ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 0329/12 JJ
DATE: 20130531
B E T W E E N:
HER MAJESTY THE QUEEN
L. Perlmutter / P. Scrutton, Crown Counsel
- and -
GLENN WEDDELL
P. Brauti / R. Niman, Counsel for the Accused
HEARD: May 27-29, 31, 2013
Ellies J.
REASONS FOR DECISION
INTRODUCTION
[1] On June 26, 2010 Dorion Barton was injured during an encounter with the police while he was attending a G20 demonstration at Queen’s Park. As a result, he suffered a number of injuries, including a broken bone in his upper arm. The Crown alleges that Glenn Weddell was one of the officers that inflicted those injuries.
[2] There is no issue that Mr. Weddell was one of many police officers present that day and that he was involved in an encounter with Mr. Barton. The issue is whether he used unreasonable force against him.
EVIDENCE
[3] The Crown called two witnesses, including Mr. Barton. In addition, video footage taken by sources not revealed to me was introduced on consent, as were photographs taken by the second Crown witness, Mr. Wallace. Mr. Weddell was the sole defence witness. I will set a backdrop to the events in question with a brief reference to the evidence of all three of these witnesses, before turning to their evidence in more detail.
[4] Mr. Barton testified that he and a friend went to Queen’s Park on June 26 at about 4 p.m. out of a sense of curiosity. They were not part of any group or organized demonstration. He described the mood at that time as being “relaxed”. He saw that there were police present, who were wearing helmets, and carrying shields and batons. They had formed a line to the south of Queen’s Park.
[5] At one point, the police line opened up to allow a number of mounted police to come through. The G20 video shows what appears to be two people being knocked to the ground by the horses. Mr. Barton was facing east, taking photos of this scene at the time that he was hurt.
[6] Mr. Wallace is an amateur photographer who went to Queen’s Park on June 26 to take photos. Like Mr. Barton, he described the mood when he got there at about 2 or 3 p.m. as being relaxed. He testified that he noticed Mr. Barton shortly before Mr. Barton was injured, but the two of them were unknown to each other at that time. Also like Mr. Barton, Mr. Wallace’s attention was drawn to the area where the police and their horses had come through the line. He, too, was taking photos of the scene, but in Mr. Wallace’s case, they were being taken with a dedicated camera, rather than a cellphone.
[7] Mr. Weddell was unable to say exactly when he got to Queen’s Park, but it is likely that he got there before either Crown witness did. He was part of the Public Safety Unit at that time; a unit that consisted of about 300 full-time and part-time officers. Their function was to manage crowds where civil disobedience was a possibility, or worse – a reality. He and his unit had been involved in a clash with protestors elsewhere earlier that day and they had then been deployed to police headquarters on College Street to protect it from a crowd that was forming there. When that crowd moved to Queen’s Park, his unit followed.
[8] Mr. Weddell described a different scene at Queen’s Park than did Mr. Barton and Mr. Wallace. Mr. Weddell had been advised through his radio earpiece that the gathering at Queen’s Park had become unlawful. As a result, he was telling people gathered there to leave. He was unable to say whether those people were also being advised by a public address system. Mr. Barton testified that he heard no announcement to leave before he was injured.
[9] Mr. Weddell was part of the line of officers described by Mr. Barton that had formed south of a traffic island which is located where Queen’s Park Crescent converges into University Avenue, just north of College Street. Mr. Wallace was further north, standing on that grass-covered traffic island. Mr. Barton was in between.
[10] Mr. Barton testified that, as he was taking a picture of the scene with the horses, he was struck on his right side, the side that suffered the broken bone. He described that impact as the most significant of those he experienced that day. He testified that, as he was struck, he heard a loud, dull thud. He said that he thought that this blow was struck with a police shield because of the sound and the diffuse nature of the impact. Certainly, the photographs of the injury to his right side are consistent with a forceful, diffuse impact, although no expert evidence was called to establish this fact.
[11] Mr. Barton testified that the force of the blow knocked him to the ground. While he was on the ground, he felt several more blows, mostly to his upper body, before he was dragged away by the police. He testified that he was trampled, and that some of his injuries might have been caused this way. He was unable to say precisely where he was hit, by whom, with what, or what injury each impact caused, if any. He was also unable to say who struck the initial blow. That’s where Mr. Wallace comes in.
