COURT FILE NO.: CR-23-70000168 DATE: 20240816 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King Respondent – and – John Geddes Applicant
Counsel: Anthony Paas, for the Applicant Peter Hamm, for the Respondent
HEARD: May 21-24, 27, 2024
RULING ON CHARTER APPLICATION
NISHIKAWA J.
Overview and Procedural Background
[1] On February 2, 2022, police received a 911 call about a stabbing at 200 Sherbourne Street. The victim had been cut across the face with an edged object while at a unit in the building (the “Unit”).
[2] Officers of the Toronto Police Service (TPS) and special constables from the Toronto Community Housing Corporation (TCHC) reviewed digital video recordings (DVR) from the hallway outside the Unit and identified the suspect both entering and leaving the Unit, shortly before the victim was seen coming out of the Unit with a cloth to his face. As further detailed in these reasons, the police followed the movement of the suspect from 200 Sherbourne to 257 Sherbourne Street, where they set up outside.
[3] The Applicant, John Geddes, was taken down and arrested by police as he walked through an outdoor walkway, or breezeway, between the two TCHC buildings at 257 Sherbourne and 251 Sherbourne. A knife with blood on it was found in his pants pocket. Police found a loaded firearm, cocaine and crack in his backpack.
[4] The Applicant is charged with the following offences: aggravated assault; possession of a loaded, restricted firearm; possession of a restricted firearm without a licence; possession of a firearm while prohibited from doing so; possession of a prohibited device; possession of cocaine for the purposes of trafficking; and possession of crack cocaine for the purposes of trafficking.
[5] The Applicant brought an application under ss. 7, 8, and 9 of the Canadian Charter of Rights and Freedoms (the “Charter”) for a stay of the proceedings or, alternatively, to exclude from evidence the knife, firearm and drugs seized on his arrest. In brief, Mr. Geddes argued that the police lacked reasonable and probable grounds to arrest him, and that the search was illegal. He further argued that the police officers used unreasonable and excessive force in arresting him.
[6] On the first day of the hearing, the Applicant re-elected to be tried by judge-alone. The parties then agreed to have the Charter application and trial proceed before me as a blended proceeding.
[7] The Crown called its evidence on both the application and trial proper. The defence called no evidence on the Charter application. Both parties then requested that I deliver a bottom-line ruling on the Charter application. On May 24, 2024, I dismissed the Applicant’s Charter application with reasons to follow.
[8] The defence was to advise on May 27, 2024 whether they would adduce evidence on the trial proper. On that date, however, Mr. Geddes discharged his counsel and requested an adjournment to retain new counsel. The continuation of the trial has not yet been scheduled.
[9] These are my reasons for dismissing the Charter application.
Issues
[10] The issues raised in this Application are as follows:
(a) Did the police have reasonable and probable grounds to arrest the Applicant? (b) Was the search incident to arrest lawful? (c) Did the police use excessive force in arresting the Applicant? (d) If the Applicant’s Charter rights were breached, should this court grant a stay? (e) Alternatively, should this court exclude the evidence seized from the Applicant?
Factual Background
[11] In the early morning hours on February 2, 2022, police responded to a 911 call about a stabbing in a unit at 200 Sherbourne Street, Toronto. The victim, Jason Bartley, was apparently cut across the face with an edged instrument. While Mr. Bartley was being attended to by paramedics, TCHC special constable Kevin DaCosta, who knew and had spoken to him on previous occasions, asked him who had stabbed him. Mr. Bartley responded that it was a man with a dog. [1] He was taken to St. Michael’s Hospital where he received over 20 stitches to his face.
[12] SC DaCosta relayed this information over the radio and to TCHC Special Constable Nick Forrest, who was taking over his shift. SC Forrest reviewed DVR footage from the hallway of the second floor of 200 Sherbourne. The recording showed a man who was accompanied by a woman and a dog entering the Unit. Approximately two minutes later, the man, woman and dog left the Unit.
