Court File and Parties

COURT FILE NO.: CR-18-40000050-AP DATE: 20190716 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – SCOTT HEARNDEN Appellant

Counsel: J. Brienza, for the Respondent H.G. Black, Q.C., for the Appellant

HEARD: June 18, 2019.

REASONS FOR JUDGMENT

On appeal from the finding of guilt made on June 1, 2018 and the sentence imposed on June 20, 2018 by the Honourable Justice R. Shandler of the Ontario Court of Justice.

SCHRECK J.:

1The appellant, a police officer, forcibly removed a motorist from a car stopped at the side of a highway and was charged with assault. At his trial in the Ontario Court of Justice, the appellant testified that the motorist had assaulted him by slamming the car door against the inside of his knee and that he had removed the motorist from the car while in the process of arresting him. The trial judge rejected the appellant’s evidence, found him guilty, and imposed a conditional discharge.

2The appellant appeals his finding of guilt and sentence on numerous grounds. With respect to the finding of guilt, he submits that the trial judge committed a variety of legal errors, misapprehended evidence and failed to consider evidence. With respect to sentence, he submits that the trial judge erroneously found aggravating factors and failed to explain why he did not impose an absolute discharge.

3The following reasons explain why the appeal is dismissed. The numerous grounds of appeal against the finding of guilt essentially amount to little more than the appellant’s disagreement with the factual findings made by the trial judge. The main issue at trial was credibility. The trial judge’s reasons disclose that he carefully considered all of the relevant evidence, clearly outlined his factual findings and fully explained why he made them. His reasons for finding the appellant guilty do not reflect any legal error or misapprehension of the evidence. His reasons for sentence reflect no error in principle and the sentence imposed was entirely fit.

I. EVIDENCE

A. Evidence of the Offence

4At around midnight on June 30, 2015, James Smith was driving his car on Highway 401 in Toronto with his friend, Matthew Dobson, in the front passenger seat and Mr. Dobson’s girlfriend, Ashley Deveaux, in the rear passenger seat. Two other friends were driving in the same direction in their own vehicles. The battery in Mr. Smith’s car failed so he pulled over onto the side of the highway. His friends also pulled their cars over.

5Mr. Smith called the Canadian Automobile Association (“CAA”) to request a tow truck. As he did so, two Ontario Provincial Police (“OPP”) cruisers arrived. The appellant was in one and another officer, Cst. Otchere, was in the other.

6The appellant approached the driver’s door of Mr. Smith’s car to speak to him. Mr. Smith, who was still on the phone, held up his index finger, which the appellant took to mean “give me a minute.” The appellant walked to the back of Mr. Smith’s car, waited for about 20 seconds, and then returned to the driver’s door.

7The appellant opened the driver’s door and Mr. Smith then closed it. There is no issue that shortly after this, the appellant forcibly removed Mr. Smith from the car. Together with Cst. Otchere, he brought the struggling Mr. Smith over to one of the other cars and handcuffed him. In the course of the struggle, Mr. Smith’s head was forcefully slammed into the hood of the car, leaving a dent. Mr. Smith was then placed in the back of a police cruiser. He was released a short time later after being given a ticket for driving while his licence was suspended. He was not charged criminally.

B. The Appellant’s Evidence

8The appellant testified that when he opened the door to Mr. Smith’s car, Mr. Smith slammed the door shut. As he did so, the door struck the inside of the appellant’s left knee. According to the appellant, this led him to conclude that he had reasonable grounds to arrest Mr. Smith for assault. It was in the course of effecting that arrest that he removed Mr. Smith from the vehicle. The appellant testified that he had observed a baseball bat in the car which he was concerned could be used as a weapon.

C. The Video Recording

9As Mr. Smith was being removed from his vehicle, he shouted to one of his friends to record what was happening. The friend did so and audio and video recorded the events. The recording was tendered by the Crown at trial. On the recording, the appellant is heard repeatedly saying that Mr. Smith had slammed the door on his leg:

APPELLANT: …relax…relax…I opened the door you slammed it on me…on my leg…the second time I ripped the door open you slammed it on my leg.…

SMITH: (Inaudible)

APPELLANT: That’s why we’re here…I just told you…I don’t appreciate you slamming the door on my leg.

