Her Majesty the Queen v. Gary Green

COURT FILE NO.: CR 27/17 DATE: 20190212 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Gary Green, Defendant

COUNSEL: Lisa Defoe, for the Crown Jaime L. Stephenson, for the Defendant

HEARD: May 22 to 25; May 29 to 31; June 1, 4 & 5; July 3; September 21, 25, 26 & 27

REASONS FOR JUDGMENT

GORMAN, J.

[1] Gary Green was initially charged with 44 counts on an indictment. At the commencement of the trial, counsel for Mr. Green admitted the following essential elements: date; jurisdiction; identity; and that Mr. Green was bound by all orders as outlined in the indictment.

[2] In addition, at the outset, prior to evidence being tendered, Mr. Green entered pleas of guilty to the following offences:

• Count 2: mischief under $5000, contrary to s. 430(4) of the Criminal Code.
• Count 3: break and enter a dwelling house, contrary to s. 348(1)(a) of the Criminal Code.
• Count 4: theft of a 2004 Dodge Dakota pickup truck, contrary to s. 333.1 of the Criminal Code.
• Count 5: possession of a TIKKAM55 bolt action rifle without being the holder of a license, contrary to s. 91(1) of the Criminal Code.
• Count 6: possession of a Browning Medallion bolt action rifle without being the holder of a license, contrary to s. 91(1) of the Criminal Code.
• Count 7: possession of stolen property under $5000, 2013 Dodge Ram pickup truck, contrary to s. 355(a) of the Criminal Code.
• Count 18: robbery of Berndt Homburg contrary to s. 344(1) of the Criminal Code.
• Count 20: dangerous driving contrary to s. 249(1)(a) of the Criminal Code.
• Count 30: breach of recognizance, contrary to s. 145(3) of the Criminal Code.
• Count 32: breach of recognizance, contrary to s. 145(3) of the Criminal Code.
• Count 35: breach of recognizance, contrary to s. 145(3) of the Criminal Code.
• Count 38: breach of recognizance, contrary to s. 145(3) of the Criminal Code.
• Count 42: breach of a weapons prohibition order, contrary to s. 117.01(1) of the Criminal Code.

[3] The Crown withdrew the following counts:

• Count 8: possession of stolen property, contrary to s. 355(b) of the Criminal Code.
• Counts 23 to 26: drive disqualified, contrary to s. 259(4) of the Criminal Code.
• Count 28: possession of a controlled substance under 30 g, cannabis marijuana, contrary to s. 4(1) of the Controlled Drugs and Substances Act.
• Count 32: breach of recognizance, contrary to s. 145(3) of the Criminal Code.
• Count 34: breach of recognizance, contrary to s. 145(3) of the Criminal Code.
• Count 36: breach of recognizance, contrary to s. 145(3) of the Criminal Code.
• Count 37: breach of recognizance, contrary to s. 145(3) of the Criminal Code.
• Count 39: breach of recognizance, contrary to s. 145(3) of the Criminal Code.
• Count 40: breach of recognizance, contrary to s. 145(3) of the Criminal Code.
• Count 41: possession of stolen property, contrary to s. 355(b) of the Criminal Code.
• Count 43: breach of weapons prohibition, contrary to s. 117.01(1) of the Criminal Code.
• Count 44: breach of recognizance, contrary to s. 145(3) of the Criminal Code.

[4] The trial proceeded with the remaining 14 counts on the indictment.

[5] Based on the evidence called, the Crown very fairly invites acquittals on the following charges given that they have not been proven beyond reasonable doubt:

• Count 19: assault police officer Perry Gray Ham contrary to s. 270(1)(b).
• Count 27: possession of a controlled substance included in Schedule one, to wit, cocaine, contrary to s. 4(1) of the Controlled Drugs and Substances Act.
• Count 29: possession of break and enter tools, contrary to s. 351(1) of the Criminal Code.
• Count 33: breach of recognizance, contrary to s. 145(3) of the Criminal Code.

[6] On September 23, 2016, Mr. Green and a young person ended up engaged in a lengthy pursuit involving upwards of 20 police officers. Mr. Green was the driver throughout the pursuit. It is admitted by the defence that Mr. Green drove at excessive speeds and in a dangerous manner in an attempt to evade the police.

[7] The incident began after Mr. Green and the young person – his cousin, travelled to the area of the Oneida reserve in a stolen white pickup truck and came to the attention of Oneida police officer, Jamie Doxtator. The officer followed Mr. Green and ultimately engaged in a pursuit, which further involved other officers, including Sergeant Callum Rankin, P.C. Friedrichsen, P.C. Edward Philippo, P.C. Eddie King and P.C. Tyler Jacobs.

[8] At some point during the initial pursuit, Mr. Green ended up running over a spike belt. He then attended at what has been known as the Atkinson residents where he caused significant damage to the lawn and entered their home and ultimately took the vehicle keys to their blue Dodge truck and attempted to travel undetected out of the jurisdiction.

[9] When Constable Doxtator encountered Mr. Green again and realized he was the same person that he had encountered previously, albeit in a new vehicle, the pursuit was reengaged. Several more officers became involved in the pursuit and Mr. Green ended up striking or contacting at least one civilian vehicle and at least four police vehicles.[^1]

[10] Ultimately, the blue Dodge that Mr. Green had taken from the Atkinson residents was rendered inoperable and Mr. Green fled on foot and attempted to rob Berndt Homburg. When unsuccessful he continued his flight and was arrested a short time later by Constable Perry Graham.

