ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 6/13

DATE: 20131210

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ANDREW EAGAN

Applicant

David A. Mitchell, for the Crown

Steven M. Fishbayn for the Applicant

HEARD: December 2, 4 and 5, 2013

TROTTER J.

Ruling on Application to Stay Proceedings

INTRODUCTION

[1] Mr. Eagan is charged with 12 offences arising from his alleged possession of two loaded handguns on July 8, 2010. At the outset of trial, he applied for a stay of proceedings under s. 24(1) of the Charter, or alternatively the exclusion of evidence under s. 24(2), both claims being based on breaches of his rights under ss. 7 and 9. Mr. Eagan asserts that he was arbitrarily detained on that night by being held for over two hours for the purposes of investigative detention, prior to the police locating the guns. He also contends it amounts to an abuse of process.

[2] I conclude that Mr. Eagan’s rights under s. 9 of the Charter were infringed on the night of his arrest. The Crown concedes this breach. However, I am not persuaded that the detention amounts to an abuse of process or otherwise warrants a stay of proceedings or the exclusion of evidence.

SUMMARY OF THE FACTS

[3] From the perspective of the police, three things happened on July 8, 2010. The police received a gun call. After they were at that call for about half an hour, they received a call about two men changing their clothing in the backyard of a nursing home. When they investigated the latter, it led to the discovery of another man who with a serious stab wound. At the end of this sequence, Mr. Eagan and Coady Duhamel (also known as “Code Red”) were detained. Mr. Duhamel was released two hours later. Mr. Eagan was arrested shortly thereafter. This is the context in which the s. 9 claim is asserted.

[4] Detective Constable James Braund responded to the gun call that came in at 11:11 p.m. When he arrived on the scene (120 Dowling Avenue), a new call came in from the White Eagle Nursing Home (138 Dowling Avenue) about the men in the backyard. D.C. Braund pulled into the parking lot beside the nursing home. He saw two males in the backyard. They looked at each other and were looking into a brown bag. The two men bolted. D.C. Braund caught up to the male who was dressed in black (Mr. Eagan) and handcuffed him. Both Mr. Eagan and Mr. Duhamel (dressed in white) said that their friend had been stabbed. When he returned to the backyard, D.C. Braund saw the stabbed man, Jason McGregor, on the ground. An ambulance was called.

[5] D.C. Braund transferred custody of Mr. Eagan to another officer. He then commenced his investigation. He testified that he was dealing with a large crime scene, with blood droplets trailing from the nursing home back towards 120 Dowling Avenue. D.C. Braund briefed other officers. He dealt with officers from the Forensic Investigation Service and the Canine Unit. D.C. Braund briefed Detective Desmond Ryan from the Criminal Investigation Bureau.

[6] D.C. Braund testified that he saw a bag in Mr. Eagan’s hand as he was running away and jumping over a fence. When he caught up to Mr. Eagan, the bag was gone. When the bag was eventually recovered a couple of hours later, it contained two loaded guns. He called this in over the police radio at 2:00 a.m. D.C. Braund testified that, when he apprehended Mr. Eagan and Mr. Duhamel, he thought they were involved with the gun call.

[7] D.C. Braund was cross-examined on the descriptions of the men that were broadcast on both the gun call and the nursing home call. On the gun call, descriptions were given of “male white, curly hair, skinny, white t-shirt.” The other man was “male white, heavy build, hair in pony tail.” D.C. Braund agreed that neither of these descriptions fit Mr. Eagan, who had a shaved head and was wearing black clothing. However, Mr. Eagan did fit the description of one of the persons at the nursing home. However, the person who made the nursing home call said that the person who looked like Mr. Eagan had just arrived in a “taxi bus.”

[8] Interestingly, Justin McGregor fit the second description from the gun call. When attending to Mr. McGregor, D.C. Braund asked him if either Mr. Duhamel or Mr. Eagan had stabbed him. He said that they had not and they were his friends. Mr. McGregor was otherwise uncooperative with the police. D.C. Braund did not accept Mr. McGregor’s statement at face value and testified that there are plenty of reasons to doubt the truthfulness of these sorts of denials in the circumstances.

