R. v. Anobis, 2022 MBPC 17

CITATION: R. v. Anobis , 2022 MBPC 17 THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) T. Cannon and M. Bodner ) for the Crown ) -and- ) ) ) Shaun Patrick Anobis ) M. Pollock and J. Love ) for the Accused ) ) ) ) ) Reasons for Decision ) Delivered: April 5, 2022 HEINRICHS P.J. INTRODUCTION [ 1 ] Shaun Anobis lived in a rooming house at 414 Maryland Street for a couple of years and then moved away in 2019. One June afternoon the following year, he returned to visit a couple of friends, Chris and Dalton, who still lived there.

After being let in the building, he went to see Chris for a few minutes and then went to hang out with Dalton in his room. He drank part of a beer and shared a joint with Dalton. There was a female in the room with Dalton when he arrived. After a while, Shaun Anobis went to use the washroom, located down the hallway. When he returned, he noticed that his cell phone – which he had plugged in to charge behind Dalton’s bed – and the female, whose name he did not know, were gone. [ 2 ] Shaun Anobis ran back to Chris’ room to see if the female or his phone were there and was told she hadn’t come to his room.

So he asked Chris for permission to use his cell phone in order to use the app which allows you to track your own phone’s location. The app “pinged” that his phone was now in the house next door, so he asked Dalton to accompany him to get his phone back. They went up to the open front door of the house and knocked. A female, and then a male, came to talk to them. Shaun Anobis explained why they were there and they stated that there had been similar issues with this person before. The male then walked them to female’s room in the back.

Shaun Anobis recognized the female lying on a mattress as the one who had been in Dalton’s room earlier. The male tried to wake her up; he asked her about the phone and briefly searched the room. Shaun Anobis told the female that he knew she had his cell phone and that it had passwords on it so it would be useless to her, but she didn’t give it to him.

He now noticed that Dalton was gone and as he was feeling uncomfortable in being there alone, Shaun Anobis left her room and went back to the front door in order to leave the house. [ 3 ] Winnipeg Police Service Constables Sriram and Chymyshyn were working the evening shift on June 8, 2020, when they heard a call for service at 414 Maryland Street. The call was for a possible Break & Enter in progress and the information was that the male suspect might be in possession of a BB gun. The call came in at around 6:00 P.M. and as they were close by, they responded, arriving at the location within a minute.

As they approached the front of the house at 414 Maryland, they spoke to the male who outside the front of the house. He directed them to the house next door - to 406 Maryland. So the officers left the yard, returned to the sidewalk and entered the neighbouring yard and approached the front door. As they came closer, they could see a male inside the residence, approaching the front door.

He was yelling that his cell phone had been stolen, and the officers immediately noticed that he matched the description of the suspect given on the call: a slim male, race unknown, wearing a black and gold Louis Vuitton track suit. [ 4 ] What happened after the male approached the front door and ended with WPS officers pinning him down on the front lawn prior to taking him to their police cruiser is what this trial is about. The encounter between Shaun Anobis and the officers – which only lasted a few minutes - resulted in him being charged with assault peace officer x2 and resist arrest.

WHAT HAPPENED ACCORDING TO SHAUN ANOBIS [ 5 ] Shaun Anobis gave evidence on his own behalf. He explained that on that June afternoon he was simply going to his former residence, to see a couple of friends he had made while living in this rooming house. It was an uneventful, typical visit catching up with friends while having a drink and sharing a joint; that is, until his cell phone disappeared from Dalton’s room. It was obvious to him that the female who had been in Dalton’s room and was now gone must have taken it when he went to the washroom.

Thanks to the app he had set up on his phone, he was quickly able to determine that the phone was in the house next door. [ 6 ] After the unsuccessful attempt to retrieve his phone, he was on his way down the hallway and out the front door when he noticed that the police were coming into the yard. As he approached the officers he began yelling, “She stole my phone; she stole my phone!” Shaun Anobis explained that he was extremely upset about his expensive, new phone being taken; he thought the police were there to help him.

