Court File and Parties
COURT FILE NO.: CR-16-70000694-0000 DATE: 20170501 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Neville Golwalla, for the Crown Respondent
- and -
CHRISTOPHER GOULBOURNE Luc Leclair, for the Defendant/Applicant Defendant/Applicant
HEARD: March 13-17 and April 3-4, 2017, at Toronto, Ontario
Michael G. Quigley J.
Reasons for Ruling
Re: Charter, ss. 7 and 24(1) Abuse of Process
[1] Christopher Goulbourne was charged with having committed four serious offences on December 9, 2014 in the city of Toronto. They included robbery while armed with a firearm, use of an imitation firearm while committing an indictable offence, breaking and entering into a dwelling house with intent to commit an indictable offence, and having choked the victim, contrary to sections 343 (d), section 85(2), section 348(1)(b), and section 236(a) of the Criminal Code, respectively.
[2] On January 27, 2015, seven weeks later, Mr. Goulbourne was in custody at the Toronto East Detention Centre (TEDC) for a different armed robbery, when he was arrested and charged that day with these new charges. As a result, he was required to attend at College Park the following day for his first appearance on these charges. He alleges here that while he was in custody at the College Park Courthouse he was assaulted and “beaten” by correctional services and court services officers.
[3] On April 13, 2017, Mr. Goulbourne pleaded guilty before me to simple robbery, use of an imitation firearm, and breaking and entering relating to the December 9, 2014 offences. The last charge, of choking, was withdrawn by the Crown. The parties prepared and submitted an Agreed Statement of Fact for these offences.
[4] On this application, however, Mr. Goulbourne now seeks a stay of the December 9, 2014 charges on the basis of (i) having been assaulted without reason by court officers at the College Park Courthouse; and (ii) the alleged failure of the police to investigate that incident. He says that those actions and inactions violated his rights under section 7 of the Canadian Charter of Rights and Freedoms, and on that basis claims a stay is warranted as the only appropriate remedy against this alleged violation of his Charter rights.
Background Facts
(i) Background to the underlying offences
[5] The Agreed Statement of Facts on the underlying offences establishes that on Tuesday, December 9, 2014 just before 9:00 p.m., police were dispatched to a robbery/home invasion call at 257 Sherbourne Street, Apt #328. Once on scene, officers spoke with the victim, Michael Granderson. Mr. Granderson told police that at approximately 8:30 p.m. he was sitting at his computer listening to music when he heard a knock at his front door. He ignored the knock since he was not expecting a visitor. Approximately two minutes later he heard knocking for a second time. As he went toward his front door, it was kicked in.
[6] Four males entered his apartment. Those males were later identified as Kesworth Bassaraugh, Lennox Douglas, Roland Walker and the applicant, Christopher Goulbourne. Mr. Bassaraugh produced a handgun, pointed it at the victim and repeatedly threatened to shoot him. Mr. Goulbourne demanded money, jewelry and other valuables while the gun was pointed at the victim. As the victim began to hand over his property, he was punched, kicked and choked by Mr. Goulbourne. Mr. Douglas and Mr. Walker searched the victim’s residence for other valuables, taking a number of baseball hats and the victim’s running shoes.
[7] In order to try to escape, the victim told the males that he had some money by his laptop computer located at the rear of his apartment near the patio door and balcony. When given the opportunity to retrieve that money, the victim ran for his balcony and jumped over the ledge. He waited for the four males to leave his apartment before pulling himself back up over the ledge onto his balcony. He then went to his neighbour’s apartment and called 911.
[8] Officers attended the scene and located surveillance video of the lobby, exit points and the elevator area of the building. The surveillance video shows the four males waiting in the vestibule area of the lobby at approximately 8:23 p.m. None of the four males were masked. Their faces, and specifically Mr. Goulbourne’s face, were readily observable on the security footage. None of the males were guests of any of the tenants in the building.
[9] The video shows the same four males loitering in the vestibule area until a tenant with a fob access key opened the security door. The four males then followed the tenant into the building. They were observed taking the elevator to the 3rd floor – the floor where the victim lived. At approximately 8:44 p.m., the same four males are seen on the surveillance video fleeing the building down a set of stairs and out a side exit. Mr. Douglas had a pair of the victim’s shoes in his hands as he exited. The shoes were later recovered from Mr. Douglas’ home after the execution of a search warrant.
[10] A number of baseball hats stolen from the victim during the home invasion were discarded in the stairwell from which the four males exited as they made their escape. The baseball hats were recovered in that stairwell.
[11] On arrest, Mr. Douglas gave a statement to police corroborating the victim’s version of events. Surveillance stills from 257 Sherbourne Street were shown to Mr. Douglas. Mr. Douglas identified himself, Roland Walker and Kesworth Bassaraugh from the images. Following his arrest, Kesworth Bassaraugh also provided a statement to police. Mr. Bassaraugh identified himself in the surveillance stills from 257 Sherbourne Street.
[12] The stolen property included an 18 karat gold bracelet with an eagle pendant on it valued at $1,500.00, a silver ring with diamonds valued at $600.00, a cell phone valued at $150.00, and the pair of running shoes. As a result of the assault, the victim suffered soreness to the right side of his face and the right side of his ribs, but he did not require medical attention.
