Court File and Parties

Court File No.: 10/2350

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Bruce Wayne Richard

Before: Justice Gregory A. Campbell

Heard: September 6 and 7, 2012

Released: November 9, 2012

Counsel:

• Nick Bazylko, for the Crown
• Tom Costaris, for the Accused

CAMPBELL J.

REASONS FOR JUDGMENT

THE PROCEEDING

[1] This decision is in regard to a charge of operating a motor vehicle while impaired by alcohol and having a blood alcohol concentration in excess of 80 milligrams of alcohol in 100 millilitres of blood. It was acknowledged that the accused's BAC at the time was 150 milligrams of alcohol in 100 millilitres of blood.

[2] There is no issue in regard to whether proper procedures were followed with respect to the breath demand, timeliness of taking the sample, procuring the sample or the accuracy of the readings. There is no significant issue in regard to whether Mr. Richard's ability to drive was impaired by alcohol at the time. What is at issue in this trial is whether Mr. Richard's right to security of the person was deprived and if so, whether a remedy under s. 24 of the Charter should be granted. The matter proceeded by way of blended voir dire. The main issues to be considered are whether the police used excessive force on arrest and, the significance of an apparent loss or failure to preserve fourteen minutes of recorded interaction between the accused and the arresting officer, who was also the breath technician.

[3] The application brought by Mr. Richard alleged a breach of ss. 7, 10(b), 11(d) and 12 of the Charter. As the matter unfolded, s. 10(b) was abandoned and s. 11(d) was not argued. While s. 12 was referenced in the Notice of Application and factum, it was not put forward in oral submissions or by reference to any case law.

[4] I am satisfied from what I have reviewed and heard from counsel, that the issues of excessive force and lost evidence require consideration in the context of s. 7. Moreover, notwithstanding the fact that the Notice of Application filed specifically sought relief under s. 24(2) of the Charter, the applicant's factum and the argument advanced during submissions is for a stay of proceedings.

THE FACTS

[5] The 60 year old accused applicant spent 40 years in the horse racing industry. He considered himself fortunate when he obtained full time employment as a truck driver with a reputable company in 2006. He was proud of that work.

[6] Friday, October 22, 2010 was a typical Friday for Mr. Richard. He worked a full week and logged some long hours. He got up at 3:30 a.m., had a coffee and something to eat and was at work by 4:40 a.m. He received his assignment, attended to his truck and did a circle check. He put in a full day and then left work in his pick-up with the intention to go to his friend's for a visit and converse over a few beers. This was his typical Friday night routine. Mr. Richard first stopped at the beer store and purchased a case of 24 bottles of beer. He arrived at his friend's home around 5:00 p.m. and brought six bottles of beer inside with him. They each drank three bottles of beer. Another friend stopped by to visit so Mr. Richard stayed for a while longer. In total, Mr. Richard had four or five beers by the time he left at 8:00 p.m. He said he left a few bottles of beer behind for his friend from the case he bought earlier and received a dinner to take home with him. Mr. Richard recalled that October 22 was a cool night so he had the heat on in his pick-up truck as he travelled eastbound on the E.C. Row Expressway. The expressway is a municipal highway that has a posted speed limit of 100 kilometres per hour.

[7] Mr. Richard was tired and was nodding off a bit as he drove down the expressway. He recalled driving past certain landmarks along the road when suddenly, he opened his eyes to see reflective barriers and flashing lights. He hit the brakes just as he drove through and struck some barriers that were across the highway. He came to a stop on the expressway without impacting anything other than the barriers. Mr. Richard held the opinion that he nodded off briefly because he was tired and not because his ability to operate his motor vehicle was impaired by the prior consumption of alcohol.

[8] Police Constables Sonier and Polachuk had been dispatched earlier in the day to redirect eastbound traffic on the expressway to an off-ramp located a few hundred meters west of a location where a transport truck had rolled over and as a result necessitated an extensive cleanup of the highway. City officials erected barriers and caution tape further west of the off ramp serving as a detour bringing the two lane highway down to one and merging the traffic to the off-ramp. Officers Sonier and Polachuk were charged with ensuring the traffic channelled off the expressway accordingly.

[9] Just before 8:28 p.m. both officers were seated in their police cruiser, located about 15 to 20 metres east or behind the last barrier where they could continue to monitor and observe the oncoming traffic merge off the expressway. Officer Sonier was seated in the driver's seat while Officer Polachuk was seated in the passenger seat and talking on his cell phone. Officer Sonier described how he saw Mr. Richard's pick-up truck passing the merging traffic and coming straight toward the barriers. Concerned that his vehicle may get hit, the officer put his car in reverse and backed up approximately 30 metres eastbound to create more distance and watched as the front end of Mr. Richard's pick-up truck suddenly dropped down, indicating to him that the pick-up truck was braking, just at or about the time when it struck the barriers and then continued through the barriers before coming to a full stop.

[10] Mr. Richard said that after he stopped, he remained seated in his vehicle. He rolled the window down and sat there waiting with the expectation that a police officer would soon arrive. He said he felt embarrassed and knew that he was in trouble. He next saw Officer Sonier pass across the beam of his headlights and, from a distance of about 15 feet away, heard the officer shouting "You must be drunk." Mr. Richard said that he apologized when the officer approached him at the driver's side of his pick-up and told him to step out.

[11] Officer Sonier said that he didn't scream or shout at Mr. Richard but did instruct him to shut off the engine to his pick-up. The officer said he had to ask Mr. Richard to do this several times, but Mr. Richard didn't respond so the officer opened the driver's door, reached in, turned the vehicle off and took the keys. He said at that point he detected an odour of alcohol emanating from the vehicle. He also noticed a 24 case of beer with twelve bottles missing. The 12 bottles that remained were full and unopened.

