COURT FILE NO. CR-90000325-0000 DATE: 20190612 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – YAAS ABDILLAHI

COUNSEL: K. Aird, for the Crown C. Morris, for Mr. Abdillahi

HEARD: May 6-9, 2019

REASONS FOR JUDGMENT

SCHRECK J.:

[1] Yaas Abdillahi was armed with a knife when he encountered two police officers in the stairwell of an apartment building. After making a threatening gesture with the knife, he ran away. The two officers ran after him with their firearms drawn. They caught up to him outside of the building and took him to the ground. A struggle ensued during which Mr. Abdillahi refused to remove his hands from under his body despite repeated directions from the officers to do so. Although he had by then discarded the knife, the officers did not know this. During the course of the struggle, both officers struck Mr. Abdillahi on the head with the butts of their firearms, causing bruises and bumps. After other officers arrived and joined the struggle, Mr. Abdillahi was subdued. A search of his person revealed a quantity of various controlled substances and some cash.

[2] Mr. Abdillahi is charged with possession of controlled substances for the purposes of trafficking (Count 1) and possession of the proceeds of crime (Count 2). At his trial, he alleged that the officers who arrested him used excessive force, resulting in a violation of his s. 7 Charter rights. He seeks as a remedy a stay of proceedings pursuant to s. 24(1) of the Charter or, in the alternative, the exclusion of evidence pursuant to s. 24(2).

[3] For the reasons that follow, I am persuaded that while the police were entitled to use some force in the circumstances, striking Mr. Abdillahi on the head with a loaded gun went beyond what was reasonable and resulted in a violation of his s. 7 Charter rights. However, I am not persuaded that this is one of the clearest of cases in which a stay of proceedings is warranted, nor am I persuaded that exclusion of the evidence is necessary to protect the long-term reputation of the administration of justice. There is no real issue that Mr. Abdillahi possessed the controlled substances for the purpose of trafficking, but there is no evidence that the cash was the proceeds of crime. He is accordingly found guilty on Count 1 and not guilty on Count 2. Whether and to what extent the Charter breach will result in a reduction of sentence will be determined after the sentencing hearing.

I. EVIDENCE

A. The Initial Encounter

[4] At 3:24 a.m. on May 20, 2017, an individual reported a robbery with a firearm in a building on Lawrence Avenue East. Cst. Kyle Neadles and Cst. Service, who were working together, and Cst. Piratheepan Vilvanathan, who was working alone, responded to the call and arrived at the building at the same time. They entered the stairwell and walked to the ninth floor, where they encountered two men.

[5] As the officers were speaking to the two men, another man entered the stairwell holding a large knife with a seven-inch blade. There is no issue that this was Mr. Abdillahi. Cst. Neadles immediately drew his firearm, pointed it at him, and shouted at him to drop the knife. Mr. Abdillahi made a lunging motion in the direction of the officers, although he did not actually move his feet. He then ran out of the stairwell.

[6] The officers chased Mr. Abdillahi across the building and into another stairwell, all the while shouting at him to stop. Mr. Abdillahi was still holding the knife, so Cst. Vilvanathan drew his firearm. Mr. Abdillahi ran down the stairs and out onto the street. The officers caught up to him in a grassy, bushy area behind a fence near a house. By this point, he had stopped running and was crouching in an apparent attempt to hide. Cst. Neadles and Cst. Vilvanathan, who both still had their firearms out, took him to the ground and a struggle ensued.

B. The Struggle

[7] The officers tried to gain control of Ms. Abdillahi’s hands, which were underneath his body, but he continued to struggle. Cst. Vilvanathan testified that he used the magazine of his firearm to strike Mr. Abdillahi in the area of his head and shoulders three or four times. While he initially described “striking” Mr. Abdillahi with the firearm, he later described it as “jabbing”. He agreed that he struck him hard enough to cause bruising. Cst. Neadles also struck Mr. Abdillahi with the butt of his gun, which he described as “distractionary strikes”. He testified that he struck him with “as much force as I could” on the shoulders, but denied hitting him on the head. Both officers testified that they believed that Mr. Abdillahi still had the knife. It later turned out that he no longer had it.

[8] Cst. Timothy Dasilva and Cst. Tyler Rowles also responded to the radio call. When they arrived on scene, they saw two police officers running after somebody. They ran over to where they were, by which point the officers were on the ground struggling with Mr. Abdillahi. Cst. Dasilva joined the struggle and attempted to assist in subduing Mr. Abdillahi. Cst. Rowles accidentally ran into a tree branch and injured his eye, but then also joined the struggle.

