R. v. Tsonos, 2022 BCPC 265

Citation: R. v. Tsonos 2022 BCPC 265 Date: 20221123 Richmond 65432-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REX v. JOHN TSONOS and MATTHEW MCGUIRE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. SOLOMON Counsel for the Crown: David Hainey, Jim Whiting Counsel for Cst. McGuire: Ravi Hira, K.C., Ryan Hira, Robin Hira Counsel for Cst. Tsonos: Trevor Martin Place of Hearing: Richmond , B.C. Dates of Hearing: Sept. 28, 29; Oct. 3, 4, 5, 11, 12, 13, 14, 17, 18, 19, 21, 2022 Date of Judgment: November 23, 2022 Introduction

[ 1 ] The accused, Cst. John Tsonos and Cst. Matthew McGuire, are police officers charged with assaulting Alexander Eaton in the course of his lawful arrest on October 10, 2019. The identity of both accused has been proved beyond a reasonable doubt. It has also been proved that both officers intentionally applied force to Mr. Eaton in effecting his arrest. The only issue in dispute is whether the use of force, considering the totality of circumstances, was excessive. [ 2 ] Both accused have advanced defences offered by Sections 25(1) and 34 of the Criminal Code .

Section 25 holds that a peace officer is justified doing what is required or authorized with as much force as necessary for that purpose.

Section 34 allows for a person to use force to repel an assault, known as “self-defence”. Both defences require the Crown to prove beyond a reasonable doubt that the defences cannot succeed. The accused are entitled to the presumption of innocence and the burden of proof never shifts to them. [ 3 ] At the material time, Cst. Tsonos was an RCMP member in plain clothes working with the Surrey Auto Crime Target Team (hereinafter “ACTT”). The ACTT was in pursuit of Mr. Eaton and followed a stolen vehicle he was operating from Surrey into Richmond. Cst.

McGuire was an RCMP member in full uniform with the Richmond Detachment on the Mobile Enforcement Team in a marked police vehicle. He was monitoring the pursuit by radio and ready to assist the Surrey members in their investigation. The Crown called a number of police officers and a use of force expert as part of their case. The complainant, Mr. Eaton, was not called to give evidence on this trial. Both accused testified in their defence and each called one use of force expert.

Summary of Evidence [ 4 ] The evidence is mostly non-contentious as the alleged assault was captured by a residential security camera that was motion activated and included audio. On October 10, 2019, the ACTT followed a stolen vehicle operated by Mr. Eaton from Surrey into Richmond. At times, the vehicle was monitored to be speeding. Only unmarked police vehicles were used in surveillance to avoid potential detection by Mr. Eaton, as their detection could lead to erratic and dangerous driving by him. [ 5 ] Mr.

Eaton parked the stolen vehicle in a Richmond residential neighbourhood and both he and his female passenger exited the vehicle. Sgt. Jason Martens, who is a dog handler and had his police service dog with him, drove up in his unmarked truck beside the suspects, activated his emergency lights, made eye contact with Mr. Eaton, opened his truck door and advised both suspects that they were under arrest and to get to the ground. Cst. Tsonos also arrived and advised the suspects to stop as they were under arrest. The female passenger complied with the demands but Mr. Eaton did not. Mr.

Eaton fled on foot through one residential property and onto another. He dropped a number of items along the way. [ 6 ] Sgt. Martens released the police service dog but it engaged with Cst. Avram, a member of the ACTT, biting him and causing a puncture wound. Cst. Avram had his police service firearm out and pointed towards the fleeing suspect. Once on the second residential property, Mr. Eaton attempted to hide at the front of the residence in an alcove area. His presence activated the residential security camera. [ 7 ] On the security camera recording Mr.

Eaton is observed trying to hide himself behind a pillar, dropping an item into the mailbox attached to the residence, and trying to enter the residence through the front door but fortunately it was locked. [ 8 ] The recording only depicts the incident from one narrow or limited perspective, that being from high up looking down towards the walkway of the residence. There is also a doorbell camera that faces towards the lawn of the residence at 90 degrees from the overhead camera. However, no footage from this camera is in evidence. [ 9 ] The recording depicts Cst. Avram as the first officer to engage with Mr.

Eaton. Mr. Eaton’s back is to the camera. Cst. Avram is just out of the camera’s view but is heard yelling at Mr. Eaton to show his hands and get to the ground. Cst. Avram repeats the same command to get onto the ground nine times, and threatens to shoot Mr. Eaton. [ 10 ] Mr. Eaton is wearing a Toronto Raptors jersey over a short sleeve black t-shirt, the jersey is untucked and hangs down loosely over sweatpants. Mr. Eaton is wearing a satchel or “man purse” strapped over his right shoulder with the purse part against his stomach and accessible with his hands. Mr.

Eaton raises his hands in the air about shoulder to head height and takes a step towards Cst. Avram. This causes Cst. Avram to retreat a step. Mr. Eaton does not go to the ground as commanded but asks what he had done. Every time Cst. Avram commands that he get to the ground Mr. Eaton responds by asking what he had done. This back and forth continues for 16 seconds. [ 11 ] Cst. Avram and the accused Cst. McGuire then move in quickly towards Mr. Eaton. As they move in Mr. Eaton moves one foot back a step and brings his arms in towards the man purse. The two officers take Mr. Eaton to ground, with Mr.

Eaton landing on his hands and knees with his back to the camera. The accused, Cst. Tsonos, is observed running into the area within a couple of seconds and holding an item in his right hand. [ 12 ] Over the next 13 seconds, Cst. McGuire delivers approximately 16 short strikes with a closed fist to the shoulder areas of Mr. Eaton followed by three knee kicks from a kneeling position to the right upper side of his body. Due to the position of Cst. Avram and Cst. Tsonos, it is not possible to determine how many of the strikes delivered by Cst. McGuire connected with Mr.

Eaton, although it appears that most of them did. It also not possible to identify the specific location where the strikes landed although they appear to mostly land on Mr. Eaton’s shoulder and arm areas. [ 13 ] After a struggle, Mr. Eaton’s right arm is pulled out from under him and his right wrist is placed in handcuffs by Cst. Avram. Mr. Eaton is commanded to show his other hand. Cst. McGuire then delivers a final knee strike to the right side of Mr. Eaton that appears to connect with his head. The officers are then able to gain control of Mr. Eaton’s left arm and place his left wrist into the handcuffs.

No further strikes are delivered by the officers after the handcuffs are applied. From the time of going “hands-on” with Mr. Eaton until the final knee strike, approximately 35 seconds has elapsed. [ 14 ] During the same hands-on period, Cst. Avram is observed to deliver three or four punches to the head area of Mr. Eaton. Regarding Cst. Tsonos, he is observed to deliver an initial kick to the right shoulder or arm area of Mr. Eaton as he runs up to him. He repositions himself and attempts a second kick that was aborted when his heel struck a post. He then delivers two kicks in the direction

of Mr. Eaton’s right hip. The recording does not show if any of the kicks actually landed on Mr. Eaton. The kicks were delivered during the first five seconds of going hands-on with Mr. Eaton. Cst. Tsonos then disengages and repositions himself. [ 15 ] At the time the kicks from Cst. Tsonos are delivered, Mr. Eaton is on his forearms and knees, and Cst. McGuire and Cst. Avram are struggling with Mr. Eaton to gain control of his arms. Mr. Eaton does not move into a prone or flat position on the ground until after the final kick is delivered by Cst. Tsonos. While he is being struck, Mr. Eaton is heard screaming.

The video does not assist in determining the amount of actual force associated with any of the strikes or how many connected with Mr. Eaton’s body. [ 16 ] After delivering the kicks to Mr. Eaton, Cst. Tsonos looks to his left, and appears to notice a doorbell camera that faces towards the lawn, not the walkway, and places his left hand over it while observing other officers gain full control over Mr. Eaton. After Mr. Eaton is pulled upright to a standing position, Cst. Tsonos comments to Mr. Eaton that he had gained some weight and points or pokes at Mr. Eaton’s stomach. [ 17 ] Mr.