(ii) Background to the alleged Charter breach
[13] On December 16, 2014, the applicant was arrested in relation to a bank robbery with a firearm, entirely separate from these events. He was held pending a show cause hearing. Mr. Goulbourne’s involvement in this earlier home invasion robbery came to light while he was in custody on the bank robbery charges. As noted, he was advised of the new home invasion related charges and was brought to the College Park Courthouse on January 28, 2015 for his first appearance.
[14] Following his court appearance in the early afternoon on January 28, 2015, the applicant was placed in a general holding cell with a number of other prisoners. At about 3:45 p.m. he was observed conversing or arguing loudly with the other occupants in the cell. The applicant characterized it differently in his testimony. He acknowledged he was yelling through a vent to talk to prisoners in the female holding cell next door. He also acknowledged he was making a lot of noise, but he said he was simply talking and then entertaining himself by making rap music and “communicating” with the other prisoners. He acknowledged he was making the beat for his rapping by banging with his hand on the plexiglass wall that was on the outside of the cell bars of the main general male holding cell.
[15] He was told by one of the corrections officers, Officer Cummins, to stop making this noise but he continued “making his music”, as he described it, “rapping” a song with provocative words, and continuing to bang loudly on the plexiglass. While testifying, Mr. Goulbourne gave a demonstration of how he had been rapping that day. While banging his hand on the edge of the witness box he performed a verse of the song “Awwsome [sic]”, a rap song recorded by a performer named “Shy Glizzy”:
Swish, I’m balling, I’m so awesome, Old bitch keep calling, She think I’m awesome, Jackboys wanna rob me, I’m so awesome, Out here like a possum, I’m so, I’m so awesome I’m so awesome, I’m so awesome…
By his own admission he was making a lot of noise, as he was “entertaining” himself and the other prisoners and stated plainly that he was not about to stop regardless of what the guards said.
[16] Officer Cummins reported this conduct to Supervisor Nicolai Barbita. Officer Cummins was concerned that three of the other inmates did not appear to appreciate Mr. Goulbourne’s “music” and were becoming agitated. He was concerned about an altercation developing. Supervisor Barbita received this information in his office and then accompanied Officer Cummins back to the male holding cell. By the time he got there a minute or two later an apprehensive silence had overtaken the other inmates, the kind that he said frequently precedes a fight.
[17] Supervisor Barbita determined that the applicant should be moved in order to prevent an escalation between the applicant and the other prisoners who were becoming agitated. Assisted by Officer Cummins, the applicant was removed from the male holding cell and placed on his own in cell 5-3, a separate cell located about thirty feet away. Cell 5-3 was a small space, no more than 6’ wide and 10’ deep, with a toilet/sink unit in the back left corner and a concrete bench, about 3’ long and 18” wide, situated along the right wall, just inside the sliding cell door. The applicant claimed they told him he was moving because he had a lawyer interview. The officers denied ever telling him that.
[18] While Mr. Goulbourne was evidently compliant as they walked him to cell 5-3, he was not happy about being separated from the other prisoners. In moving him to a segregated cell, Supervisor Barbita had effectively reclassified his status as a “P-1” prisoner, to a “P-4” prisoner, with the higher security that status entailed, including double police escorts and the wearing of handcuffs and leg restraints when outside the cell. That reclassification was formalized after the events that followed.
[19] After about ten minutes had passed, at about 3:56 p.m., Mr. Goulbourne began to display his displeasure at having been segregated by continuously kicking and punching and rattling the door of cell 5-3, making a considerable amount of noise. He said he was just continuing his rapping music. In response, Supervisor Barbita left his office a second time and attended to Mr. Goulbourne’s cell and attempted to persuade him to stop. He told him he didn’t want any trouble from him. Supervisor Barbita testified that the applicant threatened that as soon as his cell door was opened, he would punch the first court officer he saw in the face.
[20] Mr. Goulbourne remained in that single cell, undisturbed by the court officers, until a further ten minutes had passed but then, at about 4:05 p.m., it came to the officers’ attention that Mr. Goulbourne appeared to be causing water to overflow from the combination sink/toilet unit in cell 5-3. The water had begun to flow partially across the floor of the cell and eastward into the hallway outside of the cell area. Because of the possibility of a slip and fall on the wet floor, this created a health and safety issue for the applicant, and for the officers and the other prisoners in the cells. Officer Cummins observed this flow of water and reported it to Supervisor Barbita.
[21] Supervisor Barbita returned a third time to the applicant’s cell. He told him that he would have to be relocated in order to allow the officers to deal with the flooding, but the applicant refused to relocate voluntarily. He cursed at Supervisor Barbita and repeated his threat to assault a court officer. This caused Supervisor Barbita to go back to the office, gather together four other officers – Cummins, Hong, Huynh and Smith – to return to cell 5-3 to assist him in extracting the applicant from the flooded cell in order to relocate him to another cell.
[22] As the five officers approached the cell, Officer Cummins said he gave clear instruction to the applicant from outside cell 5-3, directing him to kneel on the bench inside the cell so that officers could enter and put restraints on him, but the applicant did not comply with Officer Cummins’ instruction. Instead, the applicant retreated to the right rear area of the cell and took up a fighting stance, raising both arms and clenching both of his fists.
[23] At this point, Supervisor Barbita ordered one of the officers to open the cell door for the four officers to enter and restrain Mr. Goulbourne. Officer Cummins entered the cell first, heading left to approach the applicant on his right side as he faced them from the back corner of the cell. As he did, however, the applicant with fists up started to move quickly forward and lunged at Supervisor Barbita. Supervisor Barbita believed from having observed Mr. Goulbourne’s combative stance and demeanour that he was going to be assaulted, so as he saw the applicant move towards him, he took two steps forward and delivered two punches with a closed fist to the right side of the applicant’s face in self defence. The other four officers then attempted to take physical control of the applicant, taking him to the ground in the process.