[11] The counts that the court must adjudicate on are as follows:

• Count 1: Gary Green stands charged that he, on or about the 23^rd day of September, 2016, at the Township of Southwold, in the said region, did attempt to murder Sid Friedrichs, contrary to s. 239(1)(b) of the Criminal Code of Canada.
• Count 9: Gary Green stands charged that he, on or about the 23^rd day of September, 2016, at the Township of Southwold, in the said region, did wound Callum Rankin, a peace officer, and did thereby commit an aggravated assault on a peace officer, contrary to s. 270.02 of the Criminal Code of Canada.
• Count 10: Gary Green stands charged that he, on or about the 23^rd day of September, 2016, at the Township of Southwold, in the said region, did, in committing an assault upon Callum Rankin, use a weapon to wit: a 2004 Dodge Dakota pickup truck, contrary to s. 267(a) of the Criminal Code of Canada.
• Count 11: Gary Green stands charged that he, on or about the 23^rd day of September, 2016, at the Township of Southwold, in the said region, did, in committing an assault upon Sid Friedrichs, use a weapon to wit: a 2004 Dodge Dakota pickup truck, contrary to s. 267(a) of the Criminal Code of Canada.
• Count 12: Gary Green stands charged that he, on or about the 23^rd day of September, 2016, at the Township of Southwold, in the said region, did, in committing an assault upon Eddie King, use a weapon, to wit: a 2004 Dodge Dakota pickup truck, contrary to s. 267(a) of the Criminal Code of Canada.
• Count 13: Gary Green stands charged that he, on or about the 23^rd day of September, 2016, at the Township of Southwold in the said region, did, in committing an assault upon Tyler Jacobs, use a weapon, to wit: a 2004 Dodge Dakota pickup truck, contrary to s. 267(a) of the Criminal Code of Canada.
• Count 14: Gary Green stands charged that he, on or about the 23^rd day of September, 2016, at the Township of Southwold in the said region, did, in committing an assault upon Tyler Jacobs, cause bodily harm to him, contrary to s. 267(b) of the Criminal Code of Canada.
• Count 15: Gary Green stands charged that he, on or about the 23^rd day of September, 2016, at the Township of Southwold, in the said region, did, in committing an assault upon Edward Philippe, use a weapon to wit: a 2004 Dodge Dakota pickup truck, contrary to s. 267(a) of the Criminal Code of Canada.
• Count 16: Gary Green stands charged that he, on or about the 23^rd day of September, 2016, at the Township of Southwold, in the said region, did wound Edward Philippe, a peace officer, and did thereby commit an aggravated assault on a peace officer, contrary to s. 270.02 of the Criminal Code of Canada.
• Count 17: Gary Green stands charged that he, on or about the 23^rd day of September, 2016, at the Township of Southwold, in the said region, did assault Fabiano Baldinelli with intent to steal from him, contrary to s. 344(1)(b) of the Criminal Code of Canada.

JAMIE DOXTATOR

[12] Constable Doxtator was the first officer to observe Mr. Green when he was driving the stolen white pickup truck. He ultimately engaged in a pursuit with the white pickup truck and then the blue Dodge, which was stolen from another address.

[13] Apart from dangerous driving, the officer did not observe anything in respect of the remaining 10 remaining counts on the indictment. When the pursuit came to the area of Mill Road and Longhurst Line, Constable Doc Stater was not in the vicinity.

SERGEANT CALLUM RANKIN

[14] Sergeant Rankin heard Officer Doc Stater on the radio at approximately 5:40 p.m. regarding a stolen white Dodge Ram pickup.

[15] As a result of the radio transmission, Sergeant Rankin left from the London detachment. His vehicle was equipped with GPS technology.

[16] Sergeant Rankin was assisting in locating the stolen white Dodge ram. He headed along Littlewood Drive until he heard radio transmissions that indicated that the plates on the vehicle had been stolen.

[17] Sergeant Rankin was on Littlewood Drive when he heard communication from Constable Beaumaster that the vehicle was coming up the on-ramp from the wrong way.

[18] Rankin then turned around and headed to Colonel Talbot and the 401 when he heard that Detective Constable Friedrichsen had had an encounter with the white Dodge Ram.

[19] Sergeant Rankin terminated the pursuit due to the speed and the manner in which the motor vehicle was driving.

[20] Sergeant Rankin started heading west on the 401 in her transmissions that the Ram did not come into contact with the spike belts that had been laid out.

[21] Various units were in the area looking for the vehicle. At this point Sergeant Rankin became aware that there was another vehicle; a dark pickup involved now - as the court learned the vehicles had been swapped out.

[22] Sergeant Rankin heard on the radio that the Dodge was now going north on Union.

[23] Sergeant Rankin arrived at the green sign. He could hear an engine revving and testified that he saw the Dodge travelling at a high rate of speed. He testified that all of a sudden the vehicle appeared in front of him and stopped about 30 metres away. He testified that both vehicles were facing each other. At that point, Sergeant. Rankin put his emergency equipment on. He testified that he heard the vehicle’s engine gun and drive across the lane towards him. Sergeant Rankin moved and he swerved at the last minute and probably came within two or three feet of the other vehicle.

