Court File and Parties

COURT FILE NO.: CR-14-9-593 DATE: 20170718 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – JAVONI PALMA Applicant

Counsel: Eric L. Gilman, for the Crown Fariborz Davoudi, for the Applicant

HEARD: May 8,9,10,11,15,16,17,18,19,24, 25 and 26, 2017

K.P. WRIGHT, J.

Introduction

[1] Javoni Palma comes before this court charged with one count of possessing cocaine for the purpose of trafficking on April 15, 2013.

[2] Mr. Palma elected to be tried by a judge sitting without a jury.

[3] On April 15, 2013, PC Manserra and PC Christian received information from an unknown female stating that she observed males in a white Ford vehicle dealing drugs in the underground parking lot at 138 Bellamy Road North in Scarborough. The officers attended at the underground parking lot and located a white Ford vehicle. Mr. Thomas was in the driver’s seat, his girlfriend Ms. Gray was standing outside the vehicle, and Mr. Palma was standing by the open front passenger door. Within seconds of the officers exiting the police car, a foot chase ensued between Mr. Palma and PC Manserra. The chase ended when PC Christian drew his firearm and ordered Mr. Palma to stop. Mr. Palma slowly made his way to the ground while simultaneously discarding two bags containing crack cocaine. Mr. Palma, Mr. Thomas, and Ms. Gray were all arrested and charged. The charges against Ms. Gray and Mr. Thomas were ultimately withdrawn.

[4] At the outset of trial, Mr. Davoudi, on behalf of Mr. Palma, brought three applications asserting that Mr. Palma’s rights pursuant to section 9 and section 7 of the Charter were violated. By way of relief, defence counsel is seeking that the evidence seized be excluded pursuant to section 24(2) of the Charter and/or that the charges be stayed pursuant to section 24(1) of the Charter.

[5] This is my ruling on the Charter applications.

Position of the Parties

[6] Defence counsel submits that PC Manserra and PC Christian fabricated their evidence that they received information about drug dealing in the underground parking lot. Defence counsel submits that police were on a “frolic” and had absolutely no grounds upon which to detain or arrest Mr. Palma. He submits that the police used excessive force in the arrest of Mr. Palma when they kneed him in the ribs, legs, and head. He further submits that the incident or parts of it were captured by Ms. Gray and Mr. Thomas on their respective iPhones. Both phones were seized by the police. Efforts made by the Toronto Police Service (“TPS”) Technical Crimes Unit and a defence expert to extract this video evidence from the iPhones have been unsuccessful to date. Defence counsel takes the position that the police tampered with and/or deleted the video evidence and, in doing so, severely prejudiced Mr. Palma’s ability to make full answer and defence.

[7] Mr. Gilman, on behalf of the Crown, takes the position that all three applications are without merit. Crown Counsel submits that the police, as a result of information received, had ample grounds to enter the parking garage and approach and detain Mr. Palma. Mr. Palma resisted arrest and any force used by the police to handcuff and arrest him was necessary and reasonable. Finally, the Crown takes the position that the police did not tamper with the seized iPhones and that the contents of those video recordings, if they did exist, are irrelevant to these proceedings.

The Evidence

[8] The outcome of these applications turns on the facts as I find them. As such, it helps to review the evidence in some detail.

[9] There is no dispute that, on April 15, 2013, PC Manserra and PC Christian were conducting traffic enforcement at the intersection of Prochester Road and Bellamy Road North. They were in a marked police car and in full uniform. PC Manserra was the driver and PC Christian the passenger.

[10] There is also no dispute that, at approximately 2:30 that afternoon, the officers drove their police car into the underground parking lot at 138 Bellamy Road North. Once inside, they brought their police car to a stop directly in front of a white Ford motor vehicle parked only a few spaces in from the entry ramp. Almost immediately upon bringing their vehicle to a stop, both officers exited and approached the white Ford on foot. All of this activity is confirmed and captured on video clips from the parking lot contained in Exhibit 1.

