R. v. Young, 2014 ONCJ 129

Citation: R. v. Young , 2014 ONCJ 129 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — CURTIS YOUNG Before Justice D. Hackett Oral Reasons for Judgment Delivered February 25, 2014 Written Reasons for Judgment Released March17, 2014 C. Stratos and R. Fried ........................................................................................ for the Crown A.

Martin ......................................................................................................... for Curtis Young HACKETT J.: [ 1 ] This is a decision after a trial into events that occurred on January 5 th and 6 th , 2012, when Curtis Young was arrested for allegedly being intoxicated in a public place.

Curtis Young stands charged in one information that: he uttered a threat to PC Miller in the booking hall; he assaulted PC Moorcroft once in the search room and once in the cell; he assaulted PC Piccolo in the search room; he obstructed PC Miller by falsely identifying himself; and he fraudulently personated Richard Young. A second information alleging Mr. Young was in possession of marijuana at his arrest was jointly proceeded upon. The evidence from the trial on the primary information was adopted for the purpose of this second trial.

The Crown elected to proceed summarily on all counts. [ 2 ] This trial began on February 4 th , 2013, and was originally scheduled for 4 days. In the end, it took 14 days over 9 months. Submissions were completed in late October, but due to a leave of absence, this decision was adjourned to February 25 th , 2014. THEORIES OF PARTIES [ 3 ] The Crown alleges that on January 5 th , 2012, Mr. Young was very intoxicated and resisted his lawful arrest for being intoxicated in a public place. It is clear that the primary purpose for his arrest was his own safety.

At the time of his arrest, the police located 19.88 grams of marijuana in a bag in the pocket of his hoodie. He was subsequently arrested for possession. The police described the accused as assaultive and aggressive towards them throughout the night. More specifically, they allege that: he resisted his lawful arrest by pulling away from PC Miller’s hold and clenching his fists; during a strip search at the station, he pulled away from PC Moorcroft, assumed a fighting stance, and swung at and missed him; and he looked like he was going to spit at PC Miller in the cell.

As a result of the ensuing struggle in the search room, PC Piccolo sustained minor abrasions to his arms and PC Moorcroft minor soreness to his head. As a result of the ensuing struggle in the holding cell, PC Moorcroft sustained a minor scrape to one knuckle and minor abrasions and scratches to his arms and a stiff back. In this, as in all criminal prosecutions, the onus rests upon the Crown, on the basis of all of the evidence, to prove each and every element of these offences beyond a reasonable doubt. The Crown submits that its onus has been met on all counts. [ 4 ] While the defence admits that Mr.

Young was drunk, uncooperative, difficult, and verbally obnoxious at times, the defence argues that: there was no lawful arrest; the accused never assaulted the police; and the police used excessive force and assaulted the accused at the bus shelter, beside the transport vehicle, in the booking hall, in the search room, and in the holding cell. The defence points to the extensive facial injuries Curtis Young sustained, along with other injuries, in support of this position.

In this regard, there is a Charter application before the court wherein the defence submits that the accused’s right to security of his person under s. 7, and his right to be free from cruel and unusual punishment or treatment under s. 12, were violated. The defence submits that a breach of Mr. Young’s s. 7 and s. 12 rights has been established on a balance of probabilities, and seeks a stay of proceedings, or the exclusion of the marijuana, and/or a reduction in any sentence under s. 24. This application was blended with the trial on consent.

Finally, the defence submits that the Crown cannot meet its onus because there is a reasonable doubt. OVERVIEW OF EVIDENCE [ 5 ] The defence conceded jurisdiction and identity. The Certificate of Analysis of the substance seized was admitted, Exhibit 17, and establishes that it was marijuana. Continuity was also admitted. The Crown consented to the admission of photographs of the accused taken at the station that night, Exhibits 15 and 21, and ones taken by his mother on January 7 th and 19 th , 2012, Exhibits 19

and 20. The Crown also agreed to admit medical reports related to the accused’s injuries shortly after these events, Exhibits 18 and 22. In submissions, the defence conceded that Mr. Young misidentified himself by his brother’s name, Richard Young, and thereby obstructed PC Miller and impersonated him. The defence also basically admitted that the Crown can meet its onus on the possession charge. [ 6 ] The trial consisted of the evidence of six police officers, Curtis Young, and his mother, Mrs. Young. In addition, a number of DVD exhibits were filed on consent which capture police interaction with Mr.

Young at various times that night including: at and in the transport car (Exhibit 3), in the booking area (Exhibit 1), in the search room (Exhibit 1, audio only), and in the holding cell (Exhibit 4, no audio). Both counsel relied heavily upon these exhibits. Defence counsel has specifically agreed that the statements of the accused contained in these exhibits were voluntary and that there was no need to conduct a voir dire on their admissibility.

Despite allegations of police misconduct, it is the defence position that the things Curtis Young said on those recordings were of his own free will. [ 7 ] At the outset, it should be noted that no formal transcript of the audio components of these recordings was produced. As a result, these exhibits had to be played and replayed because it was often very difficult, or impossible to hear what was said. Given that this is not an isolated problem in our courts, it must be said that this is a very expensive and inefficient use of court time.

Counsel tried to summarize the audio tracks, however, their notes were incomplete and inaccurate at times and not made exhibits. [ 8 ] A civilian complaint was filed by Mrs. Young in February, 2012. It alleges that the police used excessive force that night on her son. This is relevant to point out because the officers involved wrote not only their own notes at the time, but in March of 2012, they also prepared individual complaint responses. [ 9 ] Lastly, the accused was cross-examined about his criminal record as a credibility test and he admitted it.

His record therefore serves no other purpose in this trial and will be disregarded, despite the Crown’s propensity remark to the contrary during submissions.

SUMMARY OF THE EVIDENCE [ 10 ] The following is a

summary of the evidence of the five stages of these events: Arrest, Transport, Booking, Search, and Cell. Considerable detail from the recorded exhibits is provided because of the absence of transcripts. The evidence of the Crown and the defence about each stage differ in significant ways. A. Arrest –

Summary Crown Arrest Evidence [ 11 ] On January 5 th , 2012, at 23:25, three uniformed Constables, Miller, James and Retsinas, responded to a call about the behaviour and safety of a drunk male on Toronto Transit Commission (TTC) property. Upon arrival, they were advised by TTC personnel that the male had left. They were given his description, told what he had done, and advised that he was in possession of a large bag of marijuana. The officers were concerned about his well-being and searched for him. They located a male who fit his description at a nearby bus shelter.

Upon their arrival at 23:34, the accused was passed out on a retaining wall, with his legs dangling over the wall, and his back laying on the hill behind. This individual was later identified at the station as Curtis Young. [ 12 ] The uniformed officers woke the accused. He tried to stand, but was unsteady and fell against the wall. The officers held him up, questioned him, and tried to identify him. Given his state of intoxication, Mr. Young did not respond in an intelligible manner, and was disoriented and confused. Based upon his condition and information received, PC Miller believed Mr.

Young was at risk of harming himself or others, and advised him that he was under arrest for being intoxicated in a public place. The police planned to take him to the station to sober up and charge him under the Liquor Licence Act . [ 13 ] PC Miller grabbed the accused’s right arm and tried to cuff him to the rear because of concern about his reaction to his arrest. PC Miller testified that he was assisted by PC James. The accused shook off the hold, tensed his body, and clenched his fists. During this part of the arrest, PC Retsinas stumbled and fell.

PC Miller decided to take the accused to the ground in order to gain control. PC Miller grabbed Mr. Young’s left arm and tripped him to the pavement. PC Miller described that the accused ended up face down, yelling and resisting. The police wrestled with him. PC Miller struck Mr. Young in the ribs to gain control. The accused was cuffed to the rear at 23:37. [ 14 ] A search incident to arrest produced no identification, but revealed a bag of marijuana in the front pocket of Mr. Young’s hoodie. He was then advised he was also under arrest for possession.

After being cuffed, the accused eventually identified himself as Richard Young and gave a variety of birthdates. Officers checked this name on their system and were advised that there were warrants outstanding for a Richard Young, who matched this accused. When given his rights to counsel, the accused referred to PC Miller as a “pig”. The accused was turned over to PCs Clarke and Gonzales for transport. Defence Arrest Evidence [ 15 ] Curtis Young worked till 1:00 p.m. on January 5 th , 2012. He then went to a friend’s house and drank alcohol. He could not describe what he drank, or how much.

