CITATION: R. v. Allen, 2015 ONSC 2594
COURT FILE NO.: CRIM 678/13
DATE: 2015/04/20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
J.W. Leising, for the Crown
- and -
THEODORE ALLEN
Olivia Balanga, counsel for Theodore Allen
HEARD: April 15, 2015
REASONS FOR JUDGMENT
Fairburn J.
Overview
[1] Theodore Allen and Travon Moulton were jointly charged with trafficking in cocaine, contrary to s. 5(2) of the Controlled Drugs and Substances Act. Travon Moulton was also individually charged with: (1) obstructing a peace officer in the execution of his duties, contrary to s. 129(a) of the Criminal Code; and (2) assaulting a peace officer (Constable Holder) engaged in the course of his duties, contrary to s. 270(1)(a) of the Criminal Code. Mr. Allen was individually charged with assaulting a peace officer (Officer Brabant) engaged in the execution of his duties, contrary to s. 270(1)(a) of the Criminal Code.
[2] The accused brought a motion pursuant to s. 24(2) of the Charter to exclude the evidence gathered as a result of a search of a room at the Motel 6 on Steelwell Road in Brampton. They alleged ss. 8, 9, 10(a), and (b) breaches. The Charter voir dire was heard January 26, 27, and 28, 2015. The Crown called two witnesses on the voir dire: Officers Holder and Brabant. The accused did not testify. It was agreed by all that, if a trial proceeded following the Charter voir dire, the evidence from the voir dire would apply to the trial proper.
[3] On February 17, 2015, I released the Charter ruling: R. v. Moulton, 2015 ONSC 1047. I found four Charter breaches: (1) arbitrary detentions; (2) a failure to afford the accused with their ss. 10(a) and (b) rights; (3) unlawful pat-down searches; and (4) a warrantless and unreasonable search of the hotel room they were using. I excluded the evidence under s. 24(2) of the Charter.
[4] In light of the Charter findings, the Crown invited the court to enter acquittals on counts one, two, and three on the indictment. I did this on February 18, 2015. This left count four to be dealt with at the trial proper. This count pertains to Mr. Allen’s alleged assault of Constable Shawn Brabant, a peace officer with the Peel Regional Police Service, at a time when he was engaged in the execution of his duty, contrary s. 270(1)(a) of the Criminal Code.
[5] The matter was put over to April 15, 2015, for submissions as to whether the Crown has proven the guilt of the accused beyond a reasonable doubt. Following argument, and an adjournment for a few hours, I convicted Mr. Allen with full reasons to follow.
[6] These are my reasons for finding Mr. Allen guilty of the lesser and included offence of assault.
The Evidence of Officers Brabant and Holder
[7] As agreed by counsel at the outset of this matter, the evidence led on the Charter voir dire applies to the trial proper. The facts were reviewed in some detail in my Charter ruling. I do not intend to revisit them all, except to the extent that they relate directly to count four and to provide some context for these reasons.
[8] Mr. Allen and Mr. Moulton were using a room at the Motel 6 in Brampton. This is a location known to be frequented by those engaged in drug, prostitution, and gang activities. During the evening of March 22, 2013, Officers Brabant and Holder attended at this location as part of the Strategic and Targeted Enforcement Program (S.T.E.P.). Like on previous occasions, the officers attended at the front desk area of the Motel 6 and obtained a copy of the guest register. They then started to walk the halls. When dealing with a man playing loud music on the third floor, both officers saw two men, who they would later determine to be Mr. Moulton and Mr. Allen, coming and going from a room further down the hallway.
[9] After the officers finished with the occupant playing the music, they were positioned close to the elevator on the third floor. Mr. Moulton and Mr. Allen approached that area. The officers engaged them in a discussion. They were patted down and a cardkey for room 324 was eventually located on the ground close to where Mr. Moulton was standing. The key was used by Officer Holder to open room 324. Crack cocaine and drug paraphernalia was seen by Officer Holder, who then told Officer Brabant that the accused were arrestable for drugs. Almost simultaneous with Officer Holder saying this, the accused started to run. Both officers took pursuit, Officer Holder after Mr. Moulton and Officer Brabant after Mr. Allen.
[10] What follows is an excerpt of facts taken from paragraphs 38-44 of my Charter ruling, as they pertain to the assault of Officer Brabant. Where necessary, the facts have been supplemented to further explain the relevant issues for determination on trial.
