BRANTFORD COURT FILE NO.: CR15-34-AP

DATE: 2016/10/20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

Derek Zuraw, for the Respondent

Respondent

• and -

Mary Ranieri

Ian B. Kasper, for the Appellant

Appellant

HEARD: September 19, 2016

The Honourable Justice D. L. Edwards:

1The appellant, Mary Ranieri, appeals pursuant to section 813(a)(i) of the Criminal Code against her conviction by Gee J. of the Ontario Court of Justice at Brantford on charges of one count of Threatening Death (s. 264.1(1)(a)) and one count of Assault with Intent to Resist Arrest (s. 270(1)(b).

2Pursuant to the order of this court Mr. Ian Kasper was appointed Amicus. Subsequently Mr. Stephen Gehl replaced him as Amicus and assisted me on the appeal.

3The appeal was heard on September 19, 2016.

4For the following reasons, I allow the appeal and remit this matter back to the Ontario Court of Justice for a new trial to be heard by a judge other than Justice Gee.

Background

5On March 12, 2014 Mr. Slezak, who was the superintendent of 23 Lynwood Dr. Brantford, together with Mr. Paul Martelli and Mr. Robert Martelli were in apartment 509 in the building. The appellant lived in the apartment immediately below.

6The appellant believed that Mr. Slezak and the Martelli brothers were intentionally throwing things on the floor of the apartment above her for three days straight. She went upstairs to the apartment 509 and allegedly threatened to kill them.

7The appellant returned to her apartment. The police were called. Constables Katie Esposto and Jonathan Thomson knocked on the door of the appellant's apartment. The appellant answered the door and started speaking about the noise from the apartment above her. The appellant shut the door. Shortly thereafter, the appellant then left the apartment with a garbage bag in her hand. When the appellant returned from the garbage chute, the constables attempted to arrest her. A scuffle ensued. The police pepper sprayed the appellant. Eventually the police gained control of her and she was taken to the police station.

8The matter was initially scheduled for trial on May 9, 2014 and adjourned until May 16, 2014.

9There were seven witnesses. The Crown called Mr. Slezak, the Martelli brothers, and Constables Esposto and Thomson as witnesses. The appellant testified. The defence also called Arlene Chalker who lived in an apartment on the same floor as the appellant.

10The appellant denied that she uttered the threat and denied resisting arrest. She alleged that the police assaulted her during the arrest.

11Justice Gee found the appellant guilty on both counts.

Grounds of Appeal

12The appellant put forward a number of grounds of appeal. In light of my findings with respect to several of the grounds, I need not deal with each ground raised by the appellant. I will, however, deal with five grounds of appeal:

a) ineffective assistance of trial counsel;

b) the trial judge reversed the burden of proof;

c) the trial judge failed to acknowledge and reconcile the inconsistencies in the prosecution witnesses’ evidence;

d) evidence that was highly prejudicial with no probative value regarding the appellant's mental health and prior police contact was improperly admitted into evidence at trial; and

e) the police improperly utilized information in their records to anticipate the appellant’s reaction upon arrest, and, as a result, utilized excessive force at the time of arrest.

Fresh Evidence

13At the commencement of the appeal, the appellant made an application to admit fresh evidence. She submitted that a driver’s licence, a passport, and certain other documents, would support her position that she was a direct descendent of Queen Victoria, and therefore she had immunity from prosecution. The photographs on the driver’s licence and passport showed a person with brown eyes, whereas she stated that it was clear that she had diamond red eyes that demonstrated her heritage.

14She also sought to introduce other documents that included several land transfer documents, a corporate profile and an email that she submitted would prove a conspiracy of large criminal proportion.

15Finally, she asked that colour photographs of her, of taken at the Detention Centre, be introduced to support her position that she was beaten upon her arrest.

16The Crown submitted that none of the items were relevant to the appeal issues, except for the photographs of the appellant taken at the Detention Centre, and, in his view, those were not admissible as fresh evidence, as they would not affect the trial result.

17R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, describes the criteria for the admission of fresh evidence.

18The driver’s licence, the passport and the other documents are neither relevant nor material. I decline to admit them.

19I will deal with the colour photographs of the appellant taken after her arrest while she was at the Detention Centre when I consider the allegation of ineffective assistance of trial counsel.

