R. v. Collins, 2018 MBPC 38

Citation: 2018 MBPC 38 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) ) ) M. Desautels and M. Murray for the ProvincialCrown and J. Akerstream, for the FederalCrown ) - and - ) ) ) ) Headar Shammo ) ) K. Jones and R. Campbell, for the Accused ) ) ) Judgment delivered: October 12, 2018 ROLSTON, P.J. Introduction [1] It was a snowy and slippery evening when the police decided that they would close out an ongoing dial-a-dealerinvestigation. It was determined in advance that a call would be made to the line, and whomever responded would be arrested.

As it turnsout, the police encountered a target vehicle associated with the investigation engage in behaviour they believed to be a drug transaction.A decision was made to execute an arrest. [2] The Court heard evidence in a blended voir dire in this case, having received an application from the Defence asserting thatMr. Shammo’s Charter rights were breached. [3] Mr.

Shammo says that the police did not have reasonable and probable grounds to arrest him, and that the search of hisperson and vehicle that followed his detention were therefore unlawful. [4] The Crown maintains that the police had ample grounds to arrest Mr. Shammo and that the police actions were anappropriate response to the actions taken by Mr. Shammo to evade arrest. [5] Mr. Shammo testified in this hearing. Credibility is a central issue in this case.

It is necessary to distinguish the onus of proofas between the voir dire and trial, and the impact that the burden of proof has on the assessment of credibility. [6] The Court is then required to determine whether there is merit to Mr. Shammo’s assertion that his rights were breached, andif so whether evidence will be admitted or excluded pursuant to section 24(2) of the Charter.

Counsel have agreed that the admissibleevidence heard in the voir dire is to be applied to the trial proper. [7] The Court will also outline findings of fact that will serve to form the basis of the ultimate decision as to whether the Crownhas proven each of the charges beyond a reasonable doubt. Depending on the Court’s determination in that regard, the factual findingswill inform counsel’s submissions in respect of Mr. Shammo’s subsequent application for Charter section 24(1) relief. Burden of Proof [8] Since Mr.

Shammo has asserted that his Charter rights were breached, the onus is on him to persuade the court on a balanceof probabilities that the breach has occurred (see R. v. Collins, (SCC), [1987] 1 S.C.R. 265). As this court stated in R. v.Coutu, 2018 MBPC 22, Collins established both a factual and legal burden upon the applicant. In this case, the court adopts the sameanalysis as was set out in Coutu, given that Mr. Shammo has testified: Some reference was made by counsel to the seminal case of R. v. W.(D.) (1991) 65 C.C.C.(3d) 397(S.C.C.). This is not surprising giventhat Mr. Coutu testified.

W.(D.) has become the applicable framework for analysis of credibility in criminal cases where the accusedtestifies at trial. However, the current application is not the trial. As stated, in the context of the voir dire, the accused bears the onus of

proof on a balance of probabilities. The court agrees with the analysis set out in R. v. Kicovic, 2004 ABPC 190, where the court madethe following conclusions at paragraph 10: Firstly, the Court is determining a Charter issue, and not the guilt or innocence of the accused. At this stage of the proceedings, thereasonable doubt principle is not applicable. Secondly, on a Charter application, the accused carries a persuasive burden on the balanceof probabilities, both as to the evidentiary foundation and ultimate legal issue before the Court.

It follows that if the accused testifies as towhat occurred, and his evidence gives rise to the alleged Charter violation, the judge must determine the probability that he, and not thepolice, is being truthful. The court in Kicovic observed that the persuasive burden is akin to the standard set out in civil proceeding, as set out in Collins, supra.The W.(D.) framework creates a method of analysis that lends itself to reasonable doubt.

The structure of W.(D.) is not conducive tomaking a determination on a balance of probabilities, particularly where the onus is on the accused, as it is here, to persuade the courtthat a fact is probably true. That being the case, it is appropriate to consider the evidence as a whole to determine whether the Defencehas discharged their factual onus on a balance of probabilities. The court is nonetheless required to consider all of the evidence presented,and may believe all, some or none of the evidence of each witness. [9] In Mr.

Shammo’s case, the parties have agreed that once the voir dire is closed, any admissible evidence should be appliedand analyzed by the Court to determine whether Mr. Shammo is guilty of any of the offences. At that stage, the burden of proof shifts tothe Crown to prove the case beyond a reasonable doubt, and the analysis set out in W.(D.) applies. Reasonable and Probable Grounds [10] On January 9, 2017 the police set out to make arrests related to an investigation into a supposed African Mafia dial-a-dealerdrug line.

