Court of Appeal for Ontario
Date: 2021-10-26 Docket: C65726
Watt, Roberts and Zarnett JJ.A.
Between: Her Majesty the Queen, Respondent and Melville Jarrett, Appellant
Counsel: Riaz Sayani, for the appellant Amanda Hauk, for the respondent
Heard: April 19, 2021, by video conference
On appeal from the conviction entered by Justice Robert B. Reid of the Superior Court of Justice on March 7, 2018.
Zarnett J.A.:
Introduction
[1] The appellant appeals his convictions for assaulting a police officer; failing to comply with a recognizance; possession of cocaine, oxycodone [^1], and hydromorphone for the purpose of trafficking; and possession of proceeds of crime. The appeal centres on the trial judge’s refusal [^2] to stay charges or exclude evidence as a result of what the appellant contends were breaches of his protected rights under the Canadian Charter of Rights and Freedoms.
[2] The trial judge dismissed the appellant’s application to stay proceedings on the basis that excessive force was used by police when he was arrested, thus violating his rights to life, liberty and security of the person, and to not be subjected to cruel and unusual punishment, under ss. 7 and 12, respectively, of the Charter. The appellant argues that the trial judge misallocated the burden of proof relating to whether excessive force was used, fatally tainting his conclusion that there was no Charter breach. He submits that the question of whether there was a violation of these Charter rights should be re-heard, and that the convictions for assaulting a police officer (which followed from the same evidence considered on the stay application) and breach of recognizance should be set aside and a new trial ordered.
[3] The appellant also submits that the trial judge, after finding that there had been a violation of the appellant’s right, following his arrest, to retain and instruct counsel without delay under s. 10(b) of the Charter, erred in refusing to exclude evidence discovered by the police at the scene of the arrest. Since that evidence was the basis of the convictions for drug trafficking and possession of proceeds of crime, he asks that those convictions be set aside and acquittals entered.
[4] I would not give effect to the argument that the trial judge erred in his approach to whether there was a breach of the appellant’s ss. 7 and 12 rights. Contrary to the appellant’s argument, reading the trial judge’s reasons as a whole, he did not actually decide the matter by applying an incorrect burden of proof. He accepted the evidence proffered by the Crown, considered whether the force used was reasonable, and concluded that the force used was not excessive in the circumstances. His findings show that he concluded that what was the Crown’s evidentiary burden was satisfied.
[5] I would, however, allow the appeal from the drug trafficking and proceeds of crime convictions and substitute acquittals on those charges. As the trial judge noted, there was little dispute about the facts relevant to the s. 10(b) breach. The trial judge found that there had been a breach of the appellant’s right to counsel since although the police had made an initial effort — leaving a voicemail message with the appellant’s counsel of choice — they did not follow up or make any further efforts, leaving the appellant with no contact with counsel for 30 hours following his arrest, 20 of which he spent handcuffed to a hospital bed. As the trial judge also noted, whether exclusion of evidence was warranted turned on how the law applied to those facts. In my view, the trial judge’s analysis of the factors relevant to exclusion of evidence, set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, was legally flawed. Performing the correct analysis, the evidence seized at the scene of the arrest ought to have been excluded under s. 24(2) of the Charter as a remedy for the s. 10(b) breach.
Background
A. The Arrest
[6] On June 25, 2015, three plainclothes Niagara Regional Police detectives in an unmarked police car pulled up next to the appellant’s vehicle at an intersection in St. Catharines. The officers saw the appellant using a cell phone. They directed the appellant to pull his vehicle over to the side of the street. The appellant complied. Meanwhile, a fourth officer, in uniform, arrived at the scene.
[7] One of the officers requested identification from the appellant and the three passengers in his vehicle. The appellant provided his driver’s licence and registration in response to the request. Two of the officers performed database searches and learned that the appellant was on bail and a term of his release was to not possess a cell phone if it had not been registered with the Niagara Regional Police. As the cell phone had not been registered, the appellant was advised by one of the officers that he was being placed under arrest, and was asked to get out of his car.
[8] As the trial judge noted, the circumstances of the arrest from that point forward were the main factual dispute between the parties. He described the evidence of the appellant and that of the police officers as “diametrically opposed.”
