COURT FILE NO.: CR 24/2019
DATE: 20201002
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Michael Gerald Benninger
Defendant
M. Murdoch, for the Crown
K. McNamara, for the Respondent
HEARD: September 22, 23,and 24, 2020
Justice R. Raikes
Charges
[1] There are two indictments before the court. The first indictment has 13 counts and the second has five counts.
[2] Upon arraignment, the defendant pleaded guilty to counts 1, 2, 3, 6, and 7 on the 13-count indictment. He also pleaded guilty to counts 1, 4, and 5 on the five-count indictment. The defendant pleaded not guilty to counts 4 and 5 on the 13-count indictment. The remaining charges on the two indictments did not proceed and no plea was entered.
[3] During the trial, evidence was adduced with respect to those charges to which the defendant pleaded guilty. That evidence was uncontested. I am satisfied beyond a reasonable doubt on the evidence adduced that the facts necessary to prove the constituent elements of the offences to which he pleaded guilty have been made out. I accept the guilty plea as recorded and find the defendant guilty on those charges.
[4] The trial in this matter concerns counts four and five of the 13-count indictment which read as follows:
AND FURTHER that on or about the 7th day of September, 2018, at the Township of Huron-Kinloss, in the said region, did assault a peace officer, to wit: Provincial Constable Mark Fraser, engaged in the execution of his duty, contrary to section 270(1)(a) of the Criminal Code of Canada;
AND FURTHER that on or about the 7th day of September, 2018, at the Township of Huron-Kinloss, in the said region, did by verbal means knowingly utter a threat to Provincial Constable Mark Fraser to cause death to Provincial Constable Mark Fraser, contrary to section 264.1(1)(a) of the Criminal Code of Canada;
Facts
[5] These two charges arise from an incident in the hamlet of Whitechurch at approximately 12:30 a.m on September 7, 2018. Whitechurch is located between Lucknow and Wingham. Whitechurch has roughly eight to ten homes on either side of Whitechurch Road as well as an abandoned church. The incident in question occurred on the lawn of the residence next to the church.
[6] The principal evidence against the defendant comes from the alleged victim, Constable Mark Fraser. Constable Fraser is a veteran OPP officer. He was working patrol alone the night of September 6-7, 2018. He was in uniform driving a marked OPP Tahoe police cruiser.
[7] At approximately 12:25 a.m. on September 7, 2018, Constable Fraser approached a T-intersection at Whitechurch. He observed a black BMW coming in the opposite direction with only one headlight. The vehicle turned north on Whitechurch Rd.. As it turned, Constable Fraser observed that the vehicle had a black matte finish. It looked to him like someone had done a poor paint job and he thought perhaps the vehicle was stolen. He turned to follow the BMW.
[8] He saw the vehicle slow down as it passed 26 Whitechurch Rd., a residence known to Constable Fraser for recent criminal activity. The BMW did a U-turn into the nearby church parking lot. Constable Fraser decided to pull over the BMW and likewise did a U-turn. He turned on his flashing police lights to get the BMW to stop.
[9] As Constable Fraser pulled up behind the BMW, he saw someone exiting the passenger door awkwardly. It is undisputed that the passenger who exited the BMW was the defendant, Michael Benninger.
[10] Once the defendant was out of the vehicle, the BMW accelerated away. Mr. Benninger was by this point on the ground but moving backward in a crab-like fashion onto the lawn of the residence next to the church. Constable Fraser could see that the man had a black bag that he was holding as he pushed himself backward over the grass.
[11] Constable Fraser radioed dispatch about the fleeing vehicle and advised that there was a passenger on foot. He parked his cruiser and got out.
[12] As he came to the front of the cruiser, Constable Fraser told Mr. Benninger to let go of the backpack and stop moving. Mr. Benninger got into a crouch but continued to hold the bag. He was told to show his hands and let go of the bag a number of times but did not comply with the instructions given.
[13] According to Constable Fraser, he asked Mr. Benninger what his name was. He acknowledged during his testimony at trial that he had had dealings with the defendant years earlier as a youth but did not recognize him at the time.
[14] Constable Fraser testified that Mr. Benninger answered “Bobby” and mumbled a surname. Constable Fraser thought the name sounded made up.
