R. v. Pickering, 2014 ONCJ 315

Information No.: 13-8276 Citation: R. v. Pickering , 2014 ONCJ 315 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — CRAIG PICKERING Before Justice Lloyd Dean April 24, 25 and May 7, 2014 D. Foulds ................................................................................................................ for the Crown G.

Donald ........................................................................................................... for the Accused REASONS FOR JUDGMENT DEAN J.: Introduction 1 On May 14, 2013, the complainant, Timothy Vandusen (“Vandusen”), age 25, was in custody at the London courthouse (“courthouse”) for an appearance in court. Prisoners appearing in court were first brought to the holding cell area which is located in the basement of the courthouse. On the morning of the incident Vandusen was to an upper floor to appear in court.

After appearing in court he was to be brought back downstairs into the holding cell area. It became obvious to the Court Prisoner Security Officers (“CPSO”) dealing with the complainant after his appearance in the courtroom that Vandusen was becoming agitated. Vandusen at some point threatened to set off the fire sprinklers in the cell area. That was something Vandusen had done on one other occasion when he was in custody at the courthouse, approximately one month earlier.

As a result of that threat a decision was made to put Vandusen in leg irons and handcuffs, connected to each other by a chain, and then place him into a “dry cell”. While being placed into the dry cell, Vandusen suffered injuries. As a result of that incident CPSO Craig Pickering (“Pickering”) was charged with assault causing bodily harm pursuant to

section 267 of the Criminal Code (“ Code ”). 2 There is no issue that at the time of the incident that the accused, Pickering was acting in his capacity of a CPSO. There is no issue that Vandusen suffered injuries that amount to bodily harm as a result of his interaction with the accused in the dry cell area of the courthouse (“courthouse”). The relevant events were captured by two cameras located in the dry cell area of the holding cells at the courthouse.

Video recordings of what those cameras captured have been entered in the trial as an exhibit. 3 During the opening statement given by Defence counsel, he stated there was not a lot of controversy in this case in terms of what actually happens. The issue, Defence counsel submits, is the intention of the accused and whether or not

section 25 of the Code comes into play to justify the actions of the accused in his dealings with the complainant. 4 Defence counsel acknowledged the video capturing the relevant event is shocking. He expressed confidence in me that I would keep an open mind until all the evidence is heard and that I would not jump to any conclusions in relation to the accused intentions. I spoke to the accused directly and assured him it was part of my sworn duty to suspend all judgment until I have heard all of the evidence.

Issue 5 Did the accused use more force than necessary when moving Vandusen into the dry cell? The evidence The video recordings 6 Outside of the dry cell area there is an area referred to as the vestibule (“foyer”). There is a camera on the ceiling in that area. There is a camera on the ceiling in the dry cell. Between those two cameras the relevant events as it pertains to the issue in this case is captured. No sound can be heard when viewing the recording. The video recording from the camera situated in the foyer 7 Vandusen is seen entering the area first followed by Cadet Keane (“Keane”).

Vandusen is wearing a suit. He appears to be walking at normal speed with both hands in his pockets. He walks into one of the two dry cells seen on the video. It looks as though Keane directs Vandusen to come back out of the cell and stand against the wall in the foyer area opposite the dry cell. Vandusen complies. Still with his hands in his pockets he leans back against a wall facing Keane. For the first twenty seconds of the video only Vandusen and Keane are seen on the video. During that entire time there are no signs that Vandusen is yelling or screaming.

There are no obvious signs that he is agitated or upset. 8 At the twenty second mark CPSO Gorka (“Gorka”) enters the area. At this time it appears as though Keane is saying something to Vandusen. It looks like Vandusen replies. It is hard to say for certain, but by observing Keane and Vandusen’s body language, both of them may have been speaking with raised voices. It is hard to tell if Gorka is saying anything as his back is to the camera. At the forty-two second mark of the video Pickering enters the area with the leg irons and handcuffs. It appears as though he directs Vandusen to turn and face the wall.

He initially starts to turn and then stops and appears to be turning back to face the officers when it appears that Keane directs him to face the wall and he complies. At that time Pickering hands Keane the handcuffs and then Pickering bends over to apparently put the leg iron on Vandusen’s right leg. It looks to me as though Vandusen at the very least lifts his right heel so that Pickering can attach the leg iron. It is hard to tell if Vandusen lifts his entire foot of the ground as the view of his right foot is blocked by Pickering’s body.

First Keane and then Gorka place one hand on either side of Vandusen’s back while Pickering attaches the right leg iron. It is difficult to tell if anyone is saying anything as all persons seen on the video have their back to the camera. Looking closely at each of their body language it does not appear as though there is any type of upset or agitation coming from anyone. It appears to take less than fifteen seconds to get the right leg iron on. There does not appear to be any difficulty encountered putting on the right leg iron. It is now one minute and seven seconds into the video recording.

Vandusen then appears to shift his weight to his right side in order to move his left leg so that Pickering can put the left leg iron on. Once again it is difficult to tell what Vandusen does with his left foot, whether he lifts it completely off the ground or just raises his heel. In any event, it doesn’t appear to have been difficult for Pickering to put on the left leg iron. It appears to take approximately seventeen seconds to put on the second leg iron.

It is once again difficult to tell if there is any conversation occurring as all persons have their back to the camera and their body movements do not give an indication one way or the other. We are now at one minute and twenty-eight seconds of the video. Vandusen is then seen to turn around from the wall and face the officers. Keane is slightly off to the left of Vandusen, and it appears as though he may still have his hand on him, somewhere on Vandusen’s left arm, if at all. Pickering now has the handcuffs and is directly in front of Vandusen. Gorka is standing one to two feet behind Pickering.

Gorka has both his arms down by his sides. There is a chain that links the handcuffs to the leg irons. It appears as though Pickering puts the handcuffs on Vandusen’s right wrist first. I cannot observe any difficulty he has doing that. Next it appears that the handcuff is placed on Vandusen’s left wrist. It looks like Keane is assisting somehow. It’s not until one minute and forty-eight seconds that it becomes obvious that one of the persons seen on the video is speaking. At that time Vandusen, who was looking down lifts his chin and appears to say something.

Five seconds later it appears as though Pickering, who was looking down, raises his chin and is saying something to Vandusen. Keane and Gorka are right there and in my opinion would have clearly heard what was being said. Pickering’s right arm is seen moving while he speaks. As he finishes moving his right arm he immediately uses both his hands to take hold of Vandusen and turn him towards the open doorway of the dry cell. Once Pickering starts to turn Vandusen it looks like Vandusen is offering some resistance by stiffening his body.

Pickering then appears to grab Vandusen from behind and starts to push Vandusen into the dry cell. At the same time Keane appears to reach out with his left and right arm towards Vandusen’s right arm and side. It is clear from the video that it is Pickering’s actions which provide the force that moves Vandusen into the dry cell. The force used by Keane to assist can only be described as minimal and has certainly stopped by the time Vandusen is past the threshold of the dry cell doorway.

It takes no more than three seconds for Pickering to begin turning Vandusen towards the dry cell and pushing him through the doorway of the dry cell and out of the of view. Gorka has remained at least a foot or two away from Pickering, Vandusen and Keane. When Pickering and Vandusen enter the cell, Keane is seen looking into the dry cell. Gorka is a foot or two behind Keane looking into the cell as well. Pickering is seen approximately three seconds later exiting the cell, walking in a normal

fashion. That is at two minutes and two seconds of the video. He is walking in a normal fashion out of the cell towards the doorway leading out of the dry cell foyer. He has no apparent expression on his face. It does not appear as though Pickering says anything to Gorka or Keane as he exits the dry cell and walks toward the exit of the foyer. Nor does it look like Keane or Gorka say anything to him. Keane closes the door to the dry cell as Pickering walks towards the exit of the dry cell area. Pickering stops and turns to look back towards the dry cell just before exiting the foyer.

