Court Information
Ontario Court of Justice
Date: November 16, 2018
Between:
Her Majesty the Queen
— AND —
Justin Acheampong
Before: Justice Paul Burstein
Heard: June 11, 12, 13 and 14, 2018
Reasons for Judgment Released: November 16, 2018
Counsel
For the Crown: K. Saliwonchyk and S. O'Neill
For the Defendant: H. Dudding
BURSTEIN J.:
Overview of the Case
[1] Shortly before dawn on August 30, 2017, the front door of the Acheampong family's home was battered in. A concussion grenade was tossed through the battered door. The explosion caused a deafening sound and a blinding light. Masked men in military-style uniforms began to pour through the door. Most were armed with machine guns. The masked intruders began searching through the house for two young men believed to be living there. As they encountered other family members awakened by the commotion, the armed intruders shouted commands at gun point. When one of the young men was located, he was violently assaulted by two of the intruders until he was forced to succumb to their authority.
[2] The masked intruders who had forced their way into the Acheampongs' home on August 30, 2017 were police officers. More specifically, they were a team of Emergency Task Force ("ETF") officers. The ETF is a unit of the Toronto Police Service whose members are specially trained to secure high-risk scenes for other police investigators.
[3] Justin Acheampong was wanted for a home invasion robbery which had taken place more than 8 months earlier. The police believed that the firearm used in that home invasion may still have been present in the Acheampong home on August 30, 2017. Before entering the home, the police knew that Bryant Acheampong, Justin's older brother, had a prior criminal record which included a conviction for homicide.
[4] There is no issue in this case that the police lawfully entered the Acheampong family's home. A search warrant had been issued authorizing the police to do so. There is also no issue that the police had grounds to arrest Justin Acheampong for the home invasion when they entered the home that morning. However, the authority to forcibly enter the Acheampong home and to arrest Justin had its limits. While the police were entitled to use some force when arresting Justin Acheampong, they were only authorized to use as much force as was reasonably necessary.
[5] Mr. Acheampong has pleaded guilty to the home invasion robbery. I must now determine what sentence is appropriate having regard to the circumstances of the offence and of the offender. The defence contends that the police used an excessive amount of force when arresting Justin Acheampong and that this excessive use of force caused significant bodily harm. In deciding what sentence to impose upon Justin Acheampong for his involvement in the home invasion robbery, I must determine whether the police did use excessive force and, if so, whether the violent manner by which the police arrested Justin Acheampong ought to result in the imposition of a lesser penitentiary sentence than that which would otherwise be appropriate in this case.
The Circumstances of the Offences to Which Justin Acheampong Has Pleaded Guilty
[6] On the night of January 19, 2017, two men forced their way into the home of Troy Nurse. Mr. Nurse was home alone with his wife. One of those men had a gun.
[7] Once inside the home the man with the gun demanded the "fucking money" and demanded to know the location of some drugs. The second man used shoe laces from a nearby pair of shoes in an attempt to bind Mr. Nurse's hands. Mr. Nurse resisted and a brief physical struggle ensued. The men attempted to tie Mr. Nurse's hands a second time. The man with the gun took out his cellular phone and made a call to Justin Acheampong.
[8] Moments later, Mr. Acheampong and another male entered the Nurse home with their faces masked. The two of them went upstairs to where Mr. Nurse's wife was lying in bed. The armed male went with them. Mr. Nurse remained on the main floor struggling with the male who was trying to bind his hands.
[9] Once upstairs, Mr. Acheampong, the other masked man, and the armed male all entered the master bedroom. They found Mr. Nurse's wife seated on the bed using her laptop to complete some homework. Mr. Acheampong and the other masked man began to search through the room. The armed male demanded that Mr. Nurse's wife lay down on the floor. He grabbed the laptop from her hands and tossed it aside as she lay down face first on the ground. As the other two males searched the room, the armed male placed the handgun against her temple.
[10] The three men went back down to the main floor. All four intruders then left through the front door.
[11] When the police arrested Mr. Acheampong on August 30, 2017, a search of his bedroom revealed a small cache of drugs which included cocaine and some fentanyl. The defence acknowledged that Mr. Acheampong's possession of those drugs was for the purpose of trafficking.
The Circumstances of the Offender
[12] At the time of sentencing Justin Acheampong was on the cusp of his 23rd birthday. His parents immigrated to Canada from Ghana more than three decades ago. Mr. Acheampong has an older brother, Bryant, who is 24 years old, and a younger sister, Chelsea, who is 22 years old.
[13] Growing up, Mr. Acheampong lived with his family in Toronto. His parents were always employed, but the family still struggled financially. While there was always food on their table, the family was often at risk of eviction and routinely was behind in paying its bills. When he was eight years old, Mr. Acheampong and his family had to live in a hotel for a period of time as they had been evicted from their home. Things only got worse when his father returned to Ghana and stopped contributing to the family's finances. Concerns about money created a lot of instability and tension in the home as Justin was growing up.
[14] Mr. Acheampong's father was a very strict and often angry parent. He believed in physical discipline and would regularly strike Mr. Acheampong and his brother with a stick or a belt. Mr. Acheampong recalled being struck for failings as minor as not taking out the garbage.
