Court File and Parties

Date: July 29, 2024 Information Nos.: 2811 998 23 28106905-01, 2811 998 23 28106905-02 Ontario Court of Justice

His Majesty the King v. Ajitpal Gill and Gurvinder Kang

Reasons for Judgment on Charter Application

Before: The Honourable Justice R. J. Wood On: July 29, 2024 at Oshawa, Ontario

Appearances: B. Hart, Counsel for the Crown R. Sandhu, Counsel for Ajitpal Gill Y. Gupta, Counsel for Gurvinder Kang

Reasons for Judgment (Charter Application)

[1] By way of introduction, Ajitpal Gill and Gurvinder Kang have brought an application seeking a stay of proceedings based on an infringement of their Charter protected rights pursuant to Sections 7, liberty rights, 9, rights against arbitrary detention and imprisonment, and 12, the right not to be subjected to cruel and unusual treatment.

[2] The Application indicates a violation of these rights for two distinct reasons: (1) use of excessive force by officers of the Durham Regional Police Service during their arrests; and (2) A breach of their right to be brought before a justice within 24 hours of their arrest as required by Section 503 of the Criminal Code.

[3] Messrs. Gill and Kang are jointly charged on an information alleging that, on the 13th of June 2023, they committed theft from an LCBO in Clarington, that Mr. Kang breached a probation order, and a release order by violating several conditions, and that Mr. Gill obstructed police by providing a false name, drove dangerously, failed to stop for police, breached conditions of his release and probation orders, stole a motor vehicle, and possessed a folding knife for a dangerous purpose.

[4] Charges of possession of Schedule I substances contrary to the Controlled Drugs and Substances Act were withdrawn at the commencement of the proceedings; those were counts 3, 4, and 5. The Crown elected to proceed by indictment.

[5] This Application was brought by way of a pre-trial motion. I pause to extend my thanks to counsel for their preparation, presentation of the evidence, and willingness to work in a cooperative and flexible way so that we could make the most use out of the court time, even if it meant hearing some of the evidence slightly out of an ideal order.

[6] It should be noted that the Crown agreed to call several police witnesses prior to hearing from the Applicants, and did not take issue with the lack of affidavit evidence provided in the Applicants’ materials. I understand as well that counsel have instructions and agree that my ruling on this application is largely determinative of the matter going forward.

[7] During several days of evidence, I heard from numerous police witnesses, watched body worn camera video from the arrest, watched aerial video from a police helicopter, Air One, of the pursuit and arrest, and CCTV from the compound where the arrest took place. All of these items were admitted on consent and are located on a thumb drive at Exhibit 1.

[8] Additionally, I heard testimony from the Applicants, Ajitpal Gill and Gurvinder Kang.

Background

[9] The general context of what took place is not in dispute. Messrs. Gill and Kang were suspects involved in a theft from an LCBO. They departed that scene in a white U-Haul pick-up truck. That truck was the subject of a high-speed police chase and became involved in a motor vehicle collision and fled that scene.

[10] Due to safety concerns, the police chase was called off and the vehicle was followed by a police helicopter until it came to a stop at a trucking compound.

[11] The helicopter pilot had been updating the other officers about the vehicle’s progress throughout the 10-plus minute pursuit, from 9:04 p.m. until 9:15 p.m., and also informed them of where it came to a stop, encouraging officers to attend and apprehend the suspects.

[12] At that point, the suspects were observed to exit their pick-up, toss something into an overgrown field, and enter a D-Train transport, or a transport truck hauling two trailers.

[13] The helicopter pilot relayed to officers that the suspects were hijacking the transport as he saw what he believed to be the driver of that vehicle exit. At that time, Officer Dunlop drove his vehicle in front of the transport, the transport rolled forward and came to a stop against the officer’s SUV. That is the point where, going forward, the Applicants call into question the conduct of the arresting officers.

Positions of the Parties

[14] The position of the Applicants is that the officers of the Durham Regional Police Service displayed a complete lack of regard for the safety, security, and rights of the defendants. They suggest that the police sought to exact a form of “street justice” or retribution for what the police had incorrectly perceived had taken place. They suggest that the two applicants were not resistant to being arrested, were abiding by any commands they were given, and were not even given an opportunity to comply before the police inflicted unnecessary and excessive force on them.

