Introduction

[1] The defendants Daniel Douglas Kang and Troy Dubord are charged with drug and drug-related offences alleged to have occurred on September 16, 2010. In addition, Mr. Dubord is charged with assaulting Officer Edgar, a police officer, engaged in the execution of his duties contrary to s. 270(1)(a) of the Criminal Code.

[2] Mr. Dubord brought an application to stay the proceeding against him pursuant to s. 24(1) of the Charter on the basis of an allegation that excessive force was used during the course of his arrest, breaching his s. 7 and s. 12 Charter rights. The application was served on the eve of trial contrary to both the agreement of counsel reached at the judicial pre-trial and the Rules of Criminal Procedure. After much debate and discussion with counsel, I decided the application could proceed provided Mr. Dubord provided the Crown with a supporting affidavit setting out his allegations as well as immediate disclosure of the material medical records. In doing so I concluded that I could deal with any prejudice to the Crown by granting time to review the material and being lenient in the calling of reply evidence. As a result, Mr. Dubord filed an affidavit in support of the Charter application in order to regularize his application.

[3] The defendants were arraigned and re-elected trial without a jury before me. Mr. Dubord pleaded guilty to Count # 1 which charges both defendants with trafficking in a controlled substance, namely ketamine. The defendants pleaded not guilty to all other charges. The trial and the application proceeded together by way of a blended voir dire as the evidence was largely relevant to both proceedings. It was agreed that my decisions on the application and the trial could be made together given the overlap of the factual and credibility issues.

[4] The defendants were among the last to be arrested as a result of a police project called Project Topsey. Over the course of several months, Officer Wallace of the Toronto Drug Squad (TDS), acting in an undercover capacity, had bought increasing amounts of drugs; primarily ketamine, from someone known on the street as Dizzy. This person was determined to be Eric Wakfer. On September 16, 2010, it was decided that the various targets would be arrested. On that day Officer Wallace had arranged to buy one kilogram of ketamine from Dizzy. He asked for the exchange to take place in the Shoppers World Plaza (the “Plaza”), at the southwest corner of Danforth Avenue and Victoria Park. The high risk takedown, which resulted in the arrest of these defendants, involved a number of officers from the TDS and other teams of officers who were asked to be available to assist.

[5] The Crown called a number of the officers involved in the takedown and arrest of the defendants and one of the nurses who attended Mr. Dubord in hospital after his arrest. Both Mr. Dubord and Mr. Kang testified in their own defence.

The Issues

[6] The defendants were not known targets as a result of the investigation the police had done for Project Topsey. There is no dispute that the defendants arrived at the Plaza together in a car being driven by Mr. Dubord. Mr. Dubord was driving his mother’s Ford Focus. Mr. Kang was arrested by Officer Warrener shortly after they arrived, while sitting in that car. He was charged both with trafficking in ketamine and with possession of marihuana, which Officer Warrener alleges was found on his person during the search incident to arrest. Mr. Dubord was arrested after a chase by Officers Birrell, Warrener and Edgar.

[7] The Crown’s case against Mr. Kang with respect to both charges largely depends on the evidence of Officer Warrener. He testified that he overheard what he believed to be a drug related conversation between Mr. Kang and Mr. Dubord outside the Ford Focus, just after they arrived in the Plaza. I will come to the details of that conversation but if it occurred, it supports the Crown’s theory that at the very least, Mr. Kang knew about the deal to sell one kilogram of ketamine that Mr. Dubord had arranged.

[8] The position of both defendants is that Mr. Kang, a friend of Mr. Dubord’s, was unaware of this ketamine deal and was only with Mr. Dubord because they intended to go out that night. They had known each other for about 15 years; since public grade school. They had not seen each other for a little while and had talked earlier that week about going to a bar or a club. They had not decided what they were going to do other than go out somewhere together.

[9] Mr. Dubord admitted that the marihuana, which he says was in a cup holder in the car, was his, not Mr. Kang’s. Mr. Kang denied being aware of the marihuana or that it was found on his person. It is admitted that one bag contained .96 grams and the second bag contained 4.47 grams for a total weight of 5.43 grams of marihuana.

[10] Mr. Dubord also admitted his role in the ketamine drug transaction and that he fled from the undercover vehicle driven by Officer Wallace. It is admitted the police seized two bags of ketamine, one from the rear of the undercover vehicle weighing 497.14 grams and the other from Danforth Avenue weighing 291.44 grams.

[11] Mr. Dubord denied assaulting Officer Edgar who alleges that Mr. Dubord grabbed the pinky finger of his right hand during a struggle outside the undercover vehicle. He testified that this resulted in a severing of the tendon in that finger. As already stated, independent of that alleged assault, Mr. Dubord alleges that after he was handcuffed to the rear, and while he was lying face down, he was kicked by unknown officers and hit with a blunt object on the back of his head. This is denied by Officers Birrell, Warrener and Edgar. Mr. Gilman conceded that if I find that Mr. Dubord was kicked or hit in the back of the head as he alleges that excessive force was used by the officers and in that case he would invite me to stay the charges as he concedes given the seriousness of the allegations that would be the only appropriate remedy.

[12] As a result, the issues can be summarized as follows:

a) Has the Crown proven beyond a reasonable doubt that Mr. Kang was a party to the ketamine transaction?

b) Has the Crown proven beyond a reasonable doubt that Mr. Kang was in possession of the marihuana?

c) Has Mr. Dubord proven on a balance of probabilities that excessive force was used following his arrest, justifying a stay of the charges?

d) Has the Crown proven beyond a reasonable doubt that Mr. Dubord assaulted Officer Edgar?

The Evidence

Background Facts

[13] At about 5 p.m. on September 16^th, Officer Wallace heard from Dizzy, his supplier, that he had the kilogram of ketamine and that he would “call his guy”. After a briefing at 8:30 p.m., of the team of officers who would be involved in the takedown, Officer Wallace received another call from Dizzy that “his guy” was ready. Officer Wallace suggested a meeting at the Plaza. He picked Dizzy up at his house in an undercover vehicle and they drove to the Plaza and parked in front of the Blockbuster Video store. Officer Wallace had $18,000 in police buy money with him which he had shown Dizzy to satisfy him that he had the money. A price was never negotiated, but the street value of ketamine at the time is admitted to have been somewhere between $15,000 and $18,000 for such a deal. It is also admitted that the gross street value of a kilogram of ketamine is $100,000 if it is sold in .10 gram doses at $10 each.

[14] Once Officer Wallace was parked, he and Dizzy waited for “his guy” to arrive. Officer Wallace had no idea who the “backend” was for Dizzy for this deal. He saw a white male coming towards the car that Dizzy identified as “my guy”. There is no dispute that this man was the defendant, Mr. Dubord. Mr. Dubord got into the backseat of the undercover vehicle. It is admitted that he had with him two bags of ketamine inside a grey plastic shopping bag.

[15] Officer Warrener was undercover and on foot near the area where Mr. Dubord had parked his vehicle upon arrival at the Plaza. The other officers observing the scene had already been told by Officer Warrener, over the police radio, that Mr. Dubord and Mr. Kang, who was with him, were the likely targets. Officer Warrener proceeded to arrest Mr. Kang based on the conversation he alleges that he overheard between Mr. Dubord and Mr. Kang while they were standing outside his car. He did not put over the radio any of this alleged conversation or even that he had heard a drug related conversation.

[16] Once Mr. Dubord entered Officer Wallace’s vehicle and the deal was initiated, a takedown signal was given by Officer Wallace and at least three other officers converged on the undercover vehicle in order to arrest Mr. Wakfer and Mr. Dubord.

[17] There is no dispute that Mr. Dubord got away from the undercover vehicle after an attempt by Officer Edgar to stop him. He ran northbound through the parking lot towards Danforth and then through various laneways and backyards being chased by Officers Edgar and Wallace on foot and by Officer Birrell, initially in his vehicle and then on foot, before he was arrested by Officer Birrell. There is considerable dispute as to what happened in the period following his arrest when Mr. Dubord alleges he was assaulted by some of the officers.

The Background of Mr. Kang and Mr. Dubord and their Relationship

[18] At the material time Mr. Kang was enrolled at the University of Guelph, Humber in an Honours Bachelor of Administration Degree. He obtained his degree in 2011. He is currently enrolled in a Canadian Security Course which he hopes to finish in February of this year. At the material time Mr. Kang supported himself as a “webmaster” and was paid for building and managing websites. He testified that he was making between $3,000 and $4,000 a month doing this.

[19] Mr. Dubord was 22 at the time of his arrest. He was supporting himself by working from time to time in construction and when the construction work was not available he would sell drugs perhaps three times a week. He admitted that he was selling ounces of marihuana in the $150 to $250 range and 100 ecstasy pills at a time to lower dealers and/or users. He sold the ecstasy pills in bulk because the quality of those pills was not great. Prior to the events in question Mr. Dubord testified that he had not sold anything else; he had not sold any cocaine as he did not want to deal in a Schedule I substance.

[20] Mr. Dubord described Mr. Kang as a good friend. As already stated, they have known each other since elementary school. However, they both testified that by 2010 they did not see each other very often. At the material time they had not been speaking for a while; they would randomly call each other a few times a year and see how they were doing and catch up.

[21] Mr. Kang admitted that he knew Mr. Dubord smoked weed but said that this was pretty common even in school.

[22] By September 16, 2010, Mr. Dubord had been dealing in drugs for two years. He testified that he definitely did not want Mr. Kang to know about his drug dealing lifestyle. He never told Mr. Kang he was a drug dealer, he never showed him any drugs and he never dealt drugs in front of Mr. Kang. Mr. Kang never did drugs in front of him, never asked him for drugs and never said anything to Mr. Dubord suggesting that he knew he was a drug dealer.

Mr. Dubord’s Acquisition of the Kilo of Ketamine

[23] Mr. Dubord testified that he obtained the first half kilo of ketamine on September 14^th from one of his suppliers; “Smokey”. Mr. Dubord said that he had never sold this drug before. Smokey gave him a deal on it because he had too much. He testified that he took this drug on consignment and owed Smokey $5,500 for the ketamine. He had borrowed from him before but not this much. No specific time as to when he would have to repay the money was discussed. Mr. Dubord admitted that he knew ketamine was a lot more serious than selling ounces of weed, not only in terms of the nature of the drug but also the increased quantity. He said that he did not know however, that it was a Schedule I substance. He stored it hidden in the basement of the house where he was living with his mother and brother. He had no idea how he was going to sell this quantity of ketamine but his plan was to start to mention it to clients who called for marihuana or ecstasy pills to see if they wanted any.

[24] Mr. Gilman asked Mr. Dubord a considerable number of questions about the “barrage” of phone calls that he exchanged with Dizzy that ultimately resulted in him needing to acquire a second half kilo of ketamine for Dizzy which he got from his friend “Buck”. I see no need to review all of that evidence. What is relevant however, is that initially Mr. Dubord testified that he was shocked when Dizzy called and asked for a “key of K,” namely a kilogram of ketamine. When he agreed that he probably didn’t ask Dizzy how he knew that he had ketamine, given that he had not told Dizzy that he did, he answered that Dizzy “probably” called him for something else and he mentioned it to him. Mr. Dubord then gave a lot of evidence which appears to have been simply reconstruction of what might have happened. He said he “could” have talked to Dizzy a day earlier and mentioned that he had ketamine but he was not positive. He had no recollection of doing that. He then said there was no possible way that Dizzy would have simply called directly for a kilogram of ketamine so that there “had to be” earlier conversations. He then testified that they definitely talked about an ounce of ketamine because he did not know about ketamine and he asked Dizzy how much he should get for it. He said he definitely recalled a conversation “like that”.