[9] The appellant testified that as he got out of the car, he stumbled. A fanny pack he was wearing was caught in the seatbelt and he reached around to take it off and threw it back into the car. As he stumbled out of the car, the police officers did the following: administered a knee strike to his chest, causing excruciating pain; administered a knee strike to his head; wrestled him to the ground; tasered him three times; held him on the ground; and handcuffed him. He denied ever resisting the police or fighting with them.
[10] The appellant’s girlfriend, Stacy Lamb, who was one of the passengers in his car, also testified. The trial judge noted that Ms. Lamb “did not see exactly what happened”. She said that the appellant stumbled as he got out of the car, that he fell into one of the officers who hit him multiple times, including a knee strike to the chest, and that the appellant was tasered three times and pepper sprayed two or three times. She believed the police incapacitated the appellant for no reason. She said that she had asked the appellant for the fanny pack before the officer returned to the car to tell the appellant he was under arrest, and that when he gave it to her, she tried to hide it so that the police would not find it. She testified that she had given an incorrect statement to the police on the day of the arrest, to the effect that the appellant had thrown it at her and that she did not know what to do with it and had panicked.
[11] The police officers gave a different version of the events.
[12] Det. DiFranco was the officer who took the licence and registration from the appellant and returned to arrest him. He described the appellant as aggressive and confrontational. He testified that as the appellant was getting out of his car, he reached for a fanny pack around his waist, leading Det. DiFranco to reach for it as well due to safety concerns, as he did not know what it contained. Det. DiFranco administered a knee strike to the appellant’s upper body area to create distance between them.
[13] Cst. Poirier, the officer in uniform, was also at the appellant’s vehicle when he was asked to get out of it. He described the appellant as argumentative and “extremely hostile”, and also testified that he reached for the fanny pack while getting out of the car. Cst. Poirier grabbed the appellant’s left arm to arrest him, at which point the appellant began to struggle. Cst. Poirier applied knee strikes to the appellant’s leg to bring him to the ground, so as to handcuff him and complete the arrest. The appellant broke free, got up, charged at Cst. Poirier, headbutted him and put his hands around Cst. Poirier’s waist in a “bear hug”, and they fell back onto the road.
[14] Det. DiFranco and Cst. Poirier struggled with the appellant across the street, over a curb and sidewalk, and into a flower bed. Both described the arrest as one of, or the most, difficult they had ever had to make.
[15] Det. Sgt. Knevel was at the scene initially focussing on the passengers in the appellant’s vehicle. He observed the struggle to subdue the appellant and joined it to assist. He described the appellant fighting violently to get away.
[16] According to the three officers, when the knee strikes and wrestling did not bring the appellant under control to allow them to apply handcuffs, a decision was made to use a taser. Cst. Poirier deployed it three times within about 30 seconds. All of the officers testified that no pepper spray was used.
[17] The evidence of the three officers was in part confirmed by the fourth officer at the scene, Det. Cunningham. The trial judge noted he was minimally involved in the interaction with the appellant but confirmed the “dynamic nature of the situation and the struggle between the officers and [the appellant]”.
[18] Mr. Eaton, a civilian who observed the confrontation, also testified. He saw an individual resisting efforts by the police to hold him down, and pushing himself up off the ground even after a taser was used. The trial judge considered his evidence to be “generally consistent with that of the police officers, although his estimate that the entire struggle took 1.5 hours was grossly at odds with what was otherwise described as a brief but dynamic interaction.”
B. The Opportunity to Retain and Instruct Counsel
[19] As the trial judge noted, there was relatively little dispute about the facts on this issue.
[20] The appellant was advised of his right to counsel upon his arrest. He requested the opportunity to contact counsel, whom he identified by name.
[21] The appellant was then taken to the hospital for medical attention as a result of the circumstances of his arrest. He remained there, in police custody, handcuffed to his bed, for about 20 hours. He had no contact with counsel, and was not offered the opportunity to contact counsel from the hospital, although there was no health reason that would have prevented him from having that contact.
[22] The appellant only had contact with counsel sometime after being returned from the hospital to the police station or courthouse. The trial judge accepted that this occurred about 30 hours after the arrest.
