COURT FILE NO.: CR10-10000140-00AP

DATE: 20121121

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Patrick Reilly

BEFORE: M.A. Code J.

COUNSEL:
Patrick Reilly, representing himself

David Mitchell, for the Crown/Respondent

HEARD: November 13, 2012

ENDORSEMENT

[ 1 ] The Appellant Patrick Reilly (hereinafter, Reilly) was charged in a three count Information with loitering or prowling by night and with two counts of assault police, contrary to ss. 177 and 270(1) of the Criminal Code . The Crown proceeded summarily before Libman J. After a lengthy seven day trial, the trial judge acquitted Reilly on the count of prowl by night but convicted him of the two assault police counts. He sentenced Reilly to a suspended sentence, one year probation, and a five year s. 110 order.

[ 2 ] Reilly appeals against the two convictions. He also appealed against sentence in his original Notice of Appeal but he did not pursue the sentence appeal during oral argument. His period of probation has now been completed. Reilly was represented by counsel at trial. On the appeal, he represented himself.

[ 3 ] The facts of the case, in summary, involved an incident on the University of Toronto campus on the night of February 27, 2007. A female graduate student was walking home that night on a pathway that runs through the downtown campus. She saw a man looking into the window of a university residence. Two female students were in their pajamas in the lighted room and the curtains were open. The man moved away from the window, as the graduate student approached him, but then returned to his previous position after the graduate student had passed. She called the university police, reported the matter, and provided a description of the man.

[ 4 ] The campus police received the call at 10:19 p.m. and two officers attended at the scene, arriving at 10:22 p.m. Officers Johnston and Tollar saw a man who, in their view, generally fit the description of the suspect. They also noticed that he was looking into the window of a residence. No one else was in the area of the pathway running behind the residence. The police approached the man, who was Reilly.

[ 5 ] A lengthy investigation ensued on the pathway. Between approximately 10:22 p.m. and 11:10 p.m. the following steps were taken: the two officers questioned Reilly as to what he was doing and he provided what the officers thought were varying and suspicious accounts; the two officers were young and inexperienced and they called for back-up; two more senior officers arrived on the scene and they questioned Reilly further; a telephone call was made to verify the student identification card that Reilly had provided; a further call was made to interview the graduate student complainant about what she had seen; a call was made to a Toronto police detective at 52 Division; and, finally, a decision was made to arrest Reilly.

[ 6 ] The four officers’ accounts of the investigation and the arrest varied in detail concerning exactly where they were standing at various points in time and exactly where one blow attributed to Reilly landed. Nevertheless, their accounts were generally consistent on the following points: once Reilly was advised of the arrest he took an aggressive stance and clenched his fists; he swung his right arm at Officer Johnston, missed her, and grabbed her vest; he then kicked at Officer Tollar with his right leg and this blow landed in the area of Tollar’s lower body or leg; the officers took Reilly to the ground and, after a struggle, managed to handcuff him with normal metal handcuffs. The officers denied striking Reilly with any blows and they all testified that he did not suffer any injuries. They took Reilly to 52 Division. The booking officer at the division, Sgt. Hung, confirmed that Reilly had no injuries and did not complain of any injury or seek medical treatment. The booking video was made an exhibit. There was also evidence about the state of Reilly’s clothing on arrest which could be regarded as somewhat suspicious.

[ 7 ] Reilly’s account of the incident was quite different. He was a forty-five year old part-time student at the University of Toronto. He was residing on campus and was out for a walk at the relevant time. He was approached by a campus police officer who was neither Johnston nor Tollar. He denied looking in the residence windows. He advised the officer that “he was contemplating the instinctive nature of a moose, as odd as it sounds.” Three other officers arrived on the scene. He was asked for identification and was asked about his university courses. Reilly testified that the officers never advised him that he was under arrest. They said nothing and simply attacked him in a coordinated movement. He did not strike the officers. Rather, it was the officers who struck him repeatedly with punches and kicks. He received “a solid punch to the head”, there was then a “flurry of punches”, he went down, there were more punches to his head and hard kicks to his torso and legs. A young woman walked past on the pathway and Reilly called for “help”. He received another punch in the back of the head and one punch squarely in the forehead, while he was on the ground. The officers tied his hands with plastic cord and not with metal handcuffs.

