached Ms. Steinberg and wanted to approach the area where Mr. Munick was at the time. After all of the events were over, Mr. Munick did not even want to give a statement to the police. He was on a body-worn camera being questioned by an officer who wanted information from him. He said he was tired. He wanted to get something to eat.

He explained in court that he was upset as he had just been injured. That was the time the court finds that in that state, in the absence of Ms. Dawkins, he referred to her using the word, "it". He thought she might have been high because she had a lot of power. She had just given him what he referred to as an "ass kicking".

Ms. Steinberg saw in the course of Ms. Dawkins swinging with the water bottle numerous times at Mr. Munick, that on one occasion when she missed hitting Mr. Munick, the water bottle came down and hit a parked car, which light was broken by the action.

The first police car on the scene in relation to the radio call arrived at just before 6:30 p.m., driven by PC Matthew Vidal and his partner, PC Uros Mirkovic, in the front passenger seat. Upon arrival, PC Vidal saw Ms. Dawkins and asked her to speak to PC Mirkovic. PC Vidal then spoke to witnesses on scene including Ms. Steinberg and the male who described the assault with Ms. Dawkins striking the complainant, who was John Munick, with the water bottle, and then striking this man on the lip. At that point, PC Vidal had grounds to arrest Ms. Dawkins. Meanwhile, PC Mirkovic had asked Ms. Dawkins to identify herself. She only gave her first name. She may have related something regarding prior events.

Ms. Dawkins, at that time, still had in her hand the metal water bottle she had used to strike Mr. Munick, and officers were concerned about that situation. PC Vidal decided to arrest her with PC Mirkovic. They placed her under arrest and asked her to put her things down and put her hands behind her back. They tried to put handcuffs on her. PC Vidal got the handcuff on her right wrist. They were unable to put the handcuff on her left wrist. Ms. Dawkins clearly, intentionally defied their commands to put her left wrist behind her back. She kept her left arm where the officers could not grab it. She started a process of resisting arrest, using her large body to resist both officers.

When they could not get the second cuff on her, officers decided they had to take her down to the ground to get more control of her. This started a process where she moved her body and tried to flip her body around to get in different positions to thwart the officers' attempts to place the second handcuff on her. They told her numerous times to stop resisting them.

She continued to resist. She continued to defy efforts to get her left arm and wrist to place the cuff on her. She changed her body position, lifting her leg up and around, and she was clearly a very strong person. She used her legs to kick PC Mirkovic. She was able to get his arm in what was almost an arm lock.

She reached out to PC Mirkovic and the camera in the front of his uniform came off. She grabbed the police keys on the ground. She later grabbed the camera on the ground. The officer told her to "stop grabbing shit". She said she had the right to protect herself against police violence.

They told her to "Stop and calm down". She said, "Are you stupid? That is how you know you are white". As they tried to hold her down on the ground, she was still moving. The officers still did not have control of her.

It was a very fluid and dynamic situation, as officers continued to unsuccessfully try to gain control of her. They did not use any force options, nor did they strike her. They called for assistance.

PC Constantini arrived at approximately 6:30 p.m. as the third officer. Ms. Dawkins was again told she was under arrest, to put her hand behind her body, and again, she did not comply. She was then placed on her stomach for a very brief moment, and she responded by saying she could not breathe.

The officer told her if she put her arm behind her back, she would get up. The handcuff was then put on her left wrist. Within five seconds, she was turned in the relief position on her side. The first two officers were out of breath in dealing with Ms. Dawkins. Moments later, they told her to calm down to catch her breath. She said "bitch" to the officers.

PC Mirkovic put the camera back on his uniform. PC Rourke arrived to assist, saw the officers were doing all right, and he then went over to speak to witnesses. Ms. Dawkins asked the officers what they were arresting her for. As the officer said she was being arrested for assault and assault with a weapon, Ms. Dawkins interrupted him, talking over him, yelling, asking "on who?"

PC Mirkovic told her to "shut up" and she continued to yell. He also put his hand on her face to push her face away. Her face was not on the cement.

She continued to yell that she had the receipts. It seemed throughout this trial, in reviewing the video evidence, that Ms. Dawkins seemed to think she was being accused of theft even though the officers told her it was assault. The officers lifted her to an upright position. PC Mirkovic told her to move as they were trying to move her to the police vehicle. She did not move; standing there arguing.

PC Mirkovic gave her a little push to move her forward towards the police vehicle, but as they proceeded with PC Vidal on her left and PC Mirkovic on her right towards the police vehicle, they were going in the area between parked vehicles on the street. The push caused Ms. Dawkins to lose her footing as she almost tripped around the parked vehicle. She did not fall.

This immediately preceded Ms. Dawkins saying something about, I should "butt" or "bust" your head. After that, she intentionally leaned over and headbutted PC Vidal, hitting his face, nose, and teeth area. PC Vidal thought his teeth were broken. He was startled by the blow and this caused him to lose control of Ms. Dawkins. He let go of her as he fell stumbling backwards.

Immediately after, Ms. Dawkins rushed towards PC Mirkovic, who thought she was about to headbutt him. They were not able to control her in this standing position. PC Rourke came over from speaking to the witnesses to assist, and replace PC Vidal from his role in trying to hold Ms. Dawkins. At that point, Ms. Dawkins was out of control after also having been previously uncooperative and resistant. She was twisting and turning. To regain control of her, they took her down to the ground.

Although PC Constantini was struck in the shin, it is not clear how that injury was caused, and the court does not find that Ms. Dawkins struck him intentionally on his shin.

As she was on the ground with the officers at 6:32 p.m., they asked Ms. Dawkins if she was done kicking and headbutting people. She sarcastically responded, "sure", or, "yeah, I'm done". Officer Rourke said he did not believe her.

Officers tried to keep her in position on the ground, but not on her stomach. The officer changed positions. They were trying to control her, to calm her down, but to secure her. They were waiting for the leg restraints to put on her since she had been resisting and kicking. During that time, PC Rourke adjusted the position of his hands to get leverage to lift her arm so that she was held in the relief position of being on her side; not on her stomach.

Ms. Dawkins screamed. The officer responded, "Oh, stop". PC Rourke did nothing to cause her pain. Any discomfort she felt, he indicated, was from the wearing of handcuffs and the position she was in. Throughout the incident, Ms. Dawkins had been unable to testify as to what had caused her pain.

