DATE: November 2, 2023

ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario

REASONS FOR JUDGMENT

Duncan J.

[1] The defendant is charged with several offences all dated December 11 2019 and all arising from a traffic stop, a struggle and a subsequent search of the vehicle. The particulars by count (paraphrased):

1. – Assault Cst Picken, with intent to resist arrest – s. 270(1)(b) of the *Criminal Code*
2. – Carry concealed weapon – handgun - s. 90 of the *Criminal Code*
3. – Occupant of motor vehicle knowing it contains a gun -s. 94 of the *Criminal Code*
4. – Possession of a loaded restricted firearm with no licence – s. 95 of the *Criminal Code*
5. – 9 – Charges against co-acc Shaw – withdrawn in April 2021
6. – Resist Cst Picken a police officer by trying to drive away- s. 129 of the *Criminal Code*
7. – Possession of a handgun KNOWING no licence s. 9 of the *Criminal Code*
8. – Breach firearm prohibition – s. 117 of the *Criminal Code*

[2] On December 11 2019 Police officers Jordan Picken (P) and Jamie McAuley (M) were together patrolling an area around Queen and Hansen in the city of Brampton. There were several bars in the area; it was a well known site for all sorts of crime including impaired driving.

[3] At around 2:20 am they noticed a Hyundai leave the parking lot of Wild Wing, a licensed premises. They said it was speeding. They had seen the vehicle earlier parked in the lot and believed therefore that the occupant or occupants had been in WW for about an hour and a half. They decided to do a sobriety check. After travelling a short distance on Queen, the Hyundai took the ramp to 410 North. The police activated their lights while following on the ramp and the car pulled over onto the shoulder of the 410.

[4] The police approached the car. The driver was a Ms. Shaw. She showed no signs of impairment – but she did not have a driver’s licence. The passenger was the defendant, Adrian Thomas. He told the police that he had a licence but that he believed it was under suspension. It was.

[5] The Hyundai was a rental vehicle from Enterprise Rent-a-Car in Scarborough. Mr. Thomas told the police that it had been rented by his girlfriend Petula Payne. There was dispute in the evidence whether a rental agreement was produced or not.

[6] The police returned to their cruiser and confirmed that Ms. Shaw was unlicensed and Mr. Thomas was suspended. They faced a dilemma. Neither occupant could legally drive the car. Nor could they legally walk on a 400 series highway, an offence under the HTA. They would have to be driven by the police at least off the highway and possibly further (maybe home) if they wished. The car would be effectively abandoned and would have to be seized and towed. They checked with their sergeant and their plan of action was supported. [1]

[7] Putting the driver and passenger into police cars would require a pat down search. A female officer was requested and at 2:44 Cst Gray (nee Butcher) was dispatched, arriving on scene at 2:53 a.m.

[8] Cst McAuley and Gray approached the driver’s side and Cst Picken went to the passenger side. The driver Shaw was asked to step out and go with the female officer. She voiced no objection and was co-operative. She left the engine running. They (Gray and Shaw) were walking back to the cruiser when events took a dramatic turn.

[9] Almost immediately after Shaw got out of the car and started walking with the officers, the defendant leaped into the driver’s seat and hit the accelerator hard, revving the engine while he struggled with the gear shift. Cst McAuley who had been standing at the driver’s door believed Thomas was trying to flee. (Thomas admitted that he was). McAuley grabbed Thomas by the shirt and pulled him out of the car. He said that Thomas pushed him and he fell back striking his head on the pavement. He continued to hold onto Thomas’s leg and was dragged by Thomas trying to free himself and get away. At one point they were in a live lane of traffic on the 410.

[10] Cst Picken and Cst Faria (who had just arrived on scene) went to assist their colleague. Faria grabbed one of the defendant’s arms while McAuley had the other. Picken put the defendant in a bear hug and they dragged him back near the rear driver’s side of the Hyundai. For an instant it seemed like the defendant was going to stop resisting – but he started again. The group then moved toward the gravel shoulder and the grass. They all fell down. Two other officers had arrived on scene – Sergeant Arifi and an off-duty officer, Galbraith – and they assisted as well. Notwithstanding that there were 5 officers and the defendant was a mere 5’6” and around 150 lbs, the police were unable to restrain and get him into cuffs.

[11] Three officers used their tasers. Each said he was unaware of the other officers also employing tasers. They also all said that the tasers were ineffective. However soon after the taser use they were able to get the defendant under control and in cuffs. The defendant testified that he felt extreme pain and could no longer resist once tasered.

[12] The fifth officer, Galbraith, had just gone off duty from his shift at a different Division. As he drove home on the 410 he came across the scene. He pulled over and joined the struggle. He punched the defendant several times in the face, body and legs as he lay face up on the ground.

