Court File and Parties
Court File No.: Halton 14-641 Date: December 7, 2016 Ontario Court of Justice
Between: Her Majesty the Queen
— And —
Aaron Tyler Pickard-Gorr
Before: Justice D.A. Harris
Heard on: March 15, 16, 17 & 18 and October 11, 2016
Reasons for Judgement released on: December 7, 2016
Counsel:
- Laurie Jago, counsel for the Crown
- Stephen Darroch, counsel for the defendant
HARRIS J.:
INTRODUCTION
[1] Aaron Tyler Pickard-Gorr has been charged with four offences, all of which are alleged to have occurred in Oakville on March 3, 2014. More particularly, he is accused of:
- assaulting Ashley Prosser,
- confining Ashley Prosser,
- assaulting Les Bayliss, a peace officer in the execution of his duties, and,
- assaulting Mark Colling with a weapon, to wit a steel-toed shoe.
[2] Crown counsel elected to proceed summarily. Mr. Pickard-Gorr pled not guilty and a trial was held.
[3] Mr. Pickard-Gorr had applied for an order that the proceedings against him be stayed pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms.
[4] Counsel agreed that we should proceed with a "blended" hearing in which all of the evidence would be applicable to both the Charter application and to the trial. The stay application would only be germane if I convicted Mr. Pickard-Gorr in any event.
[5] Eight witnesses were called by Crown counsel initially. These were Ashley Prosser, Police Constables Lance Martin, Damian Willis, Leslie Bayliss and Bradley Allen, Special Constables Mark Colling and Craig Selles, and Staff Sergeant Amy Knibb. Detective Constable Phil Campbell testified in reply.
[6] Mr. Pickard-Gorr testified in his own defence.
[7] The first issue before me is whether the Crown has proven Mr. Pickard-Gorr guilty beyond a reasonable doubt.
[8] The Crown witnesses testified that he committed the offences. He testified that he did not. Accordingly, this case turns, in large part, on my findings with respect to the credibility and the reliability of these witnesses.
[9] In addressing that issue, I am guided by the Supreme Court of Canada decision in R. v. W. (D).
[10] If I believe the testimony of Mr. Pickard-Gorr, I must find him not guilty.
[11] Even if I do not believe his testimony, if it leaves me with a reasonable doubt, I must find him not guilty.
[12] Even if his testimony does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.
[13] In determining this, I must keep in mind that Mr. Pickard-Gorr, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities"[1].
[14] This is a tough standard and it is so tough for very good reason. As Cory J said in R. v Lifchus: "The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted"[2].
[15] I did not believe Mr. Pickard-Gorr. His evidence did not leave me with a reasonable doubt. My reasons for this are as follows.
[16] On at least one occasion, and sometimes several occasions, his evidence was inconsistent with that of each and every other witness.
[17] His evidence was inconsistent with what I heard listening to the recording of his call to 911.
[18] It was inconsistent with what I saw watching the video-recordings of his actions in the police booking room and the cell.
[19] It was inconsistent with the medical reports filed by him.
[20] It was often inconsistent with common sense.
[21] The following are examples of his inconsistencies.
[22] Mr. Pickard-Gorr was adamant that the three police officers entered his apartment building through the rear door and that they took him out of the building through that same door. They then placed him in a police car which was in the rear parking lot. He even referred to seeing the blue recycling bins that were there.
[23] Police Constables Martin, Willis and Bayliss all testified that they each parked their police cars on the street. They each entered by the front door. They all left through that door taking Mr. Pickard-Gorr with them.
[24] Their version makes sense. One usually enters a building by the front door. It makes extra sense for visitors to an apartment building to do so. They do not have keys. The front door is the most likely place for them to gain access. It also makes sense for police officers to leave their vehicles parked on the street rather than in a parking lot where the layout is unknown to them.