[15] Mr. Acheampong did relatively well in elementary school. His grades began to decline after his father left the family and returned to Ghana. When Mr. Acheampong was only 15 years old, Bryant was charged with murder. Mr. Acheampong and his sister were sent to live with their father in Ghana for three years while that case was resolved. He continued to attend school in Ghana. The teachers at his school were physically abusive to the students. Mr. Acheampong was "caned" a number of times. He and other students were also disciplined by being forced to kneel for hours at a time or by being forced to crawl on the ground.
[16] When he came back to Canada, Mr. Acheampong returned to high school. He tried attending a learning centre in order to obtain the necessary course credits. At first, he failed to complete the required literacy course at night school. Eventually, however, Mr. Acheampong graduated high school through Emery Collegiate.
[17] While completing his high school, Mr. Acheampong was working intermittently as a general labourer through an employment agency. His efforts to find a full time job were unsuccessful. After having reconnected with friends from his old neighborhood, Mr. Acheampong was introduced to the earning potential of the drug trade. In an effort to help support his family, Mr. Acheampong began to sell drugs. It would seem that Mr. Acheampong's involvement in the home invasion robbery was an effort to procure a supply of drugs to sell.
[18] At the time of his arrest, Mr. Acheampong had no prior criminal record. He was planning to attend college. He had already begun the application process for admission to the culinary program at Humber College. He had also considered writing a real estate licencing exam as he had a friend's older brother willing to mentor him in that field.
[19] Having listened to him testify, it is obvious to me that Mr. Acheampong is intelligent and articulate. More importantly, despite these criminal convictions, I believe he has the potential to develop a meaningful career in one of his chosen fields. I am satisfied that he is not relegated to becoming a "career criminal". The question will be what he chooses to do with his future and not whether he will have any choices in the future.
The Parties' Positions on Sentence
[20] The Crown and the defence agree that, save for the potential impact of a finding that the police used excessive force during Mr. Acheampong's arrest, the appropriate sentence for this offence and this offender would be 7.5 years imprisonment. The Crown and defence agree that if I were persuaded that the police used excessive force during their arrest of Mr. Acheampong, I ought to consider reducing that 7.5 year sentence proportionately to the consequences suffered as a result of any such excessive force.
[21] Following Justin Acheampong's guilty plea to charges of robbery and possession for the purposes of trafficking, there was an evidentiary hearing focused on the manner of his arrest. Three officers from the Emergency Task Force ("ETF") squad which was responsible for the "dynamic entry" into the Acheampong home testified at the hearing: Cst. Darcy Wood, Cst. Marc Piniozzotto and Cst. Clint Jenkins. Based on their testimony, the Crown contends that the force used during the arrest of Mr. Acheampong was reasonably necessary in all the circumstances, and especially given his behavior when first approached by the police. Mr. Acheampong also testified during the post-plea evidentiary hearing. Based on his evidence, and in light of the frailties of the officers' testimony, the defence argued that the police used an unnecessary amount of violence during the arrest and that Mr. Acheampong suffered serious bodily harm as a result.
[22] With the utmost professionalism, counsel in this case narrowed the focus of the sentencing hearing to the manner by which Justin Acheampong was arrested. As noted above, the parties agreed that 7.5 years of imprisonment was an otherwise fit and appropriate sentence for this offence and this offender. The parties also agreed that if the court were to find that the police had used excessive violence during the arrest, Mr. Acheampong would be entitled to some reduction of the 7.5 year sentence. While not ad idem as to the amount of such a reduction, the parties agreed that the quantum of any such sentence reduction involved an exercise of discretion contingent upon the findings made in relation to the alleged excessive use of force.
The Evidence on the Sentence Hearing About the Arrest of Justin Acheampong
[23] At approximately 5 a.m. on the morning of August 30, 2017, a team of TPS ETF officers attended at 36 Orpington Crescent to execute a search warrant at Unit 5 in relation to the home invasion back in January. The ETF team had been told by the main police investigators that Justin and Bryant Acheampong would likely be home. The ETF team were also told that, in addition to the search warrant, there were grounds to arrest Justin and Bryant Acheampong.
[24] The ETF entered the Acheampong's home by using a battering ram to knock down the front door. One of the team members then tossed a "distraction device" through the front door. The device exploded causing a very loud noise and flash of light on the main floor.
[25] Cst. Wood, one of the team members, testified that he was the first member to go through the door once it was breached. He announced several times that the police were there to execute a search warrant. Upon entering through the door he saw a set of stairs leading up. He waited at the stairs for less than a minute before going up. He was the first one to go up the stairs. Wood could not say which member of the team was following behind him up the stairs, but did note that three team members had gone upstairs with him.
[26] The ETF team that entered 36 Orpington Crescent on the morning of August 30, 2017 included nine officers. One of those nine never even entered the residence until after the arrest had been completed. Three more only ever attended in the basement to deal with Bryant Acheampong. One other officer never went up to the second floor. In other words, only Csts. Jenkins, Pinizzotto, Wood and Farrell may have initially gone upstairs to the second floor. However, Cst. Farrell only came up to the second floor after having "cleared" the first floor of the residence.