As he was approaching the landing to go down the stairs toward them, the officers told him to take his hands out of his pocket, which he did. As he was going down the stairs and approaching the officers, they came up to him on either side. The officers each grabbed one of his arms and took him down onto the grass a few feet from the bottom of the stairs. Just as he was going down, he was able to free his hands to brace the impact of falling to the ground, but as soon as he was on the ground the officers were on top of him. He was face down and his hands were beneath him; there was a lot of weight on his back.

He was still yelling that this girl had taken his cell phone. [ 7 ] Meanwhile, the police were asking him to give them his hands. He simply could not do this because of the weight on his back. He was punched on his side. The officers were yelling at him to stop resisting and at the same time he felt a tremendous amount of electricity going through his body. The electricity was applied to his buttock and thigh area a number of times, and the pain was tremendous. Before long his arms were freed and handcuffs were put on. He was pulled up by the cuffs and taken to the chain link fence close by.

His head was leaning over the fence as his neck was pushed against the top bar. An officer searched him and removed his wallet, his keys and a pocket knife. He was then escorted to a cruiser car and taken to the police station. [ 8 ] Shaun Anobis, in his testimony also said the following: 1. He denied being told that he was under arrest for a Break & Enter as he was coming down the stairs and approaching the officers, or being grabbed by them and taken down to the ground. 2.

He denied punching or kicking the officers at any time, unless there was a defensive kick during the time he was pinned down on the ground with the officers on top of him. 3. When he was pinned down, he was still trying to tell the officers that this person had stolen his phone. 4. He told the police that he was not resisting. 5. When on the ground he was never warned that a Taser was about to be used on him. 6. The electric jolts he received on his body, as he soon realized, were as a result of a Taser being deployed by one of the officers. He screamed in pain as the Taser was used on his body. 7.

The following day, he had photos taken of his buttocks and thigh area, when he noticed the marks the Taser had left. Those photos have been entered as exhibits in this trial. 8. He denied being taken to the fence and searched before he was taken to the ground. He explained that the only time he was taken to the fence was after being down on the ground and handcuffed. 9. He explained that the pocket knife the police took from him had likely been left in his pocket from fishing the day before. 10. At no time that day did he remove the pocket knife from his pocket. 11.

He did not have a BB gun on him at any time that day. WHAT HAPPENED ACCORDING TO THE OFFICERS [ 9 ] Constable Sriram testified that when he and his partner, Constable Chymyshyn responded to the call for service at 414 Maryland they met a male who was in the front yard. He was pointing to the house next door - 406 Maryland - and said that there was yelling and screaming coming from over there and that the guy was inside that house. So he and his partner went next door and as they approached the front of the house he could see a male coming out that matched the call description; he was wearing Louis Vuitton sweats.

He was “very amped out” and aggressive. He was coming toward the officers and he had his hands in his hoodie. He was upset about the fact that someone had stolen his cell phone. The officer gave the male loud and clear instructions to show his hands. [ 10 ] Constable Sriram, in direct testimony then said, “I clearly yell at him saying, hey, show your hands.

And initially he doesn’t because he’s still upset about the fact that someone stole his phone but eventually he does.” The officer is then asked “Now where is he when he wouldn’t take his hands out?” He answered, “We were actually just in front of the entrance a little bit further down.” [ 11 ] Constable Sriram then explained that as the male was walking toward them he took his hands out of his pocket. Constable Sriram took the male’s left hand while his partner grabbed the male’s right hand. This was done for officer safety.