[15] The police also made racist, demeaning, and inappropriate comments toward them, failed to use their body worn cameras in a way that was consistent with their own internal policies, failed to file use of force reports, and neglected to bring them to court within 24 hours of their arrest, further displaying their indifference and vengeance toward the Applicants and in an effort at covering up their behaviour.

[16] The Crown suggests that the police were acting in a reasonable and proportionate way with a justifiable amount of force given what had occurred prior to the interaction with the Applicants.

[17] Finally, while conceding the breach for failing to have the Applicants brought before a court within 24 hours of arrest, they argue that a Stay should not be granted, nor is any remedy appropriate, given the lack of actual prejudice suffered by the Applicants because of that breach.

Excessive Use of Force

[18] I will address the allegation of excessive use of force first.

[19] When I consider the legal test and burden for such an application, I am mindful of a recent case from the Ontario Court of Appeal, R. v. Jarrett, 2021 ONCA 758 at paragraph 61 that states,

“An accused only has the burden of demonstrating that a Charter remedy should be granted. The accused does not have the burden of showing that excessive force was used. Rather, once an accused shows that the police use of deadly force, a prima facie breach of Section 7 exists, and the evidentiary burden shifts to the Crown to prove the force used was justified.”

[20] Clearly the case at hand is not one where police resorted to deadly force. That said, I agree with Justice Monahan in R. v. Dube, 2024 ONCJ 105 that this onus applies to any time police use force, not just deadly force.

[21] So, it is the onus of Mr. Kang and Mr. Gill to demonstrate on a balance of probabilities that they were assaulted – the application of force without consent - by police and that a Section 7 Charter remedy should be granted. Once the use of force is established, the Crown must show that the use of force was justified, pursuant to section 25 of the Criminal Code.

[22] Section 25 of the Criminal Code provides that:

“25 (1) Everyone who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person;

(b) as a peace officer or public officer;

(c) in aid of a peace officer or public officer; or

(d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.”

[23] My take on the position of the parties and the evidence is that there is no dispute that the police used force when arresting both Mr. Gill and Mr. Kang. The question that I must determine during my assessment is, how much force did the police use and was that amount of force necessary for the purpose of effecting the arrests.

[24] In R. v. Walcott, [2008] O.J. No. 1050 at paragraph 24, the court observed that,

When determining whether excessive force has been used, the court should consider all the circumstances including whether:

(a) the suspect was acting in a hostile manner towards the police, resisting arrest, failing to comply with officer’s request;

(b) the relative sizes and weights of the officer and the suspect;

(c) the officer was at risk of harm;

(d) the police knew the suspect had a history which might represent a threat to them; or

(e) the police understood that weapons may be present.

[25] And further, from our Supreme Court in R. v. Genest, [1989] 1 S.C.R. 59 at paragraph 89, where they state,

Obviously, the police will use a different approach when the suspect is known to be armed and dangerous than they will in arresting someone for outstanding traffic tickets. The consideration of the possibility of violence must, however, be carefully limited. It should not amount to a carte blanche for the police to ignore completely all restrictions on police behaviour.

The greater the departure from the standards of behaviour required by the common law and the Charter, the heavier the onus on the police to show why they thought it necessary to use force in the process of an arrest or a search.

The evidence to justify such behaviour must be apparent in the record, and must have been available to the police at the time they chose their course of conduct. The Crown cannot rely on ex post facto justifications.

Evidence and Analysis

[26] Turning now to the evidence and my analysis of it while being mindful of those principles. It would be inappropriate in my view not to highlight the very serious and dangerous situation that preceded the takedown of the Applicants. In my view, those circumstances justify the amount of force that I find the police used to effect the arrest on Messrs. Gill and Kang.

[27] I would also highlight that the responding officers had been updated about the conduct of the suspects by Air One, importantly providing an objective basis for their informed subjective belief.

[28] I have already alluded to some of those circumstances, but should add that the evidence establishes that the U-Haul pick-up truck appears to have been driving on rims for much of the police pursuit and sparks are seen shooting out from under it. That damage may have been caused by a motor vehicle collision that took place prior to the helicopter engaging, but observed by pursuing K9 Officer Dunlop.

[29] The occupants did not stop at that accident scene. The vehicle was in such bad shape that the officers were sure that the chase would have ended long before it did. That U-Haul made its way to Highway 401. It was travelling at speeds upwards of 180 km/hr. There was other traffic on the road and the U-Haul was weaving in and out. The U-Haul exited the highway, and after travelling through a residential area, not abiding by traffic signage, it finally came to a stop in the trucking compound at 9:15:30 p.m.

