R. v. Bernard, 2010 ONCJ 523

COURT FILE No.: Toronto Region Metro North Court DATE: 2010·04·26 Citation: R. v.

Bernard , 2010 ONCJ 523 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ELWIN DENSON BERNARD Before Justice Carol Brewer Heard on March 15, 2010 Reasons for Judgment released on April 26, 2010 Maurice Mattis .......................................................................................................... for the Crown Erin Thomas ..................................................................... for the defendant, Elwin Denson Bernard BREWER, J.: Introduction [ 1 ] Elwin Bernard is charged with assaulting Christopher Sherk, a police officer engaged in the execution of his duty, on April 5, 2009. [ 2 ] This charge arose out of an interaction between Sergeant Sherk and the defendant, during the course of an investigation under the Liquor Licence Act .

The issue in this case is whether the sergeant was acting in the execution of his duties at the time he was assaulted by the defendant. [ 3 ] On March 15, 2010, at the end of the trial, I dismissed the charge against Mr. Bernard and stated that I would provide written reasons for my decision. These are my reasons. The Evidence [ 4 ] At the time of these events, Sergeant Sherk was working with the Toronto Anti-Violence Intervention Strategy (TAVIS) unit. The officer saw a man leaving a local bar, at about 2:20 a.m., carrying what appeared to be a beer bottle.

Sergeant Sherk was seated in a police car located across the intersection, about 50 yards from the man. When this person ran up the street and into a laneway, the officer drove after him. The man ran up to a jeep that was parked in the lane and handed his bottle to a person in the front passenger seat. As the man tried to open the rear passenger door of the jeep, Sergeant Sherk approached and directed the man to come to the police car and speak with him. [ 5 ] Sergeant Sherk intended to conduct an investigation under the Liquor Licence Act and, if the bottle had beer in it, to give the man a ticket.

The officer testified that he believed the man had an open bottle of beer in his possession. However, the sergeant admitted that he had no idea whether there was alcohol in the bottle and he gave no basis for his belief that the bottle was open.

[ 6 ] A number of young males who were also in the laneway moved around the jeep. One of the group told Sergeant Sherk that “nobody’s speaking to nobody”. At that time, the man that the officer had followed got into the rear passenger seat of the jeep. [ 7 ] Sergeant Sherk made a radio call for assistance. As several back-up units arrived, the sergeant went to the driver’s side of the jeep and opened the rear door. The officer, who is six feet four inches tall, bent over to look into the jeep and positioned himself inside the door so that it could not be closed. There were four people in the jeep.

Sergeant Sherk ordered Mr. Bernard, who was seated immediately inside the rear door on the driver’s side of the vehicle, to “get out”. [ 8 ] According to the sergeant, all of the occupants of the jeep were “potentially contravening” the Liquor Licence Act , as all of them had “knowledge, consent and control” of the open liquor in the vehicle. The officer opened the car door beside the defendant, because he did not want to be at a “tactical disadvantage” and wanted to surprise the occupants.

Although Sergeant Sherk testified that he intended to search the jeep under the authority of the Liquor Licence Act , he spoke only to Mr. Bernard and not to the others in the jeep. The officer did not say why he was ordering the defendant from the jeep. Sergeant Sherk acknowledged that Mr. Bernard was being detained and would not have been permitted to leave the area. [ 9 ] The defendant told the officer, “I don’t need to talk to you.” He reached across the officer and tried to pull the door shut. Sergeant Sherk grabbed the defendant’s arm in an effort to stop him from closing the door.

The officer received a minor blow from the door, which bounced off his shoulder. Mr. Bernard grabbed the sergeant’s hand and pulled it. The officer punched Mr. Bernard in the face with a closed fist. Sergeant Sherk and the defendant grabbed each other by the shoulders. Mr. Bernard was pulling the officer into the jeep, while the officer was trying to maintain his balance and to remove the defendant from the vehicle. Although the sergeant was “much larger” than Mr. Bernard, he found himself being moved into the jeep. Sergeant Sherk lifted his right leg and kicked the defendant in the stomach.

