Court File and Parties

COURT FILE NO.: CR-20-70000375-0000 DATE: 20220314 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – NICHOLAS HUSSEY-RODRIGUES

COUNSEL: A. Cox, for the Crown C. Rosemond, for the applicant

HEARD: December 6, 7, 9, 13-15, 2021

REASONS FOR JUDGMENT ON CHARTER APPLICATION

R. MAXWELL J.

[1] The applicant, Nicholas Hussey-Rodrigues, is charged with various firearm offences under the Criminal Code of Canada, R.S.C. 1985, c. C-46.

[2] He brings an application pursuant to ss. 8, 9, and 10(a)(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, alleging that he was unlawfully detained and searched by police on July 22, 2019. He seeks an order excluding the evidence obtained, a firearm, pursuant to s. 24(2) of the Charter.

[3] He further brings an application pursuant to ss. 7, 11(d), 12 and 24(1) of the Charter seeking a stay of proceedings on the basis that police used excessive force in detaining him, in breach of his right to security of the person under s. 7 of the Charter, and his right to be free of cruel and unusual punishment under s. 12 of the Charter. He seeks a stay of proceedings pursuant to s. 24(1) of the Charter.

[4] The Crown called four officers – Detective Constable Luczyk and Detective Duran (both of the Guns and Gangs Task Force), Detective Constable Yan, and Police Constable Joseph Pisano (both from 55 Division). Officers Luczyk, Yan and Duran were all present for the same incident which led to the applicant’s detention and a firearm being seized. Each made observations from different vantage points and had different involvement in the incident. PC Pisano arrived after the incident and was involved in providing the applicant with his rights to counsel and in transporting the applicant to 55 Division after his arrest.

[5] The defence called one witness, Mr. Ira Hussey, the applicant’s grandfather.

[6] The hearing was conducted over three days. Although a determination on these issues would have decided the case (as either a stay of proceedings or exclusion of the firearm would result in the case coming to an end), the applicant has maintained his election to be tried by a judge and jury, as is his right.

[7] On February 9, 2022, I advised the parties of my conclusion that the applicant was not unlawfully or arbitrarily detained and there was no breach of s. 9 of the Charter. As there was no unlawful detention and the applicant was not searched, there was no breach of s. 8 of the Charter. I further advised of my conclusion that there was no breach of ss. 10(a) or 10(b) of the Charter, as the applicant was read his rights to counsel as soon as was reasonable in the circumstances and he was provided with an opportunity to speak to counsel. Finally, I advised of my conclusion that the applicant had not satisfied me, on a balance of probabilities, that excessive force was used during his detention in violation of s. 7 of the Charter warranting a stay of proceedings or the exclusion of evidence. As such, the application was dismissed, with reasons to follow.

[8] These are my reasons for judgment on the Charter application.

I. Background Facts

[9] Officers from 55 Division Major Crimes Unit (“MCU”) obtained a search warrant for two addresses and a vehicle on the basis that there were reasonable grounds to believe that a firearm would be located. The target of the search warrant, Justin Hussey-Rodrigues, is the applicant’s brother. Because the search warrant concerned a firearm, officers from Toronto Police Service Guns and Gangs Task Force were asked to assist with the take-down of the suspect and the execution of the warrant on the addresses and the vehicle.

[10] On July 22, 2019, officers from 55 Division MCU conducted a briefing in anticipation of executing the warrant. Following the briefing, DC Yan was detailed to locate the target vehicle, a white 2009 Audi with licence plate CJNX663. At 4:10 p.m., he located the vehicle in front of 168 Ashdale Avenue in Toronto. He maintained surveillance on the vehicle until officers from the Guns and Gangs Task Force arrived to take over observations.

[11] DC Luczyk of the Guns and Gangs Task Force arrived and took over surveillance at 6:10 p.m. After surveilling the vehicle for a period of time, DC Luczyk saw Justin Hussey-Rodrigues and an unknown male (later identified as Jamal Fogah-Pierre) enter the vehicle and depart from the area. DC Luczyk followed the vehicle until it came to a stop on Newbold Avenue at 6:41 p.m.

[12] Newbold Avenue is a dead-end street which ends in a “roundabout”. The target vehicle stopped on the north side of Newbold Street, facing west, approximately 30 feet from the dead end. East of the dead end is a foot path.

[13] A third unknown male (later identified as Ira Hussey, the grandfather of Justin Hussey-Rodrigues and the applicant) approached the stopped vehicle. At this time, other officers from the Guns and Gangs unit were on the scene and a take-down was called. Justin Hussey-Rodrigues and Mr. Fogah-Pierre were placed under arrest and handcuffed. Ira Hussey was also detained, but not handcuffed.

[14] On receiving information that the target was in custody, DC Yan made his way to Newbold Avenue. Very shortly after his arrival, DC Yan observed the applicant walking westbound from the foot path onto the south sidewalk of Newbold Avenue. DC Yan recognized the applicant as the target’s brother and approached him to detain him. The evidence as it relates to the initial detention by DC Yan will be reviewed below.

[15] DC Luczyk became involved in detaining the applicant, running at him and taking him to the ground using a “football tackle” Once the applicant was on the ground, DC Luczyk struck the applicant 3-4 times with a closed fist to his head and face. The circumstances surrounding the tackle and punches, as well as the reason for the use of force, are in dispute and will be reviewed.

II. The Detention

[16] The detention is alleged to have occurred at two points. First, when DC Yan put his hand on the applicant’s arm or shoulder to direct him to an area to speak and second, when DC Luczyk tackled the applicant to the ground when he attempted to escape from DC Yan.

[17] On behalf of the applicant, Mr. Rosemond asserts that the actions of the officers amounted to a physical detention, in the absence of lawful authority, in violation of s. 9 of the Charter. Mr. Cox for the Crown fairly concedes that DC Yan’s act of physically putting his hand on the applicant’s shoulder, coupled with his request to speak to the applicant, amounts to a detention. He also accepts that DC Luczyk’s act of tackling the applicant to the ground was a continuation of the detention.

[18] The issue is whether the detention was lawful, in that it was neither arbitrary nor unreasonable.

The Evidence of DC Yan and Factual Findings Relevant to the Initial Detention

[19] DC Yan testified that he received information at the briefing that there was a search warrant for two target addresses – 270 Coxwell Avenue, unit B and 243 Highfield Road – and a target vehicle, the 2009 Audi. In addition, information was provided at the briefing that the applicant was associated to the target (his brother) and that he was associated to 270 Coxwell Avenue. Officers at the briefing were also advised of an “officer safety” alert that the applicant could be in possession of a firearm (although the applicant was not the target of the current investigation). A dated photo of the applicant was shown at the briefing, as well as a photo of the target, Justin Hussey-Rodrigues.

[20] DC Yan testified that he knew of the Hussey-Rodrigues family prior to this date, having worked in the division for 10 years. He knew the applicant’s mother and his brother Justin. He had not had any prior interactions with the applicant, but was familiar with him from seeing him in the neighborhood and knew his appearance. He knew the applicant to live at 1691 Gerrard Street East and had observed the applicant walk into that address the day before. He had also seen the applicant out in front of one of the target addresses, 270 Coxwell Avenue, which he knew to be the home where his mother and brother Justin lived.

[21] I accept DC Yan’s evidence that very shortly after he arrived on Newbold Avenue where the target vehicle was stopped, he saw the applicant emerge from the pathway at the end of Newbold Avenue onto the south sidewalk. I accept his evidence that he was standing near the driver’s side door of the Audi and immediately recognized the applicant as Justin Hussey-Rodrigues’ brother as he approached from the pathway toward him.

[22] I also accept that, at that time when the applicant entered the south sidewalk of Newbold Avenue, his brother Justin and Mr. Fogah-Pierre were still on the scene, but in police custody. I accept that DC Yan was not involved in detaining Justin Hussey-Rodrigues, Mr. Fogah-Pierre, or Mr. Ira Hussey and had no involvement with the target vehicle, other than that he was standing near the driver’s side door when the applicant walked into the area.

[23] DC Yan testified that he was concerned that the applicant was walking toward 270 Coxwell Avenue, one of the target locations of the search warrant and decided to approach the applicant to speak with him. DC Yan, who was in plainclothes, walked over to the applicant and stated words to the effect, “Toronto Police. Nick, I need to speak to you.” The applicant did not respond.

[24] DC Yan then put his hand on the applicant’s left arm and began walking the applicant to the area where the Audi was stopped. He described his contact with the applicant as “guiding” him toward the Audi, and that he did not use any force to hold his arm.

[25] DC Yan testified that his intention, in approaching the applicant, was to detain him. His subjective grounds for detaining the applicant were: (1) he knew the applicant to be the target’s brother and someone who the team had been alerted to during the briefing as a person associated to the target; (2) he knew the applicant lived at 1691 Gerrard Street East but when he emerged from the pathway onto Newbold Avenue, was walking in the direction of 270 Coxwell Avenue, one of the targets of the search warrant and the address of Justin Hussey-Rodrigues and their mother; (3) he was unaware of whether other officers had secured the address of 270 Coxwell Avenue, or the status of the search; (4) he was aware that the search related to a firearm investigation; and (5) he was concerned about the applicant going to 270 Coxwell Avenue before officers secured the address or contacting the address to alert others to the search warrant.

