Overview

[1] Mr. Robinson was charged with possession of cocaine for the purpose of trafficking on January 25, 2013. He was tried by me without a jury.

[2] Mr. Rusonik, on behalf of Mr. Robinson, brought two applications pursuant to the Charter. The first is an application pursuant to s. 24(1) to stay the charge against Mr. Robinson on the basis that his rights protected by s. 7 of the Charter were violated as result of the excessive force used against him by the police. The second application, pursuant to s. 24(2) of the Charter, seeks to exclude the evidence of the drugs seized from Mr. Robinson’s vehicle because of a breach of his rights protected by s. 8 of the Charter.

[3] Mr. Rusonik indicated at the outset of the hearing of the applications that the outcome of the applications would determine the outcome of the trial. If both applications were dismissed, the court would be in a position to make a finding of guilt on the charge of possession of cocaine for the purpose of trafficking.

Evidence

[4] Some brief background is necessary to put the events of January 25, 2013 into context. Approximately one week prior to January 25, 2013, members of the Peel Regional Police Force executed a warrant at a home where a fugitive drug dealer named Cuthbert Renford was thought to be. Renford was suspected of dealing in large quantities of drugs. He had a criminal record for drug offences, had previously used many aliases, and had previously been deported from Canada. He eluded police that night. The three officers involved in the arrest of Mr. Robinson were also involved in that attempt to arrest Renford. The Toronto Sun reported Renford’s escape, and published his photograph on the front page of the paper on January 23, 2013.

[5] On January 25, 2013, Officer Garcia of Peel Police received a tip that Renford was selling drugs near an apartment building at 3830 Bathurst Street in Toronto. The tipster said that the drug sales usually happened in the evenings. The seller would drive along the back alley of the building in a small black car and meet a man from the building named David Shiller. The two men would meet for about 30 seconds and then go their separate ways.

[6] As a result of receiving this information, Peel Police officers set up surveillance of 3830 Bathurst Street in the evening hours of January 25. They saw a small black car stop in front of 3830 Bathurst Street. A man they believed to be Shiller got into the passenger side of the car. The car drove a short distance, and the passenger got out of the car at the side of the road. The police believed that a drug transaction had occurred in the car.

[7] They followed the small black car westbound on Highway 401. The car was being driven by Mr. Robinson. It was snowing heavily that night, and the roads were very slippery. Traffic was travelling slowly. Mr. Robinson exited the highway and ultimately stopped at a red light at Rexdale Boulevard and Kipling Avenue.

[8] At this point, the evidence of Mr. Robinson and the police officers about what happened diverges significantly.

Mr. Robinson’s Evidence

[9] Mr. Robinson admitted that he sold cocaine to a man outside of 3830 Bathurst Street on January 25, 2013. He testified that, following that transaction, he headed to his mother’s apartment at Kipling and Steeles Avenue. He had intended to stop at a TD Bank machine just north of Rexdale to pay a bill, and then get gas. He had separated six $100 bills from other cash he had in his pocket. When Mr. Robinson stopped at the red light at Kipling and Rexdale, two cars pulled up beside him, one on each side. The two cars turned toward each other blocking the front of his car. At the same time, he felt a car strike his car from behind, which stunned him. Mr. Robinson had the $600 in his right hand.

[10] One man exited each of the cars and pointed guns at Mr. Robinson. He immediately realized they were police officers. The officer closest to him walked toward Mr. Robinson with his gun pointed at him. He ordered Mr. Robinson to get out of his car, turn around, put his hands behind his back, and get down on his knees. Mr. Robinson put his car in park, and complied with the officer’s commands. Once he was on his knees on the ground, Mr. Robinson felt the handcuffs go on his wrists.

