R. v. Hernandez-Rodriguez, 2016 ONSC 1700

CITATION: R. v. Hernandez-Rodriguez, 2016 ONSC 1700

COURT FILE NO.: CR-15-50000019-00AP

DATE: 20160311

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

JOSE HERNANDEZ-RODRIGUEZ

Appellant

Darren Hogan, for the Crown

Lydia Riva, for the Appellant

HEARD: February 23, 2016

REASONS FOR JUDGMENT [Appeal from Convictions Entered on November 21, 2014, and Sentence Imposed on February 10, 2015 by Justice S. Merenda of the Ontario Court of Justice]

B. P. O’Marra, J.

BACKGROUND

1In the very early hours of October 5, 2013, members of the Emergency Task Force of the Toronto Police Service prepared to execute a search warrant on a residence. The police had information that there could be weapons at the target location. A decision was made for a dynamic entry by several heavily-armed officers. The appellant was sleeping on a mattress just inside the front door as the police approached. He was not the target. The police were investigating his step-brother who was also in the residence.

2At approximately 2:42 a.m., the police breached the door with a battering ram and burst into the apartment. The interior was in darkness. They released a flash-bang grenade device. The lead officer held a machine gun in his hands with a flashlight at the end of the barrel. As that officer entered the apartment, the appellant awoke and became involved in an altercation with that officer. It was alleged that the appellant grabbed onto the barrel of the gun and tried to take it from the officer. The appellant was ultimately restrained and handcuffed. He suffered some minor scrapes and abrasions. The situation could have been far worse.

3The police testified that they immediately announced their entry as police and also wore prominent lettering on their clothing that identified themselves as police officers.

4The appellant testified that he was awakened abruptly by the noise and intense nature of the entry. He claimed he did not know they were police officers and in fact feared that he was being robbed. He denied that he knew it was the police until after he was restrained and handcuffed.

5The appellant was convicted of the following offences:

(i) Assaulting a peace officer engaged in the execution of his duty, contrary to s. 270 of the Criminal Code of Canada, R.S.C. 1985, c. C-46; and

(ii) Disarming a peace officer engaged in the execution of his duty, contrary to s. 270.1 of the Criminal Code.

6The appellant received a 60-day conditional sentence plus 18 months’ probation. He was ordered to perform 100 hours of community service. There was a 10-year weapons prohibition order pursuant to s. 110 of the Criminal Code.

THE ISSUES

7The appellant submits that the convictions should be overturned for the following reasons:

(i) The trial judge erred in his application of the mens rea element of both offences; and

(ii) The reasons of the trial judge for rejecting the appellant’s testimony on a critical issue were inadequate.

8If the convictions are upheld, the appellant submits that the trial judge erred in principle in imposing a conditional sentence. He submits that the proper and fair disposition should be a conditional discharge.

EVIDENCE AT TRIAL

9There was no dispute that the police were in the lawful execution of their duties at the time of this incident. They were authorized to execute a search warrant by dynamic entry. Where such entries are authorized, the aim is for an abrupt entry and the swift and secure control of any occupants inside. Ideally, nobody will get hurt in this process. For good reason, such entries usually are executed in the early morning hours so that the occupants will be unaware and unprepared for the police entry. For a citizen who happens to be inside the target dwelling, the experience can fairly be described as “shock and awe”.

10The target of the investigation was the appellant’s step-brother. The appellant’s mother, step-father and young niece were also in the dwelling at the time of the police entry. The appellant was sleeping on a mattress located just inside the entrance of the apartment. He was awoken by the door being kicked in, stun grenades detonated, and men armed with machine guns with attached flashlights pointed at him.

11The police witnesses testified that they announced themselves as police and observed the appellant cowering on a mattress. They testified that the appellant ignored directions to show his hands. The appellant grabbed the muzzle of one of the officer’s machine guns. The officer kicked the appellant and struck him with an open hand to try to free his weapon from the appellant. Three other officers were required to wrestle the appellant to the ground and handcuff him.

12The appellant testified that he was in shock and his ears were ringing after being awoken by the extremely loud noise of the stun grenades. He said that he could not hear what the officers were saying. He denied grabbing the gun and testified that he was simply assaulted by the officers and sustained some injuries as a result.

JUDGMENT AT TRIAL

13The trial judge rejected the appellant’s evidence and found that it did not raise a reasonable doubt. He found that the police announced their presence as police officers and repeatedly said words to the effect of “police, search warrant”, and found that the appellant had heard these words before the physical altercation began. The trial judge accepted the evidence of the police that the appellant had seized the barrel of the gun and refused to release it. At one point, the trial judge indicated the following:

While it may have been that the accused was afraid at the time, being awoken at about 2:42 a.m., in his own home, in his own bed, I am satisfied that the police announced their entry on several occasions and identified themselves as police, and that the accused heard this and he knew, or should have known, that it was the police who were entering, and that they were there to execute a search warrant. [Emphasis added].

MENS REA

14An essential element to be proven beyond a reasonable doubt for both of these offences is subjective knowledge or wilful blindness that the appellant was dealing with a police officer. Criminal liability cannot be based on whether the appellant should have known he was dealing with a police officer. It must be based on whether he had actual knowledge of that fact.

15In isolation, the reference by the trial judge to “knew, or should have known” would be fatal to findings of guilt. However, the entire judgment must be considered in assessing the standard applied. The trial judge makes clear that he found that the appellant knew they were police. His findings included the following:

(1) The police were wearing uniforms that were clearly marked “police”;

(2) The police repeatedly shouted “police, search warrant”;

(3) The appellant heard those words; and

(4) The appellant understood English.