[25] Finally, all three officers described passing through a particular gate where Mr. Pickard-Gorr created difficulties by kicking the gate shut. Mr. Pickard-Gorr acknowledged that they would only have passed through that gate if they had used the front entrance to the building. He was adamant that they had not passed through that gate. He suggested that police officers had been to the apartment building many times, although he could not say if the three that came that night had been there before. Despite this suggestion by him, the only logical inference that I draw is that the three policemen all knew about the gate and commented on what Mr. Pickard-Gorr did to it because they had gone that way and seen those events.
[26] Mr. Pickard-Gorr was adamant that a police officer fractured one of his ribs that night. Mr. Pickard-Gorr could feel the two faces of the broken bone grinding against each other.
[27] This is contrary to the medical records produced by him.
[28] The cryptic notation in the Discharge Diagnosis box on the Emergency Record from the hospital reads "l rib #, hairline". No one was called to explain who wrote this, what it meant or what it was based on. The report from the X-ray Department stated the following results for an x-ray of the left chest area:
There is healing left mid clavicular fracture. The bony thorax is otherwise grossly unremarkable. Specifically there is no displaced rib fracture.
[29] A subsequent letter from the radiologist clarified that the word "healing" meant that the mid-clavicular fracture was dated, not recent. This was consistent with Mr. Pickard-Gorr's evidence that he had suffered that injury on a previous occasion when he rolled an all-terrain vehicle.
[30] A subsequent x-ray arranged by Mr. Pickard-Gorr on November 18, 2014 provided the following results:
No fracture is seen in the left ribs. The lungs are clear and normally aerated. The heart, mediastinum and the rest of the bony thorax are normal.
[31] An ultra-sound conducted on May 28, 2015 (more than 20 months later) resulted in the following report:
Ultrasound on the left lower chest wall reveal significant irregularity of the costal cartilage in this region and I believe that this represents a fracture of the cartilage in this region with overriding of healed fracture fragments in this region.
[32] At best, this indicates a fracture of the cartilage. Even assuming that the injury disclosed in that later test was caused that night, and assuming that it was in fact a fracture of the cartilage, this is a far cry from a bone broken so badly that one could feel the two faces of the break grinding against each other.
[33] In addition, Mr. Pickard-Gorr testified that this injury was so painful that he could not sit on the bench in the booking area.
[34] However, the video recording of his cell shows how he was able to bang hard on his cell door with one hand, an action that would have put much more stress on any broken rib than would the act of sitting down. When asked about this during cross-examination, he stated that he did have a high pain tolerance. That comment was clearly inconsistent with his statements referred to above that he was in such intense pain that he could not sit on the bench.
[35] Further, the emergency room doctor offered him ibuprofen 600 mg. for pain relief. This is a non-prescription pain killer and Mr. Pickard-Gorr refused to take even that. He told hospital staff that he did not trust the police. This was bogus. He not only turned down the offer of taking medication "to go", he also turned down the opportunity to take the proffered medication there in the presence of the doctor where no police officer could tamper with it.
[36] Further, during cross-examination he gave two other explanations. One was that he did not want medication, he wanted documentation of his injury. The other was that he did not want it because it might knock him out. He also stated that he did not know what ibuprofen was. Specifically, he did not know that it was a pain killer. That leads me to ask myself what else would he expect a doctor to give him to deal with his pain. Another question is, why did he not ask the doctor what it was.
[37] After considering all of his competing explanations and all of the other evidence, the only reasonable inference I draw is that he turned down the medication because he did not need it and because he chose yet again to be difficult with everyone that he came into contact with that night.
[38] Mr. Pickard-Gorr testified, and produced an affidavit[3] stating that he was punched and hit up to 30 times by several police officers who used their hands, feet and knees. He was struck all over his body including his head, midsection, back, hips, legs and thighs. While being arrested, he was wrestled to the ground and slammed down violently. At the police station, several officers jumped on him and violently wrestled him down and threw him on a bench. He suffered many injuries including bruises, cuts and scrapes. There were bruises everywhere.