Eaton suffered two abrasions during his arrest, one just above his right eyebrow and the other to the left side of his forehead just below the hairline. These abrasions appear in photographs and were described by an officer to be scrapes that did not bleed. Mr. Eaton also claimed shortness of breath and requested his asthma inhaler. There is no evidence that Mr. Eaton suffered any other injuries or complained of pain. Police Officer Evidence [ 18 ] Several officers testified for the Crown and provided similar evidence regarding the pursuit of the stolen vehicle operated by Mr. Eaton.

In cross-examination, they all agreed with the suggestion that vehicle thieves pose a high risk to the public and responding police officers for several reasons. Vehicle thieves might operate the vehicle in a dangerous manner, they often carry weapons and traffic drugs, use drugs, may be gang members, and often flee lawful arrest. Furthermore, a fleeing suspect indicates active resistance, a person who acts impulsively, and an officer cannot see what might be in backpacks or purses they are carrying which could include weapons.

It is also unknown whether the suspect is fleeing towards a dangerous property or associates. [ 19 ] The officers all agreed that securing the hands of a suspect as quickly as possible is of paramount importance in ensuring the safety of the public and arresting officers, because hands are the means to assault others or to reach for weapons. [ 20 ] Members of ACTT who testified for the Crown, Cst. Ruggle, Cst. Spoljar, and Cpl. Kajan, all agreed that Mr. Eaton was well known to the entire team as a prolific vehicle thief, a person who carried weapons, as a drug dealer and a drug user.

Once it became known that Mr. Eaton was operating the stolen vehicle there was concern about Mr. Eaton’s previous access to weapons and use of methamphetamine. [ 21 ] Several officers also testified in cross-examination about being trained to use force to gain control of a suspect’s hands. The manner of force includes punches or knee strikes described as stun or distraction strikes, or pain compliance. The ACTT members who testified and previously watched the video saw nothing unusual in the arrest of Mr. Eaton and to them it appeared consistent with their police training. [ 22 ] Sgt.

Martens testified that after dealing with the police service dog he returned to his vehicle and drove in the direction of the arrest. He heard yelling from the area of the arrest and the words “get to the ground” several times. He saw three officers running towards the front door of a residence and then saw officers in a pile on top of the suspect. He recalled the suspect yelling. One officer was trying to get the suspect’s arm out from under him and he saw two to three knee strikes by the uniformed officer to the upper body region of the suspect.

In cross-examination, he added that he moved within four feet of the suspect and could not see the suspect’s hands, as they appeared to be under his body. He observed the knee strikes to be stun strikes, or pain compliance, or distraction to obtain control of the suspect’s hands. He did not see anything unusual in the arrest of the suspect and understood that if he did, he was obligated to report it. [ 23 ] Cst. Ruggle testified that when he attended the arrest location, he noticed Cst. Avram struggling to get the second handcuff on Mr. Eaton and assisted him in doing so. [ 24 ] Subsequent to the arrest of Mr.

Eaton several items were located that had been in his possession. These items included a quantity of white powder and crystals suspected to be methamphetamine, drug use paraphernalia, a digital scale, a notebook with scoresheets, a screwdriver, a folding knife, and bear spray. No weapons were found in the man purse that Mr. Eaton had strapped over his shoulder. Evidence of Cst. Matthew McGuire [ 25 ] Cst. McGuire testified that he is 32 years old and has been with the RCMP since 2015 when he attended depot cadet training.

It was there that he was first trained on the Incident Management Intervention Model (“IMIM”) and general use of force policy. He joined the Richmond RCMP detachment in November 2015 as a general duties member and in 2018 joined the Mobile Enforcement Team. [ 26 ] He explained that the Mobile Enforcement Team is tasked with the suppression of crime, with a focus on street-level drug trafficking and gang violence.

As a member of that team, he is required to complete an annual online course regarding the IMIM and every three years is required to attend block training at the Pacific Regional Training Centre (“PRTC”). He has extensive experience investigating stolen vehicles and from his experience and training understands that they are high-risk situations. Stolen vehicles are associated with serious criminal offences such as murder and home invasions, and weapons are often associated with stolen vehicles. Based on his experience and training he assessed Mr.

Eaton to present a high risk to police and public safety. [ 27 ] Cst. McGuire testified that on October 10, 2019 he was on patrol and alerted by dispatch to a stolen vehicle being followed by the Surrey ACTT. He kept his distance until hearing that the stolen vehicle parked in a residential neighbourhood and the suspects left on foot. He attended the area and arrested a female suspect. He was made aware that an officer was bitten by a police service dog and that the male suspect had fled. He returned to his police vehicle and drove in the direction of where the male was seen heading. He was flagged down by Cst.

Avram who heard a smash and believed that the suspect was contained at a nearby address. He broadcasted the

address to ensure others would be alerted to their location in case something “really bad happened”. The smash may have been a break-in to a residence. Cst. Avram ran ahead towards the residence, and Cst. McGuire followed behind and drew his firearm as per his training for a high-risk arrest. [ 28 ] Cst. McGuire heard Cst. Avram yelling at the suspect to get to the ground while pointing his firearm at him and threatening to shoot him. He was to the right of Cst. Avram but had no cover. The suspect did not comply with the demand to get to the ground.

The suspect was rotating his hands and had access to his man purse, which in his experience is often used by drug traffickers to quickly access drugs or weapons. The suspect was stalling by asking, “what did I do”. This is consistent with someone intent on fleeing or attacking to avoid arrest. [ 29 ] Cst. McGuire knew that the suspect had already fled from the police and saw the heightened concern of Cst. Avram. Disengagement was not an option considering that the suspect was at a residence and occupants of that residence were in danger. Getting the suspect under control as soon as possible was the only option.

He and Cst. Avram holstered their firearms and moved in to take down the suspect. His goal at all times was to gain control of the suspect’s hands. The suspect took a step back and brought his hands in towards his man purse. The totality of the circumstances caused him to fear that the suspect could cause grievous bodily harm or death as the suspect’s behaviour suggested he would do anything to get away. [ 30 ] Cst. McGuire added that he was “hyper focused” on getting the suspect’s hands under control.

To this end, he delivered a number of short pain-compliance or distraction strikes with a closed fist aiming for the suspects right upper torso area but he does not know where they landed. These strikes did not cause the suspect to comply and his hands remained under him and thereby still able to access weapons from his waistband or man purse. He then repositioned himself and delivered soft knee strikes to the right arm area of the suspect. These initial strikes were not successful in gaining control of the suspect’s arms. [ 31 ] Cst. McGuire further testified that he and Cst.

Avram attempted to pull out the suspect’s right arm but the suspect continued to pull has arms inward and resist. After a couple of tries, they were successful in pulling out the suspect’s right arm and Cst. Avram applied a handcuff to the right wrist. Cst. McGuire then delivered another soft distraction knee strike to the suspect’s right head area to give the officers a chance to pull the suspect’s left arm out.

Even with one hand not in control there remained a high risk to officer safety as a weapon could still be accessed or the handcuffed arm could be swung out and injure an officer. [ 32 ] After the final knee strike, officers were able to gain control of the suspect’s left arm and apply the handcuffs. No further strikes were administered. Cst. McGuire’s training did not include a direction to never strike someone in the face or head areas. He transported Mr. Eaton to Delta where a Surrey member assumed control of him. Mr.

Eaton did not complain of any physical injuries except regarding his breathing and he mentioned asthma. [ 33 ] Cst. McGuire stated that he was not angry with Mr. Eaton and never intended to injure him. He had a feeling of anxiety when entering the arrest area. He has a lot of experience with high-risk offenders and violent gang members. Considering all the factors known to him at the time, he felt the need to act quickly to avoid something bad happening. He decided to act instead of react. [ 34 ] In cross-examination, Cst.

