COURT FILE NO.: CR-00000298-0000

DATE: 20210707

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JASON BOAG

Defendant

Counsel:

Sunil Mathai, for the Crown

Peter M. Brauti and Lawrence Gridin, for the Defendant

HEARD: June 28, 29, 30, July 2, 2021

JUSTICE S. NAKATSURU (ORALLY)

[1] On June 29, 2018, as P.C. Jason Boag and P.C. Nicholas Dorazio were starting their night shift, a bad mistake was made. It is fair to describe the mistake as egregious. The two uniformed officers were sent on a “hot shot” domestic call to unit 601, 251 Sherbourne St. It should have been unit 608. The trouble arises because the female caller reporting the assault told 911 that she was in unit 608 but the police officers were dispatched to unit 601.

[2] Mr. Michael Lindsay lived alone in unit 601, a small bachelor. His tranquility and peace of mind were wrongfully disturbed that night. His sanctuary invaded over his objections. He was physically detained.

[3] It is not my role to fully figure out why the mistake happened or what all the consequences of that mistake should be.

[4] My role is to decide whether P.C. Boag is guilty of the charge of assault cause bodily harm.

[5] Three people were witnesses to what happened. One is the complainant, Mr. Lindsay. The other two are the officers. I have heard them all.

[6] Before getting to the evidence, I note that the Crown does not allege that the officers illegally entered unit 601 or illegally detained Mr. Lindsay. Given the information they had about an ongoing domestic assault being reported by a female 911 caller and how the line disconnected abruptly, I understand the concession.

[7] The legal basis that the Crown relies upon for conviction is the position that the manner of the investigation detention was unreasonable. It is submitted that the force used by P.C. Boag was unnecessary and illegal. If Mr. Lindsay is believed, P.C. Boag stormed in, spun and threw him into the wall, and repeatedly struck him. It is not disputed that when Mr. Lindsay went to emergency department of Saint Michael’s Hospital the next day, he was suffering from two recent fractures.

A. ANALYSIS

[8] Let me turn to my findings about the evidence. To state the obvious, the credibility and the reliability of the witnesses are important in this case. Additionally, I am mindful of the context. The actual incident took seconds. It all happened vert fast.

Mr. Lindsay’s Evidence

[9] Mr. Michael Lindsay is a fragile and vulnerable man. He is 65 but he suffers from several health issues. He has had a stroke. He uses a mobile wheelchair and a cane. He takes medication. He is slow to respond to questions. He often answers with long pauses. Sometimes he looks drowsy. But I agree with the defence that Mr. Lindsay is a large man who from the photos taken of him in his apartment, appeared younger in June of 2018 then he did at this virtual trial.

[10] After carefully considering his testimony, I truly feel that Mr. Lindsay believes that he is speaking the truth. His truth. In other words, he is sincere in his belief he was wronged and assaulted by the police that night. I do not accept any suggestion that he is making this up out of whole cloth to get money in a civil suit.

[11] But I have problems with his evidence. Serious problems. Mr. Mathai candidly agrees there are some. For instance, Mr. Mathai concedes that it cannot be proven that Mr. Lindsay was struck. In short, Mr. Lindsay is simply not a good witness. He is most unreliable. Parts of his account does not make sense. His testimony is inconsistent, internally and with the statements he gave to the SIU and medical staff. I have come to this conclusion giving full latitude to the fact that Mr. Lindsay suffers from medical conditions and he may be the type of person who does not communicate his testimony well. I also give full recognition to the fact it all happened unexpectedly and suddenly and even the most honest of witnesses can get details wrong. Nonetheless there are significant issues with his recollections about what happened.

[12] I won’t go at length listing all the problems. I think the record is clear. But here are some problems.

[13] The following are some examples of how implausible parts of his account are.

[14] Mr. Lindsay’s evidence that the two officers just burst in without anyone saying anything is simply contrary to common sense. The officers were there to investigate a domestic assault. Surely, they would say something. Yes, I can see in some cases the police could just storm in, but not in this situation. The officers heard nothing alarming within the unit while at the door. They had limited information about who Mr. Lindsay might have been. Given these circumstances, I am sure the police would have told Mr. Lindsay why they were there. In my view, Mr. Lindsay also surely would have said something if police just wanted to come in. Especially if the police wanted to come in to investigate a domestic assault on a woman when there had been no one in his place. Mr. Lindsay may feel this is what the police did, but he is wrong.