[13] Approximately three minutes later, the recording shows Mr. Bartley exiting the Unit holding a cloth or towel to his face. He is seen rocking and bending over. Another individual, Michael McDermott, is seen assisting him and pushing the button for the elevator. Mr. Bartley then entered the elevator.
[14] Upon reviewing further DVR footage of the housing complex, SC Forrest determined that the man, woman and dog had gone to 257 Sherbourne and entered unit 327. He believed that it was likely that they were still there. TPS officers and TCHC special constables monitored the DVR live feed and set up a loose perimeter around the exits of 257 Sherbourne.
[15] At 11:24 a.m., the officers who were monitoring the live feed of an external corridor at 257 Sherbourne observed the man, woman and dog exiting unit 327 and proceeding down the stairwell. Police Constables Steger and Cerqua of the TPS planned to intercept and arrest the man in the main lobby or breezeway area between 251 and 257 Sherbourne.
[16] At 11:26 a.m., PCs Steger and Cerqua tried to intercept Mr. Geddes in the breezeway. After a struggle, they handcuffed Mr. Geddes and arrested him. They located a folding knife with blood in his pants pocket. In the Applicant’s backpack, police found a Century Arms TP9SF 9mm handgun with 11 rounds loaded in an 18 round capacity magazine with a bullet in the chamber. They also found 100.6 grams of powder cocaine and 28.82 grams of crack cocaine in the backpack.
[17] After Mr. Geddes was advised of his rights to counsel, he requested medical assistance. Mr. Geddes told the officers that his wrist hurt and that he thought he might pass out because he had taken fentanyl. He was taken to St. Michael’s Hospital where he was from approximately 12:30 p.m. to 5:30 p.m. He was treated and released back to the custody of the TPS.
Analysis
Did the Police Have Reasonable and Probable Grounds to Arrest the Applicant?
The Applicable Principles
[18] Section 9 of the Charter states that “[e]veryone has the right not to be arbitrarily detained or imprisoned.” The purpose of s. 9 is to protect the individual from unjustified state interference. Section 9 limits the state’s ability to impose intimidating and coercive pressure on citizens without justification: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 25.
[19] The Applicant bears the onus of establishing on a balance of probabilities that his s. 9 rights were breached.
[20] Section 495(1)(a) of the Criminal Code allows a peace officer to make an arrest without a warrant if they believe, on reasonable grounds, that the person has committed or is about to commit an indictable offence.
[21] In order for an arrest to be lawful, police must have reasonable grounds to believe that an offence is being or has been committed. The reasonable grounds inquiry has both a subjective and objective component. The officer must hold an honest belief that the person committed an offence. In addition, the belief must be objectively reasonable in the circumstances known to the officer at the time of the arrest: R. v. Canary, 2018 ONCA 304, at para. 21.
[22] In order for a belief to be reasonable, a reasonable person standing in the shoes of the police officer must be able to see the grounds for arrest: R. v. Brown, 2012 ONCA 225, at para. 14. In Brown, the Court of Appeal further stated: “the individual’s constitutional right to be left alone by the state cannot depend exclusively on the officer’s subjective perception of events regardless of how accurate that perception might be. The issue is not the correctness of the officer’s belief, but the need to impose discernable objectively measurable limits on police powers.”
[23] When considering whether an officer’s subjective belief is objectively reasonable, the court looks at the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45-47. “The standard is met at the point where credibly-based probability replaces suspicion. Of course, the totality of the circumstances is to be considered.”: R. v. Dhillon, 2016 ONCA 308, at para. 25.
Application to the Facts
[24] In the circumstances of this case, I find that the police had reasonable and probable grounds to arrest Mr. Geddes.