[11] Mr. Robinson was then pushed and thrown face first on to the ground. When he was on his stomach, he was punched in the head and his face was forced into the pavement. His upper front tooth broke. The officer whose car hit the rear of Mr. Robinson’s car knelt down near Mr. Robinson and said, “It’s not so funny now, is it Cuthbert?” Mr. Robinson said he was not Cuthbert, but Newton Robinson. The officer put a cell phone up to Mr. Robinson’s face and showed him a photograph of a black man on the front page of the Toronto Sun. Mr. Robinson said the photograph was not him. The police officers asked him his name again. When he said that he was Newton Robinson, not Cuthbert, the police officers began punching him in the ribs and kneeing or kicking him in the back. The police officers continued to ask Mr. Robinson his name, and he continued to say that he was Newton Robinson. They continued to beat him. The last thing he remembered the officers doing was tasering him in the shoulder. He testified that the Taser stung and burned his shoulder. The burn marks left by the Taser gun are shown in photographs marked as Exhibits 1H and 1I.

[12] Mr. Robinson started to cry and begged the officers not to hurt him anymore. He told them that his identification was in the upper tray of the centre console of his car. He believed that one of the officers had retrieved his wallet because he was asked if he had gone to the University of Toronto. Mr. Robinson believed that the officer had seen his U of T card, which was in his wallet. After he spelled his name for the officers, the officers stood him up. The mood of the officers changed, and Mr. Robinson thought that the police might let him go. When Mr. Robinson stood up, he felt pain in his rib area.

[13] When a fourth police officer arrived at the scene, the other three officers searched Mr. Robinson’s car. Mr. Robinson did not give them permission to do so and did not direct them to his car. One of the officers doing the search held up a bag of cocaine and said words to the effect, “Too bad Buddy. Wrong person, wrong place, wrong time.” Mr. Robinson tried to deny that the drugs were his. However, earlier in the day he had secreted them in the car.

[14] Mr. Robinson testified that he had packaged the cocaine in separate clear plastic bags that he then placed inside a black garbage bag. He placed the bag in the centre console of his car, which had two compartments – an upper and lower one. He put the drugs in the bottom of the lower compartment and concealed them with tissues, two eyeglass cases and four or five compact disc cases. Mr. Robinson kept his wallet in the upper compartment of the console, separated from the drugs, in case he was stopped in a routine traffic stop and had to show the police his driver’s licence.

[15] While Mr. Robinson was standing handcuffed on the street, one of the officers noticed him fidgeting and told another officer to search him. The officer discovered the six $100 bills in Mr. Robinson’s right hand.

[16] Mr. Robinson was turned over to Toronto police officers, who arrived at the scene. These officers advised him of his right to counsel for the first time. They transported him to 23 Division where he was booked in. The booking process was video-taped. However, the audio malfunctioned and the booking was restaged. During the restaging, Mr. Robinson explained that his tooth was broken when his head was pushed into the ground. He also said that the Toronto police officers were the officers who had given him his rights to counsel. Mr. Robinson was permitted to use the telephone at 3:00 a.m., at which time he called his girlfriend and asked her to get him a lawyer.

[17] Mr. Robinson was released on bail on January 26. On January 27, he went to the hospital because of the pain in his chest. An x-ray revealed that his right lateral 10th rib was fractured and minimally displaced. The radiologist’s report is marked as Exhibit 1S.

[18] In total, Mr. Robinson suffered a broken front tooth, burns to his shoulder, cuts to his lip, nose and ear, and a broken rib during his interaction with the police that evening.

The Officers’ Evidence

[19] I heard the evidence of the three Peel Regional police officers who stopped Mr. Robinson’s car on January 25, 2013 – Officers Garcia, Hobor and Farrow. They testified that Mr. Robinson attempted to flee when his car was stopped by reversing into the police car behind him. He was removed from his car and taken to the ground. His hands were beneath his body and he refused to produce them to be handcuffed. After being struck in the right side with a closed fist and hit with a dry stun from a Taser, he produced his hands and was cuffed. After he was arrested, Mr. Robinson denied that he was Renford. The police searched Mr. Robinson’s car looking for his identification. His wallet and the drugs were located in the upper compartment of the centre console of Mr. Robinson’s car.

[20] The police officers denied that they handcuffed Mr. Robinson, threw him to the ground and beat him.

