R. v. DaCosta, 2015 ONSC 1586

CITATION: R. v. DaCosta, 2015 ONSC 1586

COURT FILE NO.: CRIMJ(P) 131/13

DATE: 2015 03 12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

A. A. Falls, counsel for the Crown

Respondent

• and -

JULIO DACOSTA

L. Ben-Eliezer, counsel for Julio Dacosta

Applicant

HEARD: February 11, 12, October 20 – 23, 2014; January 5, 2015

RULING

HILL J.

INTRODUCTION

[1] Arraigned on a charge of robbery, Julio DaCosta pled not guilty but, with the consent of the Crown, guilty of the crime of attempted robbery.

[2] The applicant, while agreeing to the facts surrounding the commission of the offence, described more particularly below, sought a stay of proceedings to avoid entry of a legal conviction on the basis that the circumstances of his arrest by the police violated his s.7 Charter right to security of the person. The Notice of Application for a stay of proceedings alleges that one of the arresting officers “assaulted the Applicant without lawful excuse” resulting in the applicant sustaining “serious physical injuries”. It was submitted that, in all the circumstances, it would amount to an abuse of process to convict and sentence the applicant.

[3] For the reasons set out below, the application is dismissed.

FACTUAL CIRCUMSTANCES

The Bomb Threat Robbery

[4] On December 16, 2011, Pinakin Brahmbhatt was the manager of the Cash Shop at 269 Queen Street East in Brampton. On this date, he was also the sole employee on the premises.

[5] At about 2:36 p.m., the applicant entered the store and approached the front counter which is separated from the interior, non-public part of the premises by walls and glass protector panels at the serving stations. Mr. Brahmbhatt described the applicant as wearing black glasses with his head covered.

[6] The applicant placed a device on the counter in front of the protective window behind which the manager was standing. The device was similar to two batteries taped together with exposed wiring. The applicant held a second device in his hand described as a cylindrical initiator which had a red button on top and wires protruding.

[7] The applicant stated, “Give me $5000 or else I’ll blow this place. In nine minutes, this place will blow.” The manager immediately dialled 911 as the applicant began to count down backwards 10-9-8…while saying, “Give me what you have.” Believing that the applicant had a bomb, Mr. Brahmbhatt felt panicked and nervous.

[8] During the 911 call, the manager provided information to the emergency operator including:

There is someone here. He’s trying to rob me. And he’s saying that it’s, he has a bomb.

…somebody wants to, to take five thousand dollars from me. And he’s saying that eight minutes to go, he have a bomb or something.

[9] In the background, the applicant could be heard to say, “Counting. I’m counting,” and later, “It’s seven minutes,” and then, “six minutes to go.”

[10] As the manager backed further into the office on his cordless phone, the applicant moved into a side hallway and banged hard on the glass. On the 911 tape, the applicant was heard to say, “Two minutes, “ and subsequently, “Give me the money now, four minutes.” The applicant twice stated, “I want the money now.”

[11] When the applicant was not given any money, he left the store with the victim following at a safe distance still speaking on his phone to the 911 operator and describing the applicant and his path of travel.

[12] Mr. Brahmbhatt observed the applicant go north from the store at a normal pace and cross several lanes of traffic on Queen Street entering a vacant field on the north side of the road. The manager heard sirens in the distance.

[13] The 47-year old applicant testified that he was last employed at the end of 2008 in a furniture-making company. He has not worked since, in his words, because “of medical issues. I’ve had surgery on my knee…”.

[14] In his evidence, the applicant acknowledged that when he entered the Cash Stop he intended to carry out a robbery. He had a battery pack wrapped in black electrical tape with electric wires on its exterior (the bomb), as well as a separate black plastic tube with a push button on it and an extended wire (the detonator). This was not a real explosive device.

[15] According to Mr. DaCosta, by placing the one device on the Cash Shop counter in front of the store employee he intended to scare him to believe that he could be physically hurt by a real explosive device if he failed to comply with the demand for money.

[16] To the applicant’s recall, he held the push button detonator in his hand with the wire wrapped around his wrist partially covered by the sleeve of his winter coat. The applicant testified that he told the store’s proprietor that if he did not get $5000 he would trigger the explosive. He counted backwards to give the impression that only so many minutes remained for compliance with his demand before he would detonate the bomb.

[17] The applicant testified that as he counted down he could see and hear the store’s employee on the phone. At a point, he abandoned his plan and exited the front door of the Cash Stop. He believes that he heard a vehicle siren at this time.

[18] During the early afternoon of December 16, 2011, fifty-year-old Mark Brown was standing outside a Pizza Pizza store in a strip plaza a short distance to the west of the Cash Shop also on the south side of Queen Street. He was smoking a cigarette.

[19] At a point, Brown observed a male person dressed in dark clothing, located east of his position, run from the area of the front of the Cash Shop through a parking lot, darting out into the vehicle traffic on Queen Street. Car horns honked. Although he thought the man would be struck, the man made it to the north sidewalk. Brown described this person as moving extremely fast, running and a near blur.

[20] Brown also saw a man holding a phone and in an animated way pointing across the street as a police car arrived on scene. The witness could hardly believe what he was seeing.

The Police Respond

[21] At about 2:37 p.m., Constable Blair English, an officer with 3 1/3 years’ experience with the Peel Regional Police Service (PRPS), heard a radio call of a robbery in progress at 269 Queen Street E. – there was an attempt to rob the Cash Store by someone armed with a bomb. The complainant was reporting that there were six minutes left on the bomb’s timer. A description of the robber was also broadcast.

[22] Constable English responded to the call driving to the area of the intersection of Queen Street E. and Rutherford Road. These are multi-lane roadways.

[23] On arrival at the location of the Cash Stop, at about 2:41 p.m., Constable English observed Mr. Brahmbhatt on his phone on the Queen Street sidewalk pointing across the street in a somewhat frantic manner. Looking in the direction signalled by the complainant, the officer observed the applicant, who met the broadcast description, “running across the road and sidewalk,” into an open field on the north side. Both of the applicant’s hands were in the pockets of his puffy jacket at about stomach level. The applicant looked back in the direction of the cruiser.

[24] Constable English made a u-turn on Queen Street, stopped his marked cruiser in the live westbound lanes, exited the vehicle and took up a foot pursuit of the suspect. He was dressed in a police uniform. The officer did not know whether the bomb had been left in the store or was with the suspect.

[25] Constable English described the large vacant lot, a grassy and muddy field, at the northeast corner of Queen Street and Rutherford Road. There are sidewalks and businesses on Queen Street to the south. To the west is Rutherford Road. To the north is a 6-to-7-foot tall fence with family residences on the other side. To the east was a fence beyond which was a commercial building and a parking lot.

