Ontario Court of Justice

Date: 2024 02 21 Court File No.: Brampton 22-3302

Between: His Majesty The King — And — Dwight Dube

Before: Justice Paul F. Monahan

Trial heard on: December 18-21, 2023 Reasons for Judgment released on: February 21, 2024

Counsel: J. Graham, counsel for the Crown C. Di Lella and G. Grill, counsel for the accused Mr. Dwight Dube

Monahan J.:

Introduction

1The defendant is charged with impaired driving and over 80 contrary to section 320.14 (1) (a) and (b) of the Criminal Code. The alleged offence date is March 7, 2022.

2The defence brought a Charter application alleging violations of section 7, 8, 9 and 10(b) the Charter and seeking the exclusion of all evidence obtained during or proximate to his arrest.

3The trial and Charter application were held before me over 4 days on consent on a blended basis.

4The Crown called five police officers as witnesses at trial: Officers Noor Al-Jamal, Robert Delmar, Marc Purdy, Jessica Brisson and John Drummond. The Crown also called paramedic Margaret Lu. The defendant Mr. Dube testified on the Charter application only. The defence called no further evidence.

5Based on my consideration of the evidence and the submissions of counsel the issues are whether there was a section 7 and/or a section 10(b) Charter violation and, if so, whether evidence should be excluded. In particular, the defence submits that Mr. Dube was the subject of excessive force by Peel Regional Police and that this and other factors led to a violation of his section 7 rights. As concerns the section 10(b) argument, the defence submits that police did not properly implement his right to counsel and that he was denied his right to counsel of choice.

6The Crown submits that there was no excessive use of force and therefore no section 7 violation. The Crown also submits that there was no section 10(b) violation.

Overview of the evidence on the use of force

7On March 7, 2022, shortly before 12:14 AM, Peel Regional Police (“PRP”) received a call from a member of the public reporting a possible impaired driver in the area of Queen Street and Dixie Road in the City of Brampton. The defendant Mr. Dube was the operator of the motor vehicle that the member of the public observed to be swerving and this led to the call over the police radio at 12:14 AM.

8Mr. Dube was pulled over by Officer Brisson and Detective Drummond who were driving separate vehicles and who both first independently viewed Mr. Dube swerving in and out of his lane. Officer Brisson also observed Mr. Dube being slow to respond to a green light and Detective Drummond observed that his speed was fast and slow. Detective Drummond is a detective with PRP and he assisted in the tandem stop. They would have pulled Mr. Dube over by 12:15 AM.

9Officer Al-Jamal heard the call over the radio at 12:14 AM. She arrived on scene to assist at 12:15 AM. She turned her body camera on at 12:17 AM.

10On my view the evidence, Officer Brisson tells Mr. Dube that he was under arrest for impaired driving after she approached his window and smelled alcohol. This would have been about 12:16-17 AM. She then proceeds to tell him to get out of the car but he refuses and demands to know who called police and why he was pulled over.

11Two police officers, Officer Zemancik and Officer Delmar, arrive on scene and proceed to assist with the arrest. On my view of the facts, they take the lead roles in dealing with Mr. Dube particularly once he is out of the vehicle. Officers Al-Jamal and Brisson assist with the handcuffing and Detective Drummond deploys his taser twice as I will explain below.

12When Mr. Dube continues to refuse to get out of his locked vehicle, Officer Delmar proceeds to break the driver’s side window of his vehicle and Mr. Dube steps out of the car with both of his hands up. Once he is out of the vehicle, there is a dispute between the officers on one hand and Mr. Dube on the other as to whether Mr. Dube was being assaultive and resistant or whether he was being cooperative. The police attempt to handcuff him but they have some difficulty getting his right hand cuffed.

13Officer Delmar administers multiple knee kicks/strikes to Mr. Dube’s knee and thigh region allegedly to try to get him to put his hands behind his back. Officer Delmar hits Mr. Dube in the back two to three times with his baton when Mr. Dube was on the ground in a prone position. The baton was allegedly used because Mr. Dube allegedly “continued to resist by not giving up his hands for handcuffing”. Detective Drummond deploys a taser twice including, according to Detective Drummond, one time when Mr. Dube is “on the ground”. Both times when Mr. Dube is tasered both his hands are handcuffed behind his back although the right one appears not have been fully closed. Once the handcuffs are both fully secured, the physical interaction ends.

The Key Evidence on the Use of Force: the Body Camera Evidence

14Officer Noor Al-Jamal was wearing an activated body camera which captured much, but not all, of the roadside interaction. Much of the section 7 excessive use of force argument turns on what happened in the 2 minutes and 50 seconds recorded on Officer Jamal’s Body camera video. I have a created an abbreviated summary of what is said in that first 2 minutes and 50 seconds and some of my related findings of fact are set out below. I have attempted to capture the key dialogue but it is by no means a certified transcript. When a Police Officer is speaking I simply refer to them as “police” if I can not determine which officer is speaking. In addition, in the body camera chronology below I note other findings of fact by me that I have found based on my review of all of the evidence including the body camera evidence. There is an interaction between Officer Brisson and Detective Drummond with Mr. Dube prior to the body camera being turned on. There is also a 30 second delay for the audio at the beginning of the body camera video. On my view of the facts, by the time the body camera evidence below occurs, Officer Brisson has already told Mr. Dube that he is under arrest for impaired driving. The times below are the time of day just after midnight.

