ONTARIO COURT OF JUSTICE

CITATION: R. v. Chase, 2022 ONCJ 253

DATE: May 31, 2022

COURT FILE No.: Simcoe 210616

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Cassell Chase

Before Justice A.D. Hilliard

Heard on April 22, May 5, 6, 2022

Reasons for Judgment released on May 31, 2022

S. Hickenbottom................................................................................. counsel for the Crown

L. Shafran.................................................................................... counsel for the defendant

Hilliard J.:

Overview:

[1] Cassell Chase is charged with two (2) counts of Prowl at Night, Obstruct Police, Escape Lawful Custody, Assault Police causing bodily harm, and Fail to Comply with Probation. Mr. Chase brought a Charter application seeking a stay of all charges based upon multiple violations of his Charter rights.

[2] The trial proceeded as a blended voir dire. These are my reasons for judgment on Mr. Chase’s Charter application and the trial proper.

Facts:

[3] On July 11, 2021, sometime after 11:00 p.m., Joseph Adam observed an individual walking on the street in his neighbourhood, which is in the town of Delhi, Norfolk County. Mr. Adam first saw this individual when he was letting his cat in for the night. The person was walking on the sidewalk wearing no shoes and possibly no pants.

[4] Mr. Adam’s suspicions were raised when he observed this unknown individual walking towards the doors of a duplex and disappearing into the shadows only to reappear and walk towards another duplex. Neither duplex that Mr. Adams observed this individual to walk towards had outdoor lights. Mr. Adam watched the individual for approximately 30 seconds.

[5] The individual was described by Mr. Adam as above average height, probably male, wearing no shoes and no pants, or very tight pants. Mr. Adam did not observe anything unusual in the gait or pace of the individual. He estimated he was approximately forty (40) feet away when making these observations. Mr. Adam was standing in his doorway when he made these initial observations.

[6] Mr. Adam went inside and upstairs in his home, during which time he lost sight of the individual he had been observing. He then looked outside to see if he could still see the individual who had appeared to be walking in the direction of his home. While inside his residence, Mr. Adam noticed the exterior motion-activated lights turn on in his driveway. Someone or something had to be moving within twenty (20) feet of the motion sensor to activate the lights. Mr. Adam did not see the individual he had observed previously but suspected that the reason for the exterior lights being activated was because that individual had entered onto his property.

[7] Mr. Adam called the non-emergency phone number for the Norfolk Ontario Provincial Police (OPP) to report his suspicions. When he spoke with the individual who answered the OPP non-emergency line, Mr. Adam reported what he had observed and provided a description of the individual – approximately 6 feet in height, wearing a dark coloured hoodie, no shoes, and no pants or very tight pants. Mr. Adam did not initially report the suspected race or skin colour of the individual observed during his first report to police.

[8] At 11:32 p.m. a dispatch went out to Norfolk OPP officers on duty that there was a suspicious person in progress around William and Queen Streets in Delhi. The information that was relayed was that a male was lurking around houses in that neighbourhood, wearing a dark coloured hoodie, wearing no shoes or pants.

[9] Provincial Constable (PC) Leanne Best was in the Delhi area at the time of the dispatch and began patrolling the area for suspects. At 11:43 p.m. PC Best observed a male walking on the public sidewalk down Main Street in Delhi without shoes, wearing a dark coloured hoodie. PC Best was in her full standard issue police uniform operating a fully marked OPP cruiser. She did not observe many other people walking around town that night.

[10] PC Best approached from behind the individual she observed walking down the sidewalk. She pulled her cruiser alongside of the individual and called out for the person to stop and speak with her. PC Best described the individual as male, wearing dark coloured pants, a dark coloured hoodie, holding what appeared to be a plastic grocery bag, and not wearing any shoes.

[11] The individual did not initially respond to PC Best’s request to stop. She then pulled her cruiser alongside the curb and got out to speak to the individual on the sidewalk.

[12] When PC Best initially approached the male on the sidewalk, she was alone. She asked the male to identify himself, to which the male responded that he did not have to give her his name.

[13] Moments after PC Best’s initial interaction with the male on the sidewalk, PC Richard Fody, the acting Sergeant on duty that night, arrived on scene. He had also heard the dispatch regarding a suspicious persons report and was in the Delhi area. PC Fody was wearing his full police issued uniform and driving a fully marked police cruiser.

[14] After PC Fody arrived on scene, both he and PC Best continued to ask the male to identify himself and tell them where he was from. To the latter question, the male responded “nowhere”.

[15] Two additional officers arrived at the location of the male shortly after PC Fody. The two other officers who attended were also wearing full police uniforms operating police cruisers – one fully marked, the other with subdued markings. Those two officers were PC Evan Brockenshire and PC Devon Turner.

[16] As PCs Brockenshire and Turner were arriving at the location of PCs Best and Fody, the unidentified male dropped the bag he was holding and ran away from the officers. He ran southbound along Main Street towards Church Street.

[17] All of the officers in attendance gave chase after the male ran away. PC Best and Turner followed the male on foot. PC Brockenshire followed in his police cruiser. PC Fody ran along a path parallel to that taken by the fleeing male. PCs Best, Turner and Brockenshire were able to maintain sight of the male until he jumped over a fence that separated a parking lot from another residence.

[18] After the male jumped the fence, he was confronted by PC Fody. Commands were issued by PC Fody to stop but the male continued to run. PC Fody then deployed his taser.