Ineffective Assistance of Trial Counsel

20The appellant asserts that her trial counsel provided ineffective assistance in four ways:

a) he failed to ask the complainant whether he was on social assistance while he was working;

b) he asked the defence witness in her examination in-Chief, whether she had a criminal record;

c) he failed to ask the Crown witnesses whether they had criminal records;

d) he failed to ask for a dismissal of the charges on the first date set for trial; and

e) he failed to introduce the coloured photographs of the appellant taken while she was in the Detention Centre.

21During the appeal, the trial counsel, Mr. Henderson, was cross-examined by the appellant on the affidavit that he filed regarding the allegation of ineffective assistance of trial counsel.

22The law with regards to ineffective assistance grounds of appeal is set out in R. v. Joanisse (1995), 1995 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.):

66 This court, following the lead of the Supreme Court of the United States, has taken a cautious approach to claims based on the alleged incompetence of trial counsel: R. v. McKellar (1994), 1994 1402 (ON CA), 19 O.R. (3d) 796 at 799 (Ont. C.A.). Such claims can be easily made. It would be a rare case where, after conviction, some aspect of defence counsel's performance could not be subjected to legitimate criticism. Convictions would be rendered all too ephemeral if they could be set aside upon the discovery of some deficiency in counsel's defence of an accused. Appeals are not intended to be forensic autopsies of counsel's performance at trial.

67 The spectre of retrospective appellate analysis of counsel's conduct of the defense could discourage vigorous and fearless representation at trial and encourage defensive advocacy aimed more at protecting counsel from subsequent criticism than advancing the cause of his client. Appellate review, perhaps influenced by the clarity which comes with hindsight, could also undermine the independence of the defence bar and the client-solicitor relationship …

69 ... This court's task has been to devise an approach which permits the court to fulfil its obligation to quash convictions which are the product of a miscarriage of justice while at the same time avoiding the negative consequences inherent in appellate scrutiny of counsel's conduct of the defence. The approach taken by this court has three components:

• The appellant must establish the facts on which the claim of incompetence is based.

• The appellant must establish that the representation provided by trial counsel was incompetent.

• The appellant must establish that the incompetent representation resulted in a miscarriage of justice.

  70 The first component requiring that the appellant establish the facts on which the claim is based is consistent with the generally accepted rules governing pleadings. It is the appellant who is making the allegation and it is the appellant who, as between the appellant and the Crown, is in the better position to establish the underlying facts…

  71 The second prong of this approach requires a measurement of counsel's performance against a competence standard. The standard developed by O'Connor J. in Strickland v. Washington, (104 S.Ct. 2052), has been adopted in this jurisdiction: (authorities omitted) The following extracts from the reasons of O'Connor J. capture the essential elements of the competence standard announced in Strickland v. Washington, supra:

... The defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. ... [p. 2064]

... The proper measure of attorney performance remains simply reasonableness under prevailing professional norms. [p. 2065]

Judicial scrutiny of counsel's performance must be highly deferential…

Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.


74 Counsel's failure to meet competence standards does not automatically lead to a reversal of a conviction. The ultimate purpose of the appellate inquiry is not to grade counsel's performance, but to determine whether a miscarriage of justice occurred. The third and final component of this court's approach to allegations of incompetent representation at trial presumes a finding of incompetence and looks to the effect of that incompetence on the fairness of the trial proceedings. This inquiry examines the nature and seriousness of counsel's errors both from the perspective of the reliability of the verdict and the adjudicative fairness of the process leading to the verdict. If counsel's incompetence rendered the verdict unreliable or the process unfair, then the appellant has demonstrated that he received ineffective assistance resulting in a denial of the right to a fair trial and a miscarriage of justice.

79 In articulating the test to be applied in cases where the unfairness said to flow from incompetent representation relates to the reliability of the verdict, this court has again looked to Strickland v. Washington, supra, for guidance. O'Connor J. rejected as too low a standard which would require reversal whenever it could be said that counsel's errors had "some conceivable effect on the outcome of the proceeding." She also rejected as too demanding a test which would require that the appellant show on the balance of probabilities that the result was affected by counsel's errors (at pp. 2067-2068). She settled on the following, at p. 2068:

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

This language has been referred to with approval in R. v. Garofoli, 1988 3270 (ON CA), [1988] O.J. No. 365 supra, at p. 152 and R. v. Collier, [1992] O.J. No. 2411 supra, at p. 573. I take Justice O'Connor to mean that the appellant must show that, had he received competent legal representation, there is a real probability that the appellant would not have been convicted of murder. A reasonable probability lies somewhere between a mere possibility and a likelihood … A reasonable probability is established when the reviewing court is satisfied that because of counsel's incompetence, the verdict cannot be taken as a reliable assessment of the appellant's culpability.