[12] Mr. Wallace testified in chief that he witnessed the entire interaction between Mr. Barton and the police. He testified that, after he turned his attention away from the mounted police, he saw Mr. Barton being “charged” by a police officer while Mr. Barton was taking photos with his phone. He said that the officer hit Mr. Barton with his shield, knocking him to the ground, and then hit him with his baton within a second or two. As a result of seeing this, Mr. Wallace began to take photos of what was taking place. These included two photographs of Mr. Weddell, whom Mr. Wallace identified as the perpetrator of the assaults.
[13] Mr. Weddell denies that he was the person who struck Mr. Barton with his shield at that time, or at all. He testified that, when he first noticed Mr. Barton, he was already on the ground. He has no knowledge as to how he got there. He also denies hitting Mr. Barton with his baton at any time.
[14] Mr. Weddell testified that it was his job as a line officer to move the protestors north. The police were set up such that there were arrest teams behind the line whose task it was to come up through the line, apprehend individuals who failed or refused to comply with instructions to move, and bring arrestees back through the line. Unless they were in custody, individuals were not to be behind the police line.
[15] Mr. Weddell testified that he approached Mr. Barton for the purpose of assisting him to get up and to get him out of the line’s path northward. He was on the left side of Mr. Barton as he used his right hand to grab him by the shirt. He told him to leave or he would be arrested. Mr. Weddell said that Mr. Barton fell onto the grass of the traffic island. Although he wanted to assist Mr. Barton to get up again, Mr. Barton was removed by an arrest team before he could do that.
ISSUES
[16] The Crown contends that Mr. Weddell may be found guilty of the two offences with which he has been charged, or the included offence of assault, on any or all of the following bases:
That he first knocked Mr. Barton to the ground with his shield and then struck him with his baton. This was the original Crown theory of liability.
That he first struck Mr. Barton with his shield while Mr. Barton was on the ground, and then struck him with his baton.
That he threw Mr. Barton onto the grass from the pavement, in which case the Crown concedes that the offence of assault with a weapon would not be made out and only a conviction for the included offence of assault on the count of assault causing bodily harm could result on the evidence before me.
[17] Each of these different theories of liability, and I use that term in the legal sense, without meaning to comment in any way at this point on their validity, involve events which happened at different times during the progression of events that took place on the day in question. Each one gives rise to additional or different issues, as I hope to demonstrate.
ANALYSIS
Theory 1: That Mr. Weddell Knocked Mr. Barton Down With His Shield And Then Struck Him With His Baton
[18] I will turn now to the first basis upon which the Crown argues Mr. Weddell can be convicted, namely that Mr. Weddell knocked Mr. Barton down with his shield and then hit him with his baton.
[19] The main issue arising from this theory is one of identification. It is based almost entirely on the evidence of Mr. Barton and Mr. Wallace. There is no video or photographic evidence which depicts the moment that Mr. Barton was knocked to the ground. All of that real evidence begins with him already being there.
[20] The evidence of Mr. Wallace is in direct contradiction to that of Mr. Weddell with respect to this allegation. Where an accused person testifies and denies the acts alleged, as Mr. Weddell did, the law requires me to acquit him if I believe his evidence, when viewed in the context of all of the other evidence. If I do not believe his evidence, I am still required to acquit where I am left with a reasonable doubt by that evidence, for example, where I am unable to determine whether to believe him or Mr. Wallace. Even where I am not left with a reasonable doubt by Mr. Weddell’s evidence, I must still acquit him if I am left with a reasonable doubt by all the other evidence. This legal framework is true with respect to all three theories of liability advanced by the Crown in this case. However, Mr. Weddell’s evidence is also pitted against the video evidence regarding the second theory of liability and almost exclusively against that evidence regarding the third.
[21] I do have some concerns with Mr. Waddell’s evidence. As he said himself, prior to being charged and to reviewing the Crown disclosure, he had no recollection of having any contact with Mr. Barton. He has had to reconstruct much of what occurred that day by viewing the photographs and videos. As a result, there is a risk that his memory may have been affected by what he saw on them. However, with respect to this part of the events of June 26, I accept his evidence and reject that of Mr. Wallace. I believe him when he says he did not strike Mr. Barton with his shield and knock him to the ground. That is something that I think he would remember. I have no difficulty accepting that evidence over the evidence of Mr. Wallace.
[22] While I do not agree with the defence submission that Mr. Wallace lied, it is certainly true that both his credibility and his reliability as a witness fall short of what would be required to cause me to disbelieve Mr. Weddell. I will deal first with Mr. Wallace’s reliability as a witness.
