Court File and Parties
COURT FILE NO.: CR-16-130000214-0000 DATE: 20170726 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN - and - KEVIN MORRIS Defendant/Respondent
COUNSEL: A. Kocula, for the Crown G. Smith, for the Defendant/Respondent
HEARD: June 12, 13, 14 and 15, 2017
Justice Nakatsuru:
[1] The applicant, Kevin Morris, stands charged with firearm offences arising out of a late night encounter with the police on December 13, 2014 in Scarborough. He brings this stay application based upon events that he alleges arose out of that contact. He argues that the police violated his rights under ss. 7, 9 and 10 of the Charter. The applicant submits that this is the clearest of cases to warrant a stay of proceedings.
[2] The following are the violations that are alleged to have taken place:
- The applicant’s right to be free from arbitrary arrest and detention protected by s. 9 was violated when he was unlawfully detained without reasonable suspicion and further when he was arrested without reasonable and probable grounds;
- The applicant’s right not to be deprived of his security of person except in accordance with the principles of fundamental justice guaranteed by s. 7 was violated when he was struck by a car driven by D.C. Moorcroft and when he was subject to excessive force by the arresting officer P.C. Faduck;
- The applicant was not advised of the reason for his arrest and his right to counsel upon his arrest as guaranteed by ss. 10(a) and (b). He was further not given a reasonable opportunity to contact counsel once he exercised his s. 10(b) rights.
[3] There are key credibility issues that must be resolved. I have considered the whole of the evidence in coming to my determination.
A. SECTION 9
[4] The applicant argues that the police had no reasonable and probable grounds to arrest him. A key factual dispute is the conduct of the applicant just prior to his arrest. The applicant argues that before the arrival of the police, he was doing nothing suspicious. Although he eventually ran from the police, he was unaware that the plainclothes officers were police. The Crown on the other hand submits that the moment D.C. Graham came on scene, the applicant was aware he was a police officer and he chose to run. When he did, the police had reasonable and probable grounds to chase and arrest him.
[5] On the evening in question, the police were investigating a home invasion at 860 Pharmacy Avenue. The complainant had walked into 41 Division and advised the police that a young girl had knocked on his door. When he opened it, four black males entered, one pistol-whipped the complainant, and then stole his wallet and phone. This had occurred about 20 minutes earlier that evening. This information was dispatched over radio. An officer dressed in plainclothes, D.C. Moorcroft, working in Major Crimes in an unmarked vehicle, responded along with other officers. When he went to the vicinity of 860 Pharmacy Avenue, he saw four black males walking. It was past midnight. The officer and fellow police who were there in separate vehicles went to investigate them. Two males went to one car parked in a parking lot while another two went to a different car in the same lot. D.C. Graham, who was also in plainclothes, boxed in one vehicle with his unmarked van. According to the police, the applicant ran. D.C. Graham yelled out a police challenge. As the applicant ran through the lot, he was struck by D.C. Moorcroft who was driving his car. The applicant fell but immediately got up, ran to a fence, scaled it, and ran through the No Frill’s parking lot on the other side. P.C. Faduck who was in uniform and was advised of the foot pursuit, found the applicant, and tackled him to the ground to effect the arrest.
[6] In my view, up until the moment the applicant allegedly ran, the police had merely a basis to investigate the applicant and his friends. While they generally matched the description in terms of race, gender, and numbers, the description given by the complainant was so generic that it was not of much value in forming reasonable grounds. In addition, while the men were in the area of the home invasion, this offence was reported to have occurred sometime before. The police were not coming on scene immediately after the alleged home invasion. Finally, there was nothing particularly suspicious about the men’s conduct immediately prior. While there were reasons to investigate, this did not come close to reasonable and probable grounds for an arrest. None of the officers who testified suggested that they had anything more than a reasonable suspicion to investigate.
[7] In my opinion, the key finding is what the applicant did when the police confronted him.
