R. v. Mukhi, 2021 ONCJ 570

CITATION: R. v. Mukhi , 2021 ONCJ 570 DATE: September 23, 2021 Information No. 001289 ONTARIO COURT OF JUSTICE (at Brampton, Ontario) B E T W E E N: HER MAJESTY THE QUEEN - and - SUNNY MUKHI and ROMAN MARCHYSHYN Reasons for Judgment Ms. K. Beaudoin and Mr. J. Nicol, for the Crown Mr. H. Black, Q.C., for Sunny Mukhi Mr. J. Markson and Ms. K.

Robertson for Roman Marchyshyn NADEL, J.: What Happened [ 1 ] Shortly before 2:30 a.m., on Saturday, September 15, 2018, Conan Hamdani, [Hamdani], while intoxicated, [1] ran the red light for southbound traffic on Financial Drive at its intersection with Steeles Avenue in Brampton. Fortunately, he did not T-bone Peel Regional Police Officer Sunny Mukhi, [Mukhi], who was entering the intersection, eastbound on Steeles, in a fully marked police sedan. Mukhi entered the intersection on a green light as Hamdani ran his red.

Mukhi was able to brake and avoid being struck by Hamdani, who was driving a Land Rover SUV. [ 2 ] Mukhi pursued Hamdani first by car and then on foot. During the vehicle pursuit, Hamdani drove into oncoming traffic lanes to avoid being stopped. Mukhi, despite reaching speeds of 120 kilometres per hour, was unable to catch up to Hamdani. [2] [ 3 ] Ultimately, Hamdani was apprehended and arrested when he tried to evade capture by hiding under a barbeque, [BBQ], in the rear yard of 28 Black Bear Trail.

The Charges [ 4 ] Because of the force used in that arrest, Mukhi and Roman Marchyshyn, [Marchyshyn], also a Peel Regional Police Officer, were charged with one count of assault level one and one count of assault with a weapon, apiece. [ 5 ] The Crown alleges that Marchyshyn unnecessarily discharged his Taser at Hamdani as Hamdani hid under the BBQ and that by doing so he committed an assault with a weapon.

The Crown also alleges that Mukhi and Marchyshyn kicked Hamdani while apprehending him so that each committed an assault against him. [ 6 ] The Crown submits that the defendants’ uses of force were unnecessary, unreasonable, and disproportionate and hence not justified by s. 25 of the Code . [3] [ 7 ] While Mukhi was also charged with one count of assault with a weapon, based upon his earlier but unsuccessful tasing of Hamdani, the Crown did not pursue that allegation in submissions.

As the Crown does not seek any finding against Officer Mukhi on that allegation that charge is dismissed and a verdict of “not guilty” is entered on it. A Thumbnail of the Evidence [ 8 ] Mukhi pursued Hamdani and radioed in the fact of his pursuit and the plate number of the vehicle that he was trying to stop. [ 9 ] Eventually, Hamdani turned into a residential neighbourhood where he ditched the Land Rover by slowing it down and jumping out of it while it was still moving.

He then ran through a walkway, beside 24 Grouse Lane. [4] [ 10 ] That walkway led to Black Bear Trail where Hamdani tried to hide behind a bush at 28 Black Bear Trail. [ 11 ] 28 Black Bear Trail is a home owned by Mr. Al Anania. Mr. Anania had installed a large number of cameras that simultaneously

recorded in the infrared spectrum. After a voir dire , the recordings were filed as Exhibit 16. Those recordings captured much of what occurred.

Briefly stated, the recordings show the following. • Hamdani hiding behind a bush with Mukhi running past him. • Hamdani climbing over a six-foot high wooden gate and falling face-first into the backyard. [5] • Mukhi, while on the street side of the wooden gate, locating Hamdani on the other side. • Mukhi using his Taser to try and immobilize Hamdani without success. • Mukhi waiting for back-up before scaling the gate and venturing further into the backyard. • Hamdani running through the backyard to escape capture but finding himself stymied by a metal gate on the other side of the home that he could not open and that he did not attempt to scale. • Beams of light coming from the direction of the wooden gate indicating officers were entering the backyard via that portal. • Hamdani trying to break into the home; first, by trying but failing to pull open a sliding patio door and then by using elbow smashes against the glass of that door without success. • Hamdani then squeezing himself under the left wing of a BBQ in an attempt to hide. • Officers rushing by the BBQ but returning and spotting Hamdani. • Finally, Hamdani being removed from under the BBQ and being handcuffed. [ 12 ] It is the detail of the last bulleted item in this series that forms the basis for these prosecutions.

Other Matters of Note [ 13 ] First, Hamdani did not testify, so that the Crown’s allegations of unjustified applications of force are wholly dependent on the soundless infrared video recording of the encounter at the BBQ. [ 14 ] Second, no expert evidence was called on the nature of infrared video recordings generally or on this infrared recording in particular. [ 15 ] In the result, I have no evidence about how the ostensible amount of light displayed on the recordings compares to what an unaided human eye could have apprehended in that backyard at that time.

Additionally, I have no evidence about the frame-rate, image resolution or other details of the exhibit. So, I am left to view and interpret what it purports to represents without any expert assistance. [ 16 ] The Crown also called no expert evidence on the operation of Tasers or on the appropriate use of force by police officers, albeit the Peel Regional Police use of force “directive” was filed as Exhibit 15. While the Crown filed the “download” history of each defendant’s Taser through an SIU witness, that witness’ evidence about Tasers was expressly non-expert and limited.

Chronologies and Timestamps [ 17 ] A number of the Exhibits contain timestamps, including: the 28 Black Bear Trail videos, filed as Exhibit 16; • the Taser log for Mukhi’s Taser, filed as Exhibit 7; • the Taser log for Marchyshyn’s Taser, filed as Exhibit 8; • the police “event chronology” of the occurrence, filed as Exhibit 10; and, • the radio transmissions generated during the occurrence, filed as Exhibit 13. [ 18 ] None of these timestamps are reliably synchronized, although some roughly comparable times can be gleaned.

The major piece of evidence, the 28 Black Bear Trail videos, contains timestamps that were off by two hours and 47 minutes when those videos were downloaded by SIU Officer Frank Kavcic, [Kavcic], from the Anania residence on September 17, 2018. [ 19 ] Kavcic testified that he downloaded the videos at 10:41 a.m. but when he did so the videos displayed a timestamp of 07:54, meaning that the video’s timestamp lagged behind the time on his watch by two hours and 47 minutes, on that date. [6] Commencing a

Summary of Exhibit 16 [ 20 ] What follows is a narration of some of what was recorded on some of the cameras in Exhibit 16. The Exhibit contains three files. Timestamp Camera The Action

23:39:29 [7] No. 2 Hamdani comes into camera view and hides behind a bush. 23:39:37 No. 2 Mukhi runs past the bush that Hamdani is hiding behind. 23:39:53 No. 6 Hamdani is seen at the street side of the wooden gate leading into the backyard of 28 Black Bear Trail. 23:39:59 No. 6 Hamdani climbs over the wooden gate and falls face-first, from a height of about six feet , into the backyard of 28 Black Bear Trail. [8] 23:39:59 No. 2 Mukhi returns to the bush where Hamdani was hiding. [9] 23:40:05 No. 6 Mukhi looks over the wooden gate and sees Hamdani below him on the other side of the gate. 23:40:05 No. 6 Mukhi appears to commence trying to tase Hamdani. 23:41:25 No. 6 By this timestamp Mukhi’s attempted tasing of Hamdani has failed and Hamdani has gone deeper into the backyard. [ 21 ] Mukhi appears to have been deploying his Taser over the wooden gate at Hamdani for about 90 seconds from between 23:40:05 to perhaps 23:41:25 by which timestamp Hamdani had obviously left the area of the gate.

Because there is no audio component to Exhibit 16, it is not clear from this exhibit when and for how long Mukhi fired his Taser at Hamdani. [ 22 ] Converting 23:40:05 to the approximate actual time of the recording by adding two hours and 47 minutes gives a time of 2:27:05 a.m. from when Mukhi appears to commence deploying his Taser at Hamdani.

He appears to continue using his Taser for about 90 seconds, ending at 2:29:00 a.m., more or less. [ 23 ] According to Exhibit 7, the data downloaded from Mukhi’s Taser, he armed his Taser at 02:29:53 and triggered it multiple times in essentially five-second bursts until it was exhausted at 02:32:10, when he triggered the last of his five-second bursts.

