R. v. Kim, 2017 ONSC 5034

CITATION: R. v. Kim, 2017 ONSC 5034

COURT FILE NO.: CR-13-07401

DATE: 20170824

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GIL KIM Applicant

COUNSEL:

J. Gleitman for the 2016 appearances, R. Scott for the 2017 appearances, for the Crown

D. Bayliss, for the Applicant

HEARD: June 6-10, 15, 16, 2016 and June 19-21, 23, 2017

BEFORE: GILMORE J.

OVERVIEW

[1] This is an application by the defence to stay offences related to the accused’s (“Mr. Kim”) participation in a robbery of a Rogers Plus phone store in York Region on May 30, 2012.

[2] Mr. Kim alleges he was beaten by York Regional Police Detectives, Detective Alec Tompras (“Detective Tompras”) and Detective David Noseworthy (“Detective Noseworthy”) when he was arrested on August 2, 2012. The surveillance camera footage for the relevant areas of the station has been overwritten. Mr. Kim alleges that the loss of the important video footage and the assault is an abuse of process and a breach of his Charter rights. He seeks a stay given what he alleges is the offensive conduct of the police.

[3] The Crown denies that any alleged assault took place. The request for the video footage took place after the one-year retention period established by York Regional Police (“YRP”), and is no longer available. Further, Detective Noseworthy’s involvement with Mr. Kim was solely to deliver food to him. The Crown’s position is that the application should be dismissed as it is being brought only to avoid Mr. Kim’s admitted culpability with the respect to the subject armed robbery.

[4] It is common ground in this case that in the event Mr. Kim’s application is dismissed, he will be entering a plea to the robbery and related offences.

BACKGROUND FACTS

[5] Mr. Kim concedes the facts related to the robbery are as follows. On May 30, 2012, YRP responded to an armed robbery call at the Rogers Plus store located on Markham Road in Markham, Ontario.

[6] On arrival, officers were met by two store employees. One of the employees, Mr. Jivitov, was later charged in relation to the robbery but those charges were stayed. Two other individuals, Armin Zandi and Anthony Jouith, were also charged in relation to the robbery but have entered guilty pleas: Mr. Jouith to possession of stolen property and Mr. Zandi to robbery.

[7] The robbery was captured on video. In the video, Mr. Kim is disguised and holding something in the shape of a handgun while the store employees loaded cell phones and cash from the company safe into a duffle bag brought by Mr. Kim. Mr. Kim then left the scene in a Pontiac Sunfire owned by Mr. Jouith and driven by Mr. Zandi. Mr. Kim took $7,000 in cash and cell phones valued at $80,000.

[8] On August 2, 2012, at 5:19 p.m. Mr. Kim was arrested while driving his father’s Chrysler 300 vehicle near the intersection of Highway 7 and Bayview Avenue in Toronto. The officers involved in the takedown were Detective Tompras, Detective Noseworthy, Police Constable Michael Chabrzynski (“PC Chabrzynski”) and Police Constable Stephen Borovskis (“PC Borovskis”). After his arrest, Mr. Kim was transported to YRP District 5 Station at 8700 Markham Road, Ontario. He was booked, searched and placed in a cell.

[9] Mr. Kim alleges that after he was placed in the cell, three officers came and took him to an interview room. While in the interview room, Mr. Kim alleges that Detective Tompras and Detective Noseworthy threatened him, struck him in the head and torso, grabbed him by the throat, banged his head against the wall and kicked him in the shin. Mr. Kim testified that his nose began to bleed and that Detective Noseworthy told him to take off his shoes and both his white shirt and tank top. According to Mr. Kim, Detective Noseworthy then struck him on the top of the head with one of the shoes and left the room with the shirt. He returned with the shirt 15 minutes later and told Mr. Kim to put it back on. The shirt was warm damp and the blood stains were mostly gone. It is undisputed that Mr. Kim was later taken to a different interview room and interviewed on video by Detective Tompras.

[10] Mr. Kim was granted bail on August 3, 2012, with his father, Young Su Kim (“Mr. Kim Sr.”) acting as his surety. On his return home with his parents and again the next day, Mr. Kim alleges he felt unwell and nauseous. He claims he had a bump on his head, swelling on the left side of his face, his left eye was bloodshot and red and he had bruising on his left leg in the calf area. He complained that his body and neck ached.

[11] As a result of his symptoms, Mr. Kim went to a walk-in clinic to have his injuries examined on August 4, 2012. He told the doctor at the clinic that his injuries were caused by a fall. On the recommendation of the doctor at the clinic, Mr. Kim was taken by his father to North York General Hospital where he received a CT scan of his head. Mr. Kim told the doctor at the hospital that his injuries were the result of an assault but he did not say by whom.