[15] Shani Webb resides on Whitechurch Rd. She was having a bath when she saw the flashing lights from the police cruiser. She stood up in the tub and opened the bathroom window to see what was going on. She could not see the faces of the two men but she could see them and hear their voices. She initially thought that one of the two was her neighbour.
[16] It is her recollection that when asked, the man told the officer “you know me. It’s Mike.” In cross-examination, she indicated that she was pretty sure that identification happened before a shot was fired. She did not hear “Bobby”.
[17] Constable Fraser testified that he asked Mr. Benninger where he was going. The defendant told him that he was going to see a friend at 26 Whitechurch Rd.. Mr. Benninger told him he had food and showed him a McDonald’s bag.
[18] Constable Fraser testified that Mr. Benninger appeared under the influence. He was jittery. He was moving his hands back and forth. His eyes were darting about. He was very vocal and was not following the officer’s directions.
[19] Constable Fraser approached Mr. Benninger and as he did so, he asked if Mr. Benninger had anything on him that might hurt Cst. Fraser. Mr. Benninger reached into his left front pants pocket and pulled out two shotgun shells. Two shotgun shells were later located on the grass in the immediate vicinity of the interaction between Cst. Fraser and Mr. Benninger.
[20] Cst. Fraser indicated that he caught a glimpse of the two shells as he was reaching toward Mr. Benninger’s arm for the purpose of arresting him. The area was poorly lit. Upon seeing the shells, he asked Mr. Benninger if he had a firearm to go with them. According to him, Mr. Benninger said “yes” but it was not his and he was not going to go to jail for it.
[21] Cst. Fraser testified that Mr. Benninger made clear that he was not going to be arrested for the firearm and indicated by motion that the firearm was in the backpack.
[22] According to Cst Fraser’s evidence in-chief, Mr. Benninger moved his hand toward the backpack and put his hand in the bag which is when Constable Fraser pulled his firearm and shot once, striking Mr. Benninger in the shoulder area.
[23] It is Constable Fraser’s evidence that as Mr. Benninger reached toward the backpack, he said to the officer “either you kill me or I am going to kill you”. Cst Fraser believed the threat was genuine. He believed there was a firearm in the bag and he was in imminent danger.
[24] In cross-examination, Cst. Fraser adopted his answer given at the preliminary hearing that Mr. Benninger’s hand was in the backpack; that he saw his hand in the backpack when he fired his weapon.
[25] Further, he adopted another answer from the preliminary hearing that when he first exited his cruiser, he observed the defendant with his arm inside the backpack while using the other arm to push himself backward.
[26] Thus, he testified at both the preliminary hearing and at trial by his adoption of those answers that Mr. Benninger had his hand in the backpack at least twice before the shot was fired.
[27] Cst. Fraser was clear in his evidence that once shot, Mr. Benninger ran off behind some houses. He crossed the road to 26 Whitechurch Rd. in or by the garage before he came back toward Cst. Fraser yelling “just kill me, just kill me” or words to that effect. Other officers arrived at that point and Mr. Benninger was arrested and cuffed. Medical treatment for the gunshot wound was started and continued until the first ambulance arrived.
[28] The backpack remained undisturbed on the lawn where the shooting occurred from the time the defendant was shot until he was arrested. The Crown concedes that the backpack was not touched during that period.
[29] The evidence clearly indicates that the zipper to the backpack was open at most an inch or two – not enough for Mr. Benninger’s hand to be inside the bag as described by Cst. Fraser.
[30] A sawed-off shotgun, two throwing knives, various shells/ammunition and a small quantity of methamphetamine were subsequently found in the backpack when searched by police after Mr. Benninger’s arrest. The sawed-off shotgun was breached with a shell in the chamber. It was wrapped in a T-shirt. The presence and possession of those items in the backpack are the basis for the charges to which Mr. Benninger pleaded guilty.
[31] As he shot Mr. Benninger or immediately after, Cst Fraser fell backward to the ground. He indicated that when he earlier reached for Mr. Benninger’s arm, there was a brief scuffle where Mr. Benninger grabbed the antenna to his portable radio that was affixed to his police issued Moly-vest. The radio and cord were dislodged and he fell because his leg became tangled in the cord as he moved back from Mr. Benninger.