[26] Mr. DaCosta testified that it was his intention not to be caught. After crossing Queen Street, he headed into a vacant lot on the north side to make good his escape. There was mud and some snow in the field. His hood was up. In cross-examination, the applicant agreed that he was going as fast as he was able to escape being captured.

[27] Constable English described the applicant as running fast, moving at a quick pace “as if he wanted to get out of the area.” He was not limping or dragging a leg. His hands were in his pockets.

[28] Constable English recalled that as he began his pursuit, he yelled out a command for the suspect to stop. This had no effect as described in the witness’ testimony.

As the male was running across the field I became engaged in a foot pursuit, chasing him. And while I was running I was making numerous voice commands for him to get on the ground. He was not being compliant, continued to run, and still had both hands inside his pockets.

[29] On the officer’s evidence, he was shouting “at the top of [his] lungs” and may have yelled the command to stop and go to the ground as many as 10 to 15 times. The applicant remained non-compliant.

[30] Running “full throttle”, Constable English closed the distance on the applicant who continued in a northwest direction through the field.

[31] Mr. Brahmbhatt informed the court that in his opinion the applicant was moving at a normal pace not jogging through the field. Mark Brown testified that the applicant was quickly running into the field although it seemed that he eased up somewhat as though to a skip or a jog faster than normal walking. He had somewhat of a limp. The witness was unsure whether the suspect had been struck by a car on Queen Street. The suspect was not sprinting.

[32] Mr. Brahmbhatt heard a command to stop and loud voices from the police. Mr. Brown heard a police command, “Get down”, on a couple of occasions.

[33] Constable Matthew Newark of the PRPS also responded to the radio call of someone in possession of a bomb attempting to rob the Cash Shop at 269 Queen Street. He too was in uniform in a marked cruiser.

[34] On arrival at the Queen Street/Rutherford Road intersection, the officer saw Constable English on scene as well as the applicant running into the green space on the north side of Queen Street. The officer exited his cruiser and joined the chase entering the field from the west side from Rutherford Road. On the witness’ evidence, the suspect initially moved at “a brisk run”, also described as “at a brisk pace not running” and then half-way through the field: “… alternating paces, walking between a walk and a brisk - a brisk walk slash going into maybe a mild jog away from police, alternating paces.” The officer did not observe the applicant having any physical difficulty moving through the muddy and slippery field.

[35] Constable Newark testified that on exiting his cruiser he immediately verbally identified himself as a police officer. As he issued multiple, continuous, direct and distinct commands to the suspect, “stop, police, get to the ground, show your hands”, the suspect kept going while reaching for his pockets. The officer heard Constable English shouting commands as well. According to the witness, Mr. DaCosta “[c]ontinued to ignore all commands to drop the item in his hand and to keep his hands out of his pockets”. Constable Newark observed the suspect look back at the police officers “multiple times”.

[36] The applicant testified that as he was fleeing in a northerly direction, not jogging or running, he heard a police command to get his hands up and to go down. He was still holding the detonator. He twice heard Constable English direct him to stop.

[37] The two police officers closed upon the suspect in a pincer-like manoeuvre with Constable English moving northwest and Constable Newark moving east to northeast into the field. The officers had their service firearms drawn.

[38] At a point about 20 meters from the suspect, Constable Newark observed in the suspect’s left hand what he believed to be the detonator for the bomb - it was red on top and there was a wire attached. The witness described his state of mind:

At that particular point I knew that the radio call initially has the subject holding or what appears to be- the weapon here is a bomb. The detonator device confirmed that and obviously in my own state of mind not knowing how many people or who was in the store currently or presently and knowing that I had a busy intersection of Queen and Rutherford at that particular point in time, there was plenty of people on the road going to and from school, lots of kids and pedestrian traffic. So I was dealing with a male who at this particular point had threatened or the radio call was in relation to a bomb and now had observed a clear and distinct detonator device with the wire and the- and the red button, I guess you could say, on top.

[39] On his evidence, with no compliance with ongoing commands and with the sighting of the detonator, and unable to see the suspect’s right hand which seemed to be grabbing for something, Constable Newark changed his command to the suspect to a direction to show his hands and to drop what was in his hands.

[40] In cross-examination, Constable Newark stated that he heard no utterance from the applicant. The officer considered that Constable English “was always more directly involved” and somewhat closer to the suspect - the witness added that, “I can’t speak for what the male did or didn’t say, I didn’t hear anything”.

The Take-Down Arrest

[41] Constable English testified that as he caught up to the suspect he heard him say: “I didn’t do anything”. Mr. DaCosta was still running but “starting to slow down [to] sort of a fast pace[d] walk”. In his in-chief evidence, the officer described what next occurred:

I- I drew my firearm given the nature of the call, and still continuing to yell for him to get on the ground. And at that point the male looked towards me, both hands are still inside his pocket. I continued to make voice commands to the male to take his hands out of his pocket and get on the ground. And somewhere around this point is when Constable Newark also comes into the field and he was shouting commands at the male as well.

My firearm is drawn, I’m commanding him to take his hands out of his pocket, and at this point he turns and faces me. And I again command him to get on the ground. He is still not compliant. At which point I observe the- the male to begin to move his left hand around inside his coat pocket, which would be his left coat pocket.

I’m yelling at the male and I have my firearm is pointed directly at him. And at that point he makes a- another utterance, at which point he says, “This is what I have”. And my observations, to me it appears as if the male was struggling to get his hands out of his left pocket as it he was trying to removing something. And then he starts to pull his left hand out of his pocket.

[42] According to Constable English, when he was about five feet from the suspect who was struggling to remove something from his coat pocket, the applicant said “This is what I had”. At this point, the constable saw a black object in the suspect’s left hand with a visible red button on top and a wire attached to the bottom. The officer quickly concluded that it was “a detonator of some sort” leading him to believe “that he did in fact have a bomb”.

[43] Constable English informed the court that when he concluded that the suspect was in fact armed with a bomb, he considered the use of lethal force. He had his finger on the trigger of his firearm. While he was unlikely to miss the suspect as his target with employ of this lethal force option, he was concerned, as things were happening very quickly, about vehicles, pedestrians and houses in the vicinity should one of his shots miss the suspect. The officer testified that he had a lot of things going through his mind. He delivered a thrust kick without holstering the firearm – “I was trying to take all measures without pulling the trigger …I wanted to end the incident without actually firing my firearm”. The officer testified that “it had happened so quickly” – to use another use-of-force option such as pepper spray or an extendable baton would take the time to re-holster his firearm to obtain a different option.

[44] As he continued to shout “Get on the ground”, Constable English described what followed:

At that point then the – just to refer to my notes, the male crouches down. He’s leaning forward and then using his right hand I observe him to pull the left sleeve of his jacket, at which point I observe the –the wire wrapped around his left forearm, and he begins to remove that wire from his forearm.