[39] The photographs produced by Mr. Pickard-Gorr show only spots of slight redness, perhaps light bruising. This is in areas where the police stated that they had held Mr. Pickard-Gorr tightly or placed a knee on him to restrain him. The photographs are much more consistent with the police evidence than that given by Mr. Pickard-Gorr.
[40] The video recordings from the police station also belie the claims made by Mr. Pickard-Gorr.
[41] He testified that he was pushed into the wall in the booking area such that his head banged off the wall. While I saw him pushed into the wall, I did not see his head bang off that wall while watching the video. All of the police officers present denied that his head banged off the wall.
[42] He testified that when they placed him on the floor in his cell, his head hit the toilet. Again, I did not see that when watching the video. Again, the police witnesses all testified that his head did not hit the toilet.
[43] His evidence as to why he called 911 was inconsistent. It was also inconsistent with the contents of the call itself.
[44] He testified that he called 911 because he had been assaulted. Then he added that he was also concerned that Ms. Prosser might hurt herself. He did not call for police but for an ambulance.
[45] Actually, when asked by the 911 operator if he needed police, fire or ambulance, he answered "Um, I'm not sure".
[46] He went on to say "My girlfriend is losing it" and then, "and she just punched me in the face".
[47] When asked, he said that he did not need an ambulance but that he thought that she did and she was about to walk out of his apartment.
[48] When asked what her injury was, he replied, "There's nothing obvious. She needs the stability support because she's fucking losing it".
[49] At this point I make the observation that listening to the recording I was left with the impression that if anyone was losing it, that person was Mr. Pickard-Gorr.
[50] Ms. Prosser can be heard crying in the background and saying repeatedly "Leave me alone". Mr. Pickard-Gorr stated, "I am holding on to her jacket". He stated that he was concerned that she might hurt herself but when asked why he thought that the phone call was disconnected.
[51] When the 911 operator succeeds in calling back, there was further conversation.
[52] Mr. Pickard-Gorr stated that no weapons were involved. During the trial he testified that she threatened him with a knife. He said that he did not mention it to the 911 operator because he did not want to get Ms. Prosser in trouble. However he testified during cross-examination that it was the knife that made him worry that she might hurt herself and it was the knife that led him to call 911. If that were true, that should have been mentioned to the 911 operator.
[53] He also told the operator that they had not used any drugs. During the trial he testified that he did not want to tell her that he had smoked a joint before going to the bar. At one point during cross-examination, he said that marihuana was not a drug.
[54] When asked a second time by the operator what apartment Ms. Prosser had gone to, Mr. Pickard-Gorr replied testily, "Two, like I fucking told you". When asked if that was a friend or neighbour, he replied, "Yes, yes, you fucking think I'm going to let her go to a fucking person I don't know".
[55] When asked by Crown counsel if he was mad when he said these things, he initially agreed but then changed that to, "No, I was irritated". When Crown counsel suggested that he was irritated with everyone that he dealt with that day, he disagreed.
[56] I also noted that irritation on occasion in both the tone and content of some of his replies to Crown counsel. This included his observation that "opinions are like assholes, everyone has one".
[57] I also note that this persistent irritation with and belligerence toward everyone he dealt with that night is consistent with the observations Constable Allen made of Mr. Pickard-Gorr at the hospital. Constable Allen described him as belligerent and loud. He felt he was entitled to be seen before other patients. He yelled at the nurses. He was being a jerk. Even Mr. Pickard-Gorr admitted in his evidence that he was mad and wanted everyone to know so he got loud. He claimed to have apologized to one lady before he left. Constable Allen did not see him do that.
[58] I also note that his persistent irritation with and belligerence toward everyone he dealt with that night is inconsistent with his claim to have been pouring his heart out to Ms. Prosser that night as well as his claim that he was the peace-maker between Zack and Yuri.
[59] A few last inconsistencies in his evidence include the following.