[15] Another example. Mr Lindsay described one officer as brown skinned or black. Even giving due consideration to the subjective nature of assessing skin color or tone and the fact P.C. Dorazio is Italian, both officers are clearly white. Mr. Lindsay is wrong.

[16] There are more.

[17] Mr. Lindsay described how he was lifted up from the floor after the attack by linking one finger with one of the officer’s finger. I can’t see why anyone would do that let alone it being physically possible.

[18] There is no reason why the officers would ask about two girls as Mr. Lindsay testified.

[19] Mr. Lindsay testified that he was struck in the ribs, chest, and shoulder hard, but he did not suffer any injuries.

[20] Second, Mr. Lindsay’s testimony had several inconsistencies.

[21] Mr. Lindsay was wrong about the time when the police arrived. This is a minor thing. But he would not move from his recollection even when confronted with the timing of the 911 call.

[22] Initially, Mr. Lindsay said that the first officer stormed into the apartment. Later in cross, he agreed that he was just gently pushed aside.

[23] In cross, he disagreed that it was the second officer who took control of him. Then, he changed his testimony and agreed it was the second officer who guided him to the wall.

[24] Mr. Lindsay has not always been consistent with how things happened. For instance, he told triage at the hospital on June 30 that he was assaulted and struck on the head. Mr. Lindsay denied he was struck on the head or that he said this to someone at the hospital. I find it likely that he did and given the treatment context, it is unlikely that this hospital notation is in error.

[25] Mr. Lindsay told the SIU several inconsistent things. Sometimes he denied ever saying these things to the SIU. I don’t think he was being evasive per se. But all this cross-examination showed how unreliable his memory is. Some inconsistencies may be about peripheral details. Others were not. In the SIU statement, Mr. Lindsay was not sure if both officers were striking him. He was not sure which one punched him. He said he was only punched in the chest but nowhere else. Mr. Lindsay told the SIU that he leaned back, his back against the door, the officers then caught him and then pulled him along. He did not know what happened and he fell to the floor. Mr. Lindsay told the SIU he was punched 10 times really hard. He told the SIU that both officers spun him around. Then he said to the SIU that he did not know what really happened. All of these were inconsistent with his testimony.

[26] These inconsistencies and how Mr. Lindsay responded in cross-examination when questioned about them diminished the weight I could put in his evidence.

[27] In terms of demeanour, Mr. Lindsay was often slow in responding to questioning. At times, he was fine. Other times, he seemed confused. While there may be good and valid reasons for this, it does not give me much comfort in finding his testimony reliable.

[28] Finally, Mr. Lindsay’s evidence is at odds with the evidence of the other two witnesses on areas of their evidence that I accept. One important issue is the handcuffing. Mr. Lindsay denies he was handcuffed. Both officers testified that he was. The officers were not at all challenged about the handcuffing. The Crown concedes that he was. I accept that Mr. Lindsay was handcuffed. It troubles me that Mr. Lindsay seems to have no recollection of something like this that would be nearly impossible to forget or misremember.

[29] I will refer to the other officers’ testimony which further supports my finding that I cannot accept Mr. Lindsay’s testimony. An example is that Mr Lindsay testified that it was the first officer who stormed through the door that beat him up. This was wrong. I accept as a fact that P.C. Dorazio was the first one through. Aside from pushing Mr. Lindsay aside, P.C. Dorazio did not physically interact with Mr. Lindsay. Mr. Lindsay testified that he was spun around and hit the wall hard. With his back to the wall and facing his attacker, he testified that he was further struck. I find that P.C. Boag’s evidence on this makes more sense. In keeping with his training and the situation, Mr. Lindsay would have been put facing the wall to ensure the officer had a tactical advantage.

[30] In sum, I find Mr. Lindsay’s testimony is such that I cannot rely on it.

[31] The strongest evidence that could support Mr. Lindsay’s account are his injuries. There are the fractures to his left shoulder and left knee. They turned out to be significant injuries. He spent a few months in hospital for treatment and rehab. Using common-sense, such injuries are supportive of Mr. Lindsay’s testimony and the charge of assault cause bodily harm. This evidence does supports Mr. Lindsay’s testimony that he was spun into the wall, striking it, and injuring the left side of his body.