[24] The officers’ testimony was that the applicant was lying face down on the cell floor at that point, half in and half out of the cell, as they struggled to restrain him. However, the applicant continued to disregard the officers’ directions to stop resisting. He actively continued to resist the officers’ attempts to place him in restraints, and was struggling to raise himself off of the floor. The officers acknowledged in their evidence that they made strikes to the sides of the applicant’s torso as they tried to pry his hands from underneath him in order to put handcuffs and leg restraints on him. One officer used his baton placed in the crook of the applicant’s right elbow to assist in prying his arm free and getting it behind his back where handcuffs could be applied.
[25] Once he was under their control and in restraints, the officers lifted Mr. Goulbourne to his feet. He was then removed from cell 5-3 to cell 5-4 on the other side of the cells area, next to Supervisor Barbita’s office. Supervisor Barbita could not recall whether he cleaned up the water in cell 5-3 himself or whether he called for other support staff to do that job.
[26] Once he was transported to the new cell, Mr. Goulbourne continued to curse and threaten the officers, and then he began to hit his head against the wall of the cell, as Supervisor Barbita described it, as a frustrated child might act. At about 4:20 p.m., Supervisor Barbita approached the applicant in the new cell and observed this conduct, as well as redness and swelling on the applicant’s face at his right eye area where he had punched Mr. Goulbourne twice. Supervisor Barbita asked the applicant if he required medical attention. The applicant told Supervisor Barbita to “f--k off.” He declined medical attention and repeated his threat to Supervisor Barbita, stating that he did “not need a doctor, but you will.”
[27] Approximately ten minutes later, at about 4:30 p.m, Supervisor Barbita contacted Sgt. Ellis at the TEDC to notify her of the incident. Supervisor Barbita and Officer Murphy then completed an Occurrence Report, a Supplementary Report and an Injury/Illness Report. All were produced in evidence.
[28] Sometime around 8:00 p.m. Mr. Goulbourne was transported back to the TEDC. However, he claimed that as he was getting into the paddy wagon for the return trip, he had difficulty getting into the wagon because of his leg restraints, but that the officers who were escorting him shoved him into the paddy wagon and slammed the metal door against his foot three times.
[29] At 8:30 p.m., Sgt. Ellis photographed Mr. Goulbourne’s injuries. They consisted of (i) his right eye being swollen shut; (ii) some redness and minor swelling to his face in the forehead area; and (iii) a bruise and small cut of no more than 1-2 cm to the inside of his left foot. No other foot injuries were observed. He was able to walk without assistance, but Sgt. Ellis did notice he was limping and recorded it in her report. He was transported to the hospital for medical treatment at approximately 8:50 p.m.
[30] At the hospital his injuries were documented, and he was given a prescription for Tylenol 2 tablets for pain, to be taken as needed.
[31] Following his return from the hospital at 11:45 p.m., and after being asked specifically if he wished to pursue the matter, Mr. Goulbourne advised Sgt. Daley at the TEDC that he wished to pursue criminal charges against the College Park officers. Sgt. Daley contacted the Toronto Police at 12:10 a.m. on January 29, 2015 to report this. The audio recording of that call was made an exhibit on this hearing. Because it was so late at night, Sgt. Daley’s notes reflect that TEDC officials were to contact Toronto police to take a statement from Mr. Goulbourne the next day when he returned from another court appearance in order to commence their investigation, but in fact that was never pursued. Corrections officers never made that call the next day, but neither did Mr. Goulbourne ever speak to other officers again about pursuing the matter further.
Assessment of the evidence and credibility of the witnesses
[32] The evidence on this application essentially described two different versions of events. One is Mr. Goulbourne’s version which was that :this was a gratuitous beating in which I suffered greatly,” and the other was the version provided by the court officers that they used a level of force that was necessary in the circumstances because of the disruptions and aggression that Mr.oulbourne was exhibiting. It is the assessment of those factual narratives, and my assessment of the credibility and reliability of the witnesses, that will guide the determination of this application.
[33] The general description of events is consistent as between the version of events related by Mr. Goulbourne and the version that emerges from the testimony of the court officers. There is no doubt that Mr. Goulbourne was put in the general holding cell on the afternoon of January 28 when he returned from his court appearance, or that he was yelling through the vent into the female holding cell or that he was rapping and banging loudly on the plexiglass in cell 5-6. There is no dispute that Officer Cummins told him to stop, that he did not, and that as a result Officer Cummins and Supervisor Barbita moved him to cell 5-3. There is no inconsistency in the evidence that Mr. Goulbourne was very unhappy about having been moved and testified that he continued his rapping and banging in that cell, or that Supervisor Barbita came there and told him to stop. The differences are in the reasons why those things happened and what results ensued.