[11] Both officers testified that their attendance in the underground parking lot was motivated by information they received from an unknown lone female. Both officers testified that an unknown female approached them while they were parked doing traffic enforcement. PC Manserra testified that a lone female drove towards them and parked directly in front of the police car. The female exited and came to the driver’s window of the scout car. She told them that she was a resident of 138 Bellamy Road North, that she had just come from the underground parking lot, that there were males in a white Ford dealing drugs, that they are always there, and that she saw an exchange. She said the garage door was still open and that the white Ford was the second car in. PC Manserra testified that he did not record verbatim what the female told him with the exception of the word “exchange”. PC Manserra testified that he did not ask for or receive any other information from the female. He said she blurted out the information and left. The entire interaction was completed in a matter of seconds.

[12] PC Christian recalled a similar exchange with the female. He, however, recalled that the female said there were two males involved. He recalled the female was walking, not driving. He made no note of her description but did recall her being white and between 35 to 40 years of age. PC Christian acknowledged that he could not recall even this brief description of the female when he testified at the preliminary hearing.

[13] Defence counsel argues that this inconsistency left unexplained by PC Christian is significant. I disagree. Not every inconsistency effects a witness’s credibility. PC Christian’s description of the female was prefaced with the phrase “I believe”, which in my view lies far closer to guessing than to actual certainty. Although typically people’s memories do not improve over time, there are instances where witnesses, for whatever reason, remember new or different details at different times. I find the answer was offered up as a ‘best guess’ by the officer and nothing more. I am not troubled by it.

[14] Both officers testified that they did not call for backup before they entered the underground garage. There is no dispute that backup officers arrived after all three individuals were arrested. This is confirmed in the garage video clips contained in Exhibit 1 and the in-car camera video contained in Exhibit 7. At the preliminary hearing, PC Christian testified that he did call for backup. When cross-examined on this potential inconsistency, he explained that he did call for backup, but the call was made towards the end of the arrest. I have reviewed the preliminary hearing transcript on this point. I find that there was no reference to a specific time frame and therefore no inconsistency.

[15] There is no dispute that immediately upon exiting the scout car, PC Manserra approached Mr. Palma, who was standing outside the white Ford on the front passenger side. This is consistent with the evidence of Mr. Palma who testified that he stepped out of the vehicle because he wanted to call a lawyer when he saw the police car coming down the ramp. PC Manserra testified that, as he walked in the direction of Mr. Palma, Mr. Palma began to walk away and told him he was calling his lawyer. When Mr. Palma walked in the direction of the garage door, which was clearly open, PC Manserra stood in his path. Then Mr. Palma fled on foot into the garage.

[16] Mr. Palma testified that PC Manserra lunged at him and that is why he ran away.

[17] Some of the interaction between Mr. Palma and the police was captured on video recordings from the underground garage. The recordings are a series of individual video clips of varying lengths, all of which are contained in Exhibit 1. The initial approach of the officers and portions of the foot chase were captured on these video clips. The take-down and ultimate arrest of Mr. Palma was not.

[18] There is no dispute that the foot chase was contained to the garage and was brief. PC Manserra testified that during the chase he threw his baton hoping to trip Mr. Palma. Mr. Palma testified that the officer threw his baton twice and, on one occasion, it clipped his leg but did not stop him from running. Defence counsel argues that the video clips show the officer throwing his baton on two separate occasions and is a clear demonstration of excessive force by PC Manserra. PC Manserra only recalls throwing his baton once and was not persuaded otherwise even after viewing the video clips. Defence counsel argues that this lack of recollection is an attempt by the officer to further minimize his use of excessive force.

[19] I have reviewed the two video clips numerous times. One clip shows the officer reaching for his baton as he rounds the centre stairwell. The second clip shows the baton rolling across the floor and hitting a wall. Initially, I thought it was one throw captured on two different cameras. The time stamps suggest otherwise. The officer had no confidence in the accuracy of the time stamps and therefore was not convinced that he threw his baton twice. The evidence in my view is at best confusing. Even if the officer did throw his baton twice, I am not persuaded that his lack of recollection on this point impinges on his credibility.

