R. v. Siafas, 2011 ONCJ 530

COURT FILE No.: Toronto 10001329 DATE: 2011·10·11 Citation: R. v. Siafas, 2011 ONCJ 530 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ALEXADROS SIAFAS Before Justice K. Caldwell Heard on October 5 and December 10, 2010; February 16, April 21, and July 11, 2011 Reasons for Judgment released on October 12, 2011 Ms. Meghan Scott .................................................................................................. for the Crown Mr. Jagmeet Singh Dhaliwal ............................................................... for the accused Mr. Siafas . K. Caldwell J.: [1] Mr.

Siafas is charged with one count of assaulting a police officer and another count of obstructing a police officer. Hehas applied for a stay of proceedings under the Charter, alleging that the police infringed his rights by using excessive force whilearresting him. [2] I find Mr. Siafas not guilty of both charges for the reasons that follow. Further, I dismiss the Charter application. [3] First, I will review the evidence of the witnesses, my findings of fact, and the reasons for those findings.

Secondly, Iwill deal very briefly with the Charter application. [4] Essentially this case is governed by the principles of R. v. W.(D). (1991), (SCC), 63 C.C.C. (3d) 397(S.C.C.). Two police officers testified for the Crown and three witnesses, including Mr. Siafas, testified for the defense. The Evidence (

a) Crown Evidence (

i) P.C. Shawn Kane [5] P.C. Shawn Kane was called first. He testified that on January 25, 2010 he was working a paid duty in uniform at theMuzik nightclub located on Saskatchewan Drive near the Exhibition grounds in Toronto. Around 4 am the club was closing and thepatrons were filing out. [6] He was standing at the front gate of the club. He heard yelling coming from the street area and saw six to eight malesstanding together. Two were pushing each other violently. [7] He approached, identified himself as a police officer, and told them to stop. He placed his hands on their chests to keep

them apart. He then felt a tug on his right shoulder and collar. He saw Mr. Siafas when he looked over his shoulder and said that Mr. Siafas then pulled and dragged him to the ground with enough force that he hit the ground hard, falling on his right elbow and knee. Mr. Siafas also ended up on the ground. [ 8 ] The officer then told Mr. Siafas to put his hands behind his back and Mr. Siafas refused. Instead, he rolled over onto his chest, placing his hands beneath his body. The officer began striking Mr. Siafas in the shoulder area and in the face to gain compliance.

He agreed that he could have chosen to strike him in other areas of the body aside from the face, and that he could have called for others to assist him. [ 9 ] He did not recall Mr. Siafas saying, “I’m trying, I’m trying” when told to put his arms behind his back. He also didn’t recall Mr. Siafas saying, “oh, shit” in a surprised or alarmed tone when the officer fell. [ 10 ] Mr. Siafas then began pushing his chest up as if he was attempting to stand up. Another officer became involved in attempting to control Mr. Siafas.

Ultimately that control was gained, and he was placed under arrest for both assault and obstruct police. [ 11 ] He agreed that Mr. Siafas might have had an injured eye from the punch to the face. The officer suffered abrasions as a result of falling to the ground. (ii) PC Anthony Lefrancois [ 12 ] PC Lefrancois also recalled seeing a fight begin and running towards the group.

He, too, saw a male grab PC Kane by the collar, causing him to fall to the ground. [ 13 ] He agreed that the events happened very quickly and that the officers’ intervention in the group and the collar grab of PC Kane were virtually instantaneous events. As a result, he could give little detail about the grab, but had a distinct recollection of PC Kane falling to the ground. [ 14 ] Under cross-examination, Mr. Dhaliwal suggested that PC Kane may have come into contact with Mr. Siafas when he ran into the group, and that Mr. Siafas thus pushed PC Kane away from him.