[26] DC Yan testified that after he put his hand on the applicant’s arm, the applicant took five to six steps with him toward the Audi, but then pulled away and tried to run. He explained that there was a “bit of a struggle” as the applicant pulled away forcefully and he was holding on. He testified that he was still holding the applicant’s left arm when the Guns & Gangs officers became involved. Three Guns & Gangs officers came over and went to the ground with the applicant. DC Yan stated it was a very short time, perhaps five seconds, between the applicant pulling away and the Guns & Gangs officers intervening.

[27] He testified that, had he been able to detain the applicant, he would have called other MCU officers to find out if the search warrant had been executed and, if not, how long it would take. He stated that he would have told the applicant the reason for his detention, the outstanding search warrants, and would have given the applicant his rights to counsel and conducted a pat down search based on the information that the applicant might be in possession of a firearm. If he had received confirmation that officers were on scene at the target locations, he testified that the applicant would have been free to go.

[28] Mr. Rosemond submits that DC Yan had no legitimate basis for detaining the applicant and that he acted simply to exert authority over the applicant and/or to collect information from him which might help the investigation. To that end, he challenged DC Yan’s evidence on a number of points.

[29] First, he argues that DC Yan attempted to conceal his identity as a police officer in order to facilitate an unjustified stop of the applicant. He suggested that DC Yan did not announce himself as “Toronto Police” when he approached, before saying “Nick, I need to speak to you.” He was cross-examined on his evidence given at the preliminary hearing in which he stated that he testified to saying “Nick I need to speak to you” but not specifically identifying himself as Toronto Police. DC Yan accepted that, in his evidence on the preliminary hearing, he may not have mentioned introducing himself as “Toronto Police” when he approached the applicant, but was confident he had done so.

[30] Second, he suggested in cross-examination that DC Yan spoke to the applicant in a quiet or calm voice, such that it might have been difficult for the applicant to discern that he was a police officer giving him a direction. DC Yan accepted that he did not speak loudly to the applicant when he approached, but maintained that he spoke clearly and announced himself as Toronto police.

[31] Third, Mr. Rosemond pointed to the fact that DC Yan was in plainclothes at the scene, which he argued contributed to the applicant being unaware that he was a police officer giving him a direction to stop and/or facilitated DC Yan making an unjustified stop to gather information from the applicant.

[32] I do not accept these submissions. The context in which DC Yan was present at the location is important. The officers who were present on the scene were there because they were executing a search warrant for a firearm and sought to arrest a target, Justin Hussey-Rodrigues. It is neither unusual nor nefarious that, in conducting such operations, police often operate in a more covert manner, dressed in plainclothes and traveling in unmarked police vehicles. The ability of the police to effectively execute search warrants safely and with a view to protecting and preserving evidence often requires that they operate in a “plainclothes” capacity. The fact that DC Yan (and all the officers involved in the execution of the search warrant and the take-down of the suspect) were dressed in plainclothes, is fairly standard and does not, without more, signal an oblique motive or an illegal course of conduct.

[33] Nor do I accept the submission that DC Yan’s manner of speaking to the applicant indicates DC Yan was attempting to conceal an unjustified stop. DC Yan may not have yelled out, or stated forcefully, that he was a police officer. There was nothing in the circumstances which indicated that more than a calm direction to stop would be required.

[34] I accept DC Yan’s evidence that he announced himself as “police” before placing his hand on the applicant’s arm and telling him he needed to speak to him. I further find that the applicant attempted to flee from DC Yan. I accept DC Yan’s evidence that the detention was brief, no more than a few seconds, before the applicant forcefully pulled away from him. I accept his evidence that he did not place any significant force on the applicant and simply placed his hand on his arm or shoulder and directed him to an area where they could speak.

[35] Finally, Mr. Rosemond asserts that DC Yan was unable to articulate why he was attempting to detain the applicant and he invites me to infer that DC Yan approached the applicant, not for any lawful basis, but in order to gather information from him that might assist the investigation.

[36] The suggestion that DC Yan stopped the applicant to question him or gather evidence has no evidentiary foundation. There is no evidence that DC Yan either before approaching the applicant, or while he was engaged with the applicant, asked him any questions or sought to gather evidence from the applicant.

[37] Moreover, contrary to Mr. Rosemond’s submission, DC Yan did articulate a basis for detaining the applicant in his evidence, as set out above. I accept DC Yan’s evidence that he formulated subjective grounds to detain the applicant and that his purpose was only to delay the applicant until he could confirm that officers had the target addresses secured.

The Evidence of DC Luczyk and Factual Findings Relevant to the Continued Detention of the Applicant

[38] DC Luczyk testified that once Justin Hussey-Rodrigues was handcuffed, he placed him in the rear of his scout car with the door open. He then turned his attention to Ira Hussey who was on scene and had been detained. He testified that he was unsuccessful in handcuffing Ira Hussey because of Mr. Hussey’s shoulder problems. He testified that Mr. Hussey was cooperative and was allowed to sit on the curb.

[39] Shortly thereafter, DC Luczyk heard Justin Hussey-Rodrigues yell out “Nicky” which prompted him to look in the direction of where Justin Hussey-Rodrigues had called out. At that time, he observed DC Yan standing near the applicant. He heard DC Yan say “Nick” and observed him put his hand on the applicant’s shoulder or arm.

[40] DC Luczyk testified that the minute DC Yan put his hand on the applicant’s arm, the applicant started to run. He testified that DC Yan began running after the applicant. DC Luczyk started running parallel along the side of his cruiser, then ran into the roadway and “tackled” the applicant. He described both he and the applicant as running “at full speed” and that there was a collision which resulted in him doing a “football tackle” on the applicant. He testified that he wrapped his arms around the applicant’s chest and they both landed on the ground. He testified that the applicant landed on his back and that he (DC Luczyk) landed on top of him.

[41] DC Luczyk testified that his intention, in tackling the applicant to the ground, was to detain him. He testified that the “entire circumstances” led him to believe he had grounds to detain the applicant, including that:

• the task force had been called to assist with a firearm investigation, which was currently underway;
• the applicant arrived in the area within minutes of Justin Hussey-Rodrigues being arrested;
• Justin Hussey-Rodrigues called out the applicant’s name as the applicant approached on foot, which DC Luczyk took to be a warning to the applicant;
• DC Yan had attempted to take control of the applicant, who fled from him;
• the applicant was physically close to the target vehicle, which had not yet been searched; and
• the applicant was specifically named in the briefing as a person associated to the target, Justin Hussey-Rodrigues, and that they were brothers.

[42] Before turning to my findings of fact with respect to DC Luczyk’s evidence on his detention of the applicant, I will address the overall credibility and reliability of his evidence.

[43] Turning first to the reliability of his evidence, I found DC Luczyk was generally reliable, in that the key parts of his evidence are consistent with the evidence of other officers involved. I also found that he was candid about his actions on the scene and did not attempt to tailor his evidence in a self-serving way. This supports not only his credibility but also his reliability.

[44] There are some inconsistencies between DC Luczyk’s evidence and that of the other officers on scene. The most significant inconsistency is that DC Luczyk testified that the applicant had pulled away from DC Yan and was running “at full speed” with DC Yan chasing him. This is inconsistent with DC Yan’s evidence that the applicant pulled away forcefully, but he maintained a hold on the applicant’s arm.

[45] To the extent that there is a discrepancy as to how quickly the applicant was moving away from DC Yan, or whether the applicant put any distance between himself and DC Yan, I prefer the evidence of DC Yan, who was dealing directly with the applicant. By all accounts, it was a stressful and fast-moving situation and DC Luczyk’s recollection of the applicant running is less reliable than DC Yan’s account of the applicant’s actions. However, whether the applicant was violently pulling away, as DC Yan described, or running away, as DC Luczyk stated, there is no real dispute, as between the officers’ evidence, that the applicant was attempting to flee.

[46] I also find that DC Luczyk was mistaken when he testified that the applicant approached on the north side of the street. DC Yan, who had first contact with the applicant and observed him under somewhat calmer conditions, testified that the applicant approached on the south sidewalk of Newbold Avenue. Detective Duran and Mr. Hussey also testified that the applicant approached from the south side of the street. I accept that the applicant approached the area from the south sidewalk of Newbold Avenue.

[47] However, I do not find that DC Luczyk’s mistake about what side of the street the applicant approached fundamentally undermines his evidence that he observed the applicant attempting to flee from DC Yan. In a dynamic circumstance such as this, where DC Luczyk’s attention was drawn to the applicant only by the sound of hearing two voices calling out the applicant’s name, I do not consider this mistake to be a significant discrepancy.

[48] Turning to DC Luczyk’s credibility, Mr. Rosemond vigorously attacked DC Luczyk’s credibility in cross-examination, casting him as a “cowboy” police officer who acted outside his lawful authority in all aspects of his involvement with the applicant. The focus of his attack was primarily on DC Luczyk’s explanation for the physical force used on the applicant in detaining him (which will be addressed later in these reasons), but he also challenged DC Luczyk’s evidence about the reason for detaining the applicant.