[19] The initial taser deployment resulted in a loss of muscle control in the male and he fell to the ground. Once the first cycle of the taser was complete, approximately five (5) seconds after deployment, the male was once again able to move his body. PC Fody cycled the taser for a second time, once again incapacitating the male for a period of approximately five (5) seconds. The other officers then arrived at the location of PC Fody and the male on the ground.

[20] After the completion of the second taser cycle, the male was arrested and handcuffed to the rear. The male was resistant to police efforts to gain physical control of him. The male was frisk searched while still on the ground. As the officers brought the male to his feet, the male continued to resist, and officers grounded the male back onto the sidewalk. Once under physical control with handcuffs and zip tie leg restraints, the male was then placed into the back of a police cruiser.

[21] The male was never asked by any of the officers if he required medical attention, nor did he ever receive any medical attention.

[22] While in the rear of the police cruiser, the male was read his rights to counsel from a police issued standard caution card. The male did not respond to the question – do you understand? Nor did he respond to the question – do you wish to speak with a lawyer now? The male was then transported back to the Norfolk OPP detachment in the town of Simcoe.

[23] The male did not verbally identify himself while in custody at the police detachment. He was held in a cell at the detachment overnight. The male was never provided an opportunity to call a lawyer or speak to duty counsel while at the detachment.

[24] The following morning around 11:00 a.m. the male was brought out of the cell for the purpose of having photographs and fingerprints taken to determine his identity. He was taken to a room by fully uniformed officers and accompanied by Special Constable (SC) Ricker who was tasked with taking the male’s pictures and fingerprints. Two uniformed officers remained in the room with SC Ricker during the identification process and another officer stood by just outside the door in the hallway.

[25] After having his pictures taken, the male struck SC Ricker twice in the face with a closed fist. The two uniformed officers present in the room immediately grabbed the male and grounded him, with other officers coming to assist. The male was handcuffed, put in leg irons, and taken back to the cell by four (4) officers, each holding one of the male’s limbs. The entire interaction was capture on video.

[26] Ultimately the male in custody was positively identified as Cassell Chase and he was charged with the offences before the Court. He was detained in custody on the charges before the court in Simcoe from the date of his arrest until I placed him on a release order on May 6, 2022 at the end of the trial.

Sufficiency of evidence to support a finding of guilt:

[27] Prior to my analysis of the alleged Charter violations and a determination whether a stay of proceedings is the appropriate remedy in this case, I must decide whether the Crown has met its onus of proof beyond a reasonable doubt on the charges before the Court. If the Crown has not met its onus, a stay is moot.

Prowl at Night:

[28] There are two counts on the Information alleging that Mr. Chase was prowling at night at two different municipal addresses in Delhi, Ontario.

[29] There was no direct evidence that Mr. Chase was the individual seen by Mr. Adam walking around his neighbourhood on July 11, 2021. Mr. Adam was not asked to identify Mr. Chase at any point in the investigation or during the course of the trial.

[30] I accept that on the evidence before me a reasonable inference can be drawn that Mr. Chase was the individual observed by Mr. Adam on the night of July 11, 2021. The most compelling piece of evidence supporting that inference is that the individual observed by Mr. Adam was not wearing shoes, and some ten (10) to fifteen (15) minutes later, Mr. Chase is detained by police, and he is not wearing any shoes. However, although a reasonable inference can be drawn does not mean that such an inference is the only reasonable conclusion, resulting in proof beyond a reasonable doubt.

[31] I accept that the time that elapsed between the observations made by Mr. Adam and the information relayed to officers of the complaint by the London Communication Centre was sufficient to allow Mr. Chase to walk from the intersection of Queen and William to the location he was first observed at by police on Main Street in Delhi. That is another piece of circumstantial evidence that could support a finding of guilt.

[32] However, I have no evidence on one of the external elements of the offence of trespassing at night – without lawful excuse, in relation to the count particularized as occurring at 150 William Street, Delhi. The homeowner of 150 William Street did not testify at trial. It is unknown whether Mr. Chase was known to that homeowner or whether there was some lawful reason for Mr. Chase to be in the vicinity of that residence on the night of July 11, 2021.

[33] In relation to the second count of trespass at night, again the information is particularized to specify the property located at 408 Queen Street, Norfolk County. There was no evidence that Mr. Chase was observed on that specific property. Mr. Adam’s evidence in chief was that his house is located at the corner of William and Queen Street in Delhi. He did not provide a specific municipal address. I cannot surmise that 408 Queen Street is Mr. Adam’s address without any evidence. Mr. Adam did not even indicate during his testimony whether the address of his property is either on William or Queen Street.

[34] Given the lack of evidence on essential elements of both charges laid under section 177 of the Criminal Code, I am left with a reasonable doubt as to the guilt of Mr. Chase and those charges will be dismissed.

Escape Lawful Custody:

[35] For Mr. Chase to be found guilty of escape lawful custody, there must be evidence that I accept that proves beyond a reasonable doubt that Mr. Chase was in the lawful custody of the police and he either escaped or attempted to escape.

[36] PC Brockenshire testified that he placed a male now known to be Mr. Chase under arrest and handcuffed him. PC Brockenshire’s evidence was that after Mr. Chase was handcuffed, he briefly fled, running approximately two (2) to three (3) metres before PC Brockenshire was able to grab Mr. Chase and ground him. PC Brockenshire testified that PC Turner was present and assisted in grabbing Mr. Chase after he attempted to flee police custody.

