R. v. Zaragoza, 2025 ONSC 2077

CITATION : R. v. Zaragoza , 2025 ONSC 2077 COURT FILE NO.: CR-22-70000560-000 DATE: 04042025 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING – and – ORLANDO ZARAGOZA Cox. A., counsel for the Crown Doyle, K., counsel for Mr. Zaragoza HEARD: October 1, 2, 3, 7, 8, 9, 11, 15, 16, 18, 21, 2024 and February 20, 2025 REasons on application to stay charges pursuant to ss. 7, 9, 10(A) and 24(1) of the canadian charter of rights and freedoms H. mcarthur J.: Introduction [ 1 ] Orlando Zaragoza is facing five counts of aggravated assault by endangering life, two counts of mischief, one count of flight from police, and one count of dangerous driving. [ 2 ] The events giving rise to the charges started when a police officer rode his bike into a private underground parking garage because he was “curious” about where a young, racialized man he had seen standing by the ramp leading into the garage had gone. Six other officers on bikes followed the first officer down the ramp. As the officers entered the garage, they encountered Mr. Zaragoza, a young, Filipino man. Mr. Zaragoza was in the driver’s seat of his Mercedes, and B. F., a young, Black man, was in the passenger seat. The car was on and pointed towards the exit of the garage. The car did not have a front licence plate. [ 3 ] The first officer approached the car and began to speak with Mr. Zaragoza through the passenger window. He said he did so because he was “curious” about where the man on the ramp had gone. The officer asked Mr. Zaragoza if he lived there and if there was anyone in the back seat of the car. As he was speaking with Mr. Zaragoza, another officer arrived and began trying to speak to Mr. Zaragoza through the driver’s window. This officer said that while he wanted to let Mr. Zaragoza know that he was missing his front licence plate, he did not intend to ticket him. A third officer placed her bike in front of the passenger side bumper obstructing Mr. Zaragoza’s car as she began “yelling” out commands to “shut off the car.” She said the officers were investigating Mr. Zaragoza because of his missing front plate. The fourth officer arrived and took up a position by the front driver’s bumper, placing his hand on the car. Shortly after that, two other officers rode their bikes to the entrance of the garage and stood there. The final officer then rode down and stood in the middle of the ramp. [ 4 ] Approximately a minute after the first officer first spoke with him, Mr. Zaragoza reversed the car and hit a wall in the garage. He then revved the engine and the officers in the garage scattered, running to places of safety. One of the officers ran to the grassy area beside the ramp. After revving his engine a few more times, Mr. Zaragoza sped out of the garage and away from the scene, driving over and destroying two police bikes. [ 5 ] As Mr. Zaragoza drove up the ramp and away from the garage, the officer on the grass by the ramp fired his gun four times towards Mr. Zaragoza. Both Mr. Zaragoza and his passenger suffered injuries as a result. One of the bullets pierced Mr. Zaragoza’s baseball hat, narrowly missing his head. [ 6 ] Mr. Zaragoza now brings an application arguing that the police violated his rights pursuant to ss. 7 , 9 , and 10(a) of the Canadian Charter of Rights and Freedoms . In particular, defence counsel argues that the officers racially profiled Mr. Zaragoza, arbitrarily detained him, failed to advise him of the reasons for his detention, and used excessive force in shooting at him. Defence counsel argues that this is one of the clearest of cases where a stay of proceedings is warranted pursuant to s. 24(1) of the Charter . Alternatively, defence counsel argues that the observations of the officers and any evidence gathered in the investigation should be excluded pursuant to s. 24(2) of the Charter . [ 7 ] The Crown counters that the officers did not racially profile Mr. Zaragoza, nor did they arbitrarily detain him. He argues that the police were properly investigating Mr. Zaragoza pursuant to the ancillary powers doctrine, as he was clearly about to drive on a public roadway without proper licence plates. The officers advised Mr. Zaragoza within seconds that he was missing his front licence plate, thereby letting him know the basis for the detention. Finally, the Crown argues the officer used reasonable force when he shot at Mr. Zaragoza as he drove up the ramp. The Evidence [ 8 ] I do not intend to set out all the evidence. [ 9 ] In brief, on May 30, 2021, seven uniformed officers with the Community Response Unit were assigned to help with crowd control at a protest. The officers were P.C. Tiberu Stoica, P.C. Christos Yiannakakos, Sgt. Tracey Hutchings, P.C. Christopher Sandino, P.C. Calvin Au, P.C. John Nguyen, and Sgt. Jessie Weeks. [ 10 ] As it turned out, the protest was smaller than expected and their assistance was not needed. The officers, who were on bikes, decided instead to go on general patrol in the Flemington Park area. Sgt. Hutchings testified that this was a “high crime” area, known for gangs, guns and drugs. P.C. Au testified they were there to “fly the flag” – meaning that the officers were to make their presence known and to ensure that all was in order. Reasons for Going into the Underground Garage [ 11 ] P.C. Stoica was riding his bike at the front of the “convoy” of seven officers when he saw a young, racialized male standing on the grassy area beside the ramp that leads into an underground parking garage. P.C. Stoica looked away for a moment, and when he looked back, the man was no longer there. P.C. Stoica said he was “curious” as to where the man had gone. Because he was “curious” he decided to go down the ramp into the garage to see if the man had gone there. [ 12 ] Sgt. Hutchings testified that she was riding her bike behind P.C. Stoica. She saw the man on the ramp walk into the garage. According to Sgt. Hutchings, however, this man had nothing to do with her going into the garage. Her evidence varied somewhat as to why she rode into the garage. She suggested that as part of the general patrol they were doing that day, the officers were routinely ride through garages. However, she also said that she could not recall riding into any other garages that day. She said she intended to check out the garage to see if there was anything out of the ordinary and to ensure that there were no criminal activities going on. But she also agreed that she was “kind of following” the person at the front. She then testified that she could not “recall exactly” if she was simply following the person at the front. She also said that the five officers went into the garage, as they were on patrol together and there is “safety in numbers.” Looking at the totality of her evidence, I find that Sgt. Hutchings rode into the garage because she was following the lead of P.C. Stoica. [ 13 ] P.C. Yiannakakos testified that he was third in the convoy. He went into the garage simply because he was following the other officers. [ 14 ] P.C. Sandino was fourth in the convoy. He went into the garage because he was following the lead of other officers. [ 15 ] P.C. Au was fifth in the line of officers. He said he went in the garage as he was “following the convoy.” He explained that whoever is at the front generally directs where to lead the other officers. [ 16 ] P.C. Nguyen was the sixth officer in the convoy. He went to the garage as he was following the lead of the front officers. [ 17 ] Sgt. Weeks was the seventh officer. He was a bit behind the other officers and as they went into the garage, he stood with his bike on the grass by the top of the ramp. After a short time, he rode his bike down and stood in the middle of the ramp. [ 18 ] Mr. Zaragoza testified that he was in the garage because he had just dropped off his friend, who lived there. Why the Officers Interacted with Mr. Zaragoza [ 19 ] P.C. Stoica noticed that Mr. Zaragoza’s car did not have a front licence plate. However, that is not the reason that he decided to speak with Mr. Zaragoza. Instead, he testified that he was “curious” as to where the man he had seen near the ramp leading to the garage had gone. He wondered if Mr. Zaragoza was the man he had seen, but thought it seemed odd, as his clothing was different from the man. He then wondered if the man had gotten into the back seat of Mr. Zaragoza’s car. [ 20 ] P.C. Yiannakakos testified that he spoke to Mr. Zaragoza because he noticed the front plate on the car was missing. P.C. Yiannakakos did not intend to write Mr. Zaragoza a ticket. Rather, he was simply going to let Mr. Zaragoza know that he was missing his plate. Once he got a “head nod” from Mr. Zaragoza, the officer said he would have gone on his way. His purpose, he said, was essentially to tell Mr. Zaragoza, “Hey buddy, save yourself a ticket in the future.” P.C. Yiannakakos said he had no grounds to stop Mr. Zaragoza from leaving and had no grounds to write him a ticket. [ 21 ] Sgt. Hutchings testified that the officers were investigating Mr. Zaragoza because his car was missing the front plate. Given that he was not on the public roads, they could not investigate him pursuant to the Highway Traffic Act , R.S.O. 1990, c.H.8 (“ HTA ”) . However, she believed they had authority to detain Mr. Zaragoza to investigate him as it seemed clear that he was about to drive in public when his car was missing its front plate. The Interaction with Mr. Zaragoza [ 22 ] P.C. Stoica testified that he went to the passenger side of Mr. Zaragoza’s car and then began “holding onto” or “leaning” on the car, for “no particular purpose”. As he did so, he asked Mr. Zaragoza, “Hey man, how are you?” Mr. Zaragoza replied, “I am just leaving.” P.C. Stoica responded, “No problem, man. Do you live here?” Mr. Zaragoza replied, “No. I just dropped someone off.” P.C. Stoica said, “That is cool, man.” P.C. Stoica testified that Mr. Zaragoza then told him he had to leave, revved his engine, and moved the car forward slightly. [ 23 ] At that point, P.C. Stoica told Mr. Zaragoza, “Hold on man. Anyone in the back seat?” He testified that he did so because he