[34] When he was still in cell 5-6, Mr. Goulbourne was told to “knock it off” and stop rapping and banging on the plexiglass wall. He said that was what was aggravating the officers, not what they described as the increase in tension in the general population area of cell 5 - 6. Mr. Goulbourne said “The court officers didn’t like my rapping which was actually having a cathartic effect on everybody. I was entertaining myself. I was entertaining other people, and the court officers took great offence to this.” However, while he may have thought he was entertaining the other inmates, the evidence plainly shows that the officers were concerned about increased agitation that they testified was being caused amongst the inmates, three in particular. This is what precipitated Supervisor Barbita and Officer Cummins going to the cell to take Mr. Goulbourne out and remove him to a separate cell. Supervisor Barbita said “I told him to get out and let’s march him up to the other one, and I said I don’t want any trouble from you.” I accept the officers’ evidence that they removed the applicant from 5-6 because he was agitating other inmates. As explained further below, while the applicant may have believed the officers took offence to his rapping, it makes no sense that the court officers would have taken the actions they did if the other prisoners in cell 5-6 were not in fact being agitated as they testified.
[35] Given the way Mr. Goulbourne testified about how he felt about being in that institution setting, and about the distinction between being classified as P-1 and then P-4, and the importance for him to remain classified as P-1 and not to be separated from the general population, it is evident that Mr. Goulbourne had a motive to be angry with Supervisor Barbita because it was obvious he was the one making the decision to remove him from cell 5-6 and segregate him.
[36] Mr. Goulbourne’s position that he did nothing, was compliant and then beaten up for no reason is defeated on his own evidence. He plainly admits he was not going to follow the orders to be quiet when he was in cell 5-6 and he continued to be obstreperous and confrontational after being moved to cell 5-3. He was likely particularly aggravated by Supervisor Barbita’s decision to segregate him, and actually threatened him on the second visit by the Supervisor before the water started to flow, and it became necessary to move Mr. Goulbourne.
[37] The evidence of the court officers was that when they came to cell 5-3 to move him, Mr. Goulbourne took a fighting stance in the centre back area of the cell. In this context, it is important to remember that an assault as defined in section 265 of the Criminal Code does not only include touching beyond a de minimis level without consent. Section 265(1)(b) says: “a person commits an assault when he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose.”
[38] On the evidence of the court officers, Mr. Goulbourne was committing an assault because he had taken a fighting stance and sent a message. This conduct continued as the cell door was opened. This is consistent with earlier actions, because he had previously shown aggression that day, not just towards court officers, but also towards the inmates in the general holding cell. As Officer Cummins stated, “that's why we’re moving him in the first place, for his safety and everybody else’s safety because it looked like something was a - brewing.”
[39] I found there to be a number of credibility problems with Mr. Goulbourne’s evidence about the entire series of events and what transpired afterwards. Those credibility problems arise from other evidence and from the application of common sense.
[40] There were a number of matters that did not enhance his credibility. The first was Mr. Goulbourne’s story as it related to his glasses. He had his glasses with him that day and is seen in one of the video surveillance clips wearing them at the TEDC. He testified that he put them on the bench inside cell 5-3 and then stood up and was reaching for them just before he says he was beaten by the officers.
[41] I accept that he could have and likely did put his glasses down on the bench and certainly that would be the only surface inside the cell where he could put them, other than on the floor. But there was no explanation provided by the applicant for why he put those glasses there. Even if he did not need them to see all the time, since he had them on when he left TEDC he would have presumably continued to wear them. But what his evidence does do is corroborate all the officers who say he was standing on his feet just before they entered the cell, although he denied he was in a fighting stance and thereby committing an assault by virtue of the fighting stance he was taking. However, it makes more sense that he would he do that without his glasses on, because on his own evidence in - chief and before he was cross - examined, he described them as Versace glasses and in cross - examination he acknowledged they were expensive and important to him. The action of placing the glasses on the bench is more consistent with him taking them off to protect them in advance of the altercation that was to follow and that he instigated.
[42] Then, once they opened the cell door, a number of officers came in to restrain and move him, and on the evidence of all of them, he was looking for a fight. He assumed an assaultive mode and conveyed that intent to the officers who perceived it. Once the officers entered the cell, he went after the officer who he believed was responsible for him being in cell 5 - 3, which Mr. Goulbourne acknowledged was not where he wanted to be. He went after the officer who was responsible for reprimanding him in cell 5 - 6 in front of the other inmates and removing him to cell 5-3. That was Supervisor Barbita.
[43] All of the court officers described the various punches that were thrown, including Barbita’s, as being “distractionary strikes”, consistent with the use of force chart that was Exhibit 17. But interestingly, Supervisor Barbita did not use that expression. He testified that “I punched him in self - defence, because I perceived the threat coming at me and I reacted.” He was not trying to distract Mr. Goulbourne. He was trying to defend himself and that is why he hit Mr. Goulbourne twice with two quick punches to his right eye.
[44] Mr. Goulbourne testified regarding the consequences of his injuries, and he essentially said he was better within a couple of weeks. However, the medical evidence was inconsistent with him having sustained the severe beating that he testified he had received. I note as well that he changed his evidence between chief and cross-examination. In the ultimate result he said that all aspects of the injuries were gone within a week or two, but there was a difference in terms of what the immediate aftermath was between how long the swollen eye caused him to have difficulty seeing. In chief, he said that had lasted for one day but in cross - examination it was four days. Regardless of that important internal inconsistency, the fact is that he was healed from his injuries within a couple of weeks at the most.
[45] The medical records showed that in his self-report at the hospital, the applicant referred to an altercation and that he had been punched “multiple times” on the right side of the face and he admitted to right eye pain. There was a moderate amount of swelling to the right side of his face as a blister formed under his right eye. The doctors observed that the eye was swollen shut and that the pupil was difficult to assess but the left pupil was reacting well to light and Mr. Goulbourne was moving all extremities. He appeared to have a right side headache, which is not surprising, but there were no complaints of any other particular injury.