Using his right hand. I – I wasn’t able to see the end of where the wire was, just that he unwrapped it from his forearm. And that’s when he leaned forward and laid the device on the ground.

I make another voice command for him to get on the ground, at which point he stands straight up and he’s still not being compliant to the many voice commands I’ve made to get on the ground. Then at that point when the male is still non-compliant, I still have my firearm drawn in my hands. I make a front kick to the male’s chest area in order to ground the male and attempt to take him into custody. And that would’ve been a front thrust kick using my right leg.

I wanted to be- to be sure that the male went to the ground, and given the nature of the whole surrounding events, where we were and the nature of the call, the fact that I had seen a device, I used as much force as necessary to get him to the ground.

[45] In his evidence, Constable English stated that after placing the device on the ground, the suspect ignored the command to go to the ground and stood back up. Constable English testified that at no point did Mr. DaCosta say words to the effect that he was unable to get on the ground. Though not in his notes, the officer described to the court a clear independent recollection that as Mr. DaCosta stood back up he took a slight or partial step forward toward him. The officer “saw [his] opportunity to end the incident” and delivered the single thrust kick with the bottom of his boot to the suspect’s chest designed to temporarily incapacitate him and take him to the ground. Such a kick was taught in the witness’ “police training”. It “happened very quickly” and in the constable’s view he kicked the suspect as hard as he could from a distance of three to five feet to ensure that the suspect would end up on the ground.

[46] Cross-examined as to the reason for this use of physical force, Constable English gave these responses:

(1) “the whole circumstances of the event”

(2) his belief that the applicant was armed with a bomb - in the witness’ words, apart from the detonator:

I don’t know if there was anything else on his body at that point...

There was a mention of a – at the beginning at a call of a blue, black battery type device. I don’t know if that was left behind in the store. He has a big puffy jacket on and I don’t know what else he has on his person.

(3) the suspect’s refusal to go to the ground and his slight step into the five-foot space separating them.

[47] Constable Newark too considered the use of lethal force on seeing the applicant holding a bomb detonation device. He considered use of his firearm all along but was concerned about how busy some of the boundaries of the field were and the prospect of Constable English being in cross-fire range. To the constable’s view, other use-of-force options were not appropriate to the circumstances.

[48] Constable Newark testified that the suspect made a sudden turn toward the police before Constable English kicked him to the ground:

Just going to refer…to my notebook on this particular point. So at the point that the male was taken into custody we can consistently observe the item in his left hand and the male was then turned towards police of which then there was maybe one or two steps and I refer to that in the general means of he turned and came towards police, how many steps, it wouldn’t have been very many anyway. Constable English then with that sudden change in movements from the culprit was very close to the male, close enough which a front kick strike from his leg to the front thoracic area or body of the male put him directly on the ground…

The-he turns around takes a step in a quick and sudden movement and at that particular point obviously Constable English is moving in or still continuing in that motion also and the distance between them becomes the point where it was a short enough distance to apply an effective kick.

Turns towards police and takes a step towards Constable English in a clear and distinct sudden quick motion.

…within all of that was the whole totality of that situation was in effect of that quick step towards of which then Constable English neutralized the situation… I was watching the accused the whole time.

[49] It was Constable Newark’s impression from his position two and a half to three metres distant, that the detonator which was in the suspect’s left hand came loose from the suspect’s grasp as a result of the forceful kick. According to the witness, at no point did the suspect have his hands raised in the air. He did not hear the suspect say anything when he turned toward Constable English. The applicant’s right hand was concealed in his coat immediately prior to the kick.

[50] The applicant testified that the bomb device was left in the store. In his in-chief evidence, the applicant stated that it was when Constable English first yelled for him to stop and put his hands up that the detonator came out of his hand – “When the officer first yelled toward me to stop I threw it on the ground and my hands went up”. He did so, in his words “[be]cause he had his firearm out and it was being pointed at me”. Asked in-chief how much time passed between the officer’s command and release of the detonator, the applicant stated that it was “very quick”, 30 to 60 seconds. The applicant estimated that the detonator was 8 to 10 feet from him when he was kicked.

[51] In cross-examination, the applicant advanced more than one version as to when he dropped the detonator:

I dropped it when I heard him say to put my hands up, and that’s where I stopped. I was at a standstill.

…it wasn’t beside me, it was before where I’d got to that point. It was already on the ground before I’d come to a complete stop.

I dropped that prior to hearing any command as I was getting into the lot before I got to the point where I came to a stop, when I actually heard the commands and came to a stop that was already out of my hands by that point.

Q. …you’re moving into the field, prior to hearing any command you drop this detonator and you keep moving?

A. Yes.

[52] Mr. DaCosta provided this further account of events. He heard the police command to put his hands up and to get down. He put his hands up and stopped. According to the applicant, he was physically unable to get down because of the condition of his knee. There was nothing in his hands at this point. In his in-chief evidence, the applicant stated that although he told Constable English in regard to getting down, “I can’t, my knees, my knees. I can’t”, the officer kept moving forward and kicked him in the chest. In re-examination, the applicant testified that what he said was “I can’t”.

[53] Mr. Brahmbhatt testified that he could hear the pursuing police officers speaking loudly, including a command to “stop”. The suspect kept going. In the witness’ view, the suspect did not stop until he turned back toward one of the officers and was instantly kicked in the chest area.

[54] Because there were cars between his position and the three persons in the field, Mark Brown only had a view of the top half of these persons. The witness saw everyone moving away from him further into the field. The suspect was looking left and right. In cross-examination, Mr. Brown described the suspect as markedly slowing down prior to arrest while still moving deeper into the field. Mr. Brown was unable to saw how the suspect was taken to the ground by the police.

[55] Mr. DaCosta described the kick as causing excruciating pain. On his evidence, when he fell to the ground, on his back, an officer rolled him over, placed a knee in his back causing more pain and handcuffed his hands to the rear. He did not struggle. It “all happened so quick”. He had a lot of pain in his chest and was having difficulty breathing. He didn’t feel right and, in his words, “I’m pretty sure I said I felt like I was having a heart attack”. To the applicant’s recall, he told the police he was in a lot of pain.

[56] In cross-examination, Mr. DaCosta gave this evidence:

Q: Other than your complaint today about the kick, they treated you pretty fairly?

A: Yes.

