Court File and Parties

COURT FILE NO.: CR-13-30000 189-0000 DATE: 2014-01-15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent

– and –

BLAKE DOUGLAS Applicant

Counsel: Tim Edwards, for the Respondent Donald Powell, for the Applicant

HEARD: November 25-28, 2013

DUNNET J.:

CHARTER RULING

[1] The applicant has been charged with breaking and entering, possession of property obtained by crime, possession of burglar’s tools, mischief, and failing to comply with probation.

[2] He seeks an order staying the proceedings against him pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms based on allegations of excessive force used by the police in arresting him, thereby violating his rights under ss. 7 and 12 of the Charter. In the alternative, he submits that if this is not one of those clearest of cases where a stay of proceedings should be granted, the sentence that would otherwise be warranted should be reduced to reflect the use of force against him.

THE EVIDENCE

The Applicant

[3] On July 6, 2012, the applicant was 46 years old, stood six feet tall and weighed 250 pounds. He was inside a house on 65 Maresfield Drive in Toronto without permission. As he left the house by the rear sliding door in the dark, a police officer in a neighbouring yard yelled, “Stop. Freeze. You’re under arrest.”

[4] He ran down the steps and climbed over a fence into the rear yard of 63 Maresfield Drive. When he reached a five foot high fence bordering 63 Maresfield and McNicoll Avenue, he put both hands and one leg over the top of the fence and tried to roll his body over it. The fence gave way and he stumbled to the ground, running as fast as he could across McNicoll.

[5] He climbed an embankment that bordered a hydro field and ran through a cluster of trees. Although he came into contact with some of the branches, he denied that they caused cuts to his face or that he yelped out in pain.

[6] The officer chasing him was yelling, “Stop, or I’ll shoot.” He thought that he might be shot, but he kept running because he did not want to get arrested and beaten up.

[7] As he crossed the hydro field, he made a wide turn to head back to McNicoll when he felt the skin on his face starting to burn. He felt something hard strike his right shoulder and seconds later, the officer tackled him to the ground. The applicant put out his hands to brace himself for the fall and he landed with his hands under his chest.

[8] The officer told him to put his hands behind his back because he was under arrest. He did not resist and presented his hands. He testified that he was trying to get his hands behind his back, but it was difficult to do so because the officer was on top of him trying to grab his hands with one hand, throwing punches to the sides of his head and ears with the other hand and yelling, “Stop resisting.” Another officer arrived and put his knee into the applicant’s upper back and neck.

[9] After they applied handcuffs, they were on his back continuing to give him blows. He testified that they gave him a total of eight to ten blows to the sides of his head, the back of his legs and one to the ribs. He was begging them to stop hitting him because he felt a burning sensation on his head, face and right shoulder. He said, “Please stop. I’ve got asthma. I cannot breathe.” He denied that he used his leg to strike one of the officers in the shin.

[10] After the handcuffs were applied, the officers helped him to his feet and walked him to the police vehicle. He felt pepper spray inside his mouth and was begging for water and they told him that they did not have any water.

[11] Inside the vehicle, he told them that the handcuffs were too tight and his hands were swelling and causing him pain. They let him crawl out of the car and “double handcuffed” him before they sat him down on the grassy embankment. They told him that they had called for an ambulance. He continued to complain about the burning sensation to his face and they allowed him to put his face near the air vent on the driver’s side of the police vehicle.

[12] Although they waited for almost an hour, the ambulance did not arrive. In the meantime, they told him that they had found some water that they would give him if he cooperated with them. Because the effects of the pepper spray were getting worse, he agreed to cooperate.

[13] Eventually the officers told him that an ambulance was not coming and they might as well go to the police station. He agreed to do so because he thought that the ambulance would meet him at the station.

[14] On the booking video at 12:22 a.m. on July 7, 2012, the applicant is seen limping and telling the sergeant that his face and mouth are burning from the pepper spray. The sergeant tells him that the officers will get him some water.

[15] When the officers were searching him, he had difficulty removing his shirt and undershirt and he realized that something was wrong with his right shoulder.

