Ontario Court of Justice

DATE: October 4, 2023 Information No.: 4810 998 23 48102183-00

HIS MAJESTY THE KING

v.

KADAH DEMATAS

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE B. BROWN on October 4, 2023, at TORONTO, Ontario

APPEARANCES: P. Larmondin, Counsel for the Crown T. Bryant/J. Schiller, Agent for/Counsel for Kadah Dematas

WEDNESDAY, OCTOBER 4, 2023

BROWN, J. (Orally):

This is the Judgment for Mr. Kadah Dematas, and it is in relation to the Information ending in 2183.

Mr. Kadah Dematas is charged with four counts for offences alleged to have been committed on June 29th, 2021.

Members of the Guns and Gangs Task Force obtained a Criminal Code search warrant in relation to a firearm they believed to be possessed by Mr. Dematas. Surveillance prior to the arrest further gave officers reasonable and probable grounds to believe that Mr. Dematas had a firearm in the pocket of his pants. The charges relate to the arrest of Mr. Dematas by two police officers, and I will give the court reporter, later, the spelling of the names, Guberan Subramaniam and Christopher Miller, during which time it is alleged that Mr. Dematas struck Guberan Subramaniam in the head with a bottle and Christopher Miller was assaulted through the struggle, resulting in bodily harm to both officers. At the time of arrest, Mr. Dematas was in possession of a firearm in his pocket, which was later determined to be loaded.

The Crown proceeded by indictment on the charges, and the trial was commenced in this court on June 5th, 2023. The trial took place over the course of three days. There were no Charter applications. The Crown called four witnesses, the two arresting officers, Detective Constable Guberan Subramaniam and Detective Constable Christopher Miller, their road boss, Detective Constable Sean McKeown and Officer Akira Danson, who seized the CCTV surveillance video from the scene. Photographs were taken of injuries to both complainants and put in evidence.

The defence called Mr. Kadah Dematas as a witness.

The Crown also tendered video evidence from a surveillance camera in the area of the arrest.

A large amount of the evidence was uncontradicted. The defence did not challenge the evidence of the officers. The defence agreed that the officers were acting properly, and did not do anything that was incorrect.

Essentially, the defence submits that the Crown has failed to prove beyond a reasonable doubt that Mr. Dematas knew that the two complainants were police officers, and was of the view that they were two unknown people. Accordingly, as it relates to the assault on Officer Subramaniam, the defence has agreed that the actus reus for the assault with a weapon on Officer Subramaniam has been proven. The defence has argued, as indicated, that Mr. Dematas did not know that Officer Subramaniam was, in fact, a police officer.

The second issue argued by the defence in relation to the charges relating to the assault on Officer Subramaniam is whether the action of hitting him with a bottle was a reflex action which would negate the underlying offence of assault.

The third issue the defence argues in the alternative, is that Mr. Dematas was acting in self-defence when he struck Officer Subramaniam.

In relation to the assault allegation on Officer Miller, the Crown does not seek a conviction on the assault with a weapon count. The Crown does seek a conviction, however, with respect to the allegation of assault cause bodily harm in relation to Officer Miller. The defence submits that given that there is no identified action by Mr. Dematas that caused the injury, (sprained thumb) nor the cuts to his head, there is no assault made out. Further, the defence submits that the knee injury was not shown to be caused by an application of force as an assault by Mr. Dematas, as distinct from slipping on the beer on the floor from the bottle. The defence also submits that Mr. Dematas was acting reflexively towards Officer Miller, in addition to Subramaniam, as indicated, or in the alternative, was acting in self-defence. The defence submits that the fight had been going on for quite some time before Mr. Dematas realized that the two men were police officers, and during that timeframe, it has not been shown that the injury were caused.

Uncontradicted Evidence

There is no issue that the two complainants were in the employ of the Toronto Police Service and were acting in the lawful execution of their duties in arresting Mr. Dematas. There is no issue with respect to the arrest without a warrant of Mr. Dematas in the circumstances in this case.

Officer Subramaniam and Officer Miller gave their testimony pursuant to an order excluding witnesses. A lot of their testimony was confirmed by the video surveillance and still photographs in evidence. Essentially, the defence does not challenge the credibility nor the reliability of their evidence.

There is no issue that Detective Constable Subramaniam suffered bodily harm and was struck by a bottle, being the actus reus for the offences of assault cause bodily harm and assault with a weapon of him, as a police officer in this case. The issue as dealt with below, relates to the mens rea for those offences, essentially, whether Mr. Dematas knew at the time that Detective Constable Subramaniam was a police officer.

The second issue relates to the offences of assault cause bodily harm of Detective Constable Miller, and whether his injuries were caused by an assault by Mr. Dematas, and whether the injuries constituted bodily harm. In a related vein, there is the concurrent issue with respect to whether Mr. Dematas realized Officer Miller was a police officer at the time of the events. Issues of reflex action and self-defence are also considered by the court below, in the reasons.

The investigation in this case began after the police were in receipt of information from a confidential informant that Mr. Dematas was in possession of a firearm.

Surveillance was conducted on June 28th, 2021 by Detective Constable Miller after 10 p.m. in the area of 550 Scarborough Golf Club Road. At that time, he observed a black male with clothing he described, enter the front lobby of the building. He compared this male to a photo he had of Mr. Dematas, and as a result, identified the male he observed as Mr. Dematas.

The following day Detective Constable Danson attended the same location to view CCTV surveillance footage. The date and time of the CCTV footage was confirmed to be accurate. The video showed Mr. Dematas enter the elevator and then go to the fifth floor. He approached the door to Unit 516, knocked on the door, and was let into the unit at approximately 10:19 p.m.

Detective Constable Miller indicated that it appeared that Mr. Dematas had a heavy object in his right shorts pocket that he believed to be a firearm, based upon the way the heavy object swung back and forth when Mr. Dematas walked, and based upon the information from the confidential informant, and as well, the officer's experience in investigating firearm offences and reviewing hundreds of CCTV videos.

He left the unit later, that is, Mr. Dematas did, at 11:36 p.m. and returned to the unit again at 11:39 p.m. Mr. Dematas remained in the unit and was still there at 9:35 a.m. on June 29th, 2021 when the officer was on scene. Video from the CCTV from the building, at 11:38 a.m. on June 29th, 2021, showed Mr. Dematas exit the unit with a white T-shirt, white track pants with what appeared to be a firearm in the front pants pocket and with the same white running shoes he was seen wearing the night before. The shape of a gun is apparent in the pocket, of this videotape.

It was the view of DC Miller that independent of a search warrant, he had reasonable and probable grounds for the arrest of Mr. Dematas for unlawful possession of a firearm.

Police officers applied for a search warrant. A briefing was conducted with the Guns and Gangs Unit on June 29th, 2021 at 3 p.m. Officers were provided photographs of Mr. Dematas and information that a confidential informant had indicated that he was in possession of a firearm.

A search warrant for the unit was being obtained and the plan was to conduct surveillance, execute a search warrant at the residence and arrest Mr. Dematas. There was a concern that there were potentially two older females in the unit, so the plan was to arrest Mr. Dematas away from that unit and away from the public, if possible, due to safety concerns.

By 5:16 p.m. on June 29th, 2021, both Officers Subramaniam and Miller were in the superintendent office of 550 Scarborough Golf Club Road, awaiting Mr. Dematas' return home. The search warrant was granted at 5:55 p.m. Officers learned at 7:35 p.m. that Mr. Dematas was standing outside of Happy Barney's Bar at 3855 Lawrence Avenue East, with a large group of people.

At 11:44 p.m. Officers Subramaniam and Miller were advised that a BMW had entered the rear parking lot for the building, where they were waiting for the arrival of Mr. Dematas at 550 Scarborough Golf Club Road. The original plan had been expecting Mr. Dematas to enter through the front door, to approach him after entry and make the arrest in the lobby area. Other officers on the team were around the building at various strategic locations.

However, plans quickly changed when Mr. Dematas entered the building by the rear door and approached the elevator from that direction. At that point, Officers Subramaniam and Miller were still in the superintendent's office for the building. The other members of the team did not have a fob, a key or any means to get through the second set of doors for the front entrance of the building to get to where Officer Subramaniam and Miller were located.

If one were to enter the front of the building, there was a door to a vestibule, then one needed buzzer access to get through the second set of doors. Through that second set of doors one would see the superintendent's office where the two officers had been viewing surveillance video and beyond that office and continuing forward, one would approach the relevant set of elevators.

