R. v. Dunne, 2014 MBPC 60

CITATION: R. v. Dunne , 2014 MBPC 60 Date: 2014 11 13 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Mr. J. Ross ) for the Crown ) and ) ) ) Jonathan Robert Dunne ) Ms. L. Labossiere ) Mr. P. McKenna ) for the Accused ) ) ) Reasons for Decision delivered: ) November 13, 2014 HARVEY P.J. [ 1 ] The accused is charged with simple assault with respect to an incident that occurred within the Headingley Correctional Centre (HCC), while he was employed as a Correctional Officer (CO).

The alleged victim, Stephen Toews, was an inmate who declined to provide any information to the officers investigating the incident, and declined to provide his consent to the release of any medical information regarding his condition after the incident. The case is unusual in that the actions which are alleged to constitute the assault are not contested, for the most part. The issues to be determined are credibility, and whether the accused is protected by the application of sections 25 and/or 34 of the Criminal Code , if applicable.

To assist with that determination, the Court had the benefit of expert opinion evidence regarding training, the use of force, and the experts’ opinions of the incident itself. THE INCIDENT [ 2 ] As of Sunday, November 20, 2011, the accused had worked at HCC for twelve years, in various capacities and in various Units. He had received the initial standard training and some additional and refresher training over the years.

He had seen instances of violence within the institution, and seen and seized various forms of contraband, including so-called nuisance contraband, such as extra pairs of pants or shirts, and dangerous contraband, such as shanks. [ 3 ] Before continuing, I wish to note that there was considerable comment during the trial about the nature and adequacy of the training programs for correctional officers.

While relevant to the issue of the preparedness and ability of officers to respond to incidents within the institution, this is not the type of proceeding that allows for recommendations for change or enhancement of those programs. [ 4 ] On the date of the incident, the accused Dunne was working as the Acting Senior Unit Officer of the Intensive Supervision Unit, responsible for the overall operation of that Unit. Inmate Toews was being held in the Beta sub-unit of the ISR, one of five such sub- units.

Beta was an administrative segregation unit, called the “end of the line” for inmates that could not go anywhere else because of the nature of their crimes, problematic behaviours, violence, or because of gang membership. Despite that, inmates could earn additional free time out of their cells as reward for good behaviour. Inmates designated as Unit cleaners had even more time out of their cells. Dunne had worked with Toews previously, referring to him as ‘a repeat customer’ and knew that he was a gang member, with bad

behavioural problems, defiant of authority, very demanding and confrontational with staff. Despite that, Dunne testified that there he and Toews had a good working relationship, that there were no personal issues between them, and that as of November 20, 2011 there had been no physical confrontations between them.

As of the date of the incident, in fact, Toews had earned additional free time and was a unit cleaner, and was described by CO April Neufeld as “the best of a bad bunch” . [ 5 ] There was evidence that Beta was “unsettled” on the date in question, there having been attention directed by some inmates toward another charged with sexual offences. It was decided to move a problematic inmate off the Unit to try to calm things down. Apparently Toews was upset by the move, as it was reported that he had wanted off the Unit for some time.

Shortly after Dunne’s arrival for his 11:00 a.m. to 11:00 p.m. shift, Toews began yelling to get Dunne’s attention. During the subsequent conversation, Toews displayed his anger at not being moved out of the unit. Dunne tried to explain that he had tried to have him moved, but that Toews’ behaviour and gang affiliations were preventing the possibility. In response, Toews threatened to smash up the unit, including the TV and computer. Dunne described Toews as raising his voice and “puffed up” .

Dunne ordered Toews to “lock up in his cell” , effectively restricting his free time, which Toews did. [ 6 ] Dunne advised the remaining unit staff of what had happened, and asked them to monitor the situation, after which he left Beta and went to his office. [ 7 ] About forty-five minutes later, Dunne learned through a telephone call that Toews again was causing a disturbance and giving staff a hard time. It was decided that Toews would be moved off the unit to a holding cell (referred to as HC1) to isolate him and try to calm him, effectively putting him in a “time out” as stated by Neufeld.

A plan to effect that move was created, a plan that ignored some of the basics of their safety training and experience. One aspect of the plan was that Toews would be handcuffed in the front, rather than the rear, the reason being, as explained by Dunne, “so that he doesn’t get the impression that he’s getting moved straight to Alpha (also known as the hole, with 23 and ½ hours of lockdown per day)...as usually getting an inmate to rear cuff for that purpose is more of a fight” . Dunne’s role was to be to talk to Toews, to advise him of the move.

CO Ken Smigel was designated to handcuff the inmate, Neufeld was to be present to “offer support” , and CO Rae Stoughton was directed to stay out of sight, as part of Toews misbehaviour had involved abusive language directed at Stoughton. [ 8 ] When the CO’s moved to the cell door, Toews was standing directly at the small window of the door, appearing to be red-faced and “puffed up” , staring directly at Dunne in an apparent show of intimidation. Neufeld opened the food slot in the door and Toews was directed by Dunne to put his hands through for handcuffing.