12:17:58: Dube: why am I pulled over? 12:17:59: Officer Brisson: get out of the car 12:18:01: Dube: who called you? 12:18:02: Officer Brisson: it doesn’t matter. Get out of the car. I was the one that saw you swerving. 12:18:08 Officer Al-Jamal: sir you are not going anywhere. You are blocked in from every angle so you might as well cooperate. 12:18:14: Dube: what I’m saying is you pulled me over for no reason. 12:18:22: Dube: [Mr. Dube is refusing to get out of his vehicle and calls 911] Mr. Dube says “911 I’ve been pulled over by police telling me that I impaired but I’m not impaired” 12:18:36: Dube: [Dube is talking on the phone] what is the intersection here dad dad dad I am at Queen-I am not impaired. 12:18:43 Dube: [police attempt to open the door] guys don’t do that. 12:18:49 Officer Zemancik: buddy we are going to have to break the window if you don’t get out of the car 12:18:54: Mr. Dube is using a racial slur talking on the phone. 12:18:59: A police officer is banging on the driver’s side car window. 12:19:03: Officer Zemancik: hey we are going to break the window. 12:19:04: Officer Delmar breaks window spraying glass in Mr. Dube’s face and says “we warned you man”. 12:19:07: Dube: I am on the phone with police. 12:19:15: Officer Delmar clears more broken glass out of the way and says to Mr. Dube “happy?” in a sarcastic reference to the broken window. 12:19:18: Dube: I’m on the phone with my lawyer. 12:19:21: police: talk to the lawyer in our car. 12:19:23: Officer Delmar yells loudly “get out of the car” and sticks his baton into the vehicle either to clear a piece of glass or to poke Mr. Dube with the baton. 12:19:24: Mr. Dube uses a racial slur. 12:19:28 to 12:19:31: Mr. Dube steps out of the car with both of his hands up. He has his phone in his right hand and says three times “my phone is up”. 12:19:31: Officer Delmar can be seen holding and pointing a taser in his right hand at Mr. Dube and his baton in the other hand and Officer Delmar says “ you are about to get fucking lit up ”. 12:19:34: Police: get your hands behind your back. [At this point in time Mr. Dube’s left hand is in the handcuff but his right hand is not. It would appear that his right hand is holding his phone.] 12:19:36: Dube: no you can’t take my phone. 12:19:38: Police: one male officer says “taser” and another male officer (Detective Drummond) says “taser”. [The taser does not appear to be deployed at this time.] 12:19:42: Dube: my hand is up. 12:19:43 [The first set of handcuffs seem to have been taken off Mr. Dube’s left hand by the police. Mr. Dube’s left hand is then placed in the same or a different set of handcuffs for the second time and his right hand is behind his back. To be clear, both of Mr. Dube’s hands are behind his back and he amenable to being handcuffed] 12:19:44: Detective Drummond says “taser” again. [The taser does not appear to be deployed at this time]. 12:19:45: police: stop, stop. 12:19:47: Officer Delmar: what is wrong with you man? 12:19:48: Dube: [racial slur used by Mr. Dube] I was not impaired. 12:19:49: Officer Delmar: “don’t call me a fucking [racial slur]. 12:19:50 [the left handcuff is on Mr. Dube’s left wrist and closed. The right handcuff is not yet on] 12:19:52: Dube: I was not impaired. 12:19:52: [one can see that both hands of Mr. Dube are behind his back. The left hand is handcuffed and the right handcuff is on his wrist but appears not to be closed yet.] 12:20:01: Officer Delmar is yelling “stop resisting” and he pushes on Mr. Dube’s handcuffed hands. [Officer Delmar knees Mr. Dube hard in the knee/thigh area – at least 4 times]. 12:20:02 Dube: I am not resisting. 12:20:04: Officer Al-Jamal: put your hand behind your back. [The video shows both of his hands are already behind his back.] 12:20:07: Dube: my hand is behind me 12:20:10: Officer Jamal: get your hand behind your back. 12:20:12: Dube: my hand is behind me. I am not resisting. 12:20:13 [one can see a taser on the right-hand side of the screen. Mr. Dube is about to be tasered on his right front abdomen. 12:20:16 to 12:20:24: [a taser is deployed by Detective Drummond. Mr. Dube yells in pain Mr. Dube is taken to the ground. Detective Drummond deploys the taser a second time while Mr. Dube is “on the ground”. While it is not visible on the body camera video, Officer Delmar admits that he hit Mr. Dube with his baton in his back right shoulder 2 to 3 times when Mr. Dube was on the ground.] 12:20:23: Dube: please I am not resisting, please I am not resisting, please my hand is behind me. 12:20:21: Dube: you uncuff me I am not resisting. 12:20:43: clicking of the handcuffs can be heard. 12:20:49 Mr. Dube says “I was not resisting”. A male police officer responds “you were buddy”.

Chronology after Mr. Dube is under arrest

15An overall chronology, after the arrest, is as follows:

16At 12:23 AM after he is handcuffed Mr. Dube is placed under arrest for impaired operation of a motor vehicle.

17At 12:27 AM, Mr. Dube is read his rights to counsel which he largely does not respond to but he did say prior to rights to counsel being read to him that he wanted to speak to his lawyer.

18At 12:37 AM, Officer Jamal leaves the scene with Mr. Dube and takes him to the police station which is four minutes away.

19At 12:41 AM, Officer Jamal and Mr. Dube arrived at the police station. There is a delay of 39 minutes while they wait to be permitted to enter the lodging area because someone has just entered it ahead of them and the police are only processing one person at a time.

20At 1:33 AM, Officer Jamal calls Mr. Dube’s counsel of choice, Ryan Handlarski, but she is unable to leave a message as his voicemail is full.

21At 1:35 AM Officer Jamal calls duty counsel and leaves a message.

22At 1:50 AM Mr. Dube is given a Coca-Cola as he thinks his blood sugar is low.

23At 1:54-55 AM, duty counsel calls back and Mr. Dube speaks to duty counsel for approximately seven minutes.

24At 2:02 AM Mr. Dube is in the breathroom with Officer Purdy, the breath technician. He asks for medical assistance and Officer Purdy calls for the paramedics at 2:07 AM.

25At 2:20 AM, the paramedics arrive and assess Mr. Dube.

262:35-37 AM, at the request of Mr. Dube, the paramedics agree to take him to the hospital accompanied by police. They arrive at the hospital shortly thereafter.

27At 3:47 AM a doctor arranges to have x-rays done on Mr. Dube. The x-rays are done at 4:01 AM. At 4:10 AM, Mr. Dube is medically cleared to provide breath samples.

28At 4:27 AM, Mr. Dube provides his first sample which is 105 mg of alcohol in 100 ml of blood. At 4:51 AM, he gives a second sample which is 100 mg of alcohol in 100 ml of blood. By my calculations, using the provisions of 320.31(4) of the Code, Mr. Dube’s blood-alcohol concentration within two hours of driving a vehicle at approximately 12:15 AM is approximately 120 to 125 mg of alcohol in 100 ml of blood.

29At 5:05 AM, Mr. Dube is released on an undertaking.

Mr. Dube’s Injuries

30No medical records were tendered at trial but, Margaret Lu, the paramedic who examined Mr. Dube at 2:20 AM testified at trial and Mr. Dube testified to his own injuries. Mr. Dube complained to her that night about pain to his ribs on both sides and his back on both sides, he said his heart was racing, and he was complaining about knee pain. There was blood on his pants on both knees. I accept that all of these injuries occurred in the course of the 75 seconds that passed between the time he got out of the car and the time the police had him on the ground fully handcuffed.

31Mr. Dube was cleared by a doctor to give a breath sample at 4:10 AM after x rays were taken at a hospital. Mr. Dube testified that he had bruised ribs front and back. He clearly had cuts to his knees which were not actively bleeding when the paramedic saw him but had been bleeding. These cuts would have been from when Mr. Dube was tasered and taken to the ground. His heart rate was elevated at 108 to 113 bpm. The paramedics consider anything at 100 bpm or less to be normal. Mr. Dube says that he suffered a mild concussion. There are no medical records to confirm the concussion and I recognize that Mr. Dube did not complain to the paramedic about a problem with his head. However, Mr. Dube can be seen holding his head in his hands on the breathroom video and in the booking video and he is clearly not feeling well at that time. The takedown by the officers to the ground was forceful and included tasering him twice. Mr. Dube testified that he hit his head on the ground at this time. Mr. Dube is a big man and I have no difficulty accepting his evidence that he suffered a mild concussion during the incident when he was tasered to the ground.

