R. v. Moshood Adeoson, 2015 ONSC 239

COURT FILE NO.: CR-12-90000569

DATE: 20150112

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Moshood Adeoson

BEFORE: Mr. Justice B. O’Marra

COUNSEL: S. Siew, Counsel for the Crown

C. Murphy, Counsel for Moshood Adeoson

HEARD: September 29, 30, October 1, 2, and 7, 2014

CHARTER RULING

OVERVIEW OF THE ALLEGATIONS

[1] The Crown alleges that the accused was arrested immediately after he sold cocaine to an undercover police officer. The accused tried to flee and resisted arrest. He was finally subdued by several officers and handcuffed. A search incident to arrest produced $120.00 in Canadian currency. This money was later identified as “buy money” provided to the undercover officer to purchase the drugs.

THE CHARTER APPLICATION

[2] The applicant claims there were violations of ss. 7 and 8 of the Charter. The breaches related to the use of excessive force and the unreasonable conduct of the search. The applicant sought exclusion of the evidence obtained pursuant to s. 24(2).

[3] On October 7, 2014 I dismissed the applications. These are my reasons.

POSITION OF THE PARTIES

[4] The Charter applications in this case are premised on allegations that the police used excessive force in the arrest and search of Mr. Adeoson. The specific Charter rights referred to are as follows:

i) s. 7 – the unjustified and excessive force used was a substantial interference with Mr. Adeoson’s physical and psychological integrity and security of the person

ii) s. 8 – the search of Mr. Adeoson was conducted in an unreasonable manner

[5] The Crown submits that the force used by the police was reasonable in the particular circumstances and there was no breach of either s. 7 or 8 of the Charter. In the alternative the Crown submits that if a breach has been made out there is an insufficient nexus between the breach and the evidence obtained. Thus there should not be an exclusion of evidence pursuant to s. 24(2) of the Charter.

EVIDENCE OF MOSHOOD ADEOSON

[6] Late in the evening of July 18th, 2010 he received a telephone call from a woman that he now knows to be an undercover police officer with the Toronto Police Service.

[7] Officer Erin Hanlon provided a false name and asked him if he could supply her with an “eight ball” (3.5 grams) of cocaine. He was at a noisy bar when he received her call so he asked her to send a text message. Officer Hanlon sent a text repeating her request for him to provide her with an eight ball of cocaine. He texted her in reply to the effect that he did not have that much with him. Officer Hanlon asked if he could provide her with “a half”, which he understood to mean 1.75 grams of cocaine.

[8] He further communicated with Officer Hanlon and advised her that he was at the Wide Open Bar which is located on Spadina Avenue in Toronto.

[9] At approximately 1:27 a.m. Officer Hanlon called him to say she was out front of the bar. He had earlier asked her to come into the bar for a drink. She told him that she could not come into the bar so he walked out to her car which was parked directly in front. He believed at that time that Officer Hanlon was a woman that he had met previously. He went to the car to convince her to come into the bar to have a drink with him. Another reason for him going to speak to her outside was to advise her that he was unable to obtain the amount of cocaine that she had requested.

[10] He entered the passenger side of Officer Hanlon’s vehicle expecting that he would recognize the driver. However, when he sat in the passenger seat he did not recognize her. He was about to ask her who she was when the passenger door of the vehicle swung open and a large, screaming male wearing street clothes grabbed him with both hands and pulled him out of the vehicle. He did not know that the male was a police officer. He thought that the person (Officer Wannamaker) was either the boyfriend of Officer Hanlon or a biker attempting to rob him. With the male still holding onto him he took one or two steps away at which point he was tackled and slammed to the pavement by at least three additional males. Once he was on the ground the men who were on top of him started yelling that they were police officers and that he was under arrest for sexual assault. He was weighed down by the four or five police officers and was not moving or resisting arrest in any fashion. Nevertheless, while he was on the pavement, the police officers punched him about the body and face. He estimated that he was punched between twenty and thirty times in the ribs and face by the officers. He was also kneed in the back repeatedly.

[11] As a result of the punches he suffered cuts to his mouth and forehead and there was a pool of blood on the pavement approximately the size of a small dinner plate.