Leg restraints were put on her ankle so that there was almost no space between the ankles. The officers then had to get her from the position on the ground over to the police vehicle. That proved to be a very challenging situation. They first tried to move her over and placed her in the vehicle head first; a very unsuccessful maneuver. At one point, she buckled her knees and she was on her knees before going into the vehicle.

They had to take her out of the vehicle, and on the second attempt, they suggested and helped her get into a seated position with her body facing out from the vehicle and towards the officers. This had her in a position which gave her the opportunity to headbutt PC Rourke, but he responded quickly by moving and she was not able to connect and hit him.

Moments later, she tried to headbutt PC Mirkovic as she was seated, and he was also able to get away. Shortly after, as PC Rourke tried to maneuver her further into the vehicle, she kicked him in the chest with both of her legs in an intentional maneuver. It was not accidental. He then pushed on her feet to push her further in the vehicle.

Eventually, they got Ms. Dawkins fully in the vehicle with the leg restraints under the door of the vehicle to secure her in place. PC Mirkovic was kicked in the genitals by Ms. Dawkins at some point in the struggle with her. Although he cannot say exactly when it happened, there is no doubt that she was kicking at him at the time of the initial arrest and after. The court finds that she intentionally kicked him in the genitals with the force that caused notable discomfort to him for some time.

The court finds that Ms. Dawkins sustained the injuries noted in evidence including in the photographs, as did the officer who sustained the injuries as noted in the photographs. The court also finds that the police officers suffered the injuries noted in the evidence, that PC Vidal suffered the injuries noted from the headbutting, that Ms. Dawkins kicked PC Mirkovic in the genitals, and as well, that she kicked PC Rourke in the chest. The court also finds that she attempted to headbutt PC Rourke and PC Mirkovic as well.

Charter application - Section 7 and 12

In essence, the defence Charter argument in this trial is that officers used excessive force in their dealings with Ms. Dawkins and that there has been a breach of both sections 7 and 12 of the Charter.

The onus for this application is on the applicant to prove the breach on a balance of probabilities. In response, the Crown submits that the force in this case was proportional, reasonable, and necessary in the circumstances, and that there is no breach of Ms. Dawkins' section 7 or 12 Charter rights.

The Crown also makes the alternate submission that even if there is a breach of these Charter rights, that a stay of proceedings is not warranted.

Law

Excessive use of force in arrest:

The Supreme Court of Canada has set out the relevant principles to consider relating to the excessive use of force by the police. In R v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206:

Analysis

A. Excessive Use of Force by Police

The Legal Standard

[32] The Crown emphasized the issue of excessive force in its submissions to this Court, arguing strenuously that the police officers had not abused their authority or inflicted unnecessary injuries on Mr. Nasogaluak. But police officers do not have an unlimited power to inflict harm on a person in the course of their duties. While, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness. Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences.

[33] The legal constraints on a police officer's use of force are deeply rooted in our common law tradition and are enshrined in the Criminal Code. This case engages s. 25 of the Code, the relevant portions of which are reproduced below:

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.

(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force [page227] that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person's protection from death or grievous bodily harm.

(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if

(a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;

(b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant;

(c) the person to be arrested takes flight to avoid arrest;

(d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and

(e) the flight cannot be prevented by reasonable means in a less violent manner.

[34] Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm. The officer's belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis (Chartier v. Greaves, [2001] O.J. No. 634 (QL) (S.C.J.), at para. 59). If force of that degree is used to prevent a suspect from fleeing to avoid a lawful arrest, then it is [page228] justified under s. 25(4), subject to the limitations described above and to the requirement that the flight could not reasonably have been prevented in a less violent manner.

[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), 1981 339 (BC CA), 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]

The objective reasonableness of the officer's conduct must be assessed from the standpoint of the reasonable person standing in the officer's shoes: R. v. Tran, 2007 BCCA 491 at para. 12

As noted by the court in R. v. Walcott, 2008 11374 (ON SC), [2008] O.J. No. 1050 at para. 22 to 24, and as set out and relied upon in the judgment of Justice O'Marra (Al) in R. v. Eyo, [2012] O.J. No. 2791 at paragraph 7:

In assessing the reasonableness or necessity of the force used ... a court should take into account all of the circumstances, including whether:

(i) The subject was acting in a hostile manner towards the police, resisting arrest or failing to comply with an officer's arrest procedure;

(ii) The relative sizes and weights of the officer and the suspect;

(iii) The officer was at risk of harm;

(iv) The police knew the suspect had a history which might represent a threat to them; or

(v) The police understood that weapons might be on the premises.

Further, as noted by the Court of Appeal for Ontario in R. v. Pan, 2012 ONCA 581, [2012] O.J. No. 4162, at:

[47] Excessive force may give rise to a breach of s. 7 if it substantially interferes with an accused's security of the person interest. The use of force that is not excessive - even force that gives rise to foreseeable injury - would not likely amount to a breach of s. 7. The police are entitled to use force to make an arrest as long as the force used is proportional, reasonable and necessary: see R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206.

[48] In this case, absent a finding that the police used excessive force to arrest Ban, I do not see how the trial judge could find a breach of s. 7 of the Charter: see R. v. Gangl, 2011 ABCA 357, 515 A.R. 337.”

In R. v. DaCosta, 2015 ONSC 1586, [2015] O.J. No. 1235, Justice Hill reviewed the "excessive use of force" authorities and summarized them. in that case, the court noted at paragraph 98 that the court should consider all of the circumstances faced by the police, but guard against the tendency to over-reliance upon reflective hindsight. As Justice Cromwell explained, judges should be slow to intervene on the basis of hindsight. The court quoted from the SCC judgment in R. v. Cornell, 2010 SCC 31, 2010 2 SCR 142, at para. 24, stating:

It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.

The court in DaCosta further stated at paragraph 97:

[97] Judicial review on the use of force by police in the context of an arrest requires an assessment of the reasonableness of the forcible arrest "in all circumstances". R. v. Assante-Mensah2003 SCC 38, [2003] 2 S.C.R. 3, at paras. 74-6; see also R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 83 ("Looking at the totality of the evidence through the lens of an officer with training and field experience in..."); R. v. Canada (Royal Canadian Mounted Police) [Bottrell] (1981), 1981 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.), at p. 218 ("It is the belief of the police officer in the light of all the circumstances that is important"); Laufers v. Toronto (Metropolitan) Police Force et al., [1992] O.J. No. 2222 (Div. Ct.), at p. 21 ("Having regard to all the circumstances as they existed at the time the force was used...").