[37] PC Brockenshire’s evidence was that he placed Mr. Chase under arrest for trespass at night and escape lawful custody based on grounds he received from PC Fody. Although PC Fody confirmed that he gave the other officers grounds to arrest Mr. Chase for both trespass at night and escape lawful custody, there is no evidence that Mr. Chase had been arrested by PC Fody. It is also notable that PC Fody’s evidence was that Mr. Chase was not even detained during the interaction PCs Fody and Best had with Mr. Chase on the sidewalk. If Mr. Chase was not detained, then he certainly was not in the lawful custody of police prior to running away.

[38] PC Fody’s evidence corroborated PC Brockenshire’s evidence that after Mr. Chase was handcuffed to the rear, Mr. Chase attempted to run away. PC Fody testified that Mr. Chase attempted to flee from police custody after being placed under arrest and that was the reason that zip ties were applied to Mr. Chase’s legs. According to PC Fody, the zip ties were applied in such a way that would allow Mr. Chase to walk but not run.

[39] I find that PC Brockenshire did have sufficient grounds to arrest Mr. Chase for trespass at night. If I accept the evidence of PC Brockenshire and Fody that Mr. Chase got up and started to run away after being placed under arrest by PC Brockenshire, then that evidence could support a finding of guilt of escape lawful custody. However, the evidence of PC Brockenshire and Fody regarding the arrest of Mr. Chase is contradicted by PC Turner.

[40] PC Turner testified that he was the officer who first arrived at PC Fody’s location after Mr. Chase was tasered. PC Turner’s evidence was that he placed Mr. Chase under arrest and handcuffed him to the rear. Mr. Chase was arrested by PC Turner for trespass at night. PC Turner’s evidence was that Mr. Chase was subject to a frisk search after he was handcuffed but still lying on the ground.

[41] PC Turner testified that as he and other officers were standing Mr. Chase up, Mr. Chase was thrashing and pulling away from the officers, such that officers had to forcibly ground Mr. Chase to regain physical control. Notably and importantly, PC Turner did not testify that Mr. Chase physically escaped from the custody of police, let alone run two (2) or three (3) metres from the location where Mr. Chase was initially placed under arrest. PC Turner’s evidence was that the officers grounded Mr. Chase to prevent him from fleeing.

[42] PC Turner’s evidence was clear that Mr. Chase’s resistance to police maintaining physical control over him was trashing and pulling away, not running away. At no point in his evidence did PC Turner confirm that he assisted PC Brockenshire in grabbing Mr. Chase after he ran a short distance away.

[43] I prefer the evidence of PC Turner on the events surrounding Mr. Chase’s arrest. The evidence of both PCs Brockenshire and Fody, albeit consistent with one another, were not credible. Both officers’ notes were severely lacking in details regarding Mr. Chase’s arrest.

[44] Mr. Chase was not in lawful custody at the time he was stopped on the sidewalk by PC Best and Fody. He was under investigative detention, from which he must either be allowed to leave or be placed under arrest once he chose not to interact with police or answer their questions.[^1] Mr. Chase has no legal obligation to answer PC Best’s questions and once he chose not to do so, I find that his continued detention was unlawful. Therefore Mr. Chase’s act of running away from police officers during this initial interaction cannot support a finding of escape lawful custody.

[45] On the evidence that I accept, I find that there is no evidence to support of finding that Mr. Chase escaped or attempted to escape police custody after he was lawfully placed under arrest. That charge will therefore be dismissed.

Obstruct Police:

[46] Mr. Chase is charged with obstructing PC Best in the lawful execution of her duty.[^2]

[47] There was no legal obligation for Mr. Chase to provide his name to PC Best during the investigative detention on the sidewalk. As was held by the British Columbia Court of Appeal, “although the police may have the right to ask questions, and indeed may be under a duty to do so where they reasonably suspect that the person questioned was involved in a crime, citizens are under no legal obligation to respond to those questions in the absence of a statutory duty to do so.”[^3]

[48] Mr. Chase was not under any legal obligation to assist PC Best in an investigation which he was the subject of. His interaction was not a traffic stop. Mr. Chase was not engaged in regulated activity, such as driving, that would trigger a statutory or regulatory obligation to provide his name to police upon being stopped.

[49] Even after Mr. Chase was placed under arrest, he was not under any legal obligation to provide his name to PC Best. The right to remain silent applies both before and after an individual is placed under arrest. Mr. Chase choosing to exercise his constitutional right to remain silent does not support a finding that he was thereby obstructing PC Best in the execution of her duty.

[50] I find that there is no evidence that Mr. Chase was obstructing PC Best in the lawful execution of her duty and the charge will therefore be dismissed.

Fail to comply with probation:

[51] There is no evidence before me that Mr. Chase was bound by the terms of an active probation order on July 11, 2021 and therefore that charge will be dismissed.

Assault police causing bodily harm:

[52] SC Ricker testified that on July 12, 2021 he was working in his capacity as an OPP Special Constable in Simcoe, Norfolk County. Mr. Chase is captured on video punching SC Ricker approximately two (2) times in the face.

[53] SC Ricker’s evidence was that at least one (1) punch landed on the left side of his eye and the bridge of his nose. He suffered lacerations to his left eye and a fracture to his nasal bone as a result of the assault. SC Ricker required and received medical treatment for his injuries.

[54] The video evidence clearly demonstrated that SC Ricker was not applying any force to Mr. Chase before the punch. The only interaction between SC Ricker and Mr. Chase prior to the punches being thrown was verbal.

[55] PC Armstrong testified that he was present when SC Ricker was interacting with Mr. Chase and observed the punches when they occurred.

[56] I am satisfied beyond a reasonable doubt that Mr. Chase assaulted Special Constable (SC) Ricker, a peace officer engaged in the execution of his duty on July 12, 2021 and in doing so caused bodily harm to SC Ricker.