16Based on the entire judgment, it is clear that the trial judge was satisfied that the appellant knew he was dealing with police officers.

17This ground of appeal fails.

INADEQUACY OF REASONS FOR REJECTING THE EVIDENCE OF THE APPELLANT

18This ground of appeal relates specifically to the appellant’s assertion that he could not and did not hear the police identify themselves due to the noise and confusion of this dynamic entry. The appellant does not claim there was a failure to apply the principles set out in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, related to his evidence. Rather, he claims the trial judge failed to adequately state why he rejected the evidence that he did not hear the police identify themselves.

19In R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), Justice Doherty addressed the issue as follows:

Certainly, a trial judge owes it to an accused to explain his or her reasons for convicting that accused. Where the accused has testified, this will include an explanation for rejecting the accused’s denial. However, where the sufficiency of the reasons is challenged on appeal, the outcome of the appeal must turn on whether there can be a meaningful appellate review of the trial proceedings: see R. v. G.(L.) (2006), 2006 SCC 17, 207 C.C.C. (3d) 353 (S.C.C.), at para. 14. This is evident from the observation in Sheppard, supra, at para. 55:

Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court’s explanation in its own reasons is sufficient. There is no need in such a case for a new trial.

In focusing on reviewability of the proceedings as the ultimate issue, I do not diminish the significance of the absence of any discernible explanation for the rejection of an accused’s seemingly plausible denial. The absence of any explanation may go a long way toward putting the reasons beyond the reach of meaningful appellate review: see R. v. Maharaj (2004), 2004 CanLII 39045 (ON CA), 186 C.C.C. (3d) 247 (Ont. C.A.), at paras. 26-29, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 340 (QL), 192 C.C.C. (3d) vi.

In some circumstances, a trial judge’s failure to adequately explain the reasons for rejecting an accused’s denial will make it impossible for the appellate court to satisfy itself that the conviction was based on an application of the correct legal principles to findings of fact that were reasonably open to the trial judge. There are several examples of circumstances in which this court has linked the absence of clear reasons for rejecting exculpatory evidence with the inability to engage in effective appellate review: see R. v. Maharaj, supra, at para. 29; R. v. Lagace (2003), 2003 CanLII 30886 (ON CA), 181 C.C.C. (3d) 12 (Ont. C.A.), at para. 44; R. v. D.(S.J.) (2004), 2004 CanLII 31872 (ON CA), 186 C.C.C. (3d) 304 (Ont. C.A.), leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 365 (QL), 192 C.C.C. (3d) vi.

In other cases, the trial judge’s failure to explicitly point to factors in the appellant’s evidence justifying his or her rejection of that evidence does not foreclose meaningful appellate review: see e.g. R. v. R.L., 2002 CanLII 49356 (ON CA), [2002] O.J. No. 3061 (QL) at para. 3, 55 W.C.B. (2d) 4 (C.A.); R. v. S. (A.) (2002), 2002 CanLII 44934 (ON CA), 165 C.C.C. (3d) 426 (Ont. C.A.), at paras. 33-34; R. v. Tzarfin, 2005 CanLII 30045 (ON CA), [2005] O.J. No. 3531 (QL) at para. 11, 67 W.C.B. (2d) 695 (C.A.).

There is no jurisprudential difference of opinion underlying the different results reached in the cases referred to above. The different results reflect the functional and contextual assessments of the adequacy of reasons dictated in Sheppard and Braich. On that approach, a deficiency in the reasons will in some cases render the reasons inadequate, but that same deficiency will not have that effect in other cases where the context is different.

20In considering the sufficiency of reasons, an appellate court should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered: see R. v. R. E. M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16; and R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 15.

21The rejection at trial of the appellant’s evidence that he did not hear the police announce themselves cannot be viewed in isolation. The appellant also denied that he ever grabbed the barrel of the gun. The trial judge found as a fact that the appellant grabbed the barrel and continued to hold it with such force that the shoulder strap on the gun snapped and broke. That was a separate finding of fact on a critical issue that was adverse to the appellant. That finding of fact was reasonably available to the trial judge. He was entitled to consider that in assessing the assertion that the appellant did not hear the police announce themselves.

22Where a trial judge specifically rejects the evidence of an accused on a material issue, he is entitled to consider that rejection in assessing credibility on other issues. This does not lead inexorably to rejection of other portions of the evidence. However, that is open to the judge to do so. In my view, that is what happened in this case.

23I would dismiss this ground of appeal.

SENTENCE APPEAL

24The appellant submits that the trial judge over-emphasized denunciation and that the appropriate sentence would be a conditional discharge.

25The Supreme Court of Canada recently reviewed the standard wherein an appellate court may intervene and vary a sentence imposed by a trial judge in R. v. Lacasse, 2015 SCC 64, at paras. 41 and 44. The court reaffirmed that absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, an appellate court should only intervene to vary a sentence if the sentence is demonstrably unfit. Further, an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor will justify appellate intervention only where it appears that such an error had an impact on sentence.

26The trial judge considered deterrence as the primary (but not exclusive) factor on sentence. He was obliged to do so by the terms of s. 718.02 of the Criminal Code:

When a court imposes a sentence for an offence under subsection 270(1), section 270.01 or 270.02 or paragraph 423.1(1)(b), the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

27The trial judge also referred to the positive antecedents of the appellant and the absence of a criminal record. This was a very serious incident with potentially grave consequences if the appellant had not been restrained by other officers.

28The reasons for sentence merit significant appellate deference. I see no basis to interfere.

RESULT

29The appeals as to conviction and sentence are both dismissed.

B. P. O’Marra, J.