[24] He testified that the vehicle being driven by Mr. Green was coming at a 30° angle apparently coming for his driver’s door. It was Sergeant Rankin’s perception that this was a deliberate act because there was no other reason to have done it. Sergeant Rankin said that he momentarily lost sight of him and then the vehicle did a U-turn and was behind him. The vehicle then did a right on Stafford line and headed east. The Dakota turned right and went east on Stafford Line and Sergeant Rankin followed it. This road is unpaved and there was no other traffic on it at the time. Sergeant Rankin estimated that speeds were in the area of 110 to 120 kilometers an hour and Sergeant Rankin believed it was marked as an 80 to 90 kilometer zone. He did not lose sight of the vehicle until it got to Mill Road.

[25] Sergeant Rankin was heading eastbound. He was giving updates to the communication centre. He believed that it was Constable King who advised over the radio that Stafford Line and Mill Road became a T intersection.

[26] As the Dakota got to the intersection, it slowed down a bit and appeared to swerve or fishtail in the back and as he turned left onto Mill Road.

[27] On the immediate left-hand side, there were trees and bushes as the vehicle got to the intersection. Sergeant Rankin testified that his police vehicle lights were on and he believed that the sirens were as well.

[28] Sergeant Rankin testified that as he was accelerating he could not see straight north, as the vehicle went uphill into a zone of invisibility. As he crested the hill he became aware of the pickup truck in front of him in the northbound lane and a civilian vehicle in the southbound lane, going south.

[29] He testified that the reverse lights of the pickup truck were on and now the pickup truck was coming backwards at him. He said that he had no options at the time; he could not go southbound because he would go head-on with the civilian vehicle and he recalled that, to the right, it was too steep. He said that had he gone right he would have rolled his police vehicle.

[30] Sergeant Rankin testified that he slammed the brakes on and pulled the cruiser to the left towards the centre of the lane where the pickup truck came into his path and the passenger side of the pickup truck mounted his cruiser over top of the hood. He testified that the vehicle’s rear passenger tire was on the front hood of the police vehicle. Sergeant Rankin testified that prior to the impact he believed that he saw the driver looking over his shoulder at him. He said there was nothing obstructing the driver’s view. He said there was no physical reason for the vehicle to move as it had. He testified that initially he was reversing back and as he moved to avoid the pickup truck moved. He testified that had he not moved to avoid the pickup truck the pickup truck would have hit him.

[31] Sergeant Rankin described the vehicle reversing quickly at his vehicle. He said that there was no reason for it to do that. He testified that initially the vehicle was coming straight back and it wasn’t until he started moving left in his police vehicle that the pickup reverse towards him. He said that once it came in contact with him the vehicle took off and kept going north on Mill Road. He said there were no issues with how the Dakota was operating at the time.

[32] After the vehicle left Sergeant Rankin noticed that his police scout car was on fire on the driver side and he observed that the pickup truck had gone forward. As he looked north following the vehicle he observed a set of Crown Victoria lights set up to the right of the overpass.

[33] D.C. Friedrichsen came to the top of the crest in the road, at that time he observed that Sergeant Rankin’s vehicle had been struck. It appeared to him that Sergeant Rankin’s vehicle had been rammed and he was trying with some effort to pull it over and out of the way. D.C. Friedrichsen testified that he could see smoke and fire coming from Sergeant Rankin’s vehicle. The front tire on the driver side was horizontal instead of vertical as it should have been. D.C. Friedrichsen immediately pulled approximately 20 feet behind Sergeant Rankin’s cruiser. D.C. Friedrichsen’s vehicle was parked on the shoulder entirely he believed. Other cruisers were going north on Mill behind the blue truck.

[34] Constable Eddie King was with Constable Tyler Jacobs in the Oneida police vehicle. They approached where Sergeant Rankin’s vehicle was on the road and had to manoeuver around it to continue in pursuit of the blue Dodge. Constable King testified he saw P.C. Friedrichsen’s vehicle as he passed but the next sequence of a fence was a blur to him because it happened so fast.

[35] Constable King testified that the blue Dakota went back and forth and drove past them. He believed that the driver of that vehicle was trying to intimidate them as the wheels were going back and forth. He does not know how many times they went back and forth on Mill Road.

[36] He testified that he knew that there was a spike with belts that had been deployed in the road south of Sergeant Rankin’s vehicle and that he and Constable Jacobs had to avoid it when they were in pursuit. He testified that on Longhurst the blue Dakota rammed them as they were in pursuit.

[37] Constable Tyler Jacobs was the passenger in the vehicle being driven by Constable King. He testified that when they were pursuing the blue Dodge on Mill Road that the Dodge stayed its course and would have struck them had officer King not veered elsewhere, but that it did not veer towards them. He said that when the blue Dodge went south for the last time he did not know where Sergeant Rankin was and did not see anyone else. He said that the blue Dodge went around the cruiser and south. Constable King ultimately had to slam on the brakes and go around the spike belt in this area before it could turn east on Longhurst. On Longhurst he believed that the vehicle slammed on its brakes and drove towards them forcing them off the road. He acknowledged that the vehicle was travelling down the middle of the road but not in a straight line at this point. When the Tahoe went off the road it became airborne and his thumb was severely injured by the airbag and/or the handle in the Tahoe that he was holding onto. He observed the blue Dodge stop and reverse into Constable Phillipo’s vehicle but could not provide any insight as to why this happened. Ultimately, he proceeded to Constable Phillipo and remained there.

[38] As D.C. Friedrichsen was exiting his vehicle, he observed Sergeant Rankin push open his driver’s door with his foot. It was apparent to D.C. Friedrichsen that Sergeant Rankin was visibly injured. He was limping and hanging onto the cruiser to keep himself upright. Sergeant Rankin stopped at the back of his cruiser and D.C. Friedrichsen assisted him over to the back trunk area of his own. D.C. Friedrichsen was assisting Sergeant Rankin. As he was doing so, he observed the pickup truck reverse out of the ditch and start driving south on Mill towards them.