That downloaded information shows him deploying his Taser against Hamdani for a period of approximately two minutes and 17 seconds. [ 24 ] So, while there is a very rough consistency between the timestamps on Exhibit 16 and the Taser deployment records of Exhibit 7, there are contradictions between the two exhibits that remain unaccounted for and that I cannot rationalize given the lack of expert evidence called by the Crown, as noted above at paragraphs [13] to [16]. Continuing the

Summary of Exhibit 16 Timestamp Camera The Action 23:44:06 No. 6 Two officers have joined Mukhi at the wooden gate. 23:44:06 No. 4 Hamdani walks through the BBQ area and out of camera view. [10] 23:44:13 No. 7 Hamdani enters the camera’s view at the locked metal gate on the far side of the home at 28 Black Bear Trail. Using his cell phone’s light, he checks the gate seeking to open it. 23:44:24 No. 7 While squatting down to check the righthand side of the gate he stumbles backward but catches and steadies himself by bracing his left arm against the wall to his left in the alcove at the metal gate. He stands up and continues to try and determine how to open that gate.

23:44:31 No. 7 Hamdani gives up on trying to open that gate and does not attempt to climb over it. Rather, he returns the way he came arriving back at the BBQ area. 23:44:46 No. 4 Hamdani returns into the frame of Camera No. 4 at the BBQ area. 23:44:49 No. 4 Hamdani tries to pull open the sliding door that leads into the home’s kitchen, but it appears to be locked and he is unable to open it.

He then uses his right elbow twice to try to smash through the glass of the sliding door but fails to break the glass. 23:44:52 No. 4 Unable to exit the yard or escape into the home, Hamdani sees and decides to try and hide under the left wing of the BBQ, as lights from the pursuing officers’ flashlights become visible. [11] 23:44:53 to 23:45:21 No. 4 Hamdani tries to scrunch himself up under the BBQ, taking pains to bend his legs and pull them and his feet up and in and out of view.

He succeeds in doing so just as Mukhi comes into view. 23:45:21 to 23:45:23 No. 4 Mukhi appears and walks by the right side of the BBQ with his flashlight illuminating his path and he continues on and out of view as someone else coming behind him is heralded by that person’s light. 23:45:26 No. 4 Marchyshyn enters into view on the right side of the BBQ with a flashlight. 23:45:28 No. 4 Mukhi comes back into view, so that his back is more or less to the camera, with a flashlight in his right hand and he begins to look at the left side of the BBQ. As he does so, Marchyshyn is facing Mukhi.

Marchyshyn has his Taser in his right hand and his flashlight in his left hand. 23:45:28 to 23:45:29 No. 4 Mukhi extends his right hand holding his flashlight and illuminates the left side of the BBQ. Marchyshyn begins to turn as he extends his right arm and points his Taser in Hamdani’s direction. 23:45:30 et seq No. 4 Both defendants move closer to the BBQ. Mukhi is right beside the glass of the sliding door. His back is to the camera. Marchyshyn is to Mukhi’s left on a bit of an angle, so slightly closer to the BBQ.

Marchyshyn has a flashlight in his left hand that is pointed down to the ground but his right hand, holding his Taser is extended and he is bending his knees and crouching down to try and get a view of what’s beneath the deep overhang of the BBQ’s left shelf. It is clear that at this point both defendants see Hamdani. 23:45:30 et seq No. 4 Hamdani is still scrunched up under the BBQ shelf with his feet still drawn in and his legs still tucked in.

Hamdani has moved to his right so that some part of the right side of his body, including part of his head, is briefly illuminated by the light from Mukhi’s flashlight and perhaps from the light of Marchyshyn’s Taser. [12] Hamdani’s forehead is above the tabletop for a brief period.

23:45:33 No. 4 By this point both defendants have moved closer to the BBQ. Marchyshyn is squatting down with his right hand pointing his Taser toward Hamdani. Hamdani briefly raises his right hand slightly above his head. The hand is empty, and its palm faces the defendants. Hamdani then withdraws his hand and it goes back under the shelf. The palm of that hand appears quite bright in the video and it casts a momentary shadow on the brick wall behind him. [13] , [14] 23:45:36 No. 4 Marchyshyn appears to be shooting his Taser at Hamdani.

Hamdani’s legs come out and extend out straight some feet beyond the BBQ at this point. Exact distances and dimensions are impossible to assess and a guess would simply be that. Hamdani’s hairline is above the top of the shelf, his head is mostly exposed with the end of the shelf to the left of his face and much of Hamdani’s torso is visible momentarily. 23:45:38 No. 4 At this point, Hamdani’s body and his arms and hands are still under the shelf, but his legs are sticking straight out and only inches apart with the heels of his shoes almost touching each other.

Marchyshyn has now stood up and out of his earlier crouch and Mukhi is also standing upright, too. The Taser Evidence [ 25 ] Beginning more or less at timestamp 23:45:36, Marchyshyn appears to be deploying his Taser against Hamdani. From viewing the exhibit, it is not clear how long he did so. According to Exhibit 8, the data downloaded from Marchyshyn’s Taser, he armed his Taser at 02:34:35 and first pulled its trigger for two seconds at 02:35:05.

He made it safe at 02:35:08, armed it again at 02:35:09 and pulled its trigger for a five-second burst at 02:35:09 and again for a second-five second burst at 02:35:17. [ 26 ] 02:35:05 through to 02:35:22 is a period of 17 seconds of Taser deployment in total, according to Exhibit 8.

Exhibit 16 appears to collapse that 17 second period into a period of ten seconds, according to the “seconds” column of the timestamp on Exhibit 16. [ 27 ] While no expert evidence was called, photographs of the defendants’ Tasers were filed as Exhibit 6 and an SIU Officer, Joseph Typer, [Typer], gave non-expert evidence about these devices. [ 28 ] Typer was a forensic investigator with the SIU. He explained that the Tasers used by the defendants were equipped with two “cartridges” and that each cartridge contains two probes or darts.

When the darts are shot at a target, if the darts enter a target’s skin with an appropriate or sufficient spread between the two darts, a target would be “locked up” by the conducted energy emitted into that target’s body through copper wires attached between the darts and the Taser. [ 29 ] Typer could not say what an appropriate or sufficient spread to produce a lock up was. He could not interpret the Taser data in either Exhibit 7 or Exhibit 8 and say to what extent energy pulses were emitted from either device.

He could not say what effect, if any, either Taser deployment had on Hamdani. [15] [ 30 ] He did explain that in addition to projecting two darts from each cartridge, each cartridge also projected small colour-coded bits of paper known as AFITs. AFIT is an acronym standing for “anti-felon identity tag”.

The colour code for the AFITs for one of the Tasers in question was yellow and the colour code for the other was pink. [ 31 ] Typer located, marked and photographed AFITs of each colour in front of and near the BBQ, which is a location far removed from where Mukhi had deployed his Taser against Hamdani. [ 32 ] The Peel Regional Police use of force directive requires that if a dart has entered the skin of a target then a paramedic must be called to remove the dart. After Hamdani’s arrest he was tended to by EMS paramedics for that purpose and their report was filed as Exhibit 12.

It contains the following information about Taser darts: “…EMS called for assessment and probe removal. … 5 taser probes on pt – 2 embedded in pt, 3 only embedded in pt clothing. … Chest Notes: pt has probe embedded in lower central sternum, denies chest pain, equal chest rise and fall, no cough, no pain on palpation Abdomen Notes: embedded probe in R side of abdomen – no bleeding, no nausea/vomiting …” [ 33 ] The evidence does not disclose whether the two embedded darts were fired by the same Taser from one cartridge or whether they

were fired from the same Taser but from different cartridges or whether they were fired by two different Tasers. Likewise, the evidence does not disclose which Taser and which cartridge from that Taser was the source of any of the darts embedded in Hamdani’s clothing. Nor does the evidence disclose the location of the darts in his clothing or the location of the other three darts not found on Hamdani’s person. Completing the

Summary of Exhibit 16 Timestamp Camera The Action 23:45:38 23:45:39 No. 4 Leg-strike 1 by Marchyshyn Marchyshyn is standing up and has his right leg forward. There is less than two feet of distance between the toe end of his right boot and the soles of the shoes on Hamdani’s feet. Marchyshyn steps forward onto his left foot and uses his right foot and appears to stomp down on Hamdani’s right thigh.

The BBQ is jostled as a consequence of this leg-strike, but exactly how is unclear. 23:45:40 No. 4 Leg-strike 1 by Mukhi Immediately after Marchyshyn’s first leg-strike, Mukhi uses the sole of his right boot to push or shove at some part of Hamdani but where that contact is made is not clearly evident from the recording, but it appears to be in the area of Hamdani’s torso. 23:45:41 No. 4 Leg-strike 2 by Marchyshyn Marchyshyn repeats his stomping action in the same fashion as previously administered but where his foot contacts Hamdani , if it does , is not discernable. 23:45:42 No. 4 Leg-strike 2 by Mukhi Again, immediately after Marchyshyn stomps on some portion of Hamdani for the second time, Mukhi delivers another push/shove with the sole of his right foot.

