Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Cyril Smith

Before: Justice J.V. Loignon

Final Reasons for Decision released on: July 3, 2014

Counsel:

• Ms. M. Cunningham for the Crown
• Mr. J. Foord for the accused Smith

LOIGNON, J.:

Introduction

[1] The applicant has been charged with driving while impaired, driving with a blood alcohol concentration of over .80, failing to stop for police and resisting arrest. Mr. Smith seeks an order staying the proceeding against him pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms based on allegations of excessive force used by the police in arresting him, thereby violating his rights under sections 7, 8 and 12 of the Charter. In the alternative, he submits that if this is not one of the "clearest of cases" where a stay of proceedings should be granted, the evidence obtained ought to be excluded pursuant to section 24(2) of the Charter.

[2] The parties are in agreement that the argument essentially stands or falls on an alleged breach of section 7. The excessive force alleged in the application can be summarized as a forceful removal of Mr. Smith from his car causing him to fall, face first, to the pavement. As a consequence of this fall, the applicant lost three front teeth and his cheek and nose were deeply scraped. He also suffered pain to the head, and subsequent to the incident began medication for anxiety and depression. It is the applicant's position that this force was unnecessary and unreasonable and therefore unjustified in the circumstances. The applicant points to the fact he is a 72 year old man and thus such force was excessive.

[3] The respondent's position in contrast is that any force used by police in effecting the applicant's arrest was lawful and not excessive because Mr. Smith was resisting efforts to place him under arrest and refusing to comply with directions made by police.

The Facts

Constable Gurlich

[4] Constable Damien Gurlich is a police officer with the Ottawa Police Service. On March 21, 2013 he was working the afternoon shift and was assigned patrol duties in the west end of the city. At approximately 10:52 p.m., he saw the accused's car going westbound on the Queensway. He first observed the Nissan in the area of the Kirkwood access to the Queensway. The officer noted that the car merged into the slow lane of traffic from the on-ramp without signaling. He also noted shortly thereafter the vehicle swerving within the lane going from one white line to the other. The officer decided to follow the vehicle from the same lane a number of car lengths behind. He also paced the Nissan and estimated its speed to be approximately 120 km in a 100 km zone.

[5] Constable Gurlich next observed the vehicle merge from the slow lane over two lanes of traffic into the fast lane going too far over the lane and over the yellow markings on the roadway almost into the centre median. The driver then over-corrected into the middle lane of traffic and then returned to the slow lane. At this point, the officer decided to activate his lights and siren in order to conduct a traffic stop. At this time, the officer was approximately at Woodroffe Avenue, two exits beyond the initial observations at Kirkwood. While prior to this time the officer had been approximately seven to eight car lengths behind, the officer closed the gap to approximately three to four cars. The driver of the Nissan continued on in the same lane of traffic. The officer decided to radio dispatch concerning pursuit of a possible impaired driver. The Nissan and the cruiser continued down the Queensway and were approximately at the Pinecrest exit when the officer observed the car swerve from the slow lane to the middle lane without signaling. The rate of speed was the same and the officer continued to follow directly behind the vehicle but some lengths behind. Once at the Bayshore Drive exit, the driver of the car reduced his speed from 120 km to 100 km per hour. The vehicle however did not stop and continued until approximately 200 metres before the Moodie Drive exit. The car stopped on the right shoulder. The officer immediately pulled behind the vehicle and exited his cruiser. There were no other cars in the immediate area of their two throughout the pursuit.

As Constable Gurlich followed the accused's vehicle, he testified that the only information he knew was that the registered owner of the vehicle was 72 years old. He would not have known who the driver was or his background. This having been said, immediately upon arriving at the driver's side window he knew that he was dealing with a 72 year old male. During the officer's testimony he flipped flopped between whether the window was up or down. This of course calls into question the ability to smell alcohol on the accused's breath, one of the basis for arrest. He testified that he could smell alcohol from inside the vehicle and as a result, he advised the accused that he was under arrest for fleeing from police as well as impaired driving. Officer Gurlich received no response from the driver who continued to stare straight ahead through the windshield. The officer made no inquiries at all of the driver. Constable Gurlich then opened the driver's side door and undid the driver's seatbelt. The officer directed the driver to step out of the vehicle. In the officer's words, given the arrest it was time to now take custody of the driver. As the officer unfastened the driver's seatbelt, he observed the driver place his right hand on top of the gear shift. Officer Gurlich immediately leaned over and grabbed the driver's right hand to prevent him from putting the vehicle in motion. The gearshift never moved. It was at this time that Constable Gurlich was joined at the car by Constable Nip. Constable Gurlich felt at that time that he needed to move over to accommodate this officer and in addition, given the manner in which he was placed, his firearm was exposed to the driver's left hand. As a result, he stepped aside to grab the left hand to allow Constable Nip to take custody of the right. Following Constable Nip's arrival, there were attempts to pull the driver from the vehicle. According to Constable Gurlich, the driver was firmly holding onto the steering wheel with his right hand. As a result, the officer told the driver to stop resisting. In fact, this statement was made on a continuous basis to the driver. In addition, Constable Gurlich testified that the driver was specifically told to let go of the steering wheel. The accused however did not let go of the steering wheel, nor did he say anything to the officers.

[6] Constable Gurlich testified that once Constable Nip arrived, the officers were able to pull the accused out of the vehicle. All three ended up falling onto the pavement, into the highway. The officer attributed the fall to the sudden letting go of the steering wheel. In terms of the level of force being used to remove the accused from the vehicle, it was described as quite a bit of pulling force, nothing more. The officer was not able to extract the accused on his own. This officer recalled landing on his back and not being aware as to how the accused or Constable Nip landed. The accused was then handcuffed, searched and placed inside the cruiser.

[7] Once inside the cruiser, the officer continued to detect an odour of alcohol. The officer also noted injuries described as minor scratches to the cheeks with redness but no active bleeding. At that time, the accused did not complain of any injuries to the officer.

