COURT FILE NO.: 16/13

DATE: 2014-03-10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

CHARLES JOSEPH LAFORME and JEFFREY LEE MARTIN

Defendants

Harutyun Apel, for the Crown

Joshua D. Frost, for Charles Laforme

Mary Cremer, for Jeffrey Martin

HEARD: December 3, 4, 5 & 12, 2013

REASONS FOR JUDGMENT

GRAY J.

1The charges before me relate to events that occurred after the theft of two motor vehicles from a large complex on Winston Churchill Drive north of the Queen Elizabeth Way, and the subsequent apprehension of the drivers of those vehicles at and near a waste treatment plant on North Service Road between Bronte Road and Third Line, all in Oakville.

2The trial before me was on a 22-count indictment, under which Mr. Laforme was charged with 16 offences and Mr. Martin was charged with six.

3Both accused brought applications under the Canadian Charter of Rights and Freedoms. Both sought a stay of proceedings as a remedy. It was agreed that the evidence on the trial and the applications would be heard together, and the Crown would proceed first. Ultimately, the accused called no evidence save for a report from a psychiatrist that was tendered by counsel for Mr. Laforme.

4After the evidence was concluded, counsel for the Crown and counsel for Mr. Martin resolved the charges against him by agreement. It was agreed that the evidence against him was sufficient to result in convictions on three charges; that there would be acquittals on two charges; and the sixth charge would be stayed on the basis of the Kienapple principle (R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729).

5As far as Mr. Laforme is concerned, the Crown agreed that there was insufficient evidence to convict Mr. Laforme on four counts and acquittals should be entered on them, and that three of the remaining counts should be stayed on the basis of the Kienapple principle; counsel for Mr. Laforme agreed that there was sufficient evidence to result in convictions on three counts, subject to his position that the entire proceeding should be stayed as a result of certain Charter violations; and the remaining counts were subject to argument, again subject to Mr. Frost’s argument that Mr. Laforme’s Charter rights had been violated.

Background

Background

6There is a large complex on Winston Churchill Boulevard, north of the Queen Elizabeth Way in the town of Oakville. The complex includes an AMC theatre, with a large parking lot. From that parking lot, a considerable number of vehicles have been stolen. Some of those vehicles have been stolen by members of the Six Nations Reserve near Brantford. Sometimes, stolen vehicles have been driven south on Winston Churchill Boulevard, and west on Queen Elizabeth Way to the reserve.

7Some of the police officers who testified in this case acknowledged that they were aware that members of the Six Nations Reserve sometimes stole vehicles from the parking lot and drove them to the reserve via the Queen Elizabeth Way. Some of those police officers testified that they were aware that on occasion, members of the Six Nations Reserve who were apprehended in the course of stealing vehicles in this way would use the stolen vehicles as battering rams against police officers. This forms the backdrop to the Charter arguments that were made.

8In the course of apprehending Mr. Laforme and Mr. Martin in this case, approximately 60 bullets were fired at the vehicles they were driving. This also forms the backdrop to the Charter arguments.

9I will now review, in summary form, the evidence that was called.

10Paul Fretz has been with the Halton Regional Police since November, 1999. He was on duty on October 22, 2011, from 7:00 p.m. until 7:00 a.m. the next day. He was in uniform, in a marked cruiser. At approximately 9:00 p.m., he was driving another officer, Officer Elashi, to his home. That officer had been working late. Officer Fretz was travelling southbound on Trafalgar Road, intending to proceed westbound on Queen Elizabeth Way.

11At 9:14 p.m., he heard a call over his radio to the effect that there had been a theft of a black Silverado pick-up truck, which had a logo on its door, “Quarry Direct”. There was apparently another General Motors vehicle following the pick-up truck, possibly a Chevrolet Envoy.

12At approximately 9:16 p.m., Officer Fretz was proceeding westbound on Queen Elizabeth Way near Third Line, when Officer Elashi saw two vehicles travelling very quickly westbound on North Service Road, just north of the Queen Elizabeth Way. They were between Third Line and Bronte Road. He saw them enter a private driveway on North Service Road, which is a waste management plant. He broadcast over the radio that they had seen the suspect vehicles.

13Officer Fretz exited the Queen Elizabeth Way at Bronte Road, and proceeded northbound to North Service Road and turned east towards the waste management plant. They had no lights or sirens activated, and they slowed down as they approached the plant. Officer Fretz observed behind him a black unmarked undercover van, which they ultimately discovered was occupied by Officers Heynemans and Graul.

14As they approached the entranceway to the plant, they observed a marked police vehicle occupied by Officer Corbeil, whose vehicle was at an angle to block the entrance way.

15The plant itself has a driveway that is accessed from a ring road that is immediately to the north of North Service Road. There is another entranceway between the ring road and North Service Road that is close to the plant’s own driveway. Officer Corbeil’s vehicle was blocking the entrance way between North Service Road and the ring road. Officer Fretz parked his vehicle near Officer Corbeil’s vehicle.

16Officer Fretz testified that he could see the plant’s parking lot from his vantage point, as it was artificially lit. He could see an unmarked cruiser in the parking lot, that was occupied by Officer Lovett.

17Officer Fretz could see two other vehicles in the parking lot. They were parked beside the driveway into the parking lot, right next to the entrance, and facing the ring road. The vehicles were a black Silverado pick-up truck and a black SUV. He saw one male person outside the Silverado and another male outside the SUV.

18Officer Fretz testified that he ran from his vantage point towards Officer Lovett’s vehicle, intending to team up with him, take down the vehicles and apprehend the male persons. He testified that Officer Graul also ran some distance towards the parking lot.

19Officer Fretz testified that when he reached the entrance to the parking lot, he observed the males quickly enter the vehicles. He testified that the Silverado quickly reversed and accelerated in an arc towards the lot entrance. Officer Fretz testified that the vehicle was coming towards him and he feared for his safety. He drew his gun and yelled loudly “Stop-Police”. He testified that he could see the driver through the back window of the pick-up truck and he could see the driver looking towards him.

