R. v. Brill, 2019 BCPC 315

Citation: R. v. Brill 2019 BCPC 315 Date: 20191219 File No: 245750 KB - 6 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. RAYMOND EDWARD BRILL RULING ON

SECTION 7 CHARTER OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: M. Myher Counsel for the Defendant: G. Garih Place of Hearing: Vancouver , B.C. Date of Hearing: December 18, 2019 Date of Judgment: December 19, 2019 INTRODUCTION

[ 1 ] Mr. Brill alleges the police violated his s. 7 Charter of Rights by using excessive force and it is on this basis that he applies for a Judicial Stay of Proceedings. BACKGROUND [ 2 ] On August 12, 2018, at approximately 11:30 pm., Constables Martin and Sahota responded to a noise complaint at Willow Park. When the officers arrived they entered the park and they encountered Mr. Brill. While dealing with Mr. Brill they determined that he was breaching his probation. Mr. Brill was arrested and during the arrest he suffered a laceration to his forehead. [ 3 ] The officers testified that Mr.

Brill resisted arrest and he was taken to the ground at which point he hit his head. [ 4 ] Mr. Brill testified that while handcuffed an officer approached him from behind and shoved him to the ground at which point he lost consciousness. When he regained consciousness his forehead was bleeding and he needed medical treatment. THE EVIDENCE Constable Martin [ 5 ] Constable Martin and Constable Sahota were dispatched to Willow Park. When they arrived they parked on the east side and walked into the park. As they walked, Constable Martin could see two people sitting on a bench located on the west side of the park.

As he approached he could hear the two talking and yelling at each other. [ 6 ] On reaching the two people Constable Martin told them that they were being detained for causing a disturbance. He then obtained their names and date of births. One of the persons identified herself by name and she gave a date of birth indicating that she was 15 years old. The other person was Mr. Brill who was 56 years old. [ 7 ] After obtaining their names and birth dates, Constable Martin went to his police unit and he queried them on the police database. Information received informed Constable Martin that Mr.

Brill had a probation order prohibiting him from having contact with the female. Constable Martin testified that he did not know why the no contact order was in place. Specifically, he did not know if the female had been a victim of an offence wherein Mr. Brill was the offender or if the order was because they had committed an offence together. [ 8 ] Believing that Mr. Brill was breaching his probation, Constable Martin left his police car, entered the park and approached Mr. Brill. Constable Martin told Mr.

Brill that he was under arrest for breaching his probation and as he did this he reached forward and took hold of Mr. Brill’s arm and started bringing it behind him. Mr. Brill pulled away from Constable Martin’s grasp and he turned toward Constable Martin. He clenched both fists and said “fucking goof.” It was Constable Martin’s experience that the term “goof” was a prison term meaning get out or fight. [ 9 ] Mr. Brill’s actions and words caused Constable Martin to believe that he was about to be assaulted. Constable Martin responded by grabbing Mr. Brill and performing a leg sweep. Mr.

Brill continued to try a pull away and when he was about half way to the ground, Constable Martin gave an additional pull. This was done to prevent Mr. Brill from colliding with the park bench. During the process, Constable Martin lost his balance and he fell to the ground landing on Mr. Brill. [ 10 ] Once they were on the ground, Mr. Brill continued to try and pull away, but Constable Martin managed to control his arms and place him into handcuffs. At this point, Constable Martin noticed that Mr. Brill was bleeding from his forehead. He then searched Mr. Brill and he called an ambulance. Mr.

Brill was then assisted to his feet. [ 11 ] When the ambulance arrived the paramedics cleaned Mr. Brill’s wound and transported him to Vancouver General Hospital. Mr. Brill was treated at the hospital and when he was he was discharged Constable Martin prepared a release document and arranged for a police wagon to drive Mr. Brill home. [ 12 ] Constable Martin was questioned about his actions and he testified that he did not punch, kick or strike Mr. Brill. He testified that his response was in accordance with his police training. Constable Martin also testified that Mr.

Brill had not been searched prior to the take down and as such there was some concern regarding the possibility of weapons. Constable Martin estimated that 10 - 15 seconds transpired between advising Mr. Brill that he was under arrest and Constable Martin taking him to the ground. Finally, Constable Martin explained that he took Mr. Brill to the ground so he could control him and effect the arrest. [ 13 ] On the date of the incident, Constable Martin was 5’9, and 170 pounds. [ 14 ] In terms of documenting the interaction, Constable Martin prepared a six page report, some notes and a Use of Force reporting form.