32Mr. Dube also testified that he got a small piece of glass in his eye from when police broke the window which caused a bump in his eye which he has been treated for. There are no medical records for this injury either and he did not mention it to the paramedic. However, I believe him when he says this. He likely did not realize he had a small piece of glass in his eye when he was examined by the paramedic. Officer Delmar broke the driver’s side window thereby spraying glass into Mr. Dube’s face when he was facing towards the glass just inches away. Officer Zemancik told Mr. Dube that the police were going to have to break the window but Officer Delmar gave no warning to Mr. Dube when he was about to do it and he did not tell him that he should turn away or cover his eyes when the window was to be smashed.

33Let me summarize on the injury point that Mr. Dube’s injuries were minor to moderate in my view. However, Mr. Dube’s injuries were much more than one would expect in an impaired driving case. I also recognize that whether or not someone suffers an injury or not does not necessarily determine whether excessive force was used.

Charter Issues

34The defence submits that excessive force was used in the arrest of Mr. Dube leading to a breach of section 7 as well as a breach of section 8 and 9 of the Charter. I fail to see any basis for a section 8 or 9 breach as the arrest and subsequent detention was lawful as I will explain below. The defence also submits a breach of section 10 (b) for a failure to implement Mr. Dube’s choice of counsel and failure to properly implement his s. 10(b) rights.

Racial Profiling

35Although not in his written materials on the application, the defendant submitted in oral argument at trial that there was a racial element to the actions of Officer Delmar and that the Court should be “careful to accept Constable Delmar’s evidence”.

36Racial profiling occurs where race or racial stereotyping is used either consciously or unconsciously in the selection and treatment of a suspect: see R. v. Thomas 2023 ONCJ 531 at para 47 (per Duncan J.) citing R. v. Le 2019 SCC 34. The burden of proving racial profiling is on the applicant on a balance of probabilities.

37The Court must always take allegations of racial profiling seriously and if racial profiling were indeed found the Court would need to do much more than be “careful to accept Constable Delmar’s evidence”. There is no doubt that considerable force was used here to arrest Mr. Dube, a black man, and that most of the officers who dealt with him were white.

38However, I ultimately see no basis to conclude that any of the police officers were motivated by race or racial profiling in the treatment of Mr. Dube. The defence’s submission concerning racial profiling centers on the use of a racial slur by Mr. Dube and Officer Delmar’s response and use of the same racial slur. In particular, Mr. Dube used a racial slur when he was talking on the telephone to some unknown person at 12:18:54 and 12:19:24 of the body camera evidence summarized above. At 12:19:48 on the body camera evidence, Mr. Dube says “[racial slur] I was not impaired” to which Officer Delmar responds “don’t call me a fucking [racial slur]”. This exchange took place while the police were trying to handcuff Mr. Dube.

39To be clear, no police officer used a racial slur to describe Mr. Dube or any other person. Officer Delmar simply responded to the racial slur that was used by Mr. Dube which was seemingly directed at Officer Delmar who appears to be white. In my view there is no basis to find racial profiling or bias based on this exchange or any other actions by the police that night.

40I do wish to note that I find it strange that Mr. Dube was not even asked for his driver’s licence or insurance when he was first pulled over. Rather he was simply told that he was under arrest for impaired driving and to get out of the vehicle. I find this odd and the police gave no explanation for it at trial. It may be that this was a function of racial bias but on this record I am not prepared to make that finding.

41In the circumstances, I conclude that racial bias has not been proved.

The Arrest was lawful

42It is somewhat unclear to me if the defence is arguing that the police did not have grounds to arrest Mr. Dube: see paragraphs 14 and 25 of the defendant’s Charter application. To be clear, in my view, the police did have a lawful basis to arrest Mr. Dube for impaired driving and I will explain why below.

43As for the grounds for the arrest, Detective Drummond and Officer Brisson both testified that Mr. Dube was swerving his vehicle a number of times before they pulled him over. A member of the public had said the same thing and that was the basis for the initial call to the police. The failure to maintain his lane was over an extended period of time. Officer Brisson also saw that Mr. Dube was slow to respond to a light that had turned green. Detective Drummond observed uneven speed by Mr. Dube. Police also had information that Mr. Dube was a prohibited driver. When Mr. Dube was pulled over Officer Brisson smelled alcohol after Mr. Dube rolled down his window a few inches. In all the circumstances in my view Officer Brisson had grounds to arrest Mr. Dube for impaired driving.

44The defence submits that the manner in which Detective Drummond and Officer Brisson pulled over Mr. Dube with one police vehicle behind him and one police vehicle in front was “excessive”. In my view, there is nothing to this argument. There was nothing wrong with the manner in which the police pulled him over.

45It was ultimately Officer Al-Jamal who proceeded with the arrest after Mr. Dube had been handcuffed in the course of the incidents described above.

The Law with respect to the use of excessive force by police

46“The use of excessive force in arresting a person has been held to be a violation of section 7 of the Charter for a violation of the security of the person”: see [R. v. Walcott 2008) (per Brown J. as he then was).

47The issue of onus is important and was not addressed by either counsel at trial. In the relatively recent case of R. v. Jarrett 2021 ONCA 758, the Ontario Court of Appeal stated as follows at para 61:

“[ R. v. Davis 2014 SCC 4 ] establishes that an accused only has the burden of demonstrating that a Charter remedy should be granted. The accused does not have the burden of showing that excessive force was used. Rather, once an accused shows that the police use deadly force, a prima facie breach of section 7 exists, and the evidentiary burden shifts to the Crown to prove the force used was justified.”

48The above observation by the Ontario Court of Appeal is not limited to cases where the police use deadly force. It also applies to section 25(1) of the Code which reads “every one who is required or authorized by law to do anything in the administration or enforcement of the law… as a peace officer… is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose”. The Alberta Court of Appeal stated in R. v. Davis 2013 ABCA 15 affirmed by the Supreme Court 2014 SCC 4 as follows at paras 43 and 46:

“The onus of proving that the force used is not excessive lies on the police officers. Put another way, the onus on a plea of justification in the use of force lies on him who asserts it (quoting Chartier v. Greaves, [2001] O.J. 634 at para 64).

Notwithstanding that the overall burden is on the person alleging a Charter breach, the situation is similar to a civil case where the overall burden lies with the plaintiff. Nonetheless, the law imposes an evidentiary burden on the defendant to prove the application of section 25, where he seeks to use it to justify his conduct.”

49To summarize on the question of onus, as I read the law, the onus is on Mr. Dube to demonstrate on a balance of probabilities that he was assaulted and that a section 7 Charter remedy should be granted. Once Mr. Dube demonstrates that force was used against him by a police officer without consent, the Crown must meet the evidentiary burden to show that the use of force was justified: see also R. v. Robinson 2019 ONSC 4696 at paras 101-102 (per Justice Dennison).

50The use of force must be proportional, reasonable and necessary: R. v. Nasogaluak 2010 SCC 6 at paras 32 and 34.