[11] Officer Brabant testified that he took pursuit after Mr. Allen as he ran down the hallway. He caught up to him before he reached the end of the hallway and grabbed him by the right shoulder and swung him around, at which point Mr. Allen punched Officer Brabant twice in the face. The officer then punched him back, also in the face three times. All the while the officer was yelling, “you are under arrest”, “stop resisting”.
[12] They struggled on their feet and then Officer Brabant grounded Mr. Allen by throwing him to the ground. Mr. Allen managed to get back up almost right away. More punches were exchanged. Officer Brabant acknowledged in cross-examination that he was punching as hard as he could. Officer Brabant’s radio fell out during the struggle and when he went to reach for it to call for help, Mr. Allen got onto the officer’s back and placed him in a “choke-hold”. He was only able to say “help” before he was placed in the choke-hold, which lasted for 30-60 seconds.
[13] Officer Brabant testified that he managed to get his hands up under Allen’s hands, just enough to keep the pressure off of his neck so that he did not pass out – although he was starting to see stars and feared for his life. He was eventually able to pry Mr. Allen’s hands off of his neck. In cross-examination he testified that at one point he felt that Allen was attempting to get at his weapon. While he did not have an opportunity to do so, he contemplated reaching for his gun and shooting him because he thought that “he may die there”. When asked why he did not try to get to his gun, he said that he knew that if he had let go of the choke-hold, he may pass out.
[14] Officer Brabant also implored a woman who had emerged from a room with only her bra and underwear on, and who appeared to be filming the incident, to get him help. According to Brabant, she did not seem interested in helping him. Eventually Officer Brabant was able to get on top of Mr. Allen. He was not complying with the officer’s commands to put his hands behind his back and so the officer punched him again. Mr. Allen said something to the effect of, “it is over”.
[15] Officer Holder, who had taken pursuit down the stairs after Moulton, testified that he heard Brabant’s call for “help”. Holder ran back up to provide Brabant with assistance. He said that it took less than a minute to get to Brabant after he heard the cry for help. When he arrived, he found the scantily clad woman behaving in a rather hysterical fashion. She was, indeed, filming the incident. He also found Brabant lying on top of Mr. Allen and it appeared as if Mr. Allen was refusing to be cuffed. Officer Brabant told Officer Holder that he needed his help in handcuffing Mr. Allen. Officer Holder testified that Officer Brabant appeared sweaty and in distress. He testified that his partner was in great physical shape and seeing him tired and in need of assistance suggested to him that Officer Brabant really needed his help in getting Mr. Allen cuffed.
[16] Officer Brabant was asked in cross-examination how he was feeling when Officer Holder arrived to assist. He said that he was shaken up, upset, and angry. At that point, Officer Brabant testified that there were a number of people in the hallway and he was attempting to get some privacy. After he was handcuffed, Mr. Allen was taken to room 324 and placed in a chair. During the struggle Mr. Allen was advised he was under arrest. At 10:20 p.m., once in the room, Mr. Allen was cautioned and given his right to counsel.
[17] Officer Brabant was asked in cross-examination whether there was any point during the altercation that Mr. Allen could have fled. He testified that he could have fled at any point if he was able to get the upper hand. The officer was trying to hang on as best as he could. Officer Brabant testified that at the point he was going for his radio, he was sure that Mr. Allen could have fled. Instead, he got onto the officer’s back and placed him in a choke-hold.
[18] After Mr. Allen had been taken to room 324, Officer Holder interviewed the woman who appeared to have been making the video. Her name is Karen Beverly Marsh and she gave the officer what she said was her residential address. She also gave him three telephone numbers. Officer Holder asked Ms. Marsh for a copy of the video and she denied this request. She was asked if she would attend at the police station to provide a statement and again said no. She told Officer Holder that once the defence lawyers received the video, the police could have a copy. The police never received a copy of the video.
[19] Officer Holder attempted to call Ms. Marsh on the three numbers she had given him, but none of the numbers yielded results. He testified that his attempts to contact Ms. Marsh occurred close to the time of the “discovery”.[^1] He testified that he had given Ms. Marsh his phone number and hoped she would get in touch with him, but she did not do so. Officer Holder did not attend at the residential address she had given, or have another officer attend at that location. He did not believe she lived there, but gave no reason why he had formed this view. He spoke with Ms. Marsh because he wanted to ensure that it did not look like the police were hiding anything and, in his view, it would have been “great” to have the video.
