R. v. Waite, 2013 ONCJ 168

COURT FILE No.: 12-40004883-01 12-40004883-02 City of Toronto DATE: 28-03-13 Citation: R. v. Waite , 2013 ONCJ 168 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — OVERTON WAITE -and- ADINA HYACINTHE Before Justice Robert G. Selkirk Heard on March 13 th and 18 th , 2013 Reasons for Judgment released on March 28 th , 2013 J.

Rodopoulos ............................................................................................................ for the Crown Corey Nishio.................................................................................................for the accused Overton Waite Lisa Bristow ................................................................................... for the accused Adina Hyacinthe SELKIRK, J.: [ 1 ] Mr. Waite is charged with one count of theft under and one count of assault resist arrest. Ms. Hyacinthe is charged with two counts of assault.

All charges arise out of an incident at a Shoppers Drug Mart at Jane Street and Wilson Street in the City of Toronto on December 20, 2011 at approximately 9:00 p.m. [ 2 ] On March 13 th , 2013 after hearing the evidence and submissions of counsel, I acquitted Mr. Waite of the theft under for reasons I put on the record. On March 18 th , 2013, I acquitted both accused of the remaining counts with reasons to follow. These are my reasons. [ 3 ] I heard from four Crown witnesses and Ms. Hyacinthe.

Thus a W.D. analysis is appropriate in order to keep the focus of the trial on the high onus on the Crown of proof beyond a reasonable doubt. [ 4 ] I can indicate that I accept the evidence of Ms. Hyacinthe. Where it conflicts with other witnesses’ evidence, I prefer hers. This does not mean that her evidence is one hundred per cent accurate. No one’s evidence in those circumstances, which include a scuffle involving a number of people, which blows up suddenly with a number of different things happening at the same time and occurs over fourteen months ago could or should be considered as without frailties.

However, having said that, I find Ms. Hyacinthe’s evidence to be as precise and detailed as one could expect. She was not shaken in cross-examination. Her evidence is corroborated by the video surveillance. Her demeanour was such that it engendered confidence in her credibility and reliability. [ 5 ] Her evidence was that she and her boyfriend went to Shoppers Drug Mart to purchase condoms. She picked up their usual brand and he picked up another brand that he believed they had used in the past. They went to the cash.

They unwrapped the box he had picked up while standing in line and discovered it was not the brand that they wanted. They returned to the condom aisle and put that box back. They kept the box she had picked up. They returned to the cash. The Loss Prevention Officer, Avies-Gonzales, who had been behind them the first time they were at the cash line and who followed them back to the condom section, then stepped up behind them.

[ 6 ] The exact words they exchanged at that point are not clear but what is clear is that he accused them of attempting to steal a box of condoms. Although, in his evidence, he denied asking to look into Ms. Hyacinthe’s purse, I accept her evidence that he did. This is consistent with her evidence and her movements on the video that when he said this, she felt insulted, and she said, “If you do not find anything what do I get, do I get to punch you in the face?” In any event, he does look into her purse and he says there was nothing to see. On the video one can see Ms.

Hyacinthe make a fake punch motion towards him. [ 7 ] Ms. Hyacinthe goes on to challenge him by saying, “do you feel stupid, are you embarrassed?” She indicated that the Loss Prevention Officer was blushing at this time. [ 8 ] In response to that, and no doubt feeling challenged and somewhat embarrassed, the Loss Prevention Officer says, according to Ms. Hyacinthe, which I accept, “How about I tell you to leave.” Now the argument is on. Ms. Hyacinthe, understandably responds, “How about I pay for my purchases and then I’ll leave.” Mr. Avies-Gonzales tells them no, “I want you to leave now”. Ms.

Hyacinthe starts calling, loudly, for the Manager. They are told again to leave as they will be charged with trespass. Ms. Hyacinthe continues to call for the Manager. [ 9 ] Ms. Hyacinthe says and I accept, that the Loss Prevention Officer then says, “I will count to three and then charge you. One, two, three, you are under arrest.” This is said as one continuous phrase.