[16] After he was remanded into custody on July 7, 2012, he was seen by a nurse who noted that he had small cuts and bruises on his nose, ear and right shoulder. Under the heading “Respiratory Systems Check,” the nurse checked the box “none.”

[17] Two days later, the applicant saw a doctor who noted a circular mark on his right shoulder. The applicant told him that either he was struck with a flashlight, or a flashlight was thrown at him. The doctor wrote “consistent with that.”

[18] The applicant acknowledged that he recovered fully from the effects of the pepper spray and there was no follow up required for his injuries.

[19] On July 12, 2012, at the Toronto East Detention Centre, photographs were taken of his injuries. The applicant described a small cut on the bottom of his left eye, a pinkish area on the right side of his forehead and two healing scabs on the tattoo on his right shoulder. He testified that the marks on his shoulder took six to eight weeks to heal and the scar is permanent.

[20] The position of the applicant is that none of his injuries were caused by the collapse of the fence or the tree branches and all of his injuries were caused by the police after he was tackled to the ground. Although he did not see the officer carrying a flashlight, he thought that the only logical explanation for his shoulder injury was a flashlight because the scab formation was round.

Brandon Nickerson

[21] At the time of these events, Brandon Nickerson had been a police officer for four years. He was 26 years old, stood 5 feet 10 inches tall and weighed 185 pounds.

[22] At 10:54 p.m., he and his partner responded to a call from a tenant in the basement apartment of 65 Maresfield about a break and enter in progress.

[23] Officer Nickerson observed broken glass and pieces of rock on the floor inside the front door of the house. A minute later, he heard his partner call out, “Police. You’re under arrest.”

[24] As Officer Nickerson ran towards the back yard, the applicant jumped over a fence into the rear yard of 63 Maresfield. The officer engaged in a foot pursuit, yelling, “Police, stop.” When he was five to ten feet behind the applicant, he saw him “body check” the fence at the end of the yard, causing it to collapse. The applicant stumbled over the fence and kept on running.

[25] He testified that the applicant was one of the largest individuals whom he had encountered and the way that he traversed the fence spoke to his strength and lack of interest in cooperating with police.

[26] The officer pursued the applicant who sprinted across four lanes of traffic on McNicoll and up an embankment towards a cluster of pine trees at the edge of a hydro field. As the applicant ran through the trees, branches were hitting him in the face.

[27] Officer Nickerson was running with his flashlight in his hand and yelling at the applicant to stop. When he felt that he was close enough to attempt physical contact, he used a striking motion to his upper back as hard as he could to try to get him to the ground. He made contact with the upper torso area but the push was ineffective. He denied that he used his flashlight as a weapon. He did not recall saying, “Stop, or I’ll shoot.”

[28] As the applicant changed direction towards McNicoll, the officer observed a black handled object in his hand. He testified that the applicant was displaying active resistant behaviour. He became concerned for his own safety and felt that he was authorized to employ intermediate use of force with olioresin capsilum (pepper) spray.

[29] The officer waited until he could see the side of the man’s face and deployed two or three second bursts of pepper spray. Initially, the spray had no effect. Moments later, he saw the applicant rub his face and start to slow down. He tackled him from behind and brought him to the ground.

[30] Officer Nickerson testified that he was sitting on the lower part of his body and yelling at him to put his hands behind his back, but the applicant was refusing to do so. The officer was struggling to pull his arm out to the side from under him and he thought that the applicant still had hold of the black handled object.

[31] He delivered two or three hand strikes to the applicant’s left upper arm so that he would comply with the demand and produce his hands, but the strikes had no effect. He used two hand strikes to the side or back of his head to achieve pain compliance and the applicant’s arm came free.

[32] He managed to get one arm behind the applicant’s back as his partner arrived and there was a brief struggle before they were able to get the other arm behind his back in order to secure his wrists with handcuffs.

[33] Officer Nickerson testified that as soon as he could see the other arm, he stopped striking the man. He did not strike him after the handcuffs were applied. It took less than a minute between the tackle and the arrest.

