Court Information

Date: November 28, 2019

Ontario Court of Justice

Her Majesty the Queen v. Daniel W. Upper

Reasons for Judgment

Before the Honourable Mr. Justice M. Block

on Thursday, November 28, 2019 at 60 Queen Street West, Toronto, Ontario

Appearances

Counsel for the Crown: Ms. V. Rivers

Counsel for Mr. Upper: Ms. Pace

Judgment

BLOCK J: (Orally)

This is my judgment in the matter of Daniel Upper on manifold alleged Charter violations brought to the court's attention through an application brought by counsel, Ms. Pace. Violations are alleged, amongst others, sections 8, 9, 10(a), 10(b), and section 7.

The Arrest

On September 17, 2018, Mr. Upper was arrested for possession for the purpose of trafficking of crystal meth and GHB. The evidence is that he was at the vicinity of a large apartment building at the address of 33 Isabella Street through much of the afternoon and early evening on the date in question. As I've indicated, the building is a large one. It is a multi-floored apartment building.

Mr. Upper and his friend and ultimate co-accused, Connor O'Brian, had made plans to meet at this apartment, though those plans were flexible and Mr. O'Brian apparently not very good at communicating accurate times that he might be present at the studio apartment located at unit 2503 at that address. The defendant contacted O'Brian at numerous times to try and confirm a time when O'Brian would be present to provide access as Mr. Upper had no key to the unit. It's also clear from his own evidence that he had no stable address and was couch surfing with various friends.

During the day, Mr. Upper entered the building two or three times, once to attend Mr. O'Brian's unit and on another occasion to visit another friend on the sixth floor.

Police Surveillance

Unbeknownst to the defendant, and to his great misfortune, unit 2503 was the target of a search warrant that had been granted just after 9 p.m. on that day. From about 2 p.m., surveillance on the premises had been carried out by Detective Hurtado and Detective Galiotos of the Toronto Police Service drug squad. There was no sighting of the search warrant target, O'Brian, at any point during the day until after the warrant had been served. He apparently arrived at the apartment during the search and was arrested at that point. The evidence strongly suggests that he was in fact completely absent from the apartment from the point surveillance commenced about 2 p.m. until the time of his arrest.

Detectives Hurtado and Galiotos observed the defendant at several points during the day. At one point, they saw him enter and leave 33 Isabella wearing a backpack and piloting his bike, and at other times, in conversations with various other persons outside the building on that warm, late summer afternoon and evening.

The detectives testified that the defendant had given them a "hard stare" at one point. All this activity allegedly inspired their suspicion towards the defendant. There was no evidence of any exchanges by the defendant with any other person on that day. No evidence that he visited the target apartment, or rather, there was no indication to the detectives that he visited the target apartment earlier that day, or that he was even on that floor and there was no evidence of his involvement in any drug activity. Nevertheless, the detectives told the court that they believed the defendant was "keeping six" in front of the building.

There was no evidence that loitering or chattering outside 33 Isabella was connected with anything inside the building, and no prior evidence of any kind linking the defendant with the target unit at any time prior to his arrest.

The Physical Arrest

When the police ultimately re-attended to execute the warrant, they found the defendant in front of the door with his bike nearby. Detective Hurtado yelled "Police" and tackled the defendant. No resistance was offered. While shorter than the defendant, Hurtado is substantially bigger and heavily muscled. In my view, he outweighed the defendant by at least 80 pounds.

Hurtado told the court he thought the defendant may have been entering the unit or leaving in possession of evidence. It entered his mind that the defendant may be about to run into a nearby stairwell. There was no evidence before the court as to what actions the defendant did that might indicate he was either entering or leaving or might be in possession of evidence. Hurtado testified that he told the defendant that he was under arrest after forcing him to the floor.

Detective Galiotos assisted Hurtado in cuffing the defendant, on his evidence. Hurtado did not notice any black eye in encountering the defendant on arrest. He did notice bruising around the right eye later. Hurtado wasn't able to explain how the defendant may have acquired a blackened right eye, neither was any other police witness.

