A. OVERVIEW

[1] The Appellant Bryan Thomas (hereinafter, Thomas) was charged in a one count Information with assault causing bodily harm, contrary to s. 267(b) of the Criminal Code. The Crown proceeded summarily. After a lengthy eight day trial, Horkins J. found Thomas guilty as charged. On August 21, 2012, Thomas was sentenced to ninety days in jail, to be served intermittently, and to probation during the period of the custodial sentence.

[2] Thomas appealed against both conviction and sentence. At the end of oral argument of the appeal, I reserved judgment.

[3] Thomas is a police officer with the Metropolitan Toronto Police Service. The events in question took place on October 2, 2010, in the late afternoon, when Thomas was off-duty. He was driving home with his girlfriend and his two young daughters, after seeing a movie. A car driven by Sarkoon Oraha (hereinafter, Oraha) came up behind Thomas’ car at a high rate of speed and began following too closely and flashing its lights. Oraha’s car passed Thomas’ car on the right shoulder of the highway and then abruptly pulled in front of Thomas, cutting him off and causing him to take evasive action in order to avoid an accident. After some further erratic driving, Thomas eventually pulled up beside Oraha’s car, showed Oraha his police badge and had Oraha pull over at the side of the road. Both Thomas and Oraha got out of their cars while Thomas’ girlfriend called the police and asked them to attend. Thomas arrested Oraha for dangerous driving and a physical altercation ensued. Thomas and Oraha gave differing accounts about the physical altercation. It was that altercation which formed the basis for the criminal charge against Thomas.

[4] The trial judge described Oraha’s driving as “outrageous conduct” that “created an ongoing situation of danger”. He concluded that the driving was “a very real threat to both [Thomas] and … more significantly, his children who were occupants of his car at the time … when their safety was suddenly and very seriously jeopardized by the aggressive, dangerous driving of Mr. Oraha”. There was no dispute at trial that Thomas lawfully arrested Oraha for dangerous driving. There was equally no dispute that Thomas applied force during the arrest without Oraha’s consent. Finally, the trial judge found as a fact that the force applied by Thomas caused a hairline fracture to Oraha’s jaw, which constituted “bodily harm” in law.

[5] Given the above circumstances, the Crown had proved all the essential elements of the offence charged. The only live issue at trial was the “peace officer” defence, set out in ss. 25 and 26 of the Criminal Code. That defence excuses “necessary” force, when used in the course of a lawful arrest, but holds the arresting officer “criminally responsible for any excess” force.

[6] At the start of his reasons, the trial judge accurately set out this narrow issue in the case, as follows:

The allegation is the use of excessive force in detaining the complainant Sarkoon Oraha for dangerous driving. The events arise from an off duty traffic stop. The accused responded to the Crown’s case by agreeing that he struck the complainant in the head, at least twice if not three times. He says that the force used was provoked by the conduct of the complainant, that it was reasonable force, that it was proportional to the situation and in other words that the blows struck were justified, lawful and consistent with his professional training. Officer Thomas strongly denies the extent and degree of physical force described by the Crown’s case. Ultimately this case turns on findings of fact.

[7] Thomas’ account was that he struck two or three blows to Oraha’s head, while effecting the arrest, in order to stun and control Oraha who was resisting the arrest. He then struck Oraha’s leg with his knee, in a failed attempt to take Oraha to the ground. The Crown’s evidence, from Oraha and five independent witnesses who were in their cars at the scene, was to the general effect that Oraha was passive and was not resisting and that Thomas struck many blows, estimated variously at between ten and thirty. The blows were numerous punches to the face and head and kicks to the lower body.

[8] The Appellant raised three grounds of appeal in relation to conviction. He also submits, in support of the sentence appeal, that this was an exceptional case that justified a non-custodial sentence. Mr. Gold submits that the three grounds relating to the conviction appeal are all inter-related. He characterized them as follows:

(i) The trial judge misapprehended the evidence of the five independent civilian witnesses who saw the altercation at the roadside between Thomas and Oraha. There are two aspects to the alleged misapprehension: first, the trial judge over-stated the degree of consistency between the five witnesses’ accounts; and second, the trial judge failed to assess the reliability of their accounts, focusing instead on credibility;

(ii) The trial judge misapplied the well-known principles relating to the burden of proof and credibility that emerge from the W.D. case. Once again, there are two aspects to this ground: first, the trial judge accepted the accounts of the five independent Crown witnesses before he considered Thomas’ contrary account; and second, the trial judge failed to consider Thomas’ account together with other exculpatory evidence, in particular, the evidence of his girlfriend and the medical evidence, when determining whether Thomas’ account raised a reasonable doubt;

(iii) The trial judge erred in law in allowing the five independent Crown witnesses to give various lay opinions about the character and degree of force used by Thomas. The trial judge then erred further by relying on these lay opinions and, in fact, using them as the basis for convicting Thomas.

[9] I will set out the relevant facts when discussing the merits of each of the three grounds of appeal relating to conviction.

B. MISAPPREHENSION OF EVIDENCE

[10] The test in law for appellate review, on the basis of “misapprehension of evidence”, is said to be “stringent”. As Binnie J. put it, speaking for the Court in R. v. Lohrer (2004), 2004 SCC 80, 193 C.C.C. (3d) 1 at para. 2 (S.C.C.):

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”.

Doherty J.A. described the two part test in the following terms in R. v. Morrissey (1995), 1995 CanLII 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.

