Ontario Court of Justice

Date: August 7, 2019

Central East Region (Oshawa)

Between:

HER MAJESTY THE QUEEN

— AND —

MATTHEW HEMMINGS

Before: Justice F. Javed

Heard on: February 26, 27, April 9, July 23, 2019

Reasons on Charter Application and Trial released on: August 7, 2019

Counsel

L. Crawford — counsel for the Crown

D. Sarikaya — counsel for the Applicant

I. OVERVIEW

1On February 1, 2018, Matthew Hemmings, (the Applicant) was investigated by members of the Durham Regional Police Service ("DRPS") for what was supposed to be a routine drinking and driving investigation. Mr. Hemmings was operating a motor vehicle and went to a McDonald's drive through to get some food. An employee who was serving him thought he might be impaired so she called the police. When the police arrived, they tried to arrest him for a drinking and driving offence. Mr. Hemmings fled on foot. What happened next is the subject of this Application and trial.

2Mr. Hemmings says the DRPS used excessive force during his arrest. He says he was repeatedly tasered and punched in the face by the police officers, resulting in injuries. Further, he argues the police made very little if any notes of the injuries they inflicted on him and lied about their involvement in court. He argues the amount of force used by the police officers adversely impacted his security of the person, thus was a violation of his rights under s.7 and amounted to cruel and unusual punishment in violation s.12 of the Charter of Rights and Freedoms (Charter). Finally, he says the only appropriate remedy is to stay the entire proceedings under s.24(1). Anything short of a stay, he says, would "condone" the police conduct.

3Mr. Hemmings was ultimately charged with the offences of Impaired Care or Control [s.253(1)(a)] and two counts of Assault Resist Arrest in relation to two of the four officers involved in his arrest [s.270(1)(b)]. The search of his vehicle incident to his arrest also revealed a small quantity of cocaine. He was charged with Possession for the Purpose of Trafficking but the Crown proceeded on the simple possession count in s.4(1) of the Controlled Drugs and Substances Act.

4The Crown submits the police officers involved in his arrest did not breach Mr. Hemming's Charter rights. The Crown position is that the police had lawful grounds to arrest him and Mr. Hemmings unlawfully resisted the arrest by fleeing - and in the course of doing so, assaulted the police officers. The Crown admits the police deployed a taser on Mr. Hemmings but submits it was a reasonable and proportionate amount of force given the dynamic arrest and permitted was by s.25 of the Code. Alternatively, if the amount of force used is held to be unreasonable and excessive, Mr. Hemmings hasn't met his very high burden of proving that this is a clear case where the proceedings should be stayed. The Crown submits that Mr. Hemmings should be found guilty of all offences.

5The Crown called a number of civilian witnesses who witnessed Mr. Hemmings being arrested as well as the police officers who were involved in the arrest.

6Mr. Hemmings testified on the Charter voir dire.

7The parties agreed to blend the evidence of the witnesses on all issues with the exception of Mr. Hemmings's evidence, which only applied to the Charter issues. The record on the blended voir dire also included photographs of Mr. Hemmings taken by a scene of crime officer (Exhibit 1), photographs of the scene of the arrest (Exhibit 2), Certificate of an Analyst from Health Canada (Exhibit 3A, 3B) and Ministry of Transportation Documents (Exhibit 4).

8The parties did not agree to blend the following evidence which only applied to the Charter voir dire: Exhibit 5 which are Use of Force Reports and Exhibit 6 which is an Agreed Statement of Facts under s.655 of the Criminal Code. It provides:

(i) On February 1, 2018, the defendant Matthew Hemmings was taken to Lakeridge Health Ajax Pickering located at 580 Harwood Avenue South Ajax Ontario.

(ii) At 3:15 am, Mr. Hemmings was seen by Doctor Eugene Kuo.

(iii) Mr. Hemmings received an X-ray and MRI of his facial area. The results were no fracture and no acute abnormality.

9Finally, the parties also tendered two Taser Data Reports as Exhibit 7 on the Charter voir dire. The court heard submissions that these reports accompanied the Use of Force reports, which had been requested by the defence and disclosed during the trial. The timing of disclosure was unfortunate as the evidence of the police officers and Mr. Hemmings on the voir dire had already been completed. I don't say this as a criticism because Ms. Crawford advised that the reports had been requested from the police in a timely way and only came into the Crown's possession during the trial. Also without any criticism, Mr. Sarikaya did not raise a complaint and did not seek an adjournment of the trial. I probed whether the defence would seek to recall any witnesses to avoid any potential Browne v. Dunn issues as the reports contained information about the circumstances of the force used on Mr. Hemmings. Mr. Sarikaya submitted he was prepared to make a tactical decision to not recall any witnesses as his cross-examination was fulsome and he would simply make submissions about the weight to be assigned to the reports and the officer's evidence. In the end, Ms. Crawford called Acting Sergeant Chris Boileau of the DRPS as reply evidence in the Charter voir dire.

II. SUMMARY OF FINDINGS

10After a careful review of the evidence, these reasons will explain why I have concluded that the record does not establish that the police officers probably breached Mr. Hemming's ss.7 and 12 Charter rights by using excessive force during his arrest. If there was a breach in so far as the police officers failing to take adequate notes of the interaction, this would not amount to a clear case of staying the proceedings under s.24(1). In summary, I have arrived at the following core findings and conclusions, which will be helpful context to the ensuing discussion:

1. The police had a lawful basis to arrest Mr. Hemmings for the offence of impaired care or control;

2. The police lawfully attempted to effect the arrest but Mr. Hemmings fled on foot, creating a dynamic arrest;

3. Mr. Hemmings actively and unlawfully resisted police efforts to arrest him before he was tasered;

4. I find Mr. Hemmings was tasered on two separate occasions. First, by PC Griffin and second by PC Browell. The evidence is insufficient to make a finding that the taser made contact with Mr. Hemming's body on either occasions;

5. I find that the police officers did not mislead the court about the circumstances of using the taser on both occasions;

6. I find that in all of the circumstances, the police were required to use some force to effect the arrest. I have concluded that the use of the taser in a dynamic situation where Mr. Hemmings was actively resisting, was justified as a proportional and reasonable response;