[60] Whatever his true reason for calling 911, he never explained that to the police officers when they arrived. All of them testified that he did not say that she assaulted him. He did not say that she had threatened him with a knife. He did not say that he thought that she needed help. He only went so far as to say that they had argued. Further, he may have shown one of them a small scratch on his neck.
[61] In any event, he only became agitated when he realized that the police were only taking him into custody and not arresting her too. That of course was inconsistent with the suggestion that he had called 911 to get her help. It was also inconsistent with his claims that he had not wanted to get her into trouble.
[62] Finally, during examination in-chief he said that he played the music fairly loud, He was "kind of pissed off" and decided to crank it up, maybe annoy Ms. Prosser. During cross-examination he denied doing this to annoy her.
[63] The large number of the inconsistencies in his evidence left me with the impression that Mr. Pickard-Gorr was capable of saying almost anything and in fact capable of saying it with apparent conviction, so much so that I am not sure that he did not believe everything that he said. But whether he believed what he said or not, he was totally unreliable as a witness.
[64] I am satisfied that he was intoxicated that night. He was in fact intoxicated to the point where his observations and interpretations of what happened were not reliable.
[65] Mr. Pickard-Gorr testified that he could go a long time without drinking but when he did drink, he could go overboard.
[66] He testified that he started that evening by smoking a marihuana joint.
[67] That night at the bar, he drank three or four pitchers of beer and four or five shots of some fruit drink. Back home at the apartment he drank more beer and one rye and ginger.
[68] According to Ms. Prosser he drank even more than that. She said that he drank most of the bottle of whiskey.
[69] All of the police witnesses testified that he appeared to be intoxicated. They varied in their assessment of how drunk he was, but they all agreed that he was intoxicated.
[70] Listening to him on the 911 recording and watching him on the various video recording at the police station, I noted that he appeared to be intoxicated.
[71] So as I stated above, I was satisfied that he was in fact intoxicated to the point where his observations and interpretations of what happened were not reliable.
[72] I also note that Mr. Pickard-Gorr had ample motive to believe that the events occurred in the manner that he related to the court.
[73] I am not taking his prior criminal record into account in my assessment of his credibility.
[74] For all of the above reasons, I did not believe Mr. Pickard-Gorr and his evidence did not leave me with a reasonable doubt.
[75] That is not the end of the matter however. I must still determine if, after considering all the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt. If not, I must acquit.
[76] I will deal firstly with the charges of assault and confinement involving Ashley Prosser.
[77] Ashley Prosser testified that she and Mr. Pickard-Gorr were living together at the time.
[78] That night was the final night for the restaurant/bar where she had been working. She worked that final shift. Mr. Pickard-Gorr attended along with two friends of theirs, Zack and Angela. All of them were drinking. They were all intoxicated by the time that they all returned to the apartment. They continued drinking there.
[79] At some point they were joined by two neighbours, Yuri and Irene. Disputes arose between various parties. Eventually all of the guests left. By this time Mr. Pickard-Gorr was angry and becoming increasingly more intoxicated.
[80] She left to go to bed. He turned music on loud. She asked him to turn it down or off. He turned it up instead. She went back to the bedroom and closed the door.
[81] He swung the door open hard and came in screaming. He got on top of her on the bed taking hold of her arms and putting a knee on her. He was screaming loudly that he could "fuck her up". She begged him to get off of her and eventually he did.
[82] She got up and got dressed. She planned to go out for a walk and give him time to calm down. He came up behind her and grabbed her in a bear-hug. She asked him to stop but he did not. She struggled with him and yelled at him.
[83] He took her arm and swung her onto the ground. He got on top of her, put his hand on the right side of her head and pushed it down onto the floor. His other arm was pinning her arms. His knees were to her side. He yelled insulting and threatening things at her.
[84] She fought back and scratched him on his neck with her fingernails.
[85] At some point he got off of her and went into the kitchen. He took out a knife and held it towards her saying that if she wanted to stab him, she should go ahead and do it.