He then took a bus home, but fell asleep, missed his stop, and ended up circling back. Eventually, he was awoken by people in unknown uniforms who removed him from the bus. Mr. Young testified this upset him. He then went to a nearby bus stop to catch another bus home. [ 16 ] The accused described that he was seated upright on the retaining wall at the bus stop, leaning on the side of the shelter, waiting for his bus. He denied he was passed out or sleeping, but admitted he was “pretty drunk” when the police approached. Mr.

Young testified he expected trouble given that he was black and the police were white. PC Miller asked how he was, who he was, and why he was there. Mr. Young did not want to answer these questions because he did not understand, and was not told, why he had been stopped. [ 17 ] The accused testified that he was never told he was under arrest. He kept asking why and if anything was wrong and the police said no. PC James then reached for his cuffs. Mr. Young stood back with his arms open and asked why again. PC James then grabbed his arm, pulled him forward, and PC Miller punched him in his left eye.

PC James threw him to the ground, but not on his face. This contact caused the female officer to fall. The accused was then hit and kicked and his faced was bounced off the pavement. [ 18 ] After being cuffed to the rear, the officers, who he had never met before, began to call him by his brother’s name, Richard. The accused did not know why, did not correct them, and went along with that name. He denied being in possession of marijuana. He was lifted from the ground and taken to the transport cruiser. Mr.

Young testified that he was in pain, his left eye was injured, and his face was throbbing because of the punch. B. Transport –

Summary [ 19 ] Once at the transport cruiser, much of the interaction between the police and Mr. Young is captured on the in-car video, Exhibit 3. The activity outside of the cruiser can only be heard, not seen, and not everything can be understood. The significant parts of the audio recording and the related evidence is summarized as follows. (CY stands for Curtis Young, PCM for PC Miller, PCJ for PC James, PCC for PC Clarke, and PCG for PC Gonzales.) • 23:51. CY, “Really, you guys are arresting me for passing out tonight.” PCM tells him to go against the car.

CY repeats “ow” and PCM says he “won’t do it too hard”. CY complains about his left arm and PCM tells him not to move his hand. • 23:52. There are three sounds of cuffs and then a thud at 23:52:19. CY testified this thud occurred after the cuffs were changed before he was put in the car. He described the thud was made by the police hitting his head on the side of the door. PCM denied this. After the thud, a number of indiscernible voices overlap and an officer says, “Rich, you alright now man?” CY asks if he is going to jail. PC Miller, “I don’t know yet man.” A fourth cuff sound is heard.

PCM asks where he got the marijuana, and a fifth cuff sound is heard. • 23:53. Police tell CY to move his feet and watch his head twice. CY asks what he did and talks over PCM telling the officer to listen. PCM tells CY about the call, investigating his drunken state, and the discovery of marijuana. CY is told that was why he was arrested and he responds with an inaudible. PCM says that CY did not even know where he was. CY says something indiscernible and PCM responds, “I’ll talk to you when you sit down.” At 23:53:45, the video shows CY’s hands in cuffs as he backs into the vehicle.

He does not go directly in and complains about being pushed. PCM, “Ok then, sit down.” CY responds repeatedly, “Ask me to sit down.” PCM, “Rich, sit down.” CY repeats, “Ask me to sit down.” PCM again repeats this instruction. One can infer CY starts to move because PCM thanks him. CY is told again to watch his head and move his legs. CY asks what is going on. PCM responds that he just told him. CY slurs, “I understand I’m getting arrested because…..”, but does not finish his sentence. • 23:54.

PCM finishes the sentence for CY and states that he was drunk in public and they found a bunch of weed on him, so he was arrested for that as well. CY, “A bunch of weed?” PCM states that he read him his rights five times. CY confirms he is being arrested for weed. PCM instructs him to put his foot in. CY does not respond immediately, but eventually gets in and the back door closes. CY, “For real sir, weed?”, and he curses before his head rolls back against the seat. • 23:55-58. CY’s head rolls backwards and forward and to the side. A mark under his left eye is visible.

His eyes appear to be closed or very heavy. • 23:58. The cruiser has not moved. A door is opened and PCG speaks to CY about his name and age. CY tells PCG he is 30 something and 31 and complains that his face is hurting. CY testified that he was 28 at the time. He then asks if he did something wrong and PCG explains he was arrested. CY offers to work things out and states he was just standing at the bus stop. He acknowledges that he was “staggish” and states, “I didn’t mean for my face to get busted. I didn’t mean to piss you guys off.” PCG says he did not piss him off and explains he is just transporting him.

CY, “I’m done then,” and swears. • 23:59. CY apologizes. His head rolls forward. He complains five times that his eye is busted, and says three times that, “I’ll go home and I won’t say nothing.” • 00:01. With his head bent forward and with heavy eyes, CY repeatedly says that he has not done anything wrong and asks them to talk to him. He is asked and gives a date of birth of May 15, 1978. PCC indicates he is under arrest for public intoxication and is being transported. CY asks for what and PCG tells him he had a lot of weed and is intoxicated. CY questions, “I’m intoxicated?

Whoa, whoa, whoa, come on sir.” and pleads numerous times, “I can go home with my face like this.” • 00:02-03. CY repeatedly tells the transport officer “I didn’t do anything man…I was heading home.” CY, “I swear….I understand you guys got the weed man…Ok, I understand you got the weed. Just take it and go.” CY repeats, “Please, I didn’t do anything. I was just walking home.” The vehicle begins to drive to the station. CY swears and repeats, “Like I didn’t do anything man.” He adds, “Even if I did have some weed, I was going home…How did you pick me out of everybody? ...

I don’t understand that.” At 2:56 he complains, “I got punched in my face, but I didn’t do anything man.” He is advised that he is under arrest for marijuana and given his right to counsel. CY interrupts and over-talks. His eyes are either shut or very heavy throughout. • 00:04-09 . CY, “I wasn’t even fighting with you guys, but I still got punched in my fuckin’ face … I’m going to jail with a box in my face … PCG, “I didn’t see that at all.” CY, “I know you didn’t see that, but the other guys seen that, and that’s why I’m pleading with you just to let me go.

Because, you know what, I served my dues.” CY admits he is drunk, but not fighting, “just complaining”. He pleads to go home. His head falls forward and back repeatedly and he continues to try to negotiate going home. • 00:09. CY complains about his face being “jacked up” and claims he has learned his lesson. He tells them he is not able to

breathe out of one side of his nose and sniffs. • 00:11:45. CY repeatedly states that he will go home and, “… not say shit…not say nothing.” He recognizes the area they are in and pleads to be taken to his nearby home. • 00:13. CY, “I got beat up tonight and I still go to jail.” He mumbles it’s not fair and, with his head rolling, talks nonsense about shooting and court. • 00:14:30. CY’s body rolls to his right and he lays in an awkward sideways position across the seat for the rest of the drive. From this position, he continues to talk and plead. • 00:15.

CY refers to it being, “...one ounce of weed, not even a full ounce.” • 00:16.24. They arrive at the station. CY continues to plead his situation. • 00:19. PCM meets the car. The accused’s body is still sideways across the seat. The door opens. Given his intoxication and being cuffed to the rear, CY struggles to get out of the vehicle on his own. He sarcastically thanks PCM for helping him. PCM, “I could help you, but I don’t want you to bang your head…” CY, “I can’t believe you said that.” PCM, “I did ...” CY claims he was arrested walking on the road. C. Booking –

Summary [ 20 ] At the station, Officers Miller and Retsinas paraded Mr. Young before PCs Piccolo and Moorcroft, the booking officers. PCs Piccolo and Moorcroft testified that the accused was intoxicated. Mr. Young was focused on PC Miller. PC James arrived shortly after with the accused’s property. All five officers described that the accused repeatedly complained about PC Miller punching or boxing him in the face and the injury to his eye. Staff Sergeant Johnson then joined them. The officers testified that the accused was rude and would not answer questions directed at him by the Staff Sergeant.

PC Miller admitted that at one point he applied force to the arms of the accused while they were cuffed behind his back. Finally, the police allege that the accused threatened PC Miller. [ 21 ] Mr. Young testified that his eye continued to worsen at the station. He believed that the police had no reason to approach him or arrest him, and had assaulted him. He was angry and believed that his rights had been violated. No one would answer his questions, or respond to his complaints about his eye and being punched by PC Miller, so he was uncooperative and “rude”.

