Court File and Parties

Court File No.: CR-22-00000004-0000 Date: 2024-01-08 Ontario Superior Court of Justice

Between: His Majesty the King And: Paul Fyke, Accused And: Jeffrey Smith, Accused

Counsel: Ian Bulmer, for the Crown Kimberly Miles, for Paul Fyke Harry Black, for Jeffrey Smith

Heard: October 10, 12, 16-20, 23-24, 28 and November 1, 16, 2023

Reasons for Decision

Hurley J.

[1] Paul Fyke and Jeffrey Smith are jointly charged that, on or about November 15, 2019, they did, in committing an assault on Mario Maurice Baptiste Jr., cause bodily harm to him contrary to section 267 (b) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] Both are officers with the Belleville Police Service. I will refer to them in this decision as Constable Fyke and Constable Smith.

Overview

[3] I begin with an overview of the facts.

[4] Constable Fyke went to the Lowe’s store in Belleville on the evening of Friday, November 15, 2019 to return an item he had purchased. He was off duty. When he was at the customer service desk, he overheard employees talking about individuals in the store who they believed were planning to shoplift. One of them had already taken a drink.

[5] Constable Fyke identified himself as a police officer and offered to assist in observing these individuals.

[6] Constable Fyke, accompanied by an employee, went to look for them. The employee described them as a heavyset male wearing a toque, a male with hooped earrings wearing a black hat, and a third male wearing a white hat.

[7] The heavyset male wearing a toque turned out to be Mr. Baptiste. The other two were M.B. and his son, C.B.

[8] Constable Fyke watched the three men from a distance as they walked in different areas of the store. They were together throughout that time except for a brief period. They engaged in what he considered suspicious behaviour but he did not see any of them commit a theft.

[9] Based on what the employees said and his observations, he believed that they were intending to commit what he called a “distraction theft”. This is a shoplifting technique in which one or more persons divert the attention of store security while an accomplice conceals or steals something.

[10] None of the males had a drink in their hand nor did he see an empty container. He concluded that the drink had been consumed and discarded.

[11] He returned to the customer service desk and told an employee that the store could follow up with the Belleville police about the alleged theft of the drink but that he had not seen them take anything.

[12] He left the store. He was still in the parking lot when he saw a truck that appeared to have come from another store exit stop near the main exit. C.B. was driving it. Soon after, Mr. Baptiste and M.B. came out of store and got in the truck. It quickly left the parking lot.

[13] Constable Fyke suspected that they had stolen something in addition to the drink. He decided to follow the vehicle so that he could obtain the license plate number. He called the police dispatch on his personal cellphone and reported that he was following a vehicle whose occupants he believed had committed a theft.

[14] He followed the vehicle to a Taco Bell restaurant on North Front Street in Belleville. He parked in a nearby parking lot and waited for officers to arrive. Within minutes, four officers did – Constables Smith, McAuley, Dodds, and Montgomery.

[15] Constable Fyke spoke to them outside the restaurant. Mr. Baptiste, M.B., and C.B. were inside the restaurant and ordering food.

[16] According to Constable Fyke, he summarized what the Lowe’s employees told him and what he observed at the store. He said there were grounds to arrest all three for theft of the drink. Constable Smith’s version of their discussion is similar. Constable McAuley had a different recollection of what exactly was said, which I will review later in this decision.

[17] The Taco Bell had exterior and interior surveillance cameras. They recorded what took place outside and inside the restaurant after Mr. Baptiste, M.B., and C.B. arrived. Mr. Baptiste, M.B., and C.B. were at a table with their food when the officers entered the restaurant. Within a short period of time, M.B. and C.B. were arrested. They stood up, were handcuffed, and left the restaurant accompanied by Constables Dodds and Montgomery.

[18] Around the same time, Constable Fyke, who had remained outside the restaurant, left and went to his vehicle to call the Lowe’s store to tell them what had transpired.

[19] After M.B. and C.B. left, Constables Smith and McAuley attempted to arrest Mr. Baptiste. Both say that Constable Smith told Mr. Baptiste he was under arrest for theft of the drink. Mr. Baptiste claims that he was never told he was under arrest.

[20] The physical altercation that followed between Mr. Baptiste and the police is the basis of the charges. It started when Constable Smith put his hands on Mr. Baptiste to arrest him. They began to struggle. Constable Smith, with Constable McAuley’s assistance, pulled Mr. Baptiste to his feet.

[21] Constable Fyke saw this happening from his vehicle. He ran to the restaurant and joined the struggle. After Mr. Baptiste was brought to the ground, Constable Dodds ran in and entered the fray.

[22] The altercation continued until Mr. Baptiste appeared to lose consciousness. The officers began resuscitative efforts and called an ambulance. Although initially unresponsive to physical and verbal commands, Mr. Baptiste became more alert after the paramedics arrived. He was transported to the Belleville General Hospital where X-rays revealed that he had a fresh fracture to his right pinky finger and a left rib fracture of indeterminate age.

[23] The Belleville police notified the Special Investigations Unit (“SIU”) about Mr. Baptiste’s arrest. The SIU did not conduct a criminal investigation at that time. Following a complaint by Mr. Baptiste to the Office of the Independent Police Review Director in 2020 (the “OIPRD”), the SIU started an investigation in January 2021.

[24] In May 2021, Constables Fyke, Smith, and Dodds were jointly charged with assault causing bodily harm. On September 26, 2023, the Crown withdrew the charge as against Constable Dodds.

[25] The Crown called three witnesses: Edwin Segeren, a film and television editor who compiled the relevant video footage for presentation at the trial; Mr. Baptiste; and Brian Smeenk, one of the paramedics who attended the scene. It also filed admissions under s. 655 of the Criminal Code in relation to continuity and authenticity of the video footage and the interpretation of the X-rays.

[26] Constable McAuley did not give viva voce evidence. She is currently on a medical leave of absence. The parties agreed that her notes and the statement she gave to the SIU investigators on January 20, 2021 would be made exhibits in lieu of her testimony and would form part of the Crown’s case.

[27] Constable Fyke testified and called Jane Muston, an employee of Lowe’s who was on duty the night of November 15, 2019.

[28] Constable Smith testified. He called one witness, Chris Lawrence, a retired police officer who gave evidence about the use of force training that police receive in Ontario.

[29] Neither M.B., C.B., nor the other police officers that were at the Taco Bell that evening testified.

Positions of the parties

[30] The Crown submits that neither Constable Fyke nor Constable Smith had reasonable and probable grounds to arrest Mr. Baptiste. Because it was not a lawful arrest, their intentional application of force to Mr. Baptiste constituted an assault. The bodily harm consisted of the loss of consciousness, the fracture to the finger, or the rib fracture. They are jointly responsible for all injuries that resulted from the assault because they were co-principals or engaged in a common unlawful purpose.

[31] In the alternative, if I find they had reasonable and probable grounds to arrest Mr. Baptiste, s. 25 of the Criminal Code applies. Under this section, a police officer cannot be found guilty of assault if the force they used was reasonable, proportionate, and necessary. The Crown does not contend that Constable Smith used excessive force. However, it submits that Constable Fyke’s use of a prolonged chokehold, which caused Mr. Baptiste to lose consciousness, constituted excessive force.

[32] Constables Fyke and Smith maintain that there were reasonable and probable grounds to arrest Mr. Baptiste and the Crown did not prove that the force they used was unreasonable, disproportionate, or unnecessary. Constable Fyke specifically denies the alleged chokehold. Both say that the Crown failed to prove beyond a reasonable doubt that they caused an injury that would constitute bodily harm. Any injuries that Mr. Baptiste suffered happened during the course of a lawful arrest.

[33] I will now review the evidence at trial. Following that, I will set out the applicable legal principles. I will then explain my factual and legal findings and my conclusion on whether the Crown has proven the charges beyond a reasonable doubt.

The evidence at trial

a. The events at Lowe’s

[34] Mr. Baptiste is 38 years old and lived on the Tyendinaga Mohawk Territory in 2019. He went to the Lowe’s store in Belleville with M.B. and C.B. on November 15, 2019. M.B. drove. Mr. Baptiste and M.B. are childhood friends. C.B. was 13 or 14 years old at the time.