Toews responded by saying, “Or what.” After another unsuccessful attempt at reasoning with Toews to get him to put his hands through the food slot, Dunne cautioned him that physical force and/or pepper spray would be used and showed Toews the spray. Toews reportedly laughed and stated to his cell mate that he “was not fucking with that stuff” , after which he put his hands through the food slot. The handcuffs then were applied by Smigel, thumbs up and in front of the body. [ 9 ] One of the officers signalled to the control area or ‘pod’ for the cell door to be opened, but it did not.

Another call or signal went unanswered. Several officers then turned to look directly at the pod, at which point the cell door opened and Toews came out of the cell, in a manner described by Dunne as “bursting out” . Other officers used different words to describe the manner in which Toews emerged, but they were of similar import. Regardless of the description of the manner of leaving the cell, Toews was immediately combative and resistant. He was taken to the ground and officers struggled to restrain and control him.

A call for help was made by Stoughton in the form of a Code 33, meaning “officer in immediate danger” . During the incident one officer was scratched on her arm and two had their glasses knocked off. [ 10 ] It was during the struggle that Dunne struck Toews with a series of blows, three or so knee strikes to the head or shoulder area, three or so punches to the head, and four or so knee strikes to an area lower on the back.

It is these blows that form the subject matter of the allegation of assault. [ 11 ] While this incident was unfolding, officers from elsewhere in the institution responded to the call for help, and upon arrival in Beta assisted in successfully subduing the inmate, including the application of leg shackles. [ 12 ] Toews was taken to HC1 by a group of CO’s with Dunne following. Once in HC1 Dunne told Toews to “sit the fuck down” and “asked him if he was happy” and “done” .

Dunne then noticed injuries on Toews and directed that photographs be taken. [ 13 ] A debriefing with all involved staff occurred and Dunne completed an incident report. Later, after Toews returned to the institution after having been taken for medical treatment, Dunne spoke with him, and completed another incident report.

THE EVIDENCE [ 14 ] The Crown called CO’s Neufeld, Smigel, Stoughton, Drew Riddolls (one of the officers who responded to the Code 33) and Brenda Steinthorson, and expert witnesses James Couvier, the Manager of Emergency Response for Manitoba Corrections, and Robin Kipling, the Unit Safety Officer for the Winnipeg Police Service. Jonathan Dunne testified on his own behalf and called as witnesses CO David Burt and expert witness Douglas Ashton. Correctional Officers [ 15 ] April Neufeld had worked as a CO for fifteen years as of the time of the trial, and with the accused for twelve years.

At the time of the incident, she had been working on Beta for about 18 months, and Dunne was her Supervisor. She was the first witness called and provided background details about the institution in general, the ISR, policies, and of course, the events of November 20, 2011. [ 16 ] Neufeld indicated her understanding that a Use of Force report is required when force is used against an inmate. Officers are required to report on what they saw, what they did, and why they did it.

She completed her report before watching the video of the incident. [ 17 ] On the day of the incident, Neufeld indicated that Toews was being disrespectful of Stoughton and that she, Neufeld, had told him

he was fired from his position as unit cleaner. As for the incident itself, at the cell door, Neufeld described Toews as “challenging” Dunne, staring at him, hands down by his sides, shifting from one foot to the other. She said he was “tensed up” , shaking and breathing rapidly. The inmate’s hands initially were in fists when first put through the slot, but were seen to be empty when ordered to open them. [ 18 ] Neufeld testified that Dunne and Smigel had control of either arm when Toews left the cell, before the scuffle.

After closing the cell door, she saw Toews on the floor and put a knee on his lower back, telling him to let go of his arms, which were clenched underneath his body. She described Toews as still being combative, kicking his feet and lifting his head. She directed Stoughton to call a code and to come and grab his legs. She said she had hoped Stoughton would call a code green, meaning “officer needs assistance” , given that the inmate was handcuffed. She said that Smigel was struggling with Toews’ arms and that she did not see what Dunne was doing. She told Toews to let go of his arms.

She described the waistband of Toews’ prison pants as having been halfway down his bum. She cannot recall whether the officers were communicating with each other. She saw no blows struck. And as of the day she testified, she did not remember feeling any imminent sense of danger. [ 19 ] The first person Neufeld saw responding to the code was CO Cory Grey. She said that she told him to “slow down, he’s cuffed” , so that the attending staff would know that the inmate’s movements were restricted.

She asked another officer to get the shackles, which were applied and the inmate was stood up. [ 20 ] Neufeld confirmed that her Incident Report does not mention having seen any blows struck, because she did not see any. Interestingly, and perhaps sadly, she stated that she did not know if she would have included that detail had she seen any blows struck, saying: I’ve never encountered anything like that before. I’d like to think that I’m a fairly honest person but as to actually putting those types of blows in a report, I don’t know that any of us would have.