[11] As summarized above, the Appellant submits that the trial judge misapprehended two aspects of the evidence of the five independent Crown witnesses who saw the altercation at the roadside between Thomas and Oraha. There is no question that the trial judge’s assessment of the evidence of the five independent Crown witnesses played “an essential part in the reasoning process resulting in a conviction”. Indeed, the trial judge stated that Oraha’s evidence had to be approached “with caution”. It was the evidence of the five independent Crown witnesses on the issue of excessive force that the trial judge ultimately relied on as the basis for rejecting Thomas’ evidence and for convicting. Accordingly, the second part of the Morrissey/Lohrer test is easily met. The real issue is whether the Appellant has satisfied the first part of the test by demonstrating “a failure to consider evidence …, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence”.

[12] In this regard, the Appellant submits that the trial judge “failed to consider” the reliability of the five witnesses’ accounts and, instead, focused on their credibility, and that he also made “a mistake as to the substance” of their evidence by finding it to be generally consistent. The two points are related because the consistency and corroborating value of the five independent accounts, assuming they were generally consistent, had the effect of enhancing the reliability of that body of evidence.

[13] Reliability generally relates to the testimonial factors of perception, memory, and communication whereas credibility relates to sincerity or honesty. Reliability is particularly a concern in cases where witnesses are very young, where they testify about distant historical events, where their accounts are inconsistent or contradictory, where their accounts are unsupported by any other reliable evidence, where their observations are not recorded contemporaneously, where they have a poor opportunity to observe, or where some other shortcoming relevant to perception, memory, or communication may exist. See, generally: R. v C. (H.) (2009), 2009 ONCA 56, 241 C.C.C. (3d) 45 at para. 41 (Ont. C.A.); R. v. Sanichar, 2012 ONCA 117; R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.); R. v. S. (W.) (1994), 1994 CanLII 7208 (ON CA), 90 C.C.C. (3d) 242 (Ont. C.A.); R. v. M. (B.) (1998), 1998 CanLII 13326 (ON CA), 130 C.C.C. (3d) 353 (Ont. C.A.); R. v. G. (G.) (1997), 1997 CanLII 1976 (ON CA), 115 C.C.C. (3d) 1 (Ont. C.A.); R. v. McGrath, [2000] O.J. No. 5735 (S.C.J.).

[14] Many of the above factors were not significantly in play in the case at bar. The five independent witnesses were adults who were testifying about relatively recent events, that is, they were testifying in April 2012 about an event they saw in October 2010. Their accounts were generally consistent and mutually corroborative, as I will explain below. Almost all of them made 911 calls to the police and these calls were recorded and played in evidence and provided a highly contemporaneous record of their observations. They were also interviewed at a time that was reasonably close to the events and these prior statements were available and, where necessary, were put to them. They generally had a good vantage point, in their cars at or near the roadside scene, from which they witnessed the relevant events. The one aspect of reliability that was particularly in issue was that the arrest and ensuing altercation happened quickly, in a few minutes, and the five independent witnesses may not have seen all of the incident or may have misinterpreted what they did see.

[15] I am satisfied that the trial judge did not overlook or misapprehend concerns about the reliability of the five independent Crown witnesses. On the contrary, he repeatedly referred to reliability and to factors relevant to reliability, as follows:

He made express findings about two of the witnesses, Ms. Clark and Mr. DaSilva, stating that each one was “a reliable witness to the events in question”;
He referred to the fact that four of the five witnesses made contemporaneous 911 calls to the police, which were tape recorded and played in evidence, describing the events over the telephone as they unfolded or immediately afterwards;
When one witness gave an account of the number of blows struck by Thomas, that seemed exaggerated, the trial judge referred to the witness’ “more contemporaneous account” set out in his prior statement;
He referred to the broad “consistency” between the five witnesses’ accounts on the central issue of excessive force, while also noting some “variances in the detail and specifics of their separate observations”;
He referred to the fact that these witnesses were “independent” from one another and that they were “a half dozen or so” in number;
He twice referred to the fact that these Crown witnesses may have “missed” one important part of the sequence of events, due to the speed at which the altercation developed. He described this one “missed” part of the transaction as “the triggering event”, when Oraha may have raised his elbow at the moment when Thomas arrested him;
He expressly found that the five independent Crown witnesses were “well situated to observe the events”.

[16] In light of the above seven references to the reliability of the independent Crown witnesses’ accounts, or to factors relating to reliability, it cannot be successfully argued that the trial judge somehow overlooked considerations of reliability and focused solely on credibility. He did expressly refer to one witness, Mr. Barbosa, as a “credible witness” and he did refer to the fact that all five witnesses had “no motive to fabricate or exaggerate”, which is a factor that relates to credibility. However, his main focus was on factors relating to reliability, as set out above. Of course, the trial judge’s findings concerning the credibility and reliability of the five independent Crown witnesses are entitled to considerable deference on appeal. See: R. v. G. (L.) (2006), 2006 SCC 17, 207 C.C.C. (3d) 353 at paras. 10-12 (S.C.C.); R. v. W. (R.) (1992), 1992 CanLII 56 (SCC), 74 C.C.C. (3d) 134 at 141-2 (S.C.C.); R. v. Sanichar, supra at paras. 31-3.

[17] The Appellant’s further submission, concerning misapprehension of the evidence relating to reliability, is that the five witnesses’ accounts were not, in fact, consistent. I cannot accept this submission. As set out above, the trial judge noted that there were “variances in the detail and specifics of their separate observations”. However, they were broadly “consistent” on two central points: first, whether the number of blows struck by Thomas was about three, as he testified, or about ten to fifteen, as Oraha testified; and second, whether Oraha was resisting once the physical altercation developed, as Thomas testified, or whether he “did nothing at all to resist and was simply covering up”, as Oraha testified. The “peace officer” defence turned on these two central issues.

