IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Galloway, 2006 NSPC 12
Date: 20060324
Docket: 1523977
1523978/1523979/1523980
Registry: Halifax
Between:
Her Majesty the Queen
v.
Mark Galloway and John Hope
Judge: The Honourable Judge Carole A. Beaton
Oral decision: 24 March 2006 in Halifax, Nova Scotia
Written decision: 3 April 2006
Charge: THAT THEY on or about the 24th day of September 2004 at, or near Halifax Regional Municipality, Nova Scotia did unlawfully assault Suzanne Silver, contrary to section 266(b) of the Criminal Code;
AND FURTHER that they at the same time and place aforesaid, did in committing an assault on Suzanne Silver use a weapon, contrary to section 267(a) of the Criminal Code.
Counsel: Mr. Darrell Carmichael, for the crown
Mr. David Bright, for the defence (Galloway)
Mr. Patrick Duncan, for the defence (Hope)
By the Court:
[1] The defendants, Mark Galloway and John Hope are charged in an information sworn March 24th, 2005:
That on or about the 24th day of September 2004 at, or near Halifax Regional Municipality, Nova Scotia did unlawfully assault Suzanne Silver, contrary to section 266(b) of the Criminal Code;
AND FURTHER that they at the same time and place aforesaid, did in committing an assault on Suzanne Silver use a weapon, contrary to section 267(a) of the Criminal Code.
The crown proceeded summarily in relation to both counts; the trial of this matter was heard November 22nd to 24th 2005, and January 23rd to 24th 2006.
[2] The burden in this matter rests with the crown to establish the elements of each alleged offence to the standard of proof beyond a reasonable doubt. Any reasonable doubt I might have must be one logically connected to the evidence or the absence of evidence. The presumption of innocence attaches to each of the defendants and remains until the court has had an opportunity to listen to, consider and assess all of the evidence, taken as a whole, and come to a determination on the question as to whether the crown has met the requisite burden.
[3] I am satisfied that the crown has established to the standard of proof beyond a reasonable doubt the following:
(a) If the offences or either of them occurred, they involved the defendants John Hope and/or Mark Galloway and the alleged victim Suzanne Silver.
(b) If the offences or either of them occurred, they occurred on September 24, 2004 in Halifax Regional Municipality, Nova Scotia.
(c) If the offences or either of them occurred, they did involve the intentional application of force by both defendants to Ms. Silver, who was not consenting at that time. With respect to the first count contrary to section 266(b), that force involved the laying on of hands by both defendants upon the body of Ms. Silver while at her residence. The issue for the court to determine in relation to the first count as it relates to the defendant Hope, is whether he executed a lawful arrest of Ms. Silver without a warrant (section 495 of the Criminal Code) and whether he had authority to enter the residence of Ms. Silver without a warrant (section 529.3 of the Criminal Code) under exigent circumstances, and whether section 25 of the Criminal Code (use of force by persons acting under authority) can provide a defence to his actions. In respect to the defendant Galloway, the question is whether he lawfully assisted the defendant Hope in executing an arrest without warrant and whether section 25 of the Criminal Code can provide a defence to his actions. With respect to the second count contrary to section 267(a), the issue is whether the force of the application of a tazer unit to the body of Ms. Silver by the defendant Hope, at the request of the defendant Galloway, constituted assault with a weapon, or whether it was reasonable under the circumstances such that section 25 afford either or both accused a defence to those actions.
[4] The undisputed facts of this matter can be summarized as follows:
(a) Mark Galloway, a 17 year veteran of the Halifax Regional Police Service and John Hope, a 24 year veteran of the Halifax Regional Police Service were working the night shift on September 24th, 2004. As partners, they responded to a complaint received through dispatch regarding an allegation of a death threat uttered by Suzanne Silver against Elizabeth Glasgow at 195 Caledonia Road.
(b) At 9:45 p.m. the defendants, in response to that complaint, travelled to that address, with which they were already familiar as a result of a prior briefing. The defendants knew the homeowner was the mother of a certain crown witness, Vincent Hurst, who was expected to testify against Ms. Silver and her brother concerning a murder investigation. The defendants were aware that the homeowner had been the recipient of previous threats and acts of intimidation. The defendants were also familiar with the profile of Ms. Silver. She was known to them to be involved in prior drug and weapons-related offences, and as the girlfriend of an individual well known to police.
(c) At 195 Caledonia Road, the defendants took a statement from Ms. Glasgow and once back in their vehicle they received additional information (exhibit 7 in the trial) concerning the criminal record of Ms. Silver, a caution that Ms. Silver was known to be violent, a warning that Ms. Silver was a person of interest to the police, the details of release conditions then restricting Ms. Silver’s liberty, and that Ms. Silver had pending charges including assault of a peace officer and breach of probation.
(d) The defendants decided to attend the known address for Ms. Silver to see if they could locate and ultimately arrest her, based upon their reasonable and probable grounds that she had, within the previous few hours, committed the offence of uttering a death threat to Elizabeth Glasgow.
(e) The defendants were accompanied to the Silver residence by two members of the Cole Harbour R.C.M.P. - Constable Lise Hamel and Constable Stephanie Stevens - who were present as backup. The residence was located at the end of a long drive in a rural neighbourhood.
(f) Once at the Silver residence, the two defendants approached the door while the two R.C.M.P. officers stood at the bottom of the front steps.
(g) After efforts by the defendants to rouse an occupant, Ms. Silver appeared at the door of the home. Constable Hope spoke briefly to her and eventually Constable Galloway assisted Constable Hope, inside the residence, in attempting to handcuff Ms. Silver. Other occupants of the home, Catherine Silver, Shelly Silver and Leanne Negus - the complainant’s mother, sister and friend respectively - appeared from farther inside the residence while both defendants were attempting to handcuff Ms. Silver.