[39] Constable Philippo observed that officer King and P.C. Milne managed to push the blue Dodge off the road into the ditch. Mr. Green was observed to drive out of the ditch. Constable Philippo noticed severe damage to the passenger side of the blue Dodge. Ultimately the blue Dodge drove past Constable Rankin’s vehicle and ended up on Longhurst. Constable Philippo was still in pursuit. He testified that the blue Dodge stopped 10 feet ahead and that he was about to get out of his vehicle.

[40] D.C. Friedrichsen drew his firearm and yelled for the truck to stop pointing his firearm at the windshield of the truck. The truck slowed down and stopped approximately 60 feet from him and went into reverse. He testified that he did not see the truck having any difficulty stopping and does not recall it having any difficulty moving in reverse. He testified that Sergeant Rankin was now in the road by the driver side of his cruiser upright and as he was coming back to the shoulder side of his cruiser he said that he could hear the truck coming towards them. He testified it was travelling in a straight line in the middle of the road, the wheels were flattened and it was canted to the left. He said it was driving in a straight line but canted to the left. He observed one of the tires on the pickup truck to be flat. He testified that the pickup truck was driving along the centre line. The hood of the Dakota was to the left of the centreline. As it approached their position, D.C. Friedrichsen again drew his firearm. He testified that as the vehicle was canted and drew closer, it accelerated.

[41] Constable Friedrichsen was standing at the front passenger corner on the gravel portion of the roadway. He testified that his feet were planted ahead of the front passenger tire and his left thigh could have touched the side of the cruiser. As the pickup truck got closer Detective Constable Friedrichsen trained his front side of his firearm on the silhouette of the driver. He said that he was preparing to shoot the driver and had to stop the threat because he feared for his life at that time.

[42] Detective Constable Friedrichsen holstered his firearm and ran down the passenger side of his cruiser towards the trunk and, as he reached the rear of Sergeant Rankin’s cruiser he put his hand on the trunk and slid on the gravel. He trained his firearm on the truck again and just as it came between Sergeant Rankin and his vehicle, the truck made a hard left and headed southbound on Mill Road. Detective Constable Friedrichsen described the driving as pretty impressive. He said that the Dakota did not make any attempt to drive at him once he was back on the side of Sergeant Rankin’s cruiser.

[43] Detective Constable Friedrichsen was not able to tell the court how close the truck got to him. There were no obstructions between himself and the truck when he was standing at the passenger side of Sergeant Rankin’s vehicle. His perception was that it was a purposeful turn to the side and then to still manoeuvre through the ditch and then back out onto the roadway between two vehicles was shocking.

[44] Sergeant Rankin’s driver door was jammed on its side. Eventually he got out of the vehicle by kicking the door open. He became aware at that point that his back was causing him considerable difficulty and that he was in agony. He was trying to back away from the scout car because it was on fire. At this point he was joined by detective Constable Friedrichsen who had parked his vehicle behind that of Sergeant Rankin’s.

[45] Once Sergeant Rankin was out of his scout car he observed the pickup truck stop up towards the 401 and turn around back facing him. He then observed the pickup truck moving in his direction. He testified that he told Detective Constable Friedrichsen that he couldn’t move. He was on the road next to his cruiser perhaps two or 3 feet from the northbound lane.

[46] He testified that the pickup came southwards towards himself and Detective Constable Friedrichsen and that it stopped perhaps 50 to 100 meters away from them and then it did a U-turn back up towards the 401. At that point a number of cruisers went past him in the southbound lane towards the truck.

[47] Sergeant Rankin testified that he recalled seeing the pickup end up in the ditch facing west so the driver’s door was towards him. There appeared to have been a collision with the cruiser. Sergeant Rankin testified that he observed the pickup truck end up in the ditch but it managed to get out. Sergeant Rankin had moved too far from his cruiser at that point of observation. D.C. Friedrichsen was still outside of his vehicle tending to him. Sergeant Rankin testified that the pickup started coming towards them and that he drew his firearm again. He said the manner in which the pickup truck was driving was “weird”, like it was cropping, not coming straight at him but slight sideways. He testified that it appeared that there was something seriously wrong with the vehicle. He had his pistol at low ready, which is pointing down to the ground.

[48] Sergeant Rankin testified that he observed the pickup truck come within 15 meters or less of his position. Sergeant Rankin testified that although the pickup truck was cropping that it was coming straight towards him. He testified that he had his gun on Mr. Green and that Mr. Green’s vehicle kept coming and coming just about the time that Sergeant Rankin was forming a decision to pull the trigger on his sidearm. The Dakota veered to Sergeant Rankin’s right or his left, he was uncertain, and went down the side of his cruiser. He heard a crashing noise and assumed that the pickup truck had struck the side of the cruiser. The vehicle passed between Sergeant Rankin’s vehicle and another, that other vehicle belonging to Detective Constable Friedrichsen. Sergeant Rankin said that in spite of this manoeuvre there was nothing in the southbound lane when the pickup truck travelled in this fashion. There was no physical reason why the vehicle could not have travelled down the roadway.