[12] Mr. Kim met with his counsel on August 9, 2012, and gave the shirt with the blood stains on it to his counsel on August 12, 2012. The shirt was submitted to a scientific testing facility, which confirmed that the stains on the shirt were Mr. Kim’s blood.

[13] The defence made a general disclosure request including video surveillance on October 30, 2012. A specific request for the cell area video was made on September 13, 2013, with two follow up requests. Counsel for YRP responded that the closed circuit television (CCTV) footage had been overwritten in accordance with YRP’s 12-month retention period policy.

[14] Mr. Kim seeks a stay of proceedings pursuant to the common law and section 24(1) of the Charter on the grounds that his rights under sections 7, 11(d) and 12 have been infringed. He alleges that the police conduct is so offensive to Canadian society that nothing short of a stay would ensure that the integrity of the administration of justice is not undermined.

THE EVIDENCE

[15] The defence called five witnesses: Mr. Kim’s sister (Yu-Jin Kim), Mr. Kim’s mother (Kyung-Hye Kim), Mr. Kim Sr. and Detective Constable Jason Goodfellow (“DC Goodfellow”). Mr. Kim testified on his own behalf. The defence also introduced Mr. Kim’s medical records from the walk-in clinic and North York General Hospital. The defence obtained a report from Maxxam Analytics that confirmed the presence of blood containing Mr. Kim’s DNA in the stains on the upper chest area of the shirt he was wearing on August 2, 2012. The report was admitted into evidence on the consent of the Crown.

[16] The Crown called seven witnesses, all from YRP: Detective Tompras and Detective Noseworthy, Constables Borovskis and Chabrzynski, Staff Sergeant Dalgleish, retired Staff Sergeant Sandra Staley, and the YRP’s multimedia supervisor, Marcus Gumpenburger.

Summary of the Defence Evidence

[17] The Kim family came to Canada from South Korea in 1988. They have been Canadian citizens since 1991. Mr. Kim’s mother, Kyung-Hye Kim (“Mrs. Kim”), operates a dry cleaning business. Mr. Kim Sr. was educated as a chemical engineer in Korea. He has worked as a financial advisor and in the car business since coming to Canada. He now owns and operates a convenience store.

[18] Mr. Kim’s sister, Yu-Jin, has a Bachelor of Science in biology, a degree in Kinesiology and is currently enrolled in the nursing program at the University of Toronto. During the summer of 2012, Yu-Jin was working as a nutritionist at Goodlife Fitness. She testified that she was close to her brother and that he admitted his involvement in the robbery to her right away.

[19] Mr. Kim has finished high school and recently graduated from York University. He has no criminal record. He was candid with the court about his involvement in the robbery and conceded he had committed the offence with the help of his former co-accused, Mr. Zandi and Mr. Jouith, who have since pleaded guilty. Mr. Kim agreed with the Crown that the robbery was planned.

[20] On the evening of August 2, 2012, Mr. Kim Sr. was outside smoking on his patio. Four unmarked police cars pulled up to his house and he was shown a search warrant. He described the officers as being “in a hurry.” While he agreed that the police did not break or steal anything from his home, they left the house in a mess. The officers left drawers pulled out, clothing on the floor and mattresses overturned. He tried to follow them around the house but they insisted he wait in the living room while they search. He knew the search related to his son but he did not understand why they had to go through all of the drawers and take the mattresses off the beds. The search took about an hour but it took him and his family two to three days to clean up the mess. He said the whole search process made him feel “miserable.”

[21] Mr. Kim recalled that on August 2, 2012, he was driving his father’s Chrysler 300 on Bayview Avenue in Toronto. He was wearing a white Banana Republic long sleeved shirt with an undershirt, light grey jeans and white running shoes. Mr. Kim recalled that he was suddenly blocked in by what he quickly understood were unmarked police vehicles. An officer approached him and asked him to confirm his name. The officer then reached in, turned off the car and pulled Mr. Kim out and placed him face down on the ground. He saw Detective Tompras and another officer search his car. Another officer had his knee pressed on Mr. Kim’s upper back/neck area to keep him pressed down on the ground. He believes it was Detective Noseworthy who had him pinned to the ground and who also whispered in his ear “wait until we get to the station.” As a result of being pinned to the pavement, Mr. Kim testified that he had a scrape on his upper lip. His lips later swelled.

