COURT FILE No.: St. Catharines

DATE: 2013.03.26

Citation: R. v. Duncan, 2013 ONCJ 160

ONTARIO COURT OF JUSTICE

Before Justice Fergus ODonnell

Heard on 27 July and 23 October, 2012

Oral decision rendered on 23 October, 2012

Reasons for Judgment released on 26 March, 2013

Ms. C. Lapointe...................................................................................................... for the Crown

Matthew Duncan............................................................................................. on his own behalf

ODonnell, J.:

Overview

Thus it was that the trial began with Mr. Duncan objecting to us proceeding on the basis that I had no jurisdiction over him. Mr. Duncan provided me with an “affidavit of truth”, a rather substantial volume that appeared to me to be the result of somebody doing a Google search for terms like “jurisdiction” and the like and then cobbling them together in such a way that it makes James Joyce’s Ulysses look like an easy read. This hodgepodge of irrelevancies relied upon by Mr. Duncan was one of the misbegotten fruits of the internet. Finding it was a waste of Mr. Duncan’s time; printing it was a waste of trees and my reading it was a waste of my time and public money. With that volume as his starting point, Mr. Duncan spent some time explaining to me that I had no jurisdiction to try him, that he was not a citizen of the province or the country, that he was not a person as defined by my definitions, that there was no contract between him and me to give me status to sit in judgment over him and so on. As I have said, Mr. Duncan struck me as a perfectly pleasant young man, but on this issue he seemed a bit obtuse. I suppose that if perfectly pleasant young men weren’t led astray from time to time by drugs, alcohol, broken hearts or rubbish on the internet, then the dockets of provincial court wouldn’t be quite as plump as they usually are.

It has been said that, given enough time, ten thousand monkeys with typewriters would probably eventually replicate the collected works of William Shakespeare. Sadly, when human beings are let loose with computers and internet access, their work product does not necessarily compare favourably to the aforementioned monkeys with typewriters.

Mr. Duncan was self-represented. Other than a mildly annoying disinclination on his part to stand when addressing the court (although he did stand when questioning witnesses), he was a rather pleasant young man. Unfortunately, he was a rather pleasant young man whose mind was filled with what my late father would have called “notions”.

At heart, Mr. Duncan’s case was unremarkable. A minor allegedoffence led to a police-citizen interaction in the parking lot of Mr. Duncan’s apartment building in the wee hours of the morning. A request that Mr. Duncan produce his licence led to an alleged refusal, which led to an attempt to arrest him, which led to a struggle, which was captured on a very poor quality video taken on a mobile phone, at the end of which Mr. Duncan found himself being placed under arrest for allegedly assaulting a police officer. Nothing unusual in all that. The bread and butter of provincial court.

I suppose that I should clarify that there was no menace in the man’s directive to me to get out of town. He was a friend and a colleague in two careers. His suggestion had been that he and I should change positions for a fortnight, giving him exposure to the realities of the northern reaches of Toronto, while I would enjoy a similar change of environment in the more sylvan environs of Niagara Region. I might even see a few plays in the evenings, he pointed out.

And so began the journey that resulted in my path intersecting with Matthew Duncan’s path. And thence to these reasons, with a slight detour through territory that might have confused Lewis Carroll.

The Evidence

After much to-ing and fro-ing about jurisdiction, either Mr. Duncan or Matthew or his administrator (I never was quite sure which, they were all talking through the same corporeal form) entered a plea of “not guilty” on Mr. Duncan’s behalf and we proceeded to the evidence.

The Crown’s first witness was Constable Paul Eles, a relatively junior member of the Niagara Regional Police Service and the alleged victim of the assault to resist arrest. Constable Eles testified that on the night of 1-2 December, 2011, he and his partner, Constable Pilkington, were on uniformed patrol in Grimsby at 2:48 a.m. when they saw a car driven by Mr. Duncan make a right turn onto Slessor Boulevard in Grimsby without signalling the turn. The car then pulled into the parking lot of an apartment building on Slessor, where Mr. Duncan lived, and the police car pulled in after Mr. Duncan’s car. Mr. Duncan and Constable Eles got out of their cars and Constable Eles asked Mr. Duncan for his identification, specifically a driver’s licence. Later, in response to a rather leading question on a highly material point, Constable Eles said that he also asked for even a verbal identification. He said that he and Constable Pilkington repeatedly asked for identification and warned Mr. Duncan that he would be arrested if he failed to do so.

