COURT FILE NO.: CR-13-30000485-0000

DATE: 20140523

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JAMOL MELBOURNE

Defendant

Leslie Zamojc, for the Crown

Simon Park, for the Defendant

HEARD: March 31, April 1, 2, 3, 2014

r.f. goldstein j.

1On May 26, 2012 Jamal Melbourne was arrested on robbery and obstruct police charges. On April 4, 2014 I dismissed the robbery charges but convicted him of obstruct police. Mr. Melbourne’s counsel, Mr. Park, argues that as a result of the police conduct during the course of the arrest he is entitled to the remedy of a stay of proceedings on the remaining charge.

2Mr. Melbourne testified that he was not given his rights to counsel. More seriously for the stay application, he says that he was severely beaten while in the police station. In a nutshell, Mr. Park’s application turns on credibility. After hearing submissions from Mr. Park, I dismissed the Charter application. I indicated that I did not find Mr. Melbourne to be credible and I did not believe his account of the incident in the fingerprint room. I indicated that I would provide my reasons in writing at a later time. These are those reasons.

FACTS

Facts

3On May 26, 2012 Jamol Melbourne was arrested. Police officers suspected that he committed a knifepoint robbery of an MP3 player. The police apprehended and arrested him. Upon arrest, Mr. Melbourne gave the police officers a false name. Mr. Melbourne says that the police failed to give him his rights to counsel for an unconscionably lengthy period of time. He also says that police officers beat him up in the 42 Division fingerprint room.

4Mr. Melbourne testified that when he was brought into the booking hall he asked several times to speak to his lawyer. The booking video verifies this aspect of his testimony. The booking video also verifies that he continued to refuse to provide his real name and did indeed provide a false name. He did indeed ask to speak to a lawyer several times. He was told by the police that a phone call to a lawyer would be facilitated when the booking process was complete. Mr. Melbourne did eventually give the police his real name. He was interrogated by two detectives after the booking process was complete although he still had not been provided with access to a lawyer. He was then taken for printing.

5Mr. Melbourne says that two officers escorted him to the printing room. He says that the officers told him he would be printed and that later he would be allowed to speak to a lawyer. He says he was desperately scared and shaken up. When he approached the printing machine he says he froze up. The officers interpreted that as resistance. He was immediately taken to the ground. He says that his arm dislocated but popped back in. He says that while he was on the ground he was repeatedly punched and kicked in the head. He says that an officer grabbed him by the hair and slammed his head into the floor three times and that his right eyebrow was lacerated and that he bled. In order to protect his head, he turned it to the side. Photographs were entered into evidence of Mr. Melbourne’s injuries. He says that at least six officers participated in the beating. Afterwards the police took him to Scarborough Centenary Hospital where he received six stitches. He did not complain of any other injuries to the hospital staff or point out any other injuries to the hospital staff.

6Constable Christian and Constable Tim testified. They were instructed by Detective Ward to retrieve Mr. Melbourne from an interview room and take him for fingerprinting. Constable Christian was on Mr. Melbourne’s right side and Constable Tim on the left side. Prior to the fingerprinting Mr. Melbourne finally gave the officers his real name and date of birth, although the officers were not satisfied at that point that it was his real name.

7Constable Christian testified that as they went to put Mr. Melbourne’s fingers on the glass plate of the printing machine Mr. Melbourne tensed up and clenched his hands into a fist. Constable Christian interpreted that as a sign of aggression that Mr. Melbourne was going to fight. He and Constable Tim proceeded to take Mr. Melbourne to the ground. He hit the panic strip and other officers came into the room. They managed to get Mr. Melbourne into handcuffs. He says he did not strike Mr. Melbourne and did not recall any other officer striking Mr. Melbourne. He said that Mr. Melbourne was on the ground for 10-15 seconds. The officers then stood him up. The whole incident from tensing of the arms to standing him up took 15-20 seconds. There was a laceration on Mr. Melbourne’s right eyebrow and he was bleeding. He did not see any other injuries.

8Constable Tim testified that when Mr. Melbourne approached the fingerprinting machine he began to clench his fist. He interpreted that as an assaultive manner. Constable Tim felt that Mr. Melbourne might strike. Constable Christian put him on the ground and Constable Tim then struggled to put handcuffs on Mr. Melbourne. He did not strike Mr. Melbourne and did not see any other police officer strike Mr. Melbourne. He did not see any injuries on Mr. Melbourne as he was behind him, but there was blood on the floor.

ANALYSIS

Analysis

9Mr. Park, on behalf of Mr. Melbourne, argues that there are two issues that should compel the court to enter a stay of proceedings. The first is the denial of the right to counsel. The second is the gratuitous beating that Mr. Melbourne says he received.

10The first issue, violation of s. 10(b) of the Charter, has a well known remedy: any utterances made by the accused may be excluded from evidence pursuant to s. 24(2) of the Charter. In this case, the necessity of a remedy has been rendered moot. At the end of the evidence Crown counsel wisely declined to pursue an attempt to enter Mr. Melbourne’s utterances to the police into evidence.

11The second issue engages the so-called residual discretion of the court to grant a stay: R. v. Babos, 2014 SCC 16. Mr. Park acknowledges that trial fairness is not an issue here. Thus, the issue to be determined is whether this is one of the clearest of cases requiring a stay of proceedings. Before making that determination, however, I must make findings of fact about the behaviour of the police.