[49] P.C. Daniel Milne observed as the blue Dodge went towards and then passed Sergeant Rankin’s vehicle. He agreed that he could not see everything as he was behind the truck. He believed that the southbound lane was open but had his eyes focused on the blue Dodge. He testified that he saw a person run from the side of Sergeant Rankin’s cruiser but could not confirm the timing or the identity of the person. He did not see the person until the person started running. In re-examination he reiterated that he did not see P.C. Friedrichsen initially and did not know he was there until he stopped to check on Sergeant Rankin.

[50] Ultimately, Mr. Green and his cousin were arrested.

[51] Count 1 on the indictment:

Gary Green stands charged that he, on or about the 23rd day of September, 2016, at the Township of Southwold, in the said region, did attempt to murder Sid Friedrichsen, contrary to s. 239(1)(b) of the Criminal Code.

[52] To find Gary Green guilty of attempted murder, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. That Gary Green’s conduct was an attempt;

ii. that Gary Green meant to kill Sid Friedrichsen; and

iii. that Sid Friedrichsen did not die from anything that Gary Green did.

Was Gary Green’s conduct an “attempt”?

[53] The crime of attempted murder, like most crimes, involves conduct and state of mind. This element has to do with Gary Green’s conduct, ie. what he did in relation to Sid Friedrichsen.

[54] The conduct alleged in this case is that while on Mill Road, Mister Green, in an attempt to pass through various vehicles as well as Officer Rankin, drove through a narrow ditch scraping past officer Rankin’s vehicle and causing Officer Friedrichsen to run for cover.

Counts 9 and 16 – Aggravated Assault (Rankin and Phillipo)

[55] To find Gary Green guilty of aggravated assault, the Crown must prove each of these essential elements beyond a reasonable doubt:

i. that Gary Green intentionally applied force to Rankin/Phillipo; and

ii. the force Gary Green applied wounded (maimed, disfigured or endangered the life of Rankin/Phillipo

Did Gary Green intentionally apply force to Sergeant Rankin?

[56] The application of force may be direct, for example, by Gary Green using a part of his body such as a hand or foot or indirect, for example, by Gary Green using an object, in this case a motor vehicle.

[57] The force applied may be violent, or even gentle. To be an assault, however, Gary Green must apply the force intentionally and against the complainants will. An accidental application of force is not an intentional application of force.

[58] The word intentionally refers to Gary Green’s state of mind when he applies the force. Intentionally means on purpose; in other words, not by accident. I must take into account the nature of the contact or gestures that may have accompanied it along with anything else that might indicate Mr. Green’s attitude or state of mind at the time there was application of force. If I am not satisfied beyond a reasonable doubt that Mr. Green intentionally applied force, I must find him not guilty.

[59] If I am satisfied beyond a reasonable doubt that Mr. Green intentionally applied force to the complainant I must go onto the next question.

Did the force Gary Green intentionally apply wound/maim, disfigure or endanger the life of Sergeant Rankin?

[60] To wound means to injure someone in a way that breaks or cuts or pierces or tears the skin or some part of the person’s body. It must be more than something trifling, fleeting or minor, such as a scratch.

[61] To maim means to cripple, mutilate or disable. It means to cause another person to lose the use of some part of his or her body.

[62] To disfigure means to deform or deface.

[63] To endanger the life of another person is to put him or her in a situation or condition that could cause that person to die.

[64] Crown counsel does not have to prove that Sergeant Rankin was wounded, maimed, disfigured and had his life endangered by the force that Gary Green applied. Any one of these types of harm is enough.

[65] The Crown must prove beyond a reasonable doubt that the wounding (maiming, disfiguring or endangering of the life) of Sergeant Rankin resulted from the force that Gary Green intentionally applied.

[66] The Crown does not have to prove beyond a reasonable doubt that Gary Green meant to wound, maim, disfigure or endanger the life of Sergeant Rankin when he intentionally applied force to him. What the Crown does have to prove, however, is that a reasonable person, in the circumstances, would inevitably realize that the force Gary Green intentionally applied would put Sergeant Rankin at risk of suffering some kind of bodily harm, although not necessarily serious bodily harm or the precise kind of harm that he suffered here. Bodily harm is any kind of hurt or injury that interferes with another person’s health or comfort. It has to be something that is more than just brief or fleeting, or minor in nature.

WILFUL BLINDNESS

[67] The mental element of aggravated assault may be established by proving intention, recklessness, or wilful blindness. The mental element does not require an intention to physically harm someone; what is required is the object of foresight of such harm. That is, the Crown need not prove any subjectively culpable mental state with respect to the consequences. The question to ask is whether a reasonable person would have foreseen the possibility of harm coming to the victims based on the facts in this case.

Counts 10, 11, 12, 13, 15 (Rankin/Friedrichsen/King/Jacobs/Phillipo)

[68] To find Gary Green guilty of an assault with a weapon, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. Gary Green intentionally applied force to the named complainant;

ii. that the named complainant did not consent to the force that Gary Green intentionally applied;

iii. that Gary Green knew that the complainant did not consent to the force that he had intentionally applied; and

iv. that a weapon was involved.

Did Gary Green intentionally apply force to the complainant?

[69] The application of force may be direct; for example, by Mr. Green using a part of his body, or indirect; for example, Mr. Green using an object, in this case a motor vehicle.

[70] The force applied may be violent, or even gentle. To be an assault however, Mr. Green must apply the force intentionally and against the complainant’s will. An accidental application of force is not an intentional application of force.

[71] The word intentionally refers to Mr. Green’s state of mind when he applied the force. Intentionally means on purpose, in other words, not by accident. To decide whether Mr. Green applied force intentionally I must consider all the circumstances surrounding the events. I must take into account the nature of the contact along with anything else that might indicate Mr. Green’s attitude or state of mind at the time of the application of force.