McGuire testified that at the time of the incident he was 29 years old, approximately 190 to 200 lbs and in above average physical fitness as required by the mobile unit that often dealt with high-risk circumstances. He acknowledged that on the radio communications that he was monitoring there was no mention of a threat level. He had no personal knowledge of Mr. Eaton prior to the arrest. [ 35 ] When Mr. Eaton was contained to a specific address, he made no radio request for a police service dog to attend. He had OC Spray on his belt but did not consider using it.

His decision to holster his firearm and move in to get hands-on with Mr. Eaton along with Cst. Avram was not indicative of a lowered risk assessment but a split-second decision in a situation with no good options. In retrospect, deploying OC Spray would not have been a good option due to the close distance between the parties and the risk of contamination to himself or Cst. Avram. [ 36 ] Cst. McGuire agreed that at the time he and Cst. Avram confronted Mr. Eaton, he did not see Mr. Eaton attempt to flee, and he never saw Mr. Eaton attempt to strike anybody. Cst. McGuire disagreed with the suggestion that Mr.

Eaton did not act aggressively in response to the initial take down. It was considered aggressive since when they moved in for the takedown, Mr. Eaton stepped back, turned his torso sideways, and tucked his arms and hands in. [ 37 ] Cst. McGuire acknowledged that Mr. Eaton was taken instantly to the ground. It was suggested to him that his first six punches or strikes were to the area of Mr. Eaton’s left shoulder and head area. Cst. McGuire agreed there were an initial six strikes attempted but it is not evident where they landed.

To him, it looked like they landed in the shoulder and arm area, as he was aiming for that area. He did not give a command to Mr. Eaton to give his hands. He next repositioned himself from the left side of Mr. Eaton to directly in front of him. Mr. Eaton was face down in the prone position with his arms and hands tucked in under him. He then directed a further nine punches at Mr. Eaton but cannot confirm if they all landed or not. [ 38 ] Cst. McGuire then repositioned himself to the right of Mr. Eaton and delivered three knee strikes with his right knee or quad area to the right arm of Mr. Eaton.

To this point, he had not given any command to Mr. Eaton to give his hands. Cst. McGuire confirmed, by reference to the recording, that Cst. Avram and Cst. Tsonos also struck Mr. Eaton and the first command given to Mr. Eaton to give his hands was 16 seconds after the takedown. This command was given by Cst. Avram, who stated, “stop screaming give me your fucking hands”. [ 39 ] Cst. McGuire agreed that they were then able to secure Mr. Eaton’s right arm and hand. At this time Mr.

Eaton was face down on the pavement or tilted slightly to the left, with his legs straight out behind him, and he was not kicking or moving his legs in an aggressive manner. Three officers are seen on the recording and a fourth at the top of the screen. Cst. McGuire disagreed with the suggestion that Mr. Eaton was under control and virtually immobile at this time. He believed that Mr. Eaton was still in a position where he could move and posed a risk to officer safety. He confirmed that at no time did Mr. Eaton kick towards an officer, bite or punch an officer, produce a weapon or verbally threaten an officer.

[ 40 ] Cst. McGuire accepted that at 1:53 of the recording, Mr. Eaton’s right hand was secured in a handcuff and Cst. Avram gave the command, “give me your fucking hand” (referring to the left hand that was still under his body). Mr. Eaton responded, “I’m trying”. Cst. McGuire then delivered a final knee strike to the right upper shoulder or head area and a second or two later Mr. Eaton’s left arm was pulled out from under him by Cst. Avram. At 1:59 of the recording there were six officers in close vicinity of the arrest. Cst. McGuire did not know where back up was or how close by. After Mr.

Eaton was lifted by officers into a standing position, the man purse he had been wearing was left on the ground and not searched by Cst. McGuire as his focus became securing Mr. Eaton and evaluating any injuries. Also, he perceived the area to be secure due to the presence of other officers. [ 41 ] Cst. McGuire confirmed that after Mr. Eaton was taken to the ground no verbal command was given to him to show his hands until after Cst. McGuire had delivered two sequences of punches, and three knee strikes, and two other officers had struck Mr. Eaton. Evidence of Cst. John Tsonos [ 42 ] Cst.

Tsonos testified that he is 48 years old and has been an RCMP member since 2008. In October 2019, he was with the Surrey ACTT and had been since 2015. He competed IMIM training at depot as a cadet, completed the required annual certification, and attended bulk training every three years. He is 5’9 tall, and is 215 lbs now although he weighed more in 2019, is of below average physical capability and was the oldest person on the team. He has been injured several times in the course of his duties including injuries to a hand and a partial MCL tear to his left knee.

He has been injured arresting subjects who are under the influence of methamphetamine, at which times pain compliance often does not work, also such subjects are prone to take risks and are often paranoid. [ 43 ] Based on his training and experience, car thieves often possess weapons, are involved in drug trafficking, they often flee from arrest, and it takes multiple officers to effect an arrest. Stolen cars are associated with homicides and the lower mainland drug conflict. [ 44 ] Cst. Tsonos testified that he had a history of interactions with Mr. Eaton dating back to 2010 when Mr. Eaton was a teenager.

Between 2010 and 2012 when working in South Surrey he had dozens of interaction with Mr. Eaton related to situations where groups of teenagers were observed loitering and smoking marihuana. Mr. Eaton stood out to him due to his appearance and not being a local resident. [ 45 ] Cst. Tsonos added that he next became aware of Mr. Eaton in 2015 from crime analyst reports involving theft of vehicles where Mr. Eaton was a suspect. One report indicated that Mr. Eaton was caught in a theft from a vehicle and attempted to flee by striking an off-duty police officer.

There was also an incident in 2015 where he dealt directly with Mr. Eaton. There were outstanding warrants for Mr. Eaton’s arrest at the time and he was located hiding in a crawl space of a house. When searched, drugs were found hidden in his rectum. Cst. Tsonos was involved in another arrest of Mr. Eaton in 2017 in relation to a stolen vehicle. He ran a criminal record search at that time and learned that Mr. Eaton’s record included a motor vehicle theft, a break and enter, other property offences, and flight while pursued by a peace officer. [ 46 ] In 2018, he identified Mr.

Eaton from video footage in a query by the Integrated Homicide Investigation Team (IHIT). He learned that this was related to a theft of a vehicle used in a theft of another vehicle that was associated with a homicide investigation. He became aware of another stolen vehicle investigation involving Mr. Eaton in the spring of 2018 where Mr. Eaton was arrested at the Coquitlam Centre shopping mall. In this investigation, Mr. Eaton attempted to flee from arresting officers and was found to be in possession of a firearm located in a man purse. It was only after Mr.

Eaton’s arrest on October 10, 2019 that he learned that the firearm was in fact a painted imitation firearm or BB gun. His next dealing with Mr. Eaton was on October 10, 2019. [ 47 ] Cst. Tsonos testified that on October 10, 2019, he was working with the Surrey ACTT in plain clothes and operating a covert police vehicle. He was equipped with a firearm, OC Spray and a baton. The entire team was on duty and driving covert police vehicles. The team learned of a stolen vehicle being tracked by OnStar. They tracked the vehicle into a residential neighbourhood of Richmond that he was not familiar with.

At times, the stolen vehicle was speeding. One of the team members recognized Mr. Eaton as the driver of the stolen vehicle and broadcast that identification. By this time, his risk assessment was very high as the investigation involved a stolen vehicle that was speeding, the vehicle was being operated by Mr. Eaton who he knew to be associated with weapons and associated to a gang related homicide investigation, and involved in drug trafficking. Cpl. Kajan gave the command to arrest Mr. Eaton. [ 48 ] Cst. Tsonos received an update on the radio that Mr.

Eaton and a female had left the stolen vehicle and were on foot. He came upon Mr. Eaton from behind and recognized him right away. The female had a large knapsack, and Mr. Eaton had a blue Nike bag and what he assumed was a man purse from the strap over a shoulder. Sgt. Martens, the police service dog handler, pulled up his vehicle and chirped his siren to alert the suspects of police presence. Sgt. Martens parked his vehicle, exited, and directed the suspects to stop as they were under arrest. Cst. Tsonos also directed Mr. Eaton to stop and advised that he was under arrest. Mr.

