Her Majesty the Queen v. Aniete Eyo, 2012 ONSC 3634

Ontario Superior Court of Justice

Court File No.: CR-12-90000329-0000
Date: 20120620

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – ANIETE EYO Applicant

Jason Mitschele , for the Crown

Nic Rozier , for the Applicant

Heard: May 23-25, and 28-30, 2012

STAY APPLICATION

A.J. O’MARRA J.: (Delivered orally in Court on May 30, 2012)

Introduction

1Mr. Eyo is charged with three counts of having drugs in his possession, heroin, cannabis and methylenedioxyamphetamine (MDMA), for the purposes of trafficking contrary to s.5(2) of The Controlled Drugs and Substances Act. He has applied for an order to stay the prosecution of the charges on the basis that his rights pursuant to ss. 7 and 12 of the Charter of Rights and Freedoms were infringed by the excessive use of force by officers of the Toronto Police Service in his arrest, which caused him injury.

2On November 23, 2009, members of the Guns and Gangs Task Force of the Toronto Police Service (GGTF), with the assistance of members of the Emergency Task Force (ETF), executed a search warrant on the address of 940 Caledonia Road, Apt. 804, Toronto, to search for firearms believed to be located in that apartment. A team of ETF officers was employed in order to gain entry to the apartment to secure it and to render it safe in order to permit the investigating police officers to carry out the search of the premises. It is undisputed that during Mr. Eyo’s arrest in the apartment, he suffered a fracture to the orbital bone of his left eye that later required surgery to correct. In addition, he sustained a small cut higher on his forehead over his left eye. The cut to the upper left forehead was bleeding and noticed by two GGTF officers who took custody of Mr. Eyo from an ETF officer who had escorted him from the premises to the hallway after he was initially detained. The injury to the orbital bone was not detected until much later when it was revealed after a CT Scan in a hospital.

Legal Principles

3The excessive use of force by police in arresting a person has been held to be a breach of the s.7 Charter Right to the security of the person and a s.12 right not to be subjected to cruel and unusual treatment. (See R. v. Walcott , 2008 11374 (ON SC) , [2008] OJ 1050, at para. 22 citing: R. v. Lafleur (1986), 1986 7304 (QC CS) , 52 CR (3 rd ) 275, R. v. Gladue , [1993] AJ 1045 ; R. v. Fryingpan , 2005 ABPC 28 () , [2005] A.J. 102 and R. v. JW , 2006 ABPC 216 () , [2006] AJ 1097).

4On an application under s.7 and 12 of the Charter , the applicant bears the burden of proving on a balance of probabilities that his rights were infringed.

5The police are permitted, as set out in s.25 of the Criminal Code , to use force to affect a lawful arrest where the police officer believes on reasonable and probable grounds it is necessary, but only as much force as is necessary in the circumstances.

6In R. v. Nasogaluk , [2010] 1 SCJ 6 at para. 34 LeBel J. stated:

Section 25(1) essentially provides that a police officer is justified in using force to affect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended to likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him or herself, or another person under his or her protection, from death or grievous bodily harm. The officer’s belief must be objectively reasonable. This means that the use of force under s.25(3) is to be judged on a subjective – objective basis ( Chartier v. Greaves , [2001] OJ 634 (QL) (SCJ) at para. 59 ) if force of that degree is used to prevent a suspect from fleeing to avoid lawful arrest, then it is justified under s.25(4), subject to limitations described above and to the requirement that flight could not reasonably have been prevented in a less violent manner.

7LeBel J. cautioned that police action should not be judged against a standard of perfection or the force used measured with exactitude. The police are permitted a certain amount of latitude in the conduct of their duty when acting and reacting in difficult, dangerous and demanding situations. As noted in Walcott at para. 24 :

In assessing the reasonableness or necessity of the force used…a court should take into account all the circumstances, and including whether:

(i) The subject was acting in a hostile manner towards the police, resisting arrest or failing to comply with an officer’s arrest procedure;

(ii) The relative sizes and weights of the officer and the suspect;

(iii) The officer was at risk of harm;

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

(v) The police understood that weapons might be on the premises.

8The issue to be determined is whether, in the circumstances of Mr. Eyo’s arrest, the use of force used by the police that caused the injury was excessive.

