ST. CATHARINES COURT FILE NO.: 260-18AP DATE: 2019-04-30 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen Peter Scrutton, for the Respondent Respondent
- and -
Michael Baxter Frank Addario and Kate Robertson, for the Appellant Appellant
HEARD: April 15, 2019 in St. Catharines
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL The Honourable Mr. Justice A. C. R. Whitten
Introduction
[1] The appellant, Michael Baxter (the officer) appeals his conviction for assault bodily harm rendered by Justice Fergus O’Donnell of the Ontario Court of Justice. Justice O’Donnell delivered these reasons for judgment orally on November 10, 2017 and released his written reasons for judgment January 22, 2018. (42 pages of reasons for judgment followed by three pages of footnotes)
[2] The trial itself was conducted June 6, 7 and 8, July 11 and August 9, 2017. The evidence adduced was a combination of agreed statements of fact, viva voce evidence and exhibits. The most significant viva voce evidence being that of the officer. The most germane of the exhibits was a high quality CCTV surveillance footage that captured the entire event which formed the basis for the charge.
[3] The charge arises out of the lawful arrest of Bradley Stritzinger (Mr. S.) on August 16, 2016. Mr. S. had made something of a nuisance of himself at a local Shopper’s Drug Mart and its surrounds, which resulted in the 911 call and police response. Mr. S. was known to the police. He had a record of minor misdemeanors, (no assault police), mental health issues and was HIV positive. With respect to the latter fact, it should be noted that he had a habit of spitting. The officer at trial testified in some depth as to the number of notations in police records as to contact with Mr. S. However, one notes in passing that in the SIU interview transcript, which on consent was admitted at trial, at page 40, line 17, the officer responded to a question by the interviewing officer, Officer Millar, as to how much personal contact, physical violence the officer had had with Mr. S. in the past and the officer responded “personally no”.
[4] Mr. S. was quite intoxicated on the day in question.
[5] The officer was responding to a dispatch arising out of the 911 call. The CCTV footage shows Mr. S. apparently stopping in response to the statements made to him by the officer to do so and the entire encounter, including with Mr. S. being placed and on the ground and restrained by the officer. No doubt because of his state of intoxication, Mr. S. has no recollection of what transpired and consequently was not called as a witness.
[6] Basically, the centrality of the trial focused on the evidence of the officer as to the nature of his training and the necessity for use of force, his reasons for why he acted as he did in restraining Mr. S., compared with what the CCTV footage revealed. The latter was definitely as Justice O’Donnell remarked, a “silent witness” to the event.
Grounds of Appeal
[7] The central issue at trial was whether or not the force deployed by the officer to contain Mr. S. was reasonable in all the circumstances of the case.
[8] The appellant advances the following errors on the part of the trial judge that lead to a miscarriage of justice that merits a directed acquittal of the officer or a new trial:
- The trial judge misapprehended the evidence at trial: principally the officer’s evidence as to what compelled him to act in the fashion that he did. This evidence being essentially that Mr. S. having been ordered to put the bag that he was carrying down, and in so doing moved his left hand under his shirt while the right hand raised the shirt. The officer testified that in his mind, this was an indication that Mr. S. was possibly moving to reach for a weapon.
- The trial judge misapprehended the evidence in not finding that there was resistance on the part of Mr. S. to the order/commands of the officer.
- The trial judge erred in applying the relevant case law as to the approach of a trial judge in scrutinizing the actions of police officers in a very fluid/dynamic situation. The approach of the trial judge was in effect tainted by hindsight.
- The trial judge erred in his application of the tripartite test enumerated by the Supreme Court of Canada in R. v. W.D., [1991] 1 S.C.R. 742.
Applicable Law
Powers of the Court of Appeal
[9] An appellate court can, according to section 686(1)(a)(i) of the Criminal Code, set aside a verdict if it is of the opinion that: “the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,” or for that matter, in accordance with section 686(1)(a)(iii): “on any ground there was a miscarriage of justice.”
