REASONS FOR JUDGMENT

[1] Michael Franey appeals his conviction and sentence following a trial on a charge of assault. For the reasons that follow, the appeal is dismissed.

[2] The charge arose from an incident that began on a Toronto Transit Commission bus on January 4, 2019. There was an altercation between the complainant, Ms. Kathryn Pett, and Mr. Franey on the bus, following which Mr. Franey followed Ms. Pett off the bus when, as he put it, he attempted to make a citizen’s arrest of Ms. Pett pursuant to s. 494 of the Criminal Code.

[3] At the trial, the court heard testimony from the complainant, and viewed surveillance video of the incident obtained from cameras on the bus. Mr. Franey was not represented by counsel and defended himself. He testified, asserting that the complainant had assaulted him on the bus when the complainant’s knapsack struck Mr. Franey on the head, which then permitted him to arrest her.

[4] In his reasons, the trial judge reviewed the evidence and concluded as follows:

Mr. Franey’s account of what took place on the bus is simply incompatible with what is seen on the video. I accept Ms. Pett’s evidence that she inadvertently bumped Mr. Franey with her backpack, both because she struck me as a credible witness, and because her account is consistent with what the video shows.

[5] The trial judge then made the following findings regarding Mr. Franey’s actions following the bump with the backpack:

I reject Mr. Franey’s account of what took place next. It is obvious from watching the video that he deliberately pushed Ms. Pett just before the passengers started piling off the bus. In my view, Mr. Franey did not have reasonable grounds to believe Ms. Pett had committed an assault upon him while still on the bus. His response to what was plainly an inadvertent situation where he was bumped by someone’s backpack on a crowded bus, his response to that struck me as having been the result of a loss of temper. His testimony that he was prepared to shrug it off at that point is simply belied by what could be plainly seen on the video.

I also reject Mr. Franey’s evidence about what took place outside the bus. It is not possible from the footage to see the entire encounter. From the beginning portion, only the lower parts o the bodies are visible. What is clearly visible, however, is consistent with Ms. Pett’s account that, once outside the bus, Mr. Franey purported to place her under arrest and then she walked away. What is also clearly visible, and in this instance the full bodies can be seen, is that moments after getting off the bus, as Ms. Pett walked away, the defendant grabbed a hold of her, spun her around and brought her to the ground in a violent fashion. She testified that she did not have any injuries as a result of this. That is simply fortuitous. She could well have been seriously injured by the defendant’s actions.

There were no grounds for the defendant to arrest her and, even had there been grounds, it is plainly evident that the purported arrest was carried out with grossly excessive force. I would make the same finding if a uniformed police officer conducted themself in the way that Mr. Franey did, both on the bus and outside the bus. I do not have a reasonable doubt that Mr. Franey believed he had the power to arrest, or that he, in fact, more importantly that he did have such a power. I do not have a reasonable doubt that there was any objective basis to think that she had committed an assault. I do not have a reasonable doubt that there was any reasonable basis to believe that he had the power to arrest her. And I do not have a reasonable doubt that the force he used was anything even remotely close to the minimal necessary amount of force, even if there had been grounds for arrest.

[6] These findings of fact by the trial judge were amply supported by the evidence.

[7] On this appeal, at which Mr. Franey also represented himself, he advanced positions that had not been put forward at trial.

[8] First, Mr. Franey argued that the person who was alleged to have assaulted Ms. Pett was not him, a position he took repeatedly during oral argument. However, at trial, Mr. Franey admitted he was the person who had the altercation with Ms. Pett and relied on s. 494 of the Criminal Code to justify his actions. Mr. Franey filed no evidence to support his assertion that he was not the person on the bus or involved in the incident. Accepting this position flies in the face of the evidence and admissions at trial and is rejected.

[9] Second, Mr. Franey argued that his admission at the trial that he was the individual who had the altercation with Ms. Pett violated his Charter rights, including his right to freedom of expression (s. 2(b)), his right to remain silent (s. 11(c)), and his right against self-incrimination (s. 13). In my view, these submissions have no merit. Although Mr. Franey represented himself at the trial, the transcript discloses that he had an understanding of the process and of what he was doing to defend himself. The trial judge was careful at all appropriate stages to explain things to Mr. Franey and ensured that he understood what was happening and that he could choose whether to testify or not.

[10] Third, Mr. Franey advanced arguments that the complainant committed the offences of mischief (s. 430) and nuisance (s. 180), which justified Mr. Franey’s actions in attempting to effect an arrest of Ms. Pett. Neither point was advanced at trial and there is no evidence that at the time of the incident, Mr. Franey believed, on reasonable grounds, that she had committed such offences. His evidence was that he attempted to arrest the complainant based solely on his asserted belief that she had committed an assault – which was rejected by the trial judge.

[11] The arguments about mischief and nuisance have arisen after-the-fact, and must be rejected. Section 494 of the Criminal Code permits a citizen to arrest someone if “on reasonable grounds, he believes” that the person has committed a criminal offence. However, there is no evidence that Mr. Franey believed at the time that Ms. Pett had committed mischief or nuisance. In addition, there was no reasonable basis to have such a belief. None of the evidence supports Mr. Franey’s arguments that Ms. Pett committed acts which would meet the definition of either mischief or nuisance.

[12] Ms. Pett was, as the trial judge found, simply using a public bus when she inadvertently bumped another passenger with her knapsack, apologized, and then attempted to disembark. Mr. Franey’s submission that Ms. Pett violated TTC by-laws by, for example, leaving the bus by the front door and therefore endangering public safety, is not supported by any evidence. Similarly, although Mr. Franey raised during sentencing that his headphones had been damaged in the incident, there was no evidence of this, or how it happened, at the trial.

[13] During the course of the appeal proceedings, over the past two years, Mr. Franey filed at least five motions to admit fresh evidence. At the hearing, he abandoned his first three motions but still sought to admit evidence contained in two motions.

[14] One motion sought to adduce evidence about a prior encounter with the criminal justice system in which it appears charges against Mr. Franey were stayed through a diversion program, but with the requirement that Mr. Franey complete an anger management course, which apparently he did. I see little, if any, relevance to this evidence in relation to the facts of this case. It was also evidence that was available to Mr. Franey at the time of trial. It will not be admitted.

[15] The other motion lists a large number of documents, including reports of commissions of inquiry, books and articles, and references to a wide range of secondary material dealing with, among other things, the use of force by police and others. This proposed evidence is almost entirely hearsay and, again, would have been available to Mr. Franey at the time of the trial. It will not be admitted either.

[16] The proposed evidence would also be of little assistance as the trial judge was well-positioned, based on his consideration of the evidence, including the video evidence, to conclude, as he did, that the force used by Mr. Franey, assuming an arrest was permitted under s. 494 of the Criminal Code, was much more than necessary in the circumstances, applying s. 25 of the Criminal Code.

[17] Accordingly, I see no reason to interfere with the findings of the trial judge and the appeal from the finding of guilt is dismissed.

[18] Mr. Franey made no submissions on the sentence appeal. I see no basis on which the trial judge can be said to have made any error in principle such that the sentence should be changed. The sentence appeal is also dismissed.

Paul B. Schabas J.

Released: November 14, 2022

COURT FILE NO.: CR-20-40000057-00AP

DATE: 20221114

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

MICHAEL FRANEY

REASONS FOR JUDGMENT

Schabas J.

Released: November 14, 2022

R. v. Franey, 2022 ONSC 6361

Case Summary

REASONS FOR JUDGMENT

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