RULING – APPLICATION FOR STAY OF PROCEEDINGS
COURT FILE NO.: CRIMNJ 1972/16 DATE: 2017 06 14
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN M. Morris, for the Respondent Respondent
- and -
JESSE RIGO R. O’Brien, for the Applicant Applicant
HEARD: May 23, 24, 26 and June 1, 2017, at Brampton
BEFORE: Hill J.
INTRODUCTION
[1] Jesse Rigo has been indicted to stand trial on charges of robbery, wounding, assault with a weapon, break and enter and commit theft ({2), possession of property obtained by crime of a value exceeding $5000, and breach of a probation order.
[2] In a pre-trial motion, heard before me as a Criminal Code Part XVIII .1 case management judge, the applicant seeks a s. 24(1) Charter stay of proceedings alleging breaches of his s. 7 and s. 12 Charter rights by police officers who arrested him. The Notice of Application pleads that:
(1) the unreasonable police use of force amounted to “an egregious act of misconduct”
(2) in circumstances where the applicant was “in the process of surrendering”
(3) when the applicant was tased twice and set upon by a police service dog inflicting “bite wounds” – force used “primarily as punishment”.
[3] The respondent maintained that the evidence demonstrates police use of force which was necessary, reasonable and proportionate in the known circumstances confronting the police officers attempting to arrest Mr. Rigo.
FACTUAL BACKGROUND
The Police Receive a Tip
[4] During the afternoon of February 21, 2016, PRPS Const. Jordan Swan-Tuomi, a member of the force’s Tactical and Rescue Unit (TAC Unit), was dispatched to the Dixie Mall in south Mississauga along with his partner, Const. Wayne Lavine.
[5] From a progression of incoming information, Const. Swan-Tuomi learned that two persons, associated with a jewellery store, had been stabbed at the Mall by a white male, aged 20 to 30 years, having long dark hair and wearing a black jacket and pants, a red and white striped shirt, and red boxers. There was no indication that a 6”-knife with a gold handle had been recovered. The constable considered that the subject was armed.
[6] As of February 21, 2016, Peel Regional Police Service (PRPS) Constable Stefan Arroyo had served as a police officer for about five years. On this date, he was on routine patrol when he received a call to attend a residence at 937 10 th Street in Mississauga.
[7] The constable was informed that the TAC Unit would be attending that location to attempt to apprehend a male suspect, aged 20 to 30 with medium build wearing certain clothing as described in the radio call, who matched the description of the person who had earlier that day stabbed a vendor at the Dixie Mall, with the victim sustaining serious injuries.
[8] Because Const. Arroyo received no information as to whether the weapon used in the robbery had been recovered, he considered the suspect to be potentially violent and dangerous.
[9] Const. Swan-Tuomi informed the court that when the TAC Unit was advised that calls had come in from two taxi companies reporting that a person matching the robber’s description had been spotted at the location of 937 10 th Street in Mississauga, he drove to that location directing responding uniformed officer cruisers to initiate containment on the house to secure the residence pending a possible arrest.
[10] Const. Arroyo arrived on scene at 5:03 p.m. Directed by a member of the TAC Unit to participate in perimeter security around the subject residence by containing the rear of the property, the officer proceeded along the outside of a fence enclosing the rear yard.
[11] On February 21, 2016, PRPS Const. Jeff Vanderspek, a Master Canine Trainer who trains the force’s service dogs, was dispatched at about 4:59 p.m. to assist the TAC Unit to search for and arrest a suspect who had allegedly robbed a jewellery store vendor, stabbing the victim in the stomach causing serious injuries. It was unknown whether the victim would survive.
[12] From information received, Const. Vanderspek understood that a taxi driver had refused to pick up a fare at 937 10 th Street who matched the broadcast description of the robbery suspect. The officer proceeded to the residential address with his seasoned police service dog of eight years’ experience.
[13] Const. Wayne Lavine, a member of the PRPS TAC Unit, was dispatched to 937 10 th Street at about 4:58 p.m. on February 21, 2016 to attempt to locate the suspect of a robbery. The officer understood that the robbery victim had been stabbed and was rushed to St. Michael’s Hospital with serious injuries. There was no information that the weapon had been recovered.
[14] Const. Lavine was armed with a baton or ASP, pepper spray, a taser and his service firearm. Const. Vanderspek was similarly equipped and had his service dog which is considered an intermediate use-of-force weapon.
The Applicant is Cornered
[15] Once on scene, Const. Swan-Tuomi directed a uniformed officer to cover the east and north corner of the subject residence while he and Lavine secured the south and west location. From behind a second TAC Unit vehicle parked across the driveway, the officer yelled an announcement of police presence and a call-out of the home’s occupants directing that they come outside with hands empty.
[16] Const. Vanderspek informed the court that his original intention in going toward the rear of the residence, with two TAC Unit officers right behind him, was with a view to “containment” as he understood that no movement had been observed in the backyard. Accordingly, containment appears to refer to an intention to surround the house itself in which the suspect was believed to be located.
[17] Const. Vanderspek testified that although it was becoming closer to dusk, visibility was not a problem. Const. Swan-Tuomi described daylight conditions. Const. Arroyo recalled the lighting as “day time” when he initially arrived.
[18] Const. Arroyo testified that as he proceeded along the outside of the rear yard fence he observed, through the wooden slats of the fence, a person “crouching” down on the other side in the backyard. As it was difficult to see clearly, the officer climbed the fence, to a “wobbly” perch, and looked over the top. He saw the applicant below. He yelled out to the TAC Unit as they rounded the far corner of the residence across the yard from his location. His heart was racing. To Const. Arroyo’s recall, he yelled out, “He’s right here”.
[19] When Const. Swan-Tuomi heard a uniformed officer yell out that someone was running in the backyard, he began to run behind Const. Vanderspek and his dog toward the yard entering at the southwest corner. On entering the yard, the constable saw no one including a visual search of a tarped structure. When uniformed officers, whose heads were above the fence, directed Vanderspek and him to a pile of garbage at the north end of the yard, the officer followed Vanderspek in that direction, repeatedly yelling out, “Police. Drop the knife”.
[20] Const. Lavine intended to provide support for Const. Vanderspek and his service dog as they entered the backyard of the residence. Const. Vanderspek took the lead position in entering the rear yard. Const. Lavine recalled a couple of officers, who were looking over the fence, calling out “movement” referring to a location behind some wood or scrap metal.
[21] Const. Vanderspek has no recall of any uniformed officer on the fence. He did recall radio communication of a uniformed officer seeing movement in the backyard. The witness has no recall of an officer saying that the suspect is “right here”.
[22] Const. Arroyo described the backyard of 937 10 th Street as “clustered with objects everywhere” with a challenge for walking. Const. Vanderspek described seeing a tarped area, machinery and lots of “stuff” in the yard. Const. Swan-Tuomi observed a cluttered yard including a large blue tarped structure and scattered piles of garbage – locations permitting a subject to conceal himself. Const. Lavine observed a woodpile and described the yard as messy with points of cover for a suspect to hide. Photographs of the backyard, entered as Exhibit #s 3 and 6, confirm the congested condition of the yard.