Eaton turned, appeared to see the officers, and fled tossing some of the items he was carrying. [ 49 ] The police service dog was deployed but grabbed Cst. Avram by the shoulder and arm and violently shook him. Cst Tsonos saw Cst. Avram grimacing in pain. He lost sight of Mr. Eaton who ran north to the back of a residence. Sgt. Martens was able to get the police service dog to release Cst. Avram. The dog then appeared to bite the female suspect. Cst. Tsonos returned to his vehicle and called for Emergency Health Services to attend. He scanned the items thrown by Mr. Eaton and did not see a firearm.

He did not realize that Cst. Avram had pursued Mr. Eaton. [ 50 ] Cst. Tsonos exited his vehicle and walked north towards a residence. He heard a frantic Cst. Avram screaming like he never heard him scream before. It sounded like he was being attacked by someone. He turned to run to offer assistance but slipped and fell on the lawn of the residence. He then heard commands being yelled including the words “shoot you”. He could not see Cst. Avram and believed he was alone. When he approached closer, he saw Cst. Avram and a uniformed member engaged with Mr. Eaton. He did not recognize the uniform member. [ 51 ] Cst.

Tsonos indicated that his risk assessment was elevated. It is rare to hear the words “shoot you”, and believed it was likely related to an officer seeing a weapon or dealing with a fleeing suspect. He saw the two officers struggling with Mr. Eaton and trying to pull something from him. He initially thought the uniformed member was pinned against the wall. He later noticed that the member was

not pinned but positioned in a cut out area. He was concerned for the members as he did not know if Mr. Eaton had possession of a firearm. He assumed that Mr. Eaton did have a weapon with him based on all the circumstances. [ 52 ] Cst. Tsonos saw the uniformed member strike Mr. Eaton a couple of times and Cst. Avram struggling to gain control of an arm. It appeared to him that Mr. Eaton was actively resisting arrest. He ran towards Mr. Eaton and delivered a kick to his right shoulder or arm area. This was a distraction or pain compliance strike delivered for the purpose of loosening Mr. Eaton’s arm.

After delivering this kick, he almost lost balance but did not fall. He was carrying a radio in one hand as he had lost his wireless earpiece. [ 53 ] Cst. Tsonos attempted to deliver a second kick but the heel of his foot hit the post behind him instead. He then repositioned, regained his footing, and delivered two kicks to Mr. Eaton’s hip area. He stated that he did this for distraction or pain compliance purposes as it is natural for a person to reach for an area where they feel pain.

He repeated that his actions were based on his risk assessment being very high and his fear of possible grievous bodily harm to others as Mr. Eaton was still holding onto the man purse and he believed Cst. Avram to have been compromised by the dog bite. [ 54 ] Cst. Tsonos further testified that he did not attempt to communicate with Mr. Eaton. As a tactical advantage, he wanted to surprise Mr. Eaton by his approach. Cst. Avram was the contact officer and Cst. Tsonos was offering assistance or cover. He was the third officer on scene. It was Cst. Avram who gave the commands. The kicks did not achieve any result.

Mr. Eaton did not move at all. Perhaps because pain compliance techniques do not work with methamphetamine users or perhaps the kicks did not connect or were not hard. [ 55 ] Cst. Tsonos added that as the third member on scene he took the roll of scanning the area to ensure no other threats were present. He did not know if Mr. Eaton was associated to this residence, and the scene was chaotic with Mr. Eaton screaming in a high pitched tone. With his back to the front door of the residence with a view of the walkway, he placed his left hand over the doorbell camera.

He did not want the occupants of the residence to see or hear what was going on. He did not want anyone calling 911 as other members attending could add to the chaos. He was not trying to conceal the arrest. He knocked on the front door. He recalled that Cst. Avram said, “give me your fucking hand”. It sounded like a struggle to get Mr. Eaton’s arm out from under him. [ 56 ] Multiple members then arrived. Mr. Eaton was handcuffed and his man purse cut off and left on the ground. When Mr. Eaton was brought to a standing position, Cst. Tsonos teased him about gaining weight. It was a silly thing to do. Cst.

Tsonos did not search the man purse, as he wanted to ensure that Mr. Eaton’s Charter rights were read to him first, and there was no ongoing security concern. Someone else was tasked with seizing exhibits. He prepared a written report of the incident to be included in a Report to Crown Counsel regarding charges against Mr. Eaton but did not mention that in the course of the arrest he kicked Mr. Eaton. He left his business card at the residence and a link to the home security media file was emailed to him. Later that day it was played to the whole team at the detachment. [ 57 ] In cross-examination, Cst.

Tsonos acknowledged by reference to a Google generated map that the distance from where he first saw Mr. Eaton on foot to the location of arrest was approximately 100 meters. There were no civilians out front of the residence at the time of the arrest. It appeared that Mr. Eaton was confined in the area where he was arrested with no easy escape route available. [ 58 ] By reference to the recording of the arrest, Cst. Tsonos confirmed that within approximately 35 seconds of Cst. Avram verbally confronting Mr.

Eaton, six officers were present at the location of arrest and another one was nearby along with a police service dog. He agreed that the availability of backup is an important situational and tactical consideration. His risk assessment heightened when he saw the uniformed member since they did not know each other, and he did not know this other member’s capabilities or experience. Cst. Tsonos was in plain clothes and the uniformed member could pull a firearm on him. The uniformed member’s back was to him as he ran up to the arrest location and took a chance by doing so. [ 59 ] Cst.

Tsonos agreed that the IMIM is central to everything a member does, and communication with a suspect and other officers is an important part of training. It is important to communicate with a suspect to tell them what you want them to do as they are not mind readers, and it is important to alert other officers if a weapon is seen. He did not give any commands to Mr. Eaton to show his hands and did not alert other officers about the presence of any weapons. He did not hear Mr. Eaton make any threats and did not see him holding any weapons or strike any officer. [ 60 ] Cst.

Tsonos accepted that in his prior dealings with Mr. Eaton, Mr. Eaton did not attempt to strike him and was not aware of Mr. Eaton trying to assault a police officer, except for the incident involving the off-duty officer. If a firearm is seen, he is trained to alert other officers. In this case, he did not alert other officers about weapons. When he arrived at the location of the arrest, he did not see anything in Mr. Eaton’s hands but believed his hands were in the area of the man purse. He formed the opinion that Mr. Eaton could access a weapon from the man purse.

He was aware from a criminal record printout that Mr. Eaton had no convictions for assault or other violent offences, and he had no knowledge of Mr. Eaton ever pulling a weapon on an officer. [ 61 ] Cst. Tsonos denied the suggestion that he did not consider Mr. Eaton to be a threat as evident by his comments to Mr. Eaton about gaining weight as officer’s lifted him from the ground. His threat assessment was reduced after both of Mr. Eaton’s hands were secured in handcuffs. He acknowledged that teasing a suspect was not part of RCMP training or policy. He did not recall any command to Mr.

Eaton to show his hands prior to delivering the kicks. He denied the suggestion that it would have made sense for him to make the command to Mr. Eaton to show his hands before kicking him. He was not the contact person or the communication person as he was the third officer to attend. He did not know what prior command had been made and did not want to cause confusion. [ 62 ] Cst. Tsonos confirmed that he attempted four kicks at Mr. Eaton. The first one was to his upper body. He believed that his second kick was unsuccessful, and the third and fourth kicks were to the right hip and stomach area.

The purpose of the kicks was to stop the threat. He accepted that the kicks were capable of causing injury to Mr. Eaton and would fall into the intervention category of hard physical control. He disagreed with the suggestion that it would have made more sense to get down on the ground and secure Mr. Eaton’s legs. [ 63 ] Cst. Tsonos agreed that after delivering the kicks he refocused his attention to the doorbell camera. He was concerned that Mr. Eaton’s screams might cause a resident of the home to be alarmed as there could be a live stream. He also felt it was safer to be on his

feet for tactical repositioning, as Mr. Eaton appeared to continue to have his hands on the man purse. He denied the suggestion that his decision to turn his focus to the doorbell camera was inconsistent to his claimed high-risk assessment or concern that Mr. Eaton could access a weapon. [ 64 ] Cst. Tsonos confirmed that after Mr. Eaton was removed from the area of the arrest he made no effort to search the man purse that had been left behind. He denied the suggestion that he did not search it and walked by it a number of times casually because he did not have any concern that it contained a weapon.

