Court File and Parties
COURT FILE NO.: CrimJ(P) 978/15 DATE: 2017 02 22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Robert Levan, for the Crown
- and -
JARNAIL SINGH Martin Kerbel Q.C., for the Accused
HEARD: December 1,2,5, 6, 7 & 8, 2016
REASONS FOR JUDGMENT
Justice Thomas A. Bielby
[1] Jarnail Singh, the accused, stands charged:
- That he, on or about the 27th day of January, 2012, at the City of Brampton, in the Central West Region, did unlawfully obstruct a peace officer, to wit: Damian Savino, a police constable for the Regional Municipality of Peel, engaged in the execution of his duty, contrary to section 129 (a) of the Criminal Code of Canada;
- That he, on or about the 27th day of January, 2012, at the City of Brampton, in the Central West Region, did operate a motor vehicle, near 13 Velvet Grass Lane, Brampton, Ontario, in a manner that was dangerous to the public, contrary to section 249(1) of the Criminal Code of Canada;
- That he, on or about the 27th day of January, 2012, at the City of Brampton, in the Central West Region, did in committing an assault on Damian Savino, use a weapon, to wit: a motor vehicle, contrary to section 267 (a) of the Criminal Code of Canada;
- That he, on or about the 27th day of January, at the City of Brampton, in the Central West Region, did unlawfully assault constable Damian Savino with intent to resist the lawful arrest of himself, contrary to section 270(1) (b) of the Criminal Code of Canada;
- That he, on or about the 27th day of January, 2012, at the City of Brampton, in the Central West Region, did unlawfully possess a controlled substance included in Schedule I to wit: N, a-dimethyl-Benzeneethanamine, contrary to section 4(1) of the Controlled Drugs and Substances Act; and
- That he, on or about the 27th day of January, 2012, at the City of Brampton, in the Central West Region, did unlawfully possess a controlled substance to wit: Heroin, contrary to section 4(1) of the Controlled Drugs and Substances Act.
[2] To these charges the accused pleaded not guilty. However, in his closing submissions, counsel for the accused conceded guilt with respect to Counts 5 and 6.
[3] In regards to counts 5 and 6, counsel for the accused concedes that the actions of the accused in putting his vehicle in reverse, with the intention to leave, gave rise to reasonable and probable grounds for arrest. Drugs were found in the jacket of the accused and the police had reasonable and probable grounds to obtain a warrant to search the accused’s SUV, which search resulted in the discovery of more drugs.
[4] The accused has conceded that he was in the possession of a total of 2.2 grams of heroin and 1 gram of methamphetamine.
[5] There will be a finding of guilt on Counts 5 and 6.
[6] The matter proceeded before me as a blended trial/Charter application. The accused submits that his Charter Rights were breached in that the police, when they first confronted the accused, did so to arrest him without reasonable and probable grounds. Further, it is submitted the police acted with excessive force.
[7] For these reasons the accused seeks a stay of the proceedings.
GENERAL FACTUAL OVERVIEW
[8] Exhibits 1 and 12 are agreed statements of fact. On January 27, 2012, the Street Crimes Gang Unit of the Peel Police mounted a surveillance operation to further their investigation of Dalbir Dhillon, whom they suspected dealt in illicit drugs.
[9] The police observed Dhillon drive to the parking lot of a Rona store and park his Mazda van. Shortly thereafter the accused drove up in a Nissan SUV and parked next to the Dhillon vehicle. The accused got out of his vehicle and into the Dhillon vehicle.
[10] Dhillon and the accused then drove to Toronto. At 5:34 pm they stopped at a gas station at which point the accused went into the gas station kiosk for a period of time. At 5:48 pm Dhillon and the accused left the gas station and drove to an industrial building on Horner Avenue. Dhillon was observed getting out of his van and entering the building. He later emerged from the building carrying a black bag which he placed on the rear driver’s side seat.
[11] Dhillon then drove himself and the accused back to the Rona parking lot and the parties went their separate ways. The accused was not observed with anything in his hands nor was there any hand to hand exchanges observed involving the accused.
[12] Nevertheless, the police were of the opinion that a drug transaction had taken place and believed they had reasonable and probable grounds to arrest the accused. Constable Lang, shared in that belief and decided to follow the accused’s Nissan SUV and arrest him.
[13] Constable Savino was instructed to assist Lang. The officers were operating separate vehicles.
[14] The accused was followed and observed turning into the driveway at 13 Velvet Grass Lane, Brampton.
[15] The officers parked their vehicles on either side of the driveway entrance and approached the accused’s Nissan on foot. Constable Lang approached on the driver’s side and Constable Savino on the passenger side.
[16] The officers testified that the Nissan had been turned off and the interior light in the vehicle was on.
[17] Both officers testified that they knocked or banged on the driver’s door window and the front passenger window, displayed their police badges and instructed the accused to do such things as get out of the car and place his hands where they can see them.
[18] The accused looked in the direction of both officers. He was observed twice, taking something out of his left pocket with his left hand and reaching across his body to place what he had withdrawn from his jacket in or around the centre console.