[13] The struggle had lasted no more than 2 minutes. After it was over the defendant was immediately seen to have a swollen and partially closed eye as well as being very dirty.

[14] An ambulance was called and, after examination at the scene, the defendant was taken to hospital. Officer Lamarre accompanied the defendant and, on the way, informed him of his right to counsel. This occurred about one half hour after the arrest. The defendant wished to speak to a named lawyer, Mr. Ross, but no effort was made to facilitate contact with counsel until over 13 hours later when the defendant, still at the hospital, was remanded by a Justice via telephone. After that appearance, a call was placed to Mr. Ross at 4:10 pm. The lawyer called back within 20 minutes and the defendant spoke to him.

[15] Following the defendant’s departure to the hospital, the officer in charge considered that the SIU may become involved, depending on the extent of the defendant’s injuries. The scene was frozen pending that decision. Ultimately, around 8:40 am, it was determined that SIU would not be involved. Shortly thereafter the Hyundai was searched. A loaded handgun was found in a Lacoste satchel under the driver’s seat.

[16] The finding of the gun was conveyed around 10 am to Officer Hope who had custody of the defendant at the hospital. Over three hours later he advised the defendant of the new gun charges and informed him of his right to counsel. Again the defendant asked to speak to Mr. Ross. As outlined above, no effort was made to facilitate such contact until around 4:30 pm.

[17] The gun was eventually subjected to DNA analysis and a small sample of mixed DNA that included contribution from the defendant was identified. However, there were problems with the handling of the gun at the time of the search that the Crown concedes undermines the weight that can be attributed to the DNA match. I agree with that concession and give the DNA evidence no weight.

[18] The defendant testified that he had borrowed the Hyundai from his girlfriend Ms. Payne. She had rented it about a month earlier and he had used it several times. He understood that she also lent it to other family members and friends – maybe as many as eight of them. He testified that on the evening in question he had borrowed it for a pre-arranged meeting with Ms. Shaw at Wild Wings. Shaw’s evidence was that it was a chance meeting and she left WW with him because he was giving her a ride home.

[19] On leaving WW, the defendant asked her to drive. He did not ask if she had a licence. His licence was suspended and he thought police were less likely to stop a car if a woman was driving. He was very nervous about police and, before they left, he had Shaw check that the coast was clear and that police were not around.

[20] The defendant testified that he was always wary of police because of his background as a young black man who had been hassled and abused by police throughout his life. He said that this fear is what caused him to try to flee on the 410.

[21] The defendant said that he had no knowledge of a gun being in the car and had never touched or seen the gun or the satchel. It was admitted in an agreed statement of fact that Shaw, the only other person in the car, had no knowledge of or association with the gun.

[22] The defendant testified that he did not push Cst McAuley but rather that they both fell from the momentum of his being pulled from the driver’s seat. He acknowledged that he resisted being put into cuffs but denied ever intentionally hitting or kicking any officer. He said he was greatly out- numbered and outweighed by the police. Contrary to the police claim that the tasers were ineffective he said that at least one of them was devastatingly painful and caused him to lose the ability to resist. His heart raced and he lost control of his bowels. Contrary to the police claim that the fired taser prongs missed or failed to penetrate his clothing, he produced pictures of the marks on his skin where the prongs had penetrated. He produced other photos of the substantial injuries to his face and eyes.

[23] The defendant’s face was badly swollen though there were no fractures. At the hospital there was concern about his elevated heart rate and he was kept for observation. His eyes were blood-filled and remained that way for at least a week. He testified that he continued to experience headaches, eye problems, sleeplessness and anxiety even at time of trial almost 4 years later.

Timeline:

[24] A further abbreviated summary and timeline:

• 12:52 – Officers M and P go to WW – check out lic plates and sobriety checks – saw the Hyundai – note male “ u/k race” and female white walking from car to ww
• 1-2 am – M and P continue to patrol area and other establishments
• 2 am – M and P see same car parked in different spot at WW
• 2:05 – M and P deal with a separate incident re stolen car – it got away – pull into VW dealership to make notes of that incident
• 2:19 – see Hyundai leave WW – speeding – occupants had been in WW for hour and half – maybe drinking – decide to stop for speeding and sobriety check – it takes ramp to 410N – police lights activated
• 220 – Hyundai pulls over and stops on shoulder of 410– just south of Vodden – both officers go to car one on each side – driver shows no signs of drinking – driver has no licence – defendant passenger tells police that he has borrowed the car from his gf PP and he thinks his licence is suspended
• 224 – both Shaw and Thomas were ‘run” on police computer – confirmed that she had no licence and that his was suspended for unpaid fines – formulate plan to tow car and drive S and T in police car – “We were going to drive them somewhere – just hadn’t determined where”
• 241 – contact Sgt Arifi who confirms the plan – request for female officer -
• 244 – female officer dispatched
• 253 – Female officer Butcher/Gray arrives
• 254 – PC Faria arrives
• 255 – Plan explained to S and T – S is asked to step from car and go with Cst Butcher/Gray
• 256 – approx. – Shaw gets out and goes with Butcher to back of car
• 256 – Thomas jumps into driver’s seat and attempts to drive it away – motor revs but he can’t get it into drive – Cst M grabs him and the struggled ensues
• 257 – Sgt Arifi arrives – “10:33” call (police in danger all available officers to scene) goes out (evidence of Sgt Arifi)
• 2:58 – estimate – all officers say it was 1-2 minutes until defendant was under control and in handcuffs – “10:33” called off
• 259 – Sgt calls for ambulance
• 3:00 – approx. – Cst Lamarre arrives on scene in response to 10:33 call. He estimates there were 30!! Police cars already there
• 330 – PC Lamarre instructed to read RTC to defendant in ambulance
• 334 – accused taken to hospital in ambulance – Duty inspector Cooper arrives – it is decided to freeze the scene pending SIU
• 338 – Lamarre reads RTC to accused while on way to hospital – accused understands and asks to speak to a named counsel Mr. Ross
• 343 – arrived at hospital – long wait – small talk – nothing about the offences
• 544 – at scene Sgt Arifi relieved by Sgt Henry who is informed that car has not been searched
• 553 – At hospital Thomas seen by doctor who orders x ray and ultrasound
• 6 am – Cst Jhajj arrives – Hyundai still on scene – both front doors are wide open – he is assigned to watch the car and make sure no officers go near it
• 640 am – at hospital Lamarre relieved by Cst Hope
• 715 – Def taken for imaging
• 8:00 – doctor advises that there are no broken bones – heart rate is elevated and doctors want him to stay for observation at least until afternoon
• 840 – Cst Jahjj informed that SIU not going to be involved – and that car is going to be towed. He is directed to conduct an inventory search
• 848 – 915 – inventory search conducted – loaded handgun found in a satchel under the driver’s seat
• 956 – Cst Hope informed that a gun had been found in the car
• 1:17 pm – Cst Hope informs defendant about the finding of the gun and the new charges – RTC given – again he asks to speak to named counsel Ross
• 220 pm – Cst Hope informed that the defendant was going to be remanded by telephone from hospital
• 4:06 pm – remanded by telephone by Justice of the Peace
• 410 pm – PC Hope calls Mr. Ross and leaves message
• 428 – 432 – Ross calls and defendant speaks to him

Issues:

[25] The evidence raises a host of issues both Charter based and substantive. I will deal with them in the order that they arose in the narrative:

S 9: Arbitrary detention – The initial stop and detention:

[26] The police testified that they stopped the car for a sobriety check and because it was speeding. They claimed having no other investigative interest.

[27] The law surrounding police authority to stop for what can generally be called “traffic purposes” can be briefly stated: The random (groundless) stopping of a motorist will be lawful and the ensuing detention not arbitrary if it is made for legitimate traffic purposes. The traffic purpose must be legitimate and not a mere pretext to provide police with an opportunity to conduct an investigation at large or into some other suspected criminality: see R v Ffrench, 2022 ONSC 1452 infra para 17.

[28] In this case I am satisfied that the stop was for a legitimate traffic purpose. The officers’ duties that night were largely concerned with policing for impaired drivers in an area with several drinking spots. They had some reason to be particularly interested in the Hyundai because they knew its occupants had just been in a licensed premises for about an hour and a half. When they stopped it, they immediately conveyed to the occupants of the Hyundai that it was for a sobriety check. Both Shaw and the defendant agreed that was what they were told.

[29] Although the driver presented as sober, other issues immediately arose regarding licencing, ownership and insurance coverage. The investigation of these issues was also authorized as being related to traffic. Until the defendant’s attempt to flee, there was nothing to indicate that the police had stopped the car to pursue some extraneous non-traffic interest. I find that there was no pretext; the stop and the initial detention was for legitimate traffic purposes. It was not arbitrary.

Section 8: Obtaining name from defendant passenger:

[30] It was contended that the police obtaining of the defendant’s name at the time of initial detention was a search and seizure that infringed his section 8 Charter right: R v Harris, 2007 ONCA 574. However, unlike Harris, the defendant Thomas was not just a passenger. He was the person who had custody and responsibility for the car. His identity was necessary to determine his legal right to both possess and drive it. There could be no reasonable expectation that he could keep that information from police.

S 9: Arbitrary Detention: The prolonged detention:

S 10b: Right to Counsel during prolonged detention:

[31] In my view, once it was determined that neither the driver nor passenger had a valid driver’s licence, the situation ceased to be governed by the legal parameters and limitations of random check stops. It became an entirely different situation and there was no requirement that the detention be of short duration or that RTC be given – because it was not a detention within section 9 or 10 at all.