[20] I was informed by counsel during submissions that when the police were unsuccessful in getting the video, the defence got a subpoena for Ms. Marsh. Counsel to Mr. Allen spoke to Ms. Marsh, but she did not attend at the preliminary inquiry. Apparently she told counsel she was in and out of the country. It would appear that she never produced the video (if one exists) to either the police or defence.
[21] Allen was taken to the hospital following the incident. Pictures of his face were filed as an exhibit on the voir dire. He had a swollen face, bloody lips, and a bump on his forehead (which appears bandaged in the exhibit). According to Officer Brabant, he also attended at the hospital with a minor swelling to the right side of his face, a sore jaw, and cut to his right middle finger. Because of a concern about bleeding and cross-contamination of blood during the struggle with Mr. Allen, he spoke to a nurse. He was informed that, given the amount of blood exchanged, it was highly unlikely that he had contracted anything. He had recently had a tetanus shot. He made what he described as an “informed decision” not to take a drug cocktail to address any consequences that may result from the potential exchange of blood. Officer Holder also testified that Officer Brabant was advised that he did not require medical attention.
[22] Officer Brabant testified that he is 5’9’’ and about 220 pounds. He thought Mr. Allen was a bit taller than him, but lighter, at around 170 to 175 pounds. In cross-examination he was confronted with a CPIC entry that suggested Mr. Allen is 170 cm in height (which I calculate to be about 5’7’’) and 68 kg in weight (which I calculate to be about 150 pounds). Officer Brabant did not accept that this was necessarily an accurate reflection of Mr. Allen’s weight and height. He also testified that the fact someone is smaller than him does not mean they are not a better fighter. No evidence was led as to Mr. Allen’s actual weight and height at the time of the incident on March 22, 2013.
Findings of Fact
[23] Mr. Allen did not testify. He was under no obligation to do so and I take nothing from this fact. The s. 7 constitutionally protected right to silence precludes the trier of fact from taking the accused’s silence into account when determining whether the Crown has met its onus. As noted in both Noble and Prokofiew, the accused’s silence cannot be used as a makeweight for the Crown’s case. In short, the accused’s silence is not positive evidence of guilt: R. v. Prokofiew, 2012 SCC 49 at paras. 4, 11, 21, 26 [Prokofiew]; R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874. [1997] S.C.J. No. 40 at paras. 53, 75, 94.
[24] While an accused’s silence cannot be taken into account as evidence of guilt, a decision not to testify will sometimes have the practical effect of leaving the Crown’s evidence uncontradicted. That is what happened in this case. The evidence of both Officers Holder and Brabant stand unchallenged by other evidence. While evidence that is uncontradicted does not mean that it must be accepted as true, in making credibility and reliability assessments, the fact that the evidence stands uncontradicted can be taken into account by the trier of fact: Prokofiew, at para. 11; R. v. Rojas, 2008 SCC 56 at para. 25.
[25] I find that Officers Brabant and Holder gave entirely credible and reliable evidence. Officer Brabant testified in a careful way. When he was asked a question he was not sure about, he took the time to check his notes before responding. He struck me as an honest witness who had a very good memory of the events in the hallway during the evening of March 22, 2013. His evidence had an internal logic about it. Moreover, he did not attempt to minimize his own emotional reaction at the time of the incident. He freely acknowledged that he was “angry” about what Mr. Allen had done.
[26] Anger is an understandable reaction to being struck in the face and strangled. At the same time, one can imagine that a police officer might not want to acknowledge that he was angry, lest he appear less than professional or acting unreasonably. Officer Brabant’s candour in response to this issue underscores his credibility. I accept the entirety of his evidence as credible and reliable.
[27] As for Officer Holder, I make a similar finding. His evidence was also given in a straight-forward and careful way. He consulted his notes when he was unsure of an answer. He was not prone to exageration. He agreed with certain propositions put in cross-examination and disagreed with others. Like Officer Brabant, he seemed intent on giving an entirely truthful and accurate account of the observations he made in the hallway. I believe his evidence to be true.