A decision was made for Detective Constable Subramaniam to not wear a police vest, to wear plain clothes to not attract attention from other people in the area outside the building when he attended the site. He was concerned that Mr. Dematas might get a warning if Detective Constable Subramaniam was seen wearing a bulky police vest. Detective Constable Subramaniam wore a grey T-shirt and black pants. He did not bring his police vest into the building area where they planned to arrest Mr. Dematas. As between the two officers they discussed the plan for the arrest. They agreed that if they made the "Police – Don't move" commands and Detective Constable Miller wore the police vest, that would be sufficient and they could quickly detain Mr. Dematas in the area.

Detective Constable Miller was wearing a police vest with big letters stating "Police" over a T-shirt, together with blue jeans and a baseball cap. The plan was for the first officer, Detective Constable Subramaniam, who was to approach Mr. Dematas to have both hands free in order to approach Mr. Dematas and contain him.

The second officer, Detective Constable Miller who was wearing the police vest followed immediately behind and had his firearm drawn and held in his right hand. The concern was that given that it seemed that Mr. Dematas had a firearm with him, they wanted one officer to have a firearm available to use quickly, should the need arise. Detective Constable Subramaniam had a firearm, but it was in a holster at the front of his pants and not visible.

The plan was to arrest Mr. Dematas before he got in the elevator and went upstairs to the unit.

I need to take a recess for my court staff because they have been here since ten o'clock. So I am going to suggest that we take a recess for 15 minutes, and then I'll continue. I don't know, Officer, if you want to take him downstairs or if you want to leave him in the room there, or if he needs to use the facilities.

OFFICER: I think he can go to the holding cell.

THE COURT: Okay. All right. That way you don't have to go up and down the elevator.

OFFICER: Well, we have to go to the holding cell downstairs, Your Honour.

THE COURT: The holding cell? Yes. On this floor, you mean.

OFFICER: Yes.

THE COURT: Yes. That's what we'll do. All right. So we'll be back in 15 minutes. You don't need to call me, Madam Clerk. I'll just come back, okay. If his family wants to join by Zoom, they can. I did have the Zoom up and running earlier.

T. BRYANT: Thank you, Your Honour.

THE COURT: Okay.

R E C E S S

U P O N R E S U M I N G:

T. BRYANT: You will please, Your Honour, you will note that Ms. Schiller was able to join us. I reached her over the recess to let her know that you were in the midst of delivering your decision.

THE COURT: All right. Did you want to stay or did you want to....

T. BRYANT: Oh yes, no, I'll stay.

THE COURT: Okay. All right. Welcome, Ms. Schiller.

J. SCHILLER: Good afternoon, Your Honour. Apologies that I couldn't be there in person today.

THE COURT: No, that's fine. And did anyone else want to sign on Zoom? Should I wait for anybody or....

T. BRYANT: No. I haven't received any communication from any other parties that we had hoped to hear from.

THE COURT: Okay. No problem. So I am continuing with my Reasons for Judgment.

Evidence as to the Allegations

Evidence of Detective Constable Subramaniam:

At 11:45:(08 to 10 seconds), Detective Constable Subramaniam left the superintendent office with Detective Constable Miller following behind wearing a police vest which stated "Police" in large letters. At that time, Mr. Dematas was facing the elevators. As was later determined, Mr. Dematas was holding a cell phone, face mask and beer bottle.

As Detective Constable Subramaniam entered the area, he had his hands down at his sides. Mr. Dematas quickly turned to face him at 11:45 and 10 seconds. Detective Constable Subramaniam yelled, "Police – Don't move." There was a slight inconsistency in cross-examination when Detective Constable Subramaniam testified that he yelled, "Police – Don't move" before Mr. Dematas turned around. Then he said he might not have finished saying all three words, when Mr. Dematas hit him in the head.

However, Detective Constable Subramaniam maintained that Mr. Dematas would have heard the first part, the word "Police" before he hit Officer Subramaniam. This is an important piece of evidence. Detective Constable Subramaniam described his volume as loud enough to Mr. Dematas to hear, in a commanding tone, that he comply with the demand. The part of the command, yelling the word "Police" was stronger, as it was the beginning, than the other two words, "Don't move," as indicated in the officer's testimony.

In that same second, Officer Miller exited the office wearing his vest with "Police" in big letters on it and his firearm drawn.

Officer Subramaniam described the response of Mr. Dematas as taking a fighting position, which can be seen in the video and photograph evidence. Officer Subramaniam reached for Mr. Dematas' arm. In the officer's evidence, it appeared that when Mr. Dematas took the fighting stance, he was getting ready and prepared to fight them.

Mr. Dematas testified he yelled, "No" or "Get off" or "Get away from me." Officer Subramaniam testified that almost immediately after he yelled "Police – Don't move," Mr. Dematas struck him in the head hard, swinging with something that he did not know was in Mr. Dematas' hand.

Mr. Dematas raised his right arm back, in, what appeared on the video, an overhand motion and struck Officer Subramaniam with the glass bottle in the head. He hit Officer Subramaniam so hard that the officer's body folded a little bit.

It connected with his forehead and Officer Subramaniam was a little dazed and confused, seeing stars. He described that he came back into it half and half, but had what he described as "baby deer legs." He slipped on the floor. He did not know if he was slipping on liquid on the floor or if it was just his legs. He felt pain in his forehead and he touched his head. He blacked out for a time but he was not unconscious. Officer Subramaniam indicated that luckily he was hit in the hard part of his head.

While this was happening, the other members of the Guns and Gangs team, who were there to assist in the arrest, were unable to gain entry to the interior of the building where the struggle was taking place.

Officer Subramaniam saw Officer Miller struggling with Mr. Dematas in the corner front area of the lobby. Officer Subramaniam tried to engage, but his arms felt rubbery. Officer Miller was trying to control the arms of Mr. Dematas and get hold of him. Officer Subramaniam described himself as "still not fully there." At one point, he saw Mr. Dematas hold Officer Miller in a headlock, which can restrict breathing. He felt that Mr. Dematas was doing what he could to disable the officers. It was getting out of control.

He felt that Mr. Dematas had a firearm in his pocket. He had already caused an injury to the head of Officer Subramaniam. Usually that would make a person unconscious. Mr. Dematas was getting the best of the two officers.

Officer Subramaniam described his situation as dazed and seeing stars, having a concussion, holding on for dear life for the opportunity to stop Mr. Dematas from hurting them. Officer Subramaniam testified that throughout, he continued to make commands, more aggressive as time went on, yelling, "Police. Don't move. Stop resisting," and using curse words like, "Don't fucking move. Stop fucking fighting with us," being as aggressive as he could in his commands. He felt he had to use those words to match Mr. Dematas' aggression. Officer Miller was also yelling, but Officer Subramaniam does not know what he was yelling.

At some point, DC Subramaniam saw that a gun had fallen on the floor. At one point Officer Miller had a dominant position on top of Mr. Dematas. After that Mr. Dematas flipped Officer Miller over onto his back. In his mind, Officer Subramaniam thought Mr. Dematas was trying to kill them. He worried that Mr. Dematas would get the best of them and they could get really hurt or die.

Then Officer Subramaniam got to his back and put Mr. Dematas in a chokehold and put his leg around his waist, and with as much pressure as he could to get Mr. Dematas to stop fighting. Then Officer Miller got his head out of Mr. Dematas' arms. Mr. Dematas did not stop moving, however. They still did not have control of him. Officer Subramaniam could not see what Officer Miller was doing, but at some point Mr. Dematas finally started to calm down a bit, although he was still tensed up.

Finally, DC Subramaniam straddled Mr. Dematas' back and put him a chokehold, and then they fell. He ended up on top of Mr. Dematas. Mr. Dematas was still trying to fight the officers. He was grabbing at Officer Subramaniam's arms. Officer Subramaniam was trying to use all the force he had, but he did not have a lot of force because he had been hit in the head.

Evidence of Detective Constable Miller:

Detective Constable Miller testified as he approached Mr. Dematas, he screamed "Police – Don't move." He testified that as he and Officer Subramaniam approached Mr. Dematas, Mr. Dematas could definitely see Officer Miller. Officer Miller had a gun in his hand. Mr. Dematas had a gun in his pocket, according to Detective Constable Miller's belief.

