ONTARIO COURT OF JUSTICE (TORONTO REGION)
R v Jorge Cervantes-Serrano
Ruling on Charter Motion to Stay Proceedings
April 16, 2021 (151 paras)
Counsel for the Defendant/Applicant: Martin Montes Counsel for the Crown/Respondent: Helen How
Libman J.: -
Introduction
1In the early evening hours of 20 January 2019, Constable Mac, a police officer of over 20-years’ experience, saw a motor vehicle, a black pick-up truck, speeding down Ossington Avenue in Toronto and attempted to pull it over. The driver was the accused, Mr. Cervantes-Serrano. The latter had been drinking.
2Eventually, the motor vehicle stopped; however, a confrontation ensued between the two principals; Officer Mac, a much smaller and older man than the defendant, requested back-up. In the moments that followed, the accused was forcibly removed from the driver’s seat of his truck by a number of police officers who came to the officer’s assistance. He was pepper-sprayed by Constable Mac beforehand.
3The investigation of the accused subsequently led to charges being laid of impaired driving; assaulting Constable Mac; blowing over the legal limit and failing to stop for police.
4A trial was held into the matter, commencing before the pandemic on 4-6 December 2019; it continued afterward on 22 and 29 January 2021.
5The defence says the accused’s Charter rights have been violated for multiple reasons: due to the use of excessive force by the police and violating his rights to counsel and not being told of the charges he was facing in a timely manner. As a result, the charges should be stayed. Alternatively, the evidence ought to be excluded.
6The Crown disagrees. She says there were no Charter violations, and even if there were, lesser remedies should be considered.
7The submissions made by the parties in support of their positions were heard by me on 24 March 2021. On today’s date, 16 April 2021, I rule on them. What follows, then, are my Reasons for Judgment on this Charter motion.
Evidence on Charter Motion
Constable Mac
8The evidence of the arresting officer, Constable Mac, is essential to the determination of this Charter motion. As a result, I will set it out in detail, in order to ground the legal issues and submissions that follow, based upon it.
9Constable Mac was on general patrol on the evening in question. He was alone in a fully marked police scout car. It was 7:44pm when he noticed a motor vehicle, a black pick-up truck driving at a high rate of speed southbound on Ossington, just north of College Street. It was cold and dark at the time.
10The officer followed behind the vehicle and noticed that it was swerving within the lane. It crossed the centre divider yellow line on Ossington at one point and came within inches of striking a trailer that was parked against the west curb of Ossington. Mr. Serrano, the driver of the truck, stopped for a red light as he approached College Street, although he did so about 10-15 metres before the stop line. There was no one in front of him. The officer pulled in behind him and activated his in-car camera at the time.
11When the light turned green, the accused remained stopped for a few seconds. He then accelerated away at a high rate of speed, as if he floored the gas pedal. At this point Officer Mac activated his lights. His siren was turned on as well. The time was now 7:45p.m.
12Mr. Serrano’s vehicle eventually stopped when other vehicles were in front of him. He had not made any attempt to pull over or come to a complete stop as required beforehand. The officer had been following him for about two and a half blocks south of College. He pulled up beside him to block any escape routes for his truck, as he did not appear to want to stop. The officer then got out of his vehicle and approached the accused.
13The transcript of the conversation that followed starts at 7:45:56 with the officer asking to see the accused’s driver’s license. The first remarks from the accused were “why, what’s going on like .. what’s going on like?” Every time he asked the defendant to identify himself, he refused to do so.
14In the first minute of their conversation, Officer Mac asked the defendant to show him his driver’s license ten times. The last two times over this period, the accused’s replies were: “You don’t have to be that way”; “Why are you pulling me over.”
15According to the officer, his intention was to investigate the defendant for provincial offences infractions, and to check his sobriety. Mainly though, he wanted to identify him, and to continue on his investigation of the driver and to identify him.
16The following minute, 7:47 to 7:48pm, when the officer asked to see his driver’s license, the defendant replied. “I’m going to give it to you when you tell me the reason.”
17It was at this point that the officer noticed that the defendant would look ahead of him as if he was trying to survey what was in front of him. The vehicle that had stopped in front of him had pulled away. The accused was also looking at his shifter and his hand was still holding it. Constable Mac believed that he was trying to look for an opportunity to flee the scene. His vehicle was still running. There was also a heavy scent of alcohol coming from the accused’s breath as he spoke.
18The officer felt if he advised the accused that he was under arrest he would definitely attempt to flee the scene. He waited for a minute when the accused looked down at the shifter and opened the door. He reached in and tried to take the keys and turn the vehicle off.
19However, he was met by aggressive punching or striking at his arms as he reached across the steering wheel to try to reach the ignition keys. He cautioned the accused to stop resisting and that he needed him to turn off his pick-up truck.
20Constable Mac reached in a second time to disable the vehicle. This time the accused pushed him back physically from the cabin of his pick-up truck. The officer warned the accused that if he didn’t stop struggling, he would pepper spray him. When he was met with force after reaching in again, the officer sprayed the accused in the face with a one to two second blast of pepper spray. He then broadcast over the police radio that he had been trying to stop a driver and when he wouldn’t stop, he pepper sprayed him.
21According to Officer Mac, he held the can of aerosol pepper spray about eight to nine inches in front of the accused’s face. He showed it to the accused before deploying it. The accused was non-compliant the entire time. The officer testified that he used it to be able to have the opportunity to turn his ignition off and effect the arrest. The accused’s vehicle was still running the entire time. He used the pepper spray to prevent the accused from escaping and possibly harming the general public, the officer, and himself after his interactions with him.
22Constable Mac described himself as being at the time 5 foot, 7 inches, and weighed 180 pounds. He was 54 years old then. He sensed that the accused was a lot heavier than him. He was approximately 6 feet and a lot more muscular than the officer. He thought the accused was in his mid-20’s which would make him at least half his age.
23All three times he tried to reach in to turn off the ignition, the accused prevented him from reaching the keys. He applied the pepper spray one time only. It did not appear to be very effective, as it just slightly took away his attention momentarily. Mainly it left him unphased.
24The officer advised him he was under arrest and to exit his vehicle. The accused yelled “no” and was still non-compliant. It was at this point that Constable Mac contacted radio dispatch and asked for other units to attend.
25During the next minute 7:48-7:49, the officer said to the accused that he had been drinking and he was under arrest. He asked him to get out of the driver’s seat. He also requested an ambulance. The accused’s reply was “Why you doing this to me man”. Again, Constable Mac asked to see his driver’s licence and told him to get out of the car. The accused asked him why he was under arrest.
26In the minute that followed, from 7:49 to 7:50, the officer answered the accused’s question and told him he was under arrest for failure to stop for police and impaired driving. The accused’s response was “Hey listen, why you’re pulling me over.” Constable Mac explained that he almost hit a trailer and he had it on video. The accused asked him two more times “Why you pulling me over.” Constable Mac responded that he was going to spray him again if he didn’t get out of the car. He told him to unfasten his seatbelt three times. The accused answered, “What are you doing”. Mac told him he was placing him under arrest. The accused stated “Why you are being like this man.” The officer responded, ”Ok, get out of the car. Ok, stay in the car and wait.” He then radioed for another unit, advising that the accused was refusing to get out of his car, but he had taken his car keys from him.
27In his testimony about this time period, Constable Mac explained as he was reaching in, the defendant was trying to engage the shifter lever of his vehicle as he was gassing it. It was during this time that he was able to reach in and turn the ignition off as he was revving the car. He removed the keys from the ignition. He made one more attempt to get him out of the car but the defendant refused to get out; he would push the officer away as he tried to unfasten his seatbelt. As he had already contacted 14 Division for backup, he decided rather than escalate the situation and use any further force, to let the defendant just sit in his vehicle and wait for the other units to arrive on scene. At this point the vehicle was disabled and the defendant was not a risk to drive away and endanger the safety of the public or himself or the officer.
28On the second day of his testimony, Constable Mac stated that he had already advised Mr. Serrano that he was under arrest prior to him revving his engine. He had already pepper-sprayed him by this point. When he started the vehicle a second time, it was then that the officer was able to reach over and turn it off and remove the keys. The accused was revving the engine at this point and trying to throw the vehicle transmission into drive. This vehicle had an actual physical key; it was hanging out of the ignition switch. The officer believed that as the accused was looking down around his surroundings and had his right hand on the shifter, he was trying to make an escape.