[57] Constable English recalled that the applicant landed on his back once kicked. He holstered his weapon and knelt at the suspect’s side with one knee on the ground and one leg up. The suspect was rolled over onto his stomach and cuffed to the rear. To the witness’ recall, prior to being cuffed the suspect was “tensed up” and had his hands under his body. Because he was wearing a puffy jacket, the constable was concerned – “ I wasn’t sure what he may still have on… his person”. He and Constable Newark instructed the suspect to stop resisting. They worked quickly to take control of the suspect’s hands. He did not have a knee in the suspect’s back. Constable English has no recall of Mr. DaCosta saying anything. Asked in cross-examination whether police training recommends placing a knee on a prone suspect’s back, Constable English disagreed.

[58] Constable Newark recalled that when the suspect hit the ground he rolled over on his own onto his hands. The officer secured his firearm and assisted Constable English to control the suspect’s hands. Constable Newark described the suspect as “completely and utterly resisting the entire time” and non-compliant with verbal commands to show his hands. During this process, the suspect said nothing. Constable Newark informed the court that he had his right knee on the ground in the suspect’s armpit area and his other knee on the ground beside the suspect’s hip or buttocks - this was described as “general training” and “in our training”, to provide balance and stability for the handcuffing procedure. He did not have a knee on the suspect’s back.

[59] PRPS Detective Sheridan also attended the scene. He observed the applicant face-down on the ground in the field with Constables English and Newark beside him. The officers were handcuffing the suspect. Detective Sheridan has no recall of either constable having a knee on the applicant’s back. Detective Sheridan observed a black detonator with a red button and silver wire by the applicant’s feet.

[60] Once the applicant was taken to his feet, in custody as of 2:42 p.m., a cursory pat-down search was conducted. Constable English testified, “I was still very concerned that he had possibly an explosive device on his body”. While Constable English remained in the field to secure the scene of the arrest, Constable Newark took custody of the suspect who stated that he went into the store because another male told him to and further stated that it was not “a real bomb”. The officer led the arrestee to where police cruisers were parked on Rutherford Road. He cautioned the applicant and communicated his s. 10(b) Charter rights. In a more thorough, secondary search, the bomb device was discovered in the applicant’s front jeans pocket. When it was discovered, the applicant stated: “It is not real.”

[61] Detective Sheridan recalls taking custody of the applicant and walking him to a cruiser on Rutherford Road where he was seated in the rear of a cruiser. It was at that point in time, on the officer’s evidence, that Mr. DaCosta complained of chest pain. Peel Regional Police Services Constable Torek assisted in the pat-down search of the applicant before he was placed in the cruiser. According to Constable Torek, it was at this point that the arrestee indicated he had chest pains and advised he was a diabetic, had had eye surgery and a knee operation around 1995. The constable observed no physical signs of the applicant being in pain.

[62] After the applicant was seated in the rear of the cruiser, and on Constable Newark’s evidence, stated that he had previous medical issues which was a heart condition and had just had a recent medical treatment, an ambulance was called to scene. The applicant did not complain of pain or injury according to Constable Newark. The devices were turned over to the PRPS Explosives Unit.

[63] Mr. DaCosta recalled being seated in the rear of a police cruiser with the door open and his legs outside before going to the hospital in the ambulance.

[64] Once the ambulance arrived, on Constable Newark’s evidence, he advised the paramedics “to check on a previous heart condition”.

MEDICAL CONSEQUENCES OF THE ARREST

[65] On emergency admission to hospital on December 16, 2011, a medical examination and x-ray determined that the applicant had sustained a fractured sternum and bruising. Treating doctors recommended an option of self-healing of the sternum as opposed to immediate surgery. Pain medication was prescribed.

[66] On December 19, the applicant was released from hospital and admitted to bail on December 20.

[67] On Mr. DaCosta’s evidence, when the pain persisted, surgery was performed in October 2012. No medical records were introduced into evidence. Mr. DaCosta testified that a titanium plate and screws were placed in his chest on a permanent basis. The applicant informed the court that chest pain has persisted for which he has been prescribed Gabapentin to be taken three times daily. He also takes Tylenol three times daily. There is no expectation of improvement in his condition.

[68] Mr. DaCosta testified that following his chest injury, his physical health was not “like it was prior”. He does not have the strength to perform many ordinary or routine tasks. He also informed the court that he has suffered emotionally from the circumstances of his arrest – initially he had nightmares. He is currently seeing a psychiatrist.

[69] Joao DaCosta, the applicant’s younger brother, testified that following December 16, 2011 the applicant’s strength and mobility were markedly diminished. The witness also described his brother as a “little bit depressed” and not very social.

THE ACCUSED’S OTHER MEDICAL ISSUES

[70] Mr. DaCosta testified that he is on medication for diabetes.

[71] Asked in-chief to describe the state of his health prior to December 16, 2011, the applicant replied:

Overall, good except for my diabetes, and I had cataracts at the time or later, but otherwise, no. I was – I was in very good shape physically.

[72] The applicant went on to state that there was some physical limitation for his left knee on account of arthroscopic surgery performed in 1994 or 1995. In the applicant’s words, after wearing a brace for a time immediately after that surgery, “it didn’t really impede me or keep me from doing anything physical at that point”.

[73] The applicant’s brother described the accused’s health as “good” prior to December 16, 2011. His knee surgery did not impede normal functioning including mowing the lawn, working on cars, playing some basketball, lifting wooden furniture frames at a chair company, etc. In the witness’ view, while the applicant’s knee surgery prevented him from running, he could move at a pace faster than a walk.

[74] On the applicant’s evidence, in March of 2014 he slipped on a set of stairs and broke his hip.

POSITIONS OF THE PARTIES

The Applicant

[75] Mr. Ben-Eliezer, recognizing that much of the evidence is undisputed, focused the key issue to be decided to be whether excessive force was used by Constable English in kicking the applicant with the resultant injuries. Counsel agreed that it was a quick incident.

[76] Put shortly, it was submitted that the applicant was clearly and fully surrendering, and posed no threat, when he was viciously and unnecessarily assaulted occasioning serious permanent injuries. Either no use of force was justifiable or, in the alternative, at most the drawing of the constable’s firearm was proportionate to the existing circumstances. Constable English was upset that the applicant did not get on the ground – he just “let loose”.

[77] It was argued that these facts, if found to be established, warrant a stay of further proceedings on the basis of a s. 7 Charter breach and abuse of process.

[78] Counsel submitted that Mr. DaCosta was a credible witness who acknowledged factual guilt for the attempted robbery through his plea of guilt, made admissions in this proceeding, and, in cross-examination, was responsive and not evasive or prone to over or under-statements.