[23] In his evidence in-chief and in his evidence at the preliminary inquiry, Mr. Wallace testified that Mr. Barton was knocked to the ground by Mr. Weddell and that he landed on the grass-covered traffic island, not far from where Mr. Wallace is shown taking photographs in the G20 video. He also testified that Mr. Barton was only knocked down once. However, when confronted during cross-examination with the Barton video, which clearly shows that Mr. Barton was first down on the pavement and then moved by the police onto the grass to the north, Mr. Wallace was unable to explain how this could be if he witnessed the entire event, as he said he did. At first he testified that the events that he says he witnessed had not yet happened at the time the video was taken. Then he testified that they must have already happened before the video began. His uncertainty casts doubt on all of his evidence.
[24] There were other things that I find made Mr. Wallace an unreliable witness. One was his evidence about how Mr. Weddell was holding his shield and his baton. He was asked by the Crown to demonstrate what he saw. He gave two different demonstrations. In one, the shield was in his right hand and the baton in his left. In the other, they were reversed. When asked to clarify, he said he believed that the shield was in the officer’s right hand and the baton in his left. This is contradicted by all of the real evidence. Mr. Wallace’s evidence in this respect causes me to question the validity of his identification of Mr. Weddell as the perpetrator. The photos taken by Mr. Wallace himself, for example number 19, do show officers in proximity to Mr. Weddell holding their shield with their right hand and their baton with their left.
[25] Several things in the evidence reflected badly on Mr. Wallace’s credibility, as well. One of them is the fact that he deleted a photograph from those that he later turned over to Mr. Barton. While being cross-examined, Mr. Wallace testified that he did not delete any photographs of the events that occurred that day involving Mr. Barton. However, he was then confronted with the fact that the sequential numbers on the digital version of the photographs he took show one photograph missing, namely a photograph that would have been taken between the time he finished taking pictures of the police on horseback and began taking pictures of what was happening with Mr. Barton. While I think it’s a stretch to say, as the defence did, that the photo must have been exculpatory, it is difficult to understand why Mr. Wallace would delete any photographs and then say that he didn’t. The Crown concedes that the deletion must have occurred after the events involving Mr. Barton had ended, as the videos and photos themselves show that the photos were taken in rapid succession, as Mr. Wallace indicated. Mr. Wallace also testified that he was upset by what he had seen and was determined to capture it digitally and to get the photos to the victim. He understood the importance of the photographs as evidence. Why then, would he delete any of them and how could he forget that he did? He offered no explanation.
[26] Mr. Wallace’s credibility was also affected by the animosity he displayed towards the police while testifying. I don’t believe that he came here to knowingly falsely accuse Mr. Weddell or to purposely mislead the court. But I do believe that his ability to perceive the events at the time they occurred and his ability to recall and to recount them here has been tainted by the experience he had when he was wrongfully accused of sexual assault more than fifteen years ago. Although he testified in chief that he bore the police no ill-will, he testified in cross-examination that being charged was itself like being sexually assaulted and accused defense counsel of doing the same thing by cross-examining him in the fashion he was. Those are extreme statements which undermine his credibility with respect what he says he saw on June 26, 2010.
[27] Another extreme statement was made by Mr. Wallace when he testified during cross-examination that it was easier to recognize the faces of police officers wearing full riot gear, including helmets and face shields, than when they are not. This statement doesn’t coincide with common sense and the fact that he said it when his identification evidence was challenged is also harmful to his credibility.
[28] For these reasons, I reject Mr. Wallace’s evidence that Mr. Weddell struck Mr. Barton with his shield while Mr. Barton was standing. As I have no reason to reject Mr. Weddell’s evidence on this point, I accept it. There will no conviction based on this allegation.
[29] I will deal with the allegation that Mr. Weddell struck Mr. Barton with his baton now, as I address the Crown’s second theory of liability, because both the first and the second theories include this allegation.
Theory 2: That Mr. Weddell Hit Mr. Barton With His Shield And His Baton While Mr. Barton Was On The Ground
[30] The Crown argues that Mr. Weddell can also be convicted of both counts on the basis that he struck Mr. Barton with his shield and with his baton after he was on the ground. In support of that argument, it relies in part on the evidence of the Crown witnesses, but mainly on the Barton video. It argues that the video shows Mr. Weddell striking Mr. Barton with his shield and shows Mr. Weddell’s baton being moved upward in a way that resulted in a blow that is not shown on the video.
[31] Mr. Weddell testified that the only contact his shield had with Mr. Barton was as he bent down to help him up. He said that he kept his shield in front of him because he did not know what threat Mr. Barton posed. As he bent down, he said, his shield may have had what one of the lawyers called “incidental” contact with Mr. Barton, but he did not strike Mr. Barton with the shield.