[8] The applicant testified to the following. He had been at a party with some friends. He left the party with his friends. He was in the parking lot walking through some cars in order to find a spot to urinate when he was hit by a car driven by D.C. Moorcroft. His right leg was struck by the front of the car. That leg was then pushed into his left leg. The car then drove over his left foot. He was left sprawled on the ground. After a few seconds on the ground, the applicant got up as the door to that vehicle was opening, jumped over two side by side fences, and ran into a No Frills’ parking lot. He was scared because he had previously been stabbed and suffered serious injury. He testified that no one identified themselves as police to him. Once in the lot, he heard someone say he was going to catch him. He saw a police officer in uniform. This officer tackled him. The applicant testified that he had stopped running by then. As he lay on his stomach, his old injury caused him pain. The applicant so advised the officer who was on his back. At this point, the officer told him to stop struggling. The officer punched him a few times in his head. He was later cuffed by him. He testified that an officer also deliberately stepped on his injured foot. He was taken into the cruiser. The applicant testified that he was not told why he was under arrest and no right to counsel was given to him. He waited a long time in the police cruiser. When he asked why he was there, he was told to sit tight. The police also said something about a robbery. The applicant said he wanted to speak to his lawyer. Eventually an ambulance was called. He was taken to the hospital. He was taken back to 41 Division after spending a day in hospital then released with crutches and a soft cast. He got to speak to duty counsel much later.
[9] The police officers testified that before he was hit by D.C. Moorcroft, the applicant had been stopped by D.C. Graham. It was at this point that the applicant took off running as fast as he could. This is at odds with the applicant’s testimony that he was just walking.
[10] Let me address the overall credibility of the applicant’s evidence. There are some problems with his testimony. First of all, I have reliability concerns about the events as he testified to them. Even on his own testimony, he was very scared. He suffered physical injury. No doubt, his adrenaline was flowing. He was exerting himself. The events took place quickly. In these circumstances, testifying now years later without any assistance of contemporaneous notes, I find that the applicant is simply wrong or mistaken about a number of things. Here are some clear examples. The applicant testified that he lost his shoe when he came down after scaling the fence. The photo taken by the police, however, shows his shoe in the snow on the side before he scaled the fence. In addition, the applicant testified that P.C. Faduck handcuffed him. This is wrong. P.C. Faduck could not do so because of the injury he suffered to his hand. His fellow officer had to finish off the handcuffing. Another example is when he got hit by the car, he remembers seeing the passenger door open. This is inconsistent with what he said in his affidavit. In his affidavit, he said it was the driver’s side door that opened. In addition, D.C. Moorcroft was driving his vehicle alone. He opened the driver’s side door.
[11] In addition to reliability, I also have some credibility concerns. Some of the applicant’s testimony was implausible. He was evasive and inconsistent when it came to certain areas. In terms of credibility, I found his testimony about walking away from his friends to go urinate in a parking lot on a cold winter night after just coming from a party, where he could have easily relieved himself, implausible. I also find it implausible that if he was walking as he claimed, he could have been struck by the side of a forward moving vehicle. Further, his testimony was not always consistent with his affidavit. An example of this is that in his testimony he testified that he was punched at least five times as the officer tried to cuff him. When he was crossed on an alleged inconsistency with his affidavit where it appeared he averred he was only struck twice, he became evasive.
[12] On the other hand, I accept the evidence of D.C. Graham. His evidence was not undermined in cross-examination. He was clear and fair. He was credible. His evidence is material. It does not square with the applicant’s. The applicant does not even mention any encounter with this officer. According to the applicant, he was just walking past cars on his way to urinate. He denied any suggestion that D.C. Graham tried to block him in with his van. However, I accept that D.C. Graham did. This is supported by the photos taken by the police after the incident. It shows his van, front to front, with the suspect vehicle as he testified to. This makes sense given that D.C. Graham wished to investigate and therefore had a reason to block in this vehicle. D.C. Graham testified that the male at the passenger side door took off running. He later saw this male being chased by D.C. Moorcroft. I find that this male was the applicant. According to D.C. Graham, this person ran out of sight. I accept that evidence.
[13] D.C. Graham’s evidence is supported by the testimony of D.C. Moorcroft and the overall circumstances of what was taking place at the time. D.C. Moorcroft observed the applicant run. On this point, I find his testimony credible and reliable. Furthermore, I find that the applicant had a motive to run. After his arrest, P.C. Faduck retraced the path that the applicant ran. In doing so, he found a jacket that allegedly belonged to the applicant with a handgun in it. P.C. Faduck testified that although he did not actually see the applicant throw the jacket into the stairwell alcove where it was found, he did observe the applicant trying to take off the jacket. If the applicant had a firearm in his jacket as he was being pursued by the police, this would be a motive for him to run from the police.
[14] The second finding I make is that I accept that D.C. Graham and D.C. Moorcroft both identified themselves as police. They also did it in circumstances whereby it was reasonable to believe, as they did, that the applicant would have heard it. In other words, it was reasonable for the police to believe that the applicant was knowingly fleeing from the police. That said, the applicant’s testimony has left me in some uncertainty whether he actually heard the officers or not.