SMITH: (Inaudible).

D. The Red Mark on the Appellant’s Knee

10Later in the day, the appellant told his supervising officer, Sgt. Smith, that he had been struck by the car door and showed her a red mark on his knee. As a result, Sgt. Smith filled out a Worker’s Safety and Insurance Board (“WSIB”) claim form.

II. THE TRIAL JUDGE’S REASONS

A. Finding of Guilt

11The central issue for the trial judge to determine was whether Mr. Smith had slammed his car door on the appellant’s knee and thereby given the appellant grounds to arrest him. The trial judge held that the appellant had not had any lawful authority for opening the car door and that apart from the lack of lawful authority, he did not accept the appellant’s account that he had been assaulted by Mr. Smith. In the trial judge’s view, the appellant’s account was “illogical, contrary to common sense and not supported by any other witness at the scene.” As there was no assault by Mr. Smith, the appellant had no justification for forcibly removing Mr. Smith from the car and by doing so, he committed an assault.

12The trial judge did not accept the evidence of Cst. Otchere or Mr. Smith. He did, however, accept the evidence of Mr. Dobson and Ms. Deveaux, whom he found to be credible and reliable.

13The trial judge was not satisfied beyond a reasonable doubt that the appellant was responsible for slamming Mr. Smith’s head against the hood of the car as it may have been Cst. Otchere who did so.

B. Sentence

14The Crown’s position on sentencing was that a suspended sentence was appropriate. Counsel for the appellant sought an absolute discharge. The trial judge concluded that a conviction was not necessary in the circumstances and granted a conditional discharge with 12 months of probation. In addition to the statutory conditions, the probation order required the appellant to perform 120 hours of community service.

III. GROUNDS OF APPEAL AGAINST FINDING OF GUILT

A. Lawful Authority to Open the Car Door

15As noted, the trial judge concluded that the appellant had no lawful authority for opening the door to Mr. Smith’s car. Counsel for the appellant submits that he erred in law in so concluding and made lengthy written and oral submissions about the ancillary powers doctrine as it was developed in R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.), R. v. Stenning, [1970] S.C.R. 631 and other cases.

16As counsel for the appellant eventually acknowledged in oral argument, nothing turns on whether the appellant was lawfully entitled to open the door. Even if the trial judge was wrong and the appellant was entitled to open the door (which I doubt), it was never the defence position that Mr. Smith’s arrest was justified because he prevented the appellant from opening the door. Rather, the appellant’s position was that Mr. Smith assaulted him in closing the door, something which the trial judge found did not happen.

17The appellant submits that the lawfulness of the opening of the door is also relevant to the sentence appeal, an issue I will address later.

B. The “New Theory of Liability”

18At trial, the Crown accepted that the appellant’s leg had been struck by the door but took the position that this had occurred while the appellant was opening the door and not while Mr. Smith was closing it. The appellant submits that contrary to the Crown’s position, the trial judge found that the door never came into contact with the appellant’s leg. He submits that this was a “new theory of liability” and that it was unfair for the trial judge to decide the case on the basis of this new theory without giving the parties notice that he was contemplating doing so.

19I agree that it would have been an error for the trial judge to find the appellant guilty based on a theory of liability not advanced by the Crown and of which the defence had not been given notice: R. v. Ranger (2003), 67 O.R. (3d) 1 (C.A.), at para. 136; R. v. Grewal, 2018 ONSC 5325, at paras. 59-60. However, the trial judge did not do that.

20The Crown’s theory of liability was that Mr. Smith did not assault the appellant with the car door, so the appellant’s removal of him from the car was not justified. The trial judge accepted that theory. Whether the appellant hit himself with the car door or not was of no moment. What mattered was whether Mr. Smith had hit the appellant with the car door, which the trial judge found he had not.