[18] The trial judge’s finding of “consistency” correctly focused on the above two points. He stated the following:

“Those [five] witnesses described blows in the range of ten to twenty to thirty punches, as well as kicks, as I say, on a completely compliant victim. These witnesses were struck by the fact that Mr. Oraha put up no fight in response to the violence that was being inflicted upon him.

It is clear that, as I have referred to it as the consensus view of the independent witnesses, that Officer Thomas administered an unrelenting and quite brutal beating on Mr. Oraha who did nothing in response or in defence of himself, except to attempt to shield himself from the punches and kicks being delivered.

Officer Thomas insists that he was not angry, that he struck the complainant three times, not the ten, twenty, thirty times described by the bystanders.

… although findings of credibility are sometimes difficult to articulate, in this case the quality and the consistency of the evidence of the bystanders that I have referred to in describing the conduct of Officer Thomas, and describing it in the most damning terms, compels acceptance of that evidence or at least the general nature of it. There are variances in the detail and specifics of their separate observations, but I find it compelling that the independent evidence of a half dozen or so concerned citizens who were all well situated to observe the events and with no motive to fabricate or exaggerate all say, all say in one way or another, that Officer Thomas beat the complainant in a manner that was by any measure well beyond any reasonable or justifiable level of violence. That evidence compels the conclusion that the Crown has proven its case and that the accused is guilty as charged.

Now, having said that, I do want to hasten to say that I believe that Officer Thomas was provoked by the most outrageous conduct of the complainant and I believe in hearing his evidence that he reacted to this provocation uncharacteristically and in the context of a real threat that he perceived. As far as the perception of the elbow coming back at him, that might have excused, as he said, one or two blows, but not the beating that was described in the evidence before me. [Emphasis added].

[19] I have carefully reviewed the evidence of the five independent Crown witnesses. I agree with the trial judge that their evidence was broadly consistent on the central factual issues, namely, that Oraha was passive and was not actively resisting during the physical altercation and that the number of punches struck by Thomas was not in the range of two or three but was in the range of ten or more. Mr. Gold points to various differences in their accounts but these are to be expected, given the differing vantage points of the witnesses, the fact that events unfolded quickly, and given that some of the witnesses appear to have seen more of the altercation than others. As the trial judge put it, the differences were matters of “detail and specifics”. On the two central issues of substance, as set out above, the witnesses were generally consistent. See: R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 at 354-5 (Ont. C.A.) where Galligan J.A. (Arbour J.A. concurring) stated that, “Inconsistencies on minor matters or matters of detail are normal and are to be expected … What is important is the significance of the inconsistency”.

[20] For all the above reasons, the first ground of appeal cannot succeed as the trial judge did not misapprehend evidence relating to the reliability of the five independent witnesses’ accounts.

C. MISAPPLICAITON OF THE BURDEN OF PROOF

[21] The Appellant submits that the trial judge misapplied the burden of proof, when resolving the central issues of credibility and reliability against Thomas and in favour of the five independent Crown witnesses. He relies on the well-known principles set out in R. v. D.(W.) (1991) 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.).

[22] The first aspect of this argument is based on a literalist reading of the model jury charge in W.D., as if it sets out three sequential steps that the trier of fact must take, one at a time. Mr. Gold submits that the trial judge erred in his timing because he accepted the Crown’s evidence (“step 3”) before he even considered Thomas’ evidence (“step 1” and “step 2”). Mr. Gold concedes that the trier of fact must take all the evidence into account, at “step 1” and at “step 2”, but that it is an error to actually accept the credibility and reliability of the Crown’s witnesses when undertaking the first two temporal stages of this complex analytical exercise.

[23] In my view, this is a misreading of W.D. That case does not describe three sequential analytical steps that a trier of fact must pass through, one at a time. Rather, it describes three distinct findings of fact that a trier of fact can arrive at, when considering all the evidence at the end of the case, namely, complete acceptance of the accused’s exculpatory account (“step 1”), complete acceptance of the Crown witnesses’ inculpatory account (“step 3”), or uncertainty as to which account to believe (“step 2”). See: R. v. Edwards, 2012 ONSC 3373 at paras. 13-25 (S.C.J.), where the authorities on this point are discussed at some length.

[24] Mr. Gold’s approach is unworkable in practice. A trier of fact must look at all the evidence, when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown’s witnesses prove guilt beyond reasonable doubt and whether the accused’s contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called “three steps” in W.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence.

[25] The trial judge instructed himself impeccably on the burden of proof and the degree of proof, referring to the principles that are set out in R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.), R. v. Lifchus (1997), 1997 CanLII 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.), and R. v. D. W., supra. In particular, he referred to the three part analytical framework emerging from W.D. with complete accuracy. What the Appellant objects to is the following passage in the trial judge’s reasons where he stated:

It is not an error to assess the credibility of the accused in relation to or in comparison with the evidence of the principle Crown witnesses, but a Court has to be cautious in doing so. A fatal error is made under the W.D. framework when a Court treats the matter as concluded once this comparative assessment of credibility is completed, because to do so misses the third and crucial step in the W.D. framework of analysis. The central concern in this framework of analysis is to highlight that mere unacceptance or disbelief of an accused’s evidence does not satisfy the burden of proof which lies heavily on the Crown. And it is a fatal error to use disbelief of the accused’s evidence as positive proof of guilt by moving directly from that disbelief to a finding of guilt. A Court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused’s guilt.