[20] There is no dispute that PC Christian initially approached Mr. Thomas, who was in the driver’s seat of the motor vehicle. Again, this is borne out in the video clip. After a very brief interaction, the officer is drawn into the foot chase. He attempts to stop Mr. Palma and falls to the ground. Only a small portion of this interaction is captured on the video recording.

[21] Most of what happens next is out of range of the garage cameras. The defence would have me conclude that the officers deliberately apprehended Mr. Palma off camera. I do not. The officers had never before been in the underground garage and had no idea if there were cameras and where they were located.

[22] There is no dispute that, after recovering from his fall, PC Christian made his way to Mr. Palma’s location, drew his firearm and ordered Mr. Palma to stop. Mr. Palma complied and slowly made his way to the ground. Mr. Palma then discarded two small baggies containing crack cocaine.

[23] Mr. Palma testified that when he was face down on the garage floor the officers kneed him in the legs, ribs, face, and head. The officers testified that they did not strike or knee Mr. Palma. PC Manserra testified that Mr. Palma complied with the instruction to lie on the ground but once there began actively resisting once more. Mr. Palma had his hands and arms under his body to resist being handcuffed. It took both officers to successfully restrain and handcuff Mr. Palma. As soon as Mr. Palma was successfully handcuffed, PC Christian’s attention was drawn to Mr. Thomas.

[24] Mr. Thomas testified that he stayed in the car until he heard Mr. Palma yell out to him. He testified that is when he exited the car and began recording the incident. The video clip from the parking lot shows Mr. Thomas walking slowly away from the location of his car and looking down at the cellphone in his hand. His evidence is unclear and inconsistent on whether he was recording at that point.

[25] Mr. Thomas testified that he saw Mr. Palma get arrested at gun point. He said Mr. Palma dropped to his knees and put his hands in the air. He said PC Manserra was on top of Mr. Palma making fast, forward motions with his knees, feet, and elbows. Mr. Thomas said PC Manserra was “most likely hitting him” and “you could tell he was assaulting him because that is what it looked like to me.”

[26] PC Christian testified that he observed Mr. Thomas approach the location of Mr. Palma’s arrest and, en route, attempted to pick up the two baggies of crack cocaine tossed aside by Mr. Palma. This resulted in Mr. Thomas being arrested. PC Manserra testified that Mr. Thomas was resisting being arrested by PC Christian and, in order to gain control, he bear hugged Mr. Thomas while simultaneously sweeping his feet out from under him, forcing him to the ground. Once grounded, Mr. Thomas continued to resist, forcing PC Manserra to handcuff him to the front. The preferred and safer procedure is to handcuff to the rear. The in-car camera video footage contained in Exhibit 7 clearly shows Mr. Thomas handcuffed to the front and PC Manserra on his left side holding him.

[27] Mr. Thomas testified that the officers used excessive force in arresting him. He also testified that he recorded the entire incident on his iPhone. As noted above, in one of the video recordings it appears that Mr. Thomas does have his iPhone in his right hand with his arm outstretched in front of him. He very well may have been recording the arrest. However, the fact that he was able to maintain possession of his iPhone while being arrested is inconsistent with the allegation of excessive force and consistent with the officers’ testimony that he was resisting being handcuffed.

[28] Mr. Thomas was perhaps one of the most evasive witnesses I have ever encountered. More than once he had to be directed to answer questions. His reluctance to admit even the most innocuous life details was palpable and impinges greatly on his credibility. For example, he was reluctant to acknowledge knowing and being friends with Mr. Palma since they were young boys in elementary school. He was reluctant to admit that he texted Mr. Palma from time to time. He was reluctant to admit that Ms. Gray was his girlfriend of four years. He was reluctant to admit that he referred to Ms. Gray as “Shy” (short for Cheyenne) or that he saved her by that name in his contacts on his iPhone.