wanted to know whether the man he had seen on the ramp had gotten into the back seat. Mr. Zaragoza answered, “No.” He rolled down his back window and P.C. Stoica looked inside the car. [ 24 ] P.C. Stoica said that he spoke to Mr. Zaragoza in a casual tone of voice. After he had started speaking with him, P.C. Yiannakakos arrived and went to the driver’s side door, trying to speak to Mr. Zaragoza. After a short time, Mr. Zaragoza revved the engine, and reversed aggressively. He went back a few car lengths and hit a wall. Mr. Zaragoza then drove forward at a high rate of speed and out of the garage. [ 25 ] P.C. Yiannakakos testified that he noticed that the car did not have a front plate, so he attempted to “engage” the driver to let him know about the missing plate. He went to the driver’s side. At the same time, he saw P.C. Stoica go to the passenger side of the car and try to talk to the passenger. As he positioned himself beside the window, P.C. Yiannakakos said something along the lines of “Hey man, your plate is missing.” According to P.C. Yiannakakos, however, Mr. Zaragoza did not acknowledge his presence and seemed focused on the roadway. He looked nervous or scared. P.C. Yiannakakos said it was abnormal, as Mr. Zaragoza ignored the entire conversation. He rejected the suggestion that Mr. Zaragoza was speaking with P.C. Stoica, asserting that he was “positive” that Mr. Zaragoza did not speak with P.C. Stoica. [ 26 ] Within seconds of being at the car, P.C. Yiannakakos told Mr. Zaragoza to roll down his window. Mr. Zaragoza complied. P.C. Yiannakakos again told Mr. Zaragoza that he was missing his plate, but Mr. Zaragoza still did not look at the officer. Instead, he revved the engine which made P.C. Yiannakakos think that something could be wrong. He then saw Mr. Zaragoza put the car in reverse and rev the engine. He then reversed the car at a high rate of speed and hit a back wall. P.C. Yiannakakos was struck in the arm by the side mirror when the car reversed and testified that he had a minor injury. [ 27 ] Mr. Zaragoza then revved the engine a few times. P.C. Yiannakakos shouted to his team that the driver was coming through and to make room. P.C. Yiannakakos then abandoned his bike in the laneway and ran to take refuge in a parking spot by large cement pillars. Other officers also took refuge there with him. The car then drove forward very fast. He saw bikes go flying in the air. [ 28 ] Sgt. Hutchings testified that as she entered the garage, she saw the Mercedes. The car was on and extremely loud. It did not have a front plate. Although she wrote in her memo book that P.C. Yiannakakos was speaking to the driver, at trial she said she did not recall that. Instead, Sgt. Hutchings testified that P.C. Stoica was at the driver’s side and that she was unsure who was at the passenger side. [ 29 ] Sgt. Hutchings testified that she could not hear what the officer speaking to the driver was saying, so she started yelling, “turn off the car.” She yelled this more than once. While she was not completely paying attention to the conversation, and could not hear what was being said, she testified that she could tell that things were not going smoothly. She decided that she would walk to the back of the car to see if there was a rear license plate. [ 30 ] As Sgt. Hutchings got to the back of the car, she saw the car’s reverse lights come on. She then moved out of the way. After she was out of the way, the car reversed about 40 feet and scraped a pipe or the wall. She then heard the engine revving. She yelled for officers to get out of the way and ran to take refuge in a parking spot. About 5 to 10 seconds after the car hit the wall, it sped forwards. She threw her bike in front of the car to try to stop it, but Mr. Zaragoza drove over it and mangled her bike. As the car drove away, she heard gunshots. [ 31 ] When P.C. Sandino arrived at the garage, he saw P.C. Stoica by the passenger door and P.C. Yiannakakos by the driver’s door. P.C. Sandino positioned himself behind P.C. Yiannakakos and put his hand on the front hood of the car. He did not notice anything out of ordinary about how the car sounded and did not recall it being loud in the garage. P.C. Sandino heard one officer tell the driver to put the car in park and another officer say that the car did not have plates. He described it as a casual conversation. P.C. Sandino heard someone ask, “why?” P.C. Sandino said that the driver appeared uneasy and nervous. He described the driver’s upper chest and torso kind of leaning back and forth, while at the same time he seemed to be looking all about, as if looking for a way to escape. [ 32 ] After the car reversed, P.C. Sandino left the garage and hopped over a metal railing that separated the ramp from a pedestrian walkway and positioned himself with his back against the red brick wall by the green pedestrian door. About 20 to 30 seconds after the car hit the wall, it drove forward at a high rate of speed. P.C. Sandino heard two loud pops and threw himself to the ground as he thought the sounds were coming from the car. [ 33 ] P.C. Au testified that the officers in front were a “bit of a distance’ ahead of him, so by the time he made it down the ramp officers were already dealing with the car, which was about three parking spaces in from the exit. P.C. Au decided not to enter the garage as it was “crowded.” He stood by the exit on the right side of the ramp. From what he observed, he believed that his fellow officers were involved in a “trivial everyday vehicle stop” or perhaps a trespass investigation. [ 34 ] P.C. Au radioed dispatch to say that a vehicle was being investigated. After he did that, he saw Sgt. Hutchings dismount from her bike and walk towards the rear of the car. Shortly after she did that, the car reversed back and “wedged” itself into a wall. P.C. Au testified that he started yelling at the driver to get out of the car. The driver did not comply. Instead, after a momentary pause, the driver started revving the engine. P.C. Au started yelling for his fellow officers to get out of the way. P.C. Au ran to the grassy embankment beside the ramp and was standing there when Mr. Zaragoza drove up the ramp. As I will set out in more detail below, as Mr. Zaragoza drove up the ramp and away from the garage, P.C. Au fired his gun four times towards Mr. Zaragoza. [ 35 ] P.C. Nguyen said that he first positioned himself in front of the car. He then moved to the ramp and put his bike down on the ramp. P.C. Nguyen testified that he was standing on the ramp watching as the other officers dealt with Mr. Zaragoza. Less than a minute later, the car reversed quickly. As it did, P.C. Nguyen put his hand on his gun. While he at first denied that he did so, after having his memory refreshed by a CCTV video clip showing the ramp area, he agreed that he had taken this action. P.C. Nguyen moved and went through the door leading into the garage and positioned himself inside the garage by cement pillars. The car then moved forward, driving over the bike that P.C. Nguyen had placed on the ramp. His bike was somewhat damaged, but still rideable. [ 36 ] Sgt. Weeks did not have direct dealings with Mr. Zaragoza. As the other officers rode down the ramp, Sgt. Weeks stood on the grass by the top of the ramp. He eventually walked with his bike towards the ramp leading to the garage and stood in the middle of the ramp, holding his bike in front of him. From his position he could see the front end of the Mercedes at the opening of the garage and one or two officers at the driver’s side. He then saw P.C. Nguyen come out of the garage and put his bike on the ramp. This led Sgt. Weeks to believe that there was an investigation going on and that the officers were experiencing an issue. He assumed that the reason P.C. Nguyen put his bike down on the ramp was because he had concerns about the car leaving. [ 37 ] Sgt. Weeks testified that he thought the car might try to “make a run for it.” He rode his bike up the ramp, where he saw a couple of large garbage containers on wheels. Sgt. Weeks grabbed one of the containers and tried to pull and then push it onto the ramp. As he was pushing the container, he heard the car engine rev up and accelerate. He heard a scream and a shout, crunching sounds, and gun shots. He retreated into a little area where the dumpsters were kept. The car passed him from about 40 to 50 feet away. [ 38 ] Mr. Zaragoza testified that as he was adjusting the car seat and getting ready to drive out of the garage, he saw several officers suddenly appear in front of his car. He was surprised to see so many officers and unsure why they were there. Because there were so many officers, he felt afraid and began “shaking” from the “adrenaline.” An officer who was by the passenger side asked him to roll down his window. The officer began asking him questions, such as “Do you live here? What are you doing here? Why are you here?” Mr. Zaragoza said he responded by telling the officer that he had just dropped his friend off and that he was about to leave. Officers began banging on the back window and shouting at him to put his windows down further. He rolled the rear passenger window down completely and put the front window further down. He then heard an officer yell, “put it in park.” He said the officers were not asking - they were “yelling and demanding.” [ 39 ] Mr. Zaragoza testified that he tried to put the car in park, but because he was scared, he mistakenly put the gear shift in reverse. The car then shot back and hit the wall. Mr Zaragoza then saw one of the officers reach for his belt and he was afraid that he was going to get his gun and shoot him. Because he feared for his life, and because the officers had run out of the way, he decided to drive his car away from the scene. As he drove his car out of the garage, he ran over bikes. [ 40 ] As he drove up the ramp, he saw a bullet go through the dashboard. Mr. Zaragoza then felt his “right arm drop.” He later saw that he had an injury on his arm. He also learned that B.F. had been injured and had to go to the hospital. Positions on What the Officers Knew about Race [ 41 ] The CCTV video clip of the ramp shows that the young man who caught P.C. Stoica’s eye and triggered his curiosity was brown skinned. Mr. Zaragoza is also brown skinned. [ 42 ] P.C. Stoica’s evidence varied as to whether he knew the skin colour of the man on the ramp. I will have more to say about this in my analysis, but in general he said that the man had “tanned skin” and then resiled from that. His final position was that he could not remember if he knew the man’s skin colour at the time of the incident. P.C. Stoica said that he could see the skin colour of the occupants in the car as he approached the car. [ 43 ] According to P.C. Yiannakakos, it was only once he was standing at the driver’s side window trying to speak to the driver that he could identify the general characteristics of the occupants of the car. He could see that Mr. Zaragoza was a tan-skinned male, in his 20s. He could see that the passenger was a Black man. [ 44 ] Sgt. Hutchings testified that because the car had tinted windows, and at first because she was going from a sunny day to a dark garage, she could not really see the skin colour of the occupants of the car. After about 20 seconds, she walked to the back of the car to see if there was a licence plate. At that point, the passenger side window was rolled down and she could see that the passenger was a Black male and the driver had dark skin. [ 45 ] P.C. Sandino testified that because the driver’s side window was down about four to six inches, he was able to see the driver. He could tell that the driver was a tan-skin male, possibly Filipino. [ 46 ] P.C. Au testified that he could only see the driver, not the passenger. He was not able to tell the skin colour or race of the driver. [ 47 ] P.C. Nguyen initially testified that he could not see the age, race, or sex of the occupants of the car. However, when his memory was refreshed from the statement he gave to the Special Investigation Unit (“SIU”), he agreed that he glimpsed the driver of the car and could see that the driver was a male with olive skin. [ 48 ] Sgt. Weeks could not see the skin colour or race of the driver or passenger. Positions on Whether Mr. Zaragoza was Detained [ 49 ] P.C. Stoica testified that Mr. Zaragoza was never detained. [ 50 ] P.C. Yiannakakos was never explicitly asked his views on whether Mr. Zaragoza was detained. However, he testified that he had no grounds to stop Mr. Zaragoza from leaving and had no grounds to write him a ticket. [ 51 ] Sgt. Hutchings testified that she went to the passenger side of the car and put her bike in front of the front passenger bumper. By putting her bike there, she was obstructing the driver from leaving. She said that in her mind, the driver would have been detained as they were investigating him to prevent the potential HTA offence of driving without a front licence plate. [ 52 ] P.C. Sandino said that he believed that his fellow officers engaged with Mr. Zaragoza for “education”. They intended to have a “simple conversation” about the fact that his car had no front plates. He said there were no grounds to detain the car and its occupants. At all times, Mr. Zaragoza was free to leave. [ 53 ] P.C. Au testified that he thought his fellow officers were investigating Mr. Zaragoza. He believed that it was a “trivial traffic stop” or potentially a trespass investigation. He did not believe that Mr. Zaragoza was detained. [ 54 ] P.C. Nguyen said that Mr. Zaragoza was not detained. When asked if he was trying to obstruct the car from leaving, he responded, “if you count me putting my bike down.” [ 55 ] Sgt. Weeks initially testified that it was “hard” for him to say if the car and the occupants were detained. Sgt. Weeks ultimately conceded that he “could see” how in the circumstances it “might” be considered detention. [ 56 ] Mr. Zaragoza testified that he felt surprised and afraid when numerous officers suddenly appeared in front of his car and began asking him questions. He said he perceived them to be acting aggressively. According to Mr. Zaragoza, he thought he was “straight up arrested” – he did not believe that he was free to simply leave. The Shooting [ 57 ] P.C. Au testified that he unholstered his gun after Mr. Zaragoza reversed his car into the wall and began revving his engine. He ran to the grass embankment by the ramp. [ 58 ] There had been four officers in the garage when he ran out. By the time he was on the grass, he could only see one of those officers now in the general vicinity of where a white bike can be seen in the video. Based on the evidence, it seems this was likely P.C. Sandino who had come out of the garage and jumped over the metal railing that separated the ramp from the pedestrian walkway. [ 59 ] Given P.C. Au’s vantage point, he could not see where P.C. Stoica, P.C. Yiannakakos, or Sgt. Hutchings were when Mr. Zaragoza drove out of the garage. He also did not know where P.C. Nguyen or Sgt. Weeks were. The last time he noticed them was at the outset of the incident when P.C. Au took up his position on the ramp by the exit. At that time, he believed they were behind him and to his left, at approximately his “7:00” position. [ 60 ] P.C. Au testified that he was looking down the ramp, standing in a “squared-off position.” He did not have a full view directly into the garage from his vantage point. He could hear the car accelerating and a scraping noise. He saw the car driving out of the garage and could see a bike lodged under the car. As the car began driving up the ramp, he shot towards Mr. Zaragoza. [ 61 ] P.C. Au provided somewhat varying evidence as to why he tried to shoot Mr. Zaragoza – an action he characterized as using “lethal force.” I will outline his evidence on this issue more fully in my analysis. Suffice to say at this point that P.C. Au understood he was justified in using deadly force if he perceived that there was either an immediate threat of death or grievous bodily injury to his fellow officers or if death or such significant bodily harm had already occurred. [ 62 ] P.C. Au believed that he shot his gun twice. He was wrong. The SIU investigation determined that he discharged his gun four times. It seemed clear from the audio recording of the radio dispatch P.C. Au sent out after the shooting that he was in a state of heightened emotion. He attributed his mistake about how many shots he fired to this emotion and the rapidity of the events. The Crown asked if he could say why he fired the last shot at Mr. Zaragoza after he had already driven past him on the ramp or if it was a “global consideration.” P.C. Au responded as follows: I obviously don’t want to let off a whole bunch of, bunch of rounds. I am accountable for every shot that I make. But it is; I am considering or being cognizant of how many rounds I am going to be firing. At the time I thought it was just; I thought it was just two. It was quite stressful, and it was so quick paced and dynamic, yea, I just thought I – I thought I just fired, I fired two. Even based on the audio, you can hear me panting at the end, right? [ 63 ] Both Mr. Zaragoza and his passenger B.F. suffered injuries to their arms. B.F.’s medical records were tendered and establish that he suffered a bullet wound injury at his proximal right forearm/elbow with potential median nerve injury. X-rays revealed that he had a bullet fragment lodged in his ulna and he was added to the “urgent case board” for surgery. [ 64 ] Pictures were also filed of Mr. Zaragoza’s injury. It was unclear to me if the injury was caused by a bullet grazing his arm, or if the injury related to debris flying off the dashboard after it was struck by a bullet. [ 65 ] One of the bullets went through Mr. Zaragoza’s baseball cap. A picture taken by SIU depicts the trajectory of the bullet through his cap and makes clear that P.C. Au came within a hair of shooting Mr. Zaragoza in the head. P.C. Au’s conviction for Assault against Chad Facey [ 66 ] On April 26, 2021, about one month before the incident with Mr. Zaragoza, P.C. Au was involved in an incident that led him to be criminally charged. He was assisting a colleague who had arranged through Kijiji to buy an Apple Watch from a young, Black man named Chad Facey. The watch turned out to be fake, and P.C. Au and his colleague chased Mr. Facey to recoup the money. Eventually, P.C. Au tackled Mr. Facey and took him to the ground. [ 67 ] Mr. Facey appeared to be in medical distress after this incident and over the next couple of hours his condition deteriorated. His family and friends noticed a bump on his forehead and took him to the hospital. Tragically, he died later that day because of an intracerebral hemorrhage. P.C. Au was later charged with manslaughter in relation to Mr. Facey. On the eve of his trial, the charges were downgraded to assault causing bodily harm. [ 68 ] P.C. Au’s trial in the Facey matter started before Justice Woollcombe the week before Mr. Zaragoza’s trial started. When he testified before me, the decision in the Facey matter was under reserve. On November 27, 2024, Justice Woollcombe released her reasons: R. v. Au , 2024 ONSC 6587 . She made several negative findings about P.C. Au’s credibility, characterizing him as a “poor witness”, who “vacillated between being combative and argumentative with the Crown, to being non-responsive and evasive.” She determined that P.C. Au could not rely on s. 25 of the Criminal Code , R.S.C. 1985, c C-46, as that is only available for those who use reasonable force in a lawful arrest, and she concluded that P.C. Au neither intended to make an arrest nor undertook a lawful arrest. [ 69 ] Justice Woollcombe found P.C. Au guilty of assault. However, while she found that it was “highly likely” that P.C. Au caused the bruise on Mr. Facey’s forehead, she could not rule out other reasonable possibilities for the cause of the injury. As a result, she found P.C. Au not guilty of assault causing bodily harm. [ 70 ] I permitted counsel to ask P.C. Au some limited questions about the Facey incident. Defence counsel submitted that I should use the Facey incident to find that P.C. Au had a disposition to use excessive