[25] Based on the utterance made by Mr. Bartley to SC DaCosta, SC Forrest reviewed DVR footage and identified a man with a dog exiting the Unit a few minutes prior to the victim. They were accompanied by a woman. The man was described as a tall, light-skinned Black man, wearing black clothes, a black toque or head covering and carrying a black Reebok backpack. The woman was wearing a black light puffer jacket and brown boots. The dog was medium-sized, with a brown and black brindle coat. Based on the DVR review, the police had a readily identifiable suspect.
[26] The police then conducted a close review of DVR footage from neighbouring TCHC buildings to trace from where the suspect had originated before he went to the Unit. They identified the suspect as having left unit 327 at 257 Sherbourne before he exited the building and walked south to 200 Sherbourne. The recording showed the same man with the dog, as detailed by the victim, in the company of a woman. They were a distinct and identifiable group. Further DVR footage showed that the same man, woman and dog returned to 200 Sherbourne after the attack.
[27] In addition, the TCHC has records of each time a key fob is used to enter a building. As a result, the officers knew that the fob registered to unit 327 had been used to enter 251 Sherbourne, which is connected to 257 Sherbourne, at 5:21 a.m. This corresponded with the DVR recording showing the man with the dog entering the building at that time.
[28] The police believed that the suspect was still in unit 327 at 257 Sherbourne. They monitored the DVR live feed of the hallway outside the unit. At 11:24 a.m., SC Forrest saw on the live feed that the suspect was leaving unit 327. He alerted PC Steger. The suspect went down the south stairwell with the same woman and dog he was with earlier.
[29] SC Forrest testified that he believed that the man seen in the DVR recording leaving the Unit after the attack took place was the same man who was identified leaving 257 Sherbourne before his arrest because he was accompanied by the same dog and the same woman. In addition, on both occasions, he was wearing all black clothing, distinctive Nike shoes with teal details, and carrying a black Reebok backpack.
[30] Based on the foregoing, I find that the police had an honest belief that Mr. Geddes had committed the stabbing. Based on the information that was before them, i.e. their observations of the DVR footage, their belief was objectively reasonable. The police therefore had reasonable and probable grounds to arrest Mr. Geddes.
Was the Search Lawful?
The Applicable Principles
[31] Section 8 of the Charter states that “everyone has the right against unlawful search and seizure.” The purpose of s. 8 is to protect the property and privacy rights of persons against unwarranted incursions by the state: R. v. Hassan, 2020 ONSC 6354, at para. 56.
[32] A search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search was carried out is reasonable: R. v. Collins, [1987] 1 S.C.R. 265, at p. 278.
[33] In respect of s. 8 of the Charter, once the applicant establishes that the search was without a warrant, the onus shifts to the Crown to demonstrate that the search was reasonable and justified in the circumstances. Because a warrantless search is presumptively unreasonable, the Crown must rebut the presumption by showing that the arrest was lawful. During an arrest, a search incident to arrest, including one’s belongings, would be lawful so long as the arrest is carried out in a lawful manner and public or police safety issues exist: Canary, at para. 33.
[34] The common law power to search incident to arrest requires that:
(i) the individual has been lawfully arrested; (ii) the search is truly incidental to the arrest in the sense that it is for a valid law enforcement purpose connected to the arrest; and (iii) the search is conducted reasonably.
R. v. Stairs, 2022 SCC 11, at para. 35.
[35] Valid law enforcement purposes include police and public safety, preventing the destruction of evidence, and the discovery of evidence that may be used at trial. The police’s law enforcement purpose must be subjectively connected to the arrest, and the officer’s belief that the purpose will be served by the search must be objectively reasonable: Stairs, at para. 37.
Application to the Facts
[36] I have found above that the police had reasonable and probable grounds to arrest Mr. Geddes.
[37] After the arresting officers handcuffed and arrested Mr. Geddes, PCs Steger and Cerqua searched his pants pockets and backpack. PC Steger testified that he heard PC Cerqua say “gun” and looked in Mr. Geddes’ backpack. PC Steger testified that he saw a firearm, which he then removed from the backpack.
