



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Doering, 2021 ONCA 924

DATE: 20211222

DOCKET: M53009 & M53015 (C67952)



Fairburn
A.C.J.O. (Motions Judge)



BETWEEN

Her
Majesty the Queen

Respondent

and



Nicholas
Doering



Appellant

Alan D. Gold, for the appellant

Jamie Klukach and Samuel Greene, for
the respondent

Joseph Markson and Kate Robertson, for
the proposed intervener, the Police Association of Ontario

Michael Lacy and Philip Wright, for the
proposed interveners, Canadian Police Association and Toronto Police
Association

Heard: December 16, 2021 by video conference



ENDORSEMENT

[1]

These reasons pertain to two applications
brought pursuant to r. 30 of the
Criminal Appeal Rules
, Court of
Appeal for Ontario, for leave to intervene in an appeal from conviction:
R.
v. Doering
, C67592, reasons for judgment reported at 2019 ONSC 6360. The
appeal is scheduled to be heard February 9, 2022.

[2]

The appellant is a police officer who was tried
in a judge-alone trial in the Superior Court of Justice. He was convicted of
two offences, both of which were said to have occurred in the course of his
duties: (1) criminal negligence causing death, contrary to s. 220(b) of the
Criminal
Code
, R.S.C., 1985, c. C-46; and (2) failing to provide the necessaries of
life, contrary to s. 215(2)(b) of the
Criminal Code
.

[3]

In response to multiple 9-1-1 calls, the
appellant was dispatched to a location where a woman, Ms. Debra Chrisjohn, had
been seen behaving erratically. It is not in dispute that Ms. Chrisjohn had
ingested a great deal of methamphetamine. Nor is it in dispute that the degree
of toxicity in her body was such that she ultimately succumbed to a heart
attack.

[4]

When he arrived on scene, the appellant placed
Ms. Chrisjohn in the back of his police vehicle. He eventually drove Ms.
Chrisjohn to another location and placed her into the custody of a different
police service that had an outstanding warrant for her arrest. Ms. Chrisjohn
died while in the custody of the other police service.

[5]

The defence conceded at trial that Ms. Chrisjohn
needed medical assistance while she was in the appellants custody and that the
failure to get her that assistance endangered her life. Despite that
concession, the defence argued, and the trial judge accepted, that the
appellant did not know or subjectively appreciate that Ms. Chrisjohn needed
that assistance.

[6]

Therefore, one of the primary issues in dispute
at trial was whether the appellants conduct amounted to a marked departure (or
a marked and substantial departure for purposes of the criminal negligence
count) from the standard of care of a reasonably prudent police officer in the
circumstances. Of course, those circumstances engage a commonplace occurrence
in the world of policing: the interaction between police officers and
individuals in various states of impairment. The trial judge concluded that the
appellants failure to obtain medical attention for Ms. Chrisjohn constituted a
sufficient departure from the standard of care of a reasonably prudent police
officer and that convictions should be entered on both counts.

[7]

The appellant contends that the trial judge made
numerous factual and legal errors when arriving at the conclusion that he was
guilty of both failing to provide the necessaries of life and criminal
negligence causing death.

[8]

There are two applications for intervention
before the court: (1) Canadian Police Association & Toronto Police
Association (CPA/TPA); and (2) Police Association of Ontario (PAO).
Collectively, I will refer to the CPA/TPA and PAO as the Associations. The
appellant consents to and the respondent opposes both applications.

[9]

Multiple criteria inform whether to grant leave
to intervene in an appeal as a friend of the court, including the general
nature of the case to be heard, the issues that arise in the case, and the
contribution that the intervener can make to those issues without doing an
injustice to the parties:
Peel (Regional Municipality) v. Great Atlantic
& Pacific Co. of Canada Ltd.
(1990), 74 O.R. (2d) 164 (C.A.), at p.
167;
R. v. M.C.
, 2018 ONCA 634, at para. 9.

[10]

While it is rare to permit an intervention in a
criminal case unless a constitutional issue is raised, there is no rule against
such interventions. It remains a question of whether the proposed intervener
will make a useful contribution beyond that offered by the parties without
causing an injustice to the parties:
R. v. McCullough
(1995), 24 O.R. (3d)
239 (C.A.), at p. 243.

[11]

The respondent acknowledges the experience and
expertise of the Associations. This is beyond question.

[12]

The CPA represents approximately 60,000 police
service personnel in Canada and about 160 police services. The TPA has about
8,000 members. The PAO represents more than 28,000 uniformed police officers
and civilian employees of municipal police services. All three associations
have developed significant expertise in issues relating to policing, and the CPA
and PAO have previously offered their expertise through interventions in cases
involving issues of import to the practice and regulation of policing. A few
examples suffice:
Hill v. Hamilton-Wentworth Regional Police Services Board
,
2007 SCC 41, [2007] 3 S.C.R. 129;
Ontario (Attorney General) v. Fraser
,
2011 SCC 20, [2011] 2 S.C.R. 3;
Wood v. Schaeffer
, 2013 SCC 71, [2013]
3 S.C.R. 1053;
Peel (Police) v. Ontario (Special Investigations Unit)
,
2012 ONCA 292, 110 O.R. (3d) 536;
R. v. McNeil
, 2009 SCC 3, [2009] 1
S.C.R. 66.

[13]

In my view, the Associations have a real,
substantial, and identifiable interest in the subject matter of this appeal.

[14]

At a granular level, I agree with the respondent
that this is a fact-intensive case. The appellant challenges some of the trial
judges important factual conclusions. Even so, the appellant also directs his
submissions at the legal approach taken by the trial judge, including on the
following issues: (1) the legal approach to what a reasonably prudent police
officer would have appreciated in the circumstances; (2) the determination of
the applicable standard of care in the absence of expert evidence as to the
professional standards applicable to police officers; and (3) the failure to
consider the relevance of a mistake of fact in relation to offences of
objective liability.