[15] I do not accept the applicant’s testimony that none of the officers ever identified themselves as police or advised him to stop. Given my reliability and credibility concerns, I cannot give effect to the applicant’s testimony or any inference from it that no one identified themselves as a police officer or told him to stop. In my view, based upon my assessment of the whole of the evidence, the officers did say something along these lines. It makes sense that they would have identified themselves and tried to have stopped the applicant who was running. All that said, it could be that the applicant simply did not hear them. D.C. Graham testified that he issued his police challenge to the driver. While I accept this is what the officer did, it may well be that the applicant did not hear that challenge. By this time, the applicant had already disappeared. Also, D.C. Moorcroft was yelling at the applicant as he was running away. The applicant may have heard something and indeed may have actually believed them to be police. But it could also be that he was just unable to ascertain what the words were. Or as likely, he now does not truthfully recall them saying anything. I am mindful that the applicant had been stabbed. His injuries were most serious. He was still suffering the effects. It is reasonable and plausible that the applicant would run from strange men pulling up in cars because he feared for his life. It is further reasonable that he would scale a six-foot fence to get away. This is an alternative scenario that provides a possible explanation for why he may have run.
[16] In conclusion, his testimony to the effect that these officers never identified themselves as police is not reliable. I do not accept the defence position on this. I find that the officers did in fact identify themselves. And they said it loud enough that in circumstances it was reasonable for them to believe that the applicant heard and that by continuing to run, he was ignoring and fleeing from the police.
[17] The key issue is whether it was objectively reasonable for the police to believe that the applicant was knowingly running from police officers who had identified themselves as police and who had directed him to stop. P.C. Faduck’s testimony is important here. It was this officer who formed the grounds and arrested the applicant. I find and accept that P.C. Faduck identified himself verbally as a police officer. The circumstances are such that the applicant would have seen this uniformed police officer chasing him. P.C. Faduck loudly called out to the applicant to stop on numerous occasions. Finally, despite all this, the applicant kept running. Unlike when D.C. Moorcroft and D.C. Graham were yelling at the applicant to stop, the context here is such that the applicant would certainly have heard P.C. Faduck’s commands.
[18] With respect to another conflict in the evidence, I find that the applicant was still running when P.C. Faduck tackled him. The applicant testified that he had stopped. I do not accept his testimony for the reasons I have stated with regards to his credibility. I prefer the evidence of P.C. Faduck on this point. P.C. Faduck was a good witness as I will explain later.
[19] In summary, I find that the police were investigating a radio call about a home invasion. They observed the applicant with three other black males in the vicinity of where the offence is said to have taken place. When D.C. Graham approached two of them by car, the applicant ran off. As he ran, D.C. Moorcroft’s vehicle struck him. The applicant got up immediately and scaled a fence into the No Frills’ parking lot. There P.C. Faduck and his partner, P.C. Keefer, both uniformed officers, saw him and gave chase. P.C. Faduck saw the applicant running away and it looked like he was taking off his jacket. The applicant would not stop despite being told to do so. Eventually, he was tackled by P.C. Faduck after a foot chase and arrested for robbery.
[20] The applicant made two submissions with respect to a s. 9 violation. First of all, it was argued that the police had detained the applicant for investigative purposes without the appropriate grounds to do so. The defence argued that there were two moments in time that the applicant’s s. 9 rights were violated.
[21] The first time was when D.C. Moorcroft restrained the applicant with his vehicle. The defence argued that this was a psychological detention by D.C. Moorcroft although it was fleeting. The defence submitted that there was no reasonable suspicion to detain the applicant for investigative purposes at this point.
[22] I disagree. It is stretching the facts beyond any reasonable interpretation of the evidence to find that the applicant was factually detained before he was actually arrested. The applicant was struck by the car. But he immediately fled the scene. I appreciate D.C. Moorcroft told him to stop. But the reality is that the applicant did not stop. I find that he was not detained by D.C. Moorcroft: see R. v. Nesbeth (2008), 2008 ONCA 579, 238 C.C.C. (3d) 567 (Ont. C.A.) at paras. 14-17.
[23] The defence also contended that there was a psychological detention at the moment the applicant stopped running and essentially surrendered to P.C. Faduck. First of all, no reasonable interpretation of the facts could parse out the events in such a way so that I could reasonably find there was a momentary psychological detention. It seems to me that the applicant was caught by the police officer after a foot pursuit and simply arrested. Second, factually I find that the applicant never attempted to surrender. He continued running until he was tackled.
[24] As a result, I find no violation of any s. 9 right in this regard.