He described that while he was speaking to the Staff Sergeant, PC Miller hurt him by applying force to his cuffed arms behind his back. The accused denied he threatened PC Miller and testified that the words he used were to correct PC Miller because he believed PC Miller had told the Staff Sergeant that he had swung at the officers. [ 22 ] The video recording of the booking, which lasts approximately eleven minutes, has been marked as Exhibit 1. There are some things on it that cannot be understood.

The main evidence about this period of time is summarized as follows. (PCP stands for PC Piccolo, PCMo for PC Moorcroft, and SSJ for Staff Sergeant Johnson.) • 0:25 In the presence of PCM, PCR, PCP, and PCMo, CY says, “I didn’t even do anything?” He asks why he got arrested. PCM tells CY about the booking camera and audio recording. CY asks why he has been arrested and PCM responds he has been told 5 times. PCM tells CY to take a seat in the corner. • 0:26 PCM explains to the two booking constables why CY was arrested and the outstanding charges. CY stares at PCM and asks why? PCM responds that he was drunk.

CY, “Why pull me out of everybody there?” PCM tells him he was passed out at the bus shelter. CY, “You’re going to say I was passed out.” PCM, “You’re going to say you weren’t?” CY challenges him, “People wake up with a knot in their face right?” • 0:28 CY, “Why am I fucked up like this for no reason?” and states his girlfriend will not be able to recognize him and he will not get “pussy tonight”. PCM engages and says, “Like every other night.” PCJ arrives in the booking hall with CY’s property. • 0:29 CY, “I didn’t do nothing.

How’d you separate me from the whole fucking crowd?” PCM comments on how wasted he is making that remark because he was alone at the bus shelter. PCM tells him about the outstanding warrants. • 0:30 PCM tries to work out a deal with CY, but CY responds at 30:06, “You punched me in the face. It’s too late for that shit.” At this point, PCJ is beside PCM, PCP is in front of CY at the desk, and PCMo has his back to him behind the desk. PCR is facing towards CY, a little further away. PCM does not respond to CY and he and PCJ immediately turn away from CY and face the desk.

At 30:29, after looking around the walls, PCM asks the booker, “Are we on?”, clearly referring to the recording equipment. PCP says yes, and tells PCM to advise CY, which he does for the second time. CY responds at 30:49, “Was that before or after you punched me in the face?” and then louder at 30:53 “Was that before or after you punched me in the face?” At this point, PCM, PCJ, PCR and PCMo are near and facing CY. PCM does not respond. • 0:31 CY says something indiscernible to PCM who turns and talks to him about the warrants.

The officers then engage in an unrelated conversation, ignoring CY. • 0:32 CY stomps his feet and states, “I got boxed in my eye.” PCM, “I don’t even know what that means.” PCR, “You got a box in your eye?” CY, “Do I look normal to you, honey? Does my eye look swollen or not?” PCR tells him she is not his honey. This all takes place in the presence of PCJ, PCP and PCMo. At 32:39, SSJ arrives. • 0:33 PCM describes the arrest and warrants to SSJ. CY is still seated in the corner. All 4 officers appear to be paying attention to the SS’s interaction with CY.

PCM states that CY has been read his rights to counsel, but is intoxicated. He explains that CY has asked five times to re-read them and says, “…so I’m not sure that he quite understands.” CY injects, “That’s a lie.” PCM requests a strip search

and advises CY will be held for show cause. SSJ asks CY his name. CY does not reply. PCM tells him to answer SSJ. SSJ asks if CY can stand and he gets up on his own. She tells him to “stand over here” and explains she needs to ask him questions. CY moves in front of the desk with PCM and PCJ on either side, each holding one of his arms, which are still cuffed behind his back. SSJ asks his name again. CY, “You can ask me questions, but I don’t know if you’ll get answers ...” SSJ again asks his name.

CY, “I’m a little pissed off right now because I am not getting no…” SSJ speaks over him and says, “Rich, what is your name” and he continues, “…answers to my questions.” PCM tells him to show respect. CY, “Heh, nobody’s respecting me right now.” SSJ asks for his date of birth. CY, “I ask you for a little bit of respect about what the hell’s going on right now. You know what that did? My eye’s swollen right about now, so therefore…” • 0:34 In the midst of Mr.

Young’s first complaint about his eye in front of SSJ, at 34:01, PCM’s free arm goes behind CY’s back where the officer’s other arm is already holding CY’s right arm. PCM testified that he bent CY’s wrist back, pulled his arm up, and squeezed. While this force is being applied, CY states at 34:02, “I’m going to pull a fuckery right now. You can squeeze as much as you want, you can hurt me as much as you want.” At 34:07, PCM returns his hand to the front and CY continues, “We’re on camera. Squeeze, I dare you.” In court, CY described this “fuckery” remark as “my mouth was embarrassing”.

At the same time, he stated that the police are trained to deal with “a mouthpiece” and the way they dealt with him that night lacked humanity. CY testified that PCM squeezed his cuffs and his right wrist really tightly. CY and SSJ then talk over one other as she confirms he understands he is under arrest and his rights. CY, “I also understand I ask questions and nobody answers my questions.” SSJ, “Listen… this is not the place for your questions.” CY over-talks, “This is why I am the way I am…It's not my fault.

I tried to be nice to my friend (looks to PCM) and to my friend (looks to PCJ)… I don’t even know if you (looking at PCJ) arrested me…. But I know he (looks at PCM) did ...” At 34:40 and again at 34:45, SSJ asks if he has any medical problems or injuries and CY initially states no. SSJ then describes the injury to CY’s eye and points to her own left eye. CY agrees with her at 34:54. At 34:55, PCM, “During the arrest, he was brought to the ground …” CY over-talks, “On yeah, apparently I was a bad …” PCM over-talks, “He pushed…” and PCM points to PCJ and PCR, who are present.

CY interjects, “This is ridiculous…” • 0:35 PCM continues, “He pushed both officers …,” again pointing at his two partners, “… clear away.” CY faces PCM and over-talks, “…knocked in my eye, this is the reason why…” The Staff Sergeant interjects that she is trying to talk to the officer. PCM continues, “… myself, to try to gain control of his arms. He was kind of flying around.” As he says this, PCM demonstrates a small swing of his arm, which is extended at his side with his hand in a fist. PCM then points to the ground and says something indiscernible.

The other five officers are facing towards PCM and CY when all this is said. Although PCR’s face cannot be seen, her body is facing CY. At times, PCP and PCMo are working at the computer. CY turns towards PCM as he makes this gesture. CY testified that he believed PCM had told the SSJ that he had tried to hit the officers and this shocked him. CY immediately makes the alleged threatening remark at 35:10, “Yo, I was swinging at you? Notice how you look perfectly nice. But if I swung at your ass, I’d go right through your ass block. Trust me. I’m a strong person eh. I can be quite strong. I can.

I don’t look like that way, but I can be quite strong.” SSJ asks if he has consumed drugs and CY replies, “No, I had a little bit to drink…” He would not say what, and says “Why? Because this guy hasn’t even explained to me why he’s arresting me. The way you are treating me is not fair.” At 35:55, in response to SSJ’s question about his mental health, CY states, “Why are we focussing on me…” SS talks over CY, “Because while you are here I have to take care of you.” CY simultaneously, “…and not on (looking at PCM) what happened tonight?” • 0:36 CY, “My eye is closing.” SSJ over-talks and authorizes a strip search.

CY repeats, “My eye is closing.”, three more times looking over his shoulder at SSJ as he is taken into the search room by PCM and PCJ. D. Search –

Summary [ 23 ] The booking hall DVD, Exhibit 1, is an audio record of what happened in the search room over a period of approximately five minutes. There are many things said that are not discernible. The following is a

summary of the significant evidence. • 0:36 As they enter, PCM has a hold of CY. Voices are inaudible. CY, “I don’t care yo…I’m stronger than you.” The door to the room closes at 36:14. CY testified that PCM and PCJ began to push and rough him up. PCJ, “Heh, relax.” CY, “I didn’t hit you. I didn’t hit you.” Meanwhile, in the booking hall, PCMo, “This is not going to go well.” SSJ tells the two bookers to go help. In the search room, CY growls loudly, “Why, why, why?” An officer yells, “Ok, calm down.” CY, “I’m not fighting you.