[35] They arrived shortly after 9 p.m. Mr. Baptiste intended to pick up an item he had ordered and do some shopping. After arriving at the store, he spoke to a clerk who told him that his order was not in stock.

[36] He spent the next 30 to 40 minutes in the store shopping. He estimated that he was apart from M.B. and C.B. for about 70 to 80 percent of the time that he was in the store. He bought paper towels and garbage bags. He testified that M.B. and C.B. also purchased some items.

[37] M.B. had initially parked the truck near the lumber yard but, at some point, it was moved and parked by the main entrance. Mr. Baptiste was not sure who drove it from the lumber yard to the entrance.

[38] In cross-examination, he testified that M.B. and C.B. were behind him when he was at the checkout and that all of them went out the main exit together and walked to the truck.

[39] He had no knowledge of C.B. taking a drink from a cooler in the store nor did he see him consuming it. He was not with C.B. at any time when he was walking around the store. He did not know where he had gone.

[40] The receipt for his purchases was marked as an exhibit. It indicates that he paid for them at 9:33 p.m.

[41] After they got in the truck, Mr. Baptiste suggested they go to the Taco Bell, which was a short distance away on North Front Street.

[42] Constable Fyke has been a police officer with the Belleville Police Service for 13 years. He was off duty on November 15, 2019 and went to Lowe’s with his wife to return some items. They got there around 9:10 p.m.

[43] When they were at the customer service desk, he overheard employees speaking about individuals who they thought were in the store to shoplift. An employee said that they had already taken a drink. The store manager, Jason Easterbrooke, was near the customer service desk. Constable Fyke knew him from a prior investigation at the store.

[44] Constable Fyke said that he was off duty but could help if they wanted any assistance. It was agreed that he would look for these individuals with another employee who could identify them. He assumed, because the employees said “they”, that it was more than one person who had committed a theft.

[45] He walked down the center aisle of the store with the employee who described the three individuals to him. He said there were three of them – a heavyset male wearing a toque, a second male wearing a black hat, and a third male wearing a white hat. This employee told him that he knew these males from a previous incident in which they had, in his words, caused “some grief”. He also said that the drink that was taken was a Powerade. Either he or one of the employees at the customer service desk had said that the male in the white hat had taken the drink.

[46] Constable Fyke first saw the three of them in the hardware section. Mr. Baptiste had a shopping cart with items in it. None of them had a drink in their hands.

[47] He continued to observe them for about 15 minutes as they walked around the store. They were together for most of that period. He thought that some of their actions were suspicious, but he did not see any of them steal anything.

[48] He went back to the customer service desk and told the employee there what he had observed. He said that he had not seen any of them with a drink and that she could follow up with the store’s loss prevention officer about the alleged theft.

[49] He and his wife left the store. While still in the parking lot, he observed a truck travelling quickly from the west side of the store, where there was another exit. C.B. was driving it. He stopped near the main exit, got out, and moved back and forth between the front and the back of the vehicle. Constable Fyke could not see what he was doing, but he appeared to signal Mr. Baptiste and M.B. with his hand. They were at the main exit and came over to the truck. M.B. got in the driver’s seat and drove away quickly.

[50] Constable Fyke suspected that they had committed a distraction theft together. He described what he saw outside the store – C.B. leaving by a separate exit, driving the truck to the main exit, and the three of them leaving quickly – as a “tipping point” which convinced him that not only had a drink been stolen but they likely stole something else.

[51] He decided to follow them to get the license plate number and report what had taken place. He called dispatch on his personal cellphone. He was still on the phone when the truck pulled into the Taco Bell parking lot. He drove to a nearby parking lot and decided to wait for the responding officers to arrive.

[52] In cross-examination, he agreed that the employees had identified C.B. as the person who took the drink. It was not clear to me from his testimony if the employees also told him that the drink had been consumed and discarded or if he inferred that it had been because he did not see anyone in possession of an empty bottle or drinking from one when he first saw M.B., C.B., and Mr. Baptiste.

[53] He concluded that Mr. Baptiste was a party to the theft of the drink because of the information he had received from the employees, which was that Mr. Baptiste was present when the drink was taken and, because all three were together in the store when the drink was taken, consumed, and discarded, they were acting in concert.

[54] He acknowledged that he only had a suspicion that they had stolen something else.

[55] Constable Fyke prepared a detailed supplementary occurrence report in May 2020 about his attendance at Lowe’s on November 15, 2019 and his subsequent investigation into the alleged theft. In this report, he stated that it was after his return to the customer service desk that an employee told him that the male in the white hat had taken and consumed a Powerade drink and that “she didn’t believe he was going to pay for that item.”

[56] Jane Muston was working at the Lowe’s store on November 15, 2019. She was, and still is, the head cashier. She recalled that three males came into the store near closing time and that another employee told her that she was concerned they were there to shoplift. Ms. Muston and the store manager started to watch for these males.

[57] She saw a young male take a drink from a cooler. He was alone at the time. She told him to pay for it. He said that he would pay for it when he left and walked away. She had seen this same male earlier in the paint department with a person that she described as a heavyset male.

[58] She testified that she was at the customer service desk with another employee discussing their concerns over the three males when a man who was there with his wife identified himself as an off-duty police officer. He asked if he could help.

[59] She later observed the young male who had taken the drink in the lumber yard section of the store. She saw him run out the exit, get in a truck, and drive away quickly. She did not see the other two males at that point.

[60] In cross-examination, she clarified that she did not see the young male take the drink but did see him consuming it. Another employee had reported to her that he took the drink. She claimed that she recognized Mr. Baptiste, who was sitting in court when she testified, as one of the three males. She also said that the three of them had shoplifted at the store before, but could not provide any details about these past incidents.

b. The events outside the Taco Bell

[61] The external surveillance cameras were date- and time-stamped. They captured the arrival of Mr. Baptiste, M.B., and C.B. at the Taco Bell at 9:42 p.m. Constable Fyke parked at a business adjacent to the Taco Bell shortly thereafter. Constable Dodds arrived at 9:46 p.m. and parked directly behind M.B.’s truck. Constable Fyke walked over to the restaurant at 9:48 p.m.

[62] Constable Smith then arrived. Constable Montgomery was with him. Constable McAuley arrived at about the same time. She was accompanied by a student, Brittany Blake, who is now a Belleville police officer.

[63] Constable Fyke spoke to the officers for a little over a minute.

[64] Constable Fyke did not know what the police dispatch had communicated to the officers. According to him, he told the dispatcher the “gist” of what had happened at Lowe’s.

[65] In her notes, Constable McAuley recorded her arrival at the Taco Bell at 9:45 p.m., and that the information from dispatch was “males left Lowe’s involved in theft”. Constable Smith heard this as well over his police radio.

[66] Constable Fyke testified that he had stayed because he knew officers would arrive soon and he wanted to speak to them about what he had been told and had observed at Lowe’s. He parked his vehicle about 25 feet away from the Taco Bell.

[67] He told them that a drink had been taken, consumed, and discarded, and that he suspected that the males had committed a distraction theft based on what he observed in the store and their departure from separate exits. He pointed out Mr. Baptiste, M.B., and C.B. in the Taco Bell and said the male in the white hat had taken the drink. He was sure that a drink had been stolen and thought that Mr. Baptiste and M.B. were parties to the theft. He believed that stolen property could be on their persons or in the truck.

[68] He did not give the officers any direction about arresting the males and stayed outside when they entered the restaurant. He remained at the scene because he thought he could assist the officers with what he called “smaller tasks”. He and Constable Dodds went over to M.B.’s truck. They looked in the windows. Constable Fyke did not see anything that appeared to be stolen property.

[69] In her notes, Constable McAuley recorded that Constable Fyke told them the following: “males [at] counter [at] Lowes, the male [with] white hat stole a drink, saw one male leave via [back] of store, [vehicle] pulled up[, picked up] others, done in a hurry[, spoke] with Lowes and belief [ sic ] they stole something but unsure what, at least attempt to id.” In her interview, she stated that she was unsure if Constable Fyke had personally observed the drink stolen or if staff told him that. He was sure that one of the males had stolen a drink. She went on to say “He indicated to us that he had spoken to the staff at Lowe’s and it was their belief that they had stolen something else. They didn’t know what at the time and, and that was the information that he had for us.”