[27] After having waited briefly on the main floor, Cst. Wood climbed the stairs up to the second floor. The first bedroom door he came to after reaching the second floor belonged to Chelsea Acheampong. Her door was already open. After he had directed her to get down on the ground, Wood moved down the hallway to another bedroom door. When that door opened, Wood encountered an older male (i.e., Mrs. Acheampong's boyfriend). Cst. Wood directed him to also get down on the ground. Wood did not enter any other bedrooms on the second floor.
[28] In chief, Wood was asked about other bedroom doors he may have passed coming up the stairs. He remembered a bedroom door being having been just to his right as he approached the top of the stairs. It was closed. Although Wood never actually entered that room, it was clear from his evidence that he was describing the door to Mr. Acheampong's bedroom.
[29] Another member of the ETF team, Cst. Pinizzotto, also testified at the evidentiary hearing in this case. He was the second of the two officers who had entered Mr. Acheampong's bedroom. He was involved in the use of force to arrest Mr. Acheampong.
[30] Before going up to the second floor, Pinizzotto had first gone down to the basement level to assist with the arrest of Bryant Acheampong. Other members of the team took physical control of Bryant Acheampong. Accordingly, after checking to make sure that the basement was all clear, Pinizzotto headed upstairs to the second floor.
[31] As he neared the top of the stairs, Pinizzotto heard the sounds of a struggle from the room off to his right; that is, Mr. Acheampong's bedroom. Pinizzotto did not have a note of the specific sounds he had heard and had no independent recollection of this point. Yet, he testified that he entered that bedroom because of hearing whatever noise that was. He testified that he may have seen another officer already in the vicinity of the room with the noise but that this was only a "vague recollection".
[32] When Pinizzotto entered Mr. Acheampong's bedroom he saw Cst. Jenkins struggling with Mr. Acheampong on the floor. According to Pinizzotto, Mr. Acheampong was resisting Jenkins' efforts to secure his hands for the arrest and was trying to pull his arms away. At other times, Mr. Acheampong was laying on his stomach and trying to keep his hands underneath his chest. Mr. Acheampong was also kicking his legs and using them to try and create some separation from Jenkins. Pinizzotto claimed that, in the course of those struggles to resist the arrest, Mr. Acheampong had spun his body around on the floor.
[33] Pinizzotto quickly became involved in the struggle with Mr. Acheampong. Pinizzotto was trying to secure Mr. Acheampong's arms behind his back so that the handcuffs could be engaged. Because Mr. Acheampong continued to hold his hands underneath his chest, Pinizzotto struck him in the head and body as a way of trying to distract Mr. Acheampong's attention from resisting the arrest. However, Pinizzotto was certain that none of the blows he struck would have caused the swelling and black eye depicted in the post-arrest images of Mr. Acheampong.
[34] According to Pinizzotto, after some distraction blows, Mr. Acheampong surrendered his hands to be cuffed behind his back.
[35] Despite claiming to have had an independent recollection of the events, Pinizzotto could not remember what Cst. Jenkins was doing when Pinizzotto first entered the room in an effort to get Mr. Acheampong's hands under control. Pinizzotto could also not recall whether there was any light on in the room. Pinizzotto could not recall whether he had ever used his knee to strike Mr. Acheampong and had no note to assist his memory. Pinizzotto had no memory (and no apparent note) of who actually secured the cuffs to Mr. Acheampong's hands. Pinizzotto also conceded that he could not outline what happened during the struggle with Mr. Acheampong in a chronological order. In cross-examination, Pinizzotto acknowledged that trying to talk about what happened during Mr. Acheampong's arrest a year later was not that easy. Pinizzotto hoped that Cst. Jenkins would have a better recollection of the events when testifying.
[36] Cst. Jenkins did, however, claim to remember that as he had ascended the stairs to the second floor he saw Mr. Acheampong in a bedroom to the right of the stairs at the end of a hall. According to Jenkins, he could see Mr. Acheampong because the door to the room was "definitely not closed". Jenkins yelled "police, get down". Jenkins testified that as he approached the room, Mr. Acheampong attempted to close the door while moving off to the right inside the room.
[37] Jenkins pushed his way into Mr. Acheampong's room and took hold of his arm. According to Jenkins, Mr. Acheampong pulled away. Jenkins again yelled that Mr. Acheampong should get on the ground. Jenkins testified that, instead of getting down on the ground, Mr. Acheampong lowered his shoulder and attempted to body check Jenkins. That is when Jenkins used both of his hands to wrestle Mr. Acheampong to the ground. Jenkins began telling Mr. Acheampong to stop resisting and continued to say that to him. Jenkins testified that he was not striking Mr. Acheampong to get him to the ground.
