Her Majesty the Queen - v. -, 2017 SKPC 40

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 040 Date: May 10, 2017 Information: 90100938 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kevin Anim Otu Appearing: David Zeggelaar For the Crown Nicholas Stooshinoff, Q.C. For the Accused DECISION K.A. LANG , J I. INTRODUCTION [ 1 ] The accused, Kevin Otu, is charged as follows: On or about the 30 th day of August 2016 at Regina in the Province of Saskatchewan did: 1. assault Christopher Lemay, a Peace Officer of the Regina Provincial Correctional Centre, engaged in the lawful execution of his duty contrary to section 270(1) (

a) of the Criminal Code ;

2. assault Nicholas Hutchins, a Peace Officer of the Regina Provincial Correctional Centre, engaged in the lawful execution of hisduty contrary to section 270(1)(

a) of the Criminal Code. [2] At the outset of the trial the Crown advised the court that it intended upon calling two witnesses. Those witnesses wereChristopher Lemay (“Lemay”) and Nicholas Hutchins (“Hutchins”). Both were guards at the Regina Provincial Correctional facility(“RPC”) at all material times. [3] The Crown also advised the Court at the outset that it had no intention of introducing into evidence an RPC videotape thatcaptured the entire alleged assault.

Only upon the objection of the defence did the Crown agree to introduce the videotape into evidence. [4] There can be no better evidence than clear videotaped evidence of an incident. In this case that is what the Crown had in itspossession. It defies all logic why the Crown would not be quick to enter a videotape such as this into evidence.

One reason would be ifthe videotape did not support the testimony of the Crown witness, as was the case here. [5] In the Supreme Court of Canada decision of Boucher v The Queen, (SCC), [1955] SCR 16 citing withapproval the case of Rex v Chamandy, (ON CA), [1934] 2 DLR 48 (ON CA) it was held: It cannot be made too clear, that in our law, a criminal prosecution is not a contest between individuals, nor is it a contest between theCrown endeavouring to convict and the accused endeavouring to be acquitted; but it is an investigation that should be conducted withoutfeeling or animus on the part of the prosecution, with the single view of determining the truth. [6] The Crown therefore must be ever vigilant in its pursuit of the truth and not just conviction.

It indeed would be a rare occasionwhen videotaped evidence of an incident would not be the best evidence to place before the court. [7] In the end, the Crown called only one witness, being Lemay. At the conclusion of the Crown’s case it stayed the chargeinvolving Hutchins and the Crown elected not to call him as a witness. The videotape was entered into evidence as Exhibit P-1. [8] The defence called no evidence. II.

CROWN EVIDENCE CORRECTIONS OFFICER LEMAY [9] Lemay was the Crown’s one and only witness. [10] He testified that he was on duty on the day of August 30, 2016 at the RPC. [11] Lemay testified that the cell area consists of three tiers. Having now seen the videotape, the cell area could be described as anatrium from floor to ceiling with individual cells circling the atrium’s exterior, extending some three floors. [12] On August 30, 2016, Lemay had noticed the accused up on tier three. The accused was not allowed on tier three and was toldby Lemay to return to tier one.

[ 13 ] According to Lemay, the accused somewhat reluctantly complied and, according to Lemay, the accused slowly started descending the staircase.

The stairwell is an open staircase within the atrium that can be seen from nearly any vantage point, and in this case, could be seen from the vantage point of Lemay who was on the first tier. [ 14 ] Lemay testified that he warned the accused to walk faster or he, the accused, would be confined to his cell for the remainder of the day. [ 15 ] Apparently the accused did not walk at a speed that was to Lemay’s liking and consequently Lemay instructed the accused, while the accused was still descending the stairs, that he, the accused, would be confined to his cell for the remainder of the day.

The accused apparently was not happy with this result and so upon reaching tier one, instead of retreating to his cell, he walked outside to the basketball court. [ 16 ] I will say at this juncture that I have viewed the videotape of the accused descending the stairwell and I did not personally have any issue with the rate of his descent down the stairwell.

Lemay’s order to have the accused confined into his cell for the entirety of the day for such a minor or trifling infraction seemed to me to be excessive, and perhaps led to what happened next. [ 17 ] Lemay then testified that as the accused was now disregarding a direct order by not immediately retreating to his cell, he and Hutchins, who was also on duty at the RPC at the time, attended the basketball court.