[98] Apart from the interpretive caution to consider all the circumstances faced by the police, a reviewing court must guard against the tendency to over-reliance upon reflective hindsight:

It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.

(R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 24)

The point is: officers have a duty to protect and a right to their own safety. Assessing whether belligerent and intoxicated persons might harm other members of the household or might take out their anger against the officers is not governed by clearly defined rules. It is an exercise in discretion and judgment, often guided by experience. Second-guessing is not helpful. As Cromwell J. explained in Cornell, judges who review the decisions of officers should be slow to intervene on the basis of hindsight (at para. 24)

(R. v. Alexson, 2015 MBCA 5, at para. 20)

[...] the immediate decisions a police officer makes in the course of duty are not assessed through the "lens of hindsight"...

(Crampton v. Walton (2005) 2005 ABCA 81, 194 C.C.C. (3d) 207 (Alta C.A.), at para. 45)

[...] his conclusion was inappropriately based, at least in part, on hindsight...

(Webster v. Edmonton (City) Police Service, 2007 ABCA 23, at para. 28)

[99] A critical contextual circumstance for many arrests is the dynamic and fluid nature of an apprehension with the need for rapid, on-the-spot decisions by a police constable:

A certain amount of latitude is permitted to police officers who are under a duty to act and must often react in difficult and exigent circumstances.

(Assante-Mensah, at para. 73)

[measures] reasonably necessary to eliminate threats to the safety of the public or the police ...will generally be conducted by the police as a reactionary measure... they will generally be unplanned, as they will be carried out in response to dangerous situations created by individuals, to which the police must react "on the sudden".

(MacDonald, at para. 32 per LeBel J.)

[...] police officers put their lives and safety at risk in order to preserve and protect the lives and safety of others...[in] potentially dangerous situations...

(MacDonald, at para 64. per Moldaver and Wagner JJ.)

The justifiability of the officers' conduct must always be measured against the unpredictability of the situation they encounter and the realization that volatile circumstances require them to make quick decisions[...]

(Alexson, at para. 20)

The police are often placed in situations in which they must make difficult decisions quickly, and are to be afforded some latitude for the choices they make. See R. v. Asante-Mensah, 2003 SCC 38, 2003 2 S.C.R. 3 at para. 73, Courts recognize that law enforcement is dangerous; no one wants police officers to compromise their safety.

Police officers act in dangerous and unpredictable circumstances.

(Crampton, at paras. 22, 44)

In this case, I am concerned with the police interest in protecting the safety of those at the scene of the arrest. This interest is often the most compelling concern at an arrest scene and is one which must be addressed immediately. In deciding whether the police were justified in taking steps to ensure their safety, the realities of the arrest situation must be acknowledged. Often, and this case is a good example, the atmosphere at the scene of an arrest is a volatile one and the police must expect the unexpected. The price paid if inadequate measures are taken to secure the scene of an arrest can be very high indeed. Just as it is wrong to engage in ex post facto justifications of police conduct, it is equally wrong to ignore the realities of the situations in which police officers must make these decisions.

In my opinion, one cannot ask the police to place themselves in potentially dangerous situations in order to effect an arrest without, at the same time, acknowledging their authority to take reasonable steps to protect themselves from the dangers to which they are exposed. If the police cannot act to protect themselves and others when making an arrest, they will not make arrests where any danger exists and law enforcement will be significantly compromised.

(R. v. Golub (1977), 1997 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.), at paras. 44-5, notice of discontinuance filed [1997] S.C.C.A. No. 571)

[100] It may be, in a given case, that inconsistencies between officers' evidence regarding a use-of-force situation are the result of the intensity and stress of fear, danger and unfolding events.

(See R. v. Boston, 2013 ONCA 498, at para. 13; R. v. Pompeo, 2014 BCCA 317, at para. 45.

[101] "Police officers" will be exempt from liability "if they use no more force than is necessary having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves"". Webster, at para. 26. This approach is codified by section 25 of the Criminal Code which has been described as "a safe harbour from liability for those who are required to enforce the law".

Crampton, at para. 22. Sections 25(1)(b) and (3)(4) are relevant in this assessment.

The court does not repeat the portion of the judgment which quoted the provisions in Section 25 of the Criminal Code, as they are stated above in other cases.

Continuing with the quote from the reasons of R. v. DaCosta at paragraph 103:

[103] Over time, the employ of force by a peace officer in the lawful discharge of his or her duties has, through the experience of the courts with specific fact situations, come to be described with these features:

(1) Given the need to be mindful of abuses of power, and the priority to be afforded citizens' Charter rights, it is accepted that "[...] police officers do not have an unlimited power to inflict harm on a person in the course of their duties" (Nasogaluak, at para. 32) and Section 25(1) is not an absolute waiver of liability, permitting officers to act in any manner they see fit."

Crampton, at para. 22

(2) The authority to use force implies a degree of discretion in a police officer and, in a particular case, a permissible range of response which may be accepted as reasonable:

They [the police] cannot be expected to measure in advance with nuanced precision the amount of force the situation will require[...]

(Cornell, at para. 24)

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), 1981 339 (BC CA), 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"...

(Nasogaluak, at para. 35)

While considerable force was used causing considerable pain, it has been said that in such a situation, the officer "could not be expected to measure the force used with exactitude"[...]

(R. v. Mulligan (2000), 2000 5625 (ON CA), 142 C.C.C. (3d) 14 (Ont. C.A.), at para. 41)

Police officers are not expected to measure the precise amount of force the situation requires...

(Crampton, at para. 45)

(3) Accordingly, where the police act within a reasonable range of forcible response, they will not be denied the protection of s. 25(1) of the Code "if they fail to use the least amount of force that would achieve the desired result": Crampton, at para. 45; Castro, at para. 38; Puricelli, at para. 43; Chartier v. Greaves, [2001] O.J. No. 634 (S.C.), at para. 64; Levesque v. Sudbury Regional Police Force, [1992] O.J. No. 512 (Gen. Div.), at para. 17.

(4) Because police actions are not judged against a standard of perfection (Nasogaluak, at para. 35), "([t]he police are entitled to be wrong but they must act reasonably" and therefore "...the police need not demonstrate the correct decision was made, but that the decision was made based on reasonable grounds on the circumstances known at the time (Crampton, at paras. 22, 40) -- in effect, some allowance is justifiably afforded "for misjudging the degree of force because of the exigency of the moment": Webster, at para. 31; Puricelli, at paras. 42, 45.