During this time they told the male that he was being detained for a B & E investigation and that they were looking for weapons. [ 12 ] The officers then led the male to the fence where the male put both of his hands on the fence so that his partner, Constable Chymyshyn could search him. While searching his pockets, Constable Chymyshyn found a pocket knife. The officers now tried to bring his hands to his back so they could handcuff him; the male was yelling “Why did you take that knife away from me; it’s for my

protection.” He then turned around and punched Constable Chymyshyn in his upper body. The officers guided the male to the ground as he was still punching. The male turned as they went down so that he was on his stomach, where he “turtled”. The officer explained that this is when someone is face down on their stomach and they put their hands underneath their body. Once on the ground the male kicked him multiple times. Constable Sriram now radioed for more units to come and give them a hand. [ 13 ] Constable Sriram took control of the male’s lower body and asked for his hands.

He didn’t comply, instead he continued to kick the officer. So the officer gave the male two or three knee strikes. The male still would not give his hands so the officer took his Taser out and gave the male a dry stun for two to three seconds on his centre buttock area. He was still not giving his hands. By this time his supervisor, Sergeant Gillies, had arrived on scene and was also trying to get the male’s hands free. Constable Sriram then gave the male a second dry stun at which point in time the male gave up his left hand.

As the male was still in the “turtle” position with his right hand under him, the officer gave him a third dry stun, again to the buttock area, at which point in time the male gave up his right hand and the officers were able to put the handcuffs on. When asked how many times he used the Taser in total, he replied “Three times - approximately,” . [ 14 ] The officers then lifted him up, told him he was being arrested for “Assault PO”, and walked him to their cruiser car. The male yelled once – or maybe twice – that he couldn’t breathe.

At the cruiser car they searched him and put him inside before taking him to the police station. The male remained agitated in the police car and when they arrived at the station and were in the Sally Port. [ 15 ] Constable Chymyshyn testified that he and his partner, Constable Sriram, were assigned to a call at 414 Maryland at 6:01 pm on that day. The voicing of the call told them that a male ran into a house in possible possession of a BB gun and was yelling at people. They arrived within a minute and were directed by a person working on the house or stairs to go next door.

So the officers walked around the fence and approached the house from the front sidewalk. [ 16 ] As they approached the front door – which was open – they could hear a male yelling inside the house. Constable Chymyshyn testified that they identified themselves as Winnipeg Police and directed the person yelling to come outside. The male was screaming “They stole my cell phone; they stole my cell phone.” As the male approached the front door, the officer could see that he matched the description of the male on the call: slim build, unknown race, and wearing a black and gold Louis Vuitton track suit.

As he came to the threshold of the front door, the officers backed off down the stairs to gain distance from him – for officer safety. The male continued to yell at them to do their job – to get his cell phone back. His hands were in his pockets. Constable Chymyshyn testified that he said, “You’re being detained for a Break and Enter” and told him he had to come outside. During this time the male still would not comply with his hands out of his pockets. The male was acting in an erratic behavior, yelling and screaming about his phone.

Eventually the male moved down to where the officers were but he was not listening to their verbal commands. The officers took control of him and brought him over to the chain link fence. While at the fence the male became even more agitated about his cell phone. The male then punched Constable Chymyshyn in the right shoulder two times and then made swinging motion with his leg as if to donkey kick Constable Sriram. The officer searched the male and felt an object inside his front pocket.

He removed a wallet and a brown folding knife. [ 17 ] The two officers then took the male to the ground with Constable Sriram on his lower body and Constable Chymyshyn on his upper torso, placing a hand on his head so that he couldn’t move it or squirm. Constable Chymyshyn testified that at the time he weighed around 265 pounds and was carrying approximately 40 pounds of gear. He used all of that weight to pin the male down. When the male went down he turtled his hands and so he told the male – over and over again – to bring out his hands. He didn’t respond to the commands.

He was demonstrating superhuman strength which the officer believed might be due to the male being high on meth. As he was on his upper torso, he could not see exactly what his partner was doing during this time, although he could hear the clicking of a Taser. He called for backup and more help came. This included Sergeant Gillies. In his notebook he recorded that Sergeant Gillies punched the male two times. With more officers present to assist, they were able to get the male into handcuffs. It was now 6:15 P.M. and he formally arrested the male.

