COURT FILE NO.: AP 70/11 and AP 71/11

DATE: 20120301

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Edward Ing and John Cruz

BEFORE: M.A. Code J.

COUNSEL:
Alan D. Gold , for the Appellants
Ian Bulmer , for the Respondent

HEARD: February 16, 2012

ENDORSEMENT

A. OVERVIEW

[ 1 ] The two Appellants, Edward Ing and John Cruz (hereinafter, Ing and Cruz) are both constables with the Toronto Police Service. They were charged jointly with one count of assault causing bodily harm against one Richard Moore (hereinafter, Moore). Moore alleged that the two officers had severely beaten him, while arresting him for public intoxication pursuant to the Liquor License Act , R.S.O. 1990, c. L-19 . The officers testified and agreed that they arrested Moore for public intoxication and that he fell to the ground during the arrest. They denied beating him. Moore unquestionably was injured during the arrest, in particular, there was a laceration to his head that required stitches and there were two broken ribs.

[ 2 ] The Crown proceeded summarily. After a three day trial before Allen J., the two Appellants were both convicted on January 25, 2011. They both received twelve month conditional sentences on June 28, 2011. Their appeals against conviction and sentence were heard in this Court on February 16, 2012. I reserved judgment at the end of oral argument. These are my Reasons for Judgment.

[ 3 ] Because I have decided that there must be a new trial, and because the evidence was conflicting on many points, I intend to give only a very brief and neutral overview of the facts of the case. The complainant Moore was fifty-nine years old and in poor health. He had been prescribed a number of different medications that can produce symptoms of intoxication, similar to drunkenness. He was out for a walk, late at night in the neighbourhood where he lived, when he encountered the two officers who were on bicycle patrol. An altercation occurred which led to the officers pursuing Moore to a rooming house on Gerrard Street. Moore was about to enter these premises, where he resided, when the officers arrested him. He alleged that they kicked him repeatedly, while he was on the ground, over a period of about ten to fifteen minutes. The officers’ account of the arrest was that Moore resisted, there was a struggle, and Moore fell hard to the ground. The officers brought him under control and handcuffed him, on the ground, without ever striking him.

B. THE ADMITTED ERROR MADE AT TRIAL

[ 4 ] The Crown concedes that the learned trial judge made one error in his Reasons for conviction when he misapprehended certain evidence. I agree with the Crown’s concession. The trial judge began this part of his Reasons by holding that the complainant Moore’s evidence was not reliable, unless corroborated. He stated:

Except when Mr. Moore’s evidence is corroborated or complies with common sense, I would not find it reliable.

There were good reasons for the trial judge taking this cautious approach to Moore’s evidence. The trial judge continued, on the next two pages of his Reasons, by referring twice to the medical evidence concerning Moore’s injuries as follows:

The injuries show Mr. Moore was roughly manhandled and repeatedly struck.

The injuries by themselves suggest excessive force.

On the next page of his Reasons, the trial judge concluded as follows:

This individual was roughly manhandled so that he fell to the ground and was repeatedly struck.

…they [the two accused] overcame his resistance to their illegal arrest with manhandling and blows that resulted in his extensive injuries.

[ 5 ] It is clear, from the above Reasons, that the trial judge found as a fact that the officers “repeatedly struck” Moore with “blows” during the arrest, as Moore alleged. It appears that the basis for this conclusion was the medical evidence concerning Moore’s injuries which “show … by themselves” that he was “repeatedly struck”.

[ 6 ] Unfortunately, this is a misapprehension of the medical evidence. Moore was taken to St. Michael’s Hospital, after his arrest, where he received treatment for his injuries. The medical evidence concerning Moore’s injuries was put before the trial judge in the form of an admission or Agreed Statement of Facts. It was as follows:

The following supplementary facts are admitted regarding the medical evidence. One of the physicians, Dr. Yu, would testify that the rib injuries would be a blunt injury as there was no penetration of the skin. Sometimes the mechanism can be determined, but not all the time. The precise mechanism could not be determined in this case and he could not speculate on what the mechanism was. Sometimes you can tell (if it was a kick) if there was a print mark or boot mark but not in this case. The injuries could have been the result of falling down on the rib(s) or a blunt object hitting them. It could have been a fist or a kick, Twenty to twenty-five kicks could have resulted in the injuries sustained , [Emphasis added].