Circumstances of the Arrest

9I shall now turn to outlining the circumstances that led to Mr. Eyo’s arrest.

10Team 7 of the ETF consisted of nine members and a sergeant especially trained in the use of tactics and weapons in high risk situations. The team was briefed on November 23, 2009 by members of the GGTF about a warrant that they had authorization to affect a search at 940 Caledonia Road, Apt. 804. They were provided information as to the nature of the investigation, as well as a person of interest named Garfield Powell, the occupant of the apartment believed to be in possession of firearms. They were also informed that this person had been involved and had a criminal record that involved homicide, and who was also known to be violent and in possession of firearms.

11The ETF attended to the premises and set up outside of the apartment. They used a battering ram to knock in the door to the apartment. Several blows were required to force the door open. On breaching the door, the police called out several times “Toronto Police”. On opening the door several males could be seen in the living room which caused the ETF to conduct a breach and hold procedure whereby they remained at the door and gave loud verbal commands to those inside to raise their hands and to come forward one at a time to be secured and removed from the apartment.

12While the door was being battered in, an officer of the GGTF, Detective Constable Antonio Fredericks was stationed on the ground outside of the apartment building to watch as to whether anything was thrown from the apartment. He saw someone throw a handgun out the living room window of the apartment. It landed in the grass several feet in front of where the officer stood. The information as conveyed to the officers in the building at the apartment.

13After the ETF officers called each of the five males who had been in the living room forward and handcuffed, they were turned over to members of the GGTF, who waited in the hallway to be removed to the nearby stairwell.

14The door had been breached at 8:10 p.m. and the five males seen in the living room had been all removed by 8:21 p.m. During that period of time, Detective Constable Fredericks further observed several bags, later determined to contain drugs, tossed out of another window of the apartment.

15Once the five males had been secured and removed from the apartment, again, a member of the ETF team called out for anyone still in the apartment to reveal him or herself. On direction from the team sergeant, members of the ETF then entered the apartment to conduct what was described as a stealth search in order to clear the apartment of any further occupants and to ensure that it was safe for the investigators to conduct a search.

16Constable Michael Fonseca was the first officer to enter, followed by other team members. After a search of the kitchen, living room and washroom in the small apartment it was observed that one of the two bedrooms doors was closed. The first bedroom, with the door open was cleared. Constable Fonseca and several other members of the team positioned themselves in the small hallway outside of the second bedroom. Light could be seen coming from under the door. Fonseca tried to open the door but found that it was locked. He called out again, and at 8:29 p.m. he kicked open the door. He testified he saw the applicant, Mr. Eyo, sitting on the edge of the bed in the small bedroom.

17Constable James Parliament was the first officer through the door after it had been kicked open, and he told the male to get down. He told him twice and twice he did not comply. He grabbed the male at the back of his shoulder and neck area with one hand and pushed him to the floor. He testified he had difficulty securing the male’s arms behind his back in order to put handcuffs on him. He was aware that other officers became involved in helping to secure the male’s hands and legs to prevent him from thrashing around.

18Constable Parliament recalled that the other officers involved were Michael Fonseca, Callum DeHartog and Alvin Valledor. However, he could not recall where each of them was in the “pile up”, as he described it, as they tried to bring Mr. Eyo under control, as he was focused on trying to gain control of Mr. Eyo’s arms. In the process of trying to secure Mr. Eyo’s arms he either knelt with one or both knees on his back momentarily. It was a fluid situation and he moved around in an attempt to secure Mr. Eyo’s arms and hands with the cuffs.

19Constable Fonseca went down to help Parliament with the struggling male. His focus was on Mr. Eyo’s right arm as he attempted to bring it under control and to move it to his back to be handcuffed.

20Constable Alvin Valledor came in after Fonseca. Before he had visual contact he testified he had heard sounds from where he was outside of the room of a struggle and yelling. As he came through the door he saw his teammates struggling with a male on the ground who was kicking out with his legs violently. He went down to take control of the male’s legs. He pinned one leg, and once the others had wrenched the male’s arms to his back, he helped to cuff them.