[49] He submitted that DC Luczyk had no lawful basis to detain the applicant and that his motivation for tackling the applicant to the ground was because he wanted to talk to him and/or that the applicant would not cooperate with police efforts to speak with him. He submits that the events which followed, DC Luczyk striking the applicant four times in the head and face, were unnecessary, excessive, and a further reflection of DC Luczyk’s disregard for the legal limits of his authority and the well-being of the applicant. He submits that I should reject DC Luczyk’s evidence entirely because he is now trying to “cover up” his misdeeds and is not credible.

[50] The specific attacks on DC Luczyk’s credibility will be addressed shortly; however, as a general matter, I do not accept the applicant’s submission that DC Luczyk’s evidence is not credible. His evidence about his conduct did not attempt to minimize his actions. He was candid in describing what he did as a “football tackle” and later, that he hit the applicant as hard as he could. His explanations for his actions, when viewed in the context of the events taking place, are consistent with DC Luczyk reacting out of concern for his and other officers’ safety, not out of malice toward the applicant.

[51] Turning to the credibility of his evidence concerning why he detained the applicant, much of what DC Luczyk testified to as a basis for detaining the applicant is not in dispute. The police were in the process of executing a search warrant for a firearm. The target of the investigation, Justin Hussey-Rodrigues, was in police custody, but no firearm had yet been located. DC Luczyk had information that the applicant was a known associate to Justin Hussey-Rodrigues. I accept his evidence that the fact that the applicant’s name was specifically provided at the briefing as someone associated to the target of the investigation had significance beyond pointing out a family relation.

[52] In addition to these facts, I accept DC Luczyk’s evidence that his attention was drawn to the applicant because he heard someone yell out “Nick” or “Nicky”. His evidence on this point is corroborated by Detective Duran, who I find was a credible witness. Detective Duran gave a detailed account of Justin Hussey-Rodrigues’ actions while he was in his custody, including hearing Justin Hussey-Rodrigues call out to the applicant by the name “Nicky”.

[53] Specifically, Detective Duran testified that after Justin Hussey-Rodrigues was arrested, he was placed in the rear driver’s side seat of his unmarked vehicle. Detective Duran testified that he left the rear driver’s side door open in order to speak to Justin. Justin Hussey-Rodrigues asked him about getting him a cigarette.

[54] He testified that while Justin sat in the rear of the vehicle, he heard him yell out “Nicky”. Detective Duran did not immediately react to this, other than to tell Justin not to speak to anyone and that he would get him the cigarette he requested. He testified that he could see peripherally that there was a man 20 feet away walking from the area of the footpath to the south sidewalk of Newbold Street. The male (later identified as the applicant) walked in a westerly direction. Detective Duran, who was on the north side of the street near his cruiser, had his back to the south sidewalk but peripherally, could see the applicant had passed him.

[55] Detective Duran testified that seconds later, he heard DC Yan yell out “Nick” or “Nicky”, which caused him to look. At this point, he realized that the male who had passed him was the applicant, Justin’s brother.

[56] I therefore accept DC Luczyk’s evidence that he heard Justin Hussey-Rodrigues call out “Nicky” and that, in the circumstances, he was concerned that, in calling out to the applicant’s name, Justin Hussey-Rodrigues was attempting to send a signal or warning to his brother. I accept that his concern was heightened when he observed, almost immediately thereafter, the applicant attempting to flee from DC Yan, prompting him to take action to stop the applicant.

Analysis – Section 9 of the Charter

[57] The law regarding investigative detention is not in dispute. The police may detain a person for investigative purposes if there are reasonable grounds to suspect that the person is connected to a crime and that the detention is reasonably necessary. That reasonable suspicion must be based on objectively discernible facts: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 34, 43.

[58] The common law power to conduct investigative detention is appropriately circumscribed to ensure a balance between enabling the police to execute their duties and the citizen’s right to liberty and privacy. This balance is achieved by requiring the Crown to establish, on the “totality of the circumstances” that the detention was justified. As the Supreme Court held in R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at paras. 30, 31:

The justification for a police officer’s decision to detain, as developed in Dedman and most recently interpreted in Mann, will depend on the “totality of the circumstances” underlying the officer’s suspicion that the detention of a particular individual is “reasonably necessary”. If, for example, the police have particulars about the individuals said to be endangering the public, their right to further detain will flow accordingly.

The determination will focus on the nature of the situation, including the seriousness of the offence, as well as on the information known to the police about the suspect or the crime, and the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope. This means balancing the seriousness of the risk to public or individual safety with the liberty interests of members of the public to determine whether, given the extent of the risk, the nature of the stop is no more intrusive of liberty interests than is reasonably necessary to address the risk.

[59] On behalf of the applicant, Mr. Rosemond argues that DC Yan did not have an objectively reasonable suspicion to detain the applicant. He argues that DC Yan had no reason to suspect that the applicant was engaged in any criminal conduct, nor was he observed in the company of any person engaged in criminal conduct. He knew nothing more than that the applicant was the target’s brother and had no reason to believe the applicant was, in any way, connected to his brother’s alleged criminal conduct. The applicant’s direction of travel toward Coxwell Avenue does not provide an objective basis to believe that a detention was necessary in order to protect the integrity of the investigation and the evidence.

[60] I accept Mr. Rosemond’s point that DC Yan did not have grounds to suspect that the applicant was engaged in criminal activity. DC Yan did not testify to having such a belief. Indeed, DC Yan testified that, although he was aware of a security alert that the applicant might be carrying a weapon, this did not factor into his grounds for detaining the applicant. If he did believe the applicant was involved in the commission of an offence, one would expect that he would have arrested the applicant. That was not the basis for the stop. Nor is there any evidence to suggest that the basis for the stop was to collect information from the applicant which, as Mr. Rosemond suggested, could have been done by contacting the applicant later by telephone or letter.

[61] Rather, DC Yan testified that he detained the applicant in order to prevent him from going to 270 Coxwell Avenue before he could confirm that the target address was secured by other officers.

[62] The common law regarding investigative detention has evolved to recognize that the ancillary powers doctrine from R. v. Waterfield; R. v. Lynn (1963), [1963] 3 All E.R. 659, [1964] 1 QB 164 (CA) operates to extend the power of investigative detention to encompass detention related to the execution of search warrants: see R. v. Meyn, [2014] A.J. No. 1438. In R. v. McSweeney, 2020 ONCA 2, the Court of Appeal for Ontario considered the specific context of a detention occurring during the exercise of the state’s authority through the lawful execution of a search warrant. At para. 38, the court stated:

There is no question that during the execution of a search warrant police are entitled to segregate the occupants of the premises to ensure officer safety, to prevent the loss or destruction of evidence, and to maintain the integrity of the search. They may give appropriate directions to that end.

[63] In considering such a circumstance in the case of R. v. Connor (2009), 202 C.R.R. (2d) 43, Molloy J. observed, at para. 74:

There was no physical restraint of Mr. Connor. However, the police were executing a search warrant and would not have permitted Mr. Connor to simply wander about or leave while that was ongoing. In that sense, he was “detained” or “delayed” but this is not dissimilar from police restraining individuals who attempt to enter a crime scene. Mr. Connor was not detained at that point because of who he was, or because he had been singled out, but rather because he happened to be on the scene when the search warrant was being executed. Further, the police objective was merely to explain the warrant to Mr. Connor and to keep him out of the way while the search proceeded.

[64] This reasoning was also applied in Ahmed v. McCaskill, 2015 MBQB 68, 317 Man. R. (2d) 42, at para. 70, where Suche J. held that, when executing a search warrant, police are entitled to control the premises and detain individuals where the circumstances present some danger (in that case, the possibility of firearms on the premises).

[65] The court in McSweeney went on to recognize, at para. 39, that there are limits to detention powers during the execution of warrants, in that once police have been able to ensure their safety and the integrity of the search at a location, they are not permitted to indefinitely keep people who have been detained. Once the location is secure, those individuals are free to move or leave.

[66] In my view, the dicta expressed in McSweeney, Connor, and McCaskill concerning persons who are present during the execution of a search warrant is analogous to the situation in this case, although I recognize that the context of this case is somewhat different than the execution of a search warrant at a premise. People physically at a location to be searched present a more immediate risk to officer safety and the preservation of evidence than someone who is in the vicinity, but not actually at the search location.

[67] In submissions, Mr. Rosemond posited scenarios where the person walking through a scene is a child whose only connection to a crime is that he/she is a relative of the target, or has some connection to a target address. There are no categorical exceptions where a detention will not be lawful or unlawful. Whether a detention is reasonable will always depend on the facts and circumstances surrounding the detention.

[68] In circumstances such as this, where the detention was done not to prevent the commission of a crime, but to prevent interference with the execution of a search warrant (which engages both the preservation of evidence and ensuring officer safety), a detention will be justified provided it is rationally connected to these purposes. By “rationally connected,” I mean that there must be an objectively discernible basis for believing that the person being stopped in this case could reasonably jeopardize the execution of the search warrant or the safety of officers executing the search warrant.

[69] In this case, I find that DC Yan formulated subjective grounds to detain the applicant. He knew the applicant was coming from a direction away from his home address and was headed in the direction of 270 Coxwell Avenue, a target address. He knew the applicant was associated to 270 Coxwell Avenue, as he had seen him there and knew it to be his mother and brother’s address. He was unaware, at that time, if officers were already at the address, or the status of the search warrant execution. The search warrant was for a firearm, and I accept that DC Yan sought to detain him to prevent him from going to 270 Coxwell Avenue or contacting the address which could have created an opportunity for someone to remove evidence before police could secure the address.

