CITATION: R. v. Grosbeck, 2017 ONSC 5147
COURT FILE NO.: CR-16-016-OOAP
DATE: 20170912
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
Donald Grosbeck
Respondent
B. Bencze, for the Appellant Crown
B. Prichard, for the Respondent
HEARD: August 23, 2017, in Parry Sound, Ontario
DECISION ON APPEAL
DEL FRATE j.
[1] The Appellant Crown appeals the stay of proceedings granted by the Honourable Justice C. Mathias McDonald dated July 22, 2016 at Parry Sound, Ontario.
Facts
[2] This stay resulted from an incident that occurred on November 23, 2014, whereby Constable Robert Lewis stopped the Respondent because he was operating an ATV vehicle without a helmet.
[3] Officer Lewis asked the Respondent to identify himself, and when he failed to comply with that request, a scuffle ensued while the Respondent was still on the ATV.
[4] It is not clear as to who initiated the scuffle, but the Respondent fell off the ATV and the scuffle continued on the ground. When it stopped, Officer Lewis got up and headed towards the cruiser.
[5] The Respondent walked towards the officer with his fists clenched and by his side. Some further words were exchanged. The Respondent then turned and was headed towards the ATV. The officer concluded that the Respondent was fleeing and Tasered him on the back. The volley lasted five seconds.
[6] The Respondent was subdued, and another officer attended the scene to assist Constable Lewis.
[7] As a result of this altercation, the Respondent was charged with assaulting a peace officer with intent to resist arrest, possession of cannabis marijuana, operating a motor vehicle while disqualified, failing to surrender a permit, operating an off-road vehicle with no insurance, failing to wear a proper helmet, and driving an off-road vehicle with no driver’s license.
[8] Prior to the commencement of the trial, the Respondent gave notice that an application under sections 7 and 12 of the Canadian Charter of Rights and Freedom would be brought and that a stay of proceedings would be sought pursuant to section 24(1).
[9] After a three-day hearing, Justice Mathias McDonald ruled that the use of a Taser was excessive force and granted a stay of all of the charges.
Appeal
[10] The Appellant Crown raises three grounds of appeal:
A. A finding that Officer Lewis’ use of force was assessed on a standard of correctness instead of reasonableness;
B. Insufficiency of reasons for finding a Charter breach; and
C. A misapprehension of the evidence of Officer Laino (who was qualified as an expert in Tasers and the use of force).
[11] The Appellant Crown seeks an order setting aside the stay and an Order that the matter be remitted to the Ontario Court of Justice for trial on its merits and if convicted at trial, the trial judge could consider the Charter breach in determining a fit sentence.
Grounds of Appeal
A. Error in Assessing a Standard of Correctness instead of Reasonableness
[12] The Appellant Crown submits that the learned Justice erred in concluding that “the decision to deploy the Taser was not the right one” (at p. 30 of Reasons). By using the word “right”, the leaned Justice used a standard of correctness rather than one of reasonableness.
[13] It further submits that the learned Justice failed to consider the totality of the circumstances as described by Constable Lewis. Had she done so, then an objective assessment of the totality of the events would indicate that what the officer did was “reasonable”.
[14] For instance, she concludes that:
…the officer was conducting his duties on the night of this event, but the decision to use the CEW at the time when he did, and given that Mr. Grosbeck was not coming towards him, and according to the officer he was listening to the commands to get back and the officer indicated that he was complying, so the decision to deploy the taser was not the right one. (p. 30 of Reasons)
[15] She then goes on to state that she did not accept that the officer would have had a tactical advantage by not yelling to the Respondent “Taser, Taser, Taser” or any other type of warnings prior to using the Taser.
[16] Most importantly, the learned Justice found:
In addition Officer Lewis also indicated on more than one occasion that he was concerned that Mr. Grosbeck was going to flee, as opposed to exercising assaultive behaviour towards the officer. And as stated above I do not consider these, the incident as something that occurred as one continuous event. (p. 31 of Reasons)
[17] These are all errors that would necessitate a new trial.
Ruling
[18] Although the learned Justice could have used the word “reasonable” as opposed to “right,” her analysis of the evidence shows an understanding that the officers’ actions from an objective standard were “not reasonable.” It is clear that she concluded that Officer Lewis did not employ the proper measure of force under the circumstances.
[19] The semantics may not be the appropriate ones; however, the conclusion is clear. There was evidence on all of those findings which permitted the trial judge to reach those conclusions. Merely because the Crown does not agree with those findings does not mean that the learned Justice erred.
[20] Accordingly, the use of the word “right” as opposed to “reasonable” is not fatal to her reasoning, and this ground of appeal is dismissed.
B. Insufficient Reasons & Misapprehension of Evidence
[21] The Appellant Crown contends that the learned Justice erred in not making actual findings of fact regarding whether there was an assault of Officer Lewis while the Respondent was on his ATV or when the two were scuffling on the ground, and whether the Respondent approached Officer Lewis with his fists clenched.