[21] Officer Garcia was the supervisor of the team of officers. He directed the stopping of Mr Robinson’s car. He testified that the three officers boxed in Mr. Robinson’s car. He blocked Mr. Robinson’s car on the left side, got out of his car, and saw Mr. Robinson’s car reverse, hit Officer Hobor’s car and then go forward in an attempt to escape the box. He drew his service revolver, and yelled “stop, police.” Mr. Robinson stopped. Officer Garcia opened the driver’s door and ordered Mr. Robinson to show him his hands.

[22] Officer Garcia testified that, at that point, Officers Hobor and Farrow arrived at the open car door, pushed him away, and struggled to remove Mr. Robinson from the car. Mr. Robinson resisted being removed from the car. Once he was out of the car, Mr. Robinson fell to the ground with his hands underneath his body. Officers Hobor and Farrow struggled to handcuff Mr. Robinson. Mr. Robinson released his right hand but refused to release his left hand. Officer Garcia removed the cartridge from his Taser to avoid hitting one of the other officers, and applied a dry stun[^1] to Mr. Robinson’s right shoulder. Mr. Robinson released his left hand and was handcuffed. Officer Garcia noticed that Mr. Robinson had a broken tooth after he was stood up.

[23] Officers Farrow and Hobor testified that Mr. Robinson did not resist getting out of the car. Both officers testified that Mr. Robinson was pulled out of the car and “grounded” with a very quick manoeuvre. When Mr. Robinson was on the ground, he had his arms under his body and would not comply with commands to put his hands behind his back.

[24] Officer Farrow punched Mr. Robinson’s right side twice with a closed fist as hard as he could. Mr. Robinson released his right arm, which Officer Farrow pinned behind Mr. Robinson’s back. Mr. Robinson was clenching cash in his right hand. Office Hobor was still struggling to get Mr. Robinson’s left hand when Officer Garcia delivered a dry stun to Mr. Robinson’s back with his Taser. Mr. Robinson released his left hand, and he was handcuffed.

[25] Mr. Robinson was stood up. Officer Farrow testified that he arrested Mr. Robinson for trafficking. He noticed that Mr. Robinson had a cut lip and a chipped tooth. A cell phone with a photograph of Renford was held up next to Mr. Robinson’s face because the officers were trying to determine if he was Renford. Mr. Robinson bore a striking resemblance to Renford. Mr. Robinson said that he was not the man in the photograph. Officer Farrow read Mr. Robinson his rights to counsel, following which Mr. Robinson again asserted that he was not the man they were looking for.

[26] Officers Farrow and Hobor then searched Mr. Robinson’s vehicle for his wallet to establish his identity. Officer Farrow entered the driver’s side of the car, opened the upper compartment of the centre console and located Mr. Robinson’s wallet and the drugs.

Positions of the Parties

[27] Mr. Rusonik, on behalf of Mr. Robinson, submitted that the court should accept Mr. Robinson’s evidence that he did not refuse to comply with the commands of the officers or resist them in any way; the officers’ justification for the force they used against him. Mr. Rusonik submitted that therefore the force the police officers used against Mr. Robinson was unjustified and was of such severity that the court ought to stay the prosecution.

[28] Alternatively, Mr. Rusonik argued that the officers did not have reasonable and probable grounds to search Mr. Robinson’s car once they realized that he was not Renford, and the evidence of the drugs found must be excluded.

[29] Mr. Campbell, on behalf of the Crown, argued that the court should reject Mr. Robinson’s evidence. In his submission, Mr. Robinson’s evidence is not worthy of belief. He is the only witness in the case who has admitted lying when he tried to deny to the officers that the drugs were his, and his account of what happened at the roadside was not credible. Mr. Campbell argued that the officers used no more force than was necessary to effect the arrest of Mr. Robinson.

[30] In addition, Mr. Campbell submitted that despite the officers’ mistaken identification of Mr. Robinson, the search of Mr. Robinson’s car and the seizure of the drugs were reasonable in all of the circumstances. The officers had received a tip about someone regularly attending 3830 Bathurst Street in a small dark car at a particular time, and having a very short meeting each time with David Shiller. The police then observed Mr. Shiller get into a small dark car that arrived at 3830 Bathurst Street, and get out of the car a very short time later. This corroborated the information the police had received from the tipster. The police officers had reasonable and probable grounds to arrest Mr. Robinson for trafficking, and to search his car incident to that arrest.