[9] D.C. Braund testified that he turned his mind to locating what others had described as a backpack at 12:27 a.m. He found a brown bag containing two guns at 2:00 a.m. During this time, he did not inquire into the custody of Mr. Eagan, nor did he speak about this issue with any other officer on scene.

[10] P.C. Guy Hughes also responded to the nursing home call. After Mr. Duhamel and Mr. Eagan were apprehended, he advised both of them at the same time that they were being detained for investigation into the stabbing. At 12:05 a.m., P.C. Hughes put Mr. Eagan in the rear of his car after being handcuffed to the rear. P.C. Hughes said it was a hot and humid night. While the air conditioning was on in his cruiser, it was not very effective. He opened the car doors to allow air to circulate “to keep him comfortable.” At 12:25 a.m., P.C. Hughes advised Mr. Eagan of his right to counsel and said he was being detained with respect to the aggravated assault. Instead of calling a lawyer, Mr. Eagan, who was 19 at the time, asked and was permitted to call his mother. The call lasted for about 12 minutes, ending at about 12:40 a.m. D.C. Hughes testified that, after that, everyone was in a “holding pattern” as the investigation continued. At some point, Mr. Eagan’s mother arrived on the scene. His father arrived after that. At 2:15 a.m., Det. Ryan advised Mr. Eagan that he was under arrest for possession of the guns.

[11] In cross-examination, P.C. Hughes agreed that Mr. Eagan was very cooperative and did not pose a problem. They had ascertained his address and determined that he was not on bail, nor was he drunk or high. P.C. Hughes said that he was handcuffed so that he could not run away when the police car doors were open. He acknowledged that this was unlikely, but as P.C. Hughes said, “people do funny things.”

[12] P.C. Hughes said that his authority to hold on to Mr. Eagan arose from the stabbing incident. He never inquired into the evidence that implicated Mr. Eagan in the stabbing and he was not made aware of the fact that Mr. McGregor said that Mr. Eagan was not involved. While he agreed that this was likely the lengthiest investigative detention he had been involved in, it did not seem like a long time in the circumstances. He said they were waiting on word from the hospital about Mr. McGregor’s condition. P.C. Hughes said that he did not report this situation to superior officers after the fact and that he would do it again in the circumstances because he thought it was acceptable police practice.

[13] Det. Ryan was the senior ranking officer in charge of this investigation. He arrived at the nursing home at about 12:24 a.m. to deal with a stabbing victim with life-threatening injuries. He considered the information about a backpack and changing clothes to be very suspicious. He spoke to Mr. Duhamel, who was uncooperative.

[14] Det. Ryan then went to speak to Mr. Eagan. He did not believe that he had handcuffs on at the time. He said that the door was open because Mr. Eagan was not under arrest. Det. Ryan thought the whole situation was pretty casual. He testified that both of Mr. Eagan’s parents arrived on the scene while he was there.

[15] As time went by, Det. Ryan said that the situation was a lot more serious than he first thought. At some point, he thought the two incidents (the gun call and the stabbing) came together as one event. After evaluating the situation, and after speaking to both Mr. Duhamel and Mr. Egan, Det. Ryan determined they were not involved in the stabbing. He was not sure what time he came to this conclusion because “there was a lot going on that night.” As he pointed out, the crime scene(s) spanned a city block and there were over 15 officers on the scene. Det. Ryan said that, it would seem like a long time if you are just sitting, but there were a lot of things going on and that “it didn’t seem that long; it was quite quick.”

[16] Det. Ryan testified that he had information that guns were involved and that they may have been dropped. He did not want either of the men to go back to retrieve them. Nevertheless, the guns not having been located, Det. Ryan decided to release Mr. Duhamel. He was on his way to speak to Mr. Eagan one last time about the guns and he would have been released “shortly thereafter.” As Det. Ryan said, “it was becoming obvious we would have to let these fellas go and we knew who they were.”

[17] As with the other officers who testified on the voir dire, Det. Ryan did not write detailed time notations in his notes. Like other officers, said that they were very busy at the time and did not have time to do so. They relied on ICAD reports to identify precise time markers.

[18] In cross-examination, Det. Ryan testified that he never had a situation such as this one before. In terms of the length of detention, he did not believe that he acted improperly and would do the same thing in similar circumstances in the future. The only thing that he would do differently would be to make better notations of the times that certain things were done. But he did acknowledge that, if I determined that Mr. Eagan’s rights had been violated, he would act differently in the future “because I would want to do things lawfully to the best of my abilities.”