[23] Const. Vanderspek had his service dog on a 6-foot lead as he entered the backyard. He did not release the dog. Const. Swan-Tuomi described the on-scene dog as smaller than a German Shepherd, weighing perhaps 50 to 60 pounds, and not persistently barking. Intending to compel a voluntary surrender, Const. Vanderspek began to loudly call out words to the effect of: “Police. Canine. Show yourself. Give yourself up or you will be bit”. He repeated this numerous times. Const. Arroyo has no recall of hearing commands from the arresting officers. Const. Vanderspek observed the applicant not in a standing position, but crouched with his hands beneath him. The suspect was not fully standing erect. From his position, “very, very close” to the applicant, the officer could not see the suspect’s hands. The suspect may have had a weapon.
[24] Once Const. Swan-Tuomi reached the location identified by the uniformed officers, by a pile of metal, he observed a male person, matching the description of the robbery suspect, in a tucked or fetal-like position leaning down with his arms tucked in. The subject’s hands could not be seen. It appeared to the officer that the subject was trying to blend into the environment.
The Applicant is Arrested
[25] What happened next unfolded quickly. Const. Arroyo described the time from the appearance of the TAC Unit officers and Const. Vanderspek in the rear yard to the arrest of the applicant, as a few seconds with the employ of tasers and the police service dog’s contact with the applicant as “instantaneous”. Const. Vanderspek described events as occurring within seconds – it was “all very quick” and “very fast”. Const. Lavine recalled the matter as “very quick”. Const. Swan-Tuomi, while recognizing that perception of time is hard to gauge in these circumstances, believes that the episode in the backyard was “seconds only”.
[26] In considering that circumstances had changed from containment to apprehension, as the officers “cleared” the backyard, Const. Vanderspek was concerned about officer safety and the well-being of his service dog in terms of the pending arrest of the suspect. He was about to confront an allegedly violent individual believed to have violently stabbed someone, who might still be armed, and who had successfully escaped apprehension in the prior few hours. In the context of what was to be a “dog apprehension” of the suspect, which can become a “find and bite” use of force, the constable was conscious of his police training that, within a separation of 21 feet or less, a suspect can reach an officer’s position before the officer will be able to employ a use-of-force weapon. Based on information about the robbery, Const. Lavine considered that he and his fellow officers were facing a high-risk takedown.
[27] Const. Vanderspek gave this evidence:
A. … he did not show us his hands and we dealt with him accordingly.
Q. But it happened fairly quickly, mere seconds to getting to him, right?
A. Very quickly, from right ….
Q. Right.
A. And he wasn’t listening to my commands when I advised him to show his hand…
Q. Yeah.
A. …and the information was that he had used a knife eventually on somebody.
Q. Okay.
A. I don’t need somebody to threaten me to deploy my dog or taser.
Q. So, you gave him what, a couple of seconds to respond to your request?
A. Absolutely not, right away.
Q. I’m sorry?
A. Absolutely not. As soon as he didn’t show his hands the dog got – my life and my partner’s life are as much more important.
Q. Okay.
THE COURT: Sorry, was your question how long the witness gave the defendant to respond to the show your hands command?
MR. O’BRIEN: Yes.
THE COURT: And your answer?
A. Yeah, it was, it was – we deployed right away, meaning the dog. I’m not going to take – I’m not going to give somebody time to make a decision of what he’s going to do with whatever weapon he allegedly had.
Q. No, I know. You made the request to show the hands, you gave him a second to respond and you released the dog.
A. That’s correct.
Q. Because of the nature of the offence.
A. Absolutely.
Q. Okay. So, in assessing what was going on here, you were going certainly to look for someone who was alleged to have committed a serious offence.
A. That’s correct.
Q. But would it be fair to say that his resistance for that brief second or a few seconds was passive?
A. He’s not listening to our commands …
Q. Okay.
A. … alleged that he had a weapon, and officer safety is paramount.
Q. Well, he’s – you say that he’s in a crouched position with his hands…
A. Yes.
Q. …you make the demand and he’s not responding immediately…
A. Yes.
Q. …and the dog’s released.
A. Yes. So, with the totality of the entire situation, the information that I have already received, my, my safety and my dog’s safety, the officers with me, I made the decision to deploy the dog. I had no idea if there was a weapon underneath him. I had known that somebody had already been stabbed that day allegedly by this male party, and everything taken into consideration I made that decision, and I have absolutely no problems with that decision.
Q. Had there been a response that you observed, what would have happened it terms of the deployment of the dog?
A. If – if we had a response from the individual in the backyard ….
Q. A favourable response. Let me put it that way.
A. We would have stopped where we were and called the individual out to us. It makes it safer for him and it makes it safer for us.
Q. All right.
A. We get him into a safer area where we can take him into custody.
Q. Okay.
A. That was not the case. There was no acknowledgement from the individual at all.
A. I could not see either hand.
Q. Okay, sir. Thank you. And again, what concern, if any, would that have for an officer given the allegations that you were told of in that set of circumstances?
A. Absolutely, that he could have the knife and I’m in a very close proximity, and putting myself and my dog and my teammates in danger. There’s no – there’s no way, if he decides to do something, that I could move out of the way fast enough.
[28] When the suspect ignored Const. Vanderspek’s command to show his hands, the hoped-for option of calling the suspect out toward the officers in a controlled fashion became unavailable, and given the risk to officer safety of any attempt “to go hands on” the suspect, he allowed the service dog to advance, on leash, to the applicant’s position. As the applicant put his left hand out to defend himself against the dog, contact was made with the suspect by the dog. As this occurred, “all in a fraction”, the constable heard taser deployment causing him to immediately pull the dog back to avoid it being injured and to avoid interference with its training in the sense of the dog associating taser deployment with it having made a mistake of some kind.
[29] On Const. Vanderspek’s evidence, the applicant was not crawling or up on two feet attempting to run when he was tased.
[30] Const. Arroyo informed the court that from his vantage point at the top of the fence, he observed the TAC Unit officers and canine officer “swarm” the suspect as he made an effort to crawl away. The applicant was not standing up. The constable did not hear any words or see any conduct on the part of the suspect evidencing a surrender. He observed the service dog on its leash lunge toward the applicant, who he believes may have been face down on the ground, appearing to “nip” one of his hands. The dog was pulled back within one or two seconds.
[31] Const. Lavine testified that immediately after the service dog was withdrawn he heard, but did not see, a second taser deployment. On the basis of Const. Lavine’s discovery and application testimony, Const. Swan-Tuomi’s taser deployed as the suspect was stumbling to the ground or actually on the ground. Const. Vanderspek testified that, “[t]his was a situation where things happen so fast, everybody is dealing with this situation at their own time”.
[32] As he entered the backyard, Const. Lavine could not see the applicant. At a point, on the officer’s evidence, the applicant emerged from his hiding place behind some wood and scrap metal. He “came out quickly”. He did not know if the suspect had a knife. The witness testified that when the suspect did not comply with his shouts, “Get on the ground”, and “Let me see your hands”, but kept running between Const. Vanderspek and Const. Swan-Tuomi, he deployed his taser when the applicant’s right side was facing him. He is unsure where the applicant was struck. Const. Lavine was of the view that the service dog had yet to be deployed.