[25] Mr. Dubord was also asked a lot of questions about why he did not ask Smokey for the other half kilo. He responded that he did not because he owed him money and it was better to show up with the cash instead. He had never owed this much money to Buck before either. He told Buck he would pay him back right after the deal.

The Arrangements Between Mr. Dubord and Mr. Kang to Meet on September 16th

[26] Mr. Kang testified that he believed that Mr. Dubord had messaged him earlier before the day in question on Facebook and that he then got a call from him on September 16^th in the early afternoon. Mr. Dubord called him again probably around 8 p.m. and the plans were confirmed. They decided that they would go out to a bar together and Mr. Dubord picked him up.

[27] Mr. Dubord confirmed that they probably talked a week or so earlier about the possibility of getting together and then talked earlier on the 16th; sometime after he found out he was not working that day. He finalized his plans with Mr. Kang to meet for a beer after he picked up the second half kilo of ketamine from Buck. Mr. Dubord testified that once he had the kilogram of ketamine, it was in two separate bags which he put in the trunk of the car. He then went to pick up Mr. Kang because it was easier to pick him up then because of where he was. He knew at this point that the deal would be at the Plaza but they had not set up a time yet. Dizzy was to call him back.

[28] Mr. Dubord testified that Mr. Kang was not aware of his plans with respect to the drug transaction and that he was not in his vehicle when he had a drug related conversation with Dizzy. He said that in any event if someone had overheard him they would have no idea that he was talking about drugs. The conversation was very basic without details. Within minutes of picking up Mr. Kang he got the final call from Dizzy and he told him that he was going to be at the Plaza in 45 minutes. He told Mr. Kang that he needed to pick up some money that someone owed him as the reason why they were going to this area.

[29] Mr. Kang recalled that Mr. Dubord was on his cell phone while they were in the car on the way to the Plaza but he did not hear any drug related conversation. He is not sure if Mr. Dubord mentioned getting money from a friend but recalled Mr. Dubord saying he was going to see a friend quickly. Mr. Kang didn’t ask about the stop because he didn’t want to get into his business.

[30] Mr. Gilman challenged Mr. Dubord’s evidence and suggested that it was “dumb” given the dangerousness of the situation and the fact he was doing the largest drug deal of his life, that he decided to bring his friend along. Mr. Dubord agreed he wanted to keep Mr. Kang out of harm’s way and that he could have seen Mr. Kang another night. He testified that he had been selling drugs for two years and that he guessed he was getting “too comfortable” selling; it was starting to become routine and it seemed like another day. He would give the drugs, get his money and go on with his day. Mr. Dubord testified that until the call came from Dizzy he was going to make plans to enjoy his night. However, he also said he was scared and agreed he was a little on edge that day.

[31] Mr. Dubord testified that he was willing to keep the ketamine in the trunk of the car while he and Mr. Kang ate had that been necessary. He also said he wouldn’t have been totally surprised if the deal had not even taken place and that when he was picking up Mr. Kang he wasn’t certain if the deal would get done that night.

The Arrest of Mr. Kang

[32] Officer Warrener testified that he was conducting surveillance in the area and he noticed a green Ford Focus pull in about 20 feet away from him. He immediately moved closer to about 15 feet from the vehicle and as the windows were not tinted, could see in. He saw an Asian male in the front passenger seat; Mr. Kang and a white male who was the driver; Mr. Dubord. Officer Warrener testified that he was suspicious of this vehicle because it parked away from everything and everyone. He maintained his observations of the vehicle and both men got out of the car. They began to talk over the roof of the car facing each other at a normal voice level. Officer Warrener testified that Mr. Kang was speaking in a very businesslike fashion and Mr. Dubord was nervous. It seemed to him that Mr. Kang was in charge and Mr. Dubord was the submissive of the two.

[33] Officer Warrener testified that he overheard the entire conversation which he described as follows:

Dubord: They’re over there I think in the black car. (Dubord nods towards Officer Wallace’s vehicle.)

Kang: Make sure it’s all there. Don’t fuck it up.

Dubord: OK.

[34] Officer Warrener testified that the two men walked to the back of the car and he heard keys jingling and the trunk opened. He saw Mr. Kang looking in from the rear passenger corner of the car. He saw Mr. Dubord take out a bag that looked about one-third full and he then closed the trunk. Officer Warrener testified that he moved away to about 20 feet and heard another conversation which he alleges went as follows:

DUBORD: OK. (Officer Warrener said his tone was like “OK let’s do it”.)

KANG: Don’t be long – make sure it’s right.

[35] Officer Warrener testified that at this point Mr. Dubord put his cell phone to his ear and started walking towards Officer Wallace’s vehicle. Mr. Kang put a cell phone to his ear as well and went back inside the Ford Focus. He could not hear anything now. Officer Warrener testified he never heard Mr. Kang ask Mr. Dubord what was going on or why they were there.

[36] Because it appeared to him that Mr. Kang was the one giving directions, Officer Warrener decided he needed to watch him in case Mr. Kang decided to leave. He moved back about 25 feet from the Ford Focus in order to blend in with the people at the bus stop. Once he heard Officer Spencer say that he was able to observe Mr. Dubord as he got close to Officer Wallace’s vehicle, he went to the driver’s side of the Ford Focus and looked for the keys. The driver’s door was unlocked and he entered the front seat of the vehicle. According to Officer Warrener, Mr. Kang was on a cell phone and he had a second cell phone on his lap.

[37] Officer Warrener testified that as soon as he opened the car door he said he was police and that Mr. Kang was under arrest for possession of ketamine. He pulled him from the car and to the ground facedown. Mr. Kang did not resist arrest or ask what was going on. He handcuffed Mr. Kang and searched him incident to arrest. Officer Warrener testified that he found $250 in Canadian currency in the right front pocket of Mr. Kang’s pants and the two bags of marihuana that I have already referred to in a front pocket of his jeans. Officer Warrener testified that both cell phones were on and operational.

[38] None of the other police officers were present when Officer Warrener made the observations that he alleges and he arrested Mr. Kang. Although Mr. Dubord’s evidence and Mr. Kang’s evidence is consistent with some of Officer Warrener’s evidence of what he saw, they both denied that they had the conversation alleged by Officer Warrener or that they had any drug related conversations.

[39] Mr. Dubord and Mr. Kang agreed that when they arrived at the Plaza they both exited the car. Mr. Dubord went to the back of the car. Mr. Kang went to the rear passenger side of the vehicle and was waiting for him. Mr. Dubord told Mr. Kang that there was no point in him going with him and he could wait in the car. Once Mr. Dubord opened the trunk, he moved one bag containing ketamine into the grey plastic bag that had the rest of the ketamine so that he had two bags totalling a kilo.

[40] Mr. Kang testified that when Mr. Dubord got out of the car he did as well and he went to the trunk area of the car with him. He didn’t ask him any questions save for asking Mr. Dubord if he was going to be long as he was exiting and asking him whether he should come with him or wait in the car. He said it was not his car and that it was his practice to ask permission as a courtesy. Mr. Kang was challenged by Mr. Gilman that it made no sense that he would get out of the car and then ask if he should go or stay. Mr. Kang said he couldn’t recall the exact conversation as it was not important. Mr. Dubord also testified that when he got out of the car Mr. Kang assumed they were going somewhere and so when he went to the trunk, Mr. Kang came towards the back. Mr. Dubord said that he saw that and told him that he was just going to meet a friend and that he should go back in the car.

[41] Mr. Kang admitted seeing Mr. Dubord take a bag out of the car which he recalled was an opaque grey plastic shopping bag that he had not seen before. He did not recall seeing Mr. Dubord take another bag and put it in that bag. Mr. Kang testified that he did not know what was in the bag. He was not present when the bag was put in the car. It did not have any odour nor was there anything suspicious about the bag. Mr. Kang denied having the conversation that Officer Warrener alleges and he denied motioning towards the undercover vehicle. Mr. Kang said there was no flag in his mind that what Mr. Dubord was doing was illicit or odd. He thought that maybe he had to give his friend something. Mr. Kang denied being present in order to direct Mr. Dubord how to do the deal properly.

[42] Mr. Dubord testified that as he started walking away from the car he got on his cell phone to call Dizzy. In his evidence in chief he testified that he had probably walked 30 feet and Dizzy had not yet picked up. Mr. Dubord hung up the phone when he saw Officer Wallace wave. In his cross-examination however, Mr. Dubord testified that when he got on his phone he told Dizzy that he was there now and Dizzy told him he was by the Blockbuster and right when he said “where” he saw him wave. Neither counsel dealt with this inconsistency.

[43] According to Mr. Kang, after Mr. Dubord left he did go on his cell phone and he went back into the vehicle. He saw a man with a full beard, wearing a long jacket, who looked scruffy and like he was homeless, walk along the side of the car. This person, obviously Officer Warrener, opened the driver’s side of the car and according to Mr. Kang, pulled out a gun which he put to Mr. Kang’s head. Mr. Kang was told “don’t fucking move”. He asked this person if he was trying to rob him. This person responded “no it’s police you fucking idiot” and he was pulled out the driver’s door of the car and onto the ground. It was really quick and he was confused and did not know what was going on. When he was on the ground he could hear officers searching the vehicle because he could hear them talking about searching the car.

[44] Mr. Kang testified that he did not have any drugs on him and in particular denied having any marihuana on him. He testified that he had none in his pocket that he had forgotten about. He did not see any marihuana in the car. Mr. Kang never saw drugs in Mr. Dubord’s possession at any time. Mr. Dubord testified that he had some marihuana in the passenger cup holder of the car. He admitted that it was not difficult to see it and that it was kind of in the open. He had the small quantity for himself and was going to sell the half-quarter. Mr. Dubord testified that Mr. Kang definitely did not give him the drugs that day.

[45] Mr. Kang admitted having two cell phones. One cell phone was a personal cell phone and the other he used for his online websites and in particular calls from US clients. He had that phone since there are different time zones and he might get a call from another state. He carries the phone in case he gets a late call. Mr. Kang admitted that he had only had about one or two calls on that phone over the prior three months. He disagreed that he had two phones for illicit business or drug deals. No other evidence was tendered with respect to these two phones.

The Initial Attempt to Arrest Mr. Dubord and the Alleged Assault of Officer Edgar

[46] Officer Wallace confirmed that Mr. Dubord was carrying the ketamine in a grey plastic grocery store bag. Mr. Dubord testified that as he got to Officer Wallace’s car, he noticed Dizzy in the front passenger seat. He got into the rear passenger seat and slid over to the middle. He placed the grey bag to the left of him against his left foot. After introductions, Mr. Dubord testified that he took one of the half kilogram bags of ketamine out of the grey bag and placed it on the center console by Dizzy’s left leg. He said that Officer Wallace commented that it looked a little powdery and that Dizzy agreed. Officer Wallace’s version of events is slightly different. He testified that Mr. Dubord put the first bag of ketamine on the floor of the backseat area after he said it was “really good” and then pulled out a second bag of ketamine. These differences in recollection are not material. It was at this point that Officer Wallace gave the “deal done signal” to the surveillance team and as a result he believed that they would begin to converge on his vehicle.