[38] Cst. Jenkins testified that, once on the ground, Mr. Acheampong continued flailing his arms and kicking his legs. This was preventing Jenkins from getting control of him. Jenkins was trying to get Mr. Acheampong to lie prone with his hands behind his back so that he could be cuffed. As Mr. Acheampong continued to turn away from Jenkins to avoid being cuffed, another team member entered the room. After the other officer had entered the room to assist, Jenkins struck Mr. Acheampong several times to the head or body in an effort to gain control over him. Eventually, once Mr. Acheampong's hands were brought behind his back, Jenkins was able to apply the cuffs to him.
[39] On the other hand, there were many details about the arrest which Cst. Jenkins was unable to remember when testifying (and for which he seemingly had no note to assist in refreshing his memory):
- Whether he went up the stairs to the second floor by himself or in the company of other team members
- What the lighting was like on the second floor and whether he would have had to use a flashlight
- Where Jenkins was located when he first saw Mr. Acheampong
- Which of Mr. Acheampong's arms he first grabbed or which of his own hands he used to first grab Mr. Acheampong
- Where Jenkins first placed his hands when he wrestled Mr. Acheampong to the ground
- How he managed to get Mr. Acheampong down on the ground
- Once on the ground, what their relative positions were
- Whether he punched Mr. Acheampong in the head or the body when trying to gain control over him
- Whether Mr. Acheampong had suffered any injuries as a result of the force used to effect his arrest
Indeed, when asked in cross-examination about the notes he had made about this incident, Jenkins denied that he had made them "as detailed and accurate" as he could. He insisted that he had only made his notes so that he could refresh his memory. He claimed that his testimony was the best evidence about what happened.
[40] Justin Acheampong testified that he had been asleep in his bed on second floor of his family's home in the early morning hours of August 30, 2017 when he heard two loud "bangs" downstairs on the main floor. The door to his room was closed and the lights were off. Mr. Acheampong believed that his sister, his brother, his mother and his mother's boyfriend were all home at the time.
[41] Mr. Acheampong heard footsteps and someone say something about "police". Once he heard something about police, he stood up beside his bed with his hands in the air. He was only wearing a pair of shorts. He did not reach for any clothes. Nor did he move to try and turn on the lights. He did not want to seem like he was reaching for anything because he was concerned about being shot by the police. He testified that he was aware that it had become increasingly more common for young black males like him to be shot by the police.
[42] As he stood quietly in his dark room, someone opened the door to his room. According to Mr. Acheampong, a police officer was at his door with a machine gun and a flashlight pointed at him. The machine gun was on a sling. The officer was wearing a mask, but not a helmet.
[43] When the door to his bedroom opened, Mr. Acheampong could see that there were no overhead lights on in the hallway. He could see other flashlights shining in and believed that there were other police officers outside his room in the hallway.
[44] Once the officer had opened his bedroom door, Mr. Acheampong heard the officer say "we have the target". Mr. Acheampong testified that the officer then yelled at him to "get the fuck down". Mr. Acheampong began to get down on his knees. According to Mr. Acheampong, the officer then ran into the room saying "stop resisting". When the officer got close enough to Mr. Acheampong, the officer punched him in the right side of the face. Mr. Acheampong fell to the ground and began screaming "help" as he held up his hands to try and cover up his face. The officer was yelling to stop resisting, even though Mr. Acheampong was not resisting. That first officer continued to punch Mr. Acheampong in the face. A second officer then came in and grabbed Mr. Acheampong's hands. The second officer pulled Mr. Acheampong's hands away from his face and tried to force them behind his back. When his hands had been pulled behind his back, Mr. Acheampong felt one of the officers kneeing him in the right thigh. He also felt one of the officers kneeing him in the face. In total, Mr. Acheampong believed that he was punched and kneed several times.
[45] Eventually Mr. Acheampong felt that one of the officers had placed the handcuffs on him. Approximately two minutes had elapsed since the time the first officer had entered his room.
[46] According to Mr. Acheampong, he was trying to be compliant with the police from the very beginning. He denied ever having his hands clutched together underneath his chest when he was lying face down on the floor. He denied kicking his legs and swinging his arms. He explained that he did not do any of those things because he was afraid of being shot.
[47] As a result of the force used by the police to arrest him, Mr. Acheampong suffered a number of substantial injuries. Images taken of him hours after the arrest show significant swelling all around his eyes and noticeable bruising to both sides of his face. In the time since his arrest, Mr. Acheampong has continued to suffer from moderate to severe headaches. These headaches tend to last for several hours and require medication. He has also experienced pain and tension in his jaw. There have been nightmares and sleep disturbances.
Relevant Legal Principles
[48] The defence expressly disavowed any claim to a Charter remedy for the alleged excessive use of force. In R. v. Nasogaluak, 2010 SCC 6, the Supreme Court of Canada recognized that an offender need not frame a complaint about the use of excessive force during arrest as a Charter issue in order to ask a court to grant a "remedy" for the excessive force during the sentencing process (at paras. 2 and 3):
The parties have focussed their submissions on the question of whether a court may grant a sentence reduction under s. 24(1) of the Charter to remedy a Charter breach by state actors. Framing the issue in those terms presupposes that Charter breaches can only be effectively remedied in the context of a separate and distinct Charter application. However, that is clearly not so. As all statutes and the common law must be Charter compliant, it should come as no surprise that an effective remedy for a proved wrong, which also happens to be a Charter breach, may well be crafted within the confines of a statutory or common law regime. The statutory sentencing regime under ss. 718 to 718.2 of the Criminal Code, R.S.C. 1985, c. C-46, is one example.