Her stated reason for the indecision would be loyalty to a co-worker. [ 21 ] She reported having been in struggles with inmates, both handcuffed and not, and where staff had had to take the inmate to the floor, on numerous occasions throughout her career. And, she indicated that while it is difficult to compare one incident to another, and while this one went from nothing to something very quickly, it did not seem more dangerous.

She could not recall any previous incident during which blows were struck. [ 22 ] Neufeld also testified that when she saw the video of the incident she was surprised, her first reaction being “what the fuck was he thinking”. [ 23 ] Ken Smigel had worked with Dunne for approximately one year of his seven and a half years of service, four and one half years of which had been on the Beta Unit. He described it as working with the most challenging of inmates, in every aspect of every day. Smigel indicated that he had not had to fight with many inmates during his career.

He described Toews in particular as being very problematic, challenging officers on everything, and as being a showboat, even more so in the two weeks preceding this incident. [ 24 ] On the day at issue, he was aware that Toews had been yelling at Dunne during his free time and had been locked up early in his free time, and then was being very loud and disruptive, kicking his property bin, and being disrespectful to Stoughton. Accordingly it was decided to move Toews to HC1.

Smigel was to be the person to apply the handcuffs and maintain control of the inmate with a technique called a C clamp on the arm just above the elbow during the relocation. [ 25 ] Smigel confirmed many of the details of what occurred at the door, as described by Neufeld. He recalled having told the RCMP during the investigation that “ 110% of Toews focus was on Dunne; that it was like the other three of us were not even there”. He did note that when Toews put his hands through the food slot, they were “shaking extremely bad”.

Smigel indicated that seeing that gave him a feeling of unease, and that he thought that Toews was either extremely nervous or scared. It caused him to try to maintain control of the handcuffs by holding onto the chain between the cuffs. [ 26 ] Smigel described Toews as lunging at him as soon as the door opened, and raising up his arms, such that Smigel was not able to apply the C clamp. He and Dunne were able to get Toews to the floor, with Smigel keeping his right hand on the cuff chain.

Once Toews was on the floor, Smigel tried to control the inmate’s hands by pulling on the cuff chain to get him to stretch out and be prone on his stomach. He described Toews as resisting by pulling his hands inward and downward. Smigel described other actions he took to try to maintain control until the code responders arrived, including telling him to stop resisting, and stated that Toews was not able to break free. [ 27 ] Smigel was not aware that any blows had been struck during the incident, until he saw the video, nor did it ever cross his mind to strike the inmate.

He stated that when the inmate lunged at him, he felt he was in imminent danger, and that once they had the inmate on the ground he felt a sense of danger, but that it did not cross his mind that Toews might have had a weapon. However, in cross-examination he did confirm that he told the RCMP that “he was pulling his hands into his waistband...I didn’t know if he had a weapon or what he was trying to get a hold of” . He said that he did not hear anything during the incident, and that there was no communication between the officers.

He said that this incident was the first where he had had to take down an inmate, and that it “threw him for a loop” . He advised that afterward he felt like he had been beaten with a two by four and had suffered nightmares. He indicated that the only message he has received about striking an offender is that it is not okay.

When asked what he had been trained to do if an inmate had a weapon, he said that he was to call a code 33 and retreat as safely as possible. [ 28 ] Rae Stoughton had been a CO for three and a half years as of the date of her testimony, and approximately one and a half years as of the date of this incident. At that time, she was working on a part-time basis and Dunne was not her direct supervisor. Beta was not her primary assigned unit and she was not familiar with the inmates.

She recalled HCC as being absolutely full in November 2011, with lots of tension. [ 29 ] She detailed the disrespectful behaviour of inmate Toews toward her that led to the decision to move him. She did not provide many details of the beginning of the incident at the cell door, but did say that once the cell door opened, Toews “burst out” at staff. She

indicated that she backed away and twice called a code 33 on her radio, thinking he had broken free. While making the calls, she said she noticed that he was being restrained, but for his legs, so that was where she went to help. She got down on the ground and tried to hold Toews’ legs, which she was able to do for the most part. She could not see what the other CO’s were doing.

She recalled someone saying “stop resisting” . [ 30 ] Stoughton said that there was no talk at the debriefing session about blows having been struck, or why, although she stated that she could not recall much of the session, as “ her adrenaline was still pumping ”. [ 31 ] She said that she was not taught to use blows during her training, and that she had been told that doing so was “ an absolute last resort” .

She, like the others, had no real-time training, no training on how to defend herself if an inmate pulled a weapon (other than to retreat), or if she believed they might be reaching for a weapon. [ 32 ] Drew Riddolls had approximately five years experience as a CO at the time of trial, so approximately three years at the time of the incident. He was assigned to work in the main control pod of the ISU and was in the lunch room when the code 33 was called. Though not a designated code responder he immediately ran to Beta, which he estimated as taking about fifteen seconds.