20Officer Fretz testified that he fired at the vehicle which was coming towards him very quickly. He testified that he did not know whether he could jump out of the way of the pick-up truck. Ultimately, the truck stopped, and he was about 15 feet from the back of the truck.

21Officer Fretz testified that he did not recall how many shots he fired. He was firing at the tailgate of the truck and tried to shoot higher.

22Officer Fretz testified that he ran to the passenger side window and pointed the gun through the window. He commanded the driver to put the vehicle in park and put his hands up. The driver did so. He was alone. The driver was ultimately identified as the accused, Jeffrey Martin.

23At the time, there was another officer on the driver’s side of the pick-up truck.

24Officer Fretz testified that the black SUV had also moved, and he heard it coming from behind Officer Lovett’s vehicle. The SUV stopped briefly, approximately 30 or 40 feet from him.

25Officer Fretz testified that the SUV then came towards him and accelerated. It started approaching slightly left and then directly at him. Officer Fretz started firing at the driver, towards the driver’s side of the vehicle. He said his life flashed before him. He had nowhere else to go. At the last second, the vehicle veered off to the right.

26Officer Fretz testified that he continued to fire at the vehicle, towards the driver’s window. He did not know where the other officers were.

27Officer Fretz testified that the vehicle travelled to the edge of the parking lot and then into the bush and a swampy area beside the lot. Ultimately, it managed to get onto the ring road, where Officer Fretz also saw Officer Heynemans. He heard some shots fired when the vehicle was near Officer Heynemans. The vehicle ultimately exited the area. The entire event took about one to one and a half minutes.

28Officer Fretz testified that Officer Graul had the driver of the pick-up truck handcuffed. The driver was checked for injuries.

29Ultimately, there was some brief discussion among the officers present, including Officers Fretz, Corbeil and Heynemans. Someone said something to the effect of “I can’t believe these guys were trying to run us over and kill us”.

30In due course, another officer, Sergeant Vlasic arrived and seized the guns of the various officers. The officers returned to the station, and Officer Fretz’s notes were made later that evening at the station.

31On cross-examination, Officer Fretz testified that he was not suspicious that the perpetrators might have been members of the Six Nations Reserve, although he testified that they could have been. He acknowledged that members of the Six Nations Reserve are known to use cars as weapons when they are apprehended.

32Officer Fretz also acknowledged that it would have been better for him to have driven into the parking lot rather than walking in. Walking into the lot was potentially dangerous.

33Officer Fretz insisted that he fired his gun because of a threat to his safety. He did not know where the other officers were when he fired his gun. He acknowledged that his adrenaline was pumping when he fired. He had not done it before.

34Officer Darryl Heynemans testified. He has been a police officer since 2006. On the evening of October 22, 2011, he was in plain clothes, and he was in an unmarked van with Officer Graul.

35Officer Heynemans testified that at approximately 9:09 p.m. he heard over the radio that a vehicle had been stolen from the AMC theatre on Winston Churchill Boulevard. It was said to be a black Silverado with a sign “Quarry Direct” on its side. There was also a black Envoy.

36At 9:16 p.m. Officer Heynemans saw a black pick-up truck and a black SUV travelling west on North Service Road. He heard over the radio from Officer Fretz that the vehicles went into the waste management plant on North Service Road.

37Officer Heynemans travelled west on Queen Elizabeth Way and exited at Bronte Road and then turned onto North Service Road eastbound. He approached the entrance to the waste management plant. He observed other police vehicles at the main entranceway to the plant. He parked his vehicle at the main entranceway.

38Officer Heynemans observed the black pick-up truck and the SUV in the parking lot. He also observed a dark unmarked police vehicle in the parking lot, occupied by Officer Lovett. It had its emergency lights on. All the vehicles in the lot were moving.

39Officer Heynemans testified that Officer Fretz ran into the parking lot, and Officer Heynemans followed him. When he got to the entrance to the parking lot, he heard someone yell “Stop”.

40Officer Heynemans testified that he drew his gun. He observed one of the vehicles attempting to ram Officer Lovett. He observed the pick-up truck reverse in an arc towards Officer Fretz, who yelled “Stop, Stop.”

41Officer Heynemans testified that he observed Officer Fretz fire his gun. Officer Heynemans did not fire his. Eventually, the pick-up truck stopped, but close to Officer Fretz. Officer Fretz approached the window of the pick-up truck with his gun drawn.

42Officer Heynemans testified that he observed the SUV travelling in the parking lot at a high rate of speed. He thought the vehicle was going to run Officer Fretz down. Officer Heynemans fired his gun at the front of the SUV. Officer Fretz was firing also. The SUV was accelerating. It eventually left the lot through a deep ditch at the side of the parking lot.

43Officer Heynemans ran to the ring road. The SUV came down the ring road, and accelerated towards Officer Heynemans. Officer Heynemans shouted “Stop-Police”. He thought he was going to die. He jumped to the side of the ring road. He saw the SUV continue on the ring road and it ultimately left the ring road across the grass near the entrance way, between the ring road and North Service Road. The SUV disappeared down North Service Road.

44Officer Heynemans testified that he observed the arrest of the driver of the pick-up truck.

45After the arrest, there was some brief discussion among the officers. Someone asked who had fired their guns. It was mentioned that Officers Fretz, Lovett and Heynemans had fired guns and later Officer Graul was mentioned.

46Sergeant Vlasic took the officers back to the station where they were segregated and their notes were made later.

47On cross-examination, Officer Heynemans testified that he had a heightened suspicion that the perpetrators were from the Six Nations Reserve. He was aware, anecdotally, that cars were stolen in the past from the AMC parking lot, and that the perpetrators would sometimes use the vehicles as weapons.

48Officer Heynemans testified that when he fired his weapon his concern was to stop the vehicle. He acknowledged that he could have jumped out of the way, and ultimately he did so.