[57] Given that I have found there is sufficient evidence to support a finding of guilt on this count, I must now turn to the Charter application.

Charter Application:

Investigative Detention – s. 9:

[58] Section 9 of the Charter protects individuals from arbitrary detention or imprisonment. Once it is established that an individual has been detained by the police, it must then be determined whether that detention was justified at law.

[59] Mr. Chase submits that he was arbitrarily detained by police on the night in question. I disagree in part. Mr. Chase was initially lawfully detained by PC Best on the sidewalk, but her failure to arrest or release him once he chose not to answer her questions transformed a lawful detention into an unlawful one.

[60] The police can lawfully detain an individual on reasonable suspicion that a criminal offence has been committed. That suspicion must be both subjectively and objectively reasonable.

[61] Mr. Adam reported that the individual he saw on the street was not wearing any shoes. PC Best’s evidence is that she observed Mr. Chase walking down Main Street in Delhi and noted that he was not wearing any shoes. It is both subjectively and objectively reasonable that the lack of any shoes, a notable matching descriptor of the suspect, supported a reasonable suspicion that Mr. Chase may have been the individual observed by Mr. Adam.

[62] Context is also important. The incident occurred after 11:00 p.m. in the town of Delhi. The uncontested evidence of all of the responding officers is that Delhi at that time of night has little to no pedestrian traffic. It is also important to note that Delhi is not a town close to a beach, lake, or river. Even in July, it would be unusual to see an individual walking down the sidewalk without shoes on.

[63] Despite PC Best’s evidence that Mr. Chase was not initially detained when she stopped her police cruiser and got out to speak with him, I find that Mr. Chase was detained and, initially, lawfully so. Mr. Chase was not free to leave after PC Best began questioning him, a fact which PC Best ultimately conceded on cross-examination.

[64] PC Best was investigating a complaint of someone trespassing at night in a residential neighbour. She formed the reasonable suspicion that the individual observed was Mr. Chase and detained him as part of her investigation. Simply because Mr. Chase did not perfectly match all of the descriptors provided by Mr. Adam does not mean that PC Best’s suspicion was unreasonable. The most notable descriptor of the suspect was that he was not wearing any shoes. Mr. Chase was observed alone walking down the sidewalk on Main Street in Delhi, less than one (1) kilometer from where the suspect was last reported seen, not wearing any shoes.

[65] I find that the initial interaction between Mr. Chase and PC Best was a lawful investigative detention based upon PC Best’s reasonable suspicion that Mr. Chase had been committing a criminal offence. However, the initially lawful investigative detention became unlawful once Mr. Chase chose not to engage with PCs Best and Fody. The point at which it was clear that Mr. Chase was not going to answer their questions, the officers had to either allow Mr. Chase to leave or arrest him.[^4]

[66] As the Supreme Court of Canada (SCC) clarified in R. v. Mann, “[w]hile the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. […] The power to detain cannot […] become a de facto arrest.”[^5] The investigative detention and any actions taken by the police in furtherance of that detention must be conducted in a reasonable manner.

[67] The reasonableness of the detention must be assessed in light of all of the circumstances, “most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that inference.”[^6] Four (4) police officers running after Mr. Chase and then using force to apprehend him was not reasonable in the context of an investigative detention for trespass at night.

[68] I therefore find that the initially lawful detention became unlawful when Mr. Chase was refusing to answer PCs Best and Fody’s questions and the detention and questioning continued thereby breaching Mr. Chase’s rights under section 9.

Excessive use of force and racial profiling – ss. 7, 12, 15

[69] Mr. Chase argues that PC Fody used an excessive amount of force against him by deploying his taser and then cycling it for a second time, which use of force is unjustified in the circumstances. He further contends that PC Fody’s use of force was racially motivated. I agree.

[70] Everyone has the right under section 7 of the Charter not to be deprived of life, liberty, or security of the person except in accordance with the principles of fundamental justice. Under section 12 of the Charter, people are protected against cruel and unusual punishment. Mr. Chase argues that PC Fody breached his rights under both sections 7 and 12 of the Charter in the deployment and use of his taser. I agree.

[71] Every person also has the right to equal treatment under the law pursuant to section 15 of the Charter. Mr. Chase contends that the treatment he received by police on the night of July 11, 2021 and the following day constituted racial profiling and therefore breached his rights under section 15 of the Charter. I agree.

[72] The Ontario Court of Appeal defined racial profiling in R. v. Brown and confirmed that definition in the recent case of R. v. Sitladeen:

Racial profiling is criminal profiling based on race. Racial or color profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.[^7]

[73] Referencing back to the SCC’s decision in R. v. Le, Justice Feldman notes in Sitladeen that racial profiling occurs when race or racial stereotypes are used to any degree in the treatment of a suspect.[^8]

[74] PC Fody’s choice to deploy his taser to apprehend Mr. Chase was an excessive use of force that was completely unjustified in the circumstances:

• Mr. Chase was not under arrest at the time PC Fody deployed his taser.

• Mr. Chase was running away from PC Fody at the time the taser was deployed.

• There is no evidence that Mr. Chase was armed. The evidence is actually to the contrary. No weapons were found on Mr. Chase’s person or in the bag he was carrying. He had dropped the bag that was in his possession prior to running away from the police.

• The offence for which Mr. Chase was being investigated was trespass at night – a non-violent offence.