[25] Secondly, the applicant argued that P.C. Faduck did not have reasonable and probable grounds to arrest the applicant. I find that P.C. Faduck did. Subjectively he believed he did: See R. v. Hall, 1995 ONCA 647, [1995] O.J. No. 544 (C.A.).
[26] Objectively he did as well. The constellation of information that the officer had to make the arrest included the fact that the applicant matched a very general description of the perpetrators of a home invasion. I appreciate that the description was very vague. Standing alone, this would provide little grounds for anything. However, it is the totality of the circumstances that must be considered.
[27] The applicant was found with other males of a similar race in the area proximate to the address where the offence took place. They were of the same number as the alleged perpetrators. Their descriptions could not exclude them. The home invasion had occurred that night relatively recently. It was close enough in time that the offenders could still reasonably be in the neighborhood. Most importantly, when the police identified themselves, the applicant ran and continued running despite police directions for him to stop. This included taking such serious steps as quickly scaling a six-foot fence. In addition, P.C. Faduck observed that the applicant was trying to remove his jacket. As the applicant ran from the alcove area, he was no longer wearing his jacket. It was a reasonable inference that the applicant by these actions was attempting to dispose of evidence or change his appearance to avoid detection. The applicant continued running from P.C. Faduck, a uniformed officer, despite the officer yelling numerous times that he was the police and the applicant should stop. Even when P.C. Faduck told the applicant he was going to catch him, the applicant did not stop running until he was tackled whereupon he resisted arrest.
[28] While the applicant points to weaknesses in some of the grounds such as the timing of the alleged home invasion and the lack of a detailed description of the persons committing the home invasion, it is the whole constellation of factors that must be considered. In my view, objectively, there were reasonable and probable grounds for P.C. Faduck to arrest the applicant for robbery: See R. v. Storrey, 1990 SCC 125, [1990] 1 S.C.R. 241 at p. 24.
B. SECTION 7
[29] There are two separate factual allegations with respect to the s. 7 issue. First of all, it is submitted that D.C. Moorcroft struck the applicant with his car. Secondly, it is alleged that P.C. Faduck used excessive force in his arrest of the applicant. It is argued that in these two ways, the police violated the applicant’s s. 7 rights.
(i) Did D.C. Moorcroft violate s. 7?
[30] I find that D.C. Moorcroft violated the applicant’s s. 7 rights. While I have already outlined my credibility concerns about the applicant’s testimony, his testimony of his encounter with D.C. Moorcroft largely finds favour with me.
[31] That said, I do not accept the applicant’s testimony that he was only walking at the time. If he was walking, I cannot see how he could have been hit by the car. It is common sense that if he was alert to his surroundings and if he was only walking, he could have avoided a collision. Also, his evidence in this regard is inconsistent with D.C. Graham’s testimony whose evidence I prefer on this point.
[32] I accept that the car was going fast for a parking lot. I also accept the applicant’s testimony about how he got struck by the car. The front panel of the car hit him in his right leg which then pushed into his left leg. The car then ran over his foot. In broad strokes, D.C. Moorcroft’s testimony about the collision is similar. He does not deny that his vehicle came into contact with the applicant. But his overall characterization is very different. The real issue is why he got hit.
[33] D.C. Moorcroft testified that he pulled into the north entrance of the parking lot. As he did so, he saw one male at the east car that D.C. Graham was investigating, run west through the middle row of cars. He was a black male with dark clothes. The officer testified he was going 10 to 15 kmh. The applicant then ran northbound. The officer testified that he stopped his car at this time and was planning on exiting. However, referring to the applicant, the officer testified that “he ran into my car”. In cross, he denied running into the applicant. He denied trying to cut him off. In his testimony, the applicant ran into the front panel of the car just before the front tire near the fender. The applicant fell to the ground. D.C. Moorcroft got out and yelled “police stop”. The officer said it took about a second for him to exit the car. Even by then, the applicant was already on his feet. He was in full sprint as he started to yell. The applicant then jumped up and over the fence, faster than D.C. Moorcroft ever saw anyone scale a fence. The officer did not follow.
[34] Looking at his testimony, to be frank, I have a hard time envisioning the contact occurring as the officer testified to. Based on how he described it, the applicant would have just run into his vehicle. D.C. Moorcroft claimed that he was already stopped when the applicant did that. I cannot see how the applicant could have run into the stopped car with such force that he would have fallen to the ground. According to the officer, he could see the applicant running. Why then would he have come so close to the applicant? This is not a case where an individual comes out of a blind zone. Further, it is unfathomable how the applicant could have sustained the injuries he did if he just ran into the officer’s car. The vehicle ran over the applicant’s foot. D.C. Moorcroft denied doing so. But given his position in the car, D.C. Moorcroft would not be able to observe that happening. I find that it happened. I can see no other realistic way this injury could have occurred. In the end, I find the testimony given by the officer implausible. It may well be from his perspective as the driver of the car that he believed the applicant ran into his car. But that is not what happened.