[9] Two other officers, Cst. Mark Hodgins and Cst. Anthony Hamilton, arrived on the scene and saw Cst. Neadles and Cst. Vilvanathan engaged in a struggle with Mr. Abdillahi. According to Cst. Hodgins, Mr. Abdillahi was lying face down with his hands under his body. Cst. Hodgins, who had received information while on his way to the scene that the suspect may be armed with a knife, told Mr. Abdillahi to show his hands. When Mr. Abdillahi did not comply, Cst. Hodgins delivered two “knee strikes” to Mr. Abdillahi’s right quadriceps. Mr. Abdillahi reacted by removing his hands from under his body, which allowed the officers to handcuff him. By this point, Cst. Vilvanathan had disengaged from the struggle and had replaced his firearm in its holster.

[10] No knife was found on Mr. Abdillahi’s person or nearby, nor was one ever seized.

C. Observations by Other Officers

[11] Cst. Hamilton testified that he was not able to get close to the struggle because it was taking place in a confined area. The area was well lit and he saw the struggle and heard the other officers tell Mr. Abdillahi to show his hands. However, he did not see any officer strike Mr. Abdillahi. He explained that he did not make notes of what the other officers were doing because it was not his practice to write down what other police officers did. It was his view that it was up to each officer to explain his own conduct. When asked whether he recalled seeing a firearm, he responded “Not specifically”. He did not draw his own firearm because in his view, it was neither necessary nor safe to do so.

[12] Cst. Hodgins testified that he did not see any other officer strike Mr. Abdillahi. His focus was on Mr. Abdillahi and not the other officers. He testified that he did not see any other officer holding a firearm. He did not draw his own firearm because it was his view that it was neither appropriate nor necessary to do so.

[13] Cst. Dasilva initially testified that he did not recall seeing a firearm. However, at the preliminary inquiry he had testified to seeing Cst. Neadles with his firearm drawn, but not to seeing him use it to strike Mr. Abdillahi. He did not recall seeing Cst. Vilvanathan with a firearm. Cst. Dasilva did not draw his own firearm because he did not believe that it was necessary to do so.

[14] Cst. Rowles also did not recall seeing a firearm. He did not draw his own because he did not believe it to be necessary.

D. Search and Seizure

[15] At the time he was handcuffed, Mr. Abdillahi was holding a cell phone and a clear plastic bag containing a white substance. A search of his person resulted in the seizure of several more bags containing white substances and a quantity of Canadian currency. Mr. Abdillahi was told that he was under arrest for possession of controlled substances and then taken to one of the nearby police cruisers. He refused to walk and was carried by two officers. He was then searched again and more substances believed to be drugs were seized and cash were found.

E. Attendance at the Hospital

[16] Cst. Hodgins and Cst. Hamilton drove Mr. Abdillahi to 43 Division police station. When they arrived, Mr. Abdillahi advised the officers that he wanted medical attention. After speaking to their staff sergeant, the officers drove Mr. Abdillahi to Scarborough General Hospital. He was seen by a physician, who dressed wounds on his hands and ordered that he undergo a CAT scan and be given a tetanus shot. He was later cleared to be released from the hospital and returned to the police station.

[17] Mr. Abdillahi had a number of lacerations on his hands which were bandaged. He had bruising and swelling to the left of his forehead and around his left eye. There were a number of small bumps on his head.

F. Use of Force Reports

[18] Both Cst. Vilvanathan and Cst. Neadles testified that they had prepared use of force reports and submitted them to a superior officer, but did not know what had happened to them after that. They were not forwarded to the Ontario Police College as required. Cst. Neadles testified that he did not retain a copy of the report. Cst. Vilvanathan testified that he may have kept a copy on the hard drive of his computer. He was later re-called as a witness and testified that he had located a copy of the report on his hard drive.

II. ANALYSIS

A. Section 7 of the Charter – Excessive Force

(i) Legal Principles

[19] Police officers are sometimes required to use force to carry out their duties and are expressly authorized to do so by s. 25 of the Criminal Code. There are, however, limits on the extent of force that may be used, as was explained in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 34:

Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm. The officer’s belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis (Chartier v. Greaves, [2001] O.J. No. 634 (QL) (S.C.J.), at para. 59). If force of that degree is used to prevent a suspect from fleeing to avoid a lawful arrest, then it is justified under s. 25(4), subject to the limitations described above and to the requirement that the flight could not reasonably have been prevented in a less violent manner.

[20] In evaluating whether the amount of force used by the police was excessive, courts will usually afford the police a degree of latitude for the reasons outlined in Nasogaluak, at para. 35:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances.

