Her Majesty the Queen ) Mr. R. Janis ) for the Crown ) v. ), 2015 MBPC 48

2015 MBPC 48 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Mr. R. Janis ) for the Crown ) and ) ) ) Richard Rayland ) Mr. T. Mariash ) for the Accused ) ) ) ) Reasons for Decision delivered: ) August 26, 2015 CORRIN, P.J. (Orally) [ 1 ] Today is scheduled for the delivery of a trial decision with respect to charges before the court stemming from an incident on March 12, 2015. [ 2 ] On March 12, 2015 Constables Robert Simpson and David McDonald pulled up to 509 Seven Oaks Avenue in West Kildonan in the City of Winnipeg at 8:15 p.m. to perform a curfew check.

They were invited into the residence and spoke to the accused's father who, according to them, advised them that the accused was not at home. [ 3 ] Simpson and McDonald remembered being advised that the accused was related to be at work. Then, after an exchange with the father, they were told that he had gone off to sell some furniture with his mother. This evidence was refuted by the accused's father, Terrence Rayland.

According to him, he told the officers that his son was in the garage or outside somewhere on the property and one of the officers had called him “a liar”. [ 4 ] The officers both testified that they then returned to their vehicle and that several minutes later, perhaps even after seven or eight minutes had elapsed, the accused appeared on the front steps, waving his arms and calling to them in an attempt to get their attention. He was not wearing any shoes and was wearing a tee shirt.

He wore no outerwear, neither a jacket nor a hat. [ 5 ] Both officers testified that when they approached him, McDonald telling him he was under arrest, the accused began to move towards the door of his residence and asked not to be arrested, that he had been in the washroom when they had initially performed the curfew check.

[ 6 ] At this point, the officers agreed that they had each taken hold of Mr. Rayland. Constable McDonald recollected that they each gripped one of his arms.

Constable Simpson also remembered holding Rayland by the shirt and told the court it had torn apart when Rayland tried to pull away from him. [ 7 ] It was Constable Simpson's testimony that the accused had called for his father during the brief struggle and that when Rayland senior had come out and appeared upset, he had told him to go back inside and Rayland senior had complied but called them, "assholes". [ 8 ] According to the officers, they and the accused all fell down the stairs shortly after the struggle began.

Constable McDonald felt the fall was probably attributable to loss of balance due to the pulling, resisting interaction between the two officers and the accused. Constable Simpson's testimony was somewhat different. It was his recollection, related during cross-examination, that he had lost his footing as he pulled the accused towards the stairs, causing him to fall backwards, "him" being Simpson, which in turn also caused the accused to fall.

It was Simpson's evidence that he was able to torque his body in a way that caused the accused to hit the pavement at the base of the stairs first with him, Simpson, landing on top. Constable McDonald's testimony differed. He recollected that Constable Simpson had initially landed under the accused, and after a brief struggle had managed to get on top of Mr. Rayland. For his part, Mr. Rayland described being "catapulted" off the landing at the top of the stairs by both officers and landing with one officer on his back and the other just off to their side. He testified that he had been winded by the fall.

The accused denied retreating toward the front door of the house after he had been advised of his arrest, saying that he had just stood at the door and called for his father's assistance. [ 9 ] The court observes that Constable Simpson's version of the fall sequence was more aligned with the accused's version than that provided by his colleague, differing only with respect to the accused's assertion that the officers deliberately threw him from the landing. [ 10 ] There were also differences and contradictions between the three principal witnesses' evidence with respect to what occurred immediately following the fall down the stairs. [ 11 ] Constable Simpson testified that the accused's face struck the concrete when he landed, that Rayland had fallen on his stomach and that he was on top of him, also facing downwards in the direction of the pavement.

Simpson recollected delivering three punches almost immediately after the fall and testified that none of the blows were to Rayland's head or face, that all of same were directed to his body. It was his evidence that the accused's facial injuries, which were recorded by a photograph which was entered as an exhibit in the cause, were caused when he pressed the accused's face against the concrete after he delivered the three blows in order to defend himself against the possibility that the accused might attempt a backward head butt to his face.

Constable Simpson told court that the blows he delivered to Rayland were meant to induce him to comply with his demand that he produce his hands, which were under Rayland's abdominal area, for cuffing behind his back. [ 12 ] Constable McDonald testified that he delivered four punches to the side of the accused's body after both he and Simpson ordered production of the accused's hands for cuffing purposes. Court was also told that he further delivered what he described as two knee strikes to Rayland's body to induce compliance with their demands for production of Rayland's hands.

Constable McDonald was of the opinion that all of the injuries to Rayland's face were caused by his face hitting the pavement; however, since he described Rayland as being the first to land after the fall, with Simpson landing on top of him, I infer that McDonald may have been referring to his seeing Simpson - I think I got that wrong.