[23] Although the appellant asked the police for the opportunity to consult counsel at the time of his arrest, the only step taken to facilitate that was Det. DiFranco leaving a voicemail message for the appellant’s counsel after the detective returned to the police station, about an hour and a half after the arrest. The police did not tell the appellant they had made this call, or follow up when the call to counsel was not returned. Nor did the police make any further efforts to facilitate contact with counsel for the entire time the appellant was at the hospital, or until they facilitated contact from the police station or courthouse some 30 hours after the arrest.
[24] The appellant was not asked for nor did he give any statement to the police prior to contacting counsel.
C. The Fanny Pack
[25] The police recovered the fanny pack at the scene. After the appellant’s arrest, it was searched. The fanny pack contained, among other things, 13 grams of cocaine, 40 oxycodone pills and 25 hydromorphone pills, and $125 in cash.
The Decisions of the Trial Judge
A. The Trial Judge’s Decision on the Charter Issues
[26] The appellant applied for a stay of proceedings or that evidence be excluded on the basis of breaches of his Charter rights. He asserted that his rights under ss. 7 and 12 of the Charter were infringed when the arresting officers used excessive force, and that his rights under s. 10(b) of the Charter were infringed when he was not allowed to contact counsel for about 30 hours after the arrest.
[27] The trial judge stated that: “It is undisputed that [the appellant] bears the onus of establishing any Charter violation on the balance of probabilities.”
[28] Dealing with the issue of excessive force, the trial judge referred to ss. 7 and 12 of the Charter and observed that “[i]t is trite to say that a section 7 Charter breach will be established where excessive force is used in arresting a person.” He noted that s. 25 of the Criminal Code, R.S.C. 1985, c. C-46 authorizes the police to use as much force as is necessary when lawfully arresting a person and “case law also supports the use of reasonable force to maintain the state of being under arrest.” He identified the “key question” after examining all the circumstances to be “what amount of force was necessary and whether the actual force used was excessive.” He referred to a list of factors from case law relevant to determining whether force used was reasonable or necessary in the circumstances.
[29] The trial judge found the appellant’s evidence that he did not resist arrest to be “inconsistent with the preponderance of evidence.” He found that a struggle ensued immediately outside the driver’s door of the appellant’s vehicle, and that even if there was an inadvertent stumble and a painful first knee strike, it was not reasonable to conclude that the appellant was compliant with subsequent efforts to arrest him. He accepted the evidence of the police officers concerning the struggle, and found it was supported by the evidence of Mr. Eaton. He did not consider the evidence of Ms. Lamb to be helpful to the appellant for various reasons relating to its reliability, including that Ms. Lamb had a limited view of the scene and an ongoing personal relationship with the appellant. He concluded that the appellant was in a physical condition “to have represented a threat to the police officers, and I accept their evidence that it was not possible to physically subdue him despite the best efforts of three of them until the Taser was applied.”
[30] He stated that the appellant did not satisfy “his onus of proving on a balance of probabilities that excessive force was used against him by the police. I find that the police used only the force necessary to effect the arrest in the circumstances. Therefore, there was no breach of [the appellant’s] section 7 or section 12 Charter rights.”
[31] On the question of whether the appellant’s s. 10(b) right was infringed, the trial judge began by noting that the right had an informational and an implementational component, both aspects of which were to be provided immediately. He held that the implementational component was engaged when the appellant requested the opportunity to consult with a specific lawyer. It was reasonable for Det. DiFranco to assist by leaving a message for the lawyer, but not reasonable for the police to consider the matter ended there, leaving the appellant in the hospital for almost a day without being afforded the opportunity to contact counsel. Further efforts were required and were not taken. There was no evidence that proper arrangements could not have been made to facilitate contact from the hospital. He found that the appellant’s s. 10(b) right was violated.
[32] Although the fanny pack was recovered at the scene of the arrest before the s. 10(b) breach occurred, he was satisfied that the breach that followed the arrest was part of the same transaction or chain of events that included the seizure of that evidence, and the temporal connection between the two was not too remote. Therefore, he found that the precondition to the exclusion of the fanny pack evidence under s. 24(2) of the Charter – that the evidence was “obtained in a manner” that infringed or denied Charter rights – had been met.
[33] However, the trial judge rejected the claim that the s. 10(b) breach justified the exclusion of the fanny pack evidence recovered at the scene, under s. 24(2) of the Charter, because he was not satisfied that admitting the evidence would bring the administration of justice into disrepute. [^3]
[34] In considering whether admitting the evidence would bring the administration of justice into disrepute, the trial judge followed the method of analysis set out in Grant, at paras. 72-86, which requires consideration of the seriousness of the Charter-infringing state conduct, the impact of that conduct on the Charter-protected interests of the accused, and society’s interest in an adjudication on the merits.