[32] When he fell, he struck his head against the ground or the front of his vehicle. He was seriously injured as a result. He was later taken by ambulance to hospital for a head and neck injury and was off work for nearly 22 months.
[33] Cst. Martin demonstrated how the radio is typically affixed to the Moly-vest and how it can be dislodged.
[34] To be clear, the Crown contends that the alleged assault of Constable Fraser occurred when Mr. Benninger grabbed the antenna to Cst. Fraser’s radio and the alleged threat was the statement that “either you are going to kill me or I am going to kill you”.
[35] The defendant called two civilian witnesses: Ms. Webb and Arlene Turner. Both reside on Whitechurch Rd. close by where the incident occurred albeit in different homes.
[36] As mentioned, Ms. Webb was taking a bath when she saw the lights flashing from the police car. She stood up, opened the window and observed what was happening. She agreed in cross-examination that she grabbed her robe but she did not have to leave the tub to do that. She simply turned slightly and grabbed it.
[37] Ms. Webb was understandably nervous about testifying but I find that she was earnest in trying recall and recount what she saw and heard that night. She agreed with Crown counsel that there may have been some words she did not hear and some things she did not see. She also indicated that this happened a long time ago and she had forgotten a lot. Reviewing her statement to police assisted her recollection.
[38] Ms. Webb testified that:
• A man, the defendant, was holding onto a backpack over one shoulder. The police officer asked him what was in the bag. She heard a reference to bullets.
• The officer told the defendant to get down. They were separated by approximately 2 meters.
• She did not see any physical contact or altercation between the officer and Mr. Benninger before the officer fired his gun.
• The defendant did go down with his arms spread as instructed but then got up. The man was up and down. He turned sideways to the officer just before he was shot.
• After he was shot, she heard some cursing and the defendant got up and ran away.
• She heard the defendant say that the backpack belonged to Chris Lee; that Lee told him to take it and it was stupid to take it.
• She did not hear anything about “I'm going to kill you” at anytime.
[39] Arlene Turner testified that she was watching TV when she saw flashing police lights at the front of her house. She went to the front window. She could see the officer when he got out of his vehicle but could not see who he was talking to. She was not able to hear what words were being said before the shot was fired because her windows were closed and her air conditioning and television were on.
[40] Miss Turner did not see any direct physical contact between the officer and the man who was shot. She saw the officer fall but did not see what caused him to fall. There was nothing obstructing her view of the officer. She saw him moving about in front of his vehicle in the area of the grill. She did not say that she lost sight of the officer at any time before the shot was fired.
[41] She agreed in cross examination that she told police later that it was difficult to say what happened because she was changing windows so often. She was not asked whether she changed windows at any point before the shot was fired.
[42] What happened in the aftermath of the shot being fired is not disputed.
[43] Cst. Fraser activated his emergency call button when he fell. He was hurt. He went behind the cruiser for cover. He contacted dispatch to advise of the shooting, that the suspect was on foot, and that he was injured.
[44] Mr. Benninger ran off. He crossed the road to 26 Whitechurch before walking back toward Cst. Fraser and was arrested by Sgt. Foxton of the Wingham Police.
[45] Efforts were made to stem the bleeding from Mr. Benninger’s shoulder which were painful and not much appreciated by him. A flip knife was found on his belt. An ambulance arrived and he was taken to hospital for treatment. A second ambulance attended for Cst. Fraser. He was also treated and released. He did his notes on September 8, 2018.
Legal Principles
[46] There are two fundamental principles that apply to every criminal trial:
a. The presumption of innocence; and
b. The requirement that the Crown prove each constituent element of the offence beyond a reasonable doubt to displace the presumption of innocence.
These principles apply regardless of the offence, the accused or the alleged victim.
[47] A reasonable doubt is one that is based on reason and common sense. It is a doubt that logically arises from the evidence or the lack of evidence. It is not a doubt that is farfetched or frivolous, nor one based on sympathy or prejudice.
[48] It is not enough that I conclude that Mr. Benninger is probably or likely guilty. That is not proof beyond a reasonable doubt. I must be sure that he committed the offence.
[49] The standard of proof beyond a reasonable doubt applies only to the final evaluation of innocence or guilt by the trier of fact; viz. to each of the constituent elements of the offence. It does not apply piecemeal to individual items of evidence: R. v. Wu, 2017 ONCA 620 at para. 15.
