R. v. Wang, 2011 ONCJ 766

COURT FILE No.: Toronto Region – Metro East Court (Scarborough) DATE: 2011·08·23 Citation: R. v. Wang , 2011 ONCJ 766 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — YUE HAI WANG and SHAOYUN ZHAI Before Justice M.

Wong Heard on April 11, 12, 14 and June 22, 2011 Reasons for Judgment released on August 23, 2011 Lisa Will .................................................................................................................... for the Crown Daniel Stein ......................................................... for the accused Yue Hai Wang and Shaoyun Zhai WONG, J.: [ 1 ] On November 10, 2009, an Enbridge gas employee came to the home of Mr. Yue Wai Wang and Ms. Shaoyun Zhai, to see if the couple had complied with a work order which required them to do repairs on their house.

Previously on September 22, 2009, Enbridge had advised Mr. Wang and left a warning tag instructing the occupants that they had 45 days to improve ventilation for their heating system. A follow up letter had also been sent. It is alleged that the husband, Mr. Wang, assaulted the Enbridge employee. After police arrived and interacted with Mr. Wang, the officers believed Mr. Wang needed to be apprehended under the Mental Health Act . While attempting to apprehend the accused, there was a physical altercation between the defendant and police. Mr.

Wang is charged with one count of Assault relating to the Enbridge worker; two counts of Assault Resist Arrest; and Assault Causing Bodily Harm. It is further alleged that the wife, Ms. Zhai, intervened and she is charged with Obstruct Police and Assaulting a Peace Officer While in the Execution of his Duties. [ 2 ] The Crown called three witnesses – the Enbridge employee and the two officers. The Defence called both of his clients. [ 3 ] There are multiple factual findings and credibility determinations in this case. [ 4 ] The following background is not disputed: Background: [ 5 ] Mr. Wang and Ms.

Zhai lived with 3 daughters – ages 12, 2 and 3 months old, at townhouse in Toronto. The couple operated three retail stores that sold leather goods and handbags. They do not have prior criminal records. [ 6 ] On September 22, 2009, an Enbridge worker advised Mr. Wang that the ventilation in the furnace room needed to be improved and that he had 45 days to do the repairs. A follow up letter was sent to the residence dated October 15, 2009, which made reference to the September 22 nd warning.

The letter marked as an exhibit in the trial, outlined that the occupants had 45 days from September 22 nd to complete the necessary repairs or the gas would be shut off. Both Mr. Wang and Ms. Zhai testified they understood the warnings and made efforts to contact a company certified to do the work. However, by November 10, 2009, the date of the allegations before the court, they had not done the repairs. The defendants testified that the company that were to do the renovations had re-scheduled a home consult because Mr. Wang’s wife and children were sick.

It was around the time of the swine flu epidemic in Toronto and the workers wanted to wait until the Wang family was healthy. [ 7 ] On November 10, 2009, Dino Kouretsos, a 23 year veteran of Enbridge Gas, arrived at the Wang residence on what is a called “a red tag follow up”. Mr. Kouretsos was there to see if the repairs had been done. He arrived on the 49 th day of the 45 day notice. At 5:30 p.m., Mr. Kouretsos knocked on the door and Mr. Wang answered wearing only his pyjamas. Mr. Kouretsos asked Mr. Wang if the work repairs had been done, and it is not disputed that Mr. Wang replied, “No”. Mr.

Wang begged the complainant not to shut off the gas because his family including the baby was sick with the flu. Mr. Kouretsos told Mr. Wang he had no choice and proceeded to the backyard and shut off the gas. In court, the witness said it was a safety issue because without proper ventilation, there was a risk of carbon monoxide build up and combustion.

[ 8 ] Throughout all of his interaction with the accused, even according to Mr. Wang, Mr. Kouretsos expressed sympathy, but said he was only doing his job. [ 9 ] As Mr. Kouretsos was leaving the backyard after having shut off the gas, Mr. Wang came outside dressed only in his pyjamas and slippers and demanded that the complainant turn on the gas. Mr. Kouretsos again explained that he was only doing his job, but Mr. Wang blocked him as he tried to return to his truck. It is the Crown’s position that Mr. Wang assaulted the complainant by pushing him and applying physical force to prevent him from leaving.

The Defence position is that Mr. Wang did not apply any physical force. However, in the alternative, the defendant said if he did have physical contact with the complainant, it may have been when he slipped and the contact was unintentional. [ 10 ] Next, it is agreed that a neighbour called out and asked if she should call the police. Both Mr. Kouretsos and Mr. Wang heartily agreed. The 911 tape was recorded and marked as an exhibit in this trial. On the tape, Mr. Kouretsos complained to the 911 operator that Mr. Wang was repeatedly following, pushing, grabbing and blocking him. Mr.