[70] Constable Smith testified that Constable Fyke said that he had overheard employees talking about three males who they believed were committing a distraction theft, that he offered to help them, and that the three males behaved suspiciously in the store. Constable Fyke also said that an employee had told him that the male in the white hat took the drink and the others were with him, and he described how they had left by separate exits. Based on what Constable Fyke told him, Constable Smith believed that he had reasonable and probable grounds to arrest all three for theft of the drink.

[71] In cross-examination, he agreed that Constable Fyke did not specifically state that he had reasonable and probable grounds for arrest nor did he use the phrase “reasonable grounds”. However, Constable Smith claimed that, shortly before entering the Taco Bell, he said to Constable Fyke “So, at a minimum we have theft of the drink, maybe more”, and Constable Fyke replied “Yes”.

[72] He agreed that Constable Fyke did not tell him that Mr. Baptiste took the drink, consumed it, or discarded it. However, because all three were together when the theft happened, Constable Smith considered Mr. Baptiste to be a party to the offence. He explained that if two or more people are believed to be involved in a theft, their exact roles may not be known but they can be arrested and investigated for it.

[73] It was also his understanding that if another officer said he had grounds for an arrest, that, by itself, was a sufficient legal basis for an arrest.

c. The events inside the Taco Bell

Mr. Baptiste’s testimony

[74] Mr. Baptiste is 5’ 8” tall and estimated that he weighed between 215 and 230 pounds at the time. He had not reviewed the video footage before he testified but had seen still images from it.

[75] He was unaware of the police presence at the Taco Bell until he , M.B., and C.B. sat down at their table with their food. He thought seven officers initially approached their table. He said that Constable Smith did all the talking. Constable Smith accused them of stealing a can of pop at Lowe’s and said “[Y]ou’re going with us”. Mr. Baptiste described Constable Smith as aggressive, and he believed that the officer was singling him out as they talked back and forth.

[76] He told Constable Smith that he had the receipt for his purchases and pulled it out to show him. He said the officer replied “I don’t fucking care” and knocked his tray of food to the floor.

[77] M.B. and C.B. stood up and put their hands out. They were handcuffed and led outside. After they left, Constable Smith said to him “Get the fuck up, you’re coming with us.” He replied that he was not going to go out into a dark parking lot with the police. He believed that he had done nothing wrong. The next thing he knew, he was pulled out of his seat, tripped, and ended up face-down on the floor. His head struck the floor.

[78] He was certain that Constable Smith did not tell him that he was under arrest. Nor did any officer say that to M.B. and C.B.

[79] When he was on the floor the police “stomped” on his hands. At the time, he had his hands out with the palms down. He believed that his finger was broken in this way. The police kicked him in the head, hard enough to dislodge his hearing aids. They also kicked him in the side of his body, mainly on the left.

[80] He testified that, when he was on the floor, Constable Smith straddled him and was “choking me out”. He had food in his mouth. Constable Smith used what Mr. Baptiste described as a “sharpshooter” move, which he said was a professional wrestling term. The officer tilted his head back with both arms around his neck, gripping him in a headlock, with one arm across the front of his neck and the other against the back of it. Mr. Baptiste felt pressure on his neck and attempted to pull food out of his mouth with one hand. He could not breathe and thought that he would suffocate. At that point he lost consciousness and the next thing he remembered was waking up in the ambulance.

[81] After this initial description of the encounter with the police, the Crown played the video and reviewed specific portions of it with Mr. Baptiste. Upon watching the video, Mr. Baptiste said that it was Constable Fyke, not Smith, who had straddled and choked him.

[82] He was unsure of the exact time that he lost consciousness but did not have any recollection of the police handcuffing him or any of the resuscitative efforts they made.

[83] He was cross-examined on the affidavit that he swore in support of the complaint to the OIPRD and the statement he gave the SIU investigators in January 2021. He had reviewed them before testifying. In both, he said that he was choking on food when he was on the ground. In the affidavit, he deposed “I did not resist the officers.” He repeated that in the statement to the SIU. He also said in the SIU statement that he did not believe he struck his head when he was taken to the ground.

[84] He claimed that none of the officers told him to stop resisting at any point. He denied that Constable Smith asked him to identify himself or that he said to Constable Smith “Fuck you, I don’t have to tell you anything.”

[85] When it was put to him that the video did not depict any officer straddling or choking him as he had described, he maintained that the officer did do that.

[86] He was also challenged in cross-examination about his allegations that the police stomped on his hands and kicked him in the head. He testified that he was kneed in the head, if not kicked. He repeated that the police had broken his finger by stomping on his hand.

[87] He acknowledged that he opposed what the police were trying to do once the encounter turned physical, using his body weight for that purpose. He agreed with the suggestion that he was not going down without a fight, and that he resisted the officers’ attempts to arrest him.

Constable Fyke’s testimony

[88] Constable Fyke remained outside the Taco Bell when the other officers entered. He saw C.B. stand up but not M.B. He said that he was focusing on the area below the tables to see if any of them had dropped anything from their pockets or attempted to do so. He did not see anything on the floor.

[89] He believed that M.B. and C.B. were still in the restaurant when he walked to his vehicle to call Lowe’s. He was on the phone waiting for somebody to answer when he looked over at the Taco Bell and saw that Constable Smith was struggling with a male. He immediately ran to the restaurant and entered it. He did not see any officers in the restaurant other than Constables Smith and McAuley.

[90] He testified that, in his experience, police officers do not put their hands on people unless they are arresting them. He also believed that he had a duty to assist an officer in this type of situation under the Police Services Act, R.S.O. 1990, c. P.15. He claimed that once he entered the restaurant, he heard both Constable McAuley and Constable Smith telling Mr. Baptiste to stop resisting, which fortified his belief that they were arresting him.

[91] He bumped into Constable Smith and a chair as he passed by them and went behind Mr. Baptiste. He tried to take control of Mr. Baptiste by grabbing his left hand. He described Mr. Baptiste as “actively resistant”. He did what he called two “leg sweeps” in an effort to trip Mr. Baptiste so that he would fall to the ground. Constable Smith was pulling Mr. Baptiste forward at the same time.

[92] He testified that it was important to gain control of a person under arrest. One technique that the police use is “grounding”, which is taking a person forcibly to the ground.

[93] Constable Fyke fell to the floor, on top of Mr. Baptiste. The struggle continued with him on the right side of Mr. Baptiste and Constable Smith on the left. He put his right arm around Mr. Baptiste’s face and used his other to grab Mr. Baptiste’s right hand. He did so to prevent Mr. Baptiste from putting his right arm under his body. Eventually, he gained control of Mr. Baptiste’s right arm and Constable Dodds, who had returned to the restaurant, put handcuffs on Mr. Baptiste’s right wrist.

[94] Constable Fyke, both in examination-in-chief and cross-examination, was taken through the video at some length and asked to explain what he was doing at specific times. He maintained his denial that his arm was around Mr. Baptiste’s neck, asserting that it was on his head at all times. He said that he was having difficulty maintaining his balance and had used his right hand to grab the left side of his jacket to maintain his stability. He specifically denied the Crown’s assertion, based on Mr. Baptiste’s testimony, that his arm and forearm were pressed against Mr. Baptiste’s neck, choking him.

[95] Constable Fyke agreed that he did not receive any training in neck restraints and the Belleville Police Service’s use of force policy did not permit their use in 2019.

[96] He recalled that, after the handcuffs were on Mr. Baptiste, Constable McAuley said that his face was blue. Constable Fyke had not noticed this because, from his position, he could not see Mr. Baptiste’s face. When he looked, he saw food around Mr. Baptiste’s lips. He thought that Mr. Baptiste might be choking and tried to do what he called a “finger sweep” of his mouth, but was unable to do so successfully because his jaw was clenched. He described Mr. Baptiste’s breathing as laboured. The officers engaged in multiple resuscitative efforts. Mr. Baptiste’s breathing improved but was not normal. Constable Fyke remained at the restaurant after the paramedics arrived.