[46] On January 30th, there was a hospital follow - up “re: altercation, injury to right face, seen in the ER, X - rays”, but there was no concern raised by those X - rays and the record stated “complains of pain to right side of face - improving.” Two days later, “it’s getting better.” There were a couple of other references in the record to unexplained medical acronyms, and a reference to “visual disturbances”, but “zero, other concerns.” These records significantly undermine the credibility of Mr. Goulbourne’s evidence relative to the severity of the injuries he claimed to have sustained in allegedly receiving 10 to 15 punches to the head and then having been repeatedly kicked by the officers once he was on the ground.
[47] Mr. Goulbourne testified that he was subjected to 10 to 15 punches to his head and other punches and kicks to his torso, but the suggestion that he was hit that many times is belied by the photographic evidence of his injuries and that conflicting evidence undermines his credibility.
[48] Mr. Goulbourne’s credibility is further undermined by his evidence relating to the paddy wagon incident. The photographic evidence, the medical records and plain common sense cause me to reject this evidence. Mr. Goulbourne described a gratuitous slamming of the paddy wagon door on his leg when he was shackled and vulnerable, not once, not twice but three times, and yet his only evident injury was a small cut less than one half inch in size, and a small surrounding bruise.
[49] Further, there was no bilateral injury, as one would expect if his foot was being slammed on one side by the metal door of the wagon when the other side was the equally immoveable door jam. It only makes sense that a foot or ankle wedged between those two steel objects would be injured on both sides, and frankly, would more likely have resulted in broken bones, not merely a small cut and a bruise. Moreover, there is nothing in the medical records of any observation of injury by the medical staff or a complaint about that at that time by Mr. Goulbourne.
[50] Frankly, the evidence shows it was a relatively minor injury and only on one side of the foot. That obvious fact cannot be reconciled with the vicious actions that Mr. Goulbourne described. What does make sense is that such a minor injury could and I find was more likely caused in the course of the scuffle and trying to restrain him with shackles, or from the possibility that an officer stepped on his foot during the course of that altercation.
[51] A further reason to reject Mr. Goulbourne’s evidence about the alleged assaults arises from what happened in cell 5-6 before the confrontation in cell 5-3. He was in the general population and insists that he was not agitating the other inmates as the court officers say they observed. That was Officer Cummins’ evidence. But once again, if everyone was getting along and was pleased with Mr. Goulbourne’s “music” as he seemed to think they were, it would make no sense for an officer like Cummins to disturb that. He would only have needed to intervene and report the matter to Supervisor Barbita if the banging on the plexiglass and the loud rapping and shouting through the vent into the female holding cell next door was actually causing agitation to the other inmates as he testified. While the rapping music might also have been annoying to him, in my view Officer Cummins would not have taken the steps he did for that reason alone. Court officers are used to inmates making noise in the cells. I’m sure some of the noise in the cells every day could be annoying to the officers, but they are accustomed to it, and in my view, Officer Cummins would not have taken steps to de-escalate the situation unless the other prisoners were indeed becoming agitated, as both he and Supervisor Barbita testified.
[52] Defence counsel suggested there was material inconsistency between the evidence of the officers relative to their locations within the cell and Mr. Goulbourne’s position. Counsel submitted that these alleged contradictions means that their evidence cannot be believed, but I reject that contention entirely. Officer Cummins entered the cell first and was on the left. The applicant was variously shown in the centre rear or at the rear of the cell, but when one looks at Exhibits 16, 19 and 20, the various diagrams that witnesses made of cell 5 - 3, their markings are really virtually the same. This is especially so when one considers that the “x’s” or other marks made to show the location of the participants are very small in the context of the actual size of the persons they represent, and the space those five individuals, including the applicant, would have occupied in that very small 6’ by 10’ cell. They do differ on what might be described as the minutia of details, but their markings also reflect what they saw from their differing vantage points and taking account of the order in which they entered that small space. As well, this was a dynamic and rapidly unfolding situation.
[53] In contrast to Mr. Goulbourne’s evidence, I found the evidence of all of the court officers to be credible and reliable, showing no exaggeration, and also reflecting no collusion between them as the defence also suggested. There were sufficient differences between their testimonies that showed that each had a different vantage point of what transpired at different points in time. I particularly found Supervisor Barbita to be a balanced, fair, credible and reliable witness.
[54] One example of Supervisor Barbita’s credibility as a witness related to the comment about Mr. Goulbourne having a mental health issue. I found that Supervisor Barbita’s credibility was enhanced by the way he testified on the mental health issue that was referenced in the occurrence reports. Initially, in the written materials, Mr. Goulbourne was described as having been observed by the court officers to be bouncing his head off the wall and was expressing frustration after the incident in cell 5 - 3. To the extent there was redness on the applicant’s forehead, that conduct might have explained it, and it might also have suggested that some of his injuries might have been self - inflicted.
[55] However, Supervisor Barbita’s evidence clarified that would be an exaggeration because he testified that this conduct was more childlike rather than a self - infliction of injuries. Nevertheless, it also explains why he might have been concerned about mental health issues. He did not know Mr. Goulbourne, but might reasonably have been concerned about mental health issues when considering that he was disruptive and aggressive, that there was a conflict, and he was observed in cell 5-4 knocking his head off the wall in a childlike fashion. Looked at in its entirety, it becomes understandable how Supervisor Barbita might well have been concerned about the applicant’s mental health, and accordingly saw fit to mention it in his occurrence report.
