R. v. Cote, 2011 ONCJ 508

COURT FILE No.: Toronto Region Citation: R. v. Cote , 2011 ONCJ 508 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) M. Cuda, ) for the Crown ) — AND — ) ) ) NICHOLAS COTE ) D. Charney, ) for the accused ) ) ) ) HEARD: May 5, July 11, Sept 7, 2011 FELDMAN J.: [ 1 ] Nicholas Cote entered guilty pleas to two counts of Mischief Over $5000 that relate to wilfully damaging two police cars while he participated in protests at the Toronto G20 summit.

At the same time he entered not guilty pleas to Assault Peace Officer and two counts of Obstruct Peace Officer said to have occurred in related circumstances. [ 2 ] It is alleged that on June 26, 2010, during a frenzy of criminal acts by some G20 protestors damaging property and attacking or intimidating authority figures and members of the media, the defendant joined others in expressing their rage at government policies by such behaviour.

It is said he used a wooden stick to both damage a police cruiser and assault by gesture an officer stuck inside one of those vehicles during an onslaught by a number of assailants. Additionally, surveillance cameras captured Mr. Cote kicking in the window of a second police car. [ 3 ] As well, it is alleged the defendant wilfully obstructed an unnamed Toronto police officer in his or her duty to identify suspects by blocking cameras while protestors were seen to be randomly breaking the windows of downtown commercial premises.

A second count of obstruct police alleges that by participating with others in confining an officer in the first police cruiser while attacking it, the defendant obstructed him in the execution of his duty. [ 4 ] The Crown called Staff Sergeant Graham Queen in support of its case. He was in charge of mobile units for the protest that included six teams of officers driving around in plain vans looking for weapons and primed to contain improper conduct. The officer was trapped in a cruiser that was attacked by the accused and others.

In addition, the prosecution produced video surveillance of the defendant during the protest march, as well as photographic stills recreated from the videos. Mr. Cote testified in his own behalf. [ 5 ] I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the Crown. The Evidence [ 6 ] Staff Sgt. Queen has 23 years of policing experience. On June 26, he, along with a colleague in a separate cruiser, was at the rear of an Ontario Federation of Labour parade for which 8-10,000 marchers were expected.

Part of his duties was to call out the position of the route to the lead vehicle and to ensure no other cars had access to the parade and no one was joining in from the sidelines. This was important for crowd safety as intelligence briefings indicated that the Black Bloc, an anarchist group, intended to use the march as a foil to disrupt the proceedings, cause mayhem and damage property.

Its tactics involved joining the parade armed with rocks, bricks and poles and at a certain point intending to gather into groups, surround its members with black curtains and light flares, put on masks, move out of the circle area into the parade and then break free to assert its destructive will. The officer understood that in such situations the potential for violence and danger to innocent persons and property was high. [ 7 ] The march began at 1:30 p.m. leaving from Queen’s Park Circle and moving southbound on University Ave. At 3:28 p.m., Staff Sgt.

Queen noticed groups forming at the rear of the parade following which it turned easterly and faced him directly. He observed groups assembling, some with red clothes and flags, others dressed in black. He returned to his vehicle to drive it out of the way in order to give the crowd room to move. But he had no chance to start his car as he saw three men in black with their faces covered run towards him, with one of them jumping on the hood and then landing with two feet on the windshield causing it to partially cave in. He found it hard to see through the shattered window. [ 8 ] Staff Sgt.

Queen became aware of a second white male smashing the driver’s side window with a wooden pole and breaking the back window following which that person struck the officer hard on the back of his head and from which he felt dazed as well as concerned he would lose consciousness. He put his hand on his sidearm and slouched down toward the centre of the car to avoid another assault. Other protesters moved to the rear and shattered the lights and back window. [ 9 ] The officer put out an emergency call over the radio. Colleagues on foot patrol and bikes came to his rescue within minutes.

As he was led to safety, the crowd converged on the cruiser to inflict more damage as others flung rocks, pieces of concrete and bottles filled with urine. The vehicle was ultimately burned to the ground. The replacement cost was $33,733.00.