In his mind, the area and the man purse were secure due to officer presence. His focus was on ensuring that Mr. Eaton was given his full Charter rights from the police issued card prior to searching incident to the arrest due to a previous case where evidence was excluded based on that issue. He also did not have any gloves on him and did not want to contaminate the area. Expert Evidence [ 65 ] The Crown and each accused called a use of force expert to give opinion evidence. All three were qualified to give expert evidence in police use of force training and policy.

All three experts relied on the RCMP IMIM to explain how officers are trained to assess risk and to determine the appropriate level of intervention that might be considered in ensuring public and police safety. [ 66 ] The IMIM model was filed as Exhibit 8 and is comprised of a diagram or visual aid followed by eight pages of analysis. The front page of the model states: “The officer continuously assesses risk and applies the necessary intervention to ensure public and police safety”. RCMP officers are trained on this model as a cadet in their basic training at depot.

They are also required to complete online certification each year, and attend bulk training every three years where this model is covered. In the analysis

section of the IMIM, reference is made to s.25(1) of the Criminal Code that gives peace officers the authority to use force to enforce the law if the officer acts on reasonable grounds, and only uses as much force as is necessary in doing what he is required or authorized to do. [ 67 ] The model is described as a visual aid to help officers envision an event, assess and manage the risk through justifiable and reasonable intervention, and to be able to explain why certain intervention methods were deployed. The model is considered officer centric with an officer in the middle circle.

The circles move outward requiring an officer to consider a number of factors in determining what intervention is needed in addressing an incident. The interventions range from officer presence, communication, soft physical control, hard physical control, to lethal force. [ 68 ] The model does not suggest a linear path in choosing an intervention, as a situation may require an officer to immediately apply lethal force if faced with the risk of grievous bodily harm or death. The circles are labelled and have distinctive colours that increase in intensity as the circumstances suggest greater risk.

For example, one circle focuses on the subject’s behaviour starting with white for a co-operative subject, and moving around the circle white blends into grey and into black as the subject’s behaviour moves from co- operative to passive resistant to active resistant to assaultive to grievous bodily harm or death. There is no clear delineation between these behaviours and as such the officer’s perception of the threat posed will have to be considered. [ 69 ] An officer is trained to carefully assess risk taking into account numerous factors and this is a continuous process as an incident unfolds.

Situational factors are a key component of risk assessment and these include: the environment, number of subjects, perceived subject’s abilities, knowledge of subject, time and distance, and threat cues. As noted above the subject’s behaviour is also a key component and as the behaviour becomes more concerning an officer might consider greater use of force. There are also officer perceptions and tactical considerations to be considered.

As such, two officers may respond differently to the same situation and subject. [ 70 ] The analysis of the model instructs an officer to consider six basic principles including the duty to preserve and protect life. It also includes a non-exhaustive list of approximately 35 situational factors to consider; a non-exhaustive list of approximately 25 possible behaviours of a subject that may be encountered and assessed; and a non-exhaustive list of factors to consider under the category of officer perceptions and tactical considerations.

Paragraph 16 of the analysis states: As mentioned in the previous paragraphs, the Risk Assessment process is driven by Situational Factors, Subject Behaviours, Officer Perceptions, and Tactical Considerations. Based on the overall assessment of an incident, the officer must develop and implement what he or she feels is the appropriate response.

Here the officer may choose from a number of Intervention Options available to them. (Emphasis in the original.) [ 71 ] At paragraph 20 of the analysis, is a description of the five intervention options that range from relative passive intervention to the use of lethal force. The options start with officer presence and communication both of which are self-explanatory.

Next are physical control options that are divided into soft techniques that are said to be used for distraction to gain control and include but are not limited to open-hand strikes meant to cause imbalance and pressure points, and have a low probability of causing injury; and physical control hard techniques that are said to be intended to stop a subject’s behaviour or allow the application of a control technique and have a higher probability of causing injury. These techniques may include punches, strikes or kicks.

The remaining options are intermediate weapons such as conductive energy weapons and batons, and lethal force, which primarily involves the use of a police firearm. The last option noted is tactical repositioning or disengagement, which may be prohibited due to insufficient time and distance. [ 72 ] Paragraph 21 of the analysis states: Regardless of the demonstrated behaviour of a subject at the time of the intervention, the ongoing Risk Assessment may require that the officers’ preparation and / or response be consistent with the OVERALL Risk Assessment.

For example, an incident involving a possible armed and dangerous person would indicate to responding officers that a high risk arrest is necessary, and the officer(

s) would point their firearms at the subject. Even if that subject responds appropriately to the commands of the officers at the scene, the totality of the situation still reflects a high risk situation that must be responded to accordingly. Assessment of risk and subsequent intervention response cannot be based simply upon a snapshot of subject behaviour, rather it must take into account all the available information. Evidence of Sgt. Steven Henderson

[ 73 ] Sgt. Henderson was called by the Crown and was qualified to give expert opinion evidence in the area of police use of force training and policy. In direct examination, he was given a hypothetical that included the video of the arrest. [ 74 ] Sgt. Henderson opined that the suspect’s behaviour could be described as “active resistant”, and in his opinion Cst. McGuire’s punches were not consistent with RCMP training and policy.

The basis for this opinion was that the suspect was not exhibiting aggressive behaviour, and therefore the number of strikes delivered, their rapidity, and location of delivery exceeded the intervention required. These were not distraction strikes as there was no pause to assess their effectiveness. Also, he did not see appropriate knee strikes. [ 75 ] He further opined that the kicks delivered by Cst. Tsonos were not consistent with RCMP training or policy. He considered the kicks to be “hard” strikes by reference to how Cst. Tsonos is seen drawing his leg back to be able to deliver greater force.

He also based his opinion on the circumstance that two other officers were already delivering strikes when the kicks were delivered and the suspect was on the ground. [ 76 ] In his opinion, there was no evidence that the suspect was reaching for a weapon when the kicks were delivered and they were not effective. It might have been more appropriate for Cst. Tsonos to control the suspect’s legs to restrict mobility. He opined that Cst. Avram’s actions were appropriate including the drawing of his firearm and taking the suspect to the ground. He did not perceive the suspect’s actions in taking a step towards Cst.

Avram to be aggressive. [ 77 ] In cross-examination by Mr. Martin on behalf of Cst. Tsonos, a set of assumptions were put to Sgt. Henderson, including: Cst. Tsonos believed that the suspect was involved in drug trafficking, theft of vehicles, and organized crime; the suspect used methamphetamine; the suspect was previously found in possession of a firearm; there were lawful grounds to arrest the suspect; the suspect fled from police; Cst. Tsonos heard an elevated voice and words about shooting; the suspect was wearing a man purse; the suspect was holding his arms in front of his body; Cst.

Tsonos perceived a risk that the suspect might produce a weapon from the man purse, and the purpose of the kicks was to distract and weaken the suspect so other officers could gain control of him. Based on these assumptions, Sgt. Henderson agreed that the kicks delivered by Cst. Tsonos would be considered necessary and appropriate in relation to police use of force training and accepted police practices in Canada. [ 78 ] In cross-examination by Mr. Hira on behalf of Cst. McGuire, Sgt. Henderson acknowledged that the IMIM allows for hard strikes to gain control of an active resistant suspect.

He agreed that one cannot assess the level of force being applied by reference to the recording, and that the perspective offered by the recording is limited in that it offers one view that may be different than the perspective of the officers engaged with a suspect on the ground and from a different direction. He accepted that a high-risk assessment was appropriate in this case and that a man purse carried by a suspect should be a concern as it could conceal a weapon. There is no training or policy regarding an appropriate number of strikes to use in gaining control of an active resistant suspect. [ 79 ] Sgt.