I cannot tell if he says anything at that time as his back is to the camera. It does not appear that anyone says anything to him. Around the time that Pickering is seen coming out of the dry cell CPSO Ashley (“Ashley”) is seen in the video for the first time. He walks into the foyer of the dry cell area. He hesitates as Pickering moves past him and out of the area and then Ashley walks over to the dry cell door. Keane is now looking through the window of the dry cell door into the cell. Ashley stands behind him and looks in as well. Keane turns and leaves the area.

Ashley steps closer to the window, peers in, turns and appears to say something to Gorka before he leaves the area. Gorka steps closer and looks through the window as well. Then he leaves. It is now two minutes and eighteen seconds into the video. 9 Twelve seconds later Ashley is seen coming back into the area putting on gloves as he walks towards the dry cell. Gorka follows within seconds, then Pickering and then Keane. Ashley opens the dry cell door and enters. Gorka is at the doorway of the cell but does not enter.

Keane is directly behind Gorka and Pickering is a few feet off to their right and more towards the middle of the foyer. Pickering steps forward and appears to peer into the room. That is at two minutes and fifty-five seconds into the video. He then steps back and seems to be waiting. 10 At three minutes and twenty-two seconds into the video a person identified as Supervisor Weatherstone (“Weatherstone”) is seen entering the foyer and walks to the dry cell doorway. His head movements suggest he is saying something towards someone in the dry cell. He turns away from the cell and leaves.

That is at three minutes and forty-seven seconds into the video. A second cadet is seen entering the area at that time. Ashley appears to say something to him and the cadet leaves. At this time Ashley, Gorka, Keane and Pickering can all be seen standing in the foyer area, with Ashley at the doorway of the dry cell. They appear to be waiting for something. 11 At four minutes and ten seconds into the video, two cadets enter the foyer; one of them appears to be holding a roll of paper towels and passes it to Ashley. Ashley enters the dry cell with the paper towels.

Pickering, shaking his head, leaves the foyer area at four minutes and twenty-six seconds into the video. Nothing else of significance happens until six minutes and thirty seconds into the video. Vandusen is seen following Ashley out of the dry cell. He is still handcuffed and leg ironed. He is carrying his right shoe. His left shoe is still on. You can see what appears to be blood around his mouth area. He walks into the second dry cell and sits down. Ashley passes him a piece of the paper towel roll then leaves.

The door is closed and Ashley, Gorka and Keane return and go into the dry cell where Vandusen had been injured. 12 At nine minutes and fifteen seconds of the video Ashley is seen going into the dry cell where Vandusen is and has a conversation with him for approximately forty seconds and then leaves. 13 At eleven minutes and thirty seconds into the video Ashley and Keane are seen going to the dry cell where Vandusen is; Ashley enters with what appears to be a clipboard with documents and Keane stands at the open doorway and opens what appears to be his notebook. 14 At thirteen minutes and thirteen seconds Ashley leaves the room, Keane closes and locks the door and they leave the area.

The video runs until thirteen minutes and twenty-five seconds and then stops. That is what I observed watching the video taken from the camera in the foyer area of the dry cell. The video recording from the camera located in the dry cell 15 It’s important to realize that this camera is running simultaneously as the camera in the foyer area. I observed the following. 16 The video begins with Vandusen walking into the cell, turning around and walking back out. Again, there is nothing remarkable about his body language. His walk seems nonchalant into and out of the room.

There are no obvious signs that he is agitated. He certainly is not yelling or screaming. His face is partially obscured for a moment. He is in and out of the room within ten seconds. The video then jumps ahead several minutes (referring to the actual time of day) and the next thing seen on the video is Vandusen being shoved across the cell from the doorway to the opposite wall. He is being pushed with such force he appears to be almost running across the room. His steps are short, presumably because he is in leg irons. Pickering has a hand on each side of Vandusen’s back, more to the

outside of each side of the back. Pickering is moving fast, almost to the point of running. He slams Vandusen into the opposite wall. There is no other way to describe it. It looks vicious. At the point of impact with the wall it looks like Vandusen’s feet are almost off the ground. You can see his head snap and his face hit the wall. He falls to the floor immediately, landing on his right side. Pickering turns and walks out of the room. Vandusen’s right shoe has fallen off.

He lies on the floor for a moment without moving, although it looks as though his legs and upper body might shake momentarily, then he gets up onto his knees. He is bent over with his face close to the floor. When he turns his head and looks toward the doorway you can see what appears to be blood on the floor beneath his face. When Vandusen turns his head towards the door he appears to yell something. He then turns his face back towards the floor and it appears that more blood is accumulating on the floor. 17 Forty-four seconds after Vandusen falls to the floor Ashley is seen entering the cell.

He walks over to Vandusen and bends over apparently to check on him. Ashley then straightens up and walks towards the doorway. It appears as though he is using his radio to communicate with someone. Vandusen remains on his knees and it’s hard to tell if he is saying anything. It appears as though Ashley may say something to him after using his radio. It also appears as though Ashley is communicating with someone in the foyer of the dry cell area. 18 About thirty eight seconds after Ashley has communicated something on his radio another person’s arm is seen at the doorway.

Comparing the two videos it would appear that arm is the arm of Weatherstone. It appears as though he and Vandusen exchange words. The amount of blood under Vandusen’s facial area appears to be increasing. We then see Ashley walk back over to Vandusen with the paper towel roll and give some to Vandusen. Ashley also begins wiping the blood up with paper towel. Vandusen turns and sits on the floor of the cell. He appears to be holding the piece of paper towel he was given to his mouth. Ashley continues to wipe the floor. Keane walks in and appears to bend over to observe Vandusen’s injury. Ashley does the same.

Gorka walks in with something and passes it to Ashley who then passes it to Vandusen who puts it to his mouth. Keane leaves the room. Gorka and Ashley remain and it appears they are talking with Vandusen. They both bend over and appear to be checking on Vandusen’s injury. Gorka leaves and Ashley appears to be continuing to tend to Vandusen. Vandusen stands up and Ashley appears to be doing something with the handcuffs on Vandusen. Gorka re-enters the room. He hands something which looks like a piece of paper towel to Ashley. Vandusen then turns and faces the wall and Ashley bends over to address the leg irons.

Whatever he does, is brief. Vandusen turns and then follows Ashley out of the cell holding his right shoe in his hands. Gorka follows Vandusen out of the cell. That is at six minutes and 23 seconds into the video. 19 A few seconds later Ashley, Gorka and Keane are seen reentering the cell. Gorka points at something on the floor. Ashley squats down and appears to pick up something in his hand. All three men then leave the cell. That is at six minutes and fifty-three seconds into the video.

The next thing seen on the video is a lady entering the cell and cleaning up a number of pieces of paper towel that had been left on the floor of the cell. She then mops the floor. That is the end of the video. It is nine minutes and thirty-nine seconds long. Sargent David Ellyatt 20 Sargent Ellyatt (“Ellyatt”) was the first witness called by the Crown. He is a Sargent with the London Police Service with fourteen years of experience as a police officer.

He is the Officer in Charge of the court prisoner security unit at the courthouse and had been working in that capacity for approximately six months as of the date of the incident. He described the security unit as having twenty-five cells, five bullpens and two dry cells. The relevant evidence received from him follows. 21 According to the testimony of Ellyatt, a “dry cell” is a cell that has no fixtures whatsoever in it. There is no toilet, no seat, no bed and it is not padded. There is a drain hole in the middle of the floor.

The cell consists of a concrete floor, four concrete walls, one of which has a door for entry into the cell. Ellyatt testified that a dry cell is used for prisoners who are difficult to handle, uncooperative or if they have some information that the accused might be concealing drugs. 22 Ellyatt testified that CPSOs are civilian employees with designated powers of special constables. 23 He was not present during the incident. He learned of the incident when arriving at work not too long after the incident.