(5) By extension, in light of the accepted proposition that a range of reasonable force response exists in a given set of circumstances, a description of what the police might have done differently "may well run afoul of the discretionary allowance for police action": R. v. Mackay, 2012 ONCA 671, at para 28

(6)"[t]he police officer cannot be deemed in breach of section 25(3) of the Code merely because in the final result grievous bodily harm resulted, unless he intended that result": Bottrell, at p. 218.

The defence relied upon the cases of Nasogaluak, Acheampong, Magiskan, Jackson, and Gladue. The court considers the trial decision of R. v. Acheampong, 2018 ONCJ 798. The defence submits, relying on this trial decision, that upon demonstrating that excessive force was used, the evidentiary burden then shifts to the Crown to prove on a balance of probabilities that the police actions were justified in accordance with the limitations in section 25 of the Code, and thus in compliance with the principles of fundamental justice at paragraph 52.

The defence also submits that relying upon paragraph 59 that there is a constitutional obligation to properly document the circumstances surrounding the use of force for upcoming judicial review.

In that case, the trial judge was considering the actions of the ETF, also referred to as the Emergency Task Force officers, specifically trained to secure high risk scenes for other police officers who were involved in arresting an accused before turning over the accused to other police officers. In that case, it was clear that the ETF officers had the ability to record the force they used and the circumstances in that case. The facts in that case were quite different than the case at bar. It related to throwing a concussion grenade through a battered door causing explosion and deafening sound and a blinding light. This was followed by ETF officers in military style uniforms armed with machine guns who were masked and entering looking for two young men.

The officers shouted commands at gunpoint. When one male was found, he was violently assaulted. That case was nothing like the case at bar where officers were endeavoring to arrest the accused without the use of weapons and with no preconceived plan of approach.

This court would also note that where there is extensive body camera video footage recorded by numerous officers on scene attempting to effect an arrest, the video clips are akin and more reliable in terms of recording events that a human being might perceive and record.

Any past concern of courts regarding the lack of notes to record what happened is very much diminished, if not removed as a concern where there is extensive video recording of the various events.

It is also noteworthy that in the case at bar, there were no weapons used to effect the arrest. The officers simply used their hands to try and place the cuffs on her wrists, and then just tried to place her in the police cruiser, when she would not go in the cruiser. The court finds that it was reasonable for the officers to effect an arrest Even if it became a forcible arrest, considering R. v. Asante-Mensah, 2003 SCC 38, [2003] S.C.J. No. 38 at paragraph 74.

The court has also considered R. v. Magiskan, [2003] O.J. No. 4490 (Sup. Ct.) and, in particular, paragraph 27, and the factors outlined therein.

[27] The nature and quality of the act that must be considered begins with the decision to use force of any kind in the first instance (s. 25(1)). Justification for that decision, once made, is limited by all of the circumstances that affect the “nature and quality of the act that constitutes the excess”. Some such circumstances would include:

• the nature and seriousness of the offence for which the arrest is being made (one does not engage a bulldozer when a flyswatter is sufficient).
• the certitude of the fact of the offence which is the basis of the arrest having taken place (Persons are presumed to be innocent until proven guilty. The more that is known about the circumstances that establish guilt, the more thorough the inquiry, the more complete the objective evidence and the more reasonable the grounds upon which the arrest is made are important considerations which govern necessity and reasonableness).
• the need for detention as an aspect of intervention;
• the protection of the officers and other persons from violence;
• the prospect of flight/escape;
• the likelihood of continuation/resumption of offending conduct;
• the apparent physical condition of the person being arrested and/or alleged victims;
• police modules and training affecting the use of force;
• the prospect of escalation and retaliation;
• knowledge of the identity and access to the person to be arrested; (A person who is to be arrested does not, of necessity, have to be arrested at that time and place if use of force is contemplated when it is reasonable that this can be accomplished on another occasion without violence or with less violence.);
• the nature and extent of the force reasonably contemplated as likely to be necessary;
• other exigent circumstances.

The summary conviction appeal court found that the trial judge misapprehended the evidence and in the end, found that the force used, which included pepper spray, hitting the accused on his hand, right arm and leg, and placing him in a choke hold in the circumstances of the way that accused was presenting was excessive.

The court would find that the force used by officers in R. v. Jackson, 2011 ONCJ 228, was in a very different context and very different from the force in the subject case.

Similarly, the force used in R. v. Gladue [1993] A.J. No. 1045, in responding to a female accused in an impaired driving investigation advising the police that one of her cuffs had come off, was excessive. The officer responded by shoving her face against the cement wall, advising her we would fix that, causing a bruised forehead and cheek and a bruised wrist from more tightly affixed handcuffs. That case, as well, was very unlike the case of bar.

The court has also reviewed the case of R. v. Sannella, 2020 ONCJ 630 where the court rejected the evidence and the argument that the police used excessive force or intentionally or recklessly used unnecessary force to extract the applicant from the car and during his arrest. The court referred to it being a dynamic emergency situation, and given the context, it would be an error in principle to judge the conduct of the officers after the fact with exactitude. The court did note the unfortunate result of the applicant being injured in the interaction, but found that it was not unlawful conduct that proves a Charter violation.

Decision on Charter Application

It is clear that there were multiple directions and commands made to Ms. Dawkins and she did not respond or comply with them. She was simply not compliant in the context of the whole situation. She actively and intentionally resisted the efforts of the officers to arrest her and place handcuffs on her. The officers were not required to say more to Ms. Dawkins than they did in their reference to handcuff her to affect the arrest.

There is, in this case, no argument by the applicant that the officers did not have a proper basis to detain or arrest Ms. Dawkins. There is no section 9 Charter application. The officers had a lawful basis to arrest Ms. Dawkins and they were acting in the execution of their duty by arresting her.

The question for this court to consider in the Charter application is whether there was an excessive use of force by the police in effecting this arrest. The court finds that PC Vidal and PC Mirkovic were within the execution of their duty in effecting the arrest of Ms. Dawkins for assault.

The officers acted on reasonable grounds and were justified in affecting the arrest with force, given the circumstances. The response of Ms. Dawkins to the directions and orders to put her hands behind her back was to actively and intentionally resist, as noted in the findings of fact and review of evidence.

