Her Majesty the Queen - v. -, 2014 SKPC 64

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 064 Date: March 28, 2014 Information: 39987110 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Luke James St. Onge Appearing: William Burge For the Crown Aaron Fox, Q.C. and Bradley Mitchell For the Accused JUDGMENT D.

O ’ HANLON , J Note: Pursuant to s. 486.4 of the Criminal Code , the Court made an order directing that the identity of the complainant or a witness, and any information that could disclose the identity of the complainant or witness, shall not be published in any document or broadcast in any way. [ 1 ] Luke James St. Onge is charged as follows: 1) On or about the 27 th day of May, A.D. 2012, at or near Saskatoon, Saskatchewan did in committing an assault on A.L. use a weapon, to wit: Oleoresin Capsicum Spray, contrary to s. 267 (

a) of the Criminal Code ; and

2) On or about the 27 th day of May, A.D. 2012, at or near Saskatoon, Saskatchewan did in committing an assault on A.L., cause bodily harm to him, contrary to s. 267 (

b) of the Criminal Code . FACTS [ 2 ] At all material times, Luke James St. Onge, was a constable with the Saskatoon Police Service. He had been with the Saskatoon Police Service since December, 2007. Prior to that he was an RCMP officer for fourteen months. [ 3 ] On May 27, 2012, Constable St. Onge was patrolling the central area of Saskatoon by himself. His shift was from 6:00 p.m. to 6:00 a.m. the next morning. At about 10:15 p.m. on the evening of May 27, 2012, he was called to 202 Avenue V South. He attended to the call on the second floor of a four or five storey apartment building located at that address.

When he had completed the call, he was exiting the building through the front entrance. As he went through the first set of doors leading out of the apartment building, one male passed him. As he reached the second set of doors, a second male individual appeared to be surprised by the officer’s presence. This male started down the stairs and Constable St. Onge told him to “hold up”. This male turned and pepper-sprayed or bear maced Constable St. Onge in the face. The young male immediately left. [ 4 ] The constable attempted to keep his eyes open in spite of the burning sensation caused by the spray.

He went outside of the building and allowed the rainwater coming off the building to wash over his face in an effort to decontaminate his face and eyes. He immediately radioed he had been maced and gave a description of the accused. He described the accused’s clothing as a light or a white jacket. He described him as a male native about 15 years of age. I am satisfied this call went out at about 10:17 p.m., as testified to by Constable Chad Nolan. [ 5 ] Other officers immediately started to respond to the area.

A police officer with a tracking dog arrived at the scene and attempted to follow a trail however, they could not get a track. Other officers set up a perimeter in the area. Constable St. Onge returned to the apartment building at 202 Avenue V South, to locate the other male in an effort to identify the young male who had sprayed him in the face. [ 6 ] Constable St. Onge then heard on his radio that other officers had located an individual who matched the description of the young assailant. These officers were on Avenue S South. Constable St.

Onge was also advised that the police dog had a track of this individual. He then heard that this individual had gone into the yard at 1818 - 20 th Street West in Saskatoon. Constable St. Onge knew this yard to be a known gang and criminal activity house. He therefore radioed this information to the other officers. [ 7 ] Constable St. Onge immediately went to this location and upon arrival there he found Constable Nolan on top of someone on the ground. It appeared to Constable St. Onge that they were wrestling on the ground. He heard Constable Nolan state loudly “here, here”.

The individual on the ground had his left arm under his body, was kicking his feet and rolling from side to side according to Constable St. Onge. The individual on the ground was A.L. Constable St. Onge testified that he put his left knee on the ground by A.L.’s shoulder and pulled on his left arm a couple of times in an effort to extricate it from underneath him. When the constable could not pull A.L.’s left arm from underneath his body, he delivered strikes to the back left side of A.L.’s head.