[8] At 10:56 p.m. the accused was again advised of the reasons for arrest. Approximately four minutes had passed since the initial observations of the vehicle and driving. Rights to counsel were read and the accused said he understood the various rights and cautions. At this time, Constable Gurlich described the accused's demeanor as having radically changed. He described the accused as very cooperative and more aware of what was occurring. The roadside screening demand was read and a breath sample was provided at 10:59 p.m. The reading on the approved screening device was a fail. Throughout giving the sample on the screening device, no complaints were made by the accused of any pain or injury. Subsequent to the fail, the accused was advised that he would be charged with driving with more than 80 milligrams of alcohol per 100 millilitres of blood. The breathalyzer demand was then read.

[9] The accused was brought to Huntmar Station for the breathalyzer testing. At that time, the accused advised Constable Gurlich that he had lost some of his teeth as a result of being grounded by police. The officer was able to confirm that indeed the accused was missing teeth and noted blood on his gums as well as the fresh "road rash" on his cheeks. Having made the observations, the officer asked the accused whether he required an ambulance to which the accused responded yes. Subsequent to that, paramedics were called and the accused transported to hospital. As they were awaiting the arrival of paramedics, the accused exercised his right to counsel. Mr. Smith was transported to the Queensway Carleton Hospital and seen approximately thirty minutes after arrival by a doctor. The doctor advised that the accused was able to provide a breath sample. Arrangements were made for a breathalyzer technician to attend at the hospital and the testing was in fact conducted there.

[10] The accused was discharged from hospital shortly after 2:00 a.m. and officer Gurlich drove him home. He was released on a promise to appear and provided with all the documents related to the charges. When the accused was driven home, he was not in handcuffs and the officer described him as being very cooperative with the two engaging in casual conversation.

[11] In cross-examination Constable Gurlich answered all of counsel's questions directly, without hedging or engaging in any debate or downplaying. In that regard, he was a most forthright witness. With respect to the driving evidence, Constable Gurlich was unshaken as to the observations made. Constable Gurlich's one concession was that drivers on the 417 highway often times engage in imperfect driving and that this can be manifest even when parties have not been drinking.

[12] With respect to the timing of Constable Nip's arrival, Constable Gurlich testified that he was not sure if he himself was pulling up or already outside of his cruiser walking towards the driver once Nip arrived.

[13] Constable Gurlich also testified that his purpose of grabbing the accused's hand from the shifter was to stop any ability to move the car. Initially, the officer testified that it was only once Nip was present at the vehicle that he attempted to pull the accused out. He then stated that as he pulled on the left hand, the right hand went to the steering wheel and Nip then grabbed this which would suggest he was already pulling on the accused when Nip arrived. Constable Gurlich could not identify exactly at what point Nip arrived on scene with him, he could only be certain that when the hand was on the shifter he himself seized it.

[14] One area of Constable Gurlich's evidence which causes me some concern is with respect to the complete omission as to Nip's presence on scene. Constable Gurlich failed to record in either his notes or his investigative action report that officer Nip attended on the scene. When attempting to explain this on the stand, he suggested that it was because Nip was responsible for making his own report and notes. This is of course a ridiculous suggestion. Another issue which is odd is with respect to the use of the term "grounded" in the officer's investigative action report. Whereas the investigative action contains no information with respect to officers or anyone in fact falling to the ground, the notation in the report is that the accused was grounded. When explaining this on the stand, Constable Gurlich testified that the accused fell and as a result, he was grounded. He disputed the contention that the accused was in any fashion intentionally grounded. He was steadfast that the contact with the ground was the result of all three falling. The investigative action was completed after the events of the night. These would have been fresh in the officer's mind. Either the officer was rather lax with his report writing to have misdescribed something so crucial, or Mr. Smith was indeed grounded.

[15] When asked questions concerning the presence of backup and the ability to wait for assistance before pulling the accused out of the vehicle, Constable Gurlich testified that he did indeed wait for assistance. Constable Gurlich testified that he had already given several commands to the accused who did not respond or react. He testified that he would have pulled between three and five times on the accused prior to the fall from the car. Constable Gurlich recognized that the injuries were certainly caused as a result of the pulling action by the officers as the accused was not able to brace himself when ultimately all fell from the vehicle. Interestingly enough, Constable Gurlich only accounted for the missing teeth in his investigative action report and even then attributed this to the accused's inability to brace himself for impact due to his high level of intoxication. On the stand, this rather misleading statement was readily qualified by accepting that it was also due to the high level of force used.

[16] It was suggested to Constable Gurlich that when the accused's vehicle didn't stop for police, he became upset which caused him to overreact. Constable Gurlich testified that in fact, this was not his first pursuit and that people often do not immediately stop and so he was not upset by the accused's actions.

[17] The use of force wheel was presented to Constable Gurlich and he was asked to explain where his conduct fell on the continuum. He explained that the accused's behaviour ranged from passive to active resistance. Passive resistance constituted the failure to acknowledge the police presence whereas active resistance was the accused's failure to step out of the car. The wheel permits a range of soft to hard tactics in the circumstances. Soft tactics include simple touching whereas hard control can be physical strikes as well as grounding.

Constable Nip

[18] Constable Nip overheard the call made by Constable Gurlich with respect to a pursuit on the 417 going westbound. By the time that he arrived, the car was already stopped and as a result, he brought his cruiser to a stop in front of the accused's car to block it in. As the officer approached the vehicles, Constable Gurlich was moving towards the driver's side door. Once he parked his car, Constable Nip exited and went around the back. At that time, he noted Constable Gurlich trying to pull the driver out of the car. He had the driver by the left arm. Given what he observed as Constable Gurlich's difficulty, he assisted by taking the left shoulder and front collar of the accused. He lost his grip and stumbled back. He ended up falling on the ground. With respect to the accused's right hand, he noted it to be on top of the steering wheel and that the accused appeared to be holding it. This officer recalled having to reach over Constable Gurlich in order to grab a hold of the accused. He was involved in only one pull to extract the accused. When asked how the accused ultimately exited the car, Constable Nip opined that it was as a result of the pulling or the accused relinquishing his hold on the steering wheel. When he pulled, Constable Nip pulled as hard as he could causing him to stumble with the force of his momentum.