violence against young, racialized men. I have determined, however, that it would be inappropriate to use the Facey incident in that manner. While the incident with Mr. Facey and the incident with Mr. Zaragoza were within a month of each other, there are substantial differences between the two factual situations. Given that, I have determined that I will not consider the Facey incident when assessing whether P.C. Au used excessive force when he tried to shoot Mr. Zaragoza as he fled in his car up the ramp. [ 71 ] I note that as it relates to P.C. Au’s evidence before me on the Facey matter, I share many of the concerns expressed by Justice Woollcombe about the credibility of his testimony. However, since I have determined that I am not going to rely on this incident in assessing whether P.C. Au used excessive force against Mr. Zaragoza, I put those concerns to the side. In my view the fairest approach is to assess the credibility and reliability of P.C. Au’s evidence by examining only the evidence he provided specifically in relation to the actions he took with respect to Mr. Zaragoza on May 30, 2021. Analysis Issue 1: Did the police violate Mr. Zaragoza’s right to be free from arbitrary detention pursuant to s. 9 of the Charter ? [ 72 ] Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained. The section is meant to protect individual liberty against unjustified state interference. [ 73 ] The police, of course, may need to interact with members of the public for a variety of reasons. It is important to keep in mind that not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter : R. v. Mann , 2004 SCC 52 , at para. 19 . [ 74 ] Instead, detention under s. 9 of the Charter refers to a suspension of an individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply, or a reasonable person would conclude by reason of the state conduct that they had no choice but to comply: R. v. Grant , 2009 SCC 32 , at para. 44 . [ 75 ] The analysis regarding whether the police violated Mr. Zaragoza’s right to be free from arbitrary detention should proceed in two stages. At the first stage, the question is whether the police detained Mr. Zaragoza at all. If so, at the second stage of the analysis, the question is whether the detention was arbitrary: R. v. Le , 2019 SCC 34 , at para. 29 . I will address each question in turn. i. Did the police detain Mr. Zaragoza? [ 76 ] There is no dispute between the Crown and defence that the police detained Mr. Zaragoza at some point in the encounter. The parties diverge, however, over when the detention crystalized. Defence counsel argues that Mr. Zaragoza was detained when P.C. Stoica leaned on the car and began asking him questions. The Crown counters that Mr. Zaragoza was only detained when Sgt. Hutchings walked to the back of the car to check on the rear licence plate. [ 77 ] The line between general questioning that does not amount to a detention, and a focussed line of questioning that does trigger a detention has been described as “murky”: Le , at para. 31. This case highlights the difficulties that can present when trying to determine when the line has been crossed. [ 78 ] In Grant , the court set out three non-exhaustive factors that can aid in determining if, and when, a detention has occurred. First, the circumstances giving rise to the encounter as they would reasonably be perceived by the individual. Second, the nature of the police conduct. Third, the particular characteristics of the individual where relevant. [ 79 ] I will examine each factor in turn. a) The Circumstances Giving Rise to the Encounter as They Would Reasonably be Perceived by the Individual [ 80 ] Mr. Zaragoza was about to leave a private parking garage when suddenly P.C. Stoica approached him and began to question him. As in the Le case, P.C. Stoica was not called to the garage to provide general assistance, maintain order, or respond to unfolding events. No assistance had been requested - no specific complaint had been received. While P.C. Stoica noticed that the car was missing its front plate, his actions were not precipitated or related to the plate. P.C. Stoica’s actions were solely motivated by what he characterized as his curiosity. [ 81 ] While P.C. Stoica testified that he was “curious” about where the man on the ramp had gone, he failed to ask Mr. Zaragoza any questions about that man. He did not ask Mr. Zaragoza if he had seen the man or if he knew where the man had gone. Instead, as he leaned on the car, he directed questions specific to Mr. Zaragoza: Did Mr. Zaragoza live there? Was there anyone in the back seat of his car? A reasonable person would have gleaned from the questions that P.C. Stoica was not investigating a general occurrence, or attempting to provide assistance, but was instead for some reason focused on Mr. Zaragoza. [ 82 ] As P.C. Stoica began to question Mr. Zaragoza, five other officers rode down the ramp. A sixth officer came down the ramp shortly after and stood in the middle of the ramp with his bike. Mr. Zaragoza testified that given the circumstances, he did not believe that he was free to leave. [ 83 ] It is trite law that one may believe some, none, or all of a witness’s evidence. I had difficulty with several aspects of Mr. Zaragoza’s evidence. I do, however, accept his evidence that he felt he was not free to leave. On this point he testified in a coherent, credible, and straightforward manner. Further, the fact that he rolled down the rear window when asked by P.C. Stoica if there was anyone in the backseat supports that subjectively, Mr. Zaragoza believed that he was being detained. [ 84 ] Moreover, in my view a “reasonable person” in these circumstances would perceive that they were not free to leave. A reasonable person, being asked questions like the ones posed by P.C. Stoica, as his fellow officers streamed in and positioned themselves by the side and in front of the car, effectively blocking their exit, would perceive that the officer was singling them out for focused investigation, and that they were not free to simply drive away. b) The Nature of the Police Conduct [ 85 ] As explained in Le , at para. 43, an assessment of the nature of the police conduct encompasses many factors, including the place where the interaction occurred, the language used, the use of physical contact, and the duration of the encounter may be relevant in determining if an individual has been detained. I turn to those factors. i) The Place where the Interaction Occurred [ 86 ] The interaction took place in a private underground parking garage. Mr. Zaragoza did not live in the building associated with the garage, but he had been invited to attend by his friend, whom he had just dropped off. As an invited guest, Mr. Zaragoza had a reasonable expectation of privacy: Le , at paras. 135-137. [ 87 ] Mr. Zaragoza was in his car. In general, drivers have a reduced expectation of privacy. But here, Mr. Zaragoza had yet to leave the garage and was not on a public roadway. He was thus not a “driver” as defined in s. 1(1) of the HTA . The police did not have authority to stop him pursuant to s. 216(1) of the HTA . Drivers can anticipate that they will occasionally be pulled over by the police for HTA purposes. But police approaching and asking questions before the driver has left private property would reasonably be perceived to be out of the norm. [ 88 ] The garage was quite narrow. The tight confines of the space meant that when the police rode their bikes down the ramp and into the garage, they would necessarily have impeded Mr. Zaragoza’s ability to leave. The sudden appearance of several officers, positioning themselves on the sides and in front of the car would lead a reasonable person to feel that they were obliged to stay and not free to leave. [ 89 ] The garage was in a neighbourhood known for crime and often patrolled by the police. However, as explained in Le, at para. 60, the reputation of a particular community does not license the police to interact more intrusively with members of that community than they would in an area with lower rates of crime. Instead, as made clear in Le , the fact “that a neighbourhood is policed more heavily imparts a responsibility on police officer to be vigilant in respecting the privacy, dignity and equality of its residents who already feel the presence and scrutiny of the state more keenly than their more affluent counterparts in other areas of the city…” [ 90 ] The garage was attached to an apartment building operated by Toronto Community Housing (“TCH”). While the garage was private, police officers were authorized by TCH to enter for some purposes, such as general patrol, keeping the neighbourhood safe, and enforcing laws such as the Criminal Code , the Controlled Drugs and Substances Act , or the Liquor Licence Act . [ 91 ] As of March 29, 2021, however, about two months before the incident with Mr. Zaragoza, TCH revoked a previous authorization allowing police to enforce the Trespass to Property Act on its properties. As clarified in a letter the TCH Corporation sent on April 9, 2021, the revocation of authority “in practical terms, means that members of the Toronto Police Service no longer have our authority to proactively and presumptively initiate enforcement under the Trespass to Property Act on our behalf on our property.” There is no dispute that the TCH revoked the authority of the police to proactively initiate trespass investigations on TCH properties because of concerns over racial profiling. [ 92 ] P.C. Stoica, the first officer to deal with Mr. Zaragoza was not engaged in general patrol. Nor was he investigating Mr. Zaragoza for his missing licence plate. He was not investigating him for any statutory offence. He was not attempting to keep the neighbourhood safe or enforce any laws. Instead, P.C. Stoica went into the private garage because he was following a young, racialized male out of curiosity. It strikes me that if the TCH was concerned enough about racial profiling that they rescinded the authority of the police to proactively start trespass investigations, then the TCH would be equally concerned by police entering on