Henderson confirmed that officers are trained to gain control of a suspect as quickly as possible, and officers cannot afford to lose the fight with a suspect. He disagreed that the suspect’s actions in reaching to the area of the man purse could be considered assaultive but then resiled from that position after reviewing s.11(

d) of the IMIM analysis. He accepted by reference to the IMIM that hard physical control and intermediate weapons are intervention options in dealing with an active resistant or assaultive subject. [ 80 ] Sgt. Henderson acknowledged that in general terms a knee strike would be an appropriate intervention to gain control of an active resistant or assaultive subject but intervention options are based on more than the behaviour being observed at the time.

Further, he opined that if the knee strikes to the upper shoulder area were distraction stuns, they would be appropriate to retrieve the arm out from underneath the suspect. He disagreed that the final knee strike to the head area was appropriate to get the left arm out as other interventions could have been attempted. However, he agreed that the officers were entitled to apply more pain to get the left arm out, and there is no obligation under the model to use the least amount of force. Evidence of Retired Sgt. Brad Fawcett [ 81 ] Mr. Fawcett was called on behalf of Cst.

McGuire and was qualified to give expert opinion evidence in the area of use of force training and policy. In direct examination, Mr. Fawcett testified that the IMIM is based on a theory of rational decision making, however, in the real-world officers often face dynamic situations and have to react quickly. An officer is constrained by time and perceived risk, and cannot consider all possible options and consequences. Sometimes an officer needs to identify threat cues and use pre-emptive force to stop a risk before it happens.

For an active resistant subject, soft or hard control strikes are available options along with intermediate weapons. Punches and knee strikes can be categorized as soft or hard control techniques. [ 82 ] The IMIM is officer centred, as such an officer’s intent is relevant if reasonable. Mr. Fawcett agreed that giving clear commands to a subject is part of training, however, consideration must be given to the dynamics of the situation including officer exertion. Based on a hypothetical, Mr. Fawcett opined that, on the totality of circumstances, the use of force by Cst.

McGuire appeared consistent with police training. There is nothing observed in the recording regarding the force of strikes that was of concern. He disagreed with Sgt. Henderson’s opinion that the last knee strike was inconsistent with police training. The use of force never looks good and is always messy, like an emergency operating theatre. [ 83 ] In cross-examination by the Crown, Mr. Fawcett confirmed that officers are trained to give loud and repetitive commands and communication skills are integral when dealing with high-stress and high-risk situations.

Good communication could de-escalate a situation and reduce the risk of harm to the police and the subject. He also confirmed that an officer’s intervention decision should include consideration of how many other officers are striking the subject at the same time. In the hypothetical provided to him, he acknowledged that here was nothing preventing the arresting officers from giving the subject a verbal command to show his hands once he was down on the ground. A subject who had earlier been uncooperative could become cooperative.

He agreed that a subject being struck might curl up to protect the face, torso, and groin thereby preventing an officer from getting access to the subject’s hands. In the circumstances here there would be nothing wrong with calling for a police service dog to attend, with the dog acting as a threat to encourage compliance. Evidence of Retired Sgt. Joel Johnson

[ 84 ] Mr. Johnson was called on behalf of Cst. Tsonos and was qualified to give expert opinion evidence in the area use of force training and policy. In direct examination, he testified that, on the hypothetical provided, it was reasonable for Cst. Tsonos to determine that this was an extremely high-risk situation and that the suspect might have access to a weapon in his man purse. He opined that assuming that the kicks delivered by Cst.

Tsonos were for the purpose of assisting the other officers to bring the suspect safely into custody by getting his arms under control, they were consistent with use of force training, policy, and generally accepted police practices. The absence of a verbal command by Cst. Tsonos for the suspect to show his hands did not change his opinion. Previous commands were made to the suspect that were not complied with and most experienced criminals know that they are to show their hands to be effectively arrested. [ 85 ] In cross-examination, Mr.

Johnson confirmed that when applying force an officer should consider the force being applied by other officers as both a situational and tactical consideration. He acknowledged that it would not be uncommon for a person to curl up to protect themselves if being repeatedly punched by multiple people. It could be a defensive reaction. He confirmed that communication at all stages of an interaction with a suspect is an important component of the IMIM regardless of the type of behaviour being displayed. It is important to make clear commands to a suspect as they are not mind readers.

Communication could help de-escalate a situation and reduce the need for force. There is nothing in the training that suggests a “cover-officer” who arrives on scene after other officers should not communicate with a suspect where other officers are not doing so. He agreed that he would not train an officer to deliver 18 hard strikes on a suspect before attempting to give them a command to produce their hands. Submissions on behalf of Cst. Tsonos [ 86 ] Counsel on behalf of Cst. Tsonos submits that Cst. Tsonos should be found not guilty of assaulting Mr. Eaton. Although he intentionally applied force to Mr.

Eaton, he did so in the course of his duties as a police officer and relies on the statutory defences of s. 25(1) and s.34 of the Criminal Code . The Crown has the obligation to prove beyond a reasonable doubt that Cst. Tsonos used more force than necessary in the circumstances. [ 87 ] The three or four kicks delivered by Cst. Tsonos occurred within the first four to five seconds of the hands-on take down of Mr. Eaton by Cst. Avram and Cst. McGuire. Cst. Tsonos was a credible and reliable witness. His high-risk assessment was justified and consistent with the circumstances and expert evidence.

He reacted in real time to a dynamic and high-risk situation. He perceived that Mr. Eaton might produce a weapon from the man purse, and his purpose for kicking Mr. Eaton was to distract and weaken him so other officers could get control of his hands and put them in handcuffs. The Crown expert witness, Sgt. Henderson, agreed that if these facts were true, the kicks would be considered necessary and appropriate in relation to RCMP use of force training and accepted police practices. [ 88 ] The failure of Cst. Tsonos to communicate verbally with Mr.

Eaton within the four to five seconds of his arrival to assist does not detract from the reasonableness of his actions. Further, the fact that Cst. Tsonos did not search Mr. Eaton’s man purse for a weapon after Mr. Eaton was in handcuffs and removed from the area does not detract from his evidence that he perceived that Mr. Eaton could produce a weapon from the man purse. The area of the arrest was secure and Cst. Tsonos directed others to watch the exhibits. Submissions on behalf of Cst. McGuire [ 89 ] Counsel on behalf of Cst. McGuire adopts the submissions made on behalf of Cst. Tsonos.

Counsel submits that the Crown failed to negative Cst. McGuire’s defences pursuant to s.25(1) and s.34 of the Criminal Code . The arrest of Mr. Eaton was a high-risk endeavour that presented the responding officers with significant danger. The strikes delivered by Cst. McGuire could be classified as physical soft distraction strikes; however, hard strikes were consistent with police training. These strikes did not cause any injury to Mr. Eaton and were designed to retrieve and gain control of Mr. Eaton’s hands that were under his body.

Once both his hands were secure, no further strikes were delivered. [ 90 ] The strikes delivered by Cst. McGuire were reasonable and in accordance with the IMIM and use of force training. The pursuit of Mr. Eaton and his arrest created a dynamic situation and there was a significant risk to public and officer safety. More significant interventions were also available to the arresting officers. A failure by the officers to communicate with Mr. Eaton once on the ground and struggling does not detract from the reasonableness of the force used.

Police officers are not held to a standard of perfection and it cannot be presumed that further commands would have been effective considering Mr. Eaton’s failure to comply with earlier police commands. The force used by Cst. McGuire was in accordance with training and not subjectively or objectively unreasonable or a disproportionate response to Mr. Eaton’s active resistance to arrest. Submissions on behalf of the Crown [ 91 ] The Crown submits that the evidence proves beyond a reasonable doubt that both accused exceeded the threshold of necessary force as set out in s. 25(1) .