[56] In summary, Mr. Goulbourne’s version of events was that he was a random target of police brutality on an otherwise normal day of court proceedings, simply because he was entertaining himself and the other inmates and that agitated the officers to the point where they became threatening and menacing and decided to teach him a lesson with a big beating. That is simply not a credible story.
[57] By contrast, Supervisor Barbita’s clear explanation of events, supplemented by the evidence of the other officers from their various vantage points at sequential moments in time, is credible. Further, Supervisor Barbita was able to demonstrate the application of Exhibit 17, the use - of - force model that they train on, and explain how he was acting in an increasingly agitated situation and how his reactions and those of the other officers became increasingly forceful as the circumstances arose that called for and indeed specifically permitted such an increased response.
[58] Finally, while it is certainly not a decisive factor in my assessment of Mr. Goulbourne’s testimony given my other findings that his evidence was not credible, I am permitted to take his record into consideration in assessing his credibility. His criminal record, consisting of numerous crimes of dishonesty and crimes of violence, including now in particular the predicate offences that underlie this proceeding, reflects negatively on his credibility.
Analysis
[59] Section 7 of the Charter provides that everyone has the right to life, liberty and security of the person, and the right not to be deprived of those rights except in accordance with the principles of fundamental justice. Subsection 24(1) provides that where a person’s Charter rights have been infringed or denied, they may apply to the court to obtain such remedy as the court considers appropriate and just in all of the circumstances.
[60] Here, the applicant seeks a stay of these proceedings, and the very serious charges to which he has pleaded guilty, as a result of the assaults he claims were perpetrated against him by the correctional officers at the College Park courthouse. In order to obtain that remedy, the applicant bears the burden of proof to demonstrate on a balance of probabilities that his section 7 Charter rights were actually violated, and if he is able to do so, to then demonstrate that a stay is the appropriate remedy to be granted.
[61] The burden to establish that a stay is the appropriate remedy is an onerous one, because a stay of proceedings is the most drastic remedy a criminal court can order. The law is clear that a stay of proceedings is rarely granted because it permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on its merits. R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 30.
[62] There are two categories of cases where a stay can be considered. The first is where it is claimed that the conduct of the state compromises the fairness of the accused’s trial. Under the second or residual category, the claim is not that state misconduct threatens the fairness of the accused’s trial, but that it instead risks undermining the integrity of the judicial process. R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31. In this case, the applicant relies upon the residual category, but regardless, the test to be applied in determining whether a stay of proceedings is warranted is the same for both categories. It consists of three requirements: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 32:
(i) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial or its outcome”;
(ii) There must be no alternative remedy capable of redressing the prejudice; and
(iii) Where there is still uncertainty over whether a stay is warranted after the first two steps, the court is required to balance the interests in favour of granting a stay, such as denouncing state misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”.
[63] Within this framework, I proceed to first consider whether the applicant’s section 7 Charter rights were breached, and then, if I find that they were, I will consider whether a stay is an appropriate remedy. Before doing so, however, it should be noted that a stay is not the only remedy that can be granted in circumstances where the court finds that an applicant’s section 7 rights have been violated.
[64] R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 36-37 shows that if the court finds a violation of an applicant’s section 7 rights, a reduction in sentence may be the more appropriate remedy in the absence of the exceptional circumstances that would merit the granting of a stay. In that case, a drinking and driving case, the accused was excessively punched in the head and ultimately suffered broken ribs and a punctured lung. The officers failed to report or deal with the accused’s injury despite his complaints. The sentencing judge refused to grant a stay but granted the accused a sentence reduction below the mandatory minimum under section 24(1). While the Supreme Court held that a sentence reduction below a mandatory minimum may be available under section 24(1) in exceptional cases with “particularly egregious” misconduct by state agents, the Supreme Court found the misconduct in that case was not particularly egregious. However, the Supreme Court also held that sentence reductions inside the statutory limits are available as a remedy for section 7 breaches. The Supreme Court observed that a sentencing judge may consider Charter breaches in crafting a fit and proportionate sentence, without needing to turn to section 24(1). See also R. v. Donnelly, 2016 ONCA 988, 34 C.R. (7th) 287, at para. 172.
[65] The remedy of a sentence reduction was applied in R. v. Way, 2016 ONSC 5052, at paras. 235-236, where the court found that the accused had been subjected to verbal taunts and punched in the face, but had suffered no lasting or permanent injury.
Were the applicant’s section 7 rights breached?
[66] Providing he acts on reasonable grounds, sections 2 and 25 of the Criminal Code permit a peace officer to do what he is required or authorized to do and specifically permits the use of as much force as is necessary for that purpose. A court officer is a peace officer by definition. The police and court officers are entitled to use force as long as the force used is proportional, reasonable and necessary. As such, it is plain based on the Code provisions and the governing case law that the use of force that is not excessive will not likely amount to a breach of section 7 of the Charter, even if that force gives rise to foreseeable injury. R. v. Pan, 2012 ONCA 581, 292 C.C.C. (3d) 440, at para. 47; and Nasogaluak, supra, at para. 35. In my view, as the following paragraphs will show, the actions of the College Park corrections officers did not breach the applicant’s section 7 rights.