[86] She said that she was going to leave and started towards the door. He grabbed her and told her she could not leave. He screamed insults in her face. She pushed him away and slapped his face.
[87] He then accused her of assaulting him and threatened to call the police. Then he did call 911.
[88] She tried to leave but he blocked her way. Then she did get out and she fled to the apartment of Yuri and Irene. They met her in the hallway and took her in.
[89] I believed Ms. Prosser.
[90] She certainly had her frailties as a witness.
[91] However, she admitted all of these frailties quite candidly.
[92] She admitted that she had been taking anti-depressants and had weaned herself off of them only two weeks before these events.
[93] She admitted that she had been drinking heavily that night and that she was intoxicated. She admitted that this had affected her memory of the events.
[94] She admitted that she had scratched Mr. Pickard-Gorr with her fingernails and that she had slapped him.
[95] She admitted stealing alcohol from her employer that night. With respect to that, I note that while Mr. Pickard-Gorr made much of her role in the theft, he made no reference to the fact that he was a knowing party to any theft and that he had consumed some of the stolen alcohol.
[96] In her favour, I note that her evidence was consistent with the content of the 911 call. I also observed her to be crying in court while that was being played.
[97] Her description of Mr. Pickard-Gorr and his behaviour that night is consistent with that of everyone else who dealt with him.
[98] Her behaviour with the police was consistent with that of a victim.
[99] She displayed no animus toward Mr. Pickard-Gorr. She did not call the police that night. He did. In court she appeared to be trying not to overstate her allegations against him. There was no apparent reason for her to fabricate her evidence.
[100] Finally, her evidence was internally consistent.
[101] Taking all of those factors collectively into account, I believed Ms. Prosser. I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Pickard-Gorr assaulted Ms. Prosser and that he confined her. I find him guilty of those offences and convictions are registered.
[102] With respect to the alleged assault on Constable Bayliss, counsel for Mr. Pickard-Gorr conceded that Constable Bayliss was acting in the execution of his duties at the time. The issue is whether Mr. Pickard-Gorr deliberately wrapped his legs around the police officer's legs or became accidentally entangled with him.
[103] Mr. Pickard-Gorr stated that it was an accident, but as I stated above, I did not believe him and his evidence did not leave me with a reasonable doubt.
[104] Constables Bayliss and Martin both testified that Mr. Pickard-Gorr had deliberately wrapped his legs around the legs of Constable Bayliss. He had done this in a manner that could not have been an accident. Constable Willis testified that he did not see what Mr. Pickard-Gorr had done but that his actions brought the three of them to the ground.
[105] I believed the police officers.
[106] They all indicated in different words that Mr. Pickard-Gorr was not the first belligerent drunk that they had dealt with. On the contrary, this was all in a night's work for them.
[107] They all testified that they had no problem with him at first and that he only began acting up when he realized that they were not taking Ms. Prosser into custody too.
[108] They all admitted striking Mr. Pickard-Gorr that night.
[109] Constable Bayliss testified that when Mr. Pickard-Gorr first wrapped his legs around him, he punched Mr. Pickard-Gorr twice in the left midsection or stomach. His purpose was to make Mr. Pickard-Gorr release his hold on the officer. He did not see any other officer strike Mr. Pickard-Gorr. He did see Constable Willis put his knee on Mr. Pickard-Gorr's knees to stop him from kicking.
[110] Constable Martin testified that he tried to pry Mr. Pickard-Gorr off of Constable Baylis but failed in this. He then used his knee to strike Mr. Pickard-Gorr. He aimed for the upper thigh but his target was moving and he struck the right side near the hip or abdomen area. He did not see Constables Bayliss or Willis strike Mr. Pickard-Gorr.
[111] Constable Willis testified that later on, Mr. Pickard-Gorr attempted to kick him and he punched Mr. Pickard-Gorr once in the right side before grounding him. He then placed his shin over Mr. Pickard-Gorr's leg to prevent him from kicking any more. This was successful. When asked, he said that he did not see Constable Bayliss punch Mr. Pickard-Gorr several times in the left side.