[30] It is clear that Mr. Gill had been driving the U-Haul pickup truck and that Mr. Kang was the passenger. They both fled the pickup and entered a nearby, running tractor trailer – a tandem transport or D-train. The driver of that vehicle, who I did not hear from, exited that vehicle and the tractor trailer crept forward, coming to a stop against Detective Constable Dunlop’s Tahoe.

[31] The aerial video of the chase and suspect takedown is quite dramatic. K-9 officer, Detective Police Constable Kevin Dunlop, was the first officer to arrive at the arrest scene. He had responded to a radio call of a theft in progress at the LCBO in Courtice at 8:54 p.m.

[32] Details were that a theft had occurred, a U-Haul truck was involved, a lot of product was stolen, and the vehicle was heading eastbound on Highway 2. As a result, he drove westbound on Highway 2 towards Courtice from Bowmanville. He was operating an unmarked Tahoe SUV. He was with his K9 dog, Taz.

[33] The officer came across the suspect motor vehicle which appeared to be travelling more than double the posted speed limit. He turned around to pursue but knew that Air One was responding.

[34] Dunlop did not activate his lights or siren. He observed the U-Haul get in a collision, it looked pretty serious. The officer drove up to make the arrest and ensure everyone was safe. He activated lights and siren. As he pulled up, the pick-up reversed and fled the accident scene. The pick-up truck was damaged and it had a buckled in hood. The officer pursued it with lights and sirens activated.

[35] Dunlop observed the vehicle continue to speed and swerve into head-on traffic. Viewing that, the officer decided to turn off his equipment and follow from a distance hoping the suspect vehicle would drive properly.

[36] The suspect vehicle proceeded westbound on Highway 401. At that time, Air One picked them up. The vehicle was on Highway 401 for approximately nine minutes before exiting on Brock Street.

[37] Dunlop followed the directions of Air One leading to Flanagan Foods compound. Dunlop was told that the suspects were hijacking a transport. As such, he used his Tahoe to block the transport’s exit. Officer Dunlop considered that he was risking his life, but was worried that if they got out on highway in that transport, he was not sure how police would have been able to stop it.

[38] Upon exiting his police vehicle, Dunlop did not have time to put Taz on a leash, but the dog always wears a harness. The officer was concerned that the suspect may possess weapons.

[39] The accused, later identified as Mr. Kang, was a large man. Dunlop was concerned that Mr. Kang could steal the Tahoe. In the officer’s view, Mr. Kang ignored his commands. Dunlop released the dog to gain compliance. He knew he would not win a one-on-one battle with Mr. Kang.

[40] Other officers then arrived to assist, essentially tackling Mr. Kang to the ground. The entire arrest of Mr. Kang, from the time when he is first approached by Dunlop to when he is effectively taken into custody, is less than two minutes.

[41] Once I consider all the evidence on the use of excessive force application, the claims of inappropriate force include: the use of the K9 on Mr. Kang, some additional knee strikes by officers as they were piled on him attempting to handcuff him, manipulation of Mr. Kang’s head by holding his hair bun, use of a taser, and an additional grounding that took place where Mr. Kang was already cuffed and appeared to be forced down onto his head.

[42] Further, the Applicant takes issue with Officer Dunlop, who, while having a look at the injuries caused by his K9, said to Mr. Kang, “my dog says hello” and calls him an “asshole”.

[43] Of most significance, Mr. Kang claims that he was struck in the face by an unknown officer after he had been removed from the cruiser.

[44] Counsel suggests that this is what was taking place on Officer King’s body worn camera footage from 9:30 p.m., although no physical force is observed on video at that time and the body worn camera is deactivated as the officer approaches the group.

[45] For Mr. Gill, the excessive force claimed includes the pointing of firearms, grounding, having his face pushed into the pavement, shoving into the police cruiser, an aggressive kick during the pat down search, some strong language, and a claim that an officer made racist comments along the line of, “You brown fuck, this is what we do when you come to Durham.”

[46] Although it may be easy to look back on the video, break it down second by second, and use hindsight as 20/20, to find that the police could perhaps have been a bit more gingerly towards the two applicants during the arrest, which is what the applicants would have me do. However in my view, it is inappropriate to do so and that type of analysis is not supported in law.