[31] In sum, Mr. Campbell argued that Mr. Robinson’s application to stay the proceedings because of the excessive force used by the police and his application to exclude the drugs seized from his car should be dismissed, and the court should be satisfied beyond a reasonable doubt that Mr. Robinson is guilty of possession of cocaine for the purpose of trafficking.

Analysis

Application to Stay Proceedings

[32] Mr. Robinson bears the burden of demonstrating on a balance of probabilities that his rights have been violated. I have heard two starkly different accounts of what happened to Mr. Robinson when his car was stopped on Kipling Avenue at 9:30 p.m. on January 25, 2013. According to Mr. Robinson, he complied with the officers’ commands, was handcuffed, thrown to the ground and beaten by them because he maintained that he was Newton Robinson and not Cuthbert Renford. According to the police officers, Mr. Robinson used his car as a weapon against them, and resisted their commands to produce his hands. They used reasonable force, which was necessary to effect the arrest of Mr. Robinson.

[33] The evidence of the officers was not consistent in some important respects and was at times inconsistent with evidence they had given at the preliminary hearing or the notes they had made about the events in their notebooks shortly after the events.

[34] I am troubled by a number of issues with the evidence of the police officers. To begin with, the officers testified inconsistently about whether they had conferred with each other when they made their notes about the events. Officer Garcia testified that he sat down with the other officers and discussed the events while he made his notes. Officer Farrow testified that his notes were not a collective effort. He did not sit down with the other officers to discuss the events and make up his notes. Officer Hobor testified that he did not discuss the events with his fellow officers while he made up his notes. He testified that he would never do that because it is wrong. However, at the preliminary hearing, when asked whether he discussed what happened with the other officers before he made his notes, he replied, “absolutely we did”. Officer Hobor testified that he saw no contradiction between his answers at trial and the evidence he gave at the preliminary hearing. His unwillingness to admit this contradiction clouds the reliability of his evidence.

[35] There were significant differences in the evidence of the officers about some of the details about what happened when Mr. Robinson’s car was stopped. Officer Garcia testified that Mr. Robinson reversed his car into Officer Hobor’s car and then drove forward in an attempt to escape the box. When he saw the car drive forward, Officer Garcia drew his service revolver and ordered Mr. Robinson to stop. Officers Farrow and Hobor testified that Mr. Robinson reversed into Officer Hobor’s car and stopped.

[36] Officer Garcia testified that Mr. Robinson was not handcuffed as soon as he was removed from the car because he resisted Officers Farrow’s and Hobor’s attempts to remove him from his car by grabbing on and jamming himself in. Officers Hobor and Farrow testified that Mr. Robinson did not resist, but was removed from the car very quickly.

[37] Officer Garcia testified that he delivered a dry stun with his Taser to Mr. Robinson’s back after Mr. Robinson produced his right hand on command, but refused to produce his left hand. Officer Hobor testified that both of Mr. Robinson’s hands were underneath him when Officer Garcia tasered him. After being tasered, Mr. Robinson released both hands. Officer Farrow testified that he had control of Mr. Robinson’s right hand before Officer Garcia tasered him. Officer Farrow testified that he obtained control of Mr. Robinson’s right hand after he punched Mr. Robinson’s right side twice with a closed fist as hard as he could.

[38] Officers Farrow and Hobor testified that they together searched Mr. Robinson’s car when Officer Farrow found the drugs. Officer Garcia testified that he and Officer Hobor had control of Mr. Robinson while Officer Farrow searched the car.

[39] In addition to giving evidence that was inconsistent with his evidence at the preliminary hearing about how his notes were prepared, Officer Hobor also gave evidence that was inconsistent with the notes he made shortly after the events. He testified that he put his knee into Mr. Robinson’s back to try to pry Mr. Robinson’s left hand out from underneath him. He denied striking Mr. Robinson, yet his notes indicated “knee strike to back”. It is difficult to understand why an officer would record in his notebook that he struck a suspect in the back with his knee if he had not. This is especially so when one considers that one of the purposes for which police officers make notes is to assist them to refresh their memory when they give evidence, sometimes years after the events.