He said he was the second person to arrive, after Cory Grey. He did not see any blows to the head as he arrived. He responded as he had been trained, trying to gain compliance, as he said, by grabbing a body part and trying to pin it. In this case, he pinned the inmate’s head to the floor. He described hearing staff telling the inmate to stop resisting. He said he did not hear anyone yelling “knife” or “shank” .

He also described seeing Dunne deliver four to six strikes with his knee to the lower back of the inmate. [ 33 ] During the debriefing session, no one asked about the knee strikes or explained why they were used. Riddolls indicated that situations where blows are necessary, when staff need to protect themselves, do not happen very often. [ 34 ] Riddolls confirmed that in his statement to the police, he mentioned and described the blows with the knee, information that was not included in his incident report.

When read the standing order regarding what is to be included in an incident report, and asked why he had not included reference to the strikes, he stated that it was his understanding of the order that he was required to describe only what he personally had done. [ 35 ] Brenda Steinthorson was in her 15 th year as a CO at the time of the trial. She was on the third floor when the code 33 was called, and went to Beta. She was one of the last people to arrive.

She testified that she got to within 2 to 4 feet of where the inmate and crowd were, and saw Dunne on the right side of the inmate, who she said was screaming and swearing. She described lots of yelling by staff as well. [ 36 ] Steinthorson testified that she saw Dunne hit the inmate twice with his fist on the right side, below the arm. She said that Dunne then looked at her and got up, (something she did not tell the police in her statement two months after the incident, and something she said that she remembered only when she saw the video on November 26, 2013, despite it not being observable in the video).

She stated that she saw Dunne swing his foot at the inmate as he was being pulled upright, but that she did not know if it connected. She described Dunne as being very red in the face, looking angry and yelling. [ 37 ] She confirmed that there was no mention of blows having been struck during the debriefing, including by her.

She also confirmed that she did not mention them in her incident report, because, as she firmly stated, the incident report “is for me to state what I did”. [ 38 ] In her statement to the RCMP, Steinthorson said that the inmate was cuffed in the rear, and that Smigel was at the feet of the inmate. In cross-examination, she admitted that she could not see the purported punches by Dunne when viewing the video.

She also said that the inmate’s face was bleeding when she looked at him after he was stood up. [ 39 ] It is difficult to accept her evidence that Dunne punched Toews twice and kicked him as he was being stood up, not only because no one else reported having seen that or admitted it, but also because of her recollection of the eye to eye contact two years after the incident only after viewing the video in which it cannot be seen, because of her belief that Toews was rear cuffed, when clearly he was not, and her description of blood on the inmate’s face.

Her evidence is hardly credit worthy and standing alone cannot be the basis of a conviction. [ 40 ] CO Doug Burt was called as part of the defence case. An 11 year veteran at HCC, he was working in the basement on the day of the incident, and was in the staff office when the code was called. Despite not being a designated Code Responder that day, he ran to Beta, believing the Code Responder was in the washroom. Upon arrival he saw a handful of officers restraining the inmate, who he said was not flat on the ground. He grabbed the right arm between shoulder and elbow and tried pulling it out straight.

Eventually the inmate was lifted to his feet, at which time Burt realized he was front cuffed. It was not until he viewed the video that he realized that Dunne was to his left during the time the inmate was on the floor. He told the Court that he saw no strikes, punches or kicks.

Dunne’s Evidence [ 41 ] Dunne testified that he had not seen assaultive behaviour by an inmate like the incident in question during his entire time at Headingley, and in particular had never had a physical confrontation with Toews. [ 42 ] Somewhat surprisingly, he advised that he did not know from COMS that Toews was listed as violent and unpredictable, although he certainly did from his experience with him.

In all likelihood, those descriptors no doubt applied equally to most of the inmates on Beta, and thus were assumed. [ 43 ] As Acting Supervisor, it was up to him as to how to deal with the inmate, so he formulated the somewhat rudimentary plan to move the inmate to a holding cell.

As mentioned earlier, and despite the basics of his training, including best safe practices, the plan involved a number of poor choices, including: - assuming the inmate would be compliant based upon their previous “good working relationship” , a perplexing assumption in the face of behaviour Dunne described in his evidence as “threatening”;

- handcuffing the inmate in the front, to prevent him from thinking he was being moved to the hole; - failing to search the inmate, visually and physically, before he was removed from the cell; - failing to see that he was rocking back and forth, and that his hands were shaking. [ 44 ] Once the inmate “burst out” of the cell, Dunne said that he took hold of the inmate’s right side, and with Smigel on the left side, tried to get the inmate to the ground, something he described as “very, very hard” . [ 45 ] He said that he could “see out of the corner of my eye that he’s kicking staff that are down near his feet.

