R. v. Al-Turki, 2012 ONCJ 125

Citation: R. v. Al-Turki , 2012 ONCJ 125 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — AMIR AL-TURKI Before Justice Finnestad Reasons for Judgment released on January 10, 2012 P. Kelly ...................................................................................................................... for the Crown C. Granek ........................................................................................................... for Amir Al-Turki FINNESTAD J.: [ 1 ] Amir Al-Turki is charged with two counts of assault and one of assault resisting arrest.

The first two counts specify that the person assaulted is alleged to be a special constable for the City of Toronto engaged in the execution of his duty. The charges arise out of an incident occurring at a Toronto courthouse. [ 2 ] Victor Connell is employed by the Toronto Police Services as a special constable. On October 23, 2009 he was working as a court officer at the Family Court at 47 Sheppard Avenue East in Toronto. He was stationed on the first floor, where the administration offices are located. [ 3 ] Officer Connell testified as follows. He saw Mr.

Al-Turki enter through the security checkpoint and go to the clerk at counter #5. After a time Mr. Al-Turki began to get loud, which caused Officer Connell to focus on him. He described Mr. Al-Turki’s mannerisms and behaviour as aggressive and loud. It appeared that he was not able to obtain satisfaction of his requests for information or documentation from the clerk. She advised him that if he wanted a certain document he would have to get it from his lawyer. She then closed the file she had in her hand and began to walk away. Officer Connell testified that he heard Mr.

Al-Turki saying loudly that he was not leaving until he obtained the information he sought. C.O. Connell agreed that Mr. Al-Turki did not swear or threaten, bang the counter or try to strike the clerk. However, as she took the file and backed away from the counter he got loud and was becoming louder. [ 4 ] Officer Connell called for his supervisor, Court Officer Morgan Neering, to come and assist. C.O. Connell testified that he cautioned Mr. Al-Turki three times that he had to leave, and that there were others who needed to use the clerk’s services. C.O.

Connell testified that he has asked others to leave the premises before, and believes that to be part of his duties as a court officer. After each caution Mr. Al-Turki repeated that he was not leaving. The clerk kept repeating that she was giving him nothing else, and that he had to leave. [ 5 ] C.O. Connell’s evidence to this point is of repeated directions, as part of his duty to maintain order in the courthouse, to Mr. Al-Turki to leave the building and repeated refusals to do so in response. It was pointed out to C.O. Connell during cross -examination that his notes did not mention that Mr.

Al-Turki was told more than once to leave the premises, nor that he actually refused. However, the transcript of his cross-examination on this incident before Justice Zuker at the family court a scant seven months after the incident was consistent with his evidence on this point. Additionally, I find that the evidence of P.C. Neering confirms that more than one request or demand to leave the premises was issued, understood and refused [ 6 ] Officer Connell testified that Mr.

Al-Turki’s English was not very good but it was clear from his responses that he understood that the officers were telling him that he had to leave and his refusals were equally clear. When C.O. Connell placed a hand on Mr. Al- Turki’s shoulder to escort him out, the defendant shook the officer’s hand away . C.O. Connell advised him that he was being arrested for refusing to leave the premises. C.O. Connell testified that he grabbed Mr. Al-Turki’s arm with both hands and a struggle ensued. C.O. Connell agreed in cross-examination that within seconds they were on the floor. C.O.

Neering was involved in the struggle on the floor. C,O. Christopher Dicks also became involved and the three of them ultimately gained physical control over the defendant. He was cuffed to the rear. [ 7 ] C.O. Connell was somewhat contradictory in his cross-examination, saying at one point that he arrested Mr. Al-Turki for assault for pushing his hand away. Later he said that Mr. Al-Turki was arrested initially for refusing to leave the premises, and then for assault resisting arrest. His notes show an arrest for both offences at that time.

In re-examination he confirmed that the original arrest was for the trespass offence. [ 8 ] In C.O. Connell’s evidence in chief he testified that he put a hand on Mr. Al-Tukri’s shoulder to escort him out. In cross-

examination he agreed with a suggestion that he and C.O. Neering each had a hand on one of Mr. Al-Turki’s shoulders to escort him out. [ 9 ] C.O. Connell was not an enormously reliable witness and I find it would be unsafe to rely exclusively on his evidence with respect to contentious matters. However, I find that he was corroborated in many material particulars by the evidence of C.O. Neering, who did not have similar challenges to his credibility or reliability. Where his evidence differs from that of C.O. Neering, I prefer that of officer Neering. C.O. Neering corroborated C.O.