[12] Officer Sonier said that he had to ask Mr. Richard to step out of the vehicle twice. By this time Officer Polachuk arrived. He said he heard Officer Sonier shouting "Turn the truck off" as he approached. Both Officers testified that Mr. Richard fell out of the pick-up truck. Officer Sonier said it appeared as if Mr. Richard leaned to get out and may have caught his feet in the door frame. Office Polachuk said he simply saw Mr. Richard fall out awkwardly "like a drunken fall." Both officers said that they tried to catch Mr. Richard and stop his fall but Officer Polachuk had to let go because his thumb got caught in the accused's clothing and as a result Mr. Richard fell to the ground.

[13] Mr. Richard said that Officer Sonier didn't reach into his pick-up truck and turn off the ignition. He said he couldn't have done this because he recalls that the headlights were still on when he was asked by the officer to step out of his vehicle. He emphatically denies that he fell out of the pick-up truck stating "I stepped out and walked and did exactly what he asked me to do." Mr. Richard recalled being lead toward the back of the pick-up truck where he was patted down and directed to empty his pockets. He recalled being asked for his driver's license and being moved approximately 20 feet away from where the pick-up truck was stopped. He told Officer Sonier that his wallet was in the console of the pick-up and recalls watching Officer Sonier walk toward the pick-up to retrieve the wallet. After Officer Sonier exited the truck, Mr. Richard watched the officer walk back to his police vehicle while he remained standing where he was instructed to stand.

[14] Mr. Richard recalled first seeing Officer Polachuk when he emptied his pockets. He said he didn't pay much attention to him but recalled that he was standing nearby and behind him when Officer Sonier returned to the police car. Mr. Richard estimated he remained standing in the road for approximately ten minutes. He stated, "I was just standing there thinking about how screwed I am... that I had to work the next day." Officer Sonier then returned and as he approached the officer instructed Mr. Richard to "Get on the ground." Mr. Richard described how he leaned forward and bent down to place his hands on the ground when suddenly Officer Sonier grabbed one arm and immediately struck him with a knee to his right thigh. He described the impact as severe, saying "worse than having been kicked by a horse" something he had experienced before. Officer Polachuk grabbed a hold of Mr. Richard's other arm as he was forced to the ground. He said "they jumped on my back," and administered what he described as "multiple blows". When asked if he could describe the blows further, Mr. Richard responded, "I'm not sure what they were doing. I was already down." When asked how long this went on for, Mr. Richard stated, "Probably seconds...it was just multiple blows...it didn't take long." Mr. Richard said that after he was handcuffed he simply remained where instructed until the transport vehicle arrived. He recalled Officer Sonier went to police headquarters in the same vehicle with him, seated in the front passenger seat with the officer who arrived to transport him.

[15] Officer Sonier said that he was concerned after Mr. Richard fell out of the truck because they were on a highway where a barrier had been broken and he didn't know what he was dealing with. He said that he instructed Mr. Richard to stay down to take control of the situation. He said he had to tell the accused to stay down on three separate occasions but Mr. Richard kept trying to get up so he placed one knee on Mr. Richard's left shoulder blade to hold him still.

[16] Officer Polachuk testified that he too watched as Mr. Richard fell "awkwardly" from the truck and described how Mr. Richard was trying to get up. Officer Polachuk said that he put his left knee on Mr. Richard's "leg or hip area" and then grabbed his left arm to assist placing him in handcuffs. Officer Polachuk said Mr. Richard "felt like he was resisting at that point." The two officers said they then lifted Mr. Richard from the ground together and moved him to another location to wait for a transport vehicle.

[17] Officer Sonier was asked if he became angry after Mr. Richard's pick-up smashed through the barrier and in reasonably close proximity to where the officers had been parked. He said that while there was heightened adrenaline he did not scream at Mr. Richard. He said that he remained composed and responded professionally as he dealt with an emergency situation.

[18] Officer Polachuk described Officer Sonier as being calm and Mr. Richard as being apologetic and contrite. He added that while Mr. Richard was apologizing he detected a moderate odour of alcohol on his breath. He, like Officer Sonier, described the accused's speech as being slow and deliberate. He had glossy eyes and said that they had to assist him as they walked to wait for transportation. Officer Polachuk said that no one kneed Mr. Richard and Officer Sonier did not strike him.

[19] Officer Sonier was asked if he could offer any explanation as to how Mr. Richard may have injured his leg. Officer Sonier said it may have happened while his partner was controlling Mr. Richard's legs as he was "flailing around" trying to get up from the ground after he fell out of the truck. Officer Sonier denies there were any knee strikes administered to Mr. Richard. Officer Sonier also confirmed that he did not note or record any struggling or difficulties associated with trying to handcuff Mr. Richard while he was lying on the ground. He did, however, note scratches to Mr. Richard's face.

[20] Mr. Richard maintained that he never at any time fell out of the truck and further denied that he ever tried to get up or stand after he was put to the ground. He stated, "I got up when I was told to get up."

AT POLICE HEADQUARTERS

[21] As I indicated, there is no issue in regard to processing and rights to counsel after Mr. Richard arrived at police headquarters. Mr. Richard recalled being placed in a holding cell and as he waited he was "worried about work."

[22] Officer Sonier is also a qualified breath technician. When he entered the breath room at 9:32 p.m. to ready the approved instrument to receive samples of Mr. Richard's breath, he also turned on a digital DVD recorder. He said there is a primary disk and two additional discs that are put in before he starts. Once he hits "start" all three disks record at the same time. The master disk is removed and placed in evidence and the other two disks are distributed for disclosure to the crown and defence. He said the recording disks were inserted by him on October 22, 2010. There were no alarms or indicators to suggest that the system was not operating properly. He said that it was not until after he completed the breath tests and left to review the recording when he discovered that everything may not have been captured. The officer's testimony about the recording equipment was both in regard to general practice and in regard to what he did on October 20, 2010 when he dealt with Mr. Richard.