[29] For the most part, I got the sense that Mr. Thomas was just making up his evidence as he went along. He testified the he went to the hospital. However, after being released from police custody because he thought the officers broke his thumb, he couldn’t recall what hospital he went to, nor could he recall if his thumb was actually broken or if he had a cast on it. Surely, Mr. Thomas would recall if the police had broken his thumb, and it was in a cast. After all, he testified that this was a traumatic event for him and that is why he could recall the details.

[30] Mr. Thomas testified that, when he was being arrested, he called out for Ms. Gray. Ms. Gray testified that she remained in the car until she heard Mr. Thomas call out for her. She said that from her position in the car she clearly saw the police arrest Mr. Palma at gun point. She described them as body slamming Mr. Palma and forcing his neck and head into the ground. She also described one officer shoving his knee into Mr. Palma’s back. Ms. Gray said, from her location, she did not see Mr. Thomas being arrested. However, once she made her way to Mr. Thomas’ location, she saw him on the ground on his stomach and the officer choking him and holding his one arm behind his back. She said Mr. Thomas was not resisting; he was recording the incident and calling the officer stupid. She testified that she recorded approximately 30 to 40 seconds of Mr. Thomas being arrested until she was arrested by PC Christian. She did not record the arrest of Mr. Palma.

[31] Ms. Gray repeatedly testified that she was shocked and scared during the entire incident. She testified that PC Christian came within inches of hitting her legs when he drove the police car to Mr. Thomas’ location. It was obvious she wanted the court to infer that this was a deliberate manoeuver on the part of PC Christian. She said she was shocked that she was being arrested and made no attempt to resist. It was clear she wanted to leave the court with the impression that this was a shockingly scary and overwhelming experience for her.

[32] The video footage from the TPS in-car camera system and the garage video clips tells a much different story. The garage video clips depict a calm, deliberate, sure-footed Ms. Gray who could manage two iPhones at one time while making her way to the location of her boyfriend’s arrest. The in-camera video shows a defiant Ms. Gray refusing to move out of the way of the police car when it approaches. Moreover, it captures her entire arrest and clearly shows her actively resisting arrest. If I were inclined to give Ms. Gray the benefit of the doubt, I would say she is prone to exaggeration. However, given the lengths she was prepared to go, I think her testimony lies far closer to deliberate deceitfulness. Her loyalties clearly lie with Mr. Thomas and I am not prepared to place any weight on the evidence of Ms. Gray.

[33] It was interesting that both Mr. Thomas and Ms. Gray testified that the police dragged Mr. Palma across the garage after being arrested, yet Mr. Palma made no mention of being dragged in his testimony. More concerning is that the descriptions of dragging by Ms. Gray and Mr. Thomas are inconsistent with each other. Mr. Thomas initially said he was “pretty sure” Mr. Palma was dragged chest-down across the ground but that he might not remember because he was being dealt with at that point. He then said he did remember the dragging and remembers hearing “dragging sounds” and has a “pretty decent memory of it”. On a third occasion, he states that he “kinda has a recollection of dragging sounds”. His evidence on this point was internally inconsistent and confusing, and significantly impinges on his credibility.

[34] Ms. Gray also testified that Mr. Palma was dragged, but she described it as being pushed forward and specifically said he was not being dragged on the ground. She described it as “pushing someone forward who is unwilling to go” and agreed that it was more like shuffling along.

[35] The evidence of Ms. Gray, Mr. Thomas, and Mr. Palma was inconsistent in other key areas. Ms. Gray testified that, after PC Christian pointed his firearm at Mr. Palma, he was body-slammed to the ground. Mr. Thomas said Mr. Palma went to his knees and put his hands up. Mr. Palma testified that he went to the ground and simultaneously tossed the drugs. All three differ in their description of the excessive force that followed Mr. Palma going to ground. In my view, the evidence of Ms. Gray and Mr. Thomas is deeply troubling and I am not prepared to place any weight upon it.