Highway Traffic Act. Mr. Duncan then allegedly pulled away from Constable Eles’s effort to grab his arm and started walking towards the apartment building. Constable Eles repeatedly told him to put his hands behind his back and stop resisting arrest, but Mr. Duncan put his hands to his front instead. A struggle ensued with Mr. Duncan ultimately being subdued and handcuffed about five minutes after being told he was under arrest. At some point in this interaction, Constable Eles said that Mr. Duncan pulled out a red binder and told Constable Eles that he would be giving him a fee schedule. He told the officers that they had no jurisdiction over him and accordingly had no authority to arrest him. Constable Eles then told him that he was under arrest for failure to identify under the. Mr. Duncan then allegedly pulled away from Constable Eles’s effort to grab his arm and started walking towards the apartment building. Constable Eles repeatedly told him to put his hands behind his back and stop resisting arrest, but Mr. Duncan put his hands to his front instead. A struggle ensued with Mr. Duncan ultimately being subdued and handcuffed about five minutes after being told he was under arrest.

Constable Eles described the alleged assault on him thus: he had tried to ground Mr. Duncan by grabbing his left leg. While he was bent over for that purpose, he felt a pull and push on his back. At this point, Mr. Duncan was off to Constable Eles’s right and Constable Pilkington was to the right of Mr. Duncan. Later, when they were up by a fence near the back door of the building, Mr. Duncan was swinging his arms. Mr. Duncan ignored a warning by Constable Pilkington that he would be “Tasered” and he was, in due course, “Tasered”, taken to ground and handcuffed.

In cross-examination, Constable Eles said that he and his partner were directly behind Mr. Duncan when he failed to signal.

Constable Shane Secord is an officer with the NRPS technological crime unit. He led in evidence a YouTube video of the interaction between Mr. Duncan and the police that Constable Pilkington had brought to his attention. Given the darkness, the video was of very poor quality and not particularly helpful.

Constable Pilkington also testified. He generally confirmed Constable Eles’s description of the events surrounding Mr. Duncan’s stop and the requests for identification. However, Constable Pilkington’s description of Mr. Duncan’s allegedly assaultive behaviour went beyond that described by Constable Eles. By Constable Pilkington’s telling, early on Mr. Duncan tried to push both him and Constable Eles and was kicking at both of them. Then, when Constable Eles was bent over to grab Mr. Duncan’s leg, Constable Pilkington had a better viewing angle and, understandably, could actually see Mr. Duncan grabbing Constable Eles’s body armour from behind. Constable Pilkington responded by grabbing Mr. Duncan off Constable Pilkington and they all continued their dance towards the back door of Mr. Duncan’s apartment building. Constable Pilkington said that Mr. Duncan tried to grab his Taser, but Constable Pilkington kept him away from it and Mr. Duncan continued resisting. According to Constable Pilkington, Mr. Duncan then got away from him and Constable Eles and Constable Pilkington moved in behind Mr. Duncan. From that perspective, Constable Pilkington saw Mr. Duncan kicking towards Constable Eles and had his fist raised in the air in a “hay maker” position and swung it at Constable Eles. In response to this, Constable Pilkington said that he drew his Taser, removed the barbed cartridge and stunned Mr. Duncan with direct contact between the shoulder blades. This caused Mr. Duncan to go to ground, whereupon he was cuffed, although, according to Constable Pilkington he continued to struggle after being handcuffed.

It will be noted that there are some discrepancies between the versions of Constables Eles and Pilkington. Constable Pilkington makes no reference to warning Mr. Duncan about the use of the Taser. Constable Pilkington refers to substantially more assaultive behaviour than Constable Eles, including the raised “hay maker” towards Constable Eles, who Constable Pilkington believed was actually face on to Mr. Duncan at the time of this significant punching motion. These are arguably not trivial discrepancies, although they may reflect the inherent differences in two people seeing the same event from different perspectives.

Constable Pilkington specifically testified that the reason for the traffic stop, which led to the demand to identify, which led to the arrest for failure to identify was the failure to signal the right-hand turn.