ONTARIO SUPERIOR COURT OF JUSTICE

DATE: 20120328

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Neil Singh Applicant – and – HER MAJESTY THE QUEEN Respondent

F. Davoudi , for the Applicant, Neil Singh

S. Cressman , for the Respondent, Her Majesty the Queen

HEARD: March 26 and 27, 2012

Thorburn J.

APPLICATION PURSUANT TO SECTIONS 7, 12 and 24(1) OF THE CHARTER

1. The Relief Sought

[ 1 ] The Applicant, Neil Singh, has been convicted by a jury of armed robbery with a firearm and forcible confinement of Mohammad Kamran Sheikh.

[ 2 ] Singh claims his sections 7 and 12 Charter rights were infringed by the excessive use of force by police after his arrest. As a result, he submits his conviction on the above charges should be stayed pursuant to section 24(1) of the Charter .

2. Background Facts

Some of the Evidence Adduced at Trial

[ 3 ] On February 9, 2009, Mohammad Sheikh was the night supervisor at Crane Supply.

[ 4 ] A robbery took place that night.

[ 5 ] At about 10:20 p.m. on February 9, 2009, Singh was working at the yard. Sheikh saw Singh in the parking lot where he was picked up by another man. According to Singh’s punch card, he left the premises at 10:22 p.m. on February 9, 2009.

[ 6 ] Sheikh was in the parking lot because he realized there were errors in the paperwork he was to complete. Because he could not leave right away, he went out to his car to turn off the engine. He went back into his office and within five minutes, he heard a bang. Someone had kicked his office door hard.

[ 7 ] A masked man with greenish or bluish eyes about five feet eleven inches tall shouted at him to get on his knees. He pointed a handgun at him.

[ 8 ] Sheikh moved his body left of his desk and fell on his knees. The man then told him to lie on his belly. He did so and put his hands behind his back. Sheikh looked outside his office window and saw a second person.

[ 9 ] Sheikh’s hands and legs were tied with Zip ties and his eyes were covered with duct tape. He told the man he had a heart condition so not to duct tape his mouth. The man told him he would be alright. A few minutes later, as he was on the floor he heard a forklift. From the sounds he believed the person knew what he was doing.

[ 10 ] Sheikh heard the copper being loaded. From the sounds and movements of the forklift, it sounded like there was more than one person outside.

[ 11 ] The person with him in the room went through his drawers and those of his supervisor Carlos in the next door office. He asked the person guarding him to loosen the ties on his hands as they were hurting. The man guarding him did so. The man then tied his hands with duct tape before cutting the Zip ties. After a while there were no more sounds and he believed the man guarding him left. He managed to undo his hands and found a phone and called 911.

[ 12 ] Afterward, the office manager did a count and discovered that Crane had paid $344,255.50 for the missing copper.

[ 13 ] Singh was arrested on June 11, 2009. At that time police seized a cell phone on his person. There were a number of telephone calls between Singh and an individual named Randy Maharaj between 8:44 p.m. and 10:31 p.m. on February 9 th , 2009. Thereafter there was a gap when no calls were received or made. There was another gap in telephone communication between 1:25 and 3:09 a.m. All of the calls were made from a cell phone belonging to Neil Singh. Many of the calls were with Maharaj and a review of the cell tower signals shows that Maharaj came from Scarborough to the Crane Supply vicinity. Singh testified that Maharaj came to drink with him.

[ 14 ] Singh said he did not know why Maharaj sent him a text message saying “Zip ties” at 11:58 p.m. (about fifteen minutes before Sheikh called 911). He says Maharaj told him he had sent him the text message in error.

Interviews after Mr. Singh’s Arrest

[ 15 ] Singh was arrested while at work on June 11, 2009. He was arrested by Detectives Clark, Watts and Belanger and taken to 32 Division.

[ 16 ] Singh swore in his affidavit and testified on this Application that he was assaulted three times by Detective Clark in the presence of Detective Watts. No evidence was lead by the Crown to contradict Singh’s testimony.

[ 17 ] Singh testified that after being strip searched and given the opportunity to put his clothes back on, Singh was placed in a room. Detectives Clark and Watts came to question him. Detective Watts asked him if he knew Maharaj (his co-accused) and Singh said he did not. (Singh testified on this Application that although he knew and socialized with Randy Maharaj, the officer’s question was asked in the context of whether he knew another Crane Supply employee, so he replied that he did not know Maharaj as there was no employee named Maharaj.)