[47] Officer Edgar was responsible for central notes during the takedown. He was dressed in blue jeans, a white football jersey and a black bandana on his head. He was in the parking lot of the Plaza and had started walking as soon as he saw Mr. Dubord enter Mr. Wallace’s car. Once he heard the takedown call he started to run towards the car. Officer Spencer ran across the front of him and went to the front right passenger door. Officer Spencer was also in civilian clothing but wearing a police vest with “police” written on the front and back in large, 4-inch high white letters. It is agreed that he was calling out a series of police commands including “police” and “you’re under arrest”. He arrested Mr. Wakfer a.k.a. Dizzy and had no dealing with Mr. Dubord.

[48] Officer Edgar went to the right rear passenger door and he saw Mr. Dubord shift over to the left side of the backseat and attempt to flee out the left door. Officer Edgar testified that as he opened the right rear passenger door Mr. Dubord was already on his way out. He jumped through the rear seat in what he called a “superman-like” move and got his arms around Mr. Dubord’s waist in a football style tackle. The momentum of his movement caused both of them to fall to the ground just outside the left passenger door. According to Officer Edgar as soon as he opened the rear passenger door he was yelling “police, police, police, you’re under arrest” and when he hit the ground he told Mr. Dubord to stop fighting and to give up. He said there were a “slew of words” and he couldn’t say in what order he said things.

[49] Officer Edgar testified that Mr. Dubord landed with his back towards him on his stomach and chest and that he landed on the lower back and buttocks of Mr. Dubord. At first Officer Edgar said that his hands were between Mr. Dubord and the ground but then he corrected himself and said that since he had no cuts or scrapes, that told him that his hands were not between Mr. Dubord and the ground. According to Officer Edgar, he and Mr. Dubord were on the ground for three to five seconds. Mr. Dubord tried to roll to bring his right shoulder up so he could face him. During the struggle Officer Edgar alleges that Mr. Dubord put his right hand on the top of his head trying to push his head to his shoulders to break his grasp. Officer Edgar also alleges that during the struggle Mr. Dubord grabbed his right pinky finger causing severe pain and resulting in him losing his grip. At that point Mr. Dubord got to his feet and began to run.

[50] Officer Wallace did not see the team approaching but did hear them yelling “police”. As soon as he heard the passenger door open he got out of the car and went down on the ground on his stomach. At this point he saw what he described as “violent wrestling” between Officer Edgar and Mr. Dubord but he said that this was happening in the backseat. As this is at odds with the evidence of both Officer Edgar and Mr. Dubord, I believe that what Officer Wallance saw was the flying motion of Officer Edgar which caused him and Mr. Dubord to fall out onto the ground.

[51] Mr. Dubord’s account of the events in the undercover vehicle is as follows. He testified that he heard a commotion outside which drew his attention to the window. He saw someone almost run into the car and it felt like someone bumped into the vehicle. He saw about three people right outside the car struggling to get in. As soon as the front right passenger door opened he started reaching for the one bag of ketamine but as he tried to get the ketamine he saw someone with a gun in their left hand and he decided to leave it. Mr. Dubord testified that when he saw the gun he was scared and terrified and didn’t think about anything but running. He felt they were being robbed. The rear passenger door was also opened by someone else wearing a bandana who was wider faced and looked like a biker or a gangster or something of that nature.

[52] Once the car doors were open there was a lot of loud yelling and a lot of noise. All that Mr. Dubord says he can remember being said was “Don’t fucking move” by the man wearing the bandana. Mr. Dubord testified that as soon as he saw the gun of the first person he grabbed the door handle to get out of the car; he was trying to get away from the gun so he wouldn’t be shot.

[53] Mr. Dubord testified that as he exited the vehicle he looked over his right shoulder and saw the person with the blue bandana jumping in at him. This was Officer Edgar. Mr. Dubord said that his left foot was already out of the car. Officer Edgar had managed to grab his thighs but he was losing grip. Later he said that it was below his waist where Officer Edgar made contact. Mr. Dubord landed on his left knee; he was not sure if it hit the ground with the bag of ketamine in his left hand between his fist and the ground. He put his right hand down enough to regain balance and started to run. At this point Officer Edgar was at least 20 feet away from him. He ran as fast as he could.

[54] Mr. Dubord denied struggling with Officer Edgar. This evidence is at odds with paragraph 8 of his affidavit where he deposed that “a struggle ensued between the two of us [i.e. with Officer Edgar] outside the vehicle before I managed to break free.” Mr. Dubord was initially adamant that there was no struggle and he denied Officer Edgar taking him down to the ground, exerting any force on Officer Edgar or grabbing Officer Edgar’s pinky finger. When Mr. Gilman pointed this portion of his affidavit to Mr. Dubord, after some further questioning Mr. Dubord would only admit to a minor struggle with Officer Edgar.

[55] In terms of Officer Spencer, Mr. Dubord testified that he didn’t see anything but the gun. He did not observe his body. Mr. Dubord was shown the police vest Officer Spencer was wearing. He denied that he would have seen it when he saw the gun. He also denied that when he exited the vehicle an officer was standing over him with the same vest on. I presume this was a reference to Officer McLean. According to Officer Edgar, Officer McLean was by the rear trunk and left side of the vehicle and holding an assault rifle. It was black and long and it was a pretty aggressive looking firearm about three to three and a half feet long. He did not know if he was pointing it at Mr. Dubord. The other officers who testified said that Officer McLean confirmed this and said that he was outside the rear left side of Officer Wallace’s vehicle and that he was also wearing his police vest.

[56] Mr. Dubord testified that as he got near the sidewalk a person with a big black gun was there who I presume was Officer McLean, and this person asked him “Do you know what this is?” He was shaking the gun. Mr. Dubord didn’t know who this person was and moments later a car pulled up which he ran around and he then ran across Danforth Avenue. He almost got hit by traffic in each direction.

[57] Officer Wallace admitted that until the bag was opened by Mr. Dubord he could not say for sure what was inside the bag. Dizzy never told Officer Wallace that his supplier was coming with a friend or that he had two suppliers. Any time he referred to his supplier he spoke in the singular. He gave no description of his supplier. He admitted that at no point had he ever been made aware of the name Daniel Kang or had he ever been referred to an Asian fellow by the name of Daniel Kang.

[58] As already stated, Officer Edgar testified that Mr. Dubord deliberately grabbed his pinky finger and he felt a severe pain. This is denied by Mr. Dubord. No medical records were provided but Officer Edgar’s evidence as to the injuries he alleges that he suffered were not challenged. He testified that he went to Toronto East General Hospital to have the injury to his pinky dealt with. He learned that he had severed a tendon at the top right of his finger and was advised he would need to be off duty for six weeks and then spend 6-12 weeks on light duty. Officer Edgar, however, returned to work immediately and had to keep his finger immobilized like in a splint as a result for 4-5 months.

The Pursuit, Arrest and Alleged Assault of Mr. Dubord

[59] When Mr. Dubord started to run he said that he had no idea where he was going to go. He had no plan to avoid the car that he had driven to the Plaza in or Mr. Kang. He just wanted to get away as quickly as possible from that spot.

[60] There is no dispute that as Mr. Dubord was running he ripped open the bag of ketamine he had with him. He testified that he had no recollection of why he ripped the bag of ketamine open. He then said he was thinking maybe if he got rid of it “they” might not kill him.

[61] When Officer Wallace observed this and saw white powder going into the air and being dumped onto the sidewalk he decided to stay by the ketamine. Officers Birrell and Edgar continued in pursuit.

[62] Officer Birrell was in civilian clothing but wearing a police vest with a jacket over it. He was in an unmarked car by himself. He saw the foot chase and saw what turned out to be Officer Edgar in pursuit of Mr. Dubord. He followed in his car and in a laneway he saw Mr. Dubord go over a fence into the backyards. He stopped his vehicle and by going on the trunk was able to go over the fence. He did not think Officer Edgar made it over the fence. This was confirmed by Officer Edgar who testified that when he saw Mr. Dubord jump over a fence, Officer Birrell arrived in his unmarked car and he directed him to continue the foot pursuit because he was out of breath. At this point Officer Edgar went back to the Plaza. He testified that he was having trouble with his radio and once it was operative he learned that Mr. Dubord was in custody in the laneway just north of the fence where he had jumped.

[63] Mr. Dubord testified that he saw the man with the bandana, namely Officer Edgar, again when he was 40 feet into an alleyway. He was running very fast and he saw that this man was big. Mr. Dubord testified that he popped over a seven foot fence hoping that Officer Edgar wouldn’t be able to get over it. Once he got over the fence he heard a loud crash. It was as if Officer Edgar had run into the fence. Mr. Dubord did not look back and just kept running.

[64] Officer Birrell continued the chase of Mr. Dubord and ultimately saw him in a laneway. He was approaching him from behind yelling “police” and it was obvious to him that Mr. Dubord was tired. According to Officer Birrell, Mr. Dubord went down on one knee and Officer Birrell got to him and pushed him down face first to the ground. He then went forcefully onto his back and was able to handcuff him to the rear within seconds of getting him down. Officer Birrell did not know if the laneway was paved or not but it was definitely hard packed like pavement. He told Mr. Dubord that he was under arrest for trafficking. Mr. Dubord didn’t say anything before or after he was pushed down. Officer Birrell testified that he and Mr. Dubord were both tired and pretty much spent. Mr. Dubord was breathing very hard but he was not concerned about his health. He did not see any injuries to Mr. Dubord.

[65] Mr. Dubord testified that when he got into another alleyway where he started slowing down, he heard some rustling and then saw a middle aged man, who I presume was Officer Birrell. He was about to start running again when this person told him “Police, stop or I will shoot” or something to that effect. According to Mr. Dubord, Officer Birrell had pulled out a pistol when he tried to run again. Officer Birrell denied taking his revolver out. Mr. Dubord said that this person was the only one who looked like a police officer and said he was an officer and said it with authority. Once Mr. Dubord believed the person was an officer, he felt he was no longer in danger. Mr. Dubord testified that he responded “so long as you are police” and got down on his left knee and then onto his stomach and put his hands behind his back. Mr. Dubord denied being pushed to the ground. He said that the officer placed his hand between his shoulders and put a knee on his back.

[66] At this point Officer Birrell had no idea where they were. Mr. Dubord said that he was still catching his breath and when the officer took his hand away to call on the radio it was easier for him to breathe and he was trying to take deep breaths and he started to relax a bit. Although Mr. Dubord did provide some information as to where they were, presumably he did not believe him since once Officer Birrell was on the radio he told an officer that he had no idea where he was. At this point a civilian told him the location which he passed on. This evidence was confirmed by Mr. Dubord who said this civilian was behind the fence.

[67] Officer Birrell testified that he pushed Mr. Dubord with one hand behind his shoulder blades and he then put one of his knees on Mr. Dubord’s back when he handcuffed him and that he maintained that position for two to three minutes until Officer Warrener arrived. According to Officer Birrell, a couple of times Mr. Dubord tried to get up and he told him to stay down and was not letting him up. In re-examination Officer Birrell said there were points when he did “feel” that there “might be” an effort on Mr. Dubord’s part to get up. He applied a bit more pressure to ensure that he stayed down.

[68] He also stated however, that Mr. Dubord was not pushing back and there was no fight at that time. Officer Birrell testified that he made no contact with the back of Mr. Dubord’s head and that an injury to the back of his head could not be as the result of what Officer Birrell did.

[69] When Officer Warrener arrived Officer Birrell turned Mr. Dubord over to him. He said that they more or less switched positions. Officer Birrell said the transition to Officer Warrener was not difficult and if he had had any concerns he would have stayed. Mr. Dubord made no attempt to flee. He would have been concerned if Mr. Dubord had been flailing around. If there had been any indication there was going to be a problem he would have stayed. In his opinion, once the handcuffs are on, “you’ve won the game.”