[35] The trial judge found the breach “arguably inadvertent”, but “not trivial”, and that the “serious nature of the breach militates against the admission of the evidence … while its apparently inadvertent nature militates toward admission of the evidence.” He considered that this factor did not clearly require the exclusion of evidence. He found the breach had “little practical effect” as the appellant was aware of why he was arrested and was not requested to give a statement, and even if he had contacted counsel, the search would have continued and the fanny pack would have been found. He considered that the public interest would not be offended by the admission of evidence under this factor. And he found that the exclusion of relevant evidence would have rendered the trial unfair from the public’s perspective, favouring the admission of the evidence. He concluded that the admission of the evidence would not bring the administration of justice into disrepute in the eyes of a reasonable person informed of all the relevant circumstances and the values underlying the Charter.
B. The Convictions
[36] After the Charter applications were dismissed, the drug trafficking, possession of proceeds of crime, and breach of recognizance charges proceeded with an agreed statement of facts. The agreed facts included that the contents of the fanny pack were in the appellant’s possession, that the contents included oxycodone and hydromorphone that he sold from time to time, that he had a cell phone in his possession, that he knew he had an obligation to ensure any cell phone in his possession was registered with the Niagara Regional Police and that this cell phone was not, and that the cash in the fanny pack included money from cocaine sales.
[37] The charge of assaulting a police officer — Cst. Poirier — proceeded on the basis of the evidence in the Charter application, with further submissions. The trial judge repeated the findings made in his Charter decision. He directed himself that it was not simply a case of preferring the evidence of the officers to that of the appellant and Ms. Lamb. Applying R. v. W.(D.), 1991 SCC 93, [1991] 1 S.C.R. 742, he concluded that the evidence of the appellant was not believable, and that it did not raise a reasonable doubt. He then considered whether on the evidence he did accept, the appellant’s guilt was proven beyond a reasonable doubt. He found that the appellant had applied force — a bear hug and headbutt — to Cst. Poirier, in the course of resisting lawful arrest by the police.
[38] As a consequence, the trial judge entered the convictions appealed from.
[39] The trial judge sentenced the appellant to 25 months in custody on the drug trafficking charges (counts 2, 3, and 4), two months concurrent on the proceeds of crime charge (count 9), one month consecutive for breach of recognizance (count 10), and three months consecutive for assaulting a police officer (count 1). Various ancillary orders were also made.
The Issues
[40] The appeal raises the following issues:
a. Did the trial judge err in failing to exclude the fanny pack evidence as a remedy for the breach of the appellant’s right under s. 10(b) of the Charter?
b. Did the trial judge misallocate the burden of proof as to whether excessive force was used in considering whether the appellant’s ss. 7 and 12 rights under the Charter were breached, and if he did, should the curative proviso be applied?
Analysis
A. The Section 10(b) Issue
[41] Section 10(b) guarantees to anyone arrested or detained the right “to retain and instruct counsel without delay and to be informed of that right”. Where, upon being informed of the right, the detained person exercises it, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 38, 42.
[42] The appellant exercised his s. 10(b) right by expressing the desire to speak to counsel immediately upon his arrest. The police breached the duty to immediately provide him with a reasonable opportunity to speak to counsel. The single message that was left with counsel, without any follow-up, did not actually provide an immediate opportunity for the appellant to speak to counsel. No such opportunity was provided for 30 hours. Nor was the single message, without any follow-up, reasonable, judged in all of the circumstances. The trial judge appropriately observed that it was unreasonable for the police to consider the single message sufficient and the “matter ended there” − further efforts were required. Yet the police took none. They did not explore whether there were other means of making contact with the counsel the appellant had specified. Nor was the appellant told that a message had been left with the counsel he had specified, or that it had not been answered. Thus, he was not given the opportunity to provide other contact information for that counsel if he had it, or to specify another counsel who might be more immediately responsive.