[79] The court was urged to find, based on the applicant’s testimony, that:

(1) in the vacant field, the applicant moved as quickly as he could, given his physical limitations, without running

(2) the applicant turned and put the detonator on the ground saying that that was all he had

(3) while the applicant may not have heard or obeyed initial police commands to stop, given that his hood was up, when he saw Constable English’s firearm drawn he raised his hands and stopped

(4) the applicant made no threatening utterances or gestures nor any provocative actions such as stepping in Constable English’s direction

(5) the applicant did not go to the ground as directed because he was physically unable to – he told the police that he was unable to

(6) the applicant had abandoned his escape when he was kicked by the officer

(7) the applicant was rolled onto his stomach by the police once he hit the ground, with an officer’s knee in his back during the handcuffing process causing additional pain

(8) the applicant complained to the police of chest pain also stating that he felt like he was having a heart attack.

[80] The applicant accepted that the police had reasonable grounds to arrest him for the attempted robbery. Counsel also accepted that the police may have subjectively and reasonably believed that Mr. DaCosta was resisting during the handcuffing whereas he was clutching the area of his chest pain and unable to breathe.

[81] Mr. Ben-Eliezer submitted that Constable English was evasive in cross-examination on various issues including the pace at which the applicant moved through the field, and, the force with which the officer applied the thrust kick. The lack of a notebook entry recording that the applicant took a step forward makes the constable’s evidence valueless on this point. At times, it was suggested, Constable Newark was visibly searching for answers to fill gaps in his memory.

[82] It was submitted that the court ought not to rely on the police witnesses’ evidence except insofar as it was confirmed by the applicant’s evidence or physical evidence. Counsel argued that while the differences between the testimony of the two officers may not have been numerous, the discrepancies were significant including on these issues:

(1) whether the applicant spoke immediately prior to being kicked

(2) the location of the detonator as the kick was delivered

(3) how the applicant came to be face down on the ground.

[83] Mr. Ben-Eliezer, while acknowledging the speed with which events unfolded, noted that the police, entrusted with power and the qualified right to use force, are trained for such situations. Here, an overreaction, entirely excessive in the circumstances, cannot be constitutionally forgiven.

The Crown

[84] On behalf of the prosecution, Mr. Falls submitted that on the whole of the evidence the applicant failed to discharge his onus of establishing a breach of s. 7 of the Charter/abuse of process.

[85] Crown counsel underscored the rapidity with which events unfolded. The police were in hot pursuit of a robber believed to be armed with a bomb. The suspect was attempting to escape and ignoring verbal commands to stop, to show his hands and to go to the ground. The officers had limited information as they quickly endeavoured to restore public safety. There was little opportunity to reflect and make decisions. The suspect was seen to have a detonator.

[86] It was submitted that in these dynamic circumstances, where split-second decisions had to be made, there was no unreasonable use of force in all the circumstances. There was no predictability – it was believed that a bomb could explode at any time. The use of lethal force was a distinct option.

[87] Mr. Falls accepted that another officer in Constable English’s position may not have delivered a thrust kick. It is unfortunate that Mr. DaCosta was injured. That said, the officer advanced sound reasons for the reasonable force applied to neutralize an ongoing threat – there was no surrender on a reasonable interpretation of the evidence.

[88] Crown counsel accepted that there were discrepancies between the evidence of Constables English and Newark on some not insignificant points. It was said that this is hardly surprising given the fast-based events. In addition, differences tend to reflect different positions and perceptions and a lack of collusion.

[89] It was submitted that there existed important commonality in the officers’ testimony including on the issues of the applicant’s lack of responsiveness, the detonator in his hand, the applicant’s hands at his pockets, and the ongoing route of escape. It was said that the police constables should be accepted as honest, straightforward witnesses.

[90] Crown counsel urged the court to find that Constable English’s account of the applicant setting the detonator on the ground should be accepted as the officer was closest to Mr. DaCosta and this version accords with his evidence.

[91] Counsel invited the court to find that the applicant was not a credible witness for various reasons including his evidence falsely suggesting the bomb had been left in the Cash Shop, the testimony that there was no snow on the ground – an assertion contradicted by the police evidence and the photo exhibits, and the confusion in Mr. DaCosta’s evidence as to how, where and when the detonator came to be on the ground.

ANALYSIS

Governing Principles

[92] “The police must investigate crime. That is their duty.” (Hill v. Hamilton-Wentworth Regional Police Services Board et al., 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 1) and “the execution of the police duty to protect life and safety lies at the very core of the existence of the police as a social entity”: R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 43 per LeBel J.

[93] At common law, and today by virtue of ss. 494 and 495 of the Criminal Code, a peace officer is authorized to arrest a person. “In apprehending, arresting and detaining suspects, police are regularly required to use force on individuals without consent”: Toronto (City) Police Services Board v. Puricelli, 2014 ONSC 6861 (Div. Ct.), at para. 17. The degree of force necessary and reasonable to effect an arrest will vary with the circumstances – for example, “[o]bviously, the police will use a different approach when the suspect is known to be armed and dangerous than they will be in arresting someone for outstanding traffic tickets”: R. v. Genest, 1989 CanLII 109 (SCC), [1989] 1 S.C.R. 59, at p. 89.

[94] Improper or excessive use of force by a peace officer in the execution of an arrest may amount to a breach of the arrestee’s s. 7 Charter right to security of the person:

I accept the Court of Appeal's determination that the trial judge had made no palpable and overriding error in his findings that the police had used excessive force at the time of Mr. Nasogaluak's arrest. 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 (R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30; Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519). 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.

(R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 38)

Even accepting the trial judge's finding that Pan's injuries were "serious and foreseeable", that finding does not make out a breach of s. 7 of the Charter. To show that his s. 7 right to security of the person was violated, Pan had to show a substantial interference with his physical or psychological integrity or with the integrity of the justice system. He sought to do so by claiming that the police used excessive force in arresting him.

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, 2010 SCC 6, [2010] 1 S.C.R. 206.

(R. v. Pan (2012), 2012 ONCA 581, 292 C.C.C. (3d) 440 (Ont. C.A.) at paras. 45, 47)

Few cases appear in Canadian jurisprudence where a stay has been imposed as a remedy specifically for police brutality. But there have been some. I refer to cases such as R. v. Gladue, [1993] A.J. No. 1045 (Prov. Ct., Crim. Div.); R. v. Spannier, [1996] B.C.J. No. 2525 (B.C.S.C.), R. v. Murphy, 2001 CanLII 358 (SK PC), [2001] CarswellSask 613 (Prov. Ct.); R. v. Wiscombe, 2003 BCPC 418, [2003] B.C.J. No. 2858 (Prov. Ct.); R. v. Markowska, 2004 ONCJ 332, [2004] O.J. No. 5153 (O.C.J.); R. v. Fryingpan, 2005 ABPC 28, [2005] A.J. No. 102 (Prov. Ct., Crim. Div.); R. v. Cheddie, [2006] O.J. No. 1585 (S.C.J.); R. v. Merrick, 2007 CarswellOnt 3855 (O.C.J.).