21Constable Callum DeHartog testified that he heard the sounds of a struggle coming from the small bedroom just after his teammates entered. As he came through the doorway he was holding his long gun on the shoulder sling and his upholstered taser. On seeing the other officers struggling with the male, he focused on the male’s left hand which was nearest to him being held up by the male’s head. Rather than going down with his weapons in hand he used his foot in an attempt to secure the male’s left hand, which was by his face. In the process, he testified his foot came into contact with the male’s face - a circumstance that he later noted that night in his notebook. He denied in cross-examination that he had deliberately kicked Mr. Eyo in the face or head or that he was trying to cause injury to him. Further, he decided not get down with the other officers because several were already involved with the suspect on the floor in a small confined space, and he was concerned about holding his taser and with the “muzzle integrity” of his long gun, referring to where it might point and discharge.

22Constable Jason Cawthorne moved to the doorway, as well holding his upholstered taser. There he could see what he described as an obvious struggle as the officers tried to bring the male under control. He yelled several commands for the male to stop struggling. It took seconds to less than one minute to bring the male under control. Once Mr. Eyo was handcuffed, he was lifted to his feet and taken by an ETF officer out of the room to the hallway outside of the apartment where he was turned over to the members of the GGTF.

23The officer who escorted him out of the apartment was believed to have been Constable Beetson, a member of the team who had since transferred to the Calgary Police Service and was not available to be called on the application.

24None of the officers involved in bringing Mr. Eyo under control observed or noted any injury to Mr. Eyo’s face. Constable Fonseca testified that once Mr. Eyo had been secured, his attention and focus was to continue with the clearing of the remainder of the bedroom and apartment in order to ensure that the scene was safe and secure.

25Detective Constable Shaun McKenzie, a GGTF officer, received Mr. Eyo from the ETF officer. He noted that Mr. Eyo was bleeding from a cut on his head. He said that he looked at it and concluded that it was not something that needed first aid. He did not notice any swelling or bruising. He said that everyone who was taken out of the apartment was checked by a tactical paramedic in attendance. However, he did not know for sure that Mr. Eyo had been seen.

26Detective Constable Chris Fitkin, who was with McKenzie in the stairwell when Mr. Eyo was in their custody, observed act to Mr. Eyo’s head that was bleeding. Sergeant Scott Lowe of the ETF was in the stairwell as well when Mr. Eyo was turned over to the Guns and Gangs Task Force members. He saw him as he passed by but did not observe any injury. The ETF members turned over the apartment to the GGTF investigators at 20:35 for them to conduct their search.

27When Mr. Eyo was removed from the apartment building, he was taken to 13 Division and paraded before a booking sergeant at 21:14. Mr. Eyo provided his name, address, and date of birth. He acknowledged he understood why he had been arrested and that he had been given his rights to counsel and that he would be given the use of a telephone. The sergeant asked if he had any illnesses or injuries that he should be aware of, at which point Mr. Eyo complained about his left eye. The booking sergeant noted a small cut to the top of his left forehead. Mr. Eyo told the sergeant he was having difficulty seeing out of his left eye. The sergeant directed the transport officer that was accompanying Mr. Eyo to ensure that it was noted and that the officers of the GGTF were advised. The sergeant advised Mr. Eyo that he would be looked after. Later, at 23:42 Mr. Eyo was brought before the booking sergeant and released with escort to attend St. Joseph’s Hospital to be examined.

28The transporting officer, Constable Michael Budd returned to the division with Mr. Eyo at 3:11 a.m. and presented him to the booking sergeant. Constable Budd advised the sergeant that Mr. Eyo had been seen at the hospital and that he had been “medically cleared”, that there were no major injuries, but that he should go to the eye clinic in the next week or two.

29Once Mr. Eyo had been taken to the Toronto Jail and seen by the medical staff there, he was taken for a CT Scan at St. Joseph’s Hospital and on December 4, 2009, there was a diagnosis of a “left orbital fracture with entrapment of the inferior rectus muscle” that required surgical treatment. He was thereafter referred to Sunnybrook where he received surgical treatment on December 9, 2009.