51The use of force must be looked at on a subjective-objective test. The officer’s subjective belief must be objectively reasonable: Nasogaluak at para 34.

52Police actions are not to be judged to a standard of perfection. It must be remembered that police engage in dangerous and demanding work under unexpected circumstances. The degree of force used should not be measured with exactitude: Robinson at para 105 citing Nasogaluak at para 35.

53Justice Brown (as he then was) in Walcott at para 24 observed that when determining whether excessive force has been used the Court should consider all the circumstances including whether:

(i) the suspect was acting in a hostile manner towards the police, resisting arrest, failing to comply with officer’s request. (ii) the relative sizes and weights of the officer and the suspect; (iii) the officer was at risk of harm; (iv) the police knew the suspect had a history which might represent a threat to them; or (v) the police understood that weapons may be present.

Context to the excessive use of force allegations

54Turning to the facts of this case, I note at the outset that from the moment he was pulled over, Mr. Dube was confrontational and uncooperative. When he was told by Officer Brisson that he was under arrest for impaired, he obfuscated and challenged police including with such statements as “why am I pulled over”; “who called you” and “I am not impaired”. He told police he was talking to his lawyer but admitted at trial that this was not true. He refused to step out of his vehicle notwithstanding the demands of police that he do so. He telephoned 911 from inside his vehicle to tell the 911 operator that he was pulled over by police alleging that he was impaired but he said he was not impaired.

55Mr. Dube testified at trial that he called 911 because he had seen fatal interactions between black men and the police online and that he was frightened. This fear is understandable. Having said that, I don’t really understand the logic that he would call the police by dialling 911 because he was afraid of police. However, I also agree with the Crown that one of Mr. Dube’s motivations may well have been to prevent the police from investigating him for impaired driving.

56There is another important context to the police dealings with Mr. Dube. Mr. Dube was in a live lane of traffic on a 7 lane road (three lanes each way and a turning lane). Mr. Dube and at least some of the police cars were in lane number one namely the fast lane. I accept the evidence of Officer Delmar and Detective Drummond that Mr. Dube was not completely boxed in. He may have been able to use his vehicle to ram his way out. Further, another vehicle driving in the same lane could have hit the police cars and injured the officers, Mr. Dube or other member of the public. Further, Mr. Dube could have fled on foot into the live lane of traffic.

57Having said that the location of Mr. Dube’s vehicle and some of the police vehicles was dangerous because it was a live lane of traffic, it was not all that dangerous because the police lights were on and would have been clearly visible to someone driving by. Further, I note that after Mr. Dube was under arrest and fully in custody, Officer Al-Jamal stayed at least 15 minutes at the roadside in her vehicle with Mr. Dube doing rights to counsel, among other things. If she thought it was dangerous, she could have moved. She didn’t.

58The other contextual point is this. Mr. Dube found himself under arrest for impaired driving and the police had reasonable and probable grounds to make that arrest. Police also had information that Mr. Dube was a prohibited driver. Detective Drummond said that this made him a flight risk as he would not want to interact with the police. I find this to be speculative and Mr. Dube never did anything to suggest he was a flight risk. I would add that as long as Mr. Dube was in his vehicle he posed a risk to himself and the police because the police would not know if he was armed and he might have been able to move his vehicle.. When he was out of the vehicle they could quickly determine, and they did determine here, that he was not armed. Accordingly, police were right to determine that he needed to be removed from his vehicle as soon as possible for the safety of all involved. Like any other person placed under arrest, Mr. Dube also needed to be handcuffed.

59When police were first dealing with Mr. Dube when he was inside his vehicle and refusing to get out, he was refusing to accept the basic facts of his predicament namely that he was under arrest for impaired driving and he needed to get out of his vehicle. He failed to follow police officers directions to get out of the vehicle.

60Having said that, once he was removed from the vehicle he was largely cooperative. I will return to this point below.

The Relative Sizes of Everyone Involved

61Although there were some other officers relatively nearby, there were primarily five police officers involved in the arrest of Mr. Dube: Officer Al-Jamal who is about 5’2”. She is a small person of perhaps 110 pounds; Officer Brisson is about 5’6” to 5’8” and she is average in size; Officers Delmar and Zemancik, who both look youthful and fit, are about 6 foot tall and perhaps 180 to 200 pounds; and Detective Drummond who I would estimate to be in his 50s and probably at least 190 pounds but no match for Mr. Dube. Mr. Dube was over 6 feet tall and I would estimate about least 25 pounds heavier than Officers Delmar and Zemancik. Detective Drummond estimated that Mr. Dube was 50 pounds heavier than Officer Delmar’s. I don’t think this is accurate. Mr. Dube is a large man but not that large. I would add that Mr. Dube does not appear particularly fit especially when compared to Officers Zemancik and Delmar. These estimates of the sizes and fitness level of the officers and Mr. Dube are my own estimates based on my review of the body camera evidence and the attendances of the witnesses in court.

62Based on the body camera evidence it is clear that the Officers Delmar and Zemancik were the primary persons applying force to Mr. Dube in order to get him handcuffed. Officer Al-Jamal was assisting in the handcuffing and Detective Drummond deployed a Taser twice but otherwise was not physically engaging with Mr. Dube. I’m unable to say what Officer Brisson doing to assist in restraining Mr. Dube. She may also have been involved in the handcuffing.

63The size of Mr. Dube including the size of his wrists and simple movements short of resistance may have made it difficult to get the handcuffs on him properly. Officer Brisson explained that handcuffs need to be “tightened and locked”. In other words they need to be put on, closed but adjusted to fit the detainee and then locked so that they won’t tighten further and hurt the detainee. The process of locking the handcuffs requires a “fine motor skill” said Officer Brisson and requires the officer to use a cuff key and put it in a small hole on the cuffs. This may have been why they had difficulty getting the cuffs on Mr. Dube. Once the cuff is closed but not locked, the detained person cannot get the cuff off.

The Allegations regarding a lack of Medical Attention

64The defence also submits that Mr. Dube’s security of the person was affected because he was deprived of medical treatment. This allegation is incorrect. Police initially called an ambulance to the scene because they thought the paramedic might be needed to remove the taser prongs from Mr. Dube’s body. In fact it was not necessary to do so. The taser prongs were caught up in his clothing and were removed by the police who cancelled the ambulance as a result.

65When Mr. Dube was back at the station dealing with the breath technician he said he needed medical attention and the breath technician called for an ambulance right away at 2:07 AM. The paramedic attended at 2:20 AM and took him to hospital at 2:37 AM at his request. The doctor saw him at 3:47 AM and arranged for x-rays to be done. He was then medically cleared at 4:10 AM.

66Accordingly, in my view, it is incorrect to say that the police failed to provide medical attention when medical attention was in fact provided in a timely way.

Was there excessive use of force in this case?