12Put simply, I do not accept Mr. Melbourne’s version of events. For one thing, the physical evidence is inconsistent with the gratuitous beating that Mr. Melbourne says he sustained. The repeated kicking in the ear that Mr. Melbourne described should have produced noticeable swelling and injuries. None were photographed. Mr. Melbourne did not complain of any such injuries to the hospital staff. Repeated slamming of Mr. Melbourne’s head into the concrete floor also should have produced noticeable swelling and injuries. None were photographed. No complaints were made to the medical staff. No medical records were produced at this hearing. Furthermore, Mr. Melbourne testified that his head was turned to the side during this supposed beating in order to protect his face. At first he testified that he was kicked in the right ear. Then he said he could not remember which ear. If his head was turned so that his right eyebrow was lacerated, it should have been his left ear that received the kicks - although, with his head turned, the kicking to the ear would have been more like a stamping, which would have produced serious injuries to both sides of his head. Furthermore, although Mr. Melbourne complained of a leg injury, Constable Tim testified that Mr. Melbourne had mentioned it prior to the incident in the fingerprint room.

13More importantly, at no time was this version of events put to the police officers who testified. The only hint was that the officers were asked if they struck any blows to Mr. Melbourne or saw other officers strike any blows to Mr. Melbourne. All that was put to Constable Tim, for example was that he was not able to see any blows that may or may not have been administered by other officers, and Constable Tim agreed with that suggestion. It was never suggested to Constable Tim during cross-examination on the leg injury that it was sustained after, not before the incident in the fingerprint room.

14In R. v. Paris 2000 17031 (ON CA), [2000] O.J. No. 4687, 138 O.A.C. 287, 150 C.C.C. (3d) 162 (C.A.) Doherty J.A. described the principle:

22 Where a witness is not cross-examined on matters which are of significance to the facts in issue, and the opposing party then leads evidence which contradicts that witness on those issues, the trier of fact may take the failure to cross-examine into consideration in assessing the credibility of that witness and the contradictory evidence offered by the opposing party. The effect of the failure to challenge a witness's version of events on significant matters that are later contradicted in evidence offered by the opposing party is not controlled by a hard and fast legal rule, but depends on the circumstances of each case: R. v. Palmer (1979), 1979 8 (SCC), 50 C.C.C. (2d) 193 at 209-210 (S.C.C.); R. v. H.(L.M.) (1994), 39 B.C.A.C. 241 at 255 (C.A.); R. v. Verney (1993), 1993 14688 (ON CA), 87 C.C.C. (3d) 363 at 375-76 (Ont. C.A.); R. v. K.(O.G.) (1994), 1994 8742 (BC CA), 28 C.R. (4th) 129 at 131 (B.C.C.A.); R. v. Letourneau and Tremblay (1994), 1994 445 (BC CA), 87 C.C.C. (3d) 481 at 522-23 (B.C.C.A.); R. v. McNeill, supra, at 565; A. Mewett, Witnesses, 2d ed., looseleaf (Toronto: Carswell, 1999) at 2-32 to 2-34.

15Weiler J.A. described the principle in R. v. Dexter [2013] O.J. No. 5686, 2013 ONCA 744, 313 O.A.C. 226 (C.A.):

17 The rule in Browne v. Dunn is not merely a procedural rule; it is a rule of trial fairness. The rule was summarized by this court in R. v. Henderson (1999), 1999 2358 (ON CA), 44 O.R. (3d) 628 (C.A.), at p. 636 as follows:

This well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box.

16Weiler J.A. described how a trial judge should deal with a failure to cross-examine on the point:

20 The effect that a court should give to a breach of the rule in Browne v. Dunn will depend on a number of factors. In deciding how to address a breach, a trial judge may consider:

• The seriousness of the breach;

• The context in which the breach occurred;

• The stage in the proceedings when an objection to the breach was raised;

• The response by counsel, if any, to the objection;

• Any request by counsel to re-open its case so that the witness whose evidence has been impugned can offer an explanation;

• The availability of the witness to be recalled; and

• In the case of a jury trial, whether a correcting instruction and explanation of the rule is sufficient or whether trial fairness has been so impaired that a motion for a mistrial should be entertained.

Thus, the extent of the rule's application is within the discretion of the trial judge after taking into account the circumstances of the case.

17I acknowledge that Mr. Park did ask the officers whether they struck any blows or saw other officers strike any blows. In my view, with respect, that is not enough in the circumstances of this case. Mr. Melbourne accused the police of the most egregious behaviour that police officers can engage in. There is always an imbalance of power between an accused in custody and police officers. Using that power to beat a suspect senseless can not be tolerated and calls for an extensive and thorough investigation, with appropriate punishment if the allegations are found to be true. In this case, there is no evidence that Mr. Melbourne took any steps to alert the police complaints commissioner, the booking sergeant when he returned from hospital, or the hospital while he was at the hospital. He took no steps to obtain medical records and his “selfies” do not bear out the serious injuries he alleges. I conclude that he concocted his evidence.

18Given my finding that the beating did not take place as described by Mr. Melbourne, there is no need for me to determine whether this is the clearest of cases requiring a stay of proceedings.

DISPOSITION

Disposition

19As noted, the Charter application was dismissed with reasons to follow on April 4, 2014.

R.F. Goldstein J.