RULING ON CHARTER APPLICATION
Ontario Court of Justice
Between: Her Majesty the Queen — and — Arnott Burton Agard
Before: Justice Borenstein
Heard on: March 26, 27, 28, 2012, May 1, 2012, June 6, 2012, July 6, 2012
Reasons for Judgment released on: October 15, 2012
Counsel:
- Ms. R. Juginovic for the Crown
- Ms. J. Sickinger for Arnott Burton Agard
BORENSTEIN J.:
Introduction
[1] Arnott Burton Agard is charged with domestic assault. He is alleged to have assaulted his domestic partner, Femi, in their apartment in front of their 11-year-old son. There does not appear to be much dispute that that assault occurred. Rather, he seeks a stay of proceedings arguing that the police conduct upon arrest which occasioned significant injuries to him, violated sections 7, 9 and 12 of the Charter and require the proceedings to be stayed pursuant to section 24(1). He also submits that the police entered his apartment unlawfully. Finally, while seated in the cruiser awaiting entry into the sally port, he asked the officers if he could use the washroom. They told him he could use the washroom when he entered the station. Unfortunately, that was too late. Mr. Agard submits that this should be considered should the Court assess a remedy for any Charter breaches.
[2] By way of brief overview, the complainant Femi alleges she was assaulted by Mr. Agard. She fled the apartment with her children. They were barefoot. In the lobby, she called 911 and told the operator that the accused was drunk and had been using a hammer when he assaulted her. Femi and the children waited for the police in the lobby of her apartment building.
[3] Four police officers arrived. Officer Alvarez spoke with Femi, who confirmed what she had told the 911 operator. She told the officers that the accused was in the apartment and gave them permission to enter the apartment. She thought he would be removed from the apartment.
[4] The four officers attended the apartment and knocked on the door. When the accused finally answered, he was standing at the doorway, shirtless, holding a very large wrench in his hand in a striking position. The officers drew their firearms and yelled drop the weapon. Mr. Agard began to lower the wrench and then stopped. P.C. McCormick re-holstered his weapon, lunged at the accused knocking him backward to the ground with McCormick landing on top. Agard still had the vice grips and McCormick punched him once in the face, allowing the officer to grab the wrench. Mr. Agard was then arrested and handcuffed. The punch broke Agard's cheekbone. Two of his ribs were broken as well, most likely as he was taken to the ground with the officer landing on top of him. Mr. Agard was drunk and did not feel any pain at the time. He declined medical attention both on scene and at the station. While waiting to enter the sally port at the police station, he told the officers that he had to use the washroom on two occasions. The officers said he could use the washroom just as soon as they entered the station. However, before the officers were allowed into the station, the accused soiled his pants.
[5] He seeks a stay of proceedings arguing that the injuries sustained during his arrest, as well as the indignity as a result of soiling himself, require the proceedings to be stayed pursuant to section 24(1) of the Charter as a result of a violation of sections 7, 9 and 12. If the proceedings are not stayed, he intends to argue that he should receive a reduced sentence as a result of the circumstances of his arrest.
[6] I heard from the complainant Femi, her 11-year-old son, Deondre, the four police officers who attended the apartment, a police officer who trains police officers in the use of force, another two officers in relation to the protocol concerning use of force reports, Mr. Agard, his brother Aubrey who picked him up from court several days later as well as a doctor who saw the accused once he was released from custody. Medical records were admitted on consent.
The Assault
The Complainant's Evidence
[7] Femi is 31 years old. She and Mr. Agard had been together for eight years at the time of this incident. Femi has two children, ages nine and eleven. They are not Mr. Agard's children; however, he has always been kind to them. Mr. Agard and Femi have separated since this incident.
[8] According to Femi, Mr. Agard's drinking had become an escalating problem. He would routinely get drunk on weekends. He had never before been violent with her. On the afternoon in question, Femi was at home with her children as was Mr. Agard. Mr. Agard began drinking and Femi decided to film him on her cell phone so that she could later show him how he behaved when drunk. At first it was funny. Mr. Agard took a bath but vomited in the tub even before he got in. He then fell into the tub although Femi could not recall how he fell. She filmed him in the tub. Mr. Agard got out of the tub and went to bed. He asked her for her phone but she refused. He got out of bed and, when Femi turned away from him, he began to hit her in the shoulders and then hit her in the back of her head with a closed fist. She pushed him away.