Lemay testified that he and Hutchins instructed the accused, at least six times, to go back inside to lock up. [ 18 ] At this juncture it might be useful to physically describe the parties based on the videotaped evidence that I have seen. The accused, Kevin Otu, appears to be a slim, shorter than average individual. Lemay is of medium height and build.

Hutchins is a large man both in height and weight, and due to his size, has a very physical presence. [ 19 ] Lemay testified that when the accused saw Lemay and Hutchins attend outside to the basketball court he, the accused, put the basketball down and went to the right side of the compound and put his back to the wall. [ 20 ] Lemay testified that he and Hutchins approached the accused with Hutchins reaching for the accused.

According to Lemay, it is at this point the accused swung at Lemay with his right arm and tried to punch him but only grazed Lemay’s right cheek below his right eye. [ 21 ] Lemay then described the accused as fighting Lemay and Hutchins while they were trying to restrain him. [ 22 ] Lemay testified that eventually the accused was subdued and other staff arrived to assist. The accused was then taken inside. VIDEOTAPE [ 23 ] Unfortunately for the Crown and Lemay, the videotape told a much different story. [ 24 ] There are two video segments entered into evidence.

Notably neither segment has any audio. [ 25 ] The first video segment showed what happened inside the cell area with the accused descending the stairs too slowly for Lemay’s liking.

[ 26 ] The second video segment showed the alleged assault which occurred on the basketball court. I have viewed both segments several times. I have already offered my opinion on what happened inside the cell block area and although that incident was directly related to what happened outside, it is immaterial as far as the charges against the accused are concerned.

It does, however, put things into context. [ 27 ] Here is what the second videotape segment showed, noting that the accused, at the conclusion of the first videotape segment, can be seen exiting the cell block area at a time noted to be 9:10:59: 9:11:03 Four seconds after leaving the video relating to what happened in the first segment inside the cell block area, the accused is picked up on camera entering the basketball court outside.

The accused can be seen very casually entering the basketball court, putting down his coffee cup, and shooting baskets. 9:11:24 Guards Lemay and Hutchins enter the video of the basketball court (21 seconds after the confrontation between Lemay and the accused inside the cell area relating to the incident involving the accused descending the stairs too slowly). 9:11:28 Only four seconds after the guards enter the basketball court, Hutchins makes initial contact with the accused by grabbing for the left arm of the accused as the accused is shooting the basketball.

Both Lemay and Hutchins can be seen entering the basketball area with gloves on. Without breaking stride they approach the accused and become physical with him. Immediately after first contact by Hutchins, both Hutchins and Lemay are both grabbing the accused and applying considerable force to him as they push him back against the wall of the basketball court. In the process, the accused’s head goes down and his left arm comes up, grazing the left side of Lemay’s neck.

Although the accused appears to be defending or simply sheltering himself from the considerable aggression of Lemay and Hutchins, no outright punches are thrown by the accused and most certainly the accused does not punch Lemay with his right fist to the right side of Lemay’s face. It just did not happen. At best the accused’s left arm does come up as he is being manhandled by Lemay and Hutchins but it is just as likely that the pure inertia of force being applied to the accused caused his left arm to come up.

In any event, this was not the act complained of by Lemay. 9:11:45 Hutchins and Lemay are now on top of the accused. At this point and again perhaps at 9:11:49, the head of Hutchins appears to collide with the right side of the face of Lemay (the same spot that Lemay testified he was struck by the accused - which we know did not happen). 9:11:46 Both Lemay and Hutchins are on top of the accused 18 seconds after they made first contact with him in the basketball court. 9:12:33 Six guards now take the accused back to cells. III. ISSUES

1. Did an assault occur? [28] Section 265(1)(a)(

b) of the Criminal Code defines assault as follows: 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe uponreasonable grounds that he has, present ability to effect his purpose; [29] Notably where the application of force is the result of carelessness, as in R v Starratt (1971), (ON CA), 5CCC (2d) 32 (Ont CA) or through a reflex action as in R v Wolfe (1974), (ON CA), 20 CCC (2d) 382 (Ont CA), theessential element of intent is lacking and the accused must be acquitted. [30] The act complained of by Lemay, in this case, was a punch by the accused using his right hand to the right side of Lemay’sface.

That simply did not happen. What is most likely is that Hutchins head struck the right side of Lemay’s face during the take downof the accused. [31] The only other possible assault would have been while Hutchins and Lemay were applying force to the accused, while pushing him against the wall of the basketball court. The accused’s left arm, in what appears to be inadvertence or simply a reflex actionas a result of the force being applied against him, comes up and grazes the left side of Lemay’s neck. This was not the allegation thatwas made by Lemay.