[70] I further find that these grounds were objectively reasonable. There are numerous features of the scenario which objectively support DC Yan’s subjective grounds to detain, including:

• the officers were in the process of executing a search warrant on the target’s vehicle;
• the target, Justin Hussey-Rodrigues, had only very recently been arrested and was still on the scene in handcuffs when the applicant walked into the area, such that it would have been apparent to the applicant that his brother was either detained or under arrest;
• the applicant was a known associate of Justin Hussey-Rodrigues;
• there were two outstanding warrants to be executed at two addresses (270 Coxwell Avenue and 244 Highfield Road); DC Yan had no information as to whether the addresses had been secured by other officers, or the status of the searches;
• the search was for a firearm, an easily accessible and moveable item;
• based on the evidence of DC Yan, which I accept, it was a couple minutes’ walk from the location on Newbold Avenue, where the target vehicle was stopped, to the Coxwell address, and a five-minute walk from the Newbold Avenue location and the second target address on Highfield Road;
• DC Yan saw the applicant at the Coxwell address as recently as the day before; and
• on the basis of the search warrant which was issued, there were reasonable and probable grounds to believe that a firearm was present at either of these addresses, creating safety concerns and concerns related to the removal of evidence.

[71] Based on the above factors, taken as a whole, DC Yan’s detention of the applicant was not arbitrary. Further, it was conducted in a reasonable manner. The detention was very brief, no more than a few seconds, before the applicant fled from DC Yan. It was done with minimal contact. I accept DC Yan’s evidence that his intended course of conduct was to make inquiries to ensure the target locations were secure, at which time, he would have allowed the applicant to be on his way. In other words, he intended to detain him only as long as necessary to ensure the target locations were secure.

[72] For these reasons, I conclude that DC Yan’s initial detention of the applicant was lawful.

[73] I also accept DC Luczyk’s continued detention of the applicant was lawful, based on his subjective grounds, all of which were objectively reasonable in the circumstances, including that:

• the task force had been called to assist with a firearm investigation, which was currently underway;
• the applicant came into the area within minutes of Justin Hussey-Rodrigues being arrested;
• Justin Hussey-Rodrigues called out the applicant’s name as the applicant approached on foot, which DC Luczyk took as a warning, an interpretation which was reasonable in the circumstances;
• DC Yan had attempted to take control of the applicant, who fled from him;
• the applicant was physically close to the target vehicle; and
• the applicant was specifically named in the briefing as the brother, and an associate of, Justin Hussey-Rodrigues.

[74] While DC Luczyk used a degree of force to take the applicant to the ground, in my view, the force used, a “football tackle”, was not unreasonable in the circumstances, given that the search for a firearm was ongoing and the applicant fled from DC Yan. Even with the target Justin Hussey-Rodrigues in custody, the concern for officer safety remained, given that the search was still underway for a firearm.

[75] I accept that both DC Yan and DC Luczyk had reasonable grounds to detain the applicant in the circumstances. As a result, I find no breach of s. 9 of the Charter.

III. The “Search” of the Applicant and the Alleged Violation of s. 8 of the Charter

[76] I accept that, had I found a violation of s. 9 of the Charter, the firearm would have been evidence derivative of the Charter-infringing conduct and subject to possible exclusion, even though the police did not physically search the applicant and the firearm simply fell from his waistband, as the Crown asserts.

[77] Having found that the applicant was lawfully detained, there is no evidentiary basis for the applicant’s argument that there was a breach of his rights under s. 8 of the Charter to be free of unreasonable search and seizure. Quite apart from the issue of detention, the applicant was not searched. As I will explain below, I find that the firearm fell from the applicant’s waistband during the struggle to gain control of him, which does not constitute a search.

[78] I find that there was no breach of s. 8 of the Charter.

IV. Rights to Counsel and the Alleged Violation of ss. 10(a) and (b) of the Charter

The Evidence and Factual Findings

[79] It is not in dispute that DC Yan, upon detaining the applicant by placing his hand on his arm or shoulder, did not immediately advise the applicant of the reason for his detention or his rights to counsel. The reason for this is obvious. As I have found, within seconds of attempting to detain the applicant, he fled. There was no opportunity for DC Yan to provide the applicant with the reason for his detention and his rights to counsel.

[80] As I will explain below, I further find that there was a struggle to gain control of the applicant once he was taken to the ground and, during that struggle, a firearm fell from his waistband.

[81] DC Luczyk testified that it took less than a minute to get the applicant under control and handcuffed. He took a moment to catch his breath and then advised the applicant that he was under arrest for possession of a firearm and provided him with his rights to counsel. He testified that he did not read the rights to counsel from a memo book, but advised the applicant of his right to speak to a lawyer. The applicant did not respond to DC Luczyk providing his rights to counsel and rather, spoke to DC Luczyk about his anxiety. DC Luczyk asked him if he needed medication, to which he did not receive a reply. He testified that the applicant was speaking well and did not seem to have any injuries.

[82] He turned the applicant over to PC Pisano, a 55 Division officer, to be transported. He advised PC Pisano that the applicant had been read his rights to counsel but that the rights should be re-read. He testified that he asked for the right to counsel to be re-read because he had been unable to get an answer from the applicant as to whether he wished to speak to a lawyer because the focus of the discussion was on the applicant’s anxiety and whether he required medication.

[83] PC Pisano, a uniformed officer from 55 Division, attended the scene and received custody of the applicant from DC Luczyk. He testified that he escorted the applicant to the rear of his scout car and performed a search incident to arrest. At 6:53 p.m., he read the applicant his rights to counsel and caution from his memo book.

[84] The video from PC Pisano’s scout car was filed as an exhibit on the hearing. In the video, PC Pisano can be heard reading the applicant his rights to counsel. The applicant responded that he had a lawyer but did not know his number. PC Pisano then advised the applicant that they could look up his lawyer’s number and asked for a name. The applicant provided the name of his counsel, Royland Moriah.

[85] At the applicant’s request, PC Pisano arranged for the applicant’s grandfather, mother, and girlfriend to attend at the scout car to speak with the applicant. Ira Hussey can be seen on the video at 6:55 p.m. speaking to the applicant. PC Pisano departed with the applicant at 7:07 p.m. and arrived at 55 Division at 7:13 p.m.

[86] After the applicant was booked in at 55 Division, he was taken to an interview room where PC Pisano again asked the applicant for his lawyer’s information. He testified that the applicant advised that his mother would call his lawyer and that he did not wish to speak to him at that time. He accepted his decision about having his mother call his lawyer and took no further steps to confirm that the applicant spoke to a lawyer.

[87] DC Yan testified that sometime around 9:30 p.m., he telephoned Mr. Moriah for the applicant, although he could not recall why he did so at this time. He guessed that, while doing the case preparation, he learned the applicant had not yet spoken to his lawyer and placed a call to a lawyer for him. There is no evidence as to whether this was done at the applicant’s request because he changed his mind, or whether it was instigated by DC Yan simply in the course of doing case preparation.

Analysis – Sections 10(a) and (b) of the Charter

[88] As I understand Mr. Rosemond’s argument, he asserts a violation of ss. 10(a) and (b) of the Charter on the basis that (1) the applicant was not provided with his rights to counsel immediately upon his detention, and (2) insufficient steps were taken to facilitate the applicant contacting his counsel of choice.

[89] I do not accept these submissions.

[90] On the first argument, it is a well-accepted principle from R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, that the police have a duty to inform a detainee of his or her right to retain and instruct counsel and a duty to facilitate that right immediately upon detention.

[91] As Justice Abella confirmed in R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, an arresting officer is under a constitutional obligation to facilitate requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances. Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.

[92] However, the s. 10(b) jurisprudence has always recognized that specific circumstances may justify some delay in providing and/or implementing rights to counsel: R. v. Pileggi, 2021 ONCA 4, at paras. 60-61; R. v. Strachan, [1988] 2 S.C.R. 980, at para. 34. In these circumstances, I find that it was reasonable for DC Luczyk to gain control of the applicant by securing him with handcuffs and taking a moment to catch his breath from the struggle before informing the applicant of his rights to counsel. Once the situation was under control, the applicant was given his rights to counsel without delay and those rights were repeated by PC Pisano minutes later.

[93] On the second issue, Mr. Rosemond argues that, notwithstanding the applicant’s expressed wish to leave it to his mother to call his lawyer, PC Pisano should have done more to ensure that the applicant spoke to a lawyer. I disagree.

[94] As the Supreme Court noted in R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 33, an accused person who chooses to exercise their s. 10(b) right by contacting a lawyer triggers the implementational duties of the police. These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioning the detainee until that reasonable opportunity is provided.

[95] This obligation has been interpreted in the jurisprudence to include an obligation to facilitate access to third parties to access counsel. In Pileggi, the court stated, at para. 86, “… this court recognized in R. v. Blake, 2015 ONCA 684 … at para. 14, the right to counsel includes the right to contact counsel of choice as well as the right to contact a third party to access counsel of choice.” In Blake, the court held, at para. 14, “[p]olice have a duty to facilitate access to a lawyer immediately and that includes the right to contact counsel of choice as well as the right to contact a third party to facilitate access to counsel: see R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24; R. v. K.W.J., 2012 NWTCA 3, at paras. 32-33.”