[9] Agard left the bedroom and went to the kitchen. He returned to the bedroom with a hammer in his right hand at head height coming towards her. She asked him what he was doing and took the hammer from him and threw it in the hallway. He never swung the hammer. The children were present.
[10] When Femi returned from the hallway, Mr. Agard took another hammer and held it the same way. Again, she took it from him. Femi was scared and asked her son Deondre to go next door and call the police. Deondre returned saying no one was home. Femi told the children to remain in their rooms.
[11] Mr. Agard went to his bedroom, picked up a wrench in the same fashion and began to exit the bedroom. Femi held the bedroom door closed preventing Mr. Agard from exiting. She yelled to the children to leave the apartment and, as soon as they got out, she left as well. She left without her shoes. She made it to the security desk in the lobby and called 911. The 911 tape was made an exhibit. The operator repeats to Femi that the accused assaulted her with a hammer and was drunk and that he had also taken a wrench. The operator mistakenly understood that the accused was breaking objects in the apartment with a hammer.
[12] Femi testified that she called the police to have them remove Agard from the apartment until he became sober. When the officers arrived, P.C. Alverez asked if the accused was in the apartment alone. Femi replied that he was. She thought the officers would remove Agard from the apartment but there was no specific discussion about the officers removing Agard.
[13] In cross-examination, Femi confirmed that Mr. Agard has a lot of pain in his right shoulder. She was aware that he could not lift his arm very high.
[14] As for the fall in the tub, Femi did not see any injuries or bleeding. Mr. Agard did not appear to be in apparent pain.
[15] When Femi returned to the apartment after the police removed Mr. Agard, she saw a "huge amount" of blood in the hallway, covering over two feet. There was a hole in the wall as well. She then testified that three quarters of the hallway was covered in blood. The hallway's dimensions were five feet by 12 feet. She testified that, as the officers were leaving, P.C. Alverez told her that the apartment may look a little different as they had to take Mr. Agard down and there was some blood on the floor. He told her the apartment looked worse than it was.
Deondre's Evidence
[16] Deondre testified that he heard a loud bang when his mother and Mr. Agard were in their bedroom. His mother told him nothing happened. He then heard another loud bang and his mother told him to go to his room. Mr. Agard then came out of the bedroom with a hammer. His mother told him to put the hammer down. Agard tripped over a duffle bag and fell onto the bag. His mother told Deondre to go next door and call the police. No one was home next door. When Deondre returned, Agard was holding another hammer and was raising it in the air. In his evidence, Deondre demonstrated that Agard was holding the hammer at head level though he was not swinging it. His mother told him to put the hammer down. Femi asked Deondre to go to the lobby and ask the security guard to call the police.
The Arrest
[17] Officers Alvarez, Hubbard, McCormick and Hodgins attended the scene in response to the 911 call.
P.C. Alvarez's Evidence
[18] P.C. George Alvarez is an officer with 13 years' experience. He wrote his notes about these events once back at the station. He was seated at a table with Constable Hodgins but they did not discuss the events, other than times.
[19] Alvarez testified that the radio call related to a male who was drunk and had been assaultive with a hammer. They were advised that he was in the apartment breaking objects and that the complainant had taken the hammer and another tool away from the male. Alvarez arrived and spoke with the complainant in the lobby. She advised that her husband was in the apartment and had been drinking. She told Alvarez that he had punched her in the back of the head and tried to hit her with a hammer. She told him she feared for her life and that was why she left the apartment and called 911. She told the police they could enter her apartment to speak to her husband. Based on this information, Alvarez was of the view that he had reasonable and probable grounds to arrest Mr. Agard for assault.
[20] Alvarez relayed this information to the other officers on scene. They all attended the accused's apartment.
[21] P.C. McCormick knocked on the apartment door. Hubbard was on his left. Hodgins was behind those two officers and Alvarez was a few feet behind Hodgins. There was no answer. He knocked for approximately three minutes. Alvarez then walked to the elevator, 15 to 20 feet from the apartment door when Agard suddenly opened the apartment door. He was holding a large wrench in his hand. The wrench was raised straight up, over his own head. McCormick immediately drew his firearm and pointed it directly at Agard and shouted, "police, drop the weapon". Agard lowered his hand halfway to his waist. McCormick quickly re-holstered his firearm. He then quickly pushed the accused to the ground. Alvarez did not see any other officers draw their firearms. Alvarez moved quickly to the door but, by the time he got to the apartment door, about two seconds later, Agard was already handcuffed. Agard had a minor cut to his lip and a strong odour of alcohol. Alvarez did not enter the apartment.