As we shall see, the sentencing regime provides some scope for sentencing judges to consider not only the actions of the offender, but also those of state actors. Where the state misconduct in question relates to the circumstances of the offence or the offender, the sentencing judge may properly take the relevant facts into account in crafting a fit sentence, without having to resort to s. 24(1) of the Charter. Indeed, state misconduct which does not amount to a Charter breach but which impacts the offender may also be a relevant factor in crafting a fit sentence.
[49] In June of this year, the Supreme Court of Canada confirmed that, as part of the common law's approach to sentencing, an offender who suffers unjustified violence as a consequence of their commission of the offence may receive a reduction of an otherwise appropriate sentence. In R. v. Suter, 2018 SCC 34 (at para. 46), the Court held that:
…Tailoring sentences to the circumstances of the offence and the offender may require the sentencing judge to look at collateral consequences. Examining collateral consequences enables a sentencing judge to craft a proportionate sentence in a given case by taking into account all the relevant circumstances related to the offence and the offender.
[50] Following its earlier decision in Nasogaluak, the Court in Suter held (at para. 53) that: "violent actions against an offender for his or her role in the commission of an offence … necessarily form part of the personal circumstances of that offender, and should therefore be taken into account when determining an appropriate sentence."
[51] In this case, Mr. Acheampong was subjected to a violent arrest as a result of his commission of the offence for which he is now being sentenced. If that police violence was excessive or unjustified, the Supreme Court's decisions in Nasogaluak and Suter make clear that any harm caused by that state action should be taken into account when determining the appropriate sentence.
[52] In advancing their positions as to whether the violence used by the police to arrest Justin Acheampong was justified or excessive, the parties disagreed on who bore the burden of persuasion. On the strength of the Supreme Court of Canada's decision in R. v. Davis, [2014] S.C.J. No. 4, I find that once it has been shown that the police used force to arrest an accused, the burden shifts to the Crown to justify that use of force. The Court endorsed the reasons of Fraser C.J. of the Alberta Court of Appeal (2013 ABCA 15, [2013] A.J. No. 20) holding that the trial judge in that case had erred in placing the burden of proof on the offender to show that the force used by the police was unjustified. As Fraser C.J. held (at para. 80):
… Where an accused establishes a prima facie breach of s. 7 of the Charter because deadly force has been used against him or her, what is at issue is the police power of the state. The evidentiary burden then shifts to the Crown to prove on a balance of probabilities that the police actions were justified in accordance with the limitations in s. 25 of the Code and thus in compliance with the principles of fundamental justice.
[53] As part of the state's burden of justifying the amount of force used by its agents to effect an arrest, state agents have a constitutional obligation to properly document the circumstances surrounding that use of force for future judicial review. For reasons set out more fully below, I was very disappointed by the quality of the testimony provided by Cst. Jenkins and Cst. Pinizzotto, the two members of the ETF squad who were directly involved in the violent arrest of Mr. Acheampong. Neither one had made very detailed notes of the circumstances surrounding their use of force in effecting the arrest of Mr. Acheampong. Neither one prepared a detailed report about the arrest at the first available opportunity. Consequently, it was hardly surprising that their testimony about the arrest was replete with uncertainty and failed memory about many key details.
[54] The authority to use force to effect an arrest is circumscribed by the limits imposed by s. 25 of the Criminal Code; namely, that the force used was proportionate, necessary and reasonable: see Nasogaluak, supra at para. 32. While there may also be an internal police review of an officer's use of force, force used by the police to effect an arrest must be amenable to judicial review. A defence claim that the police used excessive force may be relevant to a number of important decisions to be made in a criminal case: challenges to the admissibility of a confession, abuse of process applications seeking a stay of proceedings or, as in this case, an offender's request for a reduction in sentence. In any case where there is a claim that the police used excessive force during an arrest, details of the circumstances surrounding that arrest will be vital to determining what happened and why it happened. A fair and reliable determination of whether force used by police during an arrest was proportionate, necessary and reasonable will be adversely affected by a failure to contemporaneously memorialize those details.
[55] Our courts have long recognized the importance of the police duty to make meaningful contemporaneous notes of their involvement in a criminal investigation. In Woods v. Schaeffer, 2013 SCC 71, [2013] 3 S.C.R. 1053, two sets of police officers had been involved in the use of excessive force during two separate arrests. Relying on a host of previous commentaries on the importance of police notes to the integrity of the criminal process, the Supreme Court had "little difficulty concluding that police officers do have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation" (at para. 67). In that case, rather than properly prepare his notes, one of the officers who had witnessed the use of force had met with a lawyer to discuss what the officer should write in his notes. The Court contrasted the unhelpful product of that process with what it would have expected to see in the officer's notes about the use of force (at para. 80):
In short, Acting Sgt. Pullbrook's notes read like a prepared statement designed, at least in part, to justify his and his partner's conduct, unlike a set of police notes that simply record the events in a straightforward fashion. And while I would not suggest there is anything inaccurate or dishonest in the notes as a result of counsel's participation, an officer's notes are not meant to provide a "lawyer-enhanced" justification for what has occurred. They are simply meant to record an event, so that others - like the SIU Director - can rely on them to determine what happened. [Emphasis added.]