I am looking at the evidence, and I believe that Officer McDonald advised the court that it was his opinion that he and the accused were on top of his partner Simpson, with Simpson being on the bottom of the pile at first. [ 13 ] In any event, I infer from his evidence that what McDonald had seen and referred to in his evidence was essentially to seeing Constable Simpson later, when he got out from under the pile, push Rayland's face into the concrete. [ 14 ] Richard Rayland vigorously denied attempting to resist arrest at any time during the incident.

As previously mentioned, he recollected that he had been the first to land and that one of the officers had fallen on his back; that his body had cushioned the unknown officer's fall. It was his evidence that one of his hands had been trapped under his abdomen and that he was therefore unable to fully comply with the production demands because of the compression effect caused by such officer's weight on his body. [ 15 ] Parenthetically, the court received evidence from the Crown witness, Simpson that he weighed about 200 pounds at the time of the incident.

Rayland also explained that he had been winded after the fall and consequentially physically compromised. Rayland insisted that only some of his several facial injuries were fall related, testifying that others were definitely caused by punches delivered to his face. [ 16 ] Exhibit 2, the colour booking photograph taken of the accused that same night shows two prominent reddish coloured lacerations, one on the bridge of the accused's nose and the other on the left side of his forehead mid-point between his hairline and his eyebrow.

There also appears to be two sizeable areas of brownish coloured bruising, one below his left cheekbone and the other beneath his right cheekbone. Mr. Rayland recollected that the injuries to his cheeks were both caused by punches. [ 17 ] Richard Rayland's testimony respecting the post-fall events, were only superficially corroborated by his father's testimony. Mr. Rayland senior told court that his son's head had been beaten rather than pressed against the sidewalk and that the officers had slapped the accused around.

He made no mention of seeing any punches being delivered to the accused's face or head, nor any knee strikes. The absence of any observed details in this respect was, to put it diplomatically, apparent to the court. [ 18 ] As a result of this incident, the accused was charged with failing to abide with a recognizance curfew condition, contrary to Section 145(3) of the Criminal Code , failing to come to the door during your (sic) curfew check, also contrary to Section 145(3) , and resist arrest contrary to

Section 129 (

a) of the Criminal Code. [ 19 ] I will now attempt an analysis of the evidence. [ 20 ] The defence takes the position that the police officers' testimony is either false or, at best, wholly unreliable. The basis for such a submission was what was termed the "impossibility" that the arrest occurred at 8:25 p.m., some 10 minutes after the police witnesses

testified they arrived at the Rayland residence. It is the position of the defence that the accused must have come out of the house only some two or three minutes after the officers' had talked to his father and gone back to their car. Such a short time lapse was alleged by both father and son. [ 21 ] Mr.

Mariash argued that the travel time evidence did not agree with the officers' recollection of events because the officers both stated that they left for the Public Safety Building at 8:29 p.m., after waiting in their car for seven to eight minutes and after first being in the house at 8:15 p.m., that they had agreed they had spent only about three minutes inside the house initially, suggesting they had been back in their vehicle from approximately 8:19 to 8:26 or 8:27 p.m., some seven or eight minutes, and yet arrested the accused at 8:25 p.m. [ 22 ] Moreover, they also stated that they had then driven back to the Public Safety Building, departing at 8:29, and arrived at the parading sergeant's desk with the accused in tow at 8:35 p.m., only some six minutes after they had left the West Kildonan residence.

In this respect, the officers testified that they had arrived at the Public Safety Building at 8:31 to 8:33 p.m. and presented at the staff sergeant's parade desk at 8:35 p.m. [ 23 ] Defence counsel noted that the total incident time of 20 minutes, as recorded by the police witnesses, was totally implausible and wholly inconsistent with their other version of events, that the math only worked if the accused was telling the truth, that he came to the door two or three minutes after the police had first returned to their car, that is to say, at approximately 8:21 or 8:22 p.m., that he had been arrested almost immediately, say at about 8:24 to 8:25 p.m., as related by the Crown's witnesses, and driven forthwith to the Public Safety Building, arriving at the building at about 8:31 to 8:33 p.m. and being paraded upstairs at 8:35 p.m. [ 24 ] The court agrees with defence counsel that the chronology of the officers' testimony does not work as it erroneously suggests that the accused presented some six or seven minutes after they had arrived to perform their curfew check.

The court is of the view that this conclusion supports the defendant's testimony that he was in the garage or thereabouts at 8:15 p.m., the time the officers began their curfew check. [ 25 ] The second prong of the defence argument also rested on the unreliability of the officers' testimony. In this respect it was suggested that the court should not believe their evidence that Mr. Rayland senior had not told them that the accused was in the garage. It was Mr.