[ 8 ] Reilly was taken to 52 Division by two different officers, who were not amongst the four officers at the scene. Reilly complained to the booking officer at 52 Division about a bleeding injury to his knee and asked to see a doctor. He was denied medical treatment. He agreed that he had no bruises or injuries to his head from the punches. There were no injuries other than to his knee. He did not photograph the bleeding knee and he did not seek any medical treatment after he was released from the station. The booking video was played to Reilly. He agreed that it showed Officers Johnston and Tollar getting him out of the campus police car at 52 Division. He insisted they were not the officers who first approached him on the pathway and they were not the officers who drove him to the police station. He described Officer Johnston as having platinum blonde hair, at the time of the incident, whereas she had black hair in the booking video. He denied being in metal handcuffs in the booking video.

[ 9 ] In lengthy and thorough reasons, the trial judge found as a fact that Reilly was the man seen by the female graduate student looking in the windows of the student residence. Although there were weaknesses in her identification of Reilly, this evidence was supported by a number of “surrounding inculpatory circumstances”. The trial judge proceeded, nevertheless, to acquit Reilly of the prowl by night count because he was a student at the university at the relevant time, the conduct in question was “ambiguous”, and there was “a doubt” as to whether the actus reus and mens rea of the offence had been proved.

[ 10 ] The trial judge, however, convicted Reilly of the two counts of assault police. He completely rejected Reilly’s evidence as “inherently implausible” and, indeed, as “completely fantastic” in some of its aspects. He set out detailed reasons in support of these conclusions. He went on to accept the evidence of the four university police officers and of the booking officer, Sgt. Hung. Once again, he set out detailed reasons in support of these findings. He concluded that all the elements of the assaults on Officers Johnson and Tollar had been proved beyond reasonable doubt.

[ 11 ] In his oral argument of the appeal, Reilly submitted that the booking video had been “doctored”. He also submitted that some other officers were “personating” two of the arresting officers. He initially asked that these matters be made the subject of some kind of expert investigation, pursuant to powers found in s. 683 of the Criminal Code . However, when pressed, he agreed that these matters were not pursued by his counsel at trial and they were not being raised on appeal, other than to simply point them out as “uninvestigated issues”.

[ 12 ] Reilly raised three grounds of appeal: first, he alleged misapprehension of evidence, relating to various inconsistencies and improbabilities in the arresting officers’ evidence; second, he submitted that once the evidence was properly appreciated, the trial judge’s findings that the assaults had been proved were unreasonable; and third, he alleged error in applying the burden of proof to the central issues of credibility in the case, pursuant to the well-known principles in W.D.

[ 13 ] Dealing with the first two grounds of appeal together, I am satisfied that there was no misapprehension of evidence in the relevant legal sense. Absent any misapprehension of evidence, the verdicts were not unreasonable. The trial judge acknowledged certain inconsistencies in the four officers’ evidence but held, in effect, that they were minor and were easily explained by the officers’ differing perspectives of a dynamic event. This tended to indicate to the trial judge that the officers had not colluded by agreeing on a perfectly consistent story. The trial judge stated the following in this regard:

I am mindful of the fact that Mr. Stafford [defence counsel] has pointed out a number of areas where he says that the evidence of the officers is self-contradictory and should produce a reasonable doubt. With respect, I disagree. In fact, the evidence as it was related to me is the type of evidence that one would expect where events happen quickly, when they are emotionally charged, and different perspectives are given. Accordingly, to note but one example, the evidence of Tollar’s being kicked in the leg: Johnston: “Tollar was kicked in the right leg.” Dicks: “Tollar was kicked in the thigh area.” Tollar: “A kick to the right shin.” Truong: “A kick to the lower body area.”

I see no reason to doubt the evidence given, based on this, as just one of the many examples I have heard. Quite to the contrary, these officers did not engage in a systematic comparing of their notes to concoct a story.

[ 14 ] The same point was made by Galligan J.A. (Arbour J.A. concurring) in R. v. G.(M.) (1994), 93 C.C.C. (3d) 347 at 354 (Ont. C.A.), when he stated:

Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness-box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minor matters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness . This is particularly true in cases of young persons. But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth . The trier of fact is then placed in the dilemma of trying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth.