When A.L.’s arm still could not be removed from underneath his body, the officer took out and deployed his OC spray to the top side of A.L.’s forehead. After doing this, the constable testified that A.L.’s left arm immediately came out from underneath him and he was handcuffed and contained. [ 8 ] Constable St. Onge further testified that other officers arrived on the scene almost simultaneously to him. He did state however that he was the first to arrive after Constable Nolan had tackled A.L. Constable Taylor was on Constable St. Onge’s right side, but still on the left side of A.L. Constable St.

Onge stated that Constable Taylor was attempting to get A.L.’s arm out from underneath him. Constable St. Onge was concerned that A.L. may have a weapon in his left hand, and A.L. was, as the constable stated, rolling back and forth and kicking his legs and not releasing his arms. The constable felt it was necessary to gain control of both arms as quickly as possible. [ 9 ] Constable St. Onge was asked in examination-in-chief about the increasing levels of use of force. He then testified to his

[ 9 ] Constable St. Onge was asked in examination-in-chief about the increasing levels of use of force. He then testified to his understanding of the use of force continuum used by police officers. His evidence in this regard, if not the only evidence on the point, is the best evidence I have regarding the use of force continuum. Although some of the other officers may have referred to the use of force in passing, it does not detract from Cst. Onge’s evidence in this area. [ 10 ] In his evidence on the use of force continuum Constable St. Onge advised that one of the first techniques to be used is vocal control.

If this fails, then you progress to soft hand force, hard hand force, intermediate weapons such as OC spray, and then lethal force. When explaining his actions, he testified that vocal commands were not gaining the compliance of A.L. He then attempted to use soft hand techniques by grabbing at and attempting to remove A.L.’s left hand from underneath his body. When both he and Constable Taylor were unable to extract A.L.’s left arm from underneath his body, he progressed to hard hand techniques by striking A.L. in the left side of the head three to five times.

A.L.’s arm still could not be extracted from underneath him, so he progressed to OC spray as an intermediate weapon. Both he and Constable Taylor testified that upon using the OC spray, A.L.’s arm came out from underneath him immediately. A.L. was then handcuffed behind his back and contained. [ 11 ] After being handcuffed, A.L. was taken and placed in a police vehicle. An ambulance was called to the scene as A.L. had been pepper-sprayed and struck to the head. The ambulance then took A.L. to the hospital where he saw a doctor. X-rays were taken, and no bones were broken and no stitches were required.

The injuries to A.L.’s face and head are graphically depicted in Exhibit P-1 on the trial of this matter. As to whether all of these injuries occurred as a result of the blows, or whether some occurred upon being tackled face first into the ground, is unknown. The Evidence of A.L. [ 12 ] A.L. was born [...], 1997. At the time of trial he was 16 years of age, 6’4” tall and 210 pounds. At the time of this incident he was two days short of his 15 th birthday, 5’8” to 5’9”, and 135 to 140 pounds.

On the early morning of May 27, 2012, A.L. had eloped from Carmel House where he had been in care for approximately one and one-half months. He admitted on the stand that his situation was not going well at that residence. After spending the day with family and a friend, he advised that he was attempting to get to his grandfather’s house to ask for a ride back to his placement. This house was in the vicinity of where the incident occurred. He and his friend, E., were walking down a back alley towards his grandpa’s house when he saw a police car approaching.

He testified that he went into a back yard and the police threw a dog over the fence, into the yard. Once this occurred he stated that his body just took over and he started to run. After jumping a fence, he was tackled from behind by a police officer and landed face down in the grass. According to him, he believed that he only received a few scratches around his face when he landed face first on the ground. [ 13 ] Once on the ground, he testified that his left arm was underneath him and even though he was told to remove it he could not because of the pressure on his back.

He stated that every time he attempted to lift himself up and remove his arm, he was told not to squirm. He first stated that he was punched a few times in the left side of his face. After further questioning he emphasized that it was more than ten and less than fifteen punches. He did hear commands to get his arm out from underneath him. He stayed face down on the ground until his hands were handcuffed behind his back and he was picked up. He advised that he couldn’t open his eyes because he had been pepper-sprayed as well. [ 14 ] He was asked about his knowledge of his friend, E., prior to seeing the police.

