Counsel for the Crown Ms. M. Goldenberg
Counsel for the Accused D. Brown, Esq.
¶ 1 C.H. VAILLANCOURT J. (orally):— You would have really like the Tucker v. Cadillac Fairview Corporation Limited,  O.J. No. 2921, because our Ontario Court of Appeal, after citing a couple of less paragraphs than you did from R. v. Mensa,  2 S.C.R. 3, at paragraph 18 of their decisions writes: "We take these passages to mean - that's referencing the passage from R. v. Mensa - that in assessing whether a forcible arrest for trespassing is lawful, the inquiry does not begin and end with an assessment of the degree of force used to affect and/or maintain the arrest. Rather, it begins with the question, whether the use of the arrest power, was itself proper, that is, was it justified in the circumstances."
¶ 2 I'm sort of torn with the idea of reserving and doing a written judgment on this matter or just giving an oral judgment today. What I'm going to do is, I'm going to give an oral judgment today and check back with me in awhile and see if I'm going to further that up with a written decision. But I think I can pretty well cover the highlights in an oral judgment.
¶ 3 The accused entered pleas of not guilty to two charges of assault resist arrest, stemming from an incident on May the 6th, 2004. The two complainants herein were constables of the Toronto Housing Authority or whatever name they may be using today and were assigned to the Regent Park area in the City of Toronto. It would seem that by reading newspapers and so forth Regent Park perhaps does not have the most glowing reputation and is the subject matter of a number of charges that find their way into the courts. And accordingly the Housing Authority have their security officers patrolling to protect their property and their tenants.
¶ 4 On the date in question, the two security officers were on the beat. The first officer, Shawn McVey, is fairly experienced, having worked with this organization for some six years and he was being accompanied by a more junior member of the team, Mr. Fanick and in fact, Mr. Fanick had just recently started working with the security of this area. Both were in full uniform and would have been readily identified.
¶ 5 As these two officers went by the location of 470 Dundas St. East they noticed two males loitering. McVey says they were loitering in a hall. Fanick says they were loitering in a stairwell type of area. I don't think much turns on that difference.
¶ 6 Constable McVey indicates that the accused before the court had been warned not to come back to an area bounded by Parliament, Shuter, Gerrard and Oak Sts. When pressed as to when this warning was given I have the impression it was given a day or two before, it seems it was given a week and a half before; from what we can piece together it would have been an oral warning as opposed to a written notice under the Trespass to Property Act. And all of this information though would have come through briefing sessions as opposed to personal knowledge of either of these two officers.
¶ 7 The officers also indicated, at least restricted to Officer McVey, that there seemed to be a drug transaction that might have been occurring. And so they approached the two individuals and they approached the accused from the rear. Meanwhile the other individual takes off. The accused did not take off and immediately the officer then arrests him under the Trespass to Property Act. Nothing was said. Apparently, they knew who the individual was, so if they wanted to "charge him under the Trespass to Property Act," even if he ran off, that was no big deal. They knew who he was. All they would have to do was swear out the appropriate papers, charges laid and the trial could be conducted for that offence.
¶ 8 But right from the get go, bang, from behind the shoulder is clamped, the arm is clamped. I'm suggesting that the second officer is sort of giving a patting type of motion. It wasn't the same type of demonstration I think that was provided by the first officer. You don't arrest a person just by sort of casually patting them. There would have been a certain amount of force and when that force vas applied, they immediately said, "You're under arrest." No reason for the arrest being given, just, "You're under arrest."
¶ 9 At that point and instantaneously the accused then swings around and with straight arms - and Officer Fanick - all hell breaks loose and you have the three of them struggling in an upright position. At that point - and I'm relying on Fanick's evidence in this regard - no feet are being used - while they're all standing this is sort of arm flailing. But eventually the accused is put to the ground and while he's on the ground his arms are flailing and his feet are flailing. No indication that kicks are being delivered or anything of that nature.
¶ 10 And then we have the two officers and they can dress it up all you want, the accused is on the bottom of this pile, two officers on top, affecting the arrest by handcuffing the accused, and that was the end of the incident as far as the arrest was concerned.
¶ 11 Now, in the scenario as this wrestling and so forth was going on it was noted that the accused put something into his mouth. It popped out after and was put back in. The officers assumed that it was crack cocaine although he was never charged with trafficking anything. It was interesting to note that after he was arrested and so forth no evidence is given to show that there were drugs on him, excessive amounts of money on him, any drug paraphernalia. I think a lot of the drug suspicion was a bit of gilding the lily for the initial offence.