Kouretsos on the 911 tape is heard telling Mr. Wang, “Do not touch me, do not grab me”. The 911 operator is heard telling Mr. Wang the same – that he cannot touch the Enbridge worker. Mr. Wang had his turn speaking to the dispatcher. Mr. Wang shouted loudly telling her that his family was all sick and, to paraphrase, that by shutting off the gas his family was being murdered. [ 11 ] It was a cold November day, and both Mr. Kouretsos and Mr. Wang stood outside waiting patiently for over a half an hour. Mr.

Wang was barefooted as his slippers had fallen off during his interaction with the complainant. [ 12 ] When police arrived, they first spoke to Mr. Kouretsos who explained the 45 day notice and that he had shut off the gas. Officers next tried to speak to Mr. Wang. According to the two officers and Mr. Kouretsos, Mr. Wang did not appear to be very well. The three witnesses described Mr. Wang as being very sick like he had a cold or the flu. The two officers both said the defendant was sweating profusely in spite of the cold outside temperature and speaking incoherently. Mr.

Wang’s first language is Cantonese, but the Crown witnesses all said the defendant spoke enough English to convey that he and his family were sick and he wanted the gas to be turned back on. Mr. Wang testified he was not sweating and was not sick. Only his wife and daughters were sick, but not him. He said if he was sweating, it was when he was going back and forth with Mr. Kouretsos. [ 13 ] The officers told Mr. Wang that they could not do anything to get his heat turned back on. According to all three Crown witnesses, Mr. Wang was very upset and frustrated. Mr.

Wang shouted that if his heat was not turned back on, then he would go on the street and kill himself. According to Mr. Kouretsos, Mr. Wang turned and began to walk quickly towards Brimley Road, a busy thoroughfare in Toronto. The officers described Mr. Wang as running. The officers said they had to think fast and someone came up with the ruse of telling Mr. Wang that Mr. Kouretsos was going to turn back on the heat, so the defendant ought to return. Mr. Kouretsos testified this was his idea. [ 14 ] Mr. Wang denies he ran towards the roadway.

He says he walked down to a neighbour's house to get some help, but the neighbour shut off their lights and ignored him. However, Mr. Wang agrees that he returned to the officers because he understood that the Enbridge worker was going to turn on the heat. [ 15 ] According to police, they had reasonable and probable grounds to believe Mr. Wang was a danger to himself and that he should be apprehended under

section 17 of the Mental Health Act . The officers decided it was safer to take Mr. Wang into custody in the confines of his backyard rather than on the street. Hence, they lied and told Mr. Wang that his power was being restored when it was not. [ 16 ] The officers testified that once Mr. Wang was safely in his backyard, they told him that they were apprehending him under the Mental Health Act . The officers testified Mr. Wang was yelling and screaming incoherently. Mr. Wang bolted towards the rear sliding doors of the house trying to get inside. The officers grabbed him and a physical melee ensued.

All three of the Crown’s witnesses testified Mr. Wang struggled and thrashed with the officers as they tried to subdue him. Patio furniture was upended and at some point, all three parties were on the ground. According to all three Crown witnesses, Mr. Wang’s wife also got involved by jumping on the back of one of the officers. The struggled ended with one officer receiving serious injuries to his hand and both Mr. Wang and Ms. Zhai being arrested with the charges before the court. [ 17 ] Mr. Wang believed the police and returned to his backyard because the heat was being turned back on. Mr.

Wang said he opened the patio door to go inside because he was very cold. His 2 year old daughter was crying and his wife was coming down the stairs. He explained to his wife that everything was now okay– that Enbridge had originally turned off the heat but was now turning it back on. Mr. Wang said he was part way inside the house and was about to pick up his child, when police grabbed him and said he was under arrest. Instinctively, Mr. Wang said he swung his arm to get him off. One officer grabbed his neck, causing Mr. Wang to take one or two steps backwards, and he fell to the ground.

Neither of the officers said anything to Mr. Wang prior to grabbing him. [ 18 ] Ms. Zhai testified she came downstairs and saw her husband with two people who looked like police but she thought they were “fake” police and they were there to rob them. She was shocked when they dragged her husband outside. Ms. Zhai ran outside shouting that she was a taxpayer and demanding to know what was happening. Ms. Zhai denies jumping on a police officer. Instead she testified she was knocked over when one officer fell over a chair, which knocked over her husband, who in turn fell into her. Ms.