[56] Despite the overarching obligation on the police to properly memorialize important aspects of a criminal investigation, not all recording failures will adversely impact the ability of a court to render a decision in that regard. In R. v. Moore-McFarlane (2001), 56 O.R. (3d) 737, the Ontario Court of Appeal addressed the police obligation to fully record their post-arrest interactions with an accused. Charron J.A. (as she then was) held that there is no blanket rule requiring the police to fully record those interactions. However, she also recognized that where the police were readily able to have created a more complete record but failed to do so, "the context inevitably makes the resulting non-recorded interrogation suspect" (at para. 65). It will be for the reviewing court, Charron J.A. said, to determine "whether or not a sufficient substitute for [a full] record has been provided" to satisfy the Crown's onus.
[57] The Supreme Court of Canada has also recognized the constitutional importance of affording individuals an opportunity to seek meaningful judicial review of intrusive police conduct. In R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, the Supreme Court of Canada considered whether s. 184.4 of the Code (the emergency wiretap provision) was constitutionally compliant given that it failed to guarantee after-the-fact notice to individuals whose communications had been intercepted by the police without any prior judicial authorization. The Court held that s. 184.4 violated s. 8 of the Charter because it did not include a mechanism to permit judicial supervision of that intrusive police activity. Moldaver and Karakatsanis JJ., writing for the Court, held (at para. 83) that: "The right to privacy implies not just freedom from unreasonable search and seizure, but also the ability to identify and challenge such invasions, and to seek a meaningful remedy."
[58] More recently, in R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, the Supreme Court linked the obligation to make detailed notes to s. 8's constitutional right to seek meaningful judicial review of intrusive police action. In setting out the constitutional requirements for a warrantless search of a cell phone as an incident to arrest, the Court held (at para. 82):
Finally, officers must make detailed notes of what they have examined on the cell phone. The Court encouraged this sort of note keeping in Vu in the context of a warranted search: para. 70. It also encouraged that notes be kept in the context of strip searches: Golden, at para. 101. In my view, given that we are dealing here with an extraordinary search power that requires neither a warrant nor reasonable and probable grounds, the obligation to keep a careful record of what is searched and how it was searched should be imposed as a matter of constitutional imperative. The record should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration. After-the-fact judicial review is especially important where, as in the case of searches incident to arrest, there is no prior authorization. Having a clear picture of what was done is important to such review being effective. In addition, the record keeping requirement is likely to have the incidental effect of helping police officers focus on the question of whether their conduct in relation to the phone falls squarely within the parameters of a lawful search incident to arrest.
The same reasoning applies equally to the "extraordinary power" of the police to use force during an arrest. Despite its extraordinary nature, there is no requirement of prior judicial authorization for the use of force. Like searches of cell phones incident to an arrest, "after-the-fact judicial review" is especially important in cases where the police are accused of having used an excessive amount of force during an arrest. Accordingly, detailed notes of the circumstances surrounding the use of force must also be "a constitutional imperative".
[59] In my view, following the jurisprudential trend established by R. v. Golden, 2001 SCC 83, [2001] S.C.J. No. 81, Tse and Fearon, the police have a constitutional obligation to make contemporaneous detailed notes of the circumstances surrounding their use of force when exercising their power to arrest. Those notes must include:
- details concerning exactly what force the police used at all times during the arrest;
- details concerning why the police decided to use any degree of force during the arrest; and
- details as to why the police may have decided to escalate their use of force.
Like in Fearon or Moore-McFarlane, the failure by the police to make a contemporaneous complete record of the circumstances of, and reasons for, their use of force during an arrest may prevent the Crown from discharging its burden of justifying the force used.
[60] From the evidence presented to me, it is clear that requiring members of the ETF to make such detailed notes immediately after successfully securing a scene would not impede their ability to safely perform their duties. According to Cst. Jenkins and Cst. Pinizzotto, after they had turned over custody of both the scene and Mr. Acheampong to the main police investigators, Jenkins and Pinizzotto headed off to the fitness centre for a workout.
Analysis and Findings
[61] I begin my analysis by restating my earlier comment about the adverse impact of the lax note-taking by Cst. Jenkins and Cst. Pinizzotto on the quality of their evidence. It was obvious from their testimony that the notes they made at the time concerning their use of force to arrest Mr. Acheampong were scant. While each officer claimed to have an independent recollection, and that their notes were only for the purpose of refreshing their putative memories, neither officer could remember any detail which had not been recorded in their notes. Unfortunately, very few of the details material to a determination of the reasonableness of the force used were recorded in their notes. I find that Jenkins and Pinizzotto failed in their constitutional obligation to ensure that a detailed record was kept of the nature of the force used and of the reasons that force was used. Their cavalier attitude towards their note-taking obligations in relation to their exercise of this extraordinary police power has deprived this court of information material to the determination of whether the force used to arrest Mr. Acheampong was excessive.