[70] Officer Warrener testified that he saw Mr. Dubord running with the team in full pursuit. He was alone and decided to stay with Mr. Kang. Once he heard that Officer Birrell had arrested Mr. Dubord he handed Mr. Kang over to Officer Douglas and ran trying to match the path they had taken. He was the first officer to find Officer Birrell in the laneway.

[71] Officer Warrener testified that once he was about 40 feet away from Officer Birrell he could see him above Mr. Dubord who was on the ground. Officer Birrell was facing him and he could see his full chest. He was not standing and was down and it looked like he had one hand on Mr. Dubord’s back and was holding a police radio in his other hand. All he could see was Mr. Dubord’s head and shoulders as his head was facing towards him as he was approaching. Officer Birrell was winded from the foot chase and he took control of Mr. Dubord. Officer Warrener testified that during the switch Mr. Dubord moved his leg up a bit and so he pinned him back down with his left arm across his shoulder blades. He saw that Mr. Dubord was cuffed.

[72] Officer Warrener came to Mr. Dubord’s right side and put his arm across his back similar to what Officer Birrell had been doing to keep him down. He stayed far enough away from his legs so he could not be kicked. When he took over control of Mr. Dubord, Officer Warrener testified that Mr. Dubord came up one to two inches and he used his bodyweight to re-pin Mr. Dubord back down. He denied using force. At this point Officer Birrell backed off. Officer Warrener testified that he told Mr. Dubord that they were the police, that he was under arrest, that he should relax, not move and that he was not being robbed. He denied having a gun out. Officer Birrell stated that he did not see Officer Warrener take out his revolver.

[73] Officer Warrener testified that Mr. Dubord’s face was against the ground and he was leaning on him. He was about two feet away from his face. According to Officer Warrener Mr. Dubord was a little agitated and out of breath and breathing hard. He was murmuring and did not say he was injured. Officer Warrener did not check for injuries. He was not concerned about the fact he was breathing heavily because he had been running. He never noticed his breathing becoming faint but was not really paying attention. Mr. Dubord gave Officer Warrener his name and answered some questions but did not answer others. He was fidgeting and pumped up with adrenaline. He had already broken away once and according to Officer Warrener, Mr. Dubord was bucking up and he was telling him to relax and calm down.

[74] Officer Warrener testified that he maintained his weight across the back of Mr. Dubord’s shoulder blades as he was trying to reassure him. Mr. Dubord was not violent. He was handcuffed and under a measure of control. Officer Warrener’s left arm was across his shoulder blades and he was using his upper torso weight to keep him down. He was sitting at this point.

[75] According to Officer Warrener, Officer Birrell was behind him. He saw Officer Edgar come up the laneway and Officer Edgar went behind him. Officer Warrener was still talking to Mr. Dubord at this point. He noticed Mr. Dubord was breathing a “little heavy”. At this point he knew that Officer Wallace had run which was unusual and he knew that there had been ketamine thrown by Mr. Dubord. He asked Officer Edgar if he was OK to take Mr. Dubord and Officer Edgar responded “OK” and to go. According to Officer Edgar when Officer Warrener left, Mr. Dubord’s left side of his face was on the ground. Officer Warrener thought Officer Birrell was still around once Officer Edgar had control of Mr. Dubord. Officer Warrener left to collect the ketamine. He said he didn’t know where Officer Birrell went because he turned his back to him.

[76] According to Officer Warrener, he was only at the scene for a minute. He was waiting for others to arrive. His notes are that he was with Officer Birrell at 21:24 and was gone by 21:25.

[77] Officer Edgar testified that when he arrived at the scene of arrest he saw Officers Birrell and Warrener with Mr. Dubord facedown. He was the third officer to arrive and he did not see any civilians. Officer Warrener was controlling his upper body leaning over the top of Mr. Dubord’s back, possibly on one knee or with all of his weight. Officer Warrener’s legs were out to the left. He was stopping Mr. Dubord from getting up. Officer Edgar testified that he overheard Officer Warrener tell Mr. Dubord to stop twisting and moving and trying to get away. Officer Edgar saw Mr. Dubord’s legs moving. He took control of Mr. Dubord’s legs by putting his right leg on Mr. Dubord’s legs and then his whole body weight on his legs. Officer Birrell was still there at this point but left at some point after that. Officer Edgar did remember thinking why Officer Birrell was not controlling Mr. Dubord’s legs and rather just standing there but he didn’t question that.

[78] Officer Edgar admitted that once Mr. Dubord was handcuffed and on the ground there would be no reason for him to be struck. If he was still trying to get up and overpower, further force may have been required. Officer Edgar admitted that as he found Mr. Dubord, he didn’t require any further blows to keep him on the ground.

[79] Officer Edgar was not concerned about Mr. Dubord at the time Officer Warrener left. Shortly after Officer Warrener left he stood up and stood over Mr. Dubord and that is when Officer Edgar testified that he noticed Mr. Dubord’s breathing to be erratic; he would take deep grasps and then a split second later the breath would be very shallow. He tried to engage Mr. Dubord in conversation and received no response other than grunts and moans. Other officers arrived on scene including the ETF and Officer Edgar told them that he needed an ambulance for Mr. Dubord. Officer Edgar gave some evidence about positional asphyxia which I presume he thought was the problem. He put Mr. Dubord in a recovery position on his right side with his right leg bent to hold his body up. His breath was very rapid one second and very shallow the next. Officer Edgar testified that he did what he described as a knuckle rub on Mr. Dubord’s chest but Mr. Dubord did not respond.

[80] According to Mr. Dubord, after he was handcuffed by Officer Birrell, several minutes later he heard others approaching and the first officer’s knee left his back. Another knee was then pushed into his back. The difference in pressure was significant. It was either the whole body weight or this person was pushing down. A second person also had his hand between Mr. Dubord’s shoulder blades. He recalls this second person telling him not to worry, that he was not being robbed and this person was trying to calm him down. Mr. Dubord however, could not breathe properly or speak properly because of the pressure on his chest. Mr. Dubord testified that a minute or two later he heard a lot of footsteps and the knee and hand came off his body. After this he felt a person jump on his back and his back cracked with the severe amount of impact. He lost all ability to breathe and was gasping for breath. He kept trying to move his handcuffed hands to grab his mouth but of course could not. He said there was a substantial amount of pressure in the middle of his back.

[81] Mr. Dubord testified that he was then kicked at the top left side of his forehead and then kicked again at the top right side of his forehead. Each time his head moved back although he was still on his left cheek. He was then kicked in the jaw in the left side. There was then another kick that was more like a stomp on his ear and his right neck and top of shoulder. It felt like a heel hit his shoulder. There were multiple voices saying “stop resisting its police”. However he was not resisting. His hands were still behind his back. After the stomp he was hit in the back of his head by a hard object. His vision went white as if a piece of white paper was in front of his eyes. There was a loud ringing in his ears, which is all he could hear for several minutes. It was a high pitched screeching. It felt like his body was shaking all over and he could not control it. When the ringing in his ears started to subside he heard someone say “get him an ambulance he’s dying on us.” In his affidavit he also states that someone said “he’s not breathing properly”. Mr. Dubord has no idea who the officers involved were in this alleged assault and would not be able to identify them. That is understandable as on his account he was lying face down.

Mr. Dubord’s Injuries

[82] Mr. Dubord was taken by ambulance to Toronto East General Hospital for treatment. The record of Mr. Dubord’s Record of Arrest states his injuries to be three staples to close a head wound and scrapes to his face area and leg. An injury report was prepared by Officer Irvine but is no longer available. Surprisingly, these are not kept for disclosure purposes. In any event, the physical injuries to Mr. Dubord are not in dispute. The issue is did he get them as a consequence of the chase and the arrest or as a result of the assault by officers that he alleges.

[83] The photographs of Mr. Dubord taken a day later in the clothing that he was wearing at the time of his arrest show a large red scrape at the top of his right cheek and a small scrape at the top of his left forehead. The photograph of the right side of his face shows some small red marks that could be scrapes or acne. There is blood just below Mr. Dubord’s left shoulder on his shirt and blood on the collar of his shirt, particularly on the right side. There is no dispute that he had a significant cut to the back of his head and there are photographs that show the three staples that were used to close that wound at the hospital. There are scrapes on Mr. Dubord’s knees, particularly the right knee and some scrapes down the front of the right shin.

[84] Officer Birrell testified that he had no concerns about Mr. Dubord’s health while he was with him nor did Mr. Dubord report any to him. There were no changes in his breathing, he didn’t see any injuries and he didn’t notice any bleeding from his ear or on his face. Officer Birrell did not know an ambulance had been called until later.

[85] Officer Warrener testified that he didn’t see any blood on Mr. Dubord when he was controlling him. He never allowed Mr. Dubord to stand up and accordingly could only see a portion of his face. No one told him Mr. Dubord was bleeding while he was there and he did not know until later that an ambulance had been called.

[86] Officer Edgar admitted that when Officer Warrener left, it was the left side of Mr. Dubord’s face that was down. That would have meant that the large scrape on his right cheek should have been visible if it was there at that time.

[87] Officer Edgar admitted that he was with Mr. Dubord for about 30 minutes from his arrival to the time that the ambulance arrived. He had no recall of seeing any injury to the top of Mr. Dubord’s head. Once Mr. Dubord was on the gurney at the rear of the ambulance, the lights were very bright and Officer Edgar said that he could see dirt, mud and gravel on Mr. Dubord and traces of blood on the left side of his face and neck and shoulder area.

[88] Officer Edgar was shown the pictures taken of Mr. Dubord after his arrest. He denied seeing the red scrape on his right cheek or the cut to his head. He acknowledged that there is quite a stain of what looks like blood on the right side of the collar of the shirt Mr. Dubord was wearing that night but he said he did not see it at the time. Mr. Dubord was wearing jeans so he didn’t see any injuries to his knees. In Officer Edgar’s notes he makes note about the problem breathing at 21:25 although there is no reference to asphyxia. According to Officer Edgar, there was no complaint from Mr. Dubord about his head; however, he wasn’t talking and he was incomprehensible.

[89] Officer Sears, one of the officers who would take Mr. Dubord to hospital, testified that Officer Edgar told them that Mr. Dubord had sustained injuries during his arrest. He took the injuries to be what he could see “with the naked eye”. He could not recall any specific complaint by Mr. Dubord about his injuries. Neither he, nor Officer Irvine had any recollection of Mr. Dubord saying that he had been beaten up or had been assaulted by the officers.

[90] When Officer Sears was shown the photograph of Mr. Dubord’s face taken after his arrest, he said that Mr. Dubord’s face was pretty much like that when he saw it. Officer Sears itemized the injuries in his notes as including minor scratches to Mr. Dubord’s face and legs, dirt on his face and a cut to the back of his head and a bloody ear.

[91] Officer Edgar did not tell Officer Sears that Mr. Dubord had any difficulty breathing and before they left for the hospital Officer Sears could not recall receiving any information that a breathing issue needed to be addressed with respect to Mr. Dubord by any officer. Neither he nor Officer Irvine told anyone at the hospital that Mr. Dubord had difficulty breathing during his arrest.