[38] Given that the victim had been stabbed earlier that morning and that the police had identified Mr. Geddes as the suspect, they had reason to believe that he was armed with an edged instrument. It was thus reasonable to search the Applicant for reasons of police and public safety. It was also reasonable to search Mr. Geddes to find evidence that could be used at trial, such as a knife. In fact, the officers located a folding knife. They also found a firearm, along with a significant quantity of drugs. In my view, the search of the Applicant was truly incidental to the arrest.
[39] Mr. Geddes, who did not testify on the Charter application, does not allege any facts to suggest that the search was conducted in an unreasonable manner. The DVR footage shows PCs Steger and Cerqua conducting the search after Mr. Geddes was taken to the ground. In the circumstances, and given my findings on the officers’ use of force to arrest the Applicant, I find that the search was conducted reasonably.
[40] Although the search was warrantless, the Crown has demonstrated that the search was reasonable and justified in the circumstances. Accordingly, the search was not in breach of the Applicant’s s. 8 rights.
Did the Police use Excessive Force in Arresting the Applicant?
[41] The Applicant alleges that the police officers breached his rights under s. 7 of the Charter by using unreasonable and excessive force in arresting him.
[42] The Crown submits that the use of force by police was reasonable, necessary and proportionate because the Applicant was not obeying the officers’ commands and posed a risk to the safety of the officers and members of the public who were nearby.
The Applicable Principles
[43] The use of excessive force in arresting a person is a breach of s. 7 of the Charter right to security of the person: R. v. Walcott (2008), 57 C.R. (6th) 223 (Ont. S.C.), at para. 22.
[44] Section 25 of the Criminal Code governs the use of force by police, and reads as follows:
Protection of persons acting under authority
25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person, (b) as a peace officer or public officer, (c) in aid of a peace officer or public officer, or (d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
[45] In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 32-34, the Supreme Court of Canada explained that the requirements of “reasonable grounds” and “as much force as necessary” imported a subjective-objective test. In other words, not only did the officer have to believe that force was necessary, but that belief had to be objectively reasonable. The degree of force used by police must be proportionate, reasonable and necessary: Nasogaluak, at para. 32.
[46] In assessing the reasonableness or necessity of the use of force, a court must take into account all the circumstances, including:
(i) whether the suspect was acting in a hostile manner towards 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.
Walcott, at para. 24.
[47] The police decision to use force is to be judged by what was or should reasonably have been known to them at the time: R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 23. In addition, a “certain amount of latitude is permitted to police officers who are under a duty to act and must often react in difficult and exigent circumstances”: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 73.
[48] Once an accused person demonstrates that force was used in effecting an arrest, the burden shifts to the Crown to demonstrate that the use of force was justified: R. v. Davis, 2014 SCC 4, [2014] 1 S.C.R. 78, at para. 1.
Application to the Facts
The Evidence
[49] As described above, TPS officers decided to arrest Mr. Geddes in the breezeway between 251 and 257 Sherbourne.
[50] On the DVR footage of the arrest, Mr. Geddes, the woman and the dog are seen walking through the breezeway from 257 to 251 Sherbourne Street. They are out of the camera range for a few seconds. When Mr. Geddes comes back into view, two TPS officers are seen taking him to the ground. Two TCHC special constables assist. PC Cerqua is seen on top of Mr. Geddes and PC Steger is kneeling to the right of his upper body. The two TCHC officers, including SC Forrest, try to assist in holding Mr. Geddes down. An unidentified TCHC officer holds Mr. Geddes’ legs. SC Forrest then attends to the dog, which had run toward Mr. Geddes and the officers on the ground.
[51] The DVR footage shows the officers struggling with Mr. Geddes for almost one minute before they are able to handcuff him. During the struggle, the recording shows one of the TPS officers strike Mr. Geddes with his hand three to five times. After a brief pause, the other TPS officer strikes him two more times.