[32] There is a well established difference between “ detained” as used in common parlance – meaning “delayed” or “held-up” – and being “detained” with the meaning of the Charter: R v Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 at para 19; R v Grant, 2009 SCC 32.

[33] After the brief check stop, the defendant and Shaw were not detained by the exercise of any police power. They were detained because of circumstance, that is, they were in a vehicle on a highway that neither was legally able to drive. Their situation was no different than being unable to leave because of a mechanical breakdown or empty gas tank, (with or without an immediately preceding check stop). At that point the police were assisting them, acting in a non-adversarial role: R v Grant supra at para 36. In short, they were not detained; they were stranded.

[34] I conclude that there was no breach of section 9 or 10b during this period.

The arrest and struggle:

[35] It is not disputed that the police had authority to arrest the defendant when he attempted to flee the scene. The defendant conceded that he tried to resist that arrest and it is clear that the police used considerable force to overcome that resistance.

[36] Two of the counts on the information specifically relate to the arrest. Count #1 – assault on Cst Picken with intent to resist arrest s. 270 – relates to a kick during the struggle. In evidence, Picken agreed that the kick may well have been unintentional. The Crown has surrendered on this count. The other charge, Count #10 – resist Cst Picken in the execution of “his duty to arrest by trying to drive away” – is only faintly contested by the defence. It is argued that Picken was not initially, as particularized, attempting to execute an arrest when the defendant started to flee. However, my view is that Picken was trying to arrest as soon as the defendant attempted to drive off. On this view, the offence as particularized is made out.

[37] Accordingly, the importance of the arrest lies in the submission that the force used by the police was excessive – so much so that it constituted a violation of Charter section 7.

[38] Somewhat remarkably, there is little conflict in the evidence between the police and the defendant. Where conflict arises, I give the defendant the benefit of the doubt on credibility as required by W.D. I make the following findings:

• Cst McAuley fell back on the road and hit his head with the defendant on top of him not as a result of the defendant pushing him but as a result of the momentum generated by Cst M pulling the defendant from the car.
• The defendant got up and tried to flee on foot but Cst M, still on the ground, held tight to the defendant’s leg. The defendant dragged Cst M a short distance. They were briefly in a live lane on highway 410, specifically the right exit lane for Williams Parkway (see photo TSC-3902). At the time Cst Faria’s car would have been partially blocking that lane to traffic, lessening the danger.
• I do not accept Cst Faria’s evidence that the defendant picked up Cst M and slammed him down. This observation was not in Faria’s notes: McAuley did not recount such an occurrence.
• Cst M and Cst P together with Faria were able to move the defendant to the shoulder near the grass on the passenger side of the Hyundai. The defendant continued to resist by flailing his arms and pulling away so the officers could not get control of him to put him in handcuffs. He was not otherwise assaulting the officers. At some point they all fell to the ground, though it is difficult and unnecessary to determine exactly when that occurred other than shortly after arriving on the grass edge of the roadway.
• Off duty police officer Galbraith stopped and joined the struggle. He administered a series of punches to the defendant’s face as the defendant was on his back and being substantially restrained by the four other officers.
• Sgt Arifi arrived and joined the struggle. At one point Arifi kneed the defendant in his side to get him to release his arms from underneath his body. I find that if the defendant was on the ground and his arms were underneath his body, as Arifi said, then the defendant could not have been striking out or flailing at that time.
• At almost the same time as Galbraith was punching the defendant, three tasers were used by other officers. Cst McAuley administered a contact “dry stun” seeking to achieve “pain compliance”; Cst Picken fired twice at close range sending a total of 4 prongs towards and mostly into the defendant in an attempt to immobilize him. Cst Faria tried both methods – he first attempted to achieve incapacitation using prongs but believed that was not successful. He then used the contact dry stun method. He thought that was also unsuccessful.
• No warning was called out by any of the officers that a taser was about to be used. While all three officers claimed that they were unaware of any other taser being used, I find that difficult to accept given their close proximity to each other and notwithstanding the darkness. The defendant testified that the tasers were effective and inflicted great pain. His heart began to race and he lost control of his bowels. At the hospital he was found to have an irregular heart rhythm and was held for observation.
• I find that at least two of the taser deployments were effective and inflicted significant pain on the defendant.
• The defendant is a small man 140-150 pounds standing 5’6” tall. The five police officers weighed a total of 700-800 pounds.