The officers were entitled to use reasonable, proportionate, and necessary force to effect that arrest. They tried to handcuff her in a standing position. She, by her actions, refused their directions. They did not have control of her. She had one handcuff on, and the rest of the handcuff was loose and could be used to swing around as a weapon. The officers chose to take her down to the ground to get better control of her and finish the cuffing process. They had to take her down to the ground. This caused them to have her on the ground to try and gain control of her.

There is a likelihood that some of her injuries to her left side, both on her face and left arm may have been caused by this process. That still did not work. With the large size and apparent strength of Ms. Dawkins, she was able to maneuver herself in various positions on the ground. She flipped her leg around and kicked PC Mirkovic in the chest. She almost put his arm in a lock position. She turned around and then got on her back. She was still not handcuffed and she was still not under control by the officers. They radioed for assistance.

When the third officer arrived and they repeated that she was under arrest and she still did not provide her left arm for cuffing, they had to put her on her stomach. This was a very momentary use of force holding her in that position, causing her some difficulty breathing, until she provided her left arm and was cuffed.

The officers had told her that if she provided her arm, they would put her in the relief position, which they did. She was in that difficult position for approximately five seconds.

While PC Mirkovic pushed her a bit to get her to move towards the police vehicle, and it was unfortunate that they were not able to better position her going around the parked vehicle, it is notable that she lost her footing but did not fall.

She then headbutted PC Vidal. She tried to headbutt PC Mirkovic. They lost control of her again as she was in a standing position and they were trying to lead her to the police vehicle. They had to take her down to the ground again to try and gain control over her.

It was reasonable and necessary in the circumstances, in light of the level of her resistance, her agitation, and the level of violence she had been engaging in to that point.

At one point during the exchange, she kicked PC Mirkovic in the genitals. She later tried to headbutt PC Mirkovic again near the vehicle. She tried to headbutt PC Rourke as he tried to place her in the vehicle. She succeeded in kicking PC Rourke in the chest with her feet.

The court finds that the officers did not strike her and they did not try to hurt her arm. Specifically, PC Rourke did not apply force in order to hurt her. He was trying to keep her body in the relief position so that she could breathe properly while still trying to maintain control over her. It was reasonable for the officers to put leg restraints on her given the way she had been acting and her prior kicks to the officers.

The officers had to respond to her non-compliant, resistant, and violent behaviour in a very fluid and dynamic situation in what occurred in a very short period of minutes. Their safety was at risk.

Even though the officers outnumbered Ms. Dawkins, her large size and apparent strength overwhelmed them at times. The court considers the nature of the injuries sustained to Ms. Dawkins for which she did not request or obtain any medical treatment.

The court has considered all of the factors in Magiskan as set out in paragraph 27 in light of the findings of fact and evidence in this trial.

Applying the law set out by the Supreme Court of Canada in Nasogaluak and other cases set out above, the court finds that the officers were justified in using the force they did to affect what was a lawful arrest. The officers only used as much force as was necessary. It was reasonable and proportionate In the circumstances. They only used their hands to try and hold her and cuff her and then to move her to the police vehicle. They did not strike her. They did not use a baton, a taser gun, or other instruments of force on her.

The court has relied upon the findings of fact made above. The court finds that the application of force by the officers in affecting the arrest and getting her handcuffed in the police vehicle in the context and circumstances in this case causing what defines to be minor injuries to Ms. Dawkins as noted above, was not excessive.

The court finds that the amount force used on Ms. Dawkins in the circumstances was reasonable and proportionate. There is no breach of section 7 or 12 of the Charter. There is no need to consider the request of a remedy for a stay of proceedings or a reduction in sentence. There is no remedy as there was no breach.

The court goes on to consider the ultimate issues in this trial.

Self defence - Law

The law relating to self defence is as follows: Section 34 of the Criminal Code governs the law of self defence and states:

34 (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

Section 34(3) is not quoted as it is not relevant in this case.

Recently, the Supreme Court of Canada considered this provision in R. v. Khill, 2021 SCC 37. The court considers self defence in light of this judgment. For the defence in this trial, the court will consider whether the accused

• believed on reasonable grounds that force was threatened or being used against her or someone else,
• whether she acted for the purpose of defending herself or the other person, and
• whether the accused's actions were reasonable in the circumstances.

As characterized by the court in Khill at paragraph 18, the Crown bears the onus of proving beyond a reasonable doubt that the answer to at least one of these questions is "no".

In Khill, the court noted that the act must be reasonable in the circumstances and the fact finder must consider a wide range of factors to determine what a reasonable person would have done in a comparable situation.

The current provision came into force in March of 2013. A driving force to the amendments was the desire to simplify the law of self defence. At that time, the offences and situations to which self defence could apply, were expanded. However, there was a greater degree of flexibility to the trier of fact in being the requirement that the court assess the reasonableness of the accused response by reference to a non-exhaustive list of factors. The key issue considered by the court in Khill was the accused's role in the incident and the extent to which the accused played a role in bringing about conflict.

In consideration of that aspect, the conduct of the accused sheds light on the nature and extent of the accused's responsibility for the final confrontation that culminated in the act giving rise to the charge. In considering the new provisions for self defence, the Supreme Court of Canada in Khill at paragraph 39, noted that the scope and application of self defence was broadened and that it employed a multifactorial reasonableness assessment.

The court also predicted in paragraph 44, that additional claims of self defence will be placed before triers of fact. However, as noted in paragraph 46, based upon the requirement to consider enumerated factors, "the provisions narrow the scope of self defence in some factual circumstances and broaden it in others".

The court commented upon the types of circumstances that could be considered in assessing a claim of self defence, in paragraphs 56 to 64. The court stated:

[56] However, not all personal characteristics or experiences are relevant to the modified objective inquiry. The personal circumstances of the accused that influence their beliefs — be they noble, anti-social or criminal — should not undermine the Criminal Code’s most basic purpose of promoting public order. (Cinous, at para. 128, per Binnie J., concurring). Reasonableness is not considered through the eyes of individuals who are overly fearful, intoxicated, abnormally vigilant or members of criminal subcultures. (Reilly v. The Queen, 1984 83 (SCC), [1984] 2 S.C.R. 396, at p. 405; Cinous, at para. 129-30; R. v. Phillips, 2017 ONCA 752, 355 C.C.C. (3d) 141, at para. 98). Similarly, the ordinary person standard is “informed by contemporary norms of behaviour, including fundamental values such as the commitment to equality provided for in the Canadian Charter of Rights and Freedoms” (R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 34). Personal prejudices or irrational fears towards an ethnic group or identifiable culture could never acceptably inform an objectively reasonable perception of a threat. This limitation ensures that racist beliefs which are antithetical to equality cannot ground a belief held on reasonable grounds. Doherty J.A. succinctly illustrated this principle in his reasons in this appeal, at para. 49:

For example, an accused’s “honest” belief that all young black men are armed and dangerous could not be taken into account in determining the reasonableness of that accused’s belief that the young black man he shot was armed and about to shoot him. To colour the reasonableness inquiry with racist views would undermine the very purpose of that inquiry. The justificatory rationale for the defence is inimical to a defence predicated on a belief that is inconsistent with essential community values and norms.