[12] While he was on the pavement one of the officers handcuffed him to the rear and then lifted him up and leaned him against the trunk of a motor vehicle. At that point an officer searched the back right pocket of his pants and pulled out a small baggy containing approximately 0.3 grams of powdered cocaine with a value of approximately $30.00. The officer held up the baggy of cocaine and showed it to the other officers. He also removed approximately $500.00 cash taken from Adeoson’s pocket.

[13] Two uniformed officers took him to the station. One of the transporting officers advised the Staff Sergeant after arrival that he had been arrested for sexual assault and trafficking cocaine. There was no mention that he had been arrested for assaulting a peace officer. While he was being booked, the Staff Sergeant made reference to injuries to his face and the presence of blood. The booking video was filed as an exhibit at trial.

[14] Prior to leaving 14 Division in the morning of July 19th, 2010 photos of his injuries were taken. He understands that the Toronto Police Service prepared an Injury Report. That this report was subsequently destroyed. On the Record of Arrest there is reference to “a cut lip above left eye”.

[15] He was not aware that he had been charged with assaulting a peace officer until he was brought into bail court on July 19th, 2010.

[16] At no time did he either provide Officer Hanlon with cocaine nor did he receive any money from her. Further, he at no time assaulted or attempted to assault any member of the Toronto Police Service.

EVIDENCE OF OFFICER ERIN HANLON

[17] Officer Hanlon was the undercover police officer who dealt with Mr. Adeoson in this matter. She had been with the Toronto Police Service for some ten and a half years. At the briefing she was advised that Mr. Adeoson was arrestable for sexual assault and that he had an alias of “Roman Steel”. On July 18, 2010 at about 11:46 p.m., she called a phone number that she understood was Mr. Adeoson’s. She provided a false name and asked him if he was around. Mr. Adeoson asked her what she needed and she replied “an 8 ball” which she understood to be one-eighth of an ounce of cocaine. Mr. Adeoson said that he did not want to speak on the phone and suggested that she text him. She did so and again indicated that she needed an 8 ball and asked if he could do it. At approximately 12:08 a.m., she received a reply. Mr. Adeoson said he did not have enough with him. She then texted him and asked if he could do a half, meaning 1/16th of an ounce of cocaine. Mr. Adeoson replied that he could and that he was at “Tattoo”. She understood that to be either a bar or a tattoo shop. There was further communication by text between Officer Hanlon and Mr. Adeoson and at 12:49 a.m., Mr. Adeoson called her on the phone. He said he was at the Wide Open Bar which is located at Richmond and Spadina Avenue in Toronto. They agreed on a price of $120 for a half-ball of cocaine. She knew that was the right price to pay for that quantity of drug. Officer Hanlon does not recall that Mr. Adeoson asked her to come into the bar at any time. At the briefing, she had been issued “buy money” in the amount of $120.

[18] While she was en route to the Wide Open Bar, Mr. Adeoson called her again and she said she was almost there. At 1:27 a.m. she was on scene and called the accused by phone to say that she had arrived. Shortly thereafter, Mr. Adeoson came out of the bar. She waved him to enter and he got into the front passenger seat. He called her by her undercover name and she called him Roman. At this stage, Mr. Adeoson handed her a small yellow zip-lock bag with what appeared to be cocaine. She thought it looked light. She expected a greater quantity to be in the bag. She agreed in cross-examination that the amount produced was less than she had previously agreed to purchase.

[19] Officer Hanlon put the cocaine into her pocket and told Mr. Adeoson that “your shit better be good”. He replied that it was the best. She gave him $120 of the buy money. She observed Mr. Adeoson put the money into his pocket. She then gave the signal to the other members of the surveillance team that the transaction was complete. She asked Mr. Adeoson if she could call him again and he said yes. It was at this stage that the back-up team became involved and proceeded to arrest Mr. Adeoson outside the car. Her best estimate is that she and Mr. Adeoson were in her car for up to 40 seconds before she gave the signal that the transaction was complete.

[20] Officer Hanlon observed Officer Wannamaker open the front passenger door. He was not wearing a police vest but she could see his police badge. She heard loud shouts of “police” and “arrest”. Mr. Adeoson had turned to look at Officer Wannamaker and then he leaned back towards Officer Hanlon. He then stepped out of the vehicle and pushed Wannamaker. She observed a brief struggle at the door and heard voices saying “police – stop resisting – put your hands behind your back”.