[75] PC Fody when asked during cross-examination about the race of the suspect used the term “coloured male” twice and used that same term, “coloured”, when testifying about another reported occurrence of a suspicious person lurking in people’s backyards in the weeks prior to July 11, 2021. Upon being questioned about his choice of words in cross-examination, PC Fody became defensive stating that he didn’t know whether it was “ok” for him to use the word “Black” to describe Mr. Chase’s race.

[76] PC Fody also made it clear in his evidence that he perceived Mr. Chase as a threat to officer safety from his very first interaction on the sidewalk. He described Mr. Chase as jittery and agitated. PC Fody testified that the behaviour he observed put him on edge. PC Fody testified that when Mr. Chase put up his arms in a stretching motion and started moving around, he anticipated that an attack was coming. It was PC Fody’s evidence that his experience as a police officer is what led him to conclude that Mr. Chase was going to attack.

[77] It is notable that although PC Best confirmed in her evidence that Mr. Chase started to stretch and yawn just prior to fleeing on foot, she did not indicate that she perceived this behaviour as threatening in any way. At no point in PC Best’s evidence did she describe Mr. Chase as jittery or agitated. The timing of Mr. Chase running away from the officers occurred just after PC Fody placed his hand on his taser during the initial interaction on the sidewalk.

[78] PC Fody’s decision to deploy his taser as Mr. Chase was running away was based on PC Fody’s belief that Mr. Chase was a threat. I find that PC Fody’s belief about the threat posed by Mr. Chase was a result of PC Fody’s perceptions of Black people.

[79] It was put to PC Fody that there are not many Black people in Norfolk County. His response was that it “depends on the time of year”. PC Fody then went on to state that the migrant workers usually have to stay on the farm or be with their farmer or “they’re AWOL”. When asked what he meant by the term “AWOL” PC Fody clarified that he meant “missing”, stating that a number of migrant worker go missing each year and then “they’re gone”.

[80] In considering whether the force used was excessive, the following was PC Fody’s description of what took place after Mr. Chase was brought to the ground by the initial taser deployment but prior to other officers arriving on scene:

Crown: So now he’s prone on the ground, what do you do?

PC Fody: So I don’t have any back up nearby, they’re still catching up, and then um at that point before even my back up arrives he’s getting aggressive. After the taser cycles for the 5 second cycle it stops and you have full mobility again and he starts he wants to get up again so I cycle the taser one more time just to say, you got to stay on the ground, you got to be compliant, you listen to our commands, and he refuses to do that. So by that time the other officers arrive to the scene, then kind of we kind of we got a little bit of control of the suspect, but he was trying to get away from us the whole time.

[81] What is particularly relevant about PC Fody’s evidence set out above is that at the time of this interaction Mr. Chase is not under arrest. I find that PC Fody’s real reason for deploying his taser was to apprehend Mr. Chase and bring Mr. Chase under police control, despite the fact that he had not yet been lawfully arrested. My finding in this regard is further supported by PC Fody’s evidence that he advised the other officers arriving on scene after Mr. Chase fled that they needed to “find out who this male is.”

[82] Not only did PC Fody deploy his taser to apprehend Mr. Chase, but he then chose to cycle his taser one more time when Mr. Chase was on the ground after the first cycle of the taser was complete. PC Fody’s explanation that this second cycling of the taser was for officer safety is completely uncredible and does not provide a justification for his use of force. PC Fody’s primary objective in deploying his taser was to force Mr. Chase to submit to his commands, as PC Fody himself indicates in his evidence set out above.

[83] It is also notable that PC Fody’s evidence that Mr. Chase was being aggressive immediately after the taser deployment had ceased is inconsistent with the evidence of PC Turner, who testified that Mr. Chase was lying still in the prone position when he arrived.

[84] PC Fody refused to even concede that Mr. Chase was not found in possession of any weapons. He was argumentative in cross-examination, stating that Mr. Chase had ample opportunity to get rid of any weapon he had when he fled from the initial stop. PC Fody’s statement in that regard is based on an underlying assumption that Mr. Chase had a weapon, thereby supporting his perception of Mr. Chase as a dangerous individual. There is simply no basis for such an assumption except for a pernicious stereotype that is based only on the colour of Mr. Chase’s skin.

[85] Mr. Chase had not acted aggressively in any way to the police officers on scene, including PC Fody, prior to being tasered. To the contrary, Mr. Chase acted in a manner that demonstrated fear of the police – running away when two (2) additional uniformed armed officers arrived on scene.

[86] In assessing the issue of excessive force, it is also relevant to consider the effects of a taser when it is deployed. There are two (2) ways in which a taser can be deployed: a dry stun or probe deployment. A dry stun is when a taser is deployed adjacent to the skin without the probes deploying. The result of a dry stun is a stimulus that is painful but not debilitating. Probe deployment results in the complete loss of muscle control in the individual against whom the probes are deployed. The probes come in direct contact with the body and for the period of time the taser is active, electrical energy is being conducted through the probes and into the body. Muscle control is not regained until the taser cycle is complete. Each cycle lasts approximately five (5) seconds. Mr. Chase was subject to a probe deployment of PC Fody’s taser, not a dry stun.

[87] As the acting Sergeant on duty that night, PC Fody was in charge of all the other officers on shift. His biases impacted the way other officers interacted with Mr. Chase, both that night and the day after.

[88] Almost immediately upon PC Fody’s arrival at the location where PC Best had detained Mr. Chase the interaction between the police and Mr. Chase changed. There was nothing in PC Best’s evidence to suggest that she had a concern about her safety in the presence of Mr. Chase until after he was tasered by PC Fody. PC Brockenshire similarly did not indicate that he observed anything in the interaction between PCs Best and Fody and Mr. Chase on the sidewalk to cause him any concern for officer safety. However, both PCs Best and Brockenshire described Mr. Chase’s behaviour after being tasered as combative, uncooperative, and aggressive.

