R. v. Young, 2015 ONCJ 89

ONTARIO COURT OF JUSTICE CITATION: R. v. Young , 2015 ONCJ 89 DATE: 2015-02-24 BETWEEN: HER MAJESTY THE QUEEN — AND — TRENTON YOUNG Before Justice L. CHAPIN Heard on January 21 and 22 ND 2015 Reasons for Judgment released on February 24, 2015 Ms. L. Fineberg ....................................................................................... counsel for the Crown Mr. R. Rusonik ....................................................... counsel for the defendant Trenton Young CHAPIN J.: [ 1 ] Mr. Trenton Young is charged with assaulting a police officer causing bodily harm.

On New Year’s Eve of 2013 and into the early morning hours of January 1, 2014 Mr. Young was among many members of the public leaving Nathan Phillips square. A confrontation occurred between Mr. Young and Officer James Bragg near the intersection of Bay and Hagerman Streets. The crown called four police witnesses and Mr. Young testified. The issue is credibility. On January 22 nd , 2015 I acquitted Mr. Young of the charge and indicated that written reasons would follow. These are the reasons.

The Crown Evidence [ 2 ] Officer Bragg testified that during the early morning hours of January 1, 2014 he was with two other officers, P.C. and P.C. Martinez, on Bay Street to conduct crowd control and to ensure that vehicles were not turning onto Bay Street. The crowd was spilling out from Nathan Phillips Square and many streets were closed off to accommodate the flow of pedestrian traffic. [ 3 ] There was a commotion at one point as a young man was running on top of marked police cruisers and jumping on them.

Officer Bragg intercepted him and advised him that he was going to check for damage and charge him with mischief to property if the cars had been damaged. Officer Chou took over control of the male while Officer Bragg checked the cars. Officer Bragg concluded that there wasn’t any damage and went back to where the male was and advised him that he was lucky.

However, Officer Bragg noted that the male was intoxicated and was not able to walk properly without the assistance of another person and placed him under arrest for being intoxicated in a public place. [ 4 ] During the arrest Officer Bragg noticed that there were 6 – 9 males who were in the immediate vicinity who appeared to know the male under arrest. Officer Bragg left the male in Officer Chou’s custody and approached the men and told them to get out of the area or they would be arrested for obstructing police officers.

There were ongoing difficulties with the group of men who would grab the male and then let him go. Officer Bragg was of the opinion that they were pretending to be taking him away and that it was a distraction technique. One young man in the group claimed that he was the brother of the male being arrested and said that he wanted to go with him. [ 5 ] Officer Bragg called for backup and soon noticed one male, the accused before the court Mr Young, circling around to the right and the south of P.C. Martinez and himself. Officer Bragg felt that the male was trying to “flank” the officers and out of concern for

P.C. he took Mr. Young by the left arm and told him to leave several times. The accused pulled away and Officer Bragg grabbed his jacket collar with both hands and walked with him side-by-side outside of the perimeter that the officers had created around P.C. and the first male arrested. [ 6 ] While they were walking Officer Bragg let go of the left side of Mr. Young’s collar and was head butted by the accused. Officer Bragg saw the head butt coming but could not avoid it and was only able to turn his head to the right in an attempt to avoid the blow. Officer Bragg described the movement of Mr.

Young’s head as being a swift 45 degree swing. Mr Young’s head hit the left side of his face. On impact Officer Bragg heard air escape from his face and knew that he was seriously hurt. [ 7 ] He immediately put the accused into a head-lock and told him he was under arrest for assault police and Mr. Young asked him “what for” and the officer said “you idiot you head-butted me and you missed I am still alive. I was letting you go, you could have gone home.” [ 8 ] The male tried to pull out of the head-lock and Officer Bragg put him face-down on the ground for handcuffing. Two other officers searched Mr.

Young and Officer Bragg read him his rights to counsel and asked “do you understand” and the accused said “I didn’t mean to”. He told Mr. Young “you don’t head-butt someone like that. You could kill them”. Officer Bragg asked Officer Bragg saw blood drops falling down on Mr. Young’s head. The officer realized that the blood was coming from his head and nose. [ 9 ] In cross-examination Officer Bragg disagreed with the suggestion that he had fallen on his face causing the injury. Counsel for Mr. Young asked for leave to have Officer Bragg stand back-to-back and face-to-face with Mr. Young, which was granted.