[33] Const. Lavine informed the court that he concluded that his taser cartridge probes had not made a proper connection as the suspect remained active continuing to move forward a couple of feet without the anticipated short-term “lockout” of his muscles, ultimately stumbling from a standing position to the ground where he had his hands beneath his body, appearing to be in obvious pain. The applicant’s hands appeared to be moving around, perhaps into his shirt. He commanded the applicant to show his hands informing him that if he did not he would be tased again. Const. Lavine is uncertain whether Const. Swan-Tuomi tased the suspect before or after he deployed his taser. “It was very quick” – there was no time to shout out to the suspect, “Taser. Taser”.
[34] Const. Lavine testified that if a suspect is struck with only one probe from a taser he will still experience some pain as the activated weapon is designed to incapacitate a suspect’s muscles. The officer’s taser was deployed or cycled for 16 seconds commencing at 5:15:45 p.m.
[35] As Const. Swan-Tuomi, the senior TAC Unit officer, heard Const. Vanderspek issuing “canine challenges” to the suspect, given the totality of the circumstances, he made a swift/immediate decision to deploy his X2 Taser, a non-lethal use of force with the object of protecting everyone’s safety and effecting an arrest. As he was focused straight ahead looking at the suspect, from a distance of about 5 feet, he considered that a back-off or hold-off was not then a reasonable option. At this point, he was close in to an individual who he believed had committed a violent robbery in which he had stabbed two victims. The suspect had made no gesture or utterance indicating an intention to surrender. His hands were not visible. He was believed to be armed with a knife which had not been dropped pursuant to the officer’s numerous commands.
[36] Const. Swan-Tuomi had himself been tased as part of TAC Unit training with a much stronger, earlier incarnation taser than the X2 model he possessed on February 21, 2016. The impact was like an electric current shock with loss of full muscle function as neuromuscular incapacitation occurred. As his muscles cramped and involuntarily tensed up, there was pain which immediately subsided once the taser deployment ceased.
[37] It was Const. Swan-Tuomi’s understanding that with a squeeze of the trigger of the X2 Taser, within 5 seconds the device builds to 12,000 volts and 0.02 amps. It is anticipated that, as the 2 probes leave the taser, there will be 7˚ of separation between the probes per foot of travel toward the intended target. Both probes needed to strike the target, optimally with the barbs penetrating the subject’s first layer of skin, to complete the circuit. A taser is not a weapon of precision – a probe may miss its target. On the officer’s evidence, and that of Const. Lavine, “best practice” is two tasers fired in succession. Multiple strikes do not magnify the full charge delivered from a successful 2-probe strike from just one of the tasers.
[38] As Const. Swan-Tuomi squeezed the trigger of his taser he was aware of Const. Vanderspek to his left at the “periphery” of his “zoned in” focus on the suspect. The witness believes that taser cartridge probes hit the applicant in the buttocks and the lower back respectively. As the taser deployed, the constable issued commands to the suspect to pull his arms out. Const. Vanderspek instantly withdrew his dog. Because of his focus on his use of force, Const. Swan-Tuomi was uncertain whether the dog had been deployed. The officer was also unaware until later of Const. Lavine’s deploy of his taser – he did not hear his partner’s device deployed and now assumes that it may have been almost simultaneous with his trigger pull. Const. Swan-Tuomi’s taser was actively deployed for 5 seconds at 5:16:28 p.m.
[39] Const. Swan-Tuomi did not call out “Taser” before deploying his weapon. He was only 5 feet from the applicant and did not want to afford him any opportunity to use his knife. Once the taser probes struck the suspect, there was no immediate reaction or compliance. The officer had had the experience, and had seen videos, of tased individuals remaining combative within the first 5 seconds of being tased. According to the officer, the applicant went to the ground close to the 5-second mark. At that time, with Const. Lavine’s assistance, the suspect was handcuffed – the applicant had his arms out so that Swan-Tuomi did not have to pull them out from beneath the applicant’s body.
[40] Const. Lavine testified that after holstering his taser, he placed one of his knees on the applicant’s back as he lay on the ground. The applicant still did not comply with repeated commands to show his hands thereby perpetuating a dangerous situation. The officer had to pull the suspect’s arms out from under him in order to handcuff him. The applicant was then searched. No weapon was found on his person. According to the officer, the applicant made no complaint of pain or discomfort. The constable reported this exchange during which the applicant was speaking clearly:
Lavine: Where’s the knife? Applicant: I buried it. Lavine: Where? Applicant: I don’t remember.
[41] Const. Swan-Tuomi testified that at the point of arresting the applicant, he did not consider use of his firearm to be appropriate – however, lethal force would have been necessary had matters escalated. Const. Vanderspek informed the court, respecting use of his firearm, that: “it could have got to that point”.
Medical Assessment of Applicant
[42] Const. Arroyo testified that at the site of the police service dog’s contact with the applicant’s hand there was blood. Const. Swan-Tuomi observed some blood on the applicant’s left hand. The suspect did not complain of any injuries and his coherency appeared unaffected by the circumstances of his arrest. Const. Vanderspek testified that from his observation of the applicant’s hand, and from his experience, it appeared that the superficial laceration, cut or puncture was consistent with one of the service dog’s canine teeth making a drag motion contact. A full contact by the witness’ dog ordinarily results in four punctures from the animal’s front canine teeth and bruising from a crush impact of the animal’s jaw. Const. Vanderspek described to the court an occurrence in which an arrestee required 18 staples to treat a wound inflicted by his dog during an arrest where there had been only 3 seconds of contact.
[43] On February 21, 2016, Jeff Meadows, a Region of Peel paramedic, and his partner were dispatched to the scene of the applicant’s arrest primarily to facilitate removal of taser probes from the applicant.
[44] In testifying, Mr. Meadows had some independent recall and was assisted by the Ambulance Call Report (ACR) (Exhibit #1) he completed at the time of treating the applicant.
[45] When the witness first observed the applicant, the applicant was exiting a residential backyard in the custody of police officers. The applicant was ambulatory and did not appear to be in medical distress. He was alert and made no complaints to Mr. Meadows.
[46] Mr. Meadows removed 3 intact taser probes from the handcuffed applicant – 2 from his right shoulder area and 1 from his lumbar/lower back area. While the witness was uncertain whether the probes struck the applicant’s shoulder at its anterior, posterior or lateral site, he thought it may have been to the posterior or rear. Mr. Meadows was unable to say whether the taser probes had penetrated clothing before striking his skin. The witness noted in the ACR that the “wounds” were “closed”.
[47] The paramedic treated the applicant’s only physical injury - a “minor” and “superficial laceration” to the applicant’s left hand with a bandage. He was unable to recall whether the cut was bleeding.
[48] Mr. Meadows testified that he found the applicant somewhat uncooperative. As a result, he was unable to take the applicant’s blood pressure. While the witness could not recall any specific statements made by the applicant, he was mentally responsive.