¶ 12 If they really believed that he was dealing drugs then wouldn't the arrest, in their mind, they were arresting him for trafficking in narcotics. That wasn't the case. They were arresting him right from the get go - even before they started to move towards him for trespass.
¶ 13 Then we look at the case law. The Supreme Court of Canada in R. v. Ascenti-Mensa explored this issue in a very exhaustive judgment and the more pertinent sections commence at 71 and they are dealing with what level of force is reasonable and justified. And they start off by referencing the Ontario Ministry of the Attorney General's paper entitled, "This Land Is Whose Land?" Where they come out with some of these titles for these documents I'm not sure. But, in that document the ministry itself recognizes, "An arrest is a grave imposition on another person's liberty and should only be attempted if other options prove ineffective." It's a last resort.
¶ 14 Further, "An arrest attempt may lead to a confrontation more serious than the initial offence of trespass." That sort of rings a familiar bell in the case at bar.
¶ 15 Further, the court states, "And should be exercised with caution." It goes on, "Excessive force or improper use of the arrest power may lead the occupier or the designated agent open to both criminal charges and civil liability."
¶ 16 And then the court really develops this concept of reasonable force and adopts, in effect, that arrest is a last resort tool to be used.
¶ 17 Now, our Ontario Court of Appeal in a civil case entitled Tucker v. the Cadillac Fairview Corporation Limited - that case was released by our court on July 12, 2005, and in a different context, they're looking at this issue of reasonableness and they then, from the Supreme Court of Canada in R. v. Mensa they only quote from paragraph 71 to 76. I don't think much turns on that. And then they follow that passage with the following at paragraph 18. "We take these passages to mean that in assessing whether a forcible arrest for trespassing is lawful, the inquiry does not begin and end with an assessment of the degree of force used to affect and/or maintain the arrest, rather it begins with the question, whether the use of an arrest power was itself proper. That is, was it justified in the circumstances."
¶ 18 And the case basically goes on and emphasizes common sense. Arrest is a common sense issue and a last resort issue. In the case at bar, we have the officer indicating, we know who this individual is and we are aware that he has been barred from this area. Unlike police officers who check out these matters on CPIC to see if something is in force, that was not done. And in fact, in this particular case, it was an oral, earlier warning of a couple of weeks.
¶ 19 So, under the Trespass Act what are we looking at? The removal of an individual from the premises or charging the individual with being a trespasser because he had been warned earlier. Well, they know what they see. They know who the person is. They have all the information they need. Even if he were to run, but did the accused run? No. That could always be argued, he never had the chance.
¶ 20 Also, how does this scenario begin? It begins and I like the counsel's use of the word stealth. They are coming up from behind. He doesn't even know they are there. And bang, his hand goes on the shoulders, "You're under arrest." No reason, nothing like that. Of course, let's be fair, the accused isn't giving them a lot of time to state lengthy reasons for an arrest because immediately he swings around and then we have the hoof for all that transpires.
¶ 21 Did they ever just ask him to leave? Advise him that they were going to be writing a citation for the trespass? They didn't use any of the lesser options open to them. They didn't even consider it. He was being arrested and it was done and the way it was done is such that whether it was a reflex action - I didn't really hear evidence on that. It was speculative, I would suggest. But it certainly follows that this wasn't a long drawn out process. And we are starting with the Trespass to Property Act.
¶ 22 I suggest that the facts of this case are such that they were not reasonable in the circumstances as outlined in the R. v. Ascenti and the Fairview case that I've referred to and would dismiss the counts.
¶ 23 With respect to counsel's argument, the reason for arrest, I'm not particularly thrilled with that argument, I can advise you. It all depends on the circumstances. Here with the arrest being done and the action taking place, we really don't have that sort of opportunity to dialogue.
¶ 24 And I really don't have to address the flailing issue because any flailing on the ground - perhaps Justice Brown's case can be connected - but the turning around and the force being used initially, that's not flailing as much as a more direct application of force.
¶ 25 Whether it was reflex or not I don't have to decide that really. I've already ruled on the reasonableness issue and the charges are dismissed. Thank you.
QL UPDATE: 20051026