Constable Smith’s testimony

[97] Constable Smith is 44 years old. He was a primary school teacher for several years before becoming a police officer in 2014. He testified that he was the lead officer in speaking to M.B., C.B., and Mr. Baptiste. He decided that he was going to arrest them before he entered the Taco Bell.

[98] He immediately advised all three that they were under arrest for the theft of a drink at Lowe’s and told them what Constable Fyke had told him. Mr. Baptiste said that he did not know what Constable Smith was talking about, that he had bought some things, and he produced a receipt. Constable Smith looked at it and did not see a purchase of a drink on it. He said that they were present when C.B. took the drink and were parties to the theft.

[99] M.B. initially declined to give his name but then identified himself and said that C.B. was his son. Constable Smith recognized M.B. from a traffic stop that had happened a few months before and told him that he had not charged him then but given him a warning. He said that if there had been a misunderstanding about what they did at Lowe’s, they would be released unconditionally, but that the police “have to figure out what’s going on”. M.B. and C.B. stood up, were handcuffed, and then escorted out of the Taco Bell by Constables Dodds and Montgomery.

[100] Constable Smith testified that he had a further discussion with Mr. Baptiste, who continued to say he had done nothing wrong. He told Mr. Baptiste that he was a party to the theft and the police were not going to leave without conducting a full investigation. He asked Mr. Baptiste to identify himself and he said his name was Mario. When he asked for his last name, Mr. Baptiste said, “Fuck you, I don’t have to tell you my last name.”

[101] Constable Smith told him that he was under arrest. Mr. Baptiste stayed seated. Constable Smith put his hands on Mr. Baptiste to arrest him. When he attempted to grab Mr. Baptiste’s arm, Mr. Baptiste pulled it away. He believed that Mr. Baptiste was actively resisting arrest and he needed to gain physical control of him.

[102] He attempted to pull Mr. Baptiste up from the seat. Mr. Baptiste pulled back and grabbed a railing beside him. Constable Smith continued to pull Mr. Baptiste and got him to his feet and out from the area where he was sitting. At that point, Constable Fyke bumped into him. Constable Smith ended up in front of Mr. Baptiste and started to pull him to the ground. He testified that he did so because it was easier to control a person when they were grounded. He described it as a controlled grounding because he did not want Mr. Baptiste to hit his head on the floor.

[103] Once Mr. Baptiste was grounded, Constable Smith was on one side of him and Constable Fyke on the other. Constable Smith tried to grab Mr. Baptiste’s left arm so that he could be handcuffed. Constable McAuley was behind him with the handcuffs.

[104] Constable Smith was crouched over Mr. Baptiste, attempting to grab his left arm, most of which was underneath Mr. Baptiste’s body. He used what he called a “distractionary knee strike”, kneeing Mr. Baptiste in the side of his body. He said this was a technique that is used to control a person; it is intended to cause pain but not an injury. He was able to get Mr. Baptiste’s arm in a position where he could be handcuffed. Constable McAuley did so. She then said that Mr. Baptiste’s lips were blue and Constable Smith realized he was no longer resisting. He also saw that Mr. Baptiste’s face was blue.

[105] Constable Smith did a finger sweep of Mr. Baptiste’s mouth. His testimony was unclear about whether he was able to open Mr. Baptiste’s mouth. He said that he observed cheese and nacho chips either in or by his mouth.

[106] He next engaged in resuscitative efforts including chest compressions and several Heimlich maneuvers. He described Mr. Baptiste’s breathing as “strange”. He thought that he might be choking on something. He stayed until the paramedics arrived.

[107] Constable Smith agreed in cross-examination that a carotid neck restraint, which is a type of neck restraint that constricts blood flow to the brain, was prohibited by both the Belleville Police Service and the Ministry of the Solicitor General. He did not see Constable Fyke’s arms around Mr. Baptiste’s neck at any point. He agreed that the two of them were in close proximity but stated he was mainly focused on gaining control of Mr. Baptiste’s left arm once he was on the ground and not looking at what Constable Fyke was doing.

The evidence of Constable McAuley

[108] In her statement, Constable McAuley said that when the officers approached the table where Mr. Baptiste, M.B., and C.B. were sitting, Constable Smith told them that they were being investigated for a theft at Lowe’s. Mr. Baptiste produced a receipt which he gave to Constable Smith, who looked at it and gave it back. He told them that C.B. had not paid for the drink and it was not on the receipt.

[109] There was further discussion between them, but she could not recall the “fine details” of it. Constable Smith asked for their names. M.B. and C.B. identified themselves; Mr. Baptiste did not. Constable Smith told them that they were all under arrest. They said that they had done nothing wrong.

[110] She described M.B. and C.B. as cooperative. They stood up, were handcuffed, and escorted out of the restaurant by Constables Dodds and Montgomery. She stayed with Constable Smith.

[111] Constable Smith told Mr. Baptiste again that he was under arrest. According to Constable McAuley, he said the following to Mr. Baptiste: “Hey man, we’re gonna sort [this] out … but at this point … you’re a party to the offence.” Mr. Baptiste refused to stand up and continued to eat.

[112] Constable Smith put his hands on Mr. Baptiste and tried to pull him out from where he was sitting. She said that Mr. Baptiste was resisting this, actively pulling back and refusing to come out. She grabbed his belt loop to try and help Constable Smith but said this was “not … very successful”.

[113] She told Mr. Baptiste two or three times to stop resisting. Constable Fyke came into the restaurant. Mr. Baptiste was standing at that point and grappling with the officers.

[114] Constables Smith and Fyke grounded Mr. Baptiste. His head did not strike the floor.

[115] Mr. Baptiste continued to resist their efforts to control him. They were having difficulty getting Mr. Baptiste’s arms behind his back in order to handcuff him. Constable McAuley was standing behind Constable Smith. She saw Constable Dodds, who had come back into the restaurant, punch Mr. Baptiste’s thigh once or twice.

[116] After that, both of Mr. Baptiste’s arms were in a position where he could be handcuffed. She put two sets of handcuffs on his left wrist. She was unsure if his other wrist was cuffed.

[117] After he was handcuffed, she noticed that Mr. Baptiste’s lips were blue and he did not appear to be breathing. She told the other officers that he was turning blue and to stop, take off the handcuffs, and put him in the recovery position. She called for an ambulance.

[118] She watched as the officers engaged in resuscitative efforts, including Heimlich maneuvers, chest compressions, and sweeping Mr. Baptiste’s mouth. She observed that a partial denture had become dislodged in his mouth and was located near the back of it. She also saw food residue in his mouth but did not know if he was choking as a result of it.

[119] She left the restaurant to speak to M.B. She still did not know Mr. Baptiste’s name. She asked M.B. if his friend had any medical issues, and he did not know of any. M.B. told her that his name was Mario Baptiste.

[120] She could not specifically recall if Mr. Baptiste or Constable Smith used any profane language when they were speaking to each other, but did not think Constable Smith did so.

[121] She did not record in her notes that Constable Fyke used a neck restraint. She was not asked during her interview if he had.

The video footage

[122] There were two interior surveillance cameras. One was located directly above the area where customers ordered and paid for their food. It captured nothing of significance to this case. The other was in the dining area. It captured the whole of the encounter between the police and Mr. Baptiste. The cameras did not record any audio. They were date- and time-stamped, recording the hour, minute, and second. The time was based on a 24-hour clock.

[123] Much of what is depicted in the video is consistent with the evidence of both Mr. Baptiste and the officers in terms of what happened after the police entered the Taco Bell. Constable Smith appears to be doing all the talking on behalf of the police, speaking to M.B. and Mr. Baptiste. M.B. and C.B. are placed in handcuffs and escorted out of the restaurant by Constables Dodds and Montgomery. Around the same time, Constable Fyke is seen on the exterior camera walking to his vehicle. There appears to be a further discussion between Constable Smith and Mr. Baptiste. Constable Smith then reaches over to Mr. Baptiste. There is a struggle between them, and Constable Fyke is seen rushing into the restaurant. Constables Smith and Fyke quickly take Mr. Baptiste to the ground. From this point, there are material differences between the testimony of Mr. Baptiste and the officers.