Assaulting a Peace Officer: Section 270(1)(a) of the Criminal Code
[28] Section 270(1)(a) of the Criminal Code makes it an offence to assault a peace officer engaged in the execution of his or her duty. Part of the actus reus for this offence is that the officer is acting in the lawful course of his or her duties when the assault occurs: R. v. Delong, 1989 CanLII 7164 (ON CA), [1989] O.J. No. 206, 31 O.A.C. 339 (C.A.), at para. 18, 43, 49 [Delong]; R. v. Wilhelm, 2014 ONSC 1637, at paras. 104, 143-44; R. v. Zargar, 2014 ONSC 1415, at para. 17 [Zargar]; R. v. Plamondon, 1997 CanLII 3175 (BC CA), [1997] B.C.J. No. 2757, 121 C.C.C (3d) 314 (C.A.), at para. 29 [Plamondon]; R. v. Pinto, [2003] O.J. No. 5172, [2003] O.T.C. 1095 (Sup. Ct.) [Pinto] at para. 66; R. v. Boston, 2014 ONSC 4457, at para. 6; R. v. Carney, 2010 ONCJ 327, at paras. 17-18.
[29] The phrase – “execution of his duty” – does not simply refer to an officer “on duty”. As Rosenberg J.A. held in Backhouse, to fall within this term, an officer must be acting in accordance with the powers conferred upon peace officers under statute and common law: R. v. Backhouse, 2005 CanLII 4937 (ON CA), [2005] O.J. No. 754, 195 O.A.C. 80 (C.A.), at paras. 100-1. The wording “execution of his duty”, found in s. 270(1)(a), is also found within the obstruct provision under s. 129 of the Criminal Code. As noted by Moldaver J.A. (as he then was) in R. v. Lauda (1999), 1999 CanLII 970 (ON CA), 136 C.C.C. (3d) 358, 121 O.A.C. 365 (C.A.), at paras. 106-7, where the police are unlawfully trespassing on private property at the time of an attempted arrest, they are not “acting in the lawful execution of duty” and this necessary element of the offence of obstruct justice cannot be proven by the Crown (see also: R. v. Custer, 1984 CanLII 2586 (SK CA), [1984] S.J. No. 438, 12 C.C.C. (3d) 372 (C.A.), at paras. 25, 30).
[30] There is also a significant body of law arising from s. 270(1)(b) of the Criminal Code, involving the assault of peace officers in order to prevent a “lawful arrest or detention”. As noted by Rosenberg J.A. in Plummer, the lawfulness of the arrest is part of the actus reus of this offence: R. v. Plummer, 2006 CanLII 38165 (ON CA), [2006] O.J. No. 4530, 217 O.A.C. 201, at para. 48-49 [Plummer]. As such, if the Crown cannot prove the lawfulness of the arrest beyond a reasonable doubt, the offence cannot be made out.
[31] While s. 270(1)(b) includes the word “lawful arrest” within the wording of the statute, making it an offence to assault a peace officer in this context, the absence of the word “lawful” from s. 270(1)(a) matters not. In proceedings under s. 270(1)(a), the common law insists that the assault occur while the officer is engaged in the “[lawful] execution of his duty”. In other words, the Crown has the burden of proving beyond a reasonable doubt that the peace officer was acting lawfully under both ss. 270(1)(a) and (b) of the Criminal Code: Delong, at paras. 44, 48; Zargar, at para. 17.
[32] Where the assault occurs in the context of a Charter breach, the Crown will not be able to establish this element of the s. 270(1)(a) offence because the officer will not be acting in the lawful execution of duty: Delong, at paras. 48-49; Pinto, at para. 66; Plamondon, at para. 29; Zargar, at para. 17. This is equally true of the s. 270(1)(b) offence, where the accused assaults an officer in the context of an arrest. If the arrest is unlawful, then the Crown cannot meet this necessary element of the offence: Plummer, at paras. 48-49; see also: R. v. Richards, 1999 CanLII 1602 (ON CA), [1999] O.J. No. 1420, 120 O.A.C. 344, at paras. 13.
[33] Mr. Leising, for the Crown, takes the position that, having regard to the four Charter breaches found by the Court, the Crown cannot prove that the police were engaged in the lawful execution of their dutes when Mr. Allen assaulted Officer Brabant. As such, the Crown does not ask for a conviction under s. 270(1)(a). Rather, the Court is asked to convict of the lesser and included offence of assault pursuant to s. 265 of the Criminal Code.