49He acknowledged that when the call came in, there was no description of the drivers as to their ethnicity. He acknowledged there was some discussion as to whether the perpetrators may have been First Nations people, and may have been members of the Six Nations Reserve. He acknowledged that there had been a history of GMC vehicles being stolen from the AMC lot by Six Nations people.

50Officer Brent Lovett testified. He has been a police officer since January, 2008. On October 22, 2011, he was driving an unmarked car.

51Officer Lovett testified that at 9:08 p.m., he received a call that there were some stolen vehicles that had proceeded south on Winston Churchill Boulevard and potentially west on Queen Elizabeth Way. The vehicles were a black Silverado and a GMC Envoy.

52Officer Lovett proceeded south on Trafalgar Road and west on Queen Elizabeth Way. From his previous experience, he knew that thefts of this kind were sometimes committed by members of the Six Nations Reserve.

53Officer Lovett testified that he heard over his radio that Officer Fretz had spotted the vehicles at the waste management plant on North Service Road. He exited at Third Line and went to the area. He saw Officer Corbeil behind him.

54Officer Lovett testified that he observed two vehicles in the parking lot. He discussed with Officer Corbeil the prospect of using spike belts at the entranceway.

55Officer Lovett testified that he moved his own vehicle into the parking lot. The SUV backed up and he moved his vehicle out of the way.

56Officer Lovett testified that the pick-up truck reversed in a “fishhook” manner, and then stopped. He heard gun fire but could not see what was happening.

57Officer Lovett testified that he backed up out of the way and came to a stop in the north part of the parking lot. He saw Officers Fretz and Heynemans at the side of the pick-up truck. Officer Lovett exited his vehicle to assist. He said the driver of the pick-up truck was compliant.

58Officer Lovett testified that he heard the SUV, and observed it drive directly at the officers. Officer Lovett fired at the SUV, at the front of the vehicle in the area of the driver. He testified this was to protect the officers, who then were at risk of being hit by the SUV. He testified that he fired one or two shots.

59Officer Lovett testified that the SUV went into a ravine or ditch area at the edge of the parking lot. He observed Officers Fretz and Heynemans run towards the ditch area.

60Officer Lovett testified that he handled the driver of the pick-up truck. He handcuffed and arrested him and checked him for injuries. He heard other gun shots, but could not tell from where they were coming.

61Officer Lovett testified that he took the driver to his cruiser and checked the driver again. Ultimately, emergency medical service vehicles arrived.

62Sergeant Vlasic arrived and the officers turned their guns over to him. They then went to 20 Division.

63On cross-examination, Officer Lovett acknowledged that there was a preponderance of thefts committed by members of the Six Nations Reserve, and they were known to use cars as weapons.

64Officer Lovett testified that in hindsight he would not have shown his lights as early as he did, because the suspects were alerted too early. He could have simply set up spike belts and waited them out.

65Officer Lovett testified that he did not get a physical description of the perpetrators, nor did he get any indication of their ethnicity.

66Officer Lovett acknowledged that Mr. Martin, the driver of the pick-up, complied with the demands of the police officers. He observed some marks on Mr. Martin’s face. He never resisted arrest or threatened the officers. His injuries could have been from glass breaking. There was at least one bullet hole in his rear window.

67Officer Andrew Graul testified. He has been a police officer for three and a half years. On October 22, 2011, he was in plain clothes with Officer Heynemans, in a minivan.

68He testified that at approximately 9:08 p.m., there was a broadcast that there were some stolen vehicles from the AMC lot. One was a pick-up truck with the words “Quarry Direct” on the side, and a black Chevy Envoy.

69Officer Graul testified that at 9:15 p.m., they saw a pick-up truck on North Service Road, with an Envoy behind it. They turned into the waste treatment plant. The officers exited from the Queen Elizabeth Way on Bronte Road, turned right onto North Service Road and proceeded to the waste management plant.

70When they arrived, they observed cars blocking the entrance, and saw an unmarked cruiser in the parking lot, together with the pick-up truck and the Envoy. The unmarked cruiser had its emergency lights on. The suspects entered the pick-up truck and the Envoy.

71Officer Graul testified that Officer Corbeil placed some spikes on the road. He heard officers yelling from the parking lot, and heard gun shots from the direction of the vehicles.

72Officer Graul testified that he ran towards the unmarked cruiser. He observed the pick-up and the SUV reversing in the parking lot. He heard gun shots. The pick-up truck then stopped.

73Officer Graul testified that the SUV began driving in an erratic manner in the parking lot. The SUV drove towards Officer Graul, and he testified that he feared for his safety and his life. He fired about eight or nine rounds at the SUV. He could only see the headlights of the vehicle. It was about 45 to 50 metres away when he started firing. He testified that he jumped out of the way, but the SUV was very close.

74Officer Graul testified that the SUV went into a ditch at the edge of the parking lot, and then went on the ring road. He heard more shots fired. He saw the SUV travelling on the ring road.

75Officer Graul testified that he thought the SUV might ram the vehicles and the officers blocking the entrance way between the ring road and North Service Road. He fired two or three rounds at the driver’s door. He testified that the vehicle went over the drainage ditch beside the entrance way and onto North Service Road. The vehicle went east on North Service Road, and Officer Graul lost sight of it.

76Officer Graul testified that he went back and assisted Officer Lovett with his arrest and search of the driver of the pick-up truck. He said the driver had some cuts on his face, and he requested an ambulance.

77Sergeant Vlasic arrived and seized the guns from the officers.

78On cross-examination, Officer Graul acknowledged that he suspected involvement by First Nations people. He suspected that the perpetrators were members of the Six Nations Reserve. It is understood that car thieves from the Six Nations Reserve have no regard for public safety and they tend to use vehicles as weapons. He testified that this is part of their basic training.

79Officer Graul testified that the second time he fired his gun it was because he feared for Officer Elashi’s safety, and he had a genuine fear for public safety.