[32] However, there are a few things that temper this inference. First, Mr. Lindsay suffers from a medical condition, osteopenia, which leads to brittle bones. It is a contributing factor in the fractures he sustained. A radiologist concluded that Mr. Lindsay’s injuries could be caused by a fall and that the fractures likely occurred within the last 24 hours. Put another way, the amount of force required to cause the fractures suffered could be significantly less than what one might expect.

[33] The defence also suggests the possibility that Mr. Lindsay could have suffered these fractures in an incident unrelated to his interaction with the police on June 29^th.

[34] The injuries seem severe to me and likely would have caused pain, but Mr. Lindsay did not seek medical attention right away. Mr. Lindsay did not go to the ER of St. Michael’s Hospital until 3:40 p.m. the next day. Moreover, according to him, he had gone to the park as is his normal routine to visit friends. There he got some advice from friends about the incident.

[35] On the other hand, I can accept why Mr. Lindsay did not go to the ER right away. Sometimes it takes time for the pain and limitations of an injury to show through. The effect of the fractures on Mr. Lindsay would also depend on his degree of pain tolerance.

[36] The defence argues that Mr. Lindsay could have fallen somewhere and sustained the injuries he now claims were caused by the accused. They point to the medical report of July 10, 2018, where the treating rheumatologist, Dr. Norris, noted under osteoporosis history that Mr. Lindsay was admitted after a fall when transferring from his wheelchair. This medical notation is not being tendered for the truth of its assertion. Rather it is tendered as a prior inconsistent statement told to the doctor. The Crown says even limited to that purpose; it is not of any probative value. Mr. Lindsay denied making this statement when questioned on it. I agree that it is possible that the doctor received this information elsewhere from the file. However, I have no evidence there is a different notation in the file. Also, he may have got this information not from Mr. Lindsay but someone else, like a nurse. On the other hand, the doctor was present and doing an assessment. He notes that further history was difficult to obtain because Mr. Lindsay was drowsy. That suggests that the information in question came from Mr. Lindsay. If it did, it is clearly inconsistent with what Mr. Lindsay claims. At the same time, it could be Mr. Lindsay given his drowsy state of mind, gave inaccurate information to the doctor. I am unable to make a definitive determination. I will just say, it does add another element of inconsistency to Mr. Lindsay’s accounting of how he got hurt.

[37] While this objective evidence of the injuries does support Mr. Lindsay’s testimony, I find that they do not to the extent that I can safely rely on his testimony about what happened given the problems I have already pointed out. In short, the medical evidence is not such that I can safely conclude that Mr. Lindsay is giving accurate and reliable evidence about what took place in his interactions with the police.

[38] So how did Mr. Lindsay get his injuries? As I will explain, it is not inconsistent with the police officers’ account. Moreover, there is no onus on the defence to show how he got injured. All I will say for the moment, is that the injuries in the context of the evidence does not lead me to accept Mr. Lindsay’s testimony.

The Police Officers’ Testimony

[39] The Crown called the second witness to what happened: P.C. Dorazio. The last witness was P.C. Boag, testifying in his own defence. Both are police officers. No doubt they have experience in testifying. Therefore, I cannot put much stock in their demeanour. That said, they testified well in terms of the substance of their evidence.

[40] There were some inconsistencies between the officers. But those inconsistencies between the witnesses are not of any real moment. For instance, inconsistencies about how wide the door was open. P.C. Dorazio said it was wide open. P.C. Boag said Mr. Lindsay was mainly behind the door. I observe that Mr. Lindsay said the door was partially open. In my view, this inconsistency is readily explained by the fact they have differing recollections or vantage points. I disagree with the Crown that P.C. Boag’s recollection was implausible or did not make sense. It may just be that his recollection is different or inaccurate. It does not diminish his credibility.

[41] There are other minor inconsistencies. Regarding who exactly knocked on the door, P.C. Dorazio, P.C. Boag, or both, even if this is inconsistent, it is of no materiality in my view. P.C. Dorazio heard nothing outside the door. P.C. Boag testified that he heard music. P.C. Dorazio smelled no alcohol on Mr. Lindsay’s breath. P.C. Boag said he did. In my view, these inconsistencies are readily explained by differing subjective perceptions or recollections of the same event. They are also not particularly material. On the other hand, these differences that do exist counter any suggestion of collusion between the officers.

[42] I am also aware that there may be an implicit bias on the part of P.C. Dorazio to help his one-time colleague. However, it did not seem to make that much of an impact on his testimony. I note that if he wanted to falsely support P.C. Boag, he could easily have said he saw the whole of the interaction between P.C. Boag and Mr. Lindsay. He did not.