[10] These general powers are modified by section 686(1)(b)(iii) which provides with respect to an error as to the law that the court even with such an error so found, may dismiss the appeal if “it is of the opinion that no substantial wrong or miscarriage of justice has occurred.”
[11] Justice Doherty in R. v. Morrissey, [1995] O.J. No. 639 (O.C.A.), writing for the panel, states that for all the possible basis for reversal contained in section 686(1)(a), the underlying theme is that there is a miscarriage of justice.
[12] A written judgment written by a judge sitting alone, reveals what evidence was of significance to the presiding jurist and how he or she arrived at their conclusions based on the facts so found.
[13] Justice Doherty in R. v. Morrissey demonstrated some of the practical steps taken by the appellate court:
- The trial judge is presumed to know the law (which obviously would include the presumption of innocence).
- If a phrase in the reasons is capable of being interpreted in two interpretations “the (interpretation) which is consistent with the trial judge’s presumed knowledge of the applicable law must be preferred over one which suggests an erroneous application of the law.” (ref. para. 27)
- It is an error “to dissect the reasons into small pieces and examine each piece in isolation as if it described or was intended to describe a legal principle applied by the trial judge…. Reasons for judgment must be read as a whole… and with an appreciation of the purpose for which they were delivered.” Appellate courts must resist the temptation to “microscopically examine reasons for judgment.” (ref. para 28 and 31)
- In an appeal based on misapprehension of evidence, the first step is to consider the reasonableness of the verdict. If the verdict is not unreasonable, did any misapprehension of evidence cause a miscarriage of justice. If that exists, the appellate court must either acquit or order a new trial. If neither the verdict was unreasonable nor there was a miscarriage of justice, the appellate court must consider whether or not the misapprehension of evidence was tantamount to an error in law. (ref. para. 88)
- A misapprehension of evidence does not per se render a verdict unreasonable. Any misapprehension must be with respect to significant or material evidence, and consequently that misapprehension plays an essential part in the reasoning process resulting in a conviction. (ref. paras. 86, 89 and 93) (see also R. v. Sinclair, 2011 SCC 40, 2011 S.C.C. 40 at para. 56)
[14] Justice Binnie in R. v. Lohrer, (2004) 2004 SCC 80, 3 S.C.R. 732, in commenting on Morrissey, states:
It should be emphasized (Morrissey) describes a stringent standard. The misapprehension of evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but in the “reasoning process resulting in a conviction.” (Underlining mine.)
(ref. para. 2)
[15] Justice Doherty, writing again later in R. v. J.J.R.D., [2006] O.J. No. 4749 (C.A.), commented on the trial judge’s rejection of the evidence of the appellant. The appellant had denied culpability but there was positive evidence to the contrary. His Honour opined:
An outright rejection of an accused’s evidence based on a considered and reasonable acceptance beyond a reasonable doubt of the truth of conflicting evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on problems identified with the way the accused testified or the substance of the accused’s evidence.
(ref. para. 53)
Applicable Principles with Respect to Police Use of Force
[16] Section 25(1) of the Criminal Code is the starting point for how much force can be legitimately used by a police officer, who by law is one of those who are authorized, indeed required to act to enforce the law. “The individual must act on reasonable grounds (which was conceded in the case at hand) and use “as much force as is necessary for that purpose (i.e. law enforcement).” So the primary elements are, reasonable grounds and the proportionality of the force deployed, required in the particular context (necessity). Section 26 prohibits excessive force: namely, that which is in excess given the nature and quality of the act which constitutes the excess.
[17] Justice LeBel wrote for the unanimous court in R. v. Nasogaluak, [2010] S.C.C. 6. He stated:
…police officers do not have an unlimited power to inflict harm on a person in the course of their duties. While, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness. Courts must guard against the illegitimate use of power by police against members of our society given its grave consequences.