He then takes out his cell phone and one can see him on the video using it, no doubt to call the police. [ 10 ] From the video it is approximately from 8:50:22, the time of the fake punch which precedes the three demands to leave to 8:51:13 which is when Mr. Avies-Gonzales takes out his cell phone to call the police and which is after he has told them they are under arrest, a total of fifty-one seconds or less. [ 11 ] By this time, Ms. Hyacinthe’s mother is on the scene.

As a result of her comments the accused decide to not pursue a complaint with the Manager about first being accused falsely of an attempt theft and secondly of being told to leave for no apparent reason. They try to leave. However, the Loss Prevention Officer is now blocking their way and telling them they cannot leave, that the police have been called and they are under arrest for trespass. No mention of an arrest for attempt theft is ever made. [ 12 ] Physical contact is initiated by the Loss Prevention Officer in order to prevent them from leaving.

At the cash, between the cash and the exit door and at the door, he is seen to be attempting to grab on to them or their jackets in order to detain them. They push by and exit the store albeit partially in the grasp of Mr. Avies-Gonzales. [ 13 ] A scuffle outside the sidewalk ensues between the accused and Mr. Avies-Gonzales as well as two other employees of Shoppers Drug Mart, Mr. Peter Nyugen and Mr. Rabang. I will address those events shortly but at this point I will address whether Mr.

Avies-Gonzales had reasonable grounds to arrest the accused and was therefore in execution of his duty when he initiated physical contact with them in his attempts to detain them. [ 14 ] The Trespass to Property Act , R.S.O. 1990,

Chapter T. 21, provides that, Trespass an offence 2.

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

a) without the express permission of the occupier, the proof of which rests on the defendant, (

i) enters on premises when entry is prohibited under this Act, or (ii) engages in an activity on premises when the activity is prohibited under this Act; or (

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) . Arrest without warrant on premises 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. R.S.O. 1990, c. T.21, s.9(1) . Delivery to police officer

(2) Where the person who makes an arrest under subsection (1) is not a police officer, he or she shall promptly call for the assistance of a police officer and give the person arrested into the custody of the police officer. [ 15 ] It is common ground that Mr. Avies-Gonzales was authorized by the owner to demand that the accused leave the property. I do not believe he needs to explain why he is demanding this and that even an unfair and arbitrary demand is a valid demand.

It is private property and the accused’s presence is at the pleasure of the owner which can be revoked at any time. [ 16 ] It is clear that by the time that Mr. Avies-Gonzales told the accused to leave that both were aware that he was a Security Guard and thus authorized to speak on the owner’s behalf. [ 17 ] This reduces the issue as to whether the accused left immediately as they are required to do. If they did not, then they could be arrested. If arrested, then there is an onus on the person doing the arresting to turn the trespassers over to the police without

delay. It is a necessary conjunct of that duty to be able to detain the alleged trespassers until the police arrive. [ 18 ] The issue is whether or not the accused attempted to leave within a time period that could reasonably be described as “immediately”. [ 19 ] In R. v. Genus , 1993 O.J. No. 2821 , O.C.J. the Court addressed this issue. In that case a police officer told Genus to leave the lobby of an apartment building after Genus refused to identify himself. Genus said he would leave shortly. The officer arrested him for failing to leave and as a trespasser. [ 20 ] Mr.

Genus was then searched pursuant to arrest and cocaine was found. Mr. Genus then gave a false name. [ 21 ] In excluding all of the evidence obtained subsequently to the arrest, the Court held that it was not satisfied that the accused had had a reasonable opportunity to comply with the demand to leave as the Crown did not or was not able to establish how much time passed between the demand to leave and the arrest. As a result, the Court held the arrest was without reasonable and probable grounds and therefore a violation of s.8 and 9 and excluded the evidence.

