R. v. B.J., 2019 ONCJ 217

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows: 138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. B.J. , 2019 ONCJ 217 DATE: 2019 03 29 COURT FILE No.: Brampton 3111 998 BETWEEN: HER MAJESTY THE QUEEN — AND — B.J. (A Young Person) Before Justice G.P. Renwick Heard on 27 March 2019 Reasons for Judgment released on 29 March 2019

V. Aujla................................................................................................... counsel for the Crown R. Vijan.................................................................................... counsel for the defendant B.J. RENWICK J.: INTRODUCTION [ 1 ] The young person is charged with three counts of assaulting a peace officer, contrary to s. 270(1) (

a) of the Criminal Code . [ 2 ] This was a very brief trial. The prosecution called two youth services officers from the Roy McMurtry Youth Centre to testify about alleged assaults by the young person, who was in their custody at the time. The incident was recorded by the institutional video camera system and the recording became an exhibit during the trial.

No defence evidence was called. [ 3 ] The only issue at trial was whether the evidence proved the alleged assaults, beyond a reasonable doubt. [ 4 ] The young person submits that the evidence falls short because the witnesses are less than credible and the video evidence is unhelpful because it is grainy and the actions of the young person is blocked by many officers at the relevant time.

In the alternative, it was suggested that the young person acted defensively to prevent an unlawful assault. [ 5 ] The prosecutor submits that seven seconds of the video record corroborates the witness testimony, which was compelling, reliable, and sufficient to prove the alleged assaults, on its own. [ 6 ] I will discuss some general legal principles and then the evidence to give context to my reasons for finding the young person guilty.

GENERAL LEGAL PRINCIPLES [ 7 ] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. [1] Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial.

In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any element of the offences charged beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that the young person assaulted any of the peace officers he is alleged to have assaulted, he will be acquitted of the charge(s). [ 8 ] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial.

While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance of probabilities. [2] If after considering all of the admissible evidence I am sure that the young person committed the alleged offence I must convict him, since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt.

Likewise, if I am not sure, than I have a reasonable doubt and an acquittal must follow. [ 9 ] This case involves testimonial and video surveillance evidence. The former requires credibility assessments, while the latter may be a reliable objective record of the events, albeit with the artefacts of this technology. [ 10 ] In assessing witness credibility and reliability I have taken into account the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify to their recollections.

It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive. A trier of fact is entitled to accept some, none, or all of what a witness says while testifying. [3] [ 11 ] A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis.

This is true for any inconsistencies and whether these are inconsequential or significant to the case. If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony. [ 12 ] In the next part, I will outline some of the evidence and provide an assessment of the testimony, with references to specific pieces of the evidence.

Although I may not refer to all of what a witness said, I listened to both witnesses carefully, I have taken detailed notes, and I have assessed the testimony of each witness for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and their ability to observe, recall, and communicate. [ 13 ] I do not propose to recapitulate all of the evidence received during this trial.

Suffice it to note that I have used ample and many opportunities during the trial and subsequent to the completion of the submissions to review my notes, listen to parts of the digital recordings of the proceedings, and to review the exhibits. I have reviewed all of the evidence in this case, but I will only discuss parts that serve to underscore my findings. Lastly, I have come to no conclusions about any of the testimony I heard until all of the closing submissions were made and my review of the evidence was complete. THE EVIDENCE AND FINDINGS OF FACT

[ 14 ] The prosecution led evidence from peace officers Nigel Cadogan and Brendan Keddy. Youth Services Officer (“YSO” or “Officer”) Cadogan was the young person’s primary worker leading up to the incident giving rise to the charges. His involvement with the young person lead to the incident before the court, but he was not physically involved or assaulted in any way. [ 15 ] This YSO was an exceptional witness. I found him to be thoughtful, careful, and entirely believable.

If there is any concern with the officer’s evidence, it is the potential that his evidence is less than objective, both given his role generally, and specifically in this particular event. [ 16 ] YSO Cadogan testified that he has been a peace officer at “the Roy” for 10 years.