While the two men were standing together it was clear that Mr. Young was shorter and the top of his head came close to the top of Officer Bragg’s ear. When standing face to face the top of Mr. Young’s head came up to the bridge of Officer Bragg’s nose. Officer Bragg was also much heavier than Mr. Young who was quite thin. [Officer Bragg estimated that he weighed 185 pounds at the time of the incident and later on in the defence case Mr. Young estimated that he was 125 pounds at the time]. [ 10 ] Officer Bragg turned over Mr.

Young to other officers and Officer Martinez drove him to the Toronto General Hospital Emergency where he was treated for his injuries. Later Officer Bragg was driven by Officer Martinez to 52 division as he was required to have a form filled out regarding the injuries he had suffered while on duty. Officer Bragg testified that he also suffered from anxiety as a result of this incident and denied that he had a pre-existing condition.

However, in cross-examination he did admit that he had suffered anxiety previously after being confronted with information from a disciplinary process. [ 11 ] Medical and dental records were filed on consent that indicated that Officer Bragg underwent surgery on January 16, 2014 to correct fractures on the left side of his face and that he suffered a fracture to a tooth along with numbness to a nerve branch on the left side of his cheek, upper lip and gums. [ 12 ] Officer Bragg used his notes to refresh his memory during his evidence. His notes were not in his standard police notebook.

He testified that after he returned home from the hospital and the division he used a pad of post-it notes to write his notes regarding the incident. In cross-examination Officer Bragg agreed that there were a number of things that he didn’t put into his notes that he pointed out in his examination-in-chief as follows; • That the other males grabbed the male that had said been asking to be arrested and pulled him away, but would let him go and that it was a distraction technique, • That neither he nor Mr.

Young lost their balance while walking together, • That the officers formed a protective barrier in relation to P.C., and • That he told several males to leave the area, and that there was one male who said he wanted to be arrested [ 13 ] Officer Bragg explained that he was in pain when he wrote out his notes and that some things were left out. He did not bring his notebook from that day to court and explained that he had left the notebook at the police division. The notes he referred to in court were not turned over to the officer in charge of the case for some time.

Officer Bragg was not sure when he turned them over. He recalled that it was at some point after he had undergone surgery. [ 14 ] Officer Martinez’s evidence was roughly along the same lines as Officer Bragg’s. He was present for the arrest of the first male and assisted Officers Chou and Bragg with it. He observed four males that came towards them who wanted their friend to be released. Despite clear loud verbal commands advising the males to go home they remained. He saw Officer Bragg struggling with the accused and assisted in bringing Mr. Young to the ground. He also noticed that P.C.

Bragg’s nose was bleeding and that he had a small bump under his eye. Officer Bragg told him that Mr. Young had head-butted him and that Mr. Young was under arrest. [ 15 ] When Officer Martinez was testifying in examination-in-chief he did not refer to his notebook at all. This is somewhat unusual. In cross-examination he agreed that the note he made about P.C. Bragg informing him that he had been head butted was at the very end of his notes. [ 16 ] Officer Chou’s testimony was quite different from the accounts provided by Officer Bragg and Officer Martinez.

His notes were made before he finished his shift during the early hours of the morning.

[ 17 ] Just prior to the incident involving Officer Bragg and Mr Young Officer was standing in the middle of the intersection of Bay and Hagerman Streets directing pedestrian and vehicular traffic. At one point he turned around and saw P.C. Bragg struggling with a first male who was arrested by P.C. Bragg for mischief. This male was turned over to Officer Chou who took him to the south-west corner of the intersection of Bay and Hagerman Streets. While Officer Chou was holding the male a number of other young men, who appeared to be friends of the male in custody, came towards him.

The men were ignoring the police officers who were telling them to stay away from the male in custody and were actively pushing Officers Martinez and Bragg. [ 18 ] While Officer Chou was holding the first male he turned and saw P.C. Bragg holding onto another male. While Officer Bragg was holding the male with one arm Officer Chou saw Officer Bragg fall face first onto the ground. Then Officer Bragg sat up and it looked to Officer Chou that Officer Bragg was losing consciousness as he fell backward. Officer Chou did not see anyone else fall when Officer Bragg fell and did not see anyone else on the ground.