(R. v. Tran, 2010 ONCA 471, at para. 90)

Section 7 of the Charter provides that everyone has the right to life and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The alleged use of excessive force by a

police officer in the exercise of the police power of the state can engage s. 7 if the interference with the person's physical or psychological integrity rises to the level of a threat to the person's life or security as contemplated under s. 7: Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 SCR 519; Nasogaluak, supra, at para 38.

(R. v. Davis, 2013 ABCA 15, at para. 71

per Fraser C.J.A. dissenting in the result)

[95] The scope of abuse of process and s. 7 Charter breaches and the circumstances of the appropriateness of a stay of proceedings as a remedy therefor is well known in our jurisprudence: R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411.

[96] A stay of proceedings may, depending on the totality of the circumstances, be a just and appropriate remedy for an established s. 7 Charter breach involving excessive police force against an arrestee:

…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…

(Bellusci, at para. 31)

This discretion [to enter a stay] is to be exercised in exceptional circumstances. It may be exercised even where abusive police conduct does not affect trial fairness if the abuse is so "egregious that the mere fact of going forward in the light of it will be offensive". In those exceptional circumstances, a stay under s. 24(1) is an "appropriate and just" remedy: see Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391; R. v. Regan.

(Pan, at para. 49)

The serious nature of the charges in question, the absence of trial fairness issues, and the nature of the injuries inflicted [by the police] are all important factors in the balancing exercise that leads to the grant or refusal of a stay of proceedings.

(R. v. Singh, 2013 ONCA 750, at para. 42)

Realistically, there were only two [options] - to reduce the sentence otherwise considered fit in the circumstances or to stay the proceedings.

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. Not to do so would be to leave the impression that it tacitly approves of it. The granting of a stay of proceedings affirms the fundamental values of our society and ensures that the rights under the Charter are not, in substance, meaningless.

(Tran, at paras. 70, 106)

We note that if the police use excessive force in apprehending a person, and it results in a Charter breach, then the remedies available include a stay in extreme and extraordinary situations: R. v. Walcott (2008), 2008 CanLII 11374 (ON SC), 57 C.R. (6th) 223 (Ont SCJ). Alternatively, a remedy may be given at the sentencing stage (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206), or the misconduct may give rise to an award of damages (Crampton v. Walton, 2005 ABCA 81, 363 A.R. 216).

(Davis, at para. 41 per O’Brien and McDonald JJ.A.)

[97] Judicial review of the use of force by the police in the context of an arrest requires an assessment of the reasonableness of the forcible arrest in “all the circumstances”: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at paras. 74-6; see also R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 83 (“Looking at the totality of the evidence through the lens of an officer with training and field experience in…”); R. v. Canada (Royal Canadian Mounted Police) [Bottrell] (1981), 1981 CanLII 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A), at p. 218 (“It is the belief of the police officer in the light of all the circumstances that is important”); Laufers v. Toronto (Metropolitan) Police Force et al., [1992] O.J. No. 2222 (Div. Ct.), at p. 21 (“Having regard to all the circumstances as they existed at the time the force was used…”).

[98] Apart from the interpretive caution to consider all the circumstances faced by the police, a reviewing court must guard against the tendency to over-reliance upon reflective hindsight:

It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.

(R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 24)

The point is: officers have a duty to protect and a right to their own safety. Assessing whether belligerent and intoxicated persons might harm other members of the household or might take out their anger against the officers is not governed by clearly defined rules. It is an exercise in discretion and judgment, often guided by experience. Second-guessing is not helpful. As Cromwell J. explained in Cornell, judges who review the decisions of officers should be slow to intervene on the basis of hindsight (at para. 24)…

(R. v. Alexson, 2015 MBCA 5, at para. 20)

…the immediate decisions a police officer makes in the course of duty are not assessed through the "lens of hindsight”…

(Crampton v. Walton (2005), 2005 ABCA 81, 194 C.C.C. (3d) 207 (Alta.C.A.), at para. 45)

…his conclusion was inappropriately based, at least in part, on hindsight…

(Webster v. Edmonton (City) Police Service, 2007 ABCA 23, at para. 28)

[99] A critical contextual circumstance for many arrests is the dynamic and fluid nature of an apprehension with the need for rapid, on-the-spot decisions by a police constable:

A certain amount of latitude is permitted to police officers who are under a duty to act and must often react in difficult and exigent circumstances.

(Asante-Mensah, at para. 73)

[measures] reasonably necessary to eliminate threats to the safety of the public or the police …will generally be conducted by the police as a reactionary measure... they will generally be unplanned, as they will be carried out in response to dangerous situations created by individuals, to which the police must react "on the sudden".

(MacDonald, at para. 32 per LeBel J.)

…police officers put their lives and safety at risk in order to preserve and protect the lives and safety of others…[in] potentially dangerous situations…

(MacDonald, at para. 64 per Moldaver and Wagner JJ.)

The justifiability of the officers' conduct must always be measured against the unpredictability of the situation they encounter and the realization that volatile circumstances require them to make quick decisions…

(Alexson, at para. 20)

The police are often placed in situations in which they must make difficult decisions quickly, and are to be afforded some latitude for the choices they make. See R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3 at para. 73. Courts recognize that law enforcement is dangerous; no one wants police officers to compromise their safety.

Police officers act in dangerous and unpredictable circumstances.

(Crampton, at paras. 22, 44)

In this case, I am concerned with the police interest in protecting the safety of those at the scene of the arrest. This interest is often the most compelling concern at an arrest scene and is one which must be addressed immediately. In deciding whether the police were justified in taking steps to ensure their safety, the realities of the arrest situation must be acknowledged. Often, and this case is a good example, the atmosphere at the scene of an arrest is a volatile one and the police must expect the unexpected. The price paid if inadequate measures are taken to secure the scene of an arrest can be very high indeed. Just as it is wrong to engage in ex post facto justifications of police conduct, it is equally wrong to ignore the realities of the situations in which police officers must make these decisions.

In my opinion, one cannot ask the police to place themselves in potentially dangerous situations in order to effect an arrest without, at the same time, acknowledging their authority to take reasonable steps to protect themselves from the dangers to which they are exposed. If the police cannot act to protect themselves and others when making an arrest, they will not make arrests where any danger exists and law enforcement will be significantly compromised.

(R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 117 C.C.C. (3d) 193

(Ont. C.A.), at paras. 44-5, notice of discontinuance

filed [1997] S.C.C.A. No. 571)

[100] It may be, in a given case, that inconsistencies between officers’ evidence regarding a use-of-force situation are the result of the intensity and stress of fear, danger and unfolding events: see R. v. Boston, 2013 ONCA 498, at para. 13; R. v. Pompeo, 2014 BCCA 317, at para. 45.

