Her Majesty the Queen v. David Dickie, 2014 ONSC 1576

FILE NO.: 125/12

DATE: 20140311

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

– and –

DAVID DICKIE

Respondent

Jason Gorda, for the Crown

Richard Litkowski, for Mr. Dickie

HEARD: September 24, 2013

TROTTER J.

INTRODUCTION

1Mr. Dickie was charged with assault causing bodily harm and assault with a weapon for hitting his son on the head with a cellphone. This happened at a Subway restaurant. Mr. Dickie, who suffers from depression, anxiety and mood disorder, was arrested and taken to a police station. He was injured at the police station and was taken to the hospital for treatment. Much of what happened at the police station was not properly videotaped or documented, nor was Mr. Dickie’s obvious injuries the subject of appropriate inquiries by the booking sergeant.

2At a trial presided over by the Honourable Justice Brent Knazan of the Ontario Court of Justice, Mr. Dickie brought a pre-trial motion under s. 7 of the Charter, alleging that the conduct of the police violated his rights. He argued that a stay of proceedings was the only “appropriate and just” remedy under s. 24(1) of the Charter. The trial judge allowed the application and stayed the proceedings. He also imposed a common law peace bond, which supervised Mr. Dickie’s contact with the complainant.

3The Crown appeals. For the reasons set out below, the appeal is dismissed.

THE FACTS AND THE TRIAL JUDGE’S FINDINGS

(a) Introduction

4The essence of the dispute in this case was summed up early in the following passage from the learned trial judge’s reasons for judgment:

… Put simply, [Mr. Dickie] alleges that the officers who arrested him beat him up repeatedly, first in the police car and after they arrested him, then at the sally port upon arrival at the police station, then in the search room at the police division, again moving him from the booking hall to the detective office.

The evidence objectively establishes Mr. Dickie entered the police car uninjured and that by the time the investigation ended he was bruised, swollen, limping and had to be taken to the hospital. The officers admit to using force on Mr. Dickie, but no more than necessary to repel his unpredictable and sporadic behaviour.

I have concluded that the police failed in their duty to protect Mr. Dickie during his time in custody.

As a result of this mistreatment by the police, Mr. Dickie suffered injuries that included bruising and marks to his chest, stomach, buttocks and leg.

5As described in the trial judge’s reasons, Mr. Dickie testified that he was assaulted five times. The trial judge did not accept all of his evidence and, in fact, rejected those portions that could not be objectively confirmed. Unfortunately, the lack of videotape hampered the task of assessing all of the allegations. The following is a chronology of the events and the trial judge’s findings at each juncture.

(b) The Arrest

6Mr. Dickie was arrested and taken into custody by two Toronto Police Service (TPS) officers (P.C. Campbell and P.C. Van Ruyven). Mr. Dickie testified that he was assaulted as he was being arrested. He said the police taunted him by saying: “Do you want to be a child abuser? Wait till we get back to the station.” He said he was jabbed multiple times while in the police car. The trial judge was not satisfied that this occurred. He said: “Mr. Dickie’s evidence does not make sense on this point.” However, he did find that Mr. Dickie was left in the police car, complaining about his handcuffs being too tight, for 45 minutes. The on board camera confirmed that Mr. Dickie repeatedly complained to the officers about the tight handcuffs and that he was crying. The police did nothing.

(c) Arriving at the Station

7Mr. Dickie said that, when he arrived at the station, his face was pushed up against the sally port door as it was opening. The officers testified that, once he was out of the car, Mr. Dickie pulled to get away. A struggle ensued and Mr. Dickie was pushed against the police car to gain control. As the trial judge observed, there was no video of this incident.

(d) The Booking

8Mr. Dickie testified that he was not booked in at the station and was taken directly to a room to be strip-searched. There was no video of the booking. However, there was some paperwork that noted that Mr. Dickie was bi-polar and that he was taking painkillers, information that would have been obtained as part of the booking process. The trial judge found that Mr. Dickie was booked but he did not recall being booked.