[19] In cross-examination, Constable Nip confirmed he joined Gurlich at the vehicle as quickly as he could. He estimated that the accused had been stopped approximately ten seconds prior to his arrival. By the time he did make it around the vehicles, Constable Gurlich was already trying to pull the accused out. In his view, it appeared as though significant force was being used. Constable Nip testified that he himself did not fall, but rather simply stumbled. He indeed, stumbled into the oncoming traffic on the Queensway. Constable Nip explained that he lost his grip, then lost his balance. By the time he regained his balance and re-approached, he noted that Constable Gurlich was on top of Mr. Smith. He never saw Constable Gurlich fall. He also testified that in retrospect, pulling someone forcefully out of a vehicle on the 417 where the force might send all or one of the officers into traffic was not the safest idea.

[20] Once Mr. Smith was cuffed, he was brought to the cruiser and Constable Gurlich dealt with him. Constable Nip noted a wafting odor of alcohol coming from the accused. Constable Nip did note that the accused sustained cuts and scratches to the face. Constable Nip testified that he did not hear either the accused or Constable Gurlich speak at all. He testified that there were too many sirens making it impossible to hear. Ultimately, Constable Nip was advised of the fail result on the ASD and became responsible for the tow. He did not accompany Gurlich and the accused to the station but ultimately did re-attend at the hospital. Other than the pulling at the roadside, he had no real contact with the accused. He did not use any force other than the pulling action nor did he see anyone use any force on the accused other than what was described.

Mr. Cyril Smith

[21] Defence elected to call evidence on the voir dire and the accused Cyril Smith testified. Mr. Smith is now 73 years old. In March of 2013, he was 72. Mr. Smith at the time had no health issues other than using Aleve for Arthritis morning and night. Mr. Smith was an avid hockey player and in fact on that very day played hockey from 3:00 p.m. until 5:00 p.m. He testified that following his second hockey game at about 5:30 p.m., he had a beer in the dressing room. Shortly thereafter, he received a telephone call from his girlfriend and was invited to supper. He stopped off and picked up a bottle of wine to have with dinner. During dinner, he consumed a couple of glasses of wine. After dinner, the two were invited to join friends at a pub or restaurant nearby. He and his girlfriend attended and at that time consumed more wine. Shortly after 10:15 p.m. Mr. Smith began to feel unwell and as a result, advised the others that he was going to leave. With respect to the effects of the consumption of alcohol, the accused testified that he felt fine.

[22] Once in his car, Mr. Smith reached for his seatbelt but because of a severe cramp, let it go. He drove away holding or rubbing his stomach. He drove to the Bronson on-ramp, his usual route from his girlfriend's residence to the 417. He testified that in that area of the Queensway, there are four lanes and he ultimately worked his way into one of the two middle lanes. He testified that his windows were up, his seatbelt was off and his speed approximately 115 km an hour. Once he reached Woodroffe, he saw lights in the distance behind him. He originally thought that it was an ambulance. As he approached the Pinecrest exit, he saw that it was in fact police. He didn't think that the police vehicle was trying to stop him as he had done nothing wrong. He expected the police car to overtake him in the fast lane to his left. Mr. Smith testified that he drove at the same speed throughout but that there may have been an impact on his driving because he had only one hand on the wheel and the other on his stomach. This having been said, other than conceding that he perhaps may not have been as steady as he normally would, he denied ever almost hitting a median on the Queensway.

[23] Once at Bayshore, Mr. Smith realized that the police car was following him. He pulled into the slow lane and reduced his speed. At that time however, he was even with cement barriers and thought it unsafe to stop at that point. He drove on towards Moodie until he found a safe spot. He came to a stop on the right shoulder, put the car in park and turned the car off. Mr. Smith testified that he had no intention to evade police. Just as he turned the car off, a cruiser pulled right in front of him. Mr. Smith could not recall there being a car that came in behind him. He was too shocked with respect to the car in front of him. With respect to his window, he testified that it was still up and that his seatbelt remained off.

[24] Mr. Smith testified that the door was opened; he was grabbed and then forcibly pulled out of the car onto the pavement. Mr. Smith was unable to tell how many people pulled at him. It took only one or two seconds to grab him then throw him to the ground. Mr. Smith testified that no one said anything to him. As a result of being thrown to the ground Mr. Smith's face and head were banged. His teeth were also knocked out. Because of the contact with the ground, Mr. Smith's memory of the events that followed his removal became somewhat sketchy. Mr. Smith testified that at the time of the traffic stop he had been wearing glasses but subsequent to being pulled out he did not know what became of them.

[25] Mr. Smith testified that once he came to a stop he put the car in park and put both of his hands on the wheel. He was looking straight ahead. From the time he put the vehicle in park to being pulled out; he estimated that two or three seconds went by.

[26] Mr. Smith testified that he suffered various scrapes to the cheek, nose and forehead and required dental work for his teeth. While a dental plate was repaired, he still requires the extraction of a tooth that was cracked. Mr. Smith also testified that the incident has had a severe impact on him emotionally. He could not sleep for over a week after the incident and ultimately began taking medication for sleeping, anxiety and depression. He is still taking this medication today. While Mr. Smith played hockey twice a week prior to the incident it took him some time, approximately two months to return.