An important point in the analysis, and in particular in this case, is that the reasoned acceptance of evidence supportive of the Crown’s case is a fair and legitimate basis upon which the Court can reject the evidence of the accused and find guilt beyond a reasonable doubt. A reasoned and considered acceptance of the evidence of the Crown’s witnesses in such a case is an entirely valid basis for rejecting the contrary evidence of the accused. It is just as valid a basis as would be identifying problems inherent in the accused’s own evidence.

[26] I can see no error in the above reasoning. Indeed, the trial judge appeared to be quoting, almost verbatim, from two decisions of the Ontario Court of Appeal that Crown counsel had relied on in closing submissions. Both cases stress the importance of assessing the credibility of the accused’s exculpatory evidence in the context of the conflicting inculpatory evidence from the Crown’s witnesses In accepting the evidence of the five independent Crown witnesses, as proving guilt beyond reasonable doubt on the basis of cogent reasons, the trial judge was driven “of necessity” to reject Thomas’ conflicting account. See: R. v. D. (J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 at para. 53 (Ont. C.A.); R. v. Hull (2006), 2006 CanLII 26572 (ON CA), 70 W.C.B. (2d) 274 (Ont. C.A.). A number of equally authoritative decisions, not cited to the trial judge, make the same point. See: R. v. M. (R.E.) (2008), 2008 SCC 51, 235 C.C.C. (3d) 290 at para. 66 (S.C.C.); R. v. Hoohing (2007), 2007 ONCA 577, 74 W.C.B. (2d) 676 at para. 15 (Ont. C.A.); R. v. Campbell (2003), 2003 CanLII 48403 (ON CA), 57 W.C.B. (2d) 363 (Ont. C.A.); R. v. Beteta-Amaya, 2011 ONSC 6633 at paras. 50-54.

[27] The second aspect of this ground of appeal is the submission that the trial judge erred in failing to consider other exculpatory evidence, together with Thomas’ account, before he rejected it. In particular, it is submitted that Thomas’ girlfriend’s account and the medical evidence concerning Oraha’s injuries (or lack of injuries) were both exculpatory and that the trial judge failed to consider them.

[28] This submission was not mentioned in the Appellant’s Factum or in the Amended Appellant’s Factum and was raised for the first time during oral argument. I am satisfied that it has no merit. The trial judge clearly considered the evidence of Thomas’ girlfriend, Ms. Ditollo. He accepted her account of Oraha’s dangerous driving and he accepted the fact that she was calling the police while Thomas got out of the car. More importantly, when reviewing the central conflict in the evidence between Oraha and Thomas, as to the number of blows and as to whether Oraha was passive or was resisting, the trial judge stated the following:

“In any event, his [Oraha’s] version of events is significantly more consistent with that of the independent civilian witnesses than it is with the evidence of Officer Thomas and Ms. Ditollo … He [Oraha] estimated the blows to be ten to fifteen”.

[29] It is apparent from this passage in his reasons that the trial judge appreciated that Ms. Ditollo’s evidence could be regarded as supportive of Thomas’ evidence concerning the number of blows struck during the altercation. The trial judge went on to directly address Ms. Ditollo’s evidence on this point, later in his reasons. He stated:

In the call that went in for assistance it is clear that Officer Thomas and Ms. Ditollo felt that this guy, Mr. Oraha, had tried to run them off the road with the kids in the car. In a careful listening of the Ditollo call it sounds as if Officer Thomas is already out of the car when Ms. Ditollo says to the dispatcher that “The other guy is getting out to speak to my boyfriend”. Now Ms. Ditollo is a police dispatcher herself. She clearly knows the operator she’s speaking to. She is looking after the kids in the car. She is watching the action through the mirror on the visor. In her evidence she really does not describe any of the physical altercation at all and it may be that she was preoccupied with everything else that she was doing; the children and the 911 calls.

[30] I have carefully reviewed Ms. Ditollo’s evidence. She acknowledged the fact that she did not see all of the altercation between Thomas and Oraha and that she only saw some of the blows. The altercation was taking place behind her, and outside the car, while she remained inside Thomas’ car. Her primary concern was to look after the two children who were scared and upset. She was also on the telephone to the police dispatcher. She occasionally looked at the developing altercation, either in the small front seat visor mirror or when she glanced out the rear window. Ms. Ditollo’s examination in-chief, as a defence witness, focused almost entirely on the events leading up to the physical altercation. Defence counsel did not ask her about the altercation itself. It cannot be said, in all these circumstances, that the trial judge failed to consider or somehow misapprehended her evidence.

[31] As to the medical evidence concerning Oraha’s injuries, he was seen by two of the independent Crown witnesses holding one side of his face, immediately after the altercation. One of these witnesses also noticed swelling to the face. Oraha was taken to the hospital “spitting blood”, according to his own account. The officers who took him to the hospital, while under arrest and in handcuffs, understood that he was to be seen regarding his face or his jaw, as well as a complaint of injury to his leg. Two pages of hospital records were admitted in evidence on consent, for narrative purposes and without calling any of the medical personnel who actually saw Oraha at the emergency department. Parts of the records are illegible but they do state “left side facial injury”, as the reason for the visit, and “fracture jaw” as the discharge diagnosis. The emergency department referred Oraha to a specialist, Dr. Caminiti, who saw him two days later. Dr. Caminiti testified at trial. He found a fracture to the left side of the jaw as well as swelling associated with it. He wired the jaw shut. Oraha’s evidence was that most of the blows were to his “left cheek” but that he was also struck “many times” in the leg.