He seemed thoroughly familiar with the policies and procedures of the institution and this evidence was compelling, consistent, and uncontradicted. [ 17 ] On the date in question, Officer Cadogan believed that the young person had smoked some marihuana just prior to the start of the incident, based on a smell, his observation of the young person’s eyes, and the young person’s demeanor. He asked the young person to come over so that they could speak.

He says his intention as the young person’s “primary worker” was to tell B.J. that it was obvious that he was “stoned” and that he should go to his room to “sleep it off.” [ 18 ] Despite the fact that smoking and possessing drugs is not permitted while young people are in custody at this facility, YSO Cadogan testified that he is aware that these things occur.

He also said that he and his peers become complacent because of the limitations restricting searches of the young prisoners in their care, given their age and the policy that only a manager can approve a strip search. [ 19 ] As B.J. approached, YSO Cadogan saw what he is certain was a lighter fall from the young person to the ground. This officer stood up and walked over to pick up the item, but B.J. blocked him and made “incidental” contact with his leg. YSO Cadogan then saw the young person pick up the lighter and put it behind his back and into his “posterior” area.

All of this is quite evident, although the object retrieved by the young person is too small to be seen, in the video recording of this event. [ 20 ] This was the start of what eventually culminated in a “physical containment” of the young person. Eventually, the young person was physically taken and brought to the ground against his will by several YSO’s. It is at the start of this “containment” or “restraint” when the alleged assaults occurred. [ 21 ] YSO Cadogan was balanced in his testimony.

He admitted when he became upset, during the altercation, because one of the Youth Services Managers (“YSM” Platti) spent about “15 minutes” talking to the young person rather than sending him to the Secure Isolation Unit. On the video, Officer Cadogan is seen walking away and raising both hands as if to say, ‘I give up.’ [ 22 ] The video recording does not corroborate YSO Cadogan’s belief that he used his radio to call for the YSM and other officers to respond. A female officer is seen in the lower left of the video screen at about 12:28 pm using her hand-held radio.

This is while YSO Cadogan is confronting the young person, just after the lighter has been retrieved and secreted on him. [ 23 ] Although YSO Cadogan was cross-examined at length, his evidence did not vary, nor was he shown to have said something different in his statement to his superiors. Moreover, there was no other inconsistency raised as between his testimony and any other evidence. [ 24 ] During cross-examination it was suggested that youth may obtain a lighter from one of the YSO’s.

Officer Cadogan denied the suggestion, and when pressed he politely replied, “a statement like that is somewhat of an affront to the officers I work with. I’ve never seen that.

I will stick to my position, I doubt it.” The calmness of his testimony reinforced the video evidence that, but for his disappointment with his superior’s decision to engage the young person over an extended period of time, YSO Cadogan handles pressure well and he exercises restraint and tact in handling difficult situations. [ 25 ] On the key issue, did the young person hit one or more of the YSO’s who contained him, the witness testified that he saw B.J. “swinging.” He continued, “It’s very likely he made contact with the officers because they couldn’t get his hands.” YSO Cadogan was unable to say if any of the “punches” he saw the young person throw at the officers ever connected.

Again, this demonstrates a balance to his evidence – he did not seek to improve the forensic value of his limited observations by estimation or embellishment. [ 26 ] On the whole, I accept the evidence of YSO Cadogan as truthful and accurate. His evidence was not undermined by cross- examination. In fact, it became stronger, because it provided more explanation of his role as a youth correctional officer and how seriously he takes it. I am not troubled by the officer’s mistaken belief that he called for the YSM and other officers to assist.

I accept as facts the material parts of his evidence. [ 27 ] YSO Keddy testified next. He too presented as genuine and professional. His evidence was potentially more helpful than Officer Cadogan’s because he was close enough to the young person during the alleged assaults to have seen if and where any punches were thrown. [ 28 ] YSO Keddy testified about coming to Unit 4B in response to the call for assistance. He says upon his arrival he learned from YSO Cadogan about the lighter apparently secreted on the young person.