[ 7 ] It can be seen that the learned trial judge misapprehended the real effect of the medical evidence when he stated that, “The injuries show Mr. Moore was … repeatedly struck” and that, “The injuries by themselves suggest excessive force”. The medical evidence, standing alone, was equivocal as to the cause of Moore’s injuries. The broken ribs were equally consistent with a fall as with a beating. In other words, the medical evidence was equally consistent with Ing and Cruz’s account as it was with Moore’s account.

[ 8 ] Like any circumstantial evidence, the medical evidence had to be analyzed together with all the other evidence. Only then could the totality of the evidence give rise to an inference, beyond reasonable doubt, that Moore had been beaten by the officers. Unfortunately, that is not how the trial judge approached the medical evidence. He took the view that the injuries, on their own, indicated that there had been a beating. This was not the true effect of this one piece of circumstantial evidence, when analyzed in isolation from all the other evidence. See: R. v. Lynch, Malone and King (1978), 1978 2347 (ON CA) , 40 C.C.C. (2d) 7 at 19 (Ont. C.A.); R. v. Côté (1941), 1941 348 (SCC) , 77 C.C.C. 75 at 76 (S.C.C.); R. v. Morin (1988), 1988 8 (SCC) , 44 C.C.C. (3d) 193 at 205-211 (S.C.C.); R. v. Bouvier (1984), 1984 3453 (ON CA) , 11 C.C.C. (3d) 257 at 264-6 (Ont. C.A.), aff’d. 1985 17 (SCC) , 22 C.C.C. (3d) 576 n (S.C.C.); R. v. J.M.H. , 2011 SCC 45 () , 2011 S.C.C. 45; R. v. Morin (1992), 1992 40 (SCC) , 76 C.C.C. (3d) 193 at 200 (S.C.C.).

[ 9 ] There is a narrow set of circumstances in which misapprehension of evidence can be successfully raised as a ground of appeal against conviction after a judge alone trial. Doherty J.A. set out the test in R. v. Morrissey (1995), 1995 3498 (ON CA) , 97 C.C.C. (3d) 193 at 218 and 221 (Ont. C.A.):

A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence.

Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a “true” verdict … If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

The Supreme Court of Canada elaborated on this test in R. v. Lohrer (2004), 2004 SCC 80 () , 193 C.C.C. 1 at para. 2 (S.C.C.) where Binnie J. stated, on behalf of a unanimous Court:

Morrissey , it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”.

[ 10 ] I am satisfied that the trial judge’s misapprehension of the medical evidence played “an essential part in the reasoning process” resulting in his conclusion that the officers had “repeatedly struck” Moore with “blows”, in other words, that there had been a beating as opposed to a fall during the arrest. If “the conviction depends” on this finding, then there has been a miscarriage of justice and there must be a new trial.

[ 11 ] The Crown submits that the conviction does not depend on the above finding that the officers beat Moore as there was an entirely independent route to a finding of guilt in this case, namely, the theory that the arrest was unlawful. It is true that the concluding passage in the trial judge’s Reasons, set out above at para. 4, refers to an “illegal arrest”. The Crown submits that the “no substantial wrong” proviso in s. 686(1)(b)(iii) of the Criminal Code can be applied and that the appeal should be dismissed, in spite of the admitted error at trial. More accurately, if the Crown is right about the independent false arrest route to a conviction, then the Morrissey test is simply not met as the conviction does not “depend” on the misapprehension of evidence. In these circumstances, there would be no miscarriage of justice within the meaning of s. 686(1)(a)(iii).

[ 12 ] I turn to a consideration of this somewhat difficult issue by examining how the case was conducted at trial and determining whether a theory of false arrest was advanced. I will then analyze the trial judge’s findings in relation to this theory.

C. THE CROWN’S ALTERNATIVE THEORIES AT TRIAL

[ 13 ] The very able and experienced counsel who prosecuted and defended this case at trial made thorough closing submissions and defence counsel also filed written argument. It is clear from these submissions that all parties at trial were agreed that there were two distinct and separate theories of criminal liability in the case. They referred to the two theories as “unlawful arrest” and “excessive force”.