After Mr. Dematas struck officer Subramaniam with the bottle, the fight was on between Officer Miller and Mr. Dematas. The video shows right after this, Mr. Dematas struck Officer Miller to the right side of Officer Miller's face. Officer Miller testified that Mr. Dematas was in very good shape. He intended to do a double-leg take-down to tackle him to the ground, however he could not control Mr. Dematas with one hand, given that he had a gun in his other hand. The gun went down on the floor. Officer Miller slipped on the beer. He described the motions in the struggle.

The video shows Mr. Dematas striking Officer Miller. Officer Miller, at one point, tried to prevent Mr. Dematas from getting access to his pant pocket, where the gun was located. Officer Miller struck Mr. Dematas in the head area as a distraction blow to distract him from trying to get the gun in his pocket. He described Mr. Dematas as actively trying to fight both of the officers and blocking the take-downs by Officer Miller, by sprawling, by moving his weight forward onto his chest to block the officer's tackle attempts.

For the duration of the event, Officer Miller was yelling, "Stop resisting" and probably swearing. Officer Miller testified that Mr. Dematas put both of his hands on Officer Miller's shoulders to block him from taking him down to the ground. When they went down on the floor, Mr. Dematas had his right arm around Officer Miller's left ribcage.

From the video, Mr. Dematas put his other hand around the back of the head of Officer Miller, pushing his head down onto the floor, then putting his left hand around Officer Miller's shoulder area. He, at one point, had both of his hands on either side of Officer Miller, while Mr. Dematas was leaning over the back of Officer Miller's head. Then Mr. Dematas' left hand was free and Officer Miller feared he was trying to reach for the handgun of Detective Constable Miller, which had gone down on the floor. Officer Miller and Mr. Dematas were hand-fighting. At one point Mr. Dematas' hand was grabbing at the front of Officer Miller. Mr. Dematas used his legs to twist around Officer Miller's leg.

Officer Miller testified he did not know how the cuts were caused, nor the cause of bleeding to his body. He does not recall being hit by Mr. Dematas. Essentially, by the end of Officer Miller's evidence, he did not testify as to any assaultive behaviour of an intentional nature to his body. However, the court would note that it is very important to review the video to see the actions of Mr. Dematas relating to Officer Miller, and the various assaults by Mr. Dematas to this officer that are evident in the video, even if the officer cannot recall them in his viva voce testimony.

Detective Constable Miller pulled the firearm out of Mr. Dematas' pocket of his pants and said, "Gun." Minutes later Officer Miller left Mr. Dematas in the control of Detective Constable Subramaniam at approximately 11:46. Officer Miller went to go and let the other officers in from the front lobby area to assist.

A video was played following each complainant's narrative of the evidence. Unfortunately, the surveillance video did not have any audio. The video portion of the struggle with Mr. Dematas lasted just under a minute.

The road boss for the complainants, being Detective Constable Sean McKeown, described how he was at the front of the building and unable to enter as he had no fob and no physical means to break through the second front door. He could see the officers in a struggle with Mr. Dematas and he was very concerned about the fact that Mr. Dematas might have a firearm. He violently tried to get through that door. He felt helpless. He was worried as the two officers did not seem to be able to get Mr. Dematas under control. Detective Constable Miller finally let him and other officers through that door. He and other officers relieved Detective Constable Subramaniam and Detective Constable Miller to allow them to get medical assistance. He took photographs of items on the floor at the scene of the struggle. He seized the firearm that had been possessed by Mr. Dematas and proved it safe.

The firearm was a 9-millimetre loaded firearm. It had a magazine in it and one round in the chamber. It was ready to be fired. The officer did not think the safety was on, although he could not be certain.

Detective Constable Subramaniam sustained a concussion, resulting from the blow to his head by Mr. Dematas using a beer bottle, which broke the bottle and caused liquid to fall all over the floor. Detective Constable Subramaniam also had two stitches to his forehead, which later had to be removed. He was required to get rest, stay away from the television, and stay in a room with low lights for 48 hours. He had to have someone check him when sleeping. He had headaches for a few days. It took a while for the laceration on his forehead to heal, longer than a week.

Detective Constable Subramaniam had other injuries, including bruising around his arms and inflammation to his knee. All of his right side, his rib cage area, right arm, bicep and forearm on his right side were scratched and bruised. He could not do any physical activity for seven days.

In cross-examination Officer Subramaniam was asked about a scenario of someone on the street being violent and approaching a person. He testified that there would not be commands, it would just be a sneak attack. You would not be approached in the way in which Detective Constable Subramaniam approached Mr. Dematas. The court took that to also include the words and commands spoken.

Detective Constable Miller sustained a cut to the right side of his forehead just below the hairline, as shown in the photograph in evidence. There were no stitches. The doctor cleaned it up with gauze and alcohol. However, it took a couple of weeks for that cut to heal. He had a headache for a few days. His thumb on his right hand was sprained, and was sore all day long for a week, and it took maybe a week or two for this to heal. He also had a knee injury, but he had a previous knee injury and it seems that both injuries contributed to the need for knee surgery.

Evidence Called by the Defence

Mr. Dematas gave evidence as to his perception of events related to the allegations. He testified that he has been diagnosed with cannabis psychosis and ADHD. There were no reports filed, although the court considers his evidence on this point. He testified that he has spent a lot of his life in custody. He testified, while in custody he has had violent experiences and has been attacked multiple times from behind. He thinks he has PTSD, although he has never been diagnosed with it. He indicated he feels there are targets on his back related to his brother's death.

At the time of the allegations, he indicated he was drunk on Hennessy and a hypnotic-type of wine and high on weed. At the time of the allegations, he indicated that he pushed the elevator door then looked up and heard something behind him. It was a man he described as being quite a bit bigger approaching him in a fast manner. He testified that as the man lunged at him, he reacted with one motion to get him off of him. Then he changed this a bit, saying he wanted to be truthful. He then said he remembered taking a quick step, then realizing it was not going to work. He just "reacted" with a motion of swinging his hand. He had a beer bottle, phone and face mask in his hand.

He testified he did not know the man was a police officer. He indicated he heard something, but he could not hear the words. Mr. Dematas yelled as a reaction. He testified he did not hit the second man, who the court knows to be Detective Miller. Mr. Dematas said he could have yelled, "No. Get off me. Get away from me." He did not remember what he yelled.

Mr. Dematas gave inconsistent information on the key issue which is, at what point he realized that the two men were police officers. In examination in-chief, he testified shortly, as he hit the ground, he remembered "Mr. Subramaniam shouting in my ear, 'Don't move – police.'"

As he was holding onto Mr. Miller, as Mr. Dematas was on the ground and he was trying to get up, he said he saw police on his thing. He testified that he was still reacting in that defence mode. At that point, he said he was not hurting them, more just resisting, just tense.

When asked when he first read the word "Police" on the vest, he testified roughly into the video. "Can you play it back. As I was being taken down to the floor," which the court would note, seems to be around the 20-second point. Mr. Dematas testified "that was the only time I could read his vest." Before playing the video, defence counsel asked when Officer Miller approached him from behind, Officer Subramaniam, "were you able to read his vest then?" And Mr. Dematas said "No." He said he saw a guy quite bigger approaching him fast, lunging and he just reacted. He was not focused on the other guy. Mr. Dematas said he saw another guy after, trying to grab him in the motion of everything.

He testified that when he realized it was police, he indicated he did not continue to assault them. He did say he was in an adrenaline rush and so he was tense at that point. At that point, defence counsel played clips from the video. At 10 seconds, he said he made that step like, "Who is this guy trying, one guy coming up, I did not see at the time. I tried to make a step this way, then I just reacted."

At 11 seconds he testified, "I am reacting by a motion of swinging with hand with beer bottle in it." He testified his eyes were locked in fighting the person in front of him, that was his focus. He did not answer the question as to whether he realized they were police at the time. He testified he heard yelling. He said he did not make out completely what they said, maybe, he did not really hear anything specific, it is all black.

At 13 seconds, Mr. Dematas testified his legs were being grabbed from underneath and he was in beer. He did not know it was police, he indicated. Then he changed his evidence and said, "Yeah, actually, yeah, I would say at that point" he knew it was police. He could also hear, "Stop. Stop resisting. Resisting, something like that."