(h) The defendants then offered Ms. Silver an opportunity to locate her footwear before leaving the residence and while that was being attempted, Constable Hope instructed Constable Galloway that they needed to immediately exit the residence with Ms. Silver. Throughout the defendants’ time inside the home, Ms. Silver expressed verbally and through her physical demeanour, an unwillingness to cooperate with the defendants’ efforts to arrest and handcuff her, and to have her leave the residence with them. As a result, both defendants engaged in the intentional application of force to Ms. Silver in an effort to retain control over her movements and to have her comply with their direction.
(i) Throughout the same time period, Catherine Silver and Shelly Silver were alternately displaying, through their verbal and physical actions, strong displeasure with the presence of the defendants and the defendants’ actions in removing Suzanne Silver from the home. Both women were warned by each defendant they were in danger of being charged and/or arrested for assault and/or obstruction.
(j) The defendants transported Ms. Silver to the booking location of the Halifax Regional Police Service. Once at the booking area all three parties were captured on video tape (exhibit number 4 in the trial) which recorded both the audio and visual of events at the booking counter and subsequently the visual only of events in the area immediately outside the cell into which Ms. Silver was escorted.
(k) While in the booking area, as officers Special Constable Raylene Waye and Commissionaire Stephanie Janssen tried to process Ms. Silver, she engaged in a relentless verbal tirade directed to the defendant Galloway.
(l) Ms. Silver was escorted to the cell by the two female officers, followed behind in close proximity by Constable Galloway, and almost immediately thereafter by Constable Hope.
(m) Once inside the cell, the defendant Hope four times discharged a tazer, once in demonstration and three times in the drive mode, making contact with the body of Ms. Silver. That intentional application of force was done in the presence of the two female officers and upon the request of the defendant Galloway.
(n) The following day Ms. Silver was noted to have various bruises and marks upon her body which were recorded by photographs taken at the Burnside Correctional Centre (exhibit number 3 in the trial). On September 27th Ms. Silver’s counsel took photos depicting bruising on her arm and reddish pinpoint type marks on her arms and legs (exhibit number 1 in the trial).
[5] I note at the outset that this case brings into focus the ever-tenuous balancing act that must occur daily in our society between the responsibility of the state to protect its citizens and the fundamental rights of privacy, liberty and security of the person enjoyed by all individuals. That Ms. Silver was a person well known to those involved in the administration of the criminal justice system, including the defendants, in no way diminished or reduced her proper expectation of equal protection and treatment by the police and under the law on September 24, 2004. However, the reality of the situation on that evening was that both defendants were possessed of certain information about Ms. Silver before they ever came in contact with her, and that information, combined with their training and experience, undoubtedly caused them to approach Ms. Silver with a particular view to any number of potentialities.
[6] The luxury, if one may call it that, of the trial process, is that it permits the trier of fact to examine in minute detail the moment-by-moment sequence of events as recounted by the various witnesses. Absent the demonstrative evidence contained in the video and audio of exhibits 4 and 5 in this trial, the sterility of the courtroom and the assessment process conducted within it is removed from the sense of pace, excitement, emotion, tension, physicality and drama that all of the evidence has led me to conclude most certainly existed on the evening of September 24, 2004. It is from that detached vantage point that I have assessed the second-by-second unfolding of the events of September 24, 2004, the decisions made and the reactions resulting therefrom on the part of all parties involved, with particular focus on the complainant and the defendants’ respective roles.
[7] The theory of the crown may be summarized as follows. The crown asserts that the defendants’ arrest of Ms. Silver was unlawful. As a result of the defendants’ unauthorized and unlawful entry into the home of Ms. Silver without a warrant, their intentional touching of her inside the home, and later inside the holding cell where the defendants participated in the deployment of a tazer to the body of Ms. Silver, therefore their actions constitute assault and assault with a weapon respectively. In support of the assault allegation, the crown argues the well-established principle, codified in our Criminal Code, that police cannot enter a home to effect an arrest except under exigent circumstances as identified in section 529.3(2) or with a so-called “Feeney” warrant. Absent any exigent circumstances or the obtaining of a Feeney warrant, what flowed from the unlawful arrest of Ms. Silver by the defendants must also be said to be, or to be rendered, unlawful. The crown argues that the protection of section 25 of the Criminal Code, being the protection of persons acting under authority to use reasonable force, is not available to the defendants because they were not acting lawfully when they arrested Ms. Silver in her home and assaulted her there. In support of the allegation of assault with a weapon, the crown asserts that when the tazer was employed in the cell, it was an application of force with a weapon of such a nature and extent that it also exceeded the principles of protection afforded to an officer’s actions pursuant to section 25.
[8] The crown maintains that even if I accept that the events in the cell unfolded the way the defendants claim, nonetheless the tazer was used improperly as a weapon, because Ms. Silver was immobilized on a tiny bed and outnumbered three to one while handcuffed behind her back. Indeed, the crown went so far as to ask the court to consider that the defendants’ admissions that they tazed Ms. Silver to coerce or intimidate her into compliance could fit within the definition of torture contrary to section 269.1, given the instrument used to inflict the pain. I am not persuaded the court needs to consider the provisions of section 269.1 in this case as neither defendant is charged pursuant to that section.
[9] In relation to each allegation much turns on an assessment of credibility of the witnesses, given that the evidence of both crown and defence is similar in many respects, and at a minimum clearly establishes there was physical contact between the defendants and Ms. Silver at her residence, and that at the police station Ms. Silver was tazed by Constable Hope following the request of Constable Galloway.