Detective Galiotos testified he made the same observations outside the building in relation to the defendant as Hurtado. He suggested that the defendant was holding court outside the building as he chatted with people. He saw nothing that connected the defendant to the target address. His evidence differed from Hurtado in two important respects. He said that Hurtado told the defendant that he was under arrest for possession for the purpose of trafficking in the hallway, and he told the court that the defendant, Hurtado, and himself all became tangled up in the defendant's bike at the point he was arrested. Hurtado himself made no mention of a tangle of men and bicycle despite his alleged personal entanglement in it. Galiotos told the court that he gave rights to the defendant within the apartment. All police officers testified that Galiotos never offered the defendant violence after his arrest.

After he was tackled to the hallway floor, the defendant was brought inside the unit and searched. He was found to have a wallet, a cellphone, some crystal meth and GHB in quantities allegedly consistent with trafficking. Galiotos told the court that he told Upper he was arrested because of the drugs in the backpack, although those drugs were not discovered until after Mr. Upper was brought inside the apartment.

Detective Patterson noticed no injuries to the defendant Mr. Upper. She saw the tackle/bear hug that floored the defendant. Neither she nor Hurtado made any observations of any entanglement with the bicycle though she was present. She noted, as did the other detectives, that the unit door was closed when Mr. Upper was in front of it; and in common with other police witnesses, she gave no evidence that described any action the defendant was doing in relation to that door other than standing in front of it. She heard no words of arrest in the corridor.

Custody and Access to Counsel

Constable Jason Ferreira received a telephone call at 10:23 to transport the defendant and his co-accused, O'Brian, to 51 Division and the two men were turned over at 10:34 p.m. At least one hour had passed since the defendant had been arrested. For the bulk of this time, according to the evidence, he had been held in the unit itself or outside 33 Isabella. There is no evidence whatsoever that the implementation of the defendant's rights to counsel were considered by any police officer until he had been at 51 Division for some period of time.

An agreed statement of fact was entered into evidence. It establishes that the defendant was placed into a squad car at 10:36 p.m. He arrived at 51 Division at 10:49. The car he was in entered the sally port at 10:54, that Mr. Upper asserted his intention to use duty counsel at 11:06 p.m., and attended the booking hall some 30 minutes later.

It is uncontroversial that the defendant did not speak to duty counsel until 1:03 a.m., at which time, he had been in custody at least three and a half hours since his arrest. He related that, after arriving at 51 Division and before speaking to duty counsel, he had been interviewed by a detective regarding criminal associations and obliquely offered consideration for his cooperation. This evidence was uncontradicted and I accept it.

I cannot accept that any security considerations laid behind the failure to implement the defendant's 10(b) rights. What is clear is that, throughout his contact with the police they exhibited complete indifference to the implementation of his 10(b) rights.

Credibility Assessment of the Defendant

The defendant testified at length. While demeanor is often and perhaps usually useless as a consideration in determining credibility and reliability, that is not the case in this matter. Mr. Upper presented as a timid, cooperative, diffident, submissive and compliant subject. If the meek shall inherit the earth, then the defendant has much to look forward to. He was clearly very nervous in court. Nevertheless, he maintained his composure and made no display when sitting in the body of the court alongside counsel when he heard evidence he clearly disagreed with.

Mr. Upper has had his share of challenges. He came to Toronto from his native Niagara Falls for a restaurant job. He apparently lost that job because of his HIV status. He lives in poverty, and at least at the time of arrest, couch surfed in friends' apartments. He disclosed to the court that he was a heavy user of crystal meth at the time of this matter, and that he had consumed crystal meth much earlier on the day of the arrest. He has no criminal record. He is a man in his mid-30s.

Mr. Upper responded fairly to questions from both counsel. He allowed that his memory of the events could be flawed because of his distress at his arrest and the subsequent beating, and also perhaps his drug use. He appeared not to gauge whether his responses advanced his legal interest or not. He was clearly somewhat ashamed of his Bohemian lifestyle. His responses tend to run on more than little, and were often not directly responsive to questions from both counsel. His responses occasionally elicited mild exasperation from his own counsel.

My own view is that he was a reliable reporter on major issues and less reliable on smaller details, which is exactly what he told the court on numerous occasions. When responding to questions, he often advised whether or not he had a distinct memory of the event.