[40] Although Officer Farrow candidly admitted that he punched Mr. Robinson twice in his side with all of his force to get control of his right hand, Officer Hobor testified that he did not remember seeing anyone punch Mr. Robinson, although he was close to Officer Farrow at the time. The two officers were on either side of Mr. Robinson when Officer Farrow punched him. Officer Garcia testified that did not see anyone punch Mr. Robinson. He said that he was not in a position to see what was going on between Mr. Robinson and the two officers. Despite this, he recorded in his notebook that Mr. Robinson produced his right hand on command.

[41] Officer Garcia also testified that he removed the cartridge from his Taser because everything was happening in such close quarters that he feared he may inadvertently hit one of the other officers. I accept that this was a dynamic situation, but it seems unlikely to me that officers working in such close proximity to each other would be unable to see what each other was doing.

[42] The officers were unable to explain how Mr. Robinson’s tooth got chipped when his arms were free to break his fall when he was grounded. Mr. Robinson’s explanation that his face was pushed into the ground while he was handcuffed to the back is a likely explanation. He told the booking sergeant that his tooth was chipped when his face was forced into the ground.

[43] Officer Farrow testified that Mr. Robinson’s hands were under his stomach, in his waist area, when he was on the ground. Officer Hobor also testified that Mr. Robinson’s hands were in his waist area, although at the preliminary hearing, he testified that his hands were under his chest.

[44] Officer Garcia testified that he believed he was justified in using his Taser to deliver a dry stun to Mr. Robinson’s back because Mr. Robinson had reversed his car into Officer Hobor’s car in an attempt to flee the officers, had resisted being removed from his car, and had failed to comply with demands to produce his hands. Yet Mr. Robinson was not charged with any offence related to attempting to flee police or driving into Officer Hobor’s car. Officer Garcia testified that he was responsible for deciding what charges would be laid against Mr. Robinson, and he assumed that Mr. Robinson would be charged with an offence related to his driving. He testified that he raised the issue with a Toronto officer named Gormley when he later learned that Mr. Robinson had not been charged with such an offence. Despite being cross-examined about this specific issue at the preliminary hearing, Officer Garcia did not mention a discussion with Officer Gormley until the trial.

[45] At trial, Officer Garcia testified that he saw Mr. Robinson reverse his car into Officer Hobor’s and then drive forward. This is different than his testimony at the preliminary hearing when he testified that as he made his way around the back of his car, he realized that Mr. Robinson’s car had reversed into the front of Officer Hobor’s car. He did not say that he saw the action of the car reversing.

[46] All of the officers agreed that it was snowing heavily that evening and the roads were slippery. Officer Hobor testified that he positioned the front of his car as close as possible to the rear of Mr. Robinson’s car in order to prevent his escape. Officer Hobor could not see the rear tires of Mr. Robinson’s car from where his car was positioned. He testified that he did not immediately get out of his car once he stopped to assist in the arrest of Mr. Robinson because he saw the rear lights in Mr. Robinson’s car come on. He made no note about seeing the rear lights come on; nor did he testify about that at the preliminary hearing.

[47] Mr. Robinson testified that he kept his wallet in the top compartment of the centre console, and hid the drugs in the bottom compartment underneath a number of items. He also testified that he told the officers, who would not believe he was Newton Robinson, to check his identification, which was in the upper compartment of the centre console. Officer Farrow testified that the first place he looked for Mr. Robinson’s identification was in the upper compartment of the centre console. This was where he said he found Mr. Robinson’s wallet and the drugs. Although at trial he specified that he located the items in the upper part of the centre console, he made no reference in his notes to an upper and a lower part of the console, and, at the preliminary hearing, he described finding the drugs and wallet simply in the centre console.

[48] Officers Garcia and Farrow testified that Mr. Robinson said nothing while he was on the ground. He did not deny that he was Renford or tell the officers his name until after he was arrested and standing upright. Officer Hobor recalled a dispute about Mr. Robinson’s identity but could not recall whether it occurred when Mr. Robinson was on the ground. Officers Garcia and Farrow agreed that they challenged Mr. Robinson’s truthfulness when he told them his name, but denied referring to Mr. Robinson as Renford or Cuthbert throughout their struggle. In addition, the officers claimed to be indifferent to the fact that Renford had eluded them the previous week, and the story of his escape had made the front page of the Toronto Sun. I find this difficult to accept.