The only finding relevant to our case is the statement that even within the context of “immediately” the accused must still be given a “reasonable opportunity” to comply. [ 22 ] A similar finding was made in a civil case, Aspden v. Niagara Police , 2005 O.J. 969 , S.C.O. In that case, Ms. Aspden was suing for damages for unlawful arrest and imprisonment. She had attended an event where a sign was posted that if you left there was no right to re-enter. She entered, then left and then attempted to re-enter contrary to the notice. She was denied re-entry and became verbally abusive.

She was forcibly removed and then arrested under the Trespass Act . [ 23 ] The Court held that once the plaintiff re-entered the event that she was a trespasser but that she had not committed the offence of failing to leave because she had not had the opportunity to leave voluntarily.

The arrest was therefore unlawful as was the ensuing detention. [ 24 ] The Court held that the onus is on the occupier to establish the individual had failed to leave as required by the Act and that this onus bears a standard of proof on a balance of probabilities. [ 25 ] I will pause to note that the same onus and standard of proof is required in the case at bar.

There must be both subjective and objective grounds to believe on a balance of proof that the offence has been committed. (See Storey SCC). [ 26 ] The Court, at para 32, goes on to write, “The statute and the common law right to eject a trespasser, ...,both presuppose that the trespasser is given a reasonable opportunity to leave...” I agree with this finding as it makes common sense. [ 27 ] The issue is now defined as to whether Mr. Avies-Gonzales provided the accused with a reasonable opportunity to leave after he made his demand to do so.

What is a reasonable opportunity would have to be defined by the circumstances of the situation. It should be defined flexibly because it has to apply to so many different situations. [ 28 ] In this case, I find that the accused were not given a reasonable opportunity to leave. From the time of the demand to leave to the time of telling the accused they are under arrest is less than 51 seconds. While that is sufficient time to walk from where they were at the cash to the exit, one must also take into account what was happening at the time.

The Loss Prevention Officer had just falsely accused them of attempt theft. He had unjustifiably and without any authority demanded to look into Ms. Hyacinthe’s purse. Having done so and discovered that they had done nothing wrong, he then tells them to leave. This was, no doubt, simply a show of power to cover up his embarrassment for having made groundless accusations of theft. I say groundless because it was clear on the video that when Mr. Waite approached the cash line he had a box in his hand. This is contrary to Mr.

Avies-Gonzales’ evidence that he had nothing in his hand having concealed two boxes in his jacket. It was also clear that Mr. Waite unwrapped the box he was carrying while in line, in order, as Ms. Hyacinthe testified, to ensure that they were the right brand. This is also contrary to Mr. Avies-Gonzales’ evidence that Mr. Waite unwrapped two boxes while in the condom aisle. [ 29 ] Having watched the video, I have no idea what, if anything, Mr. Avies-Gonzales saw in the condom aisle as it was clearly not acts preparatory to a theft.

It is a mystery as to why he would think they had attempted to steal from the store as his stated grounds were without merit. [ 30 ] It is therefore quite understandable that the accused, Ms. Hyacinthe more so than Mr. Waite, became upset. Having been unjustly accused of an attempt theft and then, for no reasonable reason, told to leave the store it is reasonable for Ms. Hyacinthe to demand to see the Manager so that a person in authority could confirm that this was how that Shoppers Drug Mart wanted their customers treated.

It was agreed that her demand for the Manager was loud and repeated several times but she was upset. This is understandable. [ 31 ] Within seconds, it was clear that Mr. Avies-Gonzales was not calling for the Manager, and as a result of input from Ms. Hyacinthe’s mother, they decided to leave. They put their proposed purchase down and headed for the exit. But now Mr. Avies- Gonzales is telling them they cannot leave and the struggle is on. [ 32 ] I find that they attempted to leave, without further incident, within seconds of realizing that a Manager was not being called to confirm Mr.

Avies-Gonzales’ heavy handed actions as store policy. I find it was a reasonable demand to make by Ms. Hyacinthe to see the Manager and one which would delay her exit from the store for only a short period of time. Indeed, if a Manager had arrived it might well have been Mr. Avies-Gonzales who left the store and not the accused. In these circumstances, I believe the accused were still within a permissible time frame during which they actually tried to leave.