29Even after he removed the keys, the accused continued fighting him. He would punch his arms to keep him from reaching his seatbelt. The officer was standing between his open car door at fairly close quarters. Due to the accused’s size and strength, he was unable to take control of the accused and place him under arrest as he kept pushing him out of the driver’s compartment.
30Constable Mac recalled that in over his 20-years of policing and 7000 to 8000 vehicle stops, he had never before been in an altercation. This was the first time he ever had to use any level of force. This was the first time someone had actually actively resisted him by using force to prevent their arrest.
31Once he had control of the keys to the vehicle, he re-evaluated the situation. He didn’t continue to try to get Mr. Serrano out. He knew there was help on the way. He heard the sirens coming to his location. As a result, he closed the door back up and gave verbal cautions to stay in his vehicle. He did not wish to revert to a higher level of force since the defendant was not complying with his initial instructions and cautions. Until he had him in control, and therefore under arrest, the officer explained he did not deem it appropriate to read him his rights to counsel or breath demand. He also deemed it more necessary for him to receive treatment due to being pepper-sprayed. However, the defendant declined treatment when the ambulance arrived on scene. In summary, due to the defendant’s strength and size, and not wanting to use further force, the officer made the decision to delay until he was actually in control of the police and in a less excited state. At that time, he would be able to tell him in “a more sound manner” as to what his rights and his requirements were at that point.
32He had advised dispatch at 7:47 that he needed assistance right after he pepper-sprayed the accused and realized the situation was getting out of control. At that point he had not yet retrieved the keys form Mr. Serrano although he had been pepper-sprayed and was somewhat disoriented. However, it appeared to be mostly ineffective as he did not appear to be affected by it; subsequently, he mocked and laughed at the officer for administering the spray on him.
33Between 7:50 and 7:51pm, Constable Mac told the accused to take his seat belt off and get out of the car. The accused replied, “Take it easy man, take it easy man.” Mac then advised him to stay in the car and that he would be arrested in a second. Again, the defendant stated, “Take it easy man.” It was at this point that Officers O’Toole and Rowe arrived on scene, from 14 Division.
34The in-car camera was next played until 7:51:57. One of the other officers on scene could be heard warning the defendant that he was going to get tasered. He was told this as he still resisting and would not comply with any of the orders being given. Officer Mac was not himself equipped with a taser. The defendant was still defiant, and fighting being placed under arrest; he was not complying with any of the lawful commands being given. At one point the defendant stated, “Good job man. You’re a fucking hero.”
35Mr. Serrano was taken out of the car with force and restrained at this point. He was now fighting three or four of the officers who were trying to effect the arrest. They were trying to use soft-hand tactics to bring him under control, and not further escalate things through the use of a taser or further pepper-spraying. Examples of the former were using arm holds and verbal commands so that he would place his hands behind his back so that he could be taken under control and arrested.
36Eventually, he tired out, and his hands were placed behind his back and he was handcuffed. Until that point, he had been fighting and struggling and doing everything in his power to prevent being taken into custody and arrested. He was prone on the ground when this happened, laying on his front on the surface of the roadway. Force was used to get him in this position. Leg hold restraints were also used to prevent Mr. Serrano from thrashing by kicking out at the officers. The taser did not have to be deployed.
37By this time there were at least seven or eight officers on scene. An ambulance also arrived to provide assistance to the defendant and the officers and decontaminate from the pepper spray. Toronto Fire was also present. Constable Mac was starting to feel some of the pepper spray on himself and his adrenaline was still going; he was glad that the other units arrived to assist him.
38The in-car camera was played next until 7:55:34. Mr. Serrano had not yet been placed inside the scout car. There was a fair bit of shouting and a lot of noise and banging during this time. The defendant was still struggling. There were grunts and moans from his non-compliance still at that point. The officers were trying to do a quick pat down search of him for any weapons or means of escape. Officers were yelling “Stop resisting” during this time. Constable Mac was fairly fatigued from his struggling with the defendant at this point and was not involved in the physical arrest of him. He was grateful that the other officers were present. The defendant declined first aid or treatment for the pepper spray when offered by the paramedics on scene.
39The next video clip was played until 7:57:59. It showed Officer Mac’s scout car moved over to the curb on Ossington. One of the 14 Division officers, Constable Mohammed, accompanied the officer and the defendant when they left for Traffic Services, where the closest breath technician was available. Before leaving, Constable Mac was given saline solution to wash the pepper spray off his hands.
40At 7:59:33 the defendant asked if he could have a napkin as he had been pepper-sprayed in the face. Officer Mac was not yet in the car at this time. He had been the victim of an assault and was trying to regain his composure and provide the defendant with his rights and properly process the arrest and organize the transport of Mr. Serrano for further investigation in regards to the impaired driving charge.
41Subsequently the defendant was questioned by the other officers about his name and date of birth. This information was required to be transmitted before attending at the police station to book a prisoner. According to Officer Mac, the officers were trying to identify Mr. Serrano as he did not have an official driver’s licence in Ontario, but one issued in Mexico. He did have a Ministry of Ontario identification card. Until the time that the tape was stopped at 8:06:49, the defendant could be heard asking why this guy (P.C. Mac) pulled him over. He stated that he just wanted to know what was going on. He told them, while laughing, to just do their job. He added, “I tell you straight up, I don’t have need to bull shit you.” He also stated it was his truck that he was driving.
42The tape was next played until 8:10:16. Constable Mac was now in the car. He had been advised to go to Traffic Services for breath testing. The accused explained that he had something in the truck. He said to Mac, “I’ll remember you.” The witness felt that the defendant was trying to intimidate him at this point of time. He made comments like, “You’ll see me.” “I’ve see you, now you’ll see me later at some later point in time” sort of thing. Although he was in custody, he was defiant and quite visibly distressed about the situation; he was still angry and making comments to try and intimidate the police.
43En route to the police station, the officer stopped the car at 8:14 and gave the defendant his rights to counsel, the caution, and approved instrument demand. Constable Mac explained the reason for not making him aware of this earlier, after the defendant had been placed in the back of the vehicle at 7:57, was due to the “dynamic situation” that had unfolded prior to that. It was also to provide time for first aid and to get everything ready to do the transport. Once he realized he had not done these things, he immediately stopped the transport to make the defendant aware of his rights and this information. However, Mr. Serrano continued to interrupt rudely and would not listen to what he had to say. The officer cautioned him many times to just stop talking and listen to the caution.
44Throughout this period, the accused repeatedly asks why he had been pulled over. He said that he had rights too and demanded to know the reason. He asked Officer Mac why he pepper-sprayed his face and said, “I know the law my friend.” At 8:17 he belched while talking to the officers. He added, “I want to know the reason why you pull me over.” He proceeded to ask the officer what grade his kids were in school. He commented, “You know why I’m not treating you with respect .. you crossed over the line.”
45The tape was next stopped at 8:23:54. The accused was continuing to try to intimidate the officer by making comments and asking him how his grades were in school, suggesting that he was not very smart. The accused laughed and told the officer that his grades must not have been that good or he would not be working in the police car. The accused spoke to the officer in English throughout the time they were together.
46At 8:25:46 the defendant told Officer Mac that he had gone over the line and what he had done was not right. He was still fairly angry, and his tone was one of intimidation as they were driving to the police station. His comments were to the effect that the officer hadn’t treated him with respect and that he basically did this to the wrong person. The officer took this to mean that the accused was giving him some type of warning or trying to intimidate him by mistreating him, and there may be retribution from it.
47They arrived at the police station at 8:26. There was a thirteen-minute delay before they went into the booking hall. There was another prisoner that was ahead of them. During this time, the accused continued to be belligerent: he called Constable Mac an asshole and complained that his handcuffs were too tight. When the officer did not respond to him, he stated, “I’m talking to you straight up.” He called him “Mr. Chinese” and said, “Listen Asian”. Afterwards he said, “You no want to tell me .. good boy my friend.”