[10] Having said that, issues of credibility are but one component of the more broad analysis ultimately undertaken by the trier of fact. The Supreme Court of Canada decision in R. v. W. (D.) [1991] 1 S.C.R. 742 established the three-pronged test as to where an analysis of credibility fits within the context of assessing whether the crown has met its burden. Justice Corey on behalf of the majority articulated the oft-cited test for the trial judge, which I summarize as follows: (a) If I believe the evidence of the accused, I must acquit. (b) If I do not believe the evidence of the accused but I am left in reasonable doubt by it, I must acquit. (c) Even if I am not left in doubt by the evidence of the accused, I must ask myself, on the basis of the evidence which I accept, whether I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[11] I bear in mind that any assessment of credibility conducted by me is not the whole of my task. I cannot simply prefer the evidence of one witness over another, or assess how the defendants or either of their evidence measures against that of crown witnesses, or vice versa. The evidence of each witness and determinations of credibility are weighed in the broader context as to whether the court is left with a reasonable, if any, doubt, on the evidence before it. As Justice Cromwell reminded trial judges in R. v. Mah, 2002 N.S.C.A. 99 at paragraph 41:
The W.D. principle is not a “magic incantation” which trial judges must mouth to avoid appellate intervention. Rather, W.D. describes how the assessment of credibility relates to the issue of reasonable doubt. What the judge must not do is simply choose between alternative versions and, having done so, convict if the complainant’s version is preferred. W.D. reminds us that the judge at a criminal trial is not attempting to resolve the broad factual question of what happened. The judge’s function is the more limited one of deciding whether the essential elements of the charge have been proved beyond a reasonable doubt: see R. v. Avetysan, [2002] 2 S.C.R. 745; S.C.J. No. 57 (Q.L.) at 756. As Binnie, J. put it in Sheppard, the ultimate issue is not whether the judge believes the accused or the complainant or part or all of what they each had to say. The issue at the end of the day in a criminal trial is not credibility but reasonable doubt.
[12] I turn now to an assessment of the credibility of the defendants and the complainant. The defendant John Hope testified in detail about the events of the evening of September 24, 2004. He described that once at the door of Ms. Silver’s residence with the defendant Galloway, he knocked on the door and when there was no response Constable Galloway left to check around the side of the house. Constable Hope knocked again and Ms. Silver opened the door, and with her hand on the doorjamb asked “What the f--k do you want?” As the defendant explained why he was there, Ms. Silver replied she didn’t know “any f--king Elizabeth Glasgow”, which evidence I note was corroborated both by the crown’s civilian witnesses who were inside the house and by the crown’s R.C.M.P. witnesses who were outside the doorway. Constable Hope testified that he quickly determined that verbal efforts were unlikely to produce compliance by Ms. Silver. He felt he needed to arrest Ms. Silver to prevent a further commission of an offence by her, and so he advised Ms. Silver two times that she was under arrest and then touched her sleeve, whereupon Ms. Silver began her retreat into the residence, causing him to determine he would have to move from verbal to physical tactics to restrain Ms. Silver. Constable Hope crossed the threshold to control Ms. Silver’s movements, to prevent her from retreating into the residence with which he was unfamiliar, and to handcuff her. At that point he was joined by the defendant Galloway who assisted him in trying to restrain and cuff the physically non-compliant suspect. In cross examination the defendant Hope underscored the factors that led him to cross the threshold of Ms. Silver’s home without a Feeney warrant, being that he intended to arrest her if she was located at home, which was a logical place to begin to look for her, and to do so by verbally gaining her cooperation, which was his usual practice when effecting an arrest. The defendant Hope testified he had prior knowledge of Ms. Silver, a description of her clothing, and an expectation that if he found her he would arrest her, take her to booking, and release her on conditions, all without the need to enter into her home without a warrant. At the same time, he had no basis to obtain a Feeney warrant because he had no basis to definitively know or believe (as he would be required to swear to for a warrant) that Ms. Silver was definitely inside the home.
[13] With respect to the later events inside the cell, the defendant Hope testified he did not see Ms. Silver kicking Special Constable Waye, but he saw both the defendant Galloway and Special Constable Waye physically attempting to force Ms. Silver to roll over so her handcuffs could be removed, but to no avail. In applying his knowledge of the use of force training model, the defendant Hope made a quick decision that the warning display of the tazer unit was the only remaining tool to try to effect compliance and he believed, based on prior experience, it would be enough. When that failed, and believing that alternate methods of physical pain compliance were unsuited to the physical situation and might injure Ms. Silver and/or the officers, he applied the tazer unit to Ms. Silver three times, deciding that the third time would be the last, which did prove successful in gaining Ms. Silver’s compliance.
[14] During the trial, I noted that the defendant Hope answered all questions put to him in a straightforward and logical manner. His responses bore an air of reality and reasonableness. He did not shy away from, hesitate, or appear vague or overly defensive in response to any aspect of the cross examination. Indeed, much of the defendant Hope’s evidence as to events at the Silver home and at the police station was corroborated by the evidence of crown witnesses, other than Ms. Silver, who were present at the home and the police station, and also by the evidence of the co-defendant. His evidence was in sharp contrast to that of the alleged victim on two material points: first, Ms. Silver maintained the defendant Hope barged into her home, crossed the threshold without reason and grabbed her without effecting an arrest and without a warrant to enter. Secondly, Ms. Silver maintained the defendant Hope had a premeditated plan to administer the tazer to her regardless of the circumstances in the cell, where she was in any event compliant with commands to the extent that the use of the tazer was unnecessary. On the whole, I found the defendant Hope to have been a credible witness. I must say that it was very unfortunate that Constable Hope would make the gratuitous comment that I find he did utter to Catherine Silver at the residence to the effect that, “This is what happens when you have drug dealers in your house”. However, I’m not convinced that the attitude he displayed with that comment renders the whole of his evidence unreliable. In the same manner, it seems troubling that Constable Hope would have his hand on the tazer unit secured on his belt virtually as he reached the cell door. That timing raises the question as to whether he had prematurely decided that administering the tazer would be necessary, before he had time to adequately assess the events inside the cell. In considering the evidence of crown witnesses Special Constable Waye and Commissionaire Janssen as to the events inside the cell and the need for intervention and assistance by other officers because of Ms. Silver’s level of non-compliance, I accept that the events in the cell resulted in Constable Hope making a judgment call to use the tazer.
