R. v. Fisher, 2014 ONCJ 783

COURT FILE No.: Toronto Region - College Park DATE: 2014·12·01 CITATION: R. v. Fisher , 2014 ONCJ 783 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — TIMOTHY FISHER Before Justice M. Wong Heard on November 21 and 22, December 1, 2014 Reasons for Judgment released on December 1, 2014 E. Hayden ................................................................................................................ for the Crown M.

Caroline ................................................................................. for the accused Timothy Fisher Wong, J.: [ 1 ] Timothy Fisher pleaded not guilty to one count of obstruct peace officer. The crown elected to proceed summarily and called four witnesses: Grey Greenwell, Tracy Niven, Police Constables Geoffrey Fardell and Angela Roopnarine. The defence called witnesses Stephen Bain, Jennifer Greenfield, Marcos DaSilva, Christopher Wiggins, William Byrd and his client. [ 2 ] The allegations are that on October 30, 2013, Mr.

Fisher, who was a Vice-Principal at Danforth Technical School in Toronto, counseled a student to leave the school knowing that police were there to arrest him and mislead police making it more difficult for the officers to find him. [ 3 ] The following facts are not largely disputed: [ 4 ] Danforth Tech is a high school with over 1000 students, a principal and three vice-principals. It’s so large the students are divided into one of three groups according to their last name in the alphabet. Mr.

Fisher, who has been a teacher in the Toronto District School Board for the past 23 years, a vice principal for 7 of those years, and who had been at Danforth as a VP since September 2012, was assigned students with last names beginning A through G. One of those students was Grey Greenwell. [ 5 ] On October 30, 2013, Mr. Greenwell was 16 years old and a relatively new student at Danforth, having just started in September. According to Mr. Greenwell as well as others, he had more urgent issues in his life than school. In October 2013, Mr.

Greenwell was no longer living with his family because of an incident, which resulted in arrest warrants being issued; Children’s Aid was involved and he had an assigned CAS worker. When he testified last week in court, Mr. Greenwell was neither in school nor working. [ 6 ] On October 29 th , 2013, the day before the alleged incident, Mr. Greenwell met with Mr. Fisher in the Vice-Principal’s office. Mr. Fisher and the two other VP’s had separate offices within the Attendance Office. Mr. Greenwell was meeting Mr.

Fisher because of an incident that had happened in the school, and the discussion was heated and did not end well. Mr. Greenwell left the school, but returned the next morning and headed to see Mr. Fisher. [ 7 ] This conversation was much better: Mr. Greenwell and Mr. Fisher discussed the previous day’s incident. Mr. Greenwell apologized to Mr. Fisher and both parties testified they felt this meeting was productive and positive. Mr. Greenwell was allowed to go to his first period geography class, which finished at 10:00 am. [ 8 ] By this time, school administration was aware that there were warrants for Mr.

Greenwell’s arrest. The first was Vice Principal, Jennifer Greenfield, who testified that on the preceding Friday, October 25, 2014, Mr. Greenwell asked her for a copy of his class schedule. According to Ms. Greenfield, it was odd that a student by the end of October would not already have his timetable. Even though Mr. Greenwell was not one of her assigned students according to the Danforth alphabet system, like any good school administrator, she talked to him. Ms. Greenfield learned of Mr.

Greenwell’s situation: he had been kicked out his house, he needed to find a place to stay and was staying temporarily with friend, whose family Ms. Greenfield knew from Danforth. According to VP Greenfield, she had never dealt with a student who was homeless, so she took particular interest: she checked his student data index card, called his CAS worker and left a message. It was not until Monday, October 29 th that Ms. Greenfield spoke to the CAS worker

who was helpful and who also advised that there were warrants for Mr. Greenwell’s arrest, relating to an incident with his family. [9] According to Ms. Greenfield, she immediately contacted P.C. Angela Roopnarine, who is a Toronto police officerassigned to Danforth as the “school resource officer”. P.C. Roopnarine had been at Danforth for the past 2 ½ years, and her job was tobe a positive police presence in the school. According to P.C. Roopnarine, she does not recall if VP Greenwell told her on Monday, October 29th about the warrants, but she does recall hearing buzz around the school that Mr.