[23] Officer Sonier explained that after the breath sample testing procedure was completed, and Mr. Richard was escorted to his cell he removed all three disks and took the master disk with him to his office to do a "cursory" review of it on his computer to make sure that everything recorded properly. He testified, "...there was indication that we may not have captured all the video."

[24] The digital recording equipment was located behind and to the left, about five to seven feet away from the approved instrument. A DVD recording was played during the trial up to and including the moment when the recording ends there is no indication that Officer Sonier was anywhere near the equipment. He is seen simply standing by the approved instrument and across from Mr. Richard when the recording stops. Officer Sonier testified that this was new equipment that came into use "shortly before the time he did Mr. Richard's test." The officer was asked about his opportunity to review the DVD after the test was concluded. The following exchange took place during the trial:

Question: You reviewed the recording on October 22?

Answer: Yes. I would say I reviewed it and it may have been cut off.

Question: You went to your office and reviewed it and realized it wasn't burned properly?

Answer: Yeah. I didn't review it extensively, there was a possibility it may not have captured all of the video...I wasn't sure if it did or not.

[25] Officer Sonier agreed that he made no record or notation that day about any concern he had about the recording or the equipment or in regard to any notification he gave to staff to look into the matter. When asked if he considered this to have been something noteworthy, the officer agreed but then went on to indicate that he was not sure if he captured everything because he did not review the entire DVD. Officer Sonier was only able to indicate that he had a conversation with "follow-up officers" about the equipment. He testified that they were "working out bugs" when they first installed the digital recording equipment so he believed that his information would have been forwarded to the officer responsible for maintaining the equipment.

[26] When counsel suggested to Officer Sonier that it was actually in February 2011, nearly four months later, when it was brought to his attention there was a problem with the DVD recording being incomplete, Officer Sonier said it was quite possible but that he could not recall. And, when counsel suggested that even after this was brought to his attention in February 2011, he said nothing to his supervisors about encountering a problem on October 22, 2010, Officer Sonier responded "I wasn't aware of it on the 22nd, that there was a problem...what I was aware of was after the fact it was brought to my attention that we may not have captured all the video and that's why it was brought to my attention...that's why I testified as such that we may have had a problem capturing the video." Counsel continued,

Question: Didn't you say that you reviewed the master video the night this happened in your office and you were concerned the video tape had not captured the entire process?

Answer: Correct. I looked at it and the video was playing on the computer, in my office. I looked at it briefly. I didn't review the whole thing. There were follow-up officers that actually reviewed the entire video and if there is a confirmed problem, they'd let me know. Because it was new, I wasn't as familiar with it.

[27] The best I was able to determine from the whole of this evidence was that Officer Sonier did review the DVD briefly on October 22, 2010 and suspected at that time that the DVD may not have captured everything. As a result, he passed this information along to "follow-up officers" who would have been charged with reviewing the equipment and the DVD to determine if there was in fact a problem. Subsequently, in February 2011, apparently after a defence disclosure request, the officer's supervisor brought the matter to his attention because it was at that point when they determined there was in fact a problem as the DVD did not capture all the activity in the breath room. And with this, Officer Sonier said nothing to his supervisor or colleagues in February 2011 about encountering a problem earlier or about having informed anyone previously about the potential problem he thought may have existed on October 22, 2010 when he reviewed it briefly.

[28] Officer Sonier was asked if it was possible to burn only part of the DVD recording. He said that since all three DVDs record simultaneously and all three recordings captured ended at the same time, at 21:50:11, or 14 minutes before they concluded in the breath room, this suggested to him there was likely a problem with the hardware although as far as he was aware the equipment was working fine and he had no reason to suspect that it wasn't when he was with Mr. Richard on October 22, 2010. He went on to indicate, consistent with Officer Ferrari, that once the DVD is finalized, everything is locked in.

[29] Officer Joe Ferrari was at all material times in charge of and responsible for maintaining the equipment in the breath room, including the digital recording equipment. He testified that the analog recording equipment was replaced with a digital system at least a year prior to this occurrence and he had no knowledge about any difficulties associated with its use or operation. In particular, he had no record or recollection of any complaint concerning an inability to record properly until this matter was brought to his attention on February 11, 2011. Officer Ferrari produced a log he maintained in regard to his inspections, and in particular indicated that he last checked this piece of equipment on October 5, 2010 and it was working properly.

[30] His inspection procedure was to enter the breath room, install a DVD in the tray and turn the digital recorder on, allowing it to record him while he attends to checking the approved instrument. When he is done, he removes the DVD from the recording tray and reviews it to make sure that it recorded properly. This is what he did to verify the equipment was working properly on October 5, 2010.

[31] In addition to being responsible for the maintenance of the equipment in the breath room, Officer Ferrari is also a qualified breath technician and familiar with the use and operation of the digital recording equipment as part of the taking of breath samples. He provided a description of how the equipment operates. He stated that the practice is to turn the digital recorder on and to insert a single disc into the tray which records the activities in the breath room until such time as the operator stops it and it is removed. Officer Ferrari said there is a separate button that has to be pushed to cause the contents to be saved permanently or "finalized". The disk is then placed in a separate tray as are two other blank disks that are used to make copies from the original finalized disk. Officer Ferrari said it was not necessary to finalize the disk before being able to duplicate and create the two additional copies. He said copies can be made without first finalizing the disk. However, he said the practice is to finalize the recorded disk first before burning the additional copies. When asked if it was possible to edit or cut out portions from the original disk before making copies, Officer Ferrari stated that he was not aware of any software or equipment at the police station capable of doing that.

