Ontario Court of Justice

Date: 2021 06 25 Court File No.: Region of Niagara 998 20 S0771

Between: HER MAJESTY THE QUEEN

— AND —

Logan Cloer

Before: Justice J. De Filippis

Heard on: May 13, 2021 Reasons for Judgement released on: June 25, 2021

Counsel: Mr. G. Smith, counsel for the Crown Mr. Y. Obouhov, counsel for the defendant

De Filippis, J.:

Introduction

[1] The defendant was tried on an Information with two counts: Impaired operation of a conveyance and operating a conveyance with a blood alcohol level that exceeded the legal limit (“over 80”). The defendant does not challenge the Crown’s case on the issue of guilt. He applied for a stay of proceedings, as a remedy, pursuant to section 24(1) of the Charter of Rights and Freedoms because his rights pursuant to sections 7 and 12 of the were violated. The specific claim is that the arresting officer assaulted the defendant.

[2] I find that the defendant has established his rights were violated. I decline to stay proceedings. The appropriate remedy in this case is a reduction in sentence.

Non-Disputed Facts About the Offence

[3] On February 1, 2020 PC Massie of the Ontario Provincial Police (“OPP”) was dispatched to a vehicle in the ditch on the QEW westbound offramp to Jordan Road in the town of Lincoln. He saw a male driver, later identified as the defendant attempt to drive his car out of the ditch. The driver was accompanied by a female passenger. She was later driven home to Hamilton by the tow truck driver called to the scene by police.

[4] PC Massie observed an almost empty bottle of alcohol on the driver side floor of the vehicle and noted that the defendant was unsteady on his feet and disoriented. The defendant’s eyes were glossy, his speech was slurred, and he had a strong odour of an alcoholic beverage on his breath. At 10:17 pm, the officer arrested the defendant for impaired operation of conveyance. There is no issue about the propriety of the breath demand, caution and right to counsel.

[5] The defendant was transported to the Niagara Detachment of the OPP for breath tests. At the station, after speaking with duty counsel, the defendant provided two suitable samples of his breath: The first sample registered a reading of 214 mg of alcohol in 100 ml of blood. The second sample registered a reading of 207 mg of alcohol in 100 ml of blood. Consequently, the defendant was further charged with driving with a blood alcohol concentration of more than 80 mg of alcohol in 100 ml of blood.

[6] On February 2, 2020, at approximately 12:56 am the defendant was served with the paperwork associated with the charges. He had no means of getting home to Hamilton. Accordingly, PC Massie and auxiliary officer Brenan drove the Applicant to his home. They arrived 37 minutes later.

[7] The defendant had been seated in the rear seat of the police cruiser. The two officers were in the front seats. On arrival at the defendant’s residence, PC Massie observed that his OPP duty bag, which had been in the back seat, was open and his clipboard was now on the floor of the vehicle. The officer asked the defendant if he had opened it but received no answer. He checked his duty bag and noted that some items were missing.

[8] When the defendant exited the cruiser, PC Massie unzipped the defendant’s coat and his OPP issue toque fell out on the road. The officer also saw his winter gloves bulging out of the defendant’s jeans pocket.

The Evidence Relevant to the Charter Motion

[9] PC Massie has been a member of the OPP for 21 years. He testified that after the breath tests had been completed, the defendant remained heavily intoxicated and had no money to hire a taxi to get home. He offered to drive him home and was accompanied by auxiliary officer Brennan. The two men had worked together eight or nine times in the past.

[10] On arrival at the defendant’s home, it became obvious that the defendant had stolen property belonging to PC. Massie. The latter testified that he said: “You’re stealing from me. You take my fucking stuff, I gave you a ride home”. The officer took his property and told his partner, “get him the fuck out of here” and re-entered the cruiser. After the defendant had been escorted to the front of his house, the two officers left.

[11] P.C. Massie said he was disappointed and upset with the defendant and that the theft was particularly serious because it was property with police insignia. The officer added that the defendant was so drunk, he may not have known what he had done. He denied grabbing the defendant by the throat and giving him a “hand chop” to the side of the head.

[12] Auxiliary officer Brenan has been with the OPP for 18 months. He testified that he gets along well with PC Massie and noted the latter is a good instructor. He confirmed the account given by P.C. Massie about the events that transpired after it was discovered the defendant had stolen police property.

[13] The defendant is a 33-year-old reservist with the Canadian Armed Forces. He is now married to the woman who was with him on the evening in question. He testified that on arrival at his home, he exited the cruiser and stood near the wheel at the rear passenger door, where he was searched for what PC Massie claimed to be his missing property. The officer unzipped the defendant’s jacket and his OPP toque fell to the ground. The officer picked up his hat and then found his gloves in the defendant’s jeans pocket. According to the defendant, the officer became enraged: “His left hand shot up and grabbed me by the neck and using profanity, said, ‘I can’t believe you would steal from me”…..then out of nowhere his right hand struck me on the right temple”.