[67] In this case, the evidence shows that Supervisor Barbita was under a professional obligation to address the water seepage or flooding issue in the applicant’s cell, and equally, he was authorized to order the applicant to cease making noise that was having a deleterious effect on other prisoners. As noted, Supervisor Barbita also testified about the use of force chart that was entered as Exhibit 17. That chart graphically shows how police and corrections officers seek to employ lower levels of persuasion and force until the circumstances escalate to a level, as they did here, where an aggressive and agitated inmate was exhibiting threatening conduct both verbally and physically. That conduct, in and of itself, constituted an assault under the Code. In such a case increased levels of force are both necessary and entirely appropriate, provided they are not excessive.
[68] There is no doubt that the court officers were obligated to remove the applicant from his cell in order to address the flooding issue. Given the threats made by the applicant and his refusal to voluntarily relocate into another cell, five court officers approached the applicant’s cell to extract him. Clear instructions were provided to the applicant as the officers approached but the applicant refused to comply with the officers’ directions. The court officers were acting lawfully when they approached the applicant and entered the cell to extract him. The applicant’s refusal to comply with the officers’ directions entitled them to use reasonable force to extract the applicant from his cell and move him to an alternate cell.
[69] The law does not require that the peace officers use the least amount of force possible to effect an arrest or to restrain a non-compliant inmate, and police officers and court officers have the right to ensure their safety in risky and uncertain situations. An officer should not be expected to measure the force used in circumstances like these with exactitude. Some latitude is required for officers who are under a duty to act, especially in difficult circumstances like this one. R. v. Costain, [2013] O.J. No. 2289 (C.J.) at para. 247; R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 73; R. v. Mulligan (2000), 31 C.R. (5th) 281 (Ont. C.A.), at para. 41.
[70] It is my view and I find that the use of force by Supervisor Barbita and the other court officers was reasonable in these circumstances, having regard to:
(i) the exigencies of the situation, specifically the officers’ need to stop the spread of water on the floor of cell 5-3 and to prevent its escape into the hallway;
(ii) the applicant’s repeated threats to cause physical harm to the officers;
(iii) his subsequent refusal to exit the cell voluntarily;
(iv) the applicant’s aggressive stance when the officers approached his cell including the raising of his arms and clenching of his fists;
(v) the applicant lunging at Supervisor Barbita;
(vi) his active resistance while the court officers attempted to gain physical control of him; and
(vii) the applicant’s continued refusal to comply with the officers’ directions.
[71] Finally, it is also plain on the evidence that the applicant’s injuries were relatively minor. He was taken to the hospital shortly after his arrival at the TEDC, as a result of Sgt. Ellis’ direction and to assess if more serious injuries had been sustained. He was returned later that same night. He claimed at one point in his evidence that he could not see for several days, but contradicted himself at another point, saying he could see the next day. Regardless, certainly there was swelling caused to the right eye area that took time to heal and subside, and the injury to his eye was fully healed within ten days to two weeks.
[72] Mr. Goulbourne’s appearance in the witness box beside me showed plainly that his injuries have healed and I observed no facial scarring of any significance that could be attributable to these injuries and he provided no evidence detailing any short-term or long-term effects of his injuries.
[73] A second aspect to the applicant’s complaint and claim of a section 7 Charter breach related to whether and to what extent the matter was investigated.
[74] The evidence shows that Supervisor Barbita spoke to the applicant almost immediately after the altercation, to determine if he would like medical attention. The applicant declined. Supervisor Barbita also contacted Sgt. Ellis at the TEDC to report the incident. Supervisor Kathleen Murphy completed an Injury/Illness Report documenting the incident and the injuries to the applicant. All of these actions show diligence in the completion of all requisite reports to ensure there would be a contemporaneous record of what had transpired.
[75] When Mr. Goulbourne arrived back at the TEDC, Sergeant Ellis completed an Accident/Injury Report and an Inmate Incident Report. His injuries were photographed and he was taken to the hospital. Later that evening at approximately 11:45 p.m., Sergeant Daley confirmed that the applicant wished to pursue criminal charges. Sergeant Daley contacted police at 12:10 a.m. on January 29, 2015. Arrangements appear to have been made to have the police attend on January 29, 2015, after the applicant returned to the institution from a court appearance scheduled for that day.
[76] However, the applicant asserts in his factum that he was not interviewed by the police, as requested. No record was produced to me that would indicate that Toronto police ever came to TEDC to interview Mr. Goulbourne. While this is disconcerting, the failure to have interviewed him does not appear to have been intentional or malicious. Rather, while very unfortunate, it appears instead to have been a simple omission that resulted from the call being made just after midnight on January 29 and a different shift of officers coming on duty the next morning who did not learn of the call made the night before. There was no evidence that Sergeant Daley’s call to Toronto Police dispatch ever actually came to the attention of investigating officers who could have looked into it, and there was no further call made to TPS by any of the TEDC corrections officers to insure that Mr. Goulbourne’s complaint was investigated. Thus, it is true that there was no follow-up but there was no evidence that this was an intentional cover-up as the applicant asserted.
[77] Based on the documentation before me, it appears that the lack of follow-up may be attributable to a miscommunication between the TEDC and the Toronto Police regarding a suitable time to attend the institution and investigate the matter, but the documentation does not indicate any nefarious action by the state in an attempt to prevent the investigation. Further, while there was no actual investigation, the fact that the officers entrusted with the applicant’s care completed numerous detailed reports and appropriately documented his injuries shows that there was no effort made to cover up what had happened.