Did the Complainant consent to the force applied?

[72] Did Gary Green know that the complainant did not consent to the force that he intentionally applied?

Count 14 (Jacobs)

[73] To find Gary Green guilty of assault causing bodily harm, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that Gary Green intentionally applied force to P.C. Jacobs; and

ii. that the force Gary Green intentionally applied caused P.C. Jacobs bodily harm.

Did Gary Green intentionally apply force to P.C. Jacobs?

[74] The application of force may be direct; for example, by Mr. Green using a part of his body, or indirect; for example, Mr. Green using an object, in this case a motor vehicle.

[75] The force applied may be violent, or even gentle. To be an assault however, Mr. Green must apply the force intentionally and against the complainant’s will. An accidental application of force is not an intentional application of force.

[76] The word intentionally refers to Mr. Green’s state of mind when he applied the force. Intentionally means on purpose; in other words, not by accident. To decide whether Mr. Green applied force intentionally I must consider all the circumstances surrounding the events. I must take into account the nature of the contact along with anything else that might indicate Mr. Green’s attitude or state of mind at the time of the application of force.

Did the force Gary Green applied cause P.C. Jacobs bodily harm?

[77] Bodily harm is any hurt or injury that interferes with Constable Jacobs’ health or comfort. It has to be more than something that is just brief or fleeting, or minor in nature. It must result from the force Gary Green applied to Constable Jacobs.

[78] Crown counsel does not have to prove that Gary Green meant to cause bodily harm of this or any other kind to Constable Jacobs. What the Crown does have to prove, however, is that a reasonable person, in the circumstances, would inevitably realize that the force he applied would put Constable Jacobs at risk of suffering some kind of bodily harm, although not necessarily serious bodily harm or the precise kind of harm that Constable Jacobs suffered here.

Count 17 – Assault (Baldinelli)

[79] Mr. Baldinelli testified that on September 23, 2016 he was sitting on his patio at 3752 Longhurst Line when he saw a police car go by. He observed a smaller dark truck pull into the end of his driveway. As it was coming toward him, he observed it to be wobbling. The driver jumped out and ran towards his truck. The driver said “please sir, I need help”. Mr. Baldinelli testified that Mr. Green opened the door that the driver window side was down and that Mr. Green struck him on the side of his neck. He testified it was on the left side behind his ear. He said that Mr. Green tried to get into the truck. He said the passenger of Mr. Green’s truck came towards his on the passenger side and had his hands on the wheel. He said he jerked the truck and Mr. Green fell off into the bushes. He said that as he opened the door he was struck. He testified that the vehicle was going backwards and Mr. Green was trying to take his truck. He testified that Mr. Green grabbed onto his window of the truck and broke it. He said that “little guy” came behind him and grazed him with a hammer on the left side. In cross-examination, Mr. Baldinelli agreed that he never told a police officer that he had an injury to his head. At the preliminary hearing in August 2017, he testified that he had ruptured his eardrum. He has made a Criminal Injuries Compensation Board claim.

[80] To find Gary Green guilty of an assault, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. Gary Green intentionally applied force to the named complainant;

ii. that the named complainant did not consent to the force that Gary Green intentionally applied; and

iii. that Gary Green knew that the complainant did not consent to the force that he had intentionally applied.

Did Gary Green intentionally apply force to the complainant?

[81] The application of force may be direct; for example, by Mr. Green using a part of his body, or indirect; for example Mr. Green using an object, in this case a motor vehicle.

[82] The force applied may be violent, or even gentle. To be an assault however, Mr. Green must apply the force intentionally and against the complainant’s will. An accidental application of force is not an intentional application of force.

[83] The word intentionally refers to Mr. Green’s state of mind when he applied the force. Intentionally means on purpose; in other words, not by accident. To decide whether Mr. Green applied force intentionally I must consider all the circumstances surrounding the events. I must take into account the nature of the contact along with anything else that might indicate Mr. Green’s attitude or state of mind at the time of the application of force.

Did the Complainant consent to the force applied?

Did Gary Green know that the complainant did not consent to the force that he intentionally applied?

GARY GREEN

[84] Mr. Green chose to testify in his own defence. In 2016 he was 26 years old. He resides as a member of the Mohawk tribe on the Six Nations reserve. On the day in question he was with his cousin. The two left in a white Dodge Ram vehicle that he knew to be stolen. It was his intention to drop off some tires at a residence in the area. On that date he was the driver of the white Dodge Ram. His cousin was the front seat passenger. He testified that while driving he passed an Oneida police vehicle. He came to a stop sign and placed his signal to go left. At that time he observed the Oneida vehicle turning around and it appeared to him that it was trying to keep up with his vehicle. He testified that when he made that observation he “took off”.

[85] Mr. Green testified that he pulled the vehicle into a gravel pit and turned it around. At that point he observed the Oneida police vehicle sitting at the entrance to the pit. It was at that point, he said, that the police vehicle began to chase him.