The videotape is certainly equivocal enough that I could not possibly convict the accused of an assault based onthis evidence alone as the intention of the accused has certainly not been proven beyond a reasonable doubt. An assault therefore, hasnot been proven by the Crown. 2. Was Officer Lemay acting in lawful execution of his duty when he applied force to Mr. Otu? [32] As I have already found the accused did not assault Lemay, this is somewhat of a moot point.

However, if the Crown was tobe successful in this prosecution it would have had to prove that not only did the accused assault Lemay, but that he did so while Lemaywas acting in the lawful execution of his duty. If Lemay was not assaulted or if Lemay was not acting lawfully, the charge as it stands, must fail. [33] Section 33(1) of The Correctional Services Act 2012, SS 2012, c C-39.2 [the “Act”] reads as follows: 33(1) A staff member may use a reasonable degree and means of force for any of the following purposes: (

a) to prevent injury or death to a person; (

b) to prevent property damage; (

c) to prevent an inmate from escaping; (

d) to maintain custody and control of an inmate. [34] Clearly it is only section 33(1)(

d) that has any remote application in this circumstance. The question therefore is whetherLemay and Hutchins were using a “reasonable degree and means of force” to “maintain custody and control of an inmate”. Lemaytestified that the accused was disobeying a direct order by not retreating to his cell once Lemay came to the conclusion that the accusedwas not descending the stairs quickly enough and ordered him to his cell. Lemay testified that his actions were therefore justifiable tomaintain control of the inmate.

[ 35 ] Clearly Lemay, at trial, felt he was acting lawfully and within the scope of his authority when he and Hutchins entered the basketball court and took down the accused. [ 36 ] Lemay’s credibility in this regard is significant. He was not a credible witness at trial for the following reasons: 1. Lemay himself was not a credible witness at trial. His testimony on critical evidence at trial was not consistent with the videotape evidence also admitted at trial; 2.

On numerous occasions at trial Lemay became argumentative during cross-examination and would not answer very specific questions with specific answers. Indeed the court was required to instruct Lemay to answer the questions asked but his obtrusiveness persisted even when shown the videotape that contradicted his testimony; 3.

Lemay’s testimony that Hutchins and he instructed the accused to retreat to his cell at least six times before becoming physical with him, is nearly impossible to believe given that, as shown on the videotape, there were only four seconds between the guards entering the videotape of the basketball court and the guards becoming aggressive with the accused. Clearly little to no attempt at alternative resolution was explored; 4.

Lemay’s testimony that when he and Hutchins entered the basketball court that the accused put his basketball down, retreated to the right side of the compound, and fought the guards, was clearly not accurate and was clearly not what happened. In fact the videotape illustrated that the accused was still in the process of shooting a basket when Lemay and Hutchins first grabbed a hold of him and pushed him back against the wall.

The testimony of Lemay in this regard affected his credibility. [ 37 ] In my view, now knowing the circumstances leading up to the incident on the basketball court and having viewed the videotape, Lemay and Hutchins had one purpose in mind when they entered the basketball court. That purpose was to physically take down the accused as quickly as possible. This is borne out by the fact that within four seconds of entering the basketball court they already were laying hands upon the accused and had approached the accused without breaking stride.

They were clearly not interested in any other resolution. [ 38 ] What is equally aggravating is the fact that the accused himself was not, at the time, being antagonistic to the guards as they approached and was simply in the act of shooting a basketball. [ 39 ] As Lemay and Hutchins approached the accused on the basketball court there was no pressing issue of custody or control and most certainly no need for the immediate use of force by Lemay or Hutchins. Lemay and Hutchins did not take or legitimately attempt any other reasonable measure of resolution short of physical force.

In so doing, their actions were not justified and in my view they did not use a reasonable degree and means of force under these circumstances. Accordingly they were not acting lawfully. At a minimum, the Crown has not proven beyond a reasonable doubt an element of the offence charged namely, that Lemay was lawfully engaged in the execution of his duty. [ 40 ] Accordingly I find the accused Kevin Otu not guilty as charged. The Crown has failed to prove beyond a reasonable doubt either the assault or that Lemay was acting lawfully in the execution of his duty.

Dated at the City of Regina, in the Province of Saskatchewan, this 10 th day of May 2017. ____________________________ K.A. Lang, J