[92] Officer Irvine testified that when they arrived at the scene and Officer Edgar turned over custody of Mr. Dubord to him, he read Mr. Dubord his rights to counsel and told him that he was under arrest for trafficking. At this point they were in the back of the ambulance. He saw the cut to the back of the head, the bloody ear and scratched legs. I note that only Officer Irvine corroborates Mr. Dubord’s evidence that he had a bloody ear, but Officer Irvine was the officer who prepared the Injury Report.

[93] Officer Irvine knew was that Mr. Dubord had received injuries during the course of being taken into custody. His notes state that “male has sustained minor injuries”. At first Officer Irvine disagreed that this was Officer Edgar’s opinion. He said it was his opinion and that he could see the injuries for himself. He then wavered on this and suggested Officer Edgar told him but after an objection from Mr. Gilman, he returned to his original position. In my view he must have received the information from Officer Edgar that the injuries were sustained during Mr. Dubord’s arrest. He was not present when Mr. Dubord was arrested and this is the information Officer Sears obtained from Officer Edgar. He had no recollection of Officer Edgar saying anything about Mr. Dubord having an issue breathing.

[94] Mr. Dubord testified that after the assault his next memory was speaking to a paramedic in the ambulance. He said that after Officer Irvine read him his rights to counsel, he kept questioning him mentioning a “Chinese guy”. Mr. Dubord testified that he told him that “I got beaten up by a guy wearing a blue bandana”. At this point his head really hurt and he did not know what was going on. He told the officer to give him a minute and that he would talk to him. Mr. Dubord said he was “not all there” after the hit and not alert and was feeling woozy. He said while in the ambulance he could only remember parts of it and that he could have been unconscious at times. Even at the hospital he was “definitely not all there”.

[95] The Crown called Patti Whitten in reply. She is the Toronto paramedic who attended Mr. Dubord when the ambulance was called. She had no independent recollection of the events and so her Ambulance Call Report was admitted as reflecting past recollection recorded. It is clear from her record that based on her assessment Mr. Dubord was complaining of pain at the back of his head, he was conscious, alert and oriented. She determined that he was oriented to person, place and time and said that her practice would be to record a number if he did not get a perfect score of 15 on the Glasgow Coma Scale (“GCS”), a test for the level of a person’s consciousness. That box was empty and so she presumes he had a perfect score. Ms. Whitten testified that if she had been told that Mr. Dubord had problems breathing that she would have only been concerned if there was an issue about the rate of breathing. She is not as concerned about whether the breaths are deep or shallow. Mr. Dubord was determined to be a stable patient and so when he was taken to hospital Ms. Whitten determined they did not need to have lights and siren going. This Report also states that the ambulance arrived within four minutes of the call.

[96] Mr. Dubord was taken to hospital by ambulance in the custody of Officers Sears and Irvine. In the ambulance Mr. Dubord asked that they take him to the Toronto East General Hospital as his sister worked there as a nurse. They arrived at the hospital at 22:01. Mr. Dubord was triaged at 22:05 and released at 22:40. The ER Triage Record prepared at 10:09 p.m. states, in the section headed “chief complaint,” that it was a small laceration to the back of the head. It is stated there was no loss of consciousness or neck pain and that the GCS score was 15.

[97] According to Mr. Dubord, at the hospital he tried to talk to a nurse about his other injuries but it was not allowed. None of his other cuts were treated. Once he was moved into a room the door was shut and it was here that a physician used three staples to close the laceration to his head. Mr. Dubord alleged that Officer Irvine continued to question him and that from time to time Officer Sears was also in the room. Presumably because the Crown did not seek to introduce any statement, this issue was not pursued by Mr. Alawi with these witnesses.

[98] Once released from hospital Mr. Dubord was taken to 14 Division; they arrived at 23:17. Mr. Dubord was paraded before the officer in charge at 23:54. The booking video does not show Mr. Dubord in any obvious distress. He did not complain of any beating by police to the booking sergeant. He did however look subdued and was non responsive on occasion.

[99] Mr. Dubord never filed a formal complaint about his alleged beating but testified he didn’t know to do so.

Analysis

[100] I now turn to my analysis. Since both defendants testified, the principles set out in the decision of the Supreme Court of Canada in R. v. W.(D.)[^1] apply. I must acquit Mr. Kang if I believe his evidence or, even if I do not believe his evidence, I am left in a reasonable doubt by it. If I am not left in doubt by his evidence, then I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence, of his guilt. I must do the same with respect to Mr. Dubord. In my analysis, I am not bound by the strict formulaic structure set out in W.(D.), but rather must adhere to the basic principle underlying the W.(D.) instruction that the burden never shifts from the Crown to prove its case against each defendant beyond a reasonable doubt.[^2]

[101] In considering the evidence, I am entitled to believe all, some, or none of each witness’s evidence. Further, in assessing the evidence of Mr. Kang and Mr. Dubord, I am entitled to consider it in the context of all of the other evidence.[^3] However, I must remind myself that this is not a credibility contest.[^4] W.(D.) prohibits me from concluding that the Crown has met its burden simply because I might decide to prefer the evidence of the Crown witnesses to that of Mr. Kang or Mr. Dubord.[^5]

Credibility Assessments

[102] No concern was raised with the credibility of Officer Wallace or Ms. Whitten nor was the evidence of Officers Sears and Irvine challenged. There is no reason not to accept the evidence of these witnesses as credible subject to the reliability of their observations and recall. There are however, significant credibility issues to consider in resolving the conflicts in the evidence of the defendants on the one hand and the evidence of the officers, particularly Officers Warrener, Birrell and Edgar.

(i) Mr. Kang

[103] Mr. Kang did not give lengthy evidence which does make it more difficult to assess the truth of what he testified to. There was nothing about his demeanour that assists in assessing his credibility, save that his demeanour did not change when he was cross-examined by Mr. Gilman. There were no internal inconsistencies in his evidence although there were some between his evidence and the evidence of Mr. Dubord. I found those all to be minor and what I would expect from honest witnesses.

[104] Mr. Kang was a very soft-spoken witness. I accept the submissions of Mr. Gilman that I cannot take this into account in assessing his evidence. Mr. Kang is clearly smart enough to know that the ability of Officer Warrener to hear him speak is a live issue in this trial. No one asked him whether he was speaking in his normal tone of voice.

[105] Mr. Gilman did submit that some of Mr. Kang’s evidence made no sense; for example his evidence about getting out of the car and asking Mr. Dubord for permission to stay. Although I found the idea that he would ask permission to stay in the car unusual, I do not find that he lied about this. I can see no reason for him to make this up. Furthermore I know nothing about his cultural background save that he appears to be of Asian descent. In my view I should not judge what is or is not unusual for him in this minor aspect of the case. Otherwise his evidence was firm that he did not know anything about Mr. Dubord dealing drugs at any time and in particular that night and that he did not have any drug related conversation with Mr. Dubord.

(ii) Mr. Dubord

[106] Mr. Dubord was on the stand for a considerable period of time. He gave his evidence, particularly his evidence in chief, in a manner that at many times was quite compelling in that it appeared he was reliving the events of the night of his arrest. He did become quite emotional and distraught at times, particularly when describing the alleged assault. Mr. Gilman very fairly acknowledged that the Crown accepted Mr. Dubord was truthful about almost everything he said but he submitted that Mr. Dubord “tweaked” some of his evidence and lied in several key places.

[107] Mr. Gilman conceded that Mr. Dubord was a small level drug dealer and did not dispute his assertion that this was the first time he ever sold ketamine let alone such a large quantity. Dealing in drugs is certainly not condoned by the court but it is not a crime of dishonesty that necessarily impacts on Mr. Dubord’s credibility. Furthermore Mr. Dubord freely admitted to his role in this case and to being a low level drug dealer. He did not try to minimize his role in any way.

[108] Mr. Dubord is clearly an unsophisticated witness and has never testified before. He was very nervous which appeared to continue throughout the course of his evidence. He very often asked Mr. Gilman to repeat his questions during the course of cross-examination. I do not find that this was being done deliberately however. It seemed to occur for a number of reasons. First of all, Mr. Gilman often changed the words used by Mr. Dubord in answering his questions when trying to confirm his answers. Other times Mr. Gilman would use slang that had not been used by Mr. Dubord; for example, “his hood” which understandably confused him. Finally on other occasions Mr. Gilman used vocabulary that Mr. Dubord did not appear to understand. Furthermore, Mr. Dubord was clearly being very careful, as he should, before he agreed with a statement made by Mr. Gilman, something which is understandable given the stakes.

[109] It did seem that Mr. Dubord had to think through the chronology of events and had a great deal of difficulty when Mr. Gilman jumped around in the chronology. Although I considered whether that meant he had memorized or rehearsed his evidence, it did not appear that that was the case. Mr. Gilman was asking a lot of very detailed questions trying to break down, for example, what Mr. Dubord had described as a “barrage of calls”. Given Mr. Dubord pled guilty to trafficking, he would have had no reason to think about all of these details which were not important to his defence of the assault charge or his application to stay. As Mr. Dubord pointed out, over three years had passed since this incident and he needed extra time to think properly. In the circumstances this is a fair comment.

[110] At my direction Mr. Dubord filed an affidavit in support of his Charter application in order to regularize his application. When he was cross-examined he was given ample time by Mr. Gilman to read his affidavit in court in order to determine if he needed to make any corrections. The only issue Mr. Dubord raised at first was that he did not know what the word “adjacent” in paragraph 19 meant and he admitted that he did not ask his counsel about this before he signed the affidavit. Mr. Gilman tried to make something of this but in the circumstances I do not find that very significant. It is however an illustration of Mr. Dubord’s limited vocabulary which I believe caused some of the repetition of questions during his cross-examination.

[111] There were however, some inconsistencies in the evidence of Mr. Dubord that Mr. Gilman challenged as follows that are significant:

(a) I have already referred to the passage in paragraph 8 of his affidavit where Mr. Dubord deposed that there was a struggle with Officer Edgar outside the vehicle before he managed to break free. This was a significant inconsistency in his evidence my view. I can only assume Mr. Dubord wanted to minimize the struggle to avoid the suggestion that he received some of his injuries during the struggle.

(b) At trial, on the one hand Mr. Dubord emphatically acknowledged how serious this ketamine deal was and how scared he was because of who he owed money to and the amount of money owed but when cross-examined on other issues he would say he was comfortable enough to bring Mr. Kang along and wasn’t even sure the deal would happen. Mr. Gilman submitted that Mr. Dubord’s evidence changed at times in order to deal with issues raised in cross-examination. I accept that submission. Furthermore, I agree with Mr. Gilman that it is strange that Mr. Dubord would arrange to meet with Mr. Kang on the night of the largest drug transaction of his life. His explanations were not very convincing and, as Mr. Gilman submitted, it is unlikely that Mr. Dubord would have left $15,000 worth of ketamine in the trunk of the hatchback in order to have beer with an old friend.

(c) Mr. Dubord’s evidence as to why he had the marihuana and what he intended to do with it kept changing and was clearly contradictory.

(d) Mr. Gilman submitted there was a “massive inconsistency” in the evidence in that Mr. Dubord testified that Mr. Kang did not stay when he grabbed the bag from the trunk of the car. I do not agree. This was a matter of seconds and both Mr. Dubord and Mr. Kang agreed that Mr. Kang came to the back of the car. If they intended to lie about this it would clearly have been better to testify that Mr. Kang did nothing more than get out of the car.