[96] The only evidence before me is that the applicant, when asked by PC Pisano whether he wanted Mr. Moriah to be contacted, indicated his mother would call him and he did not wish to speak to him at that time. PC Pisano’s evidence was not challenged and I accept it. There was nothing equivocal about the answer the applicant provided. He could have elected to contact a lawyer or asked to speak to his mother or some other third party in order to access counsel, but he did not. Knowing that he was under arrest for firearm offences and having been fully and properly advised of his right to counsel, the applicant simply elected not to exercise his option of contacting a lawyer immediately and opted to leave it to his mother to reach his lawyer later. This voluntary, informed, and unequivocal decision by the applicant was, on any reasonable view of the events, not a request to speak to counsel or any assertion of his right to speak to counsel immediately.

[97] I agree with the reasoning of Campbell J. in R. v. Dykstra, 2015 ONSC 6012, [2015] O.J. No. 5058, at paras. 56, in which he discussed what triggers the police obligation to implement rights to counsel:

As an important practical matter, in the absence of proof that the individual did not, for whatever reason, understand his or her rights to counsel when advised of it by the police, the onus is on the accused to prove that he or she: (a) asked to consult with counsel but was denied that right by the police; or (b) was denied any opportunity to even try to invoke the right to counsel. In other words, once the police have complied, without delay, with the informational component of s. 10(b) of the Charter, there are no further obligations or duties cast on the police unless and until the individual expresses his or her desire to exercise the right to counsel. See R. v. Baig, [1987] 2 S.C.R. 537, at p. 540; R. v. Anderson (1984), 10 C.C.C. (3d) 417 (Ont.C.A.), at p. 431; R. v. Evans, [1991] 1 S.C.R. 869, at pp. 890-894. In R. v. Willier, the Supreme Court confirmed, at para. 30, that the implementation duties under s. 10(b) of the Charter “are not triggered until detainees indicate a desire to exercise their right to counsel.”

[98] Once PC Pisano provided the applicant with the informational component of his rights to counsel, in the absence of any evidence that the applicant did not understand the right, it was incumbent on the applicant to invoke the right and be reasonably diligent in exercising the right. Otherwise, the correlative duty cast upon the police to provide him with a reasonable opportunity to consult privately with counsel will either not arise in the first place or will be suspended.

[99] Once the right to counsel was provided to the applicant and he elected not to exercise it, no more was required of the police because the implementational component of the applicant’s s. 10(b) rights was not triggered. I do not accept the submission that, for example, an officer should have checked with the applicant to confirm that he had not changed his mind, or that he understood that he would be giving up his right to speak privately with counsel if his mother consulted counsel for him. As the Court of Appeal for Ontario stated in R. v. Culotta, 2018 ONCA 665, 142 O.R. (3d) 241, at para. 38:

It should be remembered that the police do not have a duty to positively ensure that a detainee understands what the rights under s. 10(b) entail. Officers are only required to communicate those rights to the detainee. As the Supreme Court has repeatedly held, “absent special circumstances indicating that a detainee may not understand the s. 10(b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(b) caution”: R. v. Bartle, [1994] 3 S.C.R. 173, at p. 193. [Other citations omitted].

[100] Applying all of the principles noted, I find that there was no breach of the applicant’s rights under ss. 10(a) or (b) of the Charter.

V. Use of Force and the Alleged Breach of the Applicant’s Rights under ss. 7, 12, and 11(d) of the Charter

Uncontested Facts Related to the Use of Force

[101] There are a number of aspects regarding the force used which DC Luczyk acknowledged in his evidence.

[102] First, there is no dispute that DC Luczyk tackled the applicant with a “football style” tackle, taking him to the ground.

[103] There is no dispute that there is a substantial size differential between DC Luczyk and the applicant. I accept the evidence that DC Luczyk has a muscular broad build and outweighs the applicant by at least 100 lbs. From my own observation, the applicant has a small frame. There was no evidence called as to his height and weight, but I accept the representations made by Mr. Rosemond that the applicant weighs between 100 and 115 lbs and stands well below DC Luczyk’s height.

[104] There is also no dispute that numerous officers were involved in trying to get control of the applicant once he was on the ground.

[105] Finally, DC Luczyk acknowledged that he struck the applicant 3-4 times in the head or face while they were on the ground and that he hit the applicant “as hard as he could”.

Contested Evidence Relevant to the Use of Force

[106] The Crown submits that DC Luczyk struck the applicant when he heard an officer call out “gun” during the struggle to gain control of the applicant’s arms when he was on the ground. DC Luczyk could not see the firearm, did not have control over the applicant’s hands, and was in a vulnerable position on the ground. He struck the applicant to prevent him from accessing a firearm and potentially shooting him.

[107] On behalf of the applicant, Mr. Rosemond submits that the applicant was not resisting the officers once taken to the ground. He further submits that the officers, because of their number and respective sizes, could have gained control over the applicant without using force. He argues that the punches were entirely unnecessary, excessive, and were not a legitimate response to any officer safety concern. He disputes that a firearm fell from the applicant’s pants during his detention and submits that DC Luczyk gratuitously struck the applicant.

[108] Mr. Rosemond relies on a multi-pronged attack on the credibility of the officers involved, in particular, DC Luczyk, and the evidence of Ira Hussey.

a. Factual Findings Regarding Whether the Applicant Struggled or Resisted Police and How the Firearm was Located

[109] Mr. Rosemond vigorously challenged the evidence that the applicant was struggling or resisting the officers once he was on the ground.

[110] Officers Luczyk, Yan, and Duran all testified to there being a struggle with the applicant.

[111] DC Luczyk testified that after he tackled the applicant, they both landed on the ground, with the applicant landing on his back. He testified that “almost simultaneously” to hitting the ground, he heard Detective Duran call out “gun”. He immediately freed his right arm, buried his head in the applicant’s armpit and struck him in the face three to four times to distract him from accessing a firearm. He hit him as hard as he could, but because he was on top of him with his head down, he did not connect with as much force as he might have if he had been standing. He testified that he had control of the applicant’s upper body by placing his body weight on him, but that the applicant was “squirming” once he was on the ground and he could not gain control of his arms. He could not see the gun at this time.

[112] After the four strikes, the applicant’s arms were secured and he was handcuffed.

[113] In cross-examination, he denied that he threw any punches before hearing Detective Duran call out “gun” and confirmed that he would not have feared for his life, prompting him to strike the applicant, if Detective Duran had not called out “gun”.

[114] I accept DC Luczyk’s evidence that he was unable to gain control of the applicant’s hands. His evidence is corroborated by the evidence of both DC Yan and Detective Duran, who both testified that the applicant was not compliant with commands to show his hands.

[115] DC Yan testified that the applicant was on his knees and that he was above him and to his side. DC Yan then heard an officer call out “gun” and observed a silver handgun fall from the applicant’s waistband. From his perspective, DC Yan described the gun as falling from the back of the applicant’s pants and that it was falling down between the applicant’s legs when he saw it.

[116] DC Yan testified that he kept his eyes on the applicant’s hands to make sure he could not get the gun. The applicant was then pushed down from the kneeling position to the ground, face-first. DC Yan positioned himself to one side of the applicant and tried to get his hand from underneath his body. He described the interaction as “wrestling” with the applicant to get control of his hands. In cross-examination, he described it as “fighting for his hands”. After approximately a minute of struggle, one of the other officers was able to get the applicant’s other arm out from under him and he was handcuffed.

[117] Detective Duran testified that seconds after hearing DC Yan call out “Nick” or “Nicky”, he observed DC Yan and DC Luczyk in the roadway struggling with the applicant. He was approximately 20-30 feet away and ran over to assist. He testified to hearing DC Luczyk yelling for the applicant’s hands. He described the applicant as being on his knees with his hands on the ground, such that he was on “all fours”. He was not flat on the ground and there was space between his chest/torso area and the ground. He testified that DC Yan and DC Luczyk were behind and on top of him, with DC Luczyk’s body primarily on the applicant’s back and DC Yan either to the left or right of the applicant. He stated that the applicant was not compliant with demands to show his hands. In cross-examination, he stated that the applicant was resisting arrest and that the struggle was more than simply the applicant “squirming”. He pointed to the fact that two officers, both substantially bigger than the applicant, were struggling to get the applicant’s hands behind his back.

[118] As he approached to assist, he observed a silver revolver fall from the front of the applicant’s waistband to the ground. As it was coming out, he observed that the gun was fully loaded with gold bullets inside the silver casing. Detective Duran immediately yelled “gun” and moved in to seize it. He described the gun falling to the ground underneath the applicant, at the level of his waist. Detective Duran reached in and seized the gun and moved away from the area of the scuffle. He testified that DC Yan and DC Luczyk continue to struggle with the applicant to gain control of his hands and that applicant was not listening to commands to show his hands.

[119] The evidence of Mr. Hussey, which I will discuss in greater detail below, is not entirely at odds with the evidence of the officers on this point. He described the applicant walking onto Newbold Avenue on the south sidewalk and within a very short period, an officer yelling out “Nick”, and an officer grabbing the applicant’s arm. He then observed the applicant being tackled to the ground. He testified to hearing another officer yell “gun”. Although he was unable to describe any officer in detail, he described the officer who “grabbed” the applicant as a “big stocky guy”, that there was an Asian officer present, and that another taller officer (who he perceived to be “in charge”) was the one who yelled “gun”. He also confirmed that the entire interaction happened very quickly, and that the applicant did not have time to run because he was taken to the ground by officers almost at the same time that he arrived on the scene.