Greenwell was wanted for an incidentinvolving his family. P.C. Roopnarine testified that had she known about the warrants, confirmed their validity, and had she seen Mr.Greenwell in the school on the Monday or Tuesday, she would have arrested him. [10] It is not disputed that on the date in question, October 30th, sometime before 10 am, Mr. Fisher spoke to P.C. Roopnarineand told her that Grey Greenwell was in his office. P.C. Roopnarine asked Mr. Fisher to see if he could keep Mr.

Greenwell in his officeuntil she was able to confirm the warrants and, if the warrant was still in effect then call for back-up officers and a scout car. By thetime, P.C. Roopnarine had called her dispatcher, confirmed the warrants, and waited for back-up officers to arrive, Mr. Greenwell hadleft Mr. Fisher’s office and gone to his first period class. [11] According to P.C. Fardell he received the radio call to attend Danforth Tech at 9:57 am, and when he and his partnerarrived, they met with P.C. Roopnarine, another officer and Mr. Fisher.

All witnesses agreed that when police are on school property toexecute a warrant or to arrest a student, the main goal is public safety and to avoid all unnecessary attention and disruption to thestudents including the arrestee. It appears that it was quickly decided that Mr. Fisher would go to Mr. Greenwell’s class room and bringhim back to the office. [12] Tracy Niven, a school based safety monitor who had worked at Danforth for the past 15 years, was working and heardfrom two of her colleagues that police were on their way to arrest Mr. Greenwell. It is agreed that Mr. Fisher approached Ms.

Niven andasked her to accompany him to Mr. Greenwell’s geography class, whereupon they would bring Mr. Greenwell to the office. Ms. Nivenwas chosen because compared to her male counterparts, she would likely be less threatening. [13] Both Mr. Fisher and Ms. Niven testified they went up to the geography class just as the 10:00 am bell rang. As theclassrooms emptied, Mr. Fisher asked the classroom teacher if he could speak to the student privately in the classroom. What was saidbetween Mr. Fisher and Grey Greenwell in the classroom is, of course, the essence of this case which I will review momentarily.

Afterwards, Mr. Fisher, Mr. Greenwell and Ms. Niven walked down the hall, but instead of returning with the teachers to the office, Mr.Greenwell walked into the stairwell and down the stairs. [14] Mr. Fisher returned to the attendance office without Mr. Greenwell and Ms. Niven responded to another call. It is agreedthat Mr. Fisher told the awaiting police officers including P.C. Roopnarine that Mr. Greenwell was “gone”; and that he did not tell thepolice that he had seen Mr. Greenwell in the classroom. The officers asked Mr. Fisher for a description of Mr. Greenwell and heprovided one.

By 10:14 am, the police began their search and by 10:17 am, Mr. Greenwell was located just outside the school andarrested. At 10:22 am, he was read his right to counsel. [15] Soon after, Tracy Niven sought out P.C. Roopnarine to discuss her concerns about Mr. Fisher not bringing Mr. Greenwell to the office. Further investigation ultimately lead to Mr. Fisher’s arrest on November 1st. [16] On Friday, November 1st, Grey Greenwell was back at school and he had a conversation with the other vice principal,Stephen Bain. Mr. Greenwell wanted to tell Mr. Bain about what happened. [17] Since November 1, 2013, Mr.

Fisher has been on “home assignment”, which means technically he is still a vice principalat Danforth, but he not been allowed to go to the school The Law: [18]

Section 129 of the Criminal Code makes it an offence to wilfully obstruct a peace officer, who is engaged in the properexecution of her duty. In this case, the information particularizes the offence: namely, that Mr.