[19] The officers testified that the accused then placed the keys back in the vehicle’s ignition and started the vehicle. He immediately placed the vehicle in the reverse gear and accelerated down the driveway. As he did so, Constable Savino was struck by the Nissan’s right exterior mirror.
[20] Officer Savino was not injured.
[21] Officer Lang who testified he believed Officer Savino’s safety was at issue, fired a shot from his pistol which shattered the driver’s door window and struck the accused in the left torso area. The bullet lodged in the accused’s spine, resulting in the accused becoming an incomplete paraplegic. The accused immediately lost the control and function of his legs.
[22] After the shot, the Nissan continued reversing, crossed the road and struck a vehicle parked in the opposite driveway, causing the Nissan to come to a stop.
[23] Officers Lang and Savino approached and opened the driver’s door of the Nissan and instructed the accused to get out. When the accused did not comply Officer Savino pulled the accused out of the Nissan causing him to fall to the ground. The accused was on his chest, face down and was handcuffed.
[24] At 6:47 pm Officer Lang advised police dispatch that an individual had been shot.
[25] The officers, noting the Brampton Civic Hospital was in sight made the decision to transport the accused to the hospital in one of their unmarked police cars. They carried/dragged the accused over to the car but were unable to put the accused in the back seat. The accused was then left on the ground until an ambulance arrived at 6:53 pm.
THE EVIDENCE
[26] The statements of the following witnesses were included in the Agreed Statement of Facts entered as Exhibit 12.
[27] Nirmali Perera was in a car being driven south bound on Velvet Grass Lane by her husband, Shirley Perera. Her head was down when she heard her husband say, “Isn’t that a gun”. Ms. Perera then looked up and saw two men with guns pointed at a person who was inside a white vehicle which was stopped on the road. At the time Ms. Perera did not know the men with the guns were police officers. She initially thought they were thugs. At the direction of her husband Ms. Perera made a 911 call. She told the dispatcher that the two men could be police officers.
[28] Clovette Moore lived at 14 Velvet Grass Lane. On the evening in question she ran outside and saw a scuffle. She initially did not know that two of the men were police officers. She was told by one of them that they were police officers and was told to go back inside.
[29] The accused was not known to Ms. Moore. She saw the accused on the ground and heard him say, “Call the police I’m dying”. When the officers started moving the accused towards a police car Ms. Moore told them to call an ambulance. Ms. Moore’s Toyota Corolla was the vehicle struck by the accused’s Nissan.
[30] Lauriston Gardiner also lives at 14 Velvet Grass Lane. He was in his bedroom when he heard a bang. He then heard someone yell “Get out of the car- get out of the car”. He does not know if the word “police”, accompanied the demand.
[31] Through a window Mr. Gardiner saw the accused pulled from the Nissan. The accused was unknown to him.
[32] Mr. Gardiner then, along with Ms. Moore, went outside the house and saw the accused face down on the road and handcuffed. He heard the accused say words to the effect of, “call the police” and communicated he was in pain and felt he was going to die. Mr. Gardiner heard one of the officers yell “Get up” to the accused. Thereafter the two officers attempted to get the accused to his feet. The officers then dragged the accused towards a car. The accused was then left on the ground until the ambulance arrived.
[33] The following evidence was received through in-court testimony.
SHIRLEY PERERA
[34] Shirley Perera and his wife live on Velvet Grass Lane. At the relevant time, they were driving southbound on Velvet Grass at around, in his opinion, 6:44 pm, when he saw the accused’s white Nissan reverse very fast, from his left side, out of the driveway and across the road to the opposite driveway.
[35] He saw two people dressed in normal street clothes with their guns drawn. On cross-examination he testified that there was nothing to suggest these two men were police officers.
OFFICER KENNETH WRIGHT
[36] Officer Kenneth Wright testified at trial and in January, 2012, he was a member of the Peel Police major collision bureau. Through him a number of pictures were reviewed, showing the incident scene and the positions of a number of vehicles. Officer Wright through these pictures identified tire marks, shattered glass and a blood stain on the road in the area where the accused had laid, face down on the road after he had been pulled from his Nissan.
[37] It was Officer Wright’s opinion that the tire marks showed acceleration beyond the normal. He opined the vehicle reversed heavily. He could not provide an estimate of speed.
[38] Officer Wright was shown a picture of the exterior mirror housing on the passenger side and noted the markings thereon were consistent with someone grabbing the mirror.
[39] To the immediate right of the Nissan when it was parked in the driveway was parked a dark coloured Honda. Officer Wright estimated the distance between the two vehicles was perhaps one meter. On the driver’s side of the Nissan SUV when it was parked in the driveway was a Dodge Caravan and the distance between the two vehicles he estimated was about the same, that is, one meter.
[40] The officer noted that the tire marks suggested that the vehicle initially did not go straight back for a short distance. On cross-examination the officer agreed that the mapping of the tire marks could reflect a bit of a curve and that the curve was away to some degree from anyone who would have been standing between the Nissan and the Honda. Officer Wright was satisfied that someone had been struck by the passenger side exterior mirror.
