[MBates]

Originally Posted by Zulu29

Terribly difficult charge to obtain a conviction for.

Especially if it never happened

Seriously though...my first reaction was to say you can't just make things up to fit your argument. Then I figured, why not look up some reported cases on that section before I get mouthy.

Much to my surprise, you might be right...but not necessarily for the reasons I think you had in mind:

https://www.canlii.org/en/on/oncj/do...&resultIndex=4

[216] While Mr. Brown had these painful and debilitating shocks being applied to him, he was struggling and it may have been that at one point his hand brushed against Carroll’s firearm, but I can not be satisfied beyond a reasonable doubt that it was anything other than an involuntary muscle contraction that caused this or simple flailing from the pain and fear that the police caused this man. I am certainly not satisfied, even on a balance of probabilities standard, that he attempted to disarm Sergeant Carroll.

[217] What is more disturbing to me is that the evidence of Sergeant Carroll appears to be given untruthfully and other officers on the scene unwillingly or willingly appear to be a part of this cover up.

[218] Constable Wozny gave evidence that concerned me. Even though she was tasked to be the last one in the room and to act as the observer, she failed to see Constable Egerter punching Mr. Brown in the head on at least five occasions according to Constable Egerter himself.

[219] She says she hears the click of the stage one disengagement of Sergeant Carroll’s firearm, however neither Carroll nor Stapleton, who was immediately beside Carroll, heard this sound.

[220] She went to great lengths to distance herself from her initial evidence given on direct examination that she saw the Taser deployed, but then tried to correct her evidence by saying that she saw it drawn before it was knocked out of Sergeant Carroll’s hand.

[221] Sergeant Stapleton’s evidence concerns me. He was the next most senior officer on the scene and yet he created totally deficient notes and, in my view, at best engaged in wilful blindness as to the actions of Sergeant Carroll in failing to see what the CEW and Use of Force exhibits suggest. He was a qualified officer who would have noticed that the Taser was deployed in full deployment mode upon entry, yet he maintained that this was not the case. I find this troubling and concerning.

[222] With the two most senior officers at the scene failing to testify truthfully and candidly to the events that transpired, I am not surprised that the more junior officers would feel compelled to follow along, although I am disappointed that they did.

https://www.canlii.org/en/on/oncj/do...&resultIndex=5

[248] I reject both officers’ testimony that Stanislaw tried to “stand up” before he was pepper sprayed in the face. Both officers were physically on top of Stanislaw at the time as he was pinned face down in the snow.
[249] I conclude that Stanislaw was defending himself against an assault on his person by these two officers.
[250] I conclude that Officer Egerter was mistaken with respect to Stanislaw intentionally trying to disarm him. Any contact with the gun holster, which never became unclipped, was unintentional contact as Stanislaw struggled to get air as he was pinned face down on the ground between the snow bank and the cruiser.
[251] I conclude that Bogumil did not assault or obstruct Officer Paroshy, as Officer Paroshy was not in the legal execution of his duty.
[252] If I am in error with respect to the officer not being in the lawful execution of his duty, I have a reasonable doubt that Bogumil pulled on Officer Paroshy’s shoulders. Bogumil was an excellent witness and he adamantly denied this. Agata denied this. Dr. Hariton testified in-chief that he saw Bogumil try to pull the officer off of Stanislaw, however, in cross-examination, he testified that what he saw was Officer Paroshy pushing Bogumil away.
[253] I conclude that Bogumil did not remove Officer Paroshy’s vest. This version of events is only given by Officer Paroshy. Even the independent witness, Dr. Hariton, saw no such thing. Officer Egerter eventually agreed in his testimony that he did not really see this either. Officer Paroshy’s testimony was either exaggerated or fabricated in this regard. Either way, it is unreliable.
[254] I conclude that Bogumil was arrested because he tried to protect his brother from being assaulted by police.
[255] It is a sad day for the justice system when a mature law abiding citizen testifies that they believe they were arrested for serious criminal offences because they threatened to sue police for excessive use of force.
[256] Police work is complicated and difficult. The vast majority of officers perform their work with a high degree of skill and professionalism. They are entitled to the community’s respect and appreciation.
[257] Police officers are routinely required to diffuse potentially volatile situations. This requires an ability to make quick judgment calls with patience and self-control.
[258] Unfortunately in this case, the police rejected offers of assistance that would have diffused the situation. The tension escalated, as did the violence.
[259] At the end of this long trial, it was clear that this case involved the excessive use of police force.
[260] I recommend that the Crown Attorney give a copy of these reasons to the Chief of Police of Halton for appropriate review and action.
[261] I recommend that the Crown Attorney screen charges where no underlying charges accompany “assault resist arrest” and “obstruct police” charges.

I highlighted the last sentence because it is the exact same issue behind why I asked my question.