(e) The Strip Search

9Mr. Dickie was taken to a separate room to be searched. There is no doubt that he was struck by at least one of the officers in this room. Both officers said that Mr. Dickie assumed an aggressive stance with them. However, the trial judge noted that the officers described the incident differently. P.C. Campbell struck Mr. Dickie in the chest and both officers took him to the ground. Both officers got on top of him. Mr. Dickie said he was both kicked and punched by the officers. Mr. Dickie suffered injuries while he was on the floor. P.C. Campbell agreed that they might have used enough force to cause injury, although Mr. Dickie did not appear to be injured when he came out of the search room. By this point, the officers knew that Mr. Dickie was bipolar. This incident was not reported to the booking sergeant. However, a booking officer told the officers to make sure that Mr. Dickie received his medication. The officers agreed that they would.

(f) Up the Stairs to the Interview Room

10Mr. Dickie was taken up a set of stairs to an interview room. The trial judge said: “[I]t is an undisputed fact that Mr. Dickie made violent contact with a bench that is in the corridor on the second floor…” Mr. Dickie said he was told to stop resisting the officers when he was not doing so. He said he was then thrown into the bench. He also said that he was picked up and sucker punched by a detective who came out of his office.

11The officers testified that, when they were on the second floor, Mr. Dickie struggled to get away. They said he attempted to flee. I pause here to emphasize that Mr. Dickie was handcuffed and on the second floor of a police station. Both officers testified that they struggled to maintain control of Mr. Dickie. As they attempted to take him to the ground, they just happened to be passing a wooden bench and Mr. Dickie happened to fall onto it. P.C. Campbell then fell on top of Mr. Dickie.

12The trial judge did not accept Mr. Dickie’s evidence about being sucker punched, but he made the following findings about this incident:

….by the time the officers accompanied him upstairs, they had more information about him. They knew that he was bipolar….Lay people, like judges and police officers, know that this is a mental illness. They knew he needed his medications. They knew he had been in a police car for over 40 minutes complaining loudly about too tight handcuffs….They knew from the sally port and search room that they could control him without getting in the least hurt themselves. And most importantly, they knew that he swung between being out of control and calming him down. There is no evidence that they tried to talk to him or just let him be once they got to the second floor. He was handcuffed. Fear of escape does not make sense in a corridor of offices full of police officers. Whether he was thrown into the bench as he says, or he took the officers into the bench as they say, a handcuffed, bipolar detainee was hurt because the police were either not trained well enough or not flexible enough to deal with a particular case.

(g) In the Interview Room

13The officers testified that Mr. Dickie was taken to an interview room on the second floor. It is unclear why this occurred because nobody ever attempted to interview him. The officers removed Mr. Dickie’s handcuffs. Again, given what had already transpired, it is unclear why his handcuffs were removed. Apparently, Mr. Dickie struggled and he was, again, taken to the ground. This made enough noise for the detectives outside of the room to hear. Mr. Dickie said that he was baited and threatened by the officers in the interview room.

(h) Back to the Booking Desk

14Over an hour after he was taken upstairs (and not interviewed), Mr. Dickie was brought back downstairs to the booking area. This was recorded on video. As the trial judge said, Mr. Dickie was “a completely different person than either the man [in] the police car or the man who came out of the search room. He is visibly injured. He is limping. He can hardly speak.”

15Sgt. McAskill was behind the desk and asked Mr. Dickie what was wrong with him. He showed her his injured leg told her that he was told not to say anything. When asked who told him that, Mr. Dickie said, in a quiet and hesitant voice, the officers who brought him to the station. Sgt. McAskill did nothing with this information. She facilitated Mr. Dickie using the washroom and speaking to a lawyer, following which he was taken to the hospital. In cross-examination, Sgt. McAskill acknowledged that, with the benefit of hindsight and with more experience under her belt, she would have made more inquiries.

(i) The Ride to the Hospital

16The police took Mr. Dickie to the hospital for examination. During the ride, he told the officers (different officers than the ones who arrested him) that he had been kicked in the back. This was captured on video.