The First Assault

[ 18 ] Detective Clark struck Singh behind his head with the back of his palm five or six times and put his knee into his ribs once or twice. He told Singh he was lying about not knowing Randy. Singh says he was struck for a minute or two. Singh said the only Randy he knew was a mechanic.

[ 19 ] Detectives Clark and Watts left and returned approximately one hour later. Watts asked if he was ready to talk. Singh replied that he was ready to talk but that he would not talk about the robbery as he did not know anything.

The Second Assault

[ 20 ] Clark put his hands around Singh’s neck and slammed his head against the wall saying, “This is what it feels like when you put a gun in people’s faces.” Detective Clark had one hand and then both around his neck for about a minute. Detective Clark also hit him on the back with a closed fist several times. Singh says he could not breathe and was coughing. He felt like he would black out. The inside of his lower lip began to bleed.

The Third Assault

[ 21 ] The two officers left and said they would return. About 10 or 15 minutes later they returned with Maharaj and someone said “Look” whereupon they closed the door and left. (Maharaj testified that when he saw Singh, Singh looked like he had just been in a fight.)

[ 22 ] Sometime later, Detective Clark came into the room and asked why he was lying. Singh said he wasn’t. Detective Clark said, “What do Zip ties mean to you?” He replied that he did not know what Detective Clark was talking about. Detective Clark then began hitting him and said, “Why did someone send you a text like that?”

[ 23 ] Singh testified that Detective Clark hit him with his hand on the back of the head with considerable force many times. Sometimes this was done with an open fist and sometimes with a closed fist. He was kneed in the ribs a couple of times. Singh said, “Just kill me man.” Singh said he could not move as he was sitting and Detective Clark was standing.

The Video Statement

[ 24 ] An hour later Detective Clark returned on his own and apologized for what he had done and said it was just part of his job. He gave Singh a bottle of water, a chicken sandwich and a towel to clean himself up. Detective Clark said he believed him when he said he didn’t do it and wanted him to make a video statement. He said that he would be asked on tape if he wanted a lawyer and was to reply that he did not want a lawyer.

[ 25 ] Throughout these interviews, Singh maintained his innocence. Singh agreed to give a video statement.

[ 26 ] In the video statement Singh said he did not want a lawyer and had nothing to do with the robbery. He said that thereafter he was allowed to speak to his girlfriend but no other calls were allowed. He spent the night in jail and was detained in the Maplehurst facility until June 30, 2009 when he was released on bail.

[ 27 ] From the videotape it is not apparent that Singh had any bruising, swelling or other apparent injuries although the quality of the tape was not good.

[ 28 ] While at Maplehurst he did not seek any medical treatment not did he complain about these incidents.

[ 29 ] On July 10, 2009, ten days after his release from custody, he visited his family doctor and told him he had pain in his neck area.

[ 30 ] Singh has never made any notes about what happened to him.

Assaults on Maharaj (the Co-Accused)

[ 31 ] Maharaj was arrested and questioned on the same day. Maharaj had the opportunity to speak to duty counsel and thereafter was taken down to an interview room. Maharaj indicated that after speaking with counsel he did not wish to make a video statement.

[ 32 ] Maharaj testified that as soon as he said he did not wish to make a video statement, Detective Clark grabbed him out of his chair and dragged him to an intermediary room and threw him on the ground. Detective Clark came down on top of him and pinned him down on the ground and began punching him in the ribs for what Maharaj said felt like a lifetime. Meanwhile, Maharaj says Officer Belanger tried unsuccessfully to step on his testicles. He screamed loud enough that someone eventually opened the door and the beating stopped.

[ 33 ] Detective Watts told him the best thing for him to do would be to give a statement and told him to say on tape that he did not seek counsel. As such Maharaj gave an inculpatory statement.

[ 34 ] The next day when he was sent to Maplehurst, Maharaj sought medical attention and mentioned to the nurse that his ribs hurt and he had a sore throat. The document from the institution notes bruising on his arms.

[ 35 ] Immediately upon being released he went to emergency and was advised that he had a fractured rib.

Analysis and Conclusion

[ 36 ] Section 7 of the Canadian Charter of Rights and Freedoms provides citizens with a right “to life liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” As such, Singh has the right to be secure against arbitrary force, especially physical violence, by those who act on behalf of the state.