The court also noted that reasonableness will be measured according to the relevant circumstances of the person, the other parties, and the act. It takes into account certain characteristics of the accused, including, the size, age, gender, and physical capabilities, under section 34(2)(e).

The court also noted that certain experiences of the accused including the relationship and history of violence between the parties as set out in section 34(2)(f), and (f.1) must also be taken into account.

The defence has argued throughout this trial that the court should take into account Ms. Dawkins' characteristic as a transgender racialized woman. The Supreme Court of Canada in Khill does not speak to necessarily including those characteristics in the assessment. However, given the nature of the exchanges involving Ms. Dawkins and her position, the court does consider her situation as a racialized transgender woman, as a relevant circumstance.

In that case at trial, the Crown argued that the actions of the accused were rash and unreasonable,

that he could have exercised a number of prudent alternatives including calling 9-1-1, staying in the house, that it was only a property offence. The defence had submitted on appeal in Khill that the section 34(2)(c) criteria should be limited to unlawful, provocative, or morally blameworthy conduct on the part of the accused, and not a broader type of Conduct of an accused in a wider context in which the accused acted. See paragraph 26.

It is important to bear in mind as set out in paragraph 66, that the court can consider any mistaken beliefs reasonably held by the accused, and the subjective purpose of the accused under sections 34(1)(a) and (b) and the criteria in Section 34(2). It is noteworthy that section 34(1)(c) is primarily concerned with the reasonableness of the accused actions, not his mental state.

The court now considers the components of section 34(1) of the Criminal Code.

As stated above, the Crown bears the onus of proving beyond a reasonable doubt that the answer to at least one of these questions is, "no".

Number 1) The catalyst: Did the accused believe on reasonable grounds that force was being used or threatened against her or another person? 34(1)(a).

The court needs to consider the accused's state of mind and perception of events that led her to act. For this element, the accused must subjectively believe that force or threat thereof was being used against her or that of another. In the absence of that subjective belief, self defence is not available to the accused.

In this case, the scenario of it being potentially related to another person does not arise.

This belief must be held on reasonable grounds which objective component is based upon the perspective of an ordinary person who shares the attributes, experiences, and circumstances of the accused where those characteristics and experiences are relevant to their belief and actions. This is a blended or a modified objective standard, as stated in Khill at paragraph 54.

What would a reasonable person with those relevant characteristics and experiences perceive? The Supreme Court of Canada explained that this requirement operates to shield otherwise criminal acts from punitive consequence and as a result, the defence cannot depend exclusively on an accused's perception of the need to act. Through the reasonableness requirement, community norms and values are incorporated in weighing the moral blameworthiness of the actions of the accused. Quoting Justice Paciocco in his article "It is a quality control measure to maintain a standard of conduct that is acceptable not to the subject, but to society at large".

The court in Khill opined that in assessing the modified objective standard, the court would consider prior violent encounters between an accused and victim, in the determination of whether the accused faced an imminent threat of death or grievous bodily harm (See paragraph 55) not all personal circumstances or beliefs of an accused that influence their beliefs.

Reasonableness is not to be considered through the eyes of people who are overly fearful, intoxicated, abnormally vigilant, or members of criminal subcultures.

Personal prejudices or irrational fears towards an ethnic group or identifiable cultures cannot inform an objectively reasonable perception of a threat as racist beliefs are antithetical to equality and cannot ground a belief held on reasonable grounds.

The court also clarified that an honest but mistaken belief can be reasonable and is not a bar to self defence. In conclusion, the court stated that reasonableness is a matter of judgment, to brand a belief as unreasonable in the context of a self defence claim is to declare the accused act as criminally blameworthy. (See Paragraph 58)

Assault with a Weapon - John Munick

In this case, it is noteworthy that in the context of the allegations, the complainant, John Munick did not use any force against Ms. Dawkins other than swatting her hand away after she put her hand in his face. There is no evidence that Mr. Munick threatened the use of force. The evidence of Mr. Munick, Ms. Steinberg, and in the video covering a portion of events leading up to the allegations, show that Ms. Dawkins struck Mr. Munick first after he swatted her hand out of his face area.

The court, in making the earlier findings of fact, has carefully considered the evidence of the witnesses and video and does not find that the swatting away by Mr. Munick of Ms. Dawkins in the area of his personal space, is an assault. The court has found as a fact, Mr. Munick did not assault Ms. Dawkins by swatting away her hand in the area of his face.

What followed that action was a series of movements where Mr. Munick clearly was backing away from Ms. Dawkins and Ms. Dawkins continued to pursue Mr. Munick and assault him numerous times. Ms. Dawkins struck him with her hand. Mr. Munick continued to move backwards away from Ms. Dawkins. She continued to assault Mr. Munick. She hit him with a metal water bottle. The only time that Mr. Munick responded to these continued acts was when he tried to strike her in his self defence after she had tried to strike him six times.

What is important in this case is whether there is any evidence that Ms. Dawkins had any belief on reasonable grounds that force by Mr. Munick was being used or threatened against her. The court has rejected the defence version of events in evidence that Mr. Munick assaulted her by pushing her hand away from his face before she pursued Mr. Munick and assaulted him.

The court finds that force was not used on Ms. Dawkins before the assault, in terms of this determination. There is no evidence of any threat made by Mr. Munick to Ms. Dawkins, which the court accepts as a finding of fact. The court rejects the earlier evidence of Ms. Dawkins, that Mr. Munick was acting aggressively, that he was aggressive in his bodily position, or that he used aggressive or violent words. The court rejects all of that evidence of Ms. Dawkins.