He testified that the second YSM, Steve Clarke took over the negotiations from YSM Platti at the point where the young person backed himself into a corner. Officer Keddy told the court that YSM Clarke gave several warnings to the young person to turn over the lighter or he would be put into restraints. The young person allegedly made an utterance, but it was not admitted for its truth during the trial. [ 29 ] YSO Keddy described the alleged assaults. He testified that the young person “delivered a closed [fist] strike to Officer Vey” in his upper body.

YSO Keddy says that the young person than “delivers one to my direction, which I was able to avoid.” And then, according to this witness, “he delivered a third, closed fist strike to Officer Tuck. I’m not sure if it contacted Officer Tuck.” At this point, the several officers who had surrounded the young person were able to control him and they brought him down to the ground on his front. Officer Keddy says he held the young person’s head so that “it didn’t smash his face on the ground.”

[ 30 ] Officer Keddy suffered a left rotator cuff injury during the incident and went home after seeking medical treatment. [ 31 ] In cross-examination it was revealed that YSO Keddy was mistaken about when he gave his written statement to his supervisors. It was not on the date of the incident, but rather three days later when he returned to work. [ 32 ] It was suggested that YSO Keddy walked aggressively toward the young person in response to his getting up from the chair and walking to the wall. The following exchange took place: Q: You follow him? A: Yes. Q: Quickly? A: Yes. Q: Why so quickly?

A: Because he’s now gotten up and he is demonstrating aggression. Q: You walking towards him is aggressive? A: I was just trying to get into position. Q: You were getting ready to take him down? A: No, I’d prefer not to go hands-on with a youth if I don’t have to. I have several injuries from work. And further on during cross-examination: Q: At 12:34:40 [on the video] you cock your head to the side. You’re talking to B.J. A: For me, that behaviour was completely out of character for him, I’m saying “really?” Q: You’re trying to reason with him a bit? A: Verbally, no.

But I gave him that look, like “come on, [B.].” There’s also custodial politics that play into it. A lighter on the unit is precious to them. A willingness to give it up can put him in danger. That’s the politics of it. [4] [ 33 ] Uncharacteristically perhaps, this witness admitted that his statement contained the following: “I prepared my fist to deliver a closed right fist strike.” YSO Keddy says that during the altercation he almost punched the young person because of an incident three months earlier with another youth where he had to use a punch to end an assault.

The officer was quick to admit that this was not an approved crisis intervention technique. His cross-examination continued: Q: You also say [in your statement], “I placed my right arm around his head in a headlock style.” And you recognized that it’s not right to do that? A: Correct. I’m not in the business to hurt these young men. It’s important to say what I have done wrong. I was trying to control him. That’s me recognizing that’s not the best way to do that. Absolutely. [ 34 ] In the end, given his candour, I found this witness extremely credible and reliable.

His account of the assaults is detailed and unembellished. He admitted that during the alleged assaults he had been tempted to punch the young person back and his technique to gain control of the Defendant was less than ideal. [ 35 ] Were this the only evidence, I would have no difficulty concluding that the young person assaulted YSO’s Vey and Keddy, beyond a reasonable doubt. However, on the basis of the viva voce testimony, I would not be convinced beyond a reasonable doubt of an assault on Officer Tuck.

Neither Cadogan nor Keddy could say with any certainty whether YSO Tuck was assaulted, and that officer did not testify before me. [ 36 ] However, that is not the end of the matter. The video evidence was compelling. [ 37 ] In court, we watched the incident from the main camera for the unit (C4B 08). The camera is at the far end of a large room opposite where the alleged assaults occurred. Also, during the commotion the young person is mostly obscured from view by the several officers attempting to subdue him.

There is only one part at the start of the incident where the recording appears to depict the young person punching towards YSO Vey. [ 38 ] While considering this matter, I played the other camera angle several times. This was the video C4B 09. This camera was mounted above the Day Room TV area. [ 39 ] When the young person backs up into the corner, initially, only his left foot can be seen in the recording from this camera. However, eventually, because it is an overhead view, his left and right arm swings are cleanly captured as they hit their targets.