[15] The defendant Mark Galloway’s evidence was in a great many respects corroborative of that of the co-defendant Hope, and in the same vein, similar to that of most, if not all crown witnesses with the exception of the complainant. Like his co-defendant, Constable Galloway answered all questions put to him in a logical and straightforward manner and his responses bore an air of reality and reasonableness. His evidence as to the events at the Silver residence and specificially, that he moved to the side of the house and returned to see Constable Hope struggling with Ms. Silver inside the threshold, is corroborated by Constable Hope and went unchallenged in cross examination, and uncontradicted by the evidence of the crown, save that of the complainant. The defendant Galloway did not back away from or appear to try to minimize his actions in requesting that Constable Hope employ the tazer unit inside the cell area. However, I was troubled both by the fact that he asked Constable Hope to use the tazer, and that his request, inside the cell, came shortly after his earlier introduction of that very notion to Ms. Silver while they were at the booking counter. The contents of the video clearly record that Constable Galloway warned Ms. Silver his partner had a tazer, that she ran the risk of being tazed and that Constable Hope would have to use the tazer on her. In this respect the video corroborates Ms. Silver’s evidence that she was warned by Constable Galloway that his partner had a tazer and she was going to get tazed, which I took to be, given its tone and the circumstances, in the manner of a warning to Ms. Silver. Does that portion of the evidence reveal a predisposition or predetermination by the defendant Galloway that he planned to tazer Ms. Silver regardless? Possibly so; but the evidence of crown witnesses Special Constable Waye and Commissionaire Janssen overshadow any suspicion I may have as I accept what they said about Ms. Silver’s behaviour in the cell, and the level of force required to respond to it. Constable Galloway’s premature introduction of the potential use of the tazer on Ms. Silver raises the question whether, as Ms. Silver maintains, there “was always a plan afoot” to taze her. I am not convinced on the whole of the evidence that such was the case, although I am left with a suspicion as to whether the defendant Galloway had predetermined at the booking area what level of force should be exerted against Ms. Silver, which was not, in my view, at that moment in the booking area, a reasonable application of the continuum of force model in which he had been trained.
[16] I turn now to the matter of the credibility of the complainant Suzanne Silver. Regarding the events at the booking counter of Halifax Regional Police Service, the contents of exhibit number 4 (the videotape) and exhibit number 5 (the enhanced audio portion) reveal a scenario in sharp contrast to what Ms. Silver described to the court. In her evidence Ms. Silver described herself as being “really mad” by the time she arrived at booking, due to taunting by Constable Galloway during the 20 minute drive from her home. She stated that at booking she was searched by two females and was yelling at Galloway. In cross by Mr. Duncan, Ms. Silver agreed she had argued with Galloway and she said she was told if she didn’t shut up she would be tazed, but she didn’t think she would be. In cross examination by Mr. Bright she agreed she had been cursing and swearing but denied being out of control, and went on to opine that she believed Constable Galloway was provoking her and she was sure he wanted her to hit him.
[17] I find that the videotape of events at the booking counter provides dramatic and revealing insight into the demeanour of Ms. Silver on the evening of September 24, 2004. It depicts an individual who was exceedingly loud and aggressive in her tone of voice. Ms. Silver was alternately degrading, challenging, defying and taunting Constable Galloway during the string of vitriol and profanity she hurled his way. Surely her presentation would have tried the patience of any trained professional under the circumstances. If that portion of Ms. Silver’s contact with the defendants was the only evidence or gauge available to me to assess whether there was any level of cooperation on her part either at her residence or inside the cell, this court would be most hard pressed indeed to accept that Ms. Silver displayed an attitude and manner of conduct that left police unjustified in their decision to arrest her, to remove her from the residence with force, and to administer the tazer once inside the cell. However, the assessment of the credibility of the complainant’s conduct does not rest on the contents of the video alone.
[18] The court had the opportunity to listen carefully to the viva voce evidence of Ms. Silver. I noted that evidence included a considerable number of inconsistencies, both with respect to differences between her examination in chief and her cross examination, and also internal inconsistencies contained within the cross examination itself. The following examples are not intended to be an exhaustive list of those inconsistencies, but rather an illustration of the type of evidence that led me to such a conclusion.
[19] Ms. Silver told the crown that when the police arrived at her residence on the evening in question she heard the ringing of the doorbell and banging on the front door and she went to the door in the belief that it was a curfew check being conducted as a result of her conditions of release. She could see the uniformed police officers through a window in the doorway and they asked her to open the door. She touched the handle and the defendant Hope suddenly pushed in the door and grabbed her arm and then both defendants “went nuts”. As Ms. Silver looked out the window she could see the two defendants and the R.C.M.P. officers behind them. Ms. Silver stated that the door was “probably locked” when she reached it and she was going to open it when the defendant Hope pushed in and grabbed her arm and because she was “freaked” she pulled back and then the officers stormed in. Ms. Silver told Mr. Carmichael that she “might have grabbed the door to open it” but the defendant Hope grabbed her arm before the door was even open. Ms. Silver said the defendant Hope asked her if she knew Elizabeth Glasgow and she told him she did not know any Elizabeth Glasgow, and following that both defendants came into the home and grabbed her and threw her face first into a corner. As the defendants were going to handcuff her, the other occupants of the home arrived and as a result Ms. Silver could “see the R.C.M.P.’s jaws dropping”. Ms. Silver described Constable Hope as having a “crazed look” and both defendants as “pumped” and “angry”. When the officers asked her if she wanted her shoes or wanted to go barefoot, Ms. Silver indicated she wanted her shoes and her sister went to retrieve them. Then, as soon as Ms. Silver was out of sight of the R.C.M.P. and took two steps, the defendants jumped upon her and said she had to leave the residence. At that point in her evidence, Ms. Silver spontaneously opined that “the whole thing was set up quite well”. She testified the officers put her face first into another corner, all the while getting “rough and rowdy”, and dragged her out in handcuffs, whereupon she was pushed down two steps and landed on her mother’s van. She described that during the drive to booking, the defendant Galloway taunted her in an effort to make her mad, but she was already mad because of the events at her home.
[20] On cross examination by Mr. Duncan, counsel for the defendant Hope, Ms. Silver was asked whether she knew that a Mr. Vincent Hurst had entered the witness protection program on September 24th, 2004 when she was present in a courtroom. Ms. Silver agreed that Mr. Hurst had entered the program that day but testified that she had “no idea”; she later contradicted this evidence when she advised that she had learned on that same day that Mr. Hurst was in a witness protection program, and further that one of the police in court on that day told her “he wouldn’t be coming back”.