At 14 seconds, Mr. Dematas testified he is starting to realize his actions, that he is in a fight with two males who were fighting him. He indicated that his focus was not on Subramaniam, and Mr. Dematas realized this guy was saying "Stop resisting," and he was seeing "Police" as Mr. Dematas was holding him and he was trying to lift Mr. Dematas up to his feet.

Mr. Dematas testified he did not attempt to physically assault either officer, he was just resisting, like not going down easily to the floor. He denied trying to hurt the officers. He was asked at what point he dropped the beer bottle in his hand. He said he was in shock, the way everything happened so fast. He let go whatever was in his hand and he was grabbing him.

In cross-examination, he admitted he was carrying a loaded firearm. He testified that was because his brother had been gunned down in gun violence, but that was two years ago. He testified he does not always carry a gun. Although he consumed cannabis that day, it was about half the normal amount he takes per day. He indicated that someone had died 18 days before. That person had been shot near that address and he was paranoid. He testified he only got the gun the day before he got to the bar, and he carried it that day.

He was diagnosed with cannabis psychosis in 2012, and he took medication for it for a certain period. After they gave him another medication for that, he took it, but he wasn't taking any medication in 2021. He testifies it makes you unaware of your surroundings completely. Consuming marijuana and alcohol, he said, would make him energetic. When asked if the cannabis psychosis could have affected him the day of the allegations, he did not really indicate that it had any effect. Then he said he was high, so maybe it had an effect on him. Then he testified it was possible it had an effect on him.

The ADHD could have made him energetic. Then he said it could have effected him that day. It really seemed at that point, that he was trying to give evidence to support his defence of acting the way he did during the allegations.

The court has very carefully considered all of the video evidence before this court, and would note that there is no physical manifestation of impairment or intoxication arising from his evidence of prior consumption of alcohol and drugs in the way in which he was moving or walking. He appeared to have good coordination. While he testified he has cannabis psychosis, his evidence did not suggest that had any impact on the relevant issues in this trial.

The court, as will be noted below, did not find Mr. Dematas' evidence to be credible. The court finds that he was not impaired in terms of his knowledge of what was happening. It might have affected his ability to recall the details of the events, however.

Mr. Dematas denied having any training in fighting, but agreed he is a proficient fighter. He is a good fighter, as he indicated in cross-examination. As the police came out, he testified he was not responding to what the police said, that he could not make out, that he was just "reacting". He agreed they yelled something, but he testified he did not hear what they yelled. He said he did not hear "Police – Don't move." He did not hear a question or a response. He said he just reacted. He did not dispute that the officers said "Police – Don't move." He just said he did not hear that. He heard yelling. He did not disagree that the officer yelled it while facing him.

He saw someone lunge towards him. He said he was not hearing anything at that point. When asked about Officer Subramaniam lunging towards him, and Officer Subramaniam not having anything in his hands, Mr. Dematas added that the person to the left, who was Detective Constable Miller had a gun in his hand. It is thereby evident from the testimony of Mr. Dematas that he was also looking at Officer Miller, who was wearing the vest with "Police" in big letters and full capitals, while holding a gun, as he approached Mr. Dematas. Mr. Dematas admitted seeing Officer Miller.

When asked specifically if he saw the gun, he said he could not recall if he saw a gun. His earlier evidence was that as Officer Miller approached, he had a gun in his hand. He contradicted himself as to whether he initially saw the gun that was being held by Officer Miller.

The court would note, in considering his evidence, that it is extremely important that if Mr. Dematas saw a person with a gun, as that would indicate that Mr. Dematas is in danger. The court would also note that if he saw Officer Miller holding the gun, this was not far from the words "Police" on his vest, which Mr. Dematas did not seem to want to admit he had seen at the outset.

When asked a second time in cross-examination about Officer Subramaniam having nothing in his hands, he seemed to agree, but he indicated that this man was trying to harm him. He said that the neighborhood is predominantly brown, and the court would note that Detective Constable Subramaniam is brown in colour. He said he did not know who this guy was.

He was asked about a reason for people pursuing him for his brother being killed in Thunder Bay. He testified that "People would be trying to harm me for whatever reason." During that day, he said this caused him to carry a gun, or someone dying 18 days earlier outside of his mom's house. He was not involved in that event. There was no particular reason anyone would want to hurt him, although that is a possibility, he indicated.

He was asked a third time about Officer Subramaniam approaching him with nothing in his hands, and again he resisted answering the question. He did not seem to want to admit that Officer Subramaniam had no weapon. He said everything is a reaction. He kept using the word "reaction." He did not want to use the word "response." He only wanted to use the word "reaction."

He was asking about going into a fighting stance, even before Officer Subramaniam lunged, and then Mr. Dematas said he made a step forward then realized that there was no step, so as a reaction, he would go into a fight. It is a reaction at that point. He resisted admitting that Officer Subramaniam's arms were down to his side before Mr. Dematas went into a fighting stance. Mr. Dematas said it was not a fighting stance, because he was not looking at Officer Subramaniam "square."

Mr. Dematas resisted agreeing that he was getting ready to wind up to strike the officer, although he said his action was a reaction. He resisted agreeing with what was shown on the video, that his right arm was pulled back, getting the windup and pulling back to swing at the officer. He disagreed that he was winding up, a motion that is quite clearly depicted in the video. At that point, Officer Subramaniam's right arm was at his side and his left arm was beginning to be raised at that point.

Finally, Mr. Dematas agreed that at 11 seconds into the video, he was in a fighting stance. He said he was getting ready to defend himself, and he did not agree he was getting ready to fight.

When asked if he saw Detective Constable Miller behind Detective Constable Subramaniam, and he said "That is not a smart thing to do in a fight." When he was confronted about seeing "Police" on Detective Constable Miller's vest, rather than agree, he said that people can pretend to be police for whatever reason, and he is not saying he read that, but if it was an option, he was not focusing on Detective Constable Miller, when Officer Subramaniam "jumped" on him.

In cross-examination, it was suggested that Mr. Dematas hit Officer Subramaniam with a bottle before Officer Subramaniam even touched him. He resisted and failed to agree with what is clearly shown on the video. He said he saw someone lunging towards him and he swung his hands. Then it was noted that the beer bottle made contact with Officer Subramaniam's head and after that, Officer Subramaniam touched Mr. Dematas, a very clear sequence in the video where Mr. Dematas would not agree with what was shown. He said it was a reaction. He had started to swing at Officer Subramaniam before Office Subramaniam raised his hands, yet he disagreed.

Mr. Dematas said he saw Officer Miller's vest when Officer Miller was going towards Mr. Dematas' feet, and Mr. Dematas was hearing "Stop resisting." That is what he heard. He said what happened as he was on the verge of taking him down, between the time he slipped and his body weight dropped to the floor, as Officer Subramaniam was putting Mr. Dematas in a headlock.

He was asked if they told him to stop fighting, and he did not agree. He said it was when Mr. Dematas was on the wall that he realized this was the police, but then he was not harming them at that point, he was just tensed up and in adrenalin.

It was suggested that at this time, 11 seconds, he heard police, he saw the police vest, but he fought them because he was trying to get away from them. He responded that he did not see the police vest because Officer Miller came after Officer Subramaniam. He said he felt threatened. He just reacted, one motion, striking Subramaniam. He denied that he was trying to get away from them, because he realized he had a firearm in his pocket. He said he fought Officer Subramaniam because he was bigger. He was lunging at Mr. Dematas, and he was unaware of what was going on. He just reacted.

The video was played and then stopped at 12 seconds, and it was suggested he was not fighting Officer Subramanian, but he was fighting Officer Miller. Mr. Dematas responded that Miller was trying to grab him, so he was not punching him on the face, but he was holding onto them, wrestling them or grabbing them. If he was physically fighting, he said he would have punched him in the face. Detective Constable Miller could have been yelling, he said, but Mr. Dematas said he could not tell what he was saying.

The video was played to 13 seconds, and at this point Mr. Dematas contradicted himself again, by saying he did not know that Officer was a police officer at this point. Note in examination in-chief he indicated his realization as to that fact was earlier in the sequence. Mr. Dematas was in fear. He indicated he has PTSD and he was reacting. He could be shouting. He was confronted about the fact he had said at 13 seconds he knew they were the police, and he denied that. As the officer tried to grab Mr. Dematas' feet, Mr. Dematas realized he was saying, "Stop resisting." At that point, Mr. Dematas had not grabbed him at the neck yet. He realized they were police and Subramaniam came after and put a chokehold on Mr. Dematas and said, "Stop - Police." He indicated that's when he realized they were the police.