[32] Officer Ferrari explained that if a problem arises with respect to the recording or operation of the equipment, the officer who discovers the problem is required to notify staff who would in turn instruct him to check on the equipment as he is responsible for maintaining same. He said that he was first informed about a possible problem with the digital recording equipment on February 11, 2011. He attended the breath room and inserted a blank DVD into the single recording tray. He said he pressed the record button and let it run for 90 minutes. He removed the DVD and watched it. He found that it recorded both audio and video continuously and without interruption throughout the entire time. When asked if he was ever informed prior to February 2011 about any difficulties with the equipment, he responded in the negative.

[33] Officer Ferrari was asked if it was his practice to review the DVD after he finished taking samples of a subject's breath in the breath room. He responded, "No...I'd have no reason to review it." When asked if there were any offices available to breath technicians to review the DVD recording following the taking of samples of breath, Officer Ferrari said, "No." When asked if he had access to a private computer to review a DVD recording he responded, "No." When asked if there were any private computers at the police station that could be used by a breath technician to review the DVD after taking samples of breath, Officer Ferrari said, "No" but went on to indicate that there were computers at in other areas of the police station; such as in traffic, but none were located in private offices or designated as one's own computer.

CONTENTS OF THE DVD RECORDING

[34] The DVD recording shows Mr. Richard entering the breath room at 21:36 hours, without incident. He takes a few steps into the room and follows directions as he is told to take a seat. He then turns and sits in a chair. Almost immediately after sitting, he can be seen rubbing his right leg thigh area with the palm of his hand and a large abrasion is clearly visible at his right cheek bone. He later describes a cut above his right eye. The initial exchange between Officer Sonier and Mr. Richard is noteworthy:

Question: Did you wet yourself earlier?

Answer: Oh, when you guys were knocking me down, yeah.

Question: Oh, okay, due to the arrest you soiled yourself?

Answer: Yeah. I tried to hold it but....

[35] Approximately six minutes later, just after Mr. Richard provides his first sample of breath for analysis, he can again be seen sitting back down in the chair at which time he again extends his right leg and starts to rub the upper thigh area repeatedly. During his testimony he was asked why he was doing that. He said it was very sore and he was trying to get the blood flowing to it. In the recording Mr. Richard's looks up at the officer while rubbing his leg and says "Man, you really dinged (sic) my leg, you know that, eh?"

[36] Approximately four minutes later during some questioning in the form of what's commonly referred to as the Alcohol Influence report, Mr. Richard can be seen this time rubbing his shoulders. Some of the questions and answers received are as follows:

Question: Are you hurt at all?

Answer: From?

Question: From anything. Do you have any injuries you're hurt from at work or...or banged your head?

Answer: I have an old dog bite...the only thing that hurts me right now is when you kneed me in the leg.

Question: Okay.

Answer: You hurt me.

Question: Where's your dog bite at?

Answer: (nothing audible, Mr. Richard lifts his arm to find the location of the dog bite.)

Question: When did that happen?

Answer: About three weeks ago.

Question: Did you get a bump on your head or anything?

Answer: Oh, I don't know, I wiped the blood off...it's whatever you guys did.

[37] At or about this time, Mr. Richard again straightens out his right leg and can be seen rubbing the thigh area with his hand.

Question: We'll talk about that in a second. Did you get a bump on your head?

Answer: I must have, I was bleeding after I ran into you.

[38] Mr. Richard was asked about this remark during the trial. He explained that the bump on his head was a result of how he was treated during his arrest.

[39] The DVD ends at 21:51:58, shortly before the second sample of breath was taken for analysis and approximately 14 minutes before Mr. Richard was taken out of the breath room. On consent, it was acknowledged the first sample of breath was taken at 9:39 p.m. and the second sample taken at 10:01 p.m.

[40] Mr. Richard indicated that when he first entered the breath room and saw Officer Sonier there he was uncomfortable. He "didn't think it was proper...because he was the guy who beat the snot out of me, but I wasn't going to say anything."

[41] Mr. Richard described Officer Sonier as being polite and professional for most of the time they spent together in the breath room. His description of Officer Sonier is consistent with the officer's general demeanour in the DVD recording that was played during the trial.

[42] However, Mr. Richard said that even though he was able to provide samples of his breath for analysis, he did have difficulty blowing. This was apparent, from reviewing the DVD. During the first sample, Officer Sonier repeatedly tells Mr. Richard to blow harder and states that he is not blowing hard enough. Mr. Richard said that although Officer Sonier presented as polite and professional early on, his demeanour changed when he attempted to provide the second sample of breath. He said that Officer Sonier became "angrier...like he was on the street. He didn't talk like a police officer. There was no professionalism at all."

[43] Mr. Richard was asked if he ever got an answer to his question or response to his remarks about the injury he sustained to his leg as Officer Sonier had indicated they would "talk about it in a second". Mr. Richard had no recollection. He only recalled that Officer Sonier became angry and less professional as time went on, but he could not recall what was discussed.

[44] When Officer Sonier was asked about this comment, he said that he told Mr. Richard there was physical contact on arrest, but he denied there were any knee strikes.

INJURIES

[45] There is no real dispute in regard to the injuries sustained by Mr. Richard. They consist of; abrasions or what Mr. Richard described as road rash to both cheeks and to his chin, a small cut and abrasion over his right eye that was bleeding, a bump on his head and a very sore right upper thigh which took approximately six weeks to heal. He also had sore shoulders and an involuntary release of his bladder.