Previous undercover purchases had been made by phoning the line and arranging to purchase crack cocaine. On this day,officers intended on setting up an undercover buy. At the time, while the police had identified several targets, Headar Shammo was notone of them. However, Falah Shammo (Headar Shammo’s cousin), and Khalif Shammo were targets that had been identified by police. Itis also noteworthy that Headar Shammo’s vehicle, the truck that he was ultimately stopped in, had been identified as a target vehicle,having been used by Falah Shammo during a recent undercover buy in the same area.

The investigation targeted an area in Winnipegnear Chancellor Drive and Pembina Highway, where the African Mafia was known by the police to traffic in crack cocaine using thedial-a-dealer line. [11] On that day, several police units began to set up in anticipation of having the undercover officer place a call to the drug line.The police were satisfied that they had reasonable and probable grounds to arrest whomever appeared to sell crack from that call. Beforethe police were able to set up, Mr. Headar Shammo’s vehicle was seen in the area.

According to the officers, the vehicle drove in apattern that crossed paths with several surveillance vehicles. As it did so, officer Reinhardt was able to momentarily see the driver. Heerroneously identified the driver as Falah Shammo. Officer Reinhardt radioed the other units that it was Falah Shammo in the vehicle.Shortly thereafter, the vehicle was seen to attend to the front of an apartment unit nearby and stop by the entrance. A woman exited theapartment. Police observed a brief “hand to hand” transaction, and the vehicle drove off.

At that moment, Sargeant Sarbiewski believedshe had witnessed a drug transaction. She called for the detention of the vehicle. [12] Mr. Shammo suggests that while the police did subjectively have the requisite grounds for arrest, that those grounds were notobjectively justified. Counsel conceded that the police would have had grounds for the arrest had Headar Shammo arrived to the scene inanswer to a call to the drug line. However, since no call was actually made, and Mr. Shammo was not a target, the grounds for arrest canonly be gleaned from what was observed at the time the supposed transaction was made.

Counsel rightly pointed out that Sarbiewski didnot see what, if anything, was passed from the woman’s hand to Headar Shammo. The woman was not stopped, so in fact it may be thatshe simply was requesting a cigarette from a fellow smoker, as was testified to by Headar Shammo. In

summary, Defence characterizedthe arrest as an “impermissible leap” by the police that a drug transaction had occurred. [13] The circumstances of Mr. Shammo’s arrest have triggered the application before the court. Mr. Shammo suggests that thepolice did not have reasonable and probable grounds to arrest him. That being the case, the Defence asserts that his right against arbitrarydetention pursuant to

section 9 of the Charter of Rights and Freedoms has been breached. [14] The parties do not dispute the applicable law in this case. There are several principles that are often cited and relevant to Mr.Shammo’s circumstances: • A police officer may arrest a person without warrant when the officer believes on reasonable grounds that the person has or isabout to commit an indictable offence (section 495 of the Criminal Code); • A police officer’s grounds must be based upon subjectively held reasonable grounds that are objectively justifiable.

This entailsmore than suspicion, but less than a prima facie case (see R. v. Storrey (SCC), [1990] 1 S.C.R. 241); • The Court must assess the totality of the circumstances known to the police officer in assessing the subjective grounds forreasonableness, rather than individual facts in isolation (R. v. Storrey, supra); • An officer is entitled to rely upon hearsay or secondhand information to form their grounds, so long as the officer considers thereliability of the source of that information (R. v. Golub, (1997) (ON CA), 117 C.C.C.(3d) 193, and R. v.

Storrey,supra); • At the same time, the Court must be mindful that information received by police occurs in real time, and under difficultcircumstances. This was noted succinctly in R. v. Golub, supra; In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercisedmust be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a searchwarrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a

luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. [ 15 ] The circumstances of Mr. Shammo’s arrest have to be considered in light of the principles stated above, in order to determine whether the police had reasonable and probable grounds for his arrest. [ 16 ] It should be noted that Mr. Shammo’s evidence as it relates to reasonable and probable grounds serves a limited role. That is to say, Mr.

Shammo’s evidence may be used to test the credibility of the other witnesses as to the circumstances at the time and place of the arrest. However, since the assessment to be made at this juncture is as to the reasonableness of the police officer’s actions, their actions must be only considered based upon the knowledge held by the officers at that time. [ 17 ] As stated, the Court must take into account the totality of the circumstances in assessing the grounds of arrest.

In this case, the police had the following grounds for arrest: • This was a known area for this target vehicle to be used to operate a drug line; • Falah Shammo was thought, albeit mistakenly, to be the driver of the vehicle; • Officers had recently purchased drugs from Falah Shammo in the same vehicle, in the same area; • Officers witnessed activity that appeared, in their experience, to be a drug transaction.