[39] The police are authorized to use force to affect an arrest. However the force that they use must be reasonably necessary and proportionate. R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6 (S.C.C.), at paras 32-34. In determining whether the amount of force used by an officer was necessary, regard must be had to the circumstances as they existed at the time the force was used: R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.); R. v. Roberge, [1983] 1 S.C.R. 312, at pp. 333-4. A certain amount of latitude is permitted to police officers who are under a duty to act and must often react in difficult and exigent circumstances, and cannot be expected to measure the force used with exactitude: R v Walcott, [2008] OJ No 1050 (Sup Crt) D. Brown J. Relevant considerations include whether:

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

[40] I find that the defendant was not so much hostile and aggressive as he was desperate to flee and resistant to attempts to prevent that happening. While there was initially a risk of harm to the officers, it was minimized if not eliminated when he was moved to the shoulder. The force became excessive after that point. No weapon was seen and the possibility of one materializing was no greater than in any other arrest. The defendant was greatly outnumbered and outweighed; the 140 pound defendant was subjected to the force applied by almost 800 pounds of police officer. It was five on one; there was almost no chance of escape. Of those five, three used taser or stun guns on him almost simultaneously and without warning; [2] the fourth kneed the defendant in his side while the fifth pummeled the defendant’s face with his fists. At the time this was occurring, the defendant was substantially restrained. It was inevitable that he would soon be brought under control by use of reasonable force.

[41] I find that the totality of the force used was unnecessary and greatly excessive. While not every case of excessive force constitutes a Charter violation it is my view that the facts in this case were serious enough that the defendant’s section 7 right to security of his person was infringed: see R v Donnelly, 2016 ONCA 988, [2016] OJ No 6681 (C.A.) at para 106. I am particularly troubled by the punches to the face while the defendant was lying on his back, substantially restrained.

Post arrest – right to counsel:

[42] The information re the right to counsel is supposed to be given immediately upon arrest or detention. The defendant was under control and arrested and at 2:58 am. It was not until 40 minutes later (3:38) that he was read RTC as the ambulance headed to the hospital. During part of this time, he was waiting for the ambulance or receiving medical treatment but it has not been shown that it was impossible or even impractical to provide him with the 10b advice earlier. Apparently no officer even thought to do it until 3:30 when PC Lamarre was so instructed. I find this was a clear violation of the informational component of 10b.

[43] The defendant was not provided with an opportunity to contact counsel until 4:28 pm, about 13 hours after his arrest. During this time he was examined by medical personal and taken for x-rays and ultrasound. He was sedated and was asleep for unspecified periods.

[44] Clearly the delay in facilitating contact with counsel was extraordinarily long. I have not been provided with any evidence other than of the most general and vague variety to explain or justify the delay. Officer Lamarre, who read the RTC in the ambulance, said that he told the defendant that he would facilitate contact with counsel when they could have privacy. But he gave no evidence of any efforts he made once at the hospital. Cst Hope who took over custody at the hospital said there was only one room that could have been used for a private consultation but that it was always in use or about to be used. He acknowledged that he didn’t make any other inquiries for any other room or place that could be used. He said that he made use of the one busy room at the first opportunity that presented itself, that is, when the telephone remand was done around 4 pm.

[45] In my view insufficient effort was made to facilitate contact with counsel. It was incumbent on the police to make reasonable attempts to overcome circumstances that hindered or prevented facilitation of contact with counsel- and keep a record of those efforts if it is sought to justify a delay of this magnitude [3]. In the absence of such evidence, I must conclude that there was an unjustified delay in facilitating the defendant’s right to counsel under 10b.

Racial Profiling

[46] Counsel argues that the defendant was the victim of racial profiling.

[47] Racial profiling occurs when race or racial stereotyping is used either consciously or unconsciously in the selection or treatment of a suspect: R v Le, 2019 SCC 34, [2019] SCJ 34 at para 76. A finding of racial profiling can invalidate otherwise lawful stops, detentions and searches: see R v Ffrench, 2022 ONSC 1452 and authorities cited therein. Paras 19-34. I think it also is beyond question that racial profiling accompanying a Charter infringement can aggravate the seriousness of the infringement and influence the determination of the appropriate remedy.

[48] The burden is on the defendant to demonstrate on a balance of probabilities that racial profiling played a role in his selection or treatment: Peart v. Peel Regional Police, [2006]OJ 4457 at para 140. This is a difficult burden to meet as there is rarely direct evidence available. Proof usually involves inference from conduct by police that corresponds with what is considered to be racially influenced actions or thinking. [4]

[49] With respect to selection, I find that the officers knew that the defendant was black, having seen him earlier connected to the car they eventually stopped. But that obviously cannot be enough to infer racial profiling: Ffrench supra para 25. As for selection in stopping, no grounds are required for random sobriety stops, but here there was something additional in that the police knew that the car and occupants had just been at a drinking establishment long enough to have had some drinks. When the car was stopped the police immediately told the occupants that it was for a sobriety check. There was no suggestion that they pursued any other investigative interest. I am far from satisfied that racial profiling played any role in selection.