Again, where his foot contacts Hamdani is not clearly discernable but likely on his torso. 23:45:42 to 23:45:45 No. 4 Hamdani’s legs are splayed out and clearly visible extending out from under the BBQ. They are motionless. The rest of Hamdani is propped up under the BBQ with his back against the brick of the home. There is no apparent movement from him at all during these seconds. 23:45:45 No. 4 Leg-strike 3 by Marchyshyn Marchyshyn is standing upright. His legs are spaced apart with his left foot ahead of his right foot and his feet about shoulder width apart.

He bounces on his left foot to gain momentum and then delivers a final and very heavy stomp down with his right foot apparently on the upper portion of Hamdani’s right leg. 23:45:45 No. 4 Marchyshyn bends down to initially grab both of Hamdani’s legs by their ankles but ultimately uses both of his hands to haul Hamdani out from under the BBQ by Hamdani’s right leg. 23:45:48 No. 4 Hamdani is stretched out and lying on his right side, with his head toward the patio doors.

There are now three police officers present, with Marchyshyn facing Hamdani’s front and Mukhi facing Hamdani’s back and Officer Byrne present and nearby. Hamdani appears essentially motionless and merely lying on his right side. His hands are empty.

23:45:49 No. 4 Leg-strike 4 by Marchyshyn Almost immediately after pulling Hamdani out from under the BBQ, Marchyshyn uses the toe of his right boot to kick Hamdani in the stomach. 23:45:50 No. 4 Leg-strike 3 by Mukhi Right after Marchyshyn kicks Hamdani in the stomach, Mukhi uses the interior side of his right boot to give Hamdani a short swat on his back essentially at the point where Hamdani’s back is touching the ground. [16] 23:45:51 No. 4 Leg-strike 5 by Marchyshyn Marchyshyn then uses the toe of his right boot to kick Hamdani for the second and final time in the stomach. [ 34 ] Peel Regional Police Officer Connor Byrne, [Byrne], appears in Camera No. 4’s view at about 23:45:44, having come into the backyard from the iron gate direction.

Peel Regional Police Officer Wong comes into the BBQ area view, from the wooden gate side of the backyard, by 23:45:52. [ 35 ] I will now turn to the submissions of counsel and make further reference to the evidence as required when considering counsels’ submissions. [17] Mr. Nicol’s Submissions on Mukhi [ 36 ] Mr. Nicol characterized this case as one where well-settled law applies to uncomplicated and uncontested facts (sic) that demonstrate an unjustified use of force by both defendants. That conclusion was framed in by four facts. First, an intoxicated Hamdani was fleeing from police.

Second, Mukhi had lawful grounds to arrest Hamdani. Third, the video evidence is clear, accurate, and uncontradictably shows the defendants assaulting Hamdani. [ 37 ] The fourth piece of the Crown’s frame of reference was a rejection of the defence contention that Camera No. 4 does not represent what the officers saw. [ 38 ] Mr. Nicol submitted that, as the videos are silent, there is no evidence of what, if anything, was said by anyone during the BBQ encounter. More crucially, there is no evidence of the state of mind or the subjective views of either defendant, just before or during the BBQ encounter.

All that is available on these topics is weightless defence speculation or conjecture. [ 39 ] Anticipating the defence submission that the video presents an artificial perspective because the backyard was in near or complete darkness Mr. Nicol said that the video contradicted that claim. Despite being intoxicated and desperate to escape so that he had little time to assess his surroundings, Hamdani was able to navigate the cluttered backyard without stumbling, tripping, or bumping into things and he discovered his hidey hole.

So, the content of the video shows there was more than sufficient ambient light available to Hamdani and to the defendants. [ 40 ] Mr. Nicol also observed that if it was as dark as he expected the defence to contend then the defendants would not have engaged Hamdani “blindly” at the BBQ. Significantly, in making this submission Mr.

Nicol said words to the following effect: ‘why would they do that since [Hamdani] might have had a weapon and their engagement with him would have, in those circumstances, been dangerous.’ By way of anticipation, that is exactly what the defence contends – that Hamdani might have had a weapon so that the defendants’ attempt to apprehend him was dangerous, hence their actions. [ 41 ] Mr. Nicol’s submission was that the defendants knew that Hamdani was non-aggressive throughout. He was trying to flee from the police.

At no point did he: utter any threat to anyone; brandish any weapon; display any physical aggression to any officer; or, try to engage and fight with anyone – not when he bailed out of his car, not at the wooden gate and not at the BBQ. [ 42 ] It was the Crown’s submission that Hamdani presented no threat to the defendants and that their behaviour ought to have conformed to that knowledge. [ 43 ] Moreover, the Crown submitted that there is no evidence that either defendant knew anything about Hamdani’s criminal antecedents.

There was nothing in the radio communications that intimated that Hamdani had any propensity for violence and there is no evidence that either defendant read anything to the contrary that was displayed on the computer screens in their vehicles. [ 44 ] Mr. Nicol stressed that just because something may have come across their vehicle’s computer screen does not imply that either defendant saw it or read it or considered it and acted upon it and there is no evidence that either defendant did. [ 45 ] Mr.

Nicol also noted that Mukhi spoke to Byrne before scaling the gate and he did not raise any concerns about threats or violence or weapons to Byrne. Hence, the inference to be drawn is that these were not matters of concern to him in the pursuit of

Hamdani nor matters of concern for a fellow police officer. Likewise, when Mukhi spoke to Sgt. Henry, the superior officer at the scene, after the incident, Mukhi raised no concerns about threats or violence or weapons being at issue in the incident. Mr. Nicol’s Submissions on the BBQ Encounter [ 46 ] All of his “kicking” (sic) was unreasonable. First, Mukhi knew that there were at least three other officers on scene with him, (Byrne, Marchyshyn and Wong), so he knew he was not in a situation where he would be forced to apprehend Hamdani by himself.

Second, Hamdani was clearly wedged behind the BBQ so that his movements were very restricted. That restriction limited his ability to present a physical threat to the two defendants and he was not a threat to any member of the public at that point. Third, and flowing from the second point, Hamdani was cornered. The chase was over; he was going nowhere. [ 47 ] At worst, Hamdani was engaging in passive resistance.

Moreover, both officers had flashlights and ample means to illuminate Hamdani as the video recording shows. [ 48 ] While the Crown acknowledges that the encounter at the BBQ took “mere seconds to unfold” Mr. Nicol nonetheless submitted that there was sufficient time, (11 seconds, between 23:45:29 and 23:45:40) to reconsider before Marchyshyn delivered his first “kick” (sic). [ 49 ] Mr. Nicol treated the encounter at the BBQ as one incident. He made no distinction between the force applied while Hamdani was under the BBQ and the force applied after Marchyshyn dragged Hamdani out from under the BBQ.

In his submission all of the “kicks” inflicted on Hamdani were unreasonable, unnecessary and disproportionate to Hamdani’s presentation. Mr. Nicol’s Submissions on

Section 25 [ 50 ] Briefly stated, the video does not offer any evidentiary basis to conclude that the defendants’ uses of force were reasonable and therefore justified under s. 25 and there is no other evidence available to the court to reach such a conclusion. [ 51 ] The instructive case reference to guide the court is R. v. Power , 2016 SKCA 29 , at paragraph [35] (application for leave to appeal dismissed R. v. Power , [2016] S.C.C.A. No. 193). 35 … a determination of whether force is reasonable in all the circumstances involves a consideration of three factors.

First, a court must focus on an accused's subjective perception of the degree of violence of the assault or threatened assault against him or her. Second, a court must assess whether the accused's belief is reasonable on the basis of the situation as he or she perceives it. Third, the accused's response of force must be no more than necessary in the circumstances.

This needs to be assessed using an objective test only, i.e. , was the force reasonable given the nature and quality of the threat, the force used in response to it, and the characteristics of the parties involved in terms of size, strength, gender, age and other immutable characteristics. [ 52 ] Mr.

Nicol insists that there is no evidence that permits any conclusion on the first element viz. the defendants’ subjective perceptions of the degree of violence of the assault or threatened assault against them. [18] Likewise, there is an evidentiary vacuum on the second element so that the court cannot assess whether the defendants’ beliefs were reasonable on the basis of the situation as they perceived it.

As expressed by Mr Nicol, “The court had no evidence about the subjective perceptions of either defendant about what happened at the BBQ.” [ 53 ] The Crown’s position was that s. 25 is unavailable to the defendants because there is an insufficient evidentiary basis to invoke it and, the video proves the elements of assault to the exclusion of any reasonable doubt so there must be findings of guilt. Ms. Beaudoin’s Submissions on Marchyshyn [ 54 ] The charges against Marchyshyn are based upon his use of force at the BBQ.