In fact Headar Shammo confirmed that a hand-to-hand transaction did take place, although he indicated that the exchange was of a tobacco cigarette; • According to Officer Reinhardt’s evidence, this drug transaction was very similar to the drug transaction that he participated in when he himself purchased drugs from Falah Shammo. [ 18 ] When viewed in totality, police went out expecting to witness a drug transaction. They saw a vehicle they knew to have been involved in drug transactions in the past.

While there is little information as to the appearance of Falah Shammo, the court heard that Headar and Falah Shammo are cousins and business partners. The mistaken identity is not fatal to the objective justification of the grounds for arrest, so long as the belief is reasonably held. In light of the fact that Falah Shammo had been associated to the vehicle in the past, and a likely resemblance based upon genetic relation, it is not unreasonable that police mistook Headar for Falah Shammo. The police then witnessed what they reasonably determined to be a drug transaction.

Not only was it similar to many Sarbiewski had witnessed in her experience as a police officer, it was similar in nature to the previous transaction conducted from this very drug line. The totality of these circumstance equate to reasonable grounds. Grounds for Arrest for driving Conduct [ 19 ] As has been stated, the driving conditions on January 9, 2017 were extremely slippery. All parties testified as to the hazardous conditions. As indicated, Mr. Shammo drove away from the front of the apartment parking lot after his brief interaction with the unidentified woman.

At that moment, Sarbiewski called for Shammo’s vehicle to be “taken down”. Two police units rushed to the area, with their sirens and lights engaged. As Mr. Shammo turned west onto Chancellor Drive, one unit crossed a median and attempted to block Shammo’s avenue of escape. The other unit attempted to round the median from the east, so as to box Shammo’s vehicle in. Mr. Shammo’s vehicle accelerated, and drove west towards one police unit.

Shammo then swerved to the south, jumped the median, crossed the eastbound lane, went over the sidewalk and snow bank, and ended up somewhere in the field to the south of Chancellor Drive. In taking this evasive manoeuver, the Shammo vehicle’s tail end struck the police unit, and injured the officer who had begun to exit the cruiser car. [ 20 ] The Crown asserts that this behaviour of Mr. Shammo gave rise to further grounds for arrest for driving dangerously that justified his detention over and above the grounds relied upon for the supposed drug transaction. Mr.

Shammo argues that objectively speaking his driving did not amount to a marked departure from the standards of a reasonable and prudent driver given the circumstances and as such, the police had no grounds to arrest him. [ 21 ] It is clear that there is a factual contest as to the details of Mr. Shammo’s driving conduct after the “take down” was called. Mr. Shammo states that as he pulled out, he did not appreciate that police were after him. He says that he accelerated by putting his foot on the gas “for 1 minute…2 minutes, for sure”, when the police car suddenly jumped the median in front of him.

He says he was going under 50 kilometers per hour at the time. At that point, he reacted instinctively to what was going on in front of him, he swerved, hit the median, but ended up going over the median. He then described that he crossed over the oncoming lane, over the sidewalk and came to a rest just at the edge of the field beyond the sidewalk. His description of where he came to rest was many meters short of where the vehicle was later photographed by police.

He asserted that the police must have moved his vehicle. [ 22 ] The police officers who testified described that Shammo’s vehicle accelerated towards the cruiser car after turning onto Chancellor. They felt that it would have been impossible to not realize the cruiser car was a police car, given the markings and lights on the vehicle which were engaged. They testified that Mr. Shammo would have had plenty of time to stop, notwithstanding that the conditions were slippery, because the stretch of road was a short distance from where the Shammo vehicle exited, such that there was no time to gain significant speed.

Therefore, the officers concluded that Mr. Shammo’s conduct was purposeful, and objectively dangerous. [ 23 ] Several of the details provided by Mr. Shammo as to his driving are difficult to accept. Firstly, the photographs clearly depict the distance described in the testimony of all of the witnesses. While the Court cannot definitively state the distance from the exit of the apartment block to the end of the median where the police cruiser was blocking the roadway, it is clearly a short distance.

Exhibit 1 is a photograph from google that has been described as accurately depicting the space from a bird’s eye perspective. There are several cars seen in a nearby parking lot. One can glean the relative distance of the stretch of roadway described by comparing it to a general car length. Based upon the descriptions given in court, the distance covers approximately five car lengths at most. If Mr. Shammo pulled out as he described, without knowing of the police presence, he would have accelerated only for a matter of 1-2 seconds before being confronted by the police car.