EVENTS FOLLOWING RELEASE FROM CUSTODY

[46] The next day, Mr. Richard spoke on the telephone with his son, Wayne Richard. He said that he told his son he had "screwed up" the night before and had a "run-in with the police". Wayne Richard said his father was embarrassed and concerned about work. He came over later and they drove to Wal-Mart. Mr. Richard's son brought a camera with him and while in the parking lot at Wal-Mart he took photographs of the injuries to his father's face. He said this was his decision. His father did not request this. Although Wayne Richard didn't take any photographs of his father's leg, he recalled how his father told him he was "taken down" by the police and it was apparent to him that his father had a sore leg from the time he arrived and observed Mr. Richard "hobbling" to the car. He also recalled his father complaining about his shoulders being sore.

[47] A medical record filed on consent from Dr. David Fisher, a family practitioner, indicated that Mr. Richard went to see him on November 2, 2010 with a concern about anxiety associated with a "D.U.I." Dr. Fisher recommended counselling. The doctor had no notation or recollection of any complaint by Mr. Richard being assaulted or injured during his arrest.

[48] Mr. Richard was asked about why he did not proceed with any complaint. Consistent with his earlier testimony, and that of his son, he said that he was embarrassed, was not proud of his actions and did not want to blame anyone else for what he had done wrong. However, he did add that he was bothered by how he was treated by the police and thought it was excessive. With that, he said that he spoke with a police officer friend to gain his perspective on the matter. Following that discussion, he concluded he would not bother with a formal complaint.

ISSUES AND QUESTIONS OF LAW

[49] The question to be determined is whether the applicant has established on a balance of probabilities that his right to security of person and his right to make full answer and defence have been denied, contrary to s. 7 of the Charter.

[50] As I indicated previously, I received no submissions or law in support of the s. 12 challenge. The cases I looked at briefly under this section appeared to focus more on sentencing, punishment and confinement. In the absence of any submissions and law on this point, I was left with the impression that the relief sought is premised on breaches of s. 7. I am of the opinion the facts of this case are more closely related to issues concerning the security of the person rather than cruel and unusual punishment.

1. Excessive Force

[51] Section 7 provides that "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." The Supreme Court of Canada said in Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177, that security of the person encompasses freedom from the threat of physical punishment or suffering, as well as freedom from such punishment itself.

[52] This freedom from threat of physical punishment must, of course, be viewed in all the circumstances. The facts of this case concern the arrest of the applicant by police officers who were on duty and who were endeavouring to enforce the law. Section 25 of the Criminal Code of Canada provides that a police officer, acting on reasonable grounds, is justified "in using as much force as is necessary" for the purpose of effecting a lawful arrest.

[53] Based on the foregoing, several questions arise in regard to the issue of excessive force; namely:

a) Was Mr. Richard injured on detention or arrest?

b) What was the extent of his injuries?

c) How was Mr. Richard injured?

i) by falling out of the pick-up truck

ii) by being held down and handcuffed

iii) by a knee strike to his leg and blows to back

d) Was the force used reasonable or excessive?

2. Lost Evidence

[54] The right to make full answer and defence requires that the accused have available the full case against him or, to put it another way, full disclosure. In R. v. Rose (1998), 129 C.C.C. (3d) 449, at para. 98, it was stated that the right to make full answer and defence includes, amongst other things, the right to know the case to be met and to have a fair trial. Concurrent with this fundamental right is the requirement or obligation that the crown preserve all relevant evidence in order to meet its obligation to disclose.

[55] In R. v. La (1997), 116 C.C.C. (3d) 97, the Supreme Court of Canada set out an approach that should be adopted in cases of lost or destroyed evidence. This approach was summarized succinctly in the decision of R. v. Satkunananthan, [2001] O.J. No. 1019 at para. 75. The following issues require consideration:

a) What evidence is alleged to have been lost or not preserved?

b) Is the evidence relevant to an issue concerning the elements of the offence or the accused's defence?

i) consider the breath tests (test #2)

ii) consider the Charter application re: excessive force (officer conduct / corroboration of defence allegation and the incomplete statements "We'll talk about that in a second.")

c) If the lost evidence is relevant, did the crown meet its duty to preserve and disclose?

d) Has the crown provided an explanation for the loss or failure to preserve that is satisfactory?

e) Was the evidence lost through unacceptable negligence? (If yes, s. 7 breach)

ANALYSIS

1. Excessive Force

[56] There can be no doubt that Mr. Richard was injured during his arrest. The injuries are not in dispute. Proof of the injury to Mr. Richard's leg and shoulder, while not documented by photographs, is apparent not only from the testimony of the applicant but also from the DVD recording in the breath room and the testimony of Wayne Richard who had an opportunity to observe his father the following morning ambulate to and from his car. Moreover, the testimony of Officers Sonier and Polachuk, although not acknowledging that any injuries sustained by Mr. Richard were occasioned in the manner described by him, took no issue in regard to the nature of the injuries complained of. The officers offered explanations as to how Mr. Richard may have sustained his injuries at the time by initially falling out of his pick-up truck onto the road and then during efforts to keep Mr. Richard on the ground and eventually handcuffing him.

[57] Mr. Richard was a most credible witness. He presented as a no-nonsense kind of guy, a truck driver and a former horseman. He is not the most articulate fellow and did not try to pass himself off as being anything other than a hardworking man who made a terrible mistake. As I indicated, there can be no doubt in regard to the injuries he sustained. The evidence is clear that he was embarrassed about what occurred. He fully understood and expected that the police would be upset and he didn't fault them for that.