[ 33 ] I also find that Mr. Avies-Gonzales did say to them, “leave before I count to three or you’ll be arrested” and without any delay said, one, two, three, you’re under arrest. This is far too short an opportunity to leave to be described as reasonable. He then immediately takes out his cell phone and calls the police. This is neither reasonable nor fair as it is not only arbitrary but also does not allow the accused a reasonable opportunity to leave in all the circumstances. [ 34 ] This makes the arrest one without grounds. It means Mr.

Avies-Gonzales and the other two employees who came to his assistance in his attempts to detain the accused were not in execution of their duties as set out in the Trespass to Property Act . They had no right to physically detain the accused. Their attempts to do so were thus an assault on the accused. Being such the accused had every right to resist so long as the force used was reasonable and not excessive. This would apply not only to Mr. Waite who received much of the brunt of their attentions but also to Ms. Hyacinthe who was attending to help Mr.

Waite fend off his attackers. [ 35 ] In an attempt to synthesize the various versions of what occurred outside, I will indicate the following. It should be noted I am not trying to re-count every detail as many are confusing and/or contradictory and the only remaining issue is whether the accused used excessive force. [ 36 ] Essentially, the accused pushed their way out the door with Mr. Avies-Gonzales holding on to them or their jackets. Mr. Nguyen and Mr. Rabang, store employees, followed out within a few seconds. They could see the struggle but had not seen what led up to it. Ms.

Ramjattan, who works in cosmetics, also followed them out shortly thereafter. [ 37 ] It appears to be common ground that Mr. Avies-Gonzales put Mr. Waite to the pavement and was holding him there on his stomach with his knee and hands on Mr. Waite’s back. Mr. Rabang was holding his legs. Ms. Hyacinthe was trying to pull Mr. Rabang off when she became involved with Mr. Nguyen who was behind her and was hit by her elbow. [ 38 ] Mr. Waite was able to get up, he and Mr. Avies-Gonzales struggled and they went back to the ground. Ms. Hyacinthe was again trying to pull Mr. Avies-Gonzales off.

They eventually got back up again. Ms. Hyacinthe went to get their car. Upon her return the men’s struggle had moved down the parking lot to an alley. Mr. Waite was again being held on the ground by Mr. Avies- Gonzales. The police then arrived and arrested both Mr. Waite and Ms. Hyacinthe. [ 39 ] I find that the force used to resist their arrest was reasonable. It consisted of attempts by Mr. Waite to push Mr. Avies- Gonzales away from him and to free himself from Mr. Avies-Gonzales’s group. Ms. Hyacinthe’s contact with Mr. Avies-Gonzales consisted of pulling on his clothing, trying to peel his fingers off Mr.

Waite and possibly pulling on Mr. Avies-Gonzales’ head and face when he was on top of Mr. Waite. [ 40 ] I specifically reject that there was any intentional kicking, punching, choking or eye-gouging by the accused which, arguably, could be seen as use of excessive force for the following reasons. [ 41 ] The first is that I heard five versions of what happened outside the store. Not surprisingly all five were quite different. In such a situation it is difficult for the Crown to meet its high onus. In this case, I find Ms.

Hyacinthe to be the most reliable witness albeit no doubt inaccurate in some respects, not deliberately, but simply due to the difficulty of accurately recalling details of a fast-moving incident while under stress some months later. [ 42 ] The problems with Ms. Ramjattan’s evidence that Mr. Avies-Gonzales was punched and kicked is that Mr. Avies- Gonzales himself does not say he was ever punched or kicked and one would expect him to be in the best position to know this. Mr. Nguyen testified that there were no kicks or punches that he observed. [ 43 ] Ms. Ramjattan also testified that she saw Mr.