7. As such, the use of the taser did not result in a breach of ss.7 or s.12 of the Charter;

8. I reject the evidence of Mr. Hemmings that he was probably punched in the face by the police officers;

9. Based on the evidence as a whole, the only reasonable inference that arises is that the facial injuries were caused by the circumstances of Mr. Hemming's arrest including being taken forcefully to the ground and resisting the arrest while on his stomach on a concrete surface;

10. I do not find that the police officers set out to injure or deliberately caused the injuries during the circumstances of the dynamic arrest. The force used was not gratuitous and therefore does not violate ss.7 and 12 of the Charter;

11. I find the police did not attempt to "cover up" the circumstances by virtue of taking Mr. Hemmings to the hospital, photographing his injuries, completing Use of Force reports as required and providing credible evidence of their involvement while testifying;

12. If there was a failing, it was the lack of contemporaneous notes in their memo-books at the time of the event. I have concluded that if this amounts to a Charter violation, it would be insufficient to meet the test for a stay of proceedings under s.24(1);

13. I am not satisfied that the Crown has proven beyond a reasonable doubt that Mr. Hemmings was in care or control of a motor vehicle while "impaired" by alcohol;

14. I am not satisfied that the Crown has proven beyond a reasonable doubt that Mr. Hemmings had knowledge of the cocaine in the backpack and was in legal possession of the substance;

15. I accept the defence concession that the evidence proves beyond a reasonable doubt Mr. Hemming's guilt on the two counts of assault resist arrest. I find that Mr. Hemming's actively resisted a lawful arrest and committed assaults on PC Griffin and PC Edwards; and

16. Despite the Charter breach not being proven, I find the circumstances of the unfortunate injuries to Mr. Hemmings justify a reduction of sentence as part of the analysis involving the circumstances of the case and the personal circumstances of the offender.

III. THE LEGAL PRINCIPLES

11Before I turn to the evidence and my findings, I will start with a brief review of the overarching legal principles that must guide my analysis.

(a) General Principles

12Mr. Hemmings must prove on a balance of probabilities that the police violated his Charter rights under ss. 7 and 12 and that he's entitled to a Charter remedy under s.24(1): R. v. Singh, 2007 SCC 48 at para. 8.

13Where there is evidence that the police used force during an arrest, the Crown bears the onus of proving the lawful use of force. In particular, the use of force is circumscribed by s.25(1) of the Code and the degree of force is constrained by the principles of proportionality, necessity and reasonableness: R. v. Nasogaluak, 2010 SCC 6 at paras. 32-33.

14Mr. Sarikaya submits the Charter issues are determinative of the issues in the trial. There are some factual differences in the accounts of the parties. In a Charter voir dire, the reasonable doubt standard developed in R. v. W.D. does not apply where the Applicant bears the burden of proof on a balance of probabilities: R. v. Poole, 2015 BCCA 464 at para. 51. Similarly the introduction of hearsay is permitted because a Charter voir dire is designed to establish "the state actor's mind and conduct, not the ultimate reliability of the evidence in determining the guilt of the accused": R. v. Paterson, 2017 SCC 15 at para. 20. I have kept these principles in mind while wading through the evidence and distinguishing between the Charter issues and the Crown's ultimate burden of proof as the parties agreed to a blended hearing.

(b) Excessive Use of Force by Police

15Mr. Sarikaya anchored his complaint of excessive force on both ss. 7 and 12 of the Charter. Section 7 affords citizens with a right to be secure against arbitrary force, especially physical violence, by state actors. It provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

16Section 12 deals with the degree to which the state may treat or punish an individual and provides:

Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

17In Nasogaluak, supra, the Supreme Court summarized the legal principles involving the issue of excessive use of force by police at paras. 34-35:

[34] Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm. The officer's belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis (Chartier v. Greaves, [2001] O.J. No. 634 (QL) (S.C.J.), at para. 59). If force of that degree is used to prevent a suspect from fleeing to avoid a lawful arrest, then it is justified under s. 25(4), subject to the limitations described above and to the requirement that the flight could not reasonably have been prevented in a less violent manner.

[35] Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

I have also considered a trilogy of cases by Justice Casey Hill who considered this issue in R. v. Williams, [2018] O.J. No. 3217 (Ont. Sup. Ct.) at para. 164, R. v. Rigo, 2017 ONSC 3694 at paras. 72, 74-75, 81-87 and R. v. DaCosta, 2015 ONSC 1586 at paras. 92 to 105.

(c) The Test for Stay of Proceedings

18Section 24(1) of the Charter provides that a court has jurisdiction to provide a remedy for a breach of a Charter right. It provides:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a Court of competent jurisdiction to obtain such remedy as the Court considers appropriate and just in the circumstances.

19In R. v. Babos, 2014 SCC 16, the Supreme Court set out a three-part test to determine if proceedings should be stayed due to a Charter violation:

(1) There must be prejudice to the accused right to a fair trial or to the integrity of the justice system that 'will be manifested' perpetuated or aggravated through the conduct of the trial or its outcome'

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interest that society has in having a final decision on the merits.

20Mr. Hemmings doesn't argue that the alleged Charter violation(s) would render his trial unfair but submits that the conduct of the police was so egregious that to allow the prosecution to continue would undermine the confidence in the administration of justice (the residual category) relying on R. v. Tran, 2010 ONCA 471.

21Recently, Justice Schreck described the test for staying the proceedings under s.24(1) in a case involving an allegation of excessive force by the police: R. v. Abdillahi, [2019] OJ No. 3061 (Ont. Sup. Ct.) at para. 29:

29 A stay of proceedings is "the most drastic remedy a criminal court can order": Babos, at para. 30. It will be only be used in the "clearest of cases", that is"exceptional" and "relatively very rare" cases where the state misconduct is "so egregious that the mere fact of going forward in light of it will be offensive": Babos, at para. 31; Tobiass, at para. 91. Stays of proceedings have been ordered in cases involving the excessive use of force by the police: R. v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131, at paras. 90-91, 103-107.

22I will now turn to the evidence and my findings of fact.

