Court File and Parties

Ontario Court of Justice

Date: January 16, 2017

Court File No.: Brampton 13-10972

Between:

Her Majesty the Queen

— and —

Alexander Brar-Que

Before: Justice Patrice F. Band

Reasons for Judgment released on: January 16, 2017

Counsel

Ms. R. Prihar — counsel for the Crown

Mr. B. Brody — counsel for the defendant Mr. Brar-Que

I. Introduction

[1] The Crown alleges that Mr. Brar-Que was driving a van with a female passenger in the early morning hours of July 17, 2013, when he was stopped at a RIDE program by Police Constable Gentles. The officer smelled marijuana and asked him about it. Mr. Brar-Que replied "I don't smoke marijuana". The officer ordered him to move the van forward to get out of the way of other traffic. Mr. Brar-Que disobeyed. Instead, he turned left on a red light and then drove off. PC Gentles pursued him. During the chase, Mr. Brar-Que drove at exceedingly high speeds through a residential area. A few minutes later, he was stopped and arrested. PC Gentles then asked the female to get out of the van.

[2] Two other police officers, Sgt. Reefer and PC Brisebois, arrived a few minutes later.

[3] PC Gentles found some marijuana in a small plastic container behind the driver's seat.

[4] Mr. Brar-Que filed an Application seeking a stay of proceedings. He alleged that he was beaten by PC Gentles and subjected to racialized verbal abuse by the officers at the scene. He relied on ss. 7, 12, 24(1) and 24(2) of the Canadian Charter of Rights and Freedoms.

[5] The police officers categorically denied Mr. Brar-Que's allegations.

II. Procedural Background

[6] On October 22, 2014, Mr. Brar-Que was arraigned on the following charges:

Information #010935:

1. Dangerous driving (s. 248(1)(a) C.C.); and
2. Failing to stop for police (s. 249.1(1) C.C.).

Information #010972:

1. Possession of Marijuana under 30 g. (s. 4(1) C.D.S.A.).

[7] The trial and the Charter Application were dealt with in a blended fashion. Due to a poor initial trial length estimate, the trial did not finish in its allotted time. Then a number of adjournments were required. Mr. Brar-Que was required to change counsel. On another occasion, I was ill. On another, the Crown required an adjournment.

[8] Mr. Brar-Que's Application included his affidavit and a doctor's letter attached as an Exhibit. Mr. Brar-Que testified only on the Charter Application. On consent, he did so at the outset of trial to avoid fragmenting the Crown's case.

[9] The Crown called the three officers on the Application and the trial proper.

[10] Neither party called the female passenger to testify.

[11] The trial ended on October 12, 2016. After hearing oral arguments, I requested written submissions on two issues. These were all received by December 20, 2016.

III. Nature of the Case

[12] The Crown's case is straight-forward. She alleges that Mr. Brar-Que was lawfully ordered to remain at the RIDE program. His departure constituted flight from police and dangerous driving. As the driver of the van, he was knowingly in possession of the marijuana that was found behind his seat.

[13] The Defence Application is also straight-forward. Mr. Brar-Que claims to have been beaten by PC Gentles at the time of his arrest and verbally abused by him and other officers who attended the scene minutes later.

IV. Admissions/Concessions

[14] During the trial, the Defence admitted that Mr. Brar-Que's utterance to PC Gentles at the RIDE program – "I don't smoke marijuana" – was voluntary and therefore admissible on the trial proper.

[15] The Defence also declined to call the doctor whose letter appeared in Mr. Brar-Que's affidavit. Ultimately, the Defence indicated that only the fact of Mr. Brar-Que's attendance at the doctor was going to be relied upon. The contents of the letter are therefore of no evidentiary value.

[16] In submissions, the Defence all but conceded that Mr. Brar-Que was guilty of the offence of flight from police. As he put it, only if I were to have a reasonable doubt that Mr. Brar-Que was ordered to remain and then drove through a red light could he be acquitted of that count.

[17] That the van was a rental or courtesy car came up in various ways at trial, but there was no directly admissible evidence about it. However, the Crown endorsed this as a fact in her submissions.

V. The Issues

[18] The issues are the following:

• Has the Crown proved the offences charged beyond a reasonable doubt?
• Has Mr. Brar-Que proved that his s. 7 and 12 rights were violated on a balance of probabilities?
• If so, is a stay of proceedings warranted?