[47] It is crucial that I consider how the events unfolded, what the officer’s understanding was at the time, whether that was a reasonable understanding, and then give a fairly wide latitude towards how they handled the situation, including the amount of force they used, not measuring it to an exacting standard.

[48] The test is a subjective-objective consideration. The officer’s subjective belief must be objectively reasonable. That is from a case of R. v. Nasogaluk, 2010 SCC 6 at paragraph 34.

[49] I am also not judging the conduct to a standard of perfection as circumstances unfold quickly, they are often dangerous, and unexpected events occur. I do not measure with any degree of exactitude. Again, from Nasogaluk at paragraph 35.

[50] Further, a breach will only be established where it is proven that the police conduct was a substantial interference with the Applicants’ physical and psychological integrity.

[51] In my view, when I conduct my analysis keeping those factors in mind, I find that the conduct, although less than professional during some moments, does not rise to the level of establishing a Charter breach of the Applicants’ Section 7 and 12 rights requiring a remedy pursuant to Section 24(1).

[52] To be clear, I certainly find as a fact that the police did inflict knee strikes, a grounding, a K9 bite, and tasing on Mr. Kang, as well as some use of force on Mr. Gill during the arrest process, but it does not amount to a substantial interference with the Applicants’ physical and psychological integrity – especially when I consider the serious circumstances that led to the interaction with police.

[53] The police were clearly entitled to arrest both Mr. Gill and Mr. Kang. The police were also reasonable in having a great deal of concern that two individuals who had just fled a theft scene in a U-Haul, failed to stop at a collision scene, drove dangerously, and far in excess of the legal speed limit on the busy Highway 401 putting many peoples’ lives at risk, including their own and the pursuing officers, were very motivated to take whatever steps necessary, including resorting to violence to effect an escape.

[54] Add to that, the observation of these two suspects entering a running tractor trailer, apparently removing the driver, and having the large vehicle move forward and connect with a police vehicle, and one can appreciate what was going through the minds of the attending officers, in particular Officer Dunlop who was alone, and first on scene. Faced with that situation, the officer’s conduct was nothing short of heroic, and he was entirely justified in not giving Mr. Kang a further opportunity to escape or do whatever else he may have been inclined to do.

[55] At this point, it is hard to determine what Mr. Kang would have done if the officer had not been so proactive. Although Mr. Kang testified that he was willingly giving himself up and was not trying to escape, that claim fails in the face of what had transpired for the several minutes before being engaged by Officer Dunlop. Additionally, at the time, Officer Dunlop did not know who had been driving the U-Haul and it would be quite appropriate to infer that they were acting in tandem.

[56] I am not satisfied that Mr. Kang made no effort at resisting arrest. He seemed to be proceeding away from Officer Dunlop when he exited the tractor trailer, and it took several officers to properly secure Mr. Kang. If he had so willingly, as he stated it was his intention to do so, give up his hands, I fail to see how it would have taken so long for officers to secure him. Mr. Kang was uncooperative, he did not roll onto his stomach as was requested by police during his arrest and appeared to lash out with his legs and, at times, refused to surrender his hands.

[57] Breaking down the various body worn camera videos, and proceeding almost frame-by-frame, paints an inaccurate image of how quickly things unfolded, and distorts the sequence of events that officers were faced with during that chaotic and potentially dangerous period.

[58] Much of the same reasoning applies to Mr. Gill. He was apprehended a lot quicker with much less of a struggle than Mr. Kang, but the police were justified in drawing firearms and immediately taking Mr. Gill to the ground.

[59] Again, after what had taken place, giving Mr. Gill the benefit of the doubt would be a gamble not worth taking. I also find that the degree of force used on Mr. Gill in these circumstances was not significant to meet the standard of disproportionate.

[60] Officer Birmingham’s body worn camera shows that he arrested Mr. Gill and provided him with Rights to Counsel. That said, he did not do so with the usual wording that is read from the back of a police notebook, stating, the arrest was for, “being a danger to society and it’s not your world and everyone else just lives in it”. Further, “I would give you a 1-800 number, but you probably already know that” and the officer asked, “Would you like your parents to be on the road and you driving around like that?”