Within his report and notes, Constable Martin failed to record that he landed on top of Mr. Brill. [ 15 ] As for Mr. Brill’s sobriety, Constable Martin was of the opinion that he was intoxicated by alcohol. In this regard, there was a strong odor of alcohol as Mr. Brill spoke. He was also unsteady on his feet and slurring his words. [ 16 ] Constable Martin was questioned about Constable Sahota’s position at the time of the take down and he responded that he was focussed on Mr. Brill so he could not say where Constable Sahota was.

He acknowledged that is it was likely that she was very close. [ 17 ] Counsel for Mr. Brill made several suggestions to Constable Martin, in this regard he asked if it was possible that one of the officers said “hey how is it going?” Constable Martin acknowledged that this was possible. It was also suggested that Constable Sahota made a comment about sewing and Constable Martin indicated that he did not recall. Constable Martin also could not recall if Mr. Brill said “for what?”, when he was being arrested. [ 18 ] Constable Martin agreed that he thought the age difference between Mr.

Brill and the young girl was strange and concerning.

He denied the suggestion that he called Mr. Brill a pedophile. He disagreed that Mr. Brill said “fuck you” and he disagreed with the suggestion that he knocked Mr. Brill out from behind. Constable Sahota [ 19 ] Constable Sahota and Constable Martin responded to a call at Willow Park. When they arrived they entered the park and Constable Sahota saw a young woman at a bench. She does not recall exactly where Mr. Brill was when they first encountered him. Constable Sahota noted that Mr. Brill was unsteady on his feet and he was slurring his words.

She believed that he was heavily intoxicated. [ 20 ] At some point, Constable Sahota received information from Constable Martin that Mr. Brill was breaching a no-contact order. Constable Martin then attempted to take Mr. Brill into custody, but Mr. Brill pulled away and Constable Martin took him to the ground and placed him into handcuffs. Mr. Brill was then brought to his feet, treated by paramedics and transported to the hospital. [ 21 ] Constable Sahota was asked to provide greater details regarding the actions between Constable Martin and Mr. Brill and all that she could recall was Mr.

Brill pulling away and being taken to the ground. She said that the take down happened quickly and that Constable Martin had pulled Mr. Brill across his body and down. Constable Martin did not punch, kick or knee Mr. Brill. [ 22 ] According to Constable Sahota, the take down occurred near the park bench. She felt that Mr. Brill striking his head was an accident and she saw nothing inappropriate with Constable Martin’s actions. [ 23 ] Cross-examination revealed that Constable Sahota had little memory of the events.

She did not make notes, nor did she write a report until many months later and only after a request by the Crown. She explained that she was not the lead investigator and she was the cover officer as such, her role was minimal and there was no need for her to write a report. [ 24 ] Counsel for Mr. Brill put several suggestions to Constable Sahota and she candidly acknowledged that she did not recall certain things but agreed that they were all possible. One example was whether Constable Martin called Mr. Brill a pedophile.

Constable Sahota did not recall this but agreed it was possible. [ 25 ] As for her position during the take down, Constable Sahota did not recall where she was, but she agreed that she would have been very close. Mr. Brill [ 26 ] On August 12, 2018, Mr. Brill had finished work and prior to going home he purchased a small bottle of Vodka. He then purchased take-out food and he rode his bike to Willow Park where he began eating. While at the park, he saw a young woman with whom he was prohibited from contacting. [ 27 ] After having been in the park for about 15 minutes, Mr. Brill was approached by the police.

One of the officers was Constable Martin and he said something along the lines of “hey guys how is it going?” [ 28 ] Constable Martin then obtained his and the young woman’s names and date of births. He then went to a police car, and Constable Sahota remained with Mr. Brill. When Constable Martin returned, he told Mr. Brill that he was under arrest. Mr. Brill asked why and he was told for breach. [ 29 ] Constable Sahota then placed Mr. Brill into handcuffs and took him toward the police car. She started to go through Mr. Brill’s pockets. At one point, she pulled out a sewing kit and she asked Mr.