[49] As recorded in the ACR, the paramedic’s standard medical examination of the applicant revealed the applicant to be fully conscious with no abnormalities, shortness of breath, or medical difficulties. The applicant’s pulse was “regular and full”. The applicant was released back to police custody and not transported to hospital.
Const. Arroyo’s Custody of the Applicant
[50] Const. Arroyo testified that after the paramedics attended to the applicant, and after he drove his cruiser to the front of the residence, at 5:25 p.m. he took custody of the applicant. Commencing at 5:27 p.m., he communicated Charter rights to the arrestee who was responsive to what he was being told. The applicant made no complaint of pain and did not appear to be in any discomfort.
[51] Const. Arroyo testified that before transporting the applicant to a PRPS facility he had this conversation:
Applicant: Are you a cop that likes to make deals? Arroyo: No, I’m not. Applicant: Because I have lots of information.
Followup and Paperwork
[52] The police located jewellery from the robbery in the backyard of 937 10 th Street. Const. Vanderspek understood that a knife was also recovered in the backyard.
[53] A Use of Force Report was completed by Const. Vanderspek (Exhibit #2, Tab 1) in which he reported deployment of his service dog within a distance of “less than 2 meters” from the applicant, believed armed with an “edged weapon”, with a view to “effect arrest/prevent escape/protect self/protect other officer”. A “canine puncture” was recorded as the injury sustained by the applicant.
[54] Consts. Lavine and Swan-Tuomi jointly prepared a Use of Force Report (Exhibit #5) reporting deployment of their tasers from a distance of “2 to 3 meters” from the applicant, believed armed with an “edged weapon”, to “effect arrest/prevent escape”. The Report does not record any injury directly caused by the officers’ use of force.
[55] Pursuant to force policy, Consts. Lavine and Swan-Tuomi surrendered their tasers to the PRPS Use of Force Training Unit allowing for computer download of the history of the devices during the time period of the applicant’s arrest.
THE PRPS DIRECTIVES
[56] Relevant sections of the PRPS Directive, ‘Use of Force’, in effect in February 2016 (Exhibit #7), include the following:
B. Policy
- It is the policy of this Service that members:
(a) use no more force than is justified and reasonable, in the lawful execution of their duties; and,
(b) receive specific Use of Force training, in order to enhance both member and public safety.
C. Definitions
- For the purposes of this directive, the following definitions shall apply:
(e) “co-operative” – means the subject responds appropriately to the member’s presence, direction and control;
(f) “resistant (passive)” – means the subject refuses, with little or no physical action, to cooperate with the member’s lawful direction;
(g) “resistant (active)” – means the subject uses non-assaultive physical action to resist, or while resisting a member’s lawful direction;
(h) “assaultive” – means the subject attempts to apply or applies force to any person; attempts by an act or gesture to apply force to another person, if he or she has, or causes that other person to believe upon reasonable grounds that he or she has present ability to [e]ffect his or her purpose;
(j) “grievous bodily harm” – means serious hurt or pain;
(l) “communication” – means the verbal and non-verbal communication a member can use to control and/or resolve the situation;
(o) “intermediate weapons” – means the use of less-lethal weapons that are not intended to cause serious injury or death;
D. General
Members authorized to use force are mandated by the Police Services Act (P.S.A.) with a legal duty to preserve the peace, prevent crime and to ensure the safety and security of all persons and property in Ontario. This legal obligation places members in situations of protecting life, property and apprehending offenders. In meeting this obligation, it is reasonable that members authorized to use force may have to resort to physical force which is authorized by law. Skilled policing requires members to work in ways that minimize the use of force.
The law provides members the authority to use force in the course of their duties, however the use of such force is strictly controlled and limited under specific circumstances. When the force used is reasonable and necessary, a member authorized to use force shall be protected from civil or criminal liability. Equally, if the force used is deemed excessive, the member shall be held responsible and shall be criminally and civilly liable. These provisions are set out in Section[s] 25 and 26 of the C.C.
L. Conducted Energy Weapon (C.E.W.)
- The C.E.W.:
(a) delivers a metered and pulsed electrical current, which results in involuntary muscle contractions and loss of motor control (also referred to as “neuro-muscular incapacitation)” (N.M.I.) when applied, rendering the subject incapacitated, and allowing the Officer the opportunity to gain control of the subject;
(b) is classified as an intermediate weapon in accordance with the Provincial Use of Force Model and its use should be based on the level of resistance and the circumstances surrounding the encounter;
(c) is intended for use in situations where a subject is threatening or displaying assaultive behaviour. A C.E.W. may also be considered in other situations, taking into account the totality of the circumstances and the imminent need for control of the subject;
(d) shall not be deployed when the subject is compliant, or when a subject poses no physical threat;
(e) is not a replacement for any other Use of Force option;
(f) shall not be relied upon as the primary level of force in a lethal force encounter. In a lethal force encounter, the firearm should be used to cover a subject. The C.E.W. may be considered as an additional option when, if possible, there is one or more additional Officers to provide restraint and assist, and a second Officer with a firearm at hand continues to cover the subject.
- Officers authorized to carry the C.E.W. shall:
(c) when possible, announce their intent to use the device (e.g. “Taser, Taser, Taser”) …
Note: When deploying the C.E.W., the recommended point of aim is the lower-centre of mass for front shorts. Back shots remain the preferred area, when practical. The highlighted area in the target man, illustrated in Appendix “A” of this directive, represents the preferred target area.
Where possible, C.E.W. use should be avoided:
(a) on handcuffed subjects;
(b) on pregnant women, elderly persons, young children or visibly frail persons;
(c) on sensitive areas of the body (i.e., head, throat, genitals); and,
(d) on a subject in control of a moving vehicle, bicycle or other conveyance.
- Prior to using a C.E.W., Officers shall consider the following:
(e) whether efforts to de-escalate the situation have been effective;
(f) whether verbal commands are not practical or not being followed;
(g) the risk of secondary injury (e.g., as a result of a fall);
(h) the C.E.W.’s capabilities in relation to the context and environment; and
(i) whether it is reasonably necessary to use an intermediate weapon.
N. Canine Use of Force
Peel Regional Police Service Dogs are trained in criminal apprehension, handler protection, and self-preservation.
In a situation of apprehension, the P.R.P. Service Dog Handler shall be responsible for the decision whether a P.R.P. Service Dog will be utilized to [e]ffect an arrest.
The decision to use the P.R.P. Service Dog shall, at the discretion of the P.R.P. Service Dog Handler, be based upon the physical and/or mental state of the subject, the circumstances of the encounter, the degree of resistance, and the nature of the offence.
P. Use of Force Response Options Model
The Ontario Use of Force Model – 2004 (refer to Appendix “B” of this directive) is a graphic representation of a member’s response options, the subject’s profiled behaviours, and the Use of Force assessment of the situation.
The selection of a response option shall be based on a number of variables. Consideration shall be given to member/subject impact factors, the circumstances of the encounter, the degree of resistance and the nature of the offence.
The application of force is for the purpose of controlling the subject, or in defence against an assault. The use of force shall not be applied for malicious or punitive reasons, but be applied at a level sufficient to control the subject; however, it shall never be excessive. Upon subject compliance, the use of force shall be de-escalated.