[61] The video shows that Mr. Gill was experiencing discomfort as police were holding him and searching him. It is understandable that the officer was less than empathetic towards Mr. Gill at that time. It was inappropriate, but does not rise to the level of being a substantial interference with the Applicants’ physical and psychological integrity. This was not a routine vehicle stop for a Highway Traffic Act infraction.

Credibility of Applicants' Evidence

[62] I have also considered the evidence of Messrs. Gill and Kang and largely reject it. Clearly, Mr. Gill was not being honest about the evening’s events or, if he was, he seems to have no recollection about much of what took place. Once he refused to acknowledge that he had been the individual operating the U-Haul pick-up, when it is blatantly obvious from the video, he retained zero credibility.

[63] Mr. Gill only seemed able or willing to recall the trucking yard. He saw three to four cruisers pull up as he was in the passenger seat of the transport. Guns were pointed at him. Officers opened the transport door and threw him to concrete floor. His arm was grabbed. Then got on top of him. He said that none of the officers gave him any direction. The right side of his face was pinned against the ground and it caused a scrape. A knee was on his body, the officer’s weight was on him. Police delivered a few strikes. There were three or four to his back and back of head and his legs. His legs were held. They pushed his face into ground. He was bleeding. Police asked for his arm, but it was pinned under him. Mr. Gill was screaming in pain.

[64] Later, the police pushed him against the cruiser and aggressively pushed his arms up while searching him. When asked to widen his legs, an officer kicked him in the calf. And while he was sitting in the cruiser, an officer said,

“You brown fuck, you shouldn’t have come to Durham region, that’s how we do it, we beat the shit out of you guys.”

[65] Mr. Gill wasn’t clear on who that officer was but they were Caucasian. When asked about injuries, Mr. Gill said he experienced mental stress and anxiety, in addition to physical injuries of a scrape to his face, a cut to the inside of his mouth from a tooth, and overall body soreness that lasted for about a week. Exhibit 5 are photos taken of Mr. Gill by police.

[66] In cross-examination, Mr. Gill seemed to lack any memory of how he came to arrive at that trucking yard. He did not seem to be clear on what happened at the LCBO, although he did acknowledge, after some hesitation, that the police were pursuing him, indicating, however, that he wasn’t sure why.

[67] He also claimed to not remember about the motor vehicle collision in Clarington, the dangerous driving that was depicted on the Air One video, or who was driving the U-Haul, despite the clear inference from the video that it was Mr. Gill who exited from the driver seat. Mr. Gill even went so far as to suggest that the two “shadows” exiting the U-Haul pick-up truck could have been animals.

[68] Given his evidence in cross-examination, I find Mr. Gill to lack credibility. It is beyond belief that his answers point to simple reliability issues; his answers or the claimed lack of ability to recall details that depict him in a negative light are made obvious upon a review of the video evidence and lead me to find that I can have no confidence in his evidence.

[69] This is a particularly important finding because he is the only source of the evidence that an officer made an apparently racist and demeaning comment towards him. Given my findings about his lack of credibility, the applicant has not met his burden in establishing that aspect of the incident took place.

[70] In his evidence, Mr. Kang admitted the LCBO theft. He identified Mr. Gill as the driver, which is borne out by the evidence. Mr. Kang claims that he asked Mr. Gill to stop as he knew the police were following. This, however, belies his conduct after the truck came to a stop in the trucking compound. If he was so bent on surrendering, why try to evade arrest by entering running transport.

[71] Mr. Kang indicated that he couldn’t get out of the U-Haul before because it had been travelling too fast. He explained that he went to hide in transport. It may be semantics, but hiding is an attempt at escape through evading arrest contrary to his claim that he was not trying to escape.

[72] Mr. Kang claimed in his evidence that he wanted the police to arrest him. He testified that when he exited transport, he was trying to surrender, and the unleashed dog was immediately let loose on him. He had his hands raised, he was holding a pack of cigarettes and a cellular phone. He was bitten in right chest area and on right arm. He was scared of the dog. Then several police officers jumped on him. They were trying to cuff him, but his hands caught under his body as officers were on top of him with their body weight.

[73] Mr. Kang claims that he was not resisting, that he experienced many hits to his body, his ribs and legs, and his head. He was also tased. He said that he suffered broken ribs. Police held his hair bun to control him. Mr. Kang testified that officers pushed him into back of a cruiser face down. After he was placed in the cruiser, he claims that an officer hit him in the face. This occurred a minute or so after he was placed in the car. After being prompted by counsel, he testified that he was removed from the cruiser, beaten, and placed back in the cruiser prior to being removed again and placed in an ambulance.