IV. THE EVIDENCE

23There is less dispute in the evidence about the events that lead up to the arrest but the evidence diverges about the circumstances of the arrest and the level of force that was used during and after the arrest.

A. The Background Facts

24Mandy O'Regan is a friend of Mr. Hemmings. She testified she lent her Mazda motor vehicle to Mr. Hemmings around 5pm on January 31, 2018. She expected he would return her vehicle on February 1st. She stated Mr. Hemmings called her around 2am on February 1st from McDonald's and told her on he was on his way. He never made it home. She later learned he had been arrested.

25I find as a fact that Mr. Hemmings was operating the Mazda (a motor vehicle) prior to his interaction with the police. The import of Ms. O'Regan's evidence is that when she last saw him, he was not injured. In particular, he did not have any facial injuries, which were depicted in the various photographs taken by the police. As I will explain, I find that Mr. Hemmings suffered these injuries during his arrest.

(B) Events at the McDonald's Drive-Through

26Mr. Hemmings testified on the Charter voir dire. He is 34 years old and is employed in the demolition and renovation industries. Mr. Hemmings has a criminal record. I have guarded against using the criminal record for a prohibited purpose. Mr. Hemmings has convictions from 2000 to 2016. Some entries involve crimes of violence and there is one prior drinking and driving offence.

27At approximately 2:30 am on February 1, 2018, he pulled into a McDonald's drive through in Ajax. He had visited a friend in Scarborough where he consumed a bottle of beer while playing video games. After "chilling" in the neighborhood for a while, he left around 9-10 pm and went to a retail store that sells alcohol after hours, called "Double Double". He purchased a 6 pack of beer (Labatt Ice). The plan was to return to Ms. O'Regan's home to hang out and drink beer. He admitted he placed an open bottle of beer in his cup holder. The remaining 5 bottles were closed in the back seat.

28After placing his food order, he began to haggle with the employee by trying to use a coupon he didn't have. He said this was a joke. He was given his drink by the employee and pulled over to a parking spot to wait for his food.

29Laura Smith was one of two employees who assisted Mr. Hemmings. She was a supervising manager and testified that the employee who assisted Mr. Hemmings, a woman named Kamala, has since passed away. Kamala retrieved her and said Mr. Hemmings appeared to be agitated as he was insisting on using a coupon that he didn't have. He was offering to return with the coupon, which Kamala refused. I have not treated this hearsay evidence for its truth, only to inform Ms. Smith's state of mind and subsequent actions.

30Ms. Smith assisted Kamala at the drive through window and interacted with Mr. Hemmings. She stated Mr. Hemmings "didn't appear to be all there". He was slurring his words, had blood shot eyes and she could saw what she believed to be an open beer bottle in his vehicles' cup holder.

31Ms. Smith said the McDonald's restaurant is located within a plaza with establishments licensed to serve alcohol. Based on her experience and time of day, she believed Mr. Hemmings might be "impaired" so she decided to call 911. She told Mr. Hemmings that he would have to park his vehicle and wait for his food. Mr. Hemmings complied by pulling ahead into a parking spot.

32Ms. Smith called 911. Shortly thereafter, the police arrived. She saw two officers approach Mr. Hemmings who was still seated in his parked vehicle. She was paying "some" attention to the interaction through the drive through window, as she was getting ready to end her shift.

(C) The Roadside Investigation

33Mr. Hemmings testified he was waiting in his vehicle when he was approached by PC Griffin and PC Edwards of the DRPS. PC Griffin had been a police officer for 9 years while PC Edwards was on the force for 2 years. The two officers arrived in a fully marked cruiser at 2:40 am in response to a call for an impaired driver. PC Griffin attended at the driver's side window while PC Edwards went to the passenger window. PC Griffin asked Mr. Hemmings if he was drinking alcohol. He said no. On the voir dire, Mr. Hemmings admitted this was false. PC Edwards voiced out that there was beer in the vehicle.

34PC Griffin saw a McDonald's cup and asked him what he was drinking. Mr. Hemmings held up the cup and said he was waiting for his food. He added that while the parties spoke, he noted his eyes were red and glossy. He also detected an odor of alcohol coming from within the vehicle. I accept these observations. He told him to step out of the vehicle. He complied and was able to exit without issue. Mr. Hemmings was patted down as a safety measure and told "you have a drink in your car".

35PC Edwards said he saw a bottle of beer near Mr. Hemming's feet. It was identified as a bottle of Labatt Ice, which I know is beer and was ¼ to ½ full. I accept the evidence of PC Edwards. In my view, a reasonable inference arises that Mr. Hemmings was attempting to conceal an open bottle of beer near his feet.

(D) The Police Encounter

36PC Griffin testified Mr. Hemmings exited his vehicle carrying his cell phone in his hand. He saw him reach towards his waist to adjust his baggy pants but apart from this there were no issues with his mobility. PC Edwards came around and began to speak with Mr. Hemmings, instructing him to put his cell phone on the hood of the car. At this point, PC Edwards detected an odor of alcohol coming from Mr. Hemming's breath and his speech was slurred.

37Mr. Hemmings told PC Edwards that the bottle of beer belonged to a friend that he had just dropped off. He then questioned him about the odor of alcohol on his breath. Mr. Hemmings admitted he consumed one beer.

38PC Edwards testified based on his admission of alcohol consumption, glossy eyes and slurred speech, he had grounds to arrest him for impaired care or control and told him to turn around and face the vehicle. While not challenged, I find PC Edwards had reasonable grounds to make an arrest. In cross-examination, Mr. Hemmings admitted he knew he was being arrested and was told to place his hands behind his back. PC Edwards began to guide his right hand, while PC Griffin guided his left hand. At this point, Mr. Hemmings broke free and fled on foot. He darted in a northern direction, about 20-30 meters near the McDonald's drive through.

39Mr. Hemmings admitted he became nervous and tried to run away because he was thinking about his son. He acknowledged he did not submit to the arrest.

(E) The Struggle and Takedown

40There are factual differences in the circumstances of the police chase and the initial confrontation that lead to Mr. Hemmings being tasered. As I will explain, I reject the account of Mr. Hemmings as illogical, internally inconsistent and inconsistent with other evidence. I am required to weigh his evidence against that of the police officers to determine which version of events was more probable.