80Officer Graul testified that he has dealt with Six Nations perpetrators on other occasions. In this case, he first learned that First Nations people were actually involved when Mr. Martin was arrested. Initially, he had received no description of the suspects, nor did he receive any indication of their ethnicity.

81He testified that issues surrounding First Nations perpetrators are brought up in training sessions, which occur about every six months. Senior officers participate in such training sessions.

82Officer Tim Corbeil testified. He has been a police officer since 2006. On October 22, 2011, he was in uniform in a marked cruiser.

83At 9:08 p.m., he received a call about a theft of vehicles from Winston Park in Oakville. The vehicles were said to be a black Silverado pick-up truck, with the words “Quarry Direct” on its side, and an Envoy.

84At 9:16 p.m., he heard Officer Fretz indicate over the radio that the pick-up truck and the other car had pulled into the waste management plant on North Service Road. Officer Corbeil proceeded to the plant and arrived at 9:18 p.m. On North Service Road he had caught up to an unmarked police vehicle driven by Officer Lovett.

85At the location of the plant, Officer Corbeil saw two vehicles in the parking lot, a pick-up truck and a SUV, both with their headlights on. Officer Lovett instructed that a spike belt should be deployed. Officer Corbeil put his vehicle in the entrance way between the ring road and North Service Road, and he turned on a flood light directed at the two vehicles. He saw someone running towards the door of the pick-up truck.

86Officer Corbeil testified that he observed the pick-up truck and the SUV reverse into the parking lot. He observed Officers Fretz, Graul and Heynemans running towards the lot. Officer Lovett moved forward in his vehicle. There were emergency lights on Officer Lovett’s vehicle and Officer Corbeil’s vehicle.

87Officer Corbeil got the spike belt out and deployed it.

88Officer Corbeil could hear engines revving and could hear gun shots from the parking lot. He did not know who was shooting. He heard what he thought were six to twelve shots, in a short rapid burst.

89Officer Corbeil testified that he observed the SUV moving around the lot with its engine revving high. He could not see the officers. Ultimately, he heard the SUV, and was prepared for it to come at him. He heard about one half dozen more shots.

90Officer Corbeil testified that he did not want to be in the entranceway as the SUV approached so he ran westbound onto a berm where he used a telephone pole as cover. He observed the SUV travel over a ditch and then onto the ring road. He heard more gun shots.

91Officer Corbeil testified that he observed the SUV travelling full throttle towards the entranceway between the ring road and North Service Road. He heard more guns shots, but did not see who fired them. He saw the SUV travel towards the vehicle driven by Officer Elashi. The SUV then proceeded through the ditch beside the entranceway onto North Service Road and went eastbound.

92Officer Corbeil testified that he observed a male being arrested near the pick-up truck. Officers said no one had been hurt. As they grouped together, people asked what had happened.

93Sergeant Vlasic arrived and took the guns from the officers.

94Officer Corbeil went in the ambulance with Mr. Martin and another officer. At the hospital, Mr. Martin was searched. On him was found a screwdriver and some gloves.

95Officer Kofi Boateng testified. He has been a police officer since 2007. On October 22, 2011, he was in uniform, driving a marked vehicle.

96At 9:17 p.m., he was dispatched to attend at Third Line and Kings College Road. He travelled westbound on North Service Road, and approached Third Line with his lights and sirens activated.

97Officer Boateng testified that he saw two headlights coming towards him. He turned his vehicle sideways to block the road.

98Officer Boateng testified that he saw the vehicle coming towards him very fast. Therefore, he pulled back into the westbound lane. Notwithstanding, the vehicle came into the westbound lane and hit Officer Boateng’s vehicle head on. The airbags deployed.

99Officer Boateng testified that he released his seatbelt and got out of his vehicle and drew his gun. He testified he discharged his gun into the front of the other vehicle. He had heard that shots had been fired earlier, and he thought his life might be in danger. He suspected the occupants of the other car were armed. He testified that he took two shots into the driver’s side of the vehicle. He did not know how many people were in that vehicle. He testified that the other vehicle, an SUV, went into the ditch after the collision, and his own vehicle also went into the ditch.

100Officer Boateng testified that he approached the other vehicle, and saw a female passenger who had a gunshot wound. She was ultimately identified as Jacqueline Capton.

101Officer Boateng had some minor injuries to his left hand. He went to the hospital where he was treated for a laceration.

102Barbara Sieruga testified. On October 22, 2011, she and her husband were attending a movie at the AMC theatre. They parked their vehicle a fair distance from the theatre. Their vehicle was a Silverado pick-up truck with the words “Quarry Direct” on the side. They left the theatre sometime after 9:00 p.m.

103A couple of metres before they arrived at the truck, the truck’s engine came on. Someone was behind the wheel. She could not tell if the driver was a male or female. There was only one person in the truck. It reversed, and almost hit another car. The truck drove over the grass onto Winston Churchill Boulevard. It was going very fast.

104She also observed a dark SUV that was parked awkwardly. There was a person in the vehicle who appeared to be in his thirties. She only saw that person’s face.

105She testified that her husband called the police immediately.

106Officer Adam Elashi testified. He has been a police officer since August, 2007. On October 22, 2011, he was in plain clothes as he was being driven home at the end of his shift by Officer Fretz at about 9:00 p.m.

107They were travelling westbound on the Queen Elizabeth Way when they heard a dispatch about a stolen vehicle from the AMC theatre. It was said to be a black Silverado with a sticker on the side – “Quarry Direct”.

108Officer Elashi testified that near Bronte Road they saw two vehicles on the North Service Road, a pick-up truck and an SUV. They were going very fast, and turned into a parking lot.

109Officer Elashi testified that they exited at Bronte Road and proceeded to North Service Road and then to the waste treatment plant. They met other officers there. They decided to block the entranceway. Officer Fretz placed his vehicle at the northeast corner of the entranceway, and Officer Corbeil also blocked the entranceway.