[78] It is also clear on the documentary evidence provided by the TEDC that the applicant himself never again raised the issue with TEDC staff, nor did he inquire about when the police would be attending to investigate his complaint. If the applicant was unsatisfied with the lack of follow-up regarding his complaint, the evidence showed that options to pursue the matter remained open to him, and that this information was posted, with other inmate-related information, on the wall of the common room in each of the TEDC ranges.
[79] I accept the evidence that the applicant could have and still can make a second request of the staff at the TEDC to contact the police and have this matter pursued. Instead, this application has now essentially served that function because while the applicant has the present ability to advance his complaint and seek to have the incident investigated by the police, plainly he has chosen instead to wait to raise it at this time as the basis for his claim that his Charter rights have been violated. That strategy appears to have been adopted in an attempt to have very serious charges stayed, charges to which he has pleaded guilty, rather than acting on his complaint at any of the earlier opportunities that were available.
[80] Given these circumstances, I am not convinced that TPS’s failure to follow up constitutes a breach of section 7, but if it did constitute a breach, then it would be a very minor one, occasioning little, if any, prejudice to the integrity of the justice system.
[81] I reject the applicant’s claim that the circumstances here bear any similarity to those that were present in R. v. Singh, 2013 ONCA 750, 118 O.R. (3d) 253, at paras. 14, 18, 21, 23-24 and 43. The events of January 28, 2015 in this case were a discrete incident, unlike those in Singh, where the conduct of the police was described by the court as calculated, prolonged and as a skilfully choreographed investigative technique developed by the officers to secure evidence. The circumstances of this case do not involve the deliberate and repeated use of intimidation, threats or violence coupled with a systematic breach of the constitutional rights of detained persons; actions that the court properly condemned by granting a stay of proceedings in Singh.
[82] Neither is it a case like R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509, at para. 22 where the court found that that the court officer provoked Mr. Bellusci and then grievously assaulted him while he was chained, shackled, handcuffed and defenceless, or the circumstances in R. v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131, at paras. 54, 58 and 60. Mr. Bellusci’s injuries included imprints of mesh on his back, deformation of his left forearm and a head injury. This case is also significantly dissimilar from the facts found in Tran where the beating suffered by the accused was characterized as “horrendous” resulting in a broken jaw and permanent injury.
[83] Following the altercation with the applicant in this case, Supervisor Barbita and the staff at the TEDC documented and reported the incident appropriately. The applicant was asked while at the College Park Courthouse if he wanted medical attention and he refused. After arriving back at TEDC four hours after the incident, he was taken to the hospital. This is not a situation akin to the findings in Tran, at para 95 in which the police attempted to cover up their behaviour by destroying evidence and lying.
[84] Finally, to be complete, I find this case to be factually dissimilar from both R. v. Young, 2014 ONCJ 171, at para. 18 and R. v. Dickie, 2014 ONSC 1576, 304 C.R.R. (2d) 296, at paras, 14-15, 19 and 31. In both of those cases, the police failed to address or make inquires into the obvious injury to the accused. Ultimately in both cases the court found that the police either lied about how the injury was caused, ignored the obvious injury and/or attempted to persuade the accused to remain silent about how the injury was caused.
Is a remedy required?
[85] In my view, no remedy is warranted here because no breach has been proven. However, if I have erred in reaching the conclusion that there was no breach of Mr. Goulbourne’s Charter rights in these circumstances, it would remain to consider whether an alternative remedy to a stay is capable of redressing the prejudice to the justice system and, if not, whether society’s interest in adjudicating the case on its merits outweighs the need of the justice system to dissociate itself from the misconduct.
[86] If the conduct of the court officers was unreasonable in the circumstances and breached the applicant’s section 7 rights, which I have specifically found is not the case, I am of the view that a small sentence reduction within the statutory limits would sufficiently remedy the prejudice to the justice system such that a stay is not warranted.
[87] If I am wrong in this, then I would conclude that society’s interest in adjudicating the case on its merits outweighs the need to dissociate the justice system from the impugned conduct. Before this application commenced, the applicant had entered pleas of guilty to robbery with the use of an imitation firearm and breaking and entering in the context of a home invasion. During the robbery the imitation firearm was pointed at the complainant, as the applicant demanded the complainant’s valuables. The complainant was gratuitously choked, kicked and punched by the applicant during the course of the robbery and had to jump off his third-storey balcony to escape the robbers. These charges are extremely serious.
[88] The appropriate remedy requires a consideration and balancing of the need to preserve the integrity of the justice system against the seriousness of these charges. I find that balance weighs significantly in favour of having a final decision on the merits of these charges, a conviction on those charges in light of the applicant’s plea. In my view, a stay could never be appropriate in a case like this given the seriousness of those charges.
Conclusion
[89] I find on the totality of the evidence that the applicant has not met his evidentiary onus to establish on a balance of probabilities that his section 7 Charter rights were violated. He is entitled to no remedy here. In fact, the conduct of the officers evinces an unfortunate but plainly necessary, yet balanced and reasonable approach to dealing with the applicant in a difficult, dynamic and increasingly potentially dangerous situation. The injuries suffered by the applicant, when viewed in context, do not undermine the integrity of the justice system. They are the unfortunate product of a situation that was largely caused by his own conduct and failure to restrain himself and comply with reasonable and precautionary directives and actions of the corrections officers. The application is dismissed.
Michael G. Quigley J.
Released: May 1, 2017