[35] While not a particularly weighty factor, I am mindful that in an unrelated incident, D.C. Moorcroft pled guilty to assault causing bodily harm and received a conditional discharge. Further, he pled guilty to Police Act charges of discreditable conduct when he gratuitously called someone who was arrested a “homo”. While D.C. Moorcroft expressed regret for his actions, I find that this past discreditable conduct has done nothing to bolster his overall credibility.
[36] What I find occurred is that the applicant was in fact running. The officer was going fast through the lot to try and stop him from getting away. He could see the applicant running. As they intersected, the applicant made a sudden turn to the north. The officer struck the applicant. The applicant did not run into a stopped vehicle. Rather, the two came together suddenly and unexpectedly. The front of the vehicle (driver’s side) struck the applicant’s legs and then ran over his left foot.
[37] However, this was not a deliberate attempt to run down or strike the applicant. While the injury suffered was serious, had this been the officer’s intent, the injuries would have been more catastrophic. Rather, the officer was trying to cut the applicant off at the pass, so to speak. But given the speed of the applicant and his sudden move, the officer miscalculated. He drove to prevent the applicant from fleeing. But the officer did not intend to strike him. The contact between vehicle and man was therefore accidental in my view. But the actions of the officer were deliberate.
[38] I have carefully considered whether this should amount to a s. 7 violation. I am mindful that this was a very dynamic situation. The officer was discharging his duty in trying to stop someone who was fleeing. He did not intend to hit the applicant. While all this is true, I conclude that it was unnecessary and careless for D.C. Moorcroft to drive the way he did. According to him, he was only going to place the applicant under investigative detention to further his investigation into the home invasion. He was not intending to arrest the applicant. There was no urgency for him to drive in this fashion. At this point in time, he could not have been aware that the applicant would go to considerable lengths in an attempt to flee. He was running but he may well have come to a stop with less aggressive action than that which D.C. Moorcroft took. D.C. Moorcroft did not know what had transpired between D.C. Graham and the applicant. The action D.C. Moorcroft took was indeed aggressive. He drove quickly through a parking lot to cut off the applicant. The applicant was on foot and was very vulnerable to a moving motor vehicle. It does not take much when a vehicle is trying to cut off a pedestrian for something very tragic, though unintended, to happen.
[39] I find, looking at the whole of the circumstances, that D.C. Moorcroft violated the applicant’s s. 7 right: See R. v. Nasogauluak, 2010 SCC 6, [2010] 1 S.C.R.. D.C. Moorcroft’s actions were very careless. While the situation unfolded quickly, D.C. Moorcroft deliberately made a choice to drive in the fashion that he did. The applicant was struck by the vehicle and suffered injury. Finally, given the information D.C. Moorcroft had, he was not chasing a fleeing felon. In his own words, he was going to simply detain the applicant for investigative purposes.
(ii) Did P.C. Faduck violate s. 7?
[40] I have found that the applicant was running away from P.C. Faduck. He did not stop running as he claimed. Both the applicant and P.C. Faduck confirm the latter said he was going to catch him. The applicant claimed he stopped running at this point. However, looking at the maps and photos, where the applicant was finally arrested was at some distance along the southside of the plaza from where P.C. Faduck would have had to exit the car and run on the sidewalk. Had the applicant stopped running, his place of arrest would have been much closer to the southwest corner of the plaza building. Further, the circumstances also support my conclusion that the applicant continued to run. P.C. Faduck’s testimony makes sense. He said he was going to catch him. Then he got out and did. But only after a run. I found P.C. Faduck to be a credible witness. I believe him on this point. Finally, P.C. Keefer confirmed that this is what happened. He was not undermined in cross-examination. P.C. Keefer was honest and accurate. He answered questions fairly and consistently. He did not overreach in his testimony.
[41] I find that the applicant struggled with P.C. Faduck after he was caught. Even on his own testimony, the applicant said that while his right arm was being handcuffed, he was complaining about stomach pain and trying to elevate his body to relieve the pressure on his stomach. He admitted there was a struggle. He also admitted the officer was telling him to stop struggling.