The officer managed to lean backwards and free his shoulders, but his foot was now being held. Sergeant Sherk held onto the roof portion of the door frame to avoid being pulled into the jeep. At that time, Constable Gorney came to the sergeant’s assistance and helped him regain his balance. Each officer seized one of Mr. Bernard’s feet and they dragged him out of the vehicle. [ 10 ] The defendant was placed on the ground and cuffed to the rear. He was moved to the sergeant’s scout car, where a search was conducted. Mr. Bernard appeared to be “completely out of it”: he was crying and incoherent.

There was a small amount of blood on his lips. Eventually the defendant was taken to the hospital. [ 11 ] None of the people in the jeep was issued a ticket under the Liquor Licence Act . Following a search of the vehicle, an empty beer bottle was found under the jeep on the passenger side. Analysis [ 12 ] A police officer is acting in the execution of her duty if her actions are carried out pursuant to authority either conferred by statute or the common law: R. v. Houle (1985), 1985 ABCA 275 (CanLII) , 24 C.C.C.(3d) 57 (Alta.C.A) ; R. v. Noel (1995), 1995 CanLII 1105 (BC CA) , 101 C.C.C.(3d) 183 (B.C.C.CA.) .

Where a police officer unlawfully detains an individual, the officer is not acting in the execution of duty: R. v. Pinto , [2003] O.J. № 5172 (S.C.J.); R. v. Rachkovsky , [2005] O.J. № 6022 (C.J.). [ 13 ] In this case, Sergeant Sherk purported to be acting pursuant to the Liquor Licence Act . The relevant portions of that statute read as follows: 31.

(2) No person shall have or consume liquor in any place other than (

a) a residence; (

b) premises in respect of which a licence or permit is issued; or (

c) a private place as defined in the regulations. (3) Subsection (2) does not apply to the possession of liquor that is in a closed container. 32.

(1) No person shall drive or have the care or control of a motor vehicle as defined in the Highway Traffic Act or a motorized snow vehicle, whether it is in motion or not, while there is contained in the vehicle any liquor, except under the authority of a licence or permit. (2) Subsection (1) does not apply if the liquor in the vehicle,

(

a) is in a container that is unopened and the seal unbroken; or (

b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle.

(5) A police officer who has reasonable grounds to believe that liquor is being unlawfully kept in a vehicle or boat may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it. [ 14 ] In my view, the sergeant had no lawful basis for detaining Mr. Bernard. He had no objective grounds for believing that the defendant was in possession of an open bottle containing beer. The bottle was not seen in Mr. Bernard’s possession and it was handed into the opposite side of the jeep. The defendant did not have control of the vehicle.

Further, as the officer did not have any objective basis for a belief that the bottle of beer was either open or contained liquor, there were no grounds for a search of the jeep and its occupants under section 32(5) of the Liquor Licence Act . [ 15 ] When Mr. Bernard was detained, he was entitled to be advised of the reasons for the detention as required by

section 10(

a) of the Charter . Sergeant Sherk was well aware of this obligation. Indeed, he acknowledged: It’s unreasonable to walk up to somebody, give them commands and expect them to stand on one foot and do things when we do not tell them why. I’m big on explaining our grounds and why we’re doing things …. Yet, the officer did not do so here, or in his earlier effort to speak with the man holding the bottle.

Although the Sergeant had “about 12 police officers now who are going to assist me in getting to the bottom of everyone in that car until we find out whether there’s liquor, whether or not there’s offences”, he felt that “the people in that vehicle had already made a decision to be uncooperative and I’m not going to put myself in a position of disadvantage in an officer safety environment”.

Therefore, the officer decided not to advise the occupants of the car of the reason for their detention until “the situation is safe and it’s reasonable to do so.” [ 16 ] I find that it was unreasonable of the sergeant to expect the defendant to comply with his demand to exit the jeep without knowing the reason for this order. Lack of cooperation is hardly surprising in the face of unexplained police conduct that does not comply with Charter obligations. [ 17 ] I am not satisfied that the Crown has proven beyond a reasonable doubt that Sergeant Sherk was acting in the execution of his duty.

Accordingly, the charge against Mr. Bernard is dismissed. Released: April 26, 2010 Signed: “Justice Carol Brewer”