He and his partner then transported the male, Shaun Anobis to the police station for processing. He was still acting in an erratic manner during this time. [ 18 ] Sergeant Gillies testified that he did not create any handwritten notes in a notebook or type any narrative in relation to his involvement in this incident. In fact, the incident didn’t stand out in his memory, and so a lot of his answers were based on what he presumed would have happened. For example, he could not recall if he struck Shaun Anobis when he was on the ground, but he might have.

Because of this, his evidence cannot be relied on at all, as it is impossible to tell where it is that he is relying on a memory of the incident or on what he read about the incident in a report or when he was testifying on what he presumed had happened or would normally have happened. WHAT OTHER EVIDENCE WAS PRESENTED? THE TASER REPORTS [ 19 ] A lot of the evidence presented in this trial was with respect to the use of force and the training of Winnipeg Police Service officers on when and how to use force, including the weapons they carry with them while on duty.

Constable Creighton of the WPS was qualified to testify as an expert with respect to the Use of Force continuum, including the use of a Taser, how a Taser works, and in the

interpretation of Taser Reports and Logs. [ 20 ] Filed as Exhibit #1 in the trial was the Taser Report from the Taser used by Constable Sriram on June 8, 2020. The report includes the event log records and pulse log graphs. Constable Creighton testified that he was the one who downloaded that information. He explained that the event log records when the weapon is turned on, used and turned off. In this case, the relevant information is found at sequence numbers 74 to 88 of that report.

It showed that the Taser was armed – that is, turned on -at 6:09:40 P.M. that day, that the arch switch was pressed with electricity being released thirteen times between 6:09:43 and 6:10:24, and that the Taser was turned off at 6:10:25. The duration of the arcs on the event log are rounded up to seconds, and showed arcs of between one and four seconds. However the Pulse Log Graphs show that the arcs were between a fraction of a second and 3 ½ seconds.

Constable Creighton explained that when the arc switch is pressed the Taser emits 19 pulses of electricity in one second and that the graphs do not tell you whether or not the electricity actually connected with someone’s body.

THE USE OF FORCE REPORTS [ 21 ] When a WPS officer uses force against a member of the public, the officer is required to write a Use of Force Report after the incident. Constable Creighton testified that as an instructor in the use of force, he would emphasize that the report should be written as soon as possible after the event, and should be accurate and complete. In this case, Constable Sriram testified that as an officer he had six months to complete the Use of Force Report and in this case he started the report shortly after the incident but could not recall when he completed it.

There is no date on the report indicating when he completed it, but the Chain of Command Communications on the last page notes that the report was sent to Constable Chymyshyn, Patrol Sergeant Gillies, Constable Singh and Sergeant Tyndale for their approval on September 21, 2020. Two months later it was sent by Sergeant Tyndale to Constable Casavant for his review and on December 9, 2020 it was approved by the Officer Safety Unit (or “OSU”). That concluded the report. This report is now Exhibit 2 in this trial.

Although it is not part of the evidence, defence counsel noted an interesting timeline: defence counsel requested from the Crown a copy of the Use of Force Report on September 21, 2020 and it was four days later that Constable Sriram circulated the report to the other officers. [ 22 ] In this Use of Force Report, under Police Observations, Constable Sriram wrote the following: Our unit attended to 406 Maryland Ave and observed Anobis walking out of this location and exhibiting the following behavior: - Anobis was yelling at our unit telling that someone stole his cell phone and had both his hands inside his hoodie front pocket (psychological intimidation). - Anobis kept walking towards our unit with his hands (psychological intimidation) in his pockets and upon instructing Anobis to pull his hands out of his pockets and show it to us (verbal direction) Anobis complied. [ 23 ] Immediately after this

section is concluded, Constable Sriram went into a

section he called Police Actions, which starts with the following sentence: Our unit took control of Anobis in the front yard of 406 Maryland Ave where he was searched for weapons due to officer safety concerns (per call history). [ 24 ] Constable Chymyshyn confirmed that he did receive the Use of Force Report for feedback as recorded in the Chain of Command Communications page, that he would have read it at the time, and that he did not make any changes to it. [ 25 ] Patrol Sergeant Gillies testified that he did review a Use of Force Report at some point in time and agreed that there is no mention in that report of him giving two shots to Shaun Anobis’ mid-section. [ 26 ] Constable Sriram began his testimony in court on August 6, 2021, but cross-examination was not concluded that day.