[52] Detective Constable Mark Pischedda arrived on scene at 11:26 a.m. He testified that he heard a commotion in the courtyard area and rushed out to see PCs Steger and Cerqua wrestling with Mr. Geddes. DC Pischedda described it as a “serious struggle.” He saw that PC Cerqua was under Mr. Geddes and PC Steger was trying to get his arms to put the handcuffs on. DC Pischedda testified that he did not see the officers hit Mr. Geddes. The DVR confirms that he arrived after that took place.
[53] DC Pischedda testified that he was concerned about the situation because of Mr. Geddes’ size and potential access to weapons. DC Pischedda testified that there was urgency to getting the cuffs on Mr. Geddes because as long as his arms were free, he posed a danger. He further testified that he was concerned that if the struggle continued, there was a potential that onlookers and others could become involved. There were a few individuals in various areas of the courtyard and lobby. The TCHC buildings were known to police to be dangerous because of high levels of crime in the complex.
[54] DC Pischedda’s body-worn camera (BWC) recording shows PC Cerqua wrestling with Mr. Geddes. At 11:26:37 on the recording, PC Cerqua is underneath Mr. Geddes and holding him from behind, with one arm around his torso and the other around his neck. They both roll to their sides during the struggle. PC Steger is near the Applicant’s upper body and, at one point, has his knee on Mr. Geddes’ back. The other TCHC special constable, who was not identified, is seen holding Mr. Geddes’ legs. Mr. Geddes’ pants had come down during the struggle and his buttocks are exposed. Officers were holding Mr. Geddes’ wrist back in a bent position before the handcuffs were put on. On the BWC recording, it is evident that it took PC Cerqua some time to extricate himself from Mr. Geddes.
[55] Eventually, at 11:27:12 on the recording, PCs Cerqua and Steger are able to handcuff the Applicant, with DC Pischedda’s assistance. On the recording at 11:27:18, Mr. Geddes is heard asking why he is being arrested. DC Pischedda initially says that they will “settle” that later. He then advises him at 11:28:34 that he is being arrested for “ABH”. Mr. Geddes’ asks him what that is. DC Pischedda then explains, “assault cause bodily harm.” At 11:28:40 on the recording, Mr. Geddes is advised of his right to counsel.
[56] The Applicant was held on the ground while officers searched him and his backpack. When an officer is heard at 11:28:47 saying “gun” both PCs Cerqua and Steger put a knee back on Mr. Geddes’ back. Mr. Geddes is heard on the recording asking why he was being kept down. Another officer, PC Doherty, had arrived to assist with the arrest. Between 11:28 and 11:29 a.m. on PC Doherty’s BWC recording, the officers locate a firearm in the backpack and a knife. PC Doherty is seen proving the firearm safe and is heard on the recording advising that there was a bullet in the chamber. PC Doherty confirmed this in testimony. At 11:30 a.m., the recording shows Mr. Geddes being brought to his feet by PCs Steger and Cerqua.
[57] At the hearing, PC Steger testified that Mr. Geddes was taken to the ground to make it easier to control him. PC Steger testified that the Applicant had his arms tensed under him and was resisting giving up his arms to be cuffed. He told the Applicant to put his hands behind his back, but he would not comply. PC Steger testified that he was concerned that Mr. Geddes was trying to access a weapon in his waistband or pocket.
[58] PC Steger testified that PC Cerqua had told him before they attended at 257 Sherbourne that Mr. Geddes was believed to have a firearm. He did not know the basis for PC Cerqua’s statement. While defence counsel raised no objection, the statement itself is hearsay and I do not rely on it for the truth of its contents. However, the fact of the statement having been made is admissible and is relevant to what PC Steger believed in terms of the potential risk that Mr. Geddes posed.