[58] Consistent with this observation about his character in context with the events that evening, it is clear to me that Mr. Richard is not a complainer. He did not want to trouble his son with all of this. He spoke to him only because of how he was feeling about what had occurred the night before. He didn't initiate a request for his son to take photographs. That was Wayne's idea to bring his camera. The applicant was most worried about how, to use his words, "he screwed up" and was at risk of losing his job as a truck driver, which did in fact follow. When he attended with his family physician, Mr. Richard complained about being anxious in regard to what the doctor noted was a DUI and recommended counselling. Mr. Richard didn't complain to his doctor about the injuries he sustained. And when Mr. Richard tried to explain the beating or what he described as blows he felt to his back as he lied on the ground, he didn't exaggerate. He said that it lasted "probably seconds...it was just multiple blows...it didn't take long." When Mr. Richard was asked what he thought about the conduct of the police, he simply remarked "I thought it was a little excessive."

[59] After Mr. Richard had an opportunity to reflect on everything that happened, he concluded "I know I did wrong. I didn't want no more trouble. When I lose a race, I'm hard on myself. I don't blame my horse. I blame me."

[60] The only thing throughout Mr. Richard's testimony that wasn't consistent was his statement about the number of beers he drank. During his interview with the police he said that he drank four bottles of beers. In court, he testified to drinking five bottles. But for that, Mr. Richard's detailed account of the events, his careful attention to the proceeding and his responsive answers to the questions when considered in context to all the evidence made it clear to me that he was a candid and frank historian of events as he recalled them and whose version was corroborated in no small way by the DVD recording, his son, Wayne Richard, and his family physician. The fact that he didn't complain about his injuries to his family doctor or how he was treated by the police made a great deal of sense to me. Mr. Richard was most concerned about his poor decision and the prospect of, and eventual losing of, his job rather than how he was treated by the police.

[61] Officer Sonier, on the other hand, presented as an experienced and professional police officer who was polite and well-spoken. I heard described, a persona of an officer who was at all times calm and composed. His description of how he responded to the events that unfolded was as if routine. And with that, Officer Sonier even described Mr. Richard as "charming." Hardly the adjective I would have used from having observed and listened to Mr. Richard in court, let alone having the advantage of having engaged Mr. Richard in the circumstances described. This was a man who smashed through a police barrier, smelled of alcohol, apparently fell out of his truck onto the road and urinated in his pants. Certainly unpleasant or unappealing would have been more suitable adjectives.

[62] It struck me as unusual to expect that an officer, after having sat in his vehicle on an expressway with his partner for several hours watching cars channel off the highway and then having to react suddenly by slamming his vehicle into reverse in order to create some distance between his car and a pick-up truck and avoid an accident with a vehicle that just busted through some barriers, would not have had a more heightened sense of adrenaline than described as he confronted Mr. Richard. Officer Sonier essentially indicated that although he proceeded quickly, after exiting his car, toward Mr. Richard, he at no time yelled or shouted at him but simply requested that he shut the engine off and to exit the vehicle. This kind of self control is, at least, difficult for me to understand, especially when further context is given to it by the officer's own statement about a telephone call he had later with his wife indicating, "We almost paid the mortgage off."

[63] I hold the opinion that the anxiety level was much more closely connected to Mr. Richard's assessment of the situation. I believe the officer was more agitated than he portrayed, and justifiably so. Having said that, I would note that I haven't lost sight of the fact that Officer Sonier is an experienced officer and the manner by which he testified was not inconsistent with the way that appeared on the DVD recording played during the trial. However, his demeanour and emotional reaction in the circumstances described are not all that have caused me concern.

[64] I was also troubled by Officers Sonier and Polachuk's collective inability to describe the fall from the pick-up truck with any detail. Essentially, the officers indicated that Mr. Richard simply fell out the door of his truck at a time when they were standing right there next to him and they were focused only on him. And, it was suggested that that the injuries he sustained, at least in part, arose from the fall. There was no description as to how he may have landed or how the injuries may have been sustained. They were standing right there, next to him and touching him. Both officers apparently tried to stop him from falling, but somehow couldn't. There is no explanation. Simply suggestions about what may have happened, both in respect of the fall and the injuries.

[65] There was nothing in the way of explanation to describe how that fall may have caused a cut above the right eye, abrasion to the right cheek, abrasion to the left cheek, abrasion to the chin, sore shoulders or an injured right thigh. At best, the officers could only offer that in addition to the fall, some injuries may have been the result of their effort to keep Mr. Richard on the ground after he refused to follow commands to stay on the ground. This description of Mr. Richard as someone who would not listen is inconsistent with my observation of Mr. Richard, based not only on his testimony but the testimony of others including Officer Sonier, who described him as "charming" and both Officers Sonier and Polachuk who described him as apologetic and contrite.

[66] I have no doubt that Mr. Richard was cooperative from his initial encounter with Officer Sonier through to the time of his release from custody. It is difficult for me to understand how Mr. Richard could have received the injury to his upper right thigh, in the location described by him and as apparent from the DVD, and to his shoulders generally from apparent pressure attributable to Officer Sonier's knee on Mr. Richard's left shoulder and Officer Polachuk's knee on Mr. Richard's right leg – all while apparently Mr. Richard was lying face down on the ground presumably getting further abrasions to his face. In short, the descriptions provided by the officers were at best unclear and at least inconsistent with the location and extent of at least some of the injuries sustained.

[67] The DVD recording goes a long way as well to support Mr. Richard's testimony about what happened. For example, when Mr. Richard was asked if he wet himself earlier upon entering the breath room, his response was direct and immediate when he stated, "When you guys were knocking me down, yeah." When Officer Sonier asked if he "...had a bump on his head or anything", Mr. Richard stated, "It's whatever you guys did" and "...I was bleeding after I ran into you." These direct responses to questions put to Mr. Richard did not have the air of being fabricated. Contrast these answers to Officer Sonier's response to these remarks, who wanted to talk about the dog bite that was of no consequence and essentially ignored the accused's complaints about being injured by the officer.