At this point, Mr. Dematas' arms go around Officer Miller's neck later, and he was looking down on Miller. The word "Police" on his vest was very much in the open and he was looking down at the word "Police." He would not admit that in cross-examination, saying you do not have time to read when you are in a fight. When the Crown asked if he could read, he said he had IEP and he was in a special class when he was in school, then he finally admitted he knows how to read. Then he said he did not know it said "Police" at that time.

At 14 seconds, Mr. Dematas is directly on top of Detective Miller, directly over top "Police" touching the "Police" word on the vest. He was asked, "You know he is a police officer," and he said when he realized was when he put his arm around Miller, he realized then that he was police, and he stopped what he was doing. He did not admit that he continued to wrestle with the officer, as was shown on the video. He was asked why he didn't stop, knowing they were police, and he did not have a good answer. He said he needs approximately 15 minutes to cool and have time to think. He said it was only 2 milliseconds for him to stop wrestling the police. He admitted he was trying to get his balance. He did not stop what he was doing with the officers. He admitted that finally in cross-examination, even at the point he realized they were the police.

The video was played further, stopping at 20 seconds, and the Crown suggested everyone was down on the floor. Mr. Dematas was still wrestling the officers and he said, yes, he is still grabbing onto someone. She asked, "You have not stopped your behaviour. You were still fighting," and he would not agree that he was fighting. He said he could have punched or done other things in that motion, but he did not. He was still registering what was going on. It is all so fast. He understood but did not understand. He was still holding onto them but not swinging.

Mr. Dematas added that there was a gun two feet away. If he was trying to get away from the police, he could have reached for the gun, or he could have reached towards his firearm. He denied that he reached towards his firearm. Officer Miller said he had reached towards the firearm and Mr. Dematas said if his hands reached for his lower half, he did not reach, as in going into his pocket to get the firearm to use in this violent offence. Mr. Dematas agreed his arms were everywhere, but not going towards his pocket.

When asked about realizing at this point in time, that they were police officers, Mr. Dematas stated he was just in the motion of someone choking him from behind, and he said Officer Miller was reaching in towards Mr. Dematas' right hand to gain control. He was asked then if he understood at that point that they were police officers, and he said "They could be police officers, but at that point it is still not registering." He is there but not there.

He was confronted again about saying in examination in-chief at 13 seconds his legs were being grabbed from under him. There was beer at his feet. He heard "Stop resisting." He knew they were police officers, and now saying he did not know they were police officers. His change in version was not credible. He clearly did not want to admit at the point when he said earlier, he knew they were police officers, that he did not know that, that somehow it had not registered for him, that they were police officers.

He heard, "Stop resisting." He would not have understood they were police officers he said, until there were handcuffs coming on him, that they were not trying to kill or harm him. He said that is the truth of the situation.

He denied he said in examination in-chief that at the video at 13 seconds, he knew they were police officers. The logic was that he did not really know 100 per cent it was a police officer until he heard the handcuffs come on. The court would note that he was not inclined to admit his knowledge that they were police officers despite having earlier given that evidence.

The video was then continued and stopped at 24 seconds, where the Crown put to Mr. Dematas that the fight was still continuing with Officer Miller and he responded that fighting is not the right word. It is wrestling with whomever is grabbing him. He agreed he was wrestling with Officer Miller.

The Crown suggested Officer Subramaniam was trying to gain control and Mr. Dematas agreed with that. She suggested Mr. Dematas was grabbing onto Officer Miller, but that Miller was grabbing onto Mr. Dematas, and he agreed. It was suggested that he got hold of Officer Miller's vest, and he agreed somewhat reluctantly, after saying he was just grabbing Officer Miller. Officer Miller said, "Stop resisting. Stop fighting." And Mr. Dematas said the only thing he heard was when he was at his feet, he heard, "Stop," but he could not make out the rest of it. He said both of them were shouting. It was very loud.

The Crown suggested it was clear that Officer Miller wanted the fight to end and Mr. Dematas responded that he did not know what was going on. It was a reaction from the moment he swung his hand, and if you had adrenalin in your system in a fight, it takes a little bit for it to snap in. Mr. Dematas was yelling and still enraged at that time.

Throughout his testimony Mr. Dematas repeatedly said many, many times, "To be honest with you" or "Truthfully," et cetera before giving his answers to questions.

Law and Analysis

Mr. Dematas is presumed to be innocent. The Crown must prove his 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 there is exculpatory evidence 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 set out by the Supreme Court of Canada in R. v. W.(D.), 1991 SCC 93, 1991 63 CCC (3d) 397 and other appellate cases dealing with credibility and the consideration of evidence.

It is important for the court to assess credibility and reliability of the evidence of witnesses in this trial. By and large, the defence did not challenge the credibility or reliability of the evidence of Officers Subramaniam and Miller. The court would note that their evidence was largely consistent with the surveillance video of the lobby where the incident took place.

The defence generally accepts their evidence as given, regarding the sequence of events.

The court found the evidence of Officer Subramaniam to be largely consistent and not challenged to any significant extent on any material points. The point in issue, as it relates to his evidence, is one which he admitted in cross-examination. It relates to how much of Officer Subramaniam yelling the words, "Police – Don't move," were spoken before Mr. Dematas struck him on the head with the beer bottle.

The court would find that, based on the very short period of time he had to say those words, as confirmed by the video, prior to being struck by the bottle, that there is a possibility that Mr. Dematas might not have heard "Move" or might not have heard "Don't move." However, the court finds that Officer Subramaniam did yell loudly "Police," and possibly also "Don't" before he was struck with the bottle.

The court would note that Detective Constable Subramaniam's evidence made sense insofar as his perception at various points in the struggle reflecting this focus and his attention. He was focused on Mr. Dematas, and he was not able to see all that Officer Miller was doing. He did not know if Officer Miller was struck with anything. The court accepts the testimony of Officer Subramaniam.

The court found the evidence of Officer Miller to be also credible and reliable. His evidence was largely consistent on the material points with Officer Subramaniam, each of whom testified pursuant to an order excluding witnesses. He had a slightly different vantage point than Officer Subramaniam, and he also had a focus on Mr. Dematas. He knew that he struck Mr. Dematas in a distraction blow, an event not seen by Officer Subramaniam.

He did not testify as to being struck with any weapon. He did not appear to exaggerate matters. His evidence was largely consistent with what is shown on the video and the evidence of Officer Subramaniam. By and large, the court accepts his testimony as credible and reliable. It is notable that he was very candid in his testimony as to not recalling specific instances of being assaulted by Mr. Dematas when, in fact, the video shows that did happen.

The court found the video to be extremely helpful in making the findings of fact in this trial.

The court goes on to consider the evidence of Mr. Dematas. It is critically important in the analysis of mens rea, in terms of knowledge with respect to the two complainants being police officers, reflex action and self-defence.

The court begins by considering the evidence of Mr. Dematas. Mr. Dematas contradicted himself on key pieces of evidence, most importantly, the stage at which he realized that the two complainants were police officers. In examination in-chief, he initially said he realized that when Mr. Dematas was on the ground trying to get up. That took place at 19 to 20 seconds into the video. When defence counsel played the video in examination in-chief, Mr. Dematas testified in relation to 13 seconds in the video, he did not know the complainants were the police.

Then he changed his evidence and said, "Yeah, actually, yeah, I would say at that point" he knew it was police. He heard "Stop. Stop resisting, something like that." Later in examination in-chief, when the video played to 14 seconds, he said that "This guy was saying 'Stop resisting' and he saw 'Police'" as Mr. Dematas was holding him and trying to lift Mr. Dematas up onto his feet. It would seem to this court that he was making reference to the portion of the struggle he had with Officer Miller.

It is to be noted that this is relatively early on in the struggle, which continued for some considerable time after that. Then later in his evidence in cross-examination, when the Crown confronted Mr. Dematas with his examination in-chief, that at 13 seconds he realized the men were police, he resiled from that. He denied he had said that, which was clearly his evidence.

The Crown asked him about 14 seconds into the video, when Mr. Dematas was directly on top of Officer Miller, touching the word "Police" on his vest, and asking him if he could read that word. At that point, he appeared to deny that he knows how to read, although he later admitted he can read.