[43] There are a number of ways in which the police may facilitate a detainee’s right to immediate contact with counsel. Where the police assume the responsibility of making first contact, rather than providing the detainee with direct access to a phone or internet connection, they must be taken to have “assumed the obligation to pursue [the detainee’s] constitutional right to [access counsel] as diligently as she would have”: R. v. O’Shea, 2019 ONSC 1514, 372 C.C.C. (3d) 352, at para. 42; R. v. Doobay, 2019 ONSC 7272, 61 M.V.R. (7th) 225, at paras. 29-33. “Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing”: Doobay, at para. 30. In this case, where the police undertook to contact a lawyer on the appellant’s behalf, it was unreasonable for them to have left a single voicemail and ended their efforts there.
[44] Although there was no causal connection between, on the one hand, the discovery of the fanny pack and its contents, and on the other hand, the s. 10(b) breach, there was, as the trial judge appropriately found, a sufficient temporal connection to consider the evidence to have been obtained in a manner that infringed a Charter right within the meaning of s. 24(2): R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72; R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 35.
[45] I accept the argument of the appellant that, against the backdrop of this breach, the trial judge erred in failing to find that “having regard to all circumstances, the admission of [the evidence] in the proceedings would bring the administration of justice into disrepute” within the meaning of s. 24(2), and therefore in failing to exclude the fanny pack evidence. Although the trial judge referenced the three-prong test articulated in Grant to assess this question, he made legal errors in its application, leading to an unreasonable determination. Appellate intervention is therefore warranted: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 64. In fairness to the trial judge, he did not have the benefit of this court’s more recent decisions on the Grant analysis relating to s. 10(b) breaches.
[46] The first Grant factor is the seriousness of the Charter-infringing state conduct. On this factor, the trial judge’s findings were equivocal. He referred to the breach as “not trivial”, and in one passage noted the “serious nature of the breach”. But he also referred to the breach as “inadvertent” or “arguably inadvertent”, because there had been an initial attempt to contact counsel. Because of this latter characterization of “inadvertent”, he held that this factor did not clearly require the exclusion of the evidence. In my view, the trial judge made two interrelated errors in coming to that conclusion.
[47] First, the breach ought not to have been viewed as anything other than serious, given the extent the police conduct departed from the content of the appellant’s constitutional right. The duty of the police was to immediately provide the appellant with a reasonable opportunity to speak to counsel. Viewed from that perspective, the breach was very substantial – the delay in providing the opportunity to speak to counsel was about 30 hours. [^4]
[48] Second, although the breach was arguably inadvertent — that is, not intentional and there was no evidence the delay was caused by a systemic practice — the circumstances did not take the case out of the serious breach category. The single, unsuccessful attempt to contact counsel referenced by the trial judge pales in comparison to the length of time over which the police failed to take any further steps to fulfill their duty. Indeed, immediately after describing the breach as “arguably inadvertent”, the trial judge noted that after their initial attempt to contact counsel, “[n]o officer made any further attempt to either contact counsel, to ascertain whether counsel had contacted [the appellant], or to assist [the appellant] with contact from the hospital.” The police are expected to comply with the Charter. The absence of evidence that the police’s failure to comply with the Charter was systemic is not a mitigating factor when assessing the seriousness of the breach: McGuffie, at para. 67.
[49] In R. v. Noel, 2019 ONCA 860, the fact that a police officer left a message with duty counsel without following up to ensure contact occurred did not attenuate the seriousness of a s. 10(b) breach, and was viewed by this court as part of “a somewhat cavalier attitude about a fundamental, important, and long-settled Charter right to consult counsel without delay”: at para. 32. In R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, this court concluded that a three-hour delay in providing the opportunity to consult counsel, resulting from “collective negligence … in allowing the appellant’s s. 10(b) rights to fall through the cracks” was a serious breach even though a police officer not only contacted duty counsel, but kept the accused informed of the efforts to engage counsel so that he was not “left to languish alone interminably”: at paras. 114, 119 and 124.
[50] In this case, the sheer length of the delay, and the fact that over that lengthy period, nothing was done to inform the appellant that any effort to contact counsel was made, or to follow up on the contact, should have led the trial judge to conclude that the breach was serious and favoured exclusion of the evidence.
[51] Moreover, the trial judge erred in his analysis of the second Grant factor, the impact of the breach. He viewed the breach as one that had little practical effect, as the appellant was aware of the reasons for his arrest, was not requested to give a statement, and the search and seizure of the fanny pack would have happened anyway.