[21] Officer Hanlon stayed in the car. It was her understanding that in undercover drug transactions the arrest must be made quickly in dynamic fashion right after the deal has been done. The target is to be taken to the ground and handcuffed. The reasons for this include a concern that the suspect may be armed, or may attempt to dispose of the evidence.

[22] Officer Hanlon indicates that she at no time got out of the vehicle after Mr. Adeoson had entered. She drove directly to 14 Division with the drugs that she had obtained from Mr. Adeoson. She was followed to the station by another officer in another car since she was transporting drugs and did not have her police badge or weapon.

[23] She did not observe the struggle that occurred outside of her car. At the debrief later at the station she turned the drugs over to Officer Parmar. She also “proofed” a cell phone that had been recovered at the scene of the arrest and was found to be the phone that Mr. Adeoson had communicated with her in the hours leading up to the drug transaction.

[24] Officer Hanlon testified that she had been involved in a prior and unrelated drug operation earlier that evening that also involved Officer Parmar. That case included a situation where the suspect was in a vehicle and backed up and struck a police vehicle. Officer Parmar was the undercover officer. She does not recall that Parmar became involved in the arrest in that prior incident. She did not recall seeing any injury to Parmar’s hand or that Parmar told her that he had punched the vehicle in the course of that prior incident. When she handed the drugs that she had obtained from Mr. Adeoson to Parmar at the station she did not observe any injuries to Parmar’s hand.

EVIDENCE OF OFFICER WANNAMAKER

[25] He has been a member of the Toronto Police Service since April of 2002. He had attended the briefing before the incident involving Mr. Adeoson and had been advised that Officer Hanlon would be attending in the area of the Wide Open Bar near Spadina in regard to an anticipated drug deal. He was to be part of the surveillance team that would cover this transaction and ultimately make the arrest of Mr. Adeoson if drugs were sold to the undercover officer. He knew that Mr. Adeoson was also a suspect in an unrelated sexual assault incident.

[26] Officer Wannamaker and the crew were in the area of the Wide Open Bar at about 1:20 a.m. At approximately 1:27 a.m., he observed Mr. Adeoson to come out of the bar and walk towards the undercover car that contained Officer Hanlon. Mr. Adeoson entered the front passenger side of the vehicle. At approximately 1:28 the undercover officer gave the “deal done” signal. Wannamaker said he had his badge around his neck and under his shirt. The supervising officer, Sergeant Oberfrank, gave the signal to take down Mr. Adeoson. Wannamaker approached the passenger side of the vehicle and opened the door. He saw Mr. Adeoson looking at Officer Hanlon. Wannamaker grabbed Mr. Adeoson by the right arm and told Mr. Adeoson that he was under arrest for trafficking in cocaine. Wannamaker was yelling and at this point his badge was outside of his shirt and held at eye level towards Mr. Adeoson. His recollection is that Mr. Adeoson looked right at the police badge.

[27] Mr. Adeoson pulled his right arm quickly away from Wannamaker as he got out of the vehicle. Officer Wannamaker tried to pin Mr. Adeoson against the car. Wannamaker reached out to grab Mr. Adeoson again. He does not recall that he ripped Mr. Adeoson’s shirt. Mr. Adeoson pushed him back with two hands. Wannamaker tried to grab Mr. Adeoson again and Mr. Adeoson pushed him and fled from the car. There was a short chase after which Officer Parmar grabbed Mr. Adeoson a few steps away from the vehicle. Wannamaker testified that there could have been others involved in tackling Mr. Adeoson. He believes that Mr. Adeoson was already on the ground when he got there.

[28] Mr. Adeoson struggled as he was on the ground. Wannamaker assisted the other officers. They were eventually able to handcuff Mr. Adeoson to the rear. Mr. Adeoson was face down on the pavement. The officers involved in the arrest were Wannamaker, Parmar, McNab and Oberfrank. As Mr. Adeoson was on the ground, Wannamaker says that it is possible he had his knee in his back. He was not trying to cause harm but rather simply trying to control Mr. Adeoson.

[29] Wannamaker estimated that it took some 20 to 30 seconds to get the cuffs on Mr. Adeoson. Adeoson struggled on the ground and would not give his hands behind his back. Wannamaker denies that he at any time punched Mr. Adeoson. It took four officers to control and ultimately get the cuffs on Mr. Adeoson.

[30] When Mr. Adeoson was finally brought to his feet, Officer Wannamaker did not notice injuries to him but he did see some blood on the ground where Mr. Adeoson’s face or head had been. This was a small amount of blood and if he had seen injuries at the time he would have noted them later in his notebook.