[22] Alvarez testified that Agard was pushed to the ground within seconds of opening the door. The entire incident, from the door opening to the handcuffing took approximately five seconds. Three officers were on the ground with Agard. When Alvarez looked in the apartment, the officers did not appear to be having any difficulty subduing Agard. He was shouting and moving his body but was not struggling. Alvarez did not see any officer strike Agard and, from what he saw, there was no need or justification to. Alvarez never touched Agard.
Evidence of P.C. Hodgins
[23] P.C. Mark Hodgins also wrote out his notes at the station after the events in the apartment. He testified that, when he arrived at the building, he found the complainant and her two children in the lobby. None were wearing shoes.
[24] Hodgins testified that, when they went upstairs, they did not have grounds to enter the apartment though they did have grounds to arrest Agard. They would see if Agard was in his apartment and, if so, they would give him an opportunity to accompany them.
[25] McCormick knocked on the door for a minute or two. As the officers turned to leave, the door swung open. Agard was holding pliers in his hand over his head in an assaultive manner. He believed the pliers could have caused serious bodily harm.
[26] The officers stepped back. Hodgins drew his firearm and pointed it at Agard. He believed McCormick also drew his firearm. McCormick shouted "drop the weapon" several times. Other officers were also yelling. Agard lowered his arm from above his head to shoulder level but was still holding the pliers in an assaultive manner. He did not lower it all the way. McCormick lowered his own centre of gravity and tackled Mr. Agard into the apartment. Agard went into the wall cracking the drywall. A few other items in the apartment broke in the entrance. As Agard was on the ground, he was still holding the pliers. Hubbard immediately assisted McCormick. McCormick struck Agard once as he would not drop the pliers. By the time of that strike, all three officers jumped Agard to control him so that he could be handcuffed. Once they were on him, he did not struggle but still had the pliers in his hands.
[27] Agard was bleeding from the mouth but from nowhere else.
[28] Hodgins did not agree the accused was taken to the ground almost immediately upon opening the door.
Evidence of P.C. John Hubbard
[29] P.C. Hubbard was P.C. McCormick's partner. He too made his notes back at the station. He may have conferred with the other officers but only with respect to times.
[30] Hubbard testified that one of the officers – he did not remember whom – knocked on the apartment door for three to five minutes. As they were about to leave, the door quickly flung open. Mr. Agard stood there with a large pair of vice grips held over his right shoulder as if he was about to strike. His hand was outstretched and cocked behind his head. Hubbard believed the officers all yelled at Agard to drop the weapon. McCormick drew his gun. Hubbard was about to draw his own but did not as he would have had to point it at the back of another officer. Agard was frozen, doing nothing, as if he was ready to strike for a few seconds. Hubbard then testified that Agard "kind of lowered it but still had it as if ready to attack I guess, I don't know, well, it's hard to say".
[31] The wrench was still at shoulder level. Agard was not saying anything. He did not move forward. McCormick quickly re-holstered his firearm and pushed Agard back into the apartment causing Agard to fall and hit his head on the wall breaking the drywall. A vase fell off a table and broke. Hubbard did not know where on Agard's body McCormick connected. He agreed that approximately three seconds elapsed between Agard answering the door and being taken to the ground.
[32] Agard, now on the ground, still held onto the vice grips with a very strong grip. Several more demands to drop the vice grips were made but Agard did not let go. McCormick then struck Agard in the face with an open or closed hand strike. Agard then dropped the pliers. Agard was rolled onto his stomach and Hubbard handcuffed him. No one else hit Agard.
[33] In cross-examination, Hubbard testified that he believed the force used in this case was at the low end of the spectrum.
[34] Agard had a cut to his lip but did not want an ambulance. He smelled of alcohol and his eyes were very bloodshot.
[35] Agard was placed in the cruiser. Hubbard did not recall Agard saying he had to go to the washroom urgently. However, the officer then realized Agard had soiled himself in the cruiser. Had Agard asked to use the washroom urgently, Hubbard would have tried to facilitate that request.
[36] Hubbard did not make any note of McCormick striking Agard in the face. In cross-examination, he seemed to recall that Agard did have a black eye but made no note of that as well. That omission caused me to be cautious about his evidence which otherwise appeared credible.
Evidence of P.C. Joey McCormick
[37] P.C. Joey McCormick has been an officer since 2005.
[38] He made his notes at the station but did not speak to the other officers about the events before making his notes.