[101] “Police officers will be exempt from liability “if they use no more force than is necessary having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves””: Webster, at para. 26. This approach is codified by section 25 of the Criminal Code which has been described as “a safe harbour from liability for those who are required to enforce the law”: Crampton, at para. 22. Sections 25(1)(b) and (3)(4) read:

25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(b) as a peace officer…

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.

(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if

(a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;

(b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant;

(c) the person to be arrested takes flight to avoid arrest;

(d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and

(e) the flight cannot be prevented by reasonable means in a less violent manner.

[102] In the Nasogaluak case, at para. 34, the Court reviewed the scope of s. 25:

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

[103] Over time, the employ of force by a peace officer in the lawful discharge of his or her duties has, through the experience of the courts with specific fact situations, come to be described with these features:

(1) given the need to be mindful of abuses of power, and the priority to be afforded citizens’ Charter rights, it is accepted that “…police officers do not have an unlimited power to inflict harm on a person in the course of their duties” (Nasogaluak, at para. 32) and “s. 25(1) is not an absolute waiver of liability, permitting officers to act in any manner they see fit”: Crampton, at para. 22

(2) the authority to use force implies a degree of discretion in a police officer and, in a particular case, a permissible range of response which may be accepted as reasonable:

They [the police] cannot be expected to measure in advance with nuanced precision the amount of force the situation will require…

(Cornell, at para. 24)

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 1981 CanLII 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

(Nasogaluak, at para. 35)

While considerable force was used causing considerable pain, it has been said that in such a situation, the officer “could not be expected to measure the force used with exactitude”…

(R. v. Mulligan (2000), 142 C.C.C. (3d)

14 (Ont. C.A.), at para. 41)

Police officers are not expected to measure the precise amount of force the situation requires…

(Crampton, at para. 45)

(3) accordingly, where the police act within a reasonable range of forcible response, they will not be denied the protection of s. 25(1) of the Code “if they fail to use the least amount of force that would achieve the desired result”: Crampton, at para. 45; Castro, at para. 38; Puricelli, at para. 43; Chartier v. Greaves, [2001] O.J. No. 634 (S.C.), at para. 64; Levesque v. Sudbury Regional Police Force, [1992] O.J. No. 512 (Gen. Div.), at para. 17

(4) because police actions are not judged against a standard of perfection (Nasogaluak, at para. 35), “[t]he police are entitled to be wrong but they must act reasonably” and therefore “…the police need not demonstrate the correct decision was made, but that the decision was made based on reasonable grounds on the circumstances known at the time (Crampton, at paras. 22, 40) – in effect, some allowance is justifiably afforded “for misjudging the degree of force because of the exigency of the moment”: Webster, at para. 31; Puricelli, at paras. 42, 45

(5) by extension, in light of the accepted proposition that a range of reasonable force response exists in a given set of circumstances, a description of what the police might have done differently “may well run afoul of the discretionary allowance for police action”: R. v. Mackay, 2012 ONCA 671, at para. 28

(6) “[t]he police officer cannot be deemed in breach of section 25(3) of the Code merely because in the final result grievous bodily harm resulted, unless he intended that result”: Bottrell, at p. 218.

[104] In most proceedings involving allegations of police brutality or excessive force, the court hears evidence from the complainant and one or more subject officers. In some cases, not the present trial, the trier of fact also receives helpful information from other sources such as:

(1) expert witnesses respecting police training and the use of force (see for example: R. v. Turpin (2011), 2011 ONCA 193, 272 C.C.C. (3d) 340 (Ont. C.A.); R. v. Remus, 2014 ONCA 914; R. v. Pompeo; Laufers v. Toronto…; R. v. McGilly, 2014 ONCJ 651; see also the observations in R. v. Cavanagh, 2014 ONCA 251, at para. 4)

(2) police Use of Force Reports or Injury Reports (see for example: Laufers v. Toronto…; R. v. Eyo, 2012 ONSC 3634; Castro v. Monteiro, 2012 ONSC 6907).

[105] Accepting that in making a forcible arrest the police do not have an unbridled or unrestrained power to use force, and certainly no authority whatsoever to use force as a form of pre-custody, extrajudicial punishment, judicial review of “the sometimes hazy border between excessive and acceptable force” (Aipperspach v. McInerney, USCA 8th Cir. (Sept. 5, 2014; No. 13-2942)), looks to the reasonable officer in similar circumstances to those faced by the subject officer. Accordingly, this modified objective test (Nasogaluak, at para. 34) takes account of not only the external conditions including urgency and the imminence of the threat, the risk posed by the threat, the time to react, the unknowns and limited information available (Hill, at para. 73), but also such factors as the knowledge, training and experience of the officer: MacKenzie, at paras. 61-4; see also Plumhoff v. Rickard, 572 U.S. ___ (2014) (“Respondent’s excessive–force argument requires analyzing the totality of the circumstances from the perspective” of “a reasonable officer on the scene …”).

Fact–Finding In This Case

[106] Counsel were in agreement that the applicant has the burden of establishing, on a balance of probabilities, an abuse of process or a breach of his s. 7 Charter rights. Credibility determinations were described as central to the fact-finding function.

[107] There is no dispute that shortly after attempting to rob a store with the threat of detonating a bomb, Mr. DaCosta was seriously injured when he was kicked to the ground by a police officer in the course of an arrest. It was conceded that the police had reasonable grounds to arrest the applicant.

[108] Shortly stated, Mr. DaCosta’s evidence, on consideration of the entire record of the proceedings, cannot be accepted. In particular, his evidence is rejected, and the police witnesses’ evidence is accepted, on the issue as to whether, when the thrust kick was administered, the applicant was engaged in a low-risk act of surrendering.

[109] Police witnesses are not presumed to be credible simply on account of their status as peace officers. That said, police officers frequently have the benefit of contemporaneous notes and are trained observors. At a point in his testimony, Mr. DaCosta stated: “my memory since then has just been not – not the greatest obviously.”

[110] An important aspect of the circumstances of December 16, 2011 is the danger presented by Mr. DaCosta. In broad daylight, the applicant, with his head covered and wearing dark glasses, aggressively attempted to rob a Cash Store by producing what was represented to be a bomb and threatening to trigger the explosive if his demands were not met. The store proprietor, despite being panicked and terrorized, called 911.

[111] Constable English, an officer with about 3½ years’ experience, was dispatched to the scene of the robbery in progress. He took the assignment with siren on and raced to the scene. He had heard radio information about a bomb with a timer. On arrival at the location of the victim establishment, the constable found the complainant in a form of hot pursuit which was turned over to him. Constable English made a u-turn on busy Queen Street, left his cruiser in a live lane of traffic and prepared to chase and subdue the suspect escaping through a field to the north. It was 2:41 p.m. The young officer was aware that back-up was on route. He did not know where the bomb was. He began a foot-pursuit. Public safety and apprehension of the suspect, believed to be armed and dangerous, were critical.