[86] Mr. Green approached the 401 Highway and didn’t see the Oneida vehicle. He testified that he tried to go east. He entered the ramp and realized that it was the westbound ramp. He stopped his vehicle and observed what he believed to be an undercover police vehicle behind him. He swerved around the first vehicle and attempted to back up the ramp. His evidence was that he was trying to get back onto the right direction, i.e the eastbound ramp. He testified that he made no attempt to strike any vehicle. He said he came into traffic and another police car was observed with its lights on. He said he drove around the cars when he observed a black charger with its lights on. He said he was swerving through traffic. He was going against traffic and was in the wrong lane. He was trying to get away. He said he had no intent to immobilize any motor vehicle because to do so would also immobilize his motor vehicle and he would have to be on foot. His attempt, he said, was to try to get back in his home direction.

[87] Mr. Green said he was unfamiliar with the general area. He observed a police cruiser parked on the side of the road. The driver got out of his vehicle and went towards the trunk area. Mr. Green presumed that the driver was going to get a spike belt. He was correct. The officer threw the spike belt out and Mr. Green slammed on his brakes trying to go around it on the shoulder of the road. He testified that one tire made contact with the spike belt resulting in a flat tire.

[88] At the intersection of Shedden, Mr. Green turned left and into a house driveway perhaps three or five driveways down from the intersection. He put the truck behind the house. He and his cousin got out of the vehicle and proceeded to the door. They began banging on the door. No one answered but it appeared that the door was open. The two went inside and his cousin announced that he had found keys. They went outside and jumped in the truck - it was a blue Dakota.

[89] Mr. Green testified that he looked to the right and observed the Oneida pickup truck. He said he pulled off to the side of the road and the driver of the pickup truck pulled to the opposite side. Mr. Green rolled down the driver side window perhaps three or four inches and said “you almost struck me”. The officer told him to pull over. Mr. Green said he pulled over to where the officer was and the officer exited his vehicle and began walking towards him. Mr. Green said that before the officer reached his driver’s side he “took off”. Mr. Green said he came to a four-way intersection and turned left. On the left side there was a motor vehicle either going to turn right or go straight through. Mr. Green said his vehicle came between that vehicle and the stop sign and Mr. Green believed that his vehicle rubbed against that motor vehicle.

[90] Mr. Green made it through and turned into a laneway on the right side and stopped. At that time he observed an Oneida police vehicle coming in his direction. He exited the laneway and drove to the four-way intersection and turned left. He had to go between the stop sign and a motor vehicle and might have connected with the motor vehicle. At that point the Oneida police vehicle began to chase him. Mr. Green proceeded over a small hill and observed that the Oneida police vehicle was not in pursuit. However, at the next intersection he observed that an OPP cruiser was on his right side. Mr. Green was approaching a stop sign and as he was doing so he slowed towards the intersection and made a turn where the cruiser was. He said he made no contact with the cruiser. The police cruiser turned around and began to follow Mr. Green. Mr. Green proceeded to the next intersection which was a T. He said it was likely Mill Road. He testified that it was hard to break but he managed to turn left. There was an OPP cruiser at the intersection behind him. He now knows that to have been Sergeant Rankin’s vehicle. Rankin began to follow him up a small incline.

[91] Mr. Green said he was slamming on his brakes trying to get off the road. He overshot the intersection and put it in reverse turning his wheel to the left. At this point he ended up striking Sergeant Rankin’s vehicle. He testified that he struck Rankin’s vehicle in the front. Mr. Green said he “barely hit it”. He testified that his cousin was telling him to go ahead. He said he was going straight and that the OPP cruiser was trying to chase him. He said he could see the vehicle smoking in the rear view mirror and that it was no longer following him. There was however another cruiser behind him and another on the right ahead of him.

[92] Mr. Green made the assumption that spike belt had been laid out there. He turned around and headed back. He testified that the Dakota was still operable. He testified that he was heading back towards the OPP cruiser that he had initially struck, i.e. Sergeant Rankin’s vehicle. He testified that he had no intention of hitting the vehicle. He observed who he now knows to be Sergeant Rankin out of the motor vehicle towards the middle of the road with his gun drawn.

[93] Mr. Green said he slammed on his brakes and turned the vehicle around heading in the opposite direction. At this point all three cruisers were behind him save and except Sergeant Rankin. He noticed that a spike belt had been placed on the ground. Once again he turned the vehicle around and was trying to get away. He said he was “just looking for any opening”. He observed another cruiser in the middle of the road and turned around. At that point he was pushed into the ditch. He said he was hit from the side by a police cruiser and pushed into a shallow ditch. He put the vehicle in reverse and managed to get it out of the ditch. He headed back towards the spike belt. Rankin’s cruiser was on the side of the road, another cruiser was in the middle of the road. He said he was driving into the middle of the road and observed guns drawn. At the last minute he slammed on his brakes and went to the left. He testified he was trying to stay on the shoulder of the road and rubbed against the cruiser. He said he came between Rankin’s cruiser in an unmarked cruiser, which we now know to be that of Constable Philippe Bowes.

[94] Mr. Green testified that he went southbound around Sergeant Rankin’s motor vehicle. He said that there were at least two officers on the driver side of Rankin’s vehicle with guns drawn. He testified that there was a mailbox in the vicinity but he didn’t recall running over it. He said there was no front end damage to his vehicle. He said when he “scoffed down” Rankin’s motor vehicle he didn’t strike the mailbox. He testified that after his vehicle was pushed into the ditch it was harder to drive. He said it was harder to steer and that he had to “wrestle with it”.

[95] As he passed between Sergeant Rankin’s vehicle and police Constable Philippe Bowes’ unmarked vehicle he was met by two police cars with their front ends together. He testified that he barely got through them when he hit the spike belt that had been laid out. He testified he tried to gas it and could only go between 50 to 60 kilometers an hour. He said it was hard to keep the vehicle steady.