[22] Mr. Kim was handcuffed while on the ground, told he was being arrested for robbery, placed in a marked cruiser and taken to the station. Once at the station, he went through the booking process. His personal items, belt and shoelaces were removed and he was placed in a large holding cell. After about two hours, Detectives Noseworthy and Tompras, in addition to another officer whose name Mr. Kim does not know, came to get him from the holding cell. Mr. Kim was unsure what time it was at this point.

[23] At some point Mr. Kim recalled he was photographed by the third officer whose name he could not recall. Six photos were taken from the front, side and one of the top of his head. He was shown electronic versions of the photos which showed they were taken at 8:56 and 8:57 p.m. Mr. Kim observed that his lips looked swollen from when he was arrested but he did not see any swelling on his face or blood in his shirt in the photos. Mr. Kim agreed that it was possible that the correct sequence of events was that he spoke to Duty Counsel at 8:38 p.m. and that the photos were taken after that.

[24] Mr. Kim was taken to an office in which there was a desk and three chairs. At that point it was just Mr. Kim, Detective Tompras and Detective Noseworthy in the room. Detective Noseworthy placed a set of leather gloves on the table. The two detectives were seated on one side of the table and Mr. Kim on the other. Mr. Kim was intimidated by the gloves. He did not know what they were for. Detective Tompras told Mr. Kim that they knew he had committed the robbery and that his friends had already given him up; he should just confess. Mr. Kim knew that Mr. Jouith had been arrested as well as the store employee Mr. Jivitov.

[25] Mr. Kim declined to talk to the police. At that point Detective Noseworthy told Mr. Kim he should admit to everything on camera or they would beat him. Mr. Kim was determined to maintain his right to silence. Detective Noseworthy then put on the gloves and punched him on the side of the face with a closed fist. Mr. Kim was in shock. He thought such things only happened in movies. Mr. Kim was asked by Detective Noseworthy to come around to the other side of the desk. He complied. Detective Noseworthy then punched him a few more times. Mr. Kim put his head down and his hands up to block the punches at which time Detective Noseworthy punched him in the head. Another punch landed on his nose. Detective Noseworthy then started smacking him on the head with an open hand. When Mr. Kim’s nose started to bleed, dripping onto his shirt, he was told to take off his shirt and shoes. Detective Noseworthy kicked Mr. Kim in the shins several times. Detective Tompras then pushed Mr. Kim towards the wall and pressed the side of his face and head against the wall. He told Mr. Kim that this is what happens to people who rob commercial businesses in broad daylight.

[26] Mr. Kim testified that he saw stars after the first few punches. He felt afraid and just wanted the beating to stop. When the officers had stopped assaulting him, they left the room with Mr. Kim’s shirt, tank top and shoes. Detective Tompras returned with the clothes and the bloodstains were mostly gone. The shirts were warm and damp and Mr. Kim was told to put them back on. Detective Tompras then smacked him on the head with one of his shoes. Mr. Kim estimates that he was beaten for a period of about 10 minutes.

[27] After he put his shirts back on, he was taken to a different interview room to speak to Duty Counsel. Detective Tompras brought a phone and plugged it into the wall. Mr. Kim then spoke to Duty Counsel. Mr. Kim testified that he was not 100% certain that he spoke to Duty Counsel after he was assaulted. It may have been before. He was not sure.

[28] After speaking with duty counsel, Mr. Kim testified that he was brought back to the room in which he was assaulted. Detective Noseworthy brought him some juice and a sandwich but he did not open the bag. At some point an older officer came to the holding cell with Detective Tompras and Detective Tompras identified Mr. Kim to him.

[29] Later that evening, he was taken to another interview room, which he was told was the video interview room. In the video, Mr. Kim confirms that he spoke with Duty Counsel and received legal advice. He understood he had been arrested for robbery but did not want to say anything. Despite Detective Tompras’ persistent efforts to have Mr. Kim admit or confess the crime, Mr. Kim was adamant that he did not wish to say anything. He asserted his legal rights but admitted that he did not complain about the assaults or turn to display his injuries on video even when Detective Tompras left the room. He explained that this was because he was fearful, did not know where the camera was placed and did not want to aggravate the police. His evidence was that Detective Tompras’ conduct during the videotaped interview was just an act and that his conduct in the interview room was completely different.

[30] Mr. Kim was seated in the video room such that he was facing away from the camera. His evidence was that he did not know where the camera was. Although he could not recall any specific words from Detective Tompras, Mr. Kim’s evidence was that Detective Tompras directed him to sit in the wheeled chair facing away from the camera by pointing in some way at the chair. Mr. Kim did as instructed.