(e) Mr. Dubord told Officer Irvine at the hospital that “I got beaten up by a guy wearing a blue bandana”. At trial he testified that he did not know who the persons were who assaulted him. Mr. Gilman submitted that this was the most crucial discrepancy in the trial. I do not agree. The timing of these statements is important. Mr. Dubord testified that when he was speaking to Officer Irvine his head really hurt and he did not know what was going on. Although he was conscious and oriented according to the medical evidence, he was complaining of the head injury and given what he had been through, if he was still confused that would not be surprising to me. The information he gave to Officer Irvine corroborates his evidence that he thought Officer Edgar was a biker or gangster. It would have been logical for Mr. Dubord to believe it was the man with the bandana as that is the person he had the struggle with and he knew this person was chasing him.

[112] There were other aspects of Mr. Dubord’s evidence that Mr. Gilman submitted were not true. For example he argued that Mr. Dubord’s evidence about not going back to Smokey for the second half kilo is not true. I do not accept that submission as Mr. Dubord’s explanation seemed reasonable to me. Furthermore, it is difficult to consider what is or is not plausible when it comes to illegal drug transactions. Mr. Gilman also submitted that since Mr. Dubord was in a panicked state it is odd that he is able to recall specific comments such as what Officer Edgar said when he got into the backseat. I did not find it surprising since he seemed to have pretty good recall of that event as one would expect.

[113] Mr. Dubord’s evidence about his state of consciousness in the ambulance and at the hospital is contradicted by the medical records and the evidence of Ms. Whitten. That evidence is more reliable and I prefer it. Mr. Dubord however had been arrested after a chase and injured sufficiently for an ambulance to be called. On his evidence he had a serious reaction to the hit to the head and he was still feeling the effects of that. The fact he felt “out of it” and yet according to Ms. Whitten was conscious and alert in my view is not necessarily inconsistent. Mr. Dubord had a lot of reason to be confused and upset.

[114] Early in his evidence Mr. Dubord volunteered that he had written notes of his recollection the evening after his release. At that time his notes were reviewed by Mr. Dubord’s sister’s then boyfriend who was training to be a police officer. Mr. Dubord then recorded the notes in a separate document. Further questions were asked about this document by Mr. Gilman until Mr. Alawi objected on the grounds of solicitor client privilege. After considering the matter Mr. Gilman decided not to seek production of this document. In closing submission however, he argued that the fact Mr. Dubord had not taken steps to authenticate the document by emailing it to himself suggested that the document could have been prepared quite recently as it was not given to Mr. Alawi until just before the trial. That was never put to Mr. Dubord. I did not find this submission as to why Mr. Dubord’s credibility should be challenged on what he did or did not do to authenticate this document to have any merit. Given Mr. Gilman agreed not to pursue this issue we do not know what evidence there is that would assist in determining the date the document was created.

[115] I do not accept Mr. Dubord’s evidence as to why he ripped open the bag of ketamine. Mr. Dubord’s first position was that he had no idea why he ripped the bag open and that he was not planning to destroy the ketamine. He then said he was thinking maybe if he got rid of it “they” might not kill him. He denied that he destroyed it because he thought police were chasing him. I do not accept that denial. Although I can appreciate that Mr. Dubord would have been undecided about what to do with the ketamine still in his possession as he was running, if he thought it was a robbery I would have expected him to either drop the bag and continue running or keep it as he owed a lot of money for this ketamine. The fact he ripped the bag open is consistent with him believing that he was being chased by police as it would have been a way of attempting to get rid of the evidence. Although I accept Mr. Dubord’s evidence that he did not immediately realize that it was the police who were outside the undercover car, he must have realized this at some point as he was being chased and the officers continued to call out “police”. I find he knew he was being chased by police by the time he decided to rip open the bag of ketamine.

[116] On a more minor point, I prefer the evidence of Officer Birrell that Mr. Dubord was on one knee and that he had to push Mr. Dubord to the ground. Mr. Dubord had never been arrested before and I find it difficult to believe that after the chase he would simply lie down and even know to put his hands behind his back. In fact, in his affidavit at para. 16, he states that the arresting officer “pulled my arms back behind me and first cuffed my left arm. I then gave him my right arm so that he could cuff it as well”. That sounds more likely to me.

[117] To the extent there were serious inconsistencies in the evidence of Mr. Dubord and his evidence changed, as already described, there are obvious concerns about the credibility of his evidence. However, I am not bound to reject it all and overall, setting aside the areas of concern noted, I find that Mr. Dubord was doing his best to tell the truth as best as he could recall it.

(iii) Officer Warrener

[118] I have serious concerns about the credibility of Officer Warrener. As he was testifying I observed that he seemed to have better detailed recall than seemed possible given how long ago the events were, even though he did prepare a will say more recently. He would have much less reason to remember these particular arrests than Mr. Kang and Mr. Dubord. I am not sure whether or not Officer Warrener ever answered a detailed question with a response that he could not recall, but if he ever did it was certainly surprisingly rare.

[119] Officer Warrener was evasive in cross-examination about a very important issue; the accuracy of his notes concerning the conversation he alleges he overheard between Mr. Dubord and Mr. Kang. Although in his evidence in chief Officer Warrener readily admitted that his notes of this conversation were not verbatim, when he was cross-examined by Mr. McLeod he became quite defensive and in my view evasive when asked about how accurate his notes were. He initially took the position that they were 85 to 90% accurate by tried to limit that to the fact that all he was missing was “uhms and ahhs” and that he was not missing any words. Although Officer Warrener ultimately admitted that there may be some words missing from his notes it was tough slogging for Mr. McLeod to get that admission.

[120] There were aspects of Officer Warrener’s testimony that I have difficulty accepting which I will come to.

[121] Mr. McLeod submits that Officer Warrener must have been complicit in the injuries to Mr. Dubord and could even have been a main actor. That is an issue I must still deal with.

(iv) Officer Birrell

[122] There was nothing about Officer Birrell’s demeanour or manner of testifying that gave me any concern about his credibility as a witness. The same submission that Mr. McLeod made with respect to Officer Warrener may be made with respect to the evidence of Officer Birrell, if I find that Mr. Dubord was assaulted. Apart from that there were some areas however where he evidence was at odds with the other officers. For example, Officer Birrell testified that after Officer Warrener took over he left right away as he had left his car unlocked. He also said that he did not see Officer Edgar take over control from Officer Warrener even though he saw him at the scene. This is difficult to believe as there were only the three of them with Mr. Dubord at this time. I would have expected him to still be at least watching Mr. Dubord. Furthermore, if Officer Birrell was at the scene long enough to see the ETF arrive and Officer Kant drive up the laneway, as he testified to, his other evidence that he left as soon as Officer Warrener had control of Mr. Dubord could not be true. It may be that he was trying to distance himself from the time frame when Mr. Dubord alleges he was assaulted.

(v) Officer Edgar

[123] Again, the same submission that Mr. McLeod made with respect to Officer Warrener may be made with respect to the evidence of Officer Edgar, if I find that Mr. Dubord was assaulted. Officer Edgar clearly would have been present as he was with Mr. Dubord from the time of his arrival at the scene. There was nothing about Officer Edgar’s demeanour or manner of testifying that gave me any concern about his credibility as a witness. Apart from that, there were aspects of Officer Edgar’s evidence that I found difficult to accept that I will come to.

a) Has the Crown proven beyond a reasonable doubt that Mr. Kang was a party to the ketamine transaction?

[124] Mr. Kang’s denial of any knowledge of or involvement in a drug transaction is completely plausible subject to the evidence of Officer Warrener about the conversation he alleges that he overheard between Mr. Dubord and Mr. Kang. Mr. Gilman submitted that if I accept that Officer Warrener described even most of the conversation that took place in the circumstances it was clearly a drug related conversation. I agree with that submission. If I were satisfied beyond a reasonable doubt that such a conversation took place, it would be strong evidence in support of the Crown’s case against Mr. Kang.

[125] I have already set out some of my concerns about Officer Warrener’s evidence. Otherwise his evidence was consistent and he remained firm with regard to his version of events.

[126] Although not central to the Crown’s case, I have considered the evidence of Mr. Kang that Officer Warrener had his gun drawn as he entered the car and the denial of Officer Warrener who testified that he did not have his gun drawn when he opened the driver’s side door to the Ford Focus, got into the front seat and told Mr. Kang that he was under arrest. Officer Warrener testified that when Mr. Kang was outside the car he did not display the characteristics of an armed person in that there were no bulges although he admitted that he could have had a weapon he was not aware of such as a blade. When I asked Officer Warrener why he would not have his gun out, given the danger of the action he took, he immediately admitted that guns and drugs go together but then gave a long explanation for why he did not feel it necessary on this occasion. This included his stated belief that in bigger drug deals the dealing is very business like and the participants are not armed. He also testified that persons dealing in ketamine are party people and that he did not normally see violence with this drug as he did with cocaine. In a follow up question from Mr. McLeod however, Officer Warrener admitted that he had never been involved in a ketamine deal of this size before, leaving the unanswered question of how he could have reasonably formed the belief that there was no risk that Mr. Kang was armed.

[127] This takedown was the last of the Project Topsey investigation. It was a high-risk takedown. As Officer Warrener said guns and drugs go together. This is a matter the court often takes judicial notice of particularly in sentencing. Officer Wallace had no idea who Dizzy’s back end was and I find it highly unlikely that the officers involved in the arrest of Mr. Kang and Mr. Dubord would not have drawn their guns. I do not understand why they did not admit this. If Officer McLean felt it necessary to carry an assault rifle when he was outside the undercover vehicle with other officers around, why would Officer Warrener, who was on his own, not enter the car and take Mr. Kang out of the car with his gun drawn? He was on his own with an unknown suspect who, on his evidence, he believed was the directing mind of this 1 kilo of ketamine transaction valued between $15 and $18,000. His evidence that he could see both of Mr. Kang’s hands and that he had not observed any characteristics of an armed person when he was outside the vehicle, suggesting no weapon other than perhaps a blade, was incredible. I have heard too many police officers explain in their evidence why pat down searches are necessary to determine if someone has a firearm. It seems highly unlikely to me that Officer Warrener would simply open the door to the car and get in with Mr. Kang without having a gun drawn. In this respect the evidence of Mr. Kang makes much more sense and I prefer his account.

[128] In coming to this conclusion I have considered Mr. Gilman’s submission that I must be careful in judging the issue of the use of firearms and the fact that Officer Warrener was proven correct in that Mr. Kang was not armed. That is true but I disagree with his submission that Officer Warrener’s evidence makes sense for the reasons already stated.

[129] Mr. McLeod challenged the reliability of the evidence of Officer Warrener with respect to the alleged conversation. He submitted that Officer Warrener ultimately admitted that he did not have the entire conversation noted in his notes. Mr. McLeod did not elaborate but relied on the principles that are stated in cases like R. v. Ferris where a statement was excluded because only part of it was available and the court’s pronouncement in R. v. Moore-McFarland that if a statement can be recorded it should be. Mr. McLeod also suggested that the type of analysis engaged by section 9(2) of the Canada Evidence Act could be considered here by analogy. In this case the alleged statements are admittedly not complete, were not recorded nor put to Mr. Kang and adopted. Mr. McLeod did not suggest that these principles applied to this case but submitted that they do assist in determining the reliability of the alleged statement as evidence.