It would have been impossible to miss that it was a police car. In order to travel the distance that he

described, he would have had to purposely accelerate towards the police car and over the median, and maintain the gas in order to havethe speed and momentum to travel into the field. A reasonably prudent driver would have perhaps stopped or taken evasive action, butwould have not continued to accelerate as Mr. Shammo did. A reasonably prudent driver would have likely come to rest on the medianseparating the east and west bound traffic on Chancellor Drive. In the circumstances, the Court finds that objectively speaking, therewere grounds to arrest Mr.

Shammo for driving dangerously and/or flight from a police officer. [24] At the end of the day, there is no question that when Sarbiewski called for the detention of the vehicle, the police hadreasonable and probable grounds for arrest. Furthermore, Mr. Shammo attempted to evade police by fleeing the scene by driving in adangerous manner. Therefore, the arrest was lawful. As such Mr. Shammo’s application pursuant to

section 9 of the Charter of Right andFreedoms is dismissed. Search and Seizure [25] The search and seizure conducted in the present case was executed without a warrant. That being the case, the onus is on theCrown to establish that the search and seizure was authorized by law. The search of Mr. Shammo’s person and vehicle is strongly tied tothe lawfulness of his arrest. The parties agree that if the arrest was lawful, the police are entitled to search places immediately connectedto that arrest, including his person and vehicle incident to his arrest (see R. v.

Caslake (1997), (SCC), 121 C.C.C.(3d)97 S.C.C.). [26] Given the findings of the Court in respect of the arrest of Mr. Shammo, the Court does find that the police were entitled tosearch Mr. Shammo’s person and vehicle incident to that lawful arrest. Charter Application and decision on Voir Dire [27] Based upon the reasons set out above, the Court finds that Mr. Shammo’s rights pursuant to

section 8 and 9 of the Charter ofRights and Freedoms were not breached. It is therefore not necessary to consider the remedial section 24(2) at this stage of theproceedings. [28] As agreed by counsel, the arguments and decision as to whether the police violated Mr. Shammo’s

section 7 Charter rights andwhether there should be a remedy pursuant to section 24(1) of the Charter will be deferred to the conclusion of the trial. Trial Decision [29] As indicated at the outset of these reasons, the burden of proof shifts at the conclusion of the voir dire, squarely on the Crownto establish guilt beyond a reasonable doubt on each element of each count on the information. Since Mr. Shammo testified, the Court isobligated to apply R. v. W.(D.) (1991) 65 C.C.C.(3d) 397(S.C.C.). [30] Mr. Shammo testified as to the events leading up to his arrest.

The general events of January 9, 2017 are not at issue. Thedetails of those events are very much contested by Mr. Shammo, in that on his explanation, he is not factually guilty of any of thecharges on the information. While some of the inconsistencies sworn to could be considered minor in nature, they become concerningwhen considered as a whole. At the end of the day, the Court found the bulk of Mr. Shammo’s evidence implausible and inconsistent. [31] Mr. Shammo confirmed that the vehicle that he was arrested in belonged to him but that he regularly lent it out to his familymembers.

He advised the Court that on the day in question, he was driving to the apartment block on Chancellor Drive, looking for hiscousin. He did not explain why this was the case, and acknowledged that in a prior statement had told investigators that he was lookingfor a “friend”. While he explained that his cousin was his friend, in the Court’s experience, one generally refers to people in their livesusing consistent terminology. [32] In any event, Mr. Shammo described driving to the apartment but was unable to execute the turn into the parking lot, and slidpast.

He then suggested that he needed to drive to Gaylene Place to turn around and access the apartment parking lot. Gaylene Place isshown on Exhibit 19, a Google map of the area. Mr. Shammo described going around a roundabout that is approximately two blocksdown Gaylene in order to turn around. If he was merely trying to turn around because he slid by his turn, one would expect that he wouldturn around at the nearest opportunity. Exhibit 19 shows at least two parking lots that are in closer proximity than the roundabout onGaylene where he u-turned back towards the apartment block. Mr.

Shammo agreed that when he did return to the apartment parking lot,he drove to the back of the parking lot before going to the front door. Again, his driving path is unusual given his stated purpose forattending. One would expect that he would attend directly to the front door and wait for his cousin, especially since he apparently knewthe building well since his ex-girlfriend had lived there. [33] Ultimately, Mr. Shammo stopped in front of the door of the apartment block. Very shortly thereafter, an unknown womanwalked up to his vehicle. Mr. Shammo described that his window was down because he was smoking.