[42] It is reasonable for me to envision how the takedown and attempt to arrest the applicant led to pain and physical resistance by the applicant. The nature of his past injuries would have caused him such pain that it would be foreseeable that he might struggle. Indeed, the thrust of the applicant’s evidence confirms that. P.C. Faduck would not have known about the past injuries and their effects.
[43] It is not disputed that the officer struck him on the head. What is the bone of contention is the number and nature of the strikes.
[44] In assessing the evidence, I find the applicant’s testimony more implausible than P.C. Faduck’s. There are a number of reasons for this. He testified that P.C. Faduck completed his handcuffing. This is wrong. P.C. Keefer had to come and assist because P.C. Faduck’s hand was injured. The applicant admitted that had he been struck five times, causing his face to hit the pavement on each blow, his face would have been injured. But there is no evidence of any physical injury to his face. Even the applicant testified he only suffered a bump on the back of his head. The medical records reveal that the applicant made no complaint about his face or head on the night of the arrest. Finally, as I have already found, I have serious reservations about the applicant’s overall credibility and reliability.
[45] On the other hand, I found P.C. Faduck’s testimony candid and reliable. He gave it in a very straightforward fashion. He was not impeached in cross-examination. He bore no animus to the applicant. He was very detailed and descriptive in his testimony about the arrest. P.C. Faduck testified that he tackled the applicant, took him to the ground with his chest on the applicant’s back, and straddled his legs. P.C. Faduck told him to stop struggling. The applicant admitted that the officer said this. P.C. Faduck told him to bring his arms behind his back. When the applicant refused to do this and appeared to push up in an attempt to get away, P.C. Faduck pulled and pushed the applicant’s right arm to prevent him. At one point, according to P.C. Faduck, the applicant took his right elbow and struck the officer in his forehead. There is a photo of an injury/bruise on P.C. Faduck’s face. This is consistent with P.C. Faduck’s testimony about how he was struck. P.C. Faduck then took his right fist and struck the applicant’s face twice, using the meaty part of his hand below his thumb. When he did this, he injured his hand. P.C. Faduck testified that he did this to “distract” the applicant in order to stop him from trying to get away and to prevent another assault upon himself. At this point, the applicant stopped struggling and complied with the officer’s request; he put his arms behind his back. P.C. Faduck put the handcuffs on his right arm but was unable to cuff his left arm because the officer’s hand had swollen. P.C. Keefer arrived to complete the handcuffing.
[46] I have accepted as a fact what P.C. Faduck testified happened during the arrest. In this case, the applicant was struggling and resisting arrest. Whether the applicant threw his elbow deliberately or not, P.C. Faduck was struck in the forehead by it during the arrest. This was a fast moving and dynamic situation. P.C. Faduck made the decision to strike the applicant twice with his fist. P.C. Faduck admitted the blows were hard. However, they caused no visible injury. He did this in order to gain compliance from the applicant and to prevent further behavior that P.C. Faduck reasonably believed was assaultive. The officer’s actions were successful. I find, in the circumstances, that the force used was reasonable. It was not excessive in order to effect the arrest: See R. v. Mulligan (2000), 2000 ONCA 5625, 142 C.C.C. (3d) 14 (Ont. C.A.) at para. 40 – 41; R. v. Pan, 2012 ONCA 581, 292 C.C.C. (3d) 440 (Ont. C.A.) at paras 47-48.
[47] On a final issue, I do not accept that a police officer deliberately stepped on the applicant’s injured left foot. The passage in the applicant’s affidavit testifying to such does not reveal who that officer is. Indeed, in chief, it seemed like the applicant forgot about this occurring until his counsel specifically pointed it out. When asked to identify who that officer was, it seemed that the applicant just said the arresting officer without any real memory to support that. The circumstances of this officer stepping on his foot are entirely without supporting detail. I find the applicant not credible on this point. In addition, none of the officers ever admitted to doing this. Aside from inhumane cruelty, there is no motive for anyone to do such a thing. I find that it simply did not happen.
[48] Thus, I find there to be no violation of s. 7 of the Charter by P.C. Faduck.
C. SECTION 10
[49] The applicant said he was probably first read his rights at the hospital. He also testified that he was never told that he was under arrest for anything. He recalls the officers saying something about a robbery when he was in the cruiser but that was all. I do not accept his testimony. He was not a reliable or credible witness.