[59] PC Steger testified that he administered several empty hand and knee strikes to the Applicant’s upper body to elicit compliance. He estimated that he struck Mr. Geddes more than five but less than ten times, with a closed fist, as hard as he could. PC Steger testified that he did not see PC Cerqua knee or punch Mr. Geddes. He testified that he also had his knee on Mr. Geddes’ back at one point and that it took approximately 30 seconds to one minute to handcuff the Applicant.
[60] When PC Steger viewed the DVR footage, he testified that he believed he was the officer who administered the first set of blows to Mr. Geddes and that PC Cerqua was the officer who struck the Applicant two more times after that. However, on further review of the footage, this did not appear to be correct. Based on their positions, PC Cerqua was the officer who delivered the initial set of blows to Mr. Geddes. On the recordings, PC Steger is seen wearing a black TPS toque. It is the person wearing the toque and to the right of Mr. Geddes who struck him the final two times.
[61] After hearing submissions on the Charter application, I provided counsel with an additional opportunity to review the DVR recording of the arrest and make submissions regarding PC Steger’s testimony. Neither party sought to recall PC Steger to testify.
[62] The defence agreed that it appeared from the recording that it was PC Cerqua who first struck the Applicant and PC Steger who struck him a further two times. Defence counsel acknowledged that PC Steger may have mistakenly accepted his suggestion in cross-examination that it was he who administered the first set of blows to Mr. Geddes. The defence argued, however, that PC Steger’s error negatively impacts his credibility because he accepted responsibility for something he did not do. The defence argued that PC Steger did so because PC Cerqua was not called as a witness. The defence further submitted that the Crown’s failure to call PC Cerqua as a witness on the Charter application is relevant to the issue of whether the Crown has met its onus of demonstrating that the use of force was reasonable.
[63] The Crown argued that it was possible to interpret PC Steger’s testimony in a manner that is consistent with the recording because it was unclear which blows defence counsel was asking PC Steger about in cross-examination.
Conclusions on the Use of Force
[64] As noted above, once the Applicant proves that force was used, the burden falls to the Crown to demonstrate that the use of force was not excessive.
[65] In my view, PC Steger was mistaken in identifying PC Cerqua as the officer who delivered the two final blows. On the DVR recording, once Mr. Geddes is taken to the ground, facing up, PC Cerqua then gets on top of him and strikes him three to five times. Throughout the altercation, PC Cerqua is to the left of Mr. Geddes and PC Steger is to his right. PC Steger can be seen moving his arms, potentially trying to grab the Applicant. Mr. Geddes then twists and gets himself in a crouched or bent position, with his body off the ground. The officers struggle to bring him down again. PC Steger then strikes him two more times.
[66] However, I do not find that PC Steger’s error negatively impacts his credibility for a number of reasons. First, it was counsel who suggested to PC Steger that in the recording, it was he who delivered the first set of blows. PC Steger responded, “I believe so” and simply accepted what had been put to him without asking to review the video more closely. When asked whether it was he or PC Cerqua who made the further two strikes, PC Steger testified that he believed it was PC Cerqua. While PC Steger was mistaken, I have no reason to believe that he intended to mislead the court. Second, PC Steger readily admitted his use of force and made no attempt to minimize his involvement in the use of force on Mr. Geddes. If anything, he overestimated his use of force. Third, PC Steger’s testimony in chief, which was given before he viewed the video recording, about the degree of resistance by Mr. Geddes and the process of securing his compliance was generally consistent with the video recording. Other than the error in identifying which officer did what, I accept his evidence.
[67] In addition, the failure of the Crown to call PC Cerqua as a witness on the Charter application does not necessarily mean that the Crown cannot discharge its burden to demonstrate the officers’ subjective belief at the time of the use of force. PC Steger’s testimony is evidence of the threat that the officers believed the Applicant posed when they attempted to arrest him. DC Pischedda also gave evidence about the extent of the struggle between the arresting officers and Mr. Geddes, which can also be observed on the DVR footage and DC Pischedda’s BWC recording.