The Black Eye and Assault

The defendant denied being told he was under arrest being handcuffed in the hallway. I'm not sure he's correct on that and nothing turns on it. It is clear that he was surprised and shocked by the bear hug tackle and subsequent events. He told the court words to the effect that the brutality affected his perception and recall. He told the court that Galiotos knelt on his neck and back while he lay prone, that he punched him in the right eye several times, once before demanding "Where is the stash?" and several times afterwards when Mr. Upper asked, "Why this was happening?" and that "He was not resisting."

There was no question that the defendant had a black eye. Hurtado didn't notice one before the bear hug tackle. He noticed some bruising afterwards. There certainly was a black eye, it was confirmed by the evidence of PC Ferrera, noted by the nurse at the Toronto South Detention Centre, and clearly visible in the contemporaneous photo of the mugshot. However, it was not noticed by Detective Patterson.

It is certainly technically possible that the black eye was the product of Hurtado's tackle of the defendant. The difficulty is there's absolutely no evidence before the court that Mr. Upper did a face plant as a result of this tackle. What is excluded is the rational possibility that a three-man and one-bike tangle caused this result. Galiotos's evidence is unsupported by any of the other witnesses to the tackle bear hug. This is not some insignificant detail. This is a key part of the narrative of this detective at the initial part of the arrest. It is not possible that this incident would have escaped the attention of Patterson and Hurtado.

I reject this evidence as a fiction concocted as an ex post facto explanation for the injury to the defendant. I accept the evidence of Mr. Upper. I find that he was punched by Galiotos for no reason related to legitimate police purposes. I find Galiotos an incredible witness. It gives me no pause whatsoever that the defendant did not disclose the beating to other officers at 51 Division. He articulated on the stand that he distrusted the police as a result of this conduct. I find that distrust reasonable in the circumstances.

I also do not find persuasive the submission that there was no rational police related reason for the punching to the eye, and therefore, it was unlikely or did not happen.

Sometimes in the course of human events there is no rational reason for the expression of brutality except the power that the brutalizer has and the circumstances in which they find themselves, where they find it possible to administer a beating without consequences. The mere fact that this is unrelated to any rational police purpose doesn't mean it didn't happen.

Reasonable and Probable Grounds for Arrest

I disagree with the submission that there is reasonable and probable grounds for the arrest of the defendant in the corridor. There was nothing associated with the conduct of Mr. Upper outside 33 Isabella or his entry and exit on several occasions that would have occasioned any reasonable suspicion.

Mr. Upper, in fact, agreed with much of the activity described of the detectives. He told the court he looked at the detectives outside the premises because he thought, as one of them was carrying a large brown paper bag, they might be delivering his Uber Eats order. I entirely discount the interpretation of the defendant's conduct placed on it by the police. What constitutes a "hard stare"? While this phrase went unexplained, my sense is it means a frankly aggressive confrontational probe that continues beyond the point of social comfort. This requires an aggression and self-confidence that Mr. Upper clearly does not possess. The use of the phrase suggests that Mr. Upper was suspicious of these plain clothes detectives. I cannot claim to know Mr. Upper, but I have seen him over the course of his testimony and his deportment in court and I do not accept this evidence. I mean no disrespect to Mr. Upper, but his demeanor entirely recalls the antique English phrase, "Wouldn't say boo to a goose".

There is no suggestion of any exchange by Mr. Upper or anyone else outside the premises, as I have indicated. And there was no evidence associating him with the search target prior to his arrest. I reject the suggestion that he appeared to be keeping six outside the premises. I ask the question: "keeping six for what purpose?" There's no suggestion of contemporaneous trafficking outside of 33 Isabella. And the evidence is that the target, Mr. O'Brian, wasn't observed on the premises at all prior to the search. Exactly what then would the defendant have been on the lookout for?

Plain clothes detectives present outside a building where nothing was taking place? The suggestion that the defendant was entering or leaving the apartment was puffery. Mr. Upper was not seen using the door lock because he had no key. The detectives simply jumped to a conclusion which is unsupported by any evidence available to them. I do not accept that the defendant's mere presence outside the door of the target unit coupled with earlier observations gave rise to reasonable and probable grounds.