[50] As for treatment, I don’t see any racialized taint in the prolonged though lawful detention, nor in the Charter infringing breaches of the defendant’s right to counsel following his arrest. I have a suspicion that racial animus or racially stereotypical thinking may have contributed to the thinking and degree of force used by one or more of the officers. But it is a serious allegation to make and for good reason the law requires that I not find the allegation established based on suspicion. Rather, I must be satisfied by evidence on a balance of probabilities. I am not so satisfied.

Section 8: The search of the car

[51] The first issue is whether the defendant had a reasonable expectation of privacy in the car. It was not his car; he had not rented it. He had not been driving it when it was stopped, though he had been driving it earlier in the evening. He had no belongings in it. His connection to it was minimal and temporary. While he had standing to challenge the search, given the allegations against him (R v Jones, 2017 SCC 60) that is not the same thing as the requirement that he have REP.

[52] But assuming he had a reasonable expectation of privacy, I am of the view that the search was authorized by law as an inventory search of a vehicle being lawfully seized or impounded by police: Section 217(4) HTA ; section 55(1) HTA : R v Nicoloski (1998), 127 CCC3d 176 (Ont CA); R v Cuff, 2018 ONCA 276. See also excellent extended discussion of this issue in R. v. Buakasa, 2021 ONSC 7573 paras 76-111.

[53] This legal authority is manifestly reasonable; the search itself was conducted in a reasonable manner. Accordingly, the search was reasonable and there was no infringement of section 8.

Possession of the gun:

[54] Possession requires proof of knowledge and control. The element of knowledge relates both to the presence of the thing and nature of the thing. In this case the Crown must prove beyond a reasonable doubt that the defendant knew that a gun was present and that he had control over it.

[55] The defendant testified that the car did not belong to him. It had been rented by his girlfriend PP who sometimes allowed him – and others – to drive it. The defendant said that he had borrowed the car that evening, had nothing to do with the gun and didn’t know it was there.

[56] The evidence of Ms. Shaw and the agreed statement of fact eliminates her as a suspect in possession of the gun.

[57] The implication of the defendant’s position is that PP or one of those other car borrowers (or some earlier renter of the same car) must have left the loaded gun there intentionally or unintentionally.

[58] I do not believe the defendant about these other borrowers. It is too convenient and easy to make up unnamed alternative suspects. It makes no sense that PP would lend the car to many others when she would be on the hook for any damage or mayhem they might cause. PP did not testify to lend credence to her supposed generosity with the car. It is implausible that another driver or earlier renter would leave a valuable and probably cherished item like a handgun in a borrowed car or a rental return.

[59] The defendant’s attempted flight from the scene is a crucial circumstance in this case. The defendant said it was his unthinking reaction to his extreme anxiety about police, born of his lifetime of being targeted, mistreated and abused at their hands. The Crown did not challenge him on this history, and I accept that he has had those experiences though some he mentioned may have been somewhat exaggerated.

[60] However, I do not accept or have a doubt that his attempted flight was solely triggered by this anxiety. He demonstrated no anxiety or discomfort after the stop until the moment that he attempted to bolt. He acknowledged that in his many encounters with police over the years he had never run or reacted in any similar way. Why would he try to flee here when, he says, he was breaking no law? [5] His choosing to go to the Wild Wing area – always crawling with police according to Shaw – seems inconsistent with his claimed extreme aversion to them. It also seems odd and certainly less than gallant that he would flee and leave Shaw behind if he expected that the police were about to get nasty. Most significantly, his reaction was over the top – furious and desperate – much more consistent with his knowledge that he was (or might soon be) in big trouble and had to get away.

[61] I am satisfied beyond a reasonable doubt that while his augmented general anxiety of police may have had a contribution, his attempted flight and resistance were driven primarily by the fact that he knew a loaded [6] handgun was in the car. It was in his sole control and possession. It was his gun.

Remedy:

[62] I have found breaches of 10b based on delay in both the informational and implementational components. I have also found a breach of section 7 based on the excessive force used in the arrest.

[63] The defendant is entitled to a remedy or remedies. The available remedies include a stay of proceedings, exclusion of evidence (the gun) or reduction of sentence.

Stay of proceedings:

[64] A stay of proceedings is the most drastic remedy a criminal court can impose. It frustrates the truth-seeking function and mortally wounds the prosecution, thereby depriving the public and victims of an adjudication on the merits. It should be imposed only in the clearest of cases, when no other remedy is available or will suffice to address the severity of the breach. In choosing between a stay and another remedy, the Court must take into account the interest of society in having a final decision on the merits: R v Babos, 2014 SCC 16 at para 30-32.