[31] At the end of the interview Mr. Kim was taken to a holding cell. He felt sick and nauseous. He could not sleep because the holding cell was very cold. He asked for a blanket but no blanket ever arrived. He wrapped himself in toilet paper to keep warm. During this period Mr. Kim was aware that other officers came into the station. He did not complain to them about the assault or ask anyone to note the bloodstains on his shirt. He explained that this was because he thought the police were all “on the same team.” The next morning he was transported to Newmarket courthouse for a bail hearing.

[32] Yu-Jin, Mr. Kim’s sister, recalled that she was at home on August 3, 2012, when she received a call from the Newmarket courthouse about her brother’s bail hearing. She was in shock and immediately took the bus to the courthouse. When she arrived, she was surprised to meet her parents who were already there. They were also shocked and upset. Yu-Jin described herself as being “out of her mind” with the news of her brother’s arrest. Mrs. Kim knows that her son made a mistake. She told the court this gives her a heavy heart. Mr. Kim Sr. described himself as “startled” to learn of his son’s robbery charges.

[33] The Kim family went to bail court and observed Mr. Kim in the prisoner’s box from about 18 to 20 feet away. Yu-Jin testified that she could see his profile from the left side and could see that his face looked a bit swollen.

[34] Mr. Kim agreed that he did not mention the alleged assault during the course of his bail hearing. He testified that his focus at bail court was getting out of jail and figuring out how to comfort his distraught mother. He testified that had he known how important it was to put such things on record, he would have said something. He had never been arrested, in jail or in bail court before. He simply did not know what to do.

[35] Mr. Kim Sr. originally testified that when his son was released, he was not given his shoelaces or his wallet. When his cross-examination resumed many months later, his evidence was that he was not sure if he received his son’s shoelaces and wallet or not. Upon his son’s release on August 3, 2012, he was given a document (Exhibit 16A) titled “Notice to Accused Regarding Cell Area DCCTV Recording Retention Periods.” The document was dated August 2, 2012, and signed by Detective Tompras. Although there was a signing line for Mr. Kim, he had not signed the document. Mr. Kim Sr. could not remember who gave him this document. He did not give it to his son. Instead, he testified the Notice document was probably with all the other related documents he showed to his son’s lawyer when he met with him in mid-August 2012. He used the word “probably” because he cannot recall exactly what documents were in the package he showed the lawyer.

[36] After her brother was released on a $10,000 bail with her father as surety, Yu-Jin and her parents had an opportunity to see Mr. Kim up close. They saw that the left side of his face was swollen, his left eye was bloodshot and red and there were spots or stains on his white shirt. Mr. Kim’s parents and sister were angry and shocked about Mr. Kim’s involvement in the robbery and that his injuries were as a result of being beaten by police. Yu-Jin noted that her brother seemed disoriented. She felt the bump on the back of his head and was concerned. She noted that she thought the light brown stains on his shirt on the sleeve and upper chest area looked like blood.

[37] The Kim family drove to the pound where the Chrysler 300 had been taken after Mr. Kim’s arrest. On the way there Mr. Kim told his family he had been assaulted by the police after his arrest. He felt nauseous and drowsy. He asked for the car windows to be opened in case he was sick. When he arrived home, he wanted to sleep. During the drive to the pound, Mrs. Kim noticed the swelling on the left side of her son’s face and his left eye had what appeared to be a blood clot in it. Mrs. Kim testified that her son was aching all over and in pain. He would not eat. Mrs. Kim was concerned about what was wrong with her son. Mr. Kim testified that in the past he has had both lower back pain and leg pain due to gout. He explained that the gout was more in the form of an arthritic type pain and unlike the pain he felt from having been kicked in the shin. He agreed that he had barely slept the night before as the holding cell offered only a steel slab for a bed without a blanket.

[38] Mr. Kim Sr. and his son went home in the Chrysler 300 once the towing and pound fees had been paid. Mrs. Kim and her daughter drove home in the other car. While in the car with his son, Mr. Kim Sr. told his son how disappointed he was in him. When they got home, they went into the backyard and Mr. Kim told his father the details of the police beating. Mr. Kim Sr. was able to make closer observations of his son at this point. He described him as being “not normal.” He had a bump on his head, the left side of his face was swollen, his lips were puffy and there were red blood vessels showing in his left eye. He also had neck pain and a purplish bruise on his left calf. Mr. Kim told his father he was dizzy and wanted to vomit. Mr. Kim Sr. was offended by the police behaviour towards his son. He was upset and felt that their conduct was unfair.