The woman asked for a cigarette,and he gave her one. There are several troubling aspects to his account of events at this stage. Firstly, Mr. Shammo told investigators thathe could not recall whether he had given the woman a cigarette in an earlier statement. Given the timing described by all of thewitnesses, Mr. Shammo’s stay in that location was only brief. The chronology leads to the conclusion that the woman’s attendance to thevehicle triggered Mr. Shammo’s departure. In that respect, the exchange or lack of exchange seems to be a significant event, and yet Mr.Shammo’s memory was inconsistent on this point.

Further, it is unclear as to why he left. If the chance meeting with the woman wasbenign and non-significant, why would Mr. Shammo abandon waiting for his cousin? He gave no explanation for this. Had he explainedthat he received an emergency call to be somewhere else, or that his cousin called him and told him he did not need a ride, or some otherviable reason to leave, the Court might be less concerned about his account of events. However, there was no satisfactory explanationgiven as to why Mr.

Shammo left, seemingly leaving his cousin at the apartment after apparently specifically attending there to pick himup. [34] Lastly, in cross examination, Mr. Shammo gave an odd explanation as to why he was smoking with the window down rather

than using the ashtray. He testified words to the effect that he did not want to “die from second hand smoke”. On re-examination, he changed his answer, which was posed in a leading way, to suggest that he did not want to cause his vehicle to smell bad. These explanations are not only inconsistent with one another, but are noteworthy since they provide Mr. Shammo with not only a reason to have his window open to be approached by a stranger, but also lead to an inference that he had not used his ashtray, the location where the crack cocaine was later found.

Exhibit 15 is a series of photographs of the interior of Mr. Shammo’s truck. One photograph is a close up of the ashtray. While the picture is somewhat blurry, the ashtray shows the foil wrapped crack cocaine sitting in an ashtray that is open and appears to be well used. [ 35 ] At the end of the day, Mr. Shammo’s explanation as to the events outside of the apartment leave the Court with more questions than answers. The Court does not accept his evidence as to this time frame. [ 36 ] The Court has already commented on the credibility of Mr.

Shammo’s account of the moment that he exited the parking lot to the point at which his vehicle came to a rest. The Court does not accept that Mr. Shammo stopped his vehicle shortly after entering the field area. The area that Mr. Shammo pointed to, as shown in Exhibit 20, depicts that the surrounding snow remained undisturbed when photographed by the police shortly after Mr. Shammo’s arrest. This would have been impossible if events had unfolded in the manner described by Mr. Shammo outside of his truck. Mr.

Shammo described that he stopped and waited for the officers to attend to the vehicle, and was subsequently pulled from the vehicle and assaulted. Alternatively, the photographs of the vehicle lodged in the snow where described by police show significant snow disturbance, which were consistent with the other details described in the evidence. It is not plausible that Mr. Shammo stopped the vehicle closer to Chancellor and it was later moved by police. Furthermore, the fact that Mr.

Shammo maintained his insistence that the vehicle had been moved, after he was confronted with the photographs of the scene demonstrates his lack of credibility as a witness. The Detention and Arrest of Mr. Shammo [ 37 ] The events that occurred subsequent to the vehicle being stopped in the field happened very quickly. The account of the details of the arrest and detention of Mr. Shammo are generally similar amongst the various parties who testified. There are some significant differences that are important to detail. [ 38 ] Mr.

Shammo says that he sat in his vehicle and waited for the police to approach after coming to a stop in the field. Both Officers Norman and Zimmerman testified that they were the first to arrive on scene. Both advised that Shammo’s vehicle had become stuck and was initially attempting to be dislodge from the snow. Photographs of Shammo’s vehicle were filed as exhibits in this matter. They depict the extent that the vehicle was stuck in the snow.

It is noteworthy that the wheel wells around the rear tires of the vehicle show that the snow has built up in a manner that is consistent with what happens when a vehicle is stuck and spins its tires (see Exhibit 3, photograph 2). On the basis of the physical evidence at the scene, the Court accepts Officers Norman and Zimmerman’s account on this point. [ 39 ] Mr. Shammo also related that as the police approached, they were yelling at him to put his hands up. He related that he had his hands on the roof. He says that he was directed to take his seatbelt off and open the door.

At this point, there was one officer with a flashlight and gun pointed at him almost straight on. The other was outside the driver’s side door. As Mr. Shammo opened the door, the closest officer grabbed his left arm and struck him in the side of the head on the ear. Both Norman and Zimmerman had similar accounts of this moment in time. Both testified that commands were given to turn the vehicle off and raise his hands, which Mr. Shammo did. Both officers also testified that Constable Norman opened the door. Mr. Shammo testified that the truck had automatic locks.