[74] Mr. Kang indicated there were six or seven police officers involved in that altercation. They were yelling at him. When asked which of the officers hit him on that occasion, he could not recall, explaining that it all happened so quickly that he could not remember, but it was a white male with curly hair. He was hit in the face. He was not sure how he was hit, but there was a lot of force. He was not sure if it was a punch.

[75] Although Mr. Kang’s evidence did not suffer from the same obvious omissions as Mr. Gill’s evidence, I, nonetheless, have some significant concerns with it.

[76] Mr. Kang had consumed heroin on the night in question and could not provide much, by way of details about the suspicious punching incident that he claims. In fact, he completely left it out of several points of his testimony and had to be essentially prompted by counsel to recall the transaction.

[77] In cross-examination, Mr. Kang seemed more concerned that he was “beaten” during the initial arrest process, and then had his hair pulled, and was thrown into the back of the cruiser. He completely omitted any reference to another, stand alone beating, before being placed in the ambulance, despite several prompts to do so by the Crown. His answer was that the officers, “pulled my hair and searched me badly.” And after that he was in the ambulance.

[78] Given the inconsistencies between his evidence in-chief and his cross-examination, I do not find that this alleged discrete beating by officers took place at all and it is the onus of the Applicant to prove that aspect. Certainly, there is nothing else in the evidence to provide corroboration of that and I do not accept Mr. Kang’s evidence in that area, even to the threshold of a balance of probabilities.

[79] I have considered the possibility that the confusion could be the result of a language difficulty given that English is not Mr. Kang’s first language, but we proceeded with interpreters, and I find that Mr. Kang was given several opportunities to refer to that area of his testimony, and secondly, his evidence, even during examination in-chief, was lacking in any significant detail that would afford any degree of confidence in the claim. For example, he claims that he was “beaten up” but then describes it as a single blow to his face, but does not know the nature of the strike. It is likely that the image is from a more thorough search or the initial assessment by the tactical medic who attended the scene. Even if that still image on body worn camera from Officer King remains unexplained, I do not find that the Applicant has proven that Mr. Kang was punched or beaten in an act of vengeance by a member of the Durham Police Service.

[80] What assists me in coming to that conclusion is that only a couple of the officers, McLean and Boyd, were asked, explicitly, if they or any other officer they observed simply punched Mr. Kang in an act of rage at around 9:30 p.m.

[81] This, in my view, violates the rule in Browne and Dunn requiring allegations be put to witnesses. Yes, defence counsel asked in broad strokes what was taking place at that time, but fairness required that the officers be confronted with the serious allegation that Mr. Kang was making so that I could gauge their response. This was not done, so it has an impact on the weight of Mr. Kang’s evidence on the matter.

[82] As far as injuries, Mr. Kang claims ongoing psychological impacts and some pain when he sleeps on the left side of his body. He has been told to take some Tylenol. He also suffered from a black eye, an injury to his chest and arm, likely both from the interaction with Taz, the K9. Mr. Kang also suggested that his ribs had been broken.

[83] The images at Exhibit 2 depict many of these injuries, and the cut on his chest and marks on his forearm are consistent with what is shown on the body worn camera during the initial attempted apprehension by Officer Dunlop. As for the other injuries, they do not appear significant given the overall context and may very well have occurred as a result of the motor vehicle collision he had been involved in.

[84] Officer Boyd delivered one drive stun with a taser to Kang with minimal effect. He was too close for probes. That officer testified that Mr. Kang was attempting to kick at the police and surmised that the longer the fight goes on, the increased likelihood of someone being injured. Officer Boyd then deployed probes, got good contact, and Mr. Kang was cuffed shortly thereafter. Officer Boyd asked about the video from 9:30 p.m. and whether or not he saw other officers punching Kang and he could not recall that.

[85] The body worn camera of Officer King at nine thirty showing several officers gathered around Mr. Kang where one officer appears to be holding Mr. Kang up and his shirt is coming up a bit. There is no physical force being applied while the video is running. It is unclear what is occurring here. I do know that the medic attended at some point that evening, otherwise, nobody could explain what was going on here, and it was never suggested to any of the officers that gratuitous violence was being applied to Mr. Kang at that time so that they could respond to what was likely the most serious of the Applicant’s allegations, that the police, after Mr. Kang was arrested, removed him from the cruiser and struck him, for no good reason, at least once in the face.