And he plunges his hands down into his waistband area” . He described being completely surprised and scared, and that he felt the inmate was reaching for a weapon and he had to do something to stop him. [ 46 ] Dunne then began to strike the inmate with his knee in the head or shoulder area, strikes he said were ineffective. He said that he re-positioned himself to try other strikes but that the inmate “was thrashing around, reaching into his waistband area” . He said Smigel was still struggling “very hard” and that he, Dunne, was looking at the inmate’s hands.

He said that he continued to strike the inmate “because what I am, what I’ve done isn’t working and something, I have to make something work because I know that we’re losing control. It felt like we were losing control of the situation. And I feared that someone was going to get seriously hurt” . [ 47 ] He described the sound during this time as loud but muffled, the time as seeming to take forever, despite the events happening very quickly, and only saw other staff once he had stood, specifically having not even noticed the arrival of Riddolls, who was beside him. [ 48 ] Dunne agreed with Mr.

Ross that hitting an inmate was not a sanctioned practice, unless an officer felt there was no option, that him hitting Toews was extraordinary, and that hitting an inmate was something that most of the staff had likely never before seen happen. [ 49 ] I have referenced earlier in the incident

summary the basics of what transpired after the inmate was controlled and taken to HC1, so I will not repeat it here. Expert Witnesses [ 50 ] We heard from three expert witnesses during the trial, the qualifications of all being admitted without contest. It is trite to say that expert opinion evidence is admissible to assist the Court with information on a particular area that is beyond the knowledge and experience of the average person, based on the special knowledge of the area by the party offering the opinion.

It must be remembered that the opinions offered are subject to the same scrutiny given to the evidence of any other witness, in that the Court may accept or rely upon all, some or none of the witness’ evidence.

And akin to the assessment of credibility where there are two competing versions of events, a judge cannot simply choose one version over the other; i.e. it is not a contest of experts. [ 51 ] One of the three witnesses qualified to offer expert opinion evidence was Marcel Couvier, the Manager of Emergency Response for Manitoba Corrections, who was qualified as an expert in Manitoba Use of Force Policy and Corrections Use of Force Training. Mr. Couvier confirmed he had been tasked to design a new use of force policy after the Headingley riot of 1996.

Ultimately, the Correctional Service of Canada policy was adopted and adapted for use in Manitoba, making it similar to the policies in place in most jails and prisons in Canada.

The policy is expressed through a set of standing orders, which are taught to correctional officers. [ 52 ] Couvier advised that correctional officers are not given the same use of force options as police officers, because there is a greater level of containment and isolation in a correctional facility than on the street, there is a greater likelihood of more immediate backup, and there is preventative security provided through a variety of searches designed to mitigate against the presence of weapons. [ 53 ] He confirmed that officers are taught that their perceptions may and will vary and can be affected by a number of factors and in a number of ways.

They are taught above and beyond all else to not become complacent about any aspect of their involvement with an inmate, particularly an inmate known to be violent and unpredictable, to be as vigilant as possible, to have as much information about an inmate as possible, to be aware of the inmate’s hands at all times, that an inmate should be searched before being moved, to carefully observe the inmate for signs of stress, drug use, or anger (for example), and that a front-cuffed inmate could use his hands as a weapon. [ 54 ] Couvier indicated that if officers believe a threat exists or non-compliance by an inmate is likely, “all handcuffing will be done behind the back, not in front” .

When an inmate is being moved and struggles against officers, they are taught to take the inmate to the ground and immobilize him until control is regained. He acknowledged, in reference to pressure point controls, that nothing may be one hundred percent effective, depending upon the inmate, but indicated that correctional officers are not allowed to hit an inmate, to strike blows with their hands or knees.

He advised that during training, circumstances similar to those in this case are discussed but instruction on how to respond to such an incident may or may not occur due to time constraints, a limitation that he viewed as “unfortunate” . It is unfortunate indeed, given his evidence that he has reviewed “thousands of use of force reports from various institutions” , that it is not unusual to have correctional officers struggle with an inmate, and that this incident was not radically different from other scenarios.

One would hope that correctional officers would be trained on how to respond to situations which are apparently so common. [ 55 ] As for exceptions to the policy, Couvier advised that if an officer believed he or she was in grave danger, i.e. likely to be killed, then “ it’s no holds barred...defend yourself accordingly to survive”.

It is worth noting that during cross-examination, he agreed that officers need not wait to actually see a weapon, and that, in considering the circumstances of this particular case, he agreed that the officers ought to have been concerned that the inmate was armed, once the inmate started to struggle. [ 56 ] Despite this, he opined from what he had seen in the video of the incident, that the use of force policy was not followed, that Dunne did not behave as he had been trained, and that the circumstances did not qualify as a no-holds barred situation.

It was apparent, however, that his opinion was based upon little more than having viewed the video, with its inherent limitations. [ 57 ] The Crown called Constable Robin Kipling as an expert witness in the use of force by peace officers and sought his opinion as to

whether there were reasonable grounds to use force and whether the force used was necessary or whether it was excessive. [ 58 ] Dunne called Douglas Ashton as his expert witness in the same area and for the same reasons. Needless to say, both had reviewed the materials extensively, and prepared detailed reports of their analyses and conclusions, which conclusions were completely opposite.