[124] There are no other customers when the police enter the Taco Bell. Constable Smith enters at 21:49:50, followed by Constable McAuley and Ms. Blake. Mr. Baptiste and C.B. have just sat down. M.B. is standing. Constable Montgomery enters soon after.

[125] Constable Smith appears to be talking to the group. Mr. Baptiste hands him a document at 21:50:36. Constable Smith looks at it for about 12 seconds and hands it back to Mr. Baptiste. At 21:51:46, M.B. is handcuffed and, a few seconds later, so is C.B. They leave in the company of Constables Dodds and Montgomery.

[126] Constable Smith and Mr. Baptiste continue talking and Mr. Baptiste shows Constable Smith the document again at 21:53:19. About 20 seconds later, Constable Smith puts his hands on Mr. Baptiste, who immediately pulls his arm away. Throughout this period, Mr. Baptiste had continued to eat his food.

[127] To summarize, approximately four minutes have passed from Constable Smith’s entry to the first physical contact between him and Mr. Baptiste.

[128] Constable Smith attempts to extract Mr. Baptiste from where he is sitting, pulling him up and towards him. This appears to take significant effort because Constable Smith is leaning backwards as he pulls Mr. Baptiste towards him with both hands. Constable McAuley is behind Constable Smith and appears to be grabbing at Mr. Baptiste’s clothing in his abdominal area. Mr. Baptiste is pulling back from the officers, seeming to brace himself against the back of his seat and the side wall.

[129] Constable Fyke enters at 21:54:00. At this point, Constable Smith has almost completely extracted Mr. Baptiste. Once he is away from the table, Mr. Baptiste moves backwards with his arms out. All three officers are grappling with Mr. Baptiste. Constable Fyke bumps Constable Smith as he passes him and goes to the back of Mr. Baptiste. Constable Fyke grabs Mr. Baptiste’s left arm. Constable Smith grabs hold of Mr. Baptiste’s hoodie in the neck area. He begins to pull him forward and it appears Constable Fyke is both pushing Mr. Baptiste and kicking at his legs, attempting to trip him. Mr. Baptiste falls forward to the floor with Constable Fyke on top of him towards the right side of his body, and with Constable Smith bent over him on the left side. Constable McAuley is standing beside Constable Smith. Mr. Baptiste is on the ground at 21:54:13.

[130] Constable Dodds enters the restaurant a few seconds later and goes to the right side of Mr. Baptiste and punches him twice in the lower area of his body. Constable Smith delivers his distractionary knee strike at 21:54:21.

[131] There are now four officers around Mr. Baptiste. There are also tables and chairs in the same area. All of this makes it difficult to determine exactly what Constable Fyke is doing. He is on Mr. Baptiste’s back but is not straddling him. His right arm is across the front side of Mr. Baptiste’s body in the location of his neck and facial area, but the camera view is obscured because Mr. Baptiste’s hoodie now completely enshrouds his head, concealing his face and neck. The view is also obstructed, at times, due to the shifting position of Constable Smith.

[132] While his right arm is in this position, Constable Fyke has his left hand on Mr. Baptiste’s left hand. Constable Fyke grabs the left side of his jacket with his right hand while his right arm remains around Mr. Baptiste. This lasts for several seconds. When Constable Fyke moves his right arm, Mr. Baptiste’s head remains upright. Constable Smith then pushes Mr. Baptiste’s head to the floor and places his knee against it.

[133] At 21:54:41, Mr. Baptiste’s hoodie is pulled up. Soon after, Constable McAuley appears to notice that something is wrong. Mr. Baptiste does not appear to be conscious, and the officers begin the resuscitative efforts they described in their testimony. Handcuffs can be seen on Mr. Baptiste’s right and left wrists.

[134] To summarize, from the point that Constable Smith first puts his hands on Mr. Baptiste to when it is clear that Mr. Baptiste is unconscious and no longer resisting, approximately 80 seconds have elapsed.

[135] The video does not depict Constable Fyke straddling Mr. Baptiste and performing the sharpshooter move Mr. Baptiste described in his testimony. Nor does it show any officer stomping on his hands or kicking him in the head. From the point when Constable Smith first puts his hands on Mr. Baptiste to when he appears unconscious, Mr. Baptiste is resisting the officers’ attempts to gain control of him.

d. The aftermath

[136] The paramedics arrived at about 10 p.m. Mr. Smeenk testified that Mr. Baptiste was in an altered state of consciousness when he started his assessment. He was breathing but not responsive to verbal commands. His face was bluish in colour. He was given oxygen to raise his level to a normal one of 92 percent. It was at 79 percent. Other than this, Mr. Smeenk did not do anything that would constitute resuscitative efforts.

[137] One of his colleagues suctioned food out of Mr. Baptiste’s mouth but he did not know what it was. He described his memory on this point as “fuzzy”.

[138] He did a physical examination of Mr. Baptiste both at the scene and enroute to the hospital. He did not observe any signs of trauma – i.e., no bruising, abrasions, lacerations, or apparent broken bones. The examination included Mr. Baptiste’s neck and head area. On the trip to the hospital, Mr. Baptiste became more alert and was responsive to physical and verbal stimuli.

[139] In cross-examination, he said that, based on his assessment that night, he thought that Mr. Baptiste might have suffered a seizure. He described this as an “educated guess” and, in re-examination, agreed that the same symptoms would be consistent with a person who had choked to the point of unconsciousness.

[140] Mr. Baptiste stayed at the hospital until Sunday. His partner, Kayla, took photographs of his injuries when he was at the hospital and contacted a lawyer the following week. Mr. Baptiste commenced a lawsuit against all the officers and the Belleville Police Service on December 4, 2019, seeking damages of $550,000. This lawsuit has not been resolved. He testified that the lawsuit was not about money; rather he started it to hold the officers accountable for what they did to him.

[141] Constable Fyke returned to the Lowe’s later that night and spoke briefly to Mr. Easterbrooke. He told Constable Fyke that the store’s loss prevention officer would look into the alleged theft. A superior officer, Sgt. Code, contacted him that night and told him that the SIU had been notified. Constable Fyke went to the station. He later received an email from Sgt. Code stating that the SIU would not be invoking their mandate. He completed an occurrence report on November 16, 2019 and a supplementary occurrence report on May 7, 2020. He did the latter report, he said, in order to close out the investigation into the theft. On January 8, 2021, he learned that the SIU was conducting an investigation and he was designated a subject officer. He was charged on May 27, 2021. Constable Smith had no further involvement in the investigation after leaving the Taco Bell that evening. He, too, was charged in May 2021, along with Constable Dodds.

[142] Neither Mr. Baptiste, M.B., nor C.B. were charged with any criminal offence.

The law

[143] I will now turn to the law. I will first review the fundamental legal principles that apply in every criminal case. Next, I will discuss the legal issues that arise in this case. The main legal issues are the legal standard for an arrest and the application of s. 25 of the Criminal Code.

The fundamental principles

[144] Persons accused of a crime are presumed innocent. This presumption of innocence stays with the accused throughout the trial and is only displaced if I am satisfied that the Crown has proven the charge beyond a reasonable doubt.

[145] Proof beyond a reasonable doubt is a very high legal standard. It is much closer to absolute certainty than to the balance of probabilities. A reasonable doubt can arise from the presence or the absence of evidence. It is not a doubt based on sympathy or prejudice. Rather, it is based on reason and common sense. To find a person guilty, I must be sure that he committed the offence. If I am not sure, I must acquit.

[146] In this case, both Constable Fyke and Constable Smith testified. Whenever an accused testifies, I follow the three-step approach set out by the Supreme Court of Canada in R. v. W. (D.), [1991] 1 S.C.R. 742, at p. 758 :

1. If I believe the evidence of the accused, I must find him not guilty.
2. If I do not believe his evidence but I am left in reasonable doubt by it, I must find him not guilty.
3. Even if I am not left in doubt by his evidence, I must ask myself whether, on the basis of evidence which I do accept, I am convinced beyond a reasonable doubt of his guilt.