[65] Extreme cases of excessive force have sometimes resulted in stays. These cases usually involve assaults on a detainee who had already been handcuffed or otherwise rendered harmless, or there was other gratuitous or sadistic police conduct: R v Tran, 2010 ONCA 471; R v Bellusci, 2012 SCC 44 at para 31. The present case does not have any of these or similar features. To the contrary, even the defendant admitted that he continued to struggle at least until he was tasered. No violence was inflicted by the police after the defendant was finally restrained.

[66] I do not think the “last resort” and “clearest of cases” standards or the preconditions specified in Babos – including that there be no alternative remedy – are met in this case.

Exclusion of evidence

[67] Exclusion of evidence is as drastic as a stay for the same reasons – it is usually fatal to the prosecution and frustrates a trial on the merits. But exclusion does not carry the high- hurdle preconditions of a stay. Instead, it has its own test – that the admission of the evidence would bring the administration of justice into disrepute.

[68] The threshold requirement is that there be a connection between the Charter breach or breaches and the obtaining of the evidence. That connection can be causal, temporal or contextual. R v Pino, 2016 ONCA 389, [2016] OJ 2656 CA). While there was no causal connection in this case between the breaches and the lawful search that led to the discovery of the gun, I think there is a sufficient temporal and contextual connection to clear this threshold: R v Rover, 2018 ONCA 745; R v Beaver, 2022 SCC 54.

[69] Once the threshold requirement has been satisfied, the court must determine the central issue of whether the admission of the evidence would bring the administration of justice into disrepute. This task is guided by the three-factor analysis established in R v Grant supra.

[70] Turning then to the Grant analysis with respect to the 10b violations: [7] The lengthy delay in facilitating contact with counsel was serious, but there is no evidence or even suggestion that it was deliberate or intentional on the part of police. There would be no reason or benefit to be gained for the police to intentionally delay. In my view the delay in reading the RTCs at the scene was likely just a matter of confusion at a chaotic scene. At the hospital the officers said there was no private room available but there was no good record kept of how many times they inquired or of any alternatives that they considered or pursued.

[71] As for the impact on the defendant’s Charter protected interests; The absence of a causal connection between the 10b breach and the obtaining of the evidence mitigates the impact of the breach on the defendant’s Charter protected interests: Rover para 43. No evidence was obtained nor was the defendant’s legal position altered in any way by the delay. Still, as in Rover, the defendant was denied the “lifeline” to counsel that could assure him that he is not alone and at the mercy of the police – that he’s “got a friend.” He probably knew that anyway; he immediately named the lawyer he wanted to call. There is no evidence that he asked to call a lawyer during the long wait (other than when the RTCs were read) and when the defendant testified at trial he made no mention at all about this delay much less that he was bothered by it. I infer that it had no or limited impact on him.

[72] As for the third Grant factor: The public interest in trial on the merits in a gun case is obviously very high: see R v Omar, 2019 SCC 32 substantially adopting reasons of Brown JA dissenting in the Ontario Court of Appeal: R. v. Omar, 2018 ONCA 975, [2018] O.J. No. 6346.

[73] On balance I am not satisfied that evidence of the gun should be excluded as a remedy for the 10b breaches. The seriousness of the violation was moderate; the impact was low; the public interest is high.

[74] Turning then to the Grant analysis for the section 7 violation (excessive force): There are few reported cases where exclusion of evidence is considered for a section 7 violation of this type. The remedies considered seem to be either a stay or reduction of sentence. This is probably because section 7 violation cases do not necessarily involve the obtaining of evidence at all. But there is no reason in principle that I can think of why exclusion of evidence cannot be a remedy to be considered, provided the necessary connection to the obtaining of the evidence exists.

[75] The Charter infringing conduct was very serious. The facts speak for themselves. The impact on the defendant’s Charter -protected right to security of the person was direct and substantial. Both criteria favour exclusion. The public interest in adjudication on the merits favours admission, but that third factor can rarely if ever tip the balance in favour of inclusion where the other two factors strongly favour exclusion: R v McGuffie (2016) CCC3d 486 (Ont CA). [8]

[76] I have also considered that the gun is real and reliable evidence and that it was likely discoverable had the Charter infringement not occurred. However, I don’t think discoverability has the same significance in a section 7 breach as it does in a section 8 search context. The essence of the section 7 infringement is that the defendant’s security of the person was infringed or denied, not that some evidence was discovered.

[77] On the facts as I have found them and the law as I understand it, the defendant has met the test for exclusion under 24(2) as a result of the section 7 violation.

Reduction of sentence

[78] The alternative remedy of reduction of sentence is available and has many qualities that commend it. Unlike a stay or exclusion of evidence, it is a particularly apt response to a case of mistreatment, since both the Charter infringement and this remedy relate to the treatment or punishment inflicted or imposed upon the defendant. There is a natural synchronicity between the two that is absent in the other two remedies. This enhances its appropriateness.