[32] It is hard to see how any of this evidence is exculpatory. It shows, in particular, that Oraha, suffered an injury or injuries to the left side of his face which were observed shortly after he says he was struck repeatedly in this area. Mr. Gold’s submission is really that there should have been more severe injuries, if the Crown witnesses’ accounts of numerous blows to the head and face were to be believed. The difficulty with this submission is that there was no evidence from Dr. Caminiti, or from any other expert witness, as to how many blows were required in order to cause the broken jaw and the swelling on the left side of the face. There was also no evidence as to whether this degree of injury was consistent with the two or three blows described by Thomas and inconsistent with the many more blows described by the Crown witnesses. There is simply an absence of evidence on this point, as opposed to exculpatory evidence that the trial judge failed to consider.

[33] For all these reasons, the second ground of appeal cannot succeed as the trial judge properly applied the principles in W.D.

D. LAY OPINION EVIDENCE

[34] The third ground of appeal relating to conviction concerns various lay opinions given by the five independent Crown witnesses. When describing the altercation between Oraha and Thomas, the witnesses occasionally lapsed into the realm of opinion or conclusion. These opinions are found both in their 911 calls and in their testimony. The Appellant submits that the opinions were inadmissible and that, in any event, the trial judge erred in relying on them.

[35] The examples of lay opinion relied by Mr. Gold include the following:

The witness Balkissoon, in response to a question about Thomas’s “demeanour”, testified that “his body language was very intimidating … He looked like he was like over the guy, like he was, very aggressive towards him”;
The witness Clarke described a conversation she had with Thomas at the scene, after the altercation was over. She testified that she was “pretty upset”, that Thomas explained to her that he was a police officer and that Oraha had “cut him off” while his family was in the car. She then called 911. In cross-examination, she was asked why she was “upset” and she replied: “Well if what I just seen was the truth, somebody cut you off and you think you need to punch them and do that, that’s not okay. That’s not the way you portray yourself to be a police officer. To me that’s abusing the law, your power, and that’s not okay with me”;
The witness Janes, in response to a question about Thomas’ and Oraha’s “demeanour”, testified as follows: “One’s very aggressive and the other’s just trying to defend himself”;
The witness Barbosa testified in-chief that once Oraha got out of his car, “the taller white [Thomas] started assaulting him. And by assaulting him I mean he was throwing his body into the vehicle and immediately started throwing punches … the person who was being assaulted never once tried to hit him back.” Barbosa was with his parents, his girlfriend, and his brother in their car. He spoke to the others in the car and suggested that they get out and try to help Oraha because “he needed to be protected”. In cross-examination, Barbosa was questioned about his various estimates as to the number of punches that he saw. He replied, “it could range between ten to twenty-five … there was no way there was two punches, you know what I’m saying, the guy was being heavily assaulted”. When asked in cross-examination whether he regarded what he had seen as “a serious event”, he replied, “it was definitely serious … I feared for the person who was being assaulted, because he was being brutally assaulted, period.”

[36] None of these instances of lay opinion were objected to. Indeed, a number of them were elicited in response to questions in cross-examination that appeared to invite an opinion or conclusion. Similarly, there were a number of lay opinions in the 911 calls that the Crown witnesses made from the scene, describing to the police dispatcher what they had seen. For example, Balkasoon’s call described Oraha as being “brutally assaulted” and Clarke’s call described Thomas as being “in a mad rage”. Clarke referred to Oraha by stating that “the guy wasn’t even defending himself”. The defence consented to the admissibility of the 911 calls, at least for the purpose of narrative, and they were played to various witnesses without objection. Two of the witnesses adopted their own calls as being the truth.

[37] I am satisfied that the above examples of lay opinion were all admissible. The 911 calls were clearly admissible, at a minimum, for the non-hearsay purpose of proving what the witnesses did as a result of what they saw and to infer their state of mind. The trial judge used the calls as circumstantial evidence, to infer that the witnesses were “concerned citizens”. Mr. Gold concedes that they are admissible for this limited purpose. See: R. v. Ly (1997), 1997 CanLII 330 (SCC), 119 C.C.C. (3d) 479 (S.C.C.); R. v. Wysochan (1930), 1930 CanLII 483 (SK CA), 54 C.C.C. 172 (Sask. C.A.); R. v. P (R.) (1990), 58 C.C.C. (3d) 334 at 341 (Ont. H.C.J.); Sopinka, Lederman, Bryant & Fuerst, The Law of Evidence in Canada, 2009 Lexis Nexis, 3rd Edition at pp. 236-245.

[38] As to the lay opinions actually given in evidence by the witnesses, while they testified, they fall squarely within the principles enunciated in R. v. Graat (1982), 1982 CanLII 33 (SCC), 2 C.C.C. (3d) 365 at 377-382 (S.C.C.). Dickson J., as he then was, gave the unanimous judgment of the Court concerning the permissible limits of lay opinion in a case where three police officers testified that the accused’s ability to drive was “impaired by alcohol” and where the trial judge relied on these opinions. Dickson J. stated the following:

We start with the reality that the law of evidence is burdened with a large number of cumbersome rules, with exclusions, and exceptions to the exclusions, and exceptions to the exceptions. The subjects upon which the non-expert witness is allowed to give opinion evidence is a lengthy one. The list mentioned in Sherrard v. Jacob, supra, is by no means exhaustive: (i) the identification of handwriting, persons and things; (ii) apparent age; (iii) the bodily plight or condition of a person, including death and illness; (iv) the emotional state of a person – e.g. whether distressed, angry, aggressive, affectionate or depressed; (v) the condition of things – e.g. worn, shabby, used or new; (vi) certain questions of value; and (vii) estimates of speed and distance;

Except for the sake of convenience there is little, if any, virtue, in any distinction resting on the tenuous, and frequently false, antithesis between fact and opinion. The line between “fact” and “opinion” is not clear.