[49] Given the frailties of the police evidence to which I have referred, I do not accept their version of events. On the evidence that I have heard, I am satisfied that Mr. Robinson’s version of events is more likely true than the version presented by the police officers.

[50] Mr. Robinson testified in a straightforward fashion. His evidence was internally and externally consistent. The injury to his rib was confirmed by the radiologist’s report, and the damage to his tooth was observed by Officer Garcia, and can be seen in the booking video. His evidence was unshaken by a vigorous cross-examination. In all of the circumstances of this case, his version of events had an air of reality. It made sense to me.

[51] In assessing the credibility of the witnesses I heard, I have been guided by the test set out by O’Halloran J.A. in Faryna v. Chorny:[^2]

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[52] The events as described by Mr. Robinson are more consistent with a beating delivered to Mr. Robinson by the officers, who believed they had captured Renford, than with force used to effect the arrest of a resisting suspect. On the police version, three police officers were able to handcuff Mr. Robinson only after forcing his face into the ground, punching him in the side, kneeing him in the back, and tasering him at close range - all within four or five seconds of Mr. Robinson being removed from his car. I do not accept that this degree of force would have been necessary to effect an arrest in these circumstances.

[53] I do not accept Mr. Campbell’s submission that the officers in this case used only the force necessary to effect the lawful arrest of Mr. Robinson. I accept Mr. Robinson’s evidence that he complied with the commands of the officers and that no force at all was necessary.

[54] I am satisfied that the officers used excessive force on Mr. Robinson because they believed he was Cuthbert Renford, and they concocted a story to justify their use of excessive force.

[55] The use of excessive force by police in effecting the arrest of a person has been held to breach that person’s right to security of the person protected by s. 7 of the Charter.[^3] I am satisfied on a balance of probabilities that Mr. Robinson’s rights protected by s. 7 of the Charter were breached on January 25, 2013.

The Remedy

[56] Mr. Robinson seeks to have this charge stayed under s. 24(1) of the Charter.

[57] Mr. Campbell submits that the circumstances of this case are not severe enough to warrant the extreme remedy of a stay of proceedings, and the court should exercise its discretion to fashion a different remedy, such as a reduction in sentence.

[58] A stay of proceedings is a drastic remedy that is to be resorted to only in the “clearest of cases”.[^4] It is available for two categories of cases. The first category involves cases in which state misconduct affects the fairness of the accused person’s trial. The second or “residual” category involves cases in which state agents have conducted themselves in a manner that contravenes fundamental notions of justice thereby undermining the integrity of the judicial process.[^5] This is a case that falls within the residual category.

[59] The test to be applied in determining whether a stay is warranted has three requirements:

(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome;

(2) no other remedy is reasonably capable of removing that prejudice; and

(3) where there is uncertainty about whether the abuse is serious enough to warrant a stay, the court must balance the interests served by the granting of the stay against society’s interest in having the matter determined on its merits.[^6]

[60] In undertaking the balancing exercise, the court must examine the circumstances of the accused, the nature of the charges against the accused, the interests of the victim and the interests of society in having the matter determined on its merits.[^7]

[61] In R. v. Babos[^8], Justice Moldaver discussed the circumstances in which the first requirement is met in a residual category case at para. 35:

By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial — even a fair one — will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.

[62] The force used by these officers against Mr. Robinson, who was handcuffed and had not resisted them, is state conduct that offends society’s sense of fair play and decency. This is not a case where police officers used excessive force arresting a non-compliant suspect in tense and dynamic circumstances. No force was necessary in this case. The police officers’ conduct was extra-judicial punishment, which is antithetical to the rule of law in Canada. The court must dissociate itself from it.