[89] It would not have been unreasonable for those officers to assume that PC Fody deployed his taser because Mr. Chase was doing something to threaten his safety, use of force options such a taser being a measure of last resort. Even PC Turner testified that when he arrived at the location where Mr. Chase had fallen to the ground, PC Turner asked PC Fody if he was “okay”. That question from PC Turner suggests that he had a concern that the deployment of the taser by PC Fody was due to an altercation of some sort with Mr. Chase that put PC Fody’s safety at risk.

[90] PC Fody testified that when he handed off to the day shift, he specifically told the Sergeant coming on duty that multiple officers would be required to deal with Mr. Chase because he was “violent”. It is important to recall that at this point police still have no idea of Mr. Chase’s identity or whether he had any previous involvement with the criminal justice system. PC Fody’s identification of Mr. Chase as “violent” was also prior to Mr. Chase engaging in any assaultive behaviour.

[91] Another example of how the racially biased perception of Mr. Chase resulted in him being treated differently by the police is the explanation PC Brockenshire gave for why Mr. Chase was not provided a phone to call a lawyer. His evidence was that Mr. Chase was not offered a phone to make a call because that would constitute a threat to officer safety. This explanation further demonstrates the extent to which the racial bias against Mr. Chase permeated all the interactions police had with him for a period of over 12 hours.

[92] I find the perception of Mr. Chase as violent and a threat to officer safety was based on racial profiling and influenced the treatment of Mr. Chase by the police thereby violating his rights under s. 15.

[93] Mr. Chase’s rights under sections 7 and 12 were also breached by PC Fody’s excessive use of force. This breach is particularly egregious in my view because the use of force involved a conducive energy weapon in a situation where Mr. Chase was alone, unarmed, and facing at least four (4) fully armed police officers on the street late at night.

Right to be informed – s. 10(a):

[94] Everyone has the right on arrest or detention to be informed promptly of the reasons therefor.

[95] PC Best testified that she did not advise Mr. Chase that he was detained at any point during their initial interaction. Her evidence was that Mr. Chase was not detained. Only when pressed in cross-examination to clarify whether she thought Mr. Chase was free to leave did PC Best concede that she did not believe Mr. Chase was free to leave after she initially stopped him and started questioning him. It was only this line of questioning in cross-examination that led PC Best to concede that she had in fact detained Mr. Chase.

[96] The reason PC Best’s misunderstanding of the nature of the initial detention on the sidewalk is relevant is because it demonstrates a failure to understand when Mr. Chase’s Charter rights were activated. PC Best testified that she believed that the individual she was attempting to speak with matched the description of the suspect as relayed by dispatch. She was therefore obliged to advise Mr. Chase he was a suspect and/or place him under arrest for trespass at night. PC Best did neither.

[97] PC Brockenshire’s evidence was that he arrested Mr. Chase for trespass at night and escape lawful custody. However, he agreed during cross-examination that nowhere in his notes was there an indication that he placed Mr. Chase under arrest. There was also nothing in PC Brockenshire’s notes about whether the individual he testified he placed under arrest was advised of the charges for which he was being placed under arrest. PC Brockenshire’s evidence was that his notes are for details that he is not likely to remember months later. PC Brockenshire’s evidence was that he knows he advised Mr. Chase that he was being arrested for trespass at night and escape lawful custody not because he has a specific recollection of doing so but rather because that is what he generally does, and he is sure he would have followed his usual practice.

[98] PC Turner testified that he was in fact the officer who placed Mr. Chase under arrest for trespass at night. However, when it was pointed out to him that nowhere in his notes was there an indication that Mr. Chase was advised of the reason for his arrest, PC Turner conceded that was the case.

[99] Moldaver J., writing for the majority in Wood v Schaeffer, found that police officers “have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation.”[^9] This pronouncement in 2013 was not, as Moldaver J. wrote, “news to police officers” as the OPP had a policy in force that confirms the duty of all officers to make notes recording the particulars of each occurrence during their tour of duty.[^10]

[100] The failure of the officers involved in this investigation to take adequate notes of the details of Mr. Chase’s arrest impacts on the credibility and reliability of their evidence, as well as on my assessment of how these officers discharged their duties as police officers during this investigation.

[101] I find that there is no reliable evidence that Mr. Chase was advised of the reason for his detention or the charge(s) for which he was arrested. I therefore find that his rights under section 10(a) of the Charter were breached.

Right to counsel – s. 10(b):

[102] Mr. Chase argues that his rights to counsel were breached, specifically that both the informational and implementation components of section 10(b) were breached by police after his arrest. I agree.

[103] Section 10(b) of the Charter provides for the right to retain and instruct counsel without delay and to be informed of that right.

[104] Mr. Chase’s right to counsel was engaged when he was initially detained by PC Best. The right under section 10(b) is triggered upon arrest or detention. The Supreme Court confirmed that the purpose of the right under 10(b) is to allow an arrested or detained individual the opportunity to be advised of his rights and determine whether he wishes to exercise those rights. Access to legal counsel is essential to ensuring that accused or detained persons are able to make free and informed choices about whether to cooperate with police.[^11]

[105] It is also relevant to consider that PCs Best, Fody and Turner all subjectively believed that there were grounds to arrest Mr. Chase for trespass at night during his initial detention. PC Best’s evidence was that she believed she had stopped the person matching the description of the suspect provided. PC Fody testified that upon other officers arriving to assist in pursuing Mr. Chase after he ran away, he gave those other officers grounds to arrest Mr. Chase. PC Turner’s evidence was that, having not even had an opportunity to speak with PCs Best and Fody, he had formed grounds to arrest Mr. Chase for trespass at night based on the information received over the radio of the suspect’s description and the detention of Mr. Chase by PCs Best and Fody on the sidewalk as he arrived at that location.