(j) Lack of Videotaping

17The trial judge was troubled by the gaps in the videotaping of Mr. Dickie while he was at the police station. He characterized this shortcoming as “not satisfactory, but not in any nefarious or criminal way because of course purposeful suppression of relevant evidence would be obstruction of justice.” The trial judge went on to say:

It is just unsatisfactory because it does not help and hinders the resolution of an application such as this one. But I agree with Crown counsel, the videotape that does exist shows a limping and hurt Mr. Dickie, shows Mr. Dickie telling the Sergeant that the officers told him not to say anything, and it shows him saying that he was kicked in the back to the other officers. It also shows Sgt. McAskill ignoring him when he says that the officers told him not to say anything. There is available video evidence that supports Mr. Dickie’s allegations, and it was produced, and there is no basis for finding that the police purposely lost or destroyed any tape.

(k) The Trial Judge’s Overall Characterization of the Events

18The trial judge rejected the evidence of P.C. Van Ruyven and P.C. Campbell that the force they used was necessary to defend themselves. The trial judge pointed to the size differential between the two officers and Mr. Dickie. The trial judge said: “I find that it was while on the ground that Mr. Dickie received some of the bruises that his sister photographed, not gratuitously administered, but unnecessarily administered.”

19The trial judge found the injury report prepared by P.C. Van Ruyven to be problematic. It made no mention of the blow delivered by P.C. Campbell in the search room. Moreover, the language describing the incident involving the bench was vague in that it included no explanation of how the struggle started, no mention of the fact that Mr. Dickie was handcuffed and no mention that Mr. Dickie was 6 inches shorter than the officers. In his reasons, the trial judge posed the following rhetorical question: “How much can a handcuffed prisoner six inches shorter than two accompanying police officers in a police station resist, escape or hurt them realistically?” As the trial judge found, Mr. Dickie was the subject of excessive force and he was “avoidably hurt.” He also found that there was “no deliberate assaultive behaviour.”

ANALYSIS

(a) The Breach

20On an appeal such as this one, the factual findings of the trial judge are entitled to substantial deference. Absent palpable and overriding error, findings of fact should not be disturbed: R. v. Nasogaluak (2010), 2010 SCC 6, 251 C.C.C. (3d) 293 (S.C.C.), at p. 311.

21The trial judge did not err in finding that the police treatment of Mr. Dickie amounted to an infringement of his rights under s. 7 of the Charter. Mr. Gorda (for the Crown) seizes on the trial judge’s characterization of the situation as the police “failing to protect” Mr. Dickie and that he was “avoidably hurt.” He argues that only intentional abuse is capable of amounting to a breach of s. 7 of the Charter and that mistreatment based on omission is not. I disagree.

22Examples of police abuse based on omissions or the failure to act are easy to fathom. Failing to remove a prisoner from a dangerous situation with other violent prisoners could engage s. 7 of the Charter (and result in criminal charges). Wrongly leaving a prisoner in a cell for an unacceptably long period of time is another example. The creation of a degrading situation by failing to allow a prisoner who has soiled himself or herself to clean up could be placed in a similar category: see R. v. Murphy (2001), 2001 358 (SK PC), 29 M.V.R. (4^th) 50 (Sask. Prov. Ct.). Similarly, gross negligence resulting in injury by an officer transporting a prisoner might also infringe s. 7.

23The authorities support a broader approach to the type of conduct caught by s. 7 of the Charter. In the leading case of Nasogaluak, LeBel J. described the type of police conduct that attracts s. 7 protection (at pp. 308-309):

The Crown emphasized the issue of excessive force in its submissions to this Court, arguing strenuously that the police officers had not abused their authority or inflicted unnecessary injuries on Mr. Nasogaluak. But police officers do not have an unlimited power to inflict harm on a person in the course of their duties. While, at times, the police may have to resort to force in order to complete an arrest or 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. Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences.

24In confirming the breach found by the trial judge, LeBel J. held at pp. 311-312:

Further, I believe that a breach is easily made out on the facts of this case. The substantial interference with Mr. Nasogaluak's physical and psychological integrity that occurred upon his arrest and subsequent detention clearly brings this case under the ambit of s. 7…The excessive use of force by the police officers, compounded by the failure of those same officers to alert their superiors to the extent of the injuries they inflicted on Mr. Nasogaluak and their failure to ensure that he received medical attention, posed a very real threat to Mr. Nasogaluak's security of the person that was not in accordance with any principle of fundamental justice. On that evidence and record, we may assume that there was a breach of s. 7 and that there was no limit prescribed by law justifying such a breach. The conclusion that s. 25 [of the Criminal Code] was breached, in that excessive, unnecessary force was used by the police officers at the time of the arrest, confirms it. [emphasis added]

