A man who kicked the window area of a police car driver's door was found guilty of assaulting a peace officer and intimidating a justice system participant.
In R. v. Horton, 2014 ONCA 616 the accused approached a marked police car stopped on a downtown Toronto street in broad daylight during a G20 summit demonstration. The driver's window was closed but the driver side rear window had been smashed out and the windshield broken.
A uniformed police officer – wearing a bright yellow jacket with reflective markings, the word "Police" on the front and back and police patches on each sleeve – was seated in the driver's seat. Horton proceeded to kick the upper portion of the driver's door and window twice, but the window did not break. He was charged with assaulting a peace officer, intimidating a justice system participant and obstruction.
In the Ontario Court of Justice Horton testified he did not know anyone was inside the cruiser. He said he kicked the door because he was disgruntled at the abusive police treatment of some G20 demonstrators.
The judge found Horton had a clear and unobstructed view of the car and the driver's door window when he kicked it. He was found guilty of intimidating a justice system participant and assaulting a police officer, but not guilty of obstruction. The judge found that kicking the window was an attempt by Horton to apply force to the officer either directly, or by causing the glass to shatter and strike the officer.
Further, in the circumstances, with the windshield already damaged and the rear driver's side window broken out, it was open to conclude that the officer reasonably believed Horton had the ability at that time to carry out his purpose. He was sentenced to 10 months in jail, prohibited from weapons, ordered to provide a DNA sample and placed on probation.
Horton appealed to Ontario's top court, contending that the trial judge failed to properly consider evidence relevant to his knowledge that the marked police cruiser was occupied by a police officer, despite it occurring during broad daylight. Furthermore, he submitted that the trial judge was mistaken in concluding the essential elements of assaulting a peace officer and intimidating a justice system participant had been satisfied.
Ontario's Court of Appeal held that the trial judge was aware of Horton's denial that he knew the car was occupied. On the evidence, however, the trial judge was entitled to find Horton had a clear and unobstructed view.
The video itself, even on a casual viewing, reduces to sheer fantasy any suggestion that the appellant could not or did not see a person in the driver's seat wearing a bright yellow jacket with police markings on it.
The trial judge also did not err in concluding that the essential elements for assaulting a peace officer had been proven. It was open to her to find an assault under s. 265(1)(b) of the Criminal Code had occurred. The kicking was an attempt to apply force to the officer, who reasonably believed the accused had the ability at that time to carry out his purpose.
The conviction for intimidation of a justice system participant under s. 423.1 of the Criminal Code was also proper. Satisfied that Horton's conduct met the elements of the offence, the court stated:
The police officer who occupied the driver's seat of the marked police vehicle was a peace officer engaged in the exercise of his duties, monitoring the activities of an unruly crowd of protesters engaged in damaging property in the downtown area of Canada's largest city.
On any reasonable assessment, the evidence could support an inference that the violent kicks aimed at the driver's door and window of the cruiser were intended to cause and did cause more than a momentary state of fear in the officer to impede him in the performance of his duties. For only the second time in his lengthy police career, the officer made a 10-33 call, and that was enough to establish the (accused's) guilt under s. 423.1(1) of the Criminal Code (para. 15).
The court also refused to stay Horton's conviction for assaulting a peace officer because it did not violate the rule against multiple convictions for the same delict. Although there was a sufficient factual nexus between the assault and intimidation offences – they were grounded on the same conduct – there was no legal nexus between them.
The offence of s. 423.1 contains additional fault elements, the ulterior intent to provoke a state of fear in the justice system participant, that is absent from the offence of assaulting a peace officer in the execution of his duties.
Thus, the rule against multiple convictions wasn't applicable. Horton's appeal against conviction was dismissed.