Zhai said she fell on top of a police officer but it was an accident. [ 19 ] It is not disputed that P.C. Brett Ward suffered either a very bad sprain or a hairline fractured to his thumb that was put in a cast. He was off work for 20 days recuperating. P.C. Aman Singer twisted his knee severely and tore a ligament. He, too, was off work for 20 days and returned to work on light modified duty. Officer Singer completed physiotherapy but even today still feels a bit of pain when he exercises or runs. Analysis: [ 20 ] The starting point in this case is to make findings of credibility.

The leading case on credibility, as counsel knows, is R. v. W.D [1] . It begins by indicating that a judge, or a jury, need not firmly believe or disbelieve any particular witness or a set of witnesses.

A judge can accept or reject some, all, or none of any particular witnesses’ testimony. [ 21 ] Further, a judge must apply the following test: [ 22 ] First, if I accept the defence evidence that he did not assault Mr. Kouretsos or the police officers then obviously Mr. Wang must be acquitted. Similarly, if I accept the evidence of Ms.

Zhai that she did not intentionally apply force on the officer, then she must also be acquitted. [ 23 ] Secondly, if I do not believe the defence testimony, I could still be left with a reasonable doubt, and again I must acquit the defendants. [ 24 ] Thirdly, even if the defence evidence does not raise a reasonable doubt, I have to consider all of the evidence including the evidence adduced by the Crown to satisfy myself that the Crown has met its high burden and has proven beyond a reasonable doubt all of the essential elements of the offences against the defendants. [ 25 ] There is also the fundamental principle that everyone is presumed innocent until their guilt has been proven beyond a reasonable doubt, and the onus is on the Crown throughout the trial.

The Defence Evidence: [ 26 ] I will first begin by examining the Defence evidence because if the evidence of Mr. Wang and Ms. Zhai is accepted, it will offer them a defence to charges. [ 27 ] Overall, I found Mr. Wang was very argumentative and evasive. He had difficulty answering questions directly, which I find was not due to any language or translation problems. For example, one of the themes that ran through the trial was Mr. Wang’s ability to understand and express himself in English. [ 28 ] It was suggested that perhaps Mr.

Wang did not understand or appreciate that they had only 45 days after September 22 nd to improve the ventilation in their home or risk the gas being shut off. This turned out to be a non-issue because both Mr. Wang and his wife eventually conceded during cross examination that they understood the initial caution and the subsequent written notices. At page 58 of the transcript from April 12, 2011, Mr. Wang agreed Enbridge notified him twice that he was required to finish the repairs in 45 days - the first time, was face-to-face and the second time was by letter. [ 29 ] Yet Mr.

Wang quarrelled unnecessarily with the Crown who suggested that he understood the notice. Mr. Wang said he has been in Canada since 2002 and he and his wife have 3 retail stores in large downtown malls. However, Mr. Wang was loathed to acknowledge that he had enough working English to hire employees or place product orders. Mr. Wang’s position was that his English is so limited that he cannot speak to his store employees who, according to Mr. Wang, do not speak English but Indian, Thai and Russian. [ 30 ] Moreover, Ms.

Zhai testified once she read the letter from October 15, 2009, reminding them of the deadline, she called her husband immediately and discussed it with him. They even spoke to a renovator who was doing work for the couple, who were busy opening a new retail outlet. The renovator’s boss reviewed the contents of the letter with them. Mr. Wang and Ms. Zhai decided not to go with the renovator’s company because they were not certified and they did not want to risk doing all the repairs only to have Enbridge say it was insufficient. The couple even went to Home Depot to investigate doing the repairs themselves.

Finally, after searching the internet, Mr. Wang found a company who were certified and who could come for a home inspection, but not before the 45 day deadline. [ 31 ] It was clear from both of their testimony that Mr. Wang and Ms. Zhai understood they had 45 days from September 22, 2009, to do the necessary repairs or risk their gas being shut off. [ 32 ] Mr. Wang also argued with the Crown who suggested that he told Mr. Kouretsos he had not “finished” the work as opposed to having not done the work. Even after re-reading the transcript, I am not sure I understand the distinction Mr. Wang was attempting to make.

Mr. Wang appeared to be unable to admit that he told Mr. Kouretsos that he had not made the necessary repairs. [ 33 ] It turns out that Mr. Wang simply did not agree with Enbridge that his house needed repairs. Mr. Wang testified that as a chemical engineer, he believed it was not necessary for his gas to be shut off because the problem was not dangerous – combustion was not going to happen, and Mr. Wang felt that Enbridge was simply trying to make more money. [ 34 ] Through his counsel, the Defence position is that the police officers and Mr. Kouretsos exaggerated or were mistaken that Mr.

Wang appeared sick, confused and suicidal. As such, the officers did not have reasonable grounds to apprehend Mr. Wang under the Mental Health Act . Mr. Wang disputed that he was sick and sweating profusely even though he was dressed only in pyjamas and waited barefooted for over 30 minutes outside in November. Mr. Wang’s position was that only his family was sick and not him. Again after much debate with Crown counsel, Mr. Wang agreed he told the 911 dispatcher that everyone in the home was sick, which would have included him. Mr.