[43] Overall, the two officers gave a relatively consistent version of the events before they entered the apartment. I accept that evidence. I find that the officers knocked several times. It took awhile before Mr. Lindsay came to the door. At the door, the officers told Mr. Lindsay why they were there. The doorway area was dimly lit. Mr. Lindsay objected and argued with the officers. P.C. Dorazio testified that Mr. Lindsay refused to let the officers in. P.C. Boag did not testify he heard Mr. Lindsay refuse entry. However, he did recall Mr. Lindsay saying there was no girl here and was hesitant. P.C. Boag testified that they discussed the reasons for being there and it was explained they would have to search the apartment for the girl. It was explained that the officers could not take his word. I accept P.C. Dorazio’s testimony that Mr. Lindsay refused them from going inside. His recollection is best, and it makes sense given the circumstances that was going on. Given that the argument was not going anywhere, P.C. Dorazio pushed Mr. Lindsay to the left and he forced himself in to check to see if the female was inside. All of this action makes sense given the information the police had.

[44] P.C. Dorazio testified that as he went into the unit, he heard Mr. Lindsay behind him protesting and sounding upset. I accept that. Given that Mr. Lindsay had no woman in his unit, did not know what the police were talking about, and having just been pushed out of the way so the police could enter, anyone would be upset.

[45] P.C. Dorazio does not again see Mr. Lindsay and P.C. Boag until his attention is brought back to them after he scanned the apartment. It all happens within seconds. He sees P.C. Boag is holding Mr. Lindsay’s shoulders as Mr. Lindsay is facing the wall. Mr. Lindsay is still arguing. Mr. Lindsay is not pressed or pinned against the wall. Mr. Lindsay appears to be wriggling out of his partner’s grasp. He wriggles downwards and falls, slumping onto his buttocks and then onto his left side. In cross, he testified that the force he saw P.C. Boag use was minimal and consistent with P.C. Dorazio’s own training. He later described the falling down as seemingly intentional by Mr. Lindsay or a protest movement. It did not appear as if he was slipping or falling.

[46] P.C. Dorazio testified that Mr. Lindsay was not resisting but he was yelling and arguing the validity of the police being there. After refreshing his memory, the officer testified that he heard P.C. Boag tell Mr. Lindsay he was being detained and explaining it. This is the first P.C. Dorazio heard of this. But earlier he had heard both Mr. Lindsay and his partner’s loud voices, but the officer could not relate what had been said. P.C. Dorazio asked Mr. Lindsay, who was on the ground, where the injured woman was.

[47] Mr. Lindsay was then handcuffed by P.C. Boag with P.C. Dorazio assisting. Then Mr. Lindsay is assisted to his feet and sat in his mobile scooter. P.C. Boag radios dispatch. They are told they are in the wrong unit. The officers uncuff Mr. Lindsay, are apologetic, and explain to him what happened. Mr. Lindsay seems understanding. The officers then leave to attend unit 608.

[48] Finally, P.C. Dorazio did not see Mr. Lindsay being injured in any way. Nor did he hear Mr. Lindsay cry out in or complain of any pain.

[49] P.C. Dorazio’s testimony was not really challenged. Bluntly, the Crown could not as he was a Crown witness. The cross-examination elicited only evidence favourable to the defence. While I appreciate these circumstances, I find that there is no reason not to accept this officer’s testimony. If suffered from no major frailties. His testimony was plausible. It was consistent. I therefore accept it.

[50] The final witness was P.C. Boag. He was no ordinary witness. He is the accused. Therefore, the doctrine of reasonable doubt applies to the credibility assessment of his testimony.

[51] Amongst other things, P.C. Boag testified about his state of mind as the events were happening. Of course, he also gave an account of the interaction between himself and Mr. Lindsay; part of which P.C. Dorazio did not see. P.C. Boag testified that after his partner moved in, he immediately followed to control Mr. Lindsay. He put Mr. Lindsay under investigative detention. He placed his hands-on Mr. Lindsay’s upper body who was partially behind the door and guided him to the right wall. There the officer had Mr. Lindsay face the wall and he placed his upper arm across his back but did not pin him there. P.C. Boag testified that he had concerns for officer safety, and he wanted to conduct an officer safety search. I find that Mr. Lindsay was wearing a T-shirt and jeans. I appreciate that ultimately no police safety search was ever conducted. However, before that could realistically happen, Mr. Lindsay was handcuffed alleviating any concern for weapons. Once unhandcuffed, there was no need to do so given the new information they obtained that they were in the wrong apartment and the fact they had to go quickly to the right one. The fact no search ever happened does not detract from P.C. Boag’s credibility. I accept that P.C. Boag wanted to conduct a police officer safety search.