Connell’s original evidence that it was Connell who placed one hand on Mr. Al- Turki’s shoulder to escort him out of the building. [ 10 ] An audience had gathered during the scuffle and the officers took him to the third floor holding cells via the elevator. C.O. Connell said that there was no incident in the elevator on the way up; that Mr. Al-Turki was well-behaved. However , it was not he who had physical control of the defendant, but rather C.O.’s Neering and Dicks. I prefer their evidence with respect to what occurred after Mr. Al-Turki was handcuffed. [ 11 ] C.O.

Neering testified that on October 23, 2009 he was Acting Supervisor of Court Officers at the 47 Sheppard Avenue East courthouse. He received a radio call that a male was yelling at one of the clerks, and went downstairs from the third floor to investigate. He had first briefly observed Mr. Al-Turki for about a minute on the CCTV monitor, which had video but no audio. Mr. Al-Turki was turning back and forth between the clerk and C.O.

Connell, and repeatedly raising his hands above his head in a waving motion. [ 12 ] As he reached the first floor Supervisor Neering could hear someone yelling about 60 feet before he got to Mr. Al-Turki. C.O. Connell was speaking to the defendant, who was yelling. C.O. Connell advised his supervisor, while standing next to Mr. Al- Turki, that the clerks were finished helping the defendant, and that he had requested him to leave. The clerk confirmed that nothing more could be done for Mr. Al-Turki. [ 13 ] Acting Supervisor Neering testified that in his presence C.O. Connell advised Mr.

Al-Turki that if he didn’t leave he could be arrested for trespass. The defendant said that he wasn’t leaving. C.O. Neering testified that he then spoke with the defendant and told him that if he didn’t leave he would be arrested for trespass. He said that Mr. Al-Turki got upset and yelled that he wasn’t leaving and that they should just arrest him. He said that at that point C.O. Connell placed one hand on Mr. Al-Turki’s shoulder and pointed at the door and asked him to leave again. Mr. Al-Turki then pushed his hand away. [ 14 ] C.O. Neering testified that after C.O.

Connell’s hand was pushed away he tried to take control of Mr. Al-Turki’s upper body to assist in his arrest. He said that they were arresting him for assault and trespassing and he told Mr. Al- Turki this at the time. Mr. Al-Turki pushed C.O. Neering back with two hands to his upper body, knocking him back a few steps. Both officers tried to take control of him and a scuffle ensued, with all three going to the ground. The defendant was struggling while on the floor until he was cuffed. Like C.O. Connell, C.O. Neering described everything as happening within seconds. [ 15 ] C.O. Neering described Mr.

Al-Turki’s behaviour afterwards as being more active than C.O. Connell had described. He said that the defendant was pushing and pulling in an attempt to break free from the grasp he and assisting C.O. Dicks had. He was put face first against the elevator wall because he was attempting to push off with his shoulder and roll off. He was described as still kicking out with his legs. C.O. Dicks corroborated this evidence which contradicts that of C.O. Connell on this point. For reasons given earlier I accept the evidence of Neering and Dicks on this point. [ 16 ] C.O.

Christopher Dicks testified that he was a court officer working at Family Court on the day in question. He was advised that officers were attempting to arrest a male on the first floor and that his assistance was required. When he arrived there Mr. Al-Turki was screaming. Officers Connell and Neering and another officer, Chan, had the defendant on his stomach and were trying to cuff him. He recalled hearing the officers urging the defendant to stop resisting and seeing him refusing to put his hands behind his back and trying to get up. [ 17 ] C.O.

Dicks also described the growing crowd of spectators , and the need to get out of the public area as soon as possible. He testified that on the way to the elevator the defendant kept stopping, planting his feet and turning the other way. He was resisting their lead toward the elevator. Connell, Neering, Dicks and the defendant were in the elevator. He continued to struggle there and Dicks and Neering turned him to face the elevator wall and pressed him there. He was upset and teary. C.O. Dicks confirmed his resistance to the search and Mr.

Al-Turki eventually being placed on the floor for purposes of that search. [ 18 ] On the evidence, I am prepared to make the following findings of fact. [ 19 ] Mr. Al-Turki was advised by the clerk that there was nothing more they could or would do for him at the clerk’s counter. I accept that he was told more than once by C.O. Connell and A/S Neering that he had to leave, and that he refused to leave until he got what he came for. This is consistent with the amount of time that the discussions went on, the evidence of both officers, and with the earlier testimony of C.O.