Nguyen holding Ms. Hyacinthe down. According to Mr. Nguyen and Ms. Hyacinthe, this never happened. I believe they are correct. I thought, while listening to Ms. Ramjattan testify, as a general comment, that she was trying a bit too hard for the home team. [ 44 ] Another example of conflicting versions is that Mr. Avies-Gonzales has Peter Nguyen pulling Ms. Hyacinthe off of him, “a few times”, but Peter Nguyen did not say he every pulled her off Avies-Gonzales.

He was bent over her at one point in case she was going to punch Avies-Gonzales but did not make contact with her until after her elbow hit him in the mouth at which point she was not on Mr. Avies-Gonzales and he did not pull her off. [ 45 ] As well Mr. Avies-Gonzales testified that at one point he had Mr. Waite on the ground and then grabbed Ms. Hyacinthe and threw her on top of Mr. Waite and held them both there on the ground. No one ever saw this, nor did Ms. Hyacinthe say this even happened. Mr. Rabang said he did not see Mr. Avies-Gonzales hold on to Ms. Hyacinthe at any time. I find it unlikely that Mr.

Avies- Gonzales held both of them on the ground as he testified. This, again speaks to his credibility or lack thereof. [ 46 ] With respect to Mr. Avies-Gonzales’ allegations that Mr. Waite on a number of occasions was choking him, I am not satisfied that that happened because Mr. Avies-Gonzales’ credibility is suspect, given how his evidence on the attempt theft is contradicted by the video, also because neither Mr. Nguyen nor Mr. Rabang testified to seeing Mr. Avies-Gonzales being choked. While there was contact by Mr. Waite to Mr.

Avies-Gonzales’ throat (see scratches on neck in photo), I believe it is more likely that this happened when Mr. Waite was trying to push Mr. Avies-Gonzales off of him. Both men were described as having their hands up around each other’s throat or collar area and no doubt there was contact to both of their throats. [ 47 ] I also do not accept that there was any intentional eye-gouging by either accused. While there was certainly contact between the accused’s hands and Mr. Avies-Gonzales’ face it was for the purpose of trying to pull (by Ms. Hyacinthe) or push (by Mr. Waite) Mr. Avies- Gonzales off of Mr. Waite.

This contact was incidental to their attempt to resist Mr. Avies- Gonzales’ assault on them and neither deliberate nor an intent to eye-gorge. I do appreciate that Mr. Rabang said he saw Ms. Hyacinthe’s fingers in or on Mr. Avies-Gonzales’ mouth and eyes but it was while she was attempting to pull him off of Mr. Waite by pulling on his head and because she was behind Mr. Avies-Gonzales it would mean she was pulling on his face. This is different from trying to stick her fingers in his eyes.

[ 48 ] For the above reasons, I find neither accused used excessive force in lawfully resisting Mr. Avies-Gonzales’ attempt to detain them. [ 49 ] With respect to the alleged assault on Peter Nguyen, I find that there was contact between Ms. Hyacinthe’s elbow and his mouth but that it was accidental and in the context of her believing she was being or about to be assaulted from behind which caused her to spin around to face her likely attackers. When she did so, her elbow hit his mouth. This is because her elbow held at shoulder height would be at the same approximate height of Mr.

Nguyen’s mouth given that she is taller than he. This was not a deliberate blow. I accept her evidence on this point. [ 50 ] Her attempt to slap Mr. Nguyen also is not an assault in these circumstances. After the elbow, Mr. Nguyen throws Ms. Hyacinthe to the ground. She gets up and tries to slap him. At this point she is either defending herself from Mr. Nguyen so as to prevent him from making further aggressive contact with her again or it is a consent fight as Mr. Nguyen had just thrown her to the ground. In either case there is no assault. It is also noteworthy that physical contact between Mr. Nguyen and Ms.

Hyacinthe was initiated by Mr. Nguyen albeit in his misguided attempts to assist Mr. Avies-Gonzales. [ 51 ] The accused will be found not guilty of the three remaining counts. Released: March 28 th , 2013 ________________________________________ The Honourable Mr. Justice Robert G. Selkirk