48In terms of how Mr. Serrano presented himself throughout the evening, the witness stated that he was always defiant and used a lot of innuendo to try to intimidate him right from the start. His tone of voice and inflexion was used to let the officer know how he was feeling and to try to intimidate his actions or further actions.
49At no point while he was with the officer did anyone ask him anything about the offence before he spoke to duty counsel. He did not ask for any medical assistance aside from requesting a napkin.
50They entered the police station at 8:43:29. Mr. Serrano was still in leg restraints when he got out of the police car. He was booked by the officer in charge of the station, Staff Sgt. Grover. At that time, he provided the name of his lawyer. A message was left on his lawyer’s answering machine. The officers also placed a call to duty counsel at 9:15, which was twelve minutes later. He spoke to him in a privacy booth. Following the call, he was brought into the interview room at 9:37 for breath testing.
51At the end of the first breath test, there was an altercation outside in the hallway when the accused was struggling with one of the officers who was trying to escort him back to the interview room to await the second test. The accused took exception to the officer putting his hand on him while escorting him.
52The second breath test took place at 10:19. Constable Mac was present for both breath tests. According to the officer, every time he left the interview room, he made eye contact and tried to stare him down. He felt he was trying to intimidate him the entire time he was at the station. There were two other officers inside the breath room, for officer safety reasons. They were trying to prevent anything from possibly happening.
53Over the course of the evening, the accused was upset and just kept repeating the same thing over and over again. In the vehicle prior to transport, during the transport and upon arriving at Traffic Services, he asked the question why he was under arrest and what had he done up to twenty times. He was told each time that he was there to provide breath tests and to be processed for those charges. He had been told initially by Officer Mac that he was being arrested for impaired driving. The officer could smell alcohol on him, and this odor remained present on him throughout the evening.
54The accused did not appear to require the assistance of an interpreter. He did not appear to have any difficulty understanding the officers when they spoke to him. When they were in the police car and Constable Mac asked him if he needed an interpreter, the accused stated, “Do you think I need one? He said this in a “very cocky manner.” The officer’s final involvement with him was when he served him with documents for his release. There were no further incidents between them at that time.
55In cross-examination, Constable Mac stated that he advised the defendant he was under arrest when he was still sitting in the driver’s seat of the vehicle and he refused to identify himself and he refused to comply with his orders. The arrest was for impaired driving. When he first saw his pick-up truck, he also observed some possible Highway Traffic Act infractions. The investigation began for the latter. It was only when the defendant’s vehicle stopped and the officer was able to get close to him that he could smell a very strong smell of alcohol on him. At that point in time he formed reasonable grounds to proceed with impaired operation. He had not yet formed any grounds in relation to flight from police as there were “a lot of things happening at the same time.”
56The defendant did comply by opening his window when the officer approached him. It was then he smelled an odor of alcohol. He did not notice any slurred speech on him. Nor any red or glossy eyes. There was a layer of snow or slush on the roadway that covered up some of the roadway markings. He agreed the roads were, in fact, damp and wet, contrary to his earlier recollection.
57Constable Mac agreed that the vehicle that was in front of Mr. Serrano’s car truck left within seconds of the officer getting out of his cruiser. There was therefore nothing blocking his possible escape route from this point of time. There was a strong possibility in his mind, however, that the defendant was about to drive off.
58The witness first asked to see the defendant’s documents and advised the reason for the traffic stop. He agreed Mr. Serrano asked him right away what was going on and why he was being pulled over. The officer told him that he wanted his identification. Once he smelled the odor of alcohol on him, he informed him that he was under arrest for impaired operation. This occurred prior to pepper-spraying him. Everything was happening really fast; the officer needed to identify the driver and his priority was to identify him as he felt he was about to flee.
59Constable Mac believed that the defendant was trying to obstruct his investigation by continuously asking him questions. There were times when he was looking at the officer, and others when he looked away. He was constantly scanning the area as he looked down at his shifter; he refused to comply with the officer’s lawful orders to identify himself. His hand was on the shifter at times too. In the defendant’s vehicle, it was located on the centre console. It was automatic transmission. The officer could tell the vehicle was in park since when he revved it, the vehicle did not move. He was able to finally able to remove the keys afterward. The first time he turned it off, the defendant started it back up almost immediately after he turned it off. This was right before he pepper-sprayed Mr. Serrano.
60The witness disagreed that the engine revved when the defendant was trying to push him. He stated that he was actively trying to engage his vehicle into drive when he was reaching in and turning his key off. It was after the defendant pushed him away and hit his arms to prevent him from removing the keys that he started the car back up. It was then that the officer pepper-sprayed him and cautioned him that he wanted to stop the car. The last time that the defendant pushed him was when he was trying to take his seatbelt off, after the vehicle was stopped.
61Constable Mac did not observe that the defendant had a cell phone in his hand. He acknowledged that he did not advise the defendant that he was under arrest initially as he thought he would drive away if he told him that. It was his belief that he first had to render the vehicle inoperative, or the defendant would escape. According to the officer, it was “almost instantaneous” and all part of the initial approach; he did not have time to advise the defendant he was under arrest. However, he did not form the belief that he was not going to advise him of his arrest. In fact, he did not specifically come to the conclusion that it was better not to advise him of his arrest. Mr. Serrano was advised of his arrest, though, before being pepper-sprayed by the officer. He warned him first that he would pepper-spray him when he kept pushing him out of the cabin of his truck.
62The officer did not tell him that he was under arrest because he was going to pepper spray him. Those two events were “totally separate”. He told him numerous times while he was seated in the driver’s seat that he was under arrest. His seatbelt was on the entire time; the officer was never able to take it off. He was able, though, to remove the keys from the ignition towards the end. The leys were in the ignition when the officer first told the defendant he was under arrest. At this point no additional officers had arrived. Constable Mac was still under the belief that the defendant might drive away.
63The cross-examination of the witness continued on 22 January 2021. Constable Mac recalled that the defendant refused to identify himself and to turn his truck off. He told him that he was being investigated. He did not ask him to hand over his keys prior to trying to remove them himself. The officer explained it was a “very dynamic situation” and the accused was disobeying his lawful commands and obstructing him from his investigation. He approached the accused right away without first turning off his siren. He believed that he might flee the scene due to his actions; he was also afraid that the accused might drive away with him hanging on to the side of the vehicle. By the time he radioed for back-up, he did not want him to exit his car at that point. Constable Mac added that the accused only stopped his truck as it was blocked by other vehicles.
64Constable Mac disagreed that he could have taken other steps to deescalate the situation prior to pepper-spraying the defendant. He felt he was in immediate danger at the time. The accused was being uncooperative to his lawful commands and it was obvious that he was a police officer. He did not initially believe that there was a need for back-up. He did not apply the pepper-spray before cautioning the defendant that he would do so after reaching in for a second time in an effort to disable the vehicle. The officer acknowledged that he was in error in testifying previously that he informed the accused he was under arrest prior to pepper-spraying him, stating that the situation was unfolding rapidly, and in his judgment the safest thing to do was to prevent him from fleeing by turning off the vehicle. He did not have time to formulate the decision to inform him that he was under arrest. It would not have been wise to advise the accused of this, as he believed he would attempt to flee the scene. This was the first time in 22 years he had to use pepper-spray to quell a situation.
65During the entirety of the situation the accused was wearing a parka. The officer was able to tell that he was much bigger than him and more muscular, even with his jacket on. It was obvious that he was much bigger and larger in structure than the officer. He was also much taller and younger.
66After he pepper-sprayed the defendant, it did not appear to have had any effect on him. He continued to laugh and mock the officer. Constable Mac acknowledged that he did not write this in his notes. It was hard to hear this over the sirens on the video. Neither did he record in his notebook that the accused shoved him away with force when he reached inside the cab for the keys.
67The officer agreed that when pepper-spray is applied close to another it can lead to discoloration and redness on the skin. He did not recall if the accused raised his hand to block it when being sprayed. When shown a picture of the accused’s right hand with a red mark on it, the witness stated that he did not believe that was caused by pepper-spray. The accused was involved in a struggle with the officers, and he was taken to the ground when he refused to be cuffed. He could have received his injuries at this time. When the spray was applied, he was seated in his vehicle, and was wearing his jacket. The officer did not recall seeing any of his skin exposed at the time. When shown a second picture of the defendant with a red mark on his stomach, Constable Mac denied that he caused this injury. He also denied pepper-spraying the accused a second time that evening. When the video was played of the accused being removed from the cab of the truck at 7:51:31, the officer pointed out that it showed handcuffs in his hands, and not the can of pepper-spray. He insisted that he did not pepper-spray Mr. Serrano twice.