41Mr. Hemmings testified after he fled on foot, he was immediately tackled to the ground by PC Griffin. He fell on his stomach with PC Griffin on top of him and was trying to use his arm to push PC Griffin off his body. At this point, PC Edwards entered the fray and jumped on top of him and placed his knee in the back of his leg. He heard the police say "stop resisting". Mr. Hemmings testified he said "I'm not [resisting], it's okay you can arrest me".

42The police presented a different account. PC Griffin said after Mr. Hemmings fled, both officers pursued Mr. Hemmings and caught up with him near the McDonald's drive through. He was not initially tackled to the ground. While upright, he attempted to grab the left hand of Mr. Hemmings in an effort to secure it so he could be handcuffed. Mr. Hemmings began to flail his arms and actively resist. He kept repeating "stop resisting". Mr. Hemmings didn't comply and continued to resist.

43PC Griffin added Mr. Hemmings wasn't complying with his demand to stop resisting so he placed his hand on his left shoulder and tried to lean him over to get him to the ground. Mr. Hemmings resisted this as well. Accordingly, he grabbed the upper left portion of his left leg so Mr. Hemmings would lose his balance. PC Edwards was situated to his right and was not involved in this move. Ultimately, PC Griffin was able to get Mr. Hemmings off balance and get him to the ground on his left side. It was unclear how Mr. Hemmings hit the ground but I draw the inference that he went face down because he ended up on his stomach.

44Both PC Griffin and PC Edwards said even though Mr. Hemmings was on the ground, he continued to resist by flailing his arms, which included swinging his elbow in the air. At one point, he was able to get his arms over his head. This required both officers to subdue his arms. He was also flailing his legs, which ended up kicking PC Griffin on the lower portion of his legs.

45The account of PC Griffin was confirmed in material ways by PC Edwards. He said after Mr. Hemmings fled, he gave chase and tried to grab his baggy clothing with no success. He gave verbal commands of "stop resisting" to no avail. Mr. Hemmings was ultimately taken to the ground but kept flailing his arms and legs to resist the efforts to arrest and handcuff him. PC Edwards was also struck by Mr. Hemmings during the struggle.

46I find as a fact that Mr. Hemmings knew he was being arrested and fled. Moreover, I reject his evidence that he was immediately taken to the ground. I accept the police account that they tried to handcuff him by placing their hands on his hands but Mr. Hemmings resisted and tried to subvert the arrest. I accept that the officers had to subdue him after he was actively resisting. I do not accept Mr. Hemming's evidence that he was immediately tackled to the ground and therefore compliant right from the outset. Mr. Hemming's evidence is contradicted by Ms. Smith who testified she saw parts of the altercation as she was moving in and out of the McDonald's. She did not recall Mr. Hemmings say "I'm not resisting" and saw both officers trying to hold Mr. Hemmings down on the ground. She did not say she saw the police "hit" him.

47I find that PC Griffin attempted to use lawful means to get Mr. Hemmings under control but did not succeed and had to use a reasonable amount of force by placing his hands on his legs to get him off balance, which would have resulted in him going to the ground so he could be restrained and lawfully arrested. Mr. Hemmings did not comply and was resisting the arrest. I find the act of falling to the ground resulted in Mr. Hemming's body hitting the concrete surface. I draw the inference that this action would have resulted in some injuries even though the parties couldn't say the nature of the injuries.

48Mr. Sarikaya's reasonable concession that Mr. Hemmings used force against the police officers is borne out by the evidence on the voir dire. Counts 4 and 5 have therefore been proven beyond a reasonable doubt with the remaining issue being whether they should be stayed based on the allegation of excessive force.

(F) The First Tasering by PC Griffin

49Before I consider the circumstances of the police tasering, I will pause to note that Mr. Sarikaya submitted that the defence position is not that the police tasering amounted to excessive force, which justifies a stay of proceedings. Instead, the defence argues that the police lied about the circumstances of using the taser, which in conjunction with being punched in the face, justifies a stay. Respectfully, I disagree with this submission.

50Mr. Hemmings testified after the police were on top of him, he stopped resisting because PC Edwards was holding his legs down. He said he was tasered 5-10 times and said "I give up, you don't have to do anything". He said he heard PC Griffin say "shut up" and heard him call for back up. In cross-examination, Mr. Hemmings said he felt being tasered twice. The second time was stronger than the first and there was 3 seconds in between each deployment. He said it was the shock of the taser that prompted him to stop resisting and he felt seizure like symptoms.

51PC Griffin admitted he deployed the taser to Mr. Hemmings back area but said he only used it once and it was unsuccessful as he was moving around and wearing baggy and wet clothes. He explained that he had to lift his body to take the taser out of the holster and had to depress it to make it function. This is confirmed by the taser report (Exhibit 7) which shows that it was "armed" at 2:42:37 am and deployed at 2:42:57, some 20 seconds later. I also draw the inference that PC Griffin used the taser organically during the arrest and did not set out to use the taser once he realized Mr. Hemmings fled on foot.

52PC Edwards said while trying to restrain Mr. Hemmings, he was trying to use his police radio to get back up assistance. The dispatcher was calling and he couldn't respond given the dynamic situation. He explained that when there is no response, the dispatcher automatically sends back up police officers. That's what happened here. Within minutes, PC Browell and PC Seebali arrived on scene which accords with PC Griffin's recollection that it took about 3-4 minutes for other officers to arrive. PC Griffin said he overheard the dispatcher say backup was on the way.

53PC Edwards said he was trying to hold the forearms of Mr. Hemmings when PC Griffin deployed his taser. He couldn't recall if the taser had an impact on Mr. Hemmings but did recall he felt the residual shock of the taser in his arms. This is sensible because his arms were situated on top of Mr. Hemming's arms. Mr. Hemmings was on his stomach and there was slush and snow on the surface.