Based on the video there is no question but that Marchyshyn tased Hamdani and kicked him five times. [ 55 ] Ms. Beaudoin’s sequencing of the video is as follows: Timestamp Action 23:44:55 Hamdani hides under the BBQ. 23:45:20 Mukhi enters the scene with Marchyshyn in tow. 23:45:28 Mukhi appears to have located Hamdani.

23:45:30 Marchyshyn’s right arm is extended with his Taser in that hand. He deploys hisTaser almost immediately upon seeing Hamdani. Light, (i.e. the copper filament extending between the Taser and its dart) is streaming out of the Taser.[19] 23:45:32 to23:45:39 Hamdani raises his right hand in the air but Marchyshyn continues to tase him for another seven seconds.[20] 23:45:39 to 23:45:45 Marchyshyn “kicks” (sic) Hamdani three times while Hamdani is under the BBQ.[21] 23:45:48 to 23:45:52 Marchyshyn pulls Hamdani out from under the BBQ and kicks him, again, twicein the abdominal area. [56] Ms.

Beaudoin’s point being that in a matter of 12 seconds between 23:45:30, (when Marchyshyn first sees Hamdani), and23:45:52, Marchyshyn had tased Hamdani and kicked him five times. In her submission this is clear evidence of an assault level one andan assault with a weapon having been committed by Marchyshyn. [57] Ms. Beaudoin noted that Exhibit 8 shows that Marchyshyn deployed his Taser three times between 2:35:05 a.m. and 2:35:17a.m., a period of 12 seconds. In my view this cannot be correct since it is clear Marchyshyn also executed leg-strikes and was notdeploying his Taser when those acts occurred.

I noted previously, (at paragraph [26]), that the video recordings from Camera No. 4appear to be running at a faster pace than the timer in Marchyshyn’s Taser. This lack of synchronization, inter alia, makes relianceamong the timestamped exhibits a challenging exercise. [58] Ms. Beaudoin rhetorically asked if the force applied by Marchyshyn was justified under s. 25 and answered that the test is one ofnecessity bounded by reasonableness and proportionality. [59] The trier of fact must have regard to the circumstances as they existed at the time the force was used as explained at paragraph[35] of R. v.

Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206: 35 Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous anddemanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances.As Anderson J.A. explained in R. v. Bottrell (1981), (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.): In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as theyexisted at the time the force was used.

They should have been directed that the appellant could not be expected to measure the force usedwith exactitude. [p. 218] [60] Ms. Beaudoin then turned to the factors in Power identified at paragraph [35] of that case and quoted above at paragraph [51]. [61] Ms. Beaudoin urged, first, that there is no evidence about Marchyshyn’s subjective beliefs or that Marchyshyn knew anything about Hamdani prior to or leading up to the BBQ encounter.[22] Further, there was no evidence that Marchyshyn saw the results of thelicence plate search that Mukhi called in so that the results of that inquiry were irrelevant.

Finally, there was no evidence that Marchyshyn heard any of the communications leading up to the BBQ encounter, other than those that he responded to.[23] [62] Even then, assuming Marchyshyn did hear all of the radio communications, all he would have learned was that the male suspectran a red light; that he was tased, and, that he was “thought” (sic) to have been breaking into a house. [63] Significantly, there was no information communicated that the target was acting violently or threatening Mukhi or any otherofficer prior to Marchyshyn’s arrival.

Equally there was no evidence about what, if anything, he may have learned from any otherofficer on scene before him. [64] Given all of the foregoing, Ms. Beaudoin submitted that the most relevant evidence about Marchyshyn’s subjective perceptionexists at the time he found Hamdani under the BBQ. This is the first time he comes into contact with him that night. What he found wasa man with his back up against a wall with nowhere to go, putting his hand up in a surrender motion mere seconds after he was found bythe defendants. Ms.

Beaudoin urges that this gesture should have been visible to Marchyshyn as he was shining a light from his Taser onHamdani at the time. [65] The video is silent, but it shows that Hamdani did not demonstrate any violence towards the officers. Given all of this,Marchyshyn could not have subjectively perceived any violence or threats of violence from Hamdani at the time that he decided to useforce against him. [66] The second Power factor is whether Marchyshyn’s subjective belief was reasonable. Ms. Beaudoin submitted that, as no defenceevidence was called, this is a difficult question to answer. But in Ms.

Beaudoin’s view, Marchyshyn’s lack of subjective reasonableness

can be gauged from his immediate use of his Taser against Hamdani without any effort to negotiate whatsoever. [67] Referencing paragraph [35] of Nasogaluak, (which directs that demanding and dangerous police work be judged by thecircumstances that obtain and not against a standard of perfection) Ms. Beaudoin submitted the circumstance that obtained that was thatHamdani was bested and literally cornered by two officers. [68] Referencing timestamps in various of the exhibits Ms.

Beaudoin noted that Marchyshyn took very little time to consider thecircumstances on locating Hamdani since: • he put himself on the call at 2:27 a.m.; • he reached speeds above 131 miles per hour to arrive at the call; • he arrived on scene at 2:31 a.m.; and, • he called in at 2:33 a.m. to announce Hamdani was in custody. [69] Turning to the third Power factor, (that a defendant’s response of force must objectively be no more than necessary in thecircumstances), Ms.

Beaudoin submitted that here too, Marchyshyn’s use of force was unreasonable given the nature and quality of the threat posed byHamdani, as he posed no threat whatsoever at the time he was apprehended. [70] Accordingly, all of Marchyshyn’s uses of force were unnecessary. They were excessive and unreasonable. This is evident fromhis immediate deployment of his Taser when he located Hamdani under the BBQ. While there is no evidence about whetherMarchyshyn made any commands to Hamdani prior to tasing him, even if he did make any commands before deploying his Taser, hegave Hamdani no time to comply with them.

Moreover, even if Marchyshyn did give time for compliance there is no evidence of lessermeasures used before deployment of his Taser. [71] Ms. Beaudoin submitted that Marchyshyn’s use of his Taser at the BBQ was unreasonable and contrary to the Peel Regional Police use of force directive as Hamdani did not exhibit threatening or assaultive behaviour at the BBQ[24] or other behaviours permitting resort to a Taser.[25] Moreover, Ms.

Beaudoin noted a Taser is not a substitute for other uses of force and stressed that Marchyshyn did not attempt any lesser uses of force prior to deploying his Taser.[26], [27] [72] The video shows that it was two on one and nowhere to run with no evidence of the defendants standing back and waiting or ofgiving commands and waiting for compliance. Moreover, Hamdani gestured a surrender that the Crown urges I should find thatMarchyshyn saw. After all, he is recorded as walking quickly with the aid of a flashlight without difficulty.

The recording demonstratesthere was sufficient light to manoeuvre so Marchyshyn ought to have seen Hamdani’s hand and interpreted it as a gesture of surrender. Marchyshyn’s use of his Taser thereafter was unreasonable and not justified under s. 25. [73] Worse yet, having immobilized Hamdani with his Taser, as demonstrated by Hamdani’s legs being stretched out, rather than pullhim out Marchyshyn kicks him three times.

It is only after administering those three kicks, (and two from Mukhi), that he pulls the manout from under the BBQ, only to kick him twice more in his abdomen. [74] Significantly, the recording demonstrates that Hamdani was not resisting and rather than attempting to immediately flip Hamdaniover to handcuff him, Marchyshyn’s immediate act was to kick him again, twice. [75] Ms.

Beaudoin’s submission was that since Hamdani was cornered the defendants could have stood back, told him the chase is over and used other lesser reasonable measures, such as pulling him out right away.[28] [76] In sum, Marchyshyn resorted to an excessive level of immediate force. It was unreasonable, unnecessary and unlawful. Mr. Black’s Submissions on behalf of Sunny Mukhi [77] Mr. Black began by submitting that the Crown’s failure to call a living and available putative victim in an assault prosecutionwas very unusual. The consequence for the Crown, in his view, was a massive hole in the Crown’s case.

That may well be. This issuewas decided by R. v. Cook, (SCC), [1997] 1 S.C.R. 1113. As applied to this case the following comments from theSupreme Court quoted at paragraphs [30], [31], [50] and [51] are apposite: “ … While the Crown may not be required to call a given witness, the failure of the Crown to call a witness may leave a gap in theCrown's case which will leave the Crown's burden of proof undischarged and entitle the accused to an acquittal.

It is in this sense that theCrown may be expected to call all witnesses essential to the unfolding of the narrative of events upon which the Crown's case is based.” 31 In my view, the reasoning in this passage is abundantly clear. "[E]ssential to the . . . narrative" does not mean, as many haveattempted to suggest, that all witnesses with relevant testimony have to be called by the prosecution. On the contrary, it refers solely tothe Crown's burden of proof in a criminal proceeding.