At 11:05 a.m. he was informed by Weatherstone of the incident. (Weatherstone was a CPSO who had been promoted to Supervisor and was working in that capacity on the date of the incident.) 24 Based on the information Ellyatt received from Weatherstone, he sat at his desk which had monitors for the CCTV system that would have recorded the incident. Before watching the video recording of the incident he and Pickering, in the office, had a discussion about the incident. Ellyatt then watched the video recording a couple of times. After watching the recording he had some concerns about what had transpired.

He made a copy of the video and then reported up the chain of command, providing a copy of the video to

his supervisor, Staff Sargent Trafagander. 25 Ellyatt then returned to the cell block area, as officers had arrived to transport Vandusen to the hospital. At that same time, the court Vandusen was to appear in that day was calling for him to be brought up to the courtroom. Ellyatt discussed with Vandusen if he wanted to attend court before going to hospital and Vandusen indicated he did. He was brought up to the courtroom.

At approximately 11:55 a.m. he was brought back down and then transported to the hospital. 26 When asked about his observations of Vandusen, Ellyatt testified that Vandusen had dental damage to his teeth, was subdued and his demeanor was cooperative. 27 Ellyatt confirmed that he had prior contacts with Vandusen. He described Vandusen as a challenging prisoner to move around. He went on to say Vandusen was a frequent visitor to the cell blocks and presents a considerable challenge to staff , before, then and after the incident. He further stated Vandusen is very confrontational at times and very uncooperative.

So much so, Ellyatt said he has to be physically present or have other patrol officers there when Vandusen is moved around. 28 Ellyatt described Pickering as fit and looked after himself very well, living a healthy lifestyle. He said Pickering worked out regularly at lunch hours which Ellyatt expressed he wished all his officers did.

The video recordings were shown to him while he was in the witness box and he provided testimony about what was seen on the video. 29 During cross-examination he acknowledged as the officer in charge of the unit he had knowledge of the training and procedure in place for CPSOs at the time of the incident. He confirmed there were no specific policies or procedures in place at that time in relation to how CPSOs were supposed to carry out the function of placing inmates into cells, whether the inmates were difficult, resisting or otherwise.

He agreed with Defence counsel’s suggestion that the CPSO’s were therefore left to their own devices and experiences figuring out how to put inmates into cells in any particular case. Cadet P. Keane 30 Keane was next called as a witness for the Crown. Keane has been a Cadet with the London Police Service since January 1, 2013. His relevant evidence follows. 31 He was working in the cell block area on the date in question.

His first contact with Vandusen was when he set off the fire alarm a month or so before the date of the incident. (Although he testified it was a fire alarm Vandusen had set off, I took from the other evidence I heard it was actually a fire sprinkler that Vandusen had tampered with and caused to activate. That may have in turn caused the fire alarm to sound.) On the date of the incident he fingerprinted and photographed Vandusen as a result of Vandusen being charged for that previous incident. Those are the only two times Keane has had contact with Vandusen prior to the incident in question.

Keane indicated that Vandusen was not in handcuffs when he was taken to be photographed and fingerprinted and that he was cooperative throughout the whole process, following directions as given. 32 Later on after the fingerprints were completed and after Vandusen’s appearance in court Keane, at 10:40 a.m. received a broadcast over his radio that Vandusen was going to set off the fire sprinkler again and was being uncooperative.

Keane does not recall if he went up the elevator to assist where Vandusen was or if he stayed in the basement where the holding cell area was located to wait for Vandusen to be brought down. He recalls Vandusen being brought off the elevator and following behind as Vandusen was being brought to the dry cell area. He adopted what was in his report that he was walking behind Gorka and Pickering. He indicated it was part of his duties to walk behind in case Vandusen became combative. Vandusen was continually yelling that he was going to set off the fire alarm again.

He was upset about something that had happened in court. Keane guessed the walk from the elevator to the dry cell area to be less than a hundred feet, but he was not sure. 33 The decision was made to put leg shackles and handcuffs on Vandusen because of the threats to set off the fire alarm. Vandusen was directed to face the wall in order to have the leg shackles put on first. He put his hand on Vandusen’s back so he couldn’t move from that position. He also believes he was holding one of the leg shackles and handcuffs in his hand.

According to Keane, Vandusen was cooperating but was very angry about the situation he was in. Vandusen was still yelling at the time that he was going to set off the fire alarm even with the shackles and leg irons on and that they had no right to put him in shackles. Keane testified that nothing stands out at the time he was testifying regarding the accused having any difficulty putting the shackles on Vandusen.

34 Keane said after the shackles were on, Vandusen was directed to turn around. He held Vandusen’s left hand while the handcuffs were put on. A metal chain was to be used to connect the handcuffs to the shackles. While the left handcuff was being placed on he saw Vandusen reaching either towards Pickering or the handcuff keys . They ended up getting the handcuffs on . Keane then stated after the handcuffs are on Vandusen is still continually yelling that he isn’t going to go into cell or that he was going to set the fire alarm off. He and Pickering then turn Vandusen to face the entrance of the dry cell.

He was on Vandusen’s right side, holding Vandusen’s right arm. Vandusen was passively resisting leaning back to kind of resist going into the cell. Pickering and I went to put him into the cell. Keane testified he didn’t have a chance to move forward with Vandusen; his hand was on Vandusen’s right arm and then Pickering grabbed both his arms and brought him into the cell. Vandusen struck the far wall, and immediately began yelling and collapsed on the ground. At that point he noticed blood.

He believes he may have entered the cell to look at Vandusen and then another CPSO arrived with paper towel to put on Vandusen’s mouth or clean up blood on the ground. 35 Keane testified that at the time of giving his testimony he had not seen the video recording of the incident. The video was played during his testimony for him to view. When viewing the video, it is clear that Keane is in the dry cell area with the accused by himself initially, which was not consistent with his memory. It is also clear that Keane is conversing with Vandusen.

He testified that it would have been a general conversation about Vandusen saying he was going to set off the fire alarms. It is also clear that Keane does not enter the dry cell after Vandusen strikes the wall. 36 Keane agreed when being cross-examined that Vandusen was agitated when he first saw him get off the elevator, which was very different than the way he had been acting earlier in the morning.

He also agreed that when Vandusen was told to face the wall to have the leg irons on he is saying they couldn’t do that to him, they didn’t have the authority to do it, referring to the leg shackles and handcuffs and that he was still going to set off the fire alarm. He continues to say those things while being shackled. He agreed during cross-examination that Pickering was not acting in any manner that would be demeaning to Vandusen. He agreed Pickering was acting professionally towards Vandusen and as far as Keane knew, Pickering was following proper procedure.

He also testified during cross-examination that although he cannot say it didn’t happen, he does not recall Pickering asking Vandusen to pick up his feet so the shackles could be put on and Vandusen refusing to do so. 37 He agreed with Defence counsel’s suggestion that Vandusen, when he turns around to have the handcuffs put on, continues to be mouthy and defiant saying he is still going to be able to set off the sprinklers. 38 During cross-examination Keane agreed he saw Vandusen’s upper body tense up while being handcuffed.

When asked if he had to use force to move the left hand closer while Pickering used force to move the right hand closer, Keane doesn’t answer the question directly but says Vandusen’s upper body was tense. 39 He does not recall specific words Pickering may have said to Vandusen when Vandusen reached towards Pickering during the handcuffing. He agreed that after the handcuffs were on things started to happen rather quickly. He confirmed that he has never received training on how to put a prisoner into a cell.

He also agreed it can be difficult at times to put a prisoner into a cell who doesn’t want to go into the cell. Keane agreed with Defence counsel’s suggestion that Vandusen’s body really tensed up and he lowered his centre of gravity when he was being directed into the cell, as well as canting his shoulders back. As a result of that and the words Vandusen were saying, counsel suggested it was clear to him that Vandusen wasn’t going to go into the cell voluntarily. He agreed. Keane further agreed that even while Pickering begins to move Vandusen into the cell, Vandusen is not going in voluntarily.