[32] In addition to the many times that I viewed the Barton video during the trial, I have watched it many times since. I will confess that on some of those occasions, it does appear to me that there was more than incidental contact between Mr. Weddell’s shield and Mr. Barton’s right arm. On others, however, I am not sure. The problem is with the quality of the video. At the crucial moment, the camera drops down, as if it was struck itself. The field of view drops with it, most of the scene disappears, and I am left trying to determine what happened from only a small part of it.
[33] I am also concerned that the downward motion of the camera at the crucial moment gives a false impression of the force with which the shield came into contact with Mr. Barton. Because of this, I cannot be satisfied beyond a reasonable doubt that this it was used with any force at all. Even if I could be, I would have difficulty finding that it caused bodily harm based on that video and the other evidence.
[34] Although his evidence concerning what he sees in the Barton video is not at all relevant to what I see, I am comforted somewhat in my ruling by the fact that Mr. Barton himself could not see a blow being struck by a shield in that video. I am also mindful of the evidence of Mr. Wallace, who never said he saw Mr. Weddell strike Mr. Barton with his shield while Mr. Barton was on the ground.
[35] With respect to the allegation that Mr. Weddell struck Mr. Barton with his baton, the Barton video is no more helpful. It shows Mr. Weddell moving the baton upwards and inwards towards the centre of his own body. The baton then disappears out of sight because the camera is pointed to the right, being towards the west, before returning to focus on Mr. Barton. The Crown argues that this movement is consistent with the baton being brandished at first and then being used to strike Mr. Barton. I disagree.
[36] Mr. Weddell testified that, in order to assist Mr. Barton up, he transferred the baton from his right hand to his left hand, where he was also holding his shield. He then picked Mr. Barton up by grabbing his t-shirt. In fact, when the video again shows Mr. Weddell and Mr. Barton a second or so after they nearly disappear from sight, that is exactly what is happening: Mr. Barton is being held by Mr. Weddell, and then another officer, and is moved from the pavement unto the grass. The baton is out of his right hand. In my opinion, this is more consistent with Mr. Weddell’s evidence than with the Crown’s theory, because of the very short period of time between the view of the baton being moved upward and Mr. Weddell grabbing Mr. Barton by the shirt.
[37] For these reasons, no conviction will result based on these allegations. I turn now to the last allegation.
Theory 3: That Mr. Weddell Assaulted Mr. Barton By Throwing Him Onto The Grass
[38] What the Barton video doesn’t do with respect to the Crown’s second basis for liability, it does with respect to the third. The video clearly shows Mr. Weddell and another officer moving Mr. Barton from the pavement onto the grass covered traffic island. The Crown conceded at the outset of the trial that the police had lawful authority to move people north, which is the direction in which Mr. Barton was moved. The question is, was he moved there with more force than was reasonable?
[39] Mr. Weddell denied that he and the other officer “hurled” Mr. Barton on the grass. He testified that he was simply trying to assist Mr. Barton to his feet. I have some doubt about that when I watch the video. It appears that force was being used. And I might be persuaded that the force used by Mr. Weddell to move Mr. Barton was excessive, but for two things. For one, there was another officer who had a hold of Mr. Barton at the time and it is impossible for me to determine how much force was applied by each. I do note, however, that the second officer had a hold of Mr. Barton’s arm, and not just his t-shirt and seems to have been using more force than Mr. Weddell, given the way that officer’s body reacted after letting Mr. Barton go.
[40] I have not been asked to find Mr. Weddell guilty as a party with respect to this allegation, and I think quite fairly so. Even if I had been, I would not, because of something else that is clear from the video. As he was being held and moved by the two officers, Mr. Barton tripped over the curb between the pavement and the traffic island, landing immediately after on the traffic island. I believe that this played a significant role in the fact that he appears to have been thrown, rather than simply moved, onto the grass from which he was then taken by the arrest team.
[41] For these reasons, I am left with a reasonable doubt that Mr. Weddell used more force than was reasonable in moving Mr. Barton and there will be no conviction based on this allegation.
CONCLUSION
[42] In the end, I am not satisfied beyond any reasonable doubt that convictions should be entered on any basis. Therefore, acquittals will be entered on both counts.
Ellies J.
Released: 20130531
COURT FILE NO.: 0329/12 JJ
DATE: 20130531
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
GLENN WEDDELL
REASONS FOR decision
Ellies J.
Released: 20130531