[27] In cross-examination, Mr. Smith testified that the pain on the night of the 21st of March, 2013 did not cause him any concern with respect with his ability to drive home. He furthermore was not driving particularly slowly or cautiously despite the fact that he had a hand on his stomach. I do note that having just said that the pain in his stomach was likely causing him not to drive in a steady manor, it is somewhat incongruous that he would not at least slow down. Mr. Smith was challenged with respect to his driving and in particular with respect to signalling as he was moving between lanes. Mr. Smith was adamant that every single time he changed lanes, he signaled. He also stated that he had a specific memory of signaling for each lane change. This specific recall concerned only the Queensway, not every lane change throughout the entire day. When asked why he could recall the lane changes on the Queensway, his response was "because that's what I did". When it was offered that perhaps his evidence was more akin to a description of a habit, Mr. Smith rejected that notion and insisted that he had a specific recollection of each lane change. I note that someone who is in some degree of pain and who is driving with one hand on the wheel as they are clutching their stomach is unlikely to also be signalling as they are changing lanes. Mr. Smith's insistence on this point is perhaps an attempt to paint himself in the best light possible.

[28] When questioned about his statement that his driving was perhaps not steady, it was suggested to him that perhaps he went on to one of the lines or swerved within his lane. His response was no. He ultimately conceded that he may have been moving from one side to the other within the lines but that it was impossible that he crossed any. He did ultimately concede that perhaps it wasn't the best idea for him to have been driving after a few drinks. He qualified this by saying that he did not believe that he was over the limit.

[29] When questioned with respect to his failure to stop for police and when the realization was made that the vehicle was pursuing him, Mr. Smith testified that he had never been stopped before while driving. When presented with his Highway Traffic Act driving record he ultimately did concede that yes, he had been stopped before. He then qualified this by saying not from behind. He had been stopped for seatbelt checks and breathalyzer checks but never from behind. After some pressing on the point, he allowed that on occasion he was stopped when police came up from behind him. Mr. Smith did allow that having been stopped before he was aware that police would approach his vehicle on foot to speak with him. This was indeed what he expected would happen on that night. When suggested that he would have rolled his window down at that point, Mr. Smith denied having done this. He was not able to offer how he expected then to speak with police once they arrived at his door. He simply answered that everything happened too quickly. When questioned about his state of shock, he qualified this by indicating that the events startled him. When asked whether it may have had an impact on his ability to recall what occurred, he disputed any such suggestion. When asked to provide additional details as to the chronology of what occurred once the vehicles were stopped, Mr. Smith was simply unable to do so. His evidence was that he stared straight ahead through the window and noticed little if anything else. Despite staring directly at the police vehicle that pulled directly in front of him, he was unable to testify as to seeing the officer exit the vehicle and approach his own. One area where he did have some recollection was with respect to holding on to the steering wheel. He testified though that he was not holding on to it tightly. It was Mr. Smith's evidence that he did nothing to resist being removed from the vehicle. Mr. Smith testified that the first words he recalled being spoken to him by a police officer were "would you like a lawyer".

[30] Mr. Smith had little recall as to any of the details at the roadside, providing the sample or being advised as to rights to counsel. He did recall saying that he was in pain at the Huntmar Station but little prior to this. Mr. Smith did not however dispute the officer's evidence as to what transpired at the roadside following his removal from the vehicle. He also accepted that as soon as any mention was made with respect to pain, that Constable Gurlich offered the services of the paramedics, made the various arrangements for them to attend and thereafter made the arrangements for him to be transported to hospital. He also confirmed that following the samples being taken and his discharge from hospital, that police drove him home. From the time he was placed in the rear of Constable Gurlich's cruiser until the time that he was brought home, Constable Gurlich was polite and civil to him. Other than the removal from the vehicle, Mr. Smith had no complaint with respect to the manner in which he was treated by police. When asked to confirm that no officer struck, hit, punched or kicked him, Mr. Smith answered that that was not true. When pressed upon to explain or provide detail as to any strikes, hits or kicks, Mr. Smith explained that being taken to the ground was a form of striking. He agreed that there were no punches or kicks. Mr. Smith confirmed that he is not hearing impaired nor was there any reason why he would have been unable to comply with instructions such as "exit the vehicle" or "take your hands off the steering wheel". More specifically, that he was not in pain to the extent that this had any effect on his ability to speak or move. In addition, his state of shock or startlement was not such that he was unable to hear or comply. Mr. Smith denied however that his failure to comply with any of the police instructions or to hear were due to impairment.

The Law

[31] With respect to the alleged breaches of sections 7, 8 and 12 of the Charter, the applicant bears the burden of demonstrating on a balance of probabilities that the rights protected in those sections have been breached. By contrast however, the respondent bears the onus of proving that the force used was reasonable in all the circumstances and justified by section 25 of the Criminal Code. Section 25 of the Code is designed to protect those engaged in law enforcement from civil and criminal liability when they are required to use force in performing their public duties. When that section is invoked, the burden falls on the person seeking to rely on the section's protection to prove that it applies. (See Chartier v. Greaves, [2001] O.J. No.634)

[32] There is little doubt that police are entitled to use force in executing their duties. This includes the use of force to make and continue an arrest. (See R. v. Asante-Mensah, 2003 SCC 38). In addition to this, police officers are not expected to measure force with exactitude nor are they expected to use the least amount of force which will achieve their objective. Indeed, in Chartier v. Greaves, supra, Power J. held:

[33] It is both unreasonable and unrealistic to impose an obligation on the police to employ only the least amount of force which might successfully achieve their objective to do so would result in unnecessary danger to themselves and others. They are justified and exempt from liability in these circumstances if they use no more force than is necessary, having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves.

