Criminal law — Offences — Public morals and disorderly conduct — Causing a disturbance — Accused acquitted following trial for causing a public disturbance.
Criminal law — Evidence — Witnesses — Credibility — Accused acquitted following trial for causing a public disturbance.
Trial of accused for causing a public disturbance — Accused was one of 50 to 70 people standing outside nightclub after it closed — Officer testified that accused was inciting crowd by swearing at police — Crowd soon dispersed — Accused testified that he complained that he had been pepper sprayed — Officer testified he could find no evidence of use of pepper spray — HELD: Accused acquitted — It would be unsafe to convict based on uncorroborated testimony of officer — Officer's testimony was riddled with inconsistencies and omissions — Officer's notebook contained serious omissions including lack of mention of accused's complaint about pepper spray — Evidence of pepper spray on accused's clothing was obvious.
Statutes, Regulations and Rules Cited:
Criminal Code s. 175(1), s. 175(1)(a), s. 175(1)(c), s. 175(1) (d)
D. Silver, Ms. Counsel for the Crown
S. Pieters, Esq. Counsel for the Accused
¶ 1 P.H. REINHARDT J. (orally):— Mr. Atiba Roach - you can remain seated, sir ...
¶ 2 THE ACCUSED: Okay.
¶ 3 THE COURT: ... is charged that on or about the 10th day of July 2004 in the City of Toronto, in the Toronto Region, not being in a dwelling house, did cause a disturbance in or near a public place to wit, Richmond Street West near Peter Street, by shouting, swearing and using insulting and obscene language, contrary to the Criminal Code.
¶ 4 The trial commenced before me on the 14th of November, at which time Mr. Roach had two co-accused, Jeremy Andrews and Lorne Tyrone Sissons.
¶ 5 On the 14th and 15th of November I heard from the main Crown witness, officer in charge, Constable Brook Blanchfield, badge 11, at 52 Division. At the end of his examination in-chief and after some cross-examination we broke and on the 15th, in the afternoon, at the consent of the Crown, Mr. Roach's two co-accused entered into common law peace bonds, promising to keep the peace for a period of 12 months.
¶ 6 On the afternoon of the 15th I also heard from Crown witness Jeff Thompson, the booking Sergeant, and the only defence witness was Mr. Roach's mother, Roz.
¶ 7 I received written submissions from the defence this morning, the 16th and heard oral submissions from both the Crown and the defence this morning. In the result I've concluded that the Crown has not made out a case against Mr. Roach. Let me explain why.
¶ 8 Summary of testimony; on the 10th July 2004 Atiba Roach was in the Entertainment District in downtown Toronto with friends to celebrate his 24th birthday. The entertainment district, according to Constable Blanchfield, is an area of approximately 2.8 square miles, bounded by Queen Street to the north, Front Street to the south, Spadina to the west and University Avenue to the east.
¶ 9 During the summer of 2004, according to police reports, on any given Friday or Saturday, that up to 50,000 people from Toronto and elsewhere congregate in this area to attend bars, restaurants and nightclubs and have a good time. The bars and nightclubs close the bars at 2:00 a.m., and require patrons to leave by 3:00 a.m. And this, according to Constable Blanchfield, an officer with 22 and a half years of experience, means that patrons in very large numbers come out onto the sidewalks as they leave the bar and clubs.
¶ 10 Constable Blanchfield adopted the language of the synopsis, which was not prepared by him, but was prepared by other officers with experience in reporting on different parts of Toronto, states, "Alcohol enhances social behaviours, exacerbated by spilling into the streets causing an explosion of demands and needs for police intervention. Crimes of disorder such as cause disturbance and assault are common.
¶ 11 Blanchfield essentially adopted that view of what happens late at night. And testified that in the immediate vicinity of the intersection of Richmond and Peter Streets can be found at least seven clubs, which hold up to a thousand patrons each.
¶ 12 Constable Blanchfield also testified that when he arrived at this location, at about 3:00 a.m., on 10 July 2004, Mr. Roach was one of a group of about 50 to 70 people standing outside the Oxygen nightclub, located on the south side of Richmond Street East, at Peter Street.
¶ 13 Constable Blanchfield testified that when he arrived a number of other people, officers, between 12 and 16 were trying to manage the crowd. Blanchfield testified that the crowd and other officers were surging onto the street, and the two southernmost westbound lanes were jammed, essentially blocked from vehicular traffic by a combination of police, police cars and pedestrians.
¶ 14 Constable Blanchfield testified to two other observations. In his view, the crowd was growing and in his view three individuals were, in his words, "inciting the crowd" by swearing at the police who were gathered there.
¶ 15 Blanchfield identified the three young adults as Andrews, Sissons and Roach. Blanchfield testified that the three were saying such things as fuck off and other things. Calling the police cowards and anarchists. He testified that they were the only people shouting, that the crowd was simply hanging around. He could give no examples of actual hostility or acts by the crowd to evidence hostility towards the police or incitement to do anything.
¶ 16 Constable Blanchfield testified that, in his view, it was the swearing by the three young adults that caused the crowd to congregate and that he could not explain why this swearing was occurring.
¶ 17 According to Blanchfield the crowd dispersed on its own, without any request by the police to do so. At approximately 3:30 a.m., after the crowd was basically all leaving three young adults were arrested for cause disturbance.
¶ 18 Constable Blanchfield arrested Roach, cuffed him, turned him over to transporting officers at approximately 4:02 a.m. He also testified initially that he was involved at the station, in some capacity, when Roach was booked.
¶ 19 Findings and credibility; I've concluded that it would be unsafe to convict on the uncorroborated testimony of Constable Blanchfield. His testimony is, as stated in the written submissions by the defence, riddled with inconsistencies and omissions and there are serious omissions in his notebook.