[14] The defendant testified that he did not seek medical help as he was not injured, and the throat grab had not cut off his breathing. Moreover, he was embarrassed: “I felt I deserved it….I was cuffed behind the head because I was an idiot”. He described the officer’s actions as a “hand chop with the side of the hand”. Six months later he filed a complaint with the Office of Independent Police Review Director (OIPRD). He did so after reviewing disclosure material with his lawyer.

[15] On December 20, 2020 the OIPRD responded to the defendant. The Director stated that it was not in the public interest to launch an investigation having regard to several factors, including “outstanding proceedings”. The defendant was advised that he could re-submit his complaint at the conclusion of those outstanding proceedings.

[16] The defendant conceded that he was intoxicated and his memory is “foggy” about many things that evening, but added that he has a clear recollection of “being grabbed by the throat and hit in the head”. He said it is not his practice to drink as much as he did and explained he was in a difficult custody battle with his ex-partner. After his arrest he underwent 14 months of psychiatric therapy. He said he takes this matter seriously and is remorseful.

[17] Larissa Cardiel is the defendant’s wife. She was a passenger in the car the defendant drove into the ditch and was taken home by the tow truck driver. Ms. Cardiel testified that on arrival home, she realized she did not have a key. The tow truck driver broke a window and opened the door for her. She was worried about the defendant being in police custody and was on the telephone talking to her mother in Mexico when he arrived in the police cruiser.

[18] Cross-examination of Ms. Cardiel created some confusion about whether she was able to see what she described. On all the evidence, I am confident that she could. She was looking out her bedroom window, five or six metres from the events with a bright light standard nearby. The confusion arises because of some difficulty in expressing herself in English.

[19] According to Ms. Cardiel, she saw a black truck [Police SUV] arrive and three people exited; her husband and “the same cops from earlier that night…one was older with gray hair [PC Massie]”. She could not hear what was being said but saw that this officer was searching her husband’s pockets. She added that:

Then he went aggressive with his movements, I got very very scared and I told my mom that I saw the cop hit Logan, not like a punch. I was crying, and nervous. Mom told me to stay inside as she was scared for me. The younger one [auxiliary officer Brennan] didn’t do anything.

The Issues

[20] The defendant relies on these Charter provisions:

7. 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.

8. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

9. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[21] The issues, as framed by the parties, are as follows: (1) Do I have jurisdiction to entertain the motion to stay the proceedings; (2) if so, is the Charter breach established (on a balance of probabilities); and, (3) if so, what is the remedy.

The Law

[22] There is no dispute about the applicable principles. The leading case in Ontario is R v Tran 2010 ONCA 471.

[23] In Tran, the police were investigating a home invasion committed by several individuals. On his counsel's advice, Tran turned himself in to the police. Tran testified that upon arrival at the station, he was shoved and punched by two officers. They then put him in an interview room that was not equipped with a video camera and demanded a statement. Tran continued to invoke his right to silence. One of the officers punched him in the ribs and the jaw. Tran's mouth bled profusely. Tran remained silent. The officers attempted to clean up the blood in the interview room. They placed Tran in front of a video camera and tried (unsuccessfully) to get him to say that he had hit his chin on the table.

[24] The next day, Tran was transferred from a detention centre to a hospital. It was determined that his jaw had been broken in two places. The permanent consequences of the beating include that Tran now bites himself when he eats, has a sore jaw and loose teeth and suffers from migraines.

[25] At trial the officers denied the assault. They claimed to have left Tran alone in the interview room and when they returned, they found him on the floor, still handcuffed, with blood coming from his lower lip. They put him on videotape to tell the truth about the source of his injuries. They asked"Have we treated you fairly?" Tran looked at the floor and refused to answer. The trial judge found the evidence "overwhelming" that both officers had assaulted him, and one had broken his jaw. The trial judge concluded he had two options available to remedy the police misconduct: A reduction in sentence or a stay of proceedings. He settled upon the former.

[26] The Court of Appeal for Ontario reversed the trial judge and stayed the proceedings against Tran. In so doing, it discussed the decision of the Supreme Court of Canada in R v Nasogaluak 2010 SCC 6, [2010] 1 S.C.R. 206. The Alberta Court of Appeal, in Nasogaluak, had concluded that a sentence reduction is available, pursuant to section 24(1) in two circumstances: where the breach mitigated the seriousness of the offence or when the breach imposed additional hardship or punishment to the accused. The Supreme Court agreed with the majority of the Alberta Court of Appeal that a sentence reduction was an appropriate response to a Charter breach, but Lebel, J (for the court) did not decide the case based on s. 24(1). He noted that a fit sentence may be crafted through the sentencing provisions of the Criminal Code. As such, it is not necessary for the misconduct to constitute a Charter breach as it is always a relevant consideration provided it is connected to the sentencing exercise.

[27] The Court of Appeal for Ontario also noted that the leading post-Charter stay decision is R. v. O'Connor, [1995] 4 S.C.R. 411. In O'Connor, it was held that a stay of proceedings is an exceptional remedy to be employed as a last resort, only after canvassing other available remedies.