Wang said he wanted to make the situation sound more desperate to the operator so he exaggerated. Mr. Wang testified he was not sweating as the officers described, but if he were sweating then likely the Enbridge worker would have been sweating, too. [ 35 ] Mr. Wang described Mr. Kouretsos as “cold blooded” but later said the complainant expressed sympathy for his situation and told him that he was only doing his job. He said he was acting rationally although he admitted telling the neighbour who called 911 that Mr.

Kouretsos wanted “to kill my family”. [ 36 ] When confronted with the 911 tape which was played in court, Mr. Wang testified he did not understand what was said on the tape. Mr. Wang quarrelled with the Crown about whether he used the word “murder” on the 911 tape. In examination in chief, he said he never used the word “murder’ when speaking to the operator, but Mr. Wang is heard clearly on the tape saying “murder”.

[ 37 ] When confronted with Mr. Kouretsos’ evidence, Mr. Wang complained that he did not understand the complainant’s testimony because he could not understand the fully accredited Cantonese court interpreter. Such a statement threatened to derail the trial which by this point was in its second day, and the court heard evidence on a voir dire . Eventually, the trial was adjourned and I ordered a transcript of Mr. Kouretsos’ testimony and had copies of his evidence sent to both Defence and Crown counsel. When the case resumed some months later, counsel for Mr.

Wang indicated that his client had reviewed the transcripts and Mr. Wang understood all of the evidence at his trial. Mr. Wang acknowledged the same on the record. [ 38 ] During cross examination, Mr. Wang also embellished his testimony adding that when police first arrived and he approached them, the officers told him to “back off”. Later, while he was being arrested, he testified that police were kicking him in the head. There is no evidence of physical injury consistent with Mr. Wang being kicked in the head. Mr.

Wang also testified that police told him, as they dragged him to the cruiser, that he would lose his whole family. [ 39 ] Overall, I found Mr. Wang to be argumentative, inconsistent and manipulative. I do not accept his evidence to the extent that it raises a reasonable doubt on either the first or second prong of the W.D . analysis. As such, I will consider the whole of the evidence including the testimony of the Crown’s witnesses. [ 40 ] As for Ms.

Zhai, she gave her evidence with a little more candour admitting that when she first saw her husband with police, she immediately thought they were “fake” police and they were being robbed. She denied jumping on the police officer’s back in an effort to stop him from arresting her husband. Her claim that she accidentally fell on top of a police officer when her husband was knocked to the ground and he bumped into her is inconsistent with the evidence of the Crown’s witnesses. As such, the court is entitled to consider the whole of the evidence before making findings of credibility.

The Crown’s Evidence: [ 41 ] By all accounts, Mr. Kouretsos acted very professionally and sympathetically towards Mr. Wang. Mr. Kouretsos gave his evidence in a very straightforward manner – he answered all questions and agreed with many of Defence counsel’s suggestions including that Mr. Wang repeatedly told him that his family was sick and the accused begged him not to turn off the heat. [ 42 ] On the 911 tape, Mr. Kouretsos sounded calm, reasonable and articulate on the phone. He answered the operator’s questions with measured emotion – Mr. Kouretsos was not screaming or sounding hysterical.

During this call, Mr. Kouretsos complained to the dispatcher that Mr. Wang was pushing and grabbing him. Mr Kouretsos is heard on the tape telling Mr. Wang not to touch or grab him. The complainant did not exaggerate his level of fear for his safety to the 911 operator nor to the court. He did not complain then or in court of any physical injury. [ 43 ] Mr. Kouretsos’ version of events was not largely challenged in cross examination. Defence counsel asked Mr. Kouretsos questions about his understanding of his authority under the Public Utilities Act , the legislation which gave him authority to be on Mr.

Wang’s property and the witness did his best to answer. Daniel Stein, counsel for both defendants, quickly properly submits Mr. Kouretsos is a reliable and honest witness. [ 44 ] Counsel submits Mr. Kouretsos’ evidence differs from the police officer’s testimony in at least four areas. [ 45 ] First, Mr. Kouretsos did not describe Mr. Wang as sweating, let alone sweating “profusely”, as described by both officers. Mr. Kouretsos stated that Mr. Wang “seemed like he was sick” as if he were suffering from a cold or the flu and that the defendant’s voice was “harsh”. Mr. Kouretsos said it was clear to him that Mr.