[130] As I have said, Officer Warrener was evasive as to the accuracy of his notes of the conversation he alleges hearing between Mr. Dubord and Mr. Kang. This is troubling particularly since in his evidence in chief he said that he noted the conversation in his notes based on what he recalled but that it was not verbatim. He got very defensive on this issue in cross-examination. Officer Warrener did not record the conversation nor make any notes at the time. He prepared his notes of the conversation about four hours after he alleges he heard it. I find that his evidence in chief was more accurate; he did not and could not have recorded the conversation verbatim. I am therefore not satisfied that I have the entire conversation even if I were to accept his evidence. Also I have no knowledge of whether the conversation was an extension of a conversation inside the car. That said, what Officer Warrener did testify to does support the Crown’s case. In the circumstances, the alleged conversation certainly appears to relate to the ketamine transaction.

[131] Mr. McLeod questioned Officer Warrener about why he did not put anything over the radio about what he heard. He responded that he did not want to take up radio time because of concerns about the safety of Officer Wallace. I accept Officer Warrener’s explanation for why he did not record the entire conversation. However, he did not even put over the radio that he had heard “a drug related conversation” which would have only taken seconds.

[132] I find it difficult to believe that if Officer Warrener had, in fact, heard a drug conversation of the nature he alleges that he would not have made some statement of that over the radio. He had already put over the radio at different times certain information including the fact that the team should watch the Ford Focus; including the licence number, the fact there was a male white and a male Asian, that the male white was into the trunk and had a grey plastic bag, that: “I think these are our guys for sure” and a description of what Mr. Dubord was wearing. When he alleges he heard the conversation Mr. Dubord was still by the car. Advising the team of this information would have been very helpful as it confirmed his belief that Mr. Dubord was the target. It went beyond “I think”.

[133] Not all officers were asked but Officer Birrell testified that when he has been in various roles for drug investigations, he has heard an officer say over the radio that he has heard a “drug related conversation” although he would not say this was usual. However, he agreed that what was wanted was a “play by play” over the radio for the officers to have a sense of what was happening since they were not all able to observe everything. The fact no mention of this conversation was made over the radio undermines the evidence of Officer Warrener in my view that he, in fact, heard such a conversation.

[134] Apart from the credibility concerns I have referred to, there are concerns about the reliability of Officer Warrener’s evidence about the conversation. Officer Warrener was incorrect in his notes as to the description of Mr. Kang as he put him as taller than Mr. Dubord. Mr. Gilman submitted that is likely that Officer Warrener transposed the information for the weight and height for Mr. Dubord and Mr. Kang since Mr. Dubord is close to the height that he put for Mr. Kang and Mr. Kang is a couple of inches shorter than Mr. Dubord. There is however, no evidence of this as this possibility was not mentioned by Officer Warrener. What it does illustrate is the inherent unreliability of notes made several hours after the observations are made.

[135] Some cross-examination was directed at whether or not Officer Warrener would have been able to hear the alleged conversation given the distance and where they were in the Plaza. According to Officer Edgar the traffic flow in the plaza was heavy and there were lots of cars and pedestrians. Although Officer Edgar had parked by the Metro where there may have been more traffic, it is very likely there was more noise around Officer Warrener, who was near a bus stop on Danforth Avenue, than he admitted to; his suggestion that they were in their own “bubble” was incredible.

[136] Mr. McLeod submitted that it was also curious that Officer Warrener could not hear anything when Mr. Dubord was on his cell phone as he walked away from the car. Given the conflicting evidence of Mr. Dubord as to whether or not Dizzy picked up when he called him, I have not had regard to his submission as it is not clear that Mr. Dubord actually said anything on his phone for Officer Warrener to hear.

[137] I questioned Mr. Gilman as to why, if the conversation occurred, it would have occurred outside the car. His response was that it was innocuous to anyone else as no mention of drugs was made. Although he submitted it was “coded” it was more the absence of any reference to drugs that would have made it innocent to anyone not knowing the circumstances of what was about to happen. On reflection I accept that submission.

[138] For all of these reasons I am not satisfied that Officer Warrener overheard the conversation that he alleges. In this regard I prefer the evidence of Mr. Kang and Mr. Dubord who both denied such a conversation took place.

[139] Mr. Kang was not known to any of the officers. There had been several deals prior but none involved Mr. Kang. He had never been mentioned as a source of ketamine or as the person Dizzy was speaking to. Furthermore, Dizzy recognized Mr. Dubord as he approached his vehicle and said that he was “his guy”. He never suggested he was dealing with someone other than “his guy”. There is no evidence that Mr. Kang was the “back end” or otherwise involved in the deal. In fact there is confirmatory evidence that Mr. Kang was not involved in that Mr. Dubord testified that he got the drugs from someone else.

[140] Mr. Kang did not have a large amount of money on his person that would suggest he was a drug dealer. There was no evidence that links his two cell phones to this ketamine deal or any drug dealing even though the police seized the phones and could have investigated them. Officer Warrener admitted that he did not check the phones for calls from Officer Wallace of Mr. Kang. He said it was up to the Property Officer to do that and that that would be standard practice. Mr. Kang gave an explanation for why he had two cell phones.

[141] There is no other evidence connecting Mr. Kang to this ketamine drug transaction save for his presence at the time of the transaction. As I have already said, I have difficulty with some of Mr. Dubord’s evidence as to why he chose to meet with Mr. Kang that evening. It certainly is puzzling given it was the first time that he was dealing in ketamine, a drug he knew to be more serious than his usual trade and the amount involved was significantly greater. On Mr. Dubord’s evidence he did not know if and when the deal would happen when he picked Mr. Kang up. However, in many respects Mr. Dubord does not seem like a sophisticated drug dealer. He did no carry a firearm, he did not use a street name and as he said he had become comfortable doing these deals. He had dealt with Dizzy before and presumably felt comfortable with him.

[142] Mr. Kang gave a credible account of why he was with Mr. Dubord and there is no evidence of Mr. Dubord doing anything in his presence that should have tipped Mr. Kang off to a drug deal being in the works. Given the circumstance I do wonder why Mr. Dubord would invite Mr. Kang along and I agree with Mr. Gilman that this is puzzling but in considering all of the evidence I find that the Crown has not satisfied me beyond a reasonable doubt that Mr. Kang was involved in the ketamine transaction or that he had any knowledge of it.

b) Has the Crown proven beyond a reasonable doubt that Mr. Kang was in possession of the marihuana?

[143] Although there is no doubt that there was marihuana seized at the time of Mr. Kang’s arrest, only the evidence of Officer Warrener places that marihuana in the possession of Mr. Kang. Mr. Kang denied having any marihuana on his person or even seeing the marihuana in the car.

[144] The first question I have considered is whether or not Mr. Kang’s denial of seeing the marihuana is plausible given Mr. Dubord’s evidence that it was in the cup holder of the car. However, I have no evidence as to how it was packaged and whether or not the marihuana bags were clear or opaque or whether it would have been obvious to Mr. Kang if he had seen it that it was marihuana. There is no evidence where the cup holder was in the car. There is therefore, no evidence that the marihuana in the cup holder was visible or in plain view.

[145] Mr. Dubord’s evidence as to why he had the marihuana in the car was not consistent. He said that he had no plan yet to smoke weed with Mr. Kang, yet he testified that he normally smokes weed when he goes out. He could have worked the next day but said there was still a chance he would smoke weed that night. When asked why he also had a half quarter of marihuana Mr. Dubord said it was “most likely” for someone else, not Dizzy. He then said that he had received a call to this effect and then that he didn’t know why he had it but that he had it so he had it on him in case someone called because he was a drug dealer and that he was not going to go downtown with nothing. When asked why he had it in the cup holder he said it was because he was uneducated. I have already commented on why this evidence raises concerns about Mr. Dubord’s credibility but it is not evidence that impacts of Mr. Kang as it simply weakens evidence that otherwise would have corroborated his denial.

[146] I have already set out concerns as to the evidence of Officer Warrener on other aspects. Given the significance of those concerns, they are enough to raise a reasonable doubt on the issue of whether or not, as he testified, the marihuana was on Mr. Kang’s person, particularly given the firm denial of Mr. Kang. For these reasons I find that the Crown has not proven beyond a reasonable doubt that the marihuana was in the possession of Mr. Kang.

c) Has Mr. Dubord proven on a balance of probabilities that excessive force was used following his arrest, justifying a stay of the charges?

[147] Although Mr. Dubord is unable to identify the officers that he alleges assaulted him, his allegations are extremely serious. This is not a case where the position of the officers is that some force was needed to restrain Mr. Dubord and the question is whether or not that force was excessive. In this case all of the officers involved in arresting and detaining Mr. Dubord agreed that he was compliant and that force was not necessary to maintain control over him. Although the officers did have to apply some pressure to his back and legs because they allege Mr. Dubord was lifting himself up, they all agreed it was not necessary to strike him or use unnecessary force.

[148] As already stated, Mr. Gilman has conceded that if I find that Mr. Dubord has proven his allegations on a balance of probabilities that given the seriousness of what he alleges the only appropriate remedy would be to stay the charges pursuant to s. 24(1) of the Charter. As such the only issue is whether or not the assault has been proven.

[149] I have already set out concerns that I have with the credibility of Officers Warrener and Edgar and with Mr. Dubord. The onus however, on Mr. Dubord is lower as he needs only to establish that his injuries resulted from excessive force on a balance of probabilities. Mr. Alawi’s position is that the only plausible explanation for the injuries that Mr. Dubord suffered is that he received them in the laneway after he was handcuffed.

[150] The injuries that Mr. Dubord suffered following his arrest are clearly consistent with his evidence of the assault he alleges. The alleged kicks to the head would explain the scrapes, the hit with a hard object would explain the head laceration and a stomp on the side of his head would explain bleeding from the ear that would land on his collar. Mr. Gilman submitted that I would need expert evidence to come to this conclusion but I do not accept that submission. The question of causation in these circumstances does not require expert opinion evidence from a medical person.

[151] Mr. Dubord is about 5’10” tall and he thinks he weighed about 180 pounds at the time of his arrest. Officer Warrener described Officer Edgar as short and a “bit of a tank” who looks like someone who tosses cabers in his spare time. Having seen Officer Edgar when he testified, I would say that is a fair description. At the time Officer Edgar said that he weighed 260 pounds, which is considerably more than Mr. Dubord.

[152] Mr. Gilman submitted that there was in fact a violent struggle between Mr. Dubord and Officer Edgar outside the vehicle and that it would have been easy for Mr. Dubord to injure himself during this struggle. I note in the same vein it would have been easy for Officer Edgar to be injured during such a struggle. Although the account of Mr. Dubord and Officer Edgar as to the severity of the struggle in and outside the car differ, neither suggested any event that could explain the injuries to Mr. Dubord, save possibly for the scrapes and cuts to his knees and maybe the scrape to his face. Certainly there is no evidence from either that could explain the laceration to the back of Mr. Dubord’s head that required three staples to close.

[153] I have considered the fact that during the pursuit, Mr. Dubord climbed a seven foot high fence but he testified that he landed on his feet and continued to run. He climbed over two other fences and was running as fast as he could. None of the officers who pursued Mr. Dubord reported seeing Mr. Dubord fall or do anything else that could have resulted in his injuries. Officer Birrell said he had fallen jumping the fences and it was possible that Mr. Dubord had done so. Mr. Dubord however denied injuring himself during the pursuit or when he was handcuffed.