25More recently, in R. v. Pan (2012), 2012 ONCA 581, 292 C.C.C. (3d) 440 (Ont. C.A.), Laskin J.A. held, at p. 452:

Excessive force may give rise to a breach of s. 7 if it substantially interferes with an accused's security of the person interest. The use of force that is not excessive - even force that gives rise to foreseeable injury - would not likely amount to a breach of s. 7. The police are entitled to use force to make an arrest as long as the force used is proportional, reasonable and necessary: see R. v. Nasogaluak….

Further, in R. v. Bellusci (2012), 2012 SCC 44, 293 C.C.C. (3d) 565 (S.C.C.), in restoring a stay of proceedings under s. 24(1), Fish J. provided nine examples of cases that were stayed as a result of “mistreatment suffered at the hands of law enforcement officers.”¹ Some of the examples of “mistreatment” discussed in this judgment include positive acts of commission and failing or refusing to act.

26The Crown’s attempt to distinguish harm resulting from intentional conduct and harm based on omission does not advance the analysis. In any event, the scenario that lead the trial judge to conclude that Mr. Dickie’s s. 7 rights had been infringed was based largely on intentional action by the officers, in the sense that the measures they took (striking him and taking him to the ground more than once) was intentional conduct. The real issue is whether it was excessive and/or inappropriate in the circumstances.

27The language used by the trial judge gives rise to some uncertainty. On the one hand he said that the force used by the police was excessive and that Mr. Dickie was “”avoidably hurt.” On the other, he said they did not engage in deliberate, assaultive behaviour. From my review, the latter characterization would have been warranted and consistent with the finding that the force was excessive. Nevertheless, based on the trial judge’s findings and how he characterized the entire incident, I am not prepared to find error. To use the language of Bellusci, the trial judge did not err in concluding that the “mistreatment” suffered by Mr. Dickie at the behest of the police infringed s. 7 of the Charter.

(b) The Remedy

28The trial judge did not err in exercising his discretion to stay proceedings under s. 24(1) of the Charter. It is well established that a stay of proceedings is a discretionary remedy. As Laskin J.A. held in R. v. Leduc (2003), 2003 52161 (ON CA), 176 C.C.C. (3d) 321 (Ont. C.A.), at p. 359:

It is entitled to deference on appeal. This court should interfere with the application judge’s exercise of discretion only if he misdirected himself or if his decision is “so clearly wrong as to amount a miscarriage of justice.” See Elsom v. Elsom,1989 100 (SCC), [1989] 1 S.C.R. 1367 at 1375; R. v. Regan (2002), 2002 SCC 12, 161 C.C.C. (3d) 97 (S.C.C.), at para. 117

See also R. v. Tran (2010), 2010 ONCA 471, 257 C.C.C. (3d) 18 (Ont. C.A.), at p.35.

29The learned trial judge recognized that the residual category was the only basis for granting a stay of proceedings in this case: see R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, R. v. Zarinchang (2010), 2010 ONCA 286, 254 C.C.C. (3d) 133 (Ont. C.A.) and Tran. He was also aware that, because there was some uncertainty as to whether the abuse was sufficiently serious to warrant a stay, he was required to balance the interests of society in granting a stay against society’s interest in having a trial on the merits: Zarinchang, para. 57. In short, the trial judge identified and correctly articulated the principles that must inform the decision whether to stay proceedings. The Crown does not suggest otherwise; instead, it contends that the trial judge made the wrong decision.

30As in R. v. Singh (2013), 2013 ONCA 750, 118 O.R. (3d) 253 (C.A.), this was a case where the trial judge determined that the manner in which Mr. Dickie was treated was so poor that the mere fact of the state going forward with the prosecution would be an affront to society. The courts must not condone the manner in which Mr. Dickie was treated while in police custody. Failure of the courts to act in the circumstances would undermine confidence in the administration of justice and throw into doubt the independence of the courts from the police.