23I am satisfied that the decision as to what questions to ask or not ask, or whether to introduce into evidence colour photographs taken of the appellant at the jail after arrest, is part of the strategy of counsel. In the circumstances there is no evidence that the trial counsel’s performance was deficient because of those choices.

24The appellant also submitted that there was ineffective assistance of counsel because the trial counsel should have demanded that the charges be dismissed when the trial did not proceed on May 9, 2014, being the day that the matter was set for trial. Trial counsel testified that he was advised by the trial coordinator's office that the matter would not proceed on May 9, 2014.

25I find that, given the advice that the trial counsel received by the trial office, it would have been improper for trial counsel to oppose the adjournment of the trial to May 16, 2014, and to demand that the trial proceed on May 9, 2014, and alternatively seek a dismissal of the charges.

26With respect to the colour photographs taken of the appellant at the Detention Centre after arrest, I find that when they are considered with the evidence at trial that they would not have affected the result, and therefore decline to admit them as fresh evidence. The significant injuries that the appellant alleges are shown in the photographs are not evident to me.

27The appellant also submits that she had ineffective assistance at trial, because her counsel failed to ask a Crown witness whether he had a criminal record.

28I accept that the Crown advised trial counsel that the Crown witnesses had no criminal record, and therefore he did not ask that question of them. On the appeal, the Crown acknowledges that Robert Martelli had a criminal record. The failure to ask this question of him was based upon the erroneous information provided to trial counsel by the Crown. I attribute no improper motive to this err on the part of the Crown.

29The trial counsel’s failure to ask that question in those circumstances does not constitute ineffective assistance of trial counsel.

30In these circumstances I must also consider whether Robert Martelli’s criminal record should be admitted as fresh evidence on this appeal. The Crown acknowledges its error and has produced the criminal record for this appeal. The last conviction in 2009 was for possession of a prohibited substance for the purpose of trafficking. None of the convictions were for dishonesty or obstruction of justice.

31Robert Martelli was one of three individuals who testified that they were present when the appellant made the death threat. Mr. Slezak and Paul Martelli corroborated Robert Martelli’s evidence.

32I find that the admission of the criminal record, when considered with the evidence at trial, would not have affected the verdict, and therefore decline to admit it as fresh evidence.

33In summary, I find that there is no evidence that the trial counsel provided ineffective assistance that to the appellant, and dismiss this ground of appeal.

Burden of proof

34The appellant submits that the trial judge reversed the burden of proof when he stated:

For me to accept your version of events I would have to believe that they would embark on this conspiracy or cahoots, as you call it, in order to start tormenting a person that they had no idea existed prior to several minutes before their arrival at the building… It's not up to me to try to pick and choose the versions, the bits and pieces of the evidence in order to assist you. That’s your job is to assist me with your evidence. If I cannot pick out from your evidence what is accurate and what is inaccurate, then I just can't believe it.

35The Crown submits that the trial judge did not reverse the onus and a more holistic and functional review of the trial judge’s decision is required. Further, he asserts that one must consider the quote referred to above in the context of the entire paragraph which began:

I also have trouble with your evidence in the manner in which you gave it. You were non-responsive to the questions. You obviously have a great deal of animosity towards Mr. Slezak and you went to great pains throughout the course of your testimony to point that out to me and everyone else. You used your testimony as a means of airing your grievances in total against Mr. Slezak and focusing on what was irrelevant to the court.

36This is a he said/she said type of case. The Supreme Court has made clear that in those circumstances the case should not be a credibility contest with the judge having to either believe one version or the other of events.

37The appropriate analysis for a trier of fact is enunciated in W.(D) as amended by R. v. S.(J.H), 2008 SCC 30, [2008] 2 S.C.R. 152 paras. 10-13. The analysis involves a four step approach:

a. First, if the judge believes the evidence of the accused, there must be an acquittal.

b. Second, if the judge does not believe the testimony of the accused, but is left in reasonable doubt by it, there must be an acquittal.

c. Third, if after consideration of all of the evidence, the judge is unable to decide whom to believe, there must be an acquittal.

d. Fourth, even if the judge is not left in doubt by the evidence of the accused, the judge must ask whether based upon the evidence of the trial that the judge accepts, is he/she convinced beyond a reasonable doubt by that evidence, of the guilt of the accused. If not, there must be an acquittal.