As said out in the provision, the court considers the circumstances of Ms. Dawkins. She had no prior history with Mr. Munick. She was much larger in size and build than Mr. Munick and she was much younger than Mr. Munick, who was 66 years old. The physical capabilities of Ms. Dawkins were very much greater than those of Mr. Munick.

The court considers the transgender and racialized characteristics of Ms. Dawkins in the assessment. Mr. Munick made no use or threat to use a weapon. There was no indication of any potential force about to be used by Mr. Munick as found by this court.

At all times, as set out herein, the court finds as a fact that Mr. Munick sought to back away from Ms. Dawkins. Even if Mr. Munick told Ms. Dawkins to leave, that is not a scenario that would justify the use force by Ms. Dawkins. The court has found that Mr. Munick did not call Ms. Dawkins any transphobic or violent names.

The use of force by Ms. Dawkins was completely out of proportion, striking this older, smaller man numerous times, including using a sealed water bottle to hit him in a downward motion in the face. Ms. Dawkins had other options available to her. She could have walked away as Mr. Munick and others were asking her to leave. Instead, she chose to pursue Mr. Munick down the street with a steel water bottle in her hand in a course of assaultive behavior, using it to swing at him. She was the aggressor. This was a one-sided incident.

The court does not have any reasonable doubt with respect to whether Ms. Dawkins had a belief on reasonable grounds that force was being used on her or threatened against her. There is no fact this court would find of a threat being made on the scene prior to the assaults by Ms. Dawkins on Mr. Munick, including the assault with a weapon.

Ms. Dawkins cannot take advantage of self defence based on the court's consideration of this criteria as it relates to Mr. Munick. The court does not have any reasonable doubt with respect to assault with a weapon on John Munick arising from the findings of the fact.

While the court rejects Ms. Dawkins' version where it is not supported by other evidence that is credible and reliable, the court also does not have any reasonable doubt arising from the evidence.

The court accepts the evidence of Mr. Munick and Ms. Steinberg. The court finds that the Crown has proven beyond a reasonable doubt that Ms. Dawkins assaulted John Munick with a weapon and finds her guilty of that charge.

Assault with Intent to Resist Arrest to Officers Vidal, Mirkovic, and Rourke - Counts 3, 4, and 6 As noted above, the court finds Ms. Dawkins not guilty of the charge on Count 5 relating to the assault allegations pertaining to PC Constantini.

As it relates to Counts 3, 4, and 6, the court has noted above its finding that the officers were acting in the execution of their duty to arrest Ms. Dawkins. They were entitled under section 25 of the Criminal Code to use as much force as was necessary in the circumstances to effect that arrest. The court has noted above its finding that the officers did not use excessive force in effecting the arrest.

There is no doubt that these are charges of assault, and for the Crown to prove the offences, the Crown must show both mens rea, that is the intent to assault the officers, together with the actus reus of the assault for each of these counts.

The Crown submits that Ms. Dawkins actively resisted arrest from the moment the officers told her she was under arrest, right to and including the point when she was secured in the police vehicle finally with the door shut.

The Crown also notes that there was a chain of events that proceeded from the point when the officers asked her to drop the water bottle and she refused to do so. This is the water bottle she used to assault John Munick moments earlier while at the scene.

When the officers arrived, she was still holding the metal water bottle in her hand. PC Vidal testified that he was focused on Ms. Dawkins having the metal water bottle in her hand and making sure she no longer held it. They told her she was under arrest and to drop her stuff, and that included the bottle she was holding.

There were a series of acts that flowed from the officers placing her under arrest where she used her leg up in the air to kick PC Mirkovic. This was not a move in the midst of the struggle; it was an act on her behalf towards the officer who was trying to place the cuff on her left wrist. It was, the court finds, an intentional act to strike him.

Later in the process, she made a comment about butting or busting the officer, immediately before she leaned over and headbutted PC Vidal in the head, striking him in the mouth and nose area. This was another intentional act, not an accidental one in the midst of a struggle.

Further, she attempted to headbutt PC Mirkovic almost immediately after. After she was taken to the vehicle, she intentionally used her feet which were in leg restraints, to strike out at Officer Rourke. This was not an accidental act; it was also intentional, the court finds.

While the court did not make a finding of fact as to when it actually happened, the court does find that Ms. Dawkins also intentionally struck PC Mirkovic in the genital area.

In the summary conviction appeal court case of R. v. Surhoff, 2016 ONSC 2244, the court refers to assault resisting arrest, and at paragraph 69 states:

For this offence, the Crown must prove that there is intentional application of force by the accused. Section 270(1)(b) - Assault with intent to resist or prevent lawful arrest requires proof of an actual assault, (section 265), that it is not an offence when the force is applied as a result of a reflex action as there is no intent. (See Wolfe, 1974 1643 (ON CA), 1974 20 CCC(2d) 382(O.C.A), and that merely resisting by pulling his arm away and attempting to disengage from physical contact with the police, is not an assault because there is no intentional application of force. (See paragraph 71 of Surhoff.

The court also considers R. v. Tyrell, 2021 ONCA 15. The acts of Ms. Dawkins which the court has found to be intentional assaults, occurred in the midst of her active resistance to the arrest process. Those actions were not of reflex actions pulling away from the police, they were intentional applications of force, as the court has noted above and found as facts.

The officers were entitled to use force in the circumstances. The defence argument that Ms. Dawkins acted in self defence in resisting the officer's lawful and permitted use of force, cannot give rise to self defence on the evidence and in the findings of fact in this case. The conduct of Ms. Dawkins in the circumstances is not reasonable. She was not entitled to assault police officers because she felt she should not be arrested, which was her view at the time of the arrest.

She was also not acting in self defence in assaulting them, even if they held her on the ground due to her resistance in the efforts to handcuff her. She was also not acting reasonably when she headbutted PC Vidal because she thought an officer had pushed her towards a parked vehicle. She was not moving initially and in the overall circumstances of her physical resistance to the officer's efforts to properly arrest her and place her in custody, her actions in headbutting PC Vidal were not reasonable. She was not acting in self defence in assaulting the officers in this case.

The court accepts the evidence of the officers, as noted above. The court has rejected the evidence of Ms. Dawkins, as noted above. The court also does not have any reasonable doubt arising from the defence evidence in this case. The court finds that the Crown has proven beyond a reachable doubt that Ms. Dawkins assaulted PC Matthew Vidal, PC Uros Mirkovic, PC Rourke, each with intent to resist or prevent the lawful arrest or detention of herself contrary to section 270(1)(b) of the Criminal Code.