[21] In the same cross examination she was asked by Mr. Duncan whether she would agree that she did not know whether she had opened the door to the officers, and Ms. Silver replied that she did not open the door but might have turned the handle to the door. When challenged on her prior November 2004 statement to the police wherein Ms. Silver had indicated “I don’t know if I opened the door...I could have...I don’t know”, Ms. Silver maintained that at the time of that statement she was referring to having opened the door a crack, having unsealed the door as opposed to opening it. Nonetheless, this was clearly contradictory to her direct evidence on the point.
[22] On behalf of the defendant Galloway, Mr. Bright questioned Ms. Silver about the contents of her complaint Form 5 wherein she had indicated to investigators that when she arrived at the door of the residence the defendants had already opened it; she was unsure who opened the door and unsure whether she had turned the knob, but the defendants had opened it. Ms. Silver agreed with Mr. Bright that the form was prepared a month after the incident occurred and when she was challenged about whether what she had said in that report was untrue, Ms. Silver indicated with emphasis that her evidence was that she was not clear about who opened the door. Again Mr. Bright challenged Ms. Silver that on October 22nd, 2004 she had said the police opened the door and now her recollection was different. Ms. Silver clarified that by maintaining that her recollection was really not any different because she did not open the door and she had no question about that in her mind. At that point in the evidence, I took it that Ms. Silver was then rejecting what she earlier told to Mr. Duncan on cross and maintaining what she had said to Mr. Carmichael on direct.
[23] Mr. Bright also challenged Ms. Silver about page 14 of her statement of November 8th, 2004 wherein she indicated “I don’t know if I opened the door or not; Mom kept asking me...I could have opened the door but I’m not sure because I didn’t think it would be a big deal”. Ms. Silver agreed that the passage was accurate as recited by Mr. Bright and had been recorded shortly after the incident occurred. When challenged as to whether that was inconsistent with her October 22nd statement that the police had opened the door, Ms. Silver clarified her evidence by indicating that the police had “pushed through, busted in, they might not have opened it, I guess I said it yeah”. When pressed, in light of that response, as to whether her viva voce evidence was untrue, Ms. Silver maintained that it was “slightly mistaken”. Clearly this portion of her evidence reflected both a contradiction between two prior out-of-court statements and her viva voce evidence to the court, and was also a retraction in part of her earlier viva voce evidence.
[24] Ms. Silver then agreed with Mr. Bright that when she came to the door she could see that the police outside the door were not leaving and they were saying something, so she knew they wanted to talk to her. I note this evidence was in complete contradiction to Ms. Silver’s earlier evidence on the point, both on direct and in that portion of the cross examination conducted by Mr. Duncan. Mr. Bright’s line of questioning then continued with Ms. Silver indicating that she did not know what the officers were saying but she knew that they had never said anything about Elizabeth Glasgow, which was in contradiction with her evidence on direct examination, her evidence in cross examination by Mr. Duncan, and later, also in contradiction with her evidence on the same cross examination by Mr. Bright, wherein she agreed with Mr. Bright that it was possible that the police told her she was under arrest for uttering a threat to Elizabeth Glasgow and she could have said in response “I don’t know any f--king Elizabeth Glasgow”. I note that very same possibility, as she was prepared to concede it, was clearly confirmed as having occurred according to the evidence of Ms. Silver’s mother, sister, friend and the two R.C.M.P. officers - all of whom testified for the crown - and the evidence of both defendants.
[25] I thought it rather telling about the quality of Ms. Silver’s responses when she denied to Mr. Bright that she was violent, which response was in contradiction to her criminal record as established during the examination of Mr. Duncan, which record included, among other offences, convictions for obstructing a peace officer, assault of a peace officer, and resisting a peace officer.
[26] I had the opportunity to consider not only the nature and quality of Ms. Silver’s evidence, but also to note her demeanour, which factor is not in and of itself determinative on the matter of credibility, but which is nonetheless sometimes of assistance to the court in reaching its conclusions. Throughout the examination in chief Ms. Silver conducted herself on the whole in an appropriate and predictable manner; that is to say, she listened to the questions asked, provided detailed, responsive and non-cyclical answers, and generally demonstrated an unremarkable demeanour. The only exception to that was when several times Ms. Silver uttered some spontaneous remarks, in what I took to be the spirit of editorial additions to the questions put to her, and each of those commentaries was clearly intended by its content to acscribe malice of motive to the defendants.
[27] By contrast, Ms. Silver was frequently evasive, argumentative, and challenging of counsel during cross examination. More than once she was noted to be smirking or laughing, apparently at those moments when perhaps she perceived counsel might be trying to point her in a direction she did not want to go or were getting the better of her. As Mr. Duncan’s cross examination wound down, Ms. Silver grew increasingly saucy and visibly frustrated, launching several times into spontaneous speeches at the end of or in place of answers to questions.
[28] On the whole, I formed considerable reservations about the veracity of Ms. Silver, as it seemed that her evidence was tainted or overshadowed by a desire or zeal to incriminate the motives and actions of the defendants, perhaps at the price of her own accuracy. The strong message she clearly wanted to convey as to the depth of her outrage over the events and the actions of the defendants possibly coloured her recollections, because her evidence was frequently at odds with or in direct contrast to that of other crown witnesses, including her own family members and her friend.
[29] I consider next how the determinations of credibility of the complainant and the co-defendants fits in the context of all the evidence before the court. I will address first the events at the residence, pertaining to count number one. With respect to the actions of both defendants, I accept their evidence that each was familiar with Ms. Silver as a result of prior police work. While Constable Galloway knew more of the history of Ms. Silver and her associates, he shared that information with Constable Hope as they travelled to the Silver residence. As a result of information from dispatch, both were aware of the cautions about Ms. Silver’s propensity to violence; both knew that Ms. Silver was under conditions that restricted her liberty as a result of pending charges; both knew she had a history of violence with the police, and both knew she had previous weapons offences and associated with persons known to the police. The defendants arrived at a relatively remote residence which was at best dimly lit, if at all. Both defendants had formulated reasonable and probable grounds to believe Ms. Silver had been involved that evening in the offence of uttering threats at the home of the mother of a man with whom Ms. Silver was known to associate, whom both defendants knew had entered a witness protection program on that very day. Both defendants had received a prior briefing as to the heightened concern for the mother of that associate. The defendants chose to brief the R.C.M.P. before the four officers approached the Silver home in the hope of locating Ms. Silver, with an ultimate goal of arresting her.