38In his reasons the trial judge deals with the issue of the burden on the Crown to prove the guilt of the offender beyond a reasonable doubt by describing the W.(D) analysis. He refers to the three step process described in W.(D). Given the Supreme Court’s direction, it would be preferable to follow the approach as described in R. v. S.(J.H).

39I find that the trial judge placed a burden upon the appellant to establish her innocence. He clearly states that it is not up to him to “pick and choose versions….Your job is to assist me with your evidence”. This is a shift of the burden of proof onto the appellant.

40This was not an isolated error. He also used his disbelief of the appellant’s evidence as a basis for accepting the Crown’s evidence. For example, with respect to the Martelli brothers’ evidence, he stated, “For [the Martellis] to come and be involved in some sort of cahoots, as you call it, with everyone else, is just not believable. What I think is the truth is, is that they are telling the truth”.

41The real question is not what the truth was, and whether it was the appellant’s job or the trial judge’s job to determine the truth of what happened that day. The only question to be considered was whether the Crown had proven the appellant’s guilt beyond a reasonable doubt.

42The appellant had no obligation to provide any evidence, and more precisely, she had no obligation to prove her innocence.

43I am satisfied that the trial judge reversed the burden of proof and improperly placed that burden on the appellant.

44Due to this error, the convictions cannot stand.

45The appropriate remedy in this matter is to allow the appeal, order that the convictions of Threaten Death and Assault with Intent to Resist Arrest be set aside, and, return this matter to the Ontario Court of Justice for a new trial with a different judge.

Inconsistencies within the Evidence

46The appellant asserts that the trial judge erred in failing to acknowledge and deal with the inconsistencies in the evidence of the three civilian witnesses, namely, Steve Slezak, Paul Martelli and Robert Martelli, and the inconsistencies between Constables Esposto and Thomson.

47The Ontario Court of Appeal has stated that trial judges are not required to mention every item of evidence or every possible inconsistency. R. v. St. Louis, [2010] O.J. No. 5998.

48The appellant submits that there were inconsistencies in the testimony of Mr. Slezak and the Martelli brothers about the alleged death threat incident. All three place themselves in the unit above the appellant’s apartment at the time of the incident. They all agree on what the appellant said. However, Mr. Slezak said that they were working in the unit making noise, whereas Paul and Robert Martelli testified that they had not yet made any noise.

49I am satisfied that this type of inconsistency in the evidence is periphery to the relevant issue.

50The appellant alleged that the police officers’ testimony was inconsistent on whether the appellant was ordered to go to the ground, and whether the officers were standing, or on the ground, when the appellant kicked them. I am satisfied that there was no inconsistency in their evidence on this point.

51Also the appellant alleged that there was an inconsistency between the police officers’ testimony as to whether the appellant was bent over when she wiped her eyes after she was pepper sprayed. Officer Esposto stated that she did not bend over; whereas Officer Thomson testified that she put her head down, but did not indicate that she was bent over.

52I find that this is not an inconsistency.

53I dismiss this ground of appeal.

Evidence Improperly Admitted

54The appellant and the Amicus asserted that evidence that was significantly prejudicial to the appellant with very little probative value was admitted into the trial and was utilized by the trial court judge in reaching decisions of credibility. They submit that some of this evidence was bad character evidence, some hearsay, and some similar fact evidence.

55The following is the evidence that the appellants submit was improperly admitted.

56In his examination in chief, Steve Slezak testified that the appellant had “issues” and when asked what he meant he said:

A: Like, mental issues, I don’t want to say that, but. She hollers off her balcony and people, like, they don’t even want to go on that floor. She has chased a few people down the hall and started fights with them in the apartment, and crazy things.

Q: All right. Are those things that you’ve seen yourself, or?

A: This has been ongoing for four or five years.

Q: Have you seen any of this stuff yourself, or is it just all based on stuff you’ve heard…

A: No, just with…

Q; from other people?

A:…the police being there and stuff like that.

Q: But have you seen any of this stuff yourself or not?

A: Oh, yeah. I’ve seen her on the balcony hollering and screaming at people and stuff like that, or screaming at me or whatever.

Q: okay. When she had screamed at you before March 12^th, what, what stuff, what kind of stuff would she say to you?.......

A: Well, when we first started like that, things, I could talk to her, we had conversations and everything was normal. But as time goes on, she just got, I don’t know if she had problems, or whatever. I don’t know if she was having problems at home or whatever with her parents or whatever, but she just seemed to go crazy.