67The use of force here by police as I have found it involved multiple hard knee strikes by Officer Delmar to Mr. Dube’s knee/thigh area; multiple baton strikes by Officer Delmar to Mr. Dube’s back and the deployment of a taser twice by Detective Drummond which together with other physical force took Mr. Dube to the concrete ground causing bruising to his ribs, cuts to his knees and a mild concussion. Mr. Dube said there were also punches to his head and kicking him while on the ground but I did not observe that on the body camera video. It may have happened but I’m not satisfied on the evidence that I saw that it did happen. The knee strikes, baton strikes and tasering occurred while Mr. Dube was fully handcuffed on the left hand and partially handcuffed on the right (the cuff was on but not closed on his right wrist).

68I have considered all the evidence and I have come to the conclusion that police used excessive force in their dealings with Mr. Dube. Notwithstanding the testimony of the Officers Drummond, Delmar and Brisson, at no time did Mr. Dube assault or threaten to assault the officers and any resistance he gave was minor and brief and which, as I have said, involved refusing to give up his phone for about five seconds at the beginning of the interaction outside of the vehicle. None of Mr. Dube’s actions justified the use of the significant force in the form of knee strikes, baton strikes and tasering which was used against him by police.

69On my view of the facts, the Crown has failed to demonstrate that any significant force was required to be used against a man whose hands were up from the moment he got out of the car and then behind his back as demanded by the police. I have a particular concern about the deployment of the taser on two occasions including when Mr. Dube was on the ground and completely handcuffed on his left hand and partially handcuffed on his right hand (the cuff was on but not closed). I also have a further particular concern about the use of the baton three times by Officer Delmar against Mr. Dube while he was on the ground. To be clear, the knees strikes were also unnecessary in my view.

70The reasons for my conclusion that excessive use of force was used here are as follows:

71The breaking of the driver’s side glass window spraying glass into Mr. Dube’s face without a proper warning showed a reckless indifference to the physical well-being of Mr. Dube. The breaking of the glass was not a use of force by police on Mr. Dube but it is contextual point. I start this point by stating the obvious: police had a difficult person on their hands with Mr. Dube. Mr. Dube was confrontational and difficult from the beginning. He wanted to know who had reported him to police and he was offended that he would be accused of impaired driving even though Officers Brisson and Drummond had seen him swerving his car as had a member of the public. Further, he refused to get out of his vehicle and he phoned 911 on the police. While I have observed that Mr. Dube’s injuries were relatively minor to moderate in nature, his injuries were a lot more than what one would expect for an impaired driver being pulled over and investigated and ultimately charged. I understand, of course, that Mr. Dube did not behave like a typical impaired driver in that he refused to get out of his vehicle. As I have already observed though, police didn’t seem to treat him like a typical suspected impaired driver as they never even asked him for his driver’s license or insurance before demanding that he get out of his vehicle. In any event, the considerable force used on him was unnecessary and disproportionate to the actions of Mr. Dube.

72I believe the police were well within their rights to break the glass on the driver’s side window in order to require Mr. Dube to get out of the vehicle. Having said that, Officer Delmar was reckless when he acted without a specific warning to Mr. Dube that he was about to break the glass. There had been one prior warning from Officer Zemancik which Mr. Dube did not appear to hear. Officers Zemancik and Brisson were speaking to Mr. Dube trying to warn him again that the glass would need to be broken when Officer Delmar came from a different direction and without a further and specific warning administered three strikes to the driver’s side window using a special tool for that purpose. Officer Delmar thereby caused glass to spray into the face and eyes of Mr. Dube which were only inches away and a piece of glass lodged in his eye. It is true that Mr. Dube had been warned a short time earlier and was in the process of being warned again by Officer Zemancik when Officer Delmar broke the glass. However, Officer Delmar should himself given his own warning and given Mr. Dube an opportunity to cover his eyes or to turn away before this step was taken.

73In my view, the breaking of the glass was not assaultive behaviour by Officer Delmar because he did not intentionally spray glass in the face of Mr. Dube which was just inches away. Nevertheless it was negligent and ultimately led to Mr. Dube having a medical issue with a piece of glass lodged in his eye. Police and Mr. Dube are fortunate that Officer Delmar’s reckless act caused no further damage to Mr. Dube’s eye. While I say that this action was negligent behaviour by Officer Delmar rather than intentionally assaultive, it nevertheless showed a reckless disregard for Mr. Dube’s physical well-being and set the tone for what would happen next when Mr. Dube got out of the car.

74The Police were angry and it led to an excessive use of force. The body camera evidence shows that Mr. Dube was in the car refusing to get out for about a 90 to 120 seconds. From the time that he was out of the car until the use of force ended was about 75 seconds. What happened during the first 90 to 120 seconds when he was in the car and refusing to get out informed what happened during the 75 seconds that followed when he was out of the car. Mr. Dube frustrated the police by refusing to get out of the car and that made the police angry, particularly Officer Delmar.

75I note that Officer Delmar chose to break the glass of the driver’s side window while his colleagues, Officers Zemancik and Brisson, were still trying to de-escalate the situation by talking to Mr. Dube. Officer Delmar was having no part of any de-escalation efforts and he simply walked up and broke the window spaying the glass in Mr. Dube’s face. He said that he checked with Detective Drummond before he did it but that’s not captured on the body camera video and I would have thought it would have been. I note that after Officer Delmar broke out the glass with his baton he said to Mr. Dube sarcastically “happy?”. He then poked his baton into the car either to knock away a piece of glass or perhaps to strike Mr. Dube and then he yelled in an angry tone “get out of the car”. I can’t say with sufficient confidence on this evidence but Officer Delmar may have deliberately hit Mr. Dube with his baton at this stage. Then, as Mr. Dube exited the car before any physical interaction had occurred, Officer Delmar pointed his taser at Mr. Dube and said “you are about to get fucking lit up”. Officer Delmar was not asked anything about this statement by either the defence or the Crown but I find it concerning. There is no evidence that Officer Delmar deployed his taser. However his use of the words “you are about to get fucking lit up”, suggests anger and an intention to inflict punitive pain. He was taking a leading role in the arrest of Mr. Dube and his words set the tone for the arrest and the use of force. I note as well that while Officer Delmar did not appear to follow through and deploy his taser, his threat that Mr. Dube would be “fucking lit up” did come to pass about 45 seconds later when Detective Drummond deployed his taser twice without good reason.

76I repeat at this point that on my view of the evidence Officer Delmar administered multiple knee strikes to Mr. Dube and hit Mr. Dube 2 to 3 times in his back with the baton while Mr. Dube lay on the ground on his stomach with his left hand fully handcuffed and his right hand in the handcuffs but not closed. I will return to these points below.