[52] Although the right to immediately consult counsel exists in part so that the accused can obtain advice about self-incrimination and the legality of searches, it extends to considerations beyond these, including obtaining reassurance and advice about how long detention may last and how liberty may be regained. “The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated”: Rover, at para. 45; Noel, at paras. 22-26. Holding a person without any explanation for why they cannot access counsel or any indication of when that might occur compromises their security of the person: Rover, at para. 46.
[53] If the police had taken a statement or otherwise obtained evidence as a direct result of the s. 10(b) breach, that may have made the impact of the breach even more significant. But neither the fact that the police do not take a statement from the arrested person while violating the right to counsel, nor that there is no causal connection between the breach and evidence discovered, means that the breach will always lack a significant negative impact on the appellant’s Charter-protected rights: Rover, at paras. 43-47. The impact must be considered given the nature of the interests protected by the right to counsel, and the length of delay in providing it: Noel, at para. 27.
[55] Here, the appellant was without the benefit of the immediate right to counsel, or any indication of when he might be allowed to speak to someone, for about 30 hours, 20 of which he spent handcuffed to a hospital bed. The trial judge failed to consider all of the interests the appellant’s immediate right to counsel is to protect in his evaluation of the impact of this lengthy breach. He placed undue emphasis on the lack of a causal connection between the seizure and search of the fanny pack and the s. 10(b) breach, and on the fact that the police did not take a statement. Moreover, his observation that the appellant knew why he was arrested was, with respect, beside the point. The appellant was entitled to consult counsel; he was not required to be his own legal adviser when he wanted to speak to a lawyer.
[56] The trial judge’s conclusion that the second Grant factor did not favour exclusion is accordingly flawed. It did favour exclusion.
[57] The trial judge correctly considered that the third Grant factor, the effect of excluding relevant reliable evidence, here pulled in favour of admission of the evidence. However, a proper analysis of the first two factors pulls strongly in favour of exclusion, and makes this “one of those cases in which the long-term repute of the administration of justice requires the sacrifice of the short-term benefit of an adjudication on the merits of this case”: Rover, at para. 49.
[58] The fanny pack and its contents ought to have been excluded. I would accordingly allow the appeal and quash the convictions on counts 2, 3, 4, and 9, and substitute acquittals on those counts.
B. The Excessive Force Issue
[59] The appellant argues that the trial judge, in considering whether his Charter rights were violated by the use of excessive force during his arrest, made the error identified in the dissenting reasons in R. v. Davis, 2013 ABCA 15, 295 C.C.C. (3d) 508 (“Davis”), which were upheld by the Supreme Court of Canada: 2014 SCC 4, [2014] 1 S.C.R. 78 (“Davis (SCC)”). The error in Davis involved misallocating, to the accused, the burden of proving that excessive force was used. As this error may have tainted the assessment of the evidence as to whether excessive force was used, it could not be saved by the application of the curative proviso in s. 686(1)(b)(iii) of the Code.
[60] The appellant relies on the first sentence of the following statement in para. 35 of the trial judge’s reasons to identify where he located the burden of proof:
I conclude that [the appellant] has not satisfied his onus of proving on a balance of probabilities that excessive force was used against him by the police. I find that the police only used the force necessary to effect the arrest in the circumstances. Therefore, there was no breach of [the appellant’s] section 7 or section 12 Charter rights. [Emphasis added.]
[61] Davis establishes that an accused only has the burden of demonstrating that a Charter remedy should be granted. The accused does not have the burden of showing that excessive force was used. Rather, once an accused shows that the police used deadly force, a prima facie breach of s. 7 exists, and the evidentiary burden shifts to the Crown to prove the force used was justified. This requires a subjective-objective analysis. The court has to be satisfied that the police officer subjectively believed that the use of force was necessary in the circumstances to protect the officer or others from death or grievous bodily harm, and the belief must have been objectively reasonable: Davis, at paras. 76-78.
[62] The appellant argues that the first sentence of the trial judge’s statement in para. 35 of his reasons – that the appellant “has not satisfied his onus of proving on a balance of probabilities that excessive force was used against him by the police” – shows he misallocated the burden of proof. Rather than requiring the respondent to show the force was justified, he placed the burden on the appellant to demonstrate the force was excessive.