[39] When McCormick and the others attended Agard's apartment door, he knew Agard would be arrested for assault with a weapon. McCormick knocked on the door and announced they were the police. There was no answer and they were about to leave. The door then opened and Agard stood in the doorway shirtless holding large pliers overhead in a striking fashion. McCormick drew his gun and yelled to drop the weapon. McCormick feared that Agard could cause he or the other officers serious bodily harm with the pliers.
[40] Agard did not drop the pliers as demanded. He merely lowered it slightly "almost at shoulder level" still holding it in a striking fashion. Seeing that the firearm did not obtain immediate compliance, McCormick re-holstered his firearm and pushed Agard backwards causing him to fall to the ground and against the wall. McCormick fell onto Agard's left side.
[41] Agard was still holding onto the pliers. McCormick told him to drop them but he did not immediately comply. McCormick feared he would be struck with the pliers so he punched Agard once near his mouth. This caused Agard to loosen his grip. McCormick then took the pliers from Agard.
[42] Agard had a small cut to his lip but declined medical attention. Agard was arrested and read his right to counsel. While travelling to the station, McCormick became aware that Agard had soiled himself. Once at the station, Agard told the booker that his only injuries were to his lip.
[43] McCormick testified that he arrested Agard for assault police when Agard came out holding the pliers. Had he dropped them, or lowered them to chest level, he would not have taken the action he took that day. He disagreed that the accused lowered the pliers to any significant degree. He did not think his punch broke Agard's cheek. Finally, he testified that, had he seen a lot of spilled blood, he would have called for an ambulance regardless of whether Agard wanted medical attention.
Aubrey Agard
[44] Aubrey Agard, is the accused's brother. He was called as a defence witness. He testified that he picked up his brother from Court four days after the incident when he was released on bail. The accused was limping, had a cut lip and a black eye. Aubrey took his brother home and then to the hospital. In cross-examination, he was asked what his brother told him about the incident. Aubrey testified that his brother told him that the problem began when the complainant began to video record him on her cell phone. As for the circumstances of the arrest, Agard told Aubrey that, when he answered the door, he was jumped by the police and did not remember much after that.
Dr. Carlos De Sequeira
[45] Dr. De Sequeria was the radiologist on duty at the Markham Stouffville Hospital when Aubrey brought Agard to the hospital. A CT scan revealed that Agard suffered a fractured cheekbone and fractures to two ribs on his left side.
Arnott Burton Agard
[46] Mr. Agard testified on the voir dire. His evidence does not form part of the trial itself. He was 50 years old at the time of the trial and this was his first involvement with the criminal justice system.
[47] He was drinking that afternoon and, by the time the complainant left the apartment, he was drunk. He acknowledged at the outset of his evidence that there were parts of the afternoon that he could not recall due to the effects of alcohol.
[48] Agard vaguely recalled slipping as he was getting into the tub. He was not injured when that occurred to the best of his recollection. He was not in pain and did not see any blood. Once inside the tub, he did vomit. After he got out of the tub, and during his exchange with the complainant, she pushed him and he fell over the duffle bag onto his back. He did not remember the complainant elbowing him. He had the hammer and vice grips because he wanted to break the cell phone as he believed the complainant might upload the videos to the internet.
[49] After the complainant left, Agard fell asleep on his bed with the vice grips on his chest. He heard a faint knock at the door but thought he was dreaming. He heard two more knocks and went to the door. As he got up, the vice grips fell onto his lap. He picked them up and continued to the door. He looked out the peephole but saw nothing, as if the peep hole was covered. He heard nothing from the hallway.
[50] Agard testified that he suffered a workplace injury in 2008 which resulted in his right shoulder dislocating from its socket. As a result, he is unable to lift anything above his chest or stomach level. He demonstrated in court that he could only hold the vice grips outstretched in front of him unless he then cradled his right elbow and gently raised his arm from the elbow. He testified that he cannot shake a spray can without his shoulder coming out of its socket.
[51] He answered the door holding the vice grips at chest level. He saw the police officer who yelled at him to drop the weapon. Agard was shocked and froze for two or three seconds. He began to slowly lower his arm. The next thing he knew, he was on the floor. He could not recall much of what happened next and has a gap of 10-15 seconds at that point. He did not know if still held the vice grips. He did not know if he struggled with the officers. He did not recall McCormick striking him in the face. He remembered something black, like a pair of boots or a knee or arm on his chest holding him down although it did not feel like a lot of pressure at the time. He was then turned onto his stomach and handcuffed. He believed he was cooperative as best he can recall. He was arrested but could not recall the charge. He testified that he believed alcohol was affecting his memory.