Analysis

Section 9: Arbitrary Detention

[36] I turn first to the allegation that the officers lacked sufficient grounds to investigatively detain Mr. Palma and in doing so violated his section 9 Charter rights.

[37] The law is clear: A police officer may briefly detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary.

R. v. Mann, 2004 SCC 52, 185 CCC (3d) 308, at para. 45.

[38] Defence counsel takes the position that the police officers fabricated their evidence about receiving information from the unknown female. He says they got bored giving out parking tickets and went on a “frolic” of their own when they came upon Mr. Palma and Mr. Thomas in the underground parking garage.

[39] Defence counsel argues that if the officers actually received information of a drug deal in the garage, they would have taken safety precautions before entering. Their failure to do so undermines the believability of their evidence.

[40] Both officers agreed that the information they had from the female was limited and that a further inquiry would have been optimal. Both said there was no opportunity to do so. The female approached, blurted out her information, and left. The entire interaction took a matter of seconds. Defence counsel argues that the officers could have yelled out to her as she walked away. I suppose that is a possibility, but the fact that they did not does not detract from the veracity of their evidence.

[41] Both officers testified that they did not call for back up before entering the garage. Defence counsel argues that this makes no sense given the potential danger that lies in wait for the officers. I disagree. PC Manserra testified that resources are limited and calling for back up does not guarantee that back up will arrive. Moreover, policing is inherently dangerous and unpredictable. Officers are required and trained to make quick decisions, which often means taking chances. In my view, the officers in this case were just doing their job when they decided to investigate and enter the garage without back up. It does not impinge on their credibility and I am not troubled by it.

[42] I am mindful of the inconsistencies between the evidence of PC Manserra and PC Christian. In my view, they are minor. More importantly, they are expected. Not only because the incident happened over four years ago, but because we all perceive and remember things differently: that is human nature. In this case, for example, PC Manserra did not note or recall if the female informer said how many males were at the white Ford. PC Christian noted that the female informer said two males were at the white Ford. I am not troubled by this difference or others like it because, as I said, it is expected and to a large extent defeats defence counsel’s argument that the officers colluded when making their notes. The officers testified that they made the majority of the notes back at the division and exchanged information about times, locations, and other minor details. I find nothing nefarious or improper about this type of interaction. It is common practice for officers to do so.

[43] Defence counsel argues that the information received from the female was stale and therefore the police were not entitled to rely upon it. I disagree. The garage video clips show an approximately two-minute time lag between Mr. Palma attending at the white Ford and the police arrival. In my view, the information received was fresh and the police response was immediate.

[44] Defence counsel argues that, based on the video clips from the garage, the female informer would have exited the garage prior to Mr. Palma’s arrival at the white Ford, making it impossible for her to have seen two males dealing drugs. It is true that just prior to Mr. Palma arriving at the white Ford there are several vehicles seen exiting the garage and there are none after he arrives at the car. However, the evidence is that Ms. Gray and Mr. Thomas were inside the car prior to Mr. Palma’s arrival at it and during the time the other vehicles were exiting the garage, making it entirely possible for the female informer to have mistakenly assumed that Ms. Gray was a male. It may also account for why the female informer only referred to two males and made no mention of a female. Even if the female informer was mistaken, it does not prevent the police from investigating.

[45] I find as a fact that the officers were approached by an unidentified female and that the information they received from her triggered their entry into the garage.

[46] I find as a fact that the information they received from her was as follows:

• she was a resident of 138 Bellamy Road North and she had just left the underground garage;
• prior to leaving she observed a white Ford motor vehicle parked one space in from the entrance;
• she observed two males in that vehicle;
• she observed an ‘exchange’, meaning drug deal; and
• she has known that there has, on prior occasions, been drug dealing in the garage.

[47] There is no dispute, and I find as a fact, that when the police entered the garage they intended to investigatively detain the individuals associated with the white Ford. That intention on behalf to the police does not in and of itself trigger a constitutional challenge.

R. v Clayton, 2007 SCC 32, 220 C.C.C. (3d) 449.

[48] The question becomes: when was Mr. Palma detained?