[ 14 ] The legal and factual framework for the two theories was that the actus reus for the offence of assault causing bodily harm requires proof of four elements: the application of force; without consent; causation; and bodily harm. None of the four elements were in dispute, given that the officers admittedly applied force when they arrested Moore, he did not consent, indeed, the officers testified that he resisted arrest, and significant bodily harm ensued. Accordingly, the only live issue in the case was the “peace officer” defence of justification, pursuant to ss. 25 and 26 of the Criminal Code . That defence exculpates a “peace officer”, when enforcing the law, “if he acts on reasonable grounds” and if he uses only “as much force as is necessary”.

[ 15 ] The Crown’s first theory of liability – “unlawful arrest” – required the Crown to prove that the officers lacked “reasonable grounds” to arrest Moore pursuant to the Liquor License Act . Even if the officers had “reasonable grounds”, and the first theory failed, the Crown’s second theory of liability could still succeed if there was proof of “excessive force” in carrying out an otherwise lawful arrest. See: R. v. Asante-Mensah (2001), 2001 7279 (ON CA) , 157 C.C.C. (3d) 481 at para. 51 (Ont. C.A.), aff’d. (2003), 2003 SCC 38 () , 174 C.C.C. (3d) 481 at para. 62 (S.C.C.); R. v. Brennan (1989), 1989 7169 (ON CA) , 52 C.C.C. (3d) 366 (Ont. C.A.); Crampton v. Walton (2005), 2005 ABCA 81 () , 194 C.C.C. (3d) 207 at paras. 3-8 (Alta. C.A.); R. v. Tricker (1995), 1995 1268 (ON CA) , 96 C.C.C. (3d) 198 (Ont. C.A.).

[ 16 ] The error summarized above, concerning misapprehension of the medical evidence and the finding that the officers “repeatedly struck” Moore with “blows”, obviously relates most directly to the second theory of liability, namely, “excessive force”. The more difficult question is whether it also had an impact on the first theory.

[ 17 ] As the closing submissions unfolded at trial, the Crown all but abandoned the second theory of liability. It depended heavily on Moore’s account that the officers had beaten him, at some length, while arresting him at a reasonably public location on Gerrard Street in downtown Toronto. There were obvious problems with Moore’s credibility and reliability as a witness. The trial judge advised counsel, in the middle of their closing submissions, that he would not convict on the basis of Moore’s evidence alone. As a result, defence counsel stated:

So in light of Your Honour’s comments the issue is not excessive force as alleged by Mr. Moore , but rather whether the Crown, as my friend has stated, proved beyond a reasonable doubt that there are [no]reasonable grounds [for the arrest]. [Emphasis added].

Crown counsel did not disagree with defence counsel on this point.

[ 18 ] There are one hundred Transcript pages of closing submissions by both counsel. All of the Crown’s submissions were devoted to the theory of “unlawful arrest”. The Crown submitted repeatedly that Moore’s evidence could be completely rejected, since the theory of “unlawful arrest” did not depend on his evidence. Instead, it depended on the officers having proper grounds for arrest. Defence counsel, similarly, made virtually no oral argument about Moore’s reliability or credibility, given the trial judge’s favourable intervention on that point, as summarized above. In light of the Crown’s almost exclusive reliance on the “unlawful arrest” theory, and the trial judge’s comments about Moore’s credibility and reliability as a witness, defence counsel devoted only five Transcript pages of his lengthy submissions to the issue of “excessive force”. In that regard, he noted correctly that “the medical evidence is indeterminative, one way or the other. It is consistent with the allegations of Mr. Moore. It is also consistent with the position of the officers.” Crown counsel did not disagree with defence counsel’s analysis of the medical evidence.

[ 19 ] These closing submissions were made on December 9, 2010 and the trial judge reserved judgment. His Reasons for Judgment were delivered on January 25, 2011. At various points in his Reasons, the trial judge appeared to address both theories of liability. His main focus was on the theory of “excessive force”, even though that theory had essentially been abandoned and was not addressed in any meaningful way by either counsel.

[ 20 ] The learned trial judge’s Reasons are unclear as to whether he understood that the two theories were alternative routes to liability. On the two occasions in his Reasons, when he identified the issues in the case, he did not clearly identify the two theories nor did he refer to them as alternatives. He stated the following:

The test in a case such as this requires first, that there be objectively excessive force and secondly, that the officers could not reasonably have subjectively believed it to be necessary in the circumstances of the moment.