[106] Even after Mr. Chase was placed under arrest and read his right to counsel, the police failed to ensure that Mr. Chase understood his rights or ascertain whether he wishes to exercise those rights. At no point did Mr. Chase indicate that he understood the formulaic reading of the right to counsel by PC Brockenshire. Mr. Chase did not, at any time, explicitly waive his right to counsel.

[107] There are two components of the right under s. 10(b) – the informational component and the implementational component.

[108] Absent a clear indication from the person detained that they understand their right to counsel, a formulaic reading from a police issued card will be insufficient to discharge the informational component of s. 10(b).[^12] Mr. Chase provided no response to the question “do you understand?” There is therefore no evidence that he understood his right to counsel.

[109] It has been confirmed repeatedly by appellate courts that even an equivocal response cannot be equated to a waiver of the right to counsel. Mr. Chase provided no response to the question “do you wish to contact a lawyer now?” No response is not an unequivocal waiver of the right to counsel.

[110] None of the officers involved in Mr. Chase’s arrest and continued detention until his appearance in bail court the following day asked any follow up questions about whether Mr. Chase understood his right to counsel or whether he wanted to contact a lawyer. The only explanation provided for this informational failure is that Mr. Chase was unresponsive to officers’ questions. That is an inadequate explanation for the complete failure on the part of multiple officers involved in Mr. Chase’s arrest and detention to ensure that Mr. Chase knew and understood his Charter-protected right to counsel.

[111] Mr. Chase was never offered a phone to contact a lawyer. The explanation provided for this implementational failure by PC Brockenshire was “officer safety”. No details were provided as to how a man detained in a cell, for a time handcuffed with his legs in zip ties, could be a threat to officer safety if he was provided with a phone to call a lawyer. The “officer safety” explanation is both wholly inadequate and defies logic and common sense.

[112] It is also notable that at no time over the approximately twelve (12) hours of Mr. Chase’s detention was Mr. Chase re-read his rights to counsel, particularly prior to being brought out of the detention cell for the purpose of being photographed and fingerprinted to ascertain his identity.

[113] There is no evidence that any officer made any attempt to provide Mr. Chase a phone to make a call at any point throughout his detention.

[114] There was no justification for the complete failure to provide Mr. Chase with his right to counsel and I find that there was no waiver by Mr. Chase of his right to counsel. There is no evidence upon which I can even find that Mr. Chase clearly understood his right to counsel.

[115] I therefore find that Mr. Chase’s rights under section 10(b) were violated.

[116] I find that the breach of Mr. Chase’s right to counsel is very serious. Mr. Chase was detained, then arrested after having excessive force used to apprehend him, and held for a period of over 12 hours without being provided an opportunity to speak with counsel or duty counsel.

Stay of Proceedings – s. 24(1):

[117] The Crown submits that the charge of assault police causing bodily harm cannot be the subject of a stay of proceedings for violations of Mr. Chase’s Charter rights the night prior to the assault. I disagree.

[118] The SCC has made it clear that courts must take a broad and purposive approach to Charter remedies, including remedies under section 24(1):

The requirement of a generous and expansive interpretive approach holds equally true for Charter remedies as for Charter rights (R. v. Gamble, 1988 15 (SCC), [1988] 2 S.C.R. 595; R. v. Sarson, 1996 200 (SCC), [1996] 2 S.C.R. 223; R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81 ("Dunedin")). In Dunedin, McLachlin C.J., writing for the Court, explained why this is so. She stated, at para. 18:

[Section] 24(1), like all Charter provisions, commands a broad and purposive interpretation. This section forms a vital part of the Charter, and must be construed generously, in a manner that best ensures [page24] the attainment of its objects ... . Moreover, it is remedial, and hence benefits from the general rule of statutory interpretation that accords remedial statutes a "large and liberal" interpretation ... . Finally, and most importantly, the language of this provision appears to confer the widest possible discretion on a court to craft remedies for violations of Charter rights. In Mills, McIntyre J. observed at p. 965 that "[i]t is difficult to imagine language which could give the court a wider and less fettered discretion". This broad remedial mandate for s. 24(1) should not be frustrated by a "(n)arrow and technical" reading of the provision ... . [Reference omitted.]

Purposive interpretation means that remedies provisions must be interpreted in a way that provides "a full, effective and meaningful remedy for Charter violations" since "a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach" (Dunedin, supra, at paras. 19-20). A purposive approach to remedies in a Charter context gives modern vitality to the ancient maxim ubi jus, ibi remedium: where there is a right, there must be a remedy. More specifically, a purposive approach to remedies requires at least two things. First, the purpose of the right being protected must be promoted: courts must craft responsive remedies. Second, the purpose of the remedies provision must be promoted: courts must craft effective remedies.[^13]

[119] Mr. Chase submits that given the flagrant breaches of his Charter rights, no remedy other than a stay of proceedings is appropriate. I agree.