30Earlier, on November 24, 2009, after being taken to St. Joseph’s Hospital that morning, but before being taken to Old City Hall court for bail hearing, photographs were taken, entered as Exhibits 1 and 8A – 8B that show a small cut to the left forehead and a swelling to the left eyelid of Mr. Eyo. Sergeant Gary Long, the supervisor of the Guns and Gangs Task Force, received information about the injury to Mr. Eyo and prepared an injury report, November 24, 2009, Exhibit No. 9 that noted that the sixth male taken from the apartment and who had been found hiding in the bedroom had refused to comply with officers’ demands. He was taken to the ground and arrested. The sergeant noted an injury as being “bruise over eye”.

31Mr. Eyo testified that he was in the apartment when he heard a number of very loud bangs on the front door. At first he thought it was a robbery and went to the washroom. Then he heard loud yelling, “Toronto Police” several times, and he knew it was the cops. He also heard them calling out the occupants. When he heard the banging on the door and the yelling “Toronto Police”, he went into the bedroom and waited for the police to come to either arrest him or to speak to him. He chose not to come out. He said that after a number of minutes the door to the room was kicked open and when it was forced open he was sitting on the edge of the bed. The first police officer into the room told him to get down and put his hands up. As he was moving to the floor, he was assisted by the officer. There was no resistance. In seconds, he was handcuffed with his hands behind his back face down on the floor. He was then “booted in the head a few times” perhaps 10 to 15 times for not more than two minutes. Then, as he was being raised to his feet, but before he was standing, a police officer who was holding a shotgun in a manner he described as “an unusual way”, with his two hands on the barrel, hit him in the left eye with the butt of the shotgun. All he could see as a result of the impact was red, and he was not conscious of what happened to him afterwards when he was taken out of the apartment and the building.

32If the applicant’s claim that he was repeatedly kicked in the head while handcuffed in a prone position on the floor and then hit in the face with the butt end of a shotgun while handcuffed, as the Crown candidly acknowledged in submissions, the use of excessive force would be made out on the part of the police and a stay of proceedings the appropriate remedy. I agree, however, for the following reasons, I do not believe the applicant and reject his description of events:

1. His description of being “booted, booted, booted” in the head but not his face as many as ten to fifteen times for up to or no more than two minutes by an officer or officers defies credulity. The only visible injury at the time he was taken from the apartment and handed over to Detective Constable McKenzie was a cut to the top left of his forehead that, in McKenzie’s assessment, did not require first aid. If he had been subjected to such physical abuse as he described, his visible injuries, would have been much more severe and his very life likely in jeopardy.

2. His description of a police officer holding a shotgun by the barrel with two hands and using it to hit him in the left eye sounded contrived as he testified, as did his famed hesitation in being able to recall the word to describe the end of the shotgun he said was used to hit him.

3. He claimed to have been compliant and provided no resistance, yet his behavior leading up to the officers entering the bedroom belies compliance and is indicative of resistance. The apartment is quite small as revealed by the videotape made by the search team. It is a short distance from the front door to the washroom and entrance to the second bedroom (see Exhibit No. 10). Mr. Eyo knew the police had forcefully broken the front door and had called out all the occupants of the apartment. Rather than comply with the call-out, he locked himself in the bedroom.

33I accept the time line of events as noted by the police who delegated a central note taker to make such recordings. The police breached the door at 8:10 p.m. and began to call out the occupants. The five males visible in the living room were removed by 8:21 p.m., after which the police called out for anymore occupants to come out. I accept that the police knew that there was someone else in the apartment because, during the time Mr. Eyo was locked in the bedroom and the police were removing the other five males, an officer, Detective Constable Antonio Fredericks was outside the building on the ground and saw packages containing drugs tossed out an apartment window. The ETF officers forced open the bedroom door at 8:29 p.m. Mr. Eyo had remained hidden in the bedroom for 19 minutes. He was non-complaint. I do not consider his testimony that he just sat in the bedroom waiting for the police to come and either arrest him or just speak to him as credible in the circumstances.

34Mr. Eyo did not want to acknowledge that he locked the bedroom door. He gave, in my view, a number of nonsensical answers to why he remained in the bedroom and did not present himself when he knew it was the Toronto Police and that they were calling out all the occupants out of the apartment.

35Counsel for the applicant contends that even if the evidence of Mr. Eyo is rejected in its entirety the court should still be satisfied that the police used excessive force in the circumstances. The force used was objectively unreasonable.