[19] Lastly, Sgt. Parsaram testified. He was the supervisor on the road and received the call to the nursing home. He contacted Det. Ryan to take charge of the investigation. Sgt. Parsaram heard that Mr. McGregor had told D.C. Braund that neither man had stabbed him. He knew that Mr. Eagan was handcuffed and in the back of a police car. Sgt. Parsaram testified that, given the stabbing incident being investigated, taking the handcuffs off was not an option.

ANALYSIS

(a) Arbitrary Detention

[20] On behalf of Mr. Eagan, Mr. Fishbayn acknowledges that the initial detention was justified. He argues that Mr. Eagan was held for significantly longer than the law permits. As mentioned already, Mr. Mitchell for the Crown concedes that s. 9 was infringed by detaining Mr. Eagan for so long, but maintains the initial detention was warranted.

[21] I agree that the initial detention of Mr. Eagan was justified. There were reasonable grounds to believe that Mr. Eagan may have been connected to specific criminal activity. As the Court of Appeal said in R. v. Plummer (2011), 2011 ONCA 350, 272 C.C.C. (3d) 172 (Ont. C.A.), at p. 181, “[t]he threshold of reasonable grounds for an investigative detention must be determined through an examination of the totality of the circumstances.” See also R. v. Clayton (2007), 2007 SCC 32, 220 C.C.C. (3d) 449 (S.C.C.).

[22] In this case, the investigation into the gun call quickly merged with the nursing home call, which quickly led to the stabbing victim, Mr. McGregor. Whether or not the information provided to the police that night ultimately ends up being authenticated in all of its details at trial, it was not unreasonable for the police to act on it. The police received information that Mr. Eagan was changing his clothing outside of a nursing home close to midnight. He, along with Mr. Duhamel, were in a fenced off area and they were both looking into a bag. When the police arrived, both men ran. I consider this to be part of the constellation of permissible factors that are relevant in this case: see R. v. Plumber, supra, at pp. 181-182, R. v. Nesbeth (2008), 2008 ONCA 579, 238 C.C.C. (3d) 567 (Ont. C.A.), at pp. 573-574 and R. v. Dene, 2010 ONCA 796. When he was caught, Mr. Eagan was with Coady Duhamel, who was connected to the gun call (in the sense that the police received information that Duhamel had a gun). Moreover, the men drew attention to Mr. McGregor, who they told the police had been stabbed. Yet, they had just run from this “friend” when the police arrived. It is true that Mr. McGregor told the police that Mr. Duhamel and Mr. Eagan did not stab him. However, in the heat of the moment, the police were not required to accept this statement at face value.

[23] In all of the circumstances of this case, there was justification to detain Mr. Eagan, and for more than one reason. The real question is whether Mr. Eagan was held for too long in the circumstances. I agree with both counsel that he was held for too long.

[24] Investigative detentions are meant to be brief. This was stressed in R. v. Mann (2004), 2004 SCC 52, 185 C.C.C. (3d) 308 (S.C.C.), in which Iacobucci J. said at p. 237:

To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case. [emphasis added]

[25] Mr. Eagan’s detention was not brief. It lasted for about 2.5 hours. However, before moving to the question of remedy, I wish to mention a few of the other features of Mr. Eagan’s detention. Allowing for these unfavourable circumstances, Mr. Eagan was treated well. He was advised of his right to counsel, but declined to exercise this right. Instead of phoning a lawyer, he was permitted to phone his mother. The police were under no obligation to facilitate this type of communication. His mother, and then his father, soon arrived on the scene, even though Mr. Eagan was not permitted to speak to them at that time.

[26] Mr. Fishbayn stressed that his 19-year-old client was handcuffed to the rear for the entire time and that he was in the back of the police car. There was no evidence adduced to establish that these features of the detention were unusual or a departure from normal police protocol. I also note that a couple of the officers testified that it was very hot that July evening. While the air-conditioning was turned on in the police car, it was acknowledged that it was not particularly effective for someone sitting in the backseat of the car. Consequently, the rear door of the car was opened in an attempt to make the situation more comfortable for Mr. Eagan.