their property and questioning racialized persons for “no particular reason” except to satisfy curiosity. ii) The Language Used and Physical Contact [ 93 ] While P.C. Stoica may have been using a casual tone of voice, as noted in Le , at para. 47, actions speak louder than words. While P.C. Stoica was asking Mr. Zaragoza questions, his fellow officers flooded into the narrow parking garage. As P.C. Stoica leaned on the car and questioned Mr. Zaragoza, P.C. Yiannakakos approached the car and began trying to speak to him. Meanwhile, Sgt. Hutchings put her bike in front of the passenger front bumper and began “yelling” out commands to shut the car off. Then, P.C. Sandino positioned himself by the front driver’s side of the car, putting his hand on the car. Quickly after that, P.C. Au and P.C. Nguyen arrived and stood at the front entrance of the garage. Sgt. Weeks arrived shortly after that and stood in the middle of the ramp. [ 94 ] To a reasonable observer, it could certainly appear that as P.C. Stoica asked questions, the other officers assumed tactical positions. Clearly, the positions of the officers impeded Mr. Zaragoza’s ability to simply drive away. In my view, the sheer number of officers quickly arriving about the car would increase a reasonable person’s perception that they were being detained, regardless of the language being used. iii) The Duration of the Encounter [ 95 ] While the encounter was brief, as noted in Le , at para. 66, a detention, even a psychological one, can occur within a matter of seconds. And here, the police conduct supports that a detention arose as soon as P.C. Stoica leaned on the car and began questioning Mr. Zaragoza. In the meantime, his fellow officers went to the sides and front of the car, effectively setting up a perimeter in front of the Mercedes. c) The Particular Characteristics of the Individual Where Relevant [ 96 ] At the time of the incident, Mr. Zaragoza was only 18 years old. Mr. Zaragoza is, and was at the time, slender. As seemed evident both in his video statement and his testimony before me, he is unsophisticated. He is Filipino and his passenger was a Black male. [ 97 ] As explained in Le , at para. 122, “the young often do not perceive the world in the same manner as mature adults.” Further, a “lack of maturity means the power imbalance and knowledge gap between citizen and state is even more pronounced, evident and acute.” [ 98 ] Binnie J. in Grant , at para. 154 , noted that “[a] growing body of evidence and opinion suggests that visible minorities and marginalized individuals are at particular risk from unjustified ‘low visibility’ police interventions in their lives.” As stated in Le , at para. 73, to truly engage in a realistic appraisal of the entire interaction, courts must appreciate that individuals in some communities may have different experiences and relationships with police than others, which may impact upon their reasonable perceptions of whether and when they are being detained. This larger social context must be kept in mind when determining if, and when, Mr. Zaragoza was detained. [ 99 ] As in Le , the documented history of relations between police and racialized communities would have had an impact on the perceptions of a reasonable person in Mr. Zaragoza’s shoes. When an officer, in a private garage, leans on or holds on to the car and asks pointed questions to a young, racialized man about whether he lives there, or who else is in the car, as many other officers take up positions in front of the car, a reasonable person standing in his shoes would have felt compelled to “remain, answer and comply”: Le , at para. 97. [ 100 ] The totality of the circumstances satisfies me that Mr. Zaragoza was detained within seconds when P.C. Stoica leaned on or held onto his car and began to ask him questions. ii. Did the police arbitrarily detain Mr. Zaragoza? [ 101 ] In Grant , at paras. 54-56 , the Supreme Court explained that for a detention to be constitutionally compliant, the detention must be authorized by law, the authorizing law itself must not be arbitrary, and the way the detention is carried out must be reasonable. [ 102 ] Defence counsel’s primary position is that the police racially profiled Mr. Zaragoza. The law is clear that a detention based on racial profiling is necessarily arbitrary, as it is not based on reasonable suspicion: Le , at para. 78. In the event that I do not conclude that the police engaged in racial profiling, defence counsel argues that there was no lawful basis for the detention, rendering it arbitrary: Mann , at para. 20 . [ 103 ] As explained in Le , at para. 76, racial profiling occurs when race or racial stereotypes are used, either consciously or unconsciously, and to any degree, in the selection or treatment of a suspect: see also, R. v. Dudhi , 2019 ONCA 665 , at paras. 62-63 . A police officer need not be an overt racist to engage in conduct based on unconscious racial stereotyping: R. v. Brown , 2003 52142 (ON CA) , [2003] O.J. No. 1251 (C.A.), at para. 8 . [ 104 ] To succeed, a claim of racial profiling requires both proper framing and evidence: R. v. Tutu , 2021 ONCA 805 , at para. 38 ; Le ; Dudhi ; R. v. Sitladeen , 2021 ONCA 303 . Racial profiling can rarely be proved by direct evidence. Instead, the court must determine whether, looking at the totality of the circumstances, it can reasonably be inferred that the police used race, to any degree, in the decision to investigate, detain or arrest an individual. [ 105 ] The inquiry should focus on evaluating the particular “internal mental process” that led to the specific police action at issue: Le , at para. 78. If a police officer’s explanation for their actions seems unbelievable, this can support an inference that the officer was motivated, consciously or unconsciously, by negative racial stereotyping: Sitladeen , at para. 82 ; Dudhi , at paras. 80-81 . [ 106 ] P.C. Stoica testified that race played no part in the actions that he took that day. The Crown argues that his evidence is believable and should be accepted. But there were three aspects of P.C. Stoica’s evidence that I found problematic. [ 107 ] First, his shifting evidence over whether he knew the racial characteristics of the man on the ramp. In chief, P.C. Stoica did not mention anything about the man’s race or skin colour. In cross-examination, defence counsel suggested that the man on the ramp was a “brown guy”. P.C. Stoica specifically sought clarification as to who counsel was asking about. Defence counsel then made it abundantly obvious that the question was about the man on the ramp. P.C. Stoica responded that he would describe the man as “tanned”. However, in re-examination, he resiled from this and said that he did not remember testifying that the man on the ramp had tanned skin. P.C. Stoica then testified that he could not recall if he saw or knew the man’s skin colour at the time. [ 108 ] As I watched P.C. Stoica testify on this point, I got the impression that he was trying to distance himself from any knowledge of the man’s race. But looking at the totality of the evidence, I conclude that P.C. Stoica knew that the man on the ramp was racialized before riding his bike into the garage. In particular, I found his comments to the SIU a couple days after the incident to be telling. P.C. Stoica told the SIU that he found it “slightly odd” when he saw Mr. Zaragoza, because he was wearing different clothing than the man on the ramp. It strikes me that there is only one reason why it would seem odd to P.C. Stoica that Mr. Zaragoza was not dressed like the man on the ramp. And that reason would be that P.C. Stoica initially thought that Mr. Zaragoza, a brown-skinned man, was the brown-skinned man he had just seen on the ramp. That is, P.C. Stoica turned his focus to Mr. Zaragoza because he was brown skinned, as was the man who had initially triggered P.C. Stoica’s curiosity. [ 109 ] Second, P.C. Stoica’s evidence about whether he “followed” the man on the ramp into the garage varied. He initially readily agreed that he had followed the man into the garage. Indeed, he repeatedly agreed that he had followed the man. And in my view that would be a fair characterization of the actions P.C. Stoica took that day. As he said, he was “prompted” to go into the garage because he “assumed” the man had gone into the garage. But, when counsel asked him if he “often” followed people as they went about their daily business, he suddenly quibbled over the use of the word follow. He said he “didn’t really follow” the man since he was out of sight. Thus, according to P.C. Stoica, he was not “technically” following the man. [ 110 ] Defence counsel again asked if it was his “normal practice” to follow people going about their business. The following exchange then took place: Q. Do you follow people? A. I don’t know. Q. You don’t know if you generally follow people when you’re patrolling? A. I don’t know. [ 111 ] P.C. Stoica came across as evasive during the questions on whether he followed the man on the ramp, or whether he generally followed people. It seemed as if it was dawning on him where counsel might be going with her questions. His sudden reluctance to admit that he followed the man on the ramp, when earlier he had no difficulty with that point, seemed to arise because he worried that randomly following people in the community without any reasonable basis to do so might be viewed unfavourably. [ 112 ] Third, I found P.C. Stoica’s inability to explain why he took the action he did to be troubling. Here, P.C. Stoica said he was curious about the man on the ramp. He agreed that he “clearly attached a lot of significance to the guy on the ramp.” He agreed that something about the man on the ramp “sparked his interest” and “prompted” him to ride his bike into a private parking garage to see if the man had gone there. [ 113 ] Yet, when pressed repeatedly, P.C. Stoica could not articulate why he was interested in the man. Nor could he explain why he was so curious about this man that he followed him into a private parking garage. Le urges courts to focus on the internal mental process of the officer. But