[31] Sometime after the arrest Officer Wannamaker prepared an Injury Report in regard to Mr. Adeoson. He was not aware until sometime after that the report was subsequently destroyed by Toronto Police Service. He could not recall exactly what was in the report. Such reports are mandatory if there are injuries caused to a suspect in the course of an arrest. He cannot recall who told him about the injuries to Mr. Adeoson that led him to prepare an Injury Report.

[32] Wannamaker recalled that Officer Parmar had been involved in an earlier undercover drug buy. Parmar sustained a hand injury in the course of that incident. There was skin peeling back of his knuckle area. That incident involved a motor vehicle accident and a struggle with a suspect. It was pointed out to Wannamaker that at the preliminary hearing he had testified that he knew exactly how Parmar’s injury had occurred. However, at trial he could not say or recall how that injury was sustained. He also could not recall if the prior unrelated undercover case involving Parmar also included $120 of buy money.

[33] Officer Wannamaker could not recall if he had been told that there would be a charge of assaulting a police officer before Mr. Adeoson was transported from the scene. He did not tell the transporting officers that he had been assaulted. He understood that Mr. Adeoson had been arrested for a drug charge and not the sexual assault allegation. He believes it was Parmar who advised Mr. Adeoson of his right to counsel. Parmar’s role in this investigation was to be the central note-taker as well as part of the surveillance team and ultimately the take-down team after the drug transaction had occurred.

[34] At the debriefing he became aware that Mr. Adeoson had displayed injuries and had been asked about them by the sergeant at the booking desk.

[35] Officer Wannamaker did not hear any racial terms directed towards Mr. Adeoson at any time during the course of this incident.

[36] Officer Wannamaker also confirmed that in an undercover drug transaction, the undercover officer is generally not to be involved in the arrest of the suspect since that may lead to an escalation of violence if the suspect believes that he is being robbed rather than being dealt with by the police.

EVIDENCE OF OFFICER DAN McNAB

[37] Officer McNab has been a member of the Toronto Police Service since December of 1998. He attended the briefing before this incident. There was information that Mr. Adeoson was wanted for a sexual assault allegation that involved the administration of a noxious substance. Officer McNab’s role was to be part of the surveillance team and potentially the arrest if the drug transaction occurred.

[38] At approximately 1:10 a.m. he was in the area of Spadina and Richmond along with other plainclothes officers. He had his badge on a chain around his neck inside his shirt. He was not wearing a police vest. He observed the undercover car and saw Mr. Adeoson leave a nearby building and approach the car. Mr. Adeoson opened the door and got into the front passenger seat. Within 2 or 3 minutes, Officer McNab became aware of the takedown signal. He got out of his car. As he approached the undercover car he saw that the front passenger door was wide open. Officer Wannamaker had his back to McNab and was against the hinge of the door. McNab observed Mr. Adeoson to push against Wannamaker. Officer Parmar now was behind Mr. Adeoson who was pushing with his back against Parmar. Parmar seemed to have his hands on Mr. Adeoson. McNab saw Mr. Adeoson break free of Parmar and Wannamaker and proceed onto the sidewalk and run a few feet. McNab jumped on Mr. Adeoson’s shoulder. This caused both of them to fall onto the sidewalk. McNab had the badge on the outside of his shirt. His distinct recollection is that he tackled Mr. Adeoson by himself and that Wannamaker and Parmar were behind him when this happened.

[39] McNab did not hear Parmar or Wannamaker identify themselves as police officers and he did not verbally identify himself as a police officer. Mr. Adeoson was the first person to hit the ground as they fell. McNab said that he was almost in a piggy-back position on Mr. Adeoson’s shoulders before he came to the ground. He described Mr. Adeoson as showing “active resistance”. He was physically resisting being controlled by the police. Mr. Adeoson had pushed Wannamaker then ran. He was not following the commands of officers to stop. As he was on the ground, Mr. Adeoson kept his arms underneath him to prevent the officers from handcuffing him behind his back. The officers were trying to pull his arms up and back. There were lots of hands involved and at one stage in the struggle someone grabbed McNab’s wrist and was about to cuff it before realizing who it was.