1. Mr. Eyo was not struggling, he was not resistant. He was compliant based on the evidence of Constable Parliament who said he used only one hand to direct Mr. Eyo to the floor. Further, counsel argued that because there was an inconsistency as between Constables Parliament and Fonseca as to whether Parliament regained control of Mr. Eyo’s arms by himself or with the assistance of Constable Fonseca with respect to his right arm, the description of how Mr. Eyo was a fiction.

36I am satisfied that there was an act of struggle that occurred in the very small confines of the bedroom by the bed towards the door. It involved Mr. Eyo actively resisting and not relinquishing control of his arms to allow the officers to cuff him behind his back. He violently kicked out with his legs as described by Constable Valledor. Three officers, Parliament, Fonseca and Valledor, were down on the floor with Mr. Eyo trying to take him into control. Constable Cawthorne stood at the door and called out for him to stop resisting. It was a situation, as Constable Parliament described of a “pile up” of several officers with Mr. Eyo in a confined space. It was an active and dynamic situation that took seconds to bring him into control.

37I do not consider the different recollections of the officers of their respective roles or of not having observed how the other officers participated in taking Mr. Eyo into control as a major inconsistency in the description of the arrest. In my view, it does not serve to undermine my assessment of their veracity.

38I consider the ETF officers’ explanation for not noticing a small injury in the circumstances as reasonable. Once Mr. Eyo was under control after the struggle and taken out of the room, they continued with their clearing of the apartment, which was their focus to ensure that it was safe and secure for the pending search.

39In my view, the ETF officers did not use excessive force in the circumstances that prevailed on that occasion. They were involved in the execution of a search warrant for firearms in an environment occupied by an individual known to be dangerous and violent. They had cleared five males from the apartment. Mr. Eyo was hiding in a bedroom with the door locked. The officers were engaged in a high-risk clearance of the apartment where firearms were believed to be present and one had already been tossed from the apartment. It was reasonable for them to be concerned that whomever they encountered may have been armed.

40When Mr. Eyo was found, he was non-compliant with their commands and became physically resistant when taken to the floor. Although no evidence was led with respect to the degree or the type of force necessary to have caused the injury to Mr. Eyo, I accept that the injury was likely caused as an unintended consequence of Constable DeHartog’s use of his foot in his attempt to constrain Mr. Eyo’s arm while assisting the other officers to gain control of him. The officers were acting in a difficult and potentially dangerous situation and could not be expected to measure the use of force with the exactitude as suggested.

41In my view, the argument is baseless. Constable DeHartog made a note in his notebook that night that his foot came into contact with Mr. Eyo’s face. Further, as Sergeant Lowe observed, even if an observable injury had not been noted by him or the other ETF officers because it would not go unnoticed, as there is a filtering process by which it would be noted and reported, as indeed occurred in this case. The outward injury to Mr. Eyo, the small cut was noted by the GGTF officers who took control of Mr. Eyo outside of the apartment. Similarly, the booking sergeant at 13 Division noted the cut to Mr. Eyo’s upper left forehead. When Mr. Eyo told the sergeant he was having difficulty with the sight of his left eye and in noting the cut the sergeant directed the escort officer to ensure that it was made known to the Guns and Gangs Task Force who were in charge of the investigation. Sergeant Long of the GGTF was advised, and an injury report was prepared that day. In addition, arrangements were made at 13 Division to have Mr. Eyo taken to St. Joseph’s Hospital for an examination.

42There was no attempt to cover up or conceal that Mr. Eyo was injured or the circumstances in which it occurred. Outwardly, as stated before, it was not a severe injury. The more severe injury was not detected until a CT scan was conducted in hospital many days later.

43I am satisfied that reasonable force was used in the circumstances of Mr. Eyo’s arrest. The applicant resisted. He was injured unintentionally in the process of bringing him under control. The officers were engaged in securing an individual who had been hiding in the bedroom of an apartment that was considered a high-risk location because of the concern about presence of firearms.

44I am satisfied that excessive force was not used in the circumstances and, as a result, there was no breach of Mr. Eyo’s s.7 right to security of the person or subject to cruel and unusual punishment in violation of s.12 of the Charter of Rights and Freedoms . The application is hereby dismissed.

A.J. O’Marra J.