[49] In R. v. Grant (2006), 209 C.C.C. (3d) 250 (Ont. CA) appeal in part 2009 SCC 32, Laskin J.A. outlines the three requirements necessary for a psychological detention, at para. 28:

(1) a police direction or demand to an individual; (2) the individual’s voluntary compliance with that demand; and (3) the individual’s belief that there is no choice but to comply.

[50] In this case, the intention of the police was obvious from the moment that they entered the garage and pulled up nose-to-nose with the white Ford. Mr. Palma was already out of the car and on the move when PC Manserra began walking in his direction. After a very brief exchange, and Mr. Palma telling PC Manserra that he was calling his lawyer, the chase was on. I have seen the video clips numerous times. I do not accept that PC Manserra lunged at Mr. Palma. It is clear from the video that Mr. Palma was walking towards the open exit ramp and, when he saw PC Manserra in his path, he turned and began running. PC Manserra began running after him.

[51] Although there is no evidence of a verbal demand for Mr. Palma to stop, the implication to do so was abundantly clear. PC Manserra threw his baton at Mr. Palma at least once, maybe twice, in the hopes of tripping him. There is no doubt that Mr. Palma knew the police were attempting to catch him. At one point during the chase, Mr. Palma came into contact with PC Christian, which resulted in PC Christian falling to the ground. The chase came to an end when PC Christian drew his firearm and yelled at Mr. Palma to stop. Mr. Palma stopped running, tossed two baggies of crack cocaine to the side, and made his way to the ground. Mr. Palma complied with that demand and that, in my view, is when he was detained.

[52] The validity of that detention must be measured by the facts known to the police at the time.

R. v. Nesbeth, 2008 ONCA 579, 240 O.A.C. 71, at para. 17 (Ont. C.A.).

[53] I find those facts to be as follows:

• the information from the female resident of the building that she saw a drug exchange between two males who were in a white Ford motor vehicle that was parked in the underground garage close to the exit ramp;
• the police confirmation of the information received just moments earlier;
• that Mr. Palma immediately started running when PC Manserra approached him; and
• that Mr. Palma used some degree of force in an attempt to escape when he connected with PC Christian.

[54] I have turned my mind to the tossing of the drugs by Mr. Palma which happened simultaneously with the gunpoint takedown. As is often the case in these rapidly evolving situations, it is difficult to determine where in the sequence of events this action falls. It seems to me that the discarding of the drugs was triggered by the gunpoint takedown and happened a fraction of a second after the actual detention of Mr. Palma. It therefore does not fall into the constellation of factors to be considered in determining the validity of the detention.

[55] In my view, the remaining factors present at the time of detention provided the police with ample grounds to a suspect that Mr. Palma was involved in criminal conduct involving drugs. The police were not on frolic or acting on a hunch, their grounds were reasonable and, as a result, I find they were entitled to detain Mr. Palma for investigative purposes.

[56] The section 9 application is dismissed.

Section 7: Excessive Force

[57] I will now turn to the allegation that the police used excessive force during the detention and arrest of Mr. Palma and, in doing so, violated his section 7 Charter rights.

[58] Mr. Palma testified that the officers kneed him in the ribs, legs and head when he was face down on the ground being arrested. Mr. Palma testified he was compliant with the officers and offered no resistance. He said he suffered pain in his thigh for approximately two weeks following his arrest. He described it as a “charlie horse.”

[59] For the reasons already given, I am not prepared to rely on the observations and/or evidence given by Ms. Gray or Mr. Thomas. I do not intend to repeat those reasons now. Suffice to say, their credibility and reliability are questionable at best.

[60] The officers deny striking, kicking, kneeing, or using any excessive force in the arrest of Mr. Palma. They both said Mr. Palma resisted being handcuffed and it took both of them to get his hands out from underneath his body to handcuff him.