54In cross-examination, PC Griffin was challenged on his evidence that he knew the taser didn't make contact with Mr. Hemmings. In particular he said he called for an ambulance, which the defence asserted was only because he knew Mr. Hemmings had been tasered. I don't think this detracts from his credibility on this issue because it's not disputed that Mr. Hemmings was also tasered a second time, which PC Griffin did know about. That alone would account for the ambulance call. I accept his evidence that he called for an ambulance out of abundance of caution. Moreover, he also discovered that PC Edwards had also suffered some injuries and was vomiting, likely from the effects of the taser. This too would be another reason to call an ambulance.

55Considering the evidence as a whole, I find that PC Griffin was justified in using the taser on Mr. Hemmings given his active resistance to the arrest. The police were repeatedly telling him to stop resisting, which went ignored. It was reasonable to use some force to get him to the ground to handcuff him. Both officers were unable to get him under control and the taser was a proportional response. Based on the taser data in Exhibit 7, I find that the taser was deployed on four occasions but I can't conclude if it made contact with Mr. Hemmings. I find that the probes did not attach to his body as the police officers picked them up from the ground later on. I tend to agree with Mr. Sarikaya that based on Exhibit 7, the taser was deployed on 4 occasions is inconsistent with PC Griffin's recollection of using it once but the import of this conclusion is my finding that the tasing did not bring Mr. Hemmings under control. He was still resisting and struggling with the officers, which leads me to infer it did not make any contact with him. I don't think this was a deliberate lie on the part of PC Griffin. He was simply incorrect in his recollection of a dynamic event. I note as well the taser reports were introduced into evidence after he testified, thus he didn't get the chance to respond to the reports. Moreover, PC Griffin's evidence is supported by a civilian, Jeanine Hand who was working as a maintenance worker. She saw the tasering and said after the first tasing, it didn't change anything about the scuffle. There was still a lot of movement on the ground.

(G) The Second Tasering by PC Browell

56PC Browell was first to arrive and testified he saw PC Griffin with a taser but didn't know if it was deployed. I accept this evidence as there's no evidence he was told about this or that it was intimated to dispatch.

57Mr. Hemmings testified he also knew other officers had arrived. He said he was under control and was not resisting. I don't accept this because by the time the two officers arrived, he still hadn't been handcuffed which happened later on. He was able to differentiate between the two responding officers based on their respective size. He referred to one as "the bigger officer", which I find was PC Seebali having observed him in the courtroom. Of course I say this without any disrespect.

58PC Browell is 6'1 and weighs about 200 lbs. He has been a police officer for 17 years. In cross-examination he admitted being convicted of a criminal offence in 2015 for a drinking and driving offence. He said he was dispatched to the scene after hearing officers struggling over the air. He heard a "10-3" call, which he knew relates to an officer safety issue. Upon arrival, he saw both PC Griffin and PC Edwards struggling with Mr. Hemmings on the ground. They were trying to gain control of his flailing arms. He ran over to them and saw them in "shock and awe". He assisted by trying to gain control of Mr. Hemming's feet.

59At this point, he testified he deployed his taser and placed it on the upper right thigh of Mr. Hemmings. He was wearing gloves as it was cold. Mr. Hemmings said he felt the shock "all around his body" but mostly on his ankle area. PC Browell said it was a "drive-stun" which involves a five second burst of energy that is designed to cease one's motor skills. He said it didn't appear to work as Mr. Hemmings was wearing wet and thick clothing and he continued to resist. He said he put away his taser and tried to grab his arm. PC Seebali arrived and also held his arms down. By this point, he along with PC Seebali and PC Griffin were able to gain control of his arms and place them behind his back to handcuff him. PC Edwards had left the fray.

60In cross-examination he admitted he didn't record the extent of Mr. Hemming's injuries in his notes but explained that it was obvious to him that he was injured and since he would go to the hospital, it would be documented. This is sensible because it's not as if the injuries could be concealed. PC Browell was also asked about whether he knew about a report detailing police treatment of black men. This wasn't flushed out in the evidence but nor do I see the importance of this in this case. There was no allegation that Mr. Hemmings was profiled or treated differently because of race. Mr. Sarikaya did not pursue this in submissions. Nor do I see any merit to such line of argument.

61PC Seebali is 6'2 and weighs about 250 lbs. He testified he saw Mr. Hemmings "fighting" with two police officers. He assisted by grabbing his arm and making repeated demands for his other arm, which went ignored. He stated he did not see any officer taser Mr. Hemmings but later learned on scene that he was tasered. Based on his training, he placed Mr. Hemmings on his side in a "recovery position" so he could breathe without pressure on his lungs. He said Mr. Hemmings was still being combative and screaming.

62Mr. Hemmings said after the second tasing, he kept repeating "I'm done".

63Around 2:47 am, Mr. Hemmings was safely handcuffed by PC Seebali and arrested for the offence of impaired care or control.

(H) Evidence of Acting Sergeant Chris Boileau – The Use of Force & Tasing

64The Crown called Acting Sergeant Chris Boileau of the DRPS in reply on the Charter voir dire. He is an Acting Sergeant overseeing the police Use of Force program. He is also experienced in the use of police tasers. He was not qualified as an expert but instead provided some non-expert lay evidence, which wasn't challenged by the defence. PC Boileau explained that after a police officer uses a tasing device, they are required to upload the information which is stored in a computer database. It will be then be accessible for downloading. In this case, he confirmed both PC Griffin and PC Browell who used a taser, uploaded the information, which he retrieved in response to a disclosure request.

65PC Boileau explained that PC Griffin used an X2 Taser, while PC Browell used an X26 Taser, both of which are manufactured by AXON. He was able to download the taser reports for each officer: Exhibit 7. He explained that both devices operate on the same electric principle where the cartridges have probes and the energy arcs off the cartridge. When the taser is "fired", electric probes are discharged out of the device. It would then reactivate the probes before being "fired" again.

66In this case, PC Griffin used an X2 taser which is a newer model allowing for more information to be registered. The AXON report that was generated shows that it was armed or turned on by PC Griffin at 2:42:37 am. He depressed the trigger at 2:42:57 (20 seconds later) and the report shows the taser being deployed on four occasions, which he explained means that once the person depresses the trigger, the device is programmed to be active for a minimum of 5 seconds, unless the operator shuts it off or extends it. This does not mean it was used on the person for 5 seconds. Moreover, the report does not assist in confirming or denying if the probes were activated, the distance between the taser and the subject and whether the probes made contact with the body. Accordingly, I find that PC Griffin deployed the taser on four separate occasions from 2:42:57 to 2:44:12 where only one cartridge was used but can't draw any firm conclusions about how long the device was used, if it made contact with Mr. Hemmings and if so, the force of the contact based on how far or close the device was when it was used.