[86] In my view, given my rejection of Mr. Kang’s evidence, this one image does not satisfy me on a balance of probabilities that the police engaged in this alleged conduct. Although it does cause me some pause given what was going on here has not been explained, it is entirely possible that the medic had arrived and was in the process of assessing Mr. Kang or that some other completely justified part of the process was taking place.

[87] In my view, when one considers the extremely serious and unknown situation that the police were dealing with, they acted reasonably in the circumstances and used a measured amount of force when arresting the Applicants. That said, it was not perfect.

[88] Some examples of this inappropriate behaviour included Officer Dunlop admitting to losing his cool and being unprofessional when he uttered inappropriate comments to Mr. Kang. Another was the hand covering of his body worn camera by Officer Scott from 12:18:18 to 12:18:24 was questionable, especially at a time when Mr. Kang was being moved to the cruiser.

[89] The compound CCTV seems to show no obvious reason for the officer’s hand to rest there, and the officer’s attempted to explain it, he indicated that he rest his hand there, that he may have been digging in a pocket. None of that actually appears to have occurred.

[90] That said, there does not appear to be any police misconduct during those six seconds, so nothing much turns on this issue. Obviously, Officer Scott would be best to ensure that he finds a better place to rest his hand going forward.

[91] Yes, there were some reliability concerns with the memory of some officers uncovered through cross-examination. For example, what demands were made, how much time had passed and the officers seemed to lack a recollection on what their colleagues were doing. Also, there were a couple of occasions where some officers alert others of the body worn cameras which is not something that should be done. But any concerns about that conduct or the potential distortion of the evidence was overcome through the video evidence that was available.

[92] I would also note that the officers on several occasions were not in compliance with their own body worn camera policies especially to activate the camera whenever they were interacting with a suspect. That was clearly not done and, at some points, cameras were covered or turned off and then never turned back on.

[93] I have considered that aspect and although I would hope that the officers would be more diligent in their use of their body worn cameras going forward, the lack of some of that evidence does not prevent me in coming to the factual conclusions that I have arrived at.

[94] Throughout the evidence there was a theme when officers were asked by defence counsel about what other officers were doing when they were there and it was being played on screen. It reminded me of comments made by Justice O’Donnell in the case of R. v. Quick, 2024 ONCJ 232, where in dismissing a claim of excessive force, there were some concerns expressed over some evidence of members of the Niagara Regional Police who had only observed and could only recall what they themselves did. I would agree with Justice O’Donnell that it seems highly implausible that so many officers could see so little of what happened in their immediate vicinity.

[95] I do not make any adverse findings based on the lack of use of force reports being filed by several officers. The Police Services Act, O. Reg. 268/10 (Use of Force) specifically indicates that such reports are not required for injuries that do not require medical attention or when an officer is not informed of such an injury before going off duty. It is fair, given that requirement, that many of the officers did not believe they needed to file such a report.

Remedy for Excessive Force (if breach found)

[96] If I am incorrect in my conclusion that a Section 7 violation for the use of excessive force has not been established, I would indicate that, if there was a breach, I would not be inclined to grant relief in the form of a stay of proceedings.

[97] There are two categories of cases when a stay for an abuse of process will be warranted: (1) the “main category” where the state’s conduct compromises the fairness of an accused’s trial; and (2) the “residual category” where the state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process.

[98] This is from R. v. O’Connor, [1995] 4 S.C.R. 411 at paragraph 73.

[99] The test for the granting of a stay of proceedings is from R. v. Babos, [2014] 1 S.C.R. 309, 2014 SCC 16 at paragraph 32,

The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(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’.

[100] As caselaw tells me, a stay of proceedings is an extreme remedy that should be reserved for the “clearest of cases”. In my view, this is not such a case. Although, as I have found, some of the conduct of the police was not as professional as the public might expect. When considered in the context of that evening’s events, for example, the extremely serious and dangerous conduct that the defendants engaged in, a stay is not an appropriate remedy.

[101] Although counsel have not asked for other remedies such as a sentence reduction, in my view, the conduct of the police during the arrest would form part of the overall circumstances that I would consider when considering what an appropriate sentence is, should this matter get to that stage.

