Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20231205 DOCKET: COA-22- CR-0446

Doherty, Trotter and Sossin JJ.A.

BETWEEN

His Majesty the King Respondent

and

Antony Black Appellant

Counsel: Theresa Donkor, for the appellant Meaghan Hourigan, for the respondent

Heard: November 24, 2023

On appeal from the convictions entered on April 21, 2022 by Justice Suhail A.Q. Akhtar of the Superior Court of Justice, and reported at 2022 ONSC 3121.

Reasons for Decision

[1] The appellant was convicted of two counts of possession of a narcotic, and two counts of possession for the purposes of trafficking. He appeals his convictions.

[2] The police had a warrant to search an apartment unit. The appellant was in the unit when the police arrived to execute the warrant. A confrontation between the appellant and the police ensued during which the appellant suffered significant facial injuries. He was in the hospital for four days. It is not clear whether he has any ongoing medical problems.

[3] The appellant claimed that he suffered the injuries when he was beaten by the police and that the injuries suffered by him constituted a breach of his rights under s. 7 of the Charter. The appellant further argued that the police conduct was sufficiently egregious to warrant a stay of the criminal proceedings brought against him. In the alternative, the appellant submitted that the seizure of the drugs from his jacket pocket after he was detained breached his rights under s. 8 of the Charter, and that the evidence should have been excluded under s. 24(2) of the Charter.

[4] The same arguments were made and rejected at trial.

The Section 7 Claim

[5] A police officer is justified in using force intended to cause grievous bodily harm in only limited circumstances: Criminal Code, s. 25(4). In essence, the officer must believe, on reasonable grounds, that the use of that force was necessary to protect the officer or others from grievous bodily harm: R. v. Nasogaluak, 2010 SCC 6, at para. 34. The ultimate determination of whether an officer’s use of force was justified under s. 25(4) of the Criminal Code is a question of law reviewable on a correctness standard. However, in deciding that question of law, this court must accept the relevant findings of fact made by the trial judge unless those findings are tainted by a material misapprehension of evidence, a failure to consider relevant material evidence, or are unreasonable: R. v. Shepherd, 2009 SCC 35, at para. 20.

[6] The trial judge concluded that, on the facts as he found them, the police actions were justified under s. 25(4) of the Criminal Code. Counsel for the appellant submits that the trial judge’s factual findings are premised on a material misapprehension of the evidence and that this court is not bound by those findings.

[7] The relevant evidence can be briefly summarized. The police had reasonable grounds to believe that one of the persons living in the unit to be searched was a dangerous criminal with a record for firearms-related offences. The police saw the appellant before they entered the unit. His description matched that of the dangerous criminal the police believed lived in the unit. After the police entered the unit and began the search, they encountered the appellant hiding in a bathtub behind a shower curtain.

[8] The tub was located in a small dark washroom. As one officer pulled back the curtain, the appellant kicked that officer, knocking him backwards. The second officer, fearing for his safety, tasered the appellant. The appellant fell face first into the tub. The appellant’s hands were under his body and were not visible to the police. Fearing that the appellant may have a weapon in his hands, the officer attempted a second tasering. That attempt failed. Both officers then attempted to get the appellant’s hands out from under his body where they could see them. One officer struck the appellant with an open hand on the back of his head, hoping that the appellant would react by putting his hands up to defend himself. The other officer stepped on the appellant’s leg, also hoping to induce him to bring his hands out from under his body. After struggling with the appellant for about 30 seconds, the officers called for additional support. That support arrived and the appellant was forcibly removed from the bathtub. He continued to kick out at the officers and his hands remained hidden from view.

[9] Paramedics were called and the appellant was taken to the hospital. One of the officers conducted a pat down search of the appellant before he left the scene and also searched the pockets of his jacket. The officer found a bag containing a small amount of heroin and cocaine in the jacket pocket. Later during the search of the apartment, the police found a second bag outside of the bathroom window containing a substantial amount of cocaine and heroin. The appellant’s charges related to both the cocaine and heroin found in his jacket pocket, and the drugs found outside of the window.

[10] The appellant suffered significant facial injuries, particularly to his right eye and right nostril. The Crown maintained that the injuries were suffered when the appellant fell face first into the bathtub. The appellant claimed that the injuries were caused during the gratuitous beating administered by the two officers after the appellant had been tasered.