[52] At the wall, P.C. Boag testified that Mr. Lindsay was objecting. He said to the officer to get the fuck off of him. Before he could do the search, Mr. Lindsay pushed back against the officer. P.C. Boag grabbed Mr. Lindsay’s shoulders with both his hands. Mr. Lindsay started towards the inside of the apartment. P.C. Boag tried to pull back on him as he was a large man. The officer pull in the direction Mr. Lindsay was going and Mr. Lindsay ended up on the ground. P.C. Boag denied a deliberate grounding. P.C. Boag admitted that this was not a violent struggle, but it was active resistance on Mr. Lindsay’s part. P.C. Boag did not have a specific recollection of how Mr. Lindsay fell but said he fell to his left. P.C. Boag started going down at the same time and ended up in a crouched position leaning over Mr. Lindsay. P.C. Boag denied ever striking or hitting Mr. Lindsay. Mr. Lindsay never appeared hurt or injured and never complained of injury.

[53] The Crown submitted that given P.C. Boag’s experience and opinion of 251 Sherbourne St., he came to the scene, scared. Scared for the potential for violence. This caused the officer to over-react when he entered the unit. I do not accept this characterization. P.C. Boag explained why he made references to 251 Sherbourne to the SIU given they may not have had knowledge of the building. Also, it was only a factor that P.C. Boag considered. In my view, it was prudent to do so. The officer gave measured and knowledgeable testimony on this point. It did not affect his credibility. Nor was it such an over-riding consideration in his mind.

[54] P.C. Boag was cross-examined at length and with vigor. Except for a few areas, the substance of P.C. Boag’s testimony remained intact. The fact that there were other options available to P.C. Boag such as merely verbally directing Mr. Lindsay or immediately conducting a pat down search, does not make me question his credibility. This was a fluid and potentially risky scenario. I can accept why P.C. Boag would do what he did for the reasons he stated, though a different police officer may have chosen to do otherwise.

[55] P.C. Boag was inconsistent with a portion of his SIU statement on March 12, 2019, where he said he did not recall where he first touched Mr. Lindsay and that he just managed to take a hold of him. In his testimony, he testified he put his hands on his upper body. When shown the contradiction, P.C. Boag explained he did not well articulate what he observed to the SIU. He denied there was an inconsistency. He explained he was nervous in his SIU statement and had difficulty articulating. In my opinion, this was inconsistent, but I do not find it to be a major one. It is a relatively innocuous difference about where he first touched the complainant. It does not damage his credibility.

[56] Other inconsistencies or omissions between his testimony and his SIU statement or notes were also relatively minor.

[57] That said, I am concerned about the notation in his notes that reads “can’t see his hands. Male pulls away from me. Grab male and pull him to the ground”. I accept why P.C. Boag did not go into details of what happened and why he might just put an overview in his police notes. But the words he chose here suggests a deliberate grounding. P.C. Boag denies he deliberately grounded him. While the officer explained his notes was simply an overview, the use of the phrase pulling him to the ground is more consistent with a grounding rather than a fall as described by P.C. Boag in his testimony. Moreover, the police officer grounding Mr. Lindsay in these circumstances is a plausible scenario. When I use the term “grounding”, I am referring to an intentional application of force to take a person to the ground.

[58] In addition, P.C. Boag was cross-examined on his SIU statement. In that statement, P.C. Boag said as he was pulling, he felt Mr. Lindsay’s momentum towards the inside of the room, he went with the momentum and pulled with him and took him to the ground as a restraint mechanism as he feared Mr. Lindsay would get away. P.C. Boag tried to explain he was pulling him to the ground as a restraint technique and not an intentional grounding. In other words, what he meant to say was only that he was pulling on him as they were going to the ground.

[59] Not only is that inconsistent on its surface with what the officer testified to, it seems he is describing what would an intentional application of force; a force that is greater than the officer admits to. There was some impact on the officer’s credibility on this point. Though P.C. Boag did not move from his testimony, I find that these statements are inconsistent. They seem to be an admission that he deliberately pulled Mr. Lindsay to the ground.