CONSTABLE DAVID SAVINO
[41] Constable Savino was part of the Street Crime Gang Unit and when tasked by Officer Holland to assist Officer Laing with the arrest. He was advised there were reasonable and probable grounds to arrest the accused.
[42] Constable Savino was in an unmarked police car following Laing’s unmarked police car and observed the accused pull into the driveway.
[43] Officer Savino testified that when he approached the passenger side front door he pulled out his badge. Initially the accused was looking at Officer Laing who was by the driver’s door but then turned to look at Savino. Both officers held their badges to the windows and knock on the front side windows of the SUV. The windows were up all the way.
[44] Constable Savino observed the accused remove things from his left side pocket and put them in the area of the center console.
[45] Constable Savino tried to open the front passenger door but it was locked. The officer testified that he identified himself as a policeman and gave the accused a command to open the car door.
[46] Officer Savino testified that the accused then reached for his keys, put them in the ignition and started the SUV. The accused immediately put the car in reverse and accelerated.
[47] Constable Savino was still standing by the passenger side front door. Behind him was a parked Honda. The officer estimated the distance between the two cars as two feet at most. The exterior mirror was to the officer’s right.
[48] Constable Savino became concerned with his situation. He testified that when the SUV started moving he felt his life was in jeopardy. There was no space to get away. His only thought was, where should I attempt to go?
[49] The officer tried smashing the car window with his fist or hand. His last observation of the accused at this location was when the officer was struck by the exterior mirror as the SUV was moving backwards.
[50] Constable Savino was struck on the right arm/shoulder area by the mirror. He testified he tried to move to the left and backwards in an attempt to avoid the mirror. He was not injured by the contact with the mirror and no marks or bruises were noted. He was not knocked off his feet.
[51] After being struck Savino heard a gunshot after which the SUV continued backwards out onto the road and to the opposite driveway. Once the SUV moved passed his position Savino for the first time had a clear view of Officer Laing.
[52] After the SUV came to a stop Constable Savino approached the driver’s side along with Constable Laing. Both officers had their weapons out and pointed towards the accused in the driver’s seat. The officer noted that the driver’s door window was shattered and Constable Savino removed some shards of glass and reached in and opened the door. Before opening the door the officer was commanding the accused to get out of the car. The accused did not respond to these commands. Officer Savino then grabbed the accused and pulled him out and put him face down on the road. The accused was handcuffed. The accused was told he was under arrest for the possession of a controlled substance.
[53] Constable Savino described the accused as conscious and at times looking around. Once the accused was cuffed Officer Savino noticed blood on the asphalt although he testified that it was not until the ambulance arrived and the paramedics attended to the accused that he knew the accused suffered a gunshot wound.
[54] I find this statement to lack credibility. The officer heard a gunshot and observed that the driver’s door window was shattered. These circumstances together with the facts that the accused was unresponsive to command and blood was noted on the roadway should have easily lead to the inference that the accused had been shot.
[55] Constable Savino testified that at no time did he hear the accused say anything whether initially in the driveway or on the road.
[56] When looking at the photographs which were made exhibits, Constable Savino identified broken glass adjacent to the handles of the Dodge Caravan parked to the left of the SUV when it was parked in the driveway. Glass was also noted on the street below the driver’s door of the SUV as it came to rest after reversing.
[57] On cross-examination Constable Savino testified that while he did not hear Constable Laing identify himself he saw a police badge in Laing’s hand.
[58] Constable Savino did not see Officer Laing pull his gun as he was focused on his situation. He heard the shot a very short time after the car was in motion and stated everything happened in a few seconds.
[59] On cross-examination Constable Savino could not say how far the SUV had travelled when he heard the pistol shot but did say it was accelerating.
CONSTABLE DAVID LAING
[60] In January, 2012, this officer was a member of the Peel Police Street Crime Unit and was part of the Dhillon surveillance team.
[61] Constable Laing, as a result of his observations, was of the opinion that the accused acquired drugs from Dhillon and that there were reasonable and probable grounds to arrest the accused.
[62] The officer then testified as to his approach, along with Officer Savino, of the accused’s SUV. He noted that the nose of the SUV was right against the garage door. To the right of the SUV and between it and the dark Honda he estimated there was a gap of about 1-2 feet.
[63] He described the area as poorly lit and that at time of their approach of the SUV (6:45 pm) it was dark out.
[64] Constable Laing testified that he knocked on the driver’s door window and held his badge up. He said, “police, get out of the vehicle”. The door was locked. The officer could observe Officer Savino at the front passenger window. He testified that Savino identified himself as police and showed his badge. He too told the accused to get out of the car.
[65] Constable Laing testified that he saw the key in the accused’s hand and that the accused put the key in the ignition, started the vehicle and immediately put it into reverse, as fast as his hand could move to the gear shift.
[66] Constable Laing testified that he moved laterally with the vehicle as it proceeded in reverse. He continued to bang on the window. The officer drew his firearm when he saw the vehicle keys in the accused’s hand.