He advised that he did not know that E. had a warrant out for his arrest until they saw the police and E. advised him of this. He did however know that E. had gang involvement. [ 15 ] Under cross-examination, A.L. stated that he did not want the police to take him back to Carmel House, but rather he wished to go back on his own as this would look better for him. That is why he was going to his grandfather’s house after 10:00 p.m. at night to get a ride back to Carmel House. After being arrested, he was asked if knew anybody at the residence where Constable St. Onge had been pepper-sprayed.

At first he said he did, and then he changed his mind stating that he thought they had asked him about a residence on Avenue R as opposed to a residence on Avenue V. It also came to light in August, 2012, when he was interviewed by a police detective that he had a girlfriend living at 202 Avenue V South. He did emphasize however that at the time of the incident, although she was living at that residence, he did not know her. The Evidence of Constable Chad Nolan [ 16 ] Constable Chad Nolan is an 11 and one-half year veteran of the Saskatoon Police Service. He was on patrol on the evening of

May 27, 2012, with a partner. He heard a radio call from Constable St. Onge at 22:17 hours on that evening. Constable St. Onge advised that he had been pepper-sprayed and he gave a description of the suspect. Constable Nolan and his partner proceeded to the area of 20 th Street and Avenue U where they took up a perimeter position. They saw a male running southbound, and Constable Nolan’s partner exited the police vehicle and ran after the individual. Constable Nolan went around the block and as he did so he heard a report that the suspect had gone into the yard at 1818 - 20 th Street West in Saskatoon.

Constable Nolan parked his vehicle and saw a male running east pursued by the K-9 Unit. The male jumped the fence and ran close to where Constable Nolan was. Constable Nolan exited his vehicle, chased the youth a very short distance and tackled him face down on the grass in a front yard. [ 17 ] Once the youth was face down on the ground, Constable Nolan positioned himself towards the youth’s lower back. Constable Nolan was sitting on the youth towards the youth’s buttocks, facing towards the back of his head. He had his left hand on the youth’s back and used his right hand to radio his position.

Although Constable Nolan testified on examination-in-chief that he did not believe he was having any difficulty restraining the youth, under cross-examination he admitted the youth was struggling and attempting to get away from him. [ 18 ] The young person face down on the ground, underneath Constable Nolan, was A.L. Shortly after tackling the youth to the ground, Constable Nolan testified that Constable St. Onge arrived and positioned himself at A.L.’s right shoulder and upper arm area. Constable Nolan testified he saw Constable St. Onge immediately strike one blow on the right top side of A.L.’s head.

Constable Nolan did not hear anyone or any other officers telling A.L. to stop resisting or to get his arm out from underneath him. [ 19 ] Constable Nolan did indicate on cross-examination that he would expect that the officers would want to gain control of both of A.L.’s arms as there was a suspicion he was armed. The Evidence of Constable Joseph Taylor [ 20 ] Constable Taylor had been a police officer and a member of the Saskatoon Police Service since July, 2006. On the evening in question, he heard the radio transmission of Constable St. Onge indicating that he had been maced.

Once the suspect had been spotted, Constable Taylor responded to the area. [ 21 ] Constable Taylor testified that he was the first officer to arrive after Constable Nolan had tackled A.L. to the ground. He described Constable Nolan as sitting on A.L.’s head facing towards A.L.’s feet. Constable Nolan’s knees were described as being by A.L.’s shoulders. A.L. was face down on his belly. Constable Taylor said he went to the left side of A.L.’s body. Another officer was on A.L.’s right side, holding onto A.L.’s right arm and lifting it upwards.