[102] That said, as I have found, I am not of the view that the conduct of the police rose to the level of a significant interference with the Applicants and the most serious of the allegations have not been established by the Applicants.

Section 503 Breach

[103] Turning now to the other aspect of the Application, the failure to bring the Applicants before a justice within 24 hours of arrest.

[104] Section 503 of the Criminal Code requires:

Subject to the other provisions of this section, a peace officer who arrests a person with or without warrant and who has not released the person under any other provision under this part shall, in accordance with the following paragraphs, cause the person to be taken before a justice to be dealt with according to law:

(a) if a justice is available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice without unreasonable delay, and in any event within that period; and

(b) if a justice is not available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice as soon as possible.

[105] Caselaw establishes that a violation of this rule can amount to a breach of Section 9 Charter rights, the protection against arbitrary detention or imprisonment.

[106] Much of the evidence was admitted by agreed statement of fact. As we know, the Applicants were arrested on June 13th, 2023 around 9:15 p.m. The correct legal name of Ajitpal Gill was confirmed at 8:53 a.m. on June 14th. The original information was not sworn until June 15th 2023 at 6:29 a.m.

[107] Mr. Gill finally appeared in bail court at 9:12 a.m. and Mr. Kang appeared at 11:50 a.m. on June 15th.

[108] On June 15th, Mr. Gill proceeded with a bail hearing and was detained.

[109] Mr. Kang’s matter was adjourned to June 16th and then the 21st. He was denied bail after a hearing on March 22nd, 2024. There was an email indicating that the bail court was closed at 3:00 p.m. on June 14, 2023.

[110] The Crown concedes a Section 9 breach given the admitted evidence. Clearly more than 24 hours had passed before the Applicants appeared in bail court. My understanding of the evidence is that it was approximately 36 hours that passed between the initial arrest and their first appearance before a justice. What is not entirely clear is who bore responsibility for that result, the police or the courts. However, not much turns on that determination given the Crown’s reasonable concession and the delay that ensued.

[111] I agree with the Applicants’ submissions that there were options available that would have seen the rights of Mr. Gill and Mr. Kang respected. A John Doe information could have been sworn had the police not been satisfied with the identity of one or both of the Applicants or they could have sworn an information with at least some counts and sought an investigative remand as permitted by Section 516 of the Criminal Code.

[112] Unfortunately, Detective Constable Duguay, the officer tasked with completing the court brief, was unaware of those options and explained that she had never been put in a similar situation before, that is such a significant investigation with a quickly approaching deadline.

[113] Some other options that the police could have pursued would have been to have another officer start the paperwork prior to Officer Duguay coming on shift later that morning or, perhaps, they could have asked Officer Duguay to come in early.

[114] That said, I do not find that any delay was intentional conduct by Officer Duguay showing disregard for her obligations to Mr. Gill and/or Mr. Kang. The officer was given a 2:00 p.m. deadline and worked hard to meet that.

[115] Unfortunately, there is no explanation for why it did not go beyond that. The evidence is that the bail court closed that day around 3:00 p.m. There appears to have been time to address Mr. Gill and Kang, but perhaps not the time to have a bail hearing.

Remedy for Section 503 Breach

[116] I must now turn to whether a remedy is warranted.

[117] As I have said, a stay of proceedings is an extreme remedy that should be reserved for the clearest of cases and I keep in mind the Babos test that I recited earlier in these reasons. I find this breach to be technical and inconsequential.

[118] In the end, the Applicants did not suffer any prejudice. Although the circumstances were not ideal, and there is little by way of an explanation for why, having met the imposed 2:00 p.m. deadline, the courts were not in a position to address the matter, I am not of the view that this would fall into the category of conduct that calls for a stay of proceedings.

[119] In my view, there is no evidence for me to find that this is a systemic issue or that the police acted in a way that was lackadaisical towards the rights of the Applicants.

[120] Based on the evidence that I accept, the integrity of the justice process has not been undermined and given the serious conduct of the Applicants, society has a significant interest in having a final decision on the merits.

[121] I would add that, although not a formal remedy pursuant to Section 24(1) of the Charter, I would be inclined to consider the delay as part of the overall circumstances of the Applicants when considering an appropriate sentence should we reach that phase.

Conclusion

[122] In conclusion, for the reasons indicated, the Application is dismissed.

...MATTER CONCLUDED