[112] Counsel for Mr. Pickard-Gorr commented in his argument on the fact that not one of the officers saw a blow delivered by a fellow officer. I can say that this is not the first trial I have presided over in which this has taken place. Selective blindness on the part of police officers is definitely not something that I approve of. Having said that, after reviewing my notes carefully, I am far from satisfied that this is one of those cases.
[113] On one occasion only, Constable Bayliss threw two punches in quick succession. On one occasion, Constable Martin delivered a single knee strike. On one occasion, Constable Willis delivered one punch. Given the respective locations of the three officers at the time, the imperfect lighting there and the dynamic nature of the circumstances in which these were delivered, it could have been possible for them to have missed seeing the actions of the others.
[114] I also note that while Constable Bayliss did not see the above actions by Constables Martin and Willis, he did see Constable Willis use his knee to pin Mr. Pickard-Gorr's leg, just as Constable Willis had also described it.
[115] There is one last point. The details of the assault on Constable Bayliss are beyond invention. The only way that three police officers gave consistent stories about these events is that they actually happened. Had they wished to fabricate, they could have more easily come up with something much more damning than this.
[116] Accordingly, I accept the evidence of the three police officers. I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Pickard-Gorr assaulted Constable Bayliss while he was in the execution of his duty. I find him guilty of that offence and a conviction is registered.
[117] With respect to the alleged assault on Special Constable Colling, I make the following observations.
[118] I am satisfied on the evidence that Mr. Pickard-Gorr did something that led the police officers present to subdue him. In the process of that Constable Colling was struck on the shin by Mr. Pickard-Gorr's foot which was covered by a steel-toed boot. Special Constable Colling and others present believed quite reasonably that Mr. Pickard-Gorr had deliberately kicked Special Constable Colling. They might well be correct. After reviewing the evidence, including the video recording however, I am not satisfied beyond a reasonable doubt that Mr. Pickard-Gorr deliberately kicked him.
[119] He is entitled by law to the benefit of that doubt and the charge is dismissed.
[120] I will leave to another day the question of whether a steel-toed boot qualifies as a weapon in these circumstances. I believe that I understand the reasoning behind the argument that it is. However, I believe that the same reasoning could be applied to any footwear. Be that as it may, I do not need to answer that question today and I will not do so.
[121] Having found Mr. Pickard-Gorr guilty of three offences, I must now address the application to stay the proceedings.
APPLICATION FOR STAY OF PROCEEDINGS
[122] This application was originally based on an allegation that the police officers had infringed Mr. Pickard-Gorr's rights by using excessive force on him. That application was doomed to failure from the start. To succeed it would be necessary for Mr. Pickard-Gorr to prove his allegation on a balance of probabilities. That could only happen if I believed his testimony. If I did that however I could not be satisfied that the Crown had proven its case against Mr. Pickard-Gorr and I would have had to dismiss the charges. That of course would have left nothing to be stayed.
[123] However, in mid-trial, counsel for Mr. Pickard-Gorr raised an alternate basis for the application to stay the proceedings. He argued that Mr. Pickard-Gorr's right not to be arbitrarily detained as guaranteed by section 9 of the Canadian Charter of Rights and Freedoms had been infringed. He based this on the fact that Mr. Pickard-Gorr was not taken before a justice of the peace for his bail hearing within 24 hours of his arrest.
[124] I am satisfied that Mr. Pickard-Gorr's rights as guaranteed by sections 7 and 9 of the Charter were infringed here.
[126] A person who is detained by police for approximately 30 to 36 hours is clearly deprived of the right to liberty.
[127] Section 503(1) of the Criminal Code, requires that, where a justice is available, a person detained in custody must be taken before a justice without unreasonable delay and in any event within 24 hours of arrest.