[67] Constable Laing observed Savino get hit by the mirror on his right side, his right arm. It appeared to Laing that Savino was moving forward after being struck and appeared to be losing his balance. Constable Laing continued to bang on the window and yell at the accused to stop.
[68] Constable Laing then looked through the window and could not see Savino. He figured he was pinned between the vehicles or had fallen. In his mind there was a serious safety concern. He testified that he believed Savino’s life was at risk. In his opinion, the accused was trying to get away and wasn’t going to stop. Constable Laing concluded it was a situation calling for lethal force.
[69] Constable Laing rolled away from the driver’s side and the left side exterior mirror, and fired one shot. The shot was fired when the officer was adjacent to the passenger side door handles of the Dodge Caravan and was fired through the driver’s door window just as the back end of the SUV was touching the sidewalk. The officer estimated he was 3-4 feet away from the accused when he fired.
[70] The officer reviewed photographs confirming his location when his pistol was discharged. The pictures (Exhibit 10(e)) shows shattered glass on the ground on the right side of the Caravan at below the door handles.
[71] After the shot the SUV continued reversing across the street where it struck a car in the opposite driveway. It came to a stop.
[72] Both officers then approached the driver’s door. Constable Laing attempted to re-engage the accused who was still in the driver’s seat. Both officers were pointing their guns at the accused. Constable Laing had his badge hanging from a chain around his neck. Laing yelled at the accused to get out and described how Savino pulled the accused from the SUV, put him to the ground and made the arrest. Constable Laing estimated the whole incident lasted no more than two minutes.
[73] The officer was shown Exhibit 9(k) and identified glass in the window frame, on the road and on the running board. He also identified a blood stain on the road.
[74] At 6:47 pm Constable Laing called in the arrest and requested an ambulance. At that point the officer believed the accused had been shot and was injured.
[75] Various other photographs which had been made exhibits were shown to Constable Laing. In Exhibit 10(g) the officer identified a shell casing on the edge of the sidewalk.
[76] Constable Laing confirmed that a number of neighbours were gathering. They were told that they were police officers and to stand back. Laing testified that he was wearing blue jeans and a hooded sweatshirt (a hoodie).
[77] Constable Laing testified how he and Officer Savino decided to take the accused to the hospital. When attempting to move the accused Constable Laing directed the accused to help them by walking and the accused answered, “I can’t, I can’t”.
[78] On cross-examination Constable Laing confirmed that before that night he had no knowledge of the accused and had no idea he had any connections to drugs. There was nothing suspicious as to how he drove his SUV.
[79] Constable Laing testified that while he never observed any drug transaction between the accused and Dhillon, he believed that the reason Dhillon stopped at the property on Horner St. was to replenish his supply of drugs.
[80] When asked whether a traffic stop by two plain clothes officers driving unmarked cars might be considered something other than police business, Laing answered, “That’s why I wear my badge on a chain.”
[81] Officer Laing confirmed that later in the evening on January 27th, Mr. Dhillon was arrested and charged but later the charges were withdrawn.
[82] It is Constable Laing’s belief that the accused knew they were police officers.
[83] Constable Lang testified that when the Nissan SUV started to reverse, he moved laterally with the car banging on the window with his right hand, his gun being in his left hand. Laing stated that he then squared off and shot on a bit of an angle toward the accused. At the time the accused left arm was on the steering wheel and the bullet entered under the accused’s left arm.
[84] The officer testified that some of the window glass was observed on the driveway where shot broke the window of the SUV.
[85] Constable Laing denied he fired his gun the moment the accused put his SUV into reverse gear. His reason for firing was his concern for the safety of his partner. He lost sight of his partner after the vehicle was started.
[86] Constable Laing agreed that once the accused was shot he would be unable to control the moving SUV.
[87] The officer agreed that when the accused was taken to the ground and handcuffed, he might have said something but he does not recall the accused saying anything like, get the police, I’m dying.
JARNAIL SINGH
[88] The accused elected to testify with the assistance of Punjabi interpreters. At the time of the incident he was living at 4 Velvet Grass Lane with his family. He pulled into 13 Velvet Grass Lane to visit a friend.
[89] The accused admitted that on the 27th he was in the possession of heroin and methamphetamine having purchased it earlier in the day outside of his methadone clinic.
[90] The accused testified that on January 27, 2012, he did meet Mr. Dhillon in the Rona lot but the purpose of doing so was not to buy drugs. The accused, a truck driver, had not had any employment for a few weeks and wanted Dhillon to help him obtain employment as he believed Dhillon had the necessary connections in the trucking industry.
[91] Initially the accused telephoned Dhillon and told him he wanted to see him. He was told to meet him at the parking lot where they were observed. The accused testified that he arrived at the lot around 5:00 pm.
[92] He recognized the Dhillon van and got into the front passenger seat. He was told by Dhillon that he had to go somewhere so they talked about a job while travelling in the van.
[93] The accused acknowledged they stopped somewhere in Toronto but never saw any black bag being placed in the van.
[94] The friend at 13 Velvet Grass Lane was named Dawinder and they had worked together previously. When the accused received a pay cheque he did not agree with the number of hours shown thereon and wanted to speak to Dawinder and compare the number of hours for which he was paid. Dawinder’s house was on the way home for the accused.
