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>> Let's see evidence on behalf of the accused, sir.
>> Sorry. That's the end of the -- You can sit down.
Reply evidence, Mr. Houle.
>> Thank you.
>> Do either of you wish some time to prepare your argument?
Mr. Marley, since you called evidence, you will argue first?
>> Thank you, sir.
So I'll address, first of all, the bodily hard component of count number one.
Whether or not you ultimately find an assault occurred, in my respectful submission,
the evidence that you have before you, in particular from Officer Fantasia himself,
in my respectful submission, does not make out the component of the offence
or the essential element of that offence of bodily harm.
In my respectful submission, the only thing you can take away from the evidence
that you've heard is that the injury sustained as a result of my client punching him
in the face or on the jaw was simply transitory and trifling in nature.
It did not require anything other than, one, attendance to a doctor.
He did not go back and follow it up.
There's no evidence of there being any broken bone, nor any other type of injury
which would constitute bodily harm.
So in my respectful submission, the accused jeopardy, at its highest,
in relation to count one is for the offence of assault.
In relation to both counts one and two, there are really two physical transactions,
which the Crown will point to, in order to evidence an assault perpetrated by my client.
The first is my client's removal of Officer Fantasia from on top
of Mr. Freidbrain [phonetic], and the second is the is the punch.
>> Was that in count in two or is that in count one?
>> Pardon me, sir?
>> The removal in count one, is that the assault in count one or is the removal
and the punch the assault in count two?
>> I've not sought particulars in relation to this case, but it would be my view
that the assault, which is set on count one,
must be the punch because that's the only assault which could have caused bodily harm,
if in fact there was bodily harm.
In other words, the only injury that could have constituted bodily harm would be the punch
to the jaw.
So I'm assuming from that, that either it is the punch, which is the subject matter
of both charges, or that the removal of Officer Fantasia from on top
of Mr. Freidbrain is the subject matter of count number two.
>> Well, the removal is a touching without consent.
>> Yes, sir.
>> So you've got two.
>> That's right.
And that's why I say, at most, there are two physical transactions that arise
from this evidence and that are subject matter of these charges.
And I'd like to address each of those physical transactions.
And then if there's anything which Mr. Houle says in his submissions
which I have overlooked, I'll address in reply.
But in my respectful submission, the first physical transaction is excused
by section 37 of the criminal code.
>> Thirty-seven or 27?
>> I believe it's 37, sir, that excuses --
>> Thirty-seven permits somebody who's under your care, if I'm not mistaken.
And I don't know that Mr. Freidbrain was under Mr. O'Brien's care.
>> I agree with that, but I also agree that section --
>> But if you look at section 27, that appears to be a good Samaritan section.
>> Yes, sir.
I'm sorry.
And section 27 of the criminal code, in my respectful submission,
excuses this gentleman's conduct insofar as the removal
of Officer Fantasia from on top of Mr. Freidbrain.
And his actions, in my respectful submission, based on his own evidence,
but based on the evidence of Mr. Freidbrain, and also to an extent the Crown evidence,
which at least describes the positioning of Officer Fantasia over top of Mr. Freidbrain,
in my respectful submission, to lead you to the conclusion that the Crown has not established
that that offence does not apply, because that's the Crown's obligation
in the context of a case such as this.
In my respectful submission, you also have to consider,
in relation to the second physical transaction, the provisions of section 34.
>> That's the self-defence section.
>> Yes, sir.
And the logic is --
>> The punch is section 34.
>> Pardon me?
>> The punch is section 34.
>> Yes, Your Honour.
And the logic, I am sure, is apparent to the court.
I'll repeat it briefly just so that the court has on record my submissions.
But it is my respectful submission that the Crown cannot negative that,
at the time that he punched Officer Fantasia, that Mr. O'Brien reasonably feared
for his safety as a result of what had transpired up until that point and then
by what can only be described as a provocative move on the part of Officer Fantasia
to have reached inside his pocket.
And when you consider, in particular, the timeframe within which these events occurred,
in my respectful submission, that defence is borne out.
Your Honour, in my respectful submission, ought to accept the evidence of Mr. O'Brien,
notwithstanding his testimony to the effect that his recollection in some respects is shady,
much of what he says in terms of what happened is borne out by the evidence
of the other witnesses, the order in which things happened,
the possibility that he had not heard anybody say the word 'police" prior
to him having administered the punch, Mr. Freidbrain's testimony about being assaulted
by Officer Fantasia prior to Mr. O'Brien removing him.
In other words, it's not withstanding that there may be details
about which my client's evidence was shady.
He was clear not only about what he did and why he did it, and much of what he testified
to is borne out or corroborated by other evidence,
not only called by the defence, but called by the Crown as well.
>> Well, I agree that there's some confirming evidence in the Crown's brief,
but your client himself, I suppose it's a double-edge sword.
I'm sorry, not your client, Mr. Freidbrain says, I have animus towards Officer Fantasia.
He conceded that he and the truth were "not friends."
So it seems to me that I should, based on those admissions alone,
at least treat Mr. Freidbrain's evidence with some scepticism, while their corroboration,
and it's not a vetravec issue, but confirming evidence might be required if I'm going
to accept Mr. Freidbrain's evidence.