Leaning back or lowering his body, he doesn’t recall the exact order. Moments later he states he does not recall specifically seeing Vandusen’s shoulders go back towards Pickering; he could just tell from Vandusen’s body language that he didn’t want to go into the cell. He also agreed with Defence counsel’s suggestion that Vandusen planted his feet in a way to suggest he did not want to go into the cell. 40 It was suggested by Defence counsel that, as seen on the video today, he actually assists Pickering as he moves Vandusen by him into the cell by reaching out and assisting him as best as he could.

Keane agrees he did so by placing his hand on Vandusen’s upper back, but cannot say the specific reason as to why he did put his hand on Vandusen’s back. Timothy Vandusen 41 Next to testify was Vandusen. His relevant evidence follows. 42 He testified he is 6’ 2” and roughly 200lbs. (He acknowledged that he gets agitated easily. He attributed this to him being bi-

polar.) He did not recall being photographed or fingerprinted on the date of the incident. After appearing in court that day he told the CPSO to get him back to the jail before he does something stupid or dumb like pull another sprinkler head. He acknowledged he was getting mad because he thought he was only appearing at the courthouse for one charge not the three that he was informed of. The three charges were apparently the mischief charge for damaging the sprinkler head a month earlier, an unrelated criminal harassment and a breach charge.

Apparently he was being brought back downstairs to the holding cell area but would have to be brought back up to the courtroom again later. 43 Vandusen doesn’t remember being put in a dry cell before that day. He recalls the first conversation in the dry cell area being with a “blue shirt”. The blue shirt asked him “what’s going on today, you were so well behaved?” Vandusen believed the blue shirt was referring to the sprinkler head comment he had made. He responded by saying “I don’t know” and he says he put his back against the wall.

He acknowledged when he was instructed to turn and face the wall so the leg irons could be put on he responded in a sarcastic manner. He was instructed by an officer to put his face to the wall. Shackles were put on and then I turned around and while being handcuffed he touched the loop in the chain attached to the shackles, for reasons he does not know. When he did that Pickering said, “Don’t do that”. On the day of the incident that’s all he remembered Pickering saying at that time. But later on Vandusen said he remembered Pickering saying more.

He remembered the words Pickering said were, “do that again and your face will hit the floor”. He responded by saying “whatever”. Later on he was asked by the Crown whether he was ever told, when he touched the link in the chain, “Don’t try that again or you will have a problem?” He answered no. 44 After he was handcuffed and shackled he went to walk into the dry cell and it felt like superman was behind him. He said his head hit the wall so fast, it was insane. He was in a lot of pain and blood was pouring out his mouth. After hitting the wall he was screaming “you can’t assault me, if I can’t assault you”.

He said the “white shirts” outside the cell told him to “shut the fuck up, we heard you, you idiot”. He said a “white shirt” that’s tall and with shaved head came in and looked at my mouth and said I needed to go to the hospital. They brought me some wet napkins and cleaned up the floor. They then moved him to the other dry cell. Where I was just put there and waited. The same “white shirt” came in and said we might as well get this out of the way and read me the two charges I had that day. He said Vandusen had an option. He could go to the hospital first or go up to court.

Vandusen told him let’s go up to court because I don’t want to stay around here all night. He was taken up to court and he told his lawyer that he wanted the incident used against them and that it was illegal. 45 Afterwards he was brought to Victoria hospital. He described his injuries as two and half teeth broken (upper) and a minor cut to his top lip which was also swollen. Vandusen said his teeth had to be grounded down. He also said his lips and gums were split.

He said he was still receiving ongoing treatment, although no medical reports were filed to confirm the ongoing work. (Photos of his injuries included on a CD were made an exhibit.) 46 Vandusen was asked by the Crown how he felt about being shackled. He stated “upset maybe”. He believes the only thing the CPSOs were worried about was the sprinkler alarm. He testified he wasn’t given an explanation why they were putting him in leg shackles and handcuffs. He says he figured that out himself. He doesn’t believe he said anything to them about being shackled.

He does not believe he told the CPSOs that they had no right to put them on him. He stated he did not resist in any way them putting the shackles on. They told him to turn and face the wall and he complied. He said when you go to jail you know how to get shackled and handcuffed. He then described what you have to do to get shackled, including lifting one leg then the other. He testified it was the first time he had the chain between his legs attached between the handcuffs and shackles. Vandusen said he doesn’t recall if he said “if you put them on I’m going to freak out and bang the rest of the day”.

At first he said it was most likely he said it, and then he said he can’t deny it and he can’t say I did. He was asked by the Crown if he was in any way uncooperative in getting handcuffed and shackled or in way actively resistant to that process. He answered no. 47 He was asked by the Crown if he was in any way physically resistant to being moved from outside the dry cell into the dry cell. He answered no; he walked by myself from the courtroom to the dry cell, no questions asked. 48 He stated he could only move his feet about a foot apart once the leg shackles were on.

He did not know Pickering before this day and never had a problem with him before. He did testify that generally he had a problem with police all over Ontario, meaning with the law, but no problem with any one specific officer. 49 Vandusen went on to testify that he does not remember if his body tensed up during the process of being handcuffed and shackled. He was asked by the Crown if after being handcuffed and shackled he had any memory of pushing back before he was pushed into the cell.

He answered no. 50 After being shown the video during direct examination Vandusen said the only thing he would change about his testimony was the fact that he did not remember he was wearing his glasses which the video clearly shows he was.

Cross-examination of Vandusen 51 The cross-examination took place over parts of two consecutive days. During cross-examination Vandusen acknowledged that while serving a sentence at Milton he was charged with making a threat to cause death to a Corrections officer. He was convicted of that offence and received a two month jail sentence and two years’ probation. He also acknowledged that he was convicted just two months earlier with assault with a weapon as a result of having thrown a tray out of his cell at a Corrections officer, although he testified the tray did not strike the officer.

He agreed that he doesn’t always do what the police ask him to do. He indicated he respects them when they respect him. He went on to agree that he doesn’t always respect the police in the way the law requires him to respect the police. 52 He acknowledged during cross-examination that he had not indicated in his written statement, taken hours after the incident, that Pickering had said to him “do that again and your face will hit the floor”. He said he didn’t remember that at the time of giving the statement but, it was said.

Later on in cross- examination when this came up again Vandusen said the last thing on his mind when he gave his statement, given that he just had his teeth knocked out, was what words Pickering had said to him. Vandusen said he had nice teeth and was obsessive about them. He went on to say Pickering was the last thing on his mind at the time, he didn’t even ask for charges to be laid; he was told they were being pressed. He went on to testify that he had told his civil lawyer and he can’t just call the detective (who he named) anytime he wants, but the words have been on his mind ever since.

He indicated he did tell the Crown attorney before coming into court that day. 53 Vandusen testified he takes medication for his bi-polar disorder, depression and other mental health issues; he agreed, although it seemed reluctantly, that it helps to calm him and keep him from getting agitated. Without his medication he agrees he acts impulsively, sometimes extremely impulsively.

Such as when he set off the sprinkler system, which he said he did because he was bored, although not long after he said he doesn’t remember why he set it off. 54 Although he acknowledges threatening to set off the sprinkler system when he was exiting the courtroom he doesn’t recall whether he was yelling. He believes by the time he reached the dry cell area he wasn’t even thinking about the sprinkler anymore. He denies saying anything about the sprinkler system while walking down the hall to the dry cell area.

When it was suggested that at some point he said something like “put me in a dry cell, I’ll still set off the sprinkler, I know there has to be one”, Vandusen said it sounds like something he would say. 55 He acknowledged that he has done things in the past to bring attention to himself such as harming himself or threatening suicide, and he acknowledged, previously in the holding sells at the courthouse, he smashed his head off the wall and the plexiglass. 56 Vandusen stated he has been in handcuffs, shackles and chain before but this was the first time at the courthouse.

