



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nevill, 2013 ONCA 640

DATE: 20131021

DOCKET: M42985 (C57754)

Sharpe J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Nevill

Appellant

David Butt, for the appellant

Greg Skerkowski, for the respondent

Heard: October 18, 2013

ENDORSEMENT

[1]

The appellant, a Barrie Police Service Constable, was convicted after
    trial in the Ontario Court of Justice of assault causing bodily harm,
    fabricating evidence and obstructing justice. He was sentenced to a total of
    one years imprisonment: six months on the assault causing bodily harm count;
    and six months on each of the other two counts, to be served concurrently with
    each other but consecutive to the sentence imposed on the bodily harm count.

[2]

The appellant applies for release pending appeal against both conviction
    and sentence.

[3]

He raises four grounds of appeal:

1.

The trial judge misapprehended the nature and effect of
    the uncontradicted expert evidence and accordingly erred in rejecting it;

2.

The trial judge erred in refusing to permit the expert
    to offer full commentary on crucial actions of the appellant;

3.

The trial judge erred in failing to fully address the
    lawful reasons offered by the appellant for arresting the complainant; and

4.

The trial judge erred in entering duplicitous
    convictions.

[4]

The Crown resists the application for release pending appeal on the
    primary ground that the appeal is frivolous, and on the tertiary ground that it
    would be contrary to the public interest to release the appellant pending
    appeal.

Facts

[5]

The incident giving rise to the charges against the appellant was set
    out in an agreed statement of facts. The appellant was called to investigate an
    incident at a shopping mall. The complainant was a member of a group of four
    individuals, one of whom had jumped on a bench and knocked down a Christmas
    ornament causing it to break. Two security guards found the complainant outside
    the mall. He indicated that he had lost his wallet and that he wanted to
    re-enter the mall to retrieve the wallet. He was told to wait for the police
    who had been called to investigate the vandalism incident.

[6]

The security guards informed the appellant that the complainant was not
    the one who had broken the ornament. The complainant refused to identify the
    culprit to the appellant. After some discussion, a violent altercation ensued
    involving the appellant, the complainant and the two security guards. The
    complainant sustained significant injuries and was taken to the hospital for
    treatment. He was then taken to the police station where he was charged with
    assault with intent to resist arrest.

[7]

The complainants counsel uncovered a video of the entire incident. The Crown
    reviewed the video, determined that there was no reasonable prospect of
    convicting the complainant and, following an independent investigation by the
    Ontario Provincial Police, the appellant was charged.

[8]

The central issues at trial were whether the appellant had grounds to
    arrest the complainant and, if he did, whether he had used excessive force in
    effecting the arrest.

[9]

The video was the critical piece of evidence at the trial. In his
    careful reasons for judgment, the trial judge found that the version of the
    incident recorded in the appellants notes and recounted in his evidence at
    trial was seriously at odds with what was revealed by the video.  The trial
    judge made clear and strong findings of credibility adverse to the appellant

[10]

I
    have reviewed the video. It reveals a sudden and violent attack by the
    appellant on the complainant. It shows the appellant inflicting numerous blows
    to the head and body of the complainant. It also reveals that after the
    complainant was removed from the scene, the appellant instructed the security
    officers to wash away a considerable volume of blood left on the ground as a
    result of the altercation.

[11]

It
    is against that background that I proceed to assess whether the appellant has
    succeeded in demonstrating that the appeal is not frivolous and that he has arguable
    grounds to advance.

Analysis

(i)

Is the appeal frivolous?

Ground 1. The trial judge misapprehended the nature and
    effect of the uncontradicted expert evidence and accordingly erred in rejecting
    it.

[12]

The
    appellant called an expert witness who testified that the appellants conduct
    was consistent with police training. I pause to observe that I find the
    proposition that the appellant's conduct, as revealed by the video, could be
    consistent with police training to be extremely alarming.

[13]

The
    Crown did not call any expert evidence although it had an expert present in
    court when the appellant's expert testified.

[14]

The
    appellant submits that the trial judge erred in rejecting the expert evidence
    and that he should have applied something approaching a presumption of
    correctness, or exercised greater care in rejecting the expert evidence,
    particularly as the Crown failed to call its own evidence.

[15]

I
    see no merit in this submission.

[16]

First,
    I agree with the respondent that there is no presumption of correctness applicable
    to expert evidence and I see no merit in the contention that the trial judge
    was required to draw some inference from the fact that the Crown did not call
    the expert it had attend the trial.