¶ 20 I will elaborate on just some of those inconsistencies and omissions.
¶ 21 The cause of the crowd gathering, and almost everything I am going to mention refers to that, because the governing law is the s. 175(1) of the Criminal Code. And it states, "Every one who not being in a dwelling-house, causes a disturbance in or near a public place, i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language, is guilty of an offence punishable on summary conviction."
¶ 22 And the Code specifically provides that I may infer from the evidence of the peace officer, relating to the conduct of a person or persons, whether ascertained or not, that a disturbance described in paragraph 1(a) or (d), or an obstruction described in paragraph 1(c), was caused or occurred. That means that for the practical purposes of this trial the evidence of Constable Blanchfield is, and intended by Parliament, to be the crucial evidence that I must evaluate as to its credibility in order to make the findings essentially and the most important finding be that a disturbance was caused by the individual accused.
¶ 23 Constable Blanchfield did not arrive at the scene until the crowd was already gathering. In cross-examination he was asked if he was aware of an impromptu rap concert that occurred outside the Oxygen nightclub after it closed, which might have caused the crowd to gather there.
¶ 24 Blanchfield testified that he recalled hearing of something like that and he eventually attributed that to Mr. Andrews who he stated he had spoken to at some point, but was not specific as to when. He also spoke about receiving information at the scene from an unnamed person and the implication was, is that he learned about the concert at least partially from this unnamed person.
¶ 25 In examination in-chief Blanchfield made no mention whatsoever of pepper spray or a complaint about pepper spray being used that night. In cross-examination he recalled that Roach complained to him. He, in fact, remembered that Roach complained to him that night. And the complaint was that he, Roach, had been pepper sprayed.
¶ 26 In cross-examination he also conceded that the station booking and release video showed Mr. Roach's shirt, which was shown to him in Court in front of me, showed that Mr. Roach's shirt had the characteristic orange dye clearly visible in a large quantity on the back of his shirt.
¶ 27 He further testified this particular orange dye is at the time, the summer of 2004, was the only pepper spray colour that would be apparent if pepper spray was used on a citizen.
¶ 28 In the same cross-examination he denied having seen this orange dye that night at the scene, while arresting Mr. Roach or at the station. And, as I stated, after first saying that he was part of the booking process he actually, to my surprise, and in contradiction to my notes, and Mr. Pieters notes who was cross-examining at the time, he denied having even stated under oath that he had been involved in the booking process.
¶ 29 Despite defence requests and the disclosure and trial preparation process for information relating to the use of pepper spray, the preparation of the Use of Force Report, which would have been required if pepper spray had been used, and the identity of particular officers that the defence asserted may have used pepper spray, Constable Blanchfield testified that prior to trial he could find no evidence of the use of pepper spray or that an officer had used it that evening.
¶ 30 It was troubling to this Court that an officer who had been involved in the arrest of an accused, who was able to say from the police video, and this fact was further substantiated by evidence I heard later, as to the obvious prejudice of pepper spray on the clothing of Mr. Roach, would testify in court that he had not witnessed any pepper spray on Mr. Roach that evening.
¶ 31 Perhaps most troubling to this Court was the fact that Constable Blanchfield's notes made no mention of Mr. Roach's complaint about pepper spray or of the presence of pepper spray on his shirt.
¶ 32 Mr. Roach's mother, Roz, who has degrees from Columbia University and McGill University, and who I find to be a completely credible witness, produced Mr. Roach's shirt which she had sealed in plastic on the day that he returned home and had unsealed before me, for the first time in court, provided me with further evidence of the validity of the complaint that Mr. Roach made about being pepper sprayed.
¶ 33 After more than a year the shirt, with the orange dye clearly showing on it, was plainly evident to contain a noxious substance of some kind, which caused an immediate allergic reaction in the court, both for Mrs. Roach who was on the witness stand at the time and from the Court Reporter.
¶ 34 I therefore have no question in my mind on this essential fact, that pepper spray was used that evening and that Mr. Roach was pepper sprayed.
¶ 35 I am also prepared to find as more troubling for me, as a Judge, the fact that Constable Blanchfield misled this Court.
¶ 36 Constable Blanchfield, in my view, in his preparation of his notes, in his trial preparation in response to defence requests for information about the case and about the pepper spray and about the Use of Force Reports, if they existed, and in his initial testimony before me, before he was cross-examined, did a remarkable imitation of the child parable of the three monkeys, hear no evil, see no evil, speak no evil.
¶ 37 If I had not heard the cross-examination and the defence evidence, I could not have known about essential facts, which could have given rise to the response that evening at Richmond and Peter Street in front of the Oxygen, which could have given rise to the result of a large crowd gathering.
¶ 38 The defence has never in a criminal case to prove any fact. They must simply raise doubt, and on this essential element, as the cause of the crowd gathering and whether or not it was caused by the actions of Mr. Roach, I am left with doubt.
¶ 39 I therefore conclude more importantly, I suggest, that there is not a reliable witness for the Crown in this case regarding what happened at Richmond Street and Peter Street, in front of the Oxygen that night, in the early morning hours. And Constable Blanchfield's description of what happened while he was at the scene cannot be relied upon.
¶ 40 I have heard no evidence as to what happened prior to his arrival. I have heard from no other officers who were at the scene. And I am therefore left in doubt as to the actual role of Mr. Roach in this affair.
¶ 41 In the result, the Crown has not established that Mr. Roach caused a disturbance that evening and the case is dismissed.
¶ 42 MR. PIETERS: Thank you, Your Honour.
¶ 43 THE ACCUSED: Thank you, Your Honour.
¶ 44 THE COURT: Thank you all.
QL UPDATE: 20051219