[34] As is obvious, the issue of the use of force is dependent upon the circumstances at the time when force was used. The circumstances as they existed will also include the conduct of the accused. Indeed, in R. v. Gladue, the Alberta Provincial Court held as follows: The extent to which the police are entitled to interfere with the physical integrity of the accused on or during arrest is determined by the circumstances and to a large part by the conduct of the accused. When the circumstances require the accused to be thrown to the ground to affect and maintain an arrest, such an interference with the right to security of the person is in accordance with fundamental principles of justice in the sense that both the Common Law and the Criminal Code authorize such police conduct in such circumstances. Once the force used by the police is excessive in the circumstances, then the accused has been deprived of his right to security of the person in accordance with the principles of fundamental justice. Excessive force in arresting an individual is a breach of the section 7 Charter right of security of the person.

[35] In R. v. Mulligan, the Ontario Court of Appeal stated that an appropriate level of force may be used by police where a person fails to comply with an officer's arrest procedure. Resistance or lack of cooperation by an accused does not entitle the police to use any level of force that they deem appropriate. The use of force must be reasonable and appropriate in the circumstances, always bearing in mind that officers cannot be expected to measure the force used to a nicety. In R. v. Roger [2008] O.J. No. 23, Justice Manton at para 10, refers to the Supreme Court of Canada's decision in R. v. Genest, [1981] 1 S.C.R. No.59, where the Court noted that the greater the departure from the standards of behaviour required by the Common Law and the Charter, the heavier the onus on the police to show why they thought it necessary to use force in the process of an arrest or a search. The evidence to justify such behaviour must be apparent in the record, and must have been available to the police at the time they chose their course of conduct. The Crown cannot rely on ex post facto justifications.

[36] In R. v. Nasogaluak, [2010] 1 S.C.R. No.206, at para 32, the Court emphasized that police officers "do not have an unlimited power to inflict harm on a person in the course of their duties. While, at times, the police may have resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness."

[37] Section 25(1) of the Criminal Code is relevant to the case before me. That section states:

25. (1) Everyone who is required or authorized by law to do anything in the administration or enforcement of the law…

(b) as a peace office or public 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.

[38] Distilled to its essence, this section requires that an officer have reasonable or probable grounds for the arrest and that they use only as much force as is necessary in the circumstances. Section 25(3) qualifies this general statement of principle indicating that an officer may not use a greater degree of force, such as force likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect another person or himself from death or grievous bodily harm. This belief must be objectively reasonable. (R. v. Nasogaluak, supra, at para 34) I will not deal with this subsection any further as in my view it is of no application as the force in this case was not force likely to cause death or grievous bodily harm.

[39] In R. v. Roger, supra, the Court re-stated fundamental Charter values in the use of force context in this manner:

[40] Under section 7 of the Charter, security of the person has been elevated to the status of a constitutional norm, such that the state may not interfere with the security of the person unless such interference conforms with the principles of natural justice. No person may cause harm to the person of another without his consent or without being authorized by law to do so.

[41] Section 12 of the Charter protects Canadians against punishment which is so excessive as to outrage our society's sense of decency. Where punishment is merely disproportionate, no remedy can be found under section 12. To establish a breach of section 12, the Court must be satisfied that the punishment imposed is grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent or intolerable. (R. v. Roger, Ibid, at para 12 and 15)

[42] This articulation of section 12 principles is largely drawn from the Supreme Court of Canada decision in R. v. Morissey, 2000 SCC 39, at para 26.

Stay of Proceedings

[43] The applicant seeks the remedy of a stay of proceedings pursuant to section 24(1) of the Charter. While such a remedy often addresses issues of trial fairness, as was found in R. v. O'Connor, [1995] 4 S.C.R. No.411, the Supreme Court of Canada more recently re-confirmed a residual category of cases where the remedy of a stay may also be appropriate. Because a stay of proceedings is a drastic remedy and halts a criminal prosecution, it will only rarely be granted and only in the "clearest of cases". According to the decision in R. v. Babos, 2014 SCC 16, at para 32, three criteria must be satisfied for a stay of proceedings to be warranted:

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

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

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

[44] The residual category is invoked where "the state has engaged in conduct that is offensive to societal notions of fair play and decency" and which may undermine the integrity of the justice system. (Babos, ibid, at para 35) It is not designed to redress a wrong that has already been committed. Rather, it is concerned with proceeding to trial in the face of state misconduct, which may further harm the justice system by appearing to condone the misconduct. In Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. No.391 at para 91, it was put this way:

For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice….[T]here may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive. But such cases should be relatively rare.

And further, at para 96:

Admittedly, if the past abuse were serious enough, then public confidence in the administration of justice could be so undermined that the mere fact of carrying forward in the light it would constitute a new and ongoing abuse sufficient to warrant a stay of proceedings. However, only an exceedingly serious abuse could ever bring such continuing disrepute upon the administrative of justice.

[45] The second step of the analysis is to consider whether a remedy short of a stay will address the prejudice. Some Courts have accepted that a reduction in sentence may be an appropriate disposition under section 24(1). Indeed, in Nasogaluak, such a reduction was considered appropriate because of the "punishment" already meted out through the excessive use of force by police. The Ontario Court of Appeal in R. v. Tran, 2010 ONCA 471, has opined that where the nature and degree of the state misconduct is so significant this may demand a remedy beyond a simple adjustment in sentence. In some cases a stay will be appropriate to address the damage to the foundation of our system of justice caused by the misconduct of state actors. (See para 93)

[46] In R. v. Babos, supra, the Court suggested that at this second stage, the exclusion of evidence must be considered, bearing in mind that the focus is not to redress a wrong to the accused, but rather to ensure an appropriate manner of disassociating the administration of justice from the wrongful conduct. While the accused has argued for exclusion of evidence as an alternative stand-alone remedy under section 24(2), with the framework outlined in R. v. Babos, ibid, I will consider such a remedy as part of the stay analysis.