(ref. para. 32)
[18] After stating the essence of section 25 of the Criminal Code, Justice LeBel relates how section 25(3) prohibits the use of force intended or likely to cause death or grievous bodily harm unless the officer reasonably believes that such a level of force is necessary for self-preservation or to protect someone under the officer’s protection. The latter is not an issue in the case at hand. “The officer’s beliefs must be objectively reasonable. This means that the use of force under section 25(3) is to be judged on a subjective/objective basis.” (ref. para. 34)
[19] A jurist is not to apply a standard of perfection to assess the actions of a police officer. “It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances.” (ref. para 35)
[20] R. v. Nasogaluak was followed within a month by R. v. Szezerbaniwiez, 2010 SCC 15, [2010] S.C.J. No. 15, in which Justice Abella wrote for the majority. Again like Justice LeBel, the necessity for “proportionality” in the use of force was emphasized:
In effect, an inquiry as to whether the force deployed “was reasonable in all the circumstances.” That inquiry would by necessity include the accused’s subjective belief as to the nature of the danger or harm presented. As with subjective beliefs generally, there is an objective element; namely, a basis of reasonable grounds. The subjective element is distinct from the officer having reasonable grounds to arrest or apprehend. It applies to the nature and the force deployed to achieve the arrest; namely, was that reasonable?
(ref. paras. 20 and 21)
[21] As with all retrospective analysis of police conduct, it must be realized that the situations encountered are oft times rapidly evolving, fluid and dynamic, requiring the quick exercise of discretion and judgment. The reviewer must give some degree of latitude to the actions (as mentioned above), it would not be fair to expect perfection. (ref. Cromwell J. in R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, para. 24)
[22] As the trial judge herein noted, the presiding jurist cannot be “an armchair quarterback”.
[23] This giving of latitude recognizes mistakes will be made but the actors must act reasonably. (ref. Crampton v. Walton, 2005 ABCA 81, [2005] A.J. No. 178, para. 22; R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, para. 73).
[24] This latitude recognizes that “the police need not measure the precise amount of force required and must be given allowance for misjudging the degree of force required because of the exigencies of the moment. Part of the inquiry focuses on whether the assessment of the circumstances and danger were reasonably held.” (ref. Webster v. Edmonton (City) Police Service, [2007] A.J. No. 71 (Alta. C.A.), para. 31).
[25] There is no requirement that the police use only the least amount of force which might successfully achieve their objective. To so require could very well result in unnecessary danger to themselves or others. (ref. Levesque v. Sudbury Regional Police Force, [1992] O.J. No. 512, page 3).
Analysis
[26] The judgment of O’Donnell J was extensive and well written. His findings of fact and the conclusions he drew were clearly set out.
Ground 1
[27] The development of this ground in the factum of the appellant and in the argument before this court centered on the fact that the trial judge in his judgment referred to the hand to the waist evidence in the generic or plural fashion. Instead of referring specifically to the actions of the left hand and that of the right hand, His Honour spoke in terms of hands (i.e. plural). That being said, when one observes the evidence of the appellant/officer in-chief at page 68 of Volume I of the transcript, there is a two-handed aspect, so for the trial judge to refer to “hands” per se is within the linguistic parameters. (See paragraph 40 of the judgment.) This is not by any stretch a “material misapprehension”. The appellant himself in-chief at page 69 of Volume I of the transcript states, “that is, especially placing hands under the shirt towards the beltline.”
[28] Therefore, the reference to hands per se versus the actions of the right or the left presents as a microscopic examination that Justice Doherty cautioned against in R. v. Morrissey.
[29] The Crown appropriately suggests that a watching of the CCTV surveillance footage of the event should be dispositive of this ground of appeal. Even though the body of the officer blocked what the left hand was doing after the placing of the bag on the ground by Mr. S., the sequence of what happened is fundamentally different from what the officer attested to. The officer testified that it was the hands to the waist section that caused him to go into the application of force mode. The trial judge noted that in cross-examination the officer conceded that hypothetically if there had been no such movement to the waist there would have been no need to go into the mode he did, i.e. throwing Mr. S. against the fence.