[50] I prefer the evidence of P.C. Faduck and P.C. Keefer. As I have said, I found both officers to be truthful and impressive witnesses. I accept that P.C. Faduck advised the applicant that he was under arrest for robbery. Given that a struggle was going on during the arrest, this was done as soon as it was practicable. Further, when P.C. Keefer arrived and took custody of the applicant, the applicant was again advised of the reasons for his arrest and given his right to counsel. When he was asked whether he wanted to call a lawyer, he replied that he did and he wanted to call Ms. Smith. Based upon these findings of fact, I find that there was no violation of s. 10(a) of the Charter. Further, I find that the informational component of the s. 10(b) right to counsel was complied with.
[51] However, there is also an implementation component of the right to counsel. The applicant argues that this part of the right was not complied with. There are two aspects to this argument. First of all, it is submitted that there was an unacceptable delay in giving the applicant access to counsel. Secondly, it is submitted that before he had a reasonable opportunity to contact his lawyer, P.C. Keefer questioned the applicant.
[52] With respect to the first submission, I do not agree with the applicant. Despite the applicant’s evidence, which I do not accept for the reasons I have already given, I find that the applicant was permitted to speak to duty counsel the morning of December 13, 2014. A phone call was made to Ms. Smith as well. A message was left. However, she did not return that call. The applicant chose to speak to duty counsel. He exercised his right to counsel.
[53] That being said, I agree that there was a substantial delay from the time the applicant asked to speak to counsel to the time he spoke with duty counsel. However, I do not agree that the police failed to assist the applicant in exercising his right to counsel. The exceptional circumstances must be taken into account. First of all, I find no fault when the police did not facilitate his right to counsel while the applicant was detained in the police cruiser at the scene. He was in custody at the time. He was handcuffed. The police testified that he could not be afforded privacy in the circumstances. The applicant was not allowed to keep his own cellphone as it was seized as potential evidence. The information from the home invasion was that a cellphone and wallet was stolen. For understandable reasons, the officers would not let him use their cellphones. Finally, the applicant was in pain from the injury to his foot. This pain increased over time as he sat in the cruiser. Based on the footage of the car camera, by the time the ambulance arrived, it is apparent that the applicant was in no state of mind to exercise his right to counsel given the discomfort he was in.
[54] What the applicant required was medical attention. He received that medical attention both at the scene and at the hospital. This is another reason for the delay in the applicant getting access to a lawyer. It was a busy night and it took some time for the ambulance to arrive. Indeed, an ambulance from Durham Region arrived to assist the applicant and not a local ambulance. Then the applicant was taken to the hospital. There he was seen in Emergency, taken for x-rays, investigated, treated and given a soft cast and crutches. All of this took place before the applicant could be taken back to 41 Division where he was given access to counsel. While the applicant argued that he should have been given a phone call while he was at the hospital, I have not been persuaded by the evidence that this was either possible or practical. He was being treated at the time. I heard no evidence that there were facilities available at the hospital whereby the applicant could exercise his right to counsel in private while at the same time addressing any safety or security concern. It must not be forgotten that the applicant went to considerable lengths to avoid apprehension.
[55] I therefore find that giving the applicant access to counsel back at 41 Division after his physical condition was investigated and treated was a reasonable response by the police to his request to call a lawyer on the facts of this case.
[56] With respect to the second argument, I agree with the applicant. I find that there was a violation of s. 10(b). When an accused asks to speak to a lawyer, in the absence of a valid waiver, the police must refrain from attempting to question them before they have had a reasonable opportunity to call a lawyer. In this case, P.C. Keefer did not refrain from asking the applicant questions after he had asserted that he wished to call a lawyer.
[57] While the applicant was in the back of P.C. Patterson and Zheng’s cruiser, P.C. Keefer asked the applicant why he had run. The applicant answered it was because he was scared. In the back seat of his own cruiser, P.C. Keefer asked the applicant where he lived. The applicant asked P.C. Keefer if he had found his shoe. P.C. Keefer asked him where he had lost his shoe. He said he lost it while jumping over the fence. P.C. Keefer asked no other questions.
[58] The question about his address is really of no moment. Indeed, none of the responses given by the applicant were particularly inculpatory. That being acknowledged, the answers do contain admissions by the applicant that he had jumped the fence and had run. The questions were relevant to his potential participation in a criminal offence. Regardless of the probative value of his statements, the questions should not have been put to the applicant. He had exercised his right to counsel. He had not yet had a reasonable opportunity to contact counsel. There is no evidence that the applicant waived his right to counsel by answering these questions.
[59] As a result, I find a violation of s. 10(b). I recognize that the Crown does not seek to tender any of these statements. However, this does not rehabilitate the Charter violation.