Fisher “…did wilfully obstruct AngelaRoopnarine, a peace officer… by counselling and aiding and abetting a young person, who the accused knew was about to be lawfullyarrested, to flee”. [19] I accept the crown’s position that the offence of obstruct peace officer is a general intent offence, whereby the gravamenof the offence is interference with a peace officer engaged in the execution of her duty by wilful obstruction.(See R.v. Gunn, (1997) 1997ABCA 35 , 113 C.C.C. (3d) 174 (OCA), leave to appeal to the S.C.C. refused 115 C.C.C. (3d) vi. [20] I am also assisted by the decision of R.v.

Yussuf 2014 ONCJ 143 , [2014] O.J. No. 1487 (Ont.C.J.), wherebyJustice Paciocco outlines the elements of the offence in a very helpful decision tree. At paragraph 52, Justice Paciocco outlines fiveelements a court should consider:

a) Element 1 – there must be a peace officer who is in the execution of a lawful duty as a peace officer;

b) Element 2 – the accused person must know or be wilfully blind to the fact that this person is a peace officer and must know or bewilfully blind to the act the officer is executing;

c) Element 3 – the alleged obstructive conduct must be an intentional act by the accused person, or an intentional omission by theaccused person constituting a failure by the accused to comply with a legal duty;

d) Element 4 – that the act or omission must make it more difficult for a peace officer to carry out their duties; and

e) Element 5 – the accused person must intend to make it more difficult for the police to execute their duty.

[21] It is agreed that Elements 1, 2 and 4 are satisfied. The issue is whether Mr. Fisher counselled Mr. Greenwell to leave theschool and then lied to police, knowing that it would make it more difficult for police to arrest the student. The crown submits the courtshould consider what transpired in the classroom between Mr. Fisher and Mr. Greenwell together with what Mr. Fisher later told policeas one continuous act. Ms. Hayden submits

section 21 of the Code does not apply even though the information particularizes the offenceas “counselling and aiding and abetting”, which are words that have a particular meaning in

section 21. The crown notes that Mr.Greenwell was never charged with an offence arising out of this transaction so the crown is not alleging Mr. Fisher is a party to anyoffence. Ms. Hayden submits the court should consider the words “aiding and abetting” in their ordinary meaning, if there is one. Inother words, the crown submits the Court should find Mr. Fisher guilty if I am satisfied that he “counselled” the student to leave theschool and then “helped” him by lying to the police. [22] Mr.

Caroline does not dispute the test, but emphasizes that the court must still assess his client’s mens rea. [23] Both counsel agree that in order to make that determination, I must assess the credibility of the witnesses. Credibility Test: [24] The leading case on assessing credibility is R. v.

W.D.(1991) (SCC), 63 CCC (3d) 397 (S.C.C.). [25] A judge must apply the following test: [26] First, if I accept the defence evidence then obviously the accused must be acquitted. [27] Secondly, if I do not believe the defence testimony or that of his witnesses, I could still be left with a reasonable doubt,and again I must acquit the accused. [28] Thirdly, even if the defence evidence does not raise a reasonable doubt, I have to consider all of the evidence includingthe evidence adduced by the crown to satisfy myself that the crown has met its high burden and proven beyond a reasonable doubt all ofthe essential elements of the offences against the defendant. [29] As well a judge, or a jury, need not firmly believe or disbelieve any particular witness or a set of witnesses.

A judge canaccept or reject some, all, or none of any particular witnesses’ testimony. As well, a trier of fact can give different weight to differentparts of the evidence that the judge accepts. [30] There is also the fundamental principle that everyone is presumed innocent until their guilt has been proven beyond areasonable doubt, and the onus is on the Crown throughout a trial. Defence evidence: [31] In applying the W.D. analysis, if I accept the defence evidence then Mr. Fisher must be acquitted. As such, I will reviewthe defence evidence: [32] Mr. Fisher testified he entered the classroom and he told Mr.