Neither accused have made out the defences set out in s.25(1) or s.34 so both should be found guilty of assaulting Mr. Eaton contrary to s.266. [ 92 ] The Crown submits that the accused failed adequately to constrain their use of force in arresting Mr. Eaton and thereby ran afoul of the principles of proportionality, necessity and reasonableness. The accused failed to give a command to Mr. Eaton to show his hands prior to delivering numerous and repetitive hard physical control strikes.

This is a failure to comply with the communication component of the IMIM that an officer passes through before getting to physical force. [ 93 ] There is nothing in use of force training that restricts cover-officers from communicating with a suspect. In the absence of communication, the accused’s actions were a possible significant contributing factor to the delay in acquiring Mr. Eaton’s hands for cuffing. A person on the ground being punched and kicked by multiple parties may instinctively curl inwards to protect themselves from injury. [ 94 ] Prior to Cst. Avram giving a command to Mr.

Eaton to show his hands at 1:41 of the recording, Cst. McGuire had punched Mr. Eaton 15 times with a closed fist and delivered at least two knee strikes, while Cst. Tsonos kicked Mr. Eaton three times in the torso or hip area.

[95] The reasonableness of the force used by the accused must be assessed considering the totality of police force used. Prior to anycommand to show his hands, Mr. Eaton was struck by three officers a total of at least 27 times. Mr. Eaton had no history of assaultivebehaviour or fighting with police, and demonstrated no overt aggression to the officers at the time of his arrest, as such, the amount offorce used against him was unreasonable and the actions of the accused contributed to that unreasonable level of force.

It is thecombination of total force used with the absence of a command to give or show his hands that results in a finding of excessive force. [96] The accused’s use of force must also be assessed in light of the significant police resources on scene including a police servicedog. Just the threat of bringing the dog may have resolved the arrest without any risk of injury.

Both accused exceeded the “as muchforce as necessary” threshold as set out in s.25(1) as well as the “act committed is reasonable in the circumstances” threshold in s.34.Accordingly, these defences are not available to the accused and both should be found guilty of the charge of assault. General Principles of Law [97] There are two principles fundamental to every criminal trial, the presumption of innocence and the requirement that the Crownprove its case beyond a reasonable doubt. [98] The presumption of innocence remains with an accused throughout the trial.

It is defeated only if, after considering all of theevidence, the court is satisfied beyond a reasonable doubt of the accused’s guilt. The Crown’s burden of proof beyond a reasonabledoubt applies to each essential element of each offence. [99] A reasonable doubt is not an imaginary, far-fetched or frivolous doubt or one based on sympathy for or prejudice against anyone. It is a doubt based on reason and common sense, and one that logically arises from the evidence or absence of evidence.

Beyond areasonable doubt is an exacting standard that is more than proof on a balance of probabilities but less than proof to an absolute certainty. As the Supreme Court explained in R. v. Starr, 2000 SCC 40 at para. 242, it lies along that measure “much closer to ‘absolute certainty’than to ‘a balance of probabilities’”.

Proof beyond a reasonable doubt is achieved if, after considering the totality of the evidence, thecourt is sure that the accused committed the offence charged or an included offence. [100] There is no principle of law that requires a trier of fact to believe or disbelieve a witness' testimony in its entirety.

On thecontrary, a trier may believe none, part or all of a witness' evidence, and may attach different weight to different parts of a witness'evidence. [101] Both accused testified and as such the following standard W.(D.) principles must be considered: 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, if, after careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.

Fourth, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt of the guilt of the accused.” [102] However, since the s.25(1) and s.34 defences can fail even if a court accepts the accused’s evidence as these defences require anobjective assessment of an officer’s subjective beliefs, a modified W.(D.) analysis is required. In R. v.

Reid, (ONCA), at paragraph 72, the court addressed the W.(D.) analysis in the context of the defence of self-defence: I would suggest that in future cases, when the defence of self-defence is raised and the trial judge believes that a W.(D.) instruction iswarranted, the jury should be instructed along these lines with respect to the first two principles: 1. If you accept the accused's evidence and on the basis of it, you believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty. 2.

Even if you do not accept the accused's evidence, if, after considering it alone or in conjunction with the other evidence, you believeor have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you, you will find the accused notguilty. [103] The offence of assault is defined in s. 265 of the Criminal Code 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 onreasonable grounds that he has, present ability to effect his purpose; or (

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. [104] The authorized use of force defence is defined in s.25(1) of the Criminal Code as follows: 25(1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law (

a) as a private person, (

b) as a peace officer or public officer,

(

c) in aid of a peace officer or public officer, or (

d) by virtue of his office, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose. [ 105 ] The defence of self-defence is defined in s.34(1) of the Criminal Code as follows: 34

(1) A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances. [ 106 ] The leading case on the police use of force is R. v. Nasogaluak , 2010 SCC 6 . The court held that the use of force that a police officer may use in executing their duties is constrained by the principles of proportionality, necessity and reasonableness.

Further, that the protection of s.25(1) will apply where officers “use no more force than is necessary having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves.” [ 107 ] At paragraph 32 and 34 the court held: [32] The Crown emphasized the issue of excessive force in its submissions to this Court, arguing strenuously that the police officers had not abused their authority or inflicted unnecessary injuries on Mr. Nasogaluak. But police officers do not have an unlimited power to inflict harm on a person in the course of their duties.

While, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness.

Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences. [34] Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter.

Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm. The officer’s belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis ( Chartier v. Greaves , [2001] O.J. No. 634 (QL) (S.C.J.), at para. 59 ).

If force of that degree is used to prevent a suspect from fleeing to avoid a lawful arrest, then it is justified under s. 25(4), subject to the limitations described above and to the requirement that the flight could not reasonably have been prevented in a less violent manner. [ 108 ] In R. v. Lopez , 2016 BCSC 1359 at para. 11 , the court summarized the law set out in Nasogalauk : I would summarize those paragraphs [of Nasogalauk set out above] as follows:

a) the police do not have an unlimited power to inflict harm on a person in the course of their duties;

b) police are limited to using the degree of force which is proportionate, necessary, and reasonable;

c) there are special limitations on the use of force that is intended to cause death or grievous bodily harm or is likely to do so;

d) the use of force is to be judged on a subjective/objective basis, having regard to the circumstances as they existed at the time the force was used; and

e) police actions should not be judged against the standard of perfection and police should not be expected to measure the force used with exactitude, but instead police actions should be judged with recognition that the police engage in dangerous and demanding work and often have to react quickly to emergencies. [ 109 ] Similarly in R. v.

Kempton , 2022 BCPC 21 , I held at paragraph 38: [38] In considering this issue, I bear in mind the following principles: police actions are not to be judged against a standard of perfection; some allowance must be made for an officer facing a dynamic situation and misjudging the degree of force necessary to restrain a prisoner; there is no obligation on an officer to impose the least amount of force which might achieve their objective; it is often necessary for police officers to take control of a situation as quickly as possible to prevent an escalation; and finally, an officer cannot be held to a standard of conduct which one sitting in the calmness of a courtroom later might determine was the best course. [ 110 ] In R. v.

Pompeo , 2014 BCCA 317 , the court provided guidance in assessing the reasonableness of a police officer’s belief on a subjective-objective basis: [40] In my view, it is misleading to speak of the doppelganger imagery as “the test in Berntt. ” The use of the concept of a “doppelganger” in Berntt was merely a manner of illustrating the nature of the subjective-objective test of reasonableness. Berntt does not establish a test separate from the subjective-objective one, nor does it suggest that the “doppelganger” imagery must be adopted in order to correctly apply the law.

That said, the doppelganger imagery, if used carefully, may be helpful in applying the subjective-objective approach.

… [46] The judge in this case carefully considered Cst. Pompeo’s training, experience, and circumstances. I do not read his reasons asfailing to take into account either the detailed circumstances of the accused or ordinary human frailties. The judge carefully set out thenature of the inquiry. He noted that factors unique to Cst. Pompeo had to be considered, and recognized (citing R. v.