[40] McNab kept saying to Mr. Adeoson “give us your arms”. He described the police as using the soft technique once Mr. Adeoson was on the ground. Mr. Adeoson was showing active resistance at that stage but was not being assaultive towards the officer. Rather he was simply resisting the efforts of the officers to put cuffs on him behind his back.

[41] The whole incident occurred very quickly. He is not sure exactly who put the cuffs on. He did not strike Mr. Adeoson at any time and he did not see a closed fist blow by any other officers. Mr. Adeoson was ultimately lifted off the ground. McNab picked up a cell phone that had apparently come out in the course of the struggle which he retained and later “proofed” at the station.

[42] McNab observed injuries to Mr. Adeoson when he was brought to his feet. There was an abrasion to the forehead as well as in the eyebrow area. In McNab’s view the injuries were “100% caused by Mr. Adeoson landing on the ground under me”. McNab felt it was rather obvious as to how these injuries were caused. He has no notes of injuries to Mr. Adeoson but observed them. Officer McNab was not aware that an injury report prepared by another officer in regard to this case had subsequently been destroyed. The record of arrest, which was prepared before the end of the shift on July 19, 2010, refers to Mr. Adeoson having sustained a cut lip and a cut above the left eye.

[43] McNab did not recall seeing any injury to Officer Parmar’s hand in the course of this incident or at the debrief afterward.

[44] He did not hear anyone at the scene arrest or charge Mr. Adeoson with assaulting a peace officer but he did observe the pushing of Officer Wannamaker by Mr. Adeoson.

[45] McNab did not hear anyone at the scene refer to Mr. Adeoson as a rapist or sex offender. McNab did not see any drugs or money seized from Mr. Adeoson.

EVIDENCE OF OFFICER JASON RECTOR

[46] He has been with the Toronto Police Service for 10 years. He attended the briefing before the dealings with Mr. Adeoson and heard information that included an outstanding charge of sexual assault. Officer Rector’s role in this case, along with Officer Hamilton, was to transport Mr. Adeoson from the scene should there be an arrest. Both Rector and Hamilton were working in uniform.

[47] Rector and Hamilton were on scene at approximately 1:15 a.m. He first observed Mr. Adeoson on the ground and plainclothes officers taking him into custody. He saw several officers on top of Mr. Adeoson and a little bit of a wrestling match. This was not what he would call a fight or a struggle. He did not see any officer with a knee in Mr. Adeoson’s back as he was on the ground. At approximately 1:38 he and Hamilton transported Mr. Adeoson to 14 Division. He observed a cut lip and blood on Mr. Adeoson.

[48] When Rector arrived with the accused at 14 Division, he learned from Officer Oberfrank that Mr. Adeoson would be charged with sexual assault and trafficking in cocaine. He was never informed that Mr. Adeoson was going to be charged with assaulting a peace officer.

[49] The booking video was filed as an exhibit on the application. That record shows Officer Rector addressing the sergeant and advising that Mr. Adeoson is charged with trafficking in cocaine and sexual assault. Rector further advised the sergeant that Mr. Adeoson had been advised of his right to counsel and understood. There is reference on the video to injuries and blood from Mr. Adeoson’s facial area. The booking sergeant makes a gesture to his own lip which appears to demonstrate where the injuries are located. There is a reference on the video to a cut near the right eye and dry blood on Mr. Adeoson’s lips. Mr. Adeoson appeared otherwise healthy and sober. It appears that his shirt was ripped.

EVIDENCE OF OFFICER MANDEEP PARMAR

[50] Officer Parmar has been with Toronto Police Service since 2003. At the briefing before the dealings with Mr. Adeoson he was advised that Mr. Adeoson was also arrestable for an alleged sexual assault. Officer Parmar’s role in this investigation was to be the central note-taker as well as part of the surveillance team and potentially the take-down or arrest team. He was in plainclothes and he had his badge and police vest on after the take-down.