[34] Officer Nickerson returned to the house to ensure that there were no other suspects and when he rejoined his partner, the applicant was complaining about the effects of the pepper spray and pain from the handcuffs. The officer testified that given the applicant’s large stature, he added a second set of handcuffs in order to ease the tension on his wrists. He did not recall the applicant telling him that he had asthma or that he could not breathe.

[35] The applicant continued to demand water to pour over his face. Officer Nickerson testified that he could sympathize with him, having experienced the effects of pepper spray himself during his training as a police officer.

[36] He retrieved a bottle of water from his personal belongings and gave it to the applicant. He permitted him to wait for the ambulance outside of the police vehicle and turned on the air conditioner so that the applicant could put his face close to the air vent, which appeared to give him some comfort. Officer Lavers called for an ambulance to bring a saline solution to assist in decontamination.

[37] After waiting almost an hour for an ambulance to arrive, the decision was made to go to the station where there was access to water. During the search at the station, Officer Nickerson had no recollection of seeing blood on the applicant’s shirt or upper back.

Manfred Lavers

[38] Manfred Lavers had been a police officer for four years. He was thirty years old, stood 5’ 9” tall and weighed 190 pounds. He saw the applicant with an illuminated flashlight in his hand leave 65 Maresfield through a sliding rear door and called out, “Police. You are under arrest.” The applicant reached into his pants pocket and the officer thought that he might have a weapon.

[39] The applicant jumped over a fence into the rear yard of 63 Maresfield and ran towards a fence which came crashing down onto the sidewalk bordering McNicoll. As the applicant stumbled over the top of the fence, Officer Lavers called out, “Stop. Police. Get on the ground.” The applicant did not stop. He continued to run through traffic across McNicoll and into a hydro field.

[40] With both officers in pursuit, he made his way through a cluster of coniferous trees and Officer Lavers heard him say, “Ouch. Shit.” Then he saw Officer Nickerson deliver a distractionary strike with his right hand to the applicant’s arm or back. He did not know whether the officer had anything in his hand, or if he made contact with the applicant.

[41] As they ran through the field, Officer Lavers watched the applicant start to make a loop and head back towards McNicoll. He was yelling at the applicant to stop. He denied that he said, “Stop, or I’ll shoot,” and he did not hear his partner use those words.

[42] Officer Lavers was twenty to twenty-five feet behind them when he saw Officer Nickerson tackle the applicant to the ground. As he hit the ground, the applicant rolled onto his right side with his left arm and leg in the air.

[43] As Officer Lavers approached them, Officer Nickerson was on the ground struggling with the applicant who was actively resisting arrest. The applicant kicked back his left leg, striking Officer Lavers in the shin.

[44] Officer Lavers testified that this very large man was actively resisting arrest and had become assaultive. He had already raised concerns about a weapon when he reached into his pocket at the back of the house. The officer decided to deploy his baton for officer safety and to gain control of the man.

[45] In his testimony, he described the officer training he had received to achieve pain compliance by using his baton to strike the large muscle mass without causing damage. He struck the applicant’s legs three times. In between each defensive strike, he gave the command to stop resisting and waited for compliance.

[46] After the third strike, the applicant started to slowly roll onto his stomach. His right hand was still under his body. Officer Lavers employed two hand strikes to his ribs to get pain compliance before the applicant would give up his hand to allow the officers to apply handcuffs. There was no further force used on the applicant.

[47] The applicant was complaining about a burning sensation to his face from the pepper spray. The officers walked him to the embankment and sat him on the grass while they called for an ambulance.

[48] Officer Lavers told the applicant that from his own experience, it was better to let his eyes water to flush out the pepper spray naturally than to pour water on his face, but the applicant insisted that they give him water. Officer Lavers retrieved two bottles of water from his lunch bag and handed them to the applicant.

[49] Officer Nickerson walked the applicant to the police vehicle and allowed him to sit on the kick plate, holding his face in front of the air vent to the left of the steering wheel. When it became apparent that an ambulance was not readily available, the decision was made to drive to the station.