Asante-Mensah,2003 SCC 38, and several other cases) that “a certain amount of latitude is permitted to police officers who are under a duty to act andmust often react in difficult and exigent circumstances” (Ansante-Mensah at para. 73). [47] The analysis of reasonableness on a subjective-objective basis includes both subjective and objective elements. It requires the courtto place itself in the shoes of the police officer, and to take into account considerations unique to that individual. Once thoseconsiderations are taken into account, however, objective elements of the analysis are applied.

While I do not suggest that the test to beapplied is identical to the test for “reasonable suspicion” discussed in R. v. MacKenzie, 2013 SCC 50, there are significant similarities inthe manner in which the individual characteristics of the police officer must be taken into consideration in applying an objective test. Inthat case, at paras. 63-64, Moldaver J., for the majority, said: … [I]n assessing whether a case for reasonable suspicion has been made out, the analysis of objective reasonableness should beconducted through the lens of a reasonable person “standing in the shoes of the police officer” (R. v.

Tran, 2007 BCCA 491, 247B.C.A.C. 109, at para. 12; see also R. v. Whyte, 2011 ONCA 24, 272 O.A.C. 317, at para. 31). That is not to say, however, that police training and experience must be accepted uncritically by the courts. As my colleagueKarakatsanis J. notes in Chehil [R. v. Chehil, 2013 SCC 49], “hunches or intuition grounded in an officer’s experience will [not] suffice”,nor is deference necessarily owed to a police officer’s view of the circumstances because of his or her training or experience in the field(para. 47).

Reasonable suspicion, after all, is an objective standard that must stand up to independent scrutiny. [111] Although expert evidence related to use of force training and policies could be helpful to the Court, it is not determinative of thereasonableness of the force used. As the court in R. v. Tranter, 2022 ONCJ 51, held at paragraph 63, “police training should correspondto what the court considers objectively reasonable and not the other way around.” [112] Similarly in R. v.

Deslauriers, 2020 QCCA 484, the court held: [122] The defences codified in ss. 25 and 34 Cr.C. required that the trial judge consider whether the appellant had reasonable grounds touse his firearm and whether, in the context, the use of that potentially lethal force had been justified.

In that regard, it was relevant,although not binding on the judge, to know what police officers are taught about the use of force and, more precisely, to hear theexpert’s opinion on the accused’s conduct at every step of the intervention in light of such training. [113] Regarding the use of video evidence, the leading authority is R. v. Nikolovski, (SCC), at paragraphs 21 and 22the court held: [21] The video camera on the other hand is never subject to stress. Through tumultuous events it continues to record accurately anddispassionately all that comes before it.

Although silent, it remains a constant, unbiased witness with instant and total recall of all that itobserved. The trier of fact may review the evidence of this silent witness as often as desired. The tape may be stopped and studied at acritical juncture. [22] So long as the videotape is of good quality and gives a clear picture of events and the perpetrator, it may provide the best evidenceof the identity of the perpetrator. It is relevant and admissible evidence that can by itself be cogent and convincing evidence on the issueof identity. Indeed, it may be the only evidence available.

For example, in the course of a robbery, every eyewitness may be killed yetthe video camera will steadfastly continue to impassively record the robbery and the actions of the robbers. Should a trier of fact bedenied the use of the videotape because there is no intermediary in the form of a human witness to make some identification of theaccused? Such a conclusion would be contrary to common sense and a totally unacceptable result. It would deny the trier of fact the useof clear, accurate and convincing evidence readily available by modern technology.

The powerful and probative record provided by thevideotape should not be excluded when it can provide such valuable assistance in the search for truth. In the course of theirdeliberations, triers of fact will make their assessment of the weight that should be accorded the evidence of the videotape just as theyassess the weight of the evidence given by viva voce testimony. [114] In R. v. Dobbs, 2016 ONSC 4957, the court expressed caution of a frame-by-frame analysis when assessing an officer’sbehaviour.

At paragraphs 45 to 49 the court held: [45] In my view, the frame-by-frame analysis put forth by the Crown is not how Officer Dobbs’ conduct should be examined. Rather,the entire circumstances must be reviewed in context. To engage in freeze-frame, second-by-second reconstruction is to engage in thereflective hindsight or the “Monday morning quarterbacking” of police conduct that the courts caution against: see R. v. Cornell, 2010SCC 31, [2010] 2 S.C.R. 142, at para. 24. [46] That said, let me be clear. There is no issue that the video depicting 10 or more hard blows in a row is shocking.

The optics of theforce used by Officer Dobbs are not good, and trigger a visceral reaction that the aggression was unnecessary. [47] However, in establishing the contextual background to support its position that the use of force was excessive, the Crown cannotrely on the evidence of Mr. Costain. It is entirely unreliable and at times unbelievable. The Crown is left with the videos. [48] The Crown points to the facts in in R. v. Rice, 2015 ONCA 478, in support of its position that the force used was excessive.

In Rice,during a police investigation into a disturbance at an apartment building, a surveillance video captured the police officer leaning over asuspect as he was lying on the stairwell floor. The video shows the respondent hitting the suspect in the face with an open palm andtwice kicking him, once in the ribcage area and once in the back. The trial judge found that hitting the suspect in the face was notexcessive force. However, he found that the two kicks to the suspect, evidenced on the video, were unnecessary, amounting to excessiveforce.

He convicted the police officer of assault, a conviction that was upheld by the Ontario Court of Appeal. The trial judge referred

to the video in that case as the “tie breaker”. The Court of Appeal described it as a “very telling video”. [49] In contrast, the videos in this case provide only half the picture. The videos are inconclusive on what actions Mr. Costain wastaking, and in particular, if he was tensing his arms in resistance and trying to place them as Officer Dobbs described. [115] Similarly in R. v Jacobson, 2015 BCPC 291, the court expressed caution in undertaking a frame-by-frame review of policebehaviour.

At paragraphs 137 to 144 the court held: [137] A number of the witnesses were asked to comment on the video footage as it was advanced frame by frame. Life is notexperienced in slow motion or freeze frame. I must remind myself that I had the luxury of watching the video frame by frame in thecalmness of the courtroom. Constable Jacobson did not have this same luxury. [138] The incident from the point in time that Mr. McCormick twisted free from the handcuff to the last punch took mere seconds.Although cameras do not lie, they only capture a single and limited perspective.

A video cannot articulate the perspective of humanexperience. It lacked audio and to some extent image clarity. While very valuable in this case, the video was not without its limitations. [139] Judges must guard against an over-reliance on hindsight. In R v Cornell, 2010 SCC 31 , [2010] 2 SCR 142 the Court saidat para. 24: …[police] cannot be expected to measure in advance with nuanced precision the amount of force the situation will require: R. v. Asante-Mensah, 2003 SCC 38 , [2003] 2 S.C.R. 3, at para. 73; Crampton, at para. 45.

It is often said of security measures that, ifsomething happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-factassessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment indifficult and fluid circumstances.

The role of the reviewing court in assessing the manner in which a search has been conducted is toappropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Mondaymorning quarterback. [140] It is the reasonable belief of the officer in light of all the circumstances that is important in the analysis. Detached reflection cannotbe demanded in dangerous circumstances. [141] I believed Constable Jacobson when he said that he thought Mr.

McCormick still posed a risk while he was on the ground.Although the video is not consistent with Constable Jacobson’s recollection of Mr. McCormick’s hand still being close to or on his toolbelt, an inconsistency like this is not surprising given the fact that only mere seconds passed from the tug he initially felt. [142] Police are not obliged to wait and see what will happen. Doing so would invite injury. It is only common sense, especially in abusy bar that the sooner the potential dangerous situation is dealt with in a conclusive way the better.

Although police have a duty to useno more force than is necessary, they must be satisfied that the active resistance has been overcome. [143] Constable Jacobson’s blows were calculated not to seriously injure Mr. McCormick. Instead of striking blows to his head, he struckblows to the side of his body. The force was reasonable in the circumstances.

One cannot expect police to place themselves in dangeroussituations in order to arrest an individual without, at the same time, acknowledging their authority to protect themselves and others whenmaking an arrest. [144] Furthermore, where an officer acts within a reasonable range of forcible response, s/h

[…]