77Mr. Dube was largely cooperative once he was out of the vehicle and was never assaultive. It is important to look at Mr. Dube’s actions from the time he stepped out of the car. Notwithstanding that he had been uncooperative when he was in the car, he was largely cooperative when he got out of the car. As he stepped out of the car both of his hands were held up high in the air. It would have been obvious to police at that time that he was not armed. His offered up his left hand behind his back as directed by police and it was immediately handcuffed without any difficulty. He gave some minor resistance about giving up his phone which was in his right hand. That resistance ended in about 5 seconds after he was out of the car. Within 12 seconds after he was out the car, both of his hands were behind his back as demanded by police. Within 19 seconds after he was out of the car, his left hand was fully handcuffed behind his back and his right hand was also handcuffed behind his back but the cuff was not yet closed. Police had some difficulty getting the right handcuff to close but this was not the fault of Mr. Dube.

78As I have already mentioned, the police proceeded to uncuff his left hand and to use a different set of handcuffs or restarted the process with the same handcuffs for some reason. Mr. Dube cooperated in this regard and he allowed his left hand to be cuffed again and he put his right hand behind his back as demanded by police (see 12:19:43 of the body camera evidence).

79Detective Drummond said that Mr. Dube was “becoming assaultive” by pushing away from the car on the right side and allegedly flailing his arms. Officer Brisson also said he was flailing his arms and in this sense was being assaultive. I note that even Officer Delmar, who was the most physically aggressive and most angry of the officers, said only that Mr. Dube was “bordering right on the low end of assaultive”. Let me be clear, I find as a fact that Mr. Dube was not being assaultive in anyway. If he had been flailing his arms it would have been seen on the body camera evidence and it wasn’t. In fact, the body camera evidence shows that within 12 seconds of him stepping out of the car both his hands are behind his back as directed by police. He could not have his hands behind his back and flail his arms at the same time. At its highest, he initially gave some minor passive resistance to his right hand being handcuffed because he did not want to give up his phone. This was not assaultive in nature and his minor passive resistance was quickly abandoned by Mr. Dube.

80Detective Drummond tasered Mr. Dube twice including a second time when he was on the ground almost completely handcuffed. Detective Drummond is a detective with PRP. Detective Drummond has been with PRP for 24 years. He deployed his taser twice on Mr. Dube. He has had annual training on the use of the Taser since 2005 or 2006. He testified that prior to this incident he had never deployed his taser on anyone (other than in a training setting).

81Detective Drummond testified that reason he deployed his taser the first time was because “in my opinion [Mr. Dube] became assaultive” (see page 67 of the December 20, 2023 transcript).

82On his own evidence, Detective Drummond testified that he tasered him the second time when Mr. Dube was “on the ground”. He described the deployment of the first and second taser as follows

“ I could actually hear it arcing which is one of the indicators whether it’s working properly because it’s a circuit. So I could hear it arcing and then they went to the ground. And I could see his arm um, his right arm was still loose and he was still resisting and still being uh, being verbal … I think I moved closer and I um activated the taser a second time ” (page 72 of the December 20, 2023 transcript)(my emphasis).

83Detective Drummond also testified that the first deployment “did not work” because it didn’t incapacitate him long enough for the officers to get him in handcuffs.

84As I have already said, Mr. Dube was not assaultive. Even if Detective Drummond perceived subjectively that he was assaultive, that was not objectively reasonable as Mr. Dube was not being assaultive at all. Further, the fact that he would taser a man lying on the ground on his stomach handcuffed on his left hand and with the handcuff on his right hand but open demonstrates that this was an excessive use of force. Even of I am wrong and that somehow he no longer had the right cuff on, Mr. Dube was not resisting and was about to be fully restrained (without the use of a taser) if he was not fully restrained already. The taser was not required or justified in the circumstances. There is some confusion as to precisely when Detective Drummond deployed the taser for the first and second time. While more than one officer, including Detective Drummond called out “taser” at 12:19:38 and again at 12:19:44, I find that it was not deployed at that time. It was deployed twice by Detective Drummond in quick succession from about 12:20:16 to 12:20:24. This is consistent with Detective Drummond’s testimony that the first taser (12:20:16) took Mr. Dube to the ground and then he tasered him again when he was on the ground.

85I note as well that Detective Drummond’s evidence was inconsistent with itself. On the one hand, he said that the first deployment did not work and on the other hand he said that as concerns the first deployment “I could actually hear it arcing which is one of the indicators whether it’s working properly because it’s a circuit”. It is also obvious that even if the first deployment did not completely incapacitate Mr. Dube, it caused him significant harm as he yelled out in pain and it, together with other force, took him to the ground. Detective Drummond was also inconsistent when he said “he was still standing” after the first deployment of the taser (p. 103 of December 20, 2023 transcript). He was not still standing after the first deployment and that is confirmed by the body camera video as well as Detective Drummond’s other evidence that the first deployment took Mr. Dube to the ground (page 72 of December 20, 2023 transcript).

86As Detective Drummond explained, when a taser is deployed there are two prongs which typically hit the person who is the subject of the taser. One can see at least three prongs on Mr. Dube in his clothing once he is on the ground. There are no prongs visible at the earlier time in the interaction when the officers call out taser (12:19:38) and this supports my conclusion that the two taser deployments occurred in quick succession as I have said starting at about 12:20:16.

87Detective Drummond and the Crown appear to try to justify Detective Drummond’s actions by reference to a black-and-white photocopy of a colour graphic entitled “Ontario use of force model 2004” (marked as exhibit 6 at trial). This document was apparently appendix “E” to some other document that I was not provided with. The evidence that Detective Drummond gave about the Ontario use of force model was vague and unclear. However, it seemed to me that the exhibit 6 diagram provided that the use of an intermediate weapon such as a taser should only occur where a police officer or member of the public is being physically threatened, or possibly where there is active resistance. That was not the case here. I could not possibly find on these facts that Detective Drummond deployed his taser in compliance with any applicable use of force policy given the lack of any threat to the officers and the lack of active resistance on the part of Mr. Dube. I understand, of course, that whether one complies with a policy or not does not determine whether excessive force was used. Nevertheless, it is a factor to be considered.

88Justice Brown’s observed in Walcott at para 108 that “the discharge of a taser after a person has been restrained and controlled would have no other purpose than to punish the person”. Justice Brown also observes in that case that the officers involved in that case acknowledged that if a person was on the ground and under control, the use of a taser would not be appropriate: see para 108 of Walcott.

89In my view, regardless of whether or not there was compliance or noncompliance with any applicable policy, the use of the taser in this case amounted to an excessive use force in all of the circumstances. It was clearly painful for Mr. Dube as he cried out in pain when it was administered. It also caused him to be taken to the ground which in my view resulted in bruising to his ribs, cuts to his knees and a mild concussion.

90Officer Delmar used knee strikes and baton strikes against Mr. Dube when he was not resisting. As I have already said, within 12 seconds after he was out the car, both of his hands were behind his back as demanded by police. Within 19 seconds after he was out of the car his left hand was fully handcuffed behind his back and his right hand was also handcuffed behind his back but the cuff was not yet closed. Police had some difficulty getting the right handcuff to close but this was not the fault of Mr. Dube.