[11] The appellant did not testify on the pretrial motion. The trial judge accepted the evidence of the first two officers who encountered the appellant in the bathtub. He said, at para. 32:

Nor do I accept that the applicant’s injuries were caused by the blows administered by Hynek. The officer testified that even though he is right handed he was forced to use his left hand to administer the blows because of his position in the tub. The applicant’s head was turned slightly towards the right with the left side of his face against the bathtub. These circumstances would make it highly unlikely that Hynek could reach around to inflict the injuries to the applicant’s left eye. …

[12] Counsel for the appellant accepts that it was open to the trial judge to find that the force used by the police up to and including the first tasering was justified within the meaning of s. 24(2) of the Criminal Code. Counsel submits, however, that in addressing the justification for the subsequent violence, the trial judge misapprehended the evidence by focusing on the officer’s ability to cause injury to the left eye, when the far more serious damage was done to the right eye. The trial judge’s finding that the officer was unable to strike the left eye could not provide a basis for a finding that the appellant’s more serious injuries to his right eye were not caused by blows administered by that police officer.

[13] It may be that the passage quoted above from the trial judge’s reasons does confuse the evidence relating to the appellant’s left and right eye. The officer’s testimony summarized by the trial judge in the above-quoted passage comes at least in part from the officer’s explanation for why he could not have caused damage to the right eye. On the officer’s evidence, he could not have injured the left eye because it was turned facing the bathtub.

[14] We do not agree, however, that there was a material misapprehension of the evidence. The trial judge accepted the officer’s evidence that he could not have caused any of the facial injuries to either to the left or right side of the appellant’s face, because he was slapping the appellant in the back of the head with an open hand. Any confusion between the right and left eye in the passage from the trial judge’s reasons quoted above was of no consequence to the trial judge’s credibility assessments or his findings of fact. This court must accept those findings.

[15] Moving from the trial judge’s factual findings to the application of the law to those findings, we are satisfied that, on the facts as found by the trial judge, the officers were justified under s. 25(4) in using the force they used. The relevant facts include:

• When the police attended at the residence to execute the search warrant, they had reasonable grounds to believe that one of the occupants was a violent criminal in possession of firearms;
• Before the police entered the premises, they saw the appellant running around inside. He appeared to be in a panic after seeing the police presence;
• The police had reasonable grounds to believe that the person running around in the apartment was the person known to them to have a criminal record and carry firearms;
• The police first tasered the appellant in response to the appellant kicking one of the officers and refusing to cooperate;
• After the first tasering, it was reasonable for the police to believe that the person in the bathtub was carrying a firearm and continued to pose a danger to them; and
• The force applied by the officers after the first tasering amounted to reasonable efforts to gain control of the appellant and protect themselves should the appellant have been armed.

[16] On the trial judge’s findings, the actions of the police officers fall within the justification defence created by s. 25(4). There was no breach of s. 7 of the Charter, and no basis upon which to stay the proceedings.

The Section 24(2) Issue

[17] The trial judge was satisfied that the officers’ pat down search of the appellant after he was subdued was justified as a safety search incidental to a detention. The trial judge, however, found that the subsequent search of the appellant’s jacket could not be justified as a safety search and violated the appellant’s rights under s. 8 of the Charter. The trial judge went on to hold that the heroin and cocaine discovered in the jacket was admissible under s. 24(2) of the Charter. The appellant claims he erred in so holding.

[18] Counsel acknowledges the deference owed to trial judges when weighing the three factors relevant to the s. 24(2) analysis. She submits, however, that the trial judge erred in principle when considering the second factor, that is the impact of the Charter breach on the appellant’s protected Charter interests. Counsel submits that the trial judge wrongly held that, as the police would inevitably have discovered the drugs by a search of the jacket when the appellant was taken into custody, any negative impact on the appellant’s Charter-protected interests resulting from the search of the jacket was diminished. Counsel contends that on this record, it simply cannot be said one way or the other whether the police would have searched the jacket, or even had the jacket available to them, at the time they took the appellant into custody.

[19] It is a fair inference that the appellant was going to be taken into custody. In fact, he was placed in custody while in the hospital. It was open to the trial judge to infer that his clothing, including his jacket, would be searched when he was taken into custody. The likelihood that the drugs would have been discovered does mitigate, to some degree, the harm caused to the appellant’s Charter-protected interests. It was open to the trial judge to give the discoverability of the drugs by lawful means some consideration in his s. 24(2) analysis. He certainly did not give that fact undue weight.

[20] We see no error in the s. 24(2) analysis.

Conclusion

[21] The appeal is dismissed.

“Doherty J.A.”

“G.T. Trotter J.A.”

“L. Sossin J.A.”