The judge in the instant case was not in as good a position as the police officers or Mr. Wilson to determine the degree of Mr. Graat’s impairment or his ability to drive a motor vehicle. The witnesses had an opportunity for personal observation. They were in a position to give the Court real help. They were not settling the dispute. They were not deciding the matter the Court had to decide, the ultimate issue. The judge could accept all or part or none of their evidence. In the end he accepted the evidence of two of the police officers and paid little heed to the evidence of the third officer or of Mr. Wilson.

I agree with Professor Cross (at p. 443) that “The exclusions of opinion evidence on the ultimate issue can easily become something of a fetish”. I can see no reason in principle or in common sense why a lay witness should not be permitted to testify in the form of an opinion if, by doing so, he is able more accurately to express the facts he perceived.

Before this Court counsel for the appellant took the position that although opinion evidence by non-experts may be admissible where it is “necessary” the opinions of the police officers in this case were superfluous, irrelevant and inadmissible. I disagree. It is well established that a non-expert witness may give evidence that someone was intoxicated, just as he may give evidence of age, speed, identity or emotional state. This is because it may be difficult for the witness to narrate his factual observations individually. Drinking alcohol to the extent that one’s ability to drive is impaired is a degree of intoxication, and it is yet more difficult for a witness to narrate separately the individual facts that justify the inference, in either the witness or the trier of fact, that someone was intoxicated to some particular extent. If a witness is to be allowed to sum up concisely his observations by saying that someone was intoxicated, it is all the more necessary that he be permitted to aid the court further by saying that someone was intoxicated to a particular degree.

Nor is this a case for the exclusion of non-expert testimony because the matter calls for a specialist. It has long been accepted in our law that intoxication is not such an exceptional condition as would require a medical expert to diagnose it. An ordinary witness may give evidence of his opinion as to whether a person is drunk. This is not a matter where scientific, technical, or specialized testimony is necessary in order that the tribunal properly understands the relevant facts. Intoxication and impairment of driving ability are matters which the modern jury can intelligently resolve on the basis of common ordinary knowledge and experience. The guidance of an expert is unnecessary. [Emphasis added].

See also: Sopinka et al, The Law of Evidence in Canada, supra at pp. 771-777.

[39] The opinions proffered in the case at bar, as to who was “aggressive” and who was “passive”, are expressly referred to in Graat as admissible forms of lay opinion. Evidence of demeanour and emotional condition, such as being “upset” or being “in a mad rage”, are also common forms of lay opinion. Whenever the witnesses lapsed into stating conclusions about the character of the “assaults”, they always stated the factual basis for their conclusion. It was simply a convenient summary of factual evidence that the witness had already given or was about to give. Mr. Gold made the same argument that was rejected in Graat, namely, that an expert was required to give evidence about the degree and character of the force used. There is no authority for this submission. The question of who is the aggressor in a fight, who is not resisting or fighting back, and whether the degree of force is slight or severe ( or “heavy” or “brutal”) are all within the common knowledge and experience of lay witnesses.

[40] Mr. Gold’s alternative submission was that the trial judge misused the lay opinion evidence by relying on it at a number of points in his reasons. If the lay opinions were admissible, as I have found, the trial judge was entitled to rely on them, like the trial judge in Graat, as long as he did not give them undue weight. The three passages in the trial judge’s reasons, where he is said to have inappropriately relied on lay opinion, are the following:

And although findings of credibility are sometimes difficult to articulate, in this case the quality and the consistency of the evidence of the bystanders that I have referred to in describing the conduct of Officer Thomas, and describing it in the most damning terms, compels acceptance of that evidence or at least the general nature of it.

… all say in one way or another, that Officer Thomas beat the complainant in a manner that was by any measure well beyond any reasonable or justifiable level of violence. That evidence compels the conclusion that the Crown has proven its case and that the accused is guilty as charged. [Emphasis added].

[41] The above references, describing the assault as “unrelenting and quite brutal” or “describing it in the most damning terms” or referring to it as “by any measure well beyond any reasonable or justifiable level of violence”, are not quotes from any lay opinion evidence given by the five independent Crown witnesses. Rather, they appear to be conclusions drawn from the facts. Once it was established that Oraha was passive during the physical altercation and was not resisting, and that Thomas struck him many times with his fist and with his knee or foot, the descriptions set out above are simply inevitable conclusions of fact.

[42] I am satisfied that the third ground of appeal cannot succeed as the lay opinion evidence was admissible and was not misapplied by the trial judge. Accordingly, none of the grounds of appeal relating to conviction are well-founded and the conviction appeal must be dismissed.