110Officer Elashi had no gun with him.

111Officer Elashi testified that he observed two vehicles in the parking lot that matched the ones he had observed when driving on the Queen Elizabeth Way. They were parked next to each other.

112Officer Elashi testified that he observed Officers Heynemans and Graul approaching on foot, slowly with their guns drawn. Officer Corbeil stayed at the entranceway and deployed spikes.

113Officer Elashi testified that he heard shots being fired after the vehicle started moving. Ultimately, the pick-up truck stopped but the SUV continued. The officers near the pick-up truck approached the driver.

114After a short period, Officer Elashi observed the SUV approaching on the ring road towards his cruiser in the entranceway. Officer Elashi testified that he took his seatbelt off and reversed his vehicle so that it would not be hit by the SUV. The SUV went first into the ditch beside the entranceway, and went onto North Service Road, and then went east.

115Officer Elashi testified that he put on his spot light and saw the pick-up truck and the officers. He got out of his vehicle and saw the officers escorting the driver. An ambulance arrived. People were happy that no one had been hurt. Sergeant Vlasic arrived and took guns.

116Officer Elashi testified that he had seen two people in the SUV, a male driver and a female passenger. There were lots of gunshots. There was a pause, then more gunshots.

117Officer Kevin John Rye testified. He is a collision reconstructionist. He offered opinion evidence as to the reconstruction of motor vehicle collisions and driving scenes, including an analysis of roadside markings. He conducted an analysis at three locations: the AMC parking lot on Winston Churchill Drive; North Service Road, east of the waste treatment plant; and at the site of the waste treatment plant.

118Officer Rye testified that certain tire marks found at the AMC parking lot were similar to the tires involved in this case, namely the pick-up truck and the SUV.

119Officer Rye testified as to the markings made near the collision between Officer Boateng’s vehicle and the SUV. He testified that from the markings he observed, the police cruiser was travelling westbound and the SUV was travelling eastbound. He testified that before the collision, the SUV rotated. He testified that the reason for this was because of driver input, namely, the steering of the vehicle by the driver. He testified that the rear right corner of the SUV struck the cruiser.

120Officer Rye testified that there were no skid marks from the cruiser, rather, there were only furrows in the shoulder and the grass at the side of the road. There were no skid marks from the SUV, rather, there were what he called “yaw marks”.

121Officer Rye testified that at the location of the waste management treatment site, he found shell casings, or bullet fragments, and tire marks. The tire marks were consistent with the tires on the pick-up truck and the SUV.

122On consent, three exhibits were filed.

123A chart was filed, which shows the locations of a number of shell casings from guns fired by Officers Fretz, Graul, Lovett and Heynemans. It was stipulated that a shell casing comes out of the firearm to the right of it, and can travel five or six feet.

124The chart shows that 15 – 20 shots appear to have been fired by Officer Fretz, from several different locations. Around ten shots were fired by Officer Graul, from two different locations. One shot was fired by Officer Lovett. About ten shots were fired by Officer Heynemans, from two different locations. Over 15 other shell casings were found, that were not identified. In total, about 60 shell casings were found.

125The parties agreed to the filing of a transcript of evidence given by Constable Breton Berthiaume. In substance, he testified that he arrested Mr. Laforme, who gave him a false name, Ryan Jones, at the scene of the accident involving the SUV.

126Hospital records relating to the injuries to Jacqueline Capton and Jeffrey Martin were filed. They disclosed a gunshot wound to Ms. Capton’s shoulder, and some minor injuries to Mr. Martin’s face.

127Also filed on consent was a report by Dr. Isabelle Cote, a psychiatrist, with respect to the effect of the shooting on Mr. Laforme. In that report, Dr. Cote concludes that “Mr. Laforme was more than likely affected by the police shooting in October, 2011, as he developed anxiety (PTSD) symptoms related to this event.”

128As noted earlier, the charges affecting Mr. Martin have been resolved, by Mr. Martin accepting that the evidence justifies findings of guilt on certain counts, and the Crown agreeing that acquittals should be entered on certain counts, and that one count should be stayed on the basis of the Kineapple principle. Accordingly, I will only discuss the remaining counts relating to Mr. Laforme.

129Mr. Laforme was arraigned on 16 counts as follows:

1. Possession of a Silverado pickup truck, having a value exceeding $5,000.00, knowing it was stolen;

2. Theft of a Silverado pickup truck;

3. Intentionally causing damage by fire to the motor vehicle;

4. Theft of a GMC Yukon;

5. Possession of a GMC Yukon having a value exceeding $5,000.00 knowing it was stolen;

6. Assault with a weapon on Constable Paul Fretz while engaged in the execution of his duty, the weapon being a GMC Yukon;

7. Aggravated assault on Constable Paul Fretz;

8. Assault with a weapon on Constable Andrew Graul while engaged in the execution of his duty, the weapon being a GMC Yukon;

9. Aggravated assault on Constable Andrew Graul;

10. Attempted murder of Constable Paul Fretz;

11. Assault with a weapon on Constable Darryl Heynemans while engaged in the execution of his duty, the weapon being a GMC Yukon;

12. Aggravated assault on Constable Darryl Heynemans;

13. While operating a motor vehicle and being pursued by a peace officer operating a motor vehicle, failed without reasonable excuse to stop his vehicle, as soon as it was reasonable in the circumstances, in order to evade the peace officer;

14. Operating a motor vehicle in a manner that was dangerous to the public;

15. Having care of a vehicle that was involved in an accident, failed to stop, give his name and address and offer assistance, with intent to escape civil or criminal liability; and

16. Willfully obstructing a peace officer engaged in the execution of his duty, by providing him with a false name.

130Counsel for the Crown has acknowledged that there is insufficient evidence to justify convictions on counts 1, 2, 3, and 10, and acquittals should be entered on those counts. Counsel for Mr. Laforme has agreed, subject to his Charter arguments, that the evidence is sufficient to register convictions on counts 4, 5 and 16. That leaves for consideration, subject to the Charter arguments, counts 6, 7, 8, 9, 11, 12, 13, 14, and 15. The Crown acknowledges that certain of these counts will be subject to the Kineapple principle.