[ 10 ] Staff Sgt. Queen was taken to hospital and tested for a concussion. He suffered headaches for a few days and lost his glasses. Of concern, an operational plan for the G20, including officers’ names and phone numbers, was stolen from the front seat of his vehicle. The replacement cost for lost or damaged equipment inside the cruiser was $5021.00. The Defendant’s Role (

a) The Queen Vehicle [ 11 ] A surveillance video at the scene showed the defendant approaching the cruiser with a number of people ahead of him at least partly obstructing his view. Prior to his reaching the vehicle others had already been damaging it and the windshield had been shattered. Mr. Cote can then be seen striking the left front of the car three times and breaking the headlight before moving on. (

b) The Second Police Cruiser [ 12 ] Photographs taken from an additional surveillance video capture the defendant at a later point in time kicking the front and side of a second police vehicle. © Obstructing the Police [ 13 ] Another surveillance video shows the defendant trying to block the cameras of apparently media personnel in an effort to prevent them from capturing images of protesters breaking the windows of a Roger’s store in downtown Toronto. Someone, possibly the accused, can be heard saying, “No cameras”.

It is the Crown’s submission that this interference made it harder for police to identify suspects and investigate this criminal mischief. Defence Evidence [ 14 ] Nicholas Cote is 19 years old. He has a high school diploma but had dropped out for some time when he was in grade 10 because, he says, he was bullied and his girlfriend pregnant. He said he became drawn to neo-Nazism and the skinhead movement in part because of bullying by black students.

He claims now to have rejected all forms of racism, including white supremacy, anti- semitism and neo-Nazism, but has retained the dress and cultural trappings of the original British skinheads. [ 15 ] Mr. Cote also says he now believes in the equality of all races and religions and because of that transformation tried to organize an Equity march in September 2009. There, he met Ryan Rainville, a friend also charged with setting fire to one of the police cruisers damaged by the defendant.

The defendant told the court he became involved in the G20 protests because of his commitment to ecological issues, Indigenous sovereignty and his political beliefs. It was his intention to “protest the fence around the leaders’ summit that segregates world leaders from people and keeps us from knowing what is going on” and to express his opposition to the injustices borne by Indigenous people. [ 16 ] His involvement in the protests began on June 21. On June 25, he said he was angered by rumours of arbitrary arrests and interested to know that the Black Bloc had appeared.

On June 26, he joined the main labour protest with his fiancée, but also intended to participate with the Black Bloc in tearing down the fence as he had a feeling that would be their focus. He brought black clothing in order to blend in with them so that he could conceal his identity during his participation in conduct he understood to be criminal in nature. [ 17 ] On June 26, he and his fiancée picked up the labour parade at Queen St. and University Ave. that moved west toward Spadina Ave. where he observed the Black Bloc to “group up” and begin to break windows.

Although he was generally opposed to capitalism as an economic system, he did not agree with their attacking “mom and pop” stores or civilian cars, as was then occurring. Rather, his opprobrium was reserved for major corporations that fund oil companies and despoil Indigenous lands. [ 18 ] While he was running with this crowd, the defendant came upon Staff Sgt. Queen’s car surrounded by 4-5 people attacking it which, he says, made him assume no one was inside.

He saw the front glass was shattered and says he could see part of the driver’s seat that appeared empty, although he agrees that on the video he can see yellow, the colour of the officer’s jacket, inside the vehicle. He denies being aware of it at the time. It is of some significance in the weighing process that Staff Sgt Queen testified he leaned down toward the middle of the front seat during the onslaught. [ 19 ] Mr.

Cote told the court that before running past the scout car, he hit the front left lights several times with a wooden pole he was carrying, he believes, because he got caught up in the moment of an adrenalin rush that felt liberating. I view this answer as one tending to minimize his actions given his strong anti-establishment views, his commitment to tearing down the hated fence and his expressed anger at police misconduct in the context of his own self-described bad experiences with the authorities. I am mindful that a patch on the back of his shirt read, “Fuck the G20, Fuck the Pigs”. [ 20 ] Mr.

Cote admitted kicking in the rear right side window of a second police cruiser about 10-15 minutes later. He said he was angry at the authorities for cutting people off from getting to the fence protecting the politicians. He told the police he felt invincible at the time and that his actions were appropriate. He later took off his Black Bloc clothing and left the protest. [ 21 ] On his way back he saw some media photographers taking pictures of protesters smashing the windows of a Rogers’s store.

He said that while he did not stop anyone, he held out his arms to help conceal the identity of those doing the damage because he felt a kinship with those individuals. In addition, he admitted blocking photographers once or twice along Queen St. and then three or four times along Yonge St. He said it crossed his mind the police might use these photos to arrest people but was not aware it was an offence to interfere with picture taking by journalists. [ 22 ] Mr. Cote told the court that he does not now believe in political violence. At the same time, he does not consider property damage to be

an act of violence, although he accepts there is a risk that others could be hurt during such behaviour. He could not explain the incoherence of this self-serving assertion.