As well, this recording is more helpful than the other footage, because the events it memorialised are mere feet away. [ 40 ] The video recordings produced into evidence are motion pictures with freeze-frame technology permitting a user to advance the frozen frames in increments of five-hundredths of a second. In reverse, the freeze frame rewinds in one-second increments.

[ 41 ] I noted that the assaults appear to begin at 12:36:01.65. At this point the young person’s left leg and foot are partially visible on camera 09. The leg dips, as if to shift the young person’s weight at the start of the physical confrontation. At the same moment on the recording from camera 08, the young person begins to raise his right arm and it appears that his hand is closed into a fist. While advancing the recording by each five-hundredths of a second, camera 08 shows the young person drop his right arm, then raise it again, and apparently punch YSO Vey.

I say “apparently punch” because YSO Vey’s body conceals the young person’s hand after it raised up the second time. What is note-worthy from camera 08 at this point (12:36:02.80), is Officer Vey’s head and body move down and sideways in a ducking motion. [ 42 ] From camera 09 the assault on YSO Keddy occurs at 12:36:03.18. This image clearly captures B.J.’s right arm as it comes into screen rapidly towards Keddy, either hitting or narrowly missing this officer’s left hand. Around this time, at 12:36:03.32 the young person’s left arm moves toward Officer Tuck’s left side and appears to make contact.

These images capture and corroborate the sequence and description of the alleged assaults given by YSO Keddy. [ 43 ] In closing argument, counsel for the young person suggested that the officers were committed to getting physical with the young person from the start and they did not allow enough time for him to provide the lighter without the use of physical force. This submission is rejected for several reasons. [ 44 ] First, the video and testimony demonstrates that there were many attempts to have the young person produce what he secreted in the back of his track-pants.

In fact, the video proves that from 12:27:24, when the young person picked up the lighter until 12:36:01, when the physical confrontation began, there were over eight minutes of attempts by no less than three officers to communicate with B.J. to encourage him to turn over the item he had. [ 45 ] Second, counsel for the young person conceded that the officers were entitled to search the young person for contraband in the circumstances of this incident. That they gave him over eight minutes with which to possibly comply with their requests was significant and reasonable in all of the circumstances.

During the incident the other residents of this unit had to be moved out of the Day Room. The longer the incident took to resolve, the more impact the young person’s actions had upon his neighbours. [ 46 ] Thirdly, the recording from camera 09 reveals a tenderness toward the young person after he was brought to the ground. It is noteworthy that the officers pulled the young person toward an ottoman, upon which he first fell before they rolled him onto the ground.

Whether or not this was by design, the furniture certainly would have cushioned the force of the several officers pushing the young person face-down onto the floor. As well, almost immediately, we see Officer Keddy attempt to adjust the young person’s shirt, back into place to cover his exposed back. A second officer pats the young person’s right shoulder a couple of times in a reassuring way. A third (female) officer does the same on the young person’s back. [ 47 ] This evidence refutes any suggestion that YSO Keddy (and others) took any pleasure from applying force to this young person.

To the contrary, it demonstrates an immediate concern for his well-being and an attempt to calm him after a significant physical confrontation. [ 48 ] As well, I have considered whether the young person’s actions could have been the product of a defensive attempt to avoid or prevent an assault by the YSO’s. [ 49 ] There is no evidence to suggest that the young person began to apply force to Officer Vey in anticipation of or response to an unlawful assault.

On the contrary, during submissions it was conceded by the Defendant that the officers were entitled to take physical control of him to bring him to the Secure Isolation Unit once he refused to voluntarily produce what he was hiding. [ 50 ] On all of the evidence, I am satisfied that as the YSO’s advanced toward the young person for a lawful purpose, B.J. lashed out with a barrage of punches. I have no reasonable doubt that self-defence does not apply in the context of all of the evidence I accept.

CONCLUSION [ 51 ] Based upon all of the evidence, I am satisfied beyond a reasonable doubt that the three assaults have been proven. I find B.J. guilty as charged. Released: 29 March 2019 Justice G. Paul Renwick