Mr. Dematas testified that he realized they were police when Officer Subramaniam put a chokehold on him and said, "Stop – Police." That was at 25 to 30 seconds into the video. At another point in cross-examination, he again changed his evidence as to when he realized they were the police. He testified he did not realize this until the handcuffs were placed on him, which was quite a bit later.

The gun, at that point, had been taken from his pocket by Detective Constable Miller, who left the area and let the other officers in through the front door. Another officer put the handcuffs on Mr. Dematas at approximately 1:14 of the video.

Regardless of whatever version one looks at and the evidence of Mr. Dematas as to when he realized the complainants were police, he had no believable explanation for why he did not stop struggling with them. He denied fighting, saying fighting is when you strike someone. He denied that continuing to wrestle is fighting. He also testified that it would take him about 15 minutes to cool down and have time to think, as far as realizing they were police, and that he should stop struggling. Again, that is not believable. He finally acknowledged that he did not stop struggling with the police after realizing they were police.

At different points in time, Mr. Dematas admitted that he heard, "Stop" or "Stop resisting." That varied from time to time, as to when he acknowledged hearing the words, as distinct from just yelling. He was very reluctant to admit matters which were factual, if they appeared to portray a version inconsistent with his version of not knowing the complainants were the police, of acting as a reflex action or acting in self-defence.

For instance, he was reluctant to agree with what is clearly shown on the video, that Detective Constable Subramaniam was approaching him with his hands at his side when Mr. Dematas already raised his right arm and got into a fighting stance. He was reluctant to admit that Officer Subramaniam had nothing in his hands as he approached him. All of this is clearly shown in the video, and in essence, Mr. Dematas was reluctant to admit what is clearly shown on the video and the sequence of events.

He also seemed to explain his fear of Officer Subramaniam, based upon the colour of skin of Officer Subramaniam, saying that there are a lot of brown people in that neighbourhood and he did not know this guy. It seems somewhat nonsensical to suggest that Officer Subramaniam might be violent in that neighbourhood because he was brown, and there is violence in that predominantly brown neighbourhood.

Mr. Dematas would not agree that he took a fighting stance and said it was a stance of getting ready to defend himself, not to fight. This was a split second before he took the action of stepping then raising his right hand then striking down hard with a bottle in his hand on Officer Subramaniam's head. That is what the video showed.

He resisted agreeing that he struck Officer Subramaniam with the bottle before Officer Subramaniam even touched him, again, an event clearly shown on the video.

While he gave the initial impression in cross-examination that he saw Officer Miller holding a gun, which was contrary to his earlier version that he only looked at Officer Subramaniam, he later indicated that he "could not remember" seeing a gun. This court would find it is quite an unbelievable thing for him to say in evidence, when he indicated he was essentially, in fear of violence and reacting to what he was seeing.

Whether he saw or did not see one of the two men holding a gun as they approached him would be, this court would find, an unforgettable event. It was not that he did not see the gun, which could be believable if he was not looking at Officer Miller. He said he could not remember if the man had a gun. This is simply not believable, the court would find. It is clear from the sequence shown in the video, that after Mr. Dematas struck Officer Subramaniam, within a matter of a couple of seconds at most, Officer Subramaniam was away from Mr. Dematas. Mr. Dematas was dealing solely with Detective Constable Miller who was wearing the police vest with the big letters on it. The two of them faced each other. It would have been obvious that he was wearing a police vest.

Officer Subramaniam had stepped away for some time. Also, the gun Officer Miller had been holding had fallen down on the floor as the two grappled with each other. It was not until seconds later that Officer Subramaniam rejoined the struggle.

The court finds that the evidence of Mr. Dematas as so his lack of knowledge of the complainants being police officers is not believable. The court finds that his evidence as noted above to be not worthy of belief. The court finds accepting the evidence of Officer Subramaniam, that he yelled "Police," that Mr. Dematas at least heard that. He also could see in the area of Officer Subramaniam, another male with the big letters "Police" on a vest he was wearing.

The defence put before the court some cases dealing with reflex action and other issues, although they were not referred to in submissions. The court has, nonetheless, considered R. v. Melo, 2018 ONCJ 292. This trial judgment dealt primarily with Charter issues in that case, of which there are none in the case at bar. There is one sentence, which is the only sentence side barred in the case relating to a finding that the accused did not intend to assault the officer and only engaged in a reflex action.

The court has reviewed the extremely short endorsement of the court in R. v. Vlcko, 1972 ONCA 1354. It potentially relates to knowledge that the officer was a peace officer and the context of not being in a mental condition to realize that to be true. The court does not find that Mr. Dematas, in the case at bar, was so impaired as to not realize the two complainants were police officers, given the yelling of the word "Police," the wearing of a police vest, and the drawing of a gun, together with other circumstances collectively, as a context of them endeavouring to arrest him.

The court has also considered R. v. Wieler, 2015 ONCJ 224. Defence counsel highlighted a very brief conclusion from the case, and the court does not find it helpful to the issues in the case at bar.

Court needs to take a recess and we'll finish this after the luncheon break. So we're going to take a break now. You can take him back downstairs so he can have lunch. We'll come back at 2:15.

T. BRYANT: Thank you, Your Honour. Excuse me, I wonder if - if you would be kind enough to inquire of Ms. Schiller as to whether or not she still requires my presences here this morning. I do have commitments this afternoon, but if she does, in fact, need me to remain, I'm – I'm pleased to do so.

THE COURT: Ms. Schiller?

J. SCHILLER: No, I don't need Mr. Bryant to attend. I can attend, Your Honour.

THE COURT: All right. Thank you.

T. BRYANT: Thank you, Your Honour. Have a good day everyone.

THE COURT: All right. So we will resume at 2:15. You can take him out. I am just going to be here with the clerk for a few minutes on something else.

R E C E S S

U P O N R E S U M I N G:

THE COURT: All right. I am going to continue with the Reasons for Judgment.

The court finds that Mr. Dematas was not acting with a reflex action in raising his right hand and arm to strike Detective Constable Subramaniam in a strong downwards motion, hitting the officer in the head. Mr. Dematas initially took a step then thought again and recalculated his response. He chose instead to use the glass bottle in his hand to hit the officer in the head hard and potentially take him out of any struggle. This blow was started prior to Detective Constable Subramaniam touching him. The action of Mr. Dematas striking the officer in the head with a bottle was the first assaultive act and was not a reflex response to a lunging and grabbing by Officer Subramaniam. The court finds that Mr. Dematas' action of striking Detective Constable Subramaniam in the head with a bottle was calculated and intentional.

The court finds that Mr. Dematas knew from first hearing Detective Constable Subramaniam yell "Police," which the court finds Mr. Dematas heard, and seeing Detective Constable Miller with "Police" on his vest, that they were police officers. The court finds that Mr. Dematas did everything he could to get away from the officers after striking Detective Constable Subramaniam.

The court finds that Mr. Dematas assaulted them in the course of the struggle, as shown on the videotape. There is no need for there to be a punch for it to be an assault. One can see Mr. Dematas hit Officer Miller, initially near the door. He was grabbing him, which is an assault. He was using his legs to apply force to the officers. He put Officer Miller's head into a hold. He was grabbing at the officers. He grabbed Officer Miller in the torso area. He was rolling with the officers into different positions on the floor. He was a proficient fighter, engaging in a struggle with one officer he had somewhat disabled by hitting him in the head with a bottle and struggling at length with the second officer, over whom he had the upper hand for a period of time.

The action of striking Officer Subramaniam with a glass bottle in the head was not in self-defence, but rather was the first assaultive action. The court finds that Mr. Dematas knew before striking Officer Subramaniam, that they were police officers. He admits he knew that at 13 seconds into the video, the court would indicate, if not earlier. He continued to fight them, assaulting them by his actions shown on the video for some time after there.

The court goes on to consider the defence submission that Mr. Dematas acted in self-defence. Section 34 of the Criminal Code governs the law of self-defence, and it 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.

Before going on to consider the circumstances for the assessment of reasonableness in subsection (2), the court notes that relevant to this case, the court must consider subsection (3), which provides:

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

In this case, the defence essentially, has argued self-defence in defence of two police officers for whom the defence has admitted were acting lawfully and in the execution of their duty in effecting an arrest of Mr. Dematas.