[128] I am satisfied that Mr. Pickard-Gorr was taken before a justice without unreasonable delay but more than 24 hours after his arrest. So his continued detention contravened section 503(1). This clearly is not in accordance with the principles of fundamental justice.
[129] Accordingly I am satisfied that Mr. Pickard-Gorr's section 7 rights were infringed.
[131] Once Mr. Pickard-Gorr's detention exceeded the outer time limit of 24 hours, that detention was in contravention of section 503(1). A detention not authorized to by law is arbitrary and accordingly infringed his section 9 rights.
[132] Counsel for Mr. Pickard-Gorr requested a stay of proceedings as a remedy.
[133] I note however that he expressly did not argue this very strenuously. In my view this was a wise decision on his part.
[134] A judicial stay of proceedings is an exceptional remedy reserved for the clearest of cases.
[135] These cases generally fall into two categories:
where state conduct compromises the fairness of an accused's trial (the "main" category); and
where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category).[4]
[136] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:
There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome;
There must be no alternative remedy capable of redressing the prejudice; and
Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interest that society has in having a final decision on the merits.[5]
[137] Where the residual category is engaged, a court will generally find it necessary to perform the balancing exercise referred to in the third criterion. The issue is not one of concern about continuing prejudice to the applicant by proceeding with the prosecution. Rather, the concern is for the integrity of the justice system.[6]
[138] The delay in taking Mr. Pickard-Gorr before a justice did not result in evidence being obtained by the police. It did not otherwise assist the prosecution or prejudice Mr. Pickard-Gorr's ability to defend the charges made against him. Accordingly, the case before me falls into the residual category of cases: state conduct that contravenes fundamental notions of justice, which undermines the integrity of the justice system.
[139] In the circumstances of the case before me, I am not satisfied that a stay would be an appropriate remedy. I come to this conclusion because of the following factors.
[140] As I stated above, while Mr. Pickard-Gorr was taken before a justice more than 24 hours after his arrest, I was satisfied that he had been taken before the justice without unreasonable delay. To understand that, it is necessary to look at what happened here.
[141] Mr. Pickard-Gorr was arrested at 2:58 a.m. He arrived at the Central Lock Up at 3:23. In response to his complaints regarding his ribs, he was taken to hospital. EMS arrived at the police station at 3:46 a.m. They left the police station with Mr. Pickard-Gorr at 3:55 and took him to hospital. Police officers brought him back to the station at 6:02 a.m.
[142] As per Halton Regional Police Service policy the investigation was turned over to Detective Constable Campbell of the Domestic Violence Unit. He began his shift at 6:00 a.m. He read the occurrence report, the statement of Ms. Prosser and the notes of Constables Martin, Willis, Bayliss, Allen and Palmer[7], and Special Constables Selles and Colling. That took about one hour. He arranged for Ms. Prosser to attend at the police station and then he conducted a formal interview with her between 9:10 and 9:59 a.m.
[143] He wanted to speak to Mr. Pickard-Gorr. The information he received from Mr. Pickard-Gorr might well be pertinent to his decision whether to recommend that Mr. Pickard-Gorr be released or held for bail. He could not interview him immediately however because the Special Investigations Unit had become involved in response to Mr. Pickard-Gorr's complaint that the police had beaten him up. Once the S.I.U. invoked their mandate, the Halton Police had to wait until they were done. They finished interviewing Mr. Pickard-Gorr at 12:06 p.m.
[144] In the meantime, Detective Constable Campbell arranged for a scenes-of-crime officer to take photographs of Ms. Prosser.
[145] He spoke to Mr. Pickard-Gorr at 12:53 p.m. He advised him that, as a result of information learned during the interview with Ms. Prosser, there would be a further charge of confinement. He then read Mr. Pickard-Gorr his rights to counsel again. Mr. Pickard-Gorr asked to speak to a lawyer. Detective Constable Campbell called duty counsel at 12:58. Other staff facilitated Mr. Pickard-Gorr speaking to duty counsel.