P.C. Stoica struggled and ultimately failed to explain why he was curious about the man on the ramp. [ 114 ] In my view, P.C. Stoica’s inability to explain the mental process that led him to be curious about the man on the ramp, and then to question Mr. Zaragoza because he thought he was the man on the ramp, supports that his mental process was tainted, consciously or unconsciously, by racial considerations. Indeed, looking at the totality of the evidence, I find it likely that P.C. Stoica’s actions were taken, at least in part, because of the racial characteristics of the man on the ramp. He then turned his focus to Mr. Zaragoza because his skin colour was similar to the man on the ramp. That is, he selected Mr. Zaragoza for questioning based, at least in part, on his skin colour. He may also have been motivated by the fact that the man on the ramp and Mr. Zaragoza were young men in a high crime area. That does not render his actions more justifiable. As noted in the Tulloch Report , at pp. 41-42, “[y]outh, especially Indigenous, Black and other racialized youth, and youth in low-income housing… are ready targets for heightened police surveillance and intervention.” [ 115 ] I accept, as the Crown argues, that since Mr. Zaragoza’s car was missing its front plate, objectively P.C. Stoica would have had the authority to briefly detain him. [i] When P.C. Stoica encountered Mr. Zaragoza he was in the driver’s seat of his car. The car was on and pointed towards the exit. It seemed clear that Mr. Zaragoza was about to leave the garage and drive on a public roadway. Given the constellation of factors, it would be reasonable to suspect that Mr. Zaragoza was about to commit a HTA offence, by driving on a public roadway without his plates as required by s. s. 7(1) (b) of the HTA . [ 116 ] But as Doherty J.A. noted in Peart v. Peel Regional Police Services Board , 2006 37566 (ON CA) , [2006] O.J. No. 4457 (C.A.), at para. 91 : “Racial profiling is wrong. It is wrong regardless of whether the police conduct that racial profiling precipitates could be justified apart from resort to negative stereotyping based on race.” More recently, in Sitladeen , at para. 52 , the court made clear that even if an officer had objective grounds to detain an individual, those grounds cannot justify the detention if they are tainted by any degree of racial profiling. Here, P.C. Stoica selected the man on the ramp and then Mr. Zaragoza as the focus of his interest because of their racial characteristics. His actions thus cannot be justified based on the fact that objectively he could have briefly detained Mr. Zaragoza because of his missing license plate. [ 117 ] In any event, if I am wrong in finding that P.C. Stoica was motivated, at least in part, by race, that is not the end of the matter. Again, for a detention to be constitutionally compliant, it must be authorized by law. P.C. Stoica, the first officer to detain Mr. Zaragoza, was not investigating Mr. Zaragoza’s missing front license plate. P.C. Stoica detained Mr. Zaragoza out of curiosity. Indulging one’s curiosity is not a recognized police duty. [ 118 ] Officers, of course, may be curious. There is nothing wrong with that. And curiosity may lead an officer to take certain permissible investigative steps. As explained in Peart , at para. 107 , police do not need reasonable grounds to conduct investigations so long as the police conduct does not interfere with any individual rights. But curiosity is not a justifiable basis for a detention. [ 119 ] In R. v. Lai , 2019 ONCA 420 , at paras. 29-30 , the court explained that the subjective component of the relevant legal standards plays an important role in ensuring that the police act for legitimate purposes and turn their minds to the legal authority they possess. The Supreme Court also considered this issue in R. v. Caslake , 1998 838 (SCC) , [1998] 1 S.C.R. 51, at para. 27 . There, the court held that the police cannot rely on the fact that a legitimate reason for a search existed if that is not the reason why the search was conducted. [ 120 ] In my view, a similar analysis applies to detentions. This accords with the purpose of s. 9 , which is to protect individual liberties from unjustified state inference: Grant , at para. 20 ; Le , at para. 152. That is, P.C. Stoica cannot rely on the fact that objectively a legitimate purpose for the detention existed when that is not the purpose for which he detained. Even apart from the issue of racial profiling, given that he was not acting pursuant to any lawful authority, P.C. Stoica arbitrarily detained Mr. Zaragoza. [ 121 ] The Crown argues that since P.C. Yiannakakos and Sgt. Hutchings were properly investigating Mr. Zaragoza because of his missing plate, Mr. Zaragoza was not arbitrarily detained. Defence counsel counters that that was not their real motivation in dealing with Mr. Zaragoza. She argues that the police action here went far beyond what would be reasonably necessary to investigate a minor HTA infraction, punishable by a small fine. [ii] I am prepared to accept for the purposes of the analysis, however, that P.C. Yiannakakos and Sgt. Hutchings became involved with Mr. Zaragoza because of his missing plate. [ 122 ] But I have difficulty with the further proposition that their valid investigative aims can somehow cleanse or cure the improper motivation of P.C. Stoica. That is not to say that every time one officer acts for an improper purpose, it will necessarily taint the actions of other officers on the team. Each case must be assessed having regard to the totality of the circumstances. Here, P.C. Stoica focused on Mr. Zaragoza, at least in part, because of racial considerations. It was his actions, precipitated by an improper motive, that caused the other officers to become involved. As stated recently in R. v. Zacharias , 2023 SCC 30 , at para. 33 , “respect for the Charter and robust protection of civil liberties mandates that the state not be permitted to minimize the impact of earlier unconstitutional actions that lead to a cascading series of well-meaning investigative steps.” But for P.C. Stoica deciding to ride into the private garage because he was curious where the young, racialized man had gone, the other officers would not have gone down the ramp and would not have encountered Mr. Zaragoza in his car. [ 123 ] Mr. Zaragoza’s right to be free from arbitrary detention pursuant to s. 9 of the Charter was infringed. Issue Two: Did the police violate Mr. Zaragoza’s s. 10(a) Charter right to be promptly informed of the reasons for his detention? [ 124 ] Section 10(a) of the Charter provides that the police must inform the person detained “promptly” of the reason for his or her detention. This means immediately: R. v. Kelly , 1985 3483 (ON CA) , [1985] O.J. No. 2 (C.A.), at para. 14 ; R. v. Nguyen , 2008 ONCA 49 , at para. 17 . [ 125 ] Here, P.C. Stoica detained Mr. Zaragoza to further his aim of discovering where the man on the ramp had gone. Yet, at no time did he tell Mr. Zaragoza that that was his interest. P.C. Stoica failed to ask Mr. Zaragoza anything about the man. Did he know him? Had he seen him? Did he know where he went? The questions posed by P.C. Stoica would not have communicated to Mr. Zaragoza why the officer was questioning him. [ 126 ] While I accept that P.C. Yiannakakos attempted to tell Mr. Zaragoza that he was missing his plate, he did not do so until after Mr. Zaragoza had already been detained by P.C. Stoica. It was at the point of detention that the s. 10 (a) right was triggered. P.C. Stoica failed to immediately advise Mr. Zaragoza of the reason for his detention, thereby infringing his right pursuant to s. 10(a) of the Charter . Issue Three: Did P.C. Au’s use of force violate Mr. Zaragoza’s s. 7 Charter right? [ 127 ] Section 7 of the Charter provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice. The use of excessive force by a police officer in the exercise of the police power of the state can engage s. 7 if the interference with the person’s physical or psychological integrity rises to the level of a threat to the person’s life: R. v. Davis , 2013 ABCA 15 , at para. 71 , per Fraser C.J.A. (dissenting), aff’d 2014 SCC 4 ; R. v. Nasogaluak , 2010 SCC 6 , at para. 38 ; Rodriguez v. British Columbia (Attorney General) , 1993 75 (SCC) , [1993] 3 S.C.R. 519. [ 128 ] In this case, P.C. Au shot at Mr. Zaragoza four times, using what he characterized as “lethal force.” There is no dispute that when an officer uses deadly force against a person, this constitutes a serious infringement of that person’s life or security of the person. As a result, to be constitutionally compliant, the use of such force must accord with the principles of fundamental justice: Davis , at para. 72. And the fundamental principles of justice require that any deadly force used by the police must be justified under the law. [ 129 ] As explained in Nasogaluak , at para 32 , police officers do not have an unlimited power to inflict harm on a person in the course of their duties. The allowable degree of force to be used remains constrained by the principles of “proportionality, necessity, and reasonableness.” The constraints on police power to use force are “deeply rooted in our common law tradition and are enshrined in the Criminal Code ”: Nasogaluak , at para. 33 . [ 130 ] The lawful parameters on the police power to use force are set out in s. 25 the Criminal Code . Section 25(1) of the Criminal Code generally provides that a police officer is justified in using force to effect a lawful arrest if they acted on reasonable grounds and used only as much force as was necessary in the circumstances. [ 131 ] Section 25(3), however, prohibits a police officer from using force that is intended or likely to cause death or grievous bodily harm, unless they believe that the force used is necessary to protect themselves or another person under their protection, from death or grievous bodily harm. Similarly, s. 25(4) prohibits a police officer from using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested unless, along with other enumerated factors, the officer