[27] Lastly, I note that no evidence was called by the defence on this application. Mr. Eagan did not testify or provide an affidavit to detail the manner in which he was affected by what happened to him that night, at least beyond what may be inferred from the obvious discomfort that flowed from being detained for that long in the back of a police car while handcuffed.

[28] The detention of Mr. Eagan started off lawfully. However, Mr. Fishbayn argued that it became unlawful over time. Yet the point at which its legal quality changed was never pinpointed. This may be because this concept is not amenable to such a precise quantitative analysis. As Mr. Mitchell said during his submissions, “In hindsight, it took too long. But there was no clear marker at the time” it was happening. I agree. Nevertheless, I find that the duration of Mr. Eagan’s detention far exceeded what was justifiable as an investigative detention. No comparable cases were cited to me in terms of the length of detention. Mr. Eagan’s rights under s. 9 of the Charter were infringed.

[29] In addition to alleging a s. 9 breach, Mr. Fishbayn argues that the same conduct amounts to an abuse of process under s.7 of the Charter. There is no basis for a finding that the conduct of the police or the prosecution of the charges against Mr. Eagan amount to an abuse of process: see R. v. Nixon (2011), 2011 SCC 34, 271 C.C.C. (3d) 36 (S.C.C.). The question of an appropriate remedy should be determined on the basis of a breach of s. 9.

(b) Exclusion of Evidence

[30] At the outset of his submissions, Mr. Fishbayn quite reasonably abandoned his request for a remedy under s. 24(2) of the Charter. On the facts of this case, it cannot be said that the evidence (i.e., the discovery of the guns) was “obtained in a manner” that infringed Mr. Eagan’s Charter rights: see R. v. Goldhardt (1996), 1996 214 (SCC), 107 C.C.C. (3d) 481 (S.C.C.). There was no causal link between the detention and the discovery of the guns, and the temporal link was tenuous: see R. v. Ngo, 2010 ONCA 760, at para. 27.

(c) Stay of Proceedings

[31] It is axiomatic that a stay of proceedings may only be granted as a remedy in the “clearest of cases.” As I will explain below, this is not one of those cases.

[32] It is unnecessary to trace the development of the law relating to stays of proceedings. In R. v. Zarinchang (2010), 2010 ONCA 286, 254 C.C.C. (3d) 133 (Ont. C.A.), the court summarized the animating principles that must be applied. After considering the leading authorities from the Supreme Court of Canada on this issue (i.e., R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 322 (SCC), [1997] 3 S.C.R. 391 and R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297), the Court said the following at pp. 148-149:

From the above cases in the Supreme Court, the following principles emerge:

(1) There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual's trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.

(2) In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied:

(i) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and

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

(3) In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider - the balancing of the interests in granting a stay against society's interest in having a trial on the merits.

Where the residual category is engaged, a court will generally find it necessary to perform the balancing exercise referred to in the third criterion. When a stay is sought for a case on the basis of the residual category, there will not be a concern about continuing prejudice to the applicant by proceeding with the prosecution. Rather, the concern is for the integrity of the justice system. [emphasis added]

These principles were applied in R. v. N.Y. (2012), 2012 ONCA 745, 294 C.C.C. (3d) 313 (Ont. C.A.), at pp. 358-359 and R. v. M.T. (2013), 2013 ONCA 476, 299 C.C.C. (3d) 1 (Ont. C.A.), at pp. 24-25.

[33] In this case, the conduct of the police in detaining Mr. Eagan did not do anything that might prejudice or diminish his fair trial interests. Therefore, the issue is whether this case falls into the residual category of cases for granting a stay of proceedings.

[34] The analysis that is required under the residual category is forward-looking, focusing on any impact on the integrity of the system if a trial is permitted to proceed on the merits; that is, would a trial perpetuate or aggravate the situation by making the judicial system complicit in the breach of Mr. Eagan’s Charter rights? If there is such prejudice, it must be determined whether a lesser remedy is capable of removing it. As the Court in Zarinchang, supra, emphasizes, this does not engage a process for punishing the police for past wrongs.