68The officer did not place the accused in his cruiser as he was being treated by the paramedics for cross-contamination. It was for this reason that he did not administer the accused his rights at this time. He was just trying to “catch his breath” at the time and there were numerous other officers at the scene. He could not remember if his thinking was that other officers would give the accused his Charter rights, or that he would do it himself later on. It was only later on, after 8pm when he was en route to Traffic Services, that he realized he had not advised the defendant of his rights, so he pulled over on the side of the road to do so. He told him he was under arrest for impaired driving, at this was the offence he was dealing with at the time. He considered that if additional charges were to be laid such as flight from police, this could be done after speaking to officers at the police station. When he did advise the accused of his rights, he interrupted him the entire time and was not listening to the legal notice he was reading.
69In re-examination Constable Mac stated that at no time did Mr. Serrano complain of any injuries to him. He did not mention any injury to his stomach area. He denied spraying him a second time. Moreover, he would not apply spray to a person’s stomach as to be effective the spray is to be applied to the person’s eyes or mucus area, in order to affect a response on the respiratory system. Applying pepper spray to the stomach area would not produce such an effect, nor would it break the skin on one’s hand if applied there. Other officers were present at the time witnessing Constable Mac’s dealings with the accused, and their recording equipment, including the in-car camera system, was activated the entire time.
Constable O’Toole
70Constable O’Toole was one of the officers who responded to the request for back-up broadcast by Officer Mac. His partner was Constable Rowe. They arrived on scene at 7:50pm.
71The video clip that was played at this point in time, 7:51:07 – 7:51:57, showed the three officers pulling the accused to the ground. They yelled, “Stop resisting”. He went straight to the door of the accused’s pick-up truck and ordered him to come out of the vehicle. However, he refused to do so. O’Toole asked him several times to get out as he stood at the driver’s door. The accused replied that he was not getting out. The officer told him he was under arrest and opened the door from the inside. Mr. Serrano leaned back and resisted getting out. The officer ended up pulling him out. The defendant kept pulling his body towards the middle of the truck. Eventually he was able to get him out by pulling him out using both hands. The defendant continued to resist. When the officer was able to get him on the ground, he swore at him and said, “fuck you”. There was a lot of yelling and swearing by the defendant; he was very combative with the officers.
72Between 7:51:57 – 7:53:18 two more officers joined the group in an effort to take control of Mr. Serrano. He tried to get up off the ground and was kicking at the officers. He held his hands by his chest and would not let them cuff him. He was moving his body around. It was hard to control him as he was a strong guy. Eventually they were able to get the cuffs on. However, the accused kept kicking at them and moving around, so leg restraints were applied to him. One of the officers told him he was going to get tasered as they struggled on the ground. By the time the officers were able to take control of the accused, at 7:54:26, he was restrained by handcuffs and leg restraints. He did not complain of any injuries or ask for medical attention. Paramedics were on the scene by this time.
73Constable O’Toole testified that as soon as he was talking with the accused outside his truck there was a strong smell of alcohol coming from the cab of his vehicle. He did not notice any other indicia of alcohol. The accused was more verbal than anything at this point, saying he would not get out of his vehicle and not listening to the officers’ commands. He was combative and swore at them several times. The officer’s next involvement with the defendant was when he attended Traffic Services approximately thirty minutes later. He was still yelling and swearing and carrying on at the time.
74The witness testified that he was the only one who pulled the accused out of his truck. He was holding a cell phone in his hand at the time as if he was recording him. The officer breathed in pepper spray from the cab of the truck. It made him cough and he went back to his car afterward. Constable O’Toole denied that while he was removing Mr. Serrano from his truck that Officer Mac administered pepper spray to him. The officer was not the one who arrested the defendant, but he did help cuff him, along with his parent Constable Rowe. Moments later the accused was assisted to his feet and taken to Mac’s squad car. He was more calm at this time and was not fighting as much.
Constable Rowe
75Constable Rowe, in turn, testified that he was the one who told the accused that he would be tasered if he did not stop struggling with the officers. He was equipped with a taser at the time. He mentioned the taser to the accused in the hope that he would comply with their demands. He did not actually pull it out or use it at the scene. It did not change the accused’s behaviour. When he would not put his hands behind his back the officer administered knee strikes to his back to get control of his hands. The officers were telling him to stop resisting and kicking them at this time. It was a struggle getting hand cuffs on him. His demeanor did not change over the entire period of time that it took to get him into the scout car and leave the scene.
76The witness told the accused that it was over and he should stop fighting when he was on the ground. When he refused to stop kicking at them, the placed him in leg restraints. They lifted him off the ground and carried him to the police car. He continued talking to them at the time. Subsequently, the officer did an inventory search of his vehicle, and noticed that there was a phone charger, tool box and tool bag. He also found a 1.5 liter empty bottle of vermouth behind the passenger’s seat wedged behind the seat.
77When Constable Rowe did a pat-down search of the accused he detected a strong odour of alcohol coming from him. He was then placed in Constable Mac’s car. There was also a strong odour of alcohol in the cab of the accused’s truck. The officer subsequently went to Traffic Services where he noticed that the accused was still struggling with the officers.
78In cross-examination, he indicated that he did not recall if he was able to smell pepper spray before the accused was taken to the ground. He had no recollection of smelling the odour; there was no spray on him that evening. He did not see Constable Mac apply pepper spray to the accused. During the time that the officers were dealing with the accused outside his vehicle, the issue of rights to counsel did not come up as officer safety was the paramount consideration at the time. The accused was upset at the time and not listening to any of their demands. As a result, it was not a good place to give him his rights.
Constable Mohammed
79Constable Mohammed and his partner Constable Corba were two of the other officers who attended the scene in response to Constable Mac’s radio call for assistance. They arrived at 752p.m. The witness saw the defendant on the ground, face down, and two police officers on top of him trying to take physical control of him. Constable Mohammed ran over to help out, being concerned that there had been an emergency call to help a fellow officer. He held down the party’s legs and took physical control of them by applying leg restraints to them. The defendant was then lifted up and brought to a nearby police car.
80The officer accompanied Officer Mac and the defendant in Mac’s police car so that he would not be alone with Mr. Serrano. He did this out of officer safety concerns. Constable Corba followed behind them. They drove to Traffic Services in this fashion. During the transport there, Constable Mohammed did not recall smelling anything, such as an odour of alcohol. They arrived at 8:27pm. The accused was placed in an interview room. After he was left alone in the room, he began yelling and screaming that he had been pepper-sprayed. The officer escorted him to the washroom so he could wash his face. He subsequently performed his first breath test without further incident.
81Following this breath test, however, the accused saw Constable Mac and became angry at him. The officer took physical control of him and put him back in the locked interview room. The accused began banging loudly on the door. He demanded his jacket. When Constable Mohammed opened the door, the accused stiffened his body in a very aggressive manner. The officer pinned him against the door jam until he calmed down. He performed the second breath test afterward, but had to be restrained afterward and pushed back into the interview room. The door was locked. At no point did the officer detect the odour of alcohol on the accused.
82Constable Mohammed indicated in cross-examination that he did not ask Officer Mac at the scene what the charges were that the accused was arrested, nor if he had been advised of his rights. His role was to ensure the safety of his fellow officer. He later found out that the accused was being charged with impaired driving and assault police.
Constable Corba
83Constable Corba testified that he too ran to the scene when he arrived with Constable Mohammed. The accused was struggling with the officers, trying to kick at them. He held his legs and knees while the others applied leg restraints. He assisted in walking the accused to the police car for transportation. When he placed him in the back seat, the accused yelled at him. He could smell the odour of alcohol coming from his breath. They were about a foot apart at the time. He noticed some blood on his nose and cheek area at the time. The accused declined medical attention from the medical attention, although he did ask for a napkin for his face. He was extremely angry at the time, yelling and screaming at everyone including the paramedics. Constable Corba followed his partner and Constable Mac back to Traffic Services.