[50] Officer Lavers completed an Injury Report, which stated that an impact weapon (the baton) was used. The Report also stated: “The male sustained cuts to his face, head, ear and eye while fleeing from officers. The male sustained an abrasion to his right shoulder during the arrest.” During his interaction with the applicant that night, he did not make any request to see a doctor. Officer Lavers had no explanation for the cause of the cuts to the applicant’s face, or the abrasion to his right shoulder.

[51] He wrote in his notes: “Minor cuts to face, ear and head from the trees.” He explained that as they ran through the trees, he put his hands in front of his face and as a result, he did not sustain any cuts. It was his impression that there was nothing else that could have caused the “nicks” to the applicant’s face.

THE POSITION OF THE APPLICANT

[52] The applicant acknowledges that he has a lengthy criminal record for breaking and entering and that he was in the course of committing this criminal activity when these events happened. It is submitted that his evidence had the ring of truth and his injuries are corroborated by the Record of Arrest, the nurse and doctor at the detention centre and the photographs.

[53] The position of the applicant is that all of his injuries were sustained after he was tackled to the ground face down and after he had given himself up and was compliant. Although he did not see what caused the injury to his right shoulder, he submits that the only logical explanation for the circular scabs is that they were caused by the end of the metal flashlight that Officer Nickerson was carrying as he pursued the applicant. Officer Nickerson accepted that the marks in the photograph of the applicant’s right shoulder appeared to be similar to the end of a flashlight.

[54] The applicant submits that although the use of pepper spray was an appropriate and proportionate response to his escape and had the desired effect, he willingly complied with demands to present his hands once he was tackled to the ground. He told the officers that he was asthmatic and could not breathe and yet, they continued to apply force. The applicant queries why an ambulance was called if neither officer recalled any complaints about an inability to breathe.

[55] It is submitted that the evidence of the officers was inconsistent and unreliable. Officer Nickerson testified that when he tackled the applicant from behind, he landed face down. Officer Lavers testified that when Officer Nickerson took the applicant to the ground, the momentum caused the applicant to fall onto his right side, which enabled the applicant to use his left leg to kick Officer Lavers in the shin.

[56] Officer Nickerson testified that he was sitting on the lower portion of the applicant’s body. Officer Lavers testified that it was not possible for Officer Nickerson to have been on his legs because he was able to hit the applicant’s legs with his baton, but did not strike Officer Nickerson in the process.

[57] The position of the applicant is that after he complied with the demand to put his hands behind his back, he was struck eight to ten times. Officer Nickerson testified that he punched the applicant two or three times in the head and upper back. Officer Lavers testified that he punched the applicant a couple of times in the ribs.

[58] It is submitted that this is one of the clearest of cases where a stay of proceedings is warranted. In the alternative, there was an imprint on his right shoulder from a round object and an absence of evidence from the police as to how the injury was caused. Accordingly, the force used by the police was excessive and warrants a reduction in sentence.

THE POSITION OF THE RESPONDENT

[59] The respondent submits that the degree of force used by the police was responsive to the resistance and potential threat caused to them by the applicant. It is asserted that the officers responded to a dynamic situation in which a potentially armed individual was fleeing from a crime scene. Their response in trying to arrest the applicant by pushing him, dispensing pepper spray, tackling him and striking him with a baton and fists was proportional, measured and necessary in the circumstances.

[60] It is submitted that nothing the police did was for the purpose of inflicting unnecessary harm or pain. Once they had achieved their lawful purpose in effecting the arrest, there was no further imposition of force.

[61] Further, the treatment of the applicant in police custody did not give rise to a Charter breach and the officers honestly and openly completed their reports documenting the extent of the applicant’s injuries.

[62] The respondent contends that it is unknown whether the officers caused the injuries of which the applicant complains, given that the applicant ran through a wooden fence, breaking down fifteen to twenty feet of fencing, and ran through a cluster of pine trees with closely knit branches.