[30] The trial judge from observing the video footage could reasonably conclude that the officer started to go into the use of force mode before Mr. S. had completed the actions of placing the bag on the ground, namely, before any possible action of hands to waist, an action which was not demonstrated in the video, notwithstanding whether the hands would be obscured. The scenario attested to by the officer did not jive with what the video revealed. Understandably the trial judge stated at paragraph 41 of his judgment that the officer’s evidence was “a rationalization not a rationale.” As the Crown writes, the appellant’s testimony was self-serving and significantly different from what is shown in the video. It was plain and simply a “gratuitous assault.”
Ground 2 - Misapprehension of Evidence of Resistance
[31] Examples of resistance alleged on the part of Mr. S. are: his use of profanity, his failing to immediately stop when ordered to do so by the officer, his not putting his hands on the fence when ordered to do so, and his pushing back from the fence when the officer was pushing him into the fence.
[32] Again the video speaks volumes. Mr. S. as demonstrated by the slowness of his movements and his questionable balance when he does stop and turn around the face the officer, is clearly intoxicated. The trial judge fairly characterized Mr. S. as being like a “rag doll” (see paragraphs 42-43). There is no pushing back. The officer is totally in control, and literally bounces Mr. S. off the fence and then throws him to the ground. There is no jockeying for power in the struggle, no balance of power. It was open to the trial judge to find as a fact that the officer “repeatedly, materially exaggerated the nature of Mr. S.’s resistance.” Even giving the officer situational latitude, there was no necessity for the grounding to ensure officer safety in the face of ineffective nonphysical resistance such as swearing. The “grounding” in this matter was neither necessary nor proportional. If anything, the trial judge was being quite charitable to the officer and his testimony, when he found that the officer did not intentionally drop Mr. S. to the ground (ref. paragraph 44 of the judgment).
[33] There are collateral references by the trial judge listed as to the difficulties he found with the officer’s evidence in his paragraph 52; the overstating of Mr. S.’s record and behaviour, the absence of evidence of the fear of Mr. S.’s spitting in the notes of the officer and, the lack of the corroboration of the officer’s belief that Mr. S. had pushed a Shopper’s employee into the glass windows of the store.
Ground 3 - Application of Hindsight
[34] The trial judge was quite conscious of the risk of this phenomena. He cited the same case law as referred to in these reasons for judgment in his footnotes and in the body of the judgment. Paragraphs 9 and 10 of the judgment recognizes the reality of what police officers face; quick changing situations, “not a genteel process subject to boxing’s Marquess of Queensbury Rules.”
Ground 4 - R. v. W.D. Test
[35] The trial judge at a fairly early point in his judgment, paragraph 7, sets out a textbook description of the three part analysis that Justice Binnie spoke of in R. v. W.D. That analysis is repeated in paragraph 50. None of the following analysis detracted from that recognition.
[36] The videotape footage was “real evidence”. It was unassailable. There is absolutely no suggestion that it was anything other than a totally accurate depiction of the interaction between the officer and Mr. S. It enabled the trial judge to find as he did, that the evidence of the police officer was not believable, (so the first round of W.D. is gone). That unbelievable evidence did not raise a reasonable doubt, (second ground of W.D. is gone). On the totality of the evidence, there was no reasonable doubt. The video footage allowed the trial judge to navigate all three stages of the W.D. logic. It enabled the trial judge to reject the officer’s evidence because the video in itself was proof beyond a reasonable doubt of the guilt of the officer. (ref. Justice Doherty in R. v. J.J.R.D.)
Conclusion
[37] For all of the above, I find that there was no misapprehension of the evidence by the trial judge, no error on the trial judge’s comprehension of the need for latitude in terms of assessing police use of force in difficult circumstances, and finally there was no error in the application of the W.D. principles to the evidence found to be credible.
[38] The verdict of the trial judge was entirely reasonable in the circumstances of this case. There was no miscarriage of justice. Therefore, the appeal is dismissed.