[60] After serious reflection, I decline to make that finding. I do so for two reasons.

[61] First, the other two witnesses do not support a deliberate grounding. Mr. Lindsay in chief when asked why he fell to the floor, he answered that P.C. Boag hit him on the wall so hard that he was so weak, he fell to the floor. Again later, when asked if he was pushed to the ground, Mr. Lindsay did not agree with that and testified that he went to the ground himself and landed on his butt. In other words, Mr. Lindsay does not suggest that the officer deliberately grounded him.

[62] Also, as I set out earlier, P.C. Dorazio also describes Mr. Lindsay in a fashion that was far from a grounding.

[63] Why would then Mr. Lindsay fall to the ground? It could be that Mr. Lindsay deliberately went to the ground as P.C. Dorazio believes though it is hard to understand why he would. Mr. Lindsay fell to the ground but he himself cannot really say why. I do not accept that he was thrown so hard against the wall. Mr. Lindsay testified he fell to the interior of the apartment and he fell to his left. While I cannot speculate, I do note that Mr. Lindsay had a stroke in 2010 that damaged his mobility on his left side. He uses a scooter and a cane at times. He could well suffer from left side instability or weakness. He is a large man. In my view, his physical condition left by his stroke could be a reason why he fell or made him more vulnerable to a fall.

[64] The second reason is that reasonable doubt applies to findings of credibility. While it is hard for me to fully accept this part of P.C. Boag’s testimony, it nonetheless can be reasonably true especially given what the other two witnesses say.

[65] Given the whole evidence, while I have serious concerns, I cannot find that P.C. Boag deliberately grounded Mr. Lindsay. I conclude therefore he did not.

[66] Overall, I have no reason to disbelieve P.C. Boag. His evidence is largely confirmed by his partner. P.C. Dorazio cannot testify to all of what happened between P.C. Boag and Mr. Lindsay as he was in the apartment looking for the female complainant. However, looked at in its entirety, P.C. Dorzaio’s evidence is inconsistent with Mr. Lindsay and consistent with P.C. Boag. For instance, P.C. Dorazio testified that he saw no punches or strikes. He also said he heard nothing that sounded like strikes or punches. Given where he was, I accept he would have. Also, if P.C. Boag had spun and thrown Mr. Lindsay so hard against the wall, I would have expected P.C. Dorazio would also have heard something. Both officers observed no injuries or complaints of injuries.

[67] One final consideration, I reject any argument that the officers were trying to hide the incident with Mr. Lindsay. I accept that there were legitimate reasons why the officers did not fill out an occurrence report. It was P.C. Dorazio’s responsibility to do one. He indicated his reason why he did not. I accept it. Both officers testified as to why no use of force report was filled out. I agree that their reasons are in keeping with the policy. Mr. Lindsay suffered no visible injury or made a complaint of an injury. But most importantly, before any complaint was made about this incident by Mr. Lindsay, both officers noted in their notebook their interaction with him. Notes that were checked by the supervising Staff Sergeant that night. This was the anti-thesis of concealment. The Crown argues that the notes were not detailed or complete. That may well be. However, given the purpose of police notes and the fact that this interaction with Mr. Lindsay led to no charges nor was expected to lead to anything of great consequence, I can see why better notes were not taken.

[68] In conclusion on this part of my decision, I find that what happened was what the officers testified to. While I have some concerns about the amount of force and the exact mechanism in which Mr. Lindsay fell to the ground, P.C. Boag’s testimony is reasonably true. Therefore, I accept it. I reject any finding that Mr Lindsay was punched or struck. Further he was not thrown into the wall nor did he strike the wall with force. Finally, P.C. Boag did not intentionally pull Mr. Lindsay to the ground.

B. INVESTIGATIVE DETENTION AND SECTION 25(1) OF THE CRIMINAL CODE

[69] There is no dispute P.C. Boag intentionally applied force to Mr. Lindsay. In this case, the defence relies upon the justification found in s. 25(1) of the Criminal Code. This subsection states a police officer authorized by law to do anything in the enforcement of the law, if they act on reasonable grounds, is justified in doing what they are required or authorized to do and in using as much force as is necessary for that purpose. The onus is on the Crown to disprove this justification beyond a reasonable doubt.