The officer didn’t agree with that suggestion, but conceded that it was possible. He also disagreed that PC Kane simply ran into the group. [ 15 ] He saw other officers arrest Mr. Siafas, and he turned his attention to the rest of the group. He told the other males to go home but that they refused to leave, arguing over Mr. Siafas’ arrest. Ultimately he arrested one of those males for obstruct police. He described the group as heavily intoxicated, arguing, pushing and shoving each other, but he doesn’t know if Mr. Siafas was involved in the initial fight. (

b) Defense Evidence (

i) Mr. Alexandros Siafas [ 16 ] Mr. Siafas agreed that a couple of his friends were in a heated discussion that night, that the officer became involved, and that the officer fell to the ground. He also agreed that he didn’t put his arms and hands behind his back when the officers tried to handcuff him. He differed from the officer regarding what caused these events. [ 17 ] He testified that he joined his friends Nick Vaiopoulos, Sal Mongiovi, Chris Taoussanopoulos, Paul Petropoulous and Daryl Cameron in celebrating Mr.

Mongiovi’s birthday that night at the nightclub. [ 18 ] He agreed that the group was drinking but said that he drank very little - perhaps five drinks over the course of the evening - as he had to get up in the morning to care for his ill father. He thought his friends had around the same amount, though Mr. Mongiovi had somewhat more as it was his birthday. [ 19 ] Apparently Mr. Taoussanopoulos and Mr. Petropoulos have issues with one another at times and that night they became embroiled in what Mr. Siafas agreed was a ridiculous argument over someone spitting on someone else’s shoe.

He agreed that alcohol likely fuelled their dispute. Mr. Siafas intervened to try to break up the fight as he just wanted to go home. He also acknowledged that he was irritated by the argument. [ 20 ] Mr. Cameron told him not to intervene but he insisted. He then felt a push behind. He thought Mr. Cameron was trying to keep him from intervening so he pushed back and, as he turned, realized that he had pushed a police officer. He said, “oh, shit” but by that point the officer was already on the ground. He agreed that the shove was hard. [ 21 ] Two other officers then intervened taking Mr.

Siafas to the ground, hitting him repeatedly. They told him to put his hands behind his back, but he was unable to do that given his physical makeup. [ 22 ] After his release from the station, he went to the hospital given his injuries. His eye was black, he was bruised, dizzy, and had to have two CAT scans. He also needed to take a week off work. (ii) Mr. Chris Taoussanopoulos

[ 23 ] Mr. Taoussanopoulos largely agreed with Mr. Siafas’ rendition of events, thus I will not repeat all of his evidence. He estimated his own alcohol consumption at 3-5 drinks. He said he wasn’t drunk but definitely feeling the effects of alcohol and he wouldn’t have driven in that condition. He was annoyed at Mr. Petropoulos. They tensed up and grabbed each other. They were loud. He remembered Mr. Siafas pushing Mr. Cameron away, saying that he’d break up the fight. Mr. Siafas intervened, telling them to chill out. He noticed something coming towards them, and the “something” turned out to be the officer.

It all happened so quickly that he didn’t have a chance to tell his friends to get out of the way. [ 24 ] The officer ran at them, hands up, and running into them such that Mr. Taoussanopoulos stumbled and fell on one knee. The officer also yelled at them to break up the fight. He said it was impossible for Mr. Siafas to push the officer as Mr. Siafas was facing Mr. Taoussanopoulos and thus had his back to the nightclub and the officers standing outside the club. The officers then began striking Mr.

Siafas as he lay on the ground and tried to get him to put his arms behind his back but he couldn’t comply. [ 25 ] The officers became upset with him and the others for asking questions about where Mr. Siafas was to be taken, and the officers physically dragged or carried Mr. Siafas over to the side. The group went to 13 Division to find out what happened to Mr. Siafas so that they could relay this information to his mother. (iii) Mr. Darryl Cameron [ 26 ] Mr. Cameron also largely corroborated the evidence of his friends. He said that his friends behaved as usual that evening, though Mr.

Petropoulous was slightly more aggressive than was the norm. [ 27 ] When he intervened to break Mr. Petropoulous’ grip on Mr. Taoussanopoulos, Mr. Siafas pushed Mr. Cameron back with his elbow and said, “don’t worry, don’t worry, I can handle this”. [ 28 ] Mr. Cameron moved in again to assist in breaking things up as the men weren’t letting go of one another. Out of the corner of his eye, he could see someone coming quickly and saw an officer coming towards the group with his hands up. He hit Mr. Siafas in the back and the group then scattered. [ 29 ] Mr.