His testimony was continued seven weeks later, on September 27, and was concluded that day. A few days later, on about October 2, the Crown disclosed to defence counsel that they had a further Use of Force Report which had been prepared by Constable Sriram concerning the same incident. This report, which is now exhibit 3 in this trial, has some changes made to the Use of Force Specific Information page, where there is a list of the force used by the various officers toward the subject.

As well, the Chain of Command Communications pages has the November and December, 2020 notes concerning Sergeant Tyndale and Constable Casavant removed and has further additions noted between September 13 and 15, 2021. This report was approved by OSU on September 15. No mention of this was made by Constable Sriram when he concluded his testimony twelve days later. As a result, defence counsel asked to cross- examine the officer further, and did so, on December 17, 2021.

Constable Sriram’s explanation for why he made the changes to the report was that he was asked to complete something which was incomplete and that’s what he did. THE VIDEO RECORDING [ 27 ] Exhibit 8 in this trial is a video recording made by a Raymond Clark and sent to Dalton, Shaun Anobis’ friend. It was from Dalton that Shaun Anobis received a copy of the video. The video was filmed from the porch of a neighbouring yard and begins with a number of officers on top of an individual who is down on the front lawn. It is clear that the male is screaming at some points in time, apparently in pain.

What can be heard in the video are the words “Stop resisting”, and “I’m not resisting”. As well, it appears that an officer uses the words “piece of shit” and “I don’t give a fuck” at different points in time. The male is eventually lifted up and placed against the chain link fence close by briefly before being escorted off the yard. It is not clear from the video that the male’s pockets are searched or that a pocket knife, wallet or keys are removed at this time. It is agreed that the male is Shaun Anobis and that this is a recording of what happened when he was on the ground with the officers on top of him.

The video does not record the initial point of contact between the officers and Shaun Anobis while he is coming out of the house or walking down the steps or being grabbed by the officers or being taken to the ground. SOME OBSERVATIONS WITH RESPECT TO THE EVIDENCE [ 28 ] Shaun Anobis testified that he knew very little about the female who was in Dalton’s room and apparently took his phone. He didn’t seem too interested in getting her name, even though he was wanting the police to assist in getting his valuable cell phone back.

He was very upset about the alleged theft, yet testified that they were only briefly in the female’s room searching for it and asking her for it calmly before leaving empty handed. It does seem odd that he would not have asked the two other individuals he met in the house for more information about this female so he could properly report it to the police.

As well, his explanation on why he didn’t file a proper police report about his stolen cell phone after the incident is weak. [ 29 ] When Shaun Anobis testified about what happened as he left this house, he explained that the officers brought him down onto the lawn a couple of feet from the stairs. He later agreed that he was wrong on this distance as the video showed that where the officers had him pinned down on the lawn was further away from the stairs. As well it is odd that if the officers immediately took him down when he was at the bottom of the stairs that he would be facing back toward the stairs.

Both Constable Sriram and Constable Chymyshyn testified that they had Shaun Anobis at the fence where they searched him and were struck by him and that it was only after he turned

from the fence that they took him down. The positioning on the ground as seen in the video more closely aligns with the officers’ explanation of what happened than with what Shaun Anobis testified to. As well, as noted earlier, it is not clear that a search of his pockets produced a pocket knife, wallet or keys. [ 30 ] There are also some inconsistencies and concerns with the police evidence in this case as well.