[79] Further, reduction in sentence is highly flexible allowing the court to make as little or as much allowance as appropriate to balance the competing interests. By contrast, a stay or exclusion of evidence is an all- or-nothing remedy that often vindicates the rights of the accused but sacrifices legitimate public interests: R. v. Bellusci, 2012 SCC 44, [2012] S.C.J. No. 44 at para 18. In short it can be an undeserved windfall to the defendant while giving insufficient weight to society’s interest. This interest is particularly strong in this case having regard to the proliferation of firearm violence in this community: see R v Omar infra.

[80] In my view a reduction of sentence is the most appropriate and just remedy having regard to all of the circumstances of this case. It is preferable to exclusion because it provides a better balance between the competing interests.

Can I choose between these remedies?

[81] There can be more than one remedy that is just and appropriate in the circumstances of any case. Here I have found above that the defendant has met the test for exclusion of evidence, but also that reduction of sentence is a more just and appropriate remedy. This raises a neat question – is the defendant entitled to the remedy of exclusion since he has met the test? Or can I simply pass over exclusion and choose what I regard as the more just and appropriate remedy?

[82] With respect to 24(1), the Supreme Court of Canada in the early days of the Charter observed in R. v. Mills, [1986] 1 S.C.R. 863, that “It is difficult to imagine language which could give the court a wider and less fettered discretion.” This has been repeated by the Supreme Court and the Court of Appeal numerous times since: see for example R v Donnelly, 2016 ONCA 988, [2016] OJ No. 6681 at paras 145-9; R v Nicholas, 2017 ONCA 646 at paras 56-7. As a general proposition then, this wide discretion must permit a trial Court to choose between available remedies when both are considered just and appropriate.

[83] More specifically with respect to exclusion of evidence, the Supreme Court of Canada in R v Bjelland, 2009 SCC 38 held that the trial judge had erred in excluding evidence instead of choosing a lesser remedy. On its face this would appear to be high authority to permit me to choose sentence reduction over exclusion in this case. However, Bjelland was an unusual case where the exclusion was ordered as a remedy under 24(1) for late disclosure of the evidence. Alternative remedies including a simple adjournment with disclosure order were readily available. Sentence reduction was not in the picture.

[84] The present case is quite different. I can’t choose a remedy of reduction of sentence unless the proceedings are going to have a sentencing stage and that stage will not be reached unless and until there is a conviction. There can’t be a conviction unless the evidence is admitted, but it can’t be admitted because it has been determined by me through the Grant analysis that to do so would bring the administration of justice into disrepute.

[85] Accordingly, whatever be the general discretion to choose between remedies, it can’t be exercised here. The evidence of the gun must be excluded.

Conclusion:

[86] The defendant is found not guilty of all charges except count 10 (resist arrest).

November 2 2023 B Duncan J

Zaire Puil for the defendant: J Bellehumeur, for the Crown

Footnotes

[1] There was evidence that the defendant or Ms. Shaw proposed that her friend, who had a licence, could come and drive the car. But she would not have had the permission of either Enterprise or Ms. Payne and would not be insured: Conners v. D'Angelo, 2019 ONCA 905

[2] I understand that warning is recommended primarily so other officers can stand clear. But it also would serve as a caution to the subject to surrender to avoid soon to be delivered pain. It would be similar to a warning like “Stop--or I’ll shoot!”

[3] Alternatively, they could seek the detainee’s consent to waiting until later to speak to counsel.

[4] This “correspondence test” is a bit of a circular exercise. In effect, it is racial profiling if it corresponds to racial profiling.

[5] He said he was spooked by so many police cars arriving. The timeline establishes that only three cars were there when he fled – the original police car with M and P ; next female officer Gray and thirdly Faria had just arrived when T bolted. He also said he became nervous when he saw them putting on gloves. I don’t think any officer was asked about this. It was December.

[6] As for knowledge that it was loaded, someone in sole possession of an item can be taken to be aware of the characteristics of that item. I adopt the reasoning of my colleague McPherson J in R v Ali unreported January 18 2023 at para 208-210

[7] I realize that Charter breaches should be considered cumulatively in determination of remedy. But I have kept them separate for the purpose of analysis and it is unnecessary to consider them cumulatively as I have concluded that the section 7 violation on its own is sufficient to be eligible for exclusion.

[8] There may be reason to believe that this McGuffie rule is fading or losing its rigidity: R v Beaver, 2022 SCC 54 at paras 134-5 : R v Omar, 2019 SCC 32. But Beaver was a case where only one of the first two Grant factors strongly favoured exclusion. McGuffie was cited with no apparent disapproval. I think I am still bound to follow McGuffie.