[120] Turning to Mr. Hussey’s evidence, when he was asked whether the applicant was resisting or fighting back, he stated in his evidence that as the applicant was going down to the ground, he put his hands up to catch himself, but that he was not fighting. He testified that when he was being struck, “[h]is [the applicant’s] hands were more or less trying to block. It is hard to resist if you are on the ground.”

[121] Mr. Hussey may have perceived the applicant’s actions in a certain way – that he was trying to catch himself as he went down or that he was trying to block DC Luczyk’s strikes – however, he would not have been in a position to appreciate that, from the officers’ perspective, the applicant was not complying with demands for his hands.

[122] I accept the evidence of the Officers Luczyk, Yan, and Duran that there was a struggle with the applicant where they could not secure his hands once he was on the ground. Whether the applicant was actively resisting the officers, as Detective Duran testified, or whether he was “squirming” as DC Luczyk described, I accept their evidence and find that there was a struggle to secure the applicant’s arms after Detective Duran called out “gun”. I also accept the evidence that the entire event happened very quickly and that they continued to struggle with the applicant after Detective Duran called out “gun”.

[123] On the issue of where the firearm came from, there is some inconsistency between the evidence of DC Yan and Detective Duran as to whether the gun fell from the front or back of the applicant’s waistline. However, there is no dispute, as between their evidence, that the gun fell from the applicant onto the ground such that it was under the applicant.

[124] Mr. Hussey’s evidence differs markedly from the evidence of the officers on this point. He testified that while the applicant was being struck, he yelled out to the officer “[y]ou are hurting him. He’s just a small person” and that, in response, an officer approached him and said, “[w]ell this makes him bigger”, while showing Mr. Hussey a gun. Mr. Hussey testified that the gun which was shown to him did not come from the applicant, but that the officer produced the gun from a “gulley” in the area of the pathway at the dead-end of Newbold Avenue.

[125] Mr. Hussey could not say which officer approached him. It was unclear from his evidence whether he saw an officer remove the firearm from a “gulley” or saw an officer with the firearm coming from the direction of the pathway.

[126] In any event, I do not accept Mr. Hussey’s evidence that the firearm did not come from the applicant, but rather was retrieved from a gulley in the pathway. Mr. Hussey’s evidence invites a conclusion that either the police planted a gun in the gulley which they later claimed belonged to the applicant, or they happened to find a gun in the gulley which they then claimed belonged to the applicant. Either theory is implausible and without any evidentiary foundation.

[127] Giving Mr. Hussey the benefit of an interpretation of his evidence that is more credible, perhaps he was seeing the firearm after it had been removed from underneath the applicant and taken away from the immediate area of the struggle, for safety reasons. I accept Detective Duran’s evidence that immediately after he pulled the firearm from underneath the applicant, he “moved off to the side” with the firearm in his hands. If that was the case, Mr. Hussey’s evidence does not undermine the evidence of the officers that the firearm fell from the applicant’s waist.

[128] I would note as well that the suggestion that the firearm did not fall from the applicant during the struggle but rather, came from a gulley, was not put to any of the officers in cross-examination. This issue was raised by the Crown following Mr. Hussey’s evidence. I invited counsel to make submissions on whether the defence’s failure to raise the issue with the officers was a violation of the rule in Browne v. Dunn (1893), 6 R. 67 (U.K. H.L). The Crown’s position was that the failure to cross-examine the officers on this point was a violation of the rule, while Mr. Rosemond maintained that it was not because the officers were given an opportunity to present their respective positions. Ultimately, I do not need to resolve whether there was a violation of the rule in Brown v. Dunn, as I have found that Mr. Hussey’s evidence on this point is neither credible or reliable and I do not accept it.

[129] I find that the firearm did fall from the applicant’s waist when he was taken to the ground, prompting Detective Durant to call out “gun”. I find that Detective Duran was able to quickly retrieve the gun from beneath the applicant when he was still on “all fours” and move it away from the struggle to decrease the immediate risk to the officers involved with the applicant.

b. Factual Findings Regarding the Significance of Hearing Detective Duran call out “Gun”

[130] Mr. Rosemond challenged DC Luczyk’s evidence that hearing the word “gun” caused him to fear for his life, suggesting that officers yell out “gun” in non-threatening circumstances, such as when a firearm is found in a home during the execution of a search warrant. Alternatively, he suggested that something else, other than simply yelling “gun” would be said if the intention was to alert officers to an immediate danger. These suggestions were not accepted by any of the officers.

[131] I accept the evidence of DC Luczyk that hearing Detective Duran yell out “gun” signaled to him that a firearm was present and posed an immediate danger. I also accept his evidence that, from his position, on the ground with his arms wrapped around the applicant and unable to see the firearm, his fear for his safety was heightened and the risk of serious bodily harm was acute.

[132] Detective Duran’s evidence about the significance of yelling out “gun” was consistent with DC Luczyk’s interpretation. He testified that, as a general matter, the word “gun” is not yelled out unless a firearm is present and posing a danger and that it is not the general practice of Guns and Gangs officers to call out “gun” if a firearm is located during the execution of search warrants. I accept his evidence that, on this occasion, he called out “gun” because he observed a firearm fall from the applicant while officers were struggling to gain control of his arms. I accept his evidence that the word itself and the tone of his voice conveyed the urgency of the situation.

c. Factual Findings Regarding the Reasonableness of DC Luczyk’s Fear

[133] Mr. Rosemond challenged DC Luczyk’s evidence that he delivered the strikes because he feared for his life. He points to the fact that DC Luczyk was significantly bigger and heavier than the applicant, that he was on top of him, there were other officers involved, and that the firearm was quickly secured by Detective Duran. He argues that DC Luczyk could not have reasonably feared for his life or safety in those circumstances, and as a result, the fist strikes were unnecessary.

[134] I do not accept this submission. While it is true that DC Luczyk was considerably bigger than the applicant, I accept his evidence, which was echoed by Detective Duran, that when a person is non-compliant during an arrest or detention, the size and strength of an officer does not necessarily mean the person can be brought under control. In a dynamic circumstance such as this, with an unsecure firearm in the immediate area, an officer’s size does not necessarily impact on the degree of threat posed.

[135] Nor does the fact that there were other officers involved in attempting to secure the applicant make DC Luczyk’s perceived threat unreasonable. DC Luczyk could not see the gun but believed, reasonably, that it had come from the applicant since the call out came within seconds of him tackling the applicant to the ground. DC Yan, who had seen the gun fall, lost sight of it once the applicant was pushed down onto the ground. I accept his evidence, and that of Detective Duran, that the focus at that point was on gaining control of the applicant’s arms because of the dangerous situation which had developed.

[136] DC Luczyk was also cross-examined extensively about his evidence that, out of fear for his safety, he buried his head in the applicant’s armpit and began to strike him as hard as he could. Mr. Rosemond suggested that the more prudent approach would be to keep his eyes on the applicant and the scene. He cross-examined other officers about whether they, hypothetically, would bury their heads or close their eyes and not keep their attention on the scene if they heard the word “gun” called out. With respect, the hypothetical scenario posed by counsel was devoid of the relevant context of an officer on the ground and struggling to gain control of the applicant’s arms all while believing a firearm was somewhere in the immediate vicinity of the applicant.

[137] Similarly, the suggestion that DC Luczyk should have paused between strikes to reassess whether the risk of bodily harm was still present might have some merit if there had been a protracted physical interaction and where the circumstances afforded an opportunity to pause and reassess the situation. However, these were not the circumstances. These were strikes delivered in rapid succession and which stopped as soon as the situation was under control. Mr. Rosemond invites an analysis of DC Luczyk’s conduct which parses out his actions into discrete events, even though, in reality, the entire incident occurred in the span of a minute and the strikes were delivered in a matter of seconds. The Ontario Court of Appeal has cautioned that an assessment of police conduct cannot “be reduced to an over-analytical parsing of events into static moments without practical regard for the overall picture”: R. v. Amofa, 2011 ONCA 368, 282 O.A.C. 114, at paras. 19, 24-25; see also R. v. Rigo, 2017 ONSC 3694, 393 C.R.R. (2d) 204, at para. 73.

[138] I do not agree that DC Luczyk’s reaction in the situation, to bury his head and begin striking once he heard the call out “gun” was unreasonable, implausible or excessive. I accept his evidence that, in the position he was in, he felt vulnerable and buried his head in an attempt to protect himself from being shot in the head. The defence position that it would have been preferrable to see what was going on around him, or that he should have stopped between strikes to reassess the risk, does not account for the reality of the dynamic and dangerous situation that had evolved.

[139] Finally, Mr. Rosemond made much of the fact that both DC Yan and DC Duran testified that they did not see anyone strike the applicant while he was on the ground. He submits that this is evidence that the officers are covering up for DC Luczyk’s actions because the circumstances did not give rise to a reasonable apprehension of a threat to his safety.