Where the "narrative" of a given criminal act is not adequately set forth, elementsof the offence might not be properly proven, and the Crown risks losing its case. Additionally, where certain witnesses are not called, thiscan become a factor for an appellate court to consider in reviewing a decision to determine if a verdict was unreasonable: Whitehorn v.The Queen (1983), 152 C.L.R. 657 (Austl. H.C.); The Queen v. Apostilides (1984), 154 C.L.R. 563 (Austl.

H.C.). 50 Indeed, in the vast majority of cases, the Crown will ignore calling the complainant or victim at its own peril as this testimony wouldbe crucial to prove the offence in question. This is, of course, the very essence of this Court's decision in Yebes. The burden of proofbeyond a reasonable doubt, as it is designed to, operates very much in the accused's favour in this regard.

51 Where the Crown adduces nothing at all from the complainant or victim in a given case, it goes without saying that the Crown will need some other evidence of a compelling nature to establish the accused's guilt beyond a reasonable doubt. …” [ 78 ] Mr. Black submitted that the video shows that Mukhi used a shoving motion with the flat of his boot. But the video does not show whether the two shoves at the BBQ made any contact with Hamdani.

Therefore, the Crown’s allegation of a battery rests on speculation or conjecture in the absence of any testimony from Hamdani that the sole of Mukhi’s boot made any contact against him.

That is because the video is simply too unclear to determine if Mukhi made any contact with Hamdani during this portion of the encounter. [29] [ 79 ] Moreover, because of the frailties and limitations of the video of the BBQ encounter, the Crown has pursued a second-by-second parsing or analysis of the events, which the jurisprudence warns against, because the defendants did not act or react in a slow-motion, frame-by-frame rewind and replay world. [ 80 ] Mr. Black encapsulated his position as follows: the defendants could fear but did not know if Hamdani had a weapon.

They did not get hurt but did not know that they would not get hurt in apprehending and arresting Hamdani. The allegations made against them are all raised after the fact. [ 81 ] In considering all of the circumstances, it must not be forgotten that Mukhi was going back to end his shift when he had to slam on his brakes to avoid being T-boned by a car screaming through the intersection against a red light. Given the size and the speed of the vehicle that almost hit him, this extreme case of dangerous driving was a serious crime.

Caution Violent Wanted 2 [ 82 ] When Mukhi radioed in the licence plate of the vehicle that he was trying to stop, an automatic information retrieval process was initiated, according to Ms. Karyn Carty, the supervisor of the technical disclosure unit of the Peel Regional Police.

Once the dispatcher typed in that licence plate number, by virtue of an automatic programme, a databank maintained by the Peel Regional Police retrieved and sent all of the information associated to that plate to the police responding to that call via the computer terminals in their vehicles. [ 83 ] That material, transmitted as just described, was filed as Exhibit 11. [30] [ 84 ] A very small part of the information transmitted said the following: QUERY POSSIBLE HITS FOR PERSON SNME: PAUL G1; JOHN SEX; MALE DOB; 1981-01-30 REM; 70264 P180348809 QUERY PERSON SEX; MALE MAXIMUM POSSIBLE SCORE 19 NO:1 SCORE: 19 **ALIAS**PAUL, JOHN SEX: MALE D0B: 1981-01-30 AG:;37 ALIAS #:74396674 HAMDANI, CONAN JOHN ⁢⁢CAUTION&gt,> VIOLENT **WANTED** 2 [ 85 ] It is important to note that while the words CAUTION VIOLENT WANTED were in capital letters they were not emboldened or otherwise highlighted and essentially all lettering in the transmission was capitalized.

Further, what I have transcribed from the Exhibit is only a very small part of the transmission, which contained scores of lines of printed information. The transmission was single-spaced, and the font size of the transmission was no larger than the 10 point font of the footnotes in these reasons and possibly even less than 10 point font. [ 86 ] The Crown submits that there is no evidence that either of the defendants read any of Exhibit 11.

As described above, the font of the transmission was small and that small size was compounded by the small size of the computer screens in their vehicles. [31] But, the major reason why the defendants did not read any of Exhibit 11 is that they did not take or have the time to do so. According to the GPS records from their vehicles, Mukhi reached speeds of 120 kilometres per hour in the pursuit of Hamdani and Marchyshyn drove even faster to get to the scene. So, while the Crown accepts that based on Ms.

Carty’s evidence that information was displayed on their screens and so was theoretically available to be read that is a huge distance from demonstrating that they did in fact read it. [ 87 ] Both defendants rely heavily on the characterization of the person associated to this licence plate as being violent, being wanted and requiring caution when being dealt with by the police.

Both defendants submit that, despite not giving evidence of having read any of the transmission, the court ought to accept, infer, or presume that they had done so and in particular that they adverted to and therefore responded to the cautionary description of the licence plate owner as being violent and being wanted by police on two warrants. [ 88 ] Mr. Black submitted that I ought to infer or input knowledge of this cautionary warning of violence because it was provided for officer safety. He submitted that an officer would read this so as to answer the questions: Who am I stopping? Who am I apprehending?

Who am I about to get out of the car for? So, he urges that I should find that Mukhi did read this cautionary warning and had knowledge that the person he was pursuing was dangerous. [ 89 ] Mr. Black urged a rejection of the Crown’s submission that Mukhi would radio in a plate and not look at the information associated to it. He urged that this is not an “inference” that the court should readily draw as that would mean that an officer had failed to take advantage of a process that was put in place for his well-being. Mr.

Black contended that it would be an unreasonable conclusion that Mukhi would not have looked at that information before getting out of his vehicle. [ 90 ] Mr. Markson made similar submissions on behalf of Marchyshyn that I shall footnote since the point being made on behalf of the defendants was the same. [ 91 ] There is no evidence that either defendant read any of Exhibit 11. It is, in my view, extremely improbable that either of them did so before Hamdani was apprehended. I agree with the Crown’s submission on this issue. Given the speeds at which the defendants were

travelling and given the urgency of their pursuit, the likelihood that they took the time to stop, peruse and find the cautionary warning defence counsel now rely upon is extremely slight. I find that they did not. [ 92 ] This was not a traffic stop where an officer has the luxury of taking the time to read information sent to him after calling in a plate. As will become evident when I review Mr. Markson’s submission respecting the radio transmissions, this was an urgent pursuit. Mr. Black’s Submissions Cont’d [ 93 ] Mr. Black noted that none of the timestamps in the exhibits are consistent.

He then reviewed in detail what occurred at the wooden gate. I do not intend to recapitulate all of those submissions other than to note some matters briefly. First, it is common ground that Mukhi tried to detain Hamdani at the wooden gate by tasing him but his efforts to do so were unsuccessful. Second, I accept Mr. Black’s submission that while at the wooden gate Mukhi was trying to say something to Hamdani but what he said is unknown. [32] Third, commencing at about 23:40:00 on Camera No. 6, Mukhi spoke into his microphone. Based on the radio transcripts, I accept Mr.

Black’s submission that Mukhi was trying to determine if any back-up officers had arrived or were arriving. [ 94 ] Fourth, while Mr. Black reviewed the imagery from Camera No. 6 in an attempt to relate it to the data from Mukhi’s Taser, I decline to document those submissions because Mukhi’s efforts were ultimately unsuccessful and the Crown does not argue that those efforts amounted to an offence. Moreover, in the absence of any evidence from Hamdani and in the absence of any expert evidence about Mukhi’s Taser records no findings can be made about how or why that tasing failed. [ 95 ] Fifth, Mr.

Black submitted that Mukhi waited until other officers arrived before attempting to scale the wooden gate and go further into the darkness of the backyard in pursuit of Hamdani. I agree with Mr. Black’s submission that Mukhi urged his fellow officers to “step it up”, i.e., to hurry up, because the male was trying to break into a house.

While it is not clear whether what Mukhi heard was Hamdani smashing his elbow against the glass of the patio door or whether it was earlier sounds that Hamdani made, I accept that Mukhi believed the male was attempting to break into a home and that the pursuit of him therefore becoming more urgent. [ 96 ] As Mr. Black noted, once back up officers, (Officer Wong and Officer Byrne), arrived at the gate Mukhi scaled the gate. Significantly, in my view, the first thing Mukhi did after scaling the gate and before venturing into the dark yard was to check that his gun was still in his holster.

The Crown said that gesture could just have been to ensure that it had not fallen out when Mukhi clamored over the gate. Respectfully, that submission reaches the same conclusion; viz. : that Mukhi wanted to make certain that he was still armed before venturing into the dark after the man he was pursuing. [ 97 ] Mr. Black’s recited the circumstances leading up to that point in support of the proposition that I ought to infer that Mukhi thought he was pursuing a man desperate to evade capture.