Ms. Dawkins is found guilty on Counts 3, 4, and 6 in the information.

Mischief Charge - Damage to Car

The video, photographs of the car parked on the street and testimony of Ms. Steinberg are relevant to this charge. Ms. Steinberg testified she saw Ms. Dawkins swing her steel bottle at Mr. Munick, and Ms. Dawkins striking him on occasion. She saw Ms. Dawkins swing the steel bottle and strike the back right light of the parked car on the street. She believed Ms. Dawkins strikings John, but hit the car instead. This was prior to the arrival of the police on the scene. There was damage to the taillight of the car. The Crown argues that Ms. Dawkins was reckless in striking this car, and that makes up the mens rea for the offence of mischief. There is no evidence which raises any reasonable doubt on this charge. The court finds that she did act recklessly, and the court finds Ms. Dawkins is found guilty of mischief relating to damage to the car.

As noted above, Ms. Steinberg provided critical evidence regarding this offence. She was the only witness who saw the acts that were mentioned above.

As noted above, the court rejected Ms. Dawkins' denial that she hit the parked car and caused the damage. The court does consider the evidence she gave, however, in cross-examination, that she was not really paying attention to what she was swinging at with the bottle. The court does not have a reasonable doubt with respect to this charge arising from the evidence in the findings of fact.

The court has noted above, it found the evidence of Ms. Steinberg to be credible and reliable, and the court has considered the element of recklessness as set out in section 429 requisite for the offence of mischief.

So accordingly, Ms. Dawkins is found guilty of the charge of mischief, which is Count 2 in the information.

Breach of Probation

It is clear that Ms. Dawkins was on a probation order at time of the allegations. It is also clear that she breached the term of keeping the peace and being of good behaviour at the time of the allegations, by the way in which she engaged in assaultive behaviour with respect to the complainants and the people that were on the scene.

The court rejected her evidence, as noted above. The court also does not have a reasonable doubt arising from her evidence.

The court has accepted the evidence of the witnesses, as noted above and as shown on the videos. Accordingly, Ms. Dawkins is also found guilty of Count 7, failure to comply with probation.

Those are the reasons of this court.

So just to be clear, Madam Clerk, can you make sure to note Count 5 is a finding of not guilty, and they are findings of guilt on the other counts, 1, 2, 3, 4, 6 and 7.

THE COURT: Do you wish to put the matter of sentence over to another date?

CLERK REGISTRAR: Thank you, Your Honour.

MS. WILLITTS: Yes. I think so, Your Honour. Is it best if my friend and I have a session and set a date with the trial coordinator?

THE COURT: Yes, that's what you'll have to do. I don't know if either of you have any kind of idea of what you're going to be requesting by way of sentence, so the court can make a determination of what, if anything, should be ordered after today?

MS. PENMAN: Your Honour....

THE COURT: Have the two of you been having any discussions about that or whether you want to....

MS. PENMAN: No.

THE COURT: ...pre-sentence report or not?

MS. PENMAN: I think I'll be able to provide enough materials, Your Honour, with respect to Ms. Dawkins' situation and so on to give you enough information, so I'm not asking for a pre-sentence report.

THE COURT: Okay. Do you wish to know the Crown's position before I adjourn this today, or you — do you wish to just leave it so the two of you can have discussions later, should you choose to do so?

MS. PENMAN: If, if the Crown knows her position, I'd be happy to hear it, but, I mean, one way or the other, I'll be in touch with the Crown about that. So if she knows now, that'd be great, otherwise, I'll be in touch.

MS. WILLITTS: Okay. I don't know my position yet, so I'll, I'll be in touch with that.

THE COURT: All right. So I'm going to suggest we put the matter over maybe about a week or so just to be spoken to in 112 Court, that way that we don't have to worry about the [indiscernible] as far as putting it in front of justice of the peace in the said day court.

And I'm going to request of both of you, that if you have any materials or caselaw that you want to rely on, that you provide those to my assistant at least seven days in advance. So again, both materials and caselaw. As far as caselaw — I think we went through this and I'm sure you'll both remember, that I want your cases to be either side barred or highlighted. You don't have to side bar your materials, but just the cases. And if you could send them to my assistant, and I'll give you her email whenever you're ready.

MS. PENMAN: Okay. Sure.

THE COURT: It's [name and address removed]. So what day would you like to have the matter come back to be spoken to?

MS. WILLITTS: So if we just do it a week from today, that brings us to February 23rd.

THE COURT: Is that date agreeable to you, Ms. Penman?

MS. PENMAN: That's fine, Your Honour.

THE COURT: All right. So I'll put the matter over to February 23rd to be spoken into in 112 Court at 10:00 a.m. I am presiding that day. I know the court has a habit of bringing these things into my court. That may be fine, as matters may be playing out for that day. I'm doing a federal case that day, but I think, I think, Ms. Willitts, I may have a provincial Crown coming in to speak to a matter.

So if it ends up that you want to speak to it in front of me, that's fine, but if you leave it in 112, that's fine too.

MS. WILLITTS: Okay.

THE COURT: In the meantime, you'll...

MS. WILLITTS: This will be by....

THE COURT: ...you'll get the date. Sorry?

MS. WILLITTS: This will be by Zoom, Your Honour? THE COURT: Yes. Absolutely.

MS. WILLITTS: Okay.

THE COURT: All right. Thank you very much.

MS. WILLITTS: Thank you very much, Your Honour.

THE COURT: I'm going to stay with the clerk and the court reporter just to finish off the paperwork.

MS. WILLITTS: Okay. Thank you.

MS. PENMAN: Okay. Thank you.

THE COURT: Thanks.

...WHEREUPON THIS MATTER IS ADJOURNED

FORM 3

ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))

Evidence Act

I, Christin Medeiros

(Name of Authorized Person)

certify that this document is a true and accurate transcript of the recording of

R. v. Moka Dawkins

in the

Ontario Court of Justice

(Name of case)

(Name of court)

held at

60 Queen Street West Toronto, ON

(Court address)

taken from Recording

0 4811_128_20230216_134132__6_BROWNBE.dcr

which has been certified in Form 1.

October 30, 2023

(Date)

(Electronic signature of authorized person)

6634361739

(Authorized court transcriptionist’s identification number – if applicable)

Ontario

, Canada.

(Province of signing)