[63] The role played by police officers in law enforcement is critical to the maintenance of a society that respects the rule of law. As a result, society vests police officers with powers and authority that other citizens do not have. When police officers exceed their authority, and abuse their power by using excessive force against a suspect, they generate disrespect for the police generally, which threatens the rule of law.

[64] In discussing the question of whether any remedy short of a stay can remove the prejudice to the integrity of the justice system, Justice Moldaver wrote that, “the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.”[^9]

[65] The third requirement of the test, the balancing of interests, takes on more significance when the court is dealing with a residual category case. As Justice Moldaver wrote in R. v. Babos at para. 41,

Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct. … Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community’s conscience and/or offends its sense of fair play and decency, it becomes less likely that society’s interest in a full trial on the merits will prevail in the balancing process.

[66] Mr. Robinson is a 53-year-old man with no criminal record. He is facing a serious charge. He was found in possession of nearly 18 grams of cocaine and 2.26 grams of crack cocaine. He admitted selling it that evening. This is a significant amount of a dangerous drug, and there is a clear public interest in a trial of this charge on its merits.

[67] At the same time, I have found a very serious violation of Mr. Robinson’s rights. He was beaten and struck with a dry stun from a Taser while handcuffed. As a result he suffered a broken tooth, a fractured rib, burns to his shoulder, and cuts to his lip, nose and ears. There has been a contrived effort on the part of these officers to justify their use of force against Mr. Robinson, including giving untruthful evidence.

[68] An alternative remedy to a stay of proceedings in this case is a reduction in sentence, if Mr. Robinson is convicted. This, in Mr. Campbell’s submission, would be the appropriate remedy if I were to find that the officers used excessive force. I have reviewed the two cases that Mr. Campbell relied upon in support of his submission.[^10] In both cases, the excessive use of force was applied in circumstances in which the person being arrested physically resisted the officers. That is not the situation here.

[69] Although no two cases are the same, the facts of this case bear more resemblance to those cases in which a stay of proceedings was granted as a result of the physical abuse by the police of a suspect.[^11]

[70] In my view, to continue with the prosecution against Mr. Robinson in light of the misconduct of the officers would offend society’s sense of fair play and decency. The court must distance itself from such conduct. The police misconduct in this case contravenes fundamental notions of justice, which undermines the integrity of the judicial process, and a stay of proceedings is therefore warranted.

[71] I therefore direct a stay of proceedings in relation to the charge against Mr. Robinson. In light of this ruling, I will not address the other issues raised by the parties.

[72] I wish to thank counsel for their helpful written and oral submissions and for narrowing the issues and ably conducting a focused trial.

Corrick J.

Released: March 8, 2016

CITATION: R. v. Robinson, 2016 ONSC 1667

COURT FILE NO.: CR-14-90000199-0000

DATE: 20160308

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

NEWTON ROBINSON

REASONS FOR JUDGMENT

Corrick J.

Released: March 8, 2016

[^1]: According to Officer Garcia, removing the cartridge from the Taser allowed him to get closer to Mr. Robinson to fire it. The cartridge contained the Taser’s prongs. Without the prongs, the Taser will not lock the target’s muscles when struck. A dry stun is intended to inflict pain on the target rather than lock the target’s muscles.

[^2]: 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) at p. 356-7

[^3]: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. Tran, 2010 ONCA 471.

[^4]: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 at para. 68; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 at para. 53.

[^5]: R. v. Zarinchang 2010 ONCA 286 at para. 52.

[^6]: R. v. O’Connor at para. 75; R. v. Regan at para. 57.

[^7]: R. v. Zarinchang at para. 57.

[^8]: 2014 SCC 16, [2014] 1 S.C.R. 309.

[^9]: Babos, at para. 39.

[^10]: Nasogaluak, at note 3; R. v. Fisher, 2008 CarswellOnt 3817 (S.C.J.).

[^11]: Tran, at note 1; R. v. Singh 2013 ONCA 750; R. v. Cheddie [2006] O.J. No. 1585 (S.C.J.).

R. v. Robinson, 2016 ONSC 1667

Case Summary

Overview

Evidence

Mr. Robinson’s Evidence

The Officers’ Evidence

Positions of the Parties

Analysis

Application to Stay Proceedings

The Remedy

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 2