84Upon his arrival there at 8:27pm, the officer stood by in the booking area for officer safety. The accused was very uncooperative at the time. He was argumentative and did not follow instructions when asked to do something. When the officer conducted a pat-down search on him, he smelled the odour of alcohol from his breath. After he was placed in an interview room to await breath testing, the accused was yelling and banging on the door, complaining that he had been pepper-sprayed and demanding to use the washroom.
85The defendant was rude and belligerent at the station, followed by periods of calmness and then further aggression. The officer assisted in restraining him at times. He felt the accused was giving them a hard time to deliberately delay the process. He was generally not following instructions. He did not like to be touched when the officers escorted him to the phone or the breath and interview rooms. At one point he raised his hands and clenched his fists and went into a boxer’s stance, as if to challenge Constable Corba to a fight. Another time, he refused to go back inside the interview room and had a mad look on his face. There was a bit of a tussle getting him inside the room. The officers closed the door and locked it. The accused continued yelling at them.
Constable Petrakis
86Constable Petrakis is a Qualified Intoxilyzer operator who works out of Traffic Services. His first involvement with the accused was when he was brought into the breath room. The officer took detailed notes of their interaction, due to the accused’s behaviour and level of impairment. There was a tremendous amount of an odour of alcohol engulfing the entire hallway where the accused was, which he made note of. The accused’s mouth was foaming when he entered the breath room. His level of hostility and aggression made their dealings very unpleasant. He was swaying while walking. His head would move; his eyes would take a few seconds to focus. He would also bang on the door from the nearby interview room. In the officer’s words, this was “not a normal breath test.”
87During the breath test procedure, the accused made comments about Constable Mac, being the officer who pulled him off the road. The witness also had to coax him to provide a breath sample, as he would stop blowing or not blow hard enough for a sample to register. The accused was argumentative with him, but eventually provided a suitable breath sample. In between samples, he heard an altercation in the hallway as the accused was being escorted back to the interview room.
88Constable Mac remained in the breath room at the time the samples were being given. During that time, the accused made a number of remarks to him, such as, “Are you big enough Mr. Mac?”; “Officer Mac, I am talking to you, why this happen to me?” Constable Petrakis told the accused that he knew he was upset but to concentrate on giving the breath sample. In total, the accused provided three breath tests, as one was not within a suitable range of the other. The two that were registered 180 mgs each. In the witness’s opinion, obvious signs of impairment were present: there was an alcoholic odour emanating from the accused, his eyes were all bloodshot and watery, his face was red, he was uncooperative, vulgar with profanity, and obviously angry and agitated. The officer acknowledged in cross-examination, though, that the accused’s speech was not slurred, and he was able to open and unwrap the mouthpiece on his own.
The Applicant, Mr. Serrano
89Mr. Serrano testified on his own behalf on the Charter motion. He is 28 years old. He lives in North York with his sister and brother-in-law and his niece. He was born in Mexico City; he came to Canada in 2007 with his sister. After returning to Mexico, he came back to Canada in 2011 on a permanent basis. He has a working visa at present and has jobs in construction.
90With respect to the events in question, he was under the influence of alcohol when stopped by Constable Mac. He felt fearful and nervous at the time. The reason for this was he did not know the reason he was being stopped and he was afraid that if he was stopped, he might be deported. He did not have any family left in Mexico.
91According to the defendant, Constable Mac grabbed his arm at the beginning and as things escalated, he pepper-sprayed him. The officer was the one who assaulted him. The defendant was trying to stop the officer from entering his car. It was then that he was pepper-sprayed. He covered his face with his right hand when that happened. At first the spray felt very cold but there was next a burning sensation that caused him pain. He had never experienced anything like this before. He felt these effects immediately.
92Mr. Serrano testified that he was pepper-sprayed a second time. This occurred when he was being taken out of his car. The spray was applied to his stomach this time. He felt the same cold and hot sensation when the spray was applied to his hand. This did not happen at the same time his hand was sprayed. His skin was already exposed at this point and his hands were cuffed together very tightly. When he was in the police cruiser the burning sensation was at its worst. It was only at the police station that he was given any treatment for the pepper-spray. His skin felt very sensitive, as if there was a rash. It lasted for about two weeks. It made it very uncomfortable to move.
93The accused added that he was never really informed that he was actually being arrested. He concluded that he was under arrest when he was removed from his truck and hand-cuffed. He asked the officer why he was stopped. One of the officers told him he had been driving under the influence.
94Mr. Serrano was driving a black pick-up truck that evening. It was automatic transmission. He put it in park when he was stopped by Constable Mac. He did not ever attempt to change it afterward out of that position. He rolled down the window when requested by the officer. He agreed that there was revving from the accelerator but this occurred accidentally when Constable Mac accosted him and was grabbing onto him inside the vehicle and he did not know why the officer was doing that. Had he wanted to change gears and drive away he could have done so. Instead, he was pushing the officer’s hand away when he grabbed him. He did not strike him with an open hand.
95Photographs of the accused’s hand and stomach were put in evidence as exhibits. They were taken the next day by his sister after he was released from custody. He did not have these marks before the incident. The mark on his stomach stayed for about two to three weeks. The injuries were not caused when he was dragged out of the car and made contact with the asphalt. He did not go for medical treatment for them. However, being mistreated by the police caused him to seek out counselling for depression and anxiety.
96In cross-examination, Mr. Serrano stated that at the time in question he was 26 years old. He was 184 cm in height and weighed 90 kgs. He had spent 6-7 years in Canada by the time he was stopped by Constable Mac. He knew that he was a police officer. He did not possess a Canadian driver’s licence. When he was approached by the officer, he wanted to know why he stopped him. He felt the officer was speaking to him in a very aggressive way.
97The defendant agreed that he was under the influence of alcohol at the time. While he realized he should not have been driving, he did want to know the reason why he had been stopped. The officer just told him to get out of the car. He was not controlling himself properly. At no time did he inform him that he was taking the keys to the car. Had he explained to him what he was doing, he would have cooperated with the officer and done whatever he told him. By the time the three officers were removing him from the truck, he had been pepper-sprayed.
98With respect to the injury to his right hand, the defendant explained that it looked more like burning than a scratch. He disagreed that the mark was caused by scraping on asphalt and the struggle hand-cuffing him. He agreed, though, that the mark was circular in shape. As for the mark on his stomach, he acknowledged that he had his parka on and was wearing at least one shirt underneath it. He felt the same burning sensation when the spray made contact with him on his stomach. While he did not actually see Constable Mac spray him in the stomach area, the officer was with the other officers when he was being removed from the vehicle and he felt the effects of the spray. The defendant admitted, though, that he had never been pepper-sprayed before and did not go for treatment immediately afterwards.
99Mr. Serrano maintained that he did not look down at his gearshift while Constable Mac was investigating him. Had it been his intention to drive away he could have. He did not know what the officer’s intentions were when he was reaching into the vehicle and grabbing at him. He disagreed that he was being non-compliant with the officer. He just wanted to know what was happening and what was going on. However, the officer was acting very aggressively and never made any attempt to explain what he was doing. This caused him to raise his voice, in turn, but he never hit the officer; he was just acting in self-defence. He agreed he did not want the officers to place him in handcuffs and leg restraints. He insisted that Constable Mac never told him he was being arrested for drinking and driving. He was concerned that the police stop could lead to the immigration authorities being involved and his being deported back to Mexico.
Ms. Perez
100Yunerni Perez is the accused’s sister. She is his surety, and he lives with her. She is also his sponsor in his immigration application. They were born in Mexico City. She immigrated to Canada in 2007 and is a resident. The defendant is in the country on a work permit. She and her brother are very close.
101The defendant called her from the police station following his arrest. He was released from the immigration centre on Rexdale. When they arrived home, the defendant showed her his hand which was very reddish. There was a similar mark on his stomach. It was also red and very irritated, although smaller than the injury on his hand. He did not have these marks prior to being arrested. She took pictures of them on her cell phone and gave them to the defendant’s lawyer. In cross-examination, she agreed she was not present at the time her brother received these injuries and could not say how in fact they occurred. However, she has training in first aid as a flight attendant and immediately noticed the marks on him.