[47] Where, following the first two steps of the analysis there is still uncertainty, especially where the residual category has been invoked, the Court must undertake a balancing of interests. "The more egregious the state conduct, the greater the need for the court to disassociate itself from it. When the conduct in question shocks the community's conscience and/or offends its sense of fair play and decency, it becomes less likely that society's interest in a full trial on the merits will prevail in the balancing process." (R. v. Babos, supra, at para 41) In undertaking this balancing, the following should be considered:

• Nature and seriousness of the impugned conduct;
• Whether the conduct is isolated or reflects a systemic and on-going problem;
• The circumstances of the accused; and
• The charges facing the accused and society's interest in a full trial on the merits.

[48] The following are examples of cases where a stay was granted based on wrongful state action and the potential for irreparable prejudice to the integrity of the judicial system:

• R. v. EJA (unreported) December 17, 1999, Price George Registry (B.C. Provincial Court) Accused, while restrained, kicked in the head and ribs.

• R. v. Spanner, [1996] B.C.J. No.1325 (B.C.S.C) Accused, refusing to exit police cruiser and immediately pepper-sprayed.

• R. v. Woodland, [2001] B.C.J. No.2113. While accused reaching for lighter and cigarettes, police struck items out of his hand without warning.

• R. v. Tran, 2010 ONCA 471; R. v. Neil Singh, [2013] O.N.C.A. No.750. Accused beaten while in police custody in order to obtain a statement.

• R. v. Gladue, [1993] A.J. No.1045 (Provincial Court) Accused told officer that a handcuff had become undone. He forcefully shoved her back and head to the wall causing bruising.

• R. v. Costain, [2013] O.J. No.2289. Accused charged with driving offences. When handcuffed and on the ground he was kicked and punched; police behaviour to cover up.

• R. v. Cousins, [2009] O.J. No.4252 (O.C.J.). Accused used to open two exit doors.

• R. v. Berry, [2013] O.J. No.3446 (O.C.J.). Accused handcuffed and manhandled while detained for investigative purposes. (Impaired)

• R. v. Richard, 2012 ONCA 727. Accused arrested for impaired. As complying with officer demands, blow with knee and other blows. Accused suffered cuts, bumps and bruises.

• R Mohmedi, [2009] O.J. No.5076. Accused arrested for impaired. Kneed twice; thrown into cruiser and handcuffed. Accused rude and belligerent. Use of force unnecessary and premature.

• R. v. ST, [1197] O.J. No.5579. Accused stole a car; high speed pursuit where stolen car hit a cruiser. After told to exit car and lie down, beaten by unknown assailants. Beating stopped when driver identified.

• R. v. Tang, [2014] O.J. No.9760 (O.C.J.) Accused beaten following gun point arrest and being rapidly pulled out of the car.

[49] As can be seen above, stays have been granted in a wide range of cases including where there has been a relatively minor instance of use of force but, because of the circumstances, these were deemed excessive in the circumstances. Indeed, in some instances the abuse extended suppressing evidence, the police complaint or to the actual trial process.

Analysis

Basis for the Stop and Arrest

[50] While counsel for the Applicant did not take issue with the basis for the traffic stop and arrest, in his evidence, the Applicant disputed the observations made by Constable Gurlich. With respect to the manner of driving, I entirely reject the Applicant's evidence. He began by suggesting that the only issue with his driving was perhaps some unsteadiness and that he otherwise obeyed all of the rules of the road. With respect to the driving, his evidence evolved over the course of his testimony from unsteady to perhaps movement between the lines to a final acceptance of swerving. He was clearly minimizing, sacrificing accuracy for the sake of presenting a faultless picture to the Court. On the issue of signalling, Mr. Smith maintained quite vehemently that he signalled at all times while on the Queensway going home. Interestingly enough though, the only lanes changes he clearly recalled signalling for that day were the ones on the Queensway. On that issue, I note that on his own evidence Mr. Smith was clutching his stomach while also holding on to the steering wheel. This, at the very least, makes signalling difficult if not impossible and would significantly compromise steadiness. With respect to not having realized that the officer was trying to stop him, I do accept the Applicant's evidence on that point. Constable Gurlich allowed that initially he was 7-8 car lengths away and that he closed the gap in the area of Pinecrest. He agreed that Mr. Smith's car began to slow at Bayshore, the area that Mr. Smith identified as being where he realized police wished to stop him. While Mr. Smith stopped well beyond the Bayshore exit, all agreed that this was the first safe opportunity to do so.

[51] I do accept Constable Gurlich's evidence on driving, with the exception as to where the Applicant got on the Queensway. I accept that the car likely got on at Bronson Avenue but only caught the officer's attention at Kirkwood. Nothing, in my view though turns on this distinction. The officer's evidence on his observations of the Applicant's driving was detailed and remained unshaken throughout cross-examination. His observations and actions made sense overall.

[52] In argument, the Applicant did not take issue with the lawfulness of the arrest but rather the actions that followed. Having reviewed the evidence, I am satisfied that Constable Gurlich did indeed have reasonable and probable grounds to arrest the Applicant for flight from police.

Use of Force

[53] To begin with, I accept from all that the incident at the roadside unfolded very quickly, taking mere seconds. This having been said, from the time of the stop to the fall to the ground the evidence of all three witnesses diverged, at times quite significantly. The Crown suggested that the differences as between Constables Nip and Gurlich made sense as each had his own perspective and that ultimately, the pieces fit like those of a puzzle. Counsel for the Applicant argued that these differences were irreconcilable and that Gurlich's evidence was unreliable and ought to be rejected. Counsel then pointed to overall consistence between Mr. Smith and Constable Nip's accounts at the cruiser.