W.D. Principles
[50] This is a case of conflicting accounts between the evidence of Cst. Fraser and that of the two civilian witnesses called by the defence.
[51] Mr. Benninger did not testify as is his right.
[52] The seminal case of the Supreme Court of Canada in R. v. W.D. provides an analytical framework for the assessment of evidence in these circumstances. It is not a matter of merely picking one story or the other to believe. I must consider their respective versions in the context of the whole of the evidence including the evidence of the other. I am entitled to accept all, none or part of any witness’ evidence.
[53] If I believe the evidence called by the defendant, I must acquit Mr. Benninger on the assault charge. Both defence witnesses saw no altercation between Cst. Fraser and Mr. Benninger.
[54] On the uttering threat charge, Ms. Turner could hear nothing of what was being said, so her evidence is not in conflict with that of Cst. Fraser. Ms. Webb did not hear the alleged threat but agreed that she may not have heard everything. I must assess the evidence of the alleged threat in the context of the whole of the evidence that I find to be credible and reliable.
[55] If, on consideration of the whole of the evidence, I am unable to determine who to believe, I must find Mr. Benninger not guilty because the Crown will have failed to prove his guilt beyond a reasonable doubt.
[56] Even if I do not believe the defence evidence, if it leaves me with a reasonable doubt about the defendant’s guilt or about an essential element of the offence, I must find him not guilty.
[57] If the defence evidence does not leave me with a reasonable doubt and I do not believe it, I must then consider whether, on the basis of all of the evidence that I do accept, I am convinced beyond a reasonable doubt of the guilt of the defendant. Only then can I convict; otherwise, I must find him not guilty.
[58] The Ontario Court of Appeal has held that the W. (D.) principles are engaged even where the accused does not testify as is the case here. In R. v. D.(B) (2011), 2011 ONCA 51, 273 O.A.C. 241, the Court of Appeal stated, at para. 114:
What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favorable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if - viewed in the context of all of the evidence -the conflicting evidence leaves them in a state of reasonable doubt as to the accused’s guilt: Challice. In that event, they must acquit.
[59] The W. (D.) framework is often used for jury charges but it applies to judge alone trials.
Analysis
[60] Defence counsel urges me to find that Constable Fraser is not a credible or reliable witness. Mr. McNamara argues that there are significant inconsistencies and deficiencies in his evidence such that I should conclude that he has not been frank and forthcoming with the whole story. He argues that I cannot be satisfied that Constable Fraser has given me an honest account of the events of that night. I should place no reliance on it.
[61] Alternatively, Mr McNamara argues that with respect to the assault charge, there is credible and reliable evidence that no assault occurred. At a minimum, I should find that I have a reasonable doubt as to any intentional touching of Cst. Fraser by Mr. Benninger and acquit on that charge.
[62] I observe that Constable Fraser was not cross examined on the alleged threat. Mr. McNamara submits that Constable Fraser's evidence is so flawed and deficient that it cannot be relied upon in respect of either charge. His credibility and reliability are insufficient to rise to the level of proof necessary to sustain a conviction.
[63] Crown counsel takes the position that I should accept the evidence of Constable Fraser as to what happened. His evidence is credible and reliable. It is consistent with other evidence tendered including the shot gun shells found. There are concerns about the reliability but not credibility of Ms. Webb and Ms. Turner. However, if I accept their evidence or it raises a reasonable doubt, then I should acquit only on the assault charge but convict on the threatening charge. Crown counsel notes that even when he came back up the street from 26 Whitechurch, Mr. Benninger was clearly in a disturbed state asking to be killed, not unlike the threat he made.
[64] I will deal first with the assault charge. The evidence of Cst. Fraser conflicts with that of Ms. Webb and Ms. Turner. Neither civilian witness saw any physical confrontation or altercation. Ms. Webb estimated the two men as two meters apart.
[65] I find Ms. Webb to be a credible and reliable witness. She had a reasonable vantage point to observe what happened. She was candid about what she saw and heard, that she may have missed some things, and her memory.
[66] She was clear and consistent that the men were separated and that she did not see any physical altercation. It is understandable that she might not recall every detail given the passage of time but she gave her evidence cogently and consistently on what she observed.