Position of the Parties on Charter Motion
Position of the Defence
102The position of the defendant on this Charter motion is that the excessive force used against Mr. Serrano at his roadside stop violated his rights under ss. 7 and 12, and merits the imposition of a stay of proceedings as the appropriate remedy under s.24(1).
103It is additionally argued, in the alternative, that the defendant’s rights under s.10(a) and (b) were infringed, on account of the delay in promptly informing him what he was being charged with, and facilitating his right to retain and instruct counsel without delay. These Charter violations, it is submitted, should result in exclusion of, pursuant to s.24(2): the breath test results, all videos depicting the defendant, all utterances made to the police following the breach of his rights, as well as all observations of him made by the police.
104With respect to the pepper-spraying of the defendant, which is said to ground the excessive force used against him, Mr. Montes notes that this occurred a short time form his initial contact with Constable Mac. He was never told to exit the car or remove his keys form the ignition. When he asked why he was being pulled over, the officer did not tell him. At no time did he provide clear instructions what the defendant should do. Instead he used force almost immediately to get the keys out of the ignition without explaining what he was doing. In the defence view, it was Officer Mac who escalated the situation and mishandled it, thus resulting in the defendant being unnecessarily pepper-sprayed.
105The officer’s evidence that the defendant was going to drive off is not credible, it is argued. He was not a reliable witness, and instead was trying to justify his actions by making it appear that he was in imminent danger. Evidence. In particular, there are three main areas of inconsistencies in the officer’s evidence: (1) stating in direct evidence that he was punched with a closed fist when he tried to remove the keys from the truck’s ignition, but admitting in cross-examination that he could not recall being punched and there was no mention of this in his notes; (2) indicating in chief that he told the defendant he was being investigated for impaired driving before pepper-spraying him whereas the in-car video reveals there was no such mention of being arrested for impaired driving before being sprayed; (3) being inconsistent in his evidence as to whether he decided not to tell the accused he was under arrest because the officer thought he might flee if he did tell him that.
106It is further submitted that Constable Mac’s evidence that he only pepper-sprayed the defendant one time should also not be believed. The defendant experienced a burning sensation for a second time as the officer stood nearby and appeared to be holding something. Constable O’Toole’s exposure to the pepper-spray at this time is consistent, it is submitted, with Constable Mac administering a second spraying. The redness in the area of the defendant’s hand and stomach, as evidenced in the photographs recently taken after Mr. Serrano was released from custody, supports his testimony over that of Constable Mac, it is submitted. Moreover, it is supported by the evidence of his sister, who has training in first aid, and noticed and photographed the injuries as soon as she saw the accused.
107With respect to the failure to promptly inform the accused of the reasons for his arrest, Mr. Montes argues that his client was not told of the reason for his detention until after he was pepper-sprayed, as made clear by the video. Constable Mac had a duty to provide the defendant with the reason for his detention once the investigation moved from a Highway Traffic Act stop. Mr. Serrano was not required to submit to an arrest if he did not know the reason for it. The lack of clarifying information, as required by s.10(a) of the Charter, ultimately led to the accused being pepper-sprayed.
108In terms of the Charter s.10(b) violation, it is noted that while the accused was first advised of his arrest at 7:48pm while seated in the vehicle, he was not given his rights to counsel until 26 minutes later at 8:14pm. While the existence of exigent circumstances may justify a delay in the giving of rights to counsel, there is nothing justifying such a delay in the case at bar it is submitted. The accused could have been read his rights when he was placed in the police cruiser or one of the other officers, if Constable Mac was not in a position to do so, could have been delegated the task of reading his rights.
109In support of his position, the defence notes that where an accused is placed under arrest, there is a duty on the arresting officer to advise the party of the reasons for his arrest, unless there are circumstances which relieve the officer from that duty: see, for example, R. v. Quinlan, [1978] O.J. 1447 (C.A.). Much like the case of R. v. Barrow, 2011 ONCJ 239 at para. 11, the party should be advised that he is under arrest or the reasons for the arrest when the officer takes physical responsibility and control of him.
110Reliance is also placed on the case of R. v. Spannier, [1996] B.C.J. 2525 (S.C.), where the trial judge found that the handcuffing of the defendant was unnecessarily hand-cuffed and the use of pepper spray constituted a painful assault. However, the trial judge declined to grant a stay of proceedings. On appeal the proceedings were stayed. It was held a stay of proceedings is the appropriate result “in circumstances such as found in the serious facts found in the case at bar.” (para. 25)
111Pepper spray, as another court put it, is meant to be a defensive weapon, “not a means to overcome relatively passive resistance”: R. v. Bene, [2002] O.J. 5131 (C.J.) at para. 3. Police officers must be expected to exercise the responsibility vested in them with proper self-control: R. v. Harandi, 2010 ONSC 1825 at para. 18. However, it is not every case where the unnecessary use of force by a police officer while, always serious, will warrant a stay of proceedings: R. v. Smith, 2014 ONCJ 756 at para. 65.
112Mr. Montes submits that in this case the combination of multiple Charter violations makes this a serious case of police misconduct which requires an appropriate remedy. Only a stay of proceedings would adequately redress and not incidentally restore public confidence in the administration of justice: see R. v. Okafor, [2015] O.J. 7112 (C.J.) at para. 77. In sum, the defendant, who is a young man with no prior involvement in the justice system and faces severe collateral consequences in the event of a conviction, passively resisted a police officer who failed to inform him of the reasons for investigating him and unnecessarily escalated the interaction between them. Multiple serious Charter violations followed, and the accused received significant injuries as a result. In these circumstances, a stay of proceedings is warranted.
Position of the Crown
113Crown counsel, on the other hand, submits the defendant’s Charter application should be dismissed. She argues that the defendant has not met his burden to establish that his Charter ss.7 and 12 rights were violated, and in any event, this is not a case in which a stay of proceedings is warranted. In addition, any violations of his rights under s.10(a) or (b) are inadvertent at best, and do not rise to the standard where exclusion of the evidence should follow.
114The Crown takes the view that Constable Mac’s evidence should be accepted over that of the defendant where there is conflict between the two. The former testified in a straight forward manner whereas the defendant was an unreliable witness. She notes that the officer was trying after the fact to articulate his thought process which was going forward at hyper speed. The so-called glaring inconsistencies upon which the defence relies, such as not mentioning being punched in his notes, does not detract from the fact that the defendant was pushing back at him and acting in an aggressive and belligerent manner. Neither does his testimony as to providing reasons to the accused about his actions at the exact moment proximate to pepper-spraying him, an inherently dynamic interval, mean that his memory should be considered unreliable. There were many things taking place for the officer to process, and he was in the position of having to make snap decisions as a result.
115With respect to the issue of the accused being pepper-sprayed, the Crown submits that the actions of Constable Mac in applying such force was objectively reasonable having regard to the totality of the circumstances. The officer clearly held a subjective belief that he needed to disable the defendant’s vehicle and prevent the possibility of his fleeing the scene in an impaired state, all the while he was disobeying the officer’s every command. This was a dynamic, rapidly-changing situation, much like the case in R. v. Robinson, 2019 ONSC 4696, and the officer’s conduct must be viewed in such a light.
116Courts must guard against the tendency of reviewing the officer’s conduct in such highly charged circumstances with “over-reliance upon reflective hindsight”: R. v. DaCosta, 2015 ONSC 1586 at para. 98. In this case, the Crown notes that this was the first time in his over 20 years of policing that Constable Mac had to resort to pepper-spraying a person he was investigating. His use of force was neither excessive nor improper based on the events unfolding in real time before him. He found himself being challenged verbally and physically by a person he feared was exhibiting behavior consistent with one who was about to flee the scene, and pose a serious danger to others.
117The Crown submits that the defendant’s account of being pepper-sprayed a second time is not credible. It amounts to a fiction, in her view. The officer would be applying spray to a part of the defendant’s body where it would have no effect; it would also be over layers of clothing and his winter jacket. Moreover, the injuries to the defendant look more like contact marks which are consistent with his struggle with the group of officers and being taken to the ground when he refused to get out of his vehicle.