[96] He testified he turned onto Longhurst. He could see no police officers. He did however see police officers coming. A black Tahoe was coming up fast and she didn’t want the vehicle to get beside him so he began straddling the middle of the road. The Tahoe was no longer beside him - it was in the ditch. He testified that the Tahoe clearly had made contact with his vehicle. He said he didn’t intentionally try to turn into it; that he was struggling to keep the wheels on his vehicle straight. His cousin said to go into the field and he put the vehicle into reverse. In doing so, Mr. Green rear ended police Constable Philippo’s vehicle.

[97] Mr. Green testified that his intention was to get in the field and to drive the vehicle to a point where he could get out on foot. He said he had no intention to strike Constable Philippo’s motor vehicle.

[98] Mr. Green testified that up on the left there was a brown truck at the end of a laneway. He jumped out and ran towards the truck. He testified he was knocking on the vehicle saying that he needed help. He ran back to the truck because it wasn’t properly in park; it was still moving. He then ran back to the brown truck whose driver was Mr. Baldinelli now. He testified that he never tried to open the door. He never threatened him. He never rolled down the window. He did agree, however, that he might have pulled on his door handle but that Mr. Baldinelli’s vehicle was in reverse and that it was useless.

[99] Mr. Green testified that he didn’t strike any officer deliberately. He testified that he never intended to cause harm to Constable Friedrichsen. He never saw anyone on the passenger side of Sergeant Rankin’s motor vehicle and that he never intended to cause harm to Sergeant Rankin.

[100] In cross-examination, Mr. Green said that he never swerved at Sergeant Rankin and that he certainly did not try to “take Rankin out”. He testified that he did not intentionally reverse into him. Further, he said of Sergeant Rankin “why would I hit him to get away and then drive towards police?” He testified he never intentionally drove toward any police officer and never intended to harm any of the Oneida police officers. Further, in cross-examination, after hitting the spike belt and receiving three flat tires, he denied that he was revving his engine, and testified that he never intentionally struck the Oneida Tahoe vehicle. He firmly disagreed with the suggestion that he was “playing chicken” with the police officers.

[101] Finally, he testified he never assaulted or threatened to assault Mr. Baldinelli.

W.D. ANALYSIS

[102] As in any criminal trial, Mr. Green is entitled to the presumption of innocence. This presumption means that he started the trial with a clean slate. This presumption stays with him until such time as I am able to find that the Crown has proven its case beyond a reasonable doubt. There is no onus on him to prove his innocence. In this case, Mr. Green chose to present a defence.

[103] In this instance, I am mindful of the test as articulated in R. v. W.D. 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742:

Step one: if I believe Mr. Green, I must acquit him;

Step two: if I do not believe Mr. Green, but his evidence leaves me with a reasonable doubt, I must acquit him;

Step three: if the court is not left in doubt by the evidence of Mr. Green, I must still ask myself whether, on the basis of all of the evidence, that I do accept the Crown has proven his guilt beyond a reasonable doubt.

[104] There is no question that what took place on that afternoon was a quick-moving, heart-pounding incident of events. Sergeant Rankin best described it as a “fur ball”. I thought that was an apt description of the movements of all of the players, the quickness in which everything happened, and undoubtedly the surge of adrenaline in all.

[105] The GPS evidence was of some assistance in determining the location of the various vehicles. However, there was not much dispute in the end as to where the individual vehicles were as it relates to the remaining counts before the court.

[106] The central issue is what was the intention of Mr. Green?

[107] All of the witnesses testified in a frank and open manner. For Sergeant Rankin and Detective Constable Friedrichsen, this was an emotional recollection of an intense vehicle pursuit.

Turning to the analysis in W. D.:

[108] I found that Mr. Green testified in an honest and forthright manner. He pled guilty to numerous offences at the outset of the trial, allowing the court to focus its attention on the requisite element of intent.

[109] The Crown engaged in a skilful and fulsome cross-examination of Mr. Green. However, he was not shaken on the critical issue of intent. I agree with Ms. Stevenson, that on occasion during his testimony, Mr. Green did become confused or frustrated at times, but he never resiled from his position.

[110] Mr. Green’s evidence was both internally and externally consistent. His evidence supported the common sense notion that he was simply trying to get away from the police officers and their vehicles. He testified that he did not deliberately render any vehicle inoperable, for had he done so his own vehicle would have been similarly inoperable, forcing him to make good his escape on foot.

[111] There is no question that the events were occurring in rapid fire succession. Similarly, there is no question that the officers’ perceptions were dissimilar to that of Mr. Green.

[112] However, given the analysis that I must undertake, mindful of the test as articulated by the Supreme Court of Canada in W.D.:

Step one: if I believe Mr. Green I must acquit him;

Step two: if I do not believe Mr. Green, but his evidence leaves me with a reasonable doubt, I must acquit him;

Step three: if the court is not left in doubt by the evidence of Mr. Green, I must still ask myself whether, on the basis of all of the evidence that I do accept, the Crown has proven his guilt beyond a reasonable doubt.

[113] I believe Mr. Green’s testimony that he did not have the necessary intent to commit the foregoing defences. I further find that Mr. Green did not assault Mr. Baldinelli. Accordingly, there will be not guilty verdicts entered.

“Justice Kelly A. Gorman”

Justice Kelly A. Gorman

Released: February 12, 2019

[^1]: The police vehicles were those of Callum, Rankin, Daniel Milner, Eddie King and Edward Phillipo.