Connell in family court some seven months after the incident, and which was put to him in cross- examination. This is reinforced by Mr. Al-Turki telling C.O. Neering to go ahead and arrest him because he wasn’t leaving. [ 20 ] I further find that the next action was C.O. Connell putting his hand on one of Mr. Al-Turki’s shoulders and directing him to leave . Both Connell, in his examination-in-chief, and Neering, throughout his evidence, say this. Where Connell differed in cross- examination and agreed with a suggestion that both he and Neering had a hand on Mr. Al-Turki’s shoulder, I do not accept his evidence.

This was specifically contradicted by C.O. Neering in his evidence in chief and denied when put to him in cross-examination, and had been accepted by C.O. Connell as the result of a suggestion put in cross-examination. I found C.O. Connell to be easily confused by suggestions and, as I say, I do not rely on his uncorroborated evidence on contentious issues. I accept it as it was corroborated by C.O. Neering. [ 21 ] When C.O. Connell put a hand on his shoulder to insist on his departure, Mr. Al Turki pushed the officer’s hand away.

This was physical confirmation of his previous verbal refusal to leave the premises when directed. He was advised that he was being arrested. The evidence would support the act of failure to leave premises when directed and suggest that an arrest under the Trespass to Property Act was appropriate in the circumstances. It would not support an arrest for assault resisting arrest at that point, as the

precipitating arrest had not yet occurred. It may support an arrest for assault as Mr. Al-Turki applied force to C.O. Connell to remove his hand. [ 22 ] C.O. Connell testified that the initial arrest was for a breach of the Trespass to Property Act and it was followed shortly by an arrest for assault. C.O. Neering testified that he advised Mr. Al-Turki after the push that he was being arrested for assault and for trespass. In any event, I am satisfied that the throwing off of C.O. Connell’s arm was part of a refusal to leave premises when directed. It was also technically an assault.

He was immediately advised that he was under arrest, whether initially simply for trespass, or for both assault and trespass. The two-handed push to C.O. Neering came after the arrest and I am satisfied that it was part of an attempt to resist his own arrest. [ 23 ] A number of legal arguments were raised. I commend both counsel for the obvious amount of thought, research and time that went into the excellent and thorough materials counsel provided to me, in both written and electronic form. I have dealt with them as follows.

The Authority of Court Officers to enforce the Trespass to Property Act [ 24 ] The Trespass to Property Act provides as follows: 2.

(1) Every person who is not acting under a right or authority conferred by law and who, (

b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier, is guilty of an offence and on conviction is liable to a fine of not more than $2,000. R.S.O. 1990, c. T.21, s. 2 (1) . [ 25 ] I am satisfied that the occupier of the premises which is the Ontario Court of Justice at 47 Sheppard Avenue East in Toronto is the Province of Ontario. I am further satisfied that the responsibility for court security is statutorily delegated from that occupier to the Toronto Police Service, pursuant to s. 137 of the Police Services Act , R.S.O. 1990, which provides in

Part X as follows:

PART X COURT SECURITY Court security Municipalities with police forces 137.

(1) A board that is responsible for providing police services for one or more municipalities has the following responsibilities, with respect to premises where court proceedings are conducted: 1. Ensuring the security of judges and of persons taking

part in or attending proceedings. 2. During the hours when judges and members of the public are normally present, ensuring the security of the premises. 3. Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings. 4. Determining appropriate levels of security for the purposes of paragraphs 1, 2 and 3. R.S.O. 1990, c. P.15, s. 137 (1) ; 1997, c. 8, s. 41. [ 26 ] My review of the evidence has disclosed that both C.O.

Connell and Acting Supervisor Neering testified that they were employed by the Toronto Police Services as a Special Constables and that their duties placed them at the Family Courthouse at 47 Sheppard. I find that both were persons authorized by the occupier to enforce the Trespass to Property Act at that location. This included ensuring the security of persons attending there, the security of the premises and determining appropriate levels of security necessary for so doing. [ 27 ] Section 9(1) of the Trespass to Property Act provides that 9.

(1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of

section 2. [ 28 ] Therefore, C.O.’s Connell and Neering were authorized to act as agents of the occupier of the premises to enforce the Trespass to Property Act , including making an arrest without warrant of any person who failed to leave the premises when directed, contrary to s. 2, supra . Whether the COs were acting within their duties under the Trespass to Property Act

[ 29 ] The evidence which I have accepted is of repeated directions to leave the premises by those authorized to make them. I am satisfied that they had a basis for making those demands. I accept that Mr. Al-Turki was neither verbally nor physically abusive. However, the evidence was that the clerk and her supervisor had repeatedly told Mr. Al-Turki that they could not and would not help him further. He may have been dissatisfied with that result but it was not an acceptable reaction to stand there and yell.