[95] The accused testified that he was sitting in the driveway and someone knocked on his door window. It was unexpected. The accused turned and looked and saw a stranger. Then another stranger knocked on the front passenger window.
[96] The accused testified that he never heard either of them say anything. He just saw their hands.
[97] The accused testified that he was scared and believed he was in trouble and knew of no reason why he would be in trouble. He thought his safety was at risk and that these strangers wanted to pull him from his vehicle.
[98] The accused testified that he never saw any badge. He wasn’t sure if the inside interior light was on in the SUV.
[99] The accused decided that he should escape from the situation.
[100] The accused recalls putting the SUV in reverse and the next memory he had was lying on the ground. He testified that he was not trying to hit either stranger with his SUV.
[101] The accused has a recollection of being dragged and yelling loudly for someone to call the police.
[102] The accused was shown various pictures which had been made exhibits.
[103] The accused acknowledged that there were cars on either side of his parked SUV but believed the doors could be easily opened. He could not estimate the distance when asked if it was about two feet.
[104] The accused conceded that when he was backing up the officer at the passenger door window would have to get out of the way of the mirror. He described this man (Officer Savino) as looking like a gangster. He was aggressive, acting very angry and banging on the window. He looked like a person who would do wrong.
[105] The only sound he heard was that of banging on windows.
[106] The accused could not say how hard he hit the gas pedal after putting the SUV into reverse.
[107] When shown Exhibit 10(d), the accused acknowledged that there was glass from the window in the vicinity of the right side Caravan door handles.
[108] The accused confirmed that earlier on the 27th he bought 2.2 grams of heroin and 0.5 grams of methamphetamine for his personal use. He thought he paid $220 - $250.
[109] The accused testified that the person at the passenger window was hitting hard with his fist. The accused denied knowing the two men were police officers and denied being able to hear anything they were saying. The accused testified that he did not know the men were police officers until he got to the hospital.
[110] The accused denied seeing any weapon but said he could see the faces of the two men. He denied that he saw a police badge. He testified everything happened so quickly.
[111] The accused agreed that he had a cell phone in the center console and asked why he did not use it to call the police, the accused said he couldn’t recall what he was doing and maybe he was looking for the phone.
[112] The accused, when it was suggested to him that knowing there were two individuals on either side of his SUV he chose to put his vehicle into reverse and accelerate quickly, testified that when he put the vehicle in reverse, he was looking back and then ‘this happened” and the vehicle went out of control.
[113] The accused disagreed with the suggestion that he was attempting to hide the drugs and decided to reverse out of the driveway, and the consequences be damned.
[114] The accused when on the ground said he was in great pain and that both men kicked him. He again testified that he was screaming for someone to call the police.
ARGUMENT
THE ACCUSED
[115] Counsel for the accused submitted that when the officers arrived at 13 Velvet Grass Lane there were no reasonable and probable grounds for arrest. The police had no evidence of any drug transaction involving the accused other than an association with Dhillon who they suspected was dealing drugs. Dhillon was subsequently arrested but the charges against him were withdrawn.
[116] It is submitted by defence counsel, that Counts 1 and 4 ought to be dismissed because his client was unaware that Constables Savino and Laing were police officers. At the very least, it is submitted, there is a reasonable doubt on this point given the evidence of two other witnesses who overheard the accused ask someone to call the police. If the accused knew the officers were with the police why would he make such utterances?
[117] In regards to Count 3 it is submitted that the accused had no intention to assault Constable Savino. His intention was to leave the scene as be believed his life was in danger. If Savino was struck by the mirror it left no injury or marks. The officer was never at risk.
[118] With respect to Count 2, dangerous driving, counsel for the accused submitted that he client was shot at the point when he put the SUV in reverse. Upon being shot the accused had no control over his legs and could not therefore control the speed of the SUV.
[119] Counsel for the accused submitted that the evidence of his client ought to be accepted. Alternatively, it raises reasonable doubt in regards to all of the charges.
[120] With respect to the Charter Application brought by the accused, counsel submits that the police had no real evidence of the accused being involved in drug deals. Initially, it is argued, there were no reasonable grounds for arrest.
[121] It was submitted that the police used excessive force which violates section 7 of the Charter of Rights.
[122] Counsel submits the police ought to have blocked the accused’s exit from the driveway by pulling one of the cars across the mouth of the driveway. They could have waited until the accused got out of his SUV. The accused could have been pulled over on the roadway by Officer Laing. All of these options, it is submitted would have prevented the incident.
[123] The accused also asks the court to consider how he was treated after he had been shot and the SUV had come to a stop. The police ought to have known he was injured yet they pulled him from his vehicle and threw him on the ground. They attempted to drag him to a police car.
[124] The actions of the police have left the accused with a permanent and serious injury, which injury occurred as a direct result of the breach of the accused’s Charter Rights.
[125] It is submitted that the conduct of the police was so egregious that the charges should be stayed.