[63] The appellant also submits that the error reflected in this sentence is neither corrected nor salvageable by the next sentences in the same para. 35, in which the trial judge said, “I find that the police only used the force necessary to effect the arrest in the circumstances. Therefore, there was no breach of [the appellant’s] section 7 or section 12 Charter rights.” The appellant points out that the trial judge in Davis also made a finding on the evidence that the police officer was “justified in acting as he did and did not breach [the accused’s Charter] rights”. In Davis, the existence of that finding did not detract from the error in allocating the burden of proof, or justify applying the curative proviso, because as a product of misallocating the burden of proof, the trial judge did not properly process the evidence, relying only on the police officer’s subjective beliefs without addressing their objective reasonableness. This processing error may have tainted the trial judge’s ultimate finding on whether excessive force was used: Davis, at paras. 81-82 and 86-87; Davis (SCC), at para. 1. The appellant says the same approach should be taken here.
[64] I would not give effect to this ground of appeal. This is a materially different case than Davis.
[65] In Davis, there was no question about where the trial judge had placed the burden of proof, and how she applied it. She stated that the burden of showing a Charter violation rests on the accused, a statement that was correct “as far as it goes”: Davis, at para. 77. The trial judge in Davis then went further to say that that meant the burden of proving the force was excessive was on the accused, and further still to explain exactly what that meant. She said that the burden was on the accused to “demonstrate that [the police officer] did not reasonably believe that force was necessary to preserve himself or others from death or grievous harm and that he could have prevented [the accused’s] flight by reasonable means less violent.” This was an error of law, as the burden was on the Crown to prove that the force used was justified in the circumstances. To hold otherwise would be unfair to the accused, who would have to prove a negative, i.e., that the force was not justified. Moreover, her finding that she believed the police officer was the product of her focussing exclusively on the officer’s subjective belief, without adverting to the requirement of reasonableness. Any conclusion drawn from it may have been tainted by the misallocation of the burden of proof: Davis, at paras. 76-79 and 86-87.
[66] Here, although the trial judge referred to the appellant not having met a burden of showing that excessive force was used, that sentence stands alone in the reasons as a description of the burden the trial judge was actually applying to decide the excessive force issue. [^5] The reasons contain no elucidation of exactly what that burden required, as did the trial judge’s reasons in Davis. It did not, as in Davis, articulate the burden in such a way as to make it clear the appellant had been required to prove a negative – that the officers lacked a subjective belief that the force they used was necessary, or that if they did hold such a belief, that the belief was not objectively reasonable.
[67] A review of the reasons as a whole does not support the view that the sentence in para. 35 of the reasons relied on by the appellant, rather than the one that follows, reflects the burden the trial judge actually applied in coming to his conclusion about a Charter breach. The statement relied on by the appellant is immediately followed by a positive finding that would be unnecessary if the trial judge was reaching his conclusion on the basis of a failure of the appellant to have satisfied his burden. The trial judge’s statement that “I find that the police used only the force necessary to effect the arrest in the circumstances” is consistent with what is the evidentiary burden of the Crown having been fulfilled: to show that the force used was justified in the circumstances. As discussed below, unlike in Davis, that statement was not the product of a singular focus on the subjective beliefs of the officers because the trial judge did not advert to the requirement of reasonableness. Given how the trial judge arrived at his conclusions, they cannot be taken to have been tainted by a misapprehension of the burden of proof.
[68] Before discussing the evidence, the trial judge referred to the authorization in s. 25 of the Code for the police to use as much force as is necessary when arresting an individual. (Section 25 places the burden on the Crown to justify a police officer’s use of deadly force on a subjective-objective analysis: Davis, at paras. 41-45 and 78). Although his analysis of it was brief, he identified the key questions to be what force was necessary and whether the actual force was excessive after examining all of the circumstances as they existed at the time the force was used.
[69] The trial judge also referred to case law, cited to him by both parties, that identified factors to be considered “in assessing the reasonableness of, or necessity for, force used by the police in any particular situation”. Accordingly, the trial judge was alive to the need to look at the force used through the lens of reasonableness, not simply the subjective beliefs of the police officers.