[62] In light of the deficiencies in their contemporaneous recording of the circumstances surrounding Mr. Acheampong's arrest, I am very troubled by the gaps in their memories about the use of force. I am not satisfied that the viva voce evidence of either Cst. Jenkins or Cst. Pinizzotto concerning the use of force to arrest Mr. Acheampong provides an adequate substitute for their failure to make detailed notes or their failure to file a detailed report on this issue. Indeed, there are some material inconsistencies in their testimony which lead me to seriously doubt the credibility or reliability of their accounts of the arrest. First, Jenkins claimed that Mr. Acheampong's bedroom door was open when he arrived at the second floor. That was inconsistent with the evidence of Cst. Wood who was ahead of Jenkins going up the stairs. Second, while Jenkins testified to only striking Mr. Acheampong after Pinizzotto had arrived to help, Pinizzotto testified that he never saw Jenkins strike Mr. Acheampong. Yet, somehow, Mr. Acheampong suffered serious injuries to his face, injuries which Pinizzotto claimed would not have resulted from the blows he had administered. The images of Mr. Acheampong's face are incontrovertible evidence of the police having used substantial force upon him, force which demanded justification.
[63] I did have some concerns about the reliability of Mr. Acheampong's evidence about the circumstances of his arrest. The Crown identified some notable inconsistencies in his testimony. His memories of Cst. Jenkins carrying a long gun and not wearing a helmet are clearly wrong. For the most part, however, I do accept Mr. Acheampong's recollection of the events. I found him to be a credible witness. Many key details of his account are confirmed by other evidence. I accept his evidence that he had done nothing to justify Cst. Jenkins striking him in the head the first time. I am also satisfied that Mr. Acheampong did not intentionally resist being arrested. I accept his evidence that he was both scared and confused from the moment he realized that the police were in the house. While he may not have immediately complied with some of the police commands, there was no suggestion that he had ever experienced an early morning tactical raid by the ETF. Reactionary efforts to protect himself once the police began hitting him would have led the police to perceive him as refusing to comply with their demands to place his hands behind his back. Indeed, the more the officers continued to hit him, the less Mr. Acheampong would have trusted them to simply stop if he had put his hands behind his back and lay still.
[64] In the end, I am not satisfied that the Crown has discharged its burden of showing that the police used a degree of force that was necessary to effect the arrest of Mr. Acheampong. In trying to effect the arrest in Nasogaluak, the two officers had administered three punches to the head and two punches to the back in an effort to overcome Mr. Nasogaluak's perceived resistance. Writing for the Court, Lebel J. said (at para. 37):
… Even taking into account the fact that these events occurred over a very brief period of time and that the police had to make hasty decisions to respond to the situation at hand, in my opinion, the Court of Appeal did not err when it found that the police had used more force than was necessary in the circumstances.
Although the injuries suffered by Mr. Acheampong were not as severe, the force used by the police in arresting Mr. Acheampong was roughly equivalent to that used by the police in Nasogaluak. Keeping in mind Lebel J.'s caution against second-guessing the police, I am satisfied that the police used more force than was necessary in arresting Mr. Acheampong.
[65] The difficult question for me is how much of a sentence reduction should there be in this case as a result of the officer's excessive use of force during the arrest of Mr. Acheampong?
[66] Some members of the public may question why Mr. Acheampong's sentence of imprisonment should even be reduced at all simply because of what the police may have done to him during his arrest. Some may believe that Mr. Acheampong "had it coming". If Mr. Acheampong had not willingly participated in the home invasion, the police would not have needed to arrest him. While there is some guttural truth to this sentiment, this line of thinking fails to appreciate the broader objectives served by the sentencing process.
[67] When sentencing offenders like Mr. Acheampong for home invasion robberies, appellate courts have said that we must look beyond the interests of the individual offender to the broader public's interest in denunciation and general deterrence. In other words, the caselaw says that the sentencing in this case must focus more on the wider message conveyed to others about this case than about the individuals actually involved in this case. As Professor Manson has said: "The communicative function of sentencing is all about conveying messages. The messages are directed to the community. They are about the values which ought to be important to the community.": see Nasogaluak, supra at para. 49.
[68] Equally, then, the sentence imposed on Justin Acheampong must send a message that, as a society, we will not tolerate the use of excessive force to arrest "even the least deserving individual". Although said in the context of police exceeding another aspect of their arrest power, the following comments from the Supreme Court of Canada in R. v. Stillman, [1997] 1 S.C.R. 607 (at para. 47) are apposite:
No matter what may be the pressing temptations to obtain evidence from a person the police believe to be guilty of a terrible crime, and no matter what the past frustrations to their investigations, the police authority to search as an incident to arrest should not be exceeded. Any other conclusion could all too easily lead to police abuses in the name of the good of society as perceived by the officers. When they are carrying out their duties as highly respected and admired agents of the state they must respect the dignity and bodily integrity of all who are arrested. The treatment meted out by agents of the state to even the least deserving individual will often indicate the treatment that all citizens of the state may ultimately expect. Appropriate limits to the power of search incidental to arrest must be accepted and respected. [Emphasis added.]