Greenwell that the police were downstairs and they werethere to arrest him. Mr. Greenwell said he already knew the police were there for him because he had walked right past them when heentered the school. Mr. Greenwell kept repeating that he was not coming down to the office. In cross examination, Mr. Fisher agreed thatMr. Greenwell asked him to tell the police that he had left the classroom, or that he wasn’t there, or make up an excuse for him, but Mr.Fisher told him “no” he could not. [33] Mr. Fisher said they both exited the classroom, where Ms. Niven, was waiting for them in the hall.

According to Mr.Fisher, Mr. Greenwell mentioned he had a social worker, so he suggested they go down to his office and call her. Mr. Greenwellresponded saying that he had run away from the other CAS placement and repeated that he was not going down to the office; Mr.Greenwell said he got “spooked” referring to staying a Covenant House and Mr. Fisher said he told Mr. Greenwell that he understood. As they walked towards the exit, Mr. Fisher said he grabbed Mr. Greenwell’s wrist and pleaded again for him to come with him to theoffice. Mr.

Greenwell repeated that he was not going because of the past negative experience, and he said was not getting arrested again. Mr. Fisher testified Mr. Greenwell then walked down stairwell #3. [34] Mr. Fisher testified he went down stairwell #4 and back to the attendance office, which took him 1 to 1 ½ minutes. Hetold P.C. Roopnarine that Mr. Greenwell was “gone”. She said, “What do you mean?” He replied, “He has left”. P.C. Roopnarine andP.C. Fardell’s version of what Mr. Fisher told them is different. According to P.C. Roopnarine, Mr. Fisher returned and stated, “He’sgone, he must have left.

I sent him back to class and I guess he left early”. P.C. Fardell testified Mr. Fisher came in and said “He’sgone”. Officer Fardell asked, “what you mean, he’s gone?” to which Mr. Fisher said “He left early” and then continued to explain thatMr. Greenwell returned to class, probably saw police and got spooked and left; and that Mr. Greenwell was “probably around thebuilding”. [35] Mr. Fisher denies that he told police that Mr. Greenwell “must have left early”. He agrees he did not tell P.C. Roopnarineor the other officers that he had seen Mr. Greenwell in the classroom, but that was because they didn't ask him.

According to Mr. Fisher,he assumed police understood that he had seen Mr. Greenwell because he had said, “He’s gone, he’s left”. Mr. Fisher also did notexplain to his principal or P.C. Roopnarine when he met with them later why he hadn't told police that he had seen Mr. Greenwellbecause he knew now he was under investigation and charges could be laid. [36] Vice Principal Jennifer Greenfield testified she knew there was an arrest warrant for Grey Greenwell as early as Monday,and Mr. Fisher knew at least by the next day. I accept the defence evidence that they both took steps to notify P.C.

Roopnarine as earlyas possible so as the School Resource Officer, she could take the necessary steps to verify the warrant. I accept the school administratorsin particular Mr. Fisher, was proactive, prepared and willing to cooperate with police to affect the arrest.

[ 37 ] This is also consistent with Mr. Fisher and P.C. Roopnarine’s evidence that on the morning of Wednesday October 30 th , Mr. Fisher spoke to her and told her that Mr. Greenwell was in his office. By this point, Mr. Fisher could have easily suggested that Mr. Greenwell, leave the school had he felt kindly towards Mr. Greenwell, wanted to give him a break and not be arrested at school. Instead, Mr. Fisher went even farther: he enlisted Ms. Niven to come with him to the classroom to try and retrieve Mr. Greenwell and bring him to the office. [ 38 ] All of these positive steps to notify police, to bring Ms.

Niven into the picture are inconsistent with Mr. Fisher intending to obstruct police either by counselling Mr. Greenwell to leave the school or helping him to flee by lying to police. [ 39 ] There were, however, two areas of Mr. Fisher’s testimony which I have trouble accepting: first, his explanation why he did not telling police that he had seen Mr. Greenwell in the classroom. “Because they didn't ask me” is one of those answers that judges sometimes hear and it rings false. Mr.