Therefore, the only way to open the door after immediately turning it off would have been from the inside. That being the case, the Court accepts that Mr. Shammo opened the door. [ 40 ] Regardless of whose account is accepted, the next moments happened quickly and every person was under extreme stress. The officers were in an unknown situation where a suspect had just driven erratically after fleeing from an apparent drug transaction. The officers had their guns drawn. [ 41 ] Both Norman and Zimmerman testified that as soon as the door opened, the interior light went on.

This is consistent with the standard operation of any vehicle. At that moment, both saw the end of a machete in between the seats. Both testified to calling out that there was a knife. Mr. Shammo recalls the police voicing that there was a gun. The Court accepts that the machete depicted in Exhibit 15, was photographed as it was found by the police, and therefore was wedged in that spot as described by both Norman and Zimmerman at the time Mr. Shammo was arrested. [ 42 ] There are several important additional points. Firstly, Mr. Shammo had been told to have his hands up.

He must have put his hand down to open the door, given the locking mechanism of the door. The officers therefore would have lost sight of Mr. Shammo’s hand when he opened the door, and in quick succession seen the weapon when the interior light went on. They were now vulnerable to attack. Zimmerman took Mr. Shammo’s sudden movement as a lunge. He stated (see Transcript of Proceedings , Volume 2, May 23, 2018, page 119, lines 4 – 30): It was just one of those things. Everything happened so quick. But as we were approaching, he complied with putting hands up, he kept his hands up, he turned his vehicle off.

And how we are trained with these encounters is that one person remain in lethal coverage on the subject and the other officer become what we call a contact officer…. So I had holstered at that point. He had shown that he was compliant so I was comfortable enough to holster my firearm. But the moment that Jeff opened that driver side door is when I saw a machete sticking up between the seat, so the front seat and the center console, wedged between the seats. …I yelled, knife. I know Jeff yelled, knife.

And at that—it seemed like that second he jumped out of the vehicle and his right arm disappeared from my view right in the area of that knife. [ 43 ] Constable Zimmerman then immediately grabbed onto Mr. Shammo’s hoodie collar and delivered two punches to Mr. Shammo’s face.

[44] The Court accepts that in that moment, Zimmerman thought that Mr. Shammo was either reaching for a weapon or lunging athim, or both. The Court also accepts that from Mr. Shammo’s perspective, he opened the door, and was immediately attacked. The Courtdoes not accept that Mr. Shammo in fact did lunge at the officers or intended on launching an attack upon them. These were swiftmovements in a confined space in extremely stressful circumstances. In such a stressful environment, each party would interpret theirown circumstances in a way that prioritized self-preservation. [45] The injuries to Mr.

Shammo’s face are consistent with being forcefully struck by Constable Zimmerman, a former mixedmartial arts fighter. [46] Mr. Shammo testified to being thrown to the ground, and beaten by several officers in the ensuing minutes. It is clear that Mr.Shammo was taken to the ground. All officers described that Mr. Shammo was struggling and was refusing to release his hands to behandcuffed. These officers would have been standing over Mr. Shammo, who was face down on the ground. According to ConstableNorman, Mr. Shammo was trying to get to his feet, and was handcuffed within 45 seconds.

During the course of that short time, Mr.Shammo described being kicked and hit from all sides of his body. Mr. Shammo advised the court that he was choked out, and blackedout three times. He also described being kicked in the chest. [47] Counsel filed an agreed statement of facts and photographs as to the injuries he sustained (Exhibits 4, 5, 6 and 22). The injuriesto his face from the strikes from Zimmerman are evidence from Exhibits 4 and 6. Exhibit 5 is a photograph that indicates substantialbruising to the arms. However, there are no ligature marks to his wrists or neck.

There is no documentation of bruising or swelling to hisear, ribs, back, legs or chest that supports his contention that he was badly beaten while on the ground. There is no documentation that hesuffered from prolonged bleeding to his ear, or that he is losing vision in his eye since his arrest occurred. Mr. Shammo’s account as tothe moments that he laid on the ground are not supported by the evidence that he has filed as to his condition subsequent to his arrest. [48] However, that does not end the matter. The injuries to Mr. Shammo’s face are significant.

He described those strikes as “thehardest anyone has ever hit me”. He conceded on cross-examination that while he felt that Constable Zimmerman must have hit him withan object, that he did not realize until Zimmerman’s evidence that Zimmerman was a trained mixed martial arts fighter. Having learnedthat, Mr. Shammo agreed the strikes could have been with Zimmerman’s bare hands. This, along with the photographs, illustrates theextent of the force exerted by Zimmerman. Such force would surely lead to a period of time where Mr. Shammo would have been inshock and non-responsive to commands.