Constable Taylor attempted to pull A.L.’s left arm out from underneath him. In doing do, he moved down towards the knee or feet area of A.L. Constable St. Onge arrived and positioned himself on A.L.’s left side and to the left of Constable Taylor. Constable St. Onge was closer to A.L.’s head. Constable Taylor described himself as looking toward Constable St. Onge’s back. Constable Nolan got up and removed himself from the area. Constable Taylor described his focus as being on the left arm of A.L.

He pulled on the arm with both of his hands however he had difficulty getting a grip on A.L.’s arm. [ 22 ] Constable Taylor was yelling to the other officers that he could not get A.L.’s arm out from underneath him. He believed A.L. was armed and actively resisting the officers. He did not believe they had control of A.L. as he may have had a weapon and control would only be gained once both arms were extracted and handcuffed. [ 23 ] Constable Taylor stated that Constable St. Onge struck A.L. on the head a couple of times. Constable St. Onge then used his OC spray and A.L.’s arm came out immediately.

Constable Taylor had to remove himself as the OC spray had struck him and he announced to the other officers that he was sprayed. Another officer or officers immediately handcuffed A.L.’s hands behind his back. The Evidence of Constable Aaron Smith [ 24 ] Constable Aaron Smith was a four year veteran of the Saskatoon Police Service. On the evening in question, he heard the radio call. He was patrolling with another officer. They immediately drove into the area where they located A.L. on the front lawn of a

residence with Constable Nolan on his back. He further described Constable Nolan as struggling with the male on the ground. He described Constable Nolan as being on A.L.’s upper left shoulder area, facing toward A.L.’s head. Constable Smith stated he positioned himself at A.L.’s right shoulder where he got ahold of A.L.’s right arm and tried to put him in a prone handcuffing position. He raised A.L.’s right arm into the air in order to immobilize it and attempted to handcuff him. [ 25 ] After a few seconds of struggling with A.L., Constable St. Onge arrived and positioned himself near A.L.’s left shoulder.

He described Constable St. Onge as trying to get A.L.’s left arm free. Constable St. Onge then delivered three or four strikes or punches to A.L.’s head. [ 26 ] Constable Smith testified that he was telling A.L. to give up his hands and stop resisting. He believed that A.L. was attempting to break free; that A.L. was the suspect who had pepper-sprayed Constable St. Onge and that he could have a weapon. A.L. did not follow the commands that were being given to him.

Constable Smith did not believe that he could roll A.L. over as he could have had a weapon in his concealed hand. [ 27 ] Constable Smith stated the strikes from Constable St. Onge to A.L.’s head area came after the commands had been given to A.L. [ 28 ] The Crown closed its case after the evidence of Constable Smith. The Evidence of Constable Luke St. Onge [ 29 ] Constable St. Onge was the only witness to give evidence for the Defence. [ 30 ] As stated previously, he has been a constable with the Saskatoon Police Service since December, 2007.

After attending back at the apartment building after he had been sprayed in the face with bear mace or pepper spray, he heard radio communications that a suspect was being pursued. He immediately went to the scene, and while en route, he heard the suspect was in the yard located at 1818 - 20 th Street West. Constable St. Onge knew this house to be a known gang and criminal activity house. He radioed this information to the other officers. Upon arriving at the location, he testified that he saw Constable Nolan on top of an individual on the ground. It appeared to him as if they were wrestling.

He heard Constable Nolan yell loudly, “here, here”. He saw the suspect on the ground with his left arm under his body. This individual was kicking his feet, rolling side to side and not releasing his arm. Constable St. Onge believes he arrived first after Constable Nolan. He again describes Constable Taylor as being on his right, trying to get A.L.’s arm out from under him. [ 31 ] Constable St. Onge testified that he also attempted to get A.L.’s left arm out from underneath him but was unsuccessful in doing so.

He therefore delivered three to five closed fist strikes to the back left side of A.L.’s head using his right hand. When A.L. still did not allow his left hand to be pulled from underneath his body, Constable St. Onge testified that he took out his OC spray and deployed it to the forehead of A.L. Almost immediately A.L.’s arm came out and he was handcuffed and contained. [ 32 ] On cross-examination, Constable St. Onge was asked how hard had he delivered the strikes to A.L. Quite candidly, he testified that he had struck him as hard as he could to effect his purpose. [ 33 ] Constable St.