[21] However, there will be some cases where the police use force beyond what is permissible and cause injury to a suspect. When that occurs and the suspect’s security of the person is violated in a way that does not accord with the principles of fundamental justice, the result is a breach of s. 7 of the Charter: Nasogaluak, at para. 38.

(ii) Application to This Case

[22] In this case, the police were, in my view, entitled to use some force. Mr. Abdillahi had been armed with a knife which he had used to make a threatening gesture towards the police. At the time the police were struggling with him on the ground, they had reason to believe that he still had the knife. Mr. Abdillahi had not been compliant with directions to him and was continuing to refuse to show his hands and to struggle. It was suggested to the officers that when they caught up with Mr. Abdillahi outside of the building, they could have simply directed him to get down onto the ground. However, Mr. Abdillahi had previously ignored their commands and there was little reason to believe that he would not continue to do so. In these circumstances, the police really had no option but to use force.

[23] While the police were entitled to use some force in this case, as outlined earlier the amount of force they were entitled to use was limited to what was reasonable in the circumstances. I have no doubt that the officers were entitled to take Mr. Abdillahi to the ground and attempt to gain control of his hands. I am also satisfied that it was appropriate for Cst. Hodgins to deliver knee strikes to Mr. Abdillahi’s quadriceps. I am, however, troubled by Cst. Neadles’s and Cst. Vilvanathan’s actions in striking Mr. Abdillahi in the head with their loaded guns. While Cst. Neadles denied striking Mr. Abdillahi in the head with his gun and Cst. Vilvanathan claimed that he had only “jabbed” him, the injuries on Mr. Abdillahi’s head, which consisted of bruising and several bumps, suggest that he was struck on the head at least several times.

[24] I heard no evidence as to how the police are trained to use their guns. As a matter of common sense, however, it seems to me that striking somebody on the head with a loaded gun (as I am assuming these guns were) is extremely dangerous. To begin with, striking a person on the head with a blunt object creates a risk of serious injury. In addition to this, using a loaded firearm in the course of a physical struggle carries with it a risk that it will be discharged accidentally. In this case, the two officers could well have seriously injured or killed Mr. Abdillahi or, for that matter, each other.

[25] I note that all of the other officers on the scene who were involved in the struggle, Cst. Hodgins, Cst. Hamilton, Cst. Dasilva and Cst. Rowles, testified that they did not draw their own firearms because it was not necessary to do so. Cst. Hodgins testified that doing so would be not be “appropriate” and Cst. Hamilton testified that it would have been “unsafe”.

[26] The most telling evidence, however, is the denial by virtually every other officer present that they saw either Cst. Neadles or Cst. Vilvanathan with a gun. The only officer who admitted seeing a gun was Cst. Dasilva, who acknowledged seeing Cst. Neadles with one, but only after being confronted with his testimony at the preliminary inquiry. In my view, it defies credulity that none of these officers noticed that not one, but two of their fellow officers had drawn their firearms. Police officers usually draw their firearms only in situations involving danger to themselves or others. This is something that the other officers would have been alert to. All of them were in close proximity to the struggle and the evidence was that the area was well lit. It simply cannot be the case that not a single officer noticed the firearms. The only possible explanation for their denial of having seen a firearm is that they viewed the use of firearms as inappropriate in the circumstances and wanted to either distance themselves from the actions of their fellow officers, or else they did not know that their fellow officers had admitted to using the firearms and wished to protect them.

[27] Based on all of this evidence, I am satisfied on a balance of probabilities that using the loaded firearms to strike Mr. Abdillahi on the head was not reasonable in the circumstances. Doing so put him at risk of serious harm and constituted a violation of his s. 7 Charter rights.

B. Section 24(1) of the Charter – Stay of Proceedings

[28] Mr. Abdillahi seeks a stay of proceedings. He does not argue that the Charter violation would render his trial unfair, but submits that the conduct of the police was so egregious that to allow the prosecution to continue would undermine confidence in the administration of justice: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 31-39; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 55; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at para. 91.

[29] A stay of proceedings is “the most drastic remedy a criminal court can order”: Babos, at para. 30. It will be only be used in the “clearest of cases”, that is, “exceptional” and “relatively very rare” cases where the state misconduct is “so egregious that the mere fact of going forward in light of it will be offensive”: Babos, at para. 31; Tobiass, at para. 91. Stays of proceedings have been ordered in cases involving the excessive use of force by the police: R. v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131, at paras. 90-91, 103-107.