In this case, the court would consider Mr. Dematas believed on reasonable grounds that the other person is acting unlawfully. In this case, that cannot arise on the evidence and the findings of facts in this case, unless the court finds that Mr. Dematas had reasonable grounds to believe effectively, that the two complainants were acting unlawfully.

In this case, the court has found as a fact that Mr. Dematas, at the time of the allegations, was aware that the two complainants were police officers. The defence did not really argue this point in submissions. The court finds that there were no reasonable grounds for Mr. Dematas to believe that the officers were acting unlawfully.

It is to be noted that Mr. Dematas knew he had a loaded firearm in his pant pocket at the time that the officers approached him, and they were putting him under arrest. This court would find that Mr. Dematas did not believe on reasonable grounds, that the two complainants were acting unlawfully. But even if s. 34(3) does not disentitle Mr. Dematas to a consideration of self-defence, the court goes on to consider s. 34(1).

Earlier this year, 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 – and there's three bullet points.

• (1) believed on reasonable grounds force was threatened or being used against him or someone else;
• (2) whether he acted for the purpose of defending himself or the other person; and
• (3) whether the accused's actions were reasonable in the circumstances.

As characterized by the court in Khill at para. 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 given to the trier of fact in relation to the requirement that the court assess the reasonableness of the accused's 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 the 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, para. 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 para. 44 that additional claims of self‑defence will be placed before triers of fact.

However, as noted in para. 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.

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

In this case, the court goes straight to 34(1)(b). This criteria is important in this case. The court asked, did Mr. Dematas do something for the purpose of defending or protecting himself from that use or threat of force? The purpose of the accused doing the act is relevant. It is a subjective inquiry. If there is no defensive or protective purpose, the rationale for the defence fails. See para. 59 of Khill.

Accordingly, if the acts of the accused are done for the purpose of vigilantism, vengeance or some other personal motivation and not for a defensive purpose, self-defence is not available. While the situation may evolve from a different purpose such as defense of property, it can transition into a situation of self-defence.

In this case, the court has found as a fact, that Mr. Dematas struck Detective Constable Subramaniam with a glass bottle hard to the head before Detective Constable Subramaniam even touched him. Officer Subramaniam had nothing in his hands. He had his hands to his side. Mr. Dematas started the motion to strike him before Detective Constable Subramaniam touched Mr. Dematas.

The court has found as a fact, that Detective Constable Subramaniam yelled "Police" as he approached Mr. Dematas. The court finds as a fact, that Mr. Dematas assaulted this officer first, before the officer who announced "Police" and was in the process of attempting to touch him and arrest him, in the execution of his duty.

The court has also found that Mr. Dematas knew that Officer Subramaniam was a police officer when Officer Subramaniam stated that he was a police before Mr. Dematas did the assault with the bottle, where the defence relies on self-defence. The court finds that, given it is the Crown's obligation to negative self-defence, that the Crown has proven beyond a reasonable doubt that Mr. Dematas assaulted DC Subramaniam as an intentional act of simply wanting to hit him in the head, and to potentially disable him physically.

It was not an act by Mr. Dematas for the purpose of defending or protecting himself. The absence of the requisite purpose of Mr. Dematas acting in self-defence disentitles him from this provision, even if an application under s. 34(3) does not disentitle him from the consideration of this defence.

In the end, the court finds that Mr. Dematas acted intentionally and not by reflex action in striking Detective Constable Subramaniam with a weapon. He had the mens rea for that offence together with the actus reus for that offence. He was not acting in self-defence.

As indicated above, the court finds that he was not acting in a reflex action. The court finds that the Crown has proven beyond a reasonable doubt that Mr. Dematas knew that Detective Constable Subramaniam was a police officer before he struck him in the head with a bottle, that he did so intentionally, and as indicated, not as a reflex action, and that he was not acting in self-defence when he did this. Accordingly, Mr. Dematas is found guilty of assault with a weapon, as it relates to Detective Constable Subramaniam.

There is no doubt that this assault of Officer Subramaniam caused bodily harm to him, including the concussion, abrasion with stitches and related injuries. Mr. Dematas is also found guilty of assault cause bodily harm in relation to Officer Subramaniam.

As it relates to Detective Constable Miller, the court finds that Mr. Dematas acted further to his initial assault on Detective Constable Subramaniam by continuing intentional assaultive behaviour in putting Constable Miller in a hold, grabbing at him, grappling with him, striking him, and causing various injuries to him. He assaulted, as shown on the video, Officer Miller, by striking him in the head. More specifically, in the right side of the face area, as is depicted on the video clip.

The court finds that the assaultive behaviour of Mr. Dematas towards this officer caused the cut to the right side of the officer's forehead, which took a couple of weeks to heal, and headaches which he had for a few days. Similar to his actions towards Officer Subramaniam, the court finds that Mr. Dematas knew that Officer Miller was a police officer. There is no reasonable basis to find that Officer Miller was acting unlawfully.

Mr. Dematas is disentitled from a consideration of self-defence, as the officer was entitled to arrest him. The actions of Mr. Dematas in assaulting Officer Miller during the struggle were not in self-defence. He assaulted Officer Miller and also actively resisted being arrested. Mr. Dematas was not acting by means of reflex action when he assaulted Officer Miller. Accordingly, Mr. Dematas is found guilty of assault causing bodily harm in relation to Officer Miller, causing the injuries noted.

The Crown has put before the court, the cases of R. v. Nurse, 1993 ONCA 14691, 83 CCC (3d) 546. The court reviewed that case but did not find it to be helpful to the issues in this case.

The Crown also referred to R. v. Dixon, 1988 BCCA 2824, 42 CCC (3d) 318. See pp. 8 of 10 and R. v. Moquin, 2010 MBCA 22, particularly at paras. 25-28, which dealt with the meaning of bodily harm. Bruising and abrasions can constitute bodily harm.

In R. v. Kippax, 2011 ONCA 766, the court considered causation and whether the conduct of an accused was a significant contributing cause of the injuries or at least a contributing cause outside the de minimis range. See para. 24.

The Crown's submission is that Mr. Dematas assaulted Officer Miller and his conduct in assaulting the officer was at least a contributing cause outside the de minimis range of the struggle that followed and the injuries that were occasioned in that struggle.

The court agrees that the role of Mr. Dematas putting Officer Miller in a hold, in grabbing him, in striking him, and struggling him constituted assault, which the Crown has proven beyond a reasonable doubt. The court finds that the Crown has proven beyond a reasonable doubt that Mr. Dematas struck Officer Miller in the right side of the face, causing the injuries as noted above. The court finds that this intentional conduct of Mr. Dematas in assaulting the officer was a significant contributing cause of the injuries, or at least a contributing cause outside de minimis range. The court finds that the Crown has proven beyond a reasonable doubt, as indicated, that Mr. Dematas assaulted Officer Miller and caused bodily harm on him, particularly to the head area.

Accordingly, the court finds that the Crown has met the onus of proof beyond a reasonable doubt in relation to the charge of assault cause bodily harm in relation to Officer Miller. The court finds Dematas guilty of that count.

In terms of the assault with a weapon, as it relates to Detective Constable Miller, the court is of the view that this charge is not made out as submitted by the Crown, and Mr. Dematas is found not guilty of that charge.

All right. I am assuming that perhaps counsel want to put this matter over for sentence, or did counsel wish to deal with that today?

J. SCHILLER: No, Your Honour, Mr. Dematas is getting a – a pre-sentence report as well as a more – or a – sorry, I forget what it's called, but he's Indigenous and he's getting a report to that effect, as well. So he's getting those on another matter, but I think we'll use those for the sentencing, as well. So if we could please put it over, perhaps a month. We're still waiting on those reports to come in, and we'll have a better idea at this time – at that time.

THE COURT: All right. What date do you want to have the matter spoken to?

J. SCHILLER: If we could please do November the 8th.

THE COURT: Just a moment. All right. I am going to suggest that it come back in 804 court, which is the case management court at 10 a.m. Do you want your client to appear on Zoom or in person?

J. SCHILLER: Zoom, please.

THE COURT: Mr. Dematas is raising his finger. Do you agree to that, sir?

KADAH DEMATAS: No. No, I was speaking to my initial lawyer that was in charge of my sentencing, that was on my possession of firearm and my possession for the purpose, earlier. I - I was under the impression that I was getting a mental diagnosis from CAMH on this set of – on these set of charges, on what was indicated.

J. SCHILLER: I'm sorry. I'm not catching any of those.

THE COURT: Oh, sorry.