[70] The allowable use of force by the police is constrained by the principles of proportionality, necessity and reasonableness. Section 25(1) provides that a police officer is justified in using force to effect a lawful detention provided they act on reasonable and probable grounds and use only as much force as was necessary in the circumstances: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at paras. 32, 34.

[71] There is no issue that P.C. Boag was authorized to detain Mr. Lindsay for investigation. He had reasonable grounds to suspect Mr. Lindsay was a person who had just recently committed a domestic assault: R. v. Mann, 2004 SCC 52. The Crown concedes this.

[72] Rather, it is the manner of the detention that the Crown takes issue with. I agree with Mr. Mathai’s analytical framework in applying s. 25(1) to the facts of this case.

[73] The Crown submits that it has proven beyond a reasonable doubt that the extent P.C. Boag interfered with Mr. Lindsay’s liberty was more than reasonably necessary to perform the officer’s duty and in addressing the risk presented. The Crown submits it has proven beyond a reasonable doubt given the totality of the circumstances, the nature and extent of that interference was not tailored to those circumstances: R. v. Squires, 2016 NLCA 54 at paras. 29-36. The Crown goes so far as to argue that the moment P.C. Boag laid hands on Mr. Lindsay, the manner of detention became unreasonable. As a result, the officer, by intentionally applying force to Mr. Lindsay in the manner that he did, was not “authorized” by law (the common law power of investigative detention) to do what he did. Thus, P.C. Boag cannot avail himself of this justification.

[74] On the facts of this case, I find that it is not necessary to resort to or conduct a separate analysis under s. 25(1) to determine if there were reasonable grounds to do what he did and in using as much force as necessary for that purpose. These express requirements under s. 25(1) are essentially the same as the analysis to determine whether the manner in which the investigative detention was conducted was reasonable.

The application of force prior to the handcuffing

[75] Based on my findings of fact, the force applied by P.C. Boag until the handcuffing was that he put his hands on Mr. Lindsay’s upper body, guided him to the wall, put his upper arm across his shoulder blades, and then pulled briefly with him with his hands on his shoulders. Mr. Lindsay then fell. He was not pulled or pushed to the ground by P.C. Boag.

[76] To put it in a summary fashion, P.C. Boag physically took control of Mr. Lindsay and restrained him but did not use great force.

[77] In my view, the Crown has not proven beyond a reasonable doubt that this force was reasonably unnecessary given the totality of the circumstances.

[78] The following supports my conclusion.

[79] I accept that given P.C. Boag’s knowledge and experience with the building at 251 Sherbourne he should be concerned with officer safety and the potential for the risk of violence on this call. Mr. Mathai argues that the high crime nature of the neighborhood cannot support a different standard being applied when it comes to assessing the manner in which an investigative detention is conducted. I agree. To hold otherwise would be discriminatory and unfair. Yet, Mr. Mathai also admits that it can be a consideration provided that there are other factual links that provide a reasonable foundation for the actions of the police during an investigative detention. I agree with this as well. In this case, there are. It was not just the reputation of 251 Sherbourne St. that caused P.C. Boag to physically lay hands on Mr. Lindsay. It was all the following factors.

[80] The two officers honestly though mistakenly believed they were attending the unit where shortly before a female had called 911 reporting a domestic assault that just had happened to her. It is true that the female only reported she was pushed and had her hair pulled. No weapons or serious injuries were reported. As reported, it was not the most violent of crimes. But what was worrisome was the line had disconnected and the dispatcher was unable to call her back despite attempts. P.C. Boag knew this. It was undisputed at trial that the police detail to 251 Sherbourne was a priority call. This was reasonable. It would be unknown what if anything further happened to the female caller that might have led to such an abruptly disconnected call. It would be worrisome and require immediate investigation.

[81] Then the officers arrived at the unit where they had grounds to believe the domestic assault had just occurred and, despite several knocks, the occupant was slow to answer. While there could be innocent reasons for the delay in opening the door, this delay understandably would not diminish the officers’ concerns.

[82] When Mr. Lindsay opened the door, for good reason he did not know what the police were talking about. For good reason, he would not let them in. But from the officers’ perspective, there could potentially be within the apartment a female who was hurt or in need of help. They could not, based upon the situation presented, simply go away. It was at this point that without discussion with his partner, P.C. Dorazio moved his way into the unit over Mr. Lindsay’s objection. This further upset and agitated Mr. Lindsay.