[67] I also find Ms. Turner to be a credible and reliable witness. She had a good recollection of events and tried her best to answer questions honestly and without embellishment. She had a good vantage point to observe the officer. While she may have moved to other windows to see more as events unfolded that morning, she did not indicate that she did so before the shot was fired.
[68] For purposes of the assault charge I need not take up Mr. McNamara’s invitation to conclude that Cst. Fraser was misleading and not credible in his testimony. To be clear, I make no such finding.
[69] I have a reasonable doubt as to whether there was an intentional application of force by Mr. Benninger on Constable Fraser. That is one of the essential elements of the offence. The evidence of the defence witnesses leaves me in doubt. In these circumstances, I must acquit Mr. Benninger of the assault charge.
[70] I turn now to the uttering threat charge. Ms. Turner was unequivocal that she could not hear what was said by the officer or the man to whom he was speaking that morning before the officer fired his weapon. There is no conflict on her evidence with that of Cst. Fraser.
[71] By contrast, Ms. Webb could hear what was said. She heard the officer giving direction to Mr. Benninger. She initially thought Mr. Benninger’s voice belonged to her neighbour until she heard him say his name was Mike.
[72] Cst. Fraser testified that he asked the defendant his name and was told “Bobby” something. Ms. Webb did not hear “Bobby”. She heard him say “Mike”.
[73] Cst. Fraser testified that Mr. Benninger said “either you’re going to kill me or I’m going to kill you” as Mr. Benninger reached for and put his hand into the bag. He testified that Mr. Benninger was very vocal which I interpret to mean loud. Ms. Webb did not hear those words spoken.
[74] I note that she was watching as Mr. Benninger was initially on his knees and then as he stood up. She corroborated Cst. Fraser’s evidence that Mr. Benninger turned sideways to the officer - what he described as a blade position - just before the shot was fired. Thus, she was in a position to see what was happening and to hear what was being said. I find it unlikely that she forgot a death threat.
[75] I was initially troubled by Cst. Fraser’s evidence that Mr. Benninger had his hand in the backpack multiple times before the shot was fired. However, I do not consider that evidence to be a deliberate attempt to mislead this court. As Cst. Fraser testified, there was little street light. It was dark. Mr. Benninger was wearing dark clothes. The bag was dark coloured. Cst. Fraser is simply mistaken that Mr. Benninger’s hand was in the bag.
[76] Mr. McNamara cross-examined Cst. Fraser about the absence of any reference in his notes to the alleged assault. Cst. Fraser’s notes were marked as a lettered exhibit. In fact, the notes do refer to them grappling although that reference was not observed until closing argument.
[77] I am mindful that Cst. Fraser suffered a significant head and neck injury from his fall. The events happened quickly and in a very short period. It was dark and the area was poorly lit. I do not attribute his error concerning the defendant’s hand in the backpack to any lack of credibility – he was not lying or embellishing to make Mr. Benninger look worse or make his actions more justified.
[78] The evidence shows that Mr. Benninger was subject to three s. 109 weapons prohibitions at the time. He was prohibited from having controlled substances in his possession. The back pack contained both. He knew there was a firearm in the backpack and he knew that meant breach of the weapons prohibitions and likely incarceration. I accept that he did not want to be arrested or be incarcerated.
[79] Nevertheless, I am troubled by Cst. Fraser’s testimony where it conflicts with that of Ms. Webb, Ms. Turner and the physical evidence – the backpack. My concerns do not rise to the level where I find that Cst. Fraser has deliberately sought to mislead this court, but they do impact my assessment of the reliability of his evidence.
[80] The inconsistencies with the evidence of Ms. Webb and Ms. Turner, the error in his recollection concerning the backpack, combined with the testimony of Ms. Webb that she heard no threat, raise a reasonable doubt in my mind. Put another way, I have concerns with the reliability, not credibility, of Cst. Fraser’s recollection of the events on September 7, 2018 in the circumstances here. Those concerns are amplified by the evidence of Ms. Webb who heard no such threat.
[81] In the result, I have a reasonable doubt and must acquit Mr. Benninger of the uttering threat charge.
Justice R. Raikes
Released: October 2, 2020
COURT FILE NO.: CR 24/2019
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Michael Gerald Benninger
REASONS FOR JUDGMENT
Raikes, J.
SCJ
Released: October 2, 2020