[147] If, after careful consideration of all the evidence, I am unable to decide whom to believe, I must acquit: R. v. H. (C.W.) (1991), 68 C.C.C. (3d) 146 (B.C.C.A).

[148] Where the defence advanced contains an objective component, as is the case with the use of reasonable force in the execution of a lawful arrest, the accused’s evidence will, in such instances, only result in an acquittal where that evidence establishes or leaves the trier of fact with a reasonable doubt about the objective component of the defence: R. v. Reid (2003), 65 O.R. (3d) 723 (Ont. C.A.), at para. 72.

[149] As a result, I approach the evidence as follows. Constables Fyke and Smith testified that they used reasonable force during the course of a lawful arrest. If I believe their testimony and that evidence amounts, as a matter of law, to reasonable force, then I must acquit them. If I do not believe their testimony but that evidence leaves me with a reasonable doubt about their guilt, I must acquit them. Finally, even if I completely reject their evidence, I must nonetheless assess whether, on the basis of the rest of the Crown’s case, I am satisfied beyond a reasonable doubt that they committed the offence.

[150] Both sides have raised issues about the credibility of the witnesses who testified and the reliability of their testimony. There are many factors that may be relevant in determining credibility. Some of those are whether the witness’s evidence is internally consistent, whether it is externally consistent with evidence from other witnesses or exhibits, whether the witness has a bias or motive to give evidence that is more favourable to one side or the other, whether inconsistencies in the evidence are about important or minor matters, what explanations are given for any inconsistencies, and whether the inconsistencies suggest that the witness is lying. I can accept some, all, or none of a witness’s testimony.

[151] Credibility relates to the honesty of the witness’s testimony. Reliability is about the accuracy of their evidence. A person may be credible, but their evidence lack reliability for various reasons, including the conditions under which the witness made the observations or experienced the event. In short, a credible witness may give unreliable evidence.

[152] The video footage from the exterior and interior surveillance cameras is important evidence. Counsel spent a considerable amount of time at trial questioning the witnesses about what was depicted on the video, stopping it at specific times to ask the witness to describe what was happening at that point, and suggesting to them that the video did or did not support what they claimed took place. The Court of Appeal has cautioned trial judges to avoid a frame-by-frame or “granular analysis” of video evidence, particularly in the case of a fluid, fast-moving event: R. v. Kanthavel, 2023 ONCA 155, at paras. 17-20.

The legal authority to arrest

[153] A police officer is authorized to arrest a person without a warrant under s. 495 of the Criminal Code. The relevant sections provide as follows:

495(1) A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; [or]

(b) a person whom he finds committing a criminal offence…

[154] Constable Fyke, because he was off duty at the time, is also entitled to rely on s. 494, which is commonly known as the “citizen’s arrest” power: R. v. Theriault, 2020 ONSC 3317, at para. 230. It provides the following:

494 (1) Any one may arrest without warrant

(a) a person whom he finds committing an indictable offence; or

(b) a person who, on reasonable grounds, he believes

(i) has committed a criminal offence, and

(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.

[155] A police officer must have reasonable and probable grounds to arrest a person. In R. v. Beaver, [2022] 3 S.C.R. 530, 50 Alta. L.R. (7th) 1, at para. 72, Jamal J. summarized the legal principles governing a warrantless arrest:

A warrantless arrest requires subjective and objective grounds to arrest. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint.

In assessing the subjective grounds for arrest, the question is whether the arresting officer honestly believed that the suspect committed the offence. Subjective grounds for arrest are often established through the police officer’s testimony. This requires the trial judge to evaluate the officer’s credibility, a finding that attracts particular deference on appeal.

The arresting officer’s subjective grounds for arrest must be justifiable from an objective viewpoint. This objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer.

Evidence based on the arresting officer’s training and experience should not be uncritically accepted, but neither should it be approached with “undue scepticism”. Although the analysis is conducted from the perspective of a reasonable person “standing in the shoes of the [arresting] officer”, deference is not necessarily owed to their view of the circumstances because of their training or experience. The arresting officer’s grounds for arrest must be more than a “hunc[h] or intuition”.

In evaluating the objective grounds to arrest, courts must recognize that, “[o]ften, the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete”. Courts must also remember that “[d]etermining whether sufficient grounds exist to justify an exercise of police powers is not a ‘scientific or metaphysical exercise’, but one that calls for the application of ‘[c]ommon sense, flexibility, and practical everyday experience”.

“Reasonable and probable grounds” is a higher standard than “reasonable suspicion”. Reasonable suspicion requires a reasonable possibility of crime, while reasonable and probable grounds requires a reasonable probability of crime. At the same time, police do not require a prima facie case for conviction before making an arrest. Nor do the police need to establish that the offence was committed on a balance of probabilities. Instead, the reasonable and probable grounds standard requires “a reasonable belief that an individual is connected to the offence”. A reasonable belief exists when “there is an objective basis for the belief which is based on compelling and credible information”. The police are also not required to undertake further investigation to seek exculpatory facts or to rule out possible innocent explanations for the events before making an arrest.

The police cannot rely on evidence discovered after the arrest to justify the subjective or objective grounds for arrest.

When a police officer orders another officer to make an arrest, the police officer who directed the arrest must have had reasonable and probable grounds. It is immaterial whether the officer who makes the arrest personally had reasonable and probable grounds. [Citations omitted. Emphasis in original.]

[156] The subjective part of the test often turns on the credibility of the arresting officer, but it need not be based solely on that – it can come from other officers and the surrounding circumstances: R. v. Fyfe, 2023 ONCA 715, at para. 53.

[157] How an officer specifically articulates the grounds can be relevant to credibility but is not determinative. Rather, I must decide whether, at the time of the arrest, the officer had an honest belief that the person committed or was about to commit an offence: Fyfe, at para. 54.

[158] Turning to the objective basis for the arrest, it is not only the officer’s articulated grounds that I consider. I focus on what a reasonable person standing in the shoes of the officer would have perceived. It is the totality of the circumstances that matter: Fyfe, at para. 62.

[159] Two officers involved in the arrest of an individual may have different grounds for that arrest. Further, one of the officers can be found to have conducted an unlawful arrest while the other had reasonable and probable grounds to arrest: Cluett v. The Queen, [1985] 2 S.C.R. 216.

[160] An officer can rely on the grounds given to him by another officer, but the arrest is only lawful if the officer who provided the information had reasonable and probable grounds. Put another way, the arresting officer’s grounds to arrest are only as good as the grounds of the officer who directed him to arrest the accused or told him that there were reasonable and probable grounds for that arrest: R. v. Simpson, 2016 ONSC 2754, at para. 32. [1]

[161] At common law, a private citizen had both the right and a positive obligation to perform an arrest if a serious crime was being committed or had been committed: R. v. Asante-Mensah, [2003] 2 S.C.R. 3, at para. 37. A person acting under s. 494 of the Criminal Code must have reasonable grounds to believe that the person to be arrested is apparently in the process of committing an indictable offence in his presence: R. v. Abel & Corbett, 2008 BCCA 54, 291 D.L.R. (4th) 110, at para. 52. The person making the arrest need not have personal knowledge of all the factors that lead him to conclude that someone is in the process of committing an offence. What is necessary is that the offence must be apparent to a reasonable person in the same circumstances: Abel, at para. 54. A person may rely on reasonable inferences drawn from what he has seen transpire in his presence: R. v. McCowan, 2011 ABPC 79, 509 A.R. 202, at para. 54.

[162] An arrest consists of “the actual seizure or touching of a person’s body with a view to his detention. The mere pronouncing of words of arrest is not an arrest, unless the person sought to be arrested submits to the process and goes with the arresting officer”: R. v. Whitfield, [1970] S.C.R. 46, at p. 48. An arrest can be affected with physical force alone even if no words are spoken. It can occur when, by words or conduct, the officer makes it clear that he will, if necessary, use force: Asante-Mensah, at para. 43.