Officer Chou did see P.C. Martinez on top of Mr. Young shortly afterward. [ 19 ] The Officer in Charge of this case, Officer O’Kane, was called regarding the Toronto Police Service Disclosure practices. His evidence was that the police service has two time limits for disclosure materials. The first is twenty-one days after an arrest and the second is fifty-two days after an arrest. All of the material is scanned into a system called “Versadex” and is forwarded to the Crown’s office. Officer O’Kane was able to determine that Officer Bragg’s notes were scanned into the system on March 12, 2014.

Roughly two and a half months after the incident. The Defence Evidence [ 20 ] Prior to the incident Mr. Young went to a friend’s house for dinner. At approximately 10:30 p.m. he and his friend left the house to meet with more friends at a subway station. Their plan was to join the festivities at Nathan Phillips square. Once they arrived at the edge of Nathan Phillips square they watched the fireworks and set out to leave after they were finished. Mr.

Young admitted to consuming approximately 500 millilitres of malt liquor that evening but said they he wasn’t intoxicated because it had been spread out over a the entire evening. [ 21 ] Mr. Young testified that he was at the same intersection with a group of friends and noticed a friend of his named George running towards a police car. George was upset because his brother had been arrested and he wanted the officers to arrest him as well. The officers told Mr. Young and the others to take George away or they would arrest him. Mr.

Young grabbed George with both hands and tried to pull him away but was not successful. [ 22 ] Officer Bragg grabbed Mr. Young him by his coat collar with both hands and pushed him backwards. As they were travelling backwards Mr. Young turned and they both fell down onto the pavement. Mr. Young struck the pavement first and then Officer Bragg fell on top of him. Officer Bragg’s head hit Mr. Young’s head driving it into the pavement. [ 23 ] After Mr. Young was arrested he was taken to the police station where he stayed for the rest of the early morning hours until he was released.

His mother brought him to the hospital after he was released because of his injuries. While they were at the hospital his mother took photographs of his injuries and they were filed as exhibits during the course of the trial. The photographs show that he had a large bloody abrasion on his forehead, abrasions to the bridge and tip of his nose, scrapes on his face and redness to the right chest area. [ 24 ] He discovered that there was also blood on the back of his head when the Dr. at the hospital was checking him. After showering later he realized that he did not have an injury to the back of his head. [ 25 ] Mr.

Young testified that he did not hit Officer Bragg but did struggle when Officer Bragg grabbed him as he was being choked. Mr. Young has never been in contact with the police in the past. Analysis The Principles to be Applied [ 26 ] In this case, Mr. Young is presumed to be innocent, unless and until the Crown has proven each essential element of this offence beyond a reasonable doubt. That is, that Mr. Young assaulted Officer Bragg, while he was engaged in the lawful execution of his duty and caused bodily harm to him. In this case there is no dispute that Officer Bragg sustained the injuries complained of.

The issue is how the injuries were sustained. [ 27 ] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. [ 28 ] It is not enough for me to believe that Mr. Young is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.

At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. [ 29 ] In assessing the credibility of the witnesses in this case, I remind myself of the principles articulated by the SCC in R. v. D.W . 1st: if I believe the evidence of the accused, I must acquit. 2nd: if I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit.

3rd: even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. Findings of Fact/ Analysis [ 30 ] In looking at the evidence of Mr. Young I find that I have difficulties with some of his evidence but on the whole I am left in a state of reasonable doubt by it. In particular his claim that he was completely sober at the time of his encounter with the police doesn’t make sense given the amount of alcohol he had consumed that evening.

Also, I cannot say that I am convinced that the fall occurred as Mr. Young described it because of the various versions I have heard about the sequence of events. [ 31 ] However, his evidence was quite detailed and there were no major inconsistencies. The Crown had indicated that his description of how he and Officer Bragg fell did not make sense given their relative sizes; however, in a dynamic situation as this was it would be very difficult to say how their bodies would have fallen in relation to one another. [ 32 ] I note that the admission attributed to Mr.

Young by Officer Bragg was not adduced by the Crown and the Crown was not relying on it as evidence of Mr. Young’s guilt. [ 33 ] In conclusion, I find that I cannot tell how the events unfolded involving the injuries sustained by both Officer Bragg and Mr. Young. As a result I am unable to make any findings of fact because of the four completely different versions of the events described by the Officers and Mr. Young. Released: February 24, 2015 Signed: “Justice Chapin”