All I’m just saying…” PCMo enters the room at 36:31 and PCP remains at the open door and puts on one plastic glove. CY continues in a lower voice, “…all I’m saying is…be reasonable”. An officer interjects at 36:32, “Turn around, turn around.” CY continues, “…be reasonable, that’s all I’m saying is be reasonable.” PCM tells CY to turn around twice more and he responds, “…be reasonable. Ok, ok.” Prisoners are turned around in order to remove cuffs. PCP goes to get another glove from the desk leaving the door open.

An officer says, “This is not funny.” CY, “Ok.” At 36:44, PCP is back at the door to the room and there are two sounds that CY identified as PCM slapping him back and forth across his face. PCM was not sure about the sounds, but said it might be clapping. PCJ testified that these sounds were PCM clapping his hands to get the accused’s attention because he was not listening. PCP and PCMo both testified they sounded like a plastic search glove being adjusted. After these noises, PCM, “Start listening.” CY, “Ok.

I’ve been listening.” PCM, “No you haven’t.” CY, “I’ve been listening, that’s how my eye ended up like this. …I’ve been listening, that’s how my eye ended up like this. Ok. You can twist as high as you can.” An officer, “Yo, Richard.” CY, “…your motherfuckin’ face…” • 0:37 CY, “You can twist it up as high as you motherfucking want.” PCM, “Alright.” CY, “Well guess what, my mouth is still going to motherfucking run.” PCM, “Alright.” CY, “It’s going to motherfuckin’ run and run and run and run and run.” PCP closes the door. CY, “Because you know what, I’ve been polite with you. You treat me like shit.

I don’t know what the fuck I did to you, but, you treat me like shit. I don’t know what I did to you for you to treat me like shit. …” At 37:24, a cuff sound can be heard. Presumably the cuffs are removed at this point. PCM testified that after the cuffs were removed, CY turned and stared at PCM. PCJ testified that once the cuffs were off, CY assumed a bladed fighting stance with fists. PCM, “Are you going to chill out?” An officer, “Or, are you going to fight us?” CY swears. Voices overlap. PCM, “We need your jacket off. I’m telling… your jacket, then this, ok? Can you get that off?

Then your belt, shoes and pants.” CY says something indiscernible. PCM, “That’d be great. Thank you. Alright?” At 37:54, there are four officers in the search room, the cuffs are off, and CY appears to be co-operating. The next audio remark is a reference to CY’s sweater, so presumably he removed his jacket. Unlike the ongoing noise to this point, things are quiet for 6 seconds.

• 0:38 PCM, “Can you take your sweater off.” CY testified that he felt more comfortable with the new officers being present and ignored PCM. He described that PCM stared at him with a “cold grill.” He felt PCM was waiting for an opportunity to pounce on him. The voices are mumbled, but all is calm. PCMo, “Take your sweater off.” CY, “Where were you when this guy was beating me?” At 38:14, PCMo repeats, “Take your sweater off man.” An officer orders louder, “Heh, take your sweater off.” • 0:38:18-40 CY testified that PCM can be heard slapping him for a third time at this moment.

An officer repeats, “Take your sweater off.”, followed immediately by CY, “Whoa, whoa, whoa, whoa, whoa…” PCM, “Richard”. In court, CY acknowledged that in addition to PCM, PCMo also tried to get him to take off his sweater, but he would not co-operate with him either. CY agreed with PCMo that when PCMo grabbed his sweater he “jerked away”. At 38:22-24, an officer, “Don’t get stupid, don’t get stupid!” with escalating volume. At 33:25, CY loudly, “What the fuck?” followed by a noise at 38:26. CY testified that this was PCM punching him in his right eye.

CY immediately repeats, “What the fuck?”, and at 33:28 “Don’t you touch me...” There are no statements from the officers between 33:24 and 33:28. PCM, PCP and PCMo testified that around this time, CY assumed a fighting stance and swung at one or more officers and missed. Between 33:29-36 there are sounds, including two noises followed by a third louder noise at 33:24. One officer testified that these were sounds of a struggle. PCJ testified that the louder noise was when they all fell to the ground. Counsel agreed that the alarm, which I frankly cannot hear, was activated on the search room wall at 33:33.

However, SSJ and PCR only react at the desk and move towards the door at 33:36, after an officer in a loud voice says, “Stop resisting.” • 0:38:40 An officer yells, “Get on the ground, get on the ground.” PCJ testified that this meant that CY, who was already face down on the ground, was trying to push himself back up. SSJ and PCR then enter, followed at 38:46 by two other officers, who rushed from other areas of the building. At 38:49 an officer yells, “Stop fighting. Stop fighting.” A fourth additional officer enters at 38:52. At 38:54, an officer says, “You ok now?” At 38:55, the first officer exits the room.

At 39:00, an officer says, “Stop fighting.” Voices can be heard, including CY, but they are not discernible. During the struggle, CY testified that he was jumped and everybody was hitting him. He testified that: he was kicked on both sides of his torso and on the side of his head; he keeled over; and he was unconscious for a time because he does not remember falling down. When he came to, he was being kicked in his head, neck and back, and held by his legs. He testified he could not breathe because of the weight on his back. CY believed he passed out again.

PCM gave evidence he struck CY a couple of times in the ribs to wind him and kneed him to regain control. PCM and PCJ testified CY swung and kicked, and they had to get on his legs. • 0:39:20 One officer comes out and gets shackles. CY is then shackled and a partial search completed. Voices can be heard, but again they are not discernible. At 40:23, CY, “I didn’t even attack you guys, you attacked me.” None of the officers can be heard responding to this accusation. Things are then quiet. • 0:41:14 The door opens.

Officers yell, “Get up, get up.” CY repeats, “Oh my God, ok,ok,ok,ok,ok,….” CY is pulled out of the search room by officers in shackles, without handcuffs. His pants are falling down. PCM orders him to stand up. CY responds that he is trying, and says, “Chill out man…ok,ok,ok,…,” He stumbles down the hall towards the cell with three officers holding onto him and states, “I understand you guys don’t like me. I understand that, I understand that.” [ 24 ] PCs Moorcroft and Piccolo described receiving minor injuries during this struggle. The accused received significant injuries over the night.

Other than his left eye injury from the arrest, it is difficult to know which injuries were specifically from the search struggle. E. Cell –

Summary [ 25 ] The officers testified that the accused was looking at PC Miller once they were in the cell. They concluded, at the same time, that the accused was going to spit at PC Miller. As a result, PC Moorcroft grabbed the accused’s head and pulled it down. The accused then grabbed both of his forearms and pulled PC Moorcroft into the corner and a melee ensued. Mr. Young continued to hold his left arm and the officer repeatedly said, “Let go of my arm.” until he was freed.

PC Moorcroft received minor scratches and abrasions to his arms and a scrape to his knuckle that he attributed to the accused. [ 26 ] The accused testified that he was not going to spit at PC Miller. He described that PC Moorcroft grabbed his head for no reason and pushed it down, putting all his weight on the back of his head. PC Moorcroft then pushed his head backwards and forwards and backwards again. Mr. Young could not breathe, so he moved his head to the side to relieve the pressure.

He stated that PC Moorcroft then pushed him back into the corner and the officers piled on and hit and punched him repeatedly. Again, Mr. Young suffered significant injuries that night. It is difficult to determine which ones were from the cell struggle. [ 27 ] Exhibit 4 is a DVD depicting what happened in the cell. It is of poor quality in that it shows one frame per second, resulting in a choppy, incomplete record. In addition, there is no sound. These limitations on the cell recording are unfortunate given how much time was devoted to playing and replaying these images to try to sort out who did what, when.

Lastly, it should be noted that the search and cell video clocks were not synchronized. [ 28 ] The following is a

summary of the cell evidence over a three minute period. • 39:36-39. PCMo and PCP enter with CY and move him towards the cement bench. PCMo is closest to the back of the cell wall at all times. • 39:40-41. CY is settled on the bench by PCMo and PCP, who are facing him. • 39:42-43. PCM enters and stands to PCP’s right at the door end of the bench with his back to the camera. It appears that CY is looking to his left towards PCM. • 39:44-49. PCJ enters and stands closest to the door and furthest away from CY with his back to the camera. He is to the right behind PCP and to the left behind PCM. The accused appears to continue to look to his left towards PCM.

• 39:50. PCP is crouched in front of the bench, looking towards the back wall. The accused is looking down towards the ground. PCP is transferring one leg shackle from CY to the ring on the lower part of the bench. PCMo has a hold of at least CY’s left wrist and is standing above CY with his head facing down towards their hands. PCJ testified PCMo had both of CY’s wrists. • 39:51. PCM is still standing and reaches forward towards, but still above CY. CY’s head has changed position. He is now looking slightly down and towards his left hand. PCM is about to take control of CY’s lower left arm from PCMo.

PCM testified he put one arm on CY’s left wrist and one on his elbow. PCMo maintains control of CY’s right arm. • 39:52-56. CY’s head is still looking down to his left hand. PCM is still above him to CY’s left, but a little bent over looking to his hand. He testified he was still engaged with CY’s left arm. PCP is visible at 39:52-53 and is still crouched, looking to the back wall and down to the shackles. His back is to PCM and PCJ. After 39:52, PCP is blocked from view. PCMo has a hold on CY’s right wrist with his left hand and is standing above and in front of CY on his left side.

PCJ remains standing behind PCP, and behind and to PCM’s left. • 39:57. PCMo now has his right hand cupped on the back of CY’s head, and is still holding CY’s right wrist. PCM still appears to have CY’s left wrist. At this moment, CY’s head is upward facing towards PCM. PCP is not visible. PCJ and PCM have not moved. • 39:58. PCM and PCJ still have not changed their positions. PCMo still has his hand on the back of CY’s head. CY’s head is still to his left towards PCM, but it has moved up a little. PCP is still bent over out of view. • 39:59.

No one changes position, except that PCMo’s right hand has moved with CY’s head in a downward motion towards CY’s lap. • 40:00. No one has changed position except that PCMo’s arm and CY’s head have moved backwards towards the back wall. • 40:01. PCMo brings CY’s head forward again with his arm, towards CY’s lap. Nothing else has really changed about the positions of PCJ, PCP, and PCM. • 40:02-11. PCJ moves for the first time and gets on the bench. PCP is now visible and is still crouched on the ground in front of CY.

Both PCMo and PCM engage in a struggle with CY in the corner, but their backs block the view. • 40:12-31. PCMo, PCM, and PCJ are leaning into the corner on top of CY in a struggle. PCP bends to get up and then engages in the struggle. Their backs block the view. • 40:32-34. PCMo pulls out and looks at his right arm. The struggle continues with the others in the same positions. • 40:35-39. PCMo goes back in to help in the foot area. The other three continue to block the view of the struggle and their positions remain basically the same. • 40:40-46. PCMo backs away from the bench and leaves.

One of PCM’s arms is free. • 40:47-42:43. PCJ moves from the centre of the melee, backs off the bench, and is no longer engaged with CY. PCP and PCM continue to engage with CY. PCP bends down again towards the shackles while PCM holds onto CY. • 42:43-51. PCP starts to get up and PCM is still engaged with the accused. At 42:44, all three remaining officers begin to leave. No movement is seen from CY. • 42:52. CY is alone in the cell lying flat on the back half of the bench, with his arms above his head, his legs off the bench, and his head in the corner, not moving. [ 29 ] Mr.

Young sustained significant injuries that night as a result of struggles with the police at his arrest, in the search room, and in the cell. The worst and majority of these injuries were to his face and are best shown in the booking colour photograph, Exhibit 21. The medical reports for Mr. Young, Exhibits 18 and 22, were written shortly after these events.

They describe a series of injuries and symptoms that include: concussive recurring headaches; photophobia; nausea; lightheadedness; abrasions and bruising bilaterally to the periorbital and temple areas; swelling of the left eye; neck tenderness and stiffness; cervical strain; and something indiscernible about his mouth. Mr. Young underwent a CAT scan and X-rays and was prescribed pain killers. Exhibits 19 are poor quality pictures of the accused’s face at the detention centre the next day. Exhibit 20 is a series of eight photos of the accused’s injuries taken shortly after his release.

They show: two black eyes, a mark on his nose, blackened lips, swelling and a cut to his inner lip, three chipped teeth, marks on his forehead, marks at the temple, abrasions on his wrists, a mark on his left shoulder, and bruising to his ribs. At trial, the accused stated he still suffers from migraines as a result of what happened to him that night. This was corroborated by his mother. [ 30 ] PC Moorcroft sustained a minor knuckle scrape and minor abrasions and scratches to his arms as a result of the accused’s actions in the cell. See Exhibit 12.

ISSUES [ 31 ] At trial, in addition to the Crown’s onus of proof beyond a reasonable doubt, the main issue is the assessment of credibility and reliability of the witnesses and the weight to be applied to their evidence. On the Charter application, in addition to the onus on the defence on a balance of probabilities, the main issue is also the assessment of the credibility and reliability of the witnesses and the weight to be applied to their evidence. Given that this was a blended trial and Charter application, the assessment of the evidence for both will be dealt with simultaneously.

ASSESSMENT OF THE EVIDENCE [ 32 ] This

section is divided into the five stages of these events for organizational purposes only. Despite these divisions, this court is mindful of all of the evidence in this proceeding as it makes these observations and draws these conclusions. A. Arrest – Assessment of Evidence Condition of the Accused [ 33 ] Curtis Young was significantly intoxicated that night. His level of intoxication affected his memory about his condition when the police arrived and what happened before his arrest.

His evidence about this time period is internally inconsistent, and contradicted by his statements that night to various officers and by police testimony. I also find he tried to minimize the effect alcohol had on him that night in court and lied to the police and a doctor about the extent of his alcohol consumption that night. Finally, I find Mr. Young also lied to the police that night and to this court about his knowledge of the marijuana.

The following are some features of the evidence which support these findings. [ 34 ] The accused testified that when the police approached him, he was seated on the wall, but he denied being laid back and sleeping as the officers described. However, on the transport video, the accused contradicted his testimony and inconsistently claimed to have been, “just standing at the bus stop”, and “just walking home”. Mr. Young also testified he had fallen asleep on the bus earlier, but did not know who removed him from that bus. [ 35 ] Mr.

Young testified that he could not remember how much he drank, but said it was quite a bit. In contrast, he told the booking Sergeant that he had “a little bit”. In cross, he could not remember what he drank and stated it was probably beer. He agreed in cross that he probably had more than two beers, but then could not explain why he told the doctor at the hospital that night that he “only had two beers”. See Exhibit 22. [ 36 ] It was suggested to Mr. Young in cross that the transport video demonstrates he was slurring his words, he agreed. When it was suggested that this slurring was because of alcohol, Mr.

Young’s first answer was not responsive. His second answer was that it was the result of a combination of being hit in the head and alcohol. Yet, he also admitted in cross that he was slurring his words at the side of the road before anything physical happened. The transport and booking video recordings show not only that Mr. Young’s speech was slurred, but also that: he was not able to remember things that were being said to him; he could not follow simple instructions; and when seated in the cruiser, his head kept rolling about and he had difficulty keeping his eyes open and sitting upright.

While the injury he received as a result of his arrest might have added to his difficulties, they do not account for most of his trouble given his problems remembering what had happened earlier before the police approached him. [ 37 ] With respect to the seized marijuana, the accused testified he had no idea where it came from. When asked if he was in possession of marijuana that night, he said “probably”.

Curtis Young testified that he did not see marijuana at the scene, but inconsistently told the transport officers, “Ok, you guys got the weed man.” When asked more generally in court about 20 grams being almost an ounce of marijuana, he testified he did not know what an ounce was. Yet on the transport video, the accused told officers it was, “one ounce of weed…not even an ounce”. Arrest Grounds [ 38 ] I find that Mr.

Young had an attitude that night which, combined with alcohol, significantly affected his reaction to the police investigation and led him to challenge and not co-operate with police throughout the night. I also find, based upon the accused’s condition and PC Miller’s knowledge at the time, including information from TTC personnel, that he had, both subjectively and objectively, reasonable and probable grounds to arrest Curtis Young for public intoxication under the Liquor License Act . The following pieces of evidence support these conclusions. [ 39 ] Mr.

Young told the court that when the officers approached, he had a preconceived idea that race was going to be an issue because he was black and all the officers were white. Mr. Young testified he was upset about having been taken off the bus earlier. He also felt that the police had no right to approach him and no grounds to arrest him. On the transport and booking videos, the accused questioned why the police had picked him out of a group of people at the bus stop on three occasions. Clearly, on all the evidence, there were no other people at that bus stop and he was not singled out.

I find that the sense of unfairness Mr. Young felt that night about being picked upon by the police before his arrest is not supported by the evidence. [ 40 ] PC Miller testified that they tried to identify the accused before his arrest, but were not successful because Mr. Young was not able to answer questions because of his impairment. Mr. Young agreed he was not co-operating with their questions and, in his words, was “playing cat and mouse” because he wanted to find out why he had been stopped.

Defence counsel suggested in cross- examination that police did not ask the appropriate questions because they made no note of doing so until they wrote their complaint responses two months later. In my view, the failure to make notes of questions that were not answered and answers that made no sense, was not unreasonable in these circumstances.

In any event, the accused testified that the officers had asked such questions and had tried to identify him before his arrest. [ 41 ] The accused also testified that PC Miller demonstrated concern for his condition when he first approached and asked, “Heh bud, are you alright?” In my view, based upon all the evidence, it should have been apparent to the accused at the time, if he had been sober and/or had less attitude, that the police were concerned about his well-being, particularly given that they could not identify him, despite their efforts.

In cross-examination, the defence was also critical of PC Miller’s decision to arrest Mr. Young instead of trying to find a less intrusive option. The overwhelming evidence is that Mr. Young was significantly intoxicated and could not, and/or would not provide the police with his identity. In my view, it would not have been reasonable for the police to have waited for him to sober up in order to develop another option short of arresting him for public intoxication.

The Arrest [ 42 ] The accused testified that he was never told why he was arrested at the scene. I reject this evidence for the following reasons. On the transport and booking videos, he made similar complaints. These claims are contradicted by statements he made on both the transport and booking videos, and by the evidence of the officers. Mr. Young even refers to knowing he was arrested for passing out and possession on the transport video. I find that Mr. Young was initially advised he was under arrest for being intoxicated in a public place, and subsequently for possession of marijuana.

As PC Miller explained to the desk sergeant, and I accept, Mr. Young was too intoxicated to retain what he had been told, plus, in my view, he also had an attitude that contributed to him not accepting what he had been told. Alleged Punch and Grounding [ 43 ] The accused attributed his swollen left eye to a punch from PC Miller as he was grounded. He claims that this use of force was excessive in all the circumstances. Based on all the evidence, and in particular, for the reasons set out below, I find that Curtis Young’s memory about how this arrest was effected was very poor, inconsistent, and unreliable.

He not only lied at the time of his arrest and in court about the marijuana, but he also lied to the police about his identity and to this court about how he was identified. I find his lies were for the purpose of protecting his interests. The police evidence is also problematic and I find the officers’ evidence is not credible or reliable. In this regard, as set out later, they were prepared to effectively jointly lie about Curtis Young’s aggression during his arrest to their superior. However, I cannot find that this lie is enough to corroborate the allegation of Mr. Young.

For the reasons set out below, I also cannot find that his eye injury corroborates this allegation either. Without corroboration, his allegations are tenuous given the issues with his evidence. [ 44 ] It must be remembered that there were other more independent witnesses at the scene, namely one or more TTC special constables, who have not been called to testify. One of them must have seen this arrest given evidence that indicates TTC cuffs were initially used to secure Mr. Young. In my view, this TTC officer is a more independent witness and has become material.

Obviously, the failure to call him/her cuts both ways given that the Crown bears the onus of proving the offences beyond a reasonable doubt, and the defence bears the onus on a balance of probabilities on the Charter application. [ 45 ] Based upon all the evidence, and despite strong suspicion, I cannot find that PC Miller punched Mr. Young, or that the police used excessive force at his arrest. The main issues that seriously undermine the credibility and reliability of Curtis Young and the officers and lead to these conclusions are as follows. (

a) The Accused’s Evidence [ 46 ] The first issue with Mr. Young’s evidence is that, as previously described, his evidence about what happened before his arrest demonstrates that his memory was not always accurate, complete or reliable both that night, and in court, because of his intoxication at the time. Secondly, Mr. Young was inconsistent in describing who did what, both that night and in court. Initially, he testified that PC Miller had the cuffs, then he stated it was PC James. The accused also told this court that PC James grounded him.

Yet, on the booking video, he stated he did not even remember PC James being at the arrest. [ 47 ] Thirdly, the accused’s evidence about this punch is undermined by his mother’s testimony. Mrs. Young wrote her police complaint on February 2 nd , 2012. She testified that she spoke to her son about these events on a number of occasions proximate to the events, both before and after his release. Mrs. Young stated that she understood the importance of being accurate when she wrote this complaint; she had listened carefully to her son; and she wrote down what he had told her from memory.

In cross, she testified that it was not possible that she had got anything wrong, but admitted she may have left something out. On all the evidence, I find Mrs. Young to be a consistent, fair, credible and reliable witness. In her complaint, she wrote, “ the police kicked her son awake on a bus ”, and “ cuffed him on the bus before taking him to the cruiser”. I accept that this is what her son told her. These two points are inconsistent with the police and the accused’s testimony and illustrate how bad his memory was about what happened, even at a time much closer to the events.

In addition, her complaint makes no reference to Curtis Young telling her he was punched in the eye at his arrest, as he alleges. [ 48 ] At the same time, the consistent, repeated allegations and complaints Mr. Young made to the police that night about this punch do not support the Crown’s argument that this allegation is not credible because it is not contained in his mother’s written complaint.

More specifically, Curtis Young is recorded complaining seven times about being punched or boxed: twice on the transport video, when PCs Gonzales and Clarke were in a position to hear; and five times on the booking video, when I find PCs Miller, James, Piccolo and Retsinas were in a position to hear all five, and PC Moorcroft the last two. PCs James, Piccolo, Retsinas, Clarke, Moorcroft and Miller all testified that they heard this allegation. Mr. Young also complained about the injury to his eye and face nine times in the transport video, and eight times on the booking video.

These officers also testified they heard the accused’s complain about his eye repeatedly. However, at the same time, the number of complaints does not increase the reliability of Mr. Young’s allegation. It has to be remembered Mr. Young also repeatedly and incorrectly claimed he was not told why he was arrested that night and that the police had no reason to stop him. [ 49 ] The fourth issue with Mr. Young’s evidence is that he lied about how he identified himself. The officers testified that after he was cuffed, he identified himself as Richard Young. Richard Young is the name of the accused’s older brother.

Under oath the accused could not recall how the police came up with that name and suggested it was their idea and he simply went along with it. At the same time, Mr. Young remembered giving the police a number of dates of birth, including his brother’s. When asked in cross if he lied to the police about the dates, he was evasive, but eventually agreed he had lied. Subsequently, during the transport video, the accused was asked his age and he gave ages that were older than him and closer to his brother’s age. This is consistent with him continuing to pretend he was his older brother.

The accused also admitted that he was aware that night that he had to be home by 10:00 p.m. because of his curfew. This provides a motive for him to have lied to the police and this court about using his brother’s name. [ 50 ] Fifthly, the defence argues that the injury to Mr. Young’s left eye which was sustained before he got to the station, corroborates his allegation. This injury is verified by PCs Retsinas, Clarke, Moorcroft and Piccolo. In addition, a mark under that eye is

visible on the transport video. This injury is consistent with a punch, however, in my view, it is also consistent with the struggle on the ground at the scene that was described by both the police and Mr. Young. In addition, the accused had pulled away from the initial grab by PC Miller. It would therefore not be surprising that the police would have gotten more physical and in turn, in his intoxicated angry state, Mr. Young might also have gotten more physical resulting in this injury. (

b) The Officers’ Evidence [ 51 ] The evidence of all three arresting officers, PCs Miller, James and Retsinas, about how the arrest was effected is internally inconsistent and inconsistent with each other. I also find that PCs Miller and James collaborated on their notes and March statements. Further, I find that PC Miller lied about this arrest to his superior officer and exaggerated Mr. Young’s aggression. Finally, I find that by their silence, PC James and Retsinas condoned this lie, and are thereby parties to that lie. I therefore find that these four officers are not credible or reliable.

The following are the important features of the evidence that support these conclusions. [ 52 ] The evidence of all three arresting officers is vague and inconsistent about how Curtis Young was physically arrested after he pulled away from PC Miller. First, in chief, PC Miller testified that when the accused was initially told he was under arrest for public intoxication, he took one of the accused’s arms and one of his escorts had the other. Shortly after, still in chief, he stated he only “ assumed ” that one of his escorts had a hold of the accused’s other arm.

Yet, in re-examination, he said it was PC James on the other side of the accused. PC James’ evidence was that he was standing nearby and PC Retsinas had the accused’s other arm; whereas, PC Retsinas initially testified that PC James had the other arm and she was standing nearby. Later in cross, she stated she may have been helping PC James, but did not recall. Clearly, all three officers do not remember who did what at this early stage. This vagueness and confusion is strange because Curtis Young’s complaint of abuse was repeatedly brought to their attention before they wrote their notes.

In addition, the officers were also told that night that there might be a Special Investigations Unit (SIU) investigation as a result of Mr. Young’s injuries. Furthermore, they were aware, two to three months later, that a citizen’s complaint had been lodged. One would therefore expect that they would have really focused on what they did and what happened at that this arrest. [ 53 ] Secondly, PCs Miller and James testified that after the initial arrest, the accused broke free from his hold by twisting and shrugging his arm away and then made fists.

PC Retsinas described that once the accused woke up and realized they were the police, he immediately became hostile and clenched his fists before his was arrested. This timing is inconsistent with PCs Miller’s and James’ evidence. [ 54 ] Thirdly, there is another more significant conflict between the female officer and the two males. PC Retsinas testified that the two male officers grabbed Mr. Young and tried to put his hands behind his back. The accused resisted, and both male officers took the accused to the ground. She was in the way and backed up, which caused her to trip and fall to the ground.

By the time she got up, the accused was on the ground. On her evidence, her fall was an accident. I find PC Retsinas was in the best position to know what happened to her, and I accept her evidence. [ 55 ] PC Miller initially testified that PC Retsinas stumbled, but he was not sure if she fell to the ground. PC Miller added that this stumble was the point when he “zoned in straight” on the accused and decided to take him to the ground before things got out of hand. The stumble was a significant turning point in this arrest and how it was effected.

However, PC Miller agreed that he made no note of PC Retsinas stumbling at the time. In cross, PC Miller said, “So, it was just, you know, one can assume it was – I didn’t push her and PC James didn’t push her. So………” While PC Miller never finished this sentence, I find this answer indicates he blamed the accused for his sister officer’s stumble. [ 56 ] PC James did not mention anything about PC Retsinas’ fall until cross-examination. PC James agreed that he too did not record this fall in his notes.

PC James agreed he wrote in his March statement, “During this struggle, PC Retsinas was knocked to the ground by the male. PC Miller and I then took the male to the ground by tripping him and guiding him to the ground in order to effect the arrest.” This quotation is significant for three reasons. (

a) PC James makes it clear in this quote that he believed the accused was responsible for his sister officer’s fall. This is consistent with PC Miller blaming the accused for PC Retsinas’ fall and taking immediate action. I find that the perspective of the male officers was different than PC Retsinas, and that they over-reacted and misinterpreted the situation. I also find that is why PC Miller “zoned in” on Curtis Young and took him to the ground. This blame provides a motive for the punch Mr. Young alleges he received from PC Miller. (

b) Despite this quote which indicates PC James was involved in the grounding, his evidence was inconsistent and vague about this. His evidence about his involvement changed five times. In addition, when PC James was cross-examined about how PC Miller grounded Mr. Young, he could not say despite the fact that in chief the previous day, he testified that he saw, “PC Miller put his leg in front of the male’s feet and pushed him over his leg to throw him off balance and he guided him to the ground.” I find PC James’ evidence is not reliable about how this arrest was effected.

It was also PC Miller’s testimony that he and PC James grounded the accused, although when it came to specifics, he too did not know what PC James did. (

c) This quotation from PC James’ complaint response is also significant because both PCs Miller and James testified that they did not record PC Retsinas’ stumble when they made their notes at the time. However, when these officers were placed in the same room to prepare their complaint responses, they both noted in those responses that something had happened to PC Retsinas.

Given other similarities in their complaint responses described below, I find they collaborated on this point in March. [ 57 ] Fourthly, it is also noteworthy in considering the credibility and reliability of the arresting officers, that PC Retsinas testified that she did not see how the accused was taken to the ground because it happened while she was on the ground. When asked if there was punching, she gave a straightforward, “No.” Of course, if she did not see how he was grounded, she would not know if he was punched.

I find this indicates bias. [ 58 ] Fifthly, PC Miller testified in chief that in order to ground Mr. Young, he held the accused’s left arm with two hands, tripped him and “ guided him ” to the ground. Yet, in cross, he testified he did not guide him “slowly”, but rather he “ threw him ” to the

ground. I find he tried avoid describing the force he used in chief, which suggests he may have been concerned it was excessive. [ 59 ] All of these problems, inconsistencies, vagueness and contradictions in the evidence of all three arresting officers about how this arrest was effected raise serious concerns about their reliability and credibility, especially given the accused’s allegation. However, there is an even more serious problem. At the booking parade, PC Miller gave the Staff Sergeant a version of this arrest that was totally inconsistent with the testimony of all three officers before this court.

He told her, that, “During the arrest, he (Young) was taken to the ground. He pushed both officers ” (PC Miller pointed at PCs James and Retsinas who were present) “ clear away …myself to try to gain control of Mr. Young’s arms.” While it is possible, on his evidence at trial, that PC Miller mistakenly but honestly thought that PC Retsinas had fallen because of something the accused had done, he certainly never testified under oath that he ever saw the accused push her, or push PC James. Neither did either of those officers. [ 60 ] I specifically find that PC Miller intentionally lied to his superior about Mr.

Young’s aggression that night. In addition, based upon the video and their relative positions at the parade before the Staff Sergeant, I find PC Retsinas and James both heard this lie and did nothing. PC Miller even pointed at them and described this pushing not once, but twice. In this regard, it should be noted that PCs Miller and James were both relatively new officers at the time, with just over two years’ experience. They had been at Police College together and had worked closely as members of the Toronto Police Toronto Anti-Violence Intervention Strategy ( TAVIS) for four months.

PC Retsinas had 23 years’ experience and was also a TAVIS officer at that time. It is easy to conclude that their allegiance would be to one another and not to Curtis Young. I also find that the silence of PC Miller’s partners at the time of this lie make them parties to that lie and its consequences. I find this lie served to increase Curtis Young’s vulnerability in that police station and to increase the power PC Miller, and the police more generally, had over him just before the search. [ 61 ] I further find that PC Miller deliberately told his supervisor that Mr.

Young was more aggressive than he actually was because PC Miller was well aware at the time of the parade, that Mr. Young was accusing him of punching him in the eye at the arrest. Without the booking video system, this lie would never have come to light. Complaint Responses [ 62 ] Defence counsel cross-examined PCs Miller and James on comparisons between their complaint responses for the purpose of trying to establish collaboration and/or collusion.

During deliberations, it was of concern that PC James was asked questions and gave answers about parts of PC Miller’s complaint response that had never been adopted by PC Miller. Similarly, there were occasions when PC James commented on comparisons between his own notes and parts of PC Miller’s notes, which were also not identified by PC Miller. In addition, PC Moorcroft was asked to compare his Use of Force Report with one purported to be from PC Piccolo without it being identified by PC Piccolo.

Crown counsel did not object on the numerous occasions when these comparisons were done and this issue was never argued. While the Crown’s failure to object can indicate consent, this is not clear in this case, although it is arguably clearer for the Use of Force Report of PC Piccolo that was filed as an exhibit during PC Moorcroft’s evidence without objection.

As a result, this court cannot rely upon the answers to comparisons of notes or statements that were not properly identified by their author. [ 63 ] Besides PC Miller and James adding PC Retsinas fall to their complaint responses, there are two other issues with their complaint responses. PC Miller described that although he consulted with PCs James and Retsinas about timing and angles when preparing his complaint response, it still contains his own independent recollection. PC James testified that before officers respond to a complaint, they are given a chance to read it.

He also testified that each response is based upon each officer’s own notes and recollections, but they do consult on times and details “like that” and, in this case, collaborated on the

preamble. Yet, PC James later testified that the officers have access to the complaint responses of their fellow officers and get to read one another’s complaint responses “at times”. The differences in the contents of PC Miller’s complaint responses and his notes, set out below, undermine PCs Miller and James assertions that their complaint responses record their own independent recollections. [ 64 ] First, PC Miller testified that his notes that night indicate that the accused’s hoodie was “ black ”. Yet, strangely, in PC Miller’s March statement, he changed the colour to “ blue ”.

PC James wrote in his notes that the male was wearing a “ blue hoodie”, which on all the evidence is wrong. It was black. This change in PC Miller’s March statement suggests that it was influenced by PC James’ error. However, it is also possible that this change occurred because of the radio call record, which apparently also described the hoodie as blue. This was not put to PC Miller, but at an unrelated point in his evidence, PC Miller described having the radio call record when he prepared his March statement.

If PC Miller’s colour change was the result of the radio call record, it at least demonstrates PC Miller was not careful in preparing his March statement. If it was as a result of PC James, it undermines the quality of their evidence. Finally, under cross-examination, PC James conceded that it was possible that he and PC Miller discussed the description of the suspect when they prepared their complaint responses. [ 65 ] Secondly, PC Miller wrote in his notes that the accused identified himself as Richard with a variety of birthdates.

Whereas, in his March statement, he stated that the accused identified himself as Rich with a date of birth of May 5 th , 1979. This date of birth is not one of the dates listed in his original notes. In PC James’ response to the complaint, he also states in identical wording that the accused identified himself as Rich Young with a date of birth of May 5 th , 1979. When cross-examined on this, PC Miller conceded that he may have gotten the date from PC James in March.

This second change in PC Miller’s complaint response because of input from PC James, or his records, increases the likelihood that PC Miller was also influenced by PC James, or his records, about the colour of the hoodie. When PC James was asked to compare what purported to be another part of the complaint response of PC Miller to his own complaint response, which was not adopted by PC Miller, this witness conceded that it was fair to say that they collaborated on a lot more than just times and the

preamble. PC James then went much further when he agreed with the suggestion that he and PC Miller sat down together in March and “changed bits” and “created a narrative together”. In my view, this latter admission is evidence of the recollection of PC James, despite the fact that the relevant part of PC Miller’s March statement was not properly identified. I find this part of PC James’ testimony undermines the independence of their March statements, affects the quality of their evidence more generally, and suggests collusion. [ 66 ] The defence has argued that the colour and date of birth changes, the addition of PC Restinas’ fall in PCs Miller’s and

James’ complaint responses, and PC James’ agreement with defence counsel’s suggestion above, establish collusion between these two officers. I, with respect, disagree. In my view, the changes were not material enough in the context of the allegations to conclude that it was collusion as opposed to collaboration. In coming to this conclusion, it is important that there was no evidence of similar problems with more significant aspects of their evidence.

I make this finding despite PC Miller’s lie and other the police misconduct yet to be reviewed. [ 67 ] However, the evidence of PCs James and Miller does raise serious concern about the process for preparing police responses to civilian complaints about police conduct. In this case specifically, this process has undermined the independent recollections of the officers, the quality of the officers’ evidence, and resulted in concern about collusion. This concern is heightened by PC James’ evidence that SIU investigations are handled differently.

In SIU cases, officers are separated for the purpose of making their notes and are not allowed to look at one another’s statements; whereas, with civilian complaint responses, according to PC James, officers get to read the complaint, read the responses of their colleagues “at times”, and prepare their responses in the same room, at the same time. On the basis of PC James’ evidence, police administration bears the responsibility for these problems with the complaint response system.

Arrest Conclusions [ 68 ] Based upon the lies of the accused and the effective joint lie of the arresting officers, and all the issues with all of their evidence, I find it is impossible to conclude, even on a balance of probabilities, what happened to Mr. Young at this arrest.

While PC Miller’s lie about Curtis Young’s aggression to the Staff Sergeant, and his two interventions when the accused was telling the Staff Sergeant about his injury raise strong suspicion and tend to support the accused’s allegation, this behaviour could also reasonably have been an attempt to cover up the force he used because he was honestly mistaken about what Curtis Young did to PC Retsinas at the scene. [ 69 ] For all these reasons, and based upon all the evidence, I find that: 1. the Crown has established beyond a reasonable doubt that the arrest was lawful; 2. the defence has not established on a balance of probabilities that PC Miller punched or used excessive force at the arrest; 3. the Crown has established beyond a reasonable doubt that Curtis Young impersonated his older brother Richard Young to gain advantage; 4. the Crown has established beyond a reasonable doubt that the accused obstructed PC Miller who was engaged in the lawful execution of his duty; and 5. the Crown has established beyond a reasonable doubt that Curtis Young was in possession of 19.88 grams of marijuana.

B. Transport- Assessment of Evidence The Thud [ 70 ] The accused testified that his head was hit on the cruiser by the police just before he was placed inside. The defence argues that at 23:11, the in-car audio captures the sound of this assault, the “thud”, and corroborates the accused. PCs Miller and Clarke deny this happened. PC Gonzales did not testify. PCs James and Retsinas, who were nearby, testified that they did not see this happen. The Crown argues that the “thud” is an ambiguous sound, and is consistent with the accused banging himself against the car.

The in-car camera does not capture the relevant area outside of the vehicle when this thud occurs. In my view, the sound is ambiguous and the evidence does not support a finding on a balance of probabilities that the police banged the accused’s head on the cruiser. There are a number of pieces of evidence that are relevant in coming to this conclusion. [ 71 ] Firstly, Mrs. Young indicated that her son told her, shortly after these events, that his head had been slammed on the police car. This was then recorded in her police complaint.

While the Crown argues that this allegation has been fabricated, the consistency between the accused’s evidence and this out of court statement to his mother is relevant. There is also evidence that the accused did not see or hear the transport video before making this complaint to her. I find that his complaint to her was therefore not constructed from that record. [ 72 ] Secondly, the defence also argues that the sarcasm in PC Miller’s remark to the accused in the sallyport corroborates this allegation. The audio indicates that as Mr.

Young struggled to get out of the back of the cruiser, while cuffed to the rear and drunk, he thanks PC Miller for his help. This remark is clear sarcasm on the part of the accused. PC Miller responded, “I could help you. I don’t want to bang your head.” In my view, PC Miller could have both helped Mr. Young and not banged his head. Whether this is sarcasm consistent with the allegation of the accused is not clear. However, PC Miller’s response does indicate his attitude towards Mr. Young that night. [ 73 ] Thirdly, in my view, the audio recording does not support Mr.

Young’s “thud” allegation for the following reasons. The accused was confronted in cross with the fact that he never complained about his head being struck on the vehicle that night. As noted in the transport

summary, there are a number of overlapping voices immediately following the thud that cannot be discerned. Nevertheless, there is no comment thereafter at any point, on any recording, from the accused referring to such an assaultive act. Mr. Young explained in cross that he did not complain at the time because he was very dizzy from being hit in his eye, and he was in the middle of saying something else. In my view, these explanations do not make sense.

The recordings that night show that he often and repeatedly made other prior and later complaints about how he was being treated, both immediate and subsequent to the events he was complaining about. [ 74 ] Fourthly, the timing and context of this thud is also important to consider in assessing the defence position at trial that Mr. Young’s head was hit as he was being placed in the vehicle. Prior to the thud, there are the three sounds of cuffs on the recording

and after the thud, there are two more. The cuff sounds led PC Miller to recall that he had to change the cuffs because they did not belong to PC Miller, or his partner. He believed they belonged to a TTC officer. PC Miller testified that the accused was put face down and prone against the car in order to make the cuff exchange. The video confirms PC Miller told him to “go against the car.” The accused also testified to standing beside the cruiser and the cuff exchange. It was only at 23:53:05, after the fifth cuff sound and 45 seconds after the thud, that the accused was told to move his feet and watch his head.

These actions and their relative timing strongly suggest that it was not until after the thud, that the police tried to place the accused into the vehicle. [ 75 ] Fifthly, the first discernible words from the police after the thud were, “Whoa Rich, are you alright man.” This comment if sarcastic supports the defence, and if not, supports the Crown. The context and tone are not clear enough to decide. [

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