67PC Boileau testified that the device used by PC Browell (X26) is different because it's an older analog device, which can only have one cartridge loaded at a time. It is susceptible to a "time-drift" which means the registered time it was used is not always accurate. In this case, the report shows it being "fired" on two occasions from 2:49:47 to 2:49:53. The first time it was used for a duration of 22 seconds, while the second was the pre-programmed 5 seconds. PC Boileau also explained that the X26 can only perform a "drive-stun" which would not cause incapacitation of the subject. It would target a part of the body to result in localized pain. I find that based on this report, and the evidence of PC Boileau, I cannot rule out that the taser was depressed for 22 seconds, even though it does not assist in confirming or denying whether the taser made contact with Mr. Hemmings and the force of that contact based on how far it was from the body when used. Further, based on the "time-drift", I do not find that it was used after the time of the arrest at 2:47 am.

I. Findings on the Use of Police Taser

68Based on the evidence as a whole, I find that PC Griffin used the taser on Mr. Hemmings but find that even if did make some contact with his body (as the residual effect was felt by PC Edwards), it wasn't a strong enough charge that resulted in incapacitating or slowing down his motor skills. Mr. Hemmings was still resisting after the first tase. Further, I find he was tased a second time for 22 seconds and cannot rule out that he didn't feel the shock to his ankle which is the area where PC Browell put the taser. I do not find that the taser was on his body for 22 seconds as the report doesn't bear this out but draw the inference that because Mr. Hemmings wasn't incapacitated, it didn't have a considerable impact on him. I reject the account of Mr. Hemmings that he was tasered "5-10" times, resulting in seizure like symptoms. He also said he felt the taser more on subsequent occasions with 3 seconds in between the tasing.

69First, there is no evidence that electrical prongs were removed from his body when he was seen by Dr. Eugene Kuo (Exhibit 6). I accept the police retrieved the prongs from the floor. I draw the inference that the taser did not make direct contact with his body, likely given his wet clothes from the snow as he was on the ground.

70Second, his evidence of being tasered "5-10 times" is contradicted by the taser reports. Even though I can't rule out the possibility that PC Griffin pressed the fire button on 4 occasions during the first session, it does not prove contact was made with him and the force of that contact. One inference to be drawn from PC Griffin's use of the taser and the report is that there was approximately 75 seconds between the first and fourth deployment, suggesting the struggle was continuing and he wasn't under control as he claims. This does not mean Mr. Hemmings was tased for 75 seconds but there is an inference that the taser was fired on 4 occasions within these 75 seconds and did not have a measurable impact to control him. PC Browell used the taser on 1-2 occasions, which still doesn't add up to "5-10" times which I find was an exaggeration.

71In summary, I find the use of the police tasers while not challenged as being excessive force was in fact reasonable given the active resisting of Mr. Hemmings, proportional given the lack of injuries from their use and legally justified under s.25 of the Code. The officers did not set out to use the tasers and tried using their hands first which clearly didn't work. It is most unfortunate they had to be deployed and could have been avoided if Mr. Hemmings simply complied with the verbal demands.

(J) Findings on Alleged Punching to the Face

72Mr. Hemmings testified after the first taser, he had stopped resisting. I have already rejected that evidence. He said PC Browell lifted the upper portion of his body and punched him in the face. He described the punch as an uppercut to the right side of his face. In examination in chief, he said the punching happened on at least 10 occasions. In cross-examination he said it was "definitely more than 5 times" suggesting he wasn't sure with the 10 being an exaggeration. After being punched, Mr. Hemmings uttered "why did you have to hit me for". PC Seebali told him to shut up and "put a boot on his face". He testified PC Seebali also punched him on the left side of his face"probably five times".

73Mr. Hemmings said he suffered a swollen jaw with cuts to his lips and face. He was taken to the hospital by police and seen by Dr. Kuo. Exhibit 6 proves he had an X-ray and MRI of his facial area. He did not have a fracture or any "acute abnormalities". The police took photographs of his injuries, which are catalogued as Exhibit 1. The injuries are most unfortunate. They depict injuries of a cut on the mouth, swollen right eye and cuts under the eyebrow. There are various abrasions and a band-aid on his forehead. Mr. Hemmings said the police officers caused the injuries.

74In cross-examination, it was put to Mr. Hemmings that he was struggling on the concrete surface with the police officers, which caused his injuries. Mr. Hemmings admitted there was gravel on the surface but said: "No, how you explain the swelling". He also said he didn't feel his face touching the ground.

75The defence theory is that all police officers took turns punching Mr. Hemmings. They all denied any punching him. PC Edwards added that during the altercation his hands may have touched Mr. Hemming's face but he never deliberately hit him in the face. PC Seebali denied putting a boot on his head.

76I find that the police officers probably did not punch Mr. Hemmings in the face or directly cause his injuries for the following reasons.

77First, the account of Mr. Hemmings doesn't make sense. His evidence was he was on his stomach and the police officers were bending his body backwards and launching upper cuts to his face. This doesn't make sense because I fail to see how one's body can be contorted to such a degree. Even if Mr. Hemmings didn't explain this well, his evidence that he was punched "definitely more than 5 times" is internally inconsistent with his evidence in chief and inconsistent with the medical records, which showed no fracture or acute abnormalities. I would have expected to see evidence of more serious injuries if this was true.

78Second, the account is inconsistent with the independent evidence of the civilian witness, Ms. Smith who said she never saw the police punch him. This was the same evidence of Ms. Band who testified in a similar fashion.

79Third, I agree with the Crown that the account described by Mr. Hemmings is improbable in light of the surrounding circumstances. Mr. Hemmings was arrested in a public setting near a McDonald's drive through. It would be bold for police officers to take turns beating on a man. The law permits a court to test the credibility and reliability of the account against when and where it took place to determine if it was implausible: R. v. R.H.A, [2000] OJ No. 2610 (CA). I find that Mr. Hemming's account is simply implausible.