[83] It is in these circumstances, happening quickly and fluidly, that P.C. Boag decided to put his hands-on Mr. Lindsay to control him. I appreciate that the police knew nothing of Mr. Lindsay. They had no information that he was a violent person or was known to carry weapons. But the immediate physical environment was a factor. P.C. Boag and Mr. Lindsay were not in a public street when this all happened. They were in a narrow, dimly lit hallway just past the threshold to the apartment. Mr. Lindsay and P.C. Boag were large men. Mr. Lindsay was partially behind the door. It was reasonable that rather than simply asking Mr. Lindsay to come out from behind the door or asking him to go to the other wall, that he decided to place his hands on him. P.C. Boag wanted to conduct a pat down safety search of him. This too was objectively reasonable for him to do so given the totality of the circumstances.

[84] This was not a calm or controlled environment. The officers were at a unit where they had a reasonable suspicion that Mr. Lindsay had just committed a domestic assault. Given how the 911 call abruptly ended, it was reasonable to suspect that things may have gone further. The suspect was refusing entry and arguing at the door. Given what P.C. Dorazio had just done, pushing past a large man who became upset by that specific behavior and the police presence at his place in general, this would inherently be a potentially volatile situation. It made sense for P.C. Boag to attempt to physically control Mr. Lindsay and to conduct a safety search. To say he could have just verbally directed Mr. Lindsay for example to show his hands, without any physical contact is to demand an exacting degree of perfection on the part of the officer. One that I find was not necessary in the totality of the circumstances.

[85] Furthermore, the amount of force used to direct Mr. Lindsay to a place where, as P.C. Boag testified to, put the officer at a tactical advantage and where he could conduct his search, was minimal. He guided him physically from behind the door to the opposite wall where he placed his upper arm on his back. The officer did not pin him to the wall. This was not by any means excessive. It was tailored to the circumstances confronting the officer.

[86] This conclusion is based upon my factual finding about the force used. Of course, if Mr. Lindsay had been spun around and thrown forcibly into the wall as he claimed, clearly this would have been excessive and unreasonable.

[87] It was at this point that Mr. Lindsay became more physically resistant, swearing at P.C. Boag, pushing backwards and then pulling towards the room. P.C. Boag pulled on his shoulders to maintain his control. Then Mr. Lindsay fell.

[88] As stated previously, I have suspicions that perhaps more force was used than that. But suspicions do not amount to proof beyond a reasonable doubt.

[89] In any event, I must also be mindful that this was happening very quickly. In seconds. The pulling of the shoulders, even if more than minimally forceful, did not cause any pain or injury. The fall was not caused by P.C. Boag. Putting myself in P.C. Boag’s shoes, I would be faced with an already upset man who was becoming more physically resistant. The pulling of Mr. Lindsay to regain more control, perhaps preventing him from moving more into the direction of the interior of the apartment, was reasonably tailored to the discharge of P.C. Boag’s duties, his concern for officer safety, and his intent to conduct a safety search. Taking into account all the circumstances, I find that the Crown has not proven beyond a reasonable doubt that the force used was reasonably unnecessary when P.C. Boag grabbed and pulled on Mr. Lindsay’s shoulders.

[90] As a result, no unjustified assault was committed during this interaction between the officer and Mr. Lindsay. Given this conclusion, it is not necessary to analyze whether bodily harm was caused by P.C. Boag.

The handcuffing

[91] Mr. Mathai most fairly submits that Mr. Boag should not be convicted of the lesser and included offence of simple assault for the handcuffing. Therefore, it is not necessary for me to consider this.

[92] That said, there are troubling aspects to the handcuffing though I am aware that Mr. Lindsay was struggling though not violently while on the ground and the handcuffing itself did not last long.

[93] Given the Crown position, I say no more.

C. CONCLUSION

[94] This is not a Charter application. This is not a civil trial. This is a criminal prosecution where P.C. Boag is the accused. In deciding this case, I must remain true to the fundamental principle that the accused is presumed innocent. In this case, he is found not guilty as the Crown has failed to prove the charge to the high standard of proof beyond a reasonable doubt.

[95] The charge is dismissed.

Justice S. Nakatsuru

Released: July 7, 2021

COURT FILE NO.: CR-00000298-0000

DATE: 20210707

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JASON BOAG

Defendant

REASONS FOR JUDGMENT

NAKATSURU J.

Released: July 7, 2021