[51] At 1:28 a.m. he was on scene. He had been involved in an earlier unrelated drug play where he had been the undercover officer. He did not have any of the items from that prior incident with him when he was on scene in regard to the investigation of Mr. Adeoson. Specifically, he said he did not have any drugs or buy money from the prior incident with him. At approximately 1:28 a.m. the signal was given to take down Mr. Adeoson. Parmar saw Wannamaker struggling with Mr. Adeoson near the undercover vehicle. He saw Mr. Adeoson run towards him. He tried to control him by placing his arm on Mr. Adeoson. Mr. Adeoson flung his arm away and ran past him. Parmar chased and after 5 to 10 steps, Mr. Adeoson was taken to the ground by Parmar. Wannamaker and McNab were close by. Wannamaker was beside him. He is not sure exactly where McNab was when Mr. Adeoson was taken to the ground. The arrest was for sexual assault as well as for the drug offence. Mr. Adeoson was still resisting when he was on the ground. Parmar was yelling that they were Toronto Police and that he was under arrest. There were a couple of other officers on top of him as well as Parmar.

[52] Parmar conducted a pat search and found some property, being the buy money of $120 from the front right pants pocket of Mr. Adeoson as well as $505 from a rear pocket. Officer Parmar advised Mr. Adeoson of his right to counsel with regard to the charges of sexual assault and trafficking in cocaine. Before Mr. Adeoson had been apprehended other officers were also yelling that he was under arrest and that he should stop resisting. It was Officer Parmar’s impression that Mr. Adeoson did not want to fight police. Rather, he just wanted to get away. When Mr. Adeoson was brought to his feet, Officer Parmar observed injuries to Mr. Adeoson, being an abrasion on the right or left cheek as well as a cut to the upper lip.

[53] Mr. Adeoson did not fall on his face but rather landed on his side but was eventually face down. Parmar was the only one who searched Mr. Adeoson’s pockets and located the buy money. He has no recollection and indeed denies that Oberfrank pulled out a bag of cocaine from Mr. Adeoson’s pocket.

[54] Officer Parmar was the undercover officer on the incident that occurred earlier in the shift and unrelated to Mr. Adeoson. It was during that unrelated undercover play that Parmar apparently sustained some kind of injury to his hand or knuckle area. The circumstances of that injury, and what follow-up occurred, were the subject of a detailed cross-examination on this application. It was suggested to Officer Parmar that he sustained this injury by punching Mr. Adeoson. Officer Parmar flatly denied that anything like that happened. However, his evidence regarding the circumstances of the injury to his hand and what follow-up he took in regard to it was difficult to follow and was inconsistent.

[55] In examination-in-chief, Officer Parmar indicated that he did sustain an injury to his hand in the course of the prior incident. The injury was to his knuckle area. He thought it was on his right hand. He described it as some skin coming off but only a minor scratch on the knuckle.

[56] On the prior incident after the take-down signal he observed that the vehicle containing the suspect was reversing and struck a vehicle being operated by Officer Oberfrank. Officer Parmar said that he was concerned that the suspect was going to flee so he punched the window of that vehicle. Other officers then closed in and the suspect was arrested. He said his purpose in punching the car as it drove past was to distract the suspect and prevent escape.

[57] In cross-examination he testified that this injury was only a minor scratch to the hand and was not serious enough to cause him to miss any work. He proceeded to give what can only be described as inconsistent evidence in regard to what follow-up he did in regard to the injury. He ultimately agreed that the day after the incident on July 19th he attended the hospital in regard to the injury. He acknowledged that there is a policy of the Toronto Police Service that he should file an injury report if he has sustained such while on duty. He does not recall if he did that in this case. He said he did notify Officer Oberfrank who was his supervisor.

[58] Officer Parmar testified at the preliminary hearing. He described his injury as not serious and said he did not go to the hospital. At trial he indicated that was what he remembered at the time. He says what he meant to say at the preliminary hearing was that he did not go to the hospital the same day as the incident occurred. He further said that he did not sustain or aggravate any injury in the course of the investigation of Mr. Adeoson.

[59] It was agreed between counsel on this application that in September of 2014, in preparation for the trial of this matter, Officer Parmar told the Crown that he was involved in the arrest on the first incident. On this application he says what he intended to say was that he was involved in the incident and not in the arrest. He referred to the arrest as being the actual handcuffing and right to counsel of the suspect in a given case. He acknowledged that there is a police policy that undercover officers should not be involved in the arrest of suspects on drug transactions. He acknowledged that he may have said to the Crown that he was in fact involved in the arrest on that prior case but he says that is not what he meant. He says he went to the hospital on the next day shift after the arrest of Adeoson and received some medical attention for the injury to his hand.