KADAH DEMATAS: That's what I was thinking.

THE COURT: Is there a mic? Hold on a sec. Your lawyer is not able to hear this, so just hold on a minute.

J. SCHILLER: Go ahead.

KADAH DEMATAS: What was – what was relayed to me through Ms. Cydney Israel, Ms. Cydney Israel said that on this set of charges there would be no other – other looking into any reports other than just a mental diagnosis, as I am an adult – mental diagnosis, because I was diagnosed as a youth, not an adult.

THE COURT: Did you hear that, Ms. Schiller?

J. SCHILLER: I only heard part of it. Something about Ms. Israel saying there's no other reports.

THE COURT: He said something about Ms. Israel said to him that she was looking for an adult mental health diagnosis, because it had not been done since he was a child.

J. SCHILLER: Okay, that – that's possible, Your Honour. I'm not familiar enough with the other case to answer that. I think the adjournment request would remain the same, and whatever reports Ms. Israel is – is getting in the other matter we'll – we'll put before Your Honour, as well, for sentencing. Mr. Dematas, can you call the office.

KADAH DEMATAS: I can call....

J. SCHILLER: I'm not there, so we can't chat, but if you call the office, we can chat later, okay.

KADAH DEMATAS: I can call, but I – I just know off of what Ms. Israel said to me. I know that's what her – her guidance would have been in regards to this matter.

J. SCHILLER: Okay. You [indiscernible]the - the adjournment request, so we'll – we'll put it over for the same purpose, okay.

THE COURT: All right. We'll put it over then to November 8th to be spoken to at 10 a.m. in 804 court, and that will be a Zoom court. In other words, a video appearance.

KADAH DEMATAS: And, Your Honour, I have been on a three-day lockdown. Today would have been the third, a weapons search. I was just asking if you could put an indication for me to get back on the most first wagon, like as soon as I can.

THE COURT: Well, they will put you on a wagon as soon as they're ready to take you.

KADAH DEMATAS: Yes.

THE COURT: You won't have to wait, necessarily, until the end. And it's early in the day. There are people here that will be here longer than you, so.

KADAH DEMATAS: I'm just asking if that could be written down in regards to getting back on the first wagon.

THE COURT: I can't do that. I can't do that, sorry. They have to determine who goes on what wagons, depending on where they're going, how many people, what their status is, and I leave that for them. But I don't expect you're going to be here until the end of the day, okay.

P. LARMONDIN: Your Honour, before we started this morning, Madam Clerk advised that there were two Informations before the court.

THE COURT: That's correct.

P. LARMONDIN: The second Information should be coming back on October 12, to this courthouse.

THE COURT: A moment.

P. LARMONDIN: I have Courtroom 804, and I believe that's the check-in that Ms. Schiller was speaking about in relation to the Gladue report and the Morris report, on the other charges, for the 12th.

J. SCHILLER: Gladue, thank you. That's the word I was forgetting. Fortunately, today I'm sick and it's impacting my thoughts.

P. LARMONDIN: My understanding is that's a Zoom appearance, as well, Ms. Schiller.

J. SCHILLER: It should be.

P. LARMONDIN: It's a check-in, yes.

THE COURT: Just a minute. Okay. I know the Federal Crown doesn't have access to DIR. I don't know if defence counsel is looking at it or not. But the one Information that I dealt with which were the four assaults, is the Information ending in 2183, which we've been dealing with at trial.

P. LARMONDIN: Yes.

THE COURT: The other Information before the court is 1820.

P. LARMONDIN: And that will be the firearm and the drugs.

THE COURT: Right. But also the assaults.

P. LARMONDIN: So we were before a different justice in relation to those charges. He pled guilty and then it was requested that we sever those charges, so the new Information is the Information you've been dealing with, Your Honour.

THE COURT: All right. All right. And as the clerk indicated, it's already, I gather, scheduled, or is it not scheduled for October 12th, those other charges?

P. LARMONDIN: My understanding is on the last date, we keep trying to separate them, but they keep travelling together. So I think the dates were confirmed on the last date, and it should be on the Information, but....

THE COURT: Does it indicate it was already....

CLERK REGISTRAR: Yes, the second....

THE COURT: Pardon?

CLERK REGISTRAR: On the second – that second Information, Your Honour?

THE COURT: Yes.

CLERK REGISTRAR: Just looking at the written portion of it. No, that second Information, Your Honour, does not indicate October 12, which I will now endorse it to...

P. LARMONDIN: Thank you.

CLERK REGISTRAR: ...state that.

THE COURT: All right. And it's October 12th for what courtroom?

P. LARMONDIN: 804, Your Honour.

THE COURT: 804. It's not in Gladue court?

P. LARMONDIN: We started out in Gladue court and then we were moved out of Gladue court, so I'm not sure why. But I think this is just for a status check, so maybe that's the reason.

THE COURT: Sorry. That's fine. Then on the second charge it will come back October 12th to be spoken to, 804 court at 10 a.m., and that will be noted, as well, for a video appearance.

P. LARMONDIN: Thank you.

THE COURT: Okay.

P. LARMONDIN: Thank you, Your Honour.

THE COURT: All right. You're free to go.

P. LARMONDIN: Thank you.

THE COURT: You're excused, Ms. Schiller.

J. SCHILLER: Thank you, Your Honour.

THE COURT: You might want to note that there is nothing endorsed on that Information from what I can see. Can you see, Madam Clerk, if it was endorsed for a plea or anything, because I don't see....

CLERK REGISTRAR: For the second Information?

THE COURT: Yes.

CLERK REGISTRAR: One moment, Your Honour.

THE COURT: Oh wait, I'm wrong. It's at the very end. I found it. It's okay, Madam Clerk.

CLERK REGISTRAR: Okay.

THE COURT: Okay. I said I would give you some spellings. Do you want to look through here for some spellings. I don't want to hand over the whole thing for you to keep, because that's my version, Madam Reporter.

CLERK REGISTRAR: Your Honour, just to clarify the second – first matter, [indiscernible] count 3 and 4?

THE COURT: He is found guilty of everything except assault with a weapon – Miller, whichever count that is. I will go back and see.

CLERK REGISTRAR: Okay.

P. LARMONDIN: Yes, Your Honour, I believe that count, the assault with a weapon for Detective Constable Miller, I believe I had withdrawn that count on the first day of the trial. So it should be noted withdrawn.

THE COURT: It might have been partway through, but let me double-check, because what happens with DIR is some of those endorsements are not being made. That's why I double-check the other. Let's look and see, Madam Clerk. Was that endorsed as a withdrawal?

CLERK REGISTRAR: I don't think it was, Your Honour. Just one moment. Let me double-check, a moment.

THE COURT: Proceed by Indictment.

CLERK REGISTRAR: It's just – I just see the plea entered, not guilty, but not – just one moment.

THE COURT: During submissions you indicated you weren't seeking a conviction or a finding of guilt on it. So that wasn't translated into a withdrawal as an endorsement. So it's still a live charge.

P. LARMONDIN: Understood. I was going to say, that would make Madame Clerk's job easier, vis-à-vis the one marked withdrawal, but....

THE COURT: Yes.

P. LARMONDIN: Unfortunately, it wasn't.

THE COURT: Yes. Just a second. I'll double-check again. I forgot what I was doing this for. Oh, it's count 3. Wait a minute, no. It's count 2. Count 2 is not guilty, 1, 3, and 4 are guilty. So you can go.

P. LARMONDIN: Thank you very much, Your Honour.

J. SCHILLER: Thanks.

...WHEREUPON THESE PROCEEDINGS WERE CONCLUDED

FORM 3

Certificate of Transcript

Evidence Act, subsection 5(2)

I, Helena Tsapoitis-Barbesin, certify that this document is a true and accurate transcript of the recording of R. v. Kadah Dematas in the Ontario Court of Justice, held at 10 Armoury Street, Toronto, Ontario, taken from Recording No. 4810_705_20231004_092710__6_BROWNBE.dcr, dated October 4, 2023 which has been certified in Form 1 by Lavern Sutherland.

Date (Authorized Transcriptionist)

Helena Tsapoitis-Barbesin ACT ID# 2372561617 416-889-6054 Helena10@hotmail.com Transcriptsontario.ca

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

*This certification does not apply to the Ruling/Reasons for Judgment/Reasons for Sentence which were judicially edited.