[126] Counsel for the accused submitted that the public, knowing the facts, would believe a stay of prosecution is appropriate and such an order would not bring the administration of justice into disrepute.
[127] It is submitted that a stay would reflect a disapproval of police conduct.
CROWN
[128] The Crown submits that the officers as they approached the accused’s SUV had reasonable and probable grounds to arrest. In any event, the actual arrest was not until after the accused attempted to flee and as a result of this action on the part of the accused, the police did have the requisite reasonable and probable grounds, as conceded by the accused.
[129] It is argued by the Crown that the fact that the officers intended to arrest the accused when they approached the SUV is irrelevant. The Crown relies on the Supreme Court of Canada decision of R. v. Clayton 2007 SCC 32, [2007] S.C.J. No. 32, paragraph 47, which dictates that intention alone does not attract a finding of unconstitutionality. Actual conduct is required.
[130] The Crown submits that the police officers properly identified themselves as police and displayed their badges.
[131] The Crown submits that Constable Laing’s evidence ought to be accepted as to when and why he discharged his weapon and the location of the SUV at the time and the fact that it was moving.
[132] The Crown submits the evidence presented by the accused is not credible. Two police officers were banging on his windows yelling they were police and displaying their badges. It makes the accused’s evidence that he did not know they were police, simply unacceptable.
[133] It is submitted by the Crown that the actions of the accused substantiates all charges beyond a reasonable doubt. It is submitted that the driving in issue cannot be justified by the defences of necessity or self-defence. The driving was not proportionate to the threat. A banging on the windows is insufficient and at no time did the accused see a weapon when his SUV was in the driveway.
[134] The Crown submitted that in regards to the allegation of excessive force the court must consider Constable Laing’s belief at the time he discharged his weapon as reviewed above. His beliefs and actions were reasonable.
[135] The Crown submitted that in considering the remedy of a stay the court must consider that such remedy is only used in exceptional circumstances and that the court must consider other remedies first. For example, if the conduct of the police is improper, such conduct can be considered in sentencing.
ANALYSIS
[136] I will first address the accused’s application for a stay of proceedings on the grounds that his Charter Rights were breached.
[137] I accept the submissions of defence counsel that at the time the officers approached the accused’s SUV, they did not have reasonable and probable grounds to arrest the accused. Evidence available at the time, at its best, is that the accused was seen in the company of a person suspected of dealing drugs. Nothing was ever seen in the accused’s hands nor was any drug transaction observed.
[138] Nevertheless, as noted and conceded, the necessary reasonable and probable grounds existed at the actual time of arrest. The fact that it was the officers’ intention to arrest the accused when they first approached the SUV is irrelevant as no arrest was made at that time.
[139] Therefore the arrest of the accused did not violate any Charter Rights, nor did the issuance of the search warrant authorizing the police to search the accused’s SUV.
[140] I do believe however that the police used excessive force in affecting the arrest and thereafter. In forming this opinion, I do not include the shooting as an incident of excessive force. I accept the evidence of Constable Laing that he believed his partner’s life was in danger, given the accused’s actions of reversing his SUV. I accept that he lost sight of his partner after which he decided to fire a single shot.
[141] However I do find that at the point the officer’s approached the SUV on the road, after the shot was fired, it was a reasonable conclusion that the accused had been shot. The driver’s door window was shattered. One of the officer’s had discharged his firearm in the vicinity of the driver’s door. To pull the accused from his vehicle and put him on the ground given his wounds was an excessive display of force. The attempt to drag the accused to a police car and their attempt of placing the accused in the back seat was another example of excessive force.
[142] In requesting a stay of proceedings counsel for the accused relies on the decision of the Ontario Court of Appeal in R. v. Tran 2010 ONCA 471, 103 O.R. (3d) 131. Commencing at paragraph 83 therein the Appeal Court discusses the remedy of a stay of proceedings.
The inherent jurisdiction of a superior court to stay proceedings as a measure of control over the judicial process was affirmed in R. V. Jewett 1985 47 (SCC), [1985] 2 S.C.R. 128, [1985 S.C.J. No. 53. The common law abuse of process doctrine is designed to protect the fundamental principles of justice that underlie the community’s sense of fair play and decency…The objective of a stay as a remedy is to maintain public confidence in both the legal and the judicial process.
[143] The Court goes on to discuss the treatment of the remedy, post-Charter. At paragraph 85 reference is made to R. v. O’Connor 1995 51 (SCC), [1995] 4 S.C.R. 411 in which it is noted that a stay of proceedings is an exceptional remedy to be employed as a last resort.
[144] At paragraph 73 of the O’Connor decision the Court stated,
“In addition, there is residual category of conduct by s. 7 of the Charter. this residual category does not related to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.”
[145] At paragraph 87 of the Tran decision the Court continued to reference the O’Connor decision noting the court in O’Connor went on to suggest that there may be a third criterion in cases where it is not clear that the abuse in question is sufficient to warrant a stay. In such cases, “it will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision of the merits: para. 92.”
[146] The court acknowledged that a stay would be appropriated in a situation where the abuse is so traumatic that to continue with the prosecution would be unfair (para. 88).