118In summary, it is the Crown’s position that having regard to the totality of the circumstances, the pepper spray that was applied to the defendant was reasonable and responsive to the situation encountered by Constable Mac. In hindsight, there might have been other ways in which the officer could have attempted to deescalate their investigation, but that does not take away from the reasonableness of his response. Indeed, his use of force was justified under s. 25 of the Criminal Code. No Charter breaches of the defendant’s Charter ss.7 or 12 rights thereby arise.
119With respect to the alleged breaches of the defendant’s Charter s.10 rights, the position of the Crown is that there were extenuating circumstances which must be taken into account. The defendant was effectively frustrating the investigation by talking over the police and hindering his arrest and giving of rights. He would not even identify himself. It is not arbitrary treatment of the defendant where the police are acting out of safety concerns: see R. v. Rai, 2018 ONCA 623.
120In addition, the right to counsel does not have a temporal component, the Crown submits. Given the altercation at the scene of the defendant’s arrest, it was entirely justifiable for Constable Mac to take time to compose himself and advise the defendant of his rights while being transported in the police cruiser. The officer was not asking the defendant any questions or continuing his investigation during this time. To the contrary, Mr. Serrano was berating the officer for his actions; another officer was present for officer safety. The accused continuously talked over the officer the entire time, including the time when his rights were being read to him. When the accused did arrive at Traffic Services, he was able to effectively exercise his right to counsel. Consequently, there was no violation of the accused’s s.10 Charter rights in these circumstances.
Analysis
Pepper-spraying of the Defendant: Charter of Rights, ss.7 and 12
121There is no dispute that the defendant was pepper-sprayed on at least one occasion by Constable Mac. An evaluation of the defendant’s position that this use of force was unreasonable must commence with what is not in dispute, namely whether the police used excessive force in these circumstances. Patently, there can be no justification for a second application of pepper spray after the fact, if such is found to be the case. In any event, whether the pepper spray was deployed once or twice, improper or excessive use of force by a police officer in the execution of an arrest may amount to a breach of the party’s s.7 Charter right to security of the person: DaCosta, para. 94. Such an unlawful physical assault by the police may also constitute cruel and unusual punishment: Okafor, para. 49.
122Constable Mac’s dealings with the defendant must be assessed both having regard to his subjective belief at the time, and whether such belief was objectively reasonable. In addition, the court must be wary of applying a standard of hindsight bias to the parties’ conduct and evaluating their actions in such light. Police decisions must be judged by what was or should reasonably have been known to them at the time, and not based on how things turned out in fact to be: Robinson, para. 147.
123I begin my analysis with a statement of the obvious: Constable Mac encountered enormous difficulty from the very start in effecting a vehicle stop and investigation of Mr. Serrano, who was clearly under the influence of alcohol as he himself acknowledged. Indeed, so did all the other officers on scene who assisted Officer Mac in his efforts meet with resistance from the defendant. They numbered over half a dozen. This was no ordinary motor vehicle stop, as the number of police officers present indicate. The evidence is that the defendant’s truck only halted when it could go no further due to being blocked by the car in front of it. The defendant never turned it off himself, in fact, during the entire time he was being investigated and asked to identify himself. He would not exit the vehicle when requested to do so. The keys were only removed from the ignition when Constable Mac reached in while the defendant was attempting to prevent him from doing so.
124Over the course of a two minute period from 7:45:56 when the defendant’s vehicle stopped, until 7:48:00 when the officer notified police dispatch that he had just pepper-sprayed Mr. Serrano, Constable Mac requested that the defendant identify himself and hand over his driver’s licence, as the Highway Traffic Act requires that he must do, no less than 12 times. The defendant was non-compliant and impeded the officer’s investigation the entire time. His tone was defiant and aggressive. He was physically resisting the officer by pushing him out of his cab. It was clear that he had no intention of following the officer’s lawful and reasonable demands to identify himself. Whatever may have been the reasons for the defendant’s agitated state at the time, namely, concern for his immigration status or being caught driving after consuming alcohol in a work vehicle, it was not open to Mr. Serrano to dictate the terms upon which he would agree to cooperate with the officer and surrender his identification documents.
125As evident from the in-car recording, when the defendant was resisting the officer, he was cautioned by Constable Mac twice that he would be pepper-sprayed if he did not stop resisting the officer. It must be remembered that all the while his truck was not turned off and the officer was justifiably concerned that he might attempt to drive away. He was, after all, under the influence of alcohol at the time. Constable Mac’s concerns for the safety of himself, the defendant and the public that the defendant might take flight were entirely reasonable, both on a subjective and objective basis.
126It took no less than four or five police officers to forcibly remove the defendant from his vehicle and take control of him afterwards. He was struggling with them the entire time and his hands and legs had to be restrained. His aggressive tone continued during the ride to the police station and over his time there, including when providing breath samples several hours later. His belligerent conduct included the use of racial slurs and intimidating, insulting comments directed to Constable Mac and challenging other officers to a fight several times at the police station. In the words of the breathalyzer operator, the last officer to have dealings with the accused in the chain of the investigation, he was throughout this time uncooperative, vulgar, profane, angry and agitated. This was far from a normal breath testing subject procedure.
127I am unable, with respect, to accept Mr. Serrano’s account of the events that he has provided with respect to how or why he was pepper-sprayed by Constable Mac. I do not consider that he was acting in self-defence or responding to unwarranted aggressive police behaviour. In particular, I reject his evidence of being pepper-sprayed on two occasions. His version of events would have Constable Mac applying pepper spray a second time in the stomach area while he was wearing a parka and being physically handled by his fellow police officers – an action that would be both ineffectual for pepper spray to work, and expose the very officers Constable Mac had called for back-up to being placed in danger themselves. Mr. Serrano’s erratic behavior, and self-acknowledgment that he was under the influence of alcohol, I am satisfied, makes his perceptions and recall of the events of the evening very much suspect and unreliable.
128Constable Mac, on the other hand, found himself in a fluid and dynamic situation not of his own making. The officer was clearly shaken up both by the defendant’s intimidating actions and his first ever use of pepper-spray in 20-years of policing. He sought medical assistance for the defendant and himself immediately afterward. He broadcast this fact, including his use of pepper spray. The fact that there are some inconsistencies in how he recalls the events that were unfolding in split seconds is understandable. Whether he was pushed or punched by the defendant, or immediately determined whether or not to tell him he was going to be arrested due to his driving conduct on account of the defendant’s agitated state, it is clear that the defendant accosted him and was repelling him from reaching in and taking his keys away and unbuckling his seat belt.
129In a use-of-force situation, inconsistencies may well be the by-product of intensity, stress of fear, danger and unfolding events: DaCosta, para. 100. I am satisfied that this is in fact the case here. Constable Mac was genuinely relieved that back up was on the way to assist him in what was rapidly escalating to becoming a very dangerous situation. It should come as no surprise that he does not remember some of the split-second details that unfolded over this period in a uniform manner.
130With respect to the injuries suffered by the defendant, there is no medical evidence that has been led before me as to whether the marks are consistent with the application of pepper-spray or not, or how such injuries might appear within a 24-hour period. The burden is on the defendant in this regard, since he is the one who alleges that the injuries were so caused. I have some considerable doubt about the cause or origin of the injuries quite apart from this. The marks on the defendant’s hand and stomach as shown in the photographs are round and even and shapely; however, it is difficult to envision how an aerosol spray administered in the course of a struggle as well as outdoor conditions would produce such a smooth pattern.
131Moreover, the defendant throughout the course of the evening was involved in several physical confrontations with the police, from the time he was stopped by Constable Mac until he provided breath samples to Constable Petrakis. Indeed, he had received blows to his body at the scene when he was taken to the ground and was kicking at the officers and struggling with them. There was some blood on his face. He complained about his handcuffs by the time he arrived at Traffic Services and had to be physically restrained on numerous occasions in the interview room there. There was, therefore, several times in which the defendant could have suffered injuries, apart from his dealings alone with Constable Mac. In particular, as I have noted, I reject his assertion that he was acting in self-defence in response to aggressive conduct by Constable Mac and the other officers.
132Based on the record before me, then, I am unable to conclude that the defendant’s injuries were caused in the manner in which he alleges due to being pepper-sprayed. Indeed, I consider, as I have endeavoured to explain, that the injuries which he did receive, in so far as they were caused by being pepper-sprayed, were the result of proportionate and reasonable force that was used by the police over the course of the evening and which I have concluded was eminently responsive to the situation.