Those circumstances were: a man committed a serious act of dangerous driving by running a red light at speed; a high speed pursuit ensued, and the man failed to stop for the police; to evade capture the man drove into oncoming lanes of traffic; the man leapt out of his vehicle while it was still in motion; the man was tased and managed to escape or surmount the effects of the Taser; and, the man fled and tried to break into a house to continue his escape. [ 98 ] Mr. Black concluded by submitting rhetorically that the question that had to be on Mukhi’s mind was, “What is this man capable of?” In Mr.

Black’s submission that was why Mukhi waited for back-up before venturing into the dark of the yard and that is why he checked his gun before moving onward. Mr. Black’s Submissions Respecting the BBQ Encounter [ 99 ] Mr. Black submitted that the height and angle of Camera No. 4, depicted as photo 22 in the book of photographs entered as Exhibit 4, shows that the perspective of the recording is not the perspective of the defendants and that must be borne in mind when considering what Camera No. 4 depicts.

The camera is further left than where Mukhi’s head would be so that the camera had a better view under the BBQ than was available to Mukhi. The point being that the point of view of the camera was not Mukhi’s field of vision. [ 100 ] Referring to the recording Mr. Black noted the following events.

Timestamp Action 23:44:09 Hamdani runs past this part of the yard on his way to the other side of the house. 23:44:46 Hamdani is out of Camera No. 4’s field of view for 37 seconds before coming back into view. 23:45:21 Mukhi runs past the BBQ and out of view of Camera No. 4’s field of view and then turns back for some reason.

23:45:28 Mukhi points to the BBQ. 23:45:29 to 23:45:47 18 seconds elapse before Marchyshyn pulls Hamdani out from under the BBQ. [ 101 ] He submitted that the video is not an accurate representation of the scene. While no expert evidence was called, there was evidence that in an infrared recording what is dark appears light and what is light appears dark. As an example, Mr. Black noted that a white patch that appears on Mukhi’s back is an artefact.

He stressed that the video is misleading as the only light source at this point was from Marchyshyn’s flashlight. [ 102 ] Another indication of the misleading nature of the video is the fact that Marchyshyn had to crouch down low to the ground in order to obtain any vantage point where he could try to see under the BBQ shelf. [ 103 ] While the Crown urged Hamdani made a gesture of surrender, Hamdani pulled his hand back and under the BBQ shelf so that both of his hands were hidden again. To begin with, Mr.

Black submitted that it is not at all clear that either defendant could see that gesture because what may be visible to an infrared camera is not visible to a human eye. Mr. Black stressed that the video shows that Hamdani withdrew his hand, (whether or not the defendants saw it initially), and that both of Hamdani’s hands were hidden for four seconds before the first leg-strike. [ 104 ] In addition to pulling his hand back under the shelf Mr. Black submitted that Hamdani made no move to get out from under the BBQ. [33] [ 105 ] Mr.

Black submitted that it is important to remember all of the information that Mukhi knew about the events leading up to that moment and it is important to remember that Byrne testified that he heard the defendants shouting commands at Hamdani. With all of that in mind, Mr. Black submitted that in that moment Mukhi perceived something and shouted, “Put that thing down!” Put That Thing Down [ 106 ] Mr. Black submitted that Track 9 of Exhibit 13, (the radio transmissions made during this investigation), has Mukhi shouting , “Put that thing down!” before any leg-strikes are applied while Hamdani was under the BBQ.

The timestamp of Track 9 commences at 02:32:31. His submission was that whether Mukhi was correct and Hamdani had something in his hand or whether Mukhi merely believed that Hamdani was brandishing something is irrelevant.

The important point is that Mukhi honestly held a belief that justified his use of force against Hamdani at that time. [ 107 ] The Crown’s position is that no such words were spoken but if they were spoken there is no evidence as to who spoke them and in what circumstances, so these alleged words offer no justification for any of the force applied against Hamdani by the defendants while Hamdani was under the BBQ. [ 108 ] Exhibit 13, (or at least my ‘bench copy’ of the exhibit), is problematic.

It is an electronic file and what I can hear on any track depends on the quality of the device and speakers that I use along with my physical dexterity in using a mouse to access the tracks. Some of the tracks on the exhibit play quite easily and clearly.

Sometimes, however, the first words or the first several words of a track do not play at all. [ 109 ] So far as Track 9 is concerned I played it several times and never heard the phrase, “Put that thing down!” However, I subsequently played the track and clearly heard that phrase being said. [34] But, I do not recognize the voice and have no way of knowing who that speaker is. [ 110 ] Respectfully, there is nothing on the track by way of other information or other circumstances that is available to identify that speaker.

Equally, there is nothing on Exhibit 10, the Event Chronology, that assists in identifying who was yelling. I arrive at that conclusion because the various voices recorded were captured on what I term an “open microphone” basis, where any number of officers responding to this investigation could speak into their microphones or radios and all of the other responders could hear them and comment or reply in return. [ 111 ] Here is Mr. Black’s transcript of Track 9 of Exhibit 13 commencing at 02:32:31: Marchyshyn: Hey do … (inaudible) Marchyshyn: Dispatch all 10-4. Can we get a perimeter set up?

We are going to have male run through backyards. Give me somewhere in behind 26. Radio Operator: Patrol 5, 10-4. Canine 15 what’s your ETA? Cst. Silverberg: About to go 10-7.

Radio Operator: 10-4 134 nights cay you take Halstone and Creditview? Mukhi: Put that thing down! Marchyshyn: [inaudible] … we have a male in custody. Radio Operator: Male in custody, 10-4. [ 112 ] The next track, Track 10 of Exhibit 13, commences at 02:33:35. It is a further discussion between Marchyshyn and the radio operator that commences with Marchyshyn once again announcing: “All 10-4. 10-6, we have male party in custody. All units slow down.” [ 113 ] When I asked Mr.

Black how I could know or what I could rely upon to find that that radio transmission was made by Mukhi and that it was occurring at that moment at the BBQ, Mr. Black’s answer was that that finding fits within the sequence of events because within seconds of that phrase being yelled, Marchyshyn announces they have a male in custody for the first time and therefore that it could only be Mukhi yelling. [35] [ 114 ] Mr. Markson also contended that Mukhi yelled this comment at Hamdani while Hamdani was under the BBQ. Mr.

Markson submitted that if one examines the BBQ encounter video at timestamp 23:45:37/38 one can see Marchyshyn activating his shoulder microphone after discharging his Taser but before any leg-strike has occurred. In Mr.

Markson’s submission, it was the fortuitous action of Marchyshyn activating his shoulder microphone that permitted Mukhi’s shout, “Put that thing down!” to be recorded as part of the radio communications. [ 115 ] While I agree that at that timestamp one can see Marchyshyn momentarily touch the right upper part of the front of his chest with his left hand, I have no way of knowing why he did so or what that momentary touch accomplished, if anything. No evidence was called about how an officer turns his microphone on or off.

But there is a much more serious problem with the defence submission that Mukhi yelled, “Put that thing down!” before Marchyshyn delivered the first leg-strike against Hamdani. [ 116 ] Track 9 is 47 seconds long. The yell, “Put that thing down!” occurs at between the 35 to 37-second mark of the recording. It is only four seconds later, at the 41-second mark that Marchyshyn tells the radio operator that they have a man in custody. However, the video of the BBQ encounter comprises a much longer period of time. [ 117 ] It’s clear that Hamdani is seen by Mukhi by 23:45:29.

He’s being pulled out from under the BBQ at 23:45:47. He’s on his right side getting kicked by Marchyshyn, Mukhi and Byrne [36] and at 23:45:52 he’s still on his right side. He’s not placed on his stomach to be handcuffed until 23:45:54.

That cuffing process is still going on at 23:46:11 and appears to be completed by 23:46:16, although Hamdani is not pulled to his feet until 23:46:51. [ 118 ] In light of the foregoing chronology, given that only four seconds elapses between the end of the disputed utterance and Marchyshyn’s announcement that Hamdani was in custody, while I do not know who yelled or why they yelled it, it cannot have been Mukhi. [37] Mr.

Black’s Submissions Cont’d [ 119 ] In addition to a lack of evidence that either thrust of the sole of Mukhi’s boot contacted Hamdani, the video fails to demonstrate that the force used was unreasonable, if there was any contact with Hamdani. [ 120 ] Mr. Black stressed two points. First, Hamdani had to be apprehended and arrested. The Crown agrees with that submission. The second point stressed by Mr. Black was that no officer would dare put their bare hands underneath that BBQ overhang, when they could not see well, clearly or at all, so the use of his foot was a reasonable use of force in those circumstances.