Wang was very sick. [ 46 ] Secondly, Mr. Kouretsos did not describe Mr. Wang as “running” towards the roadway, but rather “moving at a fast pace – like a fast walk”. In cross examination, Mr. Kouretsos agreed he did not hear what exactly Mr. Wang was saying as he moved quickly 50-70 feet away from him. Mr. Kouretsos could not recall what exactly Mr. Wang said because of the distance and what he described was the defendant’s “choppy English”. Mr. Kouretsos agreed he did not know where Mr. Wang was going and he agreed the defendant might have been going to a neighbour. However, Mr.

Kouretsos added that it was obvious that Mr. Wang was getting his point across strongly that he was very frustrated and the police were concerned that Mr. Wang was going to harm himself or someone else. He said he heard the police say that they were not going to let Mr. Wang run in front of a car. [ 47 ] The third discrepancy between Mr. Kouretsos’ evidence and that of the officers is that, according Mr. Kouretsos, it was his idea to call Mr. Wang back from the street by telling him that his gas was going to be turned back on. The officers said it was their idea. [ 48 ] Fourthly, Mr.

Kouretsos said he was the first in the backyard and watched as the accused and the police got into a very physical altercation. The officers stated they did not follow Mr. Kouretsos into the backyard. However, P.C. Singer remembers seeing Mr. Kouretsos in the backyard at some point during the physical confrontation with Mr. Wang. [ 49 ] While there are areas where Mr. Kouretsos’ evidence differs from the two officers’ testimony, there are also substantial areas of agreement. [ 50 ] Mr. Kouretsos heard Mr.

Wang say he was “going to run in front of the road” and that was why the complainant suggested that he pretend to be turning back on the gas. [ 51 ] Mr. Kouretsos stated Mr. Wang became very aggressive when the officers followed Mr. Wang into the backyard and one officer touched the accused. Immediately, the defendant resisted and Mr. Kouretsos said he heard the officer say, “don't resist, please don’t resist”. Mr. Kouretsos described Mr. Wang as becoming very aggressive and pulling away. It was his belief that the police were trying to prevent Mr. Wang from running away. Mr.

Kouretsos said the defendant and the police were “flopping” all over the backyard – toppling over patio furniture and careening into the fence. He described Mr. Wang wrestling with the two officers who were having a tough time restraining him. One was on top of him and the other officer was trying to control his feet.

[ 52 ] Mr. Kouretsos said he saw a female, he presumed was the accused’s wife, come out of the patio door and jump on the back of one of the two officers (he thought the stockier blonde haired officer). The police officer said, “She’s choking me”, and the constable let go of Mr. Wang’s feet and tried to get the woman off of his back. At this point, Mr. Kouretsos said everyone was on the ground. Mr. Kouretsos said he backed away and just watched. After the parties were subdued, Mr.

Kouretsos noticed one of the officers having difficulty walking. [ 53 ] As for the evidence of Police Constables Brett Ward and Aman Singer, Defence counsel did not substantially challenge their testimony. Counsel established that when the officers first arrived at the scene, they accepted Mr. Kouretsos’ position that he had to shut off the gas because of the outstanding work order and did not wait to hear Mr. Wang’s version of events. Counsel suggested that the police did not inform themselves as to whether Mr. Kouretsos had any right to enter on Mr. Wang’s private property and whether he was a trespasser. P.C.

Ward said he was there to investigate an allegation of an assault which he had received from the 911 dispatcher and they did not have a chance to speak to Mr. Wang before he bolted towards the roadway. Constable Ward said that as soon as Mr. Wang bolted towards the street, it became a different investigation. P.C. Ward opined that, even if Mr. Kouretsos had trespassed on Mr. Wang’s property, it still would not justify the defendant trying to kill himself. [ 54 ] Both officers agreed Mr. Wang was asking them to help him because his family was sick and the gas had been turned off. However, P.C.

Ward disagreed with the Defence suggestion that Mr. Wang’s behaviour was consistent with the defendant being upset and frustrated with his gas being turned off and someone coming onto his private property without permission – as opposed to suffering from a mental illness. Constable Ward testified he thought Mr. Wang might be suffering from some kind of excited delirium although he could not articulate what that was or its symptoms. Both officers said Mr. Wang was sweating profusely even though it was cool outside and he was underdressed and was bare foot. P.C. Singer agreed with Defence counsel that Mr.

Wang spoke simplified English, but both officers said the defendant was saying things they could not understand. Both officers heard Mr. Wang state that he was going to kill himself and both saw him run towards traffic. Hence, they formed reasonable grounds to believe that Mr. Wang was a danger to himself and the grounds to apprehend him under the Mental Health Act . [ 55 ] I accept the evidence of Police Constables Ward and Singer. Both officers gave their answers in a very straightforward and fair manner. Neither officer was argumentative with Defence counsel suggestions.