[61] I have also considered the evidence of the recording from the TPS in-car camera. It shows Mr. Palma and PC Christian standing at the front of the police car. There is no audio, but it is clear from the video that PC Christian tells Mr. Palma that he is being recorded. The recording captures a front view of Mr. Palma while PC Christian is performing a routine cursory pat down search. Mr. Palma shows no signs of having been assaulted in the way he describes. Apart from some dust on the front his jacket (from being face down on the ground), he appears remarkably un-disheveled. Everything appears to be in place, right up to the hat on his head.

[62] I have also reviewed the booking video of Mr. Palma. Again, Mr. Palma appears completely intact. There are no bruises or marks on his person. He made no complaints other than saying his leg or legs are sore. When asked why they are sore, his response is indecipherable. Defence counsel argues that this is when Mr. Palma told the booking Sergeant that the officers had roughed him up. I disagree. The entire booking is audio and video recorded in large measure to ensure proper procedures are followed and officers are held accountable. The officers had no knowledge that Mr. Palma’s response about his leg pain would be indecipherable. I am satisfied that if Mr. Palma had even hinted that he had been assaulted during the course of arrest, the Staff Sergeant booking him in would have made further inquiries. Moreover, when asked if he needs medical attention, he says “don’t worry about it”.

[63] I have also considered the audio picked up on the TPS in-car camera of Mr. Palma as he was being placed in the police car. He is recorded saying to PC Christian, “why did you have to kick me in the head”. He says this more than once. The response from PC Christian is indecipherable. Defence says this is further evidence to support Mr. Palma’s position that he was assaulted by the officers in the course of being arrested. I disagree. Mr. Palma knew full well that everything he said and did was being recorded. I find that the utterances were concocted by him in the hopes of creating a false record.

[64] As previously mentioned, Exhibit 1 contains a number of short video clips from the underground garage at 138 Bellamy Road North. Each clip is from 20 to 30 seconds in length. The clips are from different cameras set up in the garage. I have no evidence about how many cameras there were at the time of this incident or where they were located.

[65] PC Manserra testified that he made three attempts to seize the videos after the incident. He attended at 138 Bellamy Road North on April 17 and 18, 2015, but there was no one was available to assist him. When he attended a third time, on May 24, 2015, he was told that the video had already been picked up. On June 3, 2015, he came into possession of the video, at the district office. He watched some portion of it to ensure the tape was not blank or corrupted. He then put it into a secure property locker.

[66] Defence counsel seems to suggest that, because there are no video clips of the actual arrest of Mr. Palma, the video was tampered with by the police. There is absolutely no evidence before me to support this very serious allegation. Defence counsel warns that I should be cautious because the police are unable to say with any certainty how the video came into their possession. It is true that there is a lack of clarity with the tracking of the video from 138 Bellamy Road North to the police district office. However, there is also evidence, which I accept, that police were adopting a new procedure for video pick-up in the spring of 2015. The procedure was in its infancy at the time of this offence and that may be where the confusion stems from. It does not, however, support a finding that the police did something improper or nefarious.

[67] After a thorough consideration of all the evidence, I am not persuaded that the police used excessive force in the arrest of Mr. Palma. I do not accept that he was not resisting arrest. When Mr. Palma took flight and refused to stop for the police, he was resisting. I find he further resisted by holding his hands and arms underneath his body to avoid being handcuffed. It was only after the officers struggled on the ground with Mr. Palma that he was successfully handcuffed. There is no doubt that some force was involved, but no more than was necessary and reasonable under the circumstances. It certainly did not involve any gratuitous striking of Mr. Palma by the officers. If he did incur any injury or discomfort, in my view, it was completely inadvertent.

[68] Accordingly, this application is dismissed.

Section 7: Lost Evidence

[69] Finally, I will turn to Mr. Palma’s submission that his inability to view the video footage that was captured on Ms. Gray’s cell phone has severely prejudiced his ability to make full answer and defence and is a breach of his section 7 Charter rights.

[70] A stay of proceedings is appropriate only where the breach of the Crown’s disclosure obligation causes the accused’s ability to make full answer and defence to be irreparably prejudiced or where irreparable harm would be caused to the integrity of the justice system if the prosecution were allowed to continue.