[63] It is the position of the respondent that the applicant has failed to discharge his burden of proving a Charter violation on a balance of probabilities. The respondent acknowledges that a reduction in sentence can flow from an excessive use of force by police. It is submitted, however, that the police acted in a reasonable and measured manner when they arrested the applicant.

ANALYSIS

[64] The applicant candidly admitted that after he was discovered committing the offence of breaking and entering, it was his intention to flee from the police. He maintained that after he was tackled to the ground, he was compliant immediately. His actions, however, betray an unwillingness to comply.

[65] As soon as he saw the police, he hopped over one fence, ran through another fence, across four lanes of traffic and through a close cluster of tree branches. He was struck hard on his right shoulder and pepper sprayed. Although he was told to stop, or he would be shot, he continued to run.

[66] Once he was taken to the ground, events happened quickly with a potentially dangerous individual. Officer Nickerson recalled that the applicant was face down and he was sitting on top of him trying to get control of his arms. He hit the man’s shoulder and head area two or three times. From his position, he could not have seen what was happening with the applicant’s legs.

[67] Officer Lavers testified that the applicant was face down on the right side of his body. He was struggling with the right side of the applicant’s body when his behaviour escalated and he kicked the officer.

[68] Officer Lavers utilized his baton three times. After each strike, he gave the command to stop resisting. He gave two distractionary punches before the applicant rolled over. I find that in this dynamic and unfolding situation, each officer recalled what happened from his own perspective.

[69] All three men agreed as to the number of blows that were administered during the course of the arrest. The applicant testified that he was struck a total of eight to ten times. Officer Lavers testified that he struck the applicant three times in the leg and twice in the ribs. Officer Nickerson testified that he administered two or three hand strikes to the left upper arm and two to the head area.

[70] I find that the attending officers delivered the distractionary strikes because the applicant was actively resisting arrest after he was on the ground. He was not compliant. The force they used was necessary to effect the arrest. After the handcuffs were applied, the police did not strike the applicant. Neither officer recalled hearing the applicant say that he could not breathe.

[71] The evidence of the officers was refreshingly candid and honest. It was obvious that they take their responsibilities as police officers seriously. Their answers were responsive to the questions. Neither officer shied away from the level of force needed to respond to the situation that confronted them in accordance with their training. I have no hesitation in accepting their evidence.

[72] After the arrest, they loosened the applicant’s handcuffs for comfort, called for an ambulance to assist in decontamination, gave him water from their personal belongings, allowed him to wait outside the police vehicle and turned on the air-conditioner to cool his face. They testified that they understood the effects of pepper spray first hand.

[73] After they determined that an ambulance was unable to respond, they took the applicant to the station where he could have access to water. On the booking video, the applicant does not appear to have any difficulty breathing. After the search, the officers recorded the injuries that they observed. Both officers impressed me as compassionate and conscientious.

[74] There is no credible evidence as to what caused the mark on the back of the right shoulder. Officer Nickerson testified that when he was pursuing the applicant in the hydro field, he had his flashlight in his hand. He pushed the applicant as hard as he could, but the push had no effect. The applicant recalled that while he was fleeing from police, he felt something hard strike his right shoulder and five to ten seconds after that, he was tackled to the ground.

[75] The applicant told the doctor that the mark on his shoulder was caused either by being hit with a flashlight, or by a flashlight being thrown at him. At trial, his position was that he was hit with the flashlight. He acknowledged that he was speculating, because he did not see Officer Nickerson use a flashlight to strike him.

[76] Although the applicant testified that he ran through a fence and through a cluster of trees, he denied that any of these actions injured him and maintained that all of his injuries were caused by the police.

[77] Officer Nickerson testified that when the applicant “body checked” the fence, the front of his body came into contact with it, knocking it down. He had never seen anything like it before. In contrast, the applicant testified that he used his arms and leg to roll his body over the top of the fence.

[78] Officer Lavers testified that as the applicant ran through the cluster of coniferous trees, he said, “Ouch. Shit.” The officer had to put his own hands in front of his face to protect it from coming into contact with the branches.