[19] Mr. Brar-Que testified only on the Application. In the process, he presented photographs of bruising that he claimed he sustained during the arrest.

[20] The Defence did not call any evidence on the trial proper.

[21] The Defence's approach was a full attack on PC Gentles' credibility and reliability. PC Gentles was the only witness to Mr. Brar-Que's driving, and the only officer present during the arrest. The cross-examination was forceful, lengthy and meticulous.

[22] The Defence submitted that his evidence ought to be rejected in its totality and that Mr. Brar-Que's evidence on the Charter Application ought to be accepted as persuasive.

[23] The Crown's submissions concerning the CDSA charge (which took place after the Defence's reply to her submissions on the Criminal Code charges) were lukewarm.

[24] Counsel submitted that the charge ought to be dismissed because the van was a rental, there was a passenger in it and the marijuana was found in a pocket in the back seat.

[25] Credibility and/or reliability are the overarching issues in this matter.

VI. Preliminary Legal Issue: Defence's Decision not to Call the Passenger

[26] Based on the totality of the evidence, the female passenger would have been in the passenger seat of the van while Mr. Brar-Que was being arrested, and outside when he was in the rear of the cruiser. The Defence did not call her.

[27] In her oral submissions, the Crown invited me to consider that fact in assessing the strength of the Defence's Application. However, she submitted that I should not go so far as to draw any adverse inference.

[28] After reviewing R. v. N.L.P., 2013 ONCA 773, I requested written submissions on this point from both parties. In response, the Crown precisely identified the issues to which an adverse inference could apply. The Defence was opposed, arguing that Mr. Brar-Que "did not raise the corroborative significance" of the female passenger.

[29] In certain circumstances, an adverse inference for failing to call a witness can be drawn against an accused person where he or she bears a burden of proof. Alibi is an example of this, but not the only one. N.L.P. itself was not an alibi case. Rather, it was a case in which the accused had himself raised the corroborative significance of the missing Defence witness. However, even where it may be appropriate to do consider a party's failure to call a witness, caution is required.

[30] In this case, I have decided that caution requires me to refrain from drawing an adverse inference from the Defence's failure to call the female passenger.

[31] This is because I cannot say that there is a clear reason to do so.

[32] It is true that on June 17, 2015, Defence counsel told the Court that he would be calling the female passenger. However, this was in the context of a case that had been inherited mid-trial from prior trial counsel.

[33] Also, it was not Mr. Brar-Que who had, through his testimony, first raised the issue.

[34] Finally, after reviewing the transcripts more completely, I was reminded that the female passenger attended court on the first day of trial pursuant to a subpoena. While the record is not completely clear, it would appear that the subpoena had been issued at the Crown's request. The Crown had her paged into court that morning and later offered to subpoena her for the Defence upon request.

[35] The Crown also indicated on the record that she had no intention of calling her.

[36] I would harken to the passage in N.L.P., citing R. v. Zehr, which notes:

There are many reasons why counsel may choose not to call a witness, and our courts will rarely question the decision of counsel, for the system proceeds on the basis that counsel conducts the case.

[37] This passage applies with equal force to both parties in this case.

VII. The Merits

A. Dangerous Driving (s. 248(1)(a) C.C.)

[38] The heart of the Crown's case is the allegation that Mr. Brar-Que drove a van at sustained speeds in excess of 180-190 km/h in a residential area, making right angle turns and failing to stop at stop signs along the way. The offence took place between 2:30 and 2:34 a.m.. Constable Gentles testified that the roads were dry and traffic was light. There was no indication of any pedestrian traffic along the way.

[39] In-chief, PC Gentles indicated that the pursuit lasted two-to-three minutes over a distance of two-to-three kilometers.

[40] In cross-examination, PC Gentles agreed that the time between Mr. Brar-Que allegedly taking off and being stopped was approximately four minutes. He confirmed that this was what he wrote in his notes. He also agreed that his interaction with Mr. Brar-Que at the RIDE stop was brief, "maybe less than 10, 15 seconds."

[41] He did not disagree, when a Googlemap printout was shown to him, that the distance travelled was approximately three kilometers.

[42] But he would not agree with Defence counsel that to travel three kilometers at speeds approximating 190 km/h would take far less time than four minutes, because he could not comment on Googlemaps' calculations. He also disagreed that at those speeds, Mr. Brar-Que would have arrived at the scene of the arrest in less than one minute. But he could not explain why his notes indicated a time span of four minutes.