21In any event, I do not read the trial judge’s reasons as concluding that the door did not come into contact with the appellant’s knee. In his reasons, the trial judge stated (at para. 26):

The difficulty with [the appellant’s] account is that it is practically impossible for Mr. Smith’s door to have struck the inside of the defendant’s knee as it was being slammed shut. The car door would have struck the defendant on the outside of his knee, not the inside. This was put to the defendant in cross-examination who could not really explain it. The defendant suggested that, as the door slammed closed, he tried to get out of its way and in the process of swiveling his body back against the car, the door struck the inside of his knee. [Emphasis added]. [1]

At no point did the trial judge find that the door did not come into contact with the appellant’s knee, only that it had not done so in the manner the appellant described in his testimony.

C. Failure to Consider the Recording

22The appellant also submits that the trial judge erred by failing to consider the recording made by Mr. Dobson in which the appellant repeatedly states that Mr. Smith had slammed the door on his leg. Counsel for the appellant takes the position that once the Crown tendered this evidence, it became “direct evidence” of what happened and was “powerful if not irrefutable evidence” that Mr. Smith had struck the appellant’s knee.

23It is true that the trial judge did not specifically mention the recording in his reasons. However, he was not required to do so, as was made clear in R. v. C.(T.) (2005), 74 O.R. (3d) 100 (C.A.), at para. 45:

Although it is the duty of a trial judge in a criminal case to give reasons for decision that tell the accused the basis for the verdict and that also provide the basis for meaningful appellate review, a trial judge need not mention every piece of evidence that supports his or her conclusion or address every piece of evidence that may not support that conclusion, as long as it is clear that the trial judge heard and considered all of the evidence in coming to his or her conclusions of fact and law.

See also Vanier v. Vanier, 2017 ONCA 561, 28 E.T.R. (4th) 1, at para. 70; R. v. Kendall (2005), 75 O.R. (3d) 565 (C.A.), at para. 77.

24Although the trial judge did not mention the recording, he accepted that the appellant had made an allegation at the scene that Mr. Smith had struck his leg:

Indeed, Ms. Deveaux testified that she recalled the defendant saying later on “I don’t appreciate my leg being slammed in the door” and wondered how and when that could have happened. She could not imagine how that would have occurred with Mr. Smith’s car door. I accept her evidence, as more fully set out below. [2]

The recording would have added little, if anything, to the evidence of Ms. Deveaux.

25In any event, I fail to see how the recording was “direct evidence” of what happened, let alone “irrefutable”. It was a prior consistent statement by the appellant. Counsel for the appellant submits that it was admissible for its truth as a spontaneous utterance. No such submission was made to the trial judge, and I doubt that the appellant having his knee hit by a car door would have resulted in sufficient pressure or emotional intensity such that the possibility of concoction or deception could be safely discounted: R. v. Nguyen, 2015 ONCA 278, 125 O.R. (3d) 321, at paras. 145-146; R. v. Khan (1988), 42 C.C.C. (3d) 197 (Ont. C.A.), at p. 207, aff’d [1990] 2 S.C.R. 531. Even if the utterances were admissible for their truth, the fact that the appellant made an earlier statement consistent with his testimony could not be used to corroborate his evidence: R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para. 41.

D. Failure to Consider the Red Mark

26There was uncontradicted evidence that the appellant had shown another police officer, Sgt. Smith, a red mark on his knee. The appellant submits that the trial judge erred by failing to explain how there could have been such a red mark on the appellant’s knee if he had not been struck by the car door in the manner he described.

27The trial judge was aware of the evidence respecting the red mark and expressly mentioned it in his reasons. As juries are routinely instructed, a trier of fact is only required to decide those matters that are essential to determine whether the charge has been proven beyond a reasonable doubt and is not required to answer every question raised in a case: Hon. D. Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015) at p.231 (Final 2-A). The central issue before the trial judge was whether Mr. Smith had assaulted the appellant with the car door. The trial judge did not accept that such an assault had occurred and explained his conclusion. Once he resolved this critical factual issue, there was no obligation on him to determine some alternate cause for the red mark.