[52] He had no intention of striking anyone with those vice grips.
[53] When he got up, he was exhaling blood. The police thought he was spitting blood intentionally so he began breathing through his nose.
[54] Once in the cruiser, while waiting to enter the sally port, he told the officers that he had to use the washroom. The officers said that would be no problem, he would have to wait until they entered the station. They said there was nothing they could do at that time. Five minutes later, he told the officers that he really needed to use the washroom. The officers responded that they understood but there was nothing they could do until they were inside. Agard did not recall if he told the officers it was urgent.
[55] Two minutes later, he told the officers that it was too late.
[56] With respect to telling the booking officer that he did not need medical attention, Mr. Agard testified that, as a result of the alcohol, he did not feel any pain at the time and he did not realize how badly he looked.
[57] The next morning, a Monday, he was transported to the courthouse. By noon, the effects of alcohol were wearing off and he began to feel pain to his mouth and to both sides of his ribs. The pain to his mouth and right side was not severe but the left side of his ribs were causing a lot of pain. The pain worsened between that Monday and his release from Court on Wednesday. He never asked to see a doctor while at the detention centre. He explained that he did not appreciate that he could see a doctor at the detention centre. When his brother picked him up from Court on Wednesday, he was taken to the hospital where his injuries were treated and he was given pain killers. When he got to his brother's home, he saw his own face for the first time and began to cry when he saw his injuries.
[58] In cross-examination, Agard confirmed that he was "seriously drunk" that afternoon. He again repeated that he did not feel the pain from the events until the next day. He admitted his memory was foggy. He admitted that he had no idea how his ribs were broken or how his cheek was broken but testified that no one else injured him that day. He testified that his shoulder would dislocate if he lifted his arm above his head as described. He then raised his arm in Court and indicated that he could not lift it any higher than in front of him and, as he did, I heard a crack. He testified that he punched his wife with his left hand even though he was right handed. He explained it would have been too painful to use his right hand.
[59] As for the events at the door, he did not recall guns drawn. He recalled being shocked when he saw the police. He was lowering his arm as directed but did not drop the vice grips. He explained that he had paid $7,000 for a new tile floor and did not want to drop the vice grips on the floor. He conceded that, if he were faced with someone holding vice grips as he was, he would want to get out of the situation.
[60] He testified he was treated courteously after the arrest.
[61] He has not consumed alcohol since the incident.
Police Witnesses Called in Reply
[62] The Crown called Sgt. Mark Harvey in reply to address issues related to the use of force reports. I will make no further comment upon Sgt. Harvey's evidence as, in my view, any changes to the use of force form are completely immaterial in this case and, indeed, by the end of the evidence, no submissions were made in relation to them.
[63] The Crown also called Sgt. Brian Maslowkski, an officer who trains officers in relation to use of force and de-escalating encounter with suspects. He also gathers data gleaned from use of force reports. He explained certain comments on the use of force reports filed in this case. Like Sgt Harvey's evidence, once Sgt Maslowski testified, there was no longer any issue about why certain administrative changes were made to the use of force reports in this case.
[64] Sgt. Maslowski gave evidence regarding a "Use of Force Wheel". In essence, he testified that the use of force wheel is a graphical model which contains various subject behaviours and officers' responses to those behaviours. He explained that there is a ladder of increasing severity of police responses depending upon the situation.
[65] He testified that the lowest level of use of force is mere officer presence, then, tactical communications or commands, followed by physical control techniques which used to be known as empty hand techniques, both hard and soft. Thereafter, there are intermediate options such as batons or pepper spray followed by tasers and finally firearms if there is a risk of serious bodily harm or death.
[66] However, he explained that the model is circular rather linear because all situations are dynamic. In other words, an officer is not required to go through steps A, B C, in sequence if they find themselves in a situation which they believe requires an immediate increase in the severity in response.
Submissions
Defence
[67] Mr. Agard submits that the police conduct during the arrest at his apartment was so violent, unreasonable and unnecessary that it violated sections 7, 9 and 12 of the Charter. He submits that a stay pursuant to section 24(1) of the Charter is the appropriate remedy. He further submits that the officers entry into his apartment was unlawful. That, together with the indignity regarding the washroom incident adds to the necessity of a stay.
[68] The defence concedes that the police were entering a potentially volatile situation. Nonetheless, the defence, submits, in essence, that the officers acted too quickly and violently in this case. Mr. Agard was beginning to lower the wrench, to some degree, when P.C. McCormick engaged in the impugned conduct.