D. REMEDY
[60] The parties agree that the test for a stay of proceedings is high. A stay is the appropriate remedy only in the “clearest of cases”. Here there is no issue that the fairness of the trial is affected. I am dealing with the residual category. Two criteria must be satisfied: (i) the prejudice caused by the abuse in question will be manifested, perpetuated, or aggravated through the conduct of the trial, or by its outcome; and (ii) no other remedy is reasonably capable of removing that prejudice. Where the remedy remains uncertain after considering these two factors, it is appropriate to balance the interests that would be served by granting a stay of proceedings against the interest that society has in having a final decision on the merits: See Canada v. Tobias, 1997 SCC 322, [1997] 3 S.C.R. 391 at paras. 90, 92.
[61] I believe it is important to remember the context in which the injuries were suffered by the applicant. The injuries were not suffered when the applicant was in police custody. Here the injuries were suffered while the police were trying to investigate the applicant and he decided to flee. When an individual suffers injuries at the hands of the police while detained or in custody, the individual is vulnerable and under the complete control of the state. In this context, the use of unjustified force against the individual is rightfully condemned by society. It cannot be condoned by the courts. While unjustified force or carelessness by the police leading to injury cannot be condoned by the courts either when an accused person is being chased, the context is different. It is often, like here, a very dynamic situation. Sometimes the police err in the assessment and execution of what kind of police action is required in effecting a detention. This is different in nature from force used against a person who is already in police custody: See R. v. Tran, 2010 ONCA 471, 257 C.C.C. (3d) 18, at para. 94.
[62] In addition, this is not a case where D.C. Moorcroft was deliberately trying to inflict harm upon the applicant. If that were the case, it would be very aggravating. Rather, in my view, he was trying to prevent the applicant from fleeing. He sped up to get to where the applicant was. However, he miscalculated and his vehicle struck the applicant. I am further mindful that this occurred, in part, because the applicant was running so heedlessly to get away and made a sudden turn northwards. While this does not excuse the police conduct, the applicant was also in part the author of his own misfortune.
[63] There was no other gratuitous violence directed towards the applicant by any officer. D.C. Moorcroft did nothing else to the applicant. He did not have time to actually see if the applicant was alright because he was quickly on his feet running again. I have already found that P.C. Faduck did not use excessive force in his arrest. Once the applicant voiced his complaints about being injured, he was treated appropriately. An ambulance was called. He was taken to hospital. There was no pattern of misconduct or continuing mistreatment that I should be concerned with. There was no attempted cover up. A senior sergeant was sent to the scene. It seems like the appropriate steps were taken in line with the protocol dealing with potentially reporting the matter to the SIU.
[64] The applicant did not suffer serious injury from the conduct. It was a soft tissue injury. He had crutches but received no medication for any pain. He seems to have recovered fully. While the applicant did complain about other medical issues, these were unrelated to his interaction with D.C. Moorcroft. Further, these other complaints related to his stomach area are undocumented by any medical records.
[65] With respect to the s. 10(b) violation, this was far from an egregious violation. P.C. Keefer did not seriously interrogate the applicant about his involvement in any criminal offence. None of the police officers interrogated or interviewed the applicant before he was taken to 41 Division and contacted duty counsel. The questions posed by P.C. Keefer were relatively innocuous. It was the applicant who first asked about his shoe. None of the answers assisted the police in furthering their investigations. It was a mistake on the part of P.C. Keefer to question an accused who had asked to speak to a lawyer but this mistake, in the grand scheme of things, was minor.
[66] I also find that the officers did not continue the misconduct into the trial. Even D.C. Moorcroft, whose testimony I did not accept, did not lie in his evidence. My impression was that he viewed the whole incident as the applicant running into his car. That wrong belief may have been affected by his perception from his place inside the car, in the driver’s seat. While I prefer the applicant’s testimony on this, I did not find that D.C. Moorcroft deliberately tried to mislead me.
[67] In the final analysis, I do not find that a stay is required here. Given the relatively minor nature of the Charter violations, continuing with this prosecution would not undermine the public’s confidence in the administration of justice.
[68] Finally, there is another appropriate remedy available in this case. Should this matter get to that stage, given the factors referred to above, a sentence reduction is the appropriate remedy for the police misconduct: See R. v. Nasogauluak.
[69] In conclusion, I find that the criteria for a stay have not been met. This is not one of the clearest of cases calling for such a remedy. In my opinion, it is not really necessary to address any balancing of interests. However, I will point out that these charges are serious firearm offences where there is a compelling public interest in seeing a trial on the merits.
[70] The application for a stay of proceedings is dismissed.