Fisher certainly could have been more forthcoming with police, as well he could have done more to assist them; for example, call for assistance on the police radio or ask Ms. Niven to try and speak to him. However, it is agreed that Mr. Fisher was under no legal obligation to help police execute a warrant and arrest Mr. Greenwell. The warrant was not for an incident in the school, it was a family matter so Mr. Fisher did not owe a moral duty to another student. [ 40 ] Also at play, which was alluded to more strongly in Ms.

Greenfield’s evidence, was that school administrators were at times seemingly frustrated by P.C. Roopnarine who was supposed to be the liaison between the school and police, but who showed up to work late at times; when asked to follow up with an issue such as the possibility of an arrest warrant, took her time; and was non- responsive when standing in the Attendance Office and a decision had to be made as to who was to go to the classroom to escort Mr. Greenwell to the Attendance Office. Ms.

Greenfield said the whole purpose of having an SRO (school resource officer) at Danforth is to help the school with issues such as this, and it was obvious Ms. Greenfield was frustrated with P.C. Roopnarine. The crown submits the Mr. Fisher and Ms. Greenfield were blaming police for not doing more: I did not agree with that assessment of their evidence. [ 41 ] I also do not accept Mr. Fisher’s testimony that he grabbed Mr. Greenwell’s arm in a last ditch effort to have him come with him to the office. According to Mr.

Fisher, who is a very experienced educator, he had no lawful authority to lay hands on a student especially someone who was potentially volatile. As well, neither Ms. Niven nor Mr. Greenwell said Mr. Fisher grabbed him except Ms. Niven, whose testimony was that Mr. Greenwell shook both of their hands. [ 42 ] Grey Greenwell was not a student, who had any strong connection to Danforth let alone Mr. Fisher. He was a new student who by the end of October, was barely there and who had already caused problems. According to the defence witnesses called as character witnesses, Mr.

Fisher was a very experienced educator who earned a reputation amongst his former colleagues at the Toronto District School Board’s Safe and Caring School Program as well as his colleagues at Danforth Collegiate as being very fair, honest, and trustworthy. It does not seem consistent or plausible that Mr. Fisher would risk his reputation by trying to help out a student, even one who he came to his office that morning and apologized by counselling him to flee from police and then lie for him. [ 43 ] Overall, I accept much of the defence evidence although I have expressed reservation over the two areas of Mr.

Fisher’s testimony, which I have discussed plus there is the contradictory evidence of the police. As such, I will review the crown evidence. Crown’s Evidence : [ 44 ] The crown seeks to prove the charge through both direct and circumstantial evidence. [ 45 ] First, I am not satisfied that the direct evidence of Grey Greenwell is sufficiently reliable upon which to base a conviction. According to Mr. Greenwell, Mr. Fisher and Tracy Niven came into the classroom and the defendant told him that the police were at the office (which he already knew) and they asked him come downstairs. Mr. Greenwell said both Mr.

Fisher and Ms. Niven told him that he needed to deal with the warrant, “Get it done” and then everything would be fine. According to Mr. Greenwell, he told them he was not going to surrender; he was not going to get arrested. Mr. Greenwell said, “I kind of like encouraged him to tell the police that I was not there”. Mr. Greenwell said he was asking Mr. Fisher to tell the police that he had left so he could make a nice clean exit. He said Mr. Fisher looked shocked and appeared to struggle with what to do next. [ 46 ] In cross examination, Mr. Greenwell agreed he knew Mr.

Fisher did not have the lawful authority to arrest him or physically force him to the office. Mr. Greenwell agreed he told Ms. Greenfield the same thing on the Monday: that he had his own plans, he was going to make his own decisions, the last time he did not eat for two days, and that he was not going to surrender himself into police custody. [ 47 ] One of the most significant discrepancies in Mr. Greenwell’s testimony is Tracy Niven was not in the classroom during this discussion. According to Ms. Niven and Mr. Fisher, Ms. Niven waited in the hallway while defendant spoke to Mr.