[28] The Court of Appeal for Ontario, in Tran, concluded as follows:

[94] This was not a case of excessive police force in the discharge of their duties. The two officers involved were taking him to the police station after he had turned himself in. No degree of force was warranted. In fact, if Tran's version of the story is to be believed, the police beat him for invoking his Charter right to remain silent. As the Crown correctly points out, there is no specific finding to this effect. While that is true, regardless of whether the officers abused Tran to obtain a confession or for some other reason, the essential fact is that they beat him up. While other specific findings of fact may have made the officers' conduct worse, there is nothing that would make it better. Their conduct was despicable regardless of its motivation.

[95] Furthermore, the gratuitous beating to which Tran was subjected, after turning himself in to the authorities, caused him permanent bodily harm. He was denied prompt medical attention. And the members of the Peel Regional Police involved in this abuse attempted to cover-up their shocking conduct by destroying evidence, lying to fellow officers and perjuring themselves before the court during the voir dire.

[104] In my view, this is one of those "clearest of cases", [where] the prosecution should be halted. This case involved horrendous police misconduct that breached Tran's ss. 7 and 12 Charter rights, jeopardized the perception of trial fairness and brought the integrity of law enforcement into disrepute.

Jurisdiction

[29] The Crown argues that the events in question occurred after the completion of a Charter compliant drinking and driving investigation and that I lack jurisdiction to grant a remedy for any improper conduct that occurred after the defendant was driven home. The Crown adds that the defendant can pursue his claim elsewhere. I do not accept these submissions. I agree with the Defence that the conduct complained about is part of a continuing series of events that includes the arrest, seizure of breath samples, and escorting the defendant home. In this regard, I also note that the OIPRD declined to investigate the matter, pending the completion of this trial.

Proof of the Charter Breach

[30] All parties agree about what happened up to the point where the defendant said he was assaulted. The Crown argues that it has not been proven that an assault occurred. Part of this argument rests on the assertion that the defendant’s wife could not see what she testified to. As I have noted, I am confident she had a clear line of sight. The defendant and his wife were clear and specific about what occurred. Their testimony was contradicted by the officers but not otherwise undermined. I accept their evidence. I come to this conclusion because I prefer the evidence of the Defence to that of the Crown; that is, I find it is more likely than not that the Defence version of events is accurate. In all the circumstances it makes more sense.

[31] The defendant concedes he acted “like an idiot” and felt he deserved being “cuffed on the side of the head” for the theft. It was only after he brought this matter to the attention of his lawyer, months later, that he formally complained about it. This adds weight to his credibility. I am not troubled by the fact he was intoxicated. This was a simple event and easily noted and remembered.

[32] PC Massie became upset that the defendant stole his property, especially having regard to the fact he had done him a favour by driving him home. He admits he was angry. I find that he allowed his anger to interfere with his professional obligation by striking the defendant in the manner described by him. This may be why he did not charge the defendant with theft.

[33] I find that section 7 of the Charter was violated because the defendant’s personal security was unlawfully compromised by an agent of the Crown. Similarly, I find that section 12 was breached because of an abusive use of force by that agent.

The Remedy

[34] The circumstances of this case do not merit a stay of proceedings. PC Massie acted impulsively and inappropriately. The chop to the head was momentarily painful but did not cause injury. To stay proceedings in these circumstances would be a gross over-reaction to the officer’s misconduct. In this regard, I am not persuaded that the trial testimony of the officers is a relevant consideration in this case.

[35] The Defence does not carry the same onus of proof on this motion as the Crown does at trial. In dealing with the Defence burden I am entitled, as I am not with respect to the Crown, to determine the result based on whose evidence I prefer. As I have explained I prefer that given by the Defence. In any event, I do not understand the law to be that a stay is available simply because a police officer is disbelieved. Moreover, the conduct of the officers in this case, both at the scene of the events, and in the courtroom is far removed from what transpired in Tran.

[36] Having concluded that this is not one of those rare cases justifying the extraordinary remedy of a stay of proceedings, the defendant must be found guilty. However, it is important that the Court disassociate itself from the misconduct in question. The proper remedy for the Charter violations is a reduction in sentence, below the minimum penalty otherwise required by law. However, I would not dispense with the one-year driving prohibition. I must note that even I did not impose the prohibition, the Ministry of Transportation automatically suspends a person’s license with the finding of guilt for these offences. I am not aware of any authority that allows me to prevent that result. In any event, the defendant’s blood alcohol level was more than three times the legal limit and he had driven his car into a ditch. Fortunately, nobody was hurt, but it must be wondered what catastrophe could otherwise have happened in the long drive to Hamilton on the Queen Elizabeth Way. In these circumstances a driving prohibition is justified.

[37] The defendant is guilty of both offences. One will be conditionally stayed at the option of the Crown, pursuant to the rule about multiple convictions as set out in R v Kienapple, [1975] 1 S.C.R. 729. With respect to the remaining count, the defendant is fined one dollar and is ordered not to operate a conveyance for one year.

[38] I appreciate that for most people charged with the present offences, avoidance of a fine is important but secondary to the desire to retain driving privileges. To the extent the defendant views this result as a limited victory, he must understand that a stay of proceedings would be an unwarranted windfall.

Released: June 25, 2021 Signed: Justice J. De Filippis