[30] In my view, this is not a case in which a stay of proceedings is appropriate. This so for several reasons. First, unlike in Tran and other cases, this is not a case of gratuitous police brutality inflicted in circumstances were no force was justified. Rather, this is a case where the police were entitled to use force but in doing so, crossed the line of what was reasonable in the circumstances. Second, I am not persuaded that the officers were motivated by any wish to harm or endanger Mr. Abdillahi. It more likely that they simply exercised bad judgment in the course of a stressful and fast-moving situation. Third, while Mr. Abdillahi was injured, his injuries were neither permanent nor serious. Fourth, the conduct of the police in this case was nowhere nearly as egregious as the conduct of the police in Nasogaluak, yet a stay was not deemed to be appropriate in that case: Nasogaluak, at para. 17.

C. Section 24(2) of the Charter – Exclusion of Evidence

(i) “Obtained in a Manner”

[31] In the alternative to his request for a stay, Mr. Abdillahi seeks to have the evidence seized at this time of his arrest excluded pursuant to s. 24(2) of the Charter. That section provides that evidence can be excluded as a remedy for a Charter breach if it was “obtained in a manner” that infringed the Charter. The courts have adopted a generous approach to determining whether evidence was “obtained in a manner” that infringed the Charter. Section 24(2) will be engaged as long as there is a sufficient connection between the obtaining of the evidence and the breach. The connection may be temporal, contextual, causal or a combination of the three: R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21; R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 50-70. In this case, there was no causal connection between the evidence and the breach. However, there was a close temporal connection which was sufficient to engage s. 24(2): Pino, at para. 74.

(ii) Seriousness of the Violation

[32] Whether evidence should be excluded will depend on a balancing of the three factors described in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, beginning with the seriousness of the Charter violation. As noted earlier, in this case the police simply exercised poor judgment and were not motivated by any wish to harm Mr. Abdillahi. While any unreasonable use of force is a serious matter, the fact that the police did not act maliciously renders the breach less serious.

[33] The fact that police officers gave dishonest testimony, as I find several officers did in this case in denying having seen any firearms, usually exacerbates the seriousness of a violation: R. v. Harrison, 2009 SCC 34; [2009] 2 S.C.R. 494, at para. 26; Pino, at para. 102. However, the circumstances of this case are unusual in that the officers who actually breached Mr. Abdillahi’s Charter rights admitted the facts giving rise to the breach. It was other officers, perhaps acting out of some misguided sense of loyalty, who attempted to mislead the court. While defence counsel urged me to find that Cst. Neadles and Cst. Vilvanathan lied about having prepared use of force reports, I am not satisfied that they did so.

[34] In all the circumstances, I find the breach in this case to be moderately serious.

(iii) Impact of the Breach

[35] The impact of the breach was also moderate. While Mr. Abdillahi did sustain injuries, they were relatively mild and I heard no evidence of any ongoing issues. As noted earlier, the breaches have no impact on the fairness of his trial. As well, there was no causal connection between the breach and the evidence sought to be excluded. While the lack of a causal connection does not mean that s. 24(2) is not engaged, it does weigh against the exclusion of the evidence: R. v. Lenhardt, 2019 ONCA 416, at para. 11; R. v. Do, 2019 ONCA 482, at para. 11.

(iv) Society’s Interest in an Adjudication on the Merits

[36] The evidence in this case is reliable and critical to the Crown’s case. This weighs in favour of admission: Grant, at paras. 81-83. Given that the seriousness of the breach and its impact are only moderately serious and that there is no causal connection between the breach and the evidence, after balancing the various factors I am not persuaded that the evidence must be excluded to protect the long-term reputation of the administration of justice.

D. Remedy in Sentencing

[37] It is now well established that a Charter breach may be relevant on sentencing, either as part of the circumstances of the offender or as a s. 24(1) Charter remedy: Nasogaluak, at paras. 39-64. The parties have agreed that the determination of whether and to what extent the breach in this case affects the sentence that will be imposed should be made after the sentencing hearing.

E. The Counts

(i) Count 1

[38] Counsel for Mr. Abdillahi made no submissions on Count 1. In my view, it is clear from the circumstances that Mr. Abdillahi had both knowledge and control of the substances on his person, and the manner in which they were packaged show that he did so for the purpose of trafficking. There will accordingly be a conviction entered on Counts 1.

(ii) Count 2

[39] With respect to Count 2, possession of the proceeds of crime, the Crown acknowledges that there is no evidence as to the source of the cash found on Mr. Abdillahi’s person. He is accordingly found not guilty on that count.

III. DISPOSITION

[40] Mr. Abdillahi is found guilty on Count 1 and not guilty on Count 2.

Justice P.A. Schreck Released: June 12, 2019.