The use of force

[163] Section 25(1) of the Criminal Code states as follows:

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

[164] Di Luca J. explained the purpose of this provision in Theriault, at para. 229:

Section 25 of the Criminal Code provides that everyone who is authorized by law to effect an arrest, either as a private citizen or as a police officer, is, if acting on reasonable grounds, justified in undertaking the lawful arrest using as much force as is reasonably required in the circumstances. This section provides a defence for the use of force during a lawful arrest. Again, where an air of reality to the defence exists, the Crown must disprove the applicability of the defence beyond a reasonable doubt.

[165] Section 25 only applies if it is a lawful arrest; if it is not, there is no justification for the use of any force. It does not apply if the officer “generally acts reasonably and in good faith. The defence must be related to the specific conduct involved and the legality of the action the officer claims is ‘authorized by law’ within the meaning of s. 25(1)”: Hudson v. Brantford Police Services Board (2001), 204 D.L.R. (4th) 645 (Ont. C.A.), at para. 32.

[166] It is important to note that the application of s. 25(1) is not contingent on the seriousness of the alleged offence. If the offence is an indictable one, which the alleged theft in this case was, the police are authorized to arrest the person: Collins v. Brantford Police Services Board (2001), 204 D.L.R. (4th) 660 (Ont. C.A.), at para. 13.

[167] The protection afforded by s. 25(1) is available if an officer has an honest but mistaken belief in facts which, if true, would have constituted reasonable and probable grounds: R. v. Ing, 2013 ONCJ 46, at para. 24. It is not if the officer’s belief is based on a mistake of law: Hudson, at para. 24.

[168] The force must be reasonable, proportionate, and necessary: R. v. Nasogaluak, [2010] 2 S.C.R. 206. This includes not only the use of force to make an arrest but also to continue it: Asante-Mensah, at para. 52.

[169] This requires an assessment of the reasonableness of the forcible arrest in all the circumstances: Asante-Mensah, at paras. 74-76. I must take into account that police officers can face volatile situations. Lebel J. stated the following in Nasogaluak, at para. 35:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

[170] In reviewing the conduct of the police, I should not become a “Monday morning quarterback”: R. v. Cornell, [2010] 2 S.C.R. 142, at para. 24. Further, “[a] certain amount of latitude is permitted to police officers who are under a duty to act and must often react in difficult and exigent circumstances”: Asante-Mensah, at para. 73.

[171] Police use of force training and policies can be relevant but are not determinative of the reasonableness of the force used: R. v. Tranter, 2022 ONCJ 51, at para. 63.

[172] If the police have a reasonable suspicion that a person has committed an offence, they can conduct an investigative detention. It must be done in a reasonable manner and “will usually justify only a brief detention following which the officer will either have to release the individual or, if reasonable and probable grounds exist, arrest the individual”: R. v. Suberu, 2007 ONCA 60, 85 O.R. (3d) 127, at para. 40.

[173] A person is entitled to resist an unlawful arrest even where the unlawful arrest is attempted by a police officer provided the force used was not intended to cause death or grievous bodily harm and was no more than necessary to defend himself: R. v. Plummer (2006), 83 O.R. (3d) 528 (C.A.), at paras. 48-49.

Assault causing bodily harm

[174] In order to find Constable Fyke and Constable Smith guilty of assault causing bodily harm, the Crown must prove each of the following essential elements beyond a reasonable doubt:

i. they intentionally applied force to Mr. Baptiste; ii. Mr. Baptiste did not consent to the force that they applied; iii. they knew that Mr. Baptiste did not consent to the force that was intentionally applied; and iv. the force they applied caused Mr. Baptiste bodily harm.

[175] Bodily harm is any hurt or injury that interferes with the person’s 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 that the accused applied and contribute significantly to the bodily harm which was suffered.

[176] The Crown does not have to prove that Constables Fyke or Smith meant to cause bodily harm, but does have to prove that a reasonable person, in the circumstances, would realize that the force applied would put Mr. Baptiste at the risk of suffering some kind of bodily harm, although not necessarily serious bodily harm or the precise kind of harm that the person suffered.

Party liability

[177] In this case, the Crown submits that Constables Fyke and Smith are jointly liable as co-principals or because they were engaged in a common unlawful purpose.

[178] Section 21(1) (a) of the Criminal Code states the following: “Every one is a party to an offence who … actually commits it.” Subsection 2 provides as follows:

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

[179] There is joint or co-principal liability whenever two or more individuals come together with an intention to commit an offence, are present during the commission of the offence, and contribute to its commission: R. v. Strathdee, [2021] 3 S.C.R. 1, 463 D.L.R. (4th) 189, at para. 4. This means that “[e]ach person who is part of the assaulting group becomes responsible for any act of the group since the ‘blow of one is the blow of all’”: R. v. Strathdee, 2020 ABCA 443, 21 Alta. L.R. (7th) 72, at para. 61.

[180] Liability under s. 21(2) is different. The Court of Appeal stated the following in R. v. Gong, 2023 ONCA 230, 425 C.C.C. (3d) 122, at para. 31:

Section 21(2) expands party liability for a person who forms an intention together with another to carry out an unlawful purpose, to liability for another offence that is perpetrated by the other person while carrying out the planned unlawful purpose, where the first person knew or should have known that the other person would likely commit the second offence in pursuing the common purpose.

Analysis

[181] I now turn to my assessment of the evidence and whether the Crown has proven the charges beyond a reasonable doubt.

[182] This analysis requires me to address several factual and legal issues.

Grounds for arrest for theft

[183] First, did Constable Fyke have reasonable and probable grounds to arrest Mr. Baptiste for theft of the drink?

[184] The Crown contends that he had neither subjective nor objective grounds. The defence submits that he had both.

[185] The subjective ground turns on the honesty of Constable Fyke’s belief that Mr. Baptiste was a party to the theft of the drink.

[186] I find that he did have the necessary subjective grounds. The staff at Lowe’s conveyed to him their belief that M.B., C.B., and Mr. Baptiste were together and a theft of a drink had occurred. When Constable Fyke observed them together, the drink was gone. They stayed together throughout the period he watched them. Although he was told that the person in the white hat had taken the drink, he could, and did, honestly conclude that they may have been acting in concert throughout the time they were in the store. This belief would have been fortified by their atypical departure from it.

[187] Constable Fyke’s testimony about what happened at the Lowe’s was credible. Ms. Muston’s evidence was supportive of his testimony on a material point – C.B. leaving from a different exit, getting in a truck, and leaving quickly. Mr. Baptiste was unsure about how the truck got to the main exit and who drove it there. This was not believable.

[188] However, I find that Constable Fyke did not have objective grounds to believe that Mr. Baptiste was a party to the theft of the drink. At best, he could infer, from what he was told by the employees, that Mr. Baptiste was present when C.B. took the drink. Nobody told him that Mr. Baptiste participated in any way in the taking, consuming, or discarding of the drink. When he observed Mr. Baptiste, he did not see him with a drink. Although Mr. Baptiste was in the company of M.B. and C.B., he had a shopping cart with items in it indicating that he had a legitimate purpose for being in the store. During his testimony, Constable Fyke could not articulate what act or omission led him to believe that Mr. Baptiste was a party to the theft of the drink by C.B. He knew that Mr. Baptiste was not a principal and he could not say what Mr. Baptiste did to aid or abet the theft. I find that he concluded that Mr. Baptiste was a party because he was likely present when C.B. took the drink and he knew that C.B. would not pay for it. That does not make Mr. Baptiste a party to the theft.

[189] Moreover, there was nothing that would permit him to reasonably conclude that all three participated in the theft of the drink although the precise roles each performed were unknown. This was not the type of dynamic situation where he needed to act or make a decision quickly based on incomplete information. Indeed, he did not – he returned to the customer service desk and reported that he had seen some suspicious activity but no theft by Mr. Baptiste, M.B., or C.B.

[190] What he later observed in the parking lot changed his mind, but that was not about the theft of the drink. I find that he had a reasonable suspicion, at that point, that the three of them had just committed a “distraction theft” and that further investigation was required. This may have increased his subjective belief that Mr. Baptiste and M.B. were somehow involved in the theft of the drink, but it did not supply the necessary objective grounds.