[30] Once there, Constable Hope initiated contact with Ms. Silver. I found the evidence of Ms. Silver very confusing as to where the arm she used to open the door was located relative to the door itself, and whether she actually opened the door at all, opened it merely a crack, or opened it to some greater extent, as she suggested all three scenarios at various points in her evidence. Clearly some sort of signal brought Ms. Silver from downstairs up to the front door. Crown witness Constable Hamel’s evidence was that the officers may have both rung the bell and knocked when they reached the door. Constable Hamel testified she saw Ms. Silver open the door a foot, or possibly halfway, but in any event close enough for someone to touch Ms. Silver. Constable Hamel heard one of the defendants ask if the woman at the door was Suzanne Silver and when that woman said yes the defendants said she was under arrest for threatening Elizabeth Glasgow and Ms. Silver replied that she didn’t “know any f--king Elizabeth Glasgow”. The officers then entered the foyer to cuff Ms. Silver and she resisted and struggled with them. At that point the R.C.M.P. officers moved up to the doorway. The evidence of crown witness Constable Stevens was consistent with that of Constable Hamel, although Constable Stevens could recall the door was opened initially a foot wide by Ms. Silver, but then opened wider, which gave Constable Stevens a better view of Ms. Silver. Constable Stevens heard Ms. Silver say she didn’t know Elizabeth Glasgow, before the defendants entered the residence through an opening “wide enough for them to walk through”. From the evidence of all crown witnesses present at the doorway, with the exception of Ms. Silver, coupled with the evidence of each defendant, it is clear on the whole of the evidence that Ms. Silver opened the door to the officers present, wide enough at least to allow them to view her and to engage in conversation. I do not accept that either of the defendants opened the door of the Silver residence. I note also that to varying degrees of clarity and detail, all three other crown witnesses present in the home that night gave evidence they heard a knock at the door and/or ringing of the doorbell, all heard a male voice ask for Suzanne Silver, all heard discussion at the door about one Elizabeth Glasgow and Ms. Silver’s denial of knowledge of that person, and all three witnessed a struggle between Ms. Silver and the defendants as they tried to handcuff her inside the doorway.
[31] The evidence of both R.C.M.P. officers as to the events at the threshold of the Silver residence is consistent in many detailed respects with the evidence of each defendant, with one distinction. Both defendants maintain that Constable Galloway had moved away from the door after the first round of knocking in order to look for lights elsewhere in the residence, and he returned to see his partner Constable Hope struggling to cuff Ms. Silver inside the doorway, at which point he intervened to assist. Constable Galloway maintained in his defence that he was coming to the aid of Constable Hope as per the principles enunciated by the Supreme Court of Canada in R. v. Cluett (1985) 21 C.C.C. 3d, 318 which established that police are justified in using force, provided not excessive in the circumstances, to arrest someone where there are reasonable and probable grounds to believe that person is assaulting another officer. I accept that was the case as to Constable Galloway’s actions. Constable Galloway’s evidence and the evidence of Constable Hope as to where Constable Galloway was when Constable Hope made contact with Ms. Silver went unchallenged. Where it differed from that of Constable Hamel and Constable Stevens, I accept the evidence of each defendant on the basis that they were present at the residence hoping to be able to locate and arrest Ms. Silver and so would have been in a better position to pay particular note as to when and how they first saw Ms. Silver, as opposed to the two officers at the bottom of the stairs, one of whom (Constable Hamel) had difficulty recalling certain details in her evidence, and one of whom (Constable Stevens) was farthest away from the door.
[32] I accept the evidence of Constable Hope as to what he said to Ms. Silver after she opened the door: his identification to her as to why he was there and with what alleged offence she was being charged. His evidence on that point was supported in part or whole by the evidence of crown witnesses Suzanne Silver, Catherine Silver, Shelley Silver, Leanne Negus and both R.C.M.P. officers.
[33] Where the evidence of Constable Hope as to the events at the door, leading to the arrest of Ms. Silver, differs from the evidence of Ms. Silver, I accept the evidence of Constable Hope and I am left in no doubt that the arrest was a lawful one. I do not, on the facts, accept the crown’s assertion that the officers should have obtained a warrant after they determined Ms. Silver was in the home. The defendants may have hoped that Ms. Silver would be home, and checking her residence was an obvious early step in locating her, but once that fact materialized, the immediate ferocity of Ms. Silver’s replies, her obvious lack of cooperation and Constable Hope’s concern for the safety of Elizabeth Glasgow dictated that he make a quick decision about gaining her cooperation in the arrest process. As a result of Ms. Silver’s words, combined with what he knew about her it is not surprising, and in my view given Constable Hope’s training, indeed entirely reasonable that Constable Hope determined very quickly that things were unlikely to proceed smoothly such that he could expect Ms. Silver to calmly cooperate with the arrest process. Ms. Silver opened the door and the defendant Hope was within reach of her; she was using profanity as he told her why he was there, and he had a heightened sense of safety concerns based on his previous information about her. The home had been to that point poorly lit and Constable Hope had no idea who else might be there. In that moment, I am satisfied, he determined that Ms. Silver was a person upon whom he had to lay hands, applying the lower end of the continuum of force scale to obtain compliance, all after he had pronounced the words of arrest. Constable Hope placed his hand on Ms. Silver’s sleeve. From there, it is entirely clear from the evidence of all crown witnesses then present, with the exception of Ms. Silver herself, that she demonstrated a level of noncompliant, uncooperative, and by times combative resistance that necessitated both defendants to make repeated physical contact with her in their efforts to remove her from the home and de-escalate the situation. I am not persuaded there was a premeditated plan by the defendants to arrest Ms. Silver inside the home, without a warrant.