He did not know he was being put in shackles and handcuffs until Pickering entered the dry cell area with them. It was suggested that at that point Vandusen becomes increasingly agitated. Vandusen denied that suggestion, saying you can tell from watching the video that he is quite relaxed, leaning against the wall. He stated he doesn’t recall what he said when the shackles were being put on but he was compliant in putting them on. He later stated, “if I was going to be agitated, you guys wouldn’t get the shackles on me…”.

He denies that his hands had to be forced together to get the handcuffs on, saying he was compliant. He stated you have to tense up your arms for the handcuffs to be put on. He demonstrated what has to be done with your arms. He denied being angry about the chain being used to connect the handcuffs and shackles. He stated he wasn’t thinking at that time about his ability to set off the sprinkler being hampered and further stated he wasn’t even thinking about setting the sprinkler off when he got down to the dry cell area.

Vandusen denied grabbing for Pickering’s hands or for the keys, saying he grabbed for the chain with his finger. 57 During cross-examination Vandusen testified he tried to get the charges against Pickering dropped, but was told he couldn’t because there’s a video. Defence counsel suggested he did that because he knew that he was partly responsible for what happened. Vandusen responded by saying no, saying he has never had anyone charged because he has learned that “snitches get stitches and end up in ditches”.

Vandusen agreed that once he was told Pickering was going to be charged he tried to use the situation to his advantage with respect to the charges he was facing. He even went as far as writing letters to different members of the Crown attorney’s office looking for some favorable treatment in exchange for his testimony. A bit further on in what appeared to be a moment of frustration in not being able to explain why he was seeking favorable treatment, he stated he could care less if Pickering is found guilty or not. Vandusen testified he did not resist going into the dry cell.

He stated he was going into the dry cell willingly. He denies saying he wasn’t going to go into the cell. At first, he denied lowering his shoulders and his centre of gravity but again, seemed to get frustrated while testifying and said his shoulders may have went backwards, they may have went forward, he’s not going to disagree or agree with Defence counsel’s suggestion. More suggestions were made regarding the position of his feet, with the suggestion being they were angled in such a way that he was resisting.

Overall, he disagreed that he was resisting at any time and said he was surprised by how fast he moved across the cell. He denied being surprised at Pickering’s strength. He said if he was resisting he would have at least tried to break his fall so he wouldn’t break his teeth against the wall.

CPSO J. Ashley 58 Ashley was next called by the Crown to testify. The relevant evidence given by him follows. He was also working in the cell block area on the date of the incident. He has twenty years’ experience as a CPSO. He does not recall if he had contact with Vandusen before the incident. He became aware there was a problem involving Vandusen. He was coming back from a break when he heard yelling and screaming in the dry cell area through the corridors. He went to the area and just stood by to make sure things were going smoothly.

He believes he stood seven to eight feet away just inside the doorway of what was described as the dry cell vestibule (“foyer”). He believes when he walked in his co-workers were handcuffing Vandusen. He testified he could see Vandusen’s face but could only see the backs of his co-workers. He indicated Vandusen was very obnoxious, verbally abusive, wasn’t that compliant and it wasn’t going smoothly. He could tell Vandusen was very agitated just by all of the cussing and abusive language, as well as the level of his voice.

After the handcuffing was done he next saw Pickering and Vandusen at the dry cell door and then they went out of view into the cell. Pickering then came out and Vandusen was still screaming in the dry cell. Eventually, because of all the screaming, he went and looked into the dry cell to see if everything was alright. He observed Vandusen on the floor and he also observed a little bit of blood on the floor. He believes he left to get someone else because he wasn’t going to go in by himself given what had happened. He went back in with Gorka to check on Vandusen.

There was blood on Vandusen’s face and on the floor. He asked Vandusen to look at him. He lifted Vandusen lip and saw there were some teeth chipped. He then believes he asked for an ambulance call and then helped Vandusen clean himself up. He and Gorka then looked for the pieces of teeth that were chipped off, which they found. Ashley testified when he was in the dry cell Vandusen’s demeanor was the same as it had been: excited, agitated, loud and abusive.

When asked by the Crown if “mouthy” also fit Vandusen’s demeanor, Ashley said, “that works, many work”. 59 Although he does not clearly recall the circumstances, Ashley believes he saw bits and pieces of the video on the date of the incident but, not since. The video was played for him in the courtroom. After watching it he acknowledged he would have to change what he testified to moments earlier about where he was at the time of the incident because he is not seen in the foyer area of the dry cell until after Pickering and Vandusen have already entered the dry cell.

He is not seen in the video during any of the handcuffing. He testified in his head he recalls seeing them put the handcuffs on. He explained that perhaps he is standing off camera in the doorway. He says he can only guess he was in position to see and that’s why he recalls seeing the handcuffing and Pickering “throwing” Vandusen into the room.

The Crown made an application pursuant to section 9 (2) of the Canada Evidence Act to be allowed to cross-examine Ashley on what the Crown saw as an inconsistency between an earlier written statement Ashley gave the day after the incident and the evidence he was providing to the court. After reviewing the previously written statement and agreeing there was an inconsistency, I granted the application. The Crown cross-examined Ashley with regards to his written statement which had no mention of the conduct or attitude of Vandusen.

As well, when giving his statement and being asked to describe Vandusen’s demeanor he only described Vandusen as being mouthy, not that he was screaming or was agitated as he testified earlier. 60 During Defence counsel’s cross-examination Ashley agreed with the suggestion that the cell block area was loud generally and a fairly dangerous environment. He agreed it was like that every day. He also stated that the day of the incident was like every other day until he realized Vandusen was injured.

He acknowledged during cross- examination that his memory concerning the incident has faded as a result of the passage of time. He agreed with the suggestion that his memory now was a mixture of what he saw on the bits and pieces of the video he watched on the day of the incident and what he actually saw personally. He also agreed that the video would give this court a better way of understanding of what happened, as far as the physical location of people than his vantage point would have been. Ashley further testified he had dealt with Vandusen in the past.

He has observed Vandusen bash his head while in custody in the past and as a result sustained a goose egg. He further stated that on a daily basis he deals with many people who are agitated, loud, excited and use abusive language towards him. While being cross-examined Ashley was asked whether or not, from his vantage point, he ever heard Pickering say to Vandusen words like, “do it again and your face will hit the floor so fast”. He answered, no. While being re-examined he indicated he could not recall any specific words from anyone present in the dry cell area. CPSO D.

Gorka 61 Gorka was the last witness called by the Crown. He had worked as a CPSO for approximately ten months before the date of the incident. The relevant evidence he gave follows. 62 He first had contact with Vandusen on the day of the incident when he came off the elevator into the cell block area. Prior to that he had heard over his radio that Vandusen was being brought down and that he was very agitated and threatening to set off the sprinkler system in the cell. He indicated a call came over the radio from Weatherstone to put Vandusen into a dry cell.

Gorka testified when Vandusen came off the elevator and was being walked to the dry cell area he was being verbally abusive, vulgar and you could tell he was agitated. Keane and he escorted Vandusen to the dry cell area, with Vandusen walking ahead of them. He indicated Vandusen followed the directions given. While walking Vandusen to the dry cell another call came from the Supervisor to put leg irons and

handcuffs on Vandusen. Gorka indicated that Pickering went to retrieve the leg irons and handcuffs while he and Keane stood by in the dry cell area with Vandusen. It was Gorka’s evidence that the distance from the elevator to the dry cell area was a distance of thirty feet. Once they got to the dry cell area Vandusen was instructed to face the wall and he and Keane braced Vandusen against the wall while Pickering put on the leg irons. His memory is that took place on the wall opposite the dry cell. Gorka testified it occurs quite a bit that a prisoner is put in leg irons.

He indicated it can happen three times a day or once a week. He indicated it would have been expected to have Vandusen turn and face the wall and then lift up a leg so they did not have to physically lift his leg. He was asked if that was for safety or convenience sake. He indicated it could be a little bit of both. Gorka testified that Vandusen picked up his feet and Pickering put the leg irons on. The leg irons come with a chain attached to them. That chain is then attached to the handcuffs, once the handcuffs are put on.