[146] Detective Constable Campbell interviewed Mr. Pickard-Gorr from 1:34 p.m. until 1:41.
[147] He then spoke to his sergeant who decided that Mr. Pickard-Gorr should be held for a bail hearing.
[148] He understood that the Justices of the Peace presiding over the bail hearing court in Milton would not accept new cases after 2:00 p.m. However the sergeant did call the courts to see if Mr. Pickard-Gorr could get into court that day. They could not get Mr. Pickard-Gorr to Milton until well after 2:00 p.m. They still had to process him and prepare a bail brief before transporting him. They were told that he could not have a bail hearing that day.
[149] Detective Constable Campbell spoke to Mr. Pickard-Gorr again at 3:05 p.m., this time in regard to the bail hearing report. He listed his mother as a possible surety and included her contact information.
[150] Detective Constable Campbell then called the mother and let her know that a bail hearing would take place the following morning and told her where it would take place.
[151] Mr. Pickard-Gorr was in fact released the following afternoon at 3:15 p.m. upon entering into a Recognizance with one surety. The surety was his mother who had come to court from her home in Oshawa.
[152] After reviewing all of these facts, I am satisfied that the police officers did their best to get Mr. Pickard-Gorr to court in time for a bail hearing that day. The trip to the hospital and the intervention of the Special Investigations Unit were two factors which were out of the ordinary and which interrupted the usual process.
[153] Further, it cannot be said, that the failure to get Mr. Pickard-Gorr to court that first afternoon prolonged the time which he spent in custody.
[154] Had he arrived that afternoon, duty counsel would have had to interview him in order to determine, amongst other things, whether someone might be available to act as a surety. Duty counsel would then have had to call the person and arrange for them to come to court. It would have been impossible to do all of this and then have the surety drive to Milton from Oshawa in time for a bail hearing that day. At best the bail hearing would have taken place the next day.
[155] The bail hearing did in fact take place the next day. The prospective surety was present, thanks to the steps taken by Detective Constable Campbell to call her, and Mr. Pickard-Gorr was released on bail.
[156] In total, he was in custody for just over 36 hours.
[157] For these reasons, while Mr. Pickard-Gorr was taken before a justice more than 24 hours after his arrest thereby infringing his sections 7 and 9 rights, I was satisfied that he had been taken before the justice without unreasonable delay. The police actions did not contravene fundamental notions of justice which undermined the integrity of the justice system.
[158] This failure to satisfy the first prerequisite for granting a stay is enough by itself for me to dismiss the application.
[159] In addition, there would be an alternative remedy capable of redressing any prejudice complained of. I could impose a lesser sentence than would otherwise be warranted.
[160] Finally, I am not satisfied that the alleged misconduct by the police is sufficiently serious to warrant a stay when weighed against the public's interest in having these charges resolved on their merits. Domestic violence offences are serious and there is a high expectation in the community that such charges will be tried on their merits. Given the nature of the Charter breach I do not view this as one of those rare cases where continued prosecution would offend society's sense of justice.
[161] So none of the prerequisites has been satisfied. Accordingly, the application for a judicial stay is dismissed.
CONCLUSION
[162] I find Mr. Pickard-Gorr guilty of assault, confinement and assault police and convictions will be entered. The charge of assault with a weapon is dismissed.
Released: December 7, 2016
Signed: "Justice D.A. Harris"
Footnotes
[1] R. v. Starr, 2000 SCC 40, at para. 242.
[2] R. v Lifchus, at para. 13.
[3] Exhibit 13.
[4] R. v. Babos, 2014 SCC 16, per Moldaver J. at para. 31; R. v. Zarinchang, 2010 ONCA 286, at para. 57.
[5] R. v. Babos, supra at para. 32; R. v. Zarinchang, supra at para. 57.
[6] R. v. Zarinchang, supra at para. 58.
[7] He did not testify. He accompanied Constable Allen taking Mr. Pickard-Gorr to and from hospital.