80Fourth, the account of Mr. Hemmings is contradicted to some extent by the objective evidence of the nature of the injuries and the photographs of the scene of the altercation. Mr. Hemmings suffered abrasions to his face which look like fresh abrasions and consistent with having his face down on the concrete. I would expect during the active struggle, he would move his face and it would have made contact with the concrete surface which at the time would have contained road salt and the like. Moreover, Exhibit 2 is telling because DSC0092 confirms there is blood on the surface which contains slush, snow and the remnants of road salt. This supports my finding that his facial area was facing the concrete.

81Mr. Sarikaya submitted that the police officers never testified that Mr. Hemmings suffered his injuries in this fashion, which is a reason to reject their evidence or alternatively accept the evidence of Mr. Hemmings. Respectfully, I disagree. The police evidence was, they weren't sure how he suffered the injuries, just that they didn't cause them by punching him in the face. Considering the evidence as a whole, I find this makes sense if Mr. Hemmings was face down which he was. After he got up, it is reasonable that photographs would capture what happened and making notes would add little to the analysis. It would have been different if no pictures or no medical attention was offered, but that's not the evidence. I find the injuries were caused not by punching but as a result of the prolonged and aggressive interaction with the officers while his face was on the floor. I'm reminded that Mr. Hemmings was also taken to the ground by PC Griffin where it would be expected he would suffer an injury.

(K) The Trip to the Hospital

82Mr. Hemmings acknowledged being taken to the hospital and not being subject to breath tests. PC Seebali accompanied Mr. Hemmings to the hospital and also tended to PC Edwards who according to him was showing "concussion type" symptoms as he vomited on three occasions. There is no evidence that he suffered a concussion. I draw the inference that he was feeling the residual impact of the taser being deployed.

(L) The Search of the Vehicle

83PC Seebali said prior to leaving the scene, he searched Mr. Hemmings' vehicle incident to arrest and found an open bottle of beer, a small amount of suspected cocaine along with a glass vial with white residue inside a backpack. He also found $313.70 in currency. All items were seized. The defence did not argue that the search was unlawful. Moreover, Exhibits 3(a) and 3(b) are certificates of analysis from Health Canada which confirm that the item in question is in fact cocaine. That said, the Crown did not lead evidence to prove that the backpack in question was tied to Mr. Hemmings as he was driving the car of Ms. O'Regan. There's a competing inference it was her backpack as he was simply borrowing the car for the night. See for example, R. v. Villaroman, 2016 SCC 33 at para. 13. On the blended trial, I have a reasonable doubt that he had knowledge and control of the contents of the backpack, which was not his.

(M) The injury of PC Edwards

84PC Edwards testified that he incurred a head injury during the altercation but didn't know how or when he got injured. He explained that after Mr. Hemmings had been restrained, he felt some pain in his head and felt nauseous. He retreated to his police cruiser and vomited. He theorized that during the altercation, he may have made contact with Mr. Hemming's face and head. He recalled that Mr. Hemming's hands, palms and fists were in his facial area during the struggle.

85In cross-examination, PC Edwards acknowledged that the concussion was never confirmed by a doctor. He attended for an assessment with his family doctor, which came back negative. Mr. Sarikaya challenged PC Edwards on this issue. As I understood the evidence, Crown counsel (not Ms. Crawford) followed up with PC Edwards to determine the nature of his injuries but he never told her that his assessment yielded no results. Indeed, he testified he recalled a conversation with Crown counsel but had no memory of the contents.

86Finally, Mr. Hemmings confirmed he never filed a formal complaint with the police over the alleged conduct. I don't make much of this because he was charged with a criminal offence.

V. ANALYSIS

87I will now consider the legal issues.

A. Does the evidence prove that Mr. Hemmings assaulted both officers during the course of a lawful arrest?

88Mr. Sarikaya concedes, properly in my view, that the police had lawful grounds to effect an arrest for the offence of impaired care or control. He argues despite these grounds, the evidence does not establish the offence of impaired care or control beyond a reasonable doubt.

89Since the defence conceded that the arrest was lawful, I will still consider whether the Crown has proven the two counts of assault resist arrest beyond a reasonable doubt given the blended hearing. Cases have established that a person must do more than just passively resist efforts to be arrested to rise to the level of "resisting" an arrest: R. v. Stortini (1978). In R. v. Kennedy, 2016 ONCA 879, the Court of Appeal considered the issue of what constitutes resisting an arrest in the context obstructing a peace officer. Benotto J.A. affirmed Stortini and held that "resistance" is more than just being non-cooperative.

90In this case, Mr. Hemmings was more than just non-cooperative during the course of his arrest. Based on the admissible evidence from the Crowns' case, I accept he fled and continuously resisted all efforts to be safely handcuffed. He was told to stop resisting and didn't listen. This evidence is confirmed by the independent civilian witnesses. In my view, the evidence establishes he resisted a lawful arrest beyond a reasonable doubt. It also proves he assaulted PC Griffin and PC Edwards while they tried to arrest him.

B. Has the Crown proven the offence of impaired care or control?

91Mr. Sarikaya argues the evidence is insufficient to prove that Mr. Hemming's ability to operate a motor vehicle was slightly impaired by alcohol.

92Ms. Crawford submits the offence has been proven because Mr. Hemmings was in care or control of a motor vehicle and was impaired.

93The Crown can prove the offence of care and control by three means. The first is by proof of actual driving. The second is to rely on the rebuttable presumption in what was section 258(1)(a) of the Criminal Code by proving that Mr. Hemmings was in the driver's seat of his vehicle while impaired. The third is to prove actual or de facto care and control of the vehicle by establishing that there existed a realistic risk of danger in the circumstances. See R. v. Smits, 2012 ONCA 524 at paras. 48-51; R. v. Agyemang, 2014 ONSC 4232.

94The actus reus of the offence is the assumption of care or control when the ability to drive has been impaired by the consumption of alcohol. The mens rea is the intent to assume care or control after the voluntary consumption of alcohol. The information does not allege the offence of "operate" but rather care or control. The law is clear that care or control is subsumed in "operation": R. v. Plank (1986).