The options of force include: Officer presence, communication, soft and hard physical control, intermediate weapons, and lethal force. The selection of the level of force used shall be based on the individual member’s interpretation of the situation, but the selection shall be at the lowest level that would reasonably control the subject.
A member authorized to use force shall always be cognizant of the circumstances of the situation, and adopt the appropriate level of force at the time. This is achieved by the member assessing, planning and acting upon the information received. This may mean an escalation, a de-escalation or a disengagement of force.
(emphasis of original)
Appendix “B”
Ontario Use of Force Model (2004)
[57] The PRPS Directive, ‘Canine Unit’ (Exhibit #3, Tab 4), includes this text:
F. Operations
- The Canine Unit shall assist with:
(d) apprehending and disarming subjects when the situation warrants such actions;
- Where the services of a general police dog [is] deemed necessary, the requesting officer shall:
(f) if a suspect is believed to be armed, or is considered a high risk, request officers of the Tactical and Rescue Unit (T.A.C.) for back-up.
G. Restrictions
- Deployment of police service dogs shall be solely at the discretion of the Canine Handler. The Canine Handler shall deploy the police service dog in a manner consistent with the “Canine Unit Deployment Manual”.
POSITIONS OF THE PARTIES
The Applicant
[58] On behalf of the applicant, Mr. O’Brien submitted that the applicant satisfied the burden of establishing excessive police force breaching his s. 7 and s. 12 Charter rights to a dimension requiring a stay of proceedings.
[59] In his submissions, counsel acknowledged a number of features of the case including:
(1) the police were engaged in an effort to capture a suspect alleged to have been involved in a violent robbery in which someone had been stabbed
(2) the police made announcements of their presence once they began their entry to the backyard at 937 10 th Street
(3) what transpired in the backyard all happened within seconds
(4) when the police came upon the applicant, they were required to make a split-second decision.
[60] It was submitted that given significant inconsistencies across the testimony of Consts. Lavine, Vanderspek and Swan-Tuomi, and considering the contrary evidence of Const. Arroyo, that the court ought to accept the evidence of the latter witness. It was argued that Const. Arroyo did not use force on the applicant and has no stake in attempting to construct after-the-fact justification for a forcible arrest.
[61] Counsel characterized Arroyo’s evidence as describing a person on his hands and knees swarmed by three officers, without commands, tased and subsequently attacked by a dog. In effect, the unarmed applicant was in a submissive and non-threatening position when subjected to unnecessary and unreasonable force.
[62] It was submitted that one or more police witnesses had lied to the court and given important, not minor, discrepancies between the respective witnesses’ accounts, the trier of fact was in no position to accept any version of events advanced by any one of the three officers who used force to arrest the applicant. For example, Const. Lavine alone maintained that the applicant was up on his feet running between Vanderspek and Swan-Tuomi. The taser download data demonstrated that there was a significant gap in the timing of the deploy of the two CEWs, not near instantaneous deployment. No officer but Lavine reported the applicant appearing to put a hand in his shirt. Lavine and Swan-Tuomi differed as to whether the applicant cooperated during the handcuffing process.
[63] Counsel submitted that the evidence, taken as a whole, establishes unconstitutional conduct on the part of the arresting officers, unjustified use of force, having regard to a number of factors including:
(1) the applicant received no specific commands telling him how to surrender
(2) respecting what commands were issued, the applicant was given little or no time to comply
(3) the officers took no steps to de-escalate the situation
(4) immediately before the use of force, the police did not warn the applicant that force was about to be deployed
(5) the police failed to follow aspects of the PRPS ‘Use of Force’ Directive
(6) the canine officer and the TAC Unit officers, outnumbering the applicant, gave no consideration to alternatives to use of force or to the appropriateness of multiple applications of force to the applicant
(7) the applicant was on the ground, unarmed and not acting aggressively, when subjected to unnecessary, successive applications of force - tased and bitten
(8) the police acted too hastily and went too far, effectively using force to arrest, solely, or primarily, because of the nature of the crime the applicant was believed to have committed without regard to the specific factual circumstances relating to the applicant’s position in the residential backyard.
[64] Given the Charter violations, proven on a balance of probabilities, a stay is the only proportionate remedy. The courts must disassociate themselves from police abuse of power – routine use of CEWs and police service dogs against suspects without regard to considerations of restraint and alternatives cannot be encouraged.
The Crown
[65] Mr. Morris submitted that the applicant failed to discharge his burden of demonstrating excessive use of force on the part of the police. On the whole of the evidence, on balance, it cannot be said that unconstitutional police conduct occurred in the particular circumstances of the applicant’s arrest.
[66] Crown counsel argued that inconsistencies between police witnesses’ evidence effectively eliminate any likelihood of collusive misleading of the court. Differences in witnesses’ testimony are inevitable. While on some points there are material differences, this is not a matter of credibility but rather reliability. The police were engaged in evolving and rapidly unfolding events, and perceptions will vary with stress and different physical positioning of each officer.
[67] It was submitted that Const. Arroyo’s evidence was actually of limited value as his vantage point was not that of an “on the ground” participant in the apprehension. Mr. Morris placed particular reliance on the evidence of Consts. Vanderspek and Swan-Tuomi as the officers most proximate to the suspect.
[68] Crown counsel emphasized the exigent circumstances existing at the point of deployment of non-lethal force to immobilize and arrest the applicant including:
(1) the applicant fled the robbery scene and subsequently hid in the backyard on police arrival at 937 10 th Street – the suspect displayed an intention not to be caught
(2) the police believed the person in the backyard to be the suspect wanted for a violent robbery earlier in the day in which one or two victims were stabbed
(3) in the absence of information of recovery of the weapon used in the robbery, the suspect was believed to be armed
(4) in the few seconds it took the police officers to work their way across the backyard around various obstacles, commands were shouted for the suspect to show himself – the applicant did not demonstrate verbally or by gesture intention to surrender to police presence
(5) once the officers came upon the applicant’s chosen place of concealment, with only a few feet of separation, the suspect’s hands could not be seen and ongoing police commands were not immediately complied with
(6) confronted with a very real risk to police safety, each officer independently made the split-second determination that a safe and quick arrest could best be effected with the application of non-lethal force – force quickly applied without time reasonably available for further warnings
(7) the applied force achieved its objective and was not excessive:
(a) the service dog was withdrawn almost immediately upon deploy of Lavine’s CEW – the dog-inflicted injury was superficial and not a full-jaw crushing bite
(b) it appears that only one CEW fully deployed with its 2 probes striking the suspect while the second CEW’s 1-probe strike carried only a diminished current – no lasting pain or injury resulted from the CEW deployment
(8) any gap in the timing of deployment of the two CEWs is explicable by imprecise synchronization of the devices and/or the lack of immediate effect of Const. Lavine’s CEW shot.
[69] It was submitted that the police officers complied with PRPS ‘Use of Force’ direction in terms of arrest of a violent suspect effected through announced police presence, communication directed toward the suspect, selection and measured application of non-lethal force options, availability of at-scene paramedics, and completion of use of force reports.