[43] PC Gentles did not agree that by driving at speeds in excess of 180 km/h on Hurontario Street and in residential areas he, too, was exposing the community to risk. His response was that the traffic was "very light." He also referred to the fact that he was driving a police car with lights and sirens and that he had been trained. In contrast, Mr. Brar-Que was driving a regular car.

[44] PC Gentles was also unable to describe the rate of speed at which the van completed right-angle turns on residential roads or how it was able to do so successfully if it was traveling at such excessive speeds.

[45] Sgt. Reefer testified that it took him approximately three minutes to drive from the RIDE stop to the scene of the arrest. In doing so, he drove "a little faster than the speed limit." When further cross-examined, he testified that he could not say if he reached speeds of 100 km/h, but he was certain that he did not reach 190 km/h.

[46] PC Brisebois also took approximately three minutes to drive from the RIDE stop to the scene of the arrest. He did not recall the rate of speed at which he drove, but agreed that he probably did not drive "exceptionally fast" and he was clear that he did not drive at 190 km/h.

[47] I accept that it is difficult to make and recall second-by-second observations about a police pursuit, and to then make detailed and accurate notes about it.

[48] However, in these circumstances, I cannot rely on PC Gentles' evidence concerning Mr. Brar-Que's driving. Based on his evidence, the times and the distances at play make it impossible for me to find that Mr. Brar-Que drove at the speeds and in the manner alleged. This is all the more so when one considers that it took Sgt. Reefer and PC Brisebois arguably less time to drive the same distance without reaching exceptionally high speeds. Absent more evidence as to his training and the characteristics of his police car, PC Gentles' view that his own driving did not present a risk adds to my concerns about the reliability of his evidence.

[49] As a result, I am left with a reasonable doubt as to Mr. Brar-Que's guilt on this count.

B. Flight from Police (s. 249.1(1) C.C.)

[50] In general, I believed PC Gentles' evidence. While I had concerns about its reliability in relation to the dangerous driving, I did not find that his overall credibility was successfully impeached.

[51] I believed him that he smelled an odour of marijuana emanating from Mr. Brar-Que's van, and that he asked him about it. Mr. Brar-Que's response "I don't smoke marijuana" only makes sense in this context.

[52] I also believed PC Gentles that he ordered Mr. Brar-Que to pull over ahead of the police car and wait. But instead, Mr. Brar-Que drove away through a red light. This was confirmed by Sgt. Reefer, who was not challenged on the point.

[53] Mr. Brar-Que presented no evidence of any lawful excuse for doing so and none is reasonably inferable on the evidence.

[54] Owing to the left turn on a red light, a finding of guilt on this charge is inescapable.

C. Possession of Marijuana (s. 4(1) C.D.S.A.)

[55] PC Gentles testified that he found the marijuana in a plastic container on the floor behind the driver's seat of the van. The central question is whether the Crown has proved beyond a reasonable doubt that Mr. Brar-Que knew about the marijuana. The evidence is circumstantial. One strongly suspects that Mr. Brar-Que knew of its existence in the van, as it would provide the most obvious explanation for his flight from police. But this is not the only reasonable inference available. The van was either a rental or a courtesy car. There was a passenger whom neither party called, and the marijuana was in the rear. In these circumstances, I would give Mr. Brar-Que the benefit of the doubt.

VIII. The Excessive Force Application

[56] Mr. Brar-Que was 22 years old when he testified. In addition to high school, he also completed a Police Foundations program. He was employed in a number of jobs, including security, and has given of his time in various volunteer capacities. He hopes one day to become a police officer.

[57] Mr. Brar-Que testified that when he stopped driving, PC Gentles approached him and pulled him out of the van. In an effort to show compliance, he put his hands behind his back. PC Gentles shook him a number of times against his vehicle. When Mr. Brar-Que asked why he was under arrest, PC Gentles yelled obscenities at him. PC Gentles also punched him five times in the side and struck him with his knee in the back three or four times. PC Gentles asked him if he had any weapons.

[58] PC Gentles then picked him up and threw him into the police car. In the process, Mr. Brar-Que's shoulder struck the frame of the door. PC Gentles pushed him in, which caused him pain.