Their evidence was clear and coherent, and any slight discrepancies in their evidence can be explained because events unfolded quickly. Their evidence in large measure was corroborated by Dino Kouretsos, who all parties agree was a very reliable and credible witness. [ 56 ] Overall, I accept the Crown’s evidence and I accept the officers and Mr. Kouretsos’ version of events. The Law: [ 57 ] Defence counsel raises several arguments: (a)Did the Enbridge employee have any grounds to enter Mr. Wang’s property? [ 58 ] The Defence argues that Dino Kouretsos was a trespasser because proper notice was not given to Mr.

Wang that an Enbridge employee was coming to shut off his gas. Counsel argues that his client did not give permission for Mr.

Kouretsos to enter his back yard and as a result he was unlawfully on his premises. [ 59 ] Section 50(1) of the Public Utilities Act [2] states: Any person authorized by the corporation for that purpose has free access, at all reasonable times, and upon reasonable notice given and request made, to all parts of every building or other premises to which any public utility is supplied for the purpose of inspecting or repairing, or of altering or disconnecting any service pipe, wire or rod, within or without the building, or for placing meters upon any service pipe or connection within or without the building as he or she considers expedient and for that purpose or for the purpose of protecting or regulating the use of the meter, may set it or alter the position to it, or any pipe, wire rod, connection or tap, and may alter or disconnect any service pipe. [ 60 ] Common sense and experience makes it reasonable that when someone contracts with Enbridge Gas, a public utility, that employees of the company can have free access at all reasonable times and upon reasonable notice to all buildings and premises.

In this case, it is not disputed that on September 22, 2009, the Wang family received oral and written notice that they had 45 days to complete repairs on their home’s ventilation system or else Enbridge would cut off their gas due to safety concerns. Moreover, on October 15, 2009, a letter was sent and received by the family who responded by making inquiries, albeit not quickly enough. [ 61 ] On the date in question, 49 days after the initial notice was given to the accused, Mr. Kouretsos attended and asked if the repairs had been completed and Mr. Wang said “no” they had not been finished.

It was 5:30 in the afternoon, the accused had been given reasonable notice that he had 45 days from September 22 to complete the repairs, and after 49 days the repairs had not been done. [ 62 ] I am satisfied Mr. Kouretsos was acting lawfully pursuant to the Public Utilities Act and that proper notice had been given. Mr. Kouretsos was not required to contact Mr. Wang in advance of his arrival on November 10 th to tell him that he was coming to shut off his gas.

It seems obvious that if the Act required such notice then very few occupants would wait at home for the worker to arrive and then consent to their gas or water being shut off. [ 63 ] As such, Mr. Kouretsos was lawfully on the Mr. Wang’s property and justified in his actions. [ 64 ] Furthermore, even if I were to have found that Mr. Kouretsos was a trespasser, it does not follow that the defendant had any right to physically restrain the complainant.

Section 41 of the Criminal Code allows a person who is in peaceable possession of a dwelling house or real property to use force to prevent any person from trespassing on the property or to remove the trespasser from the property, if he uses no more force than is necessary. In this case, Mr. Kouretsos – even if he was trespassing – was trying to leave the property and Mr. Wang was using physical force to stop him because he wanted the complainant to turn the gas back on.

[ 65 ] Where the evidence of Mr. Kouretsos differs from Mr. Wang’s version of events, I accept the Crown’s evidence. For the reasons already stated, Mr. Kouretsos was a very honest and credible witness. I accept his evidence that Mr. Wang followed and blocked his way while the complainant was trying to leave the property, and at one point, pinned him against the wall using both hands. This force, I find, was non-consensual and was not legally justified. I reject Mr.

Wang’s evidence that he did not physically block the complainant to prevent him from leaving and that, if there was any physical contact, it may have been when he slipped and caught himself on the wall. Mr. Kouretsos’ version was events was consistent with Mr. Wang’s own testimony that he was desperate to have his heat turned back on and did not want the Enbridge worker to go. Mr. Kouretsos’ testimony was also supported by the 911 tape, wherein he repeated his complaint to the dispatcher within minutes of the event, that Mr.

Wang had assaulted him. [ 66 ] As such, I find the Crown has proven count 1 on the information beyond a reasonable doubt, and Mr. Wang will be found guilty of Assault. (

b) Were the police acting properly when they were attempting to arrest the accused? [ 67 ] In this case, Defence counsel argues the police officers did not have reasonable and probable grounds to apprehend Mr. Wang under the Mental Health Act . Counsel submits Mr. Wang’s behaviour was consistent with him being upset and frustrated because no one was listening to him; but fell short of reasonable grounds to be apprehended. In the alternative, counsel argues that even if the police had the proper grounds to apprehend Mr. Wang, they did not have the power to arrest him. As such, if the arrest of Mr.