It was Gorka’s testimony that when Pickering went to put on the handcuffs Vandusen was being verbally abusive saying do whatever you want I’m still going to set off the sprinkler. Gorka further testified that Vandusen tried to grab Pickering’s hands and Pickering warned him not to do that. He does not recall any more words than that. He does not recall if he got involved because of what he had observed, nor does he recall if anyone else assisted with the handcuffing. He recalls someone telling Vandusen to go into the cell and he wouldn’t go in.

Gorka said Pickering held onto the back of Vandusen and tried to get him into cell. He could tell that Vandusen was pushing back against Pickering, not wanting to go into the cell. He then testified it seemed like Vandusen released his resistance and then he saw Pickering go forward with Vandusen into the cell. When asked a few minutes later to tell the court again what he recalls Vandusen’s movement were from outside the cell into the cell, Gorka testified that he observed Vandusen going a little bit forward and then stopping.

Then, he believes, Pickering told Vandusen to go in there, and put his hands on Vandusen. Vandusen was pushing backwards, not wanting to go in. Then he recalls them going into the dry cell. He recalls asking Pickering if he was alright because of how fast he went in. Pickering said he was okay. He then heard Vandusen scream he was hurt. He believes he and Ashley went in to check on Vandusen. He observed Vandusen to have blood on his face, a cut to his lip and it looked like he had a chipped tooth or two. He found the pieces of the chipped teeth and put them into a property bag in case they could be reattached.

They ended up calling Weatherstone to come in and observe the injuries. Although he did not see Vandusen come into contact with the wall he assumed he did so. He does not recall if he assisted in getting Vandusen into the cell. Gorka testified he saw the video recording of the incident the day it happened and gave a statement on May 16 th , two days after the incident. He was shown the videos while he was in testifying. He was asked if he would change anything.

Other than correcting what wall Vandusen was facing or standing against in the dry cell area and the fact that he brought into the dry cell wet paper towel for Vandusen, there was nothing else he would change . 63 During cross-examination Gorka agreed that Pickering was far more experienced than he and he would have relied on him to have taken the lead. He also testified during cross-examination that Vandusen was saying that he would still be able to set off the sprinkler system even if he was put into a dry cell. He agreed there were sprinklers in the dry cell.

He further agreed with Defence counsel’s suggestion that the leg irons and handcuffs had to be put on to prevent him from doing so. Gorka also agreed that on a daily basis they deal with mouthy people and it is dangerous in the holding cell are, therefore you are always paying attention to your safety. He further agreed that Vandusen became increasingly agitated when Pickering arrives with the leg irons and handcuffs. He also agreed that Pickering was in a better position than he to describe Vandusen’s body position.

He also testified he was using his hand to brace Vandusen for the CPSO’s safety and for Vandusen’s own safety. He agreed his focus was on the area where he was bracing Vandusen. Gorka does not recall Pickering asking Vandusen to pick up his right foot and Vandusen not doing so. Gorka testified the video does show that Vandusen lifts his first leg on the video. He does not recall whether Vandusen was responsive to directions regarding his second leg and he cannot tell from watching the video either.

While being cross-examined Gorka testified he does not remember the exact words of Vandusen, but he does remember that Vandusen was not happy about the leg shackles and handcuffs being put on. He does recall words to the effect from Vandusen indicating he was still going to be able to set off the sprinkler. 64 Gorka testified during cross-examination that he does not remember Pickering stating any kind of threat like “do that again and your face will be smashed against the floor”. He only recalls words similar to “don’t do that” or “stop that”.

He agreed that Pickering never used any words of threat towards Vandusen. He agreed that Vandusen’s arms and upper body were really tense while the handcuffs were being put on. He agreed that it is not required for a person to do such in order to get the handcuffs on. Once the leg irons and handcuffs were on, Gorka agreed that things began to happen very quickly. He agreed that once Vandusen’s body was facing the dry cell it was a split second before the movement into the cell. In that split second, he agreed, Vandusen’s body was tense and appeared to pushing back towards Pickering.

He agreed that things were happening so fast he didn’t have time to ask Pickering if everything was okay before the movement into the cell. 65 That completed the Crown’s case, aside from exhibits that I have not mentioned thus far. The only witness called by the Defence was the accused. CPSO C. Pickering (the accused) 66 Pickering was forty-two years old at the time of giving his testimony. He has been employed as a CPSO for twelve years.

The relevant evidence given by him follows. 67 On the date of the incident he was charged with transporting prisoners from the cell block area to the Superior Court assignment court. While performing those duties he heard over his radio earpiece there was a problem with a problematic inmate on the third floor. As a result he took the elevator to the third floor and when it opened he saw Vandusen in a heated argument with a cadet and a CPSO.

He recognized Vandusen’s face but he couldn’t put a name to his face at that time. Vandusen complied with getting on the elevator. Once the elevator doors were closed Vandusen was quiet. Pickering then heard a transmission through his earpiece that Vandusen was threatening to set off the sprinkler system. Once he heard that transmission that Vandusen he recalled the earlier incident involving Vandusen doing that very thing. Although he had no direct dealing with Vandusen he was involved in the cleanup.

Another transmission was heard by Pickering from Weatherstone indicating that they were to put Vandusen into a dry cell. 68 When the elevator opened downstairs in the holding cell area he, along with Keane and Gorka, escorted Vandusen to the dry cell area. Once Vandusen realized that’s where he was going Vandusen said “go ahead, put me into a dry cell, I don’t care, there’s a sprinkler in there, I can get to it.” Pickering testified that statement was said loud enough that the supervisor at the end of the hall heard it.

There was then a transmission that Vandusen was to be put in leg irons and handcuffs, with a chain, to restrict his movements. Pickering didn’t recall there being any discussion about who would get the restraints; he simply said he would grab them. He stated he was the most experienced of the group and was aware of that. 69 While he was getting the restraints he couldn’t hear anything coming from the dry cell area, stating there is lots of concrete and small hallways. When he entered the dry cell area he told Vandusen to face the wall.

He stated Vandusen started to turn, then immediately turned back and said “I had no right to do this, we can’t do this, there’s no reason to do this”. He then told him to turn and face the wall and Vandusen does so. Pickering testified that Vandusen was very agitated which was observable to him through Vandusen’s facial expression and change in body language. For safety reasons, he directed Vandusen to lift his right leg. He testified Vandusen did not comply so he had to reach down to put the leg iron on.

He said it became obvious to him that Vandusen was not going to cooperate and they had to get the restraints on quickly so things didn’t get out of hand. He then explained the procedure he used to put on the leg irons. 70 Pickering testified that as he was putting the leg iron on Vandusen yells, “If you put those on too fuckin tight I’m going to freak out and bang and crash the rest of the day”. He said he did not respond to that as he was focused on getting the leg irons on as quickly and safely as possible to prevent any injury to him or anything from happening.

After getting the leg irons on he directed Vandusen to face him and Vandusen does so. He then took control of Vandusen’s right arm and Keane took control of Vandusen’s left arm. As soon as he took control of the right arm Vandusen immediately tensed up his entire body and clenched his fist and went rigid. Pickering said that makes it very difficult to put handcuffs on. Pickering says he is able to put the right handcuff on but because Vandusen is rigid he had to use both his hands to pull Vandusen’s right hand close enough to his left hand to get the left handcuff on.

He then used the handcuff key to double lock the right handcuff and as he reached over to double lock the left handcuff Vandusen grabbed his hands. Pickering thought he was reaching for the handcuff key. Pickering pulled the key back quickly, looked at Vandusen and said, “Don’t do that again or we’re going to have a fucking problem”. When asked by his counsel what he meant by those words Pickering stated that up to then Pickering was in a single cell but was transported to the courtrooms without any hardware (restraints) and doesn’t have any major flag records on his record.