R. v. Mymryk (2004), 26 C.R. (6th) 83 (Q.S.C.).

[71] Ms. Gray testified that she recorded 30 to 40 seconds of footage on her iPhone. The recording was limited to the arrest of Mr. Thomas. Her evidence is supported by the TPS in-car camera that shows her recording the arrest of Mr. Thomas. She did not record the foot chase or the arrest of Mr. Palma.

[72] It is clear that any video recording on Ms. Gray’s iPhone has nothing to do with the arrest of Mr. Palma. The evidence was not relevant and, as such, does not attract a finding of unconstitutionality.

[73] Although defence counsel’s written materials were restricted to the video recordings on Ms. Gray’s iPhone, he did in oral argument ask the court to consider the video recording lost on Mr. Thomas’ phone.

[74] The evidence attached to this particular iPhone is somewhat convoluted. Mr. Thomas testified that he recorded some portion of Mr. Palma’s arrest and his own arrest on his iPhone. That iPhone was one of six seized by the police. When the police came into possession of it, the iPhone was locked. This meant that a password was required to access its contents. The police did not have that password and therefore were not, at least initially, able to gain access to the contents. In January 2016, the iPhone was released to the defence expert Mr. Musters. His attempts to access the iPhone to retrieve the video footage were unsuccessful. The iPhone was then returned to police custody and turned over to Detective Constable Angus in the Technical Crimes Unit. Detective Constable Angus was able to open and access the iPhone in question. He found no video recordings on the phone.

[75] He did, however, form the opinion that two files had been deleted from the iPhone. He testified that images, whether video or photographs, are stored sequentially. In this case, the last two files on the iPhone are images 563, created on April 15, 2013 at 12:34 a.m., and 566 created on April 15, 2013 at 5:13 p.m. He said this gap in the numbering suggests that there are two files not accounted for and the simplest explanation is that they were created and deleted. He is unable to say if those files were photographs or videos. He is unable to say with any precision when they were created or deleted.

[76] Of importance is the last image that was received on the iPhone. It was received on April 15, 2013 at 5:13pm. It is a photograph of Ms. Gray.

[77] Detective Constable Angus testified that the image appears to have been transferred from a third party app on the iPhone called “Hookt”.

[78] It appears that the image was transferred while the iPhone was in police custody and according to police, in a locked state. Detective Constable Angus testified that someone would have had to interact with the device to transfer this image and that it could not be done remotely.

[79] Defence counsel argues that this is clear evidence that the police accessed the iPhone and deleted the videos created by Mr. Thomas.

[80] I disagree. And here is why.

[81] The defence theory hinges on the transfer of this final image on the iPhone being done while the iPhone was in police custody. Detective Constable Angus was admittedly not an expert with this third party app called “Hookt”. He testified that he had no training, no experience, and no familiarity with the app. I was left with the impression this was the first time he had come across it and was simply providing the court with his best guess. I am not persuaded, based on the evidence before me, that the police tampered with or deleted files on Mr. Thomas’ iPhone.

[82] Moreover, I am not convinced that Mr. Thomas actually recorded the arrest of Mr. Palma. The evidence is that Mr. Palma calls out to Mr. Thomas after he is on the ground in the process of being arrested by the police. The garage video clips show Mr. Thomas slowly walking away from his car, presumably in the direction of Mr. Palma, with his head down looking at his iPhone. Given that the entire arrest was over in a matter of seconds, I highly doubt that Mr. Thomas captured any of it on his iPhone.

[83] I am mindful that the in-car camera video seems to suggest Mr. Thomas recorded his arrest on his iPhone. There is, however, no evidence that he actually recorded and saved footage. Given the issues I have already identified with Mr. Thomas’ credibility, I am not prepared to place any weight on his evidence of what he recorded.

[84] For the reasons given, the application is dismissed.

K.P. Wright, J. Released: July 18, 2017