Q: Okay. I want to give His Honour a picture of the type of things she was actually yelling at you when things kind of….

A: well, she…

Q: started to deteriorate?

A: she’d tell us there she’s going to feed me fish guts or stuff like that. Just crazy stuff, like, chanting, like she’s a, her voice would change like the Exorcist or whatever and she’s screaming off her balcony and stuff like that.

57During Constable Esposto’s testimony in chief she was asked about her knowledge of the appellant’s prior contact with the police:

A: Yes, CPIC and NICHE queries were conducted. Ms. Ranieri has been involved with the police in the past. The previous day she, there was a call for a similar incident involving her screaming. But prior to that in September of 2011 Ms. Ranieri had forced her way into a neighbour’s apartment………

A: There was a report in 2000 and, in September of 2011 that Ms. Ranieri had forced her way into a neighbour’s apartment and struck and kicked a female causing injury to this female.

Q: Okay.

A: There was a previous report in 2008 where there was an allegation that Ms. Ranieri, while operating a motor vehicle, intentionally caused a collision with a motorcyclist. And there have been other mental health calls to police to check wellbeing, which were unfounded.

58The trial counsel interrupted this witness’ testimony and asked for clarification that these were allegations, rather than facts. In response to the request for clarification, the Crown confirmed that the references were to allegations. He also stated that this evidence was admissible because it went to the propriety of the arrest. Trial counsel did not object to its admissibility.

59During Constable Thomson’s testimony in-Chief he was asked about his prior dealings with the appellant:

A: I have had two that I can recall. First, one I don’t know the year, but it was at least two, if not longer, ago.

Q: Now, are we talking…..before or after the March 12^th incident

A: Before….

A: Like I said, I don' t remember the exact date or time from that, but there were numerous driving complaints over a two day period we had also involving the Ontario Provincial Police from Brant County of similar complaints with regards to a vehicle that Ms. Ranieri was driving. During that time I had an opportunity to review our records system and notice that there was a previous incident prior to that also where Mrs. Ranieri was charged, I believe, it was dangerous operation, but I am not 100 percent sure on that. But there’s some Criminal Code driving offence, she was alleged to purposely run a motorcyclist off the road.

Q: Now, the driving incidents you mentioned first of all that you knew about, or had read about, was it once you had read about from the OPP? Is that what you said, or, I want to…

A: sorry, there was, I investigated over a two-day….

Q: O, okay.

A: … numerous driving complaints and also OPP had some over that today. Also and then during that investigation I had the opportunity to review reports from, from another investigation…

Q: oh, okay.

A: … From years prior.

Q: so, driving incidents over the two day. You were involved, you actually had investigated, are we talking stuff like, speeding 15 km over, or failure to signal a left-hand turn, or what are we talking about?

A: The, the exact complaints I don't have my notes too, for the exact complaints for that, but it was similar, just numerous complaints of a vehicle licence plate number just was driving erratically or…

Q: in the same type of calls that you read about from the OPP over the same period for just…

A: yeah, they had the same complaints over the two-day period.

Q: okay, alright. So, and, had you ever had occasion to read anything about Ms. Ranieri’s mother.

A: There was an incident, I don't know the exact date, within the month prior to this investigation where another officer and myself went to Ms. Ranieri’s mother's residence with regards to a, a threat. That was called in by Ranieri’s sister on behalf of her mother that Ms. Ranieri went over to her mother's house for supper that evening. An argument occurred. Miss Ranieri threatened to kill her mother and her mother was so fearful that she would not provide myself or the other officer with the statement. Just wanted a report on file. Well, sister wanted a report on file. Mother wanted nothing, police involvement.

Q: okay. And the sister’s name is Theresa, I can't remember the last name?

A: Vergerose, I don't know how to pronounce it properly, Vergerose would be the best guest.

Q: but her first name is Theresa? Is that right?

A: correct

Q: alright. And is this something, that incident as well is something that you remembered when you had dealt with the March 12 incident? A: sorry?

Q: that, the incident with the mom, that was something that you, you investigated and that you yourself, you said?

A: it was another officer, but I was assisting on that investigation so I did know about it.

60The appellant asserts that this is vague, hearsay, and very prejudicial, with no probative value.