91Officer Delmar sought to justify his use of the baton when Mr. Dube was on the ground by saying that “he continued to resist by not giving up his hands for handcuffing” (page 61 December 19, 2023) (my emphasis). The difficulty with this evidence is that it doesn’t actually accord with what happened as disclosed by the body camera evidence. Mr. Dube was fully handcuffed on the left side and handcuffed but not closed on the right side within 19 seconds after he was out of the car. Later on in his testimony after he had seen the video, Officer Delmar said “it is possible that I didn’t see that he was already handcuffed. This is a dynamic-a very dynamic situation as I described, but that doesn’t sound like something that I would do knowing that he was handcuffed to continue to strike someone” (page 80 December 19, 2023). Then later he acknowledged that the right cuff was on but not closed when he said “I can see that the handcuff is not done up” (page 88 December 19, 2023). In summary, Officer Delmar’s evidence as to why he used the baton started with the allegation that Mr. Dube was not giving up his hands for handcuffing and then changed and acknowledged that the handcuffs were on but one of them was not done up.

92Although the knee strikes are slightly less concerning, they too were unnecessary. They were preceded by Officer Delmar yelling “stop resisting” and pushing Mr. Dube’s handcuffed hands into his body repeatedly and then striking him multiple times with his knee in the knee/thigh region. To be clear, on my view of the evidence, Mr. Dube was not resisting notwithstanding Officer Delmar’s telling him to stop resisting.

Was there a violation of section 7 of the Charter?

93In order to show that there has been a violation of section 7 of the Charter, Mr. Dube must establish a substantial interference with his physical or psychological integrity. Excessive force by police may give rise to a breach of s. 7 breach if it substantially interferes with an accused’s security of the person interest. As the Supreme Court stated in Nasogaluak at para 38:

“I believe that a breach is easily made out on the facts of this case. The substantial interference with Mr. Nasogaluak’s physical and psychological integrity that occurred upon his arrest and subsequent detention clearly brings this case under the ambit of s. 7”

94In my view, the same is true in this case. Police used excessive force in the arrest of Mr. Dube and this impacted upon his physical and psychological integrity and was not in accordance with the principles of fundamental justice. There was a section 7 Charter violation.

Right to Counsel

95The defence submits that there were violations of Mr. Dube’s section 10(b) right to counsel because of the delay in allowing him to speak to counsel and the alleged failure by police to make proper efforts to contact counsel of choice. The defence also submits that duty counsel was involved too quickly and that Mr. Dube complained about his interaction with duty counsel.

96Section 10 (b) of the Charter provides as follows “everyone has the right on arrest or detention… to retain and instruct counsel without delay and to be informed that right”.

97The Supreme Court of Canada in R. v. Bartle, [1994] 3 S.C.R. 173 at page 192 set out three corresponding duties as follows:

(i) “to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; (ii) if the detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and (iii) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity.”

98When a detainee chooses to exercise their right to counsel by contacting a lawyer, they trigger the implementation duties of the police. A police officer does not need to let a detained person use the officer’s phone. However, the police have a duty to provide access to a phone “as soon a practicable” and at the “first reasonable opportunity” (see R. v. Taylor 2014 SCC 50 at para 28). The obligations on the police are contingent upon the detainee exercising reasonable diligence in attempting to contact counsel. What constitutes reasonable diligence in the exercise of the right to contact counsel will depend upon the context (R. v. Willier 2010 SCC 37 at para 33).

99When detainees opt to exercise the right to counsel by speaking with a specific lawyer, they are entitled to a reasonable opportunity to contact that lawyer prior to police questioning. If the lawyer is not immediately available, detainees have the right to refuse to speak with other lawyers and wait a reasonable amount of time for their counsel of choice to respond. What amounts to a reasonable period of time depends on the circumstances. If the lawyer of choice cannot be available within a reasonable period of time, detainees are expected to exercise the right to counsel by calling another lawyer or the police duty to hold off will be suspended: citing Willier at para 35).

100The Ontario Court of Appeal in R. v. Jarrett 2021 ONCA 758 has recently stated that “where the police assume the responsibility of making first contact, rather than providing the detainee with direct access to a phone or Internet connection, they must be taken to have “assumed the obligation to pursue [the detainee’s] constitutional right [to access] counsel as diligently as she would have”. The court also cited with approval Justice Dawe’s observation in R. v. Doobay 2019 ONSC 7272 at para 30 that “anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing”.

101Mr. Dube was given his rights to counsel at 12:27 AM, shortly after he was arrested. When he was told that he had the right to retain and instruct counsel without delay he said “you took my phone from me right”.

102When he was told that he had the right to telephone any lawyer he wanted and have a conversation in private with that lawyer and asked “do you understand” he said “did you not say somebody called and told me I was impaired”. When he was asked if he wished to call a legal aid lawyer he said “you are a public servant”. When he was given the 1-800 number for a legal aid lawyer he gave no response. At the end of the series of informational components, he was asked do you wish to call a lawyer now to which his response was “you guys confiscated my phone, I was calling a lawyer.” Mr. Dube can also be heard yelling on the body camera video just before rights to counsel were read saying that he wanted to talk to a lawyer.

103There was a delay of 39 minutes at the sallyport at the police station. The difficulty was that another prisoner had been brought into the station for processing immediately before Officer Al-Jamal arrived at the station with Mr. Dube. She could not recall if she had her work cell phone with her which might have permitted her to allow Mr. Dube to call counsel from the car.

104It’s important to understand that Officer Al-Jamal did not know it was going to take as long as it did when she arrived at the sallyport of the police station. I note also that police did not seek to obtain any evidence from Mr. Dube prior to him speaking to duty counsel.

105While the 39 minute delay at the sallyport was a lengthy period of time, the explanation for the delay was understandable. In addition, it made no sense to try to have Mr. Dube contact counsel of choice from the back of the police car while he was handcuffed. The police had just arrested him and had difficulty handcuffing him. It made a lot more sense, in my view, to wait and take him inside the police station where the handcuffs could be removed and counsel contacted and spoken to in a private room rather than handcuffed in the back of a police car. Accordingly, I see no 10(b) breach with the 39 minute delay.

106The defence also submits that the police failed to make proper efforts to contact his counsel of choice. Officer Al-Jamal attempted to contact Mr. Dube’s counsel of choice at 1:33 AM. She got the voicemail for Ryan Handlarski (counsel of choice) and the voicemail was full. She then called duty counsel at 1:35 AM. Duty counsel called back at 1:54 AM and Mr. Dube spoke to duty counsel at 1:55 AM. The conversation continued until about 2:02 AM when Mr. Dube was seen by police trying to call somebody else. Officer Al-Jamal told him he could only speak to a lawyer.

107Officer Al-Jamal asked Mr. Dube if he was satisfied with the duty counsel conversation but she had no note of what he said. She said that if he had indicated a dissatisfaction she would have called duty counsel back again. Officer Purdy, the breath technician said that Mr. Dube had said to him that he was not sure if he had spoken to duty counsel but Officer Jamal confirmed to Officer Purdy that he had.