[70] When analysing the evidence, and before making the statements in para. 35 of his reasons, the trial judge expressed himself more consistently with his having been satisfied the force used was justified, rather than on the basis that the appellant had the burden of showing the force used was not justified, but had fallen short of meeting that burden. He did not express himself concerning the evidence on the basis that the appellant had been required, but had failed, to prove a negative.
[71] The trial judge rejected the appellant’s evidence that he did not resist arrest as “inconsistent with the preponderance of evidence”. He stated that he was “satisfied” about what had occurred based on the evidence of the officers that he accepted and the confirmation of Mr. Eaton. He did not limit himself to saying he was not satisfied that what the appellant contended had occurred.
[72] His findings, although not always broken down between what the police officers believed and the reasonableness of their behaviour, covered matters that pertained to both, and were responsive to the arguments that were made before him. He found that the police had engaged in a wrestling match with the appellant that covered some distance because he was satisfied on the evidence that that occurred. But he went on to find that there was no reason for them to have done so, or to apply a taser, other than the appellant’s non-compliance. On the evidence that he accepted, that non-compliance was aggressive, physical, confrontational, and continuing, and included an assault on one of the officers. He found, considering the height, weight, and physical condition of the appellant, that he “represented a threat to the police officers”, and stated that he accepted the officers’ evidence that “it was not possible to physically subdue [the appellant] despite the best efforts of [the officers] until the Taser was applied.” His positive finding that lesser measures than the force actually used were not possible is quite different than saying that the appellant had fallen short of proving excessive force was used.
[73] The trial judge’s factual findings, read in light of his having prefaced them by his instruction to determine “what amount of force was necessary and whether the actual force used was excessive”, and to consider the “reasonableness of, or necessity for, force used by the police” reflect positive findings as to what the police believed and the reasonableness of those beliefs, rather than about a failure of the appellant to prove an absence of either.
[74] All of those findings precede the impugned sentence in para. 35 of the reasons. In my view, taken in context of what preceded it and what follows it, the sentence relied on by the appellant, while unfortunate, does not indicate the burden of proof the trial judge actually applied in coming to his decision. The better indicator of the burden of proof actually applied is in the sentences that follow. In them, the trial judge rejected the allegation of Charter breach (which the appellant had the onus of proving) because he made a positive finding, consequent on the positive findings he had made earlier in his reasons, that the police had used only the force necessary to effect the arrest in the circumstances. This is consistent with the Crown’s onus of proof. The trial judge was satisfied the force used was justified.
[75] As the Crown points out, in his reasons for sentence, the trial judge summarized what he had determined in dismissing the Charter application. He said: “I accepted the evidence of the prosecution that [the appellant] aggressively resisted arrest and that reasonable force was used during the course of the arrest, including the application of a taser on three separate occasions.” This further supports the view that the trial judge actually decided the matter on a basis consistent with the Crown’s onus of proof.
[76] Because of the view I take on whether the burden of proof was misallocated, it is not necessary to address the argument as to whether, if that error had occurred, it should be viewed as harmless and the curative proviso applied.
Conclusion
[77] On consent, the guilty plea to count 4 is set aside. The appeal is allowed as to counts 2, 3, 4, and 9, and the convictions on those counts are set aside and acquittals are entered. The appeal is dismissed as to counts 1 and 10. Only the sentences and ancillary orders connected to counts 1 and 10 remain in place.
Released: October 22, 2021 “D.W.” “B. Zarnett J.A.” “I agree. David Watt J.A.” “I agree. L.B. Roberts J.A.”
Footnotes
[^1]: The appellant pled guilty to the oxycodone possession charge, but the Crown consents to the admission of fresh evidence which shows that the plea was uninformed, and consents to the plea being set aside. The Crown and defence agreed that the appellant would preserve his appeal rights respecting the Charter ruling at issue in this appeal by not contesting the Crown’s evidence relating to the drug charges, and the appellant pled guilty to the charge without appreciating the consequences of the plea. [^2]: R. v. Jarrett, 2018 ONSC 1178. [^3]: He also rejected the claim that the s. 10(b) breach justified a stay under s. 24(1) of the Charter. That issue is not pursued on this appeal. [^4]: In Rover, this court characterized a delay of “almost six hours” as one that seriously impacted the rights of the arrested person: at para. 44. [^5]: The trial judge had earlier referred to the burden being on the appellant to prove Charter breaches, a statement that was correct “as far as it goes”: Davis, at para. 77.