61During oral submissions before me the Crown counsel acknowledged that in hindsight some of this testimony should not have been admitted. He submitted, however, that as this was a judge alone trial there was minimal prejudice. Also, the judge’s reasons focused on the material elements of the offences, and three civilian witnesses corroborated the events, as well as the two police officers.

62The law is clear that evidence of bad character is inadmissible where it shows nothing more than that the accused is the type of person likely to have committed the offence. This principle is subject to the three exception listed by Cory, J., none of which is applicable here: R. v. S.G.G., 1997 311 (SCC), [1997] 2 S.C.R. 716.

63Somewhat surprisingly, the admissibility of this evidence was not challenged at trial. The only issue raised regarding this evidence arose when the trial counsel asked for clarification that the incidents that Constable Esposto referred to were allegations from reports, but otherwise did not object to admissibility of this evidence. The Crown clarified that they were allegations from reports. He also submitted that this evidence was admissible because the propriety of the arrest was at issue, and what information the officer had in her head at the time of the arrest was relevant. The trial counsel made no objection and the trial judge made no findings. No objection was raised at trial with respect to Officer Thomson’s evidence.

64However, the appellant did not bring a s. 9 Charter violation application. She did not allege that she resisted because the arrest was unlawful. She said that she did not resist at all; rather she was pepper sprayed by Constable Thomson and punched by Constable Esposto.

65This evidence was elicited from the witnesses by the Crown in their examination in chief.

66I am satisfied that the evidence that I have quoted above should not have been admitted. Some is similar fact; some is hearsay; some is bad character and others are charges for unrelated matters, which even had there been convictions, that information would not have been admissible by the Crown’s witnesses in-Chief.

67Unfortunately, as the trial judge does not state whether he found any of this evidence to be inadmissible, and if so, what evidence, it is unclear as to the degree to which the inadmissible evidence tainted his reasoning.

68It is clear, however, that some of this evidence was a factor in his reasons. At page 147 line 10 of the trial transcript the trial judge states “…that you weren’t going to accept that you were being arrested for another allegation made by Mr. Slezak” [emphasis added]. There is no evidence of another allegation, other than what is referred to in the evidence quoted above.

69I find that there was a significant amount of evidence that should not have admitted and that it is evident that this may have tainted the trial judge’s reasoning. Further, even if it was not so evident, the sheer volume of the improperly admitted evidence raises the reasonable inference that it did taint the trial judge’s reasoning.

70The appellant succeeds on this ground of appeal.

The Arrest

71The Amicus submitted that the police used the history of police contact with the appellant as grounds to escalate the force on arrest. In other words, they used excessive force on the arrest in anticipation, based upon their information about the appellant’s past, that she might be less than cooperative.

72From both officers’ evidence it is clear that they were aware of the appellant’s past contacts with the police. Indeed, a significant portion of their testimony dealt with their respective understandings of the appellant’s history.

73The Amicus submitted that appellant’s evidence is that she did not resist arrest at all, and that her evidence was corroborated by Ms. Chalker’s evidence.

74The police officers’ testified that they escalated the use of force as the appellant resisted.

75While police officers may have to resort to force in order to complete an arrest or to prevent an offender from escaping their custody, the allowable degree of force is constrained by the principles of proportionality, necessity and reasonableness. Under s. 25(1) of the Criminal Code, the use of force to effect a lawful arrest is justified if the police officer believes on reasonable and probable grounds that it is necessary and if only as much force as necessary is used. R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, para. 32.

76At paragraph 35 of Nasogaluak the Court confirmed that police actions should not be judged against standards of perfection as they are engaged in dangerous and demanding work.

77The court adopted the statement of Anderson J.A. from R. v. Bottrell (1981), 1981 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218] [emphasis added]

78As noted by Anderson J.A., it is the circumstances as they exist at the time of arrest, not the anticipated response, which will determine whether the amount of force was necessary. The escalation of force is directly tied to the actions of the accused, and not that person’s anticipated actions.

79In the instant case, the appellant’s evidence and the police officers’ evidence are not reconcilable on their face. Findings of fact, which are the purview of the trial judge, are required. Due to the errors that I have identified in the trial judge’s reasons, a new trial is required for there to be a determination as to what exactly happened at the time of the arrest, and whether the amount of force used by police was necessary.

Summary

80In summary, for these reasons, I allow the appeal and order that the convictions of Threaten Death and Assault with Intent to Resist Arrest be set aside; and, I return this matter to the Ontario Court of Justice for a new trial with a different judge.

D. L. Edwards J.