Onge denied delivering the blows and OC spray to A.L. as retribution or punishment. Instead, he asserted that there was a danger A.L. could be concealing a weapon underneath him and he had to be handcuffed and contained as soon as possible. This in spite of the number of officers in the immediate vicinity. The overall tenure of the evidence was that his hand had to be brought out and handcuffed before turning A.L. over as they risked him having a weapon concealed underneath him. ISSUES

1. Were there reasonable and probable grounds to effect the arrest on A.L.? 2. Was Constable St. Onge ’s use of force justified in the circumstances, and was the force used reasonable in the circumstances? 1. Were there reasonable and probable grounds to effect the arrest on A.L.? [ 34 ] The Crown has graciously, and I think quite rightly, conceded that all of the officers had reasonable and probable grounds to effect the arrest on A.L. 2. Was Constable St. Onge ’s use of force justified in the circumstances, and was the force used reasonable in the circumstances? [ 35 ]

Section 25 of the Criminal Code of Canada provides protection for persons administering and enforcing the law.

Section 25 states as follows: s. 25(1) Everyone 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. . . .

(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 is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self- 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 cause death 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 of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous

bodily harm; and (

e) the flight cannot be prevented by reasonable means in a less violent manner. . . . [ 36 ] Counsel for the Defence in their brief cite the case of R. v. Nasogaluak , 2010 CarswellAlta. 268, 2010 SCC 6 , J.E. 2010 - 403, [2010] A.W.L.D. 786 . In that case, the Supreme Court of Canada commented on the requisite belief of a police officer invoking the protection of s. 25(1) of the Criminal Code .

At para. 34, LeBel J. in writing for the Court states: [34] Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter.

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

If force 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 the limitations described above and to the requirement that the flight could not reasonably have been prevented in a less violent manner. [ 37 ] In determining whether the force used by Constable St. Onge was justified and reasonable, it is necessary to consider all of the circumstances as they existed at the time, and as Constable St. Onge believed them to exist. In doing so, I must keep in mind that I cannot view the circumstances faced by Constable St.

Onge in the calmness of the courtroom, but rather I must try to examine the events that took place on the evening of May 27, 2012. [ 38 ] In looking at the circumstances faced by Constable St. Onge at the time of the incident, it is necessary to make several findings of fact and assess the credibility of some of the witnesses. In the first instance, I will state that I do not believe some of the evidence of A.L. Most importantly, I do not believe him when he stated he was trying to remove his left arm from underneath his body.

At least two officers had attempted to get his arm out from underneath him, when there was very little weight on his back. Simply stated, A.L. was resisting bringing his arm out. He had chosen to run from the officers when he knew he was being pursued. Also, he did not follow the commands made to him by the officers. As well, I am satisfied on all of the evidence that A.L. continued to resist, was struggling and was attempting to get away from the officers. [ 39 ] Much of A.L.’s credibility was diminished when he professed to wanting to get to his grandfather’s house so he could get a ride back to the care home.

He had been absent from the care home from early that morning to after 10:00 p.m. that night. During that time he had been associating with a known gang member. I am also satisfied that at the time of this incident he knew people who lived at the residence where Constable St. Onge was initially assaulted with pepper spray. [ 40 ] With regard to A.L.’s assertion that he was struck at least ten times, and no more than fifteen, this is simply not believable. The time it would have taken to administer those blows is not reasonable in the circumstances. As well, I accept Constable St.

Onge’s evidence that he struck A.L. three to five times. [ 41 ] Another issue that assists me in determining A.L.’s lack of credibility is his change of evidence on the issue of when he was OC sprayed by Constable St. Onge. On examination-in-chief he asserted that he had been sprayed after his left arm was removed from underneath his body. On cross-examination, he agreed with Defence counsel that he had been sprayed prior to his arm coming out from underneath his body. This is consistent with the evidence of Constables St.