[120] A stay of proceedings must only be granted in the “clearest of cases”. The SCC in R. v. Babos set out the two categories of cases for which a stay can be granted:

(1) Where state conduct compromises the fairness of an accused’s trial (the “main” category);

(2) Where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category).[^14]

[121] The SCC then articulated the test to be used in determining whether a stay of proceedings should be granted:

(1) 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"

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) 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".[^15]

[122] This case clearly falls into the residual category. The conduct of the police that breached Mr. Chase’s Charter rights is not a threat to trial fairness but rather calls into question the integrity of the justice system itself.

[123] I must therefore consider under the first branch of the test whether proceeding with the charge that has not been dismissed would lend judicial condonation to the conduct of the officers in breaching Mr. Chase’s Charter rights. I find that it would. The police misconduct involved in the excessive use of force, the breach of Mr. Chase’s right to counsel, and racial profiling resulting in unequal treatment each individually warrant condemnation by the Court. When considered together, I find that the police conduct must be strongly denounced as unacceptable and intolerable.

[124] In considering what other remedies can redress the prejudice to Mr. Chase under the second branch of the test, I have concluded that there are none. I am not satisfied that the breaches in this case are minor in nature such that a remedy can crafted in sentencing. There were multiple breaches of Mr. Chase’s Charter rights. The breaches were flagrant and involved racial bias. Furthermore, the remaining charge before the Court which I have found there is sufficient evidence to support a finding of guilt, may not even have occurred had Mr. Chase been given an opportunity to speak with a lawyer after his arrest. Had Mr. Chase received independent legal advice, he may have chosen to provide his name to the police, obviating the need for photographs and fingerprints to be taken the next day.

[125] The SCC made it clear that when a case falls into the residual category, the Court must conduct a balancing inquiry under the third branch of the test. Appellate and trial courts have long recognized Society’s interest in having criminal trials conducted on their merits. Only when the police conduct is so egregious as to constitute an affront to fairness and decency will the balancing tip in favour of a stay.

[126] I find that the police conduct in this case was so egregious that the public interest in a trial on the merits is outweighed by the necessity of denouncing the misconduct and preserving the integrity of the justice system. The police misconduct involved multiple breaches of Mr. Chase’s Charter rights. The misconduct was not isolated or trifling. Mr. Chase was subjected to the force of a conducive energy weapon not once but twice. He was then arrested and detained in custody for over twelve (12) hours without an opportunity to speak with a lawyer. The treatment he received by police from the moment PC Fody arrived at the location where Mr. Chase was detained by PC Best was impacted on racial profiling. The perception of Mr. Chase as a threat to officer safety is the underlying reason for all the other breaches of his Charter rights.

[127] Racial bias in policing is a long-standing and systemic issue that must be clearly and unequivocally denounced. The impact of the over-representation of young Black men in the criminal justice system cannot be understated. Courts have continued to recognize and take judicial notice of the impact of institutional anti-Black racism on members of the Black community.

[128] It is also relevant to consider the failure of PCs Best and Fody to understand their obligations under the Charter. Not only did the police fail to ensure that Mr. Chase’s Charter rights were implemented, the officer in charge – PC Best, and the Acting Sergeant – PC Fody, gave evidence that can only lead to the conclusion that they were either unaware of how their interaction with Mr. Chase engaged his Charter rights or they deliberately chose not inform Mr. Chase of his rights. Whatever the explanation – ignorance or malice – I find that this conduct supports my conclusion that this incident was neither isolated nor trifling.

[129] Just as the public has a reasonable expectation that criminal offences will be dealt with justly on the merits, so too is there an expectation that the conduct of police officers in the investigation of crimes will be free from bias, with all individuals suspected of a committing a criminal offence being subject to equal and fair treatment. Society does and should expect that community values are reflected in the way officers discharge their duties. Failure by the police to uphold the Charter enshrined values must result in that conduct being denounced by the Court on behalf of the greater community at large.

[130] The impact of the breaches of Mr. Chase’s rights under sections 7 and 10 are significant in and of themselves. When the consideration of the unequal treatment Mr. Chase received due to racial profiling is added to the calculus, along with the cruel and unusual punishment he received in being tasered while running away, there is simply no question that the police misconduct in this case must be resoundingly denounced. Where there is a right, there must be a remedy. I am therefore left with no other conclusion but that a stay of proceedings is necessary in this case.

[131] Consequently, the only remaining count before the Court, assault police causing bodily harm, will be stayed.

Released: May 31, 2022

Signed: Justice A.D. Hilliard

[^1]: R. v. Esposito (1985), 1985 118 (ON CA), 53 O.R. (2d) 356 (CA). [^2]: This charge on the Information is not particularized as to how Mr. Chase obstructed PC Best. However, the trial was conducted and submissions were made based on the understanding that the obstruction was Mr. Chase failing to provide his name to PC Best when asked. [^3]: R. v. Greaves, 2004 BCCA 484, [2004] B.C.J. No. 1953 at para 48. [^4]: R. v. Esposito, supra. [^5]: 2004 SCC 52, [2004] 3 S.C.R. 59 at para 35. [^6]: Ibid at para 34. [^7]: [2021] O.J. No. 2513 at para 20 quoting (2003), 2003 52142 (ON CA), 64 O.R. (3d) 161 (CA) [^8]: Ibid at para 50. [^9]: 2013 SCC 71, [2013] S.C.J. No. 71 at para 67. [^10]: Ibid at para 68. [^11]: R. v. Taylor, 2014 SCC 50, [2014] 2 SCR 495. [^12]: R v Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869. [^13]: Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3 at para 24 – 25. [^14]: 2014 SCC 16, [2014] 1 S.C.R. 309 at para 31. [^15]: Ibid at para 32 (citation from the original omitted).