[140] I do not agree. It is not implausible or unreasonable to conclude that DC Yan and DC Duran, each being distracted by their respective responsibilities to secure the applicant’s hands and secure the firearm that had fallen from the applicant, may not have seen DC Luczyk strike the blows, delivered in very rapid succession. Both testified that the events happened very quickly. It is to be expected, in these circumstances, that the officers were not concentrating on (and may not have even had the opportunity to see), what DC Luczyk was doing in the very brief period before the applicant was brought under control. There is certainly nothing in the evidence to lend credence to Mr. Rosemond’s claim that the officers gave false testimony about not seeing strikes in order to conceal DC Luczyk’s actions.

d. Factual Findings on the Degree and Nature of the Force Used

[141] There is no real dispute that DC Luczyk struck the applicant with a closed fist multiple times in the face. DC Luczyk acknowledged that he struck the applicant three to four times as hard as he could.

[142] Mr. Rosemond argues that the force was excessive, either because no force was necessary in the circumstances, or if any force needed, DC Luczyk used more force than was necessary.

[143] Throughout his cross-examination of the officers, Mr. Rosemond suggested that the applicant was seriously injured, or that he could have been seriously injured by the blows. He intermittently referred to the possibility that the applicant could have been suffering from a concussion, a bleed in his brain, or diminished consciousness as a result of his head being struck and then striking the ground. As I understand his argument, the signs of potential serious injury are an indication of very significant force being used.

[144] In support of his position, he relies on the evidence of Mr. Hussey who testified that the police “pummeled” the applicant with fist strikes to the back and side of his head, causing his head to “hit the ground from a couple of punches”. He also testified that an officer put a knee on the applicant’s back, and another rubbed the applicant’s face into the ground. He testified that at least four officers engaged with the applicant while he was on the ground.

[145] He also relies on the video evidence from PC Pisano’s scout car and the booking hall which he suggests show that the applicant had injuries and that he demonstrated signs of potential serious internal injuries.

[146] Each officer confirmed that they did not observe the applicant to have any injuries requiring medical attention. In particular, PC Pisano, who had direct contact with the applicant following the arrest, testified that he did not see any injuries on the applicant, nor did the applicant complain of any injuries or raise any concerns for his health. As a result, no ambulance was requested. All testified that they would have called an ambulance if the applicant had visible injuries, complained of injuries, or appeared to require medical attention. Each officer was cross-examined extensively about the fact that no one asked the applicant about any possible non-visible injuries. All testified that the applicant never requested medical attention.

[147] In my view, the evidence does not support the defence argument that the force used was excessive. The evidence of Ira Hussey that there was a more sustained and brutal attack on the applicant is not credible or reliable. Further, the evidence does not support the defence submission that the applicant suffered significant injuries, or was put at risk for serious injuries, suggesting that force beyond what was required was used.

[148] There was no direct evidence on the voir dire, either in the form of medical records, an affidavit, or viva voce evidence from the applicant, as to any injuries he suffered as a result of the incident.

[149] The in-car camera video, which was played in its entirety and marked as an exhibit on the voir dire, captures the applicant’s appearance and words immediately after his arrest. I accept that he has bruising on the right side of his face and some discoloration on the left side of his face, consistent with having been struck in the face or head by DC Luczyk.

[150] However, I do not accept Mr. Rosemond’s submission that the video provides evidence of more significant injuries, or a basis to infer that the applicant could have had more significant injuries which required medical attention and which the police ignored. Having watched the video in its entirety, the applicant can be seen interacting normally with PC Pisano, who provided him with his rights to counsel and facilitated contact with family members on scene. The applicant can be seen giving directions as to who he wishes to speak to on scene. He has normal interactions with his grandfather, mother, and girlfriend while sitting in the scout car. When he is alone in the scout car, he appears alert and oriented to his surroundings.

[151] Similarly, the booking hall video does not show any signs of more significant injuries or a need for medical attention. Mr. Rosemond suggested that the applicant’s eyes were closed during parts of the intake interview with the booking Sergeant. In reviewing the booking video, I find that from the angle of the camera (capturing the applicant from above), the applicant’s eyes are downcast such that one can see his eyelids. However, I would note that in the same frame which Mr. Rosemond asserts shows the applicant’s eyes closed, the eyes of one of the officers next to the applicant similarly appear closed. In my view, these observations are most reasonably attributable to the camera angle and I do not accept that the video provides evidence of a diminished state of consciousness or any type of injury.

[152] In any event, it is apparent from the booking hall video that the applicant was alert and responsive throughout the booking hall interview. He was asked about any pre-existing injuries, to which he responded he did not have any. He provided clear answers to all the other questions asked of him, including stating and spelling his lawyer’s name.

[153] Turning to Mr. Hussey’s evidence, for a number of reasons, I do not accept his characterization of the force used on the applicant.

[154] Mr. Hussey’s evidence must be approached with caution. As the Crown fairly pointed out, Mr. Hussey has a lengthy criminal record dating back to 1965 which includes convictions for crimes of dishonesty, escaping lawful custody, and violating his parole. I do not, however, place significant weight on Mr. Hussey’s past criminal convictions, as many of the entries are very dated and he has not been convicted of any offence since 2002.

[155] However, the main reason why Mr. Hussey’s evidence must be approached with caution is that, on important issues, Mr. Hussey’s evidence was contradictory and/or internally inconsistent. His evidence was also contradicted by other evidence, including the scout car and booking videos. In my view, there are significant reliability and credibility concerns with his evidence.

[156] In examination in chief, Mr. Hussey testified to making certain specific observations, all of which suggest a gratuitous degree of violence. For example, he testified in examination in chief that an officer struck the applicant with significant force before anyone called out “gun”. However, in cross-examination, when asked about his evidence that an initial strong punch was delivered before the word “gun” was called out, he backtracked and gave varied answers, including that he was not sure if the word “gun” came before or after any strikes, that it “might have all been at the same time”, and ultimately, that it could have been called out after the applicant was already on the ground and that “it all happened so quickly”.

[157] Mr. Hussey also testified to seeing an officer “wind up” before striking the applicant as he went to the ground. However, in cross-examination, he denied saying this. I find this was, in fact, his evidence in examination in chief. When pressed further on this point in cross-examination, he changed his testimony, stating that he did not see an officer “wind up” before punching.

[158] He testified that as many as four officers were involved in punching the applicant when he was on the ground and that they were “pummeling” the applicant. He testified that one officer had a knee on the applicant’s back and another officer rubbed his face into the ground, stating something about the applicant having gold teeth. He also testified that he had a specific recollection of at least some of the officers involved. He testified that he recalled an Asian officer being involved, stating “I remember seeing his face. He stood out from the rest because he was Asian”. He testified that another officer was a “big and stocky” guy and that another “looked like he was in charge”.

[159] However, when he was cross-examined for more specific details about what he observed, and who did what, Mr. Hussey’s evidence was vague and sometimes contradictory.

[160] For example, although he stated that he specifically remembered an Asian officer (it can be inferred he was speaking of DC Yan), his evidence about what DC Yan did on the scene was confusing and contradictory. When he was asked if it was the Asian officer who grabbed the applicant’s arm, he stated that he was not sure. He testified that “the Asian officer” took the applicant to the ground, but later testified that he was not sure if it was him. He testified that “the Asian officer” might have been the officer kneeling on the applicant, but he was not “positive”. When asked if it was the Asian officer who punched the applicant as he went to the ground, he testified “I can’t say. There were at least four involved in taking him down and striking him”. When he was cross-examined about his evidence in examination in chief that the officer who yelled out “gun” was a tall officer who appeared to be “in charge”, he stated that he did not recall whether it was “the tall one [or] the Asian one, but one yelled gun.”

[161] When asked for more detail about who was allegedly rubbing the applicant’s face into the ground, Mr. Hussey was unable to say, even with reference to the general physical descriptions he provided, which officer did this. In examination in chief, he stated that he thought it was a different officer from the one who initially punched the applicant with force, but he was not sure.

[162] Other parts of Mr. Hussey’s evidence are not supported by the evidence. He repeatedly referred to the applicant looking like he had been “beat up” or “pummeled”. However, as noted above, the video from PC Pisano’s scout car shows that, while the applicant had some discolouration on his face, he otherwise did not appear to be injured. Mr. Hussey testified that the applicant was breathing heavily while inside the scout car, but there is no evidence of that on the video. When he was pressed to explain why he said the applicant looked like he had been beaten up, Mr. Hussey pointed to a scratch on the applicant’s face and that his hair was in disarray. Ultimately, he conceded that the applicant did not appear to have any significant facial trauma.

[163] Other aspects of his evidence are implausible. Most notably and as discussed above, his evidence that an officer produced a gun from a “gulley” is not credible.

[164] When the Crown challenged him on his evidence, he was often argumentative and defensive. In fairness, the inconsistencies and lack of detail in his recollections may very well be the result of Mr. Hussey being overwhelmed by the situation which, understandably, was very upsetting to him. By his own account, the events were highly stressful and he was emotionally upset at the scene because two of his grandsons were being arrested and one was taken to the ground forcefully by the police and struck multiple times. He also suffers from poor respiratory health and his breathing was laboured at the scene. As he put it during his evidence, his anxiety level was “through the roof” watching the events unfold and that he “felt like his head would explode”. Moreover, as Mr. Hussey readily acknowledged, the entire incident happened very quickly, “within seconds”.