Brill if he sewed and he replied that he did. Then, and while Constable Sahota was dealing with Mr. Brill, Constable Martin approached from behind and he called Mr. Brill a pedophile. Mr. Brill looked back at Constable Martin and said something like, “fuck you” and he turned back to face Constable Sahota. While facing Constable Sahota Mr. Brill was knocked to the ground and he lost consciousness. [ 30 ] When he regained consciousness, Mr. Brill was bleeding from his forehead.

An ambulance arrived, treated him and he was transported to the hospital where he received four stitches. [ 31 ] During cross-examination, Mr. Brill acknowledged that he had been drinking but denied that he was drunk. He also acknowledged that he showed poor judgment by being in the area contrary to his probation order. He maintained that despite not having notes, that he had a good memory of the events because they have been playing things over in his mind. He also acknowledged that he had a memory lapse from the time between waking up and arriving at the hospital. [ 32 ] As for using the word “goof” Mr.

Brill agreed that he regularly uses this term and that it was possible that he used it on this night. Finally, Mr. Brill was presented with text messages he had sent to the young woman in 2017. He agreed that the text messages were accurate and he agreed that they showed that he was angry at the police for intervening between him and the woman. He further acknowledged that within the text messages that he referred to the police as “fucking goofs”. [ 33 ] Finally, on August 12, 2018, Mr. Brill was 6’3 and 182 pounds. POSITION OF THE PARTIES Counsel for Mr. Brill [ 34 ] Counsel for Mr.

Brill urges the court to prefer Mr. Brill’s evidence over that of the officers. He argues Mr. Brill’s testimony was reliable, credible and candid. Specifically, Mr. Brill gave favourable responses without bending his recollection and he clearly acknowledged when his memory faded. [ 35 ] As for the officer’s evidence, counsel for Mr. Brill argues that the collective deficiencies in Constable Martin’s evidence raises

concerns regarding his credibility. In this regard, counsel points to Constable Martin’s failure to document that he landed on top of Mr. Brill, that Constable Martin’s concern regarding the age differences supports his comment of pedophile, and finally, his inability to state where Constable Sahota was during the key moments as factors against his credibility. [ 36 ] With respect to Constable Sahota’s evidence, counsel suggests that the reason for Constable Sahota not having notes is that she did not want to have to cover for Constable Martin’s wrongful conduct.

He also points out that she acknowledged that some of the events as described were possible. Crown Counsel [ 37 ] The Crown argues that there are four key reasons why the court should prefer Constable Martin’s evidence. First, Constable Martin had not been drinking at the time. Second, Constable Martin wrote a six page report immediately after the events. Third, Mr. Brill acknowledged using the term “goof” and this confirms Constable Martin’s version, otherwise, it would have been a strong coincidence that Constable Martin created a term regularly used by Mr. Brill.

Fourth, the general sequence as given by Constable Martin and Constable Sahota matched. These include, the effort to arrest, the pull away, being near a bench, the take down, and the handcuffing. ANALYSIS [ 38 ] In considering the testimony , I note the witness’s ability to perceive the events they testified about as well as their ability to recall them. I also consider internal and external consistencies, and finally, I consider specific or general evidence confirming parts of the evidence. [ 39 ] In the instant case, I observe that Mr. Brill was intoxicated at the time of the events.

I appreciate that he denies being intoxicated, however, both officers observed symptoms of intoxication and Mr. Brill acknowledged having consumed alcohol on the night in question. In my view the intoxication of Mr. Brill is significant in that it is a matter of common human experience that intoxication impacts judgment, perception and recollection. [ 40 ] Further to the above, I note that Mr. Brill had difficulty appreciating the dynamics that caused him to go to the ground. Originally, he described a hit from behind and this evolved to a shove to the ground. I do not mean to suggest that Mr.

Brill was being untruthful with the court, rather, his reliability is questionable and diminished by his intoxication, the passage of time, and the loss of consciousness. [ 41 ] As for his ability to recall, I appreciate that Mr. Brill testified that he has a strong memory of the events, however, I note he was recounting observations made a year and a half previously and from a period when he was intoxicated and immediately around the time that he received a head injury.