E. SENTENCE

[43] The sentence appeal is the most difficult part of this case. The trial judge made strong findings to the effect that Oraha had frightened and endangered Thomas, his girlfriend, and his two young daughters, due to an extremely dangerous course of reckless driving at high speeds on a major highway. There is no issue that Thomas was subjected to rather extraordinary provocation. In addition, defence counsel led a powerful body of evidence at the sentencing hearing which established the following:

Thomas’ staff sergeant testified that the criminal charge against Thomas led to an immediate suspension of certain duties, pending trial. His firearm was taken from him, he was allowed no contact with prisoners, he carried out only administrative duties at the police station, and he was not eligible for overtime. He was “always very professional”, when performing these duties, according to the staff sergeant;
Ms. Gabriella Toth testified that she had been a school teacher in Toronto for thirty-seven years. She rose to the position of senior vice-principal at Weston Collegiate. This is a large high school in the Jane and Lawrence neighbourhood. It has 1,300 students from “sixty different ethnic backgrounds”. There were serious disciplinary problems at the school, with daily fights and bullying. In 2007, the School Board instituted a program in which police officers were placed in certain schools, to work with the vice-principals and the students on discipline issues. Thomas was the full-time resource officer at Weston Collegiate for two years and he and Ms. Toth worked closely together implementing this new program. She testified that there was initially “a lot of mistrust” amongst the students towards the new program. However, Thomas was “extremely well-spoken” and, within a few months, the students were “very comfortable having him in the hall”. He participated in counseling sessions with students and parents when he was on duty and in extra-curricular activities when he was off duty. Ms. Toth testified that he “worked extremely well with students” and she never saw “any evidence of him being aggressive or inappropriate”. Indeed, she asked him to come and help her at another school;
Angela McMillan testified that she taught drama and English at Weston Collegiate during Thomas’ tenure as the resource officer at the school. They developed a drama program together, involving role playing, in order to help build a relationship between the students and the police. About 225 students participated in this drama program during Thomas’ two years at the school. Many of the students came from countries and cultures where there was deep mistrust of the police. The role playing dealt with issues like domestic abuse, bullying, the use of force, and the role of the police. The students responded well and “really came to trust” Thomas. There had been protests outside the school, when the program involving police officers in the school was first introduced. It was very stressful for Thomas during these initial weeks but he “handled it with grace, calm, humility and humour”. Ms. McMillan saw Thomas “break up fights” and she saw students “really get in his face” but he always “managed to keep his cool”. She described herself as “very protective of my students” but she “admired” Thomas and felt that he was “always welcome”;
Mohamad Askary testified that he was a vice-principal at Weston Collegiate in 2009-2010. He described Thomas as “professional, dedicated and committed” with many of the “at risk kids” in the school. He won their trust and they would approach him in the halls. Thomas was also a trained paramedic and he once saved the life of a student who had been badly cut when his leg went through a window;
Thomas was forty-four years old at the time of sentencing. He was divorced but he paid regular child support and he was fully involved in raising his eight and eleven year old daughters. He has been a Toronto police officer for twelve years. Before joining the police he went to nursing college, became a certified paramedic, and worked in that field for several years. There are very few police officers who are also certified as advanced care paramedics;
Thomas was charged with discreditable conduct, under the Police Services Act, due to the incident that led to the present charge. A custodial sentence would lead to immediate suspension without pay and to commencement of proceedings seeking his dismissal. A non-custodial sentence could lead to loss of pay, reduction in rank, or dismissal.

[44] The Crown’s theory at trial had been that Thomas “pulled Mr. Oraha over for the purpose of giving him a beating in anger”. The trial judge did not accept this theory. Rather, he accepted Thomas and Ditollo’s evidence about the events that led up to the physical altercation. As a result, the nature of the offence that Thomas was convicted of had a number of mitigating, or less aggravating features, as follows:

Oraha’s driving was “outrageous” and caused an “ongoing situation of danger” to Thomas and his family. As a result, Thomas had lawful grounds to arrest Oraha, and did arrest him, in order to protect the safety of himself, his family, and members of the driving public on the highway;
Thomas and Ditollo called the police and asked uniform officers to attend at the scene, before Thomas got out of his car;
Oraha offered some initial resistance to the arrest, probably by raising his elbow, therefore justifying the use of some force. As the trial judge put it, “one or two blows” would probably have been justified;
Thomas admitted to the use of force, both by punches to the head and knee strikes to the leg. There was no cover-up or attempt to obstruct justice, as in some of the reported cases involving assaults by police officers. The only thing Thomas did not admit was the number of blows and Oraha’s lack of resistance as the altercation progressed;
The Crown conceded on appeal that the rather extraordinary provocation in this case, endangering Thomas and his family and the general public on a highway, is not found in any of the reported cases of assaults by police officers.

[45] In other words, the case involved an entirely lawful arrest, that was necessary in the public interest and that required some use of force, but it became unlawful because of excessive force applied in circumstances of considerable provocation. The Crown correctly acknowledged that the offence in the present case was not as serious as an assault on a prisoner and that a jail sentence was, therefore, not the only appropriate sentence.

[46] In terms of Thomas’ individual circumstances, the trial judge acknowledged a number of mitigating factors, as follows:

Thomas was a first offender;
There were no underlying character or disposition issues that would cause concern about future misconduct;
Thomas’ excessive force was spontaneous and was triggered by “significant provocation”;
There was no prior history of misconduct, indeed, Thomas’ personal history involved “long-standing and very positive contributions to the community”;
A “significant factor” was that Thomas had already suffered a loss of income and loss of reputation in the community, as a result of being charged;
Finally, there would be further employment consequences after the trial relating to Thomas’ “future career prospects”. The Crown had properly conceded that the prospect of loss of his career as a police officer was a factor that the trial judge could take into account, as long as it did not lead to “an unfit sentence”. See: R. v. Carson (2004), 2004 CanLII 21365 (ON CA), 185 C.C.C. (3d) 541 at para. 38 (Ont. C.A.); R. v. Blackburn (2004), 2004 CanLII 28908 (ON CA), 186 C.C.C. (3d) 51 at paras. 25 and 32 (Ont. C.A.).

[47] In terms of aggravating features, the trial judge emphasized the following three: as a police officer, Thomas was in a position of trust and he abused that trust; the victim suffered a significant injury with ongoing effects; the criminally culpable assault was not one or two blows, due to brief initial resistance to arrest, but rather it involved “multiple blows with significant force, and the victim put up no resistance and returned none of the blows”.