[191] Based on the totality of the circumstances, I find that Constable Fyke did not have a reasonable belief that Mr. Baptiste was a party to the theft of the drink by C.B.

[192] It follows from this finding that Constable Smith did not have, as a matter of law, reasonable and probable grounds to arrest Mr. Baptiste as a party to the theft of the drink. Constable Smith acknowledged in his testimony that this was the sole basis for the arrest and he made the decision to do so before he entered the Taco Bell. It was therefore an unlawful arrest and he cannot rely on s. 25(1) of the Criminal Code to justify the use of force against Mr. Baptiste.

Grounds for arrest for assaulting a peace officer or resisting arrest

[193] Constable Fyke is in a different legal position. I find that he had reasonable and probable grounds to arrest Mr. Baptiste for assaulting a peace officer or resisting arrest under s. 270(1) of the Criminal Code. He was not privy to any of the conversation that took place in the Taco Bell but, by the time he had returned to his vehicle, M.B. and C.B. had been taken out of the Taco Bell, and only Constables Smith and McAuley were left dealing with Mr. Baptiste. I accept his testimony that once he saw Constable Smith with his hands on Mr. Baptiste, he believed Constable Smith was arresting him. When he saw the struggle develop, he could reasonably conclude that Mr. Baptiste was either assaulting Constable Smith or resisting arrest. I also find that, upon entering the Taco Bell, he heard Constable McAuley telling Mr. Baptiste to stop resisting. Even without hearing that, it would have been readily apparent that Mr. Baptiste was actively resisting Constable Smith’s efforts to gain physical control of him.

[194] The Crown argued that Constable Fyke did not articulate that these were his grounds for arresting Mr. Baptiste at the time nor did he expressly say so in his testimony at trial, and therefore he cannot rely on those grounds to justify his arrest of Mr. Baptiste. However, as the recent decision in Fyfe makes clear, what matters is not what the officer specifically said but his subjective perception at that moment in time and whether there was some objective justification or verification of the officer’s belief. Here there was. Constable Fyke had the necessary grounds under both s. 494 and s. 495 of the Criminal Code.

[195] Assaulting a peace officer and resisting arrest are indictable offences. This means that s. 25 applies and the Crown must prove beyond a reasonable doubt that the force Constable Fyke used was excessive.

Excessive force

[196] The determination of this issue depends on my assessment of the credibility of Mr. Baptiste and Constable Fyke, the reliability of their testimony, and the video footage.

[197] I have serious concerns about Mr. Baptiste’s evidence. This was a traumatic experience for him, and I would not expect a witness in his position to have a detailed recollection of what exactly happened. But he testified that the police did certain things that they clearly did not – there was no sharpshooter move as he described, nor did the police stomp on his hands or kick him in the head. These were, I find, deliberate embellishments. Mr. Baptiste was untruthful when he swore, in the affidavit filed in support of the complaint to the OIPRD, that he did not resist the arrest. He clearly did.

[198] At the same time, I accept his testimony that he was determined not to leave the Taco Bell in the custody of the police and that he was not going down without a fight. This was proven, not just by his words, but also in how he reacted once Constable Smith put his hands on him and the intensity of the struggle with the police officers. He believed that he was being unlawfully arrested for the theft of a drink, and he was. He was entitled to resist his arrest.

[199] Crown counsel effectively cross-examined Constable Fyke. Based on that cross-examination and my review of the video footage, it is likely that Constable Fyke had his arm across Mr. Baptiste’s neck at some point and that by grabbing his jacket as he did that may have resulted in pressure on Mr. Baptiste’s neck. What I cannot tell is how long this lasted and what level of pressure was exerted. It would have been several seconds, but I cannot reject Constable Fyke’s testimony that, at least for part of the time, his arm was around Mr. Baptiste’s head, not his neck. I also find that Constable Fyke did not intentionally put Mr. Baptiste in what is commonly known as a chokehold for the purpose of subduing him. Rather, in that confined space, in a physically awkward position, he was focused on maintaining his stability and securing Mr. Baptiste’s arm so he could be handcuffed. I accept his testimony in this regard.

[200] In assessing the reasonableness of the force, I also take into account that Mr. Baptiste is a large and evidently strong man. Even with several officers attempting to gain physical control of him, he was able to successfully resist their efforts. It was a heated confrontation that unfolded very quickly. The result was unpredictable. The environment did not help, with the chairs and tables not only being obstacles but also potential weapons. In this type of perilous situation, gaining control of a person in order to handcuff him is reasonable. The Crown has not proven beyond a reasonable doubt that the methods employed by Constable Fyke to achieve this goal on November 15, 2019 were unnecessary, unreasonable, or disproportionate.

[201] In view of my conclusion that Constable Fyke had reasonable and probable grounds to arrest Mr. Baptiste and that s. 25 affords him a defence to his use of force, Constable Smith cannot be held legally responsible as a co-principal or on the basis that both he and Constable Fyke were engaged in a common unlawful purpose.

Assault causing bodily harm

[202] Constable Smith intentionally applied force to Mr. Baptiste without his consent and therefore committed an assault. But the Crown must also prove beyond a reasonable doubt that the force applied by Constable Smith caused bodily harm to Mr. Baptiste.

[203] The injuries which the Crown alleges Mr. Baptiste suffered – the fracture of his right pinky finger, the rib fracture, and the loss of consciousness – constitute bodily harm as that term is defined under the Criminal Code.

[204] I have rejected Mr. Baptiste’s claim that an officer stomping on his hand caused the fracture to his finger. It was a fresh fracture, meaning that it was recent and could have occurred within hours of the X-ray. It likely happened during the arrest, but I cannot tell from the video how it happened. It could have occurred when Mr. Baptiste was grounded or when efforts were being made to handcuff his right wrist. For the most part, Constable Smith was on Mr. Baptiste’s left side and he was not involved in trying to handcuff his right wrist. I find that the Crown has failed to prove that any force applied by Constable Smith significantly contributed to the finger fracture.

[205] The age of the rib fracture could not be determined. In the absence of any further explanation about why it could not be determined, I infer that it was not a recent fracture like the finger. Mr. Smeenk did a physical examination of Mr. Baptiste, including his upper torso, and did not detect any signs of trauma. There was no evidence of any bruising, swelling, or complaint of pain which would indicate a recent rib fracture. In the circumstances, I cannot conclude, with any degree of certainty, that Constable Smith caused the rib fracture by kneeing Mr. Baptiste as he did. I do not know if the officers’ resuscitative efforts, including the Heimlich maneuvers, could cause a fracture; there was no evidence about the degree of force that it is necessary to cause a hairline fracture. If these actions did have anything to do with this injury, I find that Constable Smith did not have the necessary intent to cause that harm.

[206] This leaves Mr. Baptiste’s loss of consciousness. The Crown’s theory was that Constable Fyke caused this through the alleged chokehold. His actions could have contributed to Mr. Baptiste’s condition. I can conclude, with a reasonable degree of certainty, that Mr. Baptiste experienced respiratory distress during the struggle with the police that resulted in the altered state of consciousness described by Mr. Smeenk and observed by the officers. What I am not sure about is the cause or mechanism of this distress. There was credible evidence that Mr. Baptiste could have choked on food. He was also in an intense physical struggle that ended with him on the ground being held in a prone position with weight on his back. This could have had a substantial effect on his ability to breathe. Or he possibly suffered a seizure. I am not restricted to medical evidence in determining the issue of causation. Based on the evidence of the witnesses, there were multiple potential mechanisms for the respiratory distress and consequent loss of consciousness.

[207] I find that the Crown has not proven beyond a reasonable doubt that Constable Smith, in committing the assault, caused bodily harm to Mr. Baptiste.

Disposition

[208] For these reasons, I find the accused Paul Fyke not guilty. I find the accused Jeffrey Smith not guilty of assault causing bodily harm, but guilty of the included offence of assault contrary to s. 266 of the Criminal Code.

Hurley J.

Released: 2024-01-08

[1] See also R. v. Stevenson, 2014 ONCA 842, 317 C.C.C. (3d) 385, at paras. 50-51; R. v. Amare, 2014 ONSC 4119, at para. 83.