He alluded to as much when he described not being able to talk or yell or see the people aroundhim. While Mr. Shammo could have been resisting the police at the time, he could have equally been writhing in shock and pain fromthe blows of Constable Zimmerman. Findings on the charges before the Court [49] The Crown is obligated to prove each of the counts before the court beyond a reasonable doubt. Information 012-55453 Count 1 and 2: Assault with a weapon [50] The Crown argues that Mr.

Shammo is guilty of assaulting Constables Gauthier and Prawdzik with a motor vehicle when hefled from Chancellor Drive and struck the police cruiser car causing injury to Constable Gauthier’s leg. The Crown concedes that Mr.Shammo did not intentionally ram the cruiser car, but argues that Mr. Shammo is still guilty because his intention to flee combined withhis reckless behaviour constitutes the mens rea for assault. [51] An assault is the intentional application of force, without the consent of the object of the assault. The doctrine of transferredintent was described in R. v.

Gordon 2009 ONCA 170 at paragraph 68: …the common-law doctrine of transferred intent takes the mens rea of an offence in relation to an intended victim and transfers it to theactus reus of the same offence committed upon another victim. Considered separately, each prospective crime lacks an essential part.The mens rea (intended victim) lacks an actus reus. And the actus reus (actual victim) lacks mens rea.

In combination, however, theyamount to a whole crime through the application of a legal fiction. [Emphasis added] [52] Therefore, in order to be guilty of assault by way of the doctrine of transferred intent, there must be an intention to commit anassault against one person, and an intentional application of force against another. [53] In this case, the Crown has not asserted that there was an intentional application of force. Rather, the Crown concedes that theintention of Mr. Shammo was to escape the police and the application of force occurred by Mr.

Shammo’s recklessness. [54] The doctrine of transferred intent does not, in this Court’s view, extend from one offence to another. In other words, one cannotintend to commit flight from police officer, but in doing so, commit an assault because, through inadvertence, there was an application offorce. To put it simply, there must be an intention of force to transfer from one party to another, in order to apply the doctrine oftransferred intent. [55] In the present case, Mr. Shammo’s intention was to escape arrest, not to apply force.

Therefore, he is not guilty of counts 1 and2, assault with a weapon against Constables Prawdzik and Gauthier. Count 3: Possession of a weapon (scissors) for a purpose dangerous to the public peace [56] After Mr. Shammo was detained in handcuffs and removed from the snow beside his truck, the police found a pair of scissorsin the snow where Mr. Shammo had been laying. Mr. Shammo testified that he was not aware of any weapons in the vehicle, and that hedid not grab any weapon or brandish any weapon. [57] Mr. Shammo was not asked specifically about the scissors found in the snow by either party.

[ 58 ] Neither the Crown nor the Defence asked him if the scissors belonged to him, or clarified if he had carried scissors with him. While the Crown quite rightly suggested that the scissors must have come from Mr. Shammo’s given where they were located, it is not clear if they had been in his possession. [ 59 ] Scissors are not inherently designed to cause death or injury to another person. Scissors could be considered a weapon if it can be established that they were possessed for the purpose of threatening or intimidating any person. [ 60 ] Were the scissors in Mr.

Shammo’s hoodie pocket and fell out when he was struck by Constable Zimmerman? Were they on the floor of the truck and fell out when he exited the vehicle? Were they in his hand for the purposes of attacking the arresting officers? Any of these scenarios are equally plausible. [ 61 ] According to

Section 2 of the Criminal Code , a weapon means, any thing used, designed to be used or intended for use

a) in causing death or injury to any person, or

b) for the purpose of threatening or intimidating any person. [ 62 ] There is insufficient evidence to conclude as the Crown argues, that Mr. Shammo had the scissors in his possession for a dangerous purpose. The Crown did not question Mr. Shammo regarding the scissors, but asked the Court to infer a dangerous purpose from the circumstances of Mr. Shammo’s arrest and the location from where they were found. In the Court’s view, there is insufficient evidence to draw such a conclusion beyond a reasonable doubt. [ 63 ] Mr. Shammo is not guilty of count 3.

Count 4 and 5: Flight from Peace Officer and Dangerous Driving [ 64 ] The police provided evidence as to the movements of the vehicle driven by Mr. Shammo. He was described as exiting the apartment block parking lot, accelerating very quickly as the police car, occupied by Constables Prawdzik and Gauthier, attempted to cut him off while the police sirens were activated. Mr. Shammo attempted to evade this cruiser car by driving over the median, over the oncoming lane of traffic and drove over the sidewalk into the field to the east of the Mac’s convenience store. Mr.

