Assault Police

R v Davidson

2011 ONCJ 461

R. v. Davidson

2011 ONCJ 461
Ontario Court of Justice — Justice Lesley M. Baldwin | August 19, 2011

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Background

Kyle Davidson was leaving the Sound of Music Festival in Burlington at 2:16 a.m. when OPP Officer Ryan Cox spotted him crossing the street. Cox claimed Davidson made a kicking motion toward his police cruiser, though he admitted he wasn't sure if contact was actually made. When Cox approached Davidson and told him to stop, Davidson responded with "fuck you" and kept walking away.

Cox pursued Davidson, grabbed him, and arrested him. During the struggle that followed, Davidson fell face-down on the sidewalk. Officer Cox and arriving Halton officer Erich Paroshy fought to handcuff Davidson while he was on the ground. Officer Paroshy heard Davidson's arm "pop" but continued applying force until they got the handcuffs on. Davidson sustained a fractured elbow requiring surgery with 11 titanium screws, plus a bloody nose. He was charged with obstructing police under s. 129(a) of the Criminal Code, assaulting a peace officer under s. 270(1)(a), and being intoxicated in public under s. 31(4) of the Liquor Licence Act.

Issues

1. Was Officer Cox acting in the lawful execution of his duty when he arrested Davidson?
2. Did Davidson use reasonable force in resisting what the court found to be an unlawful arrest?
3. Did the police use excessive force during the arrest?

The 'Contempt of Cop' Arrest

Justice Baldwin systematically dismantled every justification the Crown offered for the arrest. The garbage can incident? Cox admitted it had "nothing to do" with stopping Davidson and occurred a kilometer away. The alleged kick to the cruiser? Cox testified "At this point in time that was the furthest thing from my mind" and admitted he didn't know if Davidson had actually kicked anything. Public intoxication? Cox was already chasing Davidson before he smelled alcohol, and Officer Paroshy testified Davidson seemed "impaired but not intoxicated."

The judge concluded the real reason for the arrest was Davidson's belligerent response when told to stop. As Cox himself testified: "The response wasn't positive. Detected an odour of alcohol. At this time, my focus is now, okay, he's a threat to himself." Justice Baldwin found this was arrest for "contempt of cop" — being rude to police — which is not a criminal offence. Since the arrest was unlawful, Davidson's resistance was justified as self-defense.

Excessive Force and Police Conduct

Justice Baldwin found Officer Paroshy used excessive force when he continued applying pressure to Davidson's arm after hearing it "pop." Despite Davidson screaming in pain and complaining about his arm at the station, he wasn't taken to hospital until hours later. The judge noted the officers showed "no empathy" for Davidson's injuries and called their conduct "harsh and callous." She recommended both officers be retrained in appropriate use of force and that copies of her judgment be sent to police leadership and the SIU for review.

Key Takeaway

Police cannot arrest you simply for being rude, swearing, or having a bad attitude.

This case demonstrates that "contempt of cop" is not a valid basis for arrest, and when police act outside their lawful authority, citizens have the right to resist using reasonable force. The decision also shows courts will scrutinize police justifications and hold officers accountable for excessive force during arrests.

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R v Duncan

2013 ONCJ 160

R. v. Duncan

2013 ONCJ 160
Ontario Court of Justice — Justice Fergus O'Donnell | March 26, 2013

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Background

At 2:48 a.m. on December 1, 2011, Matthew Duncan made a right turn onto Slessor Boulevard in Grimsby without signaling. Constables Eles and Pilkington followed him into his apartment building parking lot and demanded identification. When Duncan refused and instead produced a red binder containing "freeman on the land" materials about jurisdiction and fee schedules, the officers arrested him for failing to identify under the Highway Traffic Act. A struggle ensued, Duncan was tasered, and he was charged with assaulting a police officer to resist arrest.

Duncan represented himself at trial and spent considerable time arguing the court had no jurisdiction over him — complete with an "affidavit of truth" that the judge described as internet-derived gibberish that made James Joyce's Ulysses look like easy reading. However, Duncan also claimed he had no obligation to identify himself to police, which turned out to be the key to his defence.

Issues

1. Did the police have lawful authority to demand identification from Duncan?
2. If the arrest was unlawful, could Duncan be convicted of assault to resist arrest?

The Fatal Flaw in the Traffic Stop

The Crown's case collapsed on a careful reading of section 142(1) of the Highway Traffic Act. The officers testified they stopped Duncan for failing to signal his right turn, but section 142(1) doesn't make it an offence to simply turn without signaling. The Act only requires a signal "if the operation of any other vehicle may be affected by the movement." At 2:48 a.m., with no evidence of any other vehicles nearby or being affected by Duncan's turn, no offence had occurred.

Justice O'Donnell found this wasn't a technical defect but a fundamental misunderstanding of the law. Without a lawful traffic stop, there was no authority to demand identification. Without lawful authority to demand identification, the arrest for "failure to identify" was unlawful. And without a lawful arrest, resistance to that arrest cannot be criminal — even if Duncan did assault the officers as they claimed.

Key Takeaway

Police must have lawful authority for every step of an interaction, and an unlawful arrest cannot support a charge of assault to resist arrest.

While Duncan's "freeman" arguments were nonsense, his instinct that police lacked authority proved correct. The case demonstrates that even common traffic enforcement requires careful attention to what the law actually requires, not just what officers think it requires.

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