[147] From paragraph 90 and 91 of the Tran decision I quote,
“Few cases appear in Canadian jurisprudence where a stay has been imposed as a remedy specifically for police brutality. But there have been some…
These cases demonstrate that the determination of whether a sentence reduction or a stay of proceedings is the appropriate and just remedy in the circumstances will depend upon the application of the above principles to the facts of each case.”
[148] R. v. Nasogaluak 2010 SCC 6, [2010] 1 S.C.R. 206, is an authority that where excessive police force is deemed to violate a person’s Charter Rights resort is made to section 24(1) of the Charter which allows a court to consider the remedy of a reduction of sentence (para. 47).
[149] I do not believe the excessive force used by the police in this matter is such that a stay of proceedings is required. This case is not one of the rare exceptions requiring a stay.
[150] In making this decision I am also taking into account that the accused’s permanent disability, paraplegia, was not as a result of the post-arrest, excessive force. The accused’s injury was a result of the bullet which lodged in the accused’s spine (one of the agreed facts). There is no evidence before me that the subsequent use of force caused or contributed to the disability.
[151] The conduct of the police will be accounted for in sentencing.
[152] Turning now to the trial issues, I will now consider the issue of whether or not the accused knew that the men on either side of his SUV were policemen.
[153] I do not believe and accept the evidence of the accused on this point as it is difficult to believe his evidence that he did not know the men were police given the evidence of the officers and his admission of being in possession of illegal substances.
[154] On this point however I do have a reasonable doubt.
[155] Both officers were driving unmarked police cars and were in street clothes. As members of the Street Crime and Gang Unit they dress in a manner so as to hide the fact that they are policemen.
[156] The incident occurred after dark and the driveway was not very well lit.
[157] English is not the first language of the accused. If he could hear what the officers were saying he may not have understood.
[158] The accused testified that after he was on the road he was yelling for someone to call the police. That fact is corroborated by two witnesses who heard the accused say, call the police. A reasonable inference can be drawn that the accused would only say such words if he did not know Savino and Laing were police officers.
[159] The Crown suggests that there could be other inferences as to why the accused would make such utterances and that may very well be true. However, the fact that it is reasonable to infer that the accused did not know that Lang and Savino were police officers creates a reasonable doubt.
[160] It was conceded by the Crown that the accused would have to know Officer Savino was a policeman to obtain convictions on Counts 1 and 4. Count 1 requires the unlawful obstruction of a police officer. Count 4 involves an assault of Constable Damian Savino with intent to resist lawful arrest. The identification of Savino as a police officer is an essential element of these counts. As a result there will be a finding of not guilty on Counts 1 and 4.
[161] With respect to Count 3, there is no doubt Constable Savino was struck by the right side exterior mirror when the accused accelerated in reverse down the driveway. It was an application of force and the SUV could be considered, in such circumstances to be a weapon. The issue then is one of intent.
[162] I accept the evidence of the accused that his intention was to flee and not to assault anyone. At the very least, I conclude there is reasonable doubt as to whether the accused reversed his vehicle with the intention of assaulting Constable Savino.
[163] On count 3 the accused is found to be not guilty.
[164] I turn know to Count 2, dangerous driving.
[165] Section 249(1) of the Criminal Code relates to the manner of driving and it is unnecessary to prove the harm resulted to others or that the lives or safety of others were actually endangered.
[166] The question that must be asked in relation to this charge is whether the accused’s reversing out of the driveway in close proximity to Officers Savino and Laing constituted a manner of driving that is objectively dangerous to the public having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.
[167] The test for dangerous driving, as articulated in R. v. Hundal (1993) 1993 120 (SCC), 79 C.C.C. (3d) 97 (SCC), is whether the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s situation.
[168] To establish the requisite mens rea, a modified objective approach must be used. In R. v. Beatty 2008 SCC 5, [2008] 1 S.C.R.49, at paras. 7-8, Charron J. described this approach as containing two important elements. The first element is that, “There must be a marked departure from the civil norm in the circumstances of the case.”
[169] The second element is that of the mental state of the accused which must also be considered. Charron J. noted, at paragraph, 20,
“Where the accused raised a reasonable doubt whether a reasonable person in his or her position would have been aware of the risks arising from the conduct, the premise for finding objective fault is no longer sound and there must be an acquittal. The analysis is thus contextualized, and allowances are made for defences such as incapacity and mistake of fact. This is necessary to ensure compliance with the fundamental principle of criminal justice that the innocent not be punished.”
[170] My finding of reasonable doubt with respect to the accused’s knowledge of whether or not he knew Laing and Savino were policemen goes to the analysis of whether there was a marked departure.
[171] In order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct of the accused.
[172] The short length of time during which the impugned conduct occurred does not necessarily negate the liability of the accused (Beatty para. 47). However, on the same point, I quote from paragraph 48 of the Beatty decision, “Nonetheless, a Doherty J.A. aptly remarked in Willcock, ‘conduct that occurs in a brief time frame is the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum.’”