Shammo’s vehicle continued to attempt to flee, but became lodged in the snow. [ 65 ] The description of the movements of Mr. Shammo’s vehicle was consistent as between the several officers who testified. This evidence was aided by photographic evidence as to the location where Mr. Shammo’s vehicle came to rest and by the photographs of the damaged police cruise car (Exhibit 21). Furthermore, the Court finds that Mr. Shammo was motivated to flee police in light of the fact that he had just been seen completing a drug transaction.

This will be discussed further shortly. [ 66 ] The version of events put forth by the Crown witnesses is logical, compelling and supported by the physical evidence as a whole. The Court accepts the Crown evidence as to the flight from the police. [ 67 ] The Court has already discussed the credibility of Mr. Shammo. Objectively speaking, Mr. Shammo’s driving was dangerous.

Accelerating in the face of oncoming traffic, particularly a police cruiser car with active lights and sirens, jumping a median, sidewalk and driving into a snow filled field is clearly a marked departure from the ordinary standards of prudent driving. The Court does not accept the evidence of Mr. Shammo regarding his driving behaviour. Upon examination of Mr. Shammo’s evidence, it follows that there is no reasonable doubt that arises from the evidence of Mr. Shammo. [ 68 ] Therefore, Mr. Shammo is guilty of count 4, flight from police officer, and count 5, driving dangerously.

Count 6: Resist arrest [ 69 ] The Court has discussed the arrest of Mr. Shammo in detail. This was a highly stressful situation for all parties. The Court accepts some of the evidence of each of Mr. Shammo and the police officers as outlined above. At the end of the day, while it is possible that Mr. Shammo was resisting arrest during the approximately 45 seconds that he was on the ground, it is also possible that he was reacting from a significant show of force by Constable Zimmerman. The Court is left with a doubt based upon all of the credible evidence as a whole. [ 70 ] As such, Mr.

Shammo is not guilty of count 6 resisting arrest. Information 012-55454 Count 1 and 2: Possession for the purpose of trafficking and possess proceeds of crime [ 71 ] There is significant evidence that crack cocaine was possessed for the purpose of trafficking by someone connected to the Shammo vehicle: • 24 rocks of crack were found in the ashtray; • The packaging of those rocks was consistent with trafficking; • There was a cell phone with a SIM card stored nearby.

The Court accepts that this is consistent with a drug dealer keeping personal contacts separate from drug contacts; • There was cash on the passenger seat of the vehicle, which is consistent with a recent drug transaction where the driver quickly

departed from the scene of the drug sale; • Mr. Shammo had personal cash in his wallet, stored separately from proceeds of drug sales; and, • There was a machete within the reach of Mr. Shammo, for protection if needed from a drug sale gone wrong. [ 72 ] Additionally, the police observed a prior pattern of driving that was objectively unusual. Mr. Shammo’s vehicle drove around the neighbourhood and then around the parking lot, before briefly stopping outside the apartment doors. An unidentified woman was seen doing a brief hand-to-hand transaction with Mr. Shammo. Mr.

Shammo saw the police shortly thereafter and attempted to flee. [ 73 ] The Court has already commented as to the credibility of Mr. Shammo’s testimony in respect of his dealings with the woman, and his story as to picking up his cousin. The Court has determined that this version of events lacks credibility and the Court does not accept Mr. Shammo’s evidence. The Court is not left with the impression that the version provided by Mr. Shammo could be true. [ 74 ] The only conclusion that can be reached upon the evidence before the Court is that Mr. Shammo was trafficking in crack cocaine.

The police in fact witnessed a crack cocaine sale by Mr. Shammo to the unknown woman, and arrested him before he could hide the evidence that the transaction occurred. Mr. Shammo attempted to flee the scene as the police descended upon his endeavour. [ 75 ] Mr. Shammo is therefore guilty of counts 1 and 2 of the information, for possessing crack cocaine for the purpose of trafficking and possessing the proceeds of crime. Conclusion [ 76 ] There were no breach of Mr. Shammo’s Charter Rights against arbitrary detention and unlawful search and seizure. The evidence from the voir dire was applied to the trial proper.

Mr. Shammo is not guilty of: • Assault with a weapon (x2); • Possession of a weapon dangerous to the public peace; • Resist arrest. Mr. Shammo is guilty of: • Motor vehicle flight from police officer; • Dangerous driving; • Possession of crack cocaine for the purpose of trafficking; • Possession of proceeds of crime. [ 77 ] Convictions for the offences for which Mr. Shammo was found guilty of will be subject to his application pursuant to sections 7 and 24(1) of the Charter of Rights and Freedoms . “Original signed by:” ROLSTON, P.J.