Submissions

Submissions

131Mr. Apel, counsel for the Crown, submits that as background to the remaining counts, I should conclude that Mr. Laforme intended to use the vehicle he was driving as a weapon and indeed he did use it as a weapon. He submits that the evidence is sufficient to conclude, beyond a reasonable doubt, that Mr. Laforme intended to run over a number of police officers with the vehicle and that he attempted to do so.

132Each of Officers Fretz, Graul and Heynemans testified that the SUV was driving straight at him, and it was only through good fortune that a serious, if not fatal, incident did not occur. Each officer testified that he was in fear for his life.

133Mr. Apel submits that Mr. Laforme could have avoided the entire series of incidents had he simply surrendered at the outset or shortly after it began, as did Mr. Martin.

134It can only be concluded, it is submitted, that Mr. Laforme intended to cause each officer serious bodily harm, and used the SUV for that purpose.

135Accordingly, subject to the Kineapple principle, the evidence is sufficient to justify convictions on counts 6, 7, 8, 9, 11 and 12.

136With respect to Count 13, it is clear that Mr. Laforme was seeking to evade capture by the police while he was operating the SUV, and a conviction is required.

137With respect to Count 14, it is clear that after Mr. Laforme had driven the SUV onto North Service Road after leaving the scene of the waste management plant, he drove on North Service Road in a manner that was dangerous to the public. Indeed, it was for that reason that the accident with Officer Boateng occurred. Thus, a conviction on that count is appropriate.

138With respect to Count 15, Mr. Apel submits that the evidence of Officer Berthiaume is sufficient to justify a conviction.

139Mr. Apel relies on R. v. Phillips, 2009 2922 (ON SC), [2009] O.J. No. 400 (S.C.). In that case, Molloy J. held that the use of a motor vehicle to endanger life or cause bodily harm can give rise to a conviction for assault with a weapon and/or aggravated assault.

140Mr. Frost, counsel for Mr. Laforme, submits that the evidence is insufficient to justify convictions on any of Counts 6, 7, 8, 9, 11, 12, 13, 14 or 15.

141Mr. Frost concedes that with respect to Counts 6, 7, 8, 9, 11 and 12, if Mr. Laforme intended to use the SUV to strike the police officers, he should be properly convicted, subject to the Kienapple principle. However, Mr. Frost submits that the evidence is simply insufficient to justify such a conclusion. The evidence is just as consistent with Mr. Laforme being in a state of panic and doing whatever he could to escape. This is particularly so, Mr. Frost submits, because of the excessive and unreasonable gunfire that was undertaken during the entirety of the period during which the incidents occurred. It is not unreasonable to conclude that Mr. Laforme would justifiably have thought he was in serious danger of being killed and would have taken any measure he could in order to escape.

142Mr. Frost submits that in the final analysis it is simply not possible to conclude, beyond a reasonable doubt, that Mr. Laforme was using the vehicle with any intent to strike or cause harm to any of the officers.

143Mr. Frost submits that the Phillips case, relied on by the Crown, is clearly distinguishable. In that case, the accused had aimed his vehicle at the victim, and when he was unsuccessful in hitting him, he turned the vehicle around and took another run at him. It was not difficult to conclude, in that case, that the intent of the accused was to strike and harm the victim. That conclusion cannot be reached on the evidence in this case.

144With respect to Count 13, Mr. Frost points out that at no time was Mr. Laforme “being pursued by a peace officer operating a motor vehicle”, as stipulated in s. 249.1 (1) of the Criminal Code. Accordingly, he cannot be convicted on that count.

145As far as Count 14 is concerned, there is no evidence that any member of the public was in danger by virtue of Mr. Laforme’s driving. As far as Officer Boateng is concerned, the evidence is just as consistent with Officer Boateng being responsible for the accident rather than Mr. Laforme, and accordingly, it cannot be said that the Crown has proven the offence beyond a reasonable doubt.

146As far as Count 15 is concerned, Mr. Frost submits that there is no evidence as to when Jacqueline Capton was injured. It is possible that she could have been injured after the vehicle had stopped. Accordingly, the requisites of that offence have not been established.

147Mr. Frost strongly submits that Mr. Laforme’s rights under the Charter have been infringed. He submits that as a remedy, a stay of proceedings should be ordered.

148Mr. Frost notes that the actions of the police were motivated, at least in part, by a belief that the perpetrators might be of First Nations origin. That being the case, they acted on a stereotypical belief as to how First Nations people behave, or might behave, in situations of this sort.

149A number of the police officers acknowledged that there have been thefts of cars by members of the Six Nations Reserve from the particular parking lot at issue in this case. When such thefts occur, it is believed that members of the Six Nations Reserve take the cars south on Winston Churchill Boulevard, and west on Queen Elizabeth Way to the Reserve. When apprehended, it is believed that they use the vehicles as battering rams. Mr. Frost submits that racial profiling of this sort was at least a contributing cause to the way in which the police acted on this occasion.

150Once the suspects were located in the parking lot adjacent to the waste management plant, the police reacted by using an overwhelming amount of gunfire that, in the circumstances, was excessive and unreasonable. It was only through good fortune that neither suspect was hit with a bullet, notwithstanding that about 60 shots were fired. As it happened, a passenger in Mr. Laforme’s vehicle was hit with a bullet.

151Mr. Frost points out that pursuant to s. 25 of the Code, a police officer who uses force is justified in doing so only if, on reasonable grounds, he or she believes that it is necessary for the purpose of protecting the police officer or another person from imminent death or grievous bodily harm. Mr. Frost submits that this cannot be concluded on the facts of this case.