ANALYSIS
General Principles
[70] Mr. Rigo seeks a stay of proceedings, which “is an extreme remedy” (R. v. J.T., 2017 ONCA 250, at para. 6), on the basis that he has discharged the burden of establishing use of force by PRPS officers contravening his s. 7 and s. 12 Charter rights.
[71] Counsel were in agreement that the decision of R. v. DaCosta, 2015 ONSC 1586, an application for a stay of proceedings on account of alleged excessive force by the police, accurately summarized the principles and much of the leading jurisprudence on this subject. Accordingly, there is no value in expressly repeating here that analytical summary.
[72] As observed in Zalaski v. Alberta (Law Enforcement Review Board), 2013 ABCA 347, at para. 45, while “[v]iolent physical interactions between police officers and individuals are always concerning”, “unfortunately, reasonable and necessary use of force by police is still a part of our social reality”. As stated in Graham v. Connor, 490 U.S. 386, 396 (1989), and consistent with the approach in Canada, it has “long been recognized that the right to make an arrest … necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it” – this requires assessment of necessity and reasonableness of the force used considering all of the facts and circumstances of each particular case “including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively attempting to evade arrest by flight” (see also County of Los Angeles v. Mendez, 581 U.S. ___ (May 30, 2017), at pp. 6 - 7).
[73] Of course, the distortions of slow motion, frame-by-frame, after-the-fact judicial dissection of police conduct must be avoided in reviewing the reasonableness of use of force – a cautionary point repeatedly emphasized: see authorities discussed in DaCosta, at paras. 97-00, 103; Tatum v. Robinson, USCA 8th Cir., May 30, 2017 (No. 16-1908), at p. 7; and at pp. 396, 397 of Graham:
The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with 20/20 hindsight.
The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain and rapidly evolving – about the amount of force that is necessary in a particular situation.
[74] Section L.1.(c) of the PRPS ‘Use of Force’ Directive acknowledges that CEW deployment, other than in the circumstance of attempted arrest of an actively assaultive or threatening individual, may be reasonable “taking into account the totality of the circumstances and the imminent need for control of the subject”. This approach is consistent with R. v. Rice, 2015 ONCA 478, at para. 7, holding that aggressive action on the part of an arrestee is not considered a precondition to reasonable use of force but rather a “suspect’s aggression or lack of same as a relevant contextual factor in the analysis”.
[75] No expert evidence was called in this application respecting use of force by the police. The PRPS Use of Force Directive recommends adherence to the Ontario Use of Force Model – 2014. While this is not a statutory imperative, it represents a considered standard for evaluating the reasonableness of police conduct in circumstances of use of force. An officer’s departure from the Model and from police training will generally call into question the reasonableness of his or her use of force.
[76] A trained police service dog, under the control of a trained handler, may be employed on command as an intermediate weapon where the animal’s deployment may be within a range of reasonable options in the particular circumstances of an arrest.
[77] As observed in Gloster v. Chief Constable of Greater Manchester Police, [2000] EWCA Civ 90, police dogs, “trained to be aggressive and bite in some circumstances”, may “bite in limited and defined circumstances” on instruction. The court further stated:
The fact that some breeds of dog can be trained to bite may, if my view of the section is correct, leave members of the public without a remedy under the Act in some circumstances. The training of police dogs has a valuable social purpose in the prevention and detection of crime. Plainly a risk of injury to members of the public does arise from the use of dogs. Skilled training and supervision are required.
The experts in this case were agreed that (a) but for its training this breed of dog would not act in the way that this dog acted on the occasion in question, and (b) this dog and other trained police dogs (of whatever breed) will proceed to search for and, if possible, detain when given the appropriate command. Clearly this is not something which other dogs are trained to do. It makes them different from other dogs, including other German shepherd dogs.
In the case of police dogs that propensity is put to a socially useful purpose, the apprehension of persons reasonably suspected of having committed arrestable offences. But it is not difficult to imagine cases in which such a propensity could be put to most anti-social purposes. Of course, if such a trained dog is deliberately set upon a quarry without lawful justification then it will be an assault (or in some circumstances the deliberate infliction of harm by indirect means…
[78] Our jurisprudence not infrequently adverts to the contribution of a police dog as simply part of the narrative description of a criminal case without the need for comment on the degree of force used, for example, R. v. Hanna, 2013 ABCA 134, at para. 2 (leave to appeal refused [2013] S.C.C.A. No. 454) (“The appellant was successfully tracked down by a police dog and arrested”); R. v. Maragh, 2007 ONCA 681, at para. 3 (“He was bitten by a police dog and arrested”).
[79] In other instances, where use of force through deployment of a police dog is directly in issue, the courts are asked to assess whether the force was reasonable, necessary and proportionate in the circumstances. This inevitably engages a fact-sensitive review. So, for example, canine apprehension with a bite of a fleeing suspect may be found not to constitute excessive force – see Mohamed v. Vancouver (City) Police Department, 2001 BCCA 290 (leave to appeal refused [2001] S.C.C.A. No. 307). Or, where a suspect who may be armed with “a concealed weapon”, does “not immediately comply with … police instructions” the deployment of a police dog may amount to “a reasonable, measured response in the circumstances”: R. v. Penfold, 2000 ABCA 19 (leave to appeal refused [2000] S.C.C.A. No. 112) (see also Johnson v. Scott, 576 F.3d 658 (7th Cir. 2009)).
[80] Plainly, deployment of a police service dog on command to apprehend a suspect by applied bite force will be unreasonable where the crime at issue is minor, or the subject is compliant and poses no immediate threat to safety of the police or others.
[81] While there is more than one type of hand-held conducted energy weapon (CEW), the “taser” manufactured by Taser International (now AXON) is the most popular device in the hands of police forces. Although a CEW is a prohibited weapon if possessed by a member of the public (Criminal Code s. 84 “prohibited weapon” (b) , and Regulations Prescribing Certain Firearms and Other Weapons… , SOR 98-462, s. 2 and Schedule I.), this non-lethal intermediate weapon is authorized for use by peace officers in Ontario pursuant to approval under Police Services Act Reg. 926 ‘Equipment and Use of Force’, R.R.O. 1990, s. 14(1).
[82] As is evident from the cases filed by parties, each with its own factual matrix, like police deployment of a service dog, judicial review of CEW use by a police officer is again very much a fact-specific exercise. Our jurisprudence dealing with CEW use by police officers is an evolving area of law. Accordingly, depending upon the circumstances, use of the weapon, when challenged, may be found to be a reasonable and justified use of force (for example, R. v. Phills, 2010 ONSC 4446) while in other circumstances, employ of the weapon will constitute unreasonable use of force, see for example: Waters v. Toronto (City) Police Services Board, 2016 ONSC 7824; R. v. Walcott (2008), 57 C.R. (6th) 223 (Ont. S.C.J.).