Pickering stated he was going to upgrade Vandusen’s status, which meant flag him in the system, so that when he was being transported to court he would have to be in restraints. He stated that’s what he was trying to get across when he said “we’re going to have a problem”. Pickering denied saying “do it again and your face will be smashed off the floor so fast” and denied making any threat whatsoever. He stated he was able to get the second handcuff double locked. He then turned Vandusen and directed him to go into the dry cell. Pickering testified “and this is where things happened rather quickly”.

He turned Vandusen and as Vandusen squared his shoulders he felt Vandusen push back with his shoulders into his chest. He then testified “I reacted to that. It was instant in my mind, he’s not going into this cell willingly, he’s a much bigger man than I am. I reached under his arms, lifted and I pushed hard to get him driving forward.” 71 Pickering was then asked by his counsel about his stature. Pickering testified that he is 5’ 9” and was about 185 pounds on the date of the incident.

He described Vandusen as being quite a bit taller and quite a bit bigger, referring to Vandusen’s body weight. 72 Pickering testified that he wasn’t given any formal training about how to put prisoners that are being difficult into a cell. He said he had developed a method that worked for him, also indicating that he imagined each officer probably has developed the method that works for them. He testified grabbing a hold of the individual and pushing forward is what works for him. He has used the same method many times on people who have been in leg irons and handcuffs and who have also offered resistance.

He stated none of them had ever been injured. 73 He was asked how much resistance was being offered by Vandusen. He stated there was a lot of resistance and then stated, “I had to push very hard and lift to get his body weight shifted to overcome his strength to stop me from putting him into the cell”. He testified he felt Vandusen was still resisting so he was pushing hard trying to get Vandusen as far back into the dry cell as he could. He was asked by his counsel why he wanted to get Vandusen as far back as he could.

Pickering stated, “when you have an individual that is being combative and his behaviour has escalated quickly over that short little period of time from just being argumentative, not following commands completely to assaultive and, you know, further than that, I get an individual to as far back in the cell as I possibly can, um, secure him in a spot where I would have him facing the wall and I would have made sure everybody else in the cell block had retreated safely and then I would have made a quick retreat.

That gives me a buffer to get out of the cell quickly and allow another officer to get the door closed and locked before Mr. Vandusen has an opportunity to try and either push back out of the cell at which point you’re then fighting with somebody again with a, you know, around a big steel door, steel frame, and there is risk for fingers, arms, anything getting trapped and pinched in those doors which causes a lot of damage.” He went on to say that doing it in such a way is “a safety feature for both inmate and myself to make sure we have a quick retreat and eliminate any further interaction with the inmate”.

74 He was then asked by his counsel, “so what happened, sir?” Pickering stated, “uhm, it’s, it’s almost like Mr. Vandusen just stopped resisting and the momentum picked right up, we hit the back wall, Mr. Vandusen dropped to the floor and began yelling and screaming. I took that as he was just in a temper tantrum, similar to the previous occasion” (referring to the time when Vandusen set off the sprinkler system).

He took that as an opportunity to make a quick retreat from the cell block and Keane closed the door. 75 He went on to testify that it was never his intention to have Vandusen come into contact with any wall in the cell. He further testified that after Vandusen hit the wall he was not aware he suffered any injuries. Once he left the cell he said he went down the corridor to the control room where the monitors were. It was brought to his attention by Ashley that blood is coming out of Vandusen’s mouth. He, Gorka, Ashley and Keane re-attend the area.

He didn’t re-enter the cell because he had already had an altercation with Vandusen and for him to re-enter the cell would most likely escalate the situation even further. He stayed outside, out of sight, and stood by in case there was any reason where he would have needed to re-attend to assist. He had no further contact with Vandusen.

Cross-examination of the accused 76 During cross-examination Pickering denied all suggestions from the Crown that it was his intention to pay Vandusen back because of Vandusen’s behaviour that day by running him straight into the back wall of the cell. 77 He acknowledged that he was aware that Vandusen was a difficult prisoner to deal with. He agreed that Vandusen had not been uncooperative before entering the dry cell area.

He also agreed its only when Vandusen becomes aware of the restraints that Vandusen becomes very agitated. 78 As a result of the incident Pickering wrote a brief synopsis in his notebook of what had occurred. During cross-examination he acknowledged that while he wrote in his notebook that Vandusen was being uncooperative while he was attempting to put on the leg irons, he wrote nothing about Vandusen being very agitated at any point in his interaction with him.

Pickering explained this inconsistency by saying his duty book notes are just a brief synopsis, not a formal statement which he would have done if given the opportunity, so the details wouldn’t be there. The Crown suggested he would have written what was important in his notebook to which Pickering said “that’s done in formal statements”. He said leaving out a reference to Vandusen’s behaviour wasn’t an intentional omission. He denied the suggestion to him that he was embellishing the story about Vandusen to hold himself in a different light with the court.

The Crown further suggested to him that Vandusen, although not immediately cooperative with lifting his right leg, he did do it . Pickering disagreed.

When questioned about his testimony regarding Vandusen not lifting either leg when requested to do so, Pickering testified that while Vandusen’s heel was lifted, the balls of his feet were still on the ground. 79 During cross-examination Pickering further testified that the only times he has watched the video was on the day of the incident when he was shown the video quickly by the Sargent, one time in the office of his lawyer and when it was shown in court. 80 The Crown asked Pickering what it was that he had observed about Vandusen that led him to the conclusion that putting on the restraints had to be done quickly.

Pickering referred to his twelve years of experience which helps him pick up subtle signs that are not necessarily going to be picked up by a video recording with others standing around. He stated you need to be physically in front of the individual to pick up those small subtle signs that you learn to look out for over the years that indicate things are changing quickly. 81 Pickering agreed with the Crown suggestion that up to the point just before he put the handcuffs on he would have described Vandusen as uncooperative following the commands.

He agreed the words that are in quotes are verbatim as to what Vandusen said, “If they go on too tight, I’m going to freak out and bang the rest of the day”.

He felt those words were an indicator that there was potential for further aggression or assaultive behaviour and that he needed to get the leg irons on quickly to eliminate the potential for any future escalation or risk of injury. 82 When asked by the Crown if Pickering was angry, upset, frustrated, impatient, irritated, exasperated or mad when he said the words, “not to fucking try that again or we will have a problem”, because Vandusen grabbed both his hands. Then why, he was asked by the Crown, use profanity towards Vandusen?

Pickering replied he used those words because sometimes that’s what they (meaning the prisoners) relate to. He further stated that if you are brief and sharp with them it seems to sink in quicker. He agreed that it was an attempt by him to relate to Vandusen in a way that he understood and was not a reflection of how he felt about Vandusen’s behaviour.

83 Once the handcuffs were on Pickering said Vandusen was expected to just walk into the cell. He testified, in cross-examination, that he asked Vandusen to move into cell . He went on to say that as he was turning Vandusen into the cell, he gave him directions to move into the cell, meaning he told him to go into the cell. He can’t recall if Vandusen said any words at the point when he resisted going into the cell. He agreed with the suggestion that once Vandusen was squared up to the cell, things happened very quickly.

The Crown suggested that it happened very quickly because he was upset and frustrated with Vandusen. He disagreed. The Crown suggested he then simply pushed Vandusen right through the cell into the back wall.

Pickering agreed he did that but, in reaction to Vandusen pushing back onto him he pushed Vandusen into the cell. 84 Pickering further testified during cross-examination that Vandusen was resistant beyond the threshold of the doorway into the dry cell and he testified that whether you could visually see it on the video recording or not, he could physically feel Vandusen resisting and that’s what he was reacting to. It was suggested by the Crown that Vandusen stopped pushing back almost immediately. Pickering disagreed.

The Crown suggested when Pickering took control of his shoulders he just started pushing him quickly into the cell overcoming his resistance within a step or two. Pickering said he can’t determine when he felt no resistance as he did not calculate in his mind when he stopped feeling resistance. Pickering acknowledged there was a point in time at which he no longer felt resistance and their momentum went forward at a rapid rate at that point. He stated that he could not see or judge the distance where he was at in the dry cell because he had a taller man in front of him which was like a wall.