[69] With respect to the credibility of the witnesses, the defence submits that the evidence of the complainant with respect to the amount of blood in the hallway should be accepted as truthful and reliable and her evidence is circumstantially supported by her testimony that one of the officers, on the way out, told her that the blood looks worse than it was. The defence submits that Officer Alvarez's evidence that Agard lowered the wrench to his waist should be preferred over the other officers' evidence that it was lowered to shoulder level because Alvarez was standing back a few feet from the fray which made him more independent in the defence's view. However, I note that Alverez had Agard holding the wrench straight up over his own head when he opened the door. The defence points out the officers' notes were a written once they arrived back at the station.
Crown Submissions
[70] The Crown points out that Agard bears the onus on this application on a balance of probabilities and submits that the accused was so inebriated that he was an unreliable witness. Further, his persistence in attacking the complainant that night can and should be looked at to help determine Agard's actions toward the officers. In short, he was aggressive, assaultive and persistent.
[71] The Crown concedes that Mr. Agard's cheek was broken when P.C. McCormick punched him in the face. However, the Crown submits that the evidence is far less clear as to when he broke his ribs. Was it during the arrest? When he fell into the tub? When he tripped over the duffle bag? When the complainant elbowed him in the torso? The Crown submits that the onus of laying an evidentiary foundation for this application is upon Mr. Agard and the evidence concerning the cause of his broken ribs is confused and vague.
[72] As for the police entering the apartment, the Crown submits, firstly, that the complainant as lawful occupant, had the right to give the police permission to enter and she had. Second, the Crown submits that, once Agard presented himself at the door holding a wrench over his head, the police were entitled to arrest him without a warrant for the offence of possession or a weapon or assault with a weapon.
[73] With respect to the force used upon arrest, the Crown points out that the police are not required to place themselves at excessive risk in highly volatile situations such existed at the apartment door that afternoon. The police received information that Agard assaulted his spouse with a hammer and was destroying property. When they knocked, he opened the door holding the weapon overhead in a striking and threatening fashion standing at a close distance. When they told him to drop it, he ought to have complied immediately. Any delay caused the officers to understandably fear for their safety. As for the fact that several of the officers had guns drawn, the techniques used by McCormick were preferable to the alternative.
Credibility
[74] Let me turn to the matter of credibility. I found all of the witnesses, for the most part, testified credibly. However, there are certain aspects of the evidence which I do not find credible which I will describe.
[75] Before I turn to the use of force used in this case, which is the major issue in contention, I will briefly address the significance, if any, of the officers' failure to facilitate Mr. Agard's use of a washroom and the allegation of illegal entry into the apartment.
The Lack of Washroom
[76] With respect to the washroom incident, as the evidence unfolded, it became clear that there had been no nefarious or deliberate attempt by the officers to thwart Mr. Agard's use of the washroom or to humiliate him. The officers told Mr. Agard they would let him use the washroom when they entered the station. Mr. Agard candidly testified that he could not recall if he ever told them how urgent his need was. In these circumstances, while obviously embarrassing, there was no misconduct by the police at all and no violation of the Charter.
The Entry into the Apartment
[77] Police are not permitted to enter a residence without a warrant or the occupier's consent except in very limited circumstances: see R. v. Feeney (1997), 115 C.C.C. (3d) 129 (S.C.C.); and section 529 of the Criminal Code.
[78] The complainant Femi was a lawful occupant of the apartment and she authorized Alvarez and the police to enter her apartment. She was entitled to do so. The argument that her consent was not informed because she did not know the precise manner in which events ultimately would unfold is irrelevant. The complainant fled the house in fear. She called the police. She wanted Agard out of the house so that she and her children could return in safety. She expected that they would remove her husband for having committed an assault and she consented to the police entering her home. Accordingly, the police would have been entitled to enter the apartment pursuant to Femi's consent. However, the police did not enter the apartment as a result of Femi's consent. Events unfolded differently.
[79] The police knocked on the apartment door. There is an implied licence to the police, just as to anyone else, to knock on an apartment door unless that licence is explicitly withdrawn. The officers in this case were permitted to knock on Mr. Agard's apartment door. When Mr. Agard answered the door with vice grips in hand, holding them either over his head or in a cocked fashion as if ready to strike, and bearing in mind the context of the 911 call, the police were at that moment entitled to arrest Mr. Agard for the offence of possession of a weapon. The arrest began at the threshold of the apartment door. The entry that did occur occurred during the exigencies and circumstances of a lawful arrest.