[83] The taser is a weapon. While a CEW is intended to be safe and potentially injury-reducing compared to alternate interventions, its use has physical consequences for the subject upon whom the weapon is used. In R. v. Truong, [2009] EWCA Crim 1910, at para. 3, the court observed:
The effect of a taser can be serious. It can produce a loss of muscle control, incapacitation, intense pain and mental confusion. Indeed, it is designed to overcome an individual for a period of time so that the person in possession of the Taser can do what he will to its target. Its lawful use is for law and order and to deal with those who are misbehaving in a serious way.
[84] General background as to the nature of a CEW, as a lesser use of force weapon, can be derived from the police witnesses’ evidence, the PRPS ‘Use of Force’ Directive, the caselaw respecting CEW use, and resources of reliable and indisputable accuracy such as The Expert Panel on the Medical and Physiological Impacts of Conducted Energy Weapons, The Health Effects of Conducted Energy Weapons (The Council of Canadian Academies & The Canadian Academy of Health Sciences: Ottawa, 2013) (Chair: The Honourable Justice Stephen T. Goudge, Court of Appeal for Ontario) (the Goudge Report); and the Braidwood Commission on the Death of Robert Dziekanski (Government of British Columbia, 2010) (Commissioner: The Honourable Thomas Braidwood, Q.C.).
[85] Within the use-of-force continuum applicable to the incident management of arrest of a suspect, a CEW is intended to be safe and potentially injury-reducing compared to alternative interventions including use of a service firearm.
[86] The service-issue CEW possessed by the PRPS in February 2015, an X2 Model Taser, held two cartridges with each cartridge containing two probes/darts/barbs. When a CEW trigger is activated, a compressed nitrogen cartridge breaks open with a resultant pressure release propelling two probes toward the relevant target attached to thin unspooling electrical wires. When two metal probes deploy from a fired cartridge striking a human target, short repeated pulses of electricity are produced to the skin and subcutaneous tissues for a 5-second period in a specially designed waveform powerful enough to effectively stimulate motor and sensory nerves, causing incapacitation and pain, an effect described as NMI (neuromuscular incapacitation). In effect, the applied electrical current results in a loss of voluntary muscle control over a large area of the body.
[87] The degree of incapacitation is largely dependent on the spread of the probes on striking the target with 9 to 12 inches’ separation considered most effective. If one of two probes fails to make contact with the targetted subject, or if the probe spread is too small, the CEW deployment will not achieve complete incapacitation. As well, it has been observed that, “[t]he precise value of current and voltage actually delivered to the subject depends strongly on the nature of the contact between the probe darts and the subject’s skin and clothing” (Goudge Report, pages 16-21).
Fact-Finding in This Case
[88] The applicant, who did not testify in this application, has the burden of establishing the alleged breaches of his s. 7 and s. 12 Charter rights. This court is obliged to consider the totality of the evidentiary record to determine whether the applicant has discharged his assigned onus.
[89] Undoubtedly, there were inconsistencies in the police witnesses’ testimony, for example, relating to the applicant’s physical posture, movement, and degree of resistance to handcuffing.
[90] Close scrutiny of their evidence, in content and manner of presentation, does not suggest that any of these witnesses, who at the time of the arrest were not outfitted with body-worn cameras, was deliberately embellishing or modifying a factual account to prop up a defence or justification for use of force against the applicant. There were no note-taking deficiencies identified and Use of Force Report protocols were adhered to.
[91] Apart from the over 15 months’ passage of time between February 21, 2016 and the trial, and recognizing that discrepancies between witnesses’ accounts tends to negate improper collusion, at the time of their interaction with the applicant the officers were clearly operating in circumstances of stress capable of limiting or distorting perception, and in turn the reliability of eyewitness reporting. In my view, each witness made an effort to honestly testify to what he believed occurred at the site of 937 10 th Street.
[92] In manner of presentation, and content of their testimony, Consts. Vanderspek and Swan-Tuomi were very impressive witnesses. There was no hint of any effort to advance moving-target, embellishing and reconstructive testimony to attempt to justify police actions.
[93] Const. Arroyo, a relatively junior patrol officer, had little prior experience in high-risk takedowns. On February 21, 2016, his heart was racing and he was clinging to a wobbly perch attempting to look down over a fence. As a witness, the constable was unable to recall a number of details. On the whole, his testimony was less helpful than the evidence of the ground level positioned officers, Vanderspek and Swan-Tuomi, who were thoughtful, impressive witnesses, clear and organized in their evidence.
[94] Const. Lavine’s report of the applicant, at the material time, standing erect and running a few steps toward the officers, is at odds with the testimony of the other three witnesses. This account of his perception of events, though honestly believed, cannot be taken as a reliable rendition of what in fact actually occurred.
[95] Const. Lavine testified to uncertainty that both probes deployed from his CEW actually struck the target of the applicant’s right side after he fired. He held this view solely because the applicant’s muscles did not lock out. This lack of immediate NMI is a recognized phenomenon. The rising current in the officer’s CEW, the suspect’s movement when hit, the narrowness of the spread of the attached barbs limiting the strength of the delivered electric current, the resistance of the suspect’s winter jacket, etc. all potentially factor into delay of instant control. In fact, 2 probes were removed from the suspect’s right shoulder by the paramedic consistent with the probes hitting the mark. Const. Swan-Tuomi saw his CEW probes deploy toward the suspect’s back and buttocks. On the evidence accepted by the court, this CEW shot occurred as the applicant was stumbling to the ground before evidencing complete NMI. There was no evidence of the applicant removing any probe on his own. The paramedic did not remove a probe from the applicant’s buttocks supporting an inference that two probes from the constable’s CEW did not strike the target. On balance, it appears that Const. Swan-Tuomi’s CEW shot did not result in a fully completed electric current circuit.
[96] Unlike many use of force cases, there was no expert evidence in this application which would have been of assistance on a number of issues including:
(1) particulars of the distinction between a CEW’s open peak circuit voltage and the actual voltage delivered to a human subject, the amperage of peak electric current following a trigger pull, the joules of energy delivered, the travel-spread to target for fired probes, etc.
(2) whether the probes from Lavine’s CEW, which both struck the applicant’s right shoulder, were deployed far enough apart from one another at the site of the shoulder strike to produce the desired effect of full NMI
(3) the relevance, in a case such as this, of the fact that the probes from Lavine’s CEW had to travel through the applicant’s jacket and shirt
(4) the technology relating to whether or not the computer chips within two separate CEWs can be accepted as reliably programmed or synchronized to precisely the same time clock reading
(5) confirmation that if only 1 probe from Const. Swan-Tuomi’s taser struck the applicant’s skin, what physical impact would result from that officer’s CEW fire.
[97] On the evidence accepted by the court, uncontradicted by any evidence from the applicant himself, these facts were established in this application:
(1) Consts. Vanderspek, Swan-Tuomi and Lavine entered the backyard of the residence at 937 10 th Street to apprehend a person believed to be an armed and dangerous suspect
(2) the suspect could not initially be seen by the officers because of debris in the yard and because he was making an effort to conceal himself and on account of the congested character of the yard
(3) despite loud verbal commands, the suspect made no effort, by gesture or call out, to identify his location and an intention to surrender or be subdued
(4) once observed by Const. Vanderspek, when the applicant did not immediately show his hands, the police service dog was deployed to apprehend the suspect
(5) almost simultaneously, Const. Lavine deployed his CEW with 2 cartridge probes striking the suspect’s right shoulder
(6) at this point, the service dog was immediately withdrawn
(7) the applicant did not immediately go to the ground or show his hands
(8) as the applicant stumbled, Const. Swan-Tuomi deployed his CEW, and within seconds the applicant went to the ground where he was handcuffed and placed under arrest.