There may have been other options available to him, such as to speak to a private lawyer or to go to Duty Counsel for further assistance. I do not accept that it was the obligation of the Court Officers to provide Mr. Al-Turki with legal or practical advice of other remedies he might take. He was told by the clerk that his matters at that counter were concluded and that he should leave. When he refused to leave that area and created a disturbance by loud behaviour, the officers had reason to direct him to leave the building. C.O. Neering testified that he could hear the yelling from 60 feet away.

It is not only threatening and abusive behaviour that disrupts the proper running of a courthouse. Courtrooms require a quiet and dignified air in order properly to deal with cases, and to give a fair hearing to those who appear in them. Ongoing noise and disruption in the hallways are not conducive to that. Further the actions of the clerk in backing away from Mr. Al- Turki as he continued to yell suggest that, even if not intended, his actions had an intimidating effect on those working at the courthouse. Further, the evidence was that there were others waiting in line to review their own files and Mr.

Al-Turki was interfering with this by refusing to leave the counter. [ 30 ] I am satisfied that the officers were acting reasonably within the course of their duties when they directed Mr. Al-Turki to leave the building. [ 31 ] I am of the view that once Mr. Al-Turki had made repeated refusals of a direction to leave the premises he was arrestable under the Trespass to Property Act . The courts have found that it is preferable that persons enforcing that Act should use all means short of arrest before actually arresting a person.

I find that the repeated verbal directions, followed by a hand on the shoulder and a physical direction to leave were employed before resort was had to the powers of arrest. Mr. Al-Turki’s physical response to those efforts in shoving the officer’s hand off of his shoulder made clear that those efforts were going to prove unsuccessful. Whether Excessive Force was Used in the Arrest [ 32 ] As I accept the evidence that Mr. Al-Turki refused repeatedly to leave the premises and responded with physical actions when a hand was put on his shoulder, I do not find that the force used was excessive.

Verbal persuasion was tried unsuccessfully before officers moved to putting a hand on the defendant. The evidence of CO Neering was that after Mr. Al-Turki pushed off C.O. Connell’s hand, he put his own hands on Mr. Al-Turki and was pushed away with two hands. It was after this that the defendant was taken to the ground where he continued to struggle. His physical reaction demanded a physical response. I do not find that it was disproportionate. Whether the Offence of Assault on C.O. Connell Has Been Made Out [ 33 ] I am satisfied that C.O.

Connell was justified in exercising his authority under the Trespass to Property Act when he placed a hand on Mr. Al-Turki’s shoulder to physically direct him out of the building. This was an effort short of arrest, and one undertaken after verbal directions had proved unsuccessful. It was no more force that was necessary. Section 41(2) of the Criminal Code provides that:

(2) A trespasser who resists an attempt by a person who is in peaceable possession of...real property, or a person lawfully...acting under his authority to...remove him, shall be deemed to commit an assault without justification or provocation. [ 34 ] I am thus satisfied beyond a reasonable doubt that the actions of Mr. Al-Tukri in shoving C.O. Connell’s hand off of him constituted an assault. There is a finding of guilt on Count #1. Whether assault and assault with intent to resist arrest have been made out relating to C.O. Neering [ 35 ] I accept beyond a reasonable doubt C.O.

Neering’s uncontradicted evidence that Mr. Al-Turki shoved him to the chest with both hands, causing him to fall back a couple steps, although not to fall down. This is clearly an assault. The evidence of C.O. Neering was that this occurred after Mr. Al-Turki was advised that he was under arrest and while C.O. Neering was attempting to assist in that arrest. There is a finding of guilt on Count #2. [ 36 ] Mr.

Al-Turki’s scuffle with the officers on the floor after he had been advised of his arrest, and during which it took considerable time and three officers to subdue him, constituted an application of force by him for the specific purpose of resisting his arrest. I am satisfied of this beyond a reasonable doubt and there is a finding of guilt on Count #3. [ 37 ] While I am satisfied beyond a reasonable doubt that Counts 2 and 3 have been made out, Count 2 will be stayed as arising out of the same transaction. Both occurred subsequent to Mr.

Al-Turki being advised of his arrest, and involved an ongoing assault on the same officer for the same purpose. Released: January 10, 2012 Signed: “Justice Finnestad”