>> And that was my next point actually,
because I agree with that you must approach his evidence with some caution.
I [inaudible] his record, alerting the court at the outset to the fact that this is a witness
for whom you would have to look for a corroboration in other evidence in order
to be able to accept his testimony.
But there is.
There is evidence of how he was positioned vis-a-vis Officer Fantasia.
There is corroboration for the proposition that Mr. Freidbrain testified
to that Officer Fantasia reached into his pocket.
That confirmation doesn't just come from my client, it comes from Officer Fantasia himself.
>> And Hugart.
>> Pardon me?
>> And Hugart, I think.
>> Yes. Well, no.
He --
>> No, Hugart didn't see.
>> Hugart says he saw the whole transaction
but didn't see Officer Fantasia reach into his pocket.
>> That's correct.
>> In any event, in my respectful submission, Your Honour, there are confirmatory aspects
or there are other aspects of the evidence
which confirm what I submit are the essential components of Mr. Freidbrain's evidence.
So notwithstanding the fact that you must caution yourself
in terms of considering his evidence.
I don't [inaudible] that proposition at all.
In my submission, there is confirmation for you to find that his evidence is truthful.
And while had Mr. Houle pursued the issue about whether or not Mr. Freidbrain was friends
with the truth or not, I may have objected.
That answer came out before there was an opportunity to reasonably object.
>> I think -- I don't see anything wrong with --
I mean, if Mr. Houle had said to Mr. Freidbrain you're lying,
that's a perfectly valid suggestion, presumably Mr. Freidbrain actually said I am a stranger
or I am not great friends with the truth.
I do have animus, but I'm here to relate what I saw.
And that to accessing his credibility.
>> That's right.
And he did essentially say that in his testimony.
And in my submission, it does assist you in properly assessing his credibility.
He was not the most forthright witness.
He was reluctant to some degree.
He obviously has an animus vis-a-vis Officer Fantasia.
But in my respectful submission, none of that takes away from what he saw,
particularly those aspects of his evidence which assist my client's defence
and which are confirmed by other evidence called in this trial.
So in my submission, there was a value in calling him as a witness, and it assists you
in finding, at the very least, that the Crown has failed to meet its standard
of proof beyond a reasonable doubt in relation to these two counts.
>> In relation to the Crown evidence, I will only comment on there being a couple
of marked discrepancies in the testimony between Officer Fantasia and Officer Hugart.
One of them has to do with the fact that Officer Fantasia insisted he was pushed
by Mr. Freidbrain before taking him to the ground, whereas Officer Hugart,
from 100 metres away, offered the evidence that he saw punching and kicking.
Officer Fantasia insisted that he said something to Mr. O'Brien
about being a police officer before Mr. O'Brien intervened in this altercation,
although he acknowledged the reasonable possibility that Mr. O'Brien did not hear it.
But Officer Hugart, who's running towards this event,
doesn't hear Officer Fantasia say anything.
So, in my respectful submission, to the extent that the Crown has to establish
for you beyond a reasonable doubt as an essential element of count number two,
that Officer, or sorry, Mr. O'Brien knew or was willfully blind to the fact
that Officer Fantasia was a peace Officer.
In my submission, the evidence fails, even on the basis of Officer Fantasia's testimony,
coupled with Officer Hugart's testimony.
I would also ask you to consider --
>> It may be that Hugart didn't hear it because he was running and yelling at the same time.
>> May be.
It may be.
And so, the discrepancy in their evidence on that point may not have much meaning; however,
looking at all of the evidence offered by the Crown, in my submission,
even at the end of the Crown's case, you'll have to have a reasonable doubt as to whether
or not this man knew or was willfully blind to the fact
that Officer Fantasia was a police officer engaged in the lawful execution of his duty.
Thinking again about Officer Fantasia's testimony, in my submission,
you ought to have a reasonable doubt as to whether he was engaging in the lawful execution
of his duty as well given the nature of his contact with Mr. Freidbrain,
who was apparently completely lawfully in that part.
He had no right to insist that he leave.
Whether it was a direction or an insistence or a request really doesn't matter
because it's obvious, from everyone's evidence, that things got heated between them.
And Officer Fantasia, in my submission, exceeded what authority had
by trying to direct Mr. Freidbrain out.
Now --
>> Well, that's certainly in respect to Mr. Freidbrain.
But does that affect his duty with respect to Mr. O'Brien?
>> Well, in my respectful submission, it gives you absolutely no basis on which to be able
to conclude that this man, who doesn't come upon the argument, who doesn't come upon the kick
or the punch or the push, if there were any of those, Mr. Freidbrain says there weren't,
who doesn't come upon the taking to the ground.
He doesn't see any of that.
What he sees are two people, dressed like people who normally occupy
that park, on the ground, struggling.
So in my respectful submission, the Crown can't point to anything in what he saw at that time,
either the knowledge or the wilful blindness about the fact
that Officer Fantasia was a police officer.
Coupled with Officer Fantasia's concession that this gentleman may not have heard what he said,
coupled with this man's denial that he heard what Officer Fantasia said,
in my respectful submission, that element of the offence hasn't been established either.
So for all of those reasons, Your Honour,
I would urge you to find Mr. O'Brien not guilty of both of these counts.
Unless you have any further questions of me, sir, those are my submissions.
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