[23] Mr. Cote says that in hindsight he is not proud of himself, accepts he did not accomplish anything, that a lot of people wereunnecessarily criminalized and that the tactics he adopted were of little effect. He has felt the impact of his bail conditions that havelimited his time with his son, fiancée and mother. [24] In his statement to the police, conceded as voluntary, the defendant was at times manipulative and transparently dishonest inhis answers, initially denying his involvement in damaging the police cars despite being presented with clearly incriminatingphotographic evidence to the contrary.

Realizing his folly when pressed, Mr. Cote began to bargain with the authorities. He hadconditions before conceding the obvious. [25] Mr. Cote was still couching his answers in testimony. He told the court he was not made aware at the original Sundayorganizing meeting that the intent of some was to break off from the labour march and head off to rip down the fence. This contradictedhis earlier evidence, as well as his statement to the police that indicated otherwise. In this regard, his memory was selective. Positions of the Parties [26] Mr.

Charney, for the accused, submits that in relation to the mens rea element of assault, the court ought not to weigh theevidence regarding knowledge of the officer’s presence on the basis of objective hindsight given the commotion, noise, number ofpeople and fast moving nature of the surging crowd coming upon the police vehicle and damaging it prior to the defendant’s brief attackon the front lights of the cruiser. He says his client’s high emotions, rapid movements and fleeting contact with the vehicle tend tosupport Mr.

Cote’s assertion he was not aware an officer was in the front seat, reinforced, he says, as indicated in the video, by the factthe defendant made no gesture towards the officer, but just ran off without looking back. As well, in this regard, it is significant, asnoted earlier, that the window was shattered and the officer crouched down toward the centre of the car. [27] Mr. Cuda, for the prosecution, submits that the accused had a good vantage point from which to see the yellow jacketthrough the shattered window and that in any case, he says that in weighing the evidence, I should bear in mind that Mr.

Cote was anunreliable and manipulative witness. The Reasonable Doubt Standard [28] The standard of proof beyond a reasonable doubt is bound up with the fundamental principle in criminal trials of thepresumption of innocence: R. v. Lifchus (1997), (SCC), 118 C.C.C. (3d) 1 (S.C.C.). This standard of proof has beendescribed as proof to a near certainty: R. v. Starr, 2000 SCC 40. The burden of proof rests with the prosecution throughout the trial andnever shifts to the accused: R. v.

Lifchus, supra. [29] Where credibility is important, the Supreme Court of Canada requires that the rule of reasonable doubt be applied to thatissue: R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397. I am mindful of the principled approach to the weighing ofevidence set down in that case.

Conclusion [30] I agree the defendant was a self-serving and unimpressive witness and think it probable he was at least wilfully blind to thepossibility that when he joined the attack on the first police cruiser an officer was trapped inside. [31] However, on all the evidence, including a careful review of the video, I am left in reasonable doubt about his awareness inthis regard.

On this evidence, I cannot dismiss the possibility that when he was in the exhilarating throes of an anarchistic expressionagainst property and capitalist authority in chaotic and fast-moving circumstances, the defendant was focused solely on perpetrating, byparroting the criminal behaviour of his cohorts, a sneak attack of very brief duration on the scout car before running off to do moremischief. It should be noted that in masking his identity, his brazen defiance of authority was spineless. [32] As well, on this evidence, I am sceptical, but uncertain if Mr.

Cote was aware of the police lights being on or that he sawor contemplated, but was indifferent, to an officer being trapped in the vehicle that was trashed by hooligans.

The assault police chargewill be dismissed. [33] Given this finding, I dismiss the obstruct peace officer charge that relates to these circumstances. [34] A second count of obstruct police is particularized as, “wilfully obstruct TORONTO POLICE SERVICE a peace officer towit a police officer of the City of Toronto engaged in the execution of his duty to identify suspects by blocking cameras”. [35] It was the position of the Crown that in attempting to interfere with unknown persons, possibly journalists, takingphotographs of protestors breaking windows of downtown commercial stores, the defendant made it generally harder for the police toidentify the assailants and conduct an investigation. [36] Mr.

Cote admitted he was trying to prevent the identity of those committing criminal offences being revealed. Although aninference is available on the evidence that the work of photo journalists was interfered with by the actions of the accused, there is noevidence, as required by the particularization in this count, that a Toronto police officer was obstructed in the execution of his duty inthis regard. That charge will be dismissed.

Released: September 7, 2011 Signed: “Justice L. Feldman”