[68] Based on the foregoing, and for additional reasons that I will discuss further below under lost evidence, I had difficulty accepting Officer Sonier's account about the circumstances and extent of the force used. I accept Mr. Richard's version of the events which clearly indicates there was excessive force used. The applicant has met his burden proof. His right to security of the person was breached, contrary to s. 7 of the Charter.

2. Lost Evidence

[69] For some unexplained reason, the last 14 minutes of the DVD audio/visual recording was not made available to the accused. Whether it existed and was not preserved or was not recorded in the first instance is unknown. From Officer Ferrari's testimony there is good reason to believe that the equipment was operating properly. Seventeen days earlier he inspected it and there were no reported difficulties or malfunctions afterward through to the date of this occurrence or, for that matter, even beyond until February 11, 2011 when this matter was first brought to Officer Ferrari's attention. From all accounts, there was no reason to believe this equipment failed to record but for the testimony of Officer Sonier which was, at best, equivocal in regard to whether there was a malfunction or failure to record all the activities in the breath room on October 22, 2010. Officer Sonier's explanation in regard to the procedure for recording and subsequent finalizing of the DVD is at odds with the testimony of Officer Ferrari.

[70] First, Officer Sonier said that three DVDs are inserted and record simultaneously with the master being retained and two copies being made available for distribution to counsel after they are finalized. The impression I was left with was that there must have been an error with the equipment because all three disks were recorded at the same time and all three disks concluded at the same time, prior to the second breath test, and 14 minutes before Mr. Richard was taken from the breath room back to a holding cell. Officer Ferrari, however, was clear in his testimony that only one disk records and upon conclusion of the testing that one disk is then finalized by pressing a separate button to finalize the contents which is typically done before two separate disks are inserted so copies may be burned from the master or finalized disk. Officer Ferrari also testified that the original or master disk does not have to be finalized before copies can be made.

[71] I am at a loss to understand why two officers working in the same police department using the same breath room and the same equipment would describe two completely different methods of recording. No explanation was offered. But there is more to be considered. Officer Sonier said that after he was finished in the breath room with Mr. Richard, he removed the DVD and went to his office to review it, and as a result, held the opinion that the DVD may not have captured everything. He said that he reported this to another officer who, in turn, would be required to bring his concern to the attention of Officer Ferrari as the maintenance officer. Officer Ferrari received no such information. The first he heard about this problem was on February 11, 2011. Moreover, Officer Sonier made no notation about any difficulty with the recording on October 22, 2010. And there is more. Officer Ferrari was asked if he ever reviews the recording after exiting the breath room following the completion of breath tests. He said, "No. Why would I?" He also said neither he nor any breath technician has a private office to review the recording.

[72] When I reflect on Officer Sonier's testimony and the way he presented on that portion of the recording in the breath room that was not lost, he can be described in no other way than professional, articulate and careful. This persona is at odds with the incomplete and unclear practice and reporting described above. Officer Sonier also wanted to leave the impression that perhaps the equipment was malfunctioning because it was new equipment that came in shortly before Mr. Richard's test and therefore may not have had "all the bugs worked out". Officer Ferrari testified on September 7, 2012. He indicated that the new digital recording equipment was installed approximately three years earlier, therefore placing it in operation for approximately one year prior to Mr. Richard's test.

[73] Counsel for the crown argued that Officer Sonier may have just been mistaken about when he reviewed the DVD on the basis of a line of cross-examination Mr. Costaris pursued with Officer Sonier, about when he reviewed the DVD in February 2011, after the defence raised the issue of disclosure. During the cross-examination, counsel for the defence pointed out that even after reviewing the disc again in February, 2011, Officer Sonier again failed to tell anybody about a prior concern he had with the equipment following his review on October 22, 2010. In response, Officer Sonier attempted to clarify by indicating that he was not certain there was a problem on October 22, 2010 and that is why he did not make a note about it; however, he maintained that he did in fact tell another officer about it. What was troubling about this answer was that even if it was a point of clarification, there was again no evidence to indicate that Officer Sonier told his supervisor or anyone else in February 2011, that he encountered a problem on October 22, 2010.

[74] The last 14 minutes of the recording would have contained information relevant to not only the substantive charge with respect to the procuring of the second breath sample in compliance with the statutory framework, but more importantly would have been relevant to address relevant facts relied on by the defence as part of its Charter application on the issue of excessive force. Mr. Richard said that Officer Sonier's attitude and professionalism changed during the second test when he was again told that he was not blowing hard enough. There is no evidence to suggest that Mr. Richard was feigning or trying not to blow hard enough. There was no evidence adduced to suggest that several efforts were required to obtain a sample. In fact, there is a clear indication during the first test that he was struggling to blow hard enough but nevertheless did provide a suitable sample on the first attempt.

[75] Mr. Richard testified that he was a little uncomfortable when he entered the breath room and saw Officer Sonier there. He did not want to agitate Officer Sonier. He testified about how, during the second breath test, Officer Sonier's general disposition and professional manner changed to agitation and anger. It is important to appreciate, at this juncture, that during the alcohol influence report, Mr. Richard not only commented about his injuries and how they were caused but Officer Sonier responded that they would "talk about that in a second". Mr. Richard had little recollection about what was discussed afterward but recalled how the Officer Sonier's general mood and demeanour changed to being unprofessional. Officer Sonier could only offer, in cross-examination, that he told Mr. Richard there was some physical contact but there were no knee strikes. These observations by Mr. Richard and remarks by Officer Sonier would presumably have been made during the 14 minutes that were not captured on the DVD.