[68] In my view, the officers’ use of force to arrest Mr. Geddes was reasonable, proportionate and necessary. Mr. Geddes is over five feet ten inches and weighs approximately 160 lbs. Once the officers brought him to his feet, he was considerably taller than PC Steger and somewhat taller than PC Cerqua. Mr. Geddes was resisting and non-compliant with the officers’ commands when they first took him to the ground. This is clear from the DVR recording, which shows the officers struggling with him for an extended period of time, even though there were two of them. It took PCs Steger and Cerqua almost one minute to get the handcuffs on Mr. Geddes, despite the assistance of a TCHC officer. This was achieved only after DC Pischedda arrived and assisted the arresting officers.
[69] Moreover, Mr. Geddes was believed to have committed a violent assault. PCs Steger and Cerqua had reason to believe that the Applicant was still armed with a knife, given that the stabbing had occurred hours earlier in the same area. PC Steger also believed that Mr. Geddes could be in possession of a firearm. In fact, Mr. Geddes had a knife in his pants pocket, where it was potentially accessible to him when the officers were attempting to arrest him. He also had a loaded firearm in his backpack.
[70] The surrounding circumstances were chaotic, because the Applicant’s dog was running loose and potentially dangerous, and the woman who was accompanying Mr. Geddes was also being arrested. In addition, there were also members of the public in the courtyard and lobby areas.
[71] I have some concern that the two additional blows might not, strictly speaking, have been necessary. However, at the time, Mr. Geddes had not yet been subdued and continued to struggle under PC Cerqua. After being taken down, Mr. Geddes managed to raise his upper body in a crouched position. The fact that PC Cerqua had been on top of Mr. Geddes but ended up on his back under him, supports that the Applicant was resisting with force.
[72] In the circumstances, I am mindful that the actions of police are not to be held to a standard of perfection. It would not be appropriate to measure the degree of force with exactitude and judge the police’s actions with the benefit of hindsight, given that the circumstances were dynamic and dangerous. See, Nasogaluak, at para. 22; R. v. DaCosta, 2015 ONSC 1586, at para. 98.
[73] Moreover, the officers’ use of force ended once Mr. Geddes was compliant with their directions. It was only when the firearm was located in the backpack that PCs Steger and Cerqua each put a knee back on Mr. Geddes’ back. From my review of the BWC recordings, this was a reasonable response to a heightened threat. After the officers had searched Mr. Geddes, they explained to him they would roll him to the side to stand him up, which they did with due care. The evidence is that Mr. Geddes asked for medical attention for his wrist and because he had taken fentanyl. Other than that, Mr. Geddes did not request medical assistance because of any injury inflicted during the arrest. As requested, Mr. Geddes was taken to the hospital for treatment.
[74] Based on the totality of the circumstances, the Crown has discharged its burden to demonstrate that the officers’ use of force was not excessive. Mr. Geddes was resisting being handcuffed by the officers, a situation that posed a danger to their safety and to the safety of the people who were in the area.
Should a Stay be Granted?
[75] A stay of proceedings is only 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. Cases warranting a stay of proceedings will be “exceptional” and “very rare.”: R. v. Babos, [2014] 1 S.C.R. 309, 2014 SCC 16, at para. 44.
[76] Given that I have found no breach of the Applicant’s Charter rights, 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 result from the conduct of the trial or by its outcome.
Should the Evidence be Excluded?
[77] Given that I have found no breach of the Applicant’s Charter rights, it is not necessary to consider whether the seized firearms and drugs should be excluded from evidence.
Conclusion
[78] For the foregoing reasons, the application is dismissed.
“Nishikawa J.”
Released: August 16, 2024
COURT FILE NO.: CR-23-70000168 DATE: 20240816 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King Respondent – and – John Geddes Applicant
RULING ON CHARTER APPLICATION Nishikawa J.
Released: August 16, 2024
[1] The statement is admitted as evidence on the application only.