[48] In these circumstances, the trial judge concluded that the “discharge provisions would be inappropriate in this case” because the “gravity of this offence requires a far sterner message of denunciation”. The defence position on sentencing was that a discharge was appropriate. I agree with the trial judge in rejecting this position. He went on to hold that a jail sentence was required “to serve as a message of denunciation, both to this offender and to others, and to the community, so that the community knows that such conduct will not be tolerated and that there will be harsh consequences if that message is ignored.” He imposed the term of imprisonment requested by the Crown, namely, ninety days intermittent.

[49] There is now a substantial body of modern case law in this province holding that a custodial sentence is generally required in cases of assaults by police officers and court officers on prisoners, in order “to give sufficient weight to the principles of general deterrence and denunciation”. All of these cases involved some aggravating features such as: ongoing assaults by a group of officers; defenceless prisoners who were handcuffed or shackled; cover-ups with falsified notes and false reports; and the laying of charges against the innocent victim of the assault. Jail sentences of thirty days to sixty days intermittent have been held to be the “lenient” end of the range in such cases. See: R. v. Feeney (2008), 2008 ONCA 756, 238 C.C.C. (3d) 49 (Ont. C.A.); R. v. Byrne (2009), 2009 ONCA 134, 242 C.C.C. (3d) 201 (Ont. C.A.); R. v. Hudd (1999), 1999 CanLII 1734 (ON CA), 126 O.A.C. 350 (C.A.); R. v. Preston, [2005] O.J. No. 6450 (O.C.J.), aff’d [2008] O.J. No. 5136 (C.A.); R. v. Marji, 2012 ONSC 6336.

[50] There is no question that the ninety day jail sentence imposed by the trial judge was well within the appropriate range of sentence for assaults by police officers, in the above kind of case. There is also no question that the trial judge considered all relevant sentencing principles and did not fail to consider any of the mitigating and aggravating circumstances of this particular case. The only live issue on the appeal, in my view, is whether this was an exceptional case that called for a sentence outside the normal range. It is settled law that a “range” of sentence is simply a flexible guideline for the normal case. It assists in achieving “parity” in sentencing between comparable cases. However, it does not sacrifice “proportionality”. Particularly strong aggravating or mitigating circumstances will justify departures from the “range”. Furthermore, rare or unusual or exceptional cases, by definition, will always require a sentence outside the normal “range”. Otherwise, the sentence would not be “proportionate to the gravity of the offence and the degree of responsibility of the offender”, as required by s. 718.1 of the Criminal Code. See: R. v. Wright (2006), 2006 CanLII 40975 (ON CA), 216 C.C.C. (3d) 54 at paras. 16-24 (Ont. C.A.); R. v. Jacko and Manitowabi (2010), 2010 ONCA 452, 256 C.C.C. (3d) 113 at paras. 82 and 89-90 (Ont. C.A.).

[51] I would not interfere with the experienced trial judge’s exercise of discretion, in imposing a ninety day custodial sentence, solely on the basis that there were significant mitigating circumstances in this case relating to the offence (as set out above at para. 44). Police officers are trained to withstand provocation and, as professionals, they are expected to tolerate danger and abuse. In spite of the substantial mitigating circumstances relating to the offence, it remained a significant and somewhat prolonged beating of a passive victim who was not fighting back.

[52] What makes this case exceptional is the addition of further mitigating circumstances relating to the offender (as set out above at paras. 43 and 46). Thomas was an unusually skilled police officer who had served his community in an exceptional way, as explained by the witnesses who appeared at the sentencing hearing and who testified on his behalf. They knew about his conviction for assaulting Oraha and they, nevertheless, expressed their continued support. They are independent, experienced, and responsible voices from the community and their evidence must carry weight when determining the fit and appropriate sentence in this case.

[53] I am satisfied that this was an exceptional case and that it was an error in principle to impose a sentence within the normal range for the normal case. The powerful lists of mitigating circumstances set out above, relating both to the offence and to the offender, required a non-custodial sentence in order to give effect to the principle of “proportionality”. These circumstances meant that the present case was substantially different from the normal cases that are set out above in para. 49.

[54] The appropriate and fit sentence, in this unusual case, was a period of probation that included a substantial Community Service Order. Thomas is undoubtedly skilled at working with “at risk” youth and he should be required to carry out one hundred hours of C.S.O. work with such youth, either in schools or in community centres, during a one year period of probation. This will likely mean that he cannot work any overtime, as a police officer, for the next year and this will indirectly impose a further financial penalty. However, the C.S.O. work will repeatedly remind Thomas of his over-riding duties to the community. If he fails to complete the one hundred hour C.S.O. within one year, he will be in breach of probation.

[55] For all the above reasons, the sentence appeal is allowed, the sentence of ninety days imprisonment is set aside, and a sentence of one year probation with a hundred hour C.S.O. is substituted.

F. CONCLUSION

[56] In the result, the conviction appeal is dismissed, the sentence appeal is allowed, and the above sentence is imposed. Counsel will arrange for Thomas to attend at this Court and enter into the probation order that I have made.

M.A. Code J.

Released: December 3, 2012

Her Majesty the Queen v. Bryan Thomas, 2012 ONSC 6653

Case Summary

A. OVERVIEW

B. MISAPPREHENSION OF EVIDENCE

C. MISAPPLICAITON OF THE BURDEN OF PROOF

D. LAY OPINION EVIDENCE

E. SENTENCE

F. CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 3

Legislation 4