152Mr. Frost notes that it was unnecessary for the police to use their guns at all. They could have simply set up spikes and arranged their cars at the entrances to the lot, and waited the suspects out. At the very least, they could have driven their cars into the parking lot rather than running and walking in, thereby creating a much more dangerous situation. In the final analysis, it was unnecessary to fire the guns even in the circumstances that presented themselves. At the very least, considerably less than 60 shots could have been fired. The fact that so many shots were fired raises an inference that the purpose of the gunfire was not to stop the vehicles, but rather it was to harm or kill the suspects.

153Mr. Frost submits that excessive use of force on a suspect has been found to violate s. 7 of the Charter. In an appropriate case, a stay of proceedings has been held to be the appropriate remedy. That is the case here.

154Mr. Frost submits that in this case, the use of deadly force was grossly excessive. To fail to provide an appropriate remedy in these circumstances would simply send a message to the police that the use of grossly excessive force is acceptable. Thus, Mr. Frost submits, a stay of proceedings is the only appropriate remedy.

155Mr. Frost relies on R. v. Genest, 1989 109 (SCC), [1989] 1 S.C.R. 59; R. v. Magiskan (2003), 2003 859 (ON SC), 19 C.R. (6th) 330 (Ont. S.C.J.); R. v. Tran (2010), 2010 ONCA 471, 103 O.R. (3d) 131 (C.A.); R. v. O’Connor, [1995] S.C.R. 411; R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509; and R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679.

Analysis

Analysis

156I will first determine the guilt or innocence of Mr. Laforme on the relevant counts, apart from the Charter issue. I will then address the Charter issue.

157Fundamental to the Crown’s case on Counts 6, 7, 8, 9, 11 and 12 is the assertion that Mr. Laforme intended to strike one or more of the police officers with the SUV, and attempted to do so. The Crown must satisfy me of this beyond a reasonable doubt. In the final analysis, I am not so persuaded beyond a reasonable doubt. My reasons follow.

158It is possible that Mr. Laforme intended to run over Constables Fretz, Graul, and Heynemans with the SUV. However, it is also possible that he simply drove the SUV in a blind panic in an attempt to escape. The latter possibility is rendered more likely, in my view, because of the fact that guns were being fired at the SUV. In such a circumstance, in my view, it is not surprising that the driver might drive in a blind panic.

159I do not need to be convinced that the second theory is more probable. It is, however, just as probable as the theory advanced by the Crown.

160Accordingly, the Crown has not proven beyond a reasonable doubt that Mr. Laforme used the SUV as a weapon. Thus, Mr. Laforme must be acquitted on Counts 6, 7, 8, 9, 11 and 12.

161As for Count 13, I agree with Mr. Frost that there is no evidence that Mr. Laforme, while operating a motor vehicle, was being pursued by a peace officer operating a motor vehicle. Accordingly, he cannot be convicted of an offence under s. 249.1 (1) of the Code. He must be acquitted on Count 13.

162I am persuaded beyond a reasonable doubt that Mr. Laforme is guilty of the offence of dangerous driving on Count 14.

163It is not necessary for the Crown to prove that some particular member of the public was actually put in danger by the driving of the accused. As stated by Evans J.A. in R. v. Mueller (1975), 1975 1385 (ON CA), 29 C.C.C. (2d) 243 (Ont. C.A.), at p. 246:

...the offence of dangerous driving is proved when the Crown establishes beyond reasonable doubt that the driving complained of was dangerous to the public, that is, either the public actually present at the scene of the offence or the public which might reasonably have been expected to be in the particular vicinity at the time the driving took place.

164In this case, Mr. Laforme was driving the SUV eastbound on North Service Road after he left the vicinity of the waste management plant. He was driving at a very high rate of speed. He was driving at such a high rate of speed that he was not in a position to stop when he approached Officer Boateng’s police vehicle. Whether or not Officer Boateng’s vehicle was actually in the eastbound lane or the westbound lane is of no moment. The SUV driven by Mr. Laforme swerved and struck the vehicle.

165Mr. Laforme’s driving was a marked departure from the standard of a reasonably prudent person having regard to all the circumstances. Mr. Laforme clearly did not have control of his vehicle. He was operating at a very high rate of speed, and his driving was such that he was unable to avoid a collision even though the police officer’s car could be seen from a considerable distance.

166The Crown has proven this offence beyond a reasonable doubt, and Mr. Laforme must be convicted on Count 14.

167Last, there is Count 15. In my view, the Crown has proven this offence beyond a reasonable doubt.

168Pursuant to s. 252 (1) of the Code, the offence is committed where an accident occurs and the accused fails to stop his or her vehicle; give his or her name and address; and, where any person has been injured or appears to require assistance, offer assistance. The offence is made out if it is proved that the accused failed to perform any one of these three duties: see R. v. Steere (1972), 1972 1256 (BC CA), 6 C.C.C. (2d) 403 (B.C.C.A.).

169In this case, there was clearly an accident involving the SUV and Officer Boateng’s police car. There is no doubt that the SUV was stopped after the accident. However, Mr. Laforme did not give his name and address and offer assistance. He gave a false name to Officer Berthiaume. Thus, Mr. Laforme will be convicted on this count.

Charter Argument

170That leaves for consideration Mr. Laforme’s Charter argument. The argument has two elements: racial profiling; and the excessive use of force.

171In R. v. Richards (1999), 26 C.R. (5th) (Ont. C.A.), at para 24, and Peart v. Peel Regional Police Services Board (2006), 2006 37566 (ON CA), 43 C.R. (6th) 175 (Ont. C.A.), at para 89, the Court of Appeal quoted the following definition of racial profiling with approval:

Racial profiling is criminal profiling based on race. Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.

172Peart was a civil case, in which it was contended that racial profiling gave rise to the improper and unlawful arrest of the plaintiffs. The action was dismissed at trial, and the dismissal was upheld by the Court of Appeal. At para. 91, Doherty J.A. stated that “Police conduct that is the product of racial profiling and interferes with the constitutional rights of the target of the profiling gives rise to a cause of action under the Charter.”