[154] Mr. Dubord’s evidence that he did not injure himself before he was handcuffed is corroborated by the evidence of Officers Birrell, Warrener and Edgar who claim not to have seen any injury when Mr. Dubord was handcuffed and thereafter. Officer Birrell said it wouldn’t shock him if Mr. Dubord’s face was scraped, bleeding and had gravel in it because he did push him to the ground. However, he also said that if he had seen scrapes on Mr. Dubord’s face he would have completed an injury report and he testified that he did not see any such injury. It may be that Officers Birrell, Warrener and Edgar did not see one side of Mr. Dubord’s face as he was lying face down but Officer Birrell would have seen Mr. Dubord’s face as he approached him to arrest him and did not testify to any injuries at that point. Furthermore Officer Warrener said he got within two feet to listen to his breathing. I would have expected him to see something if Mr. Dubord was injured by this time. In fact the evidence of these officers once Mr. Dubord was arrested suggests that all Mr. Dubord would get would be dirty.

[155] Officer Sears testified that the photograph of Mr. Dubord’s face taken after his arrest showed what it looked like when he saw it. On his evidence, at least in the light if one had a view of Mr. Dubord’s face, all of the injuries to his face were visible and the blood on his shirt would also have been visible. Although Officer Sears did not recall having to separate Mr. Dubord’s hair to see the cut given the amount of dark hair Mr. Dubord had, I believe it might not have been as obvious.

[156] I am concerned that Officer Edgar was downplaying the injuries to Mr. Dubord’s face and the presence of the blood on his shirt. Officer Edgar admitted being with Mr. Dubord for thirty minutes. Although most of that time must have been when the ambulance was also present and the paramedics were attending to Mr. Dubord, based on the evidence of Officer Sears which I accept, Officer Edgar must have seen that Mr. Dubord had more injuries than he had previously noted. Given the pictures introduced into evidence and the evidence of Officer Sears, the injuries to Mr. Dubord’s face and the blood on his shirt were very visible. I do not know how Officer Edgar could not have seen this. By downplaying what he saw he avoided questions as to how the injuries were caused.

[157] According to Officer Edgar there were a lot of civilians out and so the ETF remained and formed up around them to secure their safety and the safety of Mr. Dubord. He said that if anyone had assaulted Mr. Dubord he would hope that it would have been videotaped by one of the civilian’s cell phones. However, he said that when he arrived there were only Officers Birrell and Warrener and that the civilians did not arrive until after the ETF.

[158] What I find particularly strange is Officer Edgar’s evidence that he instructed someone to call the ambulance for Mr. Dubord because he was not breathing properly and responding. Mr. Dubord was having problems breathing and if Officer Edgar was putting most of his weight on his back, that would not be surprising. However I do not believe that that was why the ambulance was called. If this had been the reason for calling the ambulance surely this information would have been passed on to Officers Sears and/or Irvine and Ms. Whitten. The fact it was not and that instead the officers were told Mr. Dubord had been injured during his arrest suggests something else was the reason for concern. As Mr. McLeod submitted there had to be a reason for the ambulance being called but there is no evidence apart from the evidence of Officer Edgar that that reason was difficulty with Mr. Dubord’s breathing. Mr. McLeod submits that was not the reason and that it must have been the head injury.

[159] Mr. Gilman’s explanation for why Officers Irvine and Sears and the ambulance attendants were not told that the ambulance had been called because of breathing problems was because of “broken telephone” in that someone else called the ambulance, not Officer Edgar. That however, is speculation as I did not hear any details about who called the ambulance and what they were told the problem was. Furthermore, Officer Edgar stayed with Mr. Dubord while the ambulance was there and so he had ample opportunity to tell them what he says he observed. The fact his concern appears not to have been communicated to Ms. Whitten and that what was communicated is consistent with Mr. Dubord’s evidence is significant.

[160] I agree with Mr. McLeod that the reason for calling the ambulance was not likely any issue with Mr. Dubord’s breathing but rather the head injury. That injury on its own may have been seen as a relatively minor once Mr. Dubord was at the hospital, but his version of what happened, namely a blow that essentially knocked him out, would explain the ambulance being called and the fact that the nature of complaint reported to the paramedics was that Mr. Dubord complained of head pain.

[161] I have considered the fact that Mr. Dubord did not complain that he had been beaten by police when he was paraded before the booking sergeant. He was not asked about this but in my view his failure to complain does not mean his account is false. He was in police custody and may have been fearful of more misconduct and for that reason chose not to complain. In addition he seemed somewhat dazed and was not always responsive to the questions of the booking sergeant.

[162] Mr. Gilman submitted that it is unusual that Mr. Dubord was pleasant and making small talk with Officer Irvine during the level 3 search given he alleges he was beaten by police. He submitted that if Mr. Dubord had been beaten by police he would have been pretty mad at police. When Mr. Dubord was questioned about this he said that he was just really scared and he was so confused in the hospital that he still thought he had been about to be robbed in the Plaza and he thought police had arrested the guy with the bandana as well. This is corroborated by the fact that at the time he told Officer Irvine that the “big guy with the bandana” was the one who had beat him. He would have had no reason to say this if it were not something he believed at the time. When asked about this at trial, Mr. Dubord said that in his mind he was beaten by this man which would be a reference to Officer Edgar. Although he agreed that Officer Edgar did not beat him in the car, the information he gave to Officer Irvine does suggest some confusion on his part at the time and corroborates his evidence that at the time he thought Officer Edgar was a biker or gangster who was trying to rob him.

[163] Mr. Gilman submitted that in the absence of medical evidence to the contrary I cannot find that there was no opportunity for Mr. Dubord to injure himself before he was handcuffed. I do not agree that this is the appropriate test. I must decide on the evidence I accept and the reasonable inferences from that evidence and my findings of fact, whether or not I am satisfied on a balance of probabilities that some or all of Mr. Dubord’s injuries were caused by the application of excessive force of the nature he alleges. Having considered all of the evidence, I find that Mr. Dubord has satisfied me on a balance of probabilities that the injuries he suffered at the time of his arrest, at least the bloody ear and the laceration to the back of his head were caused by unknown officers who applied excessive and gratuitous force by kicking him as he described and by one of those officers using a hard object to strike him in the back of the head. Mr. Dubord’s evidence of this assault was compelling and it is corroborated by his injuries and in particular the laceration to the back of his head and the fact that the ambulance was called. Although Mr. Dubord may also have been suffering from difficulty breathing as he had pressure applied to his back by three different officers over a period of time, I do not accept the evidence of Officer Edgar that this is why he asked that an ambulance be called. I find that the blow to Mr. Dubord’s head caused the physical reaction Mr. Dubord described which would have caused concern to the officers present. I find that that is why the ambulance was called. That explains why an issue with breathing was not communicated to the paramedics and that the presenting complaint from Mr. Dubord was the head injury.

[164] I appreciate that this is a very serious finding to make and I come to this conclusion very reluctantly. Given that Mr. Dubord was unable to identify the officers who assaulted him, I have decided not to make any specific findings against any particular officer or group of officers. Furthermore, apart from Officer Edgar, it is not clear from the evidence as to who would have been present. Mr. Dubord recalled footsteps of other persons arriving. Given that I was not satisfied the Crown had otherwise proven the charges against Mr. Kang and Mr. Dubord, that is not necessary. In light of the concession by the Crown as to the appropriate remedy in these circumstances, for these reasons, the application to stay the charges against Mr. Dubord is granted.

d) Has the Crown proven beyond a reasonable doubt that Mr. Dubord assaulted Officer Edgar?

[165] Mr. Dubord denies deliberately grabbing Officer Edgar’s pinky finger. Accepting the evidence of Officer Edgar as to the nature of the injury, I could not say that it could only have occurred in the manner he described. This is different in my view than Mr. Dubord’s laceration to the back of his head. Officer Edgar testified that he jumped into the undercover vehicle in a superman like fashion and that the force took him right out the other side onto Mr. Dubord. There was then a struggle on the ground. Officer Edgar initially testified that when he landed outside the vehicle on Mr. Dubord, his hands were between Mr. Dubord and the pavement. He immediately corrected that but if his initial answer was true, which makes more sense given how he described hanging on to Mr. Dubord, that could explain his injury. In considering the evidence of Officer Edgar and Mr. Dubord, and in particular given my concerns about the credibility of Officer Edgar that I have already set out, I am not satisfied beyond a reasonable doubt that Mr. Dubord assaulted Officer Edgar as alleged.

Disposition

[166] Mr. Kang would you please stand.

[167] On the charge of trafficking in ketamine set out in Count # 1, for the reasons I have given I find you not guilty.

[168] On the charge of possession of marihuana set out in Count # 2, I find you not guilty.

[169] You were not arraigned on Count # 3 and so I presume the Crown intends to withdraw that Count.

[170] Mr. Dubord would you please stand.

[171] With respect to your application to stay your charges, for the reasons I have given, that application is granted. The charges against you as set out in Count # 1 which charges you with trafficking in ketamine and the charge of assaulting Officer Edgar set out in Count # 4 are both stayed pursuant to section 24(1) of the Charter in light of my finding that excessive force was used during the course of your arrest, breaching your section 7 and section 12 Charter rights.

SPIES J.

Released: February 21, 2013

COURT FILE NO.: CR-12-9000066-0000

DATE: 20130221

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DANIEL DOUGLAS KANG, TROY DUBORD

Defendants

REASONS FOR JUDGMENT and Ruling on defence charter application

SPIES J.

Released: February 21, 2013

[^1]: 1991 93 (SCC), [1991] 1 S.C.R. 742.

[^2]: See R. v. C.L.Y., 2008 SCC 2 at paras. 7, 9; R. v. J.H.S., 2008 SCC 30 at para. 13.

[^3]: See R. v. C.L.Y., ibid. at para. 6; R. v. Mends, 2007 ONCA 669 at para. 18. R. v. Carriere (2001), 2001 8609 (ON CA), 159 C.C.C. (3d) 51 at para. 48 (Ont. C.A.).

[^4]: R. v. J.H.S., supra at para. 9.

[^5]: R. v. Hull, 2006 26572 (ON CA), [2006] O.J. No. 3177 at para. 5. See also R. v. Van, 2009 SCC 22 at para. 23.

Her Majesty the Queen v. Daniel Douglas Kang and Troy Dubord, 2013 ONSC 1124

Case Summary

Introduction

The Issues

a) Has the Crown proven beyond a reasonable doubt that Mr. Kang was a party to the ketamine transaction?

b) Has the Crown proven beyond a reasonable doubt that Mr. Kang was in possession of the marihuana?

c) Has Mr. Dubord proven on a balance of probabilities that excessive force was used following his arrest, justifying a stay of the charges?

d) Has the Crown proven beyond a reasonable doubt that Mr. Dubord assaulted Officer Edgar?

The Evidence

Background Facts

The Background of Mr. Kang and Mr. Dubord and their Relationship

Mr. Dubord’s Acquisition of the Kilo of Ketamine

The Arrangements Between Mr. Dubord and Mr. Kang to Meet on September 16th

The Arrest of Mr. Kang

The Initial Attempt to Arrest Mr. Dubord and the Alleged Assault of Officer Edgar

The Pursuit, Arrest and Alleged Assault of Mr. Dubord

Mr. Dubord’s Injuries

Analysis

Credibility Assessments

(i) Mr. Kang

(ii) Mr. Dubord

(iii) Officer Warrener

(iv) Officer Birrell

(v) Officer Edgar

a) Has the Crown proven beyond a reasonable doubt that Mr. Kang was a party to the ketamine transaction?

b) Has the Crown proven beyond a reasonable doubt that Mr. Kang was in possession of the marihuana?

c) Has Mr. Dubord proven on a balance of probabilities that excessive force was used following his arrest, justifying a stay of the charges?

d) Has the Crown proven beyond a reasonable doubt that Mr. Dubord assaulted Officer Edgar?

Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 1

Legislation 1