[112] It would all be over in less than a minute.

[113] The witnesses, English, Newark and Brown described the applicant’s pace as faster than the applicant and Mr. Brahmbhatt. While no precise finding of the pace can be made on this matter informed by a witness’ subjective and locational perceptions, the weight of the persuasive evidence is that the applicant was moving quickly away from the robbery scene.

[114] Two things are clear. The applicant, even on his own evidence, was in the process of making good his escape. It was his intention not to be caught and, to his recall, he was going as fast as he could. And, on the evidence of the officers and Brahmbhatt, accepted by the court, the applicant continued his course north from Queen Street, ignoring multiple and audible police commands to stop and go to the ground. Both constables drew their firearms.

[115] There was no snow in the field as claimed by the applicant. The applicant’s assertion that he complied with police commands by stopping and raising his hands is simply not credible. Constables English and Newark observed no such surrender. If the applicant had raised his hands, such action would be easily visible. Brahmbhatt and Brown did not report seeing such behaviour on the applicant’s part.

[116] The circumstances were fluid. It does not appear that either English or Newark were explosives experts. The radio report spoke of a bomb with a timer. The police officers observed the applicant with what appeared to be a manual detonator.

[117] The applicant’s evidence regarding his separation from the detonator was confusing and inconsistent. How, on his accounts, the detonator’s wire wound around his wrist became unravelled is unclear. He variously testified that the device was discarded soon after entering the field, and, that it was only 8 to 10 feet away when, much further into the field, he was arrested. The applicant variously testified that he let go of the detonator before hearing any police command, and, that he released the device after hearing a police command. Both constables observed the detonator in the applicant’s grasp a long distance into the field after many unheeded commands.

[118] These elements of the applicant’s version of events, that he discarded the detonator early into the field before hearing any police commands, that he raised his hands, as well as his evidence that the bomb remained in the Cash Store, an assertion the court rejects on the evidence, were transparently and falsely designed to minimize the risk he posed immediately prior to the kick.

[119] I find as a fact that Constable English’s account of events immediately prior to his delivery of the thrust kick, summarized above at paras. 41-46, to be more credible than the version advanced by the applicant.

[120] Only seconds prior to the kick, the appellant had possession of the detonator which he put on the ground. Rather than getting on the ground as directed, yet again the applicant stood up and moved, even if only slightly, into the short space between him and the constable. English’s memory on this point, not recorded in his notes, is confirmed by Newark. Where was the bomb? Did the suspect remain armed and dangerous? In a split second, Constable English elected not to shoot the applicant but to enforce his unheeded command to go to the ground by kicking the suspect with a take-down manoeuvre he had been trained to employ.

[121] Although Constable Newark described a sequence of events at odds with Constable English, a version with effectively no gap between the suspect turning toward English and delivery of the thrust kick (not unlike the reported observations of Brahmbhatt), and no utterances by the suspect, that witness did note that the applicant stepped in Constable English’s direction once he turned. Constable Newark’s account is not easily reconcilable with that provided by Constable English. Clearly, there was no collusion between the officers in terms of arranging their accounts of what transpired. I did not find Newark to be a dishonest witness. It seems that his evidence is less reliable, however, perhaps because of a different angle of observation, the stress and speed at which events unfolded, and an inaccurate filling-in of gaps between actual memories of what happened.

[122] I find that in the split second before the kick, the applicant did not seek to explain that he was physically unable to get on the ground. Constable English did not hear any such statement. Nor did Constable Newark. The evidence as to the applicant’s physical incapacity to get down was not particularly compelling. Even the applicant’s re-examination version of what he claims he said, “I can’t”, would be sufficiently ambiguous as to be interpreted as persisting resistance.

[123] In the absence of expert or other evidence to the contrary, it is accepted that the kick was a sanctioned option, in the sense of a legitimate use-of-force measure for close-in apprehension of a dangerous suspect.

[124] It is apparent that Constable English, as discussed at para. 46 above, quickly processed the limited information available to him, evaluated the level of ongoing risk, and eliminated from his response range doing nothing, shooting the suspect, or taking the time to reach for a different use-of-force option from his equipment belt.

[125] The officer’s split-second decision made in good faith, on his account, was designed to put the suspect to the ground to facilitate immediate and safe control by the police and the implementation of custody. I am satisfied on the evidence that the officer did not intend to punish the suspect or to cause him grievous harm. There was one application of force only – non-lethal force. Unfortunately, the unintended consequence of injury resulted. On an objective assessment, in the rapidly unfolding, unpredictable and dynamic situation, the use-of-force option employed by Constable English and the degree of force with which it was administered, based on the circumstances he faced and the information at his disposal, was not momentary over-reacting or an unconstrained “letting loose” but action which fell within the range of response of a reasonable officer similarly situated. The court, on the facts accepted, is in no position to second-guess the peace officer’s conduct.

[126] It is accepted, as described by the applicant and Constable English that once the suspect landed on the ground he was rolled out to his stomach to facilitate handcuffing to the rear. The applicant’s act of having his hands under his body, reasonably interpreted by the officers as active resistance, was conduct very likely animated by the applicant holding the area of pain in his chest and not intentional obstruction of the police.

[127] The applicant’s claim that a police officer pressed him to the ground with a knee on his back, causing further pain, is rejected. This too is an unsupported embellishment. Constables English and Newark testified that this did not occur. Detective Sheridan did not see this occur. There is no evidence suggesting that the police were trained to employ such a technique.

[128] While the evidence of the applicant and the on-scene police officers is not necessarily consistent as to precisely when, following handcuffing, the applicant complained of pain, and in what terms, it is clear that immediate medical attention was extended to the arrested suspect when an ambulance was summoned to the scene and he was transported to a hospital.

[129] In the result, on a consideration of the totality of the exigent and other circumstances, and applying the modified objective analysis to Constable English’s use of force, the applicant has failed to establish that the force was excessive – to the contrary, the force was necessary, reasonable and proportionate in all the circumstances.

CONCLUSION

[130] The application to stay the entry of a conviction is dismissed.

Hill J.

DATE: March 12, 2015

CITATION: R. v. DaCosta 2015 ONSC 1586

COURT FILE NO.: CRIMJ(P)131/13

DATE: 2015 03 12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Julio DaCosta

COUNSEL: A. Falls, for the Crown

L. Ben-Eliezer, for the Defence

RULING

Hill J.

DATE: March 12, 2015