[35] This is not a case where the police planted or fabricated evidence as in R v. Salmon (2011), 2011 ONSC 3654, 85 C.R. (6th) 397 (Ont. S.C.J.), aff’d 2013 ONCA 203. Nor was there any physical mistreatment of Mr. Eagan, as there was in R. v. Tran (2010), 2010 ONCA 471, 257 C.C.C. (3d) 18 (Ont. C.A.). Both of these cases resulted in stays of proceedings. Nevertheless, Mr. Fishbayn points to a number of features of this case which he contends are troubling. He argues that the length of time that Mr. Eagan was detained is “unprecedented.” He rightly observes that none of the officers believed that they had done anything wrong in holding Mr. Eagan for as long as they did that night. I agree with Mr. Fishbayn’s submission that, when given the opportunity, none of the officers had a particularly good understanding of the limits of investigative detention. Mr. Fishbayn notes that none of the officers reported themselves to superior officers, nor did they seek any advice on the legality of their actions, although I would find both courses of action to be highly unusual, given that there is no formal process for such action and the officers did not regard their conduct as problematic. Mr. Fishbayn argues that this transforms the problems to a systemic level within the ranks of the Toronto Police Force (TPS). I disagree.

[36] While the length of the investigative detention in this case may be “unprecedented”, it should not become precedent setting. The declaration of a Charter breach in this case should prevent this incident from authorizing a repetition of the same conduct in the future. Moreover, based on the evidence before me, it stands as an isolated event that occurred over three years ago. Moreover, there was no evidence that it has happened since or that the incident has spawned a careless attitude to the use of investigative detention by TPS officers. This is supported by Det. Ryan’s evidence that she would act differently in the future should I find a breach of s. 9 in this case. This evidence was unchallenged. Realistically, it may be unchallengeable. But I accept this aspect of his evidence. It provides some assurance that a declaration of a breach of s. 9 of the Charter in this case will have the effect of focusing officers to be more careful in observing the important temporal limitations of investigative detention.

[37] The officers faced an unusual situation that evening – a gun call that may have been related to the nursing home call, which lead to the identification of a stabbing victim. Given the information available at the time, Mr. Duhamel and Mr. Eagan appeared to be part of this evolving scenario, but their precise roles (if any) were as yet unknown. It took time for the police to sort things out that evening. I am not in a position to determine whether the investigation itself was efficient and suitably focused. The officers testified that they were extremely busy, but provided little detail on precisely what kept them in this state. Despite being so busy (and I accept that they were), the officers should have directed their minds to the fact that, while they examined this complex set of circumstances, there were two men in custody, neither of whom had been arrested. Mr. Duhamel was eventually released. It would appear that Mr. Eagan was about to be released just before the guns were discovered. The detention was too long, but not so long as to justify a stay of proceedings under the residual category, especially given the idiosyncratic nature of this case and, as I have found, a lack of worrying systemic features associated with the breach.

[38] To the extent that it is necessary, I make the following observations about the counterbalancing societal interest in having a trial on the merits of the charges faced by Mr. Eagan. It is no longer necessary to cite a litany of cases in support of the proposition that gun violence is a serious social problem, especially in large urban areas such as Toronto. This is a common refrain in the bail and sentencing case law. While there was no gun violence in this case, the offences alleging possession of two loaded firearms, out in public, in downtown Toronto, are extremely serious. While the balancing under the residual category must focus on the need for a trial on the actual charges laid, in this case, the Charter breach occurred while the police were also investigating a serious stabbing, one that was brought to their attention by Mr. Duhamel and Mr. Eagan. All things considered, the nature of the breach of s. 9 of the Charter in this case, in the unusual circumstances in which it occurred, was not so serious that it ought to stand in the way of a trial on the merits of these charges, in which there is very serious societal interest. The breach of Mr. Eagan’s rights would neither be perpetuated nor aggravated by the trial itself. Public confidence in the administration of justice would be undermined by terminating this prosecution in these circumstances.

CONCLUSION

[39] For these reasons, the application is dismissed. I wish to thank both counsel for their able submissions.

TROTTER J.

Released: December 10, 2013

COURT FILE NO: 6/13

DATE: 20131210

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Respondent

– and –

ANDREW EAGAN

Applicant

RULING ON APPLICATION TO STAY PROCEEDINGS

TROTTER J.

Released: December 10, 2013