Wang was unlawful then he was entitled to resist an unlawful arrest. Further if the arrest was unlawful and the officer was not in the execution of his duty, then it flows that the charges against Ms. Zhai (the offences of Obstructing Police and Assaulting an Officer in the Execution of his Duty) have not been proven by the Crown because she was entitled to defend her husband. [ 68 ] Pursuant to

section 17 of the Mental Health Act (Ontario) , police have the authority to apprehend individuals who are acting in a dangerous and disorderly manner.

Section 17 reads as follows: Action by police officer: 17. Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,

a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;

b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or

c) has shown or is showing a lack of competence to care for himself or herself, and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

d) serious bodily harm to the person;

e) serious bodily harm to another person; or

f) serious physical impairment of the person, and that it would be dangerous to proceed under

section 16, the police officer may take the person in custody to an appropriate place for examination by a physician. [ 69 ] Police officers, when acting or purporting to act in their official capacity as agents of the state, only act lawfully if they act in the exercise of authority either conferred by statute or derived from their duties at common law. [3] R. v. Waterfield [4] is often relied upon as enunciating the test for the common law basis of police power.

The English Court of Appeal stated at p. 661: I n the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within [page14] specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person's liberty or property. If so, it is then relevant to consider whether (

a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (

b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty. Thus, while it is no doubt right to say in general terms that police constables have a duty to prevent crime and a duty, when crime is committed, to bring the offender to justice, it is also clear from the decided cases that when the execution of these general duties involves interference with the person or property of a private person, the powers of constables are not unlimited. [ 70 ] In this case, I am satisfied that P.C.

Ward and Singer were justified in their belief that Mr. Wang was acting in a disorderly manner such that the defendant had threatened to kill himself and then acted upon that threat by running towards moving traffic; as well, the police were reasonable in their opinion that Mr. Wang was suffering from a mental disorder of some sort that would likely result in Mr. Wang causing serious bodily to harm to himself (if he were struck by a car). I find that the constellation of all of the

factors were such that Mr. Wang’s behaviour was sufficiently bizarre and dangerous that the police had to think and act very quickly. The officers should be commended for their fast actions which prevented Mr. Wang or others from getting hurt. [ 71 ] I also find that the officers’ grounds were not only subjectively but objectively reasonable. In considering the objective grounds for their belief, one only has to consider the evidence of Dino Kouretsos, who represents in this fact scenario, an objective third party “reasonable person”. Mr. Kouretsos was similarly alarmed by Mr.

Wang’s physical presentation and his threat to kill himself, that according to the witness, it was his idea to pretend to turn back on the gas. [ 72 ] I am satisfied the police were exercising their police power under statute as well as under the common law as per Waterfield, supra. [ 73 ] As such, the police were authorized to apprehend Mr. Wang pursuant to

section 16 of the Mental Health Act . However, I do accept Defence counsel’s submission that “apprehend” under the Mental Health Act , falls short of the powers to “arrest” under the Criminal Code . Neither counsel provided me any cases relating to what is the definition of “apprehend” under the

section 17 of the Mental Health Act ; nor could I find any cases myself. However, by choosing to use the word “apprehend” as oppose to “arrest” under the MTA , it seems logical that legislators did not intend to give police the same powers under the arrest provisions of the Criminal Code nor the same rights that flow under the Charter to a person under arrest. [ 74 ] I accept the evidence of Officers Ward and Singer that they had grounds to apprehend Mr. Wang and advised him they were taking him into custody. However, Mr. Wang is charged pursuant to section 270(1) (

b) of the Criminal Code ; and specifically the information reads, “…did assault with intent to resist the lawful arrest of himself”. By specifying section 270(1)(

b) of the Code and then particularizing “lawful arrest” as opposed to section 270(1)(b) “detention” (and the Crown not seeking to amend the information), I agree with Defence counsel that the evidence establishes the police were not trying to “arrest” Mr. Wang. I find the proper

section under which Mr. Wang ought to have been charged should have been section 270(1)(a) – Assault peace officer engaged in the execution of his duty. [ 75 ] As such, I agree with Mr. Stein that the Crown has failed to prove counts 3 and 4 because, even by their own evidence, P.C. Ward and P.C. Singer did not have the grounds to arrest him. [ 76 ] However, common sense and logic suggest that police are entitled to physically apply force to a person in order to apprehend them and take them into custody under

section 17 . How else could an officer “apprehend” a suspect if not by taking physical control especially a person suffering from a mental illness and acting dangerously? As such, I find that P.C. Ward and Singer were entitled to physically take hold of Mr. Wang in order to take him into custody. [ 77 ] I am also satisfied that police were authorized to pursue Mr. Wang as he tried to escape inside the house. The urgency of their concerns for the safety of Mr. Wang did not evaporate just because the defendant was seeking refuge in his home.