The sad truth is that the detectives came to know of Mr. Upper's existence outside 33 Isabella earlier in the day, and then without any evidence came to the unit, jumped to the conclusion that he had an intimate connection to the interior of the target apartment, and what we have here as a result is that the detectives acted on mere hunch.

They did have a legitimate reason to ask him who he was, what was he doing there, did he have a key to that apartment, and what did he know about it. In the circumstances there was no reasonable and probable grounds for arrest, and certainly no legitimate reason to flatten the defendant to the floor with a bear hug. At most, a momentary investigative detention would have been appropriate. The arrest, the manner of the arrest, and the subsequent search were clearly not. And as I've indicated it follows that the search of the backpack subsequent to this unlawful and brutal arrest was unlawful.

I have already indicated that I accept Mr. Upper's evidence that he was punched in the eye by Detective Galiotos: there is nothing in the conduct of the defendant at any point that is in the course of his contact with the police which justified this gratuitous and brutal conduct.

Charter Breaches

The s. 7 breach is an inescapable conclusion. In reference to 10(a), I am not certain of the accuracy of Mr. Upper's evidence that he was not told of the reason for arrest or given the formal language or informal language of the availability of a lawyer inside unit 2503. I just don't know. What I am certain is that the police did not turn their collective minds to the issue of implementation until he had been in custody for three and a half hours, over three and a half hours. The breach is profound and very serious.

It falls squarely within the recent case of R. v. Noel, November 1, 2019, Ontario Court of Appeal. Noel is also a situation where there is no causal link between the seizure and the 10(b) violation. In my view, there was one continuous transaction of police involvement between the flattening of Mr. Upper outside the premises, or outside the unit 2503 at 33 Isabella, and his ultimate recourse to duty counsel after his interview at 1:03 a.m.

As indicated, I have found breaches of sections 7, 8, and 10(b) of the Charter. It is almost an afterthought that there is clearly a violation of section 9. Each of the breaches is profound. The section 8 breach is by no means trivial. The level of state misconduct in the arrest is in my view greatly heightened by the highly aggressive means used to effect that arrest, which would have been suitable to active and effective resistance, certainly suitable to the display of weaponry, possibly marginally useful in the case of flight, but totally unjustified in relation to a passive, stationary, and unresisting accused. I reject the suggestion that a dynamic situation required this aggressive conduct. There was as close to a static situation as a search in the presence of one passive subject could be.

The means of detention were profoundly inappropriate to the highest degree and resulted in an assault to the defendant's person. Not only is the level of state culpability high, but the impact on the defendant clearly profound.

I have found that Mr. Upper was punched in the right eye by Detective Galiotos as he has testified. There can be no possible justification for this conduct. This is clearly a violation of section 7 on its face and as the evidence emerged, would have justified a stay of proceedings and not just an exclusion of the evidence.

I reject the suggestion that Noel implemented new law in Ontario. Noel is just a brief, efficient, recapitulation of law that's been in existence for years. The police could not possibly have been ignorant of their duty to implement Mr. Upper's right to counsel at the earliest possible moment, and while their conduct demonstrated considerable indifference to his right to counsel, it also seems to have had a purpose, which was to isolate Mr. Upper from contact with counsel until it could be confirmed whether or not he would be a useful and willing informant. I suppose I should put "willing" in quotes. In my view, this is a significant, an extremely significant breach which impacted greatly on Mr. Upper's Charter protected right to access counsel, and on its own would require the exclusion of the evidence of contraband drugs in his backpack.

Exclusion of Evidence

The totality of the breaches exacerbates the situation in which we find ourselves. What we have here is a pattern of deliberate and cynical misconduct, and the only possible expression for such a grievous series of acts of misconduct must be that they outweigh any possible public interest in the continuation of the misconduct by allowing this evidence before the court.

I find that the administration of justice would be brought into extreme disrepute by its admission and I exclude it from the evidence.

Disposition

MS. RIVERS: No, Your Honour.

THE COURT: Okay. So there will be no objection at this point to me dismissing all charges against Mr. Upper. Thank you. Mr. Upper, you are free to go.

WHERE UPON THIS MATTER WAS CONCLUDED