95It is incumbent on the Crown to prove beyond a reasonable doubt that Mr. Hemming was "impaired" even to a slight degree. In R. v. Bush, 2010 ONCA 554, Durno J. wrote: "slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on one's perception or field of vision, reaction or response time, judgment and regard for the road". This is a factual determination.

96In this case, there is no real evidence of driving even though this is not the only means of proving the offence. Ms. Smith testified she saw Mr. Hemmings pull into the McDonald's and park off to the side to wait for his food. The police evidence established the grounds for the arrest were: (i) glossy eyes, (ii) slurred speech, (iii) smell of alcohol on his breath and (iv) the open bottle of beer in the cup holder. While this may have been enough to form reasonable and probable grounds for arrest, the standard of proof to secure a conviction is much higher at proof beyond a reasonable doubt. I must consider all the observations and testimony to determine whether the totality of the evidence "is rationally consistent with any other conclusion than guilt" in so far as slight impairment is involved. I must ask if there is a reasonable, innocent (ie. not impaired) explanation for it all. If so, I must acquit: Villaroman, supra at para. 13.

97I conclude that based on all the admissible evidence on this blended hearing, while his ability to operate a motor vehicle was probably impaired by alcohol consumption when he pulled into the McDonald's, it is reasonably possible that his behavior is explained by the fact that he was nervous and fled. There was really no other evidence speaking to his fine motor skills, such as exiting from the vehicle. In fact, it would appear he ran away and got involved in a lengthy struggle where he was able to use his motor skills to resist an arrest before it took multiple officers to get him under control. This shows he may not have been impaired by alcohol.

98Accordingly, the impaired care or control charge is dismissed as I cannot be sure Mr. Hemmings was "impaired" which is a question of fact.

C. Has the Crown proven the offence of possession of a controlled substance beyond a reasonable doubt?

99For reasons already explained above, there is no evidence that tied Mr. Hemmings to the backpack and consequently the drugs in the backpack as he was driving Ms. O'Regan's vehicle. She was never asked about the backpack or the drugs. There is no proof of knowledge, which is an essential element of possession. Applying the same Villaroman standard, this count will also be dismissed.

D. Did the police violate Mr. Hemmings' rights under s.7 and s.12 of the Charter?

100Based on my findings in this case, I find no breaches of ss.7 or 12. To repeat, the police were entitled to use the tasers, which was a proportional response to the resistance by Mr. Hemmings. While PC Griffin and PC Browell were inconsistent in their evidence as to how many times the taser was used, the evidence establishes it did not have an impact on Mr. Hemmings. It does not mean the police officers lied. It only means they weren't reliable in their recollection because they didn't think it made contact with Mr. Hemmings which was a reasonable belief at the time. Moreover, I find the police officers did not punch Mr. Hemmings in the face or put a boot to his face. He suffered the injuries during the aggressive struggle on the ground.

101I have also considered whether the police made contemporaneous and detailed notes surrounding the circumstances of using force during the arrest, which includes details of what force was used, why the force was used and why the police may have escalated the use of force: R. v. Golden, 2001 SCC 83. The failure to document all of these details may disentitle the Crown from discharging its burden of justifying the force used. In this case, while the officers didn't have detailed notes in their memo-book of the force used, this is juxtaposed with the evidence that all officers completed Use of Force Reports (Exhibit 5) and photographs were taken of Mr. Hemming's injuries. He was also immediately taken to the hospital and no breath tests were done. There could be no police cover up in these circumstances. I find the police reliably documented their interaction and this is not a basis to find a breach of ss.7 or s.12 either.

102I have considered the Tran decision relied on Mr. Sarikaya and with respect, it does not apply in this case. Mr. Tran was subjected to egregious police conduct where a court found that the police engaged in an unnecessary beating after he exercised his right to silence. As held by the Court of Appeal at para. 93, the police "beat him up" and it was not a case of excessive police force during the discharge of their duties. In my view, Tran does not apply in this case because the police did not beat up Mr. Hemmings. The force was used during the proper discharge of their duties.

E. Should the proceedings be stayed under s.24(1) of the Charter?

103In the event that I have erred in my assessment of the s.7 issue because the police should have taken more fulsome notes, this is not a clear case where a stay of proceedings is warranted. Even if I'm wrong that the use of the police taser on the second occasion was unnecessary, I'm persuaded by the analysis of Schreck J. in Abdillahi, supra that at its highest, PC Browell may have exercised bad judgment in the course of a "stressful and fast-moving situation". To be perfectly clear, I find he did not exercise bad judgment because he had no way of knowing PC Griffin already used a taser. He responded to a dynamic scene and was motivated by good faith to get Mr. Hemmings under control. After the taser didn't work (in his mind), he used his hands to handcuff him like a professional. Nobody set out to injure or even tase Mr. Hemmings. While most unfortunate, his injuries were not permanent, nor serious based on the medical records. I'm sure as a young male, the interaction had a psychological impact on him but this issue is divorced from the analysis I must complete in this Application. No citizen in our community should have to endure what Mr. Hemmings did but with great respect to him, it could have been avoided if he simply acceded to the arrest like asked. Moreover, in Nasogaluak, at para. 17, the conduct in that case was egregious but didn't result in a stay. This case doesn't come close to the circumstances in Nasogaluak.

VI. CONCLUSION

104For the foregoing reasons, the ss.7 and 12 Charter applications are dismissed. In light of this conclusion, the application under s.24(1) is moot.

105If I have erred in some fashion as described above, I would not be inclined to award a s.24(1) remedy.

106There will be findings of guilt on counts 4 and 5, while counts 1 and 3 will be dismissed. Count 2 had been previously withdrawn by the Crown.

107Notwithstanding the failed Charter application, I will invite submissions of a sentence reduction as part of a consideration of the offence and the offender: R. v. Suter, 2018 SCC 34 at para. 46.

108I would be remiss if I didn't thank counsel for their helpful submissions in this challenging and unfortunate case.

Released: August 7, 2019

Mr. Justice F. Javed