[98] The circumstances which existed prior to the officers’ employ of force against the applicant may be described as follows:
(1) an armed robbery had occurred some hours earlier in Mississauga - the robbery suspect had allegedly stabbed a jewellery store vendor causing serious injuries and a second individual may also have been stabbed
(2) there was no information suggesting that the suspect’s weapon had been recovered
(3) the suspect fled the scene of the robbery and had, for some hours, eluded detection by police and the day shift police service dogs
(4) taxi company information received by the police pointed toward the suspect being at a home at 937 10 th Street in Mississauga
(5) the suspect did not exit the front door of that residence in response to a PRPS TAC Unit call out of the home’s occupants
(6) with daylight due to fade, 3 PRPS officers entered the backyard of the residence – a maze-like yard full of large objects and debris capable of concealing a suspect from immediate discovery and providing a risk of the police being ambushed by an armed suspect
(7) the officers in the yard were alerted by one or more uniformed officers outside the yard to “movement” further into the yard – the suspect’s intention to flee and evade capture was actively continuing
(8) prior to the three police officers in the yard seeing the applicant, during a brief time period when the police variously called out for the suspect to show himself and to give himself up and to drop his knife, there was no compliant response from the applicant.
(9) once the applicant was observed, variously described as hiding or attempting to blend into his environment, with his hands not visible, he did not immediately comply with commands to show his hands and to get on the ground – commands issued by officers who had proceeded into a danger zone within only a few feet of the suspect.
[99] No issue was raised in this application as to the police officers’ grounds to arrest the applicant as the person believed to be responsible for the robbery at the Dixie Mall. No issue was raised that the officers and the service dog were not adequately trained respecting use of force.
[100] While no police witness used the descriptor “armed and dangerous” regarding the applicant, that terminology accurately characterizes their testimony heard in this application. The arresting officers had grounds to believe that the applicant was armed because hours earlier he possessed a bladed weapon. In this case, apart from the inherent danger presented by any armed suspect, the suspect here had exhibited violent behaviour hours earlier by stabbing one or two victims and had taken flight.
[101] On the evidence, the applicant had not produced himself into the open. He had not come forward with his hands open and in the air. He did not choose to lie prone on the ground with his arms and open hands exposed. The applicant did not call out his position to the approaching officers or say words to the effect of: “I’m unarmed”, “I give up”, “I’m coming out” or some equivalent.
[102] In these circumstances, given another couple of seconds to consider his options, a suspect may expose open and empty hands, raise his hands in the air or drop to the ground with his hands clearly visible out from his sides. Or within the time frame of a one or two-count, a desperate and armed suspect may spring forward across a distance of a few feet intent on using his knife to harm a service dog and one or more officers to effect his escape.
[103] Confronted with the circumstances described in para. 98 above, a non-compliant suspect, who was believed to be armed and dangerous, and who had not complied with police commands, the responding police officers, independent from one another, each made the quick decision to use non-lethal force to effect a safe and quick arrest. In what were fluid and rapidly unfolding events, the officers considered the force used to be reasonable in the circumstances, as necessary and proportionate to the situation then faced by them. This perception was objectively reasonable, and the force used reasonably executed, having regard to these features of the case:
(1) the three officers were close in to the suspect
(2) the suspect’s hands were not visible
(3) the suspect did not immediately respond to the command to show his hands
(4) with the separation between the suspect and the officers being only a few feet, and much less than 21 feet, the officers’ safety was at risk from the suspect’s possible use of a bladed weapon to make good an escape
(5) the use of force was limited to non-lethal intermediate weaponry – a trained police service dog and the deployment of CEWs
(6) the force was used at a time when paramedics were on standby at the scene.
[104] In response to the deploy of the trained police dog, at a point where his hands were not visible to the officers, the applicant then struck out his left hand. With the deploy of at least one CEW, the dog was instantly withdrawn by Const. Vanderspek. The injury to the applicant’s hand was minor and superficial. Whether described as a puncture wound, or a drag cut/laceration caused by one upper canine tooth, the injury was treated by a bandaid/dressing. No stitches or hospital attendance was necessary.
[105] As Consts. Lavine and Swan-Tuomi independently, and quickly, assessed the circumstances faced, they deployed their CEWs. Although the CEW download data records a 27-second gap between the conclusion of Lavine’s weapon’s cycle and the deploy of Swan-Tuomi’s CEW (5:16:01 – 5:16:28), and returning to the issue of the CEWs having synchronized time clock settings, this separation appears inconsistent with the officers’, including Const. Arroyo’s, perception of the speed with which events unfolded. In any event, the court rejects the notion that the firing of Const. Swan-Tuomi’s CEW was unnecessary. On the facts accepted by the court:
(1) CEW force against a suspect is designed to incapacitate the subject in very short order in order to effect a safe arrest
(2) the constables were trained to use the CEW device
(3) the CEW is designed to occasion short-term physical pain followed by immediate return to normalcy without permanent injury
(4) consistent with PRPS policy relating to the use of a CEW, the probes from the officers’ CEWs did not strike the suspect’s head, chest or genital area
(5) the control strategy of deployment of 2 CEWs accorded with police training
(6) each officer fired only 1 cartridge from his 2-shot CEW
(7) the CEW deployment facilitated a safe arrest without injury to the suspect or the officers.
[106] Insofar as the effects of the CEW use upon the applicant, these factors are relevant:
(1) the applicant experienced short-term intense physical pain from any CEW shot where two properly deployed probes activated a muscle-disabling strike
(2) there was no evidence of the applicant seen removing any probes on his own, and because the paramedic removed only one probe from the applicant relating to the CEW shot by Const. Swan-Tuomi, it appears, on balance, that any disabling circuit resulting from that officer’s attempt to tase the suspect would have carried diminished strength
(3) there is no evidence, including from the applicant, to suggest that he sustained any injuries as a result of being tased – the paramedic reported no injuries – none of the witnesses heard a complaint from the applicant of lasting impacts of being struck by CEW probes – no medical treatment or hospitalization was required
(4) immediately after the deploy of the CEWs, the applicant was alert, coherent, responsive, and initiated a deal negotiation with the police.
[107] In conclusion, the collective use of force by Consts. Vanderspek, Swan-Tuomi and Lavine was objectively reasonable in the circumstances confronted by the officers. In a residential backyard, in tight to the location of the non-compliant applicant because of his ongoing effort to elude capture, the officers executed a swift and safe apprehension of the suspect believed to be armed and dangerous. The force, in amount and duration and type, was reasonable, necessary and proportional, not gratuitous or punitive, with no lasting pain or injuries to the arrestee.
CONCLUSION
[108] The application is dismissed.
Hill J. Released: June 14, 2017