Cameron backed up, trying not to fall, and saw the officer on the ground. The officer looked off balance as he came into the group, with his head and body tilted forward. He saw the officer push Mr. Siafas in the back. He also heard Mr. Siafas say, “oh, shit” once the officer was on the ground. He thought Mr. Siafas looked both confused and worried. [ 30 ] He didn’t see Mr. Siafas push the officer, though he agreed that he didn’t know what caused the officer to land on the ground. [ 31 ] At that point, other officers became involved. Mr. Cameron described a similar scene to that described by his friends.

He said that he told the officers that Mr. Siafas was trying to get his hands behind his back, so they should stop hitting him, but he was told by a female officer to “get back or you’re next”. His friends were also arguing loudly with the officers. [ 32 ] Once matters settled down, he saw injuries to Mr. Siafas, including a badly injured eye but he admitted he didn’t see Mr. Siafas being hit in that area. Mr. Petropoulous was becoming more and more upset, getting louder and louder, so one of the officers handcuffed him, taking him over to a bench to sit down.

Analysis of the Evidence [ 33 ] I find all of the witnesses in this case basically credible. I have trouble with some aspects of the testimony of both the Crown and defense witnesses but I find that overall they were attempting to honestly relay the events as they perceived them. [ 34 ] I find that much of what unfolded in this case resulted from misperceptions of the police officers. Further, it is extremely important in assessing this evidence to keep in mind that the events unfolded extremely quickly and thus none of the witnesses had the luxury, at the time, of reflection.

I find that this led to the inaccurate police observations in this case. [ 35 ] I will deal first with the evidence that I do not accept. I suspect that the defense witnesses minimized to some extent the amount of alcohol that was drunk that night. The ridiculousness of the argument that started the confrontation, the degree to which the men argued with the police, and Mr. Siafas’ own aggressive means of pushing Mr.

Cameron aside to deal with his friends himself suggests to me that they drank more than they were willing to admit in court. [ 36 ] I find, however, that the officer did charge at the group contrary to his own contention that he simply approached and stepped in between the group to de-escalate the situation. All of the defense witnesses describe him charging at the group, and they describe it in some detail. Further, that he would have intervened in that manner makes sense given the events that followed. [ 37 ] I find that Mr.

Siafas did make physical contact with the officer, causing him to fall, but I find that he did this assuming that the officer was Mr. Cameron, whom he’d tried to keep from intervening just before the officer headed into the group. I find that there was no intent on Mr. Siafas’ part to assault anyone, and that he was simply trying to maintain the space he felt he needed in order to break up the dispute between Mr. Petropoulous and Mr. Taoussanopoulos. [ 38 ] Further, I find that Mr.

Siafas did attempt to put his arms behind his back when the officers were trying to handcuff him thus he was not obstructing the police. Mr. Siafas is a compact but very powerfully built young man who appears, given his physical structure, to have very limited flexibility. He demonstrated in court that it was very difficult for him to extend his arms behind his back and I heard a cracking sound as he attempted to replicate his actions in the courtroom.

The Charter Application [ 39 ] Mr. Dhaliwal urged me to determine the Charter application regardless of my findings in the trial. I find, however, that it is unnecessary to determine the application given my dismissal of the charges. This Court is not a civil court and its purpose is not to render compensation for claims that are more appropriately civil claims for damages. [ 40 ] Further, I find that to appropriately deal with the Charter application, I would need evidence as to general police procedures in given situations, and the reasons underlying these procedures.

I am unaware, for example, of the different levels of force taught to the officers and the factors that they are trained to consider in determining when to escalate that force. [ 41 ] As I have already indicated, however, I find that the events that night flowed from misperceptions about the nature of the events that resulted due to the speed at which events unfolded. I have found that Mr. Siafas did not intentionally apply force to the officer, and I find that he was not attempting to obstruct the officer. I also find, however, that the officers thought that Mr.

Siafas intentionally pulled the officer to the ground, refused to put his arms behind his back, and attempted to get up in order to resist his arrest. I further find that the officers’ actions that night flowed from their misperceptions, albeit honestly held. Conclusion [ 42 ] For these reasons, I find Mr. Siafas not guilty of both charges and I dismiss the Charter application. Released: October 13, 2011 Signed: “Justice K. Caldwell”