[34] As set out in my prior ruling, there was an unlawful detention resulting in a s. 9 Charter breach, a failure to tell the accused about the reason for their detention and give them the right to counsel resulting in ss. 10(a) and (b) breaches, unreasonable pat-down searches and an unreasonable search of room 324, resulting in s.8 breaches. There is a clear temporal and geographical nexus between the Charter breaches and Officer Brabant’s attempt to arrest Mr. Allen. Based on my earlier findings, the police were clearly exceeding their lawful authority leading up to the moment the grounds to arrest chrystalized. As testified to by Officer Brabant, the accused ran simultaneous with room 324 being opened and Officer Holder sharing his observations that the accused were arrestable for drugs. I gather it is this that the Crown looks to in taking the position that he cannot prove Officer Brabant was in the lawful execution of his duty when he attempted to arrest Mr. Allen. Instead, the Crown invites a conviction for assault simpliciter.
[35] I therefore now turn to consider whether the Crown has proven assault simpliciter.
Assault: Section 265 of the Criminal Code and Self-Defence
[36] Assault is a lesser and included offence to assaulting a peace officer. If the elements of assault are proven, but the officer is not engaged in the lawful execution of his or her duties, the accused can be convicted of the lesser offence of assault: Plummer, at paras. 48-49; Plamondon, at paras. 36-38, 45; R. v. Kresko, [2013] O.J. No. 1523, 2013 ONSC 1159, at para. 249.
[37] As I understand it, there is no dispute in this case that Mr. Allen assaulted Officer Brabant. I agree. Punching the officer in the face and strangling him constitutes an intentional application of force. There was clearly no consent from the officer. The offence of assault is therefore made out. Counsel are ad idem that the real question in this case is whether Mr. Allen was acting in self-defence when he assaulted Officer Brabant.
[38] In Plummer, Rosenberg J.A. concluded that where an accused is unlawfully arrested, he or she can resist the arrest with the use of force, provided the force applied was “no more than necessary to defend himself”: at para. 49 (see also: Gentles v. Toronto (City) Non-Profit Housing Corp., 2010 ONCA 797, at para. 132). The Crown takes the position that, bearing in mind the Charter conclusions reached, while Officer Brabant may have been acting outside of the lawful execution of his duties at the time he attempted to arrest Mr. Allen, the accused was not acting in self-defence when he punched Officer Brabant in the face and strangled him. Rather, he was endeavouring to get away from the officer. Mr. Allen takes the position that he was acting in self-defence and all of his actions were a proportionate response to the assault by Officer Brabant, which was excessive in nature.
Self-Defence
[39] On March 11, 2013, ss. 34, 35, and 37 of the Criminal Code, representing a previously complex web of provisions pertaining to self-defence, enjoyed an overhaul: R. v. Pandurevic, 2013 ONSC 2978, at paras. 9-10, 17-20. A newly enacted s. 34 emerged, designed to deal with all forms of defence of the person. (Defence of property has been consolidated under s. 35 of the Criminal Code.) The offence in this case is alleged to have occurred on March 22, 2013, 11 days after the new s. 34 came into force. Accordingly, the new s. 34 clearly applies.
[40] For ease of reference, s. 34 reads:
Defence — use or threat of force
- (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.
[41] Self-defence is a justification for the use of force to resist force or threatened force. Where an individual reasonably believes that force is being used against him or her, and “responds reasonably for the purpose of self-defence”, s. 34(1) can provide a full justification for his or her actions: R. v. Ryan, 2013 SCC 3 at para. 25; R. v. Kerr, 2004 SCC 44 at para. 93. Self-defence does not excuse one’s conduct, but does justify it from a criminal perspective. The Crown must prove beyond a reasonable doubt that the accused was not acting in self-defence: R. v. Cinous, 2002 SCC 29, at para. 39.
[42] The Crown takes the position that s. 34(1)(b) is dispositive of the live issue in this case. The Crown says that, pursuant to s. 34(1)(b), the assault by the accused may only be “committed for the purpose of defending or protecting” oneself from the application of force. Mr. Leising places emphasis on the words “for the purpose” in s. 34(1)(b), saying that the only basis upon which the accused’s assault will be justified is where it is committed for the sole or dominant purpose of defending and protecting himself. Mr. Leising’s position is that the only evidence before the court is that Mr. Allen applied force to Officer Brabant in an effort to resist arrest and escape, rather than to defend himself from the application of force.