Use of Force
[80] Turning to the major issue in contention: whether the force used during Mr. Agard's arrest violated Mr. Agard's rights and, if so, what remedy should follow.
[81] Police have a duty to investigate crime and apprehend criminals.
[82] The officers had reasonable and probable grounds to arrest Mr. Agard, for domestic assault, as well as for possession of a weapon when he answered the door holding a wrench in that manner particularly given the information in the 911 call.
[83] Police who are authorized to lawfully arrest a suspect have common law authority to use reasonable force, to effect that arrest if necessary: see R. v. Asante-Mensah, [2003] S.C.R. 3 (S.C.C.).
[84] Further section 25 of the Criminal Code provides that a peace officer, acting on reasonable grounds, is justified in using as much force as is necessary in the circumstances.
[85] In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, the Supreme Court of Canada held that the force police officers are permitted to use to effect an arrest is constrained by the principles of proportionality, necessity and reasonableness.
[86] In determining whether the force used to effect an arrest was reasonably necessary, the Court must consider the circumstances that presented themselves to the officer.
[87] An officer is not expected to measure with nicety or exactitude the amount of force used in a dynamic situation: see Nasogaluak, and R. v. Mulligan (2000), 142 C.C.C. (3d) 14 at 41 (Ont. C.A.).
[88] As Courts have commented in the context of judicial review of reasonable and probable grounds to arrest, but equally applicable to this context, officers, facing dynamic and potentially dangerous situations, do not have the luxury of judicial reflection and submissions from counsel before acting. They must act within seconds. Failure to act can have tragic outcomes: R. v. Golub.
[89] However, officers are trained professionals and are expected to be able to determine and employ appropriate levels of force for the situation that exists. Not more.
[90] The Charter provides additional protection against excessive force used by the police.
[92] As the Ontario Court of Appeal stated R. v. Tran at para. 48:
Section 7 provides citizens with a right to be secure against arbitrary force, especially physical violence, by state actors.
[93] Distilled from those principles, the question becomes whether the force used to arrest Mr. Agard was reasonably necessary having regard to circumstances that confronted the officers that day. Were the actions of Constable McCormick necessary, reasonable and proportionate to the circumstances bearing in mind he did not have the luxury of lengthy reflection before acting. Events unfolded very quickly.
[94] The following is a summary of the situation that presented itself to the officers that afternoon.
[95] They had been advised that a male had assaulted his spouse with a hammer and a wrench. They were advised he was impaired and in his apartment. They were mistakenly advised that he was breaking items in the apartment with a weapon. They saw the complainant and her children in the lobby having fled the apartment without enough time to put on shoes.
[96] When the male answered the door, he was holding a wrench in a threatening manner.
[97] I am satisfied that Mr. Agard held the wrench in a cocked motion as if ready to strike. Given his workplace injury, it may not have been as high as the officers believed but I am satisfied he held it in a manner in which any reasonable observer would have perceived it as threatening. I make this finding notwithstanding any discrepancies in the officers' evidence regarding exactly how high the wrench was held. Wherever it was held exactly, I am satisfied that he held it in an aggressive manner and that is what the officers perceived and encountered, particularly in light of the context of the 911 call.
[98] The reason I am satisfied that Agard was holding the wrench in a threatening manner is because that is how he is alleged to have held the wrench toward the complainant as described by both the complainant and her son. Further, he was drunk and aggressive that afternoon. He answered the door holding a wrench, itself, an aggressive act. He was not coming from doing home repairs when he answered the door. Finally, in his own evidence, he conceded that if he were confronted with the situation that the police found themselves in, he would have felt threatened.
[99] Faced with those circumstances, two officers instinctively and immediately drew their firearms and yelled at Mr. Agard to drop his weapon. No doubt Mr. Agard was shocked and was briefly frozen.
[100] Mr. Agard began to lower his arm somewhat but did not drop the wrench immediately. There is a discrepancy between Constable Alvarez and the other officers as to how far the wrench was lowered. The other officers were closer and may have had a better view than Alverez. However, they were right in front of Mr. Agard in a very tense and stressful situation that caused two of them to draw their firearms. The entire event unfolded within seconds. Any of them might be mistaken as to how far the wrench was lowered. Mr. Agard himself has given contradictory and unsatisfying answers regarding his possession of the wrench at the door. I accept he had no intention of hitting or threatening the officers. He likely thought the complainant was at the door. I do not accept his evidence that he brought the wrench to the door and held it in the threatening manner described unintentionally. I note that in his affidavit, he swore that he let go of the wrench whereas in his testimony, he testified that he could not drop the wrench on command because: (a) he froze, (b) dropping it too quickly would have injured his shoulder; and (c) it would have cracked his new tile floor. While I found Mr. Agard credible in most of his evidence, and I accept he never intended to threaten or hit the officers, I reject his evidence as to his reason for bringing the wrench to the door or his explanation for not dropping it immediately.