Onge and Taylor, and I find as a fact that A.L.’s arm did not come out from underneath him until he had been OC sprayed. [ 42 ] It is also necessary to look at the inconsistencies in the evidence of the officers who testified for the Crown. That is not to say that any of them were attempting to mislead in any fashion. Rather, each of them were involved in an emergent situation, and each of them were focussing on the individual whom they believed may have had a weapon. In assessing all of the evidence, I am satisfied that Constable Chad Nolan was in error when he testified that Constable St.

Onge positioned himself by A.L.’s right shoulder and upper arm

area. The evidence of the other officers, including Constable St. Onge, convinces me that Constable St. Onge actually located himself by the left shoulder of A.L. I am satisfied as well that Constable Taylor was positioned on A.L.’s left side, immediately to the right of Constable St. Onge. Also, I am satisfied that Constable Taylor arrived at the scene prior to Constable St. Onge. This is important, because I believe from all of the evidence that Constable Taylor had first tried to extract A.L.’s left arm from underneath his body without success.

I am further satisfied that Constable Taylor yelled to the other officers that he could not get A.L.’s arm out from underneath him, and therefore Constable St. Onge knew of his failed attempts to remove the arm. [ 43 ] On all of the evidence, I am satisfied that this had occurred prior to Constable St. Onge attempting to remove A.L.’s left arm from underneath his body. It was only after this that Constable St. Onge delivered the three to five blows to the left side of A.L.’s head. He then again attempted to remove A.L.’s arm from underneath his body and was unsuccessful.

At that point he pulled out his OC spray and administered a blast to the top of A.L.’s forehead. Immediately, A.L.’s left arm came out from underneath him, was put behind his back and handcuffed. At that point, A.L. was contained. [ 44 ] In assessing whether this was reasonable in the circumstances, I must consider the evidence provided by Constable St. Onge with regard to the use of force continuum. Constable St. Onge believed on reasonable and probable grounds that A.L. was the person who had assaulted him previously. He knew that A.L. had attempted to flee from the police by running from them.

He knew that A.L. was not responding to vocal commands from the officers. In the circumstances, it was reasonable to believe that A.L. was squirming, resisting the officers and attempting to escape. Constable St. Onge was justified in believing that A.L. had to be contained by bringing his left arm out from underneath his body and handcuffing him behind his back. All of the officers, including Constable St.

Onge were aware that A.L. could be armed with a weapon. [ 45 ] It is not reasonable in the circumstances to expect that the officers should have rolled A.L. onto his back in order to have his left arm brought out from underneath him. Each of the officers believed that his left hand could have contained a weapon. I am satisfied that the best course of action in the circumstances was to extract his left hand, handcuff it and then lift him to his feet. [ 46 ] Keeping this in mind, Constable St.

Onge was justified in delivering blows to the side of A.L.’s head after attempts had been made to remove his left arm from underneath his body. When those blows did not succeed in allowing them to extract his left arm, the use of the OC spray was justified in the circumstances that existed at the time. I accept Constable St. Onge’s evidence that he progressed through the use of force continuum and only resorted to higher levels of force when necessary to do so. [ 47 ] The Crown must prove beyond a reasonable doubt that Constable St.

Onge is not entitled to the statutory defence set out in s. 25 of the Criminal Code of Canada . Counsel for Constable St. Onge cites the case of R. v. Desjourdy , 2013 ONCJ 170 , 106 W.C.B. (2d) 368 at para. 95 . Paragraph 95 concludes as follows: The Crown bears the burden of proving beyond a reasonable doubt that the accused is not entitled to the statutory defence set out in s. 25 . I accept this reasoning and I find that the Crown has not met that burden. Conclusion [ 48 ] Constable St. Onge is not guilty of both counts on Information #39987110. _________________________ D. O’Hanlon, J