133In summary, the actions of the police are not to be “measured with nuanced precision”: Robinson, para. 184. The recourse to pepper spray, in this case, was reasonable in this dynamic situation: an accused who had obviously been drinking and driving refused to comply with lawful demands by the police to identify himself and get out of his motor vehicle. At no time was his vehicle turned off by him. It appeared he was looking for an avenue of escape. There was one available for him at the time. Indeed, he only exited the vehicle when forcibly removed by numerous officers and continued actively resisting at this point. The accused was warned, twice, before he was pepper-sprayed that he would be if he did not stop resisting; afterwards he was told that the pepper spray would be administered again if he did not become compliant and that he was also going to be tasered. However, these additional use of force techniques were not used.
134I am therefore satisfied that the use of force that was actually administered to the defendant, including pepper-spraying him once, was for defensive purposes only: see R. v. Bene, para. 3. Indeed, contrary to the applicant’s position, the police officers dealing with Mr. Serrano, including Constable Mac, and who were being verbally and physically accosted him, showed considerable restraint in not escalating the use of force they did in fact employ. I note that at no time were their guns drawn on him or a taser used, notwithstanding its presence. To put it shortly, the situation in which Mr. Serrano found himself and led to his being pepper-sprayed, and resulted in any injuries, was solely and entirely of his own making.
135It follows that the use of pepper spray was a reasonable and proportionate response in all the circumstances of this case. As such, the force used against the defendant was neither excessive nor disproportionate. His rights under ss. 7 and 12 of the Charter have thus not been infringed.
Rights to Counsel – Charter of Rights, ss.10(a) and (b)
136As I have noted above, the defendant throughout the course of the evening was verbally and physically impeding the police investigation of his vehicle stop. The defendant himself acknowledges his upset manner. As he put it at one point, Officer Mac had “crossed the line” with him, so he was not going to treat this officer in particular, and the other officers who made physical contact with him, in a respectful manner.
137The transcript of the in-car video exchange between the defendant and Constable Mac reveals that at 7:48, that is, slightly over two minutes of their first conversation, the defendant was told that he had been drinking and he was under arrest. The following minute he was specifically told he was under arrest for failing to stop for police and impaired driving.
138I am unable to apprehend, with respect, how the defendant was not made aware of the reasons for his arrest or detention in a timely manner in these circumstances, in accordance with s.10(a) of the Charter of Rights.
139Mr. Serrano was not prepared, from the outset, to accept the officer’s explanation for why he was pulled over and arrested. It was clearly a motor vehicle investigation. He was specifically told that the officer had been trying to pull him over and he would not stop, and that he had almost hit a parked vehicle while driving. Despite being told the reasons for the investigation and arrest, he continued to question the officer as to why he had been pulled over. From the time of being told the reason for his arrest, he asked Constable Mac a half dozen more times why he was being arrested. This continued on the ride to the police station. He persisted in challenging the officer, and the others, sometimes physically, at the police station.
140The defendant was thus told in a reasonably prompt manner the reason for his detention and arrest. Constable Mac had good reason to be concerned that immediately informing the accused he was being arrested might inflame the situation, given his combative responses and gestures. In the period of time leading up to this, and afterwards, the defendant continually questioned the officer as to why he was being stopped, therefore frustrating the officer’s ability to advise him of his Charter rights earlier. To the extent the defendant was not told sooner of the reason for his detention or arrest, it was solely on account of his conduct in arguing with the officer and refusing to provide the identification documents he was required by law to do so, and the officer’s concern that the defendant would become even more agitated at that time if he was informed of further details of the state of the investigation. There is no basis to find that his s.10 (a) rights were infringed in these circumstances. The accused clearly understood during this period the nature of the jeopardy he faced during this temporal period: see R. v. Smith, [1991] 1 S.C.R. 714.
141Neither do I consider that his rights under s.10 (b) were violated. It is true that it was only during the course of the transport to the station that the defendant was advised of his Charter rights to counsel, that is, a few minutes after Constable Mac returned to his cruiser after seeking medical assistance on the scene and processing the steps he was required to do, including transporting the defendant to Traffic Services for breath testing.
142A review of this portion of the investigation reveals, however, that the defendant was continuing to carry on in a highly agitated state, insulting the officer and his family and his education and seeking to intimidate him. He told Constable Mac that he would not forget who he was. He questioned his intelligence. He threatened him with retribution. It will be recalled that another officer was sufficiently concerned for the safety of Constable Mac that he accompanied him in the cruiser so he would not be left alone with the defendant, even though he was in hand cuffs and leg restraints.
143Once the officer collected his thoughts and composed himself and recalled that he had not formally given Mr. Serrano his Charter rights to counsel, he stopped the car and immediately did so. All the while the defendant talked over him and would not listen. Notwithstanding this, the officer made sure he was aware of his rights and they were facilitated at the police station. At no time did Constable Mac or anyone else question the defendant or seek to obtain evidence from him. Indeed, he implored him to stop talking over him so that he could advise him of his rights.
144I am satisfied that the officer advised the defendant of his Charter rights once he was in a meaningful position to do. Prior to this, the officer received treatment for cross-contamination from the pepper-spray, recovered from the fatigue of his struggle with the defendant, interacted with other officers on the scene, and was engaged in the transportation process of the defendant for breath testing, all the while being verbally accosted by Mr. Serrano.
145It may well be that the defendant could have been advised of his rights under s.10 (b) a few minutes earlier than he in fact was, such as immediately before leaving for Traffic Services after 8:00pm. At 8:14pm, his rights were in fact read to him. That said, it hardly lies at the feet of Mr. Serrano to complain that he should have been advised of his rights at the very time when he was engaged in conduct designed to intimidate and frustrate Constable Mac’s interactions with him, thereby effectively preventing him from reading his rights any earlier. The defendant was doing everything in his power, I am satisfied, to interfere with the officer’s investigation of him.
146It is understandable, in these circumstances, that this officer did not have the ability or presence of mind to immediately give a Charter warning to the person who was actively impeding his investigation even while physically restrained in custody. He was dealing with an erratic and volatile individual all the while. Concerns for officer or public safety may justify any resulting delay in advising of rights to counsel: see R. v. Suberu, 2009 SCC 33 at para. 42. I consider that this is precisely the situation in which Constable Mac found himself in during the interval prior to reading the defendant his rights.
147When the defendant was provided with rights to counsel, he did not listen to them and continued to talk over the officer. Essentially, then, he seeks to complain about not being told earlier what he did not want to hear later. In any event, at the end of the day, he was advised within a reasonably prompt time period of his rights to counsel, he understood these rights well before arriving at the police station, and once there he exercised those rights prior to providing breath samples. His rights to counsel were not infringed in these circumstances.
148The defendant bears the burden of establishing that his Charter s.10(b) rights to counsel have been violated. For the reasons I have set out, I find that the evidence fails to establish any such infringement.
149For the sake of completeness, had I found that the defendant’s ss.10 (a) and/or (b) Charter rights had been infringed, it will be apparent that I consider any such violation to be technical and trivial in nature. Having regard to the seriousness of the Charter-infringing state conduct, the impact of the breach on the defendant’s Charter-protected interests, and society’s interest in the adjudication of the case on its merits, this is patently a case where exclusion of evidence pursuant to s.24(2) is not warranted: R. v. Grant, 2009 SCC 32. All three prongs of the Grant analysis favour inclusion, not exclusion of the evidence: the authorities did not act negligently or recklessly or deliberately violate the defendant’s constitutional rights, the observations of the defendant and the breath testing procedure is minimally intrusive, and the societal interest in a criminal trial on its merits would be seriously undermined if highly reliable and critical evidence were excluded: see R. v. Rehill, 2015 ONSC 6025.
Conclusion
150I have respectfully found that none of the defendant’s Charter rights, as alleged, have been violated. The application of pepper spray was neither excessive nor unreasonable. It did not amount to an infringement of ss. 7 or 12. Likewise, his rights to counsel under ss.10 (a) and (b) were properly given. In view of this conclusion, there is no need to address the issue of remedy under s.24(1) or (2).
151The defendant’s application for Charter relief is dismissed.