What Mukhi was attempting to do was push Hamdani down or back with the flat of his boot. [ 121 ] In the absence of knowing what, if anything, Hamdani had under the BBQ it would be taking an unreasonable chance to reach in with bare hands to apprehend him. In these circumstances, Mukhi’s first two leg-strikes – being shoves not kicks – have not been demonstrated to be assaults.

They have not been shown to be unjustified to the exclusion of any reasonable doubt as the Crown must do to preclude the application of s. 25. [ 122 ] As to the third leg-strike administered after Hamdani was pulled out from under the BBQ, that force was applied lawfully and justified under s. 25 because Hamdani was struggling and flailing as testified to by Byrne, which is what Mr. Black contends that he appears to be doing in the video. So far as that portion of the encounter is concerned, Mukhi was trying to get him from his side and onto his stomach to be handcuffed. [38] [ 123 ] Mr.

Black submitted that the video shows that Hamdani was not under control, that he was flailing and that it took four officers 28 seconds to get Hamdani handcuffed. [ 124 ] Finally, as a prelude to his review of the cases, which speak about the application of force in the difficult and fluid circumstances

of policing, Mr. Black cautioned against forgetting that multiple viewings of a recording in the staid and safe environment of a courtroomis not the unplanned reality that the defendants faced, where they had only one time to perceive and react on the sudden. [125] As he put it: We now know what happened, but they didn’t know what was about to happen. We now know that they didn’t get hurt, but they didn’t know that they would not get hurt. We now know that he didn’t have a weapon, but they did not know that. Mr. Black’s Review of the Law [126] He began with paragraphs from R. v.

DaCosta, 2015 ONSC 1586 , [2015] O.J. No. 1235 (SCO) where Justice Hillcollected prior commentary on how to approach and assess police conduct that is the subject of complaint. 97 Judicial review of the use of force by the police in the context of an arrest requires an assessment of the reasonableness of theforcible arrest in "all the circumstances": R. v.

Asante-Mensah, 2003 SCC 38 , [2003] 2 S.C.R. 3, at paras. 74-6; … 98 Apart from the interpretive caution to consider all the circumstances faced by the police, a reviewing court must guard against the tendency to over-reliance upon reflective hindsight:[39] It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they wereexcessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officersmust exercise discretion and judgment in difficult and fluid circumstances.

The role of the reviewing court in assessing the manner inwhich a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective lawenforcement, not to become a Monday morning quarterback. (R. v. Cornell, 2010 SCC 31 , [2010] 2 S.C.R. 142, at para. 24)... [127] In my view the following excerpt from paragraph [98] of DaCosta is an important consideration in this case. The point is: officers have a duty to protect and a right to their own safety.

Assessing whether belligerent and intoxicated persons mightharm other members of the household or might take out their anger against the officers is not governed by clearly defined rules. It is anexercise in discretion and judgment, often guided by experience. Second-guessing is not helpful. As Cromwell J. explained in Cornell,judges who review the decisions of officers should be slow to intervene on the basis of hindsight (at para. 24)... (R. v. Alexson, 2015 MBCA 5, at para. 20) [128] Mr.

Black stressed paragraph [99]: 99 A critical contextual circumstance for many arrests is the dynamic and fluid nature of an apprehension with the need for rapid, on-the-spot decisions by a police constable: A certain amount of latitude is permitted to police officers who are under a duty to act and must often react in difficult and exigentcircumstances. (Asante-Mensah, at para. 73) … [Measures] reasonably necessary to eliminate threats to the safety of the public or the police ...will generally be conducted by the policeas a reactionary measure... they will generally be unplanned, as they will be carried out in response to dangerous situations created byindividuals, to which the police must react "on the sudden". (MacDonald, at para. 32 per LeBel J.) … The justifiability of the officers' conduct must always be measured against the unpredictability of the situation they encounter and therealization that volatile circumstances require them to make quick decisions. (Alexson, at para. 20) … The police are often placed in situations in which they must make difficult decisions quickly, and are to be afforded some latitude for thechoices they make.

See R. v. Asante-Mensah, 2003 SCC 38 , [2003] 2 S.C.R. 3 at para. 73. [129] While Mr. Black then jumped to paragraph [103] of DaCosta, I believe that the following excerpt from Golub quoted by JusticeHill in paragraph [99] of DaCosta merits careful and very deliberate consideration, as I am of the view that it has substantial applicationto that portion of the events that occurred prior to Marchyshyn pulling Hamdani out from under the BBQ. In this case, I am concerned with the police interest in protecting the safety of those at the scene of the arrest.

This interest is often themost compelling concern at an arrest scene and is one which must be addressed immediately. In deciding whether the police werejustified in taking steps to ensure their safety, the realities of the arrest situation must be acknowledged. Often, and this case is a goodexample, the atmosphere at the scene of an arrest is a volatile one and the police must expect the unexpected. The price paid if

inadequate measures are taken to secure the scene of an arrest can be very high indeed. Just as it is wrong to engage in ex postfacto justifications of police conduct, it is equally wrong to ignore the realities of the situations in which police officers must make thesedecisions. … In my opinion, one cannot ask the police to place themselves in potentially dangerous situations in order to effect an arrest without, at thesame time, acknowledging their authority to take reasonable steps to protect themselves from the dangers to which they are exposed.

Ifthe police cannot act to protect themselves and others when making an arrest, they will not make arrests where any danger exists and lawenforcement will be significantly compromised. (R. v. Golub (1997), (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.), at paras. 44-5, notice of discontinuance filed [1997]S.C.C.A. No. 571) [130] Mr. Black stressed, as explained at paragraph [24] of Cornell, “[the police] cannot be expected to measure in advance withnuanced precision the amount of force the situation will require …” Further, “Police action should not be judged against a standard ofperfection.

It must be remembered that the police engage in dangerous and demanding work and often have to react quickly toemergencies.

Their action should be judged in light of these exigent circumstances”. [131] As the cases collated by Justice Hill demonstrate, given the fast moving and exigent circumstances in which the police oftenoperate, the amount of force used by them to apprehend and arrest a person in the exigent circumstances in which they find themselvescannot be measured with exactitude or precision. [132] Against that practical and realistic standard, I note and pay heed to the caution from Justice ODonnell at paragraph [12] of R. v.Baxter, 2018 ONCJ 607: 12 At the same time, there are limits to almost everything.

Balance, restraint and reasonableness are hallmarks of any judicial or policing system.[40] Just as a police officer has a right and obligation to protect himself and victims of crime and to make sure that he or she returnssafely to his or her family at the end of a shift, he or she owes an obligation to apparent offenders to treat them fairly and within thebounds of the law and, as much as is reasonably possible, to ensure their safety also. The expanded powers in the Criminal Code andjudicial restraint in "Monday-morning quarterbacking" are not a free pass.

Accordingly, the mantra of "officer safety", for example, is, atone and the same time, both a perfectly valid and important concern, but also has the potential to become a justification for all manner ofviolations of suspects' constitutional rights and physical integrity. In short, judicial appreciation of the challenges of policing does notgive the police carte blanche in the use of force against subjects. ... [133] Mr. Black then turned to Nasogaluak at paragraph [35]: “Police actions should not be judged against a standard of perfection.

It must be remembered that the police engage in dangerous anddemanding work and often have to react quickly …”. [134] A major point of contention between the parties had to do with whether the infrared recording worked an unfairness on thedefendants, by misrepresenting the actual lighting conditions. The infrared recordings appear to show ample light when in fact it was,according to the homeowner, Mr. Anania, pitch-black in his backyard. In addition, Mr.

Black stressed that the camera which capturedthe BBQ encounter was mounted high on a wall to the left of the BBQ and that its vantage point was not a viewing angle available toMukhi. Consequently, Mr. Black referred to R. v. McGilly, [2014] O.J. No. 5863, a decision rendered by Justice Maund. At paragraph[63], His Honour noted that “…[l]ife is not experienced in slow motion or by freeze frame.” Mr. Black submitted that parsing the BBQencounter out moment by moment and frame by frame is unfair to the defendants.

As Justice Maund noted in McGilly, “This incidenttook mere seconds, and the intervention of [that defendant] was limited to the closing moments. A camera may not lie but it capturesonly a single and limited perspective. …” [135] Next, Mr. Black referred me to R. v. Yum, [2001] A.J. No. 365 (C.A.) where an officer kicked a person in an effort to complete anarrest. Yum’s conviction for assault was overturned on appeal. The man Yum went to arrest on a warrant had been using drugs and fled.Yum found his target hiding under a car. The

summary conviction appeal judge described the target as an unknown, but a criminallyinclined risk. Fearing an armed response, the Constable was disinclined to attempt to arrest Zervos by climbing under the parked car inorder to collar him. He chose to kick Zervos in the chest. The appeal court found that purpose of the kick was to "stun, distract and gaincontrol of Zervos, and that it was not administered out of anger or frustration.” [136] There are many similarities to the situation the defendants found themselves confronting. 6 As the appellant submits, the totality of circumstance included the following.