E. The Trial Judge’s “Supplementing” of the Evidence

28The appellant submits that the trial judge “supplemented the evidence” because there was no evidence that it was “impossible or practically impossible” for the car door to have struck the inside of the appellant’s knee, as the trial judge concluded in his reasons. As I understand the argument, it is the appellant’s position that unless there were photographs of the door and evidence of its measurements, it was not open to the trial judge to draw the conclusions that he did.

29I cannot accept this submission. The appellant gave a detailed description of his version of events. The trial judge rejected it. It was open to him to do so. It is well established that an appellate court must defer to the factual conclusions of a trial judge absent some palpable and overriding error: R. v. Canavan, 2019 ONCA 567, at para. 36. No such error has been demonstrated.

F. Misapprehension of the Evidence of Otchere, Deveaux and Dobson

30With respect to the appellant’s description of being assaulted with the car door while trying to get out of the way, the trial judge stated:

This improbable account of how he became injured was not provided until the defendant was pressed in cross-examination to account for it and, even then, he could not fully or satisfactorily explain it. The maneuver itself was not witnessed by either Cst. Otchere, Ashley Deveaux or Matthew Dobson, all of whom were well placed to note the defendant moving his body in this fashion. [3]

The appellant submits that the trial judge misapprehended the evidence of all three witnesses.

31With respect to Cst. Otchere, the appellant relies on the following portion of his examination-in-chief:

Q. Did he move towards the car?

A. After he opened it a second time?

Q. No, Hearnden was by the car…

A. Yeah.

Q. … and he tries to open it one time, yes.

A. Right.

Q. Does he move towards the car at that point in time?

A. I’m not in a position to tell you if he did, but I’m guessing he probably did because the second time around when he opens the door he’s inside the opening of that door. [4]

Later in his testimony, he testified:

Q. When Officer Hearnden opens the door the first time, do you see him move closer to the car?

A. I don’t think I do. I’m not in a position to see that. [5]

32The appellant submits that these portions of Cst. Otchere’s evidence make it clear that he was not in a position to make observations of the appellant’s maneuver at the time the car door was slammed, contrary to what the trial judge stated. However, earlier in his testimony, Cst. Otchere gave a clear description of seeing Mr. Smith slam the car door after the appellant had opened it:

So he opened the door to go – to speak to him.… So as soon as that happened, it was instantaneous. As soon as he opened the door just – and I can’t recall if there was any words that came out of his mouth, that door was violently grabbed and shut and it was shut like hard and I remember hearing close – I mean, “I’m on the phone” is what I remember hearing. It was very loud and very angry, like close – I mean, “I’m on the phone” he says after the door – or while he was shutting the door. [6]

It was open to the trial judge on this evidence to conclude that Cst. Otchere would have been in a position to see the maneuver the appellant described engaging in at the time the car door was slammed.

33With respect to Mr. Dobson and Ms. Deveaux, both testified to seeing the interaction between the appellant and Mr. Smith. It was therefore open to the trial judge to conclude that they would also have been in a position to see the appellant’s maneuver.

34In any event, the trial judge rejected the appellant’s account because he found it to be implausible. He was merely noting in the impugned passage that the appellant’s account was not corroborated by other witnesses who were present. Even if there was a misapprehension of the evidence, it was not material and did not play an essential part in the trial judge’s reasoning process: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56, per Lebel J.; R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 538.

G. Failure to Consider Otchere’s Evidence About the Car Door

35The appellant had testified that when he opened the car door, there was a gap of 15 to 20 inches between the door and the car before it was shut. Ms. Deveaux testified that the gap was less than three inches. The trial judge accepted Ms. Deveaux’s evidence. The appellant submits that in coming to that conclusion, it was incumbent on the trial judge to consider the evidence of Cst. Otchere, who had testified that the door was opened “halfway to three quarters”.