There are two essential questions to be answered here. The first is, am I satisfied beyond a reasonable doubt that there was no reasonable belief that Mr. Moore had to be arrested for his own protection. The second is, am I satisfied beyond a reasonable doubt that the force used was excessive.

[ 21 ] Neither of these passages sets out the Crown’s “unlawful arrest” theory with any clarity. The “excessive force” theory is clearly stated in both passages but it is referred to as an “essential” part of the “test” applicable to the case. This is not accurate. It was simply one alternative theory or route to liability.

[ 22 ] As discussed above, the trial judge misapprehended the medical evidence and this resulted in findings on the “excessive force” theory of liability that were erroneous. However, if the trial judge made all the necessary findings of fact on the “unlawful arrest” theory of liability, and if they were entirely independent and unaffected by his erroneous findings on the “excessive force” theory of liability, then there was no miscarriage of justice. I will now turn to a consideration of this issue.

D. UNLAWFUL ARREST FOR PUBLIC INTOXICATION: THE NECESSARY FINDINGS

[ 23 ] The Liquor License Act is a provincial regulatory statute. In s. 34(4) it enacts the offence of being “in an intoxicated condition in a place to which the general public is invited or permitted access”. It then enacts a limited power of warrantless arrest in s. 34(5), where a police officer “finds” a person committing the offence and where the officer forms “the opinion” that arrest “is necessary for the safety of any person”.

[ 24 ] The parties at trial were agreed, and the authorities establish, that there are three requirements for a lawful arrest under s. 34(5) of this Ontario statute. Section 25 of the Criminal Code would provide a defence of “justification” to the officers in this case, unless the Crown proved the absence of “reasonable grounds” in relaton to one or more of these three conjunctive requirements:

• First, reasonable grounds to believe that Moore was intoxicated in a public place;

• Second, reasonable grounds to believe that there was risk to Moore’s safety or someone else’s safety;

• Third, reasonable grounds to believe that arrest was “necessary”, in the sense that there were no other reasonable ways of preventing the risk to safety.

See: R. v. Hagarty (2005), 2005 ONCJ 317 () , 68 W.C.B. (2d) 103 (Ont. C.J.); R. v. Giri (2001), 51 W.C.B. (2d) 6 (Ont. S.C.J.) ; R. v. K.M. (2004), 65 W.C.B. (2d) 17 (Ont. C.J.) ; Radovici v. Toronto Police Services Board (2007), 2007 25662 (ON SC) , 86 O.R. (3d) 691 (S.C.J.).

[ 25 ] The Crown submitted at trial that all three requirements for a lawful arrest had been negatived beyond reasonable doubt, although the Crown conceded that its case was weakest in relation to the first requirement concerning intoxication. On this point he submitted:

I say from the Crown’s perspective, that may be the one criteria that you may find, at the end of the day, the Crown hasn’t proven beyond a reasonable doubt , there was a total lack of subjective and objective grounds, but I leave that to Your Honour. [Emphasis added].

In light of this submission, defence counsel took the position that the Crown had “almost conceded intoxication”. The Crown undoubtedly relied most heavily on the alleged lack of risk to anyone’s safety and the failure to consider whether arrest was necessary, that is, the second and third requirements for a lawful s. 34(5) arrest.

[ 26 ] At no point in his Reasons did the learned trial judge set out the three requirements for a lawful arrest under s. 34(5) of the Liquor License Act . In the two passages from his Reasons where he identified the issues in the case, set out above at para. 20, he initially referred to whether the officers “believed it to be necessary”, without stating what “it” refers to. The Crown submits, on appeal, that this passage refers to the third requirement under s. 34(5) for a lawful arrest. However, it is open to the construction that the trial judge was referring to the amount of force that was necessary and not to s. 34(5) at all. In the second passage, he asked whether Moore “had to be arrested for his own protection”, which appears to refer to the second requirement in s. 34(5) but leaves out the question of whether there was risk to any other members of the public. It can be seen that the trial judge, at best, was referring to two different requirements for a s. 34(5) lawful arrest (the second and third criteria) and he referred to both of them in an incomplete manner.