Greenwell alone in the classroom. On less significant aspects, Mr. Greenwell’s memory is similarly unreliable: Mr. Greenwell had to pause and think when he even started at Danforth; he could not recall what he and Mr. Fisher were “bickering” about on October 29 th until he re-read his statement to police and agreed that Mr. Fisher told him that he should take care of the outstanding warrant and he told him “no”. [ 48 ] By his own account, Mr. Greenwell’s behaviour was sometimes unpredictable and his memory at the time was poor. He couldn’t remember how he was feeling when he returned to see Mr.

Fisher on October 30 th . As Mr. Greenwell stated, he could have been “happy, jolly or angry”, and that sometimes he cannot control his attitude. Even when he thinks he is being nice, Mr. Greenwell said he may not be. [ 49 ] According to Mr. Greenwell, he asked Mr. Fisher to lie to the police for him so he could make a clean escape. However, Mr. Greenwell did not leave the school property. According to him, he was really stressed and his first priority was to find someone to borrow a cigarette from.

Police spotted him still on school property, “right outside the door basically”; no more than five minutes later and he was arrested. [ 50 ] Mr. Greenwell was back on school property two days later on Friday, November 1, 2013. Mr. Greenwell said he

remembered a conversation with Vice Principal Stephen Bain, but could not recall what was said. However, in cross examination, Mr. Greenwell agreed he could not dispute Mr. Bain’s version of their conversation. [ 51 ] According to Mr. Bain, on November 1 st , Mr. Greenwell was back at school in the vestibule, spouting off and grand- standing, displaying an abrasion on his wrist where he said police had manhandled him. The school secretary went to get him a band-aid and Mr. Bain went to ask the principal if Mr. Greenwell was allowed to come back to school. The principal was in a meeting, so Mr. Bain brought Mr.

Greenwell into his office and told him to stop acting out in the hallway. According to Mr. Bain, Mr. Greenwell asked him he wanted to know what happened. Mr. Bain said “no” because he knew there was an ongoing investigation and he did not want to step on people’s toes. Mr. Greenwell ignored him: telling him that when Mr. Fisher came in the classroom, Mr. Fisher told him that police were there to arrest him, and that he needed to come with him to the office. Mr. Greenwell said he told Mr. Fisher that he was not going to do that.

They walked along the hallway with the school safety officer until they came to the junction by the stairwell. Mr. Fisher asked Mr. Greenwell, “what are you going to do?” and Mr. Greenwell replied he wasn’t going to go with him. Mr. Fisher said “good luck with that” and Mr. Greenwell left. Mr. Bain was not cross examined about his conversation with Mr. Greenwell. [ 52 ] I accept the evidence of Mr. Bain that Mr. Greenwell did not say anything about Mr.

Fisher counseling him to leave the school or agreeing to tell the police that he had left the school. [ 53 ] The Canadian Oxford Dictionary definition of “counseling” reads “ the act or process of giving counsel. The process of assisting and guiding clients, especially by a trained person on a professional basis, to resolve personal, social or psychological problems and difficulties”. I am not satisfied that Mr. Fisher counselled Mr. Greenwell except to advise him to take care of the outstanding warrant, to speak to his social worker and to take care of himself. I am not satisfied Mr. Fisher told Mr.

Greenwell to leave the school. [ 54 ] Overall, I found Mr. Greenwell to be a very unreliable witness. [ 55 ] In terms of the circumstantial evidence of guilt, the crown asks the court to consider the evidence of Tracy Niven, P.C. Fardell and P.C. Roopnarine. [ 56 ] Tracy Niven testified Mr. Fisher told her on their way up to the geography class, that he felt badly that Mr. Greenwell was going to be arrested. Mr. Fisher told her he had just had a very positive interaction with student, who comes in on his volition and who had apologized to him as well as another teacher. Ms. Niven she said she knew Mr.