EVIDENCE OF OFFICER TIM OBERFRANK

[60] He recalled the prior incident where Officer Parmar was the undercover officer a few hours before the events involving Mr. Adeoson. On that prior incident, Parmar completed a drug transaction hand-to-hand while standing outside a car window. After that transaction occurred, the suspect vehicle reversed. Oberfrank then testified that Parmar did something that he should not have done – specifically he should not have become involved in any way in attempting to stop the suspect. He observed Parmar to punch the car as it moved. Obergrank believed that Parmar was trying to smash the window of the vehicle. He later spoke to Parmar. It was evident that Officer Oberfrank was unhappy with the decision that Parmar had made to punch the suspect vehicle. Oberfrank recalled seeing some swelling on Parmar’s hand as a result of the incident and that Parmar told him that his hand was sore. Oberfrank confirmed that an officer who sustains an injury on duty is supposed to file a written report regarding that injury. He is not aware of whether or not Parmar did that in this case and he is not aware whether or not Parmar sought medical treatment for his injury. In regard to the Adeoson investigation, Oberfrank conducted the briefing and provided the officers with a photograph of the suspect as well as information that he was also wanted for a sexual assault matter.

[61] Oberfrank was on-scene when he received the signal that the Adeoson transaction had occurred. He then gave the signal for the take-down. Thereafter, events unfolded very quickly. In a case such as this, the suspect is in a controlled environment and it is essential for the arrest team to swoop down on the suspect before there is time to respond. This is to minimize injury to the police or the suspect and prevent possible destruction of evidence. In effect, the police want to act and control the suspect before there is time for the target to either flee or fight, destroy evidence, or produce a weapon. The goal is to control the situation in the interests of the safety of the target, the police and the public. Quite often, this involves the target being taken to the ground and cuffed to the rear as happened in this case. Oberfrank observed Parmar, McNab and Wannamaker on top of Mr. Adeoson as he was face down on the ground. The officers were issuing tactical commands to stop resisting and put his arms behind his back so he could be cuffed. The struggle continued for a brief period of time. Oberfrank said that he never touched Mr. Adeoson himself. He was not part of the group of officers that were piling on top of Mr. Adeoson as he was on the ground. He was standing very close by. He did observe some civilian bystanders nearby and he told them to disperse. His concern was that some of them could be intoxicated, possibly be friends of the accused, and might interfere with the arrest. He directed that the uniform Officers Hamilton and Rector stand by and be prepared to transport Mr. Adeoson to the police station. Oberfrank does not recall hearing any words of arrest from the officers. Mr. Adeoson was lifted to his feet and led to a nearby car by Wannamaker and Parmar. He cannot recall seeing Mr. Adeoson being searched but he assumed that it did happen. In any event, Oberfrank himself did not do any search of Mr. Adeoson.

[62] In terms of injuries to Mr. Adeoson, he did see them but there is no reference in his notes. He pointed out that the injuries are reflected on the Record of Arrest and as well would be documented in an Injury Report. The injuries that he recalls are a laceration on the upper lip as well as over the right or left eye area. He assumed that the injuries were sustained in the course of the take-down onto the pavement by the various officers. In his view, the injuries were superficial and indicative of impact with gravel or with the ground. He did not see any officer punch Mr. Adeoson and he does not believe that that is how any of these injuries were sustained. He described the injuries as minor facial abrasions. He did not punch Mr. Adeoson. He does not recall seeing a pool of blood on the ground.

THE LAW

[63] A peace officer who is required or authorized by law to do anything in the enforcement of the law is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in suing as much force as is necessary for that purpose.

Criminal Code s. 25(1).

R. v. Nasogaluak [2010] 1 S.C.J. No. 6

[64] The Court in assessing whether the force used was excessive must take into account all of the surrounding circumstances. 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 and cannot be expected to measure the force used with exactitude.

R. v. Walcott 2009 ONCA 234, [2009] O.J. No. 1050 (S.C.J.) at paras. 23 and 24.

ANALYSIS

[65] In an undercover drug transaction the goal of the police is to overpower and handcuff the suspect as quick as possible. They do not know whether the suspect is armed or how he will react to being arrested. Any delay in exerting physical control over the suspect could have negative consequences, such as

i) an escape attempt

ii) a protracted physical struggle

iii) destruction of evidence i.e. by swallowing drugs

iv) producing a weapon

[66] There were discrepancies within the police evidence as to which officer actually took Mr. Adeoson to the ground. It is clear that Mr. Adeoson suffered facial injuries as a result of being tackled to the pavement and held down while he was handcuffed to the rear. The plainclothes officers who apprehended and arrested Mr. Adeoson claim that their badges were visible. Some of the officers testified they verbally identified themselves as police and told Mr. Adeoson to stop resisting. Mr. Adeoson claims he did not know they were police officers and that he was assaulted as he lay face down on the pavement.