36This submission is somewhat puzzling, given the appellant’s position that the trial judge had erred by concluding that Cst. Otchere had been in a position to see the appellant’s movements at the time the car door was opened. In any event, as noted earlier, there was no obligation on the trial judge to mention every piece of evidence, particularly where that evidence came from a witness he did not find to be credible.

H. Failure to Consider Honest But Mistaken Belief

37The appellant submits that the trial judge erred by failing to consider whether the appellant had honestly but mistakenly believed that he had been assaulted. This submission is without merit. There was no air of reality to such an honest but mistaken belief. On the evidence accepted by the trial judge, the car door was barely opened and closing it could not possibly have resulted in the appellant being struck in the manner that he described. Based on these findings, there was no basis on which the appellant could have honestly but mistakenly concluded that he had been the victim of an assault.

IV. APPEAL AGAINST SENTENCE

A. Consideration of the Conduct of the Defence

38During his reasons for sentence, the trial judge stated:

As set out more fully in my Reasons for Judgment, Scott Hearnden’s actions on that day constituted an assault. There was no lawful authority for his actions and no justification. His claim that Smith assaulted him with his car door and a concern for secondary weapons were simply pretexts to cover his own assaultive conduct. [7]

The appellant submits that the reference to “pretexts” demonstrates that the trial judge was considering the manner in which the appellant conducted his defence as an aggravating factor.

39The appellant is correct that it is an error to treat the manner in which a defendant conducted his defence as an aggravating factor: R. v. Ellacott, 2017 ONCA 681, at para. 22. However, the trial judge did not do that. He was simply summarizing his findings at trial and there is nothing in his reasons to indicate that he viewed this as an aggravating factor.

B. Lawful Authority to Open the Car Door (Redux)

40In his reasons for sentence, the trial judge noted that police officers are given powers not enjoyed by other members of society and, quoting from R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 32, that “Courts must guard against the illegitimate use of powers by the police against members of our society, given its grave consequences.” The trial judge then continued:

When those powers are abused, as they were in this case, that constitutes a breach of the public’s trust and a violation of that very authority that an officer swore to uphold. It endangers the public’s trust and confidence in its police officers and this is, in my view, the most notable aggravating feature in this case. [8]

The appellant submits that when he referred to an abuse of “those powers”, the trial judge was including the opening of the car door, which he had found to be unlawful. According to the appellant, the trial judge’s conclusion in this regard was wrong, which affected his assessment of the degree to which the appellant’s conduct constituted an aggravating factor.

41This submission is without merit. The police powers the trial judge was referring to were clearly those powers which entitle them to use force on and potentially cause harm to people, which is the type of power that was discussed in Nasogaluak.

C. Failure to Explain Why Not an Absolute Discharge

42The appellant submits that the trial judge erred by failing to grant him an absolute discharge. As I understand his submission, he does not suggest that a conditional discharge was an unfit sentence, but that the trial judge had erred in principle by failing to explain why he was not granting an absolute discharge.

43I would not give effect to this argument. The trial judge was aware of and adverted to the defence position that an absolute discharge would be appropriate. His reasons make clear why he was granting a conditional rather than an absolute discharge:

Weighed in the balance, I find that a conditional discharge is not contrary to the public interest. Denunciation and deterrence will be reinforced by a period of probation for 12 months and I will also include a period or a provision for community service. I am going to order that Mr. Hearnden give back to the public whose trust he breached. [9]

44While freestanding community service orders are available in s. 42(2)(i) of the Youth Criminal Justice Act, there is no similar provision in the Criminal Code. Community service can only be ordered as part of a probation or conditional sentence order. The trial judge determined that community service was appropriate and a probation order was necessary to implement that part of the sentence. His reasons reflect no error warranting appellate intervention.

V. DISPOSITION

45The appeal is dismissed. If the appellant was ordered to pay a victim fine surcharge, that order is set aside: R. v. Boudreault, 2018 SCC 58; R. v. Seguin, 2019 ONCJ 257.