31The trial judge performed the proper balancing required in this case. He realized that the abuse in this case did not approach the seriousness of the situation in Tran, in which a stay was imposed on appeal. Similarly, the abuse fell short of the egregious police behaviour in Singh, a case decided after the decision appealed from in this case. However, in totality, the circumstances were serious in this case, especially given the lack of a proper video record, a vague (and misleading) injury report and the failure of the duty sergeant to make appropriate inquiries when confronted with Mr. Dickie’s obvious injuries and his statement that he was told not to say anything by the officers who hurt him.²

32On the other side of the equation, the charges against Mr. Dickie were less serious than in Tran (armed home invasion robberies) and in Singh (armed robbery and forcible confinement). This is not to say they were not serious. They were serious. All child abuse is serious. The trial judge recognized this in his reasons. However, the Crown chose to prosecute the case by way of summary conviction, a reflection of how it gauged the relative seriousness of the alleged conduct.

33The Crown placed great emphasis on the fact that had the stay motion been unsuccessful, Mr. Dickie would have admitted the Crown’s case. However, this does not undermine the values reflected in the case law discussed above. In a sense, it is a factor in favour of Mr. Dickie in the balancing of competing interests. It would have spared the child complainant the ordeal of having to testify (a concern expressed by the Crown at trial). It would also have gone a long way towards an acknowledgment of Mr. Dickie’s wrongdoing, further diminishing the need for a trial on the merits.

34The trial judge did not merely stay proceedings against Mr. Dickie; he also exercised his common law jurisdiction and imposed a peace bond. The order was designed to protect the complainant in this case. The order was made for one year and it is now at an end. Had the case proceeded to a formal admission or finding of guilt, any disposition would have included a similar, protective component.

CONCLUSION

35A small, handcuffed man was mistreated by two much bigger police officers while at a police station. Part of the abuse happened when Mr. Dickie was on the second floor of the station, teeming with police officers. The officers’ offered the ridiculous explanation that they acted as they did because they were afraid that their prisoner might flee.

36In keeping with the charitable manner in which the trial judge characterized this conduct, the officers lacked either the experience or patience to deal with Mr. Dickie in an appropriate manner. As the trial judge noted, he came into the police station in good condition, he left visibly injured. The booking sergeant did not follow up on how Mr. Dickie was injured. After Mr. Dickie spoke to his lawyer, the police had little choice but to take Mr. Dickie to the hospital. The trial judge held that it would be an affront to society and to the administration of justice to allow this summary conviction matter to proceed any further.

37In conclusion, I borrow the following words of Fish J. in Bellusci at p. 573:

Like the Court of Appeal, I might well have granted a lesser remedy. But absent an error of law or reviewable finding of fact, appellate courts must defer to the broad discretion vested in trial judges by s. 24(1) of the Charter. To repeat, as I explained in Bjelland"appellate courts must take particular care not to substitute their own exercise of discretion for that of the trial judge merely because they would have granted a more generous or more limited remedy."

In short, the trial judge in this case carefully and correctly considered all the relevant principles. He assessed the gravity of the prejudice and explained why he thought alternative remedies were inadequate. He did not misdirect himself on the applicable law or commit a reviewable error of fact. Nor was his exercise of discretion to grant a stay of proceedings "so clearly wrong as to amount to an injustice" (Regan, supra). My conclusion in this regard relates exclusively to the circumstances of the present matter. In fairness to the trial judge, however, I note that other judges have considered a stay of proceedings to be a proportionate remedy for mistreatment suffered at the hands of law enforcement officers….

See also R. v. Bjelland (2009), 2009 SCC 38, 246 C.C.C. (3d) 129 (S.C.C.).

38I would characterize this appeal in the same manner. While I might not have granted the remedy of a stay of proceedings, I cannot say that the trial judge erred in doing so.

Footnotes

1. 1At p. 574. In particular, see R. v. Mohmedi (2009), 72 C.R. (6^th) 345 (Ont. C.J.), where the accused was belligerent and gave unacceptable provocation to the officer. The accused was struck while he was handcuffed, even though he was not a flight risk and was not a threat to the officers. Barnes J. said (at p. 353): “The scene was completely under police control.” See also Murphy, supra.
2. 2The trial judge failed to make a finding on the issue of whether the officers actually told Mr. Dickie not to say anything when he was brought back downstairs.