R. v. Zegil, 2013 ONCJ 735

ONTARIO COURT OF JUSTICE DATE: 2013·12·30 COURT FILE No.: BARRIE 13-5937 Citation: R. v. Zegil , 2013 ONCJ 735 BETWEEN: HER MAJESTY THE QUEEN — AND — BRENDA ZEGIL Before Justice C.M. Harpur Heard on December 20, 2013 Reasons for Judgment released on December 30, 2013 J. Lee ....................................................................................................... counsel for the Crown C. Syme ...................................................................... counsel for the defendant Brenda Zegil HARPUR J.: Overview [ 1 ] Ms.

Zegil is charged with five offences arising out of an incident which occurred in downtown Barrie following the closing of the bars on Dunlop Street in the early morning of October 12, 2013. At approximately 2:30 a.m. that morning Barrie Police Service officers were summoned to the northeast corner of Dunlop Street and Owen Street to deal with a fight involving several males. They did so and, assisted by security staff from “The Bank”, a bar and restaurant, ultimately subdued and arrested a man armed with several knives. [ 2 ] The Crown alleges that Ms.

Zegil was an officious bystander to the point of criminal conduct with respect to this arrest, at one stage grappling with the police in their efforts to subdue the armed man and at another throwing a mostly-emptied aluminum drink can at them from the arrest’s periphery. Ms. Zegil was arrested at the Dunlop Street scene on two charges of assault with a weapon (two officers allegedly having been struck by the drink can) and of obstruct police. [ 3 ] Ms. Zegil’s post-arrest dealings with the police did not go smoothly. They led to further charges of assault police and mischief. [ 4 ] Ms.

Zegil was arraigned on these charges on December 19, 2013. She entered a guilty plea to the mischief charge and pleas of not guilty to the four other charges. Ms. Lee for the Crown called Ms. Chloe Scott, a part-time security person at The Bank who was present at the scene on October 12, 2013, P.C. Jonathan Banks, the officer who arrested Ms. Zegil at the scene, and P.C. Martin Walsh, the officer who dealt primarily with Ms. Zegil at the Barrie Police Service detachment. The Crown also introduced as exhibits (

i) the notes of P.C. Ryan Harris, an officer at the scene with P.C. Barnes, which said he too was struck by a can, (ii) an aluminum can, (iii) the Barrie Police Service detachment video (accompanied by sound for the booking room portion), and (iv) a video taken, intermittently, of the scene from a camera affixed to the building on the northwest corner of Owen and Dunlop Streets. [ 5 ] Mr. Syme for Ms. Zegil called no evidence.

The Mischief Charge [ 6 ] As to the mischief charge, to which Ms. Zegil has entered a guilty plea, P.C. Walsh testified that he placed Ms. Zegil in the detachment phone booth to speak to duty counsel, that the telephone was then in proper working order, that he heard Ms. Zegil smashing the phone inside the booth, that he extracted her from it, and that he then discovered the phone to be damaged. The Barrie Police Service detachment video made Exhibit 3 unequivocally supports the officer’s testimony by sounds of phone-smashing while Ms. Zegil is occupying the booth. I accept P.C. Walsh’s testimony.

The evidence proves the mischief charge and I find Ms. Zegil guilty of that offence. Assault with a Weapon x2 [ 7 ] Turning to the s. 267 C.C. offences, I regard this offence as proven beyond a reasonable doubt as it relates to P.C. Barnes. [ 8 ] Ms. Scott’s testimony was primarily a commentary on what one sees in the Dunlop Street video made Exhibit 1. She acknowledged that the can-throwing is not shown on the video. However, she notes, rightly, that the video is not continuous.

The camera pivots through four discrete perspectives, only one of which is the scene, over a period of approximately twenty seconds; that is, one sees the scene for approximately five seconds, loses the scene to three other perspectives for approximately fifteen seconds, then returns to the scene for another five seconds, and so on. In respect of what was shown, Ms. Scott said, variously in her evidence, that (

i) she could not say when, in the actions depicted, the can-throwing occurred; (ii) the can-throwing did not occur between video times 2:36:17, when Ms. Scott can been seen speaking to Ms. Zegil near a police cruiser, and 2:36:47, when she is again seen speaking to Ms. Zegil near a police cruiser; (iii) Ms. Zegil may have thrown the can after 2:36:17 and prior to 2:36:23 when the video depicts Ms. Zegil being physically restrained by two police officers and (iv) the grabbing by Ms. Zegil of an officer trying to subdue the man with the knife preceded the can-throwing. [ 9 ] Leaving aside the video, Ms.

Scott was adamant that she saw Ms. Zegil throw, overhand, a red aluminum can which she had been holding in her right hand “into the altercation”. She said she was only one foot from Ms. Zegil when this occurred. She said she saw the can hit a police officer in the face. [ 10 ] Ms. Scott’s testimony was contradicted by P.C. Barnes’s evidence as to the chronology of Ms. Zegil’s interventions. P.C. Barnes said the can-throwing preceded the grabbing by Ms. Zegil of P.C. Barnes’s partner, P.C. Kevin Floyd. He said he looked up and saw Ms.

Zegil after realizing he had been hit by the can but, by reason of the demands of subduing the man with the knife, did not then attempt to confront her. He said it was only when Ms. Zegil later returned to the fray and laid hands on P.C. Floyd that he took her in hand and arrested her. [ 11 ] As to the can-throwing, P.C. Barnes said he noticed Ms. Zegil approximately fifteen feet away in the crowd surrounding him and the man with the knives, that she was yelling more aggressively than other members of the public beside her, and that she had a red purse in one hand and a red drink can in the other.