[34] I turn now to the evidence in relation to count two. The first issue to be considered is whether the tazer used on Ms. Silver constitutes a weapon. The second issue is whether the force applied in using the tazer was excessive or whether it could be said to be justified by the application of section 25 of the Code. Defence witness Sergeant Dean Steinburg of the Halifax Regional Police was qualified as an expert to give opinion evidence with respect to use of force training standards for municipal police forces, and in particular the Halifax Regional Police Service, including but not limited to the use of the tazer device. He testified that the tazer is an instrument approved by those officials charged in this province with the responsibilities of: (a) identifying approved methods of control to be employed by the police, (b) identifying the standards to be applied in the use of such items and (c) implementing training in the use of the items. It would seem then that in that respect a tazer can be said to be no different than a gun, despite their very different results when used, and despite the differences in circumstances when their use can be said to be justified, appropriate or necessary. It is not the function of this court to question or even comment upon the wisdom of the determination of the use of tazers as an intermediate weapon in policing. It is clear from both the examination and cross examination of Sergeant Steinburg that those officials responsible for developing, approving, implementing and monitoring parameters for the use of “an intermediate weapon” such as a tazer have already determined, as is within their purview and authority to do, that there are occasions upon which a tazer may be reasonably employed by police to gain compliance. It is not the task of this court to second-guess or adjudicate upon the merits of such decisions. In my view, then, the tazer can only be said to be a weapon in the same manner in which any other or otherwise benign instrument might become a weapon as defined in section 2 of the Criminal Code if used under certain circumstances. For example, the telephone, which obviously has a particular accepted function and purpose and is not a weapon per se, nonetheless is an instrument which it is known unfortunately and all too frequently becomes a weapon in domestic assaults. The only circumstance under which the tazer used by Constable Hope could be said to constitute a “weapon” pursuant to section 267(a) would be if the court is satisfied that the defendants or either of them, in the circumstances of this case, acted unlawfully in employing it to injure, threaten or intimidate Ms. Silver, thereby applying unreasonable or excessive force to her.
[35] Sergeant Steinburg spoke at length about the continuum of force model used to train police officers, including the defendants (exhibit number 10 in the trial), and also about the Halifax Regional Police Service’s standard operational police and procedure regarding resistance and control levels (exhibit number 11 in the trial). He confirmed that both defendants were trained in the use of force model and referred to the specifics of their respective training histories (exhibit number 12 in the trial for Hope; and exhibit number 13 in the trial for Galloway). With respect to the continuum of force model, it was clear from the evidence of Sergeant Steinburg that a properly trained officer would, in applying that same model, have to treat its application in a dynamic as opposed to static fashion, constantly re-assessing the situation presented and moving forward or backward along the continuum as the situation unfolded and progressed. While the evidence of Sergeant Steinburg was certainly helpful in understanding the considerations that need to enter into the decision by an officer to employ any intermediate weapon, nonetheless it is ultimately for the court to decide whether to accept the evidence of the defendants as to if and how they employed the model in the circumstances of this case. Sergeant Steinburg’s evidence clearly established the information and training standards delivered to the defendants, but whether the defendants applied that training to the situation with Ms. Silver is inextricably linked to both the court’s assessment of credibility of the witnesses and its determination as to whether the defendants acted reasonably under the circumstances at the Silver home and in the cell area of the police station.
[36] In R. v. Hannibal (2003) B.C.P.C. 0504, the court considered the actions of an officer charged with an offence contrary to section 267(a) who employed a tazer without warning upon an individual already being successfully restrained and controlled by three other officers. After considering section 25 of the Criminal Code and canvassing several decisions, Challenger, P.C.J. stated at paragraphs 142 - 144 of the decision:
It is trite to say that a police officer or anyone reacting to a situation in which force is required cannot be expected to measure the level of force used with exactitude.
In determining whether excessive force was used, it is the reasonable belief of the officer in all the circumstances as they existed at the time, which belief must be justified by the facts at the time. The reasonableness of the officer’s belief must be subjectively held, as well as objectively reasonable.
The court is not bound to accept or approve of the actions of officers merely because they acted within police determined guidelines. However, this is clearly one of the circumstances that must be considered in determining the reasonableness of the officer’s belief and actions.
[37] This passage is a helpful and succinct statement of the test that must guide this court. Again, it emphasizes that the question of the reasonableness of the decisions made and actions taken by both defendants in this matter must be considered in the context of the events as they occurred, and the existence of police guidelines cannot, in and of itself, be the sole justification or defence to those actions. In light of that test, I consider the evidence of crown witness Commissionaire Janssen that she was familiar with Ms. Silver from previous contact and Ms. Silver was acting toward her and Special Constable Waye in the same aggressive and belligerent manner that Ms. Janssen had experienced with Ms. Silver on other occasions. Ms. Janssen rated Ms. Silver as a “ten out of ten” as an aggressive prisoner. The witness saw Ms. Silver refuse to comply with commands once inside the cell. She saw Ms. Silver, on her back, pedal-kicking Special Constable Waye; she saw Ms. Silver grasping Special Constable Waye’s shirt pocket while still handcuffed; she heard Ms. Silver utter a threat to Special Constable Waye to kill Special Constable Waye and to kill her at a later time; she saw Constable Galloway trying to assist Special Constable Waye in physically restraining Ms. Silver’s efforts to impede the officers’ removal of the handcuffs. Commissionaire Janssen saw Constable Hope enter and heard him warn Ms. Silver to comply with the other officers’ requests or he would taze her. Commissionaire Janssen heard the warning sound of the clicking tazer, and she heard it used twice on Ms. Silver, with Ms. Silver yelling the entire time, until compliance was gained with the third application.