[173] In R. v. Foos 2010 BCSC 1771 the accused was charged with dangerous driving and was acquitted as the requisite mens rea had not been made out. The accused had been pulled over by the police while driving a stolen truck when he suddenly accelerated and moved forward with an officer in his passenger door with a drawn gun. Koenigsberg J. found that this conduct did not amount to a “marked departure”. From paragraphs 37 and 42 I quote,
“This accused in this situation cannot be said to have made a deliberate decision to drive at all, much less dangerously. He reacted in the fight or flight sense, that is, instinctively to the perception of imminent harm from a firearm.
In my view, one can take judicial notice that reasonable persons in situations of peril, where control of the peril appears outside their ability, react in often irrational ways, in everything from paralysis to appropriate actions to completely wrong actions. Instinctive reactions when one is not trained to recognize dangers and control one’s fight or flight instinct are varied, unpredictable and often irrational.”
[174] R. v. Mullen 2014 ONCJ 14, is a case in which an accused suddenly accelerated his vehicle possibly running over the foot of an officer who had his gun drawn and pointed at the accused. The Court found that the accused had been unaware that a police officer was attempting to pull him over until such time as the officer was standing outside of the accused’s vehicle with his gun drawn and pointed at him.
[175] G. F. Hearn found that such actions were not a marked departure and from paragraph 140 I quote,
“In this case Mr. McMullen and a reasonable person in his place would have been understandably shocked and intimidated by the presence of Cst. McArthur at their window when there was nothing in their conduct beforehand or determined thereafter to understand such a drastic manoeuver on the part of the officer. The conduct of Mr. McMullen with that presentation was instinctive and understandable and his conduct thereafter, which is alleged to be criminal, was brief and, I find, brought to an end by his own good judgment. Although some might say when an officer presents a gun you simply become compliant, but that certainly depends on the circumstances of the presentation of the gun. In all of the circumstances here compliance is not necessarily a given.”
[176] A mistake of fact is essentially a denial of mens rea. As noted in paragraph 38 of the Beatty decision, “A reasonably held mistake of fact may provide a complete defence if, based on the accused’s reasonable perception of the facts, the conduct measured up to the requisite standard of care.”
[177] R. v. Kravshar 26 M.V.R. (5th) 237 is a decision of Allen Prov. J. The accused was charged with dangerous driving. He had passed some officers and shouted expletives at them and then carried on driving. One officer ran after the vehicle and caught up when it was stopped at a red light. The officer went to the driver’s window and made a remark to the accused. The accused believed that the man at his window was a hooligan and turned his vehicle in the direction of the officer, who held on to the vehicle and then fell off.
[178] The judge found that the defence of mistaken fact was sufficient to negate the mens rea and stated at paragraph 24, that “When carefully considered, the accused’s testimony, along with officer’s testimony, creates a reasonable doubt that Mr. Kravshar was acting under an honest but mistaken apprehension that he was about to be attacked.”
[179] The issue of whether or not the accused, in the matter before me, knew that Constables Laing and Savino where policemen goes the heart of this charge. I have concluded there is a reasonable doubt in this regard which gives rise to a reasonable doubt as to a “mistake in fact”.
[180] The officers acknowledged that the reversing of the accused’s SUV happened in a matter of seconds. It is agreed that once the accused was shot he could no longer be responsible for the manner of movement of the SUV as he was no longer in control of the vehicle.
[181] Counsel for the accused submits that Officer Laing shot the accused at the moment his client shifted the SUV into reverse. He submits therefore that the SUV was not under his client’s control at any time when it was moving in reverse.
[182] The Crown submits that the shot occurred at some point after the SUV commenced accelerating down the driveway and after the point Officer Savino was struck by the passenger side exterior mirror. Constable Laing moved laterally with the van for some period of time before he took the shot. The Crown submits that the accused was in control of the SUV for a sufficient amount of time, measured in seconds, when it was operated in a manner dangerous to the public, taking into account all the circumstances. Window glass was found on the driveway, adjacent to the handles on the passenger side of the Caravan parked to the left and behind the SUV, suggesting some movement occurred before the shot.
[183] In my opinion, the evidence is not clear as to when the shot was taken in relation to the movement of the SUV. The location of the glass does not necessarily define the location of where the shot was taken. Again we are dealing with a very brief period of time and the glass may have remained in the window for some brief period of time before it fell on the driveway.
[184] Further, while Constable Savino was struck by the mirror the amount of driving in issue is not sufficient to establish the required marked departure. The fact he was hit is not relevant to the issues of whether or not there was a marked departure. It is the manner of the driving and not the consequences which must be considered.
[185] Further and as noted in the Kravshar case, the driving of the accused must be measured against what a reasonable person attempting to get away from strangers who he fears are there to do harm to him, would consider is a marked departure. This mistake of fact negates the mens rea of the offence.
[186] His actions, given the reasonable doubt, can be considered instinctive and understandable.
[187] For these reasons the accused is found not guilty on Count 2, dangerous driving.
RULING
[188] In summary the accused is found guilty on Counts 5 and 6 and is found not guilty on Counts 1 to 4, inclusive.
Bielby J.