Mariash's submission that Rayland senior's evidence should be both believed and preferred on this point and that the officers' testimony respecting Rayland senior giving multiple explanations regarding the son's whereabouts should not be believed. [ 26 ] Mr. Mariash further elaborated that Mr. Rayland and his son's testimony was internally consistent with each other overall and should be preferred by the court because their timelines were more realistic than the officers'. The Crown did not agree. Mr.

Janis suggested that the court should view Rayland senior's testimony on this point as unreliable as it was shaded by Mr. Rayland's jeopardy as a surety in this matter. He further characterized Mr. Rayland's testimony on this subject as being inconsistent with the accused's version of events because the accused had told court he did not recollect and was unsure whether he told his father where he had gone, that he had been watching a hockey game with his father and had gone off to the garage without giving any particulars. The court is of the view this was substantially consistent with what the father testified.

He told the officers that his son was either in the garage or "outside somewhere", suggestive that he was not actually sure of his whereabouts but thought he was on the property somewhere. [ 27 ] Mr. Janis also argued that the police evidence on this point should be accepted as Exhibit 5, the employer letter, produced to the officers during their initial interaction corroborates their testimony regarding Rayland senior initially telling them the accused was at work and not at home. [ 28 ] The court observes that Mr.

Rayland senior's explanation for producing the letter to prove his son had become employed seems somewhat suspicious, to say the least. That having been said, it would make some sense and be contextually plausible that he might have felt it advisable to prove his son's newfound stability to the seemingly skeptical officers. [ 29 ] It is important to keep in mind that the officers did not, by their own admission, ask him if they could search the premises or property. Accordingly, it would not be unreasonable to imagine Mr. Rayland senior casting about to try and convince them that he was not lying.

The court does not agree with the Crown that his failure to invite the officers to search or to ask for permission to try to locate his son should result in a negative inference with respect to the credibility of his general testimony. [ 30 ] This is a case which must be determined on the basis of the test set out by the Supreme Court of Canada in R. v. W.(D.) , that the approach described in W.(D.) meant to ensure that the trier of fact remains focused on the principle of reasonable doubt requires that the following analysis be undertaken.

I quote from paragraph 758: "First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused." [ 31 ] The manner in which the evidence can be considered in the application of the W.(D.) test is a question of law, see the cases of R. v.

Hoohing 2007 Ontario Court of Appeal 577, R. v. Vuradin 2013 Supreme Court of Canada, page 38, and R. v. Menow , a 2013 Manitoba Court of Appeal case found at the reports, page 72 MBCA. [ 32 ] These cases made clear that the analysis in W.(D.) is contextual, and when considering the evidence of an accused, a trial judge is entitled to consider all the evidence called at trial. A verdict cannot be simply based on whether the trier of fact believes the defence evidence or the prosecution's evidence.

The proper inquiry is, whether on the whole of the evidence the trier of fact is left with a reasonable doubt about the guilt of the accused. [ 33 ] The first W.(D.) question does not isolate or vacuum-seal the accused's testimony for analysis. It rather ensures that the trier of

fact actually assesses the accused's credibility instead of marginalizing it as a consequence of believing Crown witnesses. [ 34 ] The case law makes clear that it is contrary to principles of fundamental justice for a trier of fact to ignore or disregard evidence favourable to an accused when assessing his or her credibility. [ 35 ] In this case, the court has concluded that it is left with a reasonable doubt, not only because of the evidence of the accused but also because it is not convinced beyond a reasonable doubt, on the basis of the Crown's evidence.

In the latter regard, as earlier discussed herein, I found the Crown witnesses' testimony to be somewhat implausible because of the flawed timelines they related. To be frank, this situation suggested the distinct possibility that their evidence was confabulated and potentially self-serving in relation to their allegations. [ 36 ] Given the nature of the accused's injuries and the inconsistency between the officer's description of the reason for the alleged fall down the stairs, I am frankly unsure whether the accused obstructed or resisted arrest.

It certainly seems strange that the officers would find it necessary to strike the accused so many times in the circumstances they describe to the court. After all, there were two young officers, both two-hundred-pounders, one lying on top of the clearly disabled accused, the other right beside his partner. There was simply no evident need to resort to the exaggerated level of force described by both the officers and the accused.

This scenario suggests that the officers appear to have become angrily frustrated with the accused, possibly because he had appeared at the door of the residence so soon after they had made their check. In this regard, the court shared defence council's concern that the officers were no longer acting within the scope of their duty during this part of the incident.

As such, the court feels conscientiously obliged to reject reliance on the officers' testimony with respect to all the matters before the court. [ 37 ] The court also wishes to confirm its view that the evidence seems to confirm that the accused did seemingly present himself at the door within a reasonable time, having regard for the presenting circumstances. [ 38 ] I accordingly acquit the accused of all the charges before the court. Original Signed by CORRIN, P.J.