believes on reasonable grounds that the force is necessary to protect the officer or any other person from “imminent or future death or grievous bodily harm.” [ 132 ] Mr. Zaragoza has the burden overall on this Charter application. However, since he has established that deadly force was used against him when P.C. Au tried to shoot him, the evidentiary burden shifts to the Crown to establish on a balance of probabilities that the use of force complied with the limitations set out in s. 25 : R. v. Jarrett , 2021 ONCA 758 , at para. 61 ; Davis , at para. 81. [ 133 ] Assessing whether the force used was justified in all the circumstances by either s. 25(3) or s. 25(4) of the Criminal Code requires a combined subjective-objective analysis. There are thus two questions. First, did P.C. Au subjectively believe that deadly force was necessary in all the circumstances to protect the officer or others from death or grievous bodily harm. Second, if so, was the belief that deadly force was necessary to protect the officer or others from death or grievous bodily harm objectively reasonable: Davis , at para. 86. i. Has the Crown established that P.C. Au subjectively believed that lethal force was necessary in all the circumstances to protect himself or others from death or grievous bodily harm? [ 134 ] The Crown argues that P.C. Au acted both to prevent death or grievous bodily harm to three officers who were in the garage when Mr. Zaragoza accelerated out of the garage, and also because he believed that there was imminent peril to Sgt. Weeks and P.C. Nguyen, who had been behind him on the ramp at the outset of the incident. [ 135 ] I am not persuaded on a balance of probabilities, however, that P.C. Au fired his gun to “protect” the three officers in the garage from death or grievous bodily harm. He was not trying to prevent imminent or potential harm, but instead was acting to stop Mr. Zaragoza from fleeing because he thought that he might have already caused harm to the three officers in the garage. [ 136 ] P.C. Au initially testified that he fired his gun at Mr. Zaragoza as he left the garage because he “perceived that the likely chance of immediate threat of death or grievous bodily harm occurred because [he] could only account for one of the four officers that were in the garage.” [ 137 ] Later in his evidence, the Crown asked P.C. Au to explain his concerns at the time he pointed his gun. P.C. Au replied that “[m]y concerns is the other three of the four officers, if they’ve been seriously injured or have essentially been hit .” That is, for the second time P.C. Au suggested that his concern was that Mr. Zaragoza had already caused harm – not that he (P.C. Au) was trying to prevent imminent harm. [ 138 ] In cross-examination, defence counsel took P.C. Au frame by frame through the video of the shooting. While P.C. Au testified in chief that he stopped using his firearm as the vehicle was going up the ramp, the video depicts that he fired his first shot when he was almost “lined up” with Mr. Zaragoza on the ramp. He fired his last shot after Mr. Zaragoza had already passed by him on the ramp. Defence counsel then asked P.C. Au whether he was shooting to kill. P.C. Au responded by saying that he fired his gun at Mr. Zaragoza because he “perceived that immediate threat of death had occurred or serious bodily harm…” [ 139 ] Defence counsel then asked P.C. Au how shooting at the car once it had already left the garage would prevent a threat to the officers in the garage. In response, P.C. Au stated that he “thought it had already occurred .” P.C. Au was asked to repeat what he had said and then stated again that he “thought it had already occurred at that point” and that he “presumed that it had already occurred .” [ 140 ] Defence counsel then suggested that P.C. Au had not acted to stop a threat as the threat had already passed. In response, P.C. Au said, “[b]ut I presumed it had occurred to those three of the four officers that I couldn’t account for.” [ 141 ] Defence counsel then asked P.C. Au if he was justified in using lethal force on someone if the “threat is in the past.” In reply, he said, “I believe I’m justified if I believe threat of death is about to occur or bodily harm has or is occurring, is occurring or had occurred .” [ 142 ] Looking at P.C. Au’s evidence in its totality, I am not persuaded that he subjectively believed that lethal force was necessary to prevent death or grievous bodily harm to the three officers in the garage. Instead, it seems clear that P.C. Au tried to shoot Mr. Zaragoza and believed that he was legally justified in using lethal force, because he believed that Mr. Zaragoza might have already harmed the officers in the garage. He did not appreciate that his authority to use deadly force was only permitted to prevent death or grievous bodily harm. [ 143 ] I am also not persuaded that P.C. Au tried to shoot Mr. Zaragoza because of any concern for the lives or safety of Sgt. Weeks or P.C. Nguyen. While P.C. Au eventually testified that he was concerned for their safety, he only did so after explaining three times that he tried to shoot Mr. Zaragoza because of his concern for the three officers who remained in the garage. [ 144 ] When first asked by the Crown why he tried to shoot Mr. Zaragoza, he said it was because he could only account “for one of the four officers that were in the garage.” He failed to mention anything about concerns for Sgt. Weeks or P.C. Nguyen playing any role in his decision to fire his gun. [ 145 ] The Crown later specifically asked him if he knew where Sgt. Weeks and P.C. Nguyen were when he raised his gun and then asked him what his concerns were when he pointed his gun at the car. Despite having had his attention drawn to the two officers who had not been in the garage, P.C. Au again failed to tie his decision to shoot to concern for these two officers. Instead, he clearly said that his “concern is the other three of the four officers.” [ 146 ] Then further in his questioning, the Crown asked P.C. Au what he hoped would happen when he shot his gun. P.C. Au replied that he fired his gun because he perceived a threat to “three of the four officers.” That is, for the third time he failed to connect his decision to fire his gun at Mr. Zaragoza to concerns for the lives and safety of Sgt. Weeks or P.C. Nguyen. [ 147 ] While his evidence as to what precipitated his decision to shoot at Mr. Zaragoza evolved to encompass concerns about Sgt. Weeks and P.C. Nguyen, the context of how this evidence first emerged is important. Towards the end of examination in chief, the Crown triggered an objection from defence counsel when he asked P.C. Au the following question: “You described; I think your words exactly were, you feared death and grievous bodily harm for yourself and fellow officers?” But up to that point, P.C. Au had not suggested that he feared for his own safety or for the safety of Sgt. Weeks or P.C. Nguyen. As set out above, he had clearly and specifically articulated that his concern was for three of the four officers who had been in the garage. [ 148 ] I directed P.C. Au to step out of court while I dealt with the objection. When he returned to court, the Crown asked the following question: “… other than your fear for the three to four officers who were in the potential pathway of the car, did you have any other reason or other concerns you were trying to address in firing your gun…?” It was only then, for the first time, that P.C. Au intimated that he might have also had concerns for the safety of Sgt. Weeks and P.C. Nguyen, a position that he expanded upon in cross-examination. In my view, if P.C. Au fired his gun to protect these two officers, he would have said so initially. His failure to advert to these officers the first three times he was asked why he fired at Mr. Zaragoza, leads me to question the veracity of his late-breaking claim that he was concerned about them when he fired his gun. [ 149 ] This is particularly so given that P.C. Au had previously testified that he “presumed” that these two officers had moved off the ramp when he shouted for officers to get out of the way. He further testified that at the time Mr. Zaragoza drove up the ramp, he presumed that they were “somewhere on the ground.” I took from his evidence up to this point that he was not concerned for the safety of P.C. Nguyen or Sgt. Weeks because he believed they had moved off the ramp to a place of safety. Thus, I found it quite surprising when he suddenly testified that he fired his gun because these two officers might be on the ramp. That was both inconsistent with his earlier evidence as to where he believed they had gone, and his repeated testimony that he shot the gun because of his concerns for the officers in the garage. [ 150 ] Looking at the totality of his evidence, I do not accept that subjectively P.C. Au fired his gun at Mr. Zaragoza to protect the lives or safety of either P.C. Nguyen or Sgt. Weeks. Nor, as I set out in para. 142, do I accept that he fired his gun to protect the lives and safety of the three officers in the garage. ii. Has the Crown established that P.C. Au’s belief that deadly force was necessary was objectively reasonable? [ 151 ] I am also not persuaded that it was objectively reasonable for P.C. Au to believe that deadly force was necessary to protect officers from death or grievous bodily harm. [ 152 ] As it relates to the officers in the garage, by the time P.C. Au was trying to shoot Mr. Zaragoza, he had left the garage. The officers inside were not in any peril. Any risk to them had passed. [ 153 ] As it relates to Sgt. Weeks and P.C. Nguyen, they had both moved to a place of safety. Even I were to accept P.C. Au’s evidence that he shot at Mr. Zaragoza because of concerns for these officers (and to be clear, I do not accept his evidence on this point) it was not objectively reasonable for P.C. Au to shoot at Mr. Zaragoza. Taking P.C. Au’s evidence at its highest, he “presumed” Sgt. Weeks and P.C. Nguyen were still in his 7:00 area and he “would also presume” that as the car went up the ramp it would be heading in the direction of those two officers. He shot his gun as he thought “potentially” that the two officers were behind him. But there is a critical difference between a belief that an accused might get into a position where he might possibly injure or kill someone, and the objectively justified belief that, at the time lethal force is employed, death or grievous bodily harm is actually imminent or foreseeable: Davis , at para. 94. [ 154 ] Looking at the totality of the evidence, I am not satisfied that P.C. Au’s belief that it was necessary to use lethal force against Mr. Zaragoza was objectively reasonable. Issue Four: Is this one of the clearest of cases where a stay of proceedings is warranted? [ 155 ] A stay of proceedings is the most drastic remedy a criminal court can order: R. v. Regan , 2002 SCC 12 , at para. 53 . A stay of proceedings is “rare” and is only warranted in the "clearest of cases": R. v. O'Connor , 1995 51 (SCC) , [1995] 4 S.C.R. 411, at para. 68 . [ 156 ] Cases in which stays have been granted generally fall into two categories: (1) the main category- where state conduct compromises the fairness of an accused's trial, and (2) the residual category - where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process: O'Connor , at para. 73 . The police conduct at issue in this Charter application falls within the residual category. [ 157 ] As confirmed in R. v. Babos , 2014 SCC 16 , at paras. 