[101] Accordingly, Agard began to lower the wrench somewhat in response to the officers' commands but did not drop it immediately as directed.
[102] When the wrench was not immediately dropped, and at most within two or three seconds of the door opening, Constable McCormick lowered his centre of gravity and pushed Agard hard in the chest and tackled him to the ground. Agard's head hit and broke a hole through the drywall. McCormick landed on Agard's left side. Within one or two seconds of hitting the ground, McCormick punched Mr. Agard in the face with enough force to break his cheekbone. He did so because Agard had not dropped the vice grips and the two were now in close contact. The punch was delivered by McCormick to protect himself from any potential strike by Mr. Agard.
[103] That tackling of Agard and landing on his left side likely broke Mr. Agard's ribs. While the evidence on this point is far from clear, on a balance of probabilities, the hard push and tackling of Agard and the landing of the officer on Agard's left side is more likely to be the cause of the broken ribs on his left side than during the events that happened earlier.
[104] After much consideration, and bearing in mind the situation the officers found themselves in, it is my view that P.C. McCormick acted too quickly and with too much force in tackling Agard in the circumstances.
[105] I am satisfied that P.C. McCormick's decision to tackle Mr. Agard was made in good faith in order to protect himself and his fellow officers and in an effort to bring an immediate end to the situation. Nonetheless, Mr. Agard was in the process of being controlled by the officers. Guns were drawn and he had begun to lower the weapon. He had not made any move toward the officers. Things were moving in the right direction. Mr. Agard was beginning to lower the wrench. He was beginning to comply with their demands. The situation was potentially dangerous and volatile. But it was being controlled.
[106] The tackling of Mr. Agard which resulted in his head going through a wall, his ribs broken and the subsequent punch in the face breaking his cheek was not reasonable, necessary or proportional to the situation.
[107] The use of such force in these circumstances was excessive and violated Mr. Agard's rights under section 7. It interfered with Mr. Agard's physical security in a manner that was not necessary or reasonable or proportional.
Remedy
[108] That said, this is clearly not a case for a stay of proceedings bearing in mind the test for a stay as recently articulated by the Ontario Court of appeal in Tran.
[109] In R. v. Tran, the Ontario Court of Appeal reviewed the Supreme Court of Canada jurisprudence including the cases of O'Connor, Tobiass and Regan. In paragraph 85 and following in Tran, the Court summarizes the law in this regard. To summarize the relevant principles to the case at bar:
A stay of proceedings is an exceptional remedy to be employed as a last resort, only after canvassing other available remedies.
In addition to state conduct that renders a trial unfair, there is a residual category of conduct caught by s. 7 of the Charter that addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.
In seeking a stay under the residual category, two criteria must be satisfied:
(i) The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and
(ii) No other remedy is reasonably capable of removing that prejudice.
[110] Where it is not clear that the abuse in question is sufficient to warrant a stay, "it will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits."
[111] A stay is also appropriate where the past abuse was serious enough that public confidence in the administration of justice could be so undermined that the mere act of carrying forward in the light of it would constitute a new and ongoing abuse sufficient to warrant a stay of proceedings. However, only an exceedingly serious abuse could ever bring such continuing disrepute upon the administration of justice.
[112] Bearing in mind that test, this case is not a case that would justify a stay of proceedings. I have found the officer acted with too much force too quickly. But it is a close call. Further, Officer McCormick acted in good faith. The use of force was connected to a legitimate act he was performing in the discharge of his duties. The tackling occurred within approximately two seconds of Agard opening the door in a highly volatile situation with a potential for escalating violence. The drawing of their weapons was justified. Unlike Tran, there was no bad faith by the police. No dishonest cover up. There use of force did not occur during conduct that was itself inappropriate. A stay would be inappropriate.
[113] I am satisfied that, if convicted, which seems likely at this point, the principles of sentencing are flexible enough to address the circumstances that occurred upon arrest.
[114] Application for a stay dismissed.
Released: October 15, 2012
Signed: "Justice Borenstein"