The information provided by both was very detailed and educational, and was of significant assistance in attempting to understand the complexities of use of force policies, why they exist, how officers are trained to operate within the policies and how officers ought to be trained, what use of force options are available to them, how they may react to the stress of particular situations, to list only some of the areas covered. However, their evidence will not be reproduced or summarized here for the sake of time and space.

ANALYSIS [ 59 ] One can only speculate as to the motivation of inmate Toews to act as he did, but it requires no stretch of the imagination to believe that this violent and unpredictable inmate, whose highly provocative behaviour had brought about this particular scenario, recognized an opportunity to create havoc, and promptly acted upon it.

It is from the chaos that ensued that I am asked to determine the reasonableness of action during an unreasonable event. [ 60 ] One might be tempted to jump to a conclusion from watching the video alone, but there is far more to the situation that informs than what can be seen on that stark and static recording, with its inherent and soundless limitations. [ 61 ] The decision to attempt to move Toews could charitably be described as foolhardy and naive.

The so-called progressive disciplinary steps taken to that point, those being the first discussion, the threats to cause damage leading to the loss of free time by lock up, and the closing of the food slot, had failed completely, and the misbehaviour and disobedience continued to escalate. It is surprising that anyone could think that Toews easily could be moved to time out in those circumstances.

The failure to recognize the increasingly agitated state of someone known as a very troublesome inmate (or to mention it) at the time of the move suggests a misguided complacency by all in the face of the very behavior requiring the move (somewhat ironical given Dunne’s reference to the complacency of some officers in not ensuring that all cutlery was returned or by not checking to ensure that the blade was still in the razor when returned). Add to that the fact that at least two of them turned to look at the pod when signalling for the cell door to be opened, only to be taken by surprise when it did.

While one can see that merely leaving the inmate in the cell to cool down might not have been successful, surely one could have recognized that it might have been time for the assistance of an extraction team, or at least some additional support. [ 62 ] That the actions of Toews were not common to the experience of most, if not all, of the officers became apparent. Several described the incident as having had a significant emotional impact. Smigel for example reported that it had thrown him for a loop and that he had had nightmares.

The fact that many of the officers described similar reactions during the skirmish (I will use the expert’s nomenclature): perceptual narrowing (tunnel vision), auditory exclusion (hearing nothing), and a solitary focus on what they themselves were doing is not surprising given their inadequate training for such situations. [ 63 ] These reactions, say the experts, are common and predictable, and based upon each individual’s perception of what was happening. But the response of each also is unique to the individual and is influenced by their own experiences and circumstances.

And without a greater level of training on how to handle such a situation, they could not be expected to react in a similar manner, as an informed, unified group. [ 64 ] Two of the officers were located and focused on the lower body, while Smigel held onto the cuffs with one hand. They were holding their own at best, Smigel saying that despite his superior height and weight, he could not move Toews’ arms and any attempt to do so resulted in mere dragging of the inmate on the floor.

At best, even with the blows struck by Dunne, it could be said that they were making no progress in getting the inmate prone on his belly or in gaining compliance. That did not happen, in fact, until the reinforcements arrived to assist. Despite reservations about certain aspects of Dunne’s evidence, it is not hard to imagine a reaction of panic in the circumstances. [ 65 ] The evidence is such that credibility is one of the issues, thus engaging the three-step analysis outlined by the Supreme Court of Canada in R. v.

W.(D.) [1991] 1 S.C.R. 724 , a case involving a jury, and as such, modified for our purposes: First , if you believe the evidence of the accused, you must acquit; Second , if you do not believe the evidence of the accused, but are left in reasonable doubt by it, you must acquit; Third , even if not left in doubt by the evidence of the accused, you must ask yourself whether you are convinced beyond reasonable doubt of the guilt of the accused on the basis of the balance of the evidence that you do accept. [ 66 ] Subsequent consideration of those principles in an enormous body of case law has lead to nuanced refinements, as required, to fit the circumstances of cases with subtleties and complexities different from those in W.(D.) . [ 67 ] Some of the essential points emerging from the cases are: ➢ The instruction is simply about how to apply the burden of proving guilt beyond reasonable doubt to credibility; ➢ The instruction does not apply to individual pieces of evidence, or facts; ➢ “The paramount question is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused” (Cameron, J. in R. v.

Menow, 2013 MBCA 72 , at para. 16 ); ➢ “The order in which a trial judge makes credibility findings of witnesses is inconsequential as long as the principle of reasonable doubt remains the central consideration” (Karakatsanis, J. in R. v. Vuradin, 2013 SCC 38 , at para. 21 );

➢ “...The analysis in W.(D.) is contextual and when considering the evidence of an accused, a trial judge is entitled to consider all the evidence called at trial” (Saull, QBJ, in R. v.