In contrast, Constable Martin was sober, without a head injury, and he prepared a six page report almost immediately after the events. [ 42 ] As for the absence of Constable Martin documenting that he fell on top of Mr. Brill, I do not see this as problematic. I say this because the report was prepared to document the offence of breach of probation and not the minutia of a physical take down. As for Constable Sahota not documenting the events, her explanation that she was a cover officer was reasonable and I accept it. [ 43 ] In considering the officers’ evidence, I note general consistency between them.

Notably, the incident occurred near a bench, Mr. Brill tried to pull away, and Constable Martin applied the handcuffs. [ 44 ] Finally, I note that the theme of Mr. Brill’s 2017 text messages was consistent with the theme encountered by the officers on this occasion. In this regard, when the police tried to intervene between Mr. Brill and the young woman, Mr. Brill became angry and he referred to them as “fucking goofs”, which is exactly the theme in the 2017 text messages. [ 45 ] For the above reasons, and although Mr.

Brill was trying his best to give an accurate description of what he believed transpired, I find the officer’s evidence to be reliable and credible. Accordingly, I accept the evidence offered by Constable Martin. WAS THE FORCE EXCESSIVE Legal principles – excessive force [ 46 ] The legal principles related to allegations of excessive use of force by the police is found in R v.

Nasogaluak, 2010 SCC 6 where at paragraphs 32 – 35 , Label J., observed: [32] The Crown emphasized the issue of excessive force in its submissions to this Court, arguing strenuously that the police officers had not abused their authority or inflicted unnecessary injuries on Mr. Nasogaluak. But police officers do not have an unlimited power to inflict harm on a person in the course of their duties.

While, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness. Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences. [33] The legal constraints on a police officer’s use of force are deeply rooted in our common law tradition and are enshrined in the Criminal Code .

This case engages s. 25 of the Code , the relevant portions of which are reproduced below: 25.

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

b) as a peace officer or public officer, . . .

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 necessaryfor that purpose. . . .

(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or islikely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for theself-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.

(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to causedeath or grievous bodily harm to a person to be arrested, if (

a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested; (

b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant; (

c) the person to be arrested takes flight to avoid arrest; (

d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose ofprotecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievousbodily harm; and (

e) the flight cannot be prevented by reasonable means in a less violent manner. [34] Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or sheacted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of thematter.

Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to causedeath or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or herprotection, from death or grievous bodily harm. The officer’s belief must be objectively reasonable. This means that the use of forceunder s. 25(3) is to be judged on a subjective-objective basis (Chartier v. Greaves, [2001] O.J. No. 634 (QL) (S.C.J.), at para. 59).

Ifforce of that degree is used to prevent a suspect from fleeing to avoid a lawful arrest, then it is justified under s. 25(4), subject to thelimitations described above and to the requirement that the flight could not reasonably have been prevented in a less violent manner. [35] Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous anddemanding 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), (BC CA), 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 theyexisted at the time the force was used. They should have been directed that the appellant could not be expected to measure the force usedwith exactitude. [p. 218] APPLICATION [47] I am satisfied that Constable Martin found Mr. Brill committing a criminal offence (breach of probation) and therefore theofficer was authorized by s. 495 of the Criminal Code to arrest Mr. Brill. [48] During the arrest, Constable Martin described Mr.

Brill as actively resisting and he also described his belief that he was about tobe assaulted. As such, Constable Martin felt that Mr. Brill needed to be controlled and that the safest way to achieve this was to take Mr.Brill to the ground. [49] In considering the above, the size difference between the parties, Mr. Brill’s anger, his physical responses, combined withConstable Martin’s training and response, satisfies me that Constable Martin’s belief that Mr. Brill needed to be controlled by beingtaken to the ground was objectively reasonable. [50] In

summary, the events unfolded in a matter of seconds wherein Mr. Brill displayed anger and perceived pre-assaultivebehavior. This resulted in Constable Martin employing a take down so that he could gain control of Mr. Brill. Consequently, andunfortunately, Mr. Brill struck his head on the ground. The fact that he struck his head does not mean that Constable Martin usedexcessive force. In fact, care must be taken to avoid measuring the use of force to a level of perfection. For the above reasons I concludethe use of force was not excessive. DECISION ON THE APPLICATION [51] I find that Mr.

Brill has failed to establish that the force used by Constable Martin was excessive and a violation of his s. 7Charter of Rights. Accordingly, the application is dismissed. ____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia