R. v. Kristoffersen, 2014 ONCJ 137

DATE: March 19, 2014 Citation: R. v. Kristoffersen , 2014 ONCJ 137 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ROBERT KRISTOFFERSEN Before Justice M.S. Block Heard on May 30, August 6 & 7, December 17, 18, 2013 Reasons for Judgment released March 19, 2014 M.A. Alexander ...................................................................................................... for the Crown M. Cremer ................................................................................. for the accused R. Kristoffersen

Her Majesty the Queen v Robert Kristofferson OVERVIEW [ 1 ] On December 31, 2011 the defendant got drunk at a New Years party in Barrie. Sometime after midnight on January 1, 2012 he left that party and drove to another party located in a private home on Quance Street. As he neared his destination he drove northbound on Veteran’s drive in a posted 60/kph zone. He passed an unmarked grey Charger driven by Constable J. Falkeisen, who was participating in the RIDE program. P.C. Falkeisen believed the defendant was speeding and activated his emergency lights.

The defendant continued northbound on Veteran’s drive and attempted a left-hand turn on to Mapleton Avenue. Unfortunately, he lost control, left the roadway, and crashed though a cedar fence before stopping his vehicle by crashing into a parked car in the driveway of 2 Mapleton Avenue. [ 2 ] Mr Kristofferson then ran away. He hopped a large fence and ended up on Quance Street, a short distance south-west of the collision. There he met P.C. Bruce Bernard and P.C.

Michael Ross, who were in the area in a white, unmarked Suburban van responding to a radio-call concerning the unfolding events. [ 3 ] The two constables arrested the defendant. In the course of that arrest Mr Kristofferson received a significant number of welts to both sides of his face and his head. P.C. Bernard received an injury to the left side of his face. Two readings truncated to 130 /80 were subsequently obtained from him at the Barrie Police Station. [ 4 ] Mr Kristofferson is charged with impaired driving, exceed 80, dangerous driving and assault police.

ISSUES [ 5 ] Identity, date, the propriety of the breath samples and readings and impairment were not contended by the defence. [ 6 ] The defendant contends that his driving was not dangerous to the public and that he didn’t intentionally apply force to the arresting police officers after they approached him. He also contends that the police beat him about the face, head and torso after he was detained and handcuffed. [ 7 ] Mr Kristofferson argues that his right to liberty and security of the person pursuant to

section 7 of the Charter was infringed by the police conduct. He argues that the only appropriate remedy for the police conduct is a stay of proceedings pursuant to section 24(1) of the Charter . THE LAW [ 8 ] The traditional burden of proof is borne by the crown in relation to the proof of criminal acts. The defence concedes the charges of exceed .08 and impaired driving, but the onus remains upon the crown in respect of the remaining counts of dangerous driving and assault police. This case deals with two episodes of short duration.

I must assess the credibility, memory and the perceptive accuracy of each of the witnesses. I am not required to weigh or discuss every element of a witness’s evidence, nor am I to weigh each element against the beyond reasonable doubt standard. At the end of my analysis I am required to acquit the accused if his evidence leaves me in a state of doubt even if I accept the evidence of Crown witnesses and prefer it to that of the defendant.

[9] In respect of the application for relief under s. 24 (1) of the Charter, The burden is on the applicant on a balance of probabilities toshow that his rights under s. 7 of the Charter were abridged. When addressing the issue of remedy however, the stay is the treatment oflast resort.

In the recent case of Her Majesty the Queen v Babos, 2014 SCC 16 , [2014] S.C.J. no. 16, The Supreme Court ofCanada reiterated the high onus that the applicant must meet to demonstrate that the administration of justice can only preserve itsintegrity through a stay of proceedings. [10] The Court reiterated the three part test for a stay of proceedings: 1. There must be prejudice to the accused right to a fair trial or to the integrity of the justice system that ‘will be manifested,perpetuated or aggravated through the conduct of the trial or its outcome’ 2.

There must be no alternative remedy capable of redressing the prejudice; and 3. Where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court is required to balance the interests infavour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interest thatsociety has in having a final decision on the merits. [11] As in the case before this court, Babos dealt with the residual category in which the state conduct created no threat to the accused’right to a fair trial.

In such cases the first test is met when the impugned behaviour is so offensive to society’s sense of fair play anddecency that to allow even a fair trial to continue risks tainting the justice system with the misconduct. Ordinarily, the Supreme Court ofCanada has ruled, society will not be offended unless the misconduct is apt to continue. [12] The second test requires that the court address the prejudice to the integrity of the justice system.

The question that must beanswered is whether an alternate remedy short of a stay of proceedings will disassociate the system from the impugned state conductgoing forward. [13] The Supreme Court held that the third test, the balancing of interests component, has added significance for the determination ofcases under the residual category. In such cases the court must whether the integrity of the justice system is best protected by a stay or bythe continuation of the trial. In determining the issue the court must consider: 1. The nature and seriousness of the impugned conduct, 2.

Whether the conduct is isolated or reflects a systemic and ongoing problem, 3. The circumstances of the accused, 4. The charges, 5. The interests of society in having the charges disposed of on the merits. [14] The Supreme Court, at paragraph 41 in Babos, put the balancing process in the following context: Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it.

When the conduct in questionshocks the community’s conscience and/or offends its sense its sense of fair play and decency, it becomes less likely that society’sinterest in a full trial on the merits will prevail in the balancing process. But in residual catagory cases, balance must always beconsidered.

Finally, the Supreme Court reaffirmed that, in the residual category, cases warranting a stay of proceedings will be “exceptional” and“very rare”. [15] In Her Majesty the Queen v Singh, 2013 ONCA 750 the Court of Appeal considered a case of the use by investigating officers ofdeliberate and prolonged beatings to secure confessions. In determining that the case called for the imposition of a stay the court, atparagraph 43 of the judgment, summed up the impugned police conduct: What occurred here was not a momentary overreaction by a police officer caught up in the moment of a difficult interrogation.

Whatoccurred here was the administration of a calculated, prolonged and skillfully choreographed investigative technique developed by theseofficers to secure evidence. This technique involved the deliberate and repeated use of intimidation, threats and violence, coupled with

what can only be described as a systematic breach of the constitutional rights of detained persons – including the denial of their rights to counsel. It would be naive to suppose that this type of egregious conduct, on the part of these officers, would be confined to an isolated incident. THE EVIDENCE OF DRIVING [ 16 ] Constable Falkeisen testified that he was driving north bound on Veteran’s Drive, the lane closest to the centre line,. The defendant passed him in the curb lane at an “exceedingly, ridiculously fast speed” he estimated at between 120 and 160 k/hr.

He said that the defendant then passed two other vehicles before braking heavily to make a left hand turn onto Mapleton Street. He did not testify to the presence of a van at that intersection, nor was he cross-examined on that issue. He noted the road conditions were dry on Veteran’s Drive but allowed that Mapleton could have been snow covered. [ 17 ] P.C. Falkeisen based his estimate of the defendant’s speed on his observation that the he traveled 400 – 500 meters in 20 –30 seconds. By my calculation the range of speed was between 60 – 90 k/hr if the time and distance values stated were correct.

Bearing in mind P. C. Falkeisen took no measurements that day and had no speed measuring devices in use, I take this as reliable evidence of excessive speed only without putting reliance on the specific range given by this highly experienced officer. [ 18 ] Constable Derek Rose was leaving the Tim Horton’s parking lot onto Mapleview Drive in Barrie when he saw the defendant’s vehicle travel westbound on Mapleview. He estimated the defendant’s speed at 140 k/hr. He attempted to catch this vehicle as it turned right onto northbound Veteran’s Drive.

The defendant passed two vehicles as he sped northbound in the curb lane. One of them turned out to be P.C. Falkheisen’s unmarked cruiser. P.C. Rose saw its emergency lights go on as Mr Kristoffersen passed by. [ 19 ] Danielle Piche was driving southbound on Veteran’s Drive. She was the designated driver that festive night and was heading to a McDonald’s on Mapleview with her boyfriend. She saw the defendant driving toward her and then attempt a left hand turn in front of her vehicle onto Mapleton as she waited at a red light. She believed that Mr Kristoffersen had the advantage of an advanced green light.

She was concerned that Mr Kristoffersen was driving too quickly to make the turn safely. [ 20 ] Mr Kristofferson contended that he was not speeding as drove northbound on Veteran’s drive toward Mapleton Street. He told the court he saw the P.C. Falkeisen’s emergency lights and turned left onto Mapleton to park and await the arrival of police. He lost control because of an evasive maneuver he was required to take to avoid another vehicle on Mapleton coupled with the effect of the snow on the road and its effect on his low-profile tires.

He did not park on Veteran’s Drive because the presence of other vehicles made that an awkward place to park and await the police. [ 21 ] I reject his evidence. Veteran’s Drive is a four lane arterial road that was experiencing light traffic at the time of the incident. There was ample room on Veteran’s for the defendant to have stopped immediately as he required. [ 22 ] Mr Kristoffersen was aware of the sensitivity of his low profile tires to snow accumulation and must have been aware of the on road conditions that night, yet he chose to drive fast and turn at a high rate of speed.

Three crown witnesses independently noted the defendant’s high speed. No other witness testified to, nor were they asked, about the presence of another vehicle on Mapleton close to the intersection with Veteran’s. [ 23 ] It is no coincidence that he executed a left turn that would take him to Quance Street, the location of the party that was his ultimate destination and the scene of his ultimate arrest. He was aware he was impaired at the time he saw the police emergency lights. The obvious conclusion is that he turned onto Mapleton to evade the police because he knew he was drunk.

His flight on foot after he crashed his vehicle was part of an effort to escape police that started when P.C. Falkeisen turned on his emergency lights. [ 24 ] The reliable evidence of his high speed and his flight to evade police are ample basis to convict him of the offence of dangerous driving. THE EVIDENCE OF ARREST

[ 25 ] P.C. Bruce Bernard and P.C. Michael Ross spotted Mr Kristoffersen as he crossed Mapleton and headed south on Quance. They stopped their unmarked Suburban close to the defendant. He matched the very general description of the male who was being sought. In addition to the descriptors given in the radio call that brought them to the scene, Mr Kristoffersen was breathing heavily, sweaty and the cuffs of his trousers were wet.

Given his close proximity to the accident scene, the short interval that had passed since the crash and the deserted state of the sidewalks that early morning, I accept that they had reasonable grounds to detain and arrest the defendant. [ 26 ] P.C. Bernard called out to Mr Kristoffersen. On his evidence the two constables stopped their van, identified themselves as police and told the defendant the reasons for their interest in him. At this point, the defendant began to back away. [ 27 ] The two police officers exited the van and insisted Mr Kristoffersen stop. He did not comply. P.C.

Bernard then grabbed the right arm of the defendant and P.C. Ross grabbed his left arm to prevent his flight. Mr Kristoffersen started to twist and pull away from the officers. P.C. Ross struck him on his leg to bring him to the ground in a prone or semi-prone position. According to P.C. Bernard, Mr Kristoffersen actively resisted and struck him in the face with his elbow as he tried to get up. [ 28 ] P.C. Bernard told the court that he grounded the defendant once more by grabbing him around the waist. As he did do the defendant grabbed him in a headlock. P.C.

Bernard said he then “ started delivering empty hand strikes” to the defendant’s body to try to get him to let go. [ 29 ] While PC Bernard was in this awkward position, P.C. Ross struck the defendant in the face and body. He described using a closed fist to hit the defendant in the left cheek area four or five times. Mr Kristoffersen then submitted. Both officers denied kicking the defendant. [ 30 ] The officers were wearing military-type tactical unit black uniforms and load-bearing vests. P.C. Bernard told the court he was wearing the same clothing he wore at the scene.

I noted that he had heavy combat style black boots as part of his ensemble. [ 31 ] Mr Kristoffersen testified he saw the van approach on Mapleton. He saw the van’s emergency lights activate. When the police pulled up along side him and ask him where he was coming from, he told them that he had come from a party and was heading home. The driver, who we now know to be P.C. Bernard, told him that they were searching for a suspect and needed to determine whether he was that person. At this time the passenger, P.C.

Ross walked over to him, grabbed his forearm and elbow and bent his arm for the apparent purpose of applying handcuffs. [ 32 ] Mr Kristoffersen said he was not told the reason for the officer’s action. The officer’s attentions caused him shoulder pain and he screamed out “what are you guys doing” and yelled at P.C. Ross. He moved his body somewhat to relieve the pain. P.C. Bernard told him to stop resisting. The two officers then put him to the ground. He was lying on his back. [ 33 ] While lying on his back he was kicked repeatedly in the head, back, face and torso. He used his hands to try and protect his face.

This violence continued after he was flipped over on to his stomach and after the handcuffs were applied. He was not aware of having deliberately elbowed P.C. Bernard. [ 34 ] The defendant’s credibility is highly suspect. On his own evidence he was drunk. His testimony contradicted his application affidavit in several respects. His evidence in respect of his driving was a transparent falsehood. On entry into the police station he stated that he had hurt himself. [ 35 ] During his video-recorded session with the breath technician, P.C. Rose, the defendant apologized profusely for his conduct.

Of course, there are several potential explanations for his apparent contrition. He was in the custody of the police after sustaining significant injuries on arrest. In my view it would be an error to treat his comments at the Barrie Police Station as a confession of an assault upon police. However, the distinct possibility that he expressed an insincere contrition out of fear doesn’t inspire confidence in his credibility at trial. [ 36 ] There is compelling photographic evidence which captures the results of the Quance Street episode.

Exhibit 4 in this proceeding is a collection of photographs depicting the injury to P.C. Bernard’s face. I note that he described the injury as an abrasion. I am unable

to say that the photographs contradict that description. These photographs are corroborating evidence for P.C.

Bernard’s evidence that he was elbowed in the head by the defendant. [ 37 ] Exhibits 10 and 15, A through F depict the following injuries to Mr Kristoffersen: numerous abrasions and several small cuts to the higher portion right cheek between the eye and ear, an abrasion under the right eye, a significant abrasion on the right lower cheek, an abrasion and bruising to the right side of the forehead at the hairline, an abrasion to the tip of the nose, at least 8 significant abrasions and several small cuts above his left eye in the temple area extending from the right eye into the hairline and the top portion of the right ear and three one inch long parallel cuts to the left side forehead at the hairline, an area of significant abrasion, with horizontal parallel lines, approximately 2” X 3” to the right side of the abdomen just below the navel. [ 38 ] The photographic evidence is markedly inconsistent with the four or five punches described by P.C.

Ross. It is consistent with the evidence of Mr Kristoffersen that he was kicked repeatedly in the head, face and torso during his arrest. Of particular significance are the parallel cuts to the left forehead and temple area. These are consistent with repeated applications of force applied by an object with a defined edge, such as the sole of a boot, rather than with the larger surface area of a fist. [ 39 ] The location of the cuts and bruises is also significant. They are located on the front of the defendant’s body, face and head.

This is consistent with the defendant’s testimony that he was assaulted by the police while on his back, as opposed to the evidence of constables Bernard and Ross that the blows to the defendant were delivered while he was face down on the ground. [ 40 ] Also troubling is the evidence of constables Bernard and Ross that the defendant began to walk backwards away from them after they identified themselves. I find it more likely that the defendant would have been aware of their status from the moment the van appeared alongside him.

The defendant must have been in a state of vigilance because of the police pursuit of the preceding few minutes. The uniforms and the van emergency lights would have made the police identity and their interest obvious before the initial verbal exchange. If the defendant was bent on continuing his futile attempt to escape criminal liability, he would have run from the police on their approach in the van, rather than waiting for verbal confirmation of the reason for their interest.

I suspect he would have simply run, rather than walk backwards away from the police. [ 41 ] I have a reasonable doubt that the defendant intended to apply force to P.C. Bernard. There are three possible explanations for the injury to P.C. Bernard; the defendant deliberately struck P.C. Bernard during the fracas, he accidently struck him while thrashing about in discomfort during the arrest or the constable was struck accidently by his partner during the episode. As there are serious credibility issues in respect of all three witnesses to the arrest, I cannot choose any version with comfort.

I acquit the defendant of the charge of assault police. [ 42 ] I find that there is compelling evidence based on the photographic exhibits and the circumstances of these events that the defendant was subject to excessive use of force during his arrest by P.C. Bernard and P.C. Ross. I do not know whether this use of force was a response to the injury to P.C. Bernard, annoyance that the defendant had caused a pursuit or simply the perception that Mr Kristoffersen would continue to be a management problem unless he was soundly thrashed. It is unnecessary for me to determine the cause of the police overreaction.

The defendant has met the burden of proof in demonstrating that his right to security of the person was breached. The treatment to which he was subject is a very serious violation of his rights under

section 7 of the Charter . APPLICATION OF THE LAW [ 43 ] As discussed above, this case involves an application for a stay based on the residual category, where trial fairness is not at issue . A stay of proceedings is reserved for the rarest of cases. In Singh , supra, the Court of Appeal found a stay appropriate because of the deliberate, prolonged and choreographed nature of the beating.

The Court specifically distinguished the facts before them from a “momentary overreaction by a police officer”. [ 44 ] There is no evidence that what took place in this matter was anything other than an unplanned thirty to forty-five second episode. There is no evidence before me that such actions are a systemic abuse to which this police service is prone. The court is required to balance the public interest that criminal charges be determined on their merits and the imperative that the judicial system distance itself from “payback” by police following a pursuit.

The defendant drove in a very dangerous manner while impaired. There is a very strong public safety interest in deterring this kind of conduct. While the police conduct was brutal, a stay of proceedings in this matter falls

outside the appropriate range of judicial remedy as determined by appellate courts. [ 45 ] A sentence reduction to the statutory minimum of a $1000 fine and a one year driving prohibition required in respect of the impaired driving or exceed .08 convictions is insufficient remedy for the breach I have found. A sentence below the statutory minimum sentence may well serve the competing interests described above. This measure was contemplated, in exceptional circumstances, by the Supreme Court of Canada in Nasogaluak 2010 SCR 6.

My intention is to sanction Mr Kristoffersen for his criminal conduct and, at the same time, temper his ultimate sentence in recognition of the treatment he received from the police on arrest. I take some comfort in this approach from a decision of this court titled Her Majesty the Queen v Muthuthamby , 2010 ONCJ 43 .

In that case Justice ODonnell reasoned that the exceptional circumstances contemplated in Nasogaluak would exist when a stay would be an unjustified windfall for the defendant but a sentence reduction to the level of the statutory minimum would be an inadequate remedy. [ 46 ] Mr Kristoffersen stands convicted of the offences of dangerous driving, impaired driving and exceed .08. We will now address sentence. [ 47 ] I have convicted Mr Kristoffersen of the offences of dangerous driving and exceed .08. The crown has requested that I conditionally stay the conviction for impaired driving.

I do so. [ 48 ] The principles of sentencing do not disappear because I have found a very serious violation of s.7. In the absence of the Charte r breach a 60-90 day jail sentence would have been appropriate in this case. Deterrence, both personal and general are still issues of significance, although the brutal and improper “deterrence” meted out on the roadside must be taken into account. The great strides Mr Kristoffersen has made in his personal rehabilitation must not be crushed.

I recognize Mr Kristoffersen’s impressive employment achievement, stable relationship and impressive recognition that alcohol has been a devastating trigger for his criminal activity. The significant amount of community support for him in court today is likely because of those achievements. I must also address the public interest in imposing restrictions on Mr Kristoffersen’s driving status that will inhibit future conduct of this kind. [ 49 ] I can reconcile these goals in the following ways: I impose concurrent suspended sentences on the charges of exceed 80 mgs and dangerous driving.

I decline to impose a driving prohibition. I impose concurrent three year probationary terms on both charges. You will report immediately and after that as required by your probation officer You will take assessment, treatment and counselling for alcohol abuse if, and as directed by your probation officer. You will provide any directions or letters of completion your probation officer requires. You will not operate a motor vehicle between the hours of 11:00pm and 5:00am. You will not occupy the driver’s seat of a motor vehicle unless you have no determinable alcohol in your blood whatsoever.

On each charges you will pay a victim fine surcharge of $600 for a grand total of $1200, 60 days to pay. In default 12 days of jail. March 19, 2014