The effect of inconsistencies upon the credibility of a crucial witness was recently described by Rowles J.A. speaking for the British Columbia Court of Appeal in R. v. B. (R.W.) (1993), 40 W.A.C. 1 at pp. 9-10, 19 W.C.B. (2d) 260 :

Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant’s evidence be tested in the light of all the other evidence presented.

In this case there were a number of inconsistencies in the complainant’s own evidence and a number of inconsistencies between the complainant’s evidence and the testimony of other witnesses. While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness’s evidence . There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least the trier of fact should look to the totality of the inconsistencies in order to assess whether the witness’s evidence is reliable. This is particularly so when there is no supporting evidence on the central issue, which was the case here.

That statement was adopted by Finlayson J.A. speaking for this court in R. v. S. (W.) (1994), 90 C.C.C. (3d) 242 at pp.252-4, (Ont. C.A.).

The British Columbia case is different from this one. In it there were a number of inconsistencies while here there was one, but a very serious one. I do not think the principle is different whether there is one or several inconsistencies. What is important is the significance of the inconsistency. If the inconsistency is a significant one then the trial judge must pay careful attention to it when assessing the reliability of the witness’s testimony . [Emphasis added].

[ 15 ] I am satisfied that the inconsistencies relied on by Reilly in the case at bar, relating to matters such as the exact position of each of the four officers at various points in the ongoing incident and the exact place where the kick landed, were minor or peripheral “matters of detail” as Galligan J.A. put it.. The trial judge did not misapprehend their significance. The four officers gave a generally consistent account in relation to the core substance of the matters in dispute and the trial judge found them to be credible. As a result, there could be no suggestion that the verdicts were unreasonable on the two counts of assault. See: R. v. W. (R.) (1992), 74 C.C.C. (3d) 134 at para. 20 (S.C.C.); R. v. Biniaris (2000), 143 C.C.C. (3d)) 1 at para. 37 (S.C.C.); R. v. Lohrer (2004), 193 C.C.C. 1 at para. 2 (S.C.C.).

[ 16 ] The third ground of appeal, alleging misapplication of the W.D. principles concerning the burden of proof and credibility, is equally without merit. The trial judge fully and accurately set out the framework that emerges from R. v. D. (W.) (1991), 63 C.C.C. (3d) 397 (S.C.C.), and he also referred to the helpful analysis of Martin J.A. on the same point in R. v. Nimchuk (1977), 33 C.C.C. (2d) 209 (Ont. C.A.). The trial judge stated that these were the “controlling principles” for the “findings of fact that I am about to make”.

[ 17 ] When he came to the two counts of assault, the trial judge set out detailed reasons for finding Reilly’s account “inherently implausible”, “false”, “bizarre”, “completely fantastic”, and “detached from reality”. He, therefore, “rejected the evidence of Mr. Reilly” and found that “it does not raise a reasonable doubt”. He then turned to the final “step of the W.D. test” and stated that the issue was whether “I am satisfied beyond a reasonable doubt of the guilt of the accused” on the basis that “the defendant, in the course of being arrested or interacting with Officers Johnston and Tollar, resisted arrest and assaulted them in the course of doing so”. He proceeded to thoroughly analyze the evidence of the four arresting officers. He also reviewed the video recording of the booking process at 52 Division and concluded that “it is obvious that the accused is not in any pain”. He found that the officers were credible and “fair-minded” and accepted their accounts of the incident. He concluded that all elements of the two offences had been proved beyond reasonable doubt.

[ 18 ] I cannot see any error in the above process of reasoning. In my view, it complies exactly with the W.D. analytical framework.

[ 19 ] For all the above reasons, none of the three grounds of appeal can succeed. Reilly also brought a s. 683(1) Application to admit “fresh evidence”. He did not argue it and, when asked about it, he acknowledged that it was based on a similar argument to the first ground of appeal. The Application appended an affidavit from one of the four officers, filed in related civil proceedings commenced by Reilly. He submitted that the officer had slightly changed his evidence as to the exact positioning of the four officers at the moment when Reilly was arrested. I have reviewed the affidavit and I am satisfied that it is substantially consistent with the officer’s evidence at trial. Accordingly, the “fresh evidence” is not admissible because it does not satisfy the fourth Palmer criterion, namely, that “it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result”. See: R. v. Walle , 2012 SCC 41 at para. 75 .

[ 20 ] For all these reasons, the appeal against conviction and sentence is dismissed.

M.A. Code J.

Date: November 21, 2012