He said that, after glancing at her, he reached down to attend to the male and then felt the blow with the can on the right side of his face around his eye, nose and cheek. He said he heard a distinctive “ting” of a can striking a surface. He said that the can “shot off” his face after striking it. He said he looked back up at Ms. Zegil who was still yelling but no longer had a drink can in her hand. [ 12 ] Despite the contradiction between Ms. Scott’s and P.C. Barnes’s evidence as to when the can-throwing took place in relation to the contact between Ms. Zegil and P.C. Floyd, I accept Ms.

Scott’s evidence that she saw Ms. Zegil throw the can and that it was the can Ms. Zegil threw which struck P.C. Barnes. Apart from the matter of chronology, Ms. Scott’s and P.C. Barnes’s evidence on the point are in complete accord. As to chronology, I accept P.C. Barnes’s version (can-throw first, P.C. Floyd contact second) and attribute Ms. Scott’s inconsistency with that version in one part of her evidence to the incompleteness of the video of the scene and the obscurity of the video when on scene at the point where Ms. Zegil is apparently close to the police officers and the male they are subduing.

Certainly I do not regard whatever discrepancy exists between Ms. Scott’s chronology and that of P.C. Barnes to undermine Ms. Scott’s evidence about seeing Ms. Zegil throw the can deliberately toward the police officers. I regarded Ms. Scott as a careful and reliable witness. [ 13 ] Accepting the Crown’s evidence about Ms. Zegil’s throw, Mr. Syme’s submission (alternative to whether the Crown has proven any throw at all) to the effect that Ms. Zegil’s throw was the intention-less act of woman panicked by the violence she was witnessing cannot be given any credit. The throw was wilful.

Nor does the possible uncertainty of Ms. Zegil’s target - a throw “into the altercation” - provide a defence.

Section 265 C.C. requires an intentional application of force but not an intention as against the ultimate recipient of that force: R.v. Deakin (1974), 16 C.C.C. (2d), (Man. C.A.) 8. Thus, even if all Ms. Zegil was doing was throwing her can at someone involved in the arrest of the male, the offence of assault with a weapon is made out regardless of whom she hit. [ 14 ] Turning to the alleged striking of P.C. Harris, neither Ms. Scott nor P.C. Barnes testified as to what happened to the can after it struck P.C. Barnes, apart from P.C. Barnes’s remark that it deflected off his face. Exhibit 4, P.C.

Harris’s notes, state only that “while attempting to arrest the male, I was hit in the head with a red can.” [ 15 ] One is tempted to infer from the circumstances – Ms. Zegil throwing a red can at P.C. Barnes and striking him, the can deflecting, P.C. Harris being beside P.C. Barnes when P.C. Barnes was struck, no red can other than Ms. Zegil’s having been noted by Ms. Scott or P.C. Barnes – that the red can P.C. Harris is referring to is the same red can which struck P.C. Barnes.

If it were, then the doctrine of transferred intent referred to in Deakin, supra, would again apply and, subject to the possible application of the Kienapple principle, Ms. Zegil would be subject to conviction for assaulting P.C. Harris with a weapon also. [ 16 ] However, P.C. Harris’s evidence on the point by way of his notes relates to the entire period of “attempting to arrest the male”. According to Ms. Scott, that was a period of approximately twenty minutes. Moreover, unlike the evidence of P.C. Barnes, P.C. Harris’s note does not connect Ms.

Zegil to the blow he experienced other than by saying that she was close enough to be seen at the

time and she was apparently trying to approach him; the note says nothing about seeing Ms. Zegil holding a red can prior to his being struck. While the odds are very slim of more than one person in the periphery of the arrest throwing a red can at those engaged in it, I do not regard the possibility as so unlikely as to eliminate reasonable doubt. [ 17 ] Accordingly, I find Ms. Zegil guilty of assaulting P.C. Barnes with the can, but not guilty of assaulting P.C. Harris with it. Obstruct Peace Officer [ 18 ] P.C. Barnes’s uncontradicted evidence was that he was eventually compelled to pull Ms. Zegil from P.C.

Floyd, on whom she had thrown herself. P.C. Floyd was, P.C. Barnes said, engaged like him in attempting to gain control of the man with the knives. P.C. Barnes said Ms. Zegil “jumped on” P.C. Floyd and “seemed to be trying to prevent him from handcuffing” the male. I accept P.C. Barnes’s evidence. The inevitable conclusion is that Ms. Zegil did wilfully obstruct P.C. Floyd in the execution of his duty. Accordingly, I find her guilty of this offence also. Assault Peace Officer [ 19 ] The final charge is an allegation that Ms. Zegil assaulted P.C.

Walsh by spitting at him during her detention at the Barrie Police Service detachment. Mr. Syme gamely points out that Ms. Zegil never actually hit P.C. Walsh with her spit and submitted that she should thus be seen as lacking intention. I am, however, more inclined to accept P.C. Walsh’s evidence that he escaped contact with Ms. Zegil’s spit only because he was at pains to move out of range. A review of the booking room and cell video made Exhibit 3 makes clear that there was nothing accidental or ineffectual about Ms.

Zegil’s several instances of spitting at the officer. [ 20 ] In her submissions on this charge, Ms. Lee underscores the fact that, pursuant to s. 265(1)(

b) C.C., the definition of assault includes the following: a person commits an assault when he attempts....to apply force to another person...if he... causes that person to believe on reasonable grounds that he has present ability to effect his purpose. Based on Exhibit 3, it would certainly be reasonable for P.C. Walsh to have had such a belief at one or more times as he dealt with Ms. Zegil on October 12, 2013. I find her guilty of this offence also. Released: December 30, 2013 Signed: “Justice C.M. Harpur” Justice C.M. Harpur, O.C.J.