Fisher had felt badly. [ 57 ] Ms. Niven was not in the classroom when Mr. Fisher spoke to Mr. Greenwell. When the two emerged, Ms. Niven said both Mr. Fisher and Mr. Greenwell were calm and the latter was nonchalant. According to Ms. Niven, Mr. Fisher said to Grey Greenwell, “ So you got scooped and took off?” which was not said in response to a question. Mr. Greenwell nodded as if he knew of what Mr. Fisher was speaking. Mr. Fisher then said, “ You need to take care of your things and get a hold of your social worker”. Mr. Greenwell then shook both of their hands and left down the stairwell. Ms.

Niven testified she was surprised by what had just taken place and she stated to Mr. Fisher, “who is the soft one now? ” She also added that she was not about to give chase and looked out the window to see if she could see Mr. Greenwell. Ms. Niven testified she had to respond to another incident in the school and did not see where Mr. Fisher went. [ 58 ] Later, Ms. Niven said she went to look for P.C. Roopnarine to tell her what had happened and to seek advice. Ms. Niven said she saw Mr. Fisher later that morning when she was with the other two safety monitors. She said she felt uncomfortable, but listened as Mr.

Fisher gave more details of what happened when he was inside the classroom According to Ms. Niven, Mr. Fisher said he said to Mr. Greenwell, “ I know I am not your friend and I know I am known as the asshole vice principal ” to which Mr. Greenwell agreed and Mr. Fisher laughed and said, “ You were not supposed to agree with me”. Mr. Fisher then left the room. Ms. Niven later spoke to P.C. Roopnarine around 11:00 am. [ 59 ] In cross examination, Ms. Niven agreed: she was obviously not present when Mr. Fisher spoke to Mr. Greenwell. She agreed that had she heard Mr. Fisher tell Mr.

Greenwell that the police were there to arrest him and that Mr. Greenwell had to come with him to the office then she would have viewed what she observed in the hallway in a different light. We know from Mr. Greenwell himself that Mr. Fisher told him that the police were there to arrest him (even though he says he already knew), and that Mr. Fisher asked him to come to the office, but he refused. Ms. Niven confirms that neither she nor Mr. Fisher had any legal authority to physically restrain the student or to arrest him. In hindsight, Ms.

Niven said she could have been invited to come into the classroom to try her hand at persuading him to come with them; or Mr. Fisher could have called out over the school hand-held radio that he needed help. Neither was done, which troubled Ms. Niven although I note she, herself, did not radio for help either. [ 60 ] I find that even if Ms. Niven heard the words, “So you got scooped and took off?” they do not advance nor detract from the crown’s case. There is no context in which Mr. Fisher said these words.

The other words, “You need to take care of your things and get a hold of your social worker” is consistent with both Mr. Fisher and Mr. Greenwell testifying that the defendant was encouraging him to call his CAS worker and take care of outstanding issues. [ 61 ] As for the other crown’s witnesses evidence there is obviously contradictions between what P.C. Fardell and P.C. Roopnarine heard Mr. Fisher say about Grey Greenwell, and what each recorded in their notebooks. (P.C. Fardell wrote his notes a few hours after the incident). They both clearly believed in hindsight that Mr.

Fisher was evasive and lying to them. As already mentioned, I am troubled by Mr. Fisher’s own admission that he did not tell police that he had just seen Mr. Greenwell upstairs in the classroom nor do not accept his explanation. [ 62 ] However, I am not satisfied that P.C. Fardell and P.C. Roopnarine’s testimony when viewed in the context of all of the evidence leaves me with the moral certainty of Mr. Fisher’s guilt. As stated earlier, I have no difficulty rejecting Mr. Greenwell’s evidence, which makes it challenging for the crown to persuade me that Mr.

Fisher then mislead or lied to police to protect or help Mr. Greenwell to leave the school.

Conclusion [ 63 ] In turning to Justice Paciocco’s decision tree, I am not satisfied the crown has established elements #3 or #5 that Mr. Fisher’s actions were intended to make it more difficult for P.C. Roopnarine to execute her duty. [ 64 ] As such, I am not satisfied beyond a reasonable doubt and Mr. Fisher will be acquitted of the charge. Released: December 1, 2014 Justice M. Wong