[22] According to the Appellant Crown, such failures preclude an objective finding of whether the conduct of Constable Lewis was reasonable under the circumstances.
[23] Additionally, the Appellant Crown states that these failures are compounded by the Justice’s lack of findings on the credibility of both parties, especially when she states that there were inconsistencies in the Respondent’s testimony.
Ruling
[24] In reading the reasons in their totality, the learned Judge accepted a certain version of what transpired even though she did not give specific reasons. A judge is not obligated to address each and every conclusion that he/she makes, provided that from the totality of the reasons reasonable inferences can be made of what was accepted.
[25] In this case, specific findings of who initiated the assault are not really necessary since everyone agrees that a scuffle occurred while the Respondent was on his ATV and on the ground.
[26] It is also clear that when the officer decided to deploy his Taser, the physical confrontation had ended. Officer Lewis stated on several occasions that he deployed the Taser because he felt that the Respondent was going to flee and that the Respondent had his back to him. He was not concerned for his safety at that particular time.
[27] As well, it is clear from the learned Justice’s reasons that she accepted the evidence of Officer Laino, an expert on the use of Tasers. When presented with a fact scenario, the officer concluded that when the person is walking away, it is not likely that a further assault will reoccur. He stated that the use of the Taser is not “ideal” (p. 140 of the transcript), especially where the person is complying with the officer’s demands.
[28] I do not accept that the learned Justice misapprehended the evidence of Officer Laino’s testimony on the scenario presented. That is, the scuffle had ended, the Respondent was retreating to his ATV, and he was complying with Officer Lewis’ commands. Under cross-examination, Officer Laino testified as follows :
Q- So it sounds to me almost like it’s hard for you to draw a conclusion on these facts, one way or the other?
A-On the hypothetical facts here, as I stated earlier, if it’s a continuous offense, where I believe that I need to go hands-on with this person because he’s assaulted me. And that if I continue on that path, there’s a good chance that the assault re-occurs, I would utilize the CEW.
Q-So what if we add one more fact there?
A-Sure.
Q-That we heard in testimony from Officer Lewis “I believe he was headed to the bike to flee.” How about then, how do you feel of the use of the Taser in that scenario?
A-Under those circumstances alone, no.
Q-It would not be ideal?
A-It would not be ideal.
Q-And, in fact, it might be a little too-it might be outside the bounds of the use of force, if that’s your subjective belief at that moment?
A-If that’s all it is at that moment, yes.
(Transcript of March 11, 2016, at p. 138-140)
[29] At page 31 of her reasons, the learned Justice accepts the evidence of Constable Laino when she concluded as follows: “And as stated above I do not consider these, the incident as something that occurred as one continuous event.” This is exactly what Officer Laino stated in cross-examination.
[30] In its totality, the reasons give an understanding of the learned Justice thinking and provide more than ample understanding of how she arrived at her conclusion. There was no misapprehension of Officer Laino’s testimony. Accordingly, this ground of appeal is dismissed.
C. Remedy
[31] The Appellant Crown submits that the learned Justice erred in imposing a stay and failed to consider alternate remedies. Accordingly, a new trial should be ordered to determine the merits of the case. If there is a finding of guilty on any of the counts, then the Charter application can be renewed and a determination can be made as to the proper remedy if there is a finding of excessive force.
Ruling
[32] The learned justice found that the use of the Taser in these circumstances violated section 7 of the Charter. She then analysed the three-pronged test annunciated in R. v. Babos, 2014 SCC 16, quoting Moldaver J.:
By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial – even a fair one – will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met. (Babos, at para. 35)
[33] Keeping this in mind, the learned Justice concluded that Tasering someone without warning when the continuity of events had been broken, and the person was walking away from the altercation, offends “society’s sense of fair play and decency” (p. 34 of Reasons).
[34] She then analysed the effect on the Respondent and took into consideration the Respondent’s background and his Aboriginal origins, concluding that the proper remedy was a stay of proceedings.
[35] Although not specifically stated as the “GRANT” analysis, the learned Justice did consider the three-pronged test enunciated in Babos and concluded that the harm done to the Respondent, by the Tasering in the back, was so egregious that the only remedy was a stay of proceedings. Such conduct should not be condoned. She also concluded that continuing this prosecution would offend society’s sense of fair play and decency. The interests of the victim and of society must be protected.
[36] As stated by the Appellant Crown, a stay should be granted only “in the clearest of cases”. On the evidence before her, the conclusions arrived at by the trial judge could be drawn. Deference must be granted to the trial judge. Accordingly, this ground of appeal is dismissed.
[37] In summary, the appeal by the Appellant Crown is dismissed.
The Honourable Mr. Justice Robert G.S. Del Frate
Released: September 12, 2017
CITATION: R. v. Grosbeck, 2017 ONSC 5147
COURT FILE NO.: CR-16-016-OOAP
DATE: 20170912
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Appellant
– and –
Donald Grosbeck
Respondent
DECISION ON APPEAL
Del Frate J.
Released: September 12, 2017