[67] The interaction between the undercover police and Mr. Adeoson after the take down signal was brief, intense and dynamic. It is not surprising that there are discrepancies within the evidence. Mr. Adeoson had no basis to anticipate what was happening when an unknown man in plainclothes (Officer Wannamaker) opened the front passenger door and tries to pull him out.

[68] In the noise, physical contact and confusion as he was pulled out of the car it may well be that Mr. Adeoson did not realize he was dealing with police officers. That may reasonably explain why he resisted being controlled by them. That in turn escalated the level of force used by the police to detain and search him.

[69] It is clear that Officer Wannamaker was the first officer to interact with Mr. Adeoson after the takedown signal from Officer Hanlon. Several other officers were shortly thereafter involved in taking Mr. Adeoson to the ground and restraining him. Officers Parmar and McNab each testified that they were the initial officer to take Mr. Adeoson to the ground. I do not view this as a material discrepancy that detracts from the overall picture of several officers being involved. Mr. Adeoson testified that the events unfolded very quickly after he got out of the car. This was not a situation where the various officers can be expected to precisely detail how Mr. Adeoson was apprehended and controlled.

[70] A quantity of crack cocaine in a baggie and $120.00 were recovered by police in the course of this incident. There is a significant discrepancy on the evidence as to where the drugs and money were found.

[71] Mr. Adeoson claims that the drugs were his and that they were pulled from his pants pocket by police when he was detained outside the undercover car. He denies he sold drugs to the undercover officer.

[72] Undercover Officer Hanlon testified that the drugs were passed to her by Mr. Adeoson in the undercover car in exchange for $120.00 of “buy money”. She says that it was only after that occurred that she gave the “take down” signal that led to Officer Wannamaker approaching the front passenger door to deal with Mr. Adeoson.

[73] For valid reasons undercover officers are directed to not get involved in the actual arrest on a drug buy. There is a concern that the suspect could reasonably believe they are being robbed which could lead to an escalation of resistance.

[74] The discrepancy between the evidence of Mr. Adeoson and Officer Hanlon as to where the drugs were found is irreconcilable. On this application I am not assessing whether the Crown has proven that Mr. Adeoson trafficked in these drugs. However, on this important issue of credibility I do not accept the evidence of Mr. Adeoson. I accept the evidence of Officer Hanlon that he passed the drugs to her in the car. In reaching this conclusion I have considered the following:

1. Mr. Adeoson admits the drugs were his

2. He admits that before meeting the undercover officer they discussed a sale of cocaine to her

3. He had the drugs with him when he left the car and entered her car

4. The purpose of his meeting the undercover officer was to sell her the drugs

[75] It will be for the ultimate trier of fact to determine whether the Crown has proven the offence of trafficking. On this application I found that Mr. Adeoson was untruthful on this important issue. That causes me to view the rest of his evidence with skepticism. I accept his evidence that he may not have known that he was being apprehended by police after he left the undercover car. I also accept that he suffered facial injuries when he was tackled onto the pavement. However, I found he exaggerated the extent of force applied by the police in the course of the arrest and search.

[76] It is unfortunate and troubling that a Use of Force Report related to Mr. Adeoson’s injuries was destroyed sometime before trial. However, there were timely records made of those injuries within hours of the arrest. These included the Record of Arrest and the booking video when Mr. Adeoson was taken to 14 Division.

[77] The degree of force used by the police to obtain and arrest Mr. Adeoson was legally justified and reasonable in the circumstances. The applicant has not established a breach of s. 7.

[78] The search of Mr. Adeoson was incident to arrest for which there were clearly reasonable grounds. The actual search involved removing evidence from his pants after he was handcuffed and stood up. The cell phone was recovered on the ground after the arrest. The actual search and seizure of the buy money from his pocket was done reasonably as incident to a lawful arrest. The applicant has not demonstrated that there was a breach of s. 8 in the circumstances of the search.

RESULT

[79] Applications dismissed.

Mr. Justice B. O’Marra

Date: January 12, 2015