[15]

While I accept that it is possible that this
appeal may ultimately turn on certain factual conclusions reached by the trial
judge, specifically as they relate to the interactions between the appellant
and the deceased and other police officers and medical personnel, at this
stage, it is simply too early to know. All that is known with certainty now is
that, given the subject-matter underpinning the convictions in this case, a
police officers criminal liability arising from a failure to obtain medical
attention for an intoxicated individual could have implications for policing in
general.

[16]

The CPA/TPA wishes to advance a number of
arguments that can be collapsed into two overarching submissions: (1) a police
officers on-the-job experience with intoxicated persons should be taken into
account when assessing what a reasonably prudent officer would do in any given
circumstance; and (2) there are important policy, operational, and resource
implications arising from the potential for criminal liability if a police
officer falls below the legal standard of care.

[17]

The PAO wishes to advance submissions on the
following three points: (1) the importance of considering mistakes of fact by a
police officer when determining that officers liability for criminal
negligence; (2) the need to avoid placing undue emphasis on police policy when
conducting a proper reasonable standard of care analysis; and (3) the need for
expert evidence when determining the content of the standard of care exercised
in a professional setting.

[18]

The respondent opposes the interventions on several
bases.

[19]

First, the respondent argues that the applicants
proposed arguments reveal a clear partisanship on the facts and the outcome of
the appeal.

[20]

The respondents position is not without merit.
The CPA/TPAs written argument in particular is riddled with references to the
evidence in this case and, at points, appears to weigh in on the merits. I
agree with the respondent that the CPA/TPA position, as it currently stands,
does not properly confine itself to the legal issues it purports to advance and
that this is problematic.

[21]

The reality is that interveners arguments will
typically support one side or the other. As noted in
Jones v. Tsige
(2011),
106 O.R. (3d) 721 (C.A.), at para. 28: It should scarcely surprise, indeed it
would seem almost the very essence of intervention, that the position to be
advanced by a proposed intervenor would tend to support that of one of the
original litigants and oppose that of the other. Accordingly, the simple fact
that interveners support one side or the other is not in and of itself
inappropriate. The difficulty arises where interveners, as friends of the
court, weigh in on the actual merits of the appeal. No party should have to
face the addition of what are tantamount to other parties opposite. That is the
problem with the CPA/TPA position as it is currently cast. Even so, it is a
problem that can be easily overcome.

[22]

Despite their written argument on this
application crossing the line into the actual merits of the appeal, the Associations
are advancing legal issues that are properly the subject of intervention. In my
view, they can make a useful contribution on those issues while staying
entirely away from the merits of the appeal. I am satisfied that with a
properly crafted order, the interveners will confine themselves to the legal
issues to be addressed, stay out of the facts of this case, and not take a
position on the merit of the appellants position or the actual outcome of the
appeal. Should they fail to comply with that order, as with all interventions,
it will be open to the panel hearing the appeal to disregard the intervention
as unhelpful.

[23]

The respondent also opposes the applications on
the basis that the interveners are proposing to both: (1) expand the issues on
appeal; and (2) repeat what the appellant has already said.

[24]

I do not perceive the interveners to be
expanding the issues on appeal. Rather, they are providing fresh perspectives
on the issues already before the court. This is the
sine qua non
of an
intervention. There are no new legal issues being advanced; only new ideas
about how to approach those issues.

[25]

To the extent that the objection centres on
duplicative submissions, I have reviewed the appellants factum. While there is
some duplication, such as on the point involving the relevance of a mistake of
fact to the
mens rea
of criminal negligence, the submissions are
duplicative only at the most basic level. While the appellant raises the
issues, the Associations expand on them and offer fresh perspectives on how to
approach them.

[26]

The respondent also resists the CPA/TPA
intervention on the basis that the arguments pertaining to strategic policy and
operational demands are not useful and, in any event, impermissibly augment the
record. This submission cannot succeed.

[27]

It is a matter of common sense that there may be
policy and resource implications arising from questions involving the standard
of care associated to situations where police officers are dealing with
impaired individuals. This is not something upon which evidence is required. As
with all cases, the court will not be deciding this case in a vacuum. Interveners
with expert insight into the professional environment at issue may provide a helpful
context within which the appeal will be decided.

[28]

Finally, the respondent argues that the interveners
 all police associations  will create an imbalanced perspective on appeal
owing to the lack of input from other public interest groups who can raise
countervailing policy-based considerations. The fact is that no other public
interest groups sought to intervene on this appeal. Had they done so, those
applications would have been heard at the same time as these ones.

[29]

The interveners have a real, substantial, and
identifiable interest in the subject matter of this appeal. Properly developed
and constrained, their submissions will be relevant and useful to the court. In
my view, no prejudice will be caused to the parties by granting the leave to
intervene applications.

[30]

Accordingly, the interveners are granted
intervener status as friends of the court on the following terms:


I.

The interveners may each file a factum of up to ten
(10) pages in length.


II.

The interveners factums shall be filed not
later than January 7, 2022.


III.

To account for any new arguments that may need
responding to, the respondents factum may be up to an additional 10 pages in
length.


IV.

The interveners shall not raise new issues or
adduce any new evidence.


V.

The interveners shall not supplement the record
or make any submissions on the merits of the appeal.


VI.

The time allowed for oral argument, if any,
shall not be decided until the interveners factums have been filed and
considered.

VII.

There shall be no costs awarded for or against
the interveners on this application or on the appeal proper.

[31]

Applications granted.

Fairburn
A.C.J.O.