Under these exigent circumstances, their authority to apprehend did not end at threshold of the patio door. It would have been unreasonable for police to have stopped and gone to get a warrant to apprehend Mr. Wang, as counsel suggests. The officers’ concerns for Mr. Wang who was acting suicidal and dangerous, continued as Mr. Wang tried to enter the home – concerns for both the safety of the defendant and the other occupants. [ 78 ] Furthermore, I find the officers were entitled to lie to Mr.

Wang that they were going to turn on his gas if he returned with them to the backyard; and that the police lying to the defendant does not vitiate his consent nor make the officers trespassers on the property. The Supreme Court of Canada in R.v.

Beaudry [5] recognized at paragraph 37 that applying the letter of the law to the practical, real-life situations faced by police officers in performing their everyday duties requires that certain adjustments be made. “ The ability – indeed the duty – to use one’s judgment to adapt the process of law enforcement to individual circumstances and to the real-life demands of justice is in fact the basis of police discretion”. [ 79 ] P.C. Ward and Singer were fast thinking and, I find, correct to consider that it was likely safer to apprehend Mr. Wang within the confines of his own backyard.

Obviously, if trying to apprehend Mr. Wang on the street failed then the defendant could easily have resumed his flight into traffic or find other ways to hurt himself and put others at risk. [ 80 ] I reject Mr. Wang’s evidence that he reacted instinctively when the officer grabbed him and that he did not take more than a step or two backwards before being dragged to the ground. Similarly I reject Ms. Zhai version of the officer falling to the ground and knocking over her husband.

Instead, I accept the evidence of Dino Kouretsos, who both counsel submit was a very reliable and credible witness, who described a much more prolonged struggle where police told Mr. Wang to stop resisting yet Mr. Wang kept fighting back. I accept the evidence from all three Crown witnesses that basically, to put it in the vernacular “all hell broke loose” and that during the struggle, P.C. Ward received injuries that constitute “bodily harm” within the definition of

section 2 of the Code . [ 81 ] I find the Crown has proven all of the essential elements of count 2 and Mr. Wang is found guilty of Assault Bodily Harm to P.C. Brett Ward. [ 82 ] Finally, with respect to Ms. Zhai and the remaining two counts of Obstruct Police Officer and Assault Police Officer Engaged in the Execution of his Duties both relating to P.C. Ward: I reject her version of events. Ms. Zhai testified she ran outside and saw her husband being beaten by the police.

The officer fell over a chair, which knocked her husband into her and she fell down – landing, as it so happened, on the back of a police officer. Ms. Zhai denied jumping on P.C. Ward’s back as he was attempting to subdue her husband. [ 83 ] Both officers and Mr. Kouretsos testified Ms. Zhai jumped on the back of the officer who had a hold of her husband. Mr. Kouretsos surmised Ms. Zhai was probably trying to get the officer to let go of the man. According to P.C. Ward, as he was trying to get a hold of Mr. Wang, Ms. Zhai jumped out through the patio doors onto his back and wrapped her right arm around her neck.

P.C. Singer testified he saw virtually the same thing. None of the witnesses were strongly challenged in cross examination and I find their evidence credible.

[ 84 ] Where the evidence of the Crown’s witnesses differs from Ms. Zhai, I accept the testimony of the police officers and Mr. Kouretsos for reasons already stated. [ 85 ] I do not accept Defence counsel’s position that the police were acting unlawfully; therefore, sections 39 and 41 of the Criminal Code relating to defence with claim or right or defence of real property does not afford Ms. Zhai a defence. I find that Police Constables Ward and Singer were properly engaged in the execution of their duty in apprehending Mr.

Wang under the Mental Health Act and were not, under those circumstances, trespassers on the property. I accept as fact that Ms. Zhai jumped on P.C. Ward’s back in attempt to obstruct him from executing his duty to apprehend her husband. [ 86 ] However, I am only to going to find Ms. Zhai guilty of Obstruct Peace Officer because the same set of facts underlies the offence of Assault Police Officer. Conclusions: [ 87 ] I am satisfied the Crown has proven the following: [ 88 ] Mr. Wang will be found guilty of Assault on Dino Kouretsos (#1) and Assault Causing Bodily Harm of P.C. Brett Ward (#2) [ 89 ] Ms.

Zhai is found guilty of Obstruct Peace Officer (#5) [ 90 ] Counts 3 and 4 will be dismissed. Count 6 will be stayed. Released: August 23, 2011 Justice M. Wong