[76] Unfortunately, there are no notes in regard to what was discussed or what occurred during that period of time and, while the applicant and Officer Sonier were available for cross-examination, I have already outlined the extent of their recollection. It is interesting to note that the questions and answers I have set out above, in regard to the exchange between Officer Sonier and Mr. Richard in the breath room, included references by Mr. Richard to having been knocked down, kneed in the leg, hurt and bleeding at the hands of the police and were remarks made between 21:36 and 21:55 or within the span of 15 minutes. I believe the lost 14 minutes of recording would have contained relevant evidence that ought to have been preserved. As Mr. Costaris put it, "it's a cliff hanger" not knowing what was said during the 14 minutes after Officer Sonier's said "we'll talk about it later".

[77] The crown has essentially offered no explanation in regard to what happened. I am left with speculation about a variety of considerations, including the quality of the disks, a malfunction in the machine, or an un-explained error associated with copying the disks. None of these serve as explanations about what happened and the memory of the two witnesses who were present, one being a police officer without any notes, proved to be of limited value.

[78] In the absence of any explanation and having unreliable evidence in regard to the use and operation of the equipment, arising from the inconsistent descriptions from Officers Sonier and Ferrari, I am satisfied there was at least unacceptable negligence associated with the loss or failure to preserve evidence I believe to be relevant. As such, there has been a breach of the accused's s. 7 Charter right.

REMEDY

[79] The crown argued that in the event of a breach, an appropriate remedy would be to exclude the breath tests and make a finding of guilt on the charge of impaired and reduce the sentence to the mandatory minimum. The crown asserted there were aggravating circumstances, namely: crashing through the barrier causing property damage and the elevated blood alcohol content of 150.

[80] I am satisfied beyond any reasonable doubt that Mr. Richard's ability to drive his motor vehicle was impaired by the alcohol he consumed, although that impairment may have been slight. The compounding effect of being tired is what likely caused him to nod off at the wheel but that doesn't negate the fact his ability to drive was at least slightly impaired by alcohol.

[81] The defence argued that anything other than a stay would be tantamount to condoning unacceptable police conduct.

[82] A stay of proceedings is an exceptional remedy which is to be used as a last resort after all other available remedies have been considered. (R. v. Tran, 2010 ONCA 471, [2010] O.J. No. 2785 (C.A.) at para. 85) I do not see the merit in excluding breath samples. There is really no connection between either breach or the procuring of breath samples. It seems to me that to do so is really a matter of convenience in an effort to avoid granting a stay on the basis that because it is a last resort. I do not interpret the court's direction to consider other remedies first as being akin to granting a remedy that does not accord with the circumstances of the case, although I concede it may nevertheless be an available alternative in a suitable case. A reduced sentence is certainly an option, which is closely connected to the offence and its effect can be considered in the context of the findings of breach. However, a reduction in sentence would equate to little more than a nominal reduction in the amount of the fine insofar as I am without authority to interfere with the mandatory minimum fine and one year driving prohibition. The circumstances related to these breaches, in particular in the context of the excessive force used, require a remedy beyond a modest reduction in the amount of the fine.

[83] In R. v. Tran, supra, at para. 87, the court suggested that before a stay is granted it may be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interests that society has in having a final decision on the merits. While it is true that impaired driving has routinely dealt devastating blows to untold masses, no one was harmed as a result of Mr. Richard's driving. And, as I have indicated, while he may have been only slightly impaired from the consumption of alcohol, I am also of the opinion that he was equally tired. Fortunately, he managed to bring his vehicle to a stop safely after he broke through the barriers. Another finding of guilt for impaired driving with minimal property damage would place this matter in the company of dozens of similar convictions dealt with by this local court in any given week.

[84] By contrast, I am concerned about the public confidence in the administration of justice in circumstances such as this. What is troubling to me is the fact that Mr. Richard at no time presented himself in an aggressive manner. Both officers said that he apologized and one said that he was contrite. It would appear from Mr. Richard's account that the knee strike to his leg was administered a considerable period of time after Officer Sonier had an opportunity to speak with Mr. Richard and if his emotions were heightened from the time of the initial encounter, he certainly had an opportunity to calm down as he left Mr. Richard with Officer Polachuk for several minutes as he went to his police car. However, it was when he returned and issued a directive to Mr. Richard to get on the ground when the assault took place. Mr. Richard said he was just leaning down to get on the ground as instructed when he was suddenly kneed by Officer Sonier and thereafter manhandled before being handcuffed.

[85] Although the facts of this case are not as egregious as those in Tran, the conduct at issue is not what the public ought to expect from the police. At para. 106 of Tran, the Court of Appeal pointed out that it is essential for the court to distance itself from this kind of misconduct. In the circumstances, I am inclined to believe that a stay of proceedings would be a suitable remedy in regard to the breach from the use of excessive force. If there can be any doubt as to the suitability of a stay of the proceeding in this regard, I am satisfied on the whole of what I have had to consider, including the non-disclosure of relevant evidence that was either lost or not preserved, that a stay of this proceeding is the only just remedy. In the absence of the finding of excessive force, I would not have concluded that a stay would be warranted. There would have been merit in the crown's position that the accused would have nevertheless received the benefit of a fair trial although it may not have been a perfect trial. However, in light of the finding of excessive force and the context given to that allegation in no small measure from a review of the DVD, the loss of this evidence became more significant in putting forward the applicant's defence which included a breach of his constitutional rights.

[86] For all the foregoing reasons, I believe the public confidence in the administration of justice is best served by a stay of this prosecution, which is hereby ordered.

Released: November 9, 2012

Gregory A. Campbell, OCJ