[43] As a first alternative argument, Mr. Leising says that s. 34(3) removes self-defence from Mr. Allen because he has provided no evidence that would meet the statutory requirement that he believed “on reasonable grounds that the other person [Officer Brabant] was acting unlawfully”. As a final alternative argument, Mr. Leising says that, considering the criteria under s. 34(2), the assault committed by Mr. Allen was not reasonable in the circumstances.
[44] The defence argument focussed largely on what Ms. Balanga said was a reasonable response on the part of Mr. Allen to the force applied by Officer Brabant. She argued that, while it is difficult to guage Mr. Allen’s state of mind, given that he did not testify, I should take from the surrounding circumstances, and in particular the physical injuries suffered by Mr. Allen, that Officer Brabant was not using lawful force in attempting to subdue Mr. Allen. I take from this submission that the defence is suggesting that I should infer that Mr. Allen’s purpose was to protect himself from the force applied by Officer Brabant and that he believed Officer Brabant was not acting lawfully in the circumstances.
Findings on Self-Defence
[45] I am satisfied beyond a reasonble doubt that Mr. Allen was not acting in self-defence when he assaulted Officer Brabant.
[46] Going back to the statutory criteria within s. 34(1) of the Code, the Crown appears to accept that under (a), Mr. Allen believed on reasonable grounds that force was being used against him. This is only logical. Officer Brabant ran after him and grabbed his right shoulder and spun him around. However minimal, force was used against him.
[47] As for s. 34(1)(b), the assault must have been committed by Mr. Allen in order to protect or defend himself. I note that we have no evidence from Mr. Allen about what his purpose was when he started off by striking Officer Brabant in the face two times and later strangling him.
[48] Bearing in mind the Crown concession, based on the Charter ruling, that Officer Brabant was not acting in the lawful course of his duties when he attempted to arrest Mr. Allen, Plummer suggests that Mr. Allen was entitled to resist the arrest. Pursuant to Plummer, and the statutes and Criminal Code principles of self-defence, he could apply no more force than necessary to defend himself against the arrest. If Mr. Allen’s sole purpose was, indeed, to resist the arrest, he was permitted to do so reasonably if Brabant was not acting lawfully because of the Charter breaches: Plummer, at paras. 48-49; see also: Plamondon, at paras. 36-45.
[49] I am not at all sure that resisting arrest was Mr. Allen’s purpose when he assaulted Officer Brabant, or at least his sole purpose in assaulting Officer Brabant. If his purpose was to resist arrest, rather than assault Officer Brabant, he would have run when he had an opportunity to, rather than start to choke the officer. I find his purpose was likely more more than simply avoiding an arrest and, at least by the time of the choking, included a decision to assault the officer for the sake of assaulting him. In the end, though, I need not decide the issue because I find that, pursuant to s. 34(1)(b), the acts committed by Mr. Allen were not reasonable in the circumstances.
[50] Section 34(2) of the Criminal Code provides a non-exhaustive list of factors for consideration in determining whether the act committed is reasonable in the circumstances. The provision states that “the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors … [emphasis added]”. The statutory factors relevant to this case are as follows:
a. The nature of the force: The actions of Officer Brabant were minimal. He merely grabbed Mr. Allen by the shoulder and swung him around.
b. The extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force: The use of force was, in fact, imminent. Officer Brabant had caught up to Mr. Allen who had fled. However, there were other means available to Mr. Allen in responding. He could have stopped. He could have talked to the officer. He could have submitted to the arrest, even if he thought it was unlawful – which we have no evidence of in this case. At one point he could have run, rather than climbing onto Officer Brabant’s back and strangling him. The double punch to the officer’s face, as an opening salvo, was not the only means to respond. The entire escalation of this matter resulted directly from Mr. Allen’s initial actions.
c. Mr. Allen’s role in the incident: Mr. Allen seemed intent on assaulting Officer Brabant. But for the extreme opening action of punching the officer in the face, one might have thought Mr. Allen’s role was to try and resist arrest. The entire context belies this fact, though, given the later choking of the officer. Mr. Allen initiated the serious assault and was the impetus for this matter escalating the way it did.
d. Whether any weapons were used: None.