[17]

Second,
    the critical issues of whether there were grounds for arrest and whether the
    appellant used excessive force were questions of law for the trial judge and it
    was entirely open to the trial judge to reject the expert evidence as somehow
    determining those questions.

[18]

Third,
    the trial judge specifically found that the experts evidence was in large part
    based upon the premise that this was a lawful arrest, a proposition the trial
    judge flatly rejected as being inconsistent with the facts as he found them.
    The trial judge also found that even if there were grounds for arrest, the
    force used by the appellant was excessive. That conclusion was inevitable in
    light of what is revealed by the video.

[19]

I
    see no arguable ground of appeal in the manner in which the trial judge dealt
    with the expert witness called by the appellant.

Ground 2. The trial judge erred in refusing to permit the
    expert to offer full commentary on crucial actions of the appellant.

[20]

The
    appellant admitted in his evidence that he had not adopted the physical stance
    recommended for police officers who are dealing with a suspect when they
    anticipate resistance or a confrontation. The appellant submits that the trial
    judge erred in refusing to permit the defence to lead expert evidence to
    explain why an officer might not adopt the recommended stance. Counsel for the Crown
    conceded that it is difficult to deal with this issue without the trial judges
    ruling on the point, but submitted that the evidence would not have assisted
    the appellant as he admitted that he had not adopted the correct stance and
    failed to offer any explanation.

[21]

I
    find it impossible to see how expert evidence on this issue could have assisted
    the appellant. The appellant had every opportunity to explain his failure to
    follow the recommended posture and failed to do so.  In the absence of such an
    explanation, the expert's opinion on why the appellant might not have adopted
    the recommended stance would carry no weight.

Ground 3. The trial judge erred in failing to fully
    address the lawful reasons offered by the appellant for arresting the
    complainant.

[22]

The
    appellant sought to justify the arrest on the grounds that the complainant was
    intoxicated in a public place. While the complainant had been drinking, the
    trial judge found that he was not intoxicated. That finding is not challenged
    on appeal. The trial judge also found that the evidence did not support the
    other essential element to justify an arrest under the
Liquor License Act,
R.S.O. 1990 c. L.19, s. 5, namely, that it was necessary to arrest the
    appellant for the "safety of any person.

[23]

The
    appellant submits that the trial judge erred in failing to consider another
    possible ground for arrest, namely, that the appellant had failed to identify
    himself to the officer. I agree with the Crown that it is apparent from the
    reasons of the trial judge why he did not address that argument: namely, the
    complainant, whose evidence the trial judge accepted, testified that he was not
    asked to identify himself.

Ground 4. The trial judge erred in entering duplicitous
    convictions.

[24]

Assuming
    without deciding that there is some merit that the convictions for fabricating
    evidence and obstructing justice were, in the appellants words, duplicitous,
    I fail to see how this advances the case for bail pending appeal. The sentences
    imposed on those two counts were concurrent and even if one of those counts
    were stayed, the sentence of one year would be unaffected.

Is the appeal frivolous? Conclusion

[25]

In
    my view this appeal is frivolous. The case turned on credibility and the trial
    judge gave careful and detailed reasons rejecting the evidence of the appellant
    and finding that it failed to raise a reasonable doubt. The appellants version
    of what occurred was inconsistent not only with the complainants evidence but
    also with the video. The video evidence is powerful and overwhelming and it is
    impossible to see how the grounds of appeal advanced by the appellant could
    overcome the force of that evidence. Despite Mr. Butt's very capable and
    professional argument, I conclude that the grounds for appeal advanced by the
    appellant fail to surmount the very low threshold required for bail pending
    appeal.

(ii)

Public Interest

[26]

I
    turn to the tertiary criterion, namely, the public interest. I recognize that
    it is highly unlikely that this appeal will be heard before the appellant has
    served his sentence and that the interest of reviewability favours release
    pending appeal.

[27]

Against
    the interest of reviewability I must weigh the interest of enforceability. In
    my view, the interest of enforceability must prevail in the circumstances of
    this case. There is, in my view, no prospect of success on this appeal because
    of the powerful evidence revealed by the video. The appellant unleashed an
    unprovoked and vicious attack on the complainant. As Crown counsel put it, but
    for the video it is entirely possible that an innocent man would have been
    convicted on fabricated charges. The public interest in maintaining confidence
    in the integrity of the administration of justice strongly militates towards
    enforceability in these circumstances.

Disposition

[28]

For
    these reasons, the application for release pending appeal is dismissed.