Yum had been presented in the darkness of night, at apremises reputed for criminality, by an unknown individual, who upon seeing an identified peace officer, turned and ran. Althoughordered to stop, he continued to run. He was found hiding in shadows below a parked car which made his detention by the Constabledoubtful. He was then subdued by a single application of force to his person. 7 We think the evidence yields the common sense inference that the officer had reasonable cause (or articulable cause) to pursue thearrest and detention of the suspect and to employ the force he did.

Viewed through the prism of what he faced, a kick delivered for thepurpose stated was not excessive and was, therefore, not criminal. We respectfully disagree with the trial finding that it was. 8 We assess the circumstance as a decision taken by a police officer in the clear performance of his duty, a decision taken neither fromrevenge, anger or malice and which could only be characterized as an application of situational force designed to dissolve a potential riskto his own personal safety.

9 It is patently obvious that a peace officer kicking a suspect is a matter which must be deplored as well as investigated. The courts willintercede in these incidents and so will police administration. That is only right and proper. 10 Here, however, the kick was administered under a legitimate motive. The trial judge said so. Had the force been applied without aweapon or in some other way, i.e. by a nightstick or a flashlight, and without injury to the suspect, the matter may well have rested atthat. But a kick as an instrument of force must be assessed carefully.

The optics here are far worse than the actual force employed. It isthe package, not the content, that offends. [137] An issue that arises, of course, is Mukhi’s motivation for administering leg-strikes as well as their number. I shall arrive at suchconclusions as I am able about these matters in due course. [138] Similarly, in Schoneau v. Brymer, [1990] S.J. No. 667 (Q.B.), a civil suit arising out of a prior attempted arrest for driving whiledisqualified, Kyle J. relied upon Wakeling J.A.’s decision in Schell v. Truba, [1990] S.J.

No 547 (C.A.) for, inter alia, the followingpropositions: • that police officers must react to what they see or understand, usually in a matter of seconds, and, • by the nature of their work, police are often called upon to make reactive decisions when adrenaline is running high. • As a result, “[t]hese decisions ought to not be viewed by the courts as though they were the product of an unhurried deliberationafter a full debate such as the process which leads to a trial judgment.” [139] Next, Mr. Black pointed to Anderson v. Port Moody (City) Police Department, 2000 BCSC 1194 , [2000] B.C.J.

No.1628 (B.C.S.C.) at paragraph [50], where Dillon J. held that “[c]onsideration must be given to the circumstances as they existed at thetime. Allowance must be made for the exigencies of the moment, keeping in mind that the police officer cannot be expected to measurethe force with exactitude: …” [140] Earlier, I noted the Crown’s submission that the defendants had an obligation to determine and employ the least amount of forceto effect their lawful purpose. The plaintiff in Levesque v. Sudbury Regional Police Force, [1992] O.J. No. 512 (O.C.J.) made the samesubmission.

In that case Bernstein J. held to the contrary, viz.: With respect, I disagree that the law imposes such an obligation on police officers effecting a lawful arrest. In my view, the test todetermine whether the officers used only as much force as was necessary is best expressed by Stevenson J. in Breen vs. Saunders et. al., (NB KB), [1986] 39 C.C.L.T. 273 N.B.Q.B. at pg. 277, where the following passage is found: “Was it more force than necessary? A policeman’s job is not an easy one.

However, it is his lot to have to deal with persons, who,fortified by drink, obstruct and provoke them while they are carrying out their duties. Mr. Justice Dickson, in Foster vs. Pawsy (1980) (NB KB), 28 N.B.R. (2nd) 334 – said: “Some allowance must be made for an officer in the exigencies of the momentmisjudging the degree of force necessary to restrain a prisoner” the same applies to the use of force in making an arrest or preventing anescape.

Like the driver of a vehicle facing a sudden emergency, the policeman “cannot be held to a standard of conduct which onesitting in the calmness of a courtroom later might determine was the best course.” … [141] Finally, in Webster v. Edmonton (City) Police Service, [2007] A.J. No. 71 (C.A.), the court found that the trial judge erred in lawin finding that the use of the tactical unit amounted to an excessive use of force when that team responded to a call from a member of theWebster family saying that another family member was in danger.

The Alberta Court of Appeal allowed the appeal of the defendant anddismissed the plaintiff’s claims, holding at paragraph [26]: 26 Police officers will be exempt from liability "if they use no more force than is necessary having regard to their reasonably heldassessment of the circumstances and dangers in which they find themselves": Levesque v. Zanibbi, [1992] O.J. No. 512, 1992CarswellOnt 2832 at para. 17 (Ct.J.(Gen. Div.)).

The following principles are relevant from Crampton at para. 45: Police officers are not expected to measure the precise amount of force the situation requires: … Nor will they be denied the protectionof s. 25(1) if they fail to use the least amount of force that would achieve the desired result. Allowance must be made for an officer, inthe exigency of the moment, misjudging the degree of necessary force: … Accordingly, the immediate decisions a police officer makesin the course of duty are not assessed through the "lens of hindsight": … [142] On the basis of the foregoing submissions and law, Mr.

Black concluded in urging that the Crown had failed to prove theallegation that Mukhi committed an assault on Hamdani as the Crown had failed to negative that s. 25 applied to justify his application offorce against Hamdani. Mr. Markson’s Submissions on behalf of Roman Marchyshyn [143] Mr. Markson organized his submissions under various headings. He highlighted the paragraphs of the cases that he contendedshould inform the court’s review of the facts and he submitted that he would identify, and correct erroneous submissions made by theCrown.

He would do the latter by reminding me of the principles respecting an “air of reality, the burden of proof, and “the second manin scenario,” which is how he characterized Marchyshyn’s involvement. Finally, he urged the adoption of the analysis made by Justice

R. Kelly in R. v. Montsion, [2020] O.J. No. 4516 (OCJ), on all of these issues, and in particular on the law of legal justification for apolice officer’s use of force under s. 25 of the Code. [144] Mr. Markson submitted, (and I agree), that Justice Kelly distilled a broad area of the common law and provided an excellentsummary of the issues implicated by a police officer’s use of force. Air of Reality [145] The Crown contended that it was an open question as to whether s. 25 could be engaged in a case where the defendants did nottestify. Mr.

Markson submitted that the answer to that question was that s. 25 was engaged on the evidence adduced. Like thedefendants in this case, Officer Montsion did not testify in Montsion either. Justice Kelly set out the applicable principles at paragraphs[430] and [431] of that case. AIR OF REALITY 430 Before the trier of fact can consider a justification under s. 25 or self-defence under s. 34, there must be an air of reality.

In otherwords, the trial judge (acting as trier of law) must be satisfied there is evidence on which a properly instructed trier of fact, actingreasonably, could acquit based on the justification or defence. The trial judge will consider the totality of the evidence and assume anyevidence relied on by the accused is true.

Where a defence or justification has more than one element, there must be evidence that lendsan air of reality to each element.96 431 There is no legal requirement that the accused testify in order to give an air of reality to a justification under s. 25 or self-defenceunder s. 34.97 Where there is direct evidence of an element of a justification or defence, whether from the accused or another source, thetrial judge must find there is an air of reality to that element.98 Where there is no direct evidence, the judge will engage in a limitedweighing of the evidence to determine whether the element can reasonably be inferred.

This limited weighing is only for the purpose ofdeciding whether there is evidence on which a trier of fact could reasonably conclude that the element has not been disproved beyond areasonable doubt.99 [146] Justice Kelly’s Footnote 97 references paragraph [53] of R. v. Cinous, 2002 SCC 29 , [2002] S.C.J.

No. 28: 53 In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by theaccused to be true. … The evidential foundation can be indicated by evidence emanating from the examination in chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses. It can also rest upon the factual circumstances of the case orfrom any other evidential source on the record. There is no requirement that the evidence be adduced by the accused. … [147] Footnote 97 also cited R v. Craig, 2011 ONCA 142 , [2011] O.J.

No. 893 (CA): 40 Evidence that an accused apprehended death or grievous bodily harm and believed that he or she could not otherwise save one's selfwill normally come from the testimony of the accused. Clearly, however, it can come from a variety of sources and it is not essential thatthe accused testify to give self-defence an air of reality. For example, in Lavallee, the basis for the self-defence claim came fromstatements the accused made to the police and others. She did not testify. [148] Turning to s. 25 and the instruction offered by Montsion at paragraph [440] Mr.

Markson submitted that Marchyshyn wasrequired or authorized by law to apprehend Hamdani in an analogous fashion. Section 25(1) and Constable Montsion’s Use of Force 440 Based on all

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