[79] The photographs that were taken six days after these events demonstrate a pinkish mark on the top right side of the forehead and two healing circular scabs on the back of the right shoulder at the top of a large tattoo. No medical treatment was necessary and there was no evidence to support the applicant’s statement that there is a permanent scar from the shoulder injury.

[80] The assessment of the seriousness of a constitutional violation must take into account the reasons for the conduct. The greater the departure from the standards of behaviour required by the common law and the Charter, the heavier the onus on the police to show why they thought it necessary to use force in the process of an arrest. See R. v. Genest, 1989 CanLII 109 (SCC), [1989] 1 S.C.R. 59, at para. 50.

[81] In R. v. Roger, [2008] O.J. No. 23 (S.C.) at paras. 12, 15, the court held:

Section 12 of the Charter protects Canadians against punishment which is so excessive as to outrage our society’s sense of decency. Where a punishment is merely disproportionate, no remedy can be found under s. 12. To establish a breach of s. 12, the court must be satisfied that the punishment imposed is grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent or intolerable.

Under s. 7 of the Charter, security of the person has been elevated to the status of a constitutional norm, such that the state may not interfere with the security of the person unless such interference conforms with the principles of natural justice. No person may cause harm to the person of another without his consent or without being authorized by law to do so.

[82] In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 32, the Supreme Court of Canada held that while there are times when the police may have to resort to force in order to complete an arrest or to prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness.

[83] Lebel J. explained at para. 34:

Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him– or herself, or another person under his or her protection, from death or grievous bodily harm. The officer’s belief must be objectively reasonable. That means that the use of force under s. 25(3) is to be judged on a subjective-objective basis (Chartier v. Greaves, [2001] O.J. No. 634 (QL) (S.C.J.), at para. 59). If force of that degree is used to prevent a suspect from fleeing to avoid a lawful arrest, then it is justified under s. 25(4), subject to the limitations described above and to the requirement that the flight could not reasonably have been prevented in a less violent manner.

[84] The actions of the police are not to be judged against a standard of perfection. Depending on the circumstances as they existed at the time the force was used, the police cannot be expected to measure the force used with exactitude. See Nasogaluak, at para. 35.

[85] The officers were faced with a dynamic situation in which they were arresting an individual who was actively resisting arrest and was potentially armed. The applicant is a large and strong man and it took two officers to subdue him. They were justified in using force to effect the arrest of the applicant and the force used was not excessive.

[86] The injury to the right shoulder is not a serious injury. While the existence of two healing scabs six days after these events indicates that something caused some bleeding, medical attention was not required. There is speculation that the injury was caused by Officer Nickerson’s flashlight. Officer Nickerson was not asked whether he used his flashlight to strike the applicant when he was on the ground. He candidly admitted that he used his hands.

[87] If the shoulder injury was sustained during the pursuit in the hydro field, I find that there was no excessive force used by the police. If the injury was sustained after the applicant was taken to the ground and was actively resisting arrest, I find that the force used to effect the arrest was necessary and reasonable in the circumstances.

[88] Accordingly, there was no breach of the applicant’s ss. 7 and 12 Charter rights that jeopardized the perception of trial fairness or would bring the integrity of law enforcement into disrepute. This is not one of those clearest of cases where the drastic remedy of a stay should be granted.

REDUCTION OF SENTENCE

[89] The applicant submits, in the alternative, that the use of excessive force merits a substantial reduction in the penalty that would ordinarily be imposed. He states that under s. 718 of the Criminal Code, the court is entitled to consider not only the offender and the circumstances of the offence, but also society’s collective interest in ensuring that law enforcement agents respect the rule of law and the shared values of our society. See Nasoaluak, at para. 49.

[90] In this case, the police used force only when the applicant fled from them and was actively resisting arrest. Nothing in the evidence demonstrates that the officers showed disrespect for the rule of law or the shared values of our society. On the contrary, given the actions of the applicant, the police acted in a proportionate and reasonable manner.

[91] Accordingly, the application for a stay of proceedings and reduction of sentence is dismissed.

DUNNET J.

Released: January 15, 2014