[69] Justin Acheampong has pleaded guilty to being involved in a serious home invasion robbery. For that crime, he must be sentenced to a lengthy term of imprisonment in a penitentiary. Despite his admitted involvement in that crime, Justin Acheampong did not deserve to be violently assaulted by the police during his arrest. As I have found, the amount of force used by the police was unnecessary. While I am not satisfied that the officers intended their use of force as a form of extra-judicial punishment, I am satisfied that Mr. Acheampong suffered serious bodily harm as a result. The sentence which is ultimately imposed in this case must take that into account. Furthermore, the lasting image of two heavily armed white police officers using excessive force to arrest an unarmed black man in his family's home risks bringing the administration of justice into disrepute. That too must be addressed by the sentence imposed. The harm caused to both Mr. Acheampong and to the administration of justice requires a measurable reduction in the penitentiary sentence which would otherwise have been appropriate for this offence and this offender.
[70] There is little guidance in the jurisprudence as to how much of a sentence reduction ought to be considered in circumstances such as this. I note that in Suter the offender had one of his fingers cut off by vigilantes. In holding that the loss of a finger was a collateral consequence that ought to be considered only to a "limited extent", the Supreme Court focused on the fact that the physical harm was caused by non-state agents. By contrast, in Nasogaluak, the Supreme Court seems to have recognized that unjustified harm caused to an offender by state agents should be met with a heavier discount in the sentencing calculation.
[71] In my view, the nature and extent of excessive police violence to an offender need not be extreme in order to merit a measurable reduction in sentence. The purpose of a sentencing reduction in cases involving the use of excessive force by the police is both to disassociate the courts from such misconduct and to encourage the police to exercise restraint when using force during an arrest. Trivial sentence reductions for modestly excessive uses of force will do little to achieve those objectives. Given the important role which the police play in our free and democratic society, the courts should do what they can to discourage them from using any amount of excessive force in the discharge of their duties.
[72] The racialized context of the excessive use of force in this case also weighs in favour of a measurable reduction in sentence. While I accept that the actions of the police officers in this case were in no way influenced by any element of racism, there remains a perception of two armed white police officers assaulting an unarmed young black man. In an era where grass roots organizations like "Black Lives Matter" have sprouted up across the country in response to police violence against black persons, it is especially important for the courts to denounce excessive police force in a racialized context. Section 718 of the Code identifies the "fundamental purpose" of sentencing as that of contributing to "respect for the law and the maintenance of a just, peaceful and safe society". A measurable sentence reduction for police violence in a case like this can help to restore racialized minorities respect for the law.
[73] In addition to the harms caused by the actions of Cst. Jenkins, the inaction by either Cst. Jenkins or Cst. Pinizzotto to ensure that Mr. Acheampong received timely attention for any injuries suffered during the arrest compounded the harm caused to Mr. Acheampong and to the administration of justice. As the Supreme Court said in Nasogaluak (at para. 38):
…The excessive use of force by the police officers, compounded by the failure of those same officers to alert their superiors to the extent of the injuries they inflicted on Mr. Nasogaluak and their failure to ensure that he received medical attention, posed a very real threat to Mr. Nasogaluak's security of the person that was not in accordance with any principle of fundamental justice.
[74] On the other side of the sentencing balance, the Supreme Court in Suter (at para. 56) has cautioned against affording too much reductive credit to "collateral consequences":
… [T]he fundamental principle of proportionality must prevail in every case — collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.
[75] In all the circumstances of this case, I find that a 2-year reduction of the proposed 7.5-year term of imprisonment would adequately address the concerns raised by the use of excessive force during the arrest of Mr. Acheampong. Having regard to his full acceptance of responsibility for the offences and his limited role in the commission of the home invasion robbery, a net sentence of 5.5 years of imprisonment for these offences would still be within the range of fit and appropriate sentences for a youthful first offender such as Mr. Acheampong. A two-year sentence reduction addresses both the physical harm suffered by Mr. Acheampong, having regard to the time it took him to recover, and the additional harm caused to the administration of justice by virtue of the racialized context in which the excessive force was used.
Conclusion
[76] For the reasons set out above, I sentence Mr. Acheampong to 5½ years of imprisonment on the robbery count and 3 years and 8 months (i.e., 44 months) of concurrent imprisonment for the possession for the purpose of trafficking count.
[77] Mr. Acheampong has been in custody since August 30, 2017. He has served 14½ months of actual pre-sentence custody. He is entitled to 1.5:1 credit for the time he has served in pre-sentence custody. In all the circumstances, I will credit him a total of 22 months for his pre-sentence custody against the 66 months of imprisonment on the robbery count.
[78] Accordingly, Mr. Acheampong's net total sentence will be 44 months of imprisonment.
Released: November 16, 2018
Signed: Justice Paul Burstein