[ 37 ] Section 12 of the Charter provides that “everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”

[ 38 ] Section 24(1) of the Charter provides that “anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a Court of competent jurisdiction to obtain such remedy as the Court considers appropriate and just in the circumstances.

[ 39 ] The Crown in this case concedes that Singh’s Charter rights were infringed as he was assaulted by police and that in these circumstances there are two possible remedies available: to reduce the sentence otherwise considered fit in the circumstances or to stay the proceedings. Lebel J. in R. v. Nasogaluak 2010 SCC 6 , 2010, S.C.C. 6 , recognized that excessive force can be remedied through a reduction in sentence, either by application of the remedial provision of the Charter or through the sentencing provisions of the Criminal Code . The court has the inherent jurisdiction to stay proceedings as a means of control over the judicial process ( See R. v. Jewitt , 1985 47 (SCC) , [1985] 2 S.C.R. 128 and R. v. Tran , (2010) ONCA 471 at para. 83.)

[ 40 ] A stay of proceedings is warranted where “the prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.” This remedy is to be employed only as a last resort. (See R. v. O’Connor , 1995 51 (SCC) , [1995] 4 S.C.R. 411 , per L’Heureux-Dubé J., writing for herself, La Forest and Gonthier JJ.)

[ 41 ] In R v. Tobiass , 1997 322 (SCC) , [1997] 3 S.C.R. 391 , the Supreme Court, held that two criteria must be satisfied:

(i) The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

(ii) No other remedy is reasonably capable of removing that prejudice.

[ 42 ] There may be a third criterion in cases where it is not clear that the abuse is sufficient to warrant a stay. In such cases, “it will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits”.

[ 43 ] The Crown submits that the appropriate remedy is to reduce Singh’s sentence.

[ 44 ] Counsel for Singh argues that the state conduct was so egregious that a stay is the only appropriate and just remedy.

[ 45 ] In this case, Singh was assaulted on three occasions while being interviewed following his arrest. Throughout the process he maintained his innocence. Unlike Maharaj he gave no inculpatory statement. He complained to no one about his treatment and there is no evidence of any external injuries from a review of the videotape taken on the same day as the assaults. He sought no medical attention until approximately one month after the assaults (and ten days after his release from custody.) Singh suffered no permanent injuries.

[ 46 ] While the uncontradicted evidence of Singh is that he was assaulted by Detective Clark, his injuries were not permanent or lasting nor did they result in serious harm.

[ 47 ] Moreover, Defence concedes that these assaults did not in any way affect the fairness of the trial at which Singh was found guilty of very serious charges of armed robbery and forcible confinement.

[ 48 ] This Crown elected to seek a stay of the proceeding against Singh’s co-accused, Maharaj. However, Maharaj’s circumstances are distinguishable from those of Singh: Maharaj suffered more serious injuries. He sustained a fractured rib and bruises as confirmed by others. Maharaj sought medical attention while incarcerated and immediately upon being released, went to emergency to seek medical assistance. Moreover, just after suffering these injuries, he gave an inculpatory statement to police.

[ 49 ] There are few cases in Canadian jurisprudence where a stay has been imposed solely as a remedy for police brutality. The parties were unable to provide me with a case where in circumstances involving equally serious charges in the absence of trial fairness issues and very serious injuries, a stay of proceedings was ordered.

[ 50 ] In this case, while the behaviour of police was thoroughly reprehensible behaviour on the part of those acting on behalf of the state, given that the injuries were not extremely serious, there was no effect on the fairness of the trial and Singh has been convicted of two very serious charges, I do not believe this is one of those rare occasions where a stay of proceedings is warranted. I say this notwithstanding my very serious concerns about the behaviour of these officers.

[ 51 ] For these reasons the appropriate remedy in these circumstances is to reduce the sentence Singh would otherwise receive. As such, the Applicant’s request to stay the conviction of these serious charges is denied.

[ 52 ] I trust however that in light of the very serious allegations made by both Singh and Maharaj about the behaviour of Officers Clark and Watts, the Crown will ensure that there is a thorough investigation of these issues.

Thorburn J.

Released: March 28, 2012

DATE: 20120328

ONTARIO SUPERIOR COURT OF JUSTICE

NEIL SINGH Applicant – and – HER MAJESTY THE QUEEN Respondent

RULING REGARDING REQUEST FOR STAY OF APPLICATION Thorburn J.

Released: March 28, 2012