[38] The evidence of Special Constable Waye corroborated in detail what Commissionaire Janssen said about events taking place inside the cell, with the exception that Special Constable Waye never actually saw the tazer device nor was she aware as to when, after Constable Hope’s warning, it was applied to Ms. Silver. Having spontaneously described Ms. Silver as a “nine out of ten” in aggressiveness, I consider it not surprising that Special Constable Waye was unaware as to exactly where Ms. Silver had been tazed given “...there was so much commotion and her screaming in my face...”. The contents of the audio portion of exhibit number 4 and of exhibit number 5 clearly establish that there was a great deal of yelling going on in the cell area, and despite the din, a female voice or voices can clearly be heard yelling “turn around” on one occasion and “roll over” on two occasions, which I inferred to be the loud verbal commands Special Constable Waye, Commissionaire Janssen and both defendants testified were given to Ms. Silver to try to have her cooperate in the process of removing the handcuffs.
[39] By contrast, the evidence of the complainant was that she went willingly into the cell, she was agitated and called one of the two females “a bitch”, she never threatened anyone, she was on her stomach, she was held down by Constable Galloway and the smaller female upon the command of Constable Hope, there was a plan afoot to taze her, she never struggled in any way prior to being tazed, and she ended up with tazer marks on her arms and legs, along with multiple bruises. Ms. Silver acknowledged to counsel for the defendant Hope that she was “pissed off all around” and “furious”, but denied she was warned by Constable Hope before being tazed and maintained that as he tazed her Constable Hope was “getting off on it”. Ms. Silver acknowledged to counsel for the defendant Galloway that it was possible she had been asked to bend or lean or lay on the bed to have the cuffs removed, but she maintained there was no time for that before the tazing occurred, and she denied she wrestled with officers because she was seated, which I note contradicted her own direct evidence on the same point. Ms. Silver was certain nobody’s clothing was torn while in the cell, and she strongly maintained that she based both that and her sense of the immediacy with which she was tazed not upon her own recollection, but rather upon having viewed exhibit number 4 during the police investigation of her allegations.
[40] The defendant Hope denied intending to use the tazer as he entered the cell; it was only when he saw the problems Constable Galloway and Constable Waye were having for 10 to 15 seconds that he removed the probes and displayed the tazer. Constable Hope maintained that given Ms. Silver’s location, the cramped quarters, the presence of others and extent of Ms. Silver’s non-compliance, he had determined to use the tazer “for pain control”, even though he arrived approximately eight seconds after Ms. Silver and three seconds after Constable Galloway and he started to reach for the tazer two seconds after that. Constable Hope maintained that based on his training and experience, he had determined the tazer to be the safest and most effective item available to him to gain compliance by Ms. Silver for the benefit of his fellow officers.
[41] The evidence of the defendant Galloway is the same or similar to that of Commissionaire Janssen, Special Constable Waye and Constable Hope in numerous respects. Constable Galloway testified he was kicked by Ms. Silver and had her by the ankles and asked Constable Hope to tazer Ms. Silver because, like Constable Hope, he believed it to be the safest and most reasonable technique to apply under the circumstances as they existed. Constable Galloway did not feel other recognized pain compliance techniques could be employed in the narrow confines of the cell without causing serious injury to Ms. Silver. Like Commissionaire Janssen, he did not see the warning demonstration of the tazer or see it being used because his efforts were focused at controlling Ms. Silver. Constable Galloway agreed with the crown attorney Mr. Carmichael that things happened in a very short time frame.
[42] Section 25(1) of the Criminal Code provides that a peace officer and anyone assisting, acting on reasonable grounds, is justified in doing what is required or authorized with as much force as is necessary, in aid of the administration or enforcement of the law. I accept that Special Constable Waye and Constable Galloway, charged with authority as peace officers (as defined in section 2 of the Code) were attempting to have Ms. Silver’s handcuffs removed for Ms. Silver’s own safety and as policy vis-a-vis prisoners required them to do, and all the while Ms. Silver resisted and assaulted them. I am satisfied that under the circumstances as they existed at that time, both defendants reasonably believed that Ms. Silver was assaulting Special Constable Waye and resisting all reasonable efforts to gain her compliance to have the handcuffs removed. I accept that both defendants acted both in aid of their fellow officers and in order to gain the necessary level of compliance by Ms. Silver. Had Ms. Silver behaved differently and cooperated and yet still been tazed, that would have been entirely another matter and no doubt would have led this court to a different conclusion about the reasonableness of the application of such force.
[43] In conclusion, I perceive that it would be unrealistic and perhaps even naive to think that the defendants offered Ms. Silver white glove treatment throughout their dealings with her on September 24, 2004. Comments such as those made by the male voice heard on exhibit number 4 commenting “she’s trash”, which I infer to have been a reference to Ms. Silver, do nothing to alleviate the court’s suspicions about the attitude that may by times have been displayed toward or concerning Ms. Silver on that evening. The defendants, or either of them, did not have license simply by virtue of their position to subject Ms. Silver to excessive force merely because she was disagreeable or uncooperative. However, in terms of the defendants’ subjectively held beliefs, they each had previous knowledge of Ms. Silver, and unfortunately the attitude she displayed at the residence and at the booking counter presumably did nothing to alleviate or dispel their concerns. The defendants likely brought certain attitudes to bear on the situation, as did Ms. Silver herself. Nonetheless I accept that they ultimately acted reasonably, under all of the circumstances, in applying the force they did, both in the cell and earlier at the residence.
[44] Obviously, conviction of a criminal offence cannot be grounded in suspicions and indeed, were this a matter analyzed on the civil burden of proof on a balance of probabilities, I might well have come to a different conclusion. However, I have a reasonable doubt about the complainant’s evidence as to how the arrest was effected, how and why the defendants entered her home, and as to the events inside the cell, which evidence departs markedly from that of other crown witnesses on critical or key points.
[45] I am satisfied that the whole of the evidence which I do accept supports that Ms. Silver was lawfully arrested and each defendant was lawfully inside the Silver residence where they reasonably applied only such force as was necessary to properly execute their lawful duties.
[46] I am further satisfied that once inside the cell with Ms. Silver, each defendant was acting to assist their fellow officers and reasonably applied only such force as was necessary to gain the compliance of Ms. Silver.
[47] Accordingly, I find each defendant not guilty on both counts.
PCJ