[165] While his reaction to the scene is understandable, his evidence, nevertheless, contained inconsistencies and contradictions which significantly undermine its reliability and credibility.

[166] Finally, I would note that in assessing the overall credibility and reliability of Mr. Hussey’s evidence, Mr. Hussey’s attitude toward the police who work in his neighborhood is a relevant factor. In his evidence, Mr. Hussey described the police as “east end cowboys who have a reputation for this kind of brutality all the time”. I find that Mr. Hussey’s general disdain for police officers who operate in his neighborhood, coupled with his close relationship with the applicant, to be a factor in assessing the objectivity and truthfulness of his evidence.

[167] For these reasons, I am unable to place any weight on Mr. Hussey’s evidence.

[168] I accept the evidence of DC Luczyk that he struck the applicant three to four times in rapid succession as a distraction tactic. His evidence is consistent with the evidence of Officers Yan and Duran that a high-risk situation developed, in which the applicant could have accessed an unsecured firearm. The evidence does not support an inference that greater or materially different force was used.

e. Miscellaneous Points – No Use of Force Report, No Surveillance from Nearby Buildings

[169] Mr. Rosemond raised several points which he argues, support an inference that police used excessive force. First, he points to the evidence of DC Luczyk that he did not file a Use of Force Report following the incident. There was no evidence called on the voir dire as to police policies and standard practices for filing a Use of Force Report. Therefore, I do not accept that, in failing to file one in this instance, a negative inference about DC Luczyk’s credibility can be drawn. In any event, DC Luczyk did not dispute that he used force therefore it cannot be said that he was trying to conceal his actions simply because he did not file a Use of Force Report.

[170] Second, he argues that the police failed to investigate whether there were any surveillance videos available from nearby buildings which might have captured the incident. As I understand the argument, Mr. Rosemond invites the inference that the failure to investigate whether any buildings had video surveillance is evidence that the police may have sought to avoid having to disclose a record of their conduct. This argument is entirely speculative and without merit. There is no evidence that any buildings had surveillance cameras. There is no evidence that if any building had surveillance cameras, that those cameras would have captured the area where the take-down took place – at the dead-end round-about of Newbold Avenue. Moreover, the defence never made a request for police to investigate whether surveillance might be available from nearby buildings. Indeed, the first time the issue of building surveillance was raised was during submissions on the voir dire. I do not accept that anything can be inferred from the lack of investigation into video surveillance from nearby buildings.

Analysis – Sections 7, 11(d), and 12 of the Charter

[171] At common law and pursuant to ss. 494 and 495 of the Criminal Code, police officers are permitted to use force in effecting arrests. The permission to use force to effect an arrest is not without limits. Police are entitled to use only as much force as is necessary to affect their purpose: s. 25 of the Criminal Code; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 33.

[172] Police clearly cannot use force unnecessarily or as a form of retribution for actions the suspect has taken before his or her detention or arrest.

[173] The common law recognizes that, given the dangers of their job and the need to react quickly, the degree of force necessary will vary depending on the circumstances of each case. Police are not held to an exacting standard in applying force, as long as the force is within an acceptable range: R. v. Dacosta, 2015 ONSC 1586, [2015] O.J. No. 1235, at para. 103.

[174] For force to be excessive, it must substantially interfere with the security of the person of the accused. Use of force that is not excessive, even if it gives rise to foreseeable injury, would not breach s. 7 of the Charter, as police are entitled to use proportional, reasonable, and necessary force: R. v. Pan, 2012 ONCA 581, [2012] O.J. No. 4162, at paras. 44-48.

[175] Detentions and arrests are often dynamic and fluid in nature. This case is a clear example of a fast-paced, dynamic detention which took place over the course of a few minutes. The Supreme Court of Canada has recognized on numerous occasions the importance of examining the totality of the evidence through the lens of an officer with training and experience, and to resist reflective hindsight: R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 24; R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 73; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 32.

[176] Given that police are not measured to a standard of perfection, they need not demonstrate that the approach taken was the “correct” one, only that it was based on reasonable grounds, in the totality of the circumstances. Even where the response taken results in significant force used or significant injuries, if the force used was justified in the circumstances, it is not excessive: Pan, at para. 30, 46-48; DaCosta, at para. 103; R. v. Robinson, 2019 ONSC 4696, [2019] O.J. No. 4158, at paras. 104-107; R. v. Hannaford, 2020 ONSC 1388, at para. 522.

[177] However, where the police use excessive force, it may amount to a violation of the accused’s rights under ss. 7 and 12 of the Charter.

[178] In assessing the acceptable level of force, the circumstances at the time of the detention or arrest must be considered, including the following factors:

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

R. v. Walcott (2008), 57 C.R. (6th) 223 (Ont. S.C.), at paras. 23, 24.

[179] I find that the use of force during the detention of the applicant was objectively reasonable and justified in the circumstances of this case. I have found that a firearm fell from the applicant’s pants when officers were trying to detain him. They were unable to secure his hands upon hearing the “gun” call-out from Detective Duran. These circumstances necessitated a degree of force to be used to address the safety concern created by the presence of a loaded and unsecured firearm in the immediate area of a detainee who was not fully secured and from whom the firearm had come.

[180] In the volatile and dynamic circumstances, DC Luczyk’s actions cannot be measured to a nicety. I find that the strikes delivered by DC Luczyk were given as an attempt to distract the applicant from accessing the firearm and to preserve his own life. His belief that his life was in jeopardy was objectively reasonable. In the circumstances, the force used was reasonable and justified.

[181] Therefore, the applicant has not satisfied me on a balance of probabilities that his rights under ss. 7, 11(d), and 12 of the Charter were infringed.

VI. Section 24(1) and 24(2) Analysis

[182] Even if I had found that the force used was excessive, I find that this case does not meet the threshold for imposing a stay of proceedings. A stay of proceedings is appropriate “‘in the clearest of cases,’ where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued”: R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 82.

[183] Two types of conduct may warrant a stay of proceedings: (a) conduct that compromises the fairness of an accused’s trial; or (b) conduct that creates no threat to trial fairness, but risks undermining the integrity of the judicial process: O’Connor, at para. 73.

[184] In R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, Justice Moldaver set out the test to be used to determine whether a stay of proceedings is warranted, at para. 32:

(a) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; (b) There must be no alternative remedy capable of redressing the prejudice; and (c) Where there is still uncertainty over whether a stay is warranted, the court is required to balance the interests in favor of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system against the interest that society has in having a final decision on the merits.

[185] For the reasons set out above, I find that in the circumstances of this case, there is no prejudice to the applicant’s right to a fair trial or the integrity of the justice system that would be manifested, perpetuated, or aggravated through the conduct of the trial, or by its outcome. At its highest, this was a situation where three or four fist strikes were delivered in the context of a situation where an officer feared for his life. It is entirely distinguishable from a case raised by the applicant, R. v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131, where the Court of Appeal for Ontario imposed a stay of proceedings where the police broke the accused’s jaw after he had voluntarily turned himself in to police, but later refused to give a statement to the police.

[186] Balancing the interest that society has in having a final decision on the merits with the interests in granting a stay, I find that even if there was a violation of the applicant’s Charter rights, this is not the “clearest of cases” warranting a stay of proceedings.

[187] Further, had I found any violations of the applicant’s Charter rights, I would not have excluded the evidence of the firearm pursuant to s. 24(2) of the Charter. The Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 67-86 set out the three-pronged test to be applied for the exclusion of evidence under s. 24(2) of the Charter. A court must consider:

• The seriousness of the Charter-infringing state conduct;
• The impact on the applicant’s Charter-protected interests; and
• Society’s interest in an adjudication of the matter on its merits.

[188] On the first factor, I do not accept that, had there been any breaches of the applicant’s rights, that his rights were breached as a result of deliberate or systemic attempts to ignore Charter rights. In detaining the applicant, the police acted in good faith in difficult and dynamic circumstances. Through their evidence, the officers demonstrated an awareness of their obligation to have reasonable grounds to detain the applicant, and a clear understanding of the importance of timely implementation of the applicant’s rights to counsel. They also demonstrated candor in the degree of force used, and the reason for the use of force. The first factor favours inclusion of the evidence.

[189] On the second factor, I accept that a restriction on liberty, combined with the use of force, has an impact on the applicant’s interests and that the firearm was discovered as a result of the detention. Therefore, the breach had an effect on the applicant’s interests. However, on a sliding scale, the effect on his interests is lessened by the fact that the applicant was not actually “searched”, in that the firearm fell from his clothing, the detention and any delay in implementing rights to counsel was brief, and the use of force was limited to three to four quick strikes and not a prolonged application of force. Further, the applicant’s injuries were not serious and did not necessitate medical attention.

[190] The third factor favors inclusion of the evidence. The community’s interest in seeing cases concerning firearms adjudicated on their merits is clear. The evidence of the firearm is reliable and necessary for the prosecution to proceed. Exclusion of the firearm would end the Crown’s case on a very serious offence.

[191] On a qualitative balancing of the three Grant factors, the admission of the evidence would not bring the administration of justice into disrepute and I would not have excluded it.

VII. Conclusion

[192] For these reasons, the application pursuant to ss. 7, 8, 9, 10(a)(b), 11(d), 12, 24(1), and 24(2) of the Charter is dismissed.

R. Maxwell, J.

Released: March 14, 2022