32-33 , the test used to determine whether a stay of proceedings is warranted is the same for both the main and residual categories, although they will often play out differently depending on which category is invoked. There are three requirements:

1. 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;
2. There must be no alternative remedy capable of redressing the prejudice; and
3. Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour 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. [ 158 ] At the first stage, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system: Babos , at para. 35. [ 159 ] There are several aspects of the police misconduct in the present matter that are quite troublesome. P.C. Stoica followed the young, racialized man on the ramp into a private parking garage because of curiosity. Based on his evidence, I find it is likely that this was not an isolated incident for P.C. Stoica. His initial blasé attitude when agreeing that he followed the man on the ramp suggested that he sees nothing wrong with such conduct. Further, his odd response that he did not know if he generally followed people, in my view supports that he does, in fact, engage in such conduct. Putting aside any issue of whether a police officer following someone based in part on their race is constitutional, it is improper: Peart , at para. 92 . [ 160 ] P.C. Stoica then selected Mr. Zaragoza as the target of his interest at least in part because he shared the same skin colour as the man on the ramp. He then detained Mr. Zaragoza without any lawful basis and failed to advise him immediately of the reasons for his detention. [ 161 ] Then, as Mr. Zaragoza fled the scene, P.C. Au tried to shoot him four times. He did not use deadly force because he subjectively believed it was necessary to protect the lives and physical safety of anyone. Rather, he tried to shoot Mr. Zaragoza as he believed it was possible that Mr. Zaragoza had potentially hit one of the officers in the garage as he left. He wrongly believed that he was legally justified in using deadly force to stop someone from fleeing when there was no imminent or future danger to the lives or safety of others. His decision to use lethal force to stop Mr. Zaragoza was also not objectively reasonable. [ 162 ] In my view, this is one of those exceptional cases where the state misconduct is so egregious that moving forward with the trial would be offensive: Canada (Minister of Citizenship and Immigration) v. Tobiass , 1997 322 (SCC) , [1997] 3 S.C.R. 391, at para. 91 . Proceeding in the face of such misconduct would harm the integrity of the justice system by appearing to lend judicial condonation to state action that undermines civil liberties and the rule of law. [ 163 ] At the second stage of the test, when the residual category is implicated, the question is whether any other remedy short of a stay will adequately dissociate the justice system from the impugned state conduct going forward: Babos , at para. 39 . While the Crown argues for a sentence reduction, I find that this remedy would fail to properly denounce the police action in this case. A stay is required to dissociate the justice system from the police misconduct in this case and to reinforce the importance of the rule of law and individual rights. [ 164 ] The balancing required at the third stage is only necessary where there is uncertainty as to whether a stay is appropriate. Based on my assessment of the first two parts of the test, I am satisfied that a stay is called for. However, in the event I am incorrect in so finding, I go on to the balancing stage. [ 165 ] As explained in Babos , at para. 41 , the balancing stage is of particular importance when dealing with the residual category. The court should consider factors such as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic or ongoing problem, the circumstance of the accused, the charges they face, and the interests of society in having the charges disposed of on the merits. [ 166 ] There was serious state misconduct in this case. P.C. Stoica was motivated in part by race when he selected the man on the ramp and then Mr. Zaragoza as the focus of his interest. He detained Mr. Zaragoza in a private parking garage in part because of his race and to satisfy his curiosity. P.C. Stoica’s nonchalant testimony about following the man on the ramp out of curiosity and questioning Mr. Zaragoza simply to satisfy his curiosity suggest to me that this was not an isolated incident. [ 167 ] Then, as Mr. Zaragoza fled the garage in his car, P.C. Au tried to shoot him four times. He shot the passenger in the arm. He injured Mr. Zaragoza’s arm and narrowly missed shooting him in the head. I appreciate that police officers should be afforded some latitude. They are engaged in dangerous work and often have to make fast decisions in dynamic and rapidly changing circumstances. This is not a case, however, where P.C. Au subjectively believed that lethal force was necessary to prevent harm, but it was not objectively reasonable. Rather, this is a case where P.C. Au mistakenly believed he was legally justified in using lethal force to stop someone from fleeing if they had already caused harm. [ 168 ] At the time of the incident Mr. Zaragoza was only 18 years old. He was missing his front licence plate because he had not yet transferred ownership of the car, which he had bought with two other young men a few weeks before the incident. He did not have insurance. Moreover, he was a G1 driver and should not have been driving his car without being accompanied by someone with at least four years driving experience. He drove out of the garage at a high rate of speed. He drove dangerously and destroyed two police bikes. He arguably endangered the lives of five police officer when he accelerated out of the garage. Defence counsel, of course, took issue with that and argued that her client’s guilt could not be established beyond a reasonable doubt. But there is no doubt that Mr. Zaragoza’s alleged conduct is serious and there is a societal interest in having his case decided on the merits. In my view, however, this interest is outweighed by the need to dissociate the judiciary from the significant police misconduct in this case. [ 169 ] Balancing all the factors, I have concluded that this is one of the rare, clearest of cases where a stay is warranted. Such a remedy is required to communicate that the police misconduct in this case “transcends what our society perceives as acceptable”: R. v. Mack , 1988 24 (SCC) , [1988] 2 S.C.R. 903, at p. 942; R. v. Tran , 2010 ONCA 471 , at para. 83 . Conclusion [ 170 ] The police violated Mr. Zaragoza’s rights pursuant to ss. 7 , 9 , and 10(a) of the Charter . An investigation that started, at least in part, based on racial considerations, quickly escalated into an officer shooting to kill Mr. Zaragoza without subjectively believing that it was necessary to prevent death or grievous bodily harm, and in circumstances where it was not objectively reasonable to believe that lethal force was required. Allowing the prosecution to proceed in such circumstances would undermine the integrity of the justice system. The charges are stayed pursuant to s. 24(1) of the Charter . Justice Heather McArthur Released: April 4, 2025

CITATION : R. v. Zaragoza , 2025 ONSC 2077 COURT FILE NO.: CR-22-70000560-000 DATE: 04042025 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – ORLANDO ZARAGOZA REasons on application to STAY CHARGES PURSUANT TO SS. 7, 9, 10(A) and 24(1) of the canadian charter of rights and freedoms Justice Heather McArthur Released: April 4, 2025

[i] As explained in Mann , at paras. 34 and 45 , police officers may detain an individual for investigative purposes if they have reasonable grounds to suspect that a) the individual is connected to a particular crime, and b) the detention is reasonably necessary on an objective view of the circumstances. The authority of investigative detention extends beyond criminal offences to regulatory offences as well: R. v. Darteh , 2016 ONCA 141 , at para. 8 ; R. v. Graham , 2018 ONSC 6718 , at para. 46 ; R. v. Bajrakari and St. Louis , 2024 ONSC 4407 , at para. 18 .

[ii] Pursuant to s. 91.1(1) of the Provincial Offences Act , R.S.O. 1990, c. P.33, the Chief Justice of the Ontario Court of Justice may specify an amount as the set fine for provincial offences. In Schedule 43 under the Provincial Statutes and Regulations, the Chief Justice of the Ontario Court of Justice set the fine for a violation of s. 7(1) (b)(i) of the HTA at $85. There is a $5 cost payable on fines. A $20 Victim Surcharge is also payable. Thus, the total amount payable for the offence of driving without a proper plate amounts to $110.