[54] I have to agree with Counsel for the Applicant that there are a number of issues with Constable Gurlich's evidence. To begin with, he insisted that he was cautious when dealing with the Applicant and that he waited for backup. However, he was already at the car taking custody of Mr. Smith when Constable Nip joined him. Constable Gurlich testified that once at the car, he advised Mr. Smith he was under arrest and told him to exit his vehicle. He said he paused for compliance and that there was none. He opened the door, unfastened the seatbelt and then saw the move to the gear shift. Nip said that as he was parking his cruiser, Gurlich was already out of his car and so he moved very quickly to join him. Constable Gurlich stated that he grabbed the Applicant's right hand from the gear shift and then moved aside to allow Nip to take that hand, which he did. According to Nip, he never took the Applicant's right hand. He took the Applicant's left shoulder. Gurlich said he pulled the accused between 3 and 5 times once Nip was present. Nip said Gurlich was already pulling when he got there and that he helped pull once. Gurlich said that throughout he gave commands to the Applicant to "stop resisting", "let go of the steering wheel". Nip however, heard none of these.

[55] I have some misgivings about the discrepancies in their evidence. While granted different people will remember a same event differently, there are a number of key areas which ought to bear some similarity. To begin with the question of who dealt with Mr. Smith's right hand is problematic. I accept Nip's version of events on this issue as he is better able to say what he did, especially in view of the fact that Nip is never mentioned in Gurlich's account of the evening, in either his notes or report.

[56] Related to this issue is whether the Applicant put his hand on the gearshift. The Applicant gave evidence on this point and said that he never put his right hand on the gearshift but that it remained on the steering wheel. The issue of the gearshift is important as Gurlich was concerned that Smith may put the vehicle in motion. This would of course heighten the need to act and take control of the Applicant and was also the point where Nip entered the car. Nip testified that when he took the Applicant by the left shoulder, the right hand was on the steering wheel and Gurlich was holding on to the left hand. More importantly, Gurlich was not in the vehicle controlling the right hand. Given the contradictions as between Gurlich and Nip as well as the overall consistency as between Nip and the Applicant, I accept the Applicant's evidence on this point that he did not put his hand on the gearshift.

[57] Nip and the Applicant both agree that no commands were heard during the extraction. I accept their evidence on this point. Nip explained that the noise from the sirens was loud and this may have prevented hearing and so I do not find that commands were not uttered, simply that none were heard by Nip or the Applicant.

[58] Finally, I also have some difficulty with Gurlich's account of all of the steps he took in such a short period of time. I do accept that this occurred very quickly. However, I cannot accept Gurlich's evidence that he: waited for backup, spoke to Mr. Smith with the window down, opened the door, waited for compliance to his the commands that the Applicant exit the car, unfastened the seatbelt and then moved to the use of force. If such had been the case, Nip would not have seen Gurlich in the process of extracting the accused but rather speaking to him. For all of these reasons, I do not accept Gurlich's account of what took place at the roadside.

[59] There are admittedly challenges with the Applicant's evidence. He stated he was startled by the stop and so kept staring straight ahead, hands on the wheel. Such a descriptor connotes momentary surprise which is not what was described – a locked-stare throughout police dealings. This having been said, because of the general consistency with Constable Nip's evidence, I do accept the Applicant's and Constable Nip's combined evidence as to the following: the Applicant's hand did not go to the gearshift; no commands made by Gurlich were heard; and there was one pull to extract Mr. Smith once Nip was present. With respect to the stop overall, I find that the following took place: Cst Gurlich arrived at the driver's side door, it was opened and Mr. Smith, who was seated with his hands on the steering wheel, was immediately extracted from the car and was effectively grounded. I note at this point that consistent with Constable Gurlich's investigative action report and inconsistent with his viva voce evidence, the accused was grounded as intended. I do not accept that this was an accidental contact with the roadway. I find rather that this was a deliberate course of action.

[60] As I have found that there existed reasonable and probable grounds to effect the arrest, next I must consider whether the Crown has discharged its burden to justify the use of force in effecting the arrest. Bearing in mind that each case must be looked at individually and that there is no expectation that officers will measure the force used in the heat of the moment with precision, was the force necessary and reasonable in all of the circumstances?

[61] To begin with, police were dealing with an individual who, over quite a distance, did not comply with the requirement to stop for police. Constable Gurlich knew that the registered owner of the vehicle was a 72 year-old man but not who was driving the vehicle at the time. This however became apparent at the time of the stop when he was face to face with an older male. There was no real conversation with Mr. Smith, no questions or any type of inquiry especially as to his physical condition. He was quite precipitously taken from his car. The amount of force used - the pull - caused all three to stumble and tumble on to the highway, an extremely dangerous situation for all. There was no active resistance on Mr. Smith's part. In fact, he had no opportunity to resist. At most, he was passive-resistant when he did not make eye contact with the officer and had his hands on the steering wheel. Several or even a single pull may in some cases be necessary and reasonable. In this case though, police were dealing with a 72 year-old male. He was not belligerent or assaultive. He did not hear any commands. He was boxed-in by police. Back-up was present. There was no impending risk to the officer or the community. As I have already said, at most Mr. Smith was slow to react and make eye contact. In all of these circumstances it was neither necessary nor reasonable to manhandle Mr. Smith as was done in this case and cause the injuries suffered.

[62] I find that the Applicant has established on a balance of probabilities that his section 7 rights were breached. In keeping with Counsel's submissions, given this finding I need not consider the alternative alleged Charter breaches.

[63] Following reasons provided to counsel as to a finding of breach on April 30, 2014, further argument was provided to the Court on whether, based on the findings made, the charges were made out beyond a reasonable doubt. Crown no longer seeks a finding of guilt on the fail to stop for police or the resist arrest. Those counts will be dismissed. The certificates of analysis on the over 80 count were filed and I will deal with that charge below under the remedy section. With respect to the impaired count, the Applicant argues that another reasonable explanation for the poor driving has been offered and thus this ought to raise a doubt. Crown on the other hand argues that the consumption of alcohol need not be the sole factor but only a contributing one for a conviction to ensue on the count of impaired driving. The Crown relies on R.v.Caldwell [2006] O.J. No. 3280 (SCJ) and R.v.Bartello [1997] O.J. No. 2226 in support of its position.