Kadirsahib , 2013 MBQB 291 , at para. 52 ); ➢ “A jury does not consider an accused’s version of events in isolation as if the Crown had led no evidence...The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witnesses’ evidence, that evidence may no longer be believable, or in the case of an accused, may no longer raise a reasonable doubt”. ( R. v.

Hoohing, 2007 ONCA 577 , at para. 15 ) [ 68 ] The starting point of the analysis in W.(D.) involves consideration of the evidence of the accused; if you believe the evidence of the accused, obviously you must acquit . Here, however, that bald statement does not end the matter, as a positive finding of credibility regarding the accused then engages consideration of

section 25, protection of persons administering and enforcing the law, and

section 34, defence of person. [ 69 ] Assessing credibility in many cases is relatively easy, but not so much so in this case. One cannot consider the evidence of one witness in isolation from the evidence of the others. When one looks at the evidence of all the witnesses in this case, it highlights the principle that a Court can accept all, some or none of a witness’s evidence. This case is a prime example of that.

For instance, Riddolls impressed me as being quite sincere and credible, but said in his statement to police that Smigel was to his left when after viewing the video he realized it was Dunne, a fact serving also to reinforce the existence of the phenomenon of tunnel vision and its effects. [ 70 ] There are differences between the officers’ versions of the incident, and counsel understandably noted them and argued them in support of their respective positions.

And just as one cannot simply look at the video and decide the issue, one should not select a particular difference from the many that have been parsed from the incident and decide the issue on that basis. [ 71 ] Turning to the application of the first prong of the principles of W.(D.) , as customized for the purposes of this proceeding, the question is: do I believe the evidence of Dunne? There are aspects of his evidence that I found troubling, many of which were identified by Mr. Ross in his argument.

The foremost is the failure to advise his colleagues immediately (or ever) of his stated belief that the inmate had or may have had a weapon in his waistband. Another troubling aspect revolved around the meagre information Dunne recorded in the use of force reports. Sadly, however, that appears to be a common thread amongst all involved officers, whether by genuine misunderstanding (as difficult as that is to believe) or by design (which forebears a more sinister implication). In any event, his failure to comply with policy on that issue is not unique.

Similarly, the fact that he made no mention of the strikes during the debriefing was not exclusive to him. Several of the involved officers were aware of the blows having been struck, but did not offer that information or question the necessity of the blows during the debriefing. [ 72 ] The failure to mention the fear of a weapon may have been and I accept likely was due to a parasympathetic response to the stress of the incident, as offered by Ashton.

In any event, that concern alone will not be determinative. [ 73 ] After reviewing all the evidence, I asked myself this question: Is it possible, when the inmate burst out of the cell and the battle was on, and with the concern that the inmate was reaching for his waistband, that Dunne believed that he had a weapon or could have been attempting to access a weapon? To me the answer has to be yes. And, I am not able to say that he was acting out of anger rather than fear.

Consequently, I cannot say that I do not believe Dunne’s evidence, or, putting it another way, the answer to question one of the W.(D.) analysis is that I accept the evidence of the accused. [ 74 ] That finding obliges consideration of sections 25 and 34. [ 75 ] To engage the protection of

section 25, the peace officer seeking its protection must act on reasonable grounds and only use as much force as is necessary for that purpose . [ 76 ]

Section 34 arguably approaches a situation from the reverse, declaring that a person is not guilty of an offence if they believe on reasonable grounds that force is being used against them, that they act for the purpose of defending themselves or another person, and the act committed is reasonable in the circumstances . Mr. Ross put it in the following terms: Did Mr. Dunne act on reasonable grounds, and Was the force that Mr. Dunne used reasonable or was it excessive? Although Ms. Labossiere worded the questions somewhat differently, the net effect is the same.

Did Dunne act on reasonable grounds? [ 77 ] In considering whether Dunne acted on reasonable grounds, the answer to that question is implicit in my finding on the first prong of the test in W.(D.). Despite ample reason to be far more vigilant at the moment the cell door opened, the officers uniformly did not expect the inmate to act in the way he did, and were surprised when he burst out or lunged out.

It is evident that they each had their own perception of their level of control or lack thereof over the inmate, of the danger presented by the inmate’s actions, and the effectiveness of their efforts to control him. It is difficult to say that Dunne’s belief that there was or could have been a weapon was not reasonable. Was the force that Dunne used reasonable or excessive? [ 78 ] As noted in the case law provided, in determining whether the force used was reasonable or excessive, a Court must be careful to avoid assessing the actions in hindsight, with each movement analyzed distinctly. As quoted by Ms.