The Crown suggested that he wasn’t paying any attention to Vandusen at all and he pushed him as hard as he could into the back wall. Pickering stated he was paying attention to Vandusen. He stated he had physical control of Vandusen and yes he pushed him hard to get him through the threshold of the door and into the cell as far as he could. He further stated the coming into contact with the wall was as a result of the resistance stopping and the momentum continuing forward. He said his objective was never to drive him into the back wall.

The Crown suggested that at some point he stopped caring about Vandusen and just squashed him into the wall. Pickering disagreed. 85 The Crown finished his cross-examination by suggesting that Vandusen was never actively resistive. Pickering disagreed. The Crown suggested you don’t see on the video Vandusen for example moving vigorously to make it impossible for you to put the restraints on.

Pickering responded that there are no quick deliberate motions but there is deliberate tension and resistance and whether it was quick or not, there was plenty of physical resistance for them to effectively and smoothly apply the restraints with minimal (sentence never finished). The Crown suggested that Vandusen was at most passively resistant as Keane suggested. Pickering responded by saying that was Keane’s perception and every individual sees things differently and has a different recollection.

He said he was hands on and directly in front of Vandusen and could have picked up things differently than Keane. 86 Pickering confirmed he asked Vandusen only once to enter the cell. It was suggested by the Crown that he could have asked for assistance to which Pickering replied that he reacted quickly to the resistance of Vandusen pushing him. He further stated “I’m not about to take a moment and turn to my other officers and ask for assistance.

I reacted, I rely on them to react to my reaction and come to my assistance if need be.” With the benefit of hindsight, Pickering said he would have done exactly the same thing.

Position of the parties Defence 87 Defence counsel submits, in order for this court to make a finding of guilt, the court must find that the accused intentionally used excessive force beyond a reasonable doubt and that excessive force caused bodily harm. 88 It is the Defence submission that the video recordings tell only part of the story; the rest of the story is best known by the accused and Vandusen as they are the only two who can speak directly to the use of force. 89 Defence counsel submits the accused presented as an honest, forthright and candid witness.

He submits the accused had the unenviable task of moving a resistant male into a dry cell. He had to rely on his own on the job training as to how to do it because despite it being a regular occurrence for a CPSO to be tasked with putting a resistant person in a cell the London Police Service offers no guidance on how to best accomplish the task. That leaves the CPSOs to determine, on their own, on a case by case basis how to perform that task. That is the position the accused was in on the day in question.

Defence counsel submits the absence of such training has the effect of depriving the court of an objective basis as to how to measure how much force the accused could have or should have used. Further, Defence counsel submits, whether or not there is training the standard cannot be perfection; in the environment where the accused works things are bound to go array and things not go as one intended or hoped.

90 Defence counsel urges the court to consider the period of time directly preceding the accused efforts to get Vandusen into the dry cell. He submits at no time is Vandusen roughed up, pushed, slapped or shoved but rather the interaction captured on video is without a single indication of anything other than professionalism, despite the Vandusen being mouthy and agitated. The accused only gave a stern verbal rebuke when Vandusen reaches for the accused hands or keys. Defence counsel submits the accused was acting in a manner that was consistent with his sworn duties as a Special Constable.

Counsel submits that when Vandusen turned to face the dry cell he put his shoulders back, planted his feet, lowered his centre of gravity and pushed his shoulders into the accused. The intention of the accused, counsel submits, was to quickly overcome the resistance to deliver Vandusen into the back of the cell for his own safety and for the accused because if all goes according to plan that would allow the accused sufficient time to exit the cell and the door to the cell to be safely closed behind him. Counsel points to the fact that the accused testified he had successfully executed before without incident.

Counsel further submitted that Vandusen is both taller and bigger than the accused by a significant margin ???? and that Vandusen wore, almost as a badge of honour, that he is so strong that had he not wanted to be shackled he could have prevented that from happening. Defence asks, is it possible that he used that strength to resist being placed into the cell? Counsel submits that Vandusen likely realized, once he was shackled and handcuffed that it was going to be a long day in a dry cell and therefore sets his mind on not wanting to go into the dry cell.

Counsel submits given Vandusen’s state of mind, the utterances he made, his criminal record, his behaviour that day, it is not only possible, it is probable. 91 Defence counsel submits it is more than possible that Vandusen, as a man bent on getting his own way, a man that is self admittedly suicidal, a man who had on a previous day bashed his own head off of a cell wall decided, without warning, to stop offering the very resistance he had started to thus creating of his own accord a dangerous situation for himself.

Counsel submits the evidence establishes quite clearly that Vandusen is unpredictable, without respect for himself nor for authority. Therefore, Defence submits it is quite possible that Vandusen played a significant role in the events which took him into the cell wall. On that evidence the Defence submits the Crown has not established beyond a reasonable doubt the accused used excessive force in the circumstances of this case. He pointed to the analysis found in R. v.

W.D. , without naming the case specifically, to support his position that a finding of not guilty ought to be made. 92 It is the submission of Defence counsel that what happened to Vandusen that day was as unintentional as it was unfortunate. Things did not go as planned and that an injury was the unfortunate result is not on its own capable of supporting a conviction.

He submits the court should take solace in how the authorities handled the situation, absent an explanation which the court now has. 93 Defence counsel highlighted the supporting evidence from Keane and Gorka to support the accused evidence, particular in regards to Vandusen’s demeanor and the resistance being offered by Vandusen. He submits their testimony provides the court with realistic assistance in terms of resolving the ultimate issue. 94 It is the submission of Defence counsel that Vandusen’s evidence that he was going into the cell voluntarily is unworthy of belief.

He pointed to the evidence given by Keane and Gorka as to how Vandusen was behaving as demonstrating what Vandusen was thinking.

He also pointed to the fact that Vandusen admits to being agitated easily, that he was agitated because of his last court appearance, that he was a man who has threatened to set off a sprinkler, a man who acts impulsively, has a record of violence directed at law enforcement officials, commits criminal offences in order to get a quick trip back to the remand facility, was a man whose agitation, perhaps caused by his bi-polar disorder, was not being properly controlled by anti-psychotic medication and was a man who had just lost the ability to carry out his most recent threat.

Therefore, Defence counsel submits, Vandusen was a man who was not going to go into his cell voluntarily. Counsel submits Vandusen’s evidence in that regard defies logic and common sense and is contradicted by the other witnesses and contradicted by Vandusen’s own body language as seen on the video. 95 Defence counsel urges the court to not only reject Vandusen’s evidence but submits the court should also be troubled by Vandusen’s effort to mislead the court on that very important point.

Defence counsel submits as part of Vandusen’s agenda he offered a specific utterance that was designed to assist him at convincing the court the accused actions were intentional. The utterance Defence was referring to were the words Vandusen attributed to the accused when Vandusen had touched the link in the chain, “do that again and your face will hit the floor”. Defence points to the fact that those words were something Vandusen had not offered before when given the opportunity to say them on the very date in question and they were not overheard by anyone else nearby.

Defence submits the accused has his own agenda. He points out that Vandusen wanted advice of a lawyer before providing a statement to the police and he had a civil lawyer in mind that same day and he wrote letters to the Crown. Defence submits all of that provided Vandusen the opportunity to make known the utterance he disclosed on the day he testified to make known to the court. That effort to mislead the court, Defence submits, deprives the court of an ability to make conclusions about the amount of force that would have reasonably been required to overcome his resistance.

His attempts to cloud that issue lead to questions that can’t be resolved about his motivation for being dishonest. Did he give up at the last moment, was he acting impulsively, did his desire or lack of fear for self-harm kick in, did he stop resisting as a result of getting tripped up by his own feet thus inadvertently losing the ability to continue his resistance, did he hit the wall by accident despite his resistance? Defence counsel submits it is as a result of those issues and Vandusen’s lack of clarity on those issues and the other evidence heard i

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