108Notwithstanding that it is Mr. Dube’s onus to establish a breach of the right to counsel, I note that when Mr. Dube testified on the Charter application, not a word was said by him in his testimony about any concern that he had about duty counsel or the efforts made to contact Mr. Handlarski or whether he had some other contact information for Mr. Handlarski. Further, he gave no evidence on his Charter application about any concern he had about the advice he was provided by duty counsel and the evidence that was played for me as part of the breath room video did not deal with counsel of choice or duty counsel. There is no evidence that Mr. Dube raised any concern with police about the advice he was given by duty counsel. Further, no evidence was called by the defence to establish that if some other number had been obtained for Mr. Handlarski that he would have been reachable in the middle of the night.

109Accordingly, while I agree that police should have made better efforts to try to contact Mr. Handlarski, Mr. Dube willingly spoke to duty counsel and made no complaint about the advice he was given. As Justice Stribopoulos observed in R. v. Jhite 2021 ONSC 3036 at para 76

“The inadequacy of police efforts to contact counsel of choice and their failure to wait a reasonable amount of time for that lawyer to call back would not occasion a s.10(b) Charter breach if Mr. Jhite chose to forgo consulting counsel of choice to exercise his right to counsel by instead speaking with duty counsel”

110In my view, this is precisely what occurred here. I don’t know what was in Mr. Dube’s mind but it appears likely to me that Mr. Dube knew full well it would be very difficult to reach Mr. Handlarski in the middle of the night. Mr. Dube himself had been trying to contact his lawyer when he was sitting in the car and the police were trying to have him step out. He couldn’t reach him. Officer Al-Jamal tried to reach him but his voicemail was full. Mr. Dube then exercised his right to counsel by speaking with duty counsel and raised no concern about the advice that he was given.

111My view, there was no section 10(b) Charter violation.

Should evidence be excluded pursuant to section 24(2) of the Charter.

112The section 7 Charter breach in this case engages section 24(2) of the Charter which provides as follows:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

113Section 24(2) of the Charter requires a consideration of the analytical framework laid down by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The test is well known and involves a consideration of three factors: (i) the seriousness of the Charter infringing conduct; (ii) the impact of the breach on the Charter protected rights of Mr. Dube; and (iii) society’s interest in adjudication on the merits. The Court must balance an assessment of each one of these factors in order to determine whether, considering all the circumstances, the admission of the evidence would bring the administration of justice into disrepute.

114The defence submits in its written application that “all evidence obtained during or proximate to his arrest must be excluded pursuant to section 24(2)”. While the defence submission on this point is somewhat unclear, I take it that they are seeking the exclusion of the breath sample evidence and the observations made by police prior to the arrest and after the arrest. Other than the breath sample evidence, I’m not aware of any observations the police made after the arrest that might have a material bearing on the charges before the court.

115I turn now to examine whether the breath sample evidence and observations made by police prior to the arrest should be excluded.

116In R. v. Pino 2016 ONCA 389, the Court of Appeal held that in order for evidence to be “obtained in a manner” that infringed the rights of the accused, the connection must be causal, temporal or contextual and a generous reading should be given to the “obtained in a manner” test.

117As Justice Duncan of this Court recently observed in an excessive use of force case in R. v. Thomas 2023 ONCJ 531 at para 74:

“There are few reported cases where exclusion of evidence is considered for a section 7 violation of this type. The remedies considered seemed to be either a stay or reduction of sentence. This is probably because section 7 violation cases do not necessarily involve the obtaining of evidence at all. But there is no reason in principle that I can think of why exclusion of evidence cannot be a remedy to be considered, provided the necessary connection to the obtaining of the evidence exists.”

118In my view, I have no difficulty in finding that the breath sample evidence and observations the police made prior to arrest in this case were “obtained in a manner” that infringed Mr. Dube’s section 7 Charter rights. This is consistent with the generous interpretation given by the Ontario Court of Appeal in Pino. See also R. v. King 2019 ONSC 5748 (per Dennison J.).

The Seriousness of the Charter Infringing State Conduct

119Concerning the seriousness of the Charter infringing state conduct, the question is whether the admission of the evidence would bring the administration of justice into disrepute by suggesting that the courts will condone breaches of the Charter and the need for the courts to dissociate themselves from unlawful conduct. This factor involves an examination of the conduct of the police. The more severe or deliberate the state or police conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from the conduct so as to preserve public confidence in the rule of law: see also R. v. Orlandis-Habsburgo 2017 ONCA 649 at para. 130.

120In my view, the excessive use of force against Mr. Dube and related section 7 violation was very serious. I understand that Mr. Dube behaved badly by refusing to get out of his vehicle. I understand the police have a difficult and dangerous job to do. The difficulty for police here is that while Mr. Dube was uncooperative while he was in his vehicle, once he was out of the vehicle he was almost entirely cooperative. Police allowed their anger and frustration to lead to a situation where force was used when very little or none was required or necessary in the circumstances. He certainly did not need to be the subject of multiple knee strikes, baton strikes and twice tasered. The Court cannot condone angry police officers using excessive use of force on an allegedly impaired driver who initially refused to get out of his vehicle.

The Impact of the Breach on the Charter Protected Interests of the Accused

121In my view, the impact on the Charter protected rights of the defendant was also high. Like the excessive use of force case in Thomas, the impact on the security of Mr. Dube’s person was “direct and substantial”. I recognize that the breath samples and other observations were discoverable evidence which could have been obtained without the section 7 breach. Nevertheless, in my view, discoverability can’t be the whole answer when dealing with a section 7 excessive use of force finding. The impact on the Charter protected rights of Mr. Dube favours the exclusion of the evidence.

Society’s Interest in Adjudication on the Merits

122Under this heading, the Court considers whether the truth seeking function of the Court process would be better served by admission of the evidence or by its exclusion. The reliability of the evidence, particularly the breath sample evidence, and the importance of it to the Crown’s case are to be considered. In this case, the breath samples are highly reliable and critical to the Crown’s case on the over 80 charge.

123Overall, this factor clearly favours inclusion of the evidence.

Balancing

124The seriousness of the Charter infringing state conduct and its impact on the Charter protected rights of Mr. Dube both favour exclusion. Society’s interest in adjudication on the merits favours inclusion of the evidence. As has been said many times before, where the first two factors favour exclusion, the third factor will rarely lead to the inclusion of the evidence.

125Summarizing and balancing all three of the Grant factors, I consider that the long-term interests of justice and the reputation of our justice system would be damaged by the admission of the breath sample and other observation evidence. The breath sample evidence and police observations of potential impairment will be excluded pursuant to the provisions of section 24(2). I note that even if I had only excluded the breath samples but not excluded the alleged observations of impairment, the observations would not be sufficient to support a finding of guilt beyond a reasonable doubt on the impaired driving charge.

Conclusion

126Given my exclusion of the evidence under section 24(2), there is no evidence upon which the Crown can prove the two charges of impaired and over 80. There will be an acquittal on both of these charges.