e. The size, age, gender, and physical capabilities of the parties to the incident: While my own observations are that Officer Brabant appeared to be slightly bigger than Mr. Allen, there is no evidence as to what Mr. Allen’s size was at the time of the incident. Based on Officer Brabant’s evidence, I am satisfied that they were fairly evenly matched from a physical perspective. I therefore take this to be a neutral factor.
f. The prior relationship of the parties: There was no prior relationship.
f.1 Prior interaction and communication between the parties: None.
g. The nature and proportionality of the person’s response to the use or threat of force: I agree with Crown counsel that Mr. Allen’s response to Officer Brabant grabbing him by the shoulder and swinging him around was wildly and grossly disproportionate in nature. Two immediate punches to the officer’s face was hardly a proportionate response to the grab on the shoulder. The choking was also grossly disproportionate. If it were not for Officer Brabant’s ability to pry Mr. Allen’s hands from his neck, this could have ended very differently and this might have been a very different trial.
h. Whether the act committed was in response to a use or threat of force that the person knew was lawful: There is no evidence from Mr. Allen as to what he knew one way or the other.
[51] While Ms. Balanga encouraged me to find, based on the respective injuries incurred, that Officer Brabant acted with excessive force and that Mr. Allen did not engage in the severe conduct suggested, I reject this submission. While injuries suffered as a result of an assault can provide some information about the circumstances of the assault, they are not dispositive of what occurred. Quite to the contrary. It would be dangerous to infer from injuries – or lack of injuries – alone, what happened during an assault. Moreover, I note that Officer Brabant did have injuries to his face as well. While they may not have been as severe as Mr. Allen’s facial injuries, this does not mean that the attack did not occur exactly as he described and as I have accepted.
[52] Ms. Balanga also asked that I infer from the failure of the police to take meaningful and immediate steps to obtain the video from Ms. Marsh that there was something on the video that would contradict Officer Brabant’s evidence. Respectfully, this submission runs against the facts in the case. Officer Holder, whose evidence I accept, attempted to obtain the video on the very night of the assault. Ms. Marsh would not provide it and counsel accepts that there is nothing the officer could have done to obtain it that night. He made good faith and multiple efforts to contact Ms. Marsh and was unsuccessful. While the defence were able to contact her, she does not appear to have been any more cooperative with them. In the circumstances, the police did what they could, the defence did what they could, and Ms. Marsh did not want to cooperate. I will not speculate about what is on the video one way or the other, or draw any adverse inference.
[53] In summary, I find that the acts committed by Mr. Allen were not reasonable in the circumstances. On this basis alone, I am satisfied beyond a reasonable doubt that he was not acting in self-defence.
[54] As a final point, the Crown also asked me to find under s. 34(3) that Mr. Allen could not avail himself of self-defence because he provided no evidence as to whether he believed on “reasonable grounds that [Officer Brabant was] acting unlawfully”. It is true that there is no evidence about what Mr. Allen believed. But s. 34(3) demands more. It only allows the defence to be removed where the force applied (or threatened) is by a person doing something they are “required or authorized by law to do in the administration or enforcement of the law”. This provision is designed to address lawful arrests and activities by peace officers, and to ensure that, when they are undertaking these lawful activities and they are assaulted, accused persons cannot avail themselves of self-defence unless they provide evidence as to their reasonable belief in the unlawfulness of those activities in the circumstances.
[55] There will be plenty of time to amplify upon this provision, and, for purposes of these reasons, I need not do so. I simply observe that a necessary component of s. 34(3) appears to be that the police are acting in a lawful manner at the critical juncture in question. Given the Crown concession in this case based on the Charter ruling made previously, and despite the absence of any evidence from Mr. Allen, it is not entirely clear that this provision would remove the defence from consideration.
Finding
[56] I find beyond a reasonable doubt that Mr. Allen was not acting in self-defence when he struck and strangled Officer Brabant. I find beyond a reasonable doubt that he assaulted Officer Brabant. I find him guilty of the lesser and included offence of assault.
Fairburn J.
Released: April 20, 2015
CITATION: R. v. Allen, 2015 ONSC 2594
COURT FILE NO.: CRIM 678/13
DATE: 2015/04/20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
THEODORE ALLEN
REASONS FOR JUDGMENT
FAIRBURN J
Released: April 20, 2015
[^1]: I was later informed by counsel that there was a preliminary inquiry in this case. The officer’s use of the word “discovery” must be referencing the preliminary inquiry.