Labossiere from Nasogaluak , “it must be remembered that peace officers engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances” . [ 79 ] As noted in Bolianatz v. Edmonton Chief of Police Service 2002 ABQB 284 , “ Police officers are not expected to measure the precise amount of force the situation requires.” “Nor will they be denied the protection of s. 25 if they fail to use the least amount of

force that would achieve the desired result (R. v. Asante-Mensah 2003 SCC 38 , [2003] 2 SCR 3). [80] And “allowance must be made for an officer, in the exigency of the moment, misjudging the degree of necessary force.” (Klyne v.Rae 2002 SKQB 139) [81] The need to avoid assessing the action in minute detail through hindsight is even more pronounced in a situation where, as here,we have had the benefit of opinions from two acknowledged experts on the use of force by law enforcement officials, who independentlyanalyzed the incident in extensive detail, and whose offered opinions are in disagreement.

That fact alone should demonstrate theinherent difficulty one faces when trying to determine whether particular behaviours are lawful or criminal. [82] Suffice it to say, my responsibility is to incorporate that information and their opinions with my consideration of all other evidence,to assist me in arriving at my determination of whether the force use by Dunne in striking the inmate at three separate points was“objectively reasonable in light of the circumstances faced by the (police) officer.” (Bolianatz) [83] It is vital to remember that this event began and ended very quickly, without the luxury of time for careful contemplation.

Werethere other options? Certainly. Was the situation under control? Some may have believed so, but some did not. And we mustremember that there was no unified plan for dealing with this type of behaviour by the inmate; all officers were acting independently. As noted earlier, most were experiencing “perceptual narrowing” or tunnel vision. Some within feet of the incident did not see anyblows. [84] It appears that some of the last knee strikes to the back occurred after reinforcements had arrived and at a time when the inmatewas overwhelmed by sheer numbers.

But the critical point is not when the inmate was de facto under control as that would be nearlyimpossible to pinpoint on the time continuum, but when the individual officers realized that to be the case. And that point in time wouldbe when the fixation on their task (their tunnel vision) was broken. Dunne testified that it was not until he heard the inmate say “I give”and rolled onto his belly that it happened for him, and when he realized other officers were there.

It is true that no one else recalledhearing the inmate say that, but the breaking point of fixation was different for several officers and resulted in sudden awareness of theirenvironment. [85] The authorities suggest that a trial judge ought to place him or herself in the shoes of the officer to attempt to assess whetherreasonable grounds existed for the actions taken and whether those actions were reasonable or excessive.

Ironically, one difficulty withdoing so in this case is that I, to some extent, must disabuse myself of the insightful information and analyses of the expert witnesses,information which would have been unknown to Dunne at the time. [86] After reviewing all the evidence then, and putting myself in the shoes of the officer, I ask myself: what would I have done? WhileI obviously am unable to say exactly what I would have done, I must admit that it is entirely possible that I may have done the very sameas he.

I daresay any reasonable person may have done exactly so in that situation, regardless of size, experience or training. There is afine line between just enough force and excessive force. And as for the precise degree of force required in these circumstances, keepingin mind the guidance of authorities that remind that officers actions should be judged in light of exigent circumstances, that allowancemust be made for an officer, in the exigency of the moment, misjudging the degree of necessary force, and that officers will not be deniedthe protection of

section 25 if they fail to use the least amount of force that would have achieved the desired result, I cannot say that theline was crossed and that the force used was excessive. [87] Therefore, accepting a reasonable perception of imminent harm to he or his fellow officers, I believe that Dunne did what hethought was necessary and reasonable in the circumstances, and I find that it was not excessive. [88] In the result, I find Jonathan Dunne not guilty of assault. [90] I am compelled to make a few further comments. Correctional Officers hold very important, stressful and hazardous positions inour society.

They are exposed to some of the most dangerous of people, a number of whom are volatile and violent, and in confined,secure quarters. They are subject to verbal abuse and taunting. The relationship between inmate and officer generally is adversarial andthe power imbalance in and of itself can create distrust and resentment on the part of the inmates. The risk of danger is always present. Working within that dynamic requires that Correctional Officers do what they can to minimize that risk personally, for their colleagues,and for the security of the institution. But they also must do the same for every inmate.

This is so because not only are they responsiblefor their safety, it must be remembered that while some inmates are sentenced prisoners, others are remand prisoners awaiting trial, andthus presumed innocent. Consequently, Correctional Officers are entrusted with a significant degree of responsibility in the execution oftheir duties.

And as trying as it may be on occasion, they are held to a high standard of behavior, requiring that they maintain thedifficult balance of performing their duties while not abusing the trust placed upon them. [91] Unfortunately the Court was left with the impression from two officers that attempts had been made to influence the fact of theirtestifying and the manner in which they did. Another concern centres on the debriefing session, in which the very reason for reviewing anotorious incident was never raised, something that entirely missed the point of the debriefing and rendered it meaningless.

I also think itincredible that no one mentioned these extraordinary events in their incident reports because they believed (or claimed they believed)that they were required to report only what they had done and why. [92] Such conduct undermines public confidence in the administration of justice and comes at the cost of honesty, integrity, andtrustworthiness. Original signed by: _________________________ Harvey P.J.