[64] On the present evidence, the accused specifically rejected that any pain affected his driving over the 4 minute period of poor and erratic driving described by police. It did not cause him to stop at anytime while en-route. He admitted to an evening of alcohol consumption, including just before leaving the pub where he was with friends. When being dealt with by police, he was slow to react and had an odour of alcohol coming from his breath, though no other classic signs of impairment such as poor speech, balance, dexterity or red glassy eyes were noted. Ultimately, it may well be that the physical discomfort being experienced by the accused affected his driving. However, this does not preclude a finding of impairment by alcohol. In the seminal words of R. v. Stellato (1993), 78 CCC (3d) 380 (OCA), any degree of impairment, from slight to extreme, is sufficient to establish the offence of impaired driving. Indeed, I need not determine what caused the accused's impairment as between the various factors offered. I need only be satisfied that the alcohol was a contributing factor. In light of the accused's evidence, the time span covered by the erratic driving, the indicia of consumption, I find the accused guilty of this count.

Remedy

[65] The Court must next consider whether the Applicant has satisfied the requirements set out earlier such that a stay of proceedings is clearly the only option in this case.

1) Were the Actions of the Officers Prejudicial to the Justice System?

There are high expectations of police that their actions at all times will remain professional and within the bounds of authorized behaviour. No one would dispute that the use of force is part of the exercise of police functions. Without recourse to force when reasonable and necessary, police are stripped of the tools required to ensure our collective security. This having been said, the unnecessary use of force by a police officer will always be serious. In a case such as this where a 72 year-old is forcibly and precipitously removed from a vehicle, suffering significant physical and psychological injury, limiting the ability to recall the events that follow, society's sense of fair-play and decency are offended such that the integrity of the judicial system is harmed. I conclude that the first step of the analysis is met.

2) Other Remedies

A stay of proceedings, as an exceptional remedy, is to be considered only after all other available remedies. The Applicant has argued that the Court should exclude all test readings. Such an exclusion would effectively gut the prosecution with respect to the over 80 count thus providing a remedy. While the Crown submitted that there is no temporal link between the breach and samples some 2 hours later, I have to disagree. The ASD sample gave the officer the grounds for the breathalyzer demand. The ASD demand immediately followed the extraction. One investigative step then followed each upon the other while the accused was still suffering the effects of having been grounded. Exclusion of the evidence would disassociate the judicial system from the impugned conduct. Accordingly, I exclude all readings obtained from Mr. Smith that night. The over 80 count will be dismissed.

[66] With respect to the remaining count on the information, would a reduction of sentence in accordance with R. v. Nasogaluak, supra sufficiently dissociate the justice system from the impugned conduct? While reduction of sentence is indeed a remedy geared towards the accused and despite the focus of the residual category being the administration of justice, this may nonetheless be served where a significant enough reduction is made such that a clear message is sent that conduct in breach of an accused's rights will not be condoned. I note that in R. v. Singh, 2013 ONCA 750 the Court commented that a stay was the appropriate remedy in that case because of the deliberate, prolonged and choreographed nature of the beating. The Court specifically distinguished such an occurrence from one where there was a "momentary overreaction by a police officer."

[67] In R. v. Richard, [2012] O.J. No.5320 (Ont. Ct. J.) the Court dealt with an impaired driving prosecution and considered whether a reduction in sentence was a meaningful remedy in the circumstances of a minimum fine and mandatory driving prohibition. The Court determined that the circumstances of the breach required more than just a fine reduction. In R. v. Kristoffersen, [2014] OJ No 1411, again within the impaired driving context, the Court found that notwithstanding the mandatory minimum sentence, a reduction in sentence from 60-90 days jail to a suspended sentence would appropriately distance the administration of justice from the unlawful conduct. This approach was adopted by reference to R. v. Nasogaluak, supra and R. v. Muthuthamby, [2010] ONCJ 43. In the latter case, the Court decided that a stay was an unwarranted windfall to the accused but that a reduction of sentence to the statutory minimum was an inadequate remedy.

[68] With respect to the impaired charge, this accused has no prior record and the readings were not high. There are few aggravating factors that would warrant imposing more than the minimum fine. The wrongful conduct at issue is serious. It was deliberate, unnecessary and precipitous force used on a 72 year-old who was not aggressive, belligerent or resistant. I do bear in mind though that the officers had grounds to effect the arrest and that the force used was in the nature of a pull and nothing more. I further have no evidence that this conduct reflects a systemic or on-going problem and therefore I may conclude that it was an isolated, one-time overreaction on the part of the police. I am also mindful that the driving at issue was very poor and put those users of the Queensway that night at risk. Indeed, driving offences put communities at risk. Impaired driving offences kill Canadians every day. A stay would be an unjustified windfall to the accused. I conclude that with respect to the remaining count, a significant reduction in sentence would sufficiently distance the impugned conduct from the justice system. I am mindful in considering an appropriate sentence that rehabilitation, denunciation and deterrence are all relevant together along with the conduct to which Mr. Smith was subjected and the price he has already paid. Mr. Smith has no prior involvement with the criminal justice system. He has significant support, which was obvious throughout the proceedings. There is a public interest in imposing some restrictions on Mr. Smith's driving status that will inhibit future conduct of this kind. Whereas the minimum fine or close to it would likely have been an appropriate sentence, I reduce the sentence to a conditional discharge for a term of 12 months. These will be the conditions:

• The statutory conditions;
• You will report to probation services today and thereafter at the times and places directed by probation services;
• You shall pay for and complete the "Back on Track" program with the Ministry of Transportation; and finally
• You are not to drive on any street, road, highway or other public place anywhere in Canada with any alcohol in your system.

Released: July 3, 2014

The Honourable Justice J. V. Loignon