[ 27 ] In spite of these failures to properly frame the “unlawful arrest” issue, the trial judge did make a number of findings of fact that are relevant to some or all of the three s. 34(5) requirements. Crown counsel on appeal relies particularly on these findings as providing an independent basis for upholding the convictions. For example, the trial judge made the following findings that appear to relate to the first s. 34(5) requirement of reasonable grounds to believe that Moore was intoxicated in a public place:

Odd remarks, a lack of deference to the police and a shambling gait do not constitute reasonable and probable grounds for public intoxication.

The demeanour and utterances were unusual for their lack of deference. The gait, in a neighbourhood filled with homeless, addicted and heavily medicated mentally ill people can hardly have been unusual, and the combination could not amount to reasonable and probable grounds for a ticket, let alone an arrest for public intoxication.

[ 28 ] The trial judge’s findings that appear to relate to the second s. 34(5) requirement, namely, risk to safety are as follows:

There was no more reason to think Mr. Moore would walk into traffic than to think that any of the other dozens, if not hundreds, of drunks, high and mentally ill people in the neighbourhood would do the same.

[ 29 ] Finally, the trial judge’s findings that appear to relate to the third s. 34(5) requirement, namely, the absence of any means short of arrest to prevent the risk to safety are as follows:

PC Ing did not attempt to determine where Mr. Moore lived. He did not attempt to deescalate the situation. He did not have grounds for an arrest. He pursued Mr. Moore, cornered him and grabbed him.

I accept the evidence of Mr. Moore and PC Cruz that the officers pursued him directly, cornered him in his walkway and grabbed him immediately. This does [not] admit of any desire to investigate further or to help Mr. Moore.

[ 30 ] Mr. Gold, counsel for the Appellants, submits that a number of these findings are based on further misapprehensions of evidence. I do not need to address this issue because I do not read the trial judge’s Reasons as ultimately resting on the “unlawful arrest” theory. He had never set out that theory with any clarity, as noted above. More importantly, at one point in his Reasons he explicitly stated that he was not relying on it. He referred directly to Crown counsel’s submissions on the point and stated:

Mr. Perlmutter [Crown counsel at trial] suggests that at its highest the defence evidence does not disclose reasonable and probable grounds, and therefore the arrest and the physical contact is illegal. He says the officers’ failure to consider alternatives to arrest, even if that occurred as a result of officially induced error, render the arrest criminal. He also urges the analysis that this was a lesson in manners that went wrong.

I do not have to consider the first two alternatives in this case . [Emphasis added].

[ 31 ] As I read this passage in the Reasons, the trial judge decided that he would not rely on the Crown’s two main submissions, both of which related to the “unlawful arrest” theory of liability. Instead, he was more attracted to the theory that “this was a lesson in manners that went wrong”. In the very next passage in his Reasons, the trial judge described the issue in the case as “excessive force” and he resolved it on the basis of the injuries, stating:

The test in a case such as this requires first, that there be objectively excessive force; and secondly, that the officers could not reasonably have subjectively believed it to be necessary in the circumstances of the moment. The test, of course, is proof of these factors beyond a reasonable doubt.

The injuries by themselves suggest excessive force … This is the case, even if this is a lawful arrest.

[ 32 ] It appears that the trial judge thought that “excessive force” was the better basis on which to decide the case. It undoubtedly avoided the somewhat complex and technical three step analysis of “unlawful arrest”, as required by s. 25 of the Criminal Code and by s. 34(5) of the Liquor License Act . The trial judge never referred to police powers under either of these two sections, he never set out their three requirements, he never made findings that he then related to these three legal requirements, he never cited any of the relevant case law concerning s. 25 and s. 34(5) and, at one point, he expressly stated that he did “not have to consider” the Crown’s two main submissions on the false arrest theory of liability. In all these circumstances, I cannot be satisfied that he made the necessary findings for the convictions to rest on the Crown’s independent theory of “unlawful arrest”.

[ 33 ] The parties at trial did not ultimately argue the case on the basis of “excessive force”, as it was the weakest of the Crown’s theories. Nevertheless, that appears to be the route that the trial judge chose when he came to write his Reasons. He convicted on that theory, relying on his misapprehension of the medical evidence, as set out above. This course of reasoning occasioned a miscarriage of justice.

E. CONCLUSION

[ 34 ] For all these reasons, I am satisfied that the appeals must be allowed from the two convictions, and a new trial ordered. It is not necessary to address the sentence appeals.

[ 35 ] I wish to thank both counsel for their very helpful submissions.

M.A. Code J.

Date: March 1, 2012