Some of those differences can be explained by the fact that no two individuals will necessarily remember an incident in the same way – or remember all of the same details; however, in this case there are bigger issues with some of the evidence of the officers. [ 31 ] These concerns start with what exactly was said, or not said, and when during the very initial encounter between Shaun Anobis and Constables Sriram and Chymyshyn.

The officers testified that the first things said to Shaun Anobis were that he was told he was being detained for a Break & Enter investigation and that he was told repeatedly to take his hands out of his pockets. Yet the fact that Shaun Anobis was being detained right at the initial point of their contact is not recorded in Constable Chymyshyn’s or Constable Sriram’s notebooks and is not mentioned in the Use of Force Reports prepared by Constable Sriram and reviewed by Constable Chymyshyn.

If this in fact was stated to Shaun Anobis at that time, this omission is significant. [ 32 ] And then there is the question of when Shaun Anobis complied with the request to take his hands out of his pockets. Both officers testified that Shaun Anobis did not take his hands out of his pockets when first asked. He says he did, and what is written in the Use of Force Report clearly states that when he was asked to take his hands out of his pockets, he did. There is no suggestion of delay or non-compliance.

This is a significant discrepancy. [ 33 ] Both Constable Sriram and Constable Chymyshyn testified that Shaun Anobis was taken to the fence and searched before he was taken to the ground. During Constable Srirams’ testimony, he clearly stated that they only had Shaun Anobis at the fence on one occasion, yet the video shows that the officers had him at the fence after they had been on the ground contrary to the officer’s evidence. As well, if they had searched him at the fence before the take down, why is it that the officers are asking Shaun Anobis, when he is down on the ground, “Got anything on you?

Got anything on you, man?” [ 34 ] Constable Sriram’s testimony presents itself with a number of other concerns as well. He was insistent in trying to explain everything when testifying, instead of simply answering the question being put to him. He had a less than satisfactory answer as to why his method of notetaking included spaces in his notes taken at the time. When the officers had Shaun Anobis pinned to the ground he was still trying to explain his phone was stolen.

Constable Sriram’s response to this complaint was “I don’t give a fuck.” His explanation for why he said this was, “Sometimes we use swear words. That’s something very common they understand. That’s why I used it.” It was also around this time that one of the officers called Shaun Anobis, “a piece of shit”. [ 35 ] Constable Sriram insisted that he only pressed the arc switch on his Taser two or three times. He did not concede that it could have been a lot more times, even when presented with the Taser reports.

While some of the 13 times the arc switch on his Taser was pressed were for a fraction of a second, this refusal to admit he could have been wrong is concerning. Then there is his explanation for when and how a second – or amended - Use of Force Report was created by him. The timing of the second report and the additions and deletions to it are such that his credibility is further called into question. [ 36 ] Concerning as well, is the refusal of the officers who testified, to simply concede that the photos of Shaun Anobis’ injuries could have been caused by the Taser used by Constable Sriram during the incident.

The “snake bite” marks align exactly with where on Shaun Anobis’s body Constable Sriram said he pressed the Taser and the number of marks roughly correspond with the number of times the Taser was used. [ 37 ] As well, the video recording shows that there are several officers on top of Shaun Anobis, who is underneath them on the ground and is yelling, “I am not resisting.” Was the use of a Taser, multiple times, really necessary? Would not some lesser actions on the Use of Force continuum, together with a little patience, have been sufficient to take control of him?

CONCLUSION [ 38 ] This is a case where there are some issues with Shaun Anobis’ evidence, based on his own answers and the other evidence before the court. And so I cannot simply accept his denial of any assault on the police officers or of resisting arrest and find him not guilty of the charges. However, even with his puzzling lack of follow up on his stolen cell phone and some inconsistent answers in his evidence, there are more significant concerns with the evidence of the police officers in this case, as I have just noted.

It is plausible that Shaun Anobis’ version of what happened in his encounter with Constable Sriram and Constable Chymyshyn is in fact what actually happened. As a result, I find Shaun Anobis not guilty of the charges. _______________________ HEINRICHS P.J.