[59] Three other officers arrived. All of them abused him verbally. They uttered racist insults and mocked him.

[60] At the station, he felt pain in his abdomen and thought he had to make a bowel movement. He made efforts at doing so, but was unsuccessful. He believed that the officers laughed at him about that.

[61] Later, he told PC Gentles that he had "hit him a little bit too hard back there." There was no response.

[62] Mr. Brar-Que testified that the assault lasted approximately five-to-ten minutes, and that the backup officers arrived "approximately less than five minutes" after that.

[63] Mr. Brar-Que also provided a number of photographs that he said were taken just after he left the police station and then at home later. They show some bruising to his upper left arm, some redness on his side and marks around his right wrist. He claims that the bruising to his arm and redness to his side are the result of punches and knee strikes PC Gentles administered. The marks on his wrist are due to the handcuffs that were too tight.

[64] The most lasting injury was to his shoulder. It was no longer able to bear weight as it had before, and affected his ability to work. He sought medical attention and treatment for it, including massage therapy and physical therapy.

[65] PC Gentles denied assaulting or otherwise abusing Mr. Brar-Que. At 2:34 a.m., he arrested and removed him from the van by taking hold of him using no more force than usual. He had no difficulty in placing Mr. Brar-Que in the rear of the cruiser.

[66] Sgt. Reefer and PC Brisebois testified that they had received PC Gentles' request for assistance at 2:35 a.m. and were on scene by 2:38 a.m. Mr. Brar-Que was in the cruiser when they arrived.

[67] Both also denied abusing Mr. Brar-Que.

[68] The Crown's cross-examination of Mr. Brar-Que was effective. With respect to his affidavit, he acknowledged that: it was beneficial to the court and him to be as accurate and detailed as possible; he made an effort to include "everything that was important in all the relevant detail"; he either wrote it himself or told someone who then transcribed it; and he had an opportunity to review it before affirming its truth.

[69] Yet in the affidavit, Mr. Brar-Que said nothing about the injury to his shoulder, how it occurred or its lasting effects. For this, he had no explanation.

[70] He also agreed that, unlike his testimony, the affidavit did not contain the number of punches and kicks he sustained or the allegation that the other officers verbally abused him.

[71] Mr. Brar-Que was polite and respectful during the course of his evidence, and became very emotional at times. While he appeared to be a credible witness, I am unable to rely on Mr. Brar-Que's evidence as to what took place during the arrest. What troubles me most about it is that he did not include anything about his shoulder in his affidavit when this was the most serious and lasting injury.

[72] I am also troubled by his time estimates. The evidence is clear that no more than four minutes elapsed between the stop and the arrival of Sgt. Reefer and PC Brisebois. That evidence was unchallenged.

[73] While I appreciate that stress can affect one's sense of time, Mr. Brar-Que's estimates are out of all proportion to what I consider to be clear evidence on this point.

[74] While it was fair of Defence counsel to acknowledge that Mr. Brar-Que's time estimates were mistaken, that admission does not immunize them from scrutiny.

[75] I would also find that Mr. Brar-Que was wrong as to the number of officers who attended the scene. Based on the evidence of PC Gentles, Sgt. Reefer and PC Brisebois, which was not challenged on the point, only three officers were present.

[76] Finally, I would also note that Mr. Brar-Que swore in his affidavit that the traffic light was green when he drove away from the RIDE stop. That evidence was contradicted by that of PC Gentles and Sgt. Reefer, which I have accepted.

[77] As a result, and notwithstanding the photographs, Mr. Brar-Que has not persuaded me on a balance of probabilities that he was subjected to excessive force or other abuse at the hands of the officers involved in this case.

IX. Conclusion

[78] I am left with a reasonable doubt as to Mr. Brar-Que's guilt on Count 1 (Dangerous Driving). That charge is dismissed.

[79] I am convinced beyond a reasonable doubt of Mr. Brar-Que's guilt on Count 2 (Flight from Police). A finding of guilt will be entered on that charge.

[80] I am left with a reasonable doubt as to Mr. Brar-Que's guilt on the charge of Possession of Marijuana. That charge is dismissed.

[81] Mr. Brar-Que did not discharge his burden of proof on a balance of probabilities in relation to his s. 7 and 12 Charter claims. His Application is therefore dismissed.

Released: January 16, 2017

Justice Patrice F. Band