173Conduct of the police that is the product of racial profiling, and can thus interfere with the constitutional rights of an accused, can take a number of forms. If it motivates an unlawful search or seizure, s. 8 of the Charter may be violated. If it motivates an unlawful arrest, ss. 7 or 9 may be violated. If it gives rise to the stopping of a vehicle, it is unlawful: see R. v. Brown (2003), 2003 52142 (ON CA), 64 O.R. (3d) 161 (C.A.).

174It should be noted that at para. 92 of Peart, Doherty J.A. stated as follows:

There will be situations, however, where despite improper racial profiling in the initial contact, the subsequent acts of the police are based on and justified by non-racial considerations. To take an extreme example, an officer may follow a person of colour on a public highway in part because that person is black. In doing so, even though the officer is not necessarily interfering with the individual’s constitutional rights, the officer is acting improperly. However, if the officer were to observe that person firing a gun at someone and proceed to arrest that person, the arrest would not necessarily be tainted by the initial improper racial profiling. It would be for the trier of fact to decide whether race played any role in the officer’s decision to arrest the person who fired the gun.

175Excessive use of force can give rise to a violation of s. 7 of the Charter: see Tran.

176In the event of a violation of s. 7 of the Charter, a stay of proceedings is a possible remedy. However, in O’Connor, at para. 68, L’Heureux-Dubé J. stated that a remedy of a judicial stay of proceedings would be appropriate under s. 24 (1) of the Charter only in the clearest of cases. At para. 69, she stated that remedies less drastic than a stay of proceedings are available, and in this respect the Charter regime is more flexible than the common law doctrine of abuse of process.

177A stay of proceedings was ordered in Tran. I will discuss that case later.

178I am not persuaded that there was any racial profiling in this case that affected the actions of the police.

179While the events prior to the apprehension of the suspects were underway, the police were not aware of the racial makeup of the suspects. It was only after they were apprehended that they could have been made aware that they were of First Nations origin.

180At most, before the apprehension of the suspects, the police were aware that the suspects might be from the Six Nations Reserve. They were aware that there had been cases where members of the Six Nations had stolen cars from the AMC parking lot, and had driven them down the Queen Elizabeth Way to the Reserve. In some cases, they used vehicles as battering rams. However, they had no way of knowing whether these particular individuals were members of the Reserve. All they knew was that certain suspects were driving stolen vehicles, and that they ultimately parked in a lot next to a waste management plant. Once the police approached them, they became aware that the suspects were making attempts to escape and, perhaps, run down some police officers with their vehicles.

181Having observed and listened to the police witnesses carefully, I am not persuaded that they were motivated by any racial considerations in the actions they took. I am persuaded that they were confronted with what they concluded was a serious attempt to cause them harm, including threatening their lives. Each of Officers Fretz, Graul and Heynemans feared for his safety, indeed, his life. That is why each officer fired his gun. Officer Lovett fired his gun to protect the other officers. Officer Boateng fired his gun because he thought his life might be in danger.

182I am also not persuaded that the use of force by the police is sufficient to constitute a violation of s. 7 of the Charter.

183This is not a case like Tran, where the use of force was deliberate, and was intended to cause harm. In that case, the police administered a beating to a suspect. In this case, the use of force was reactive and defensive, and was in response to the actions of the suspects, which the officers reasonably believed was intended to cause them harm, and would cause them harm.

184Having said that, I accept that with the luxury of time and reflection it is not difficult to conclude that the officers used more force than was necessary. Considerably less than 60 shots could have been used to stop the vehicles, particularly the SUV, when the officers perceived that they were in danger.

185However, it is all too easy, after the fact, to second-guess the actions of police officers who must make split second decisions. In this case, the suspects were using vehicles that could quite easily have killed the police officers in an instant. The officers can be forgiven for pulling the trigger more than we might, in hindsight, think necessary.

186It is also easy, several years after the events, to suggest that the officers could have taken different steps at the time. They could have blockaded the entrance to the lot and waited the suspects out. They could have simply let the suspects go. Once again, however, we should not be too quick to second guess decisions made by police officers at the scene.

187For these reasons, I do not find that the constitutional rights of Mr. Laforme have been infringed.

188Even if I were to find that his constitutional rights were infringed, I am not persuaded that this is one of the clearest of cases that requires a stay of proceedings.

189This is not a case like Tran, where the police physically beat a suspect, trying to extract a confession. In that circumstance, Epstein J.A., at para. 106, stated that

It is essential for the court to distance itself from this kind of state misconduct-an unwarranted, grave assault causing bodily harm, delayed medical attention, a cover up that included perjury, a prosecutorial response that affected the perception of trial fairness and no effective response.

190This case bears no resemblance to Tran. The police response here, while perhaps objectively excessive, was not of the sort described by Epstein J.A. in Tran. Rather, it was, as noted, a reactive response intended to stop activity that might have resulted in serious personal harm to the police officers.

191If I were to have found a violation of Mr. Laforme’s constitutional rights, at most I might properly take it into account in considering the appropriate sentence: see R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. Singh, 2012 ONSC 4429 and R. v. Ebanks, 2012 ONSC 5002. Indeed, police conduct that does not rise to the level of an infringement of constitutional rights can also be taken into account in determining an appropriate sentence, depending on the circumstances: see Nasogaluak, at para. 53, and Ebanks, at para. 24. I will consider any submissions in that regard at the time of sentencing Mr. Laforme.

Disposition

Disposition

192For the foregoing reasons, Mr. Laforme is acquitted on Counts 1, 2, 3, 6, 7, 8, 9, 10, 11, 12 and 13. He is convicted on Counts 4, 5, 14, 15 and 16.

193Mr. Martin is acquitted on Counts 18 and 21. He is convicted on Counts 17, 20 and 22. Count 19 is stayed on the Kienapple principle.

Gray J.