[39] Mr. Kim Sr. was asked why he did not take a photograph of the bruise on his son’s left leg or face. He responded that he was not sure it could be used in evidence and in any event he was more focused on the fact that his son may have suffered a brain injury. Further, his son was resistant to having photos taken. Mr. Kim Sr. agreed that despite his observations of the facial swelling and blood clot in the eye, he never noticed any bruising on his son’s face that day or afterwards.

[40] Mr. Kim Sr. told the court that his son readily admitted his involvement in the robbery but he was unaware of the allegations related to the robbery being committed with a firearm or many of the other details of the robbery. He did not ask about details on the advice of his son’s lawyer whom he met on August 9, 2012. He was aware of when and where the robbery was committed and that it was a serious criminal offence for which his son could be facing substantial time in jail.

[41] Mr. Kim Sr. felt his son’s body in the areas that had been hurt or bruised. He also had his son remove his stained shirt so that he could put it in a sealed bag for safekeeping. He thought it might be needed in the future as evidence with respect to the police beating. He took photos of the shirt sometime between August 10^th and 12^th. He took it to his son’s lawyer on August 14, 2012. Mr. Kim Sr. included the photos of the white shirt in the detailed notes he made about the events between August 2^nd and August 4^th. He used PowerPoint to draw circles around the stains in the photos he took. The photos taken by Mr. Kim Sr. were marked as Exhibit 6 on the application.

[42] During the course of the hearing, the bag containing the shirt was opened in the courtroom. Mr. Kim Sr. identified the shirt as his son’s and the shirt that was the subject of his photos. He noted that there were some holes in the shirt where the forensic examiner had cut out the stains for DNA analysis.

[43] Mr. Kim Sr. was shown the photographs contained in Exhibit 23. It is conceded that these were photographs taken of Mr. Kim at the Newmarket courthouse on August 3, 2012, between 9:00 a.m. and the time of his release on that day. Tab 2 of that exhibit is a photo of Mr. Kim’s face. It was suggested to Mr. Kim Sr. that his son did not have a blood clot in his left eye as he had stated. He was firm that there was a difference in colour between the two eyes and that there was redness at the bottom of the left eye. It was further suggested that this may have been the result of a restless night’s sleep in an uncomfortable jail cell. Again, he did not agree. He testified that if that were the case, the redness would have appeared in both eyes.

[44] Mr. Kim Sr., Mrs. Kim and Yu-Jin were asked why they did not make a formal complaint about the assault that day given that the accused told them about the assault almost immediately after his release. Yu-Jin felt it was more important to deal with her brother’s well-being at the time rather than worrying about making a complaint.

[45] That evening, Mr. Kim Sr. called a family meeting in the basement. It was held there to ensure privacy and confidentiality. Mr. Kim and his father remained concerned that they were being surveilled by police. They noted a BMW parked near their home that they did not recognize. They were concerned the police continued to watch their home.

[46] All four family members attended the basement meeting. Mr. Kim was drowsy during the meeting. His father informed the family that a daily diary of his son’s movements would be kept in order to ensure compliance with Mr. Kim Sr.’s surety obligations. Mr. Kim was resistant to this and his sister agreed that the note taking process was a tedious one. However, Mr. Kim Sr. was insistent that as surety he had to maintain a record of his son’s movements in the event there was ever a question of compliance with the bail.

[47] At some point that evening, Mr. Kim Sr. and Mrs. Kim examined the stains on their son’s white shirt. Mrs. Kim saw her husband put the shirt into a zippered plastic bag.

[48] Mr. Kim Sr. told his son he wanted to take photographs of him and his injuries. Mr. Kim was resistant. He conceded that he has had anger management issues in the past and sought help for that. He often clashed with his father. He stated that sometimes he resisted doing things just because it was his father asking. Further, he felt that taking photographs would not help anything; he felt despondent that nothing would likely be done about the beating because the police protect their own. Mr. Kim agreed that he never made a formal complaint to YRP about Detective Tompras or Detective Noseworthy. He felt that complaining would not accomplish anything just like when he complained about being cold while in the holding cell and no blanket was ever brought to him.

[49] The following day, August 4, 2012, Yu-Jin heard her brother mid-morning vomiting in the washroom. He was still dizzy, nauseous and the bump on his head was still there. Yu-Jin and her father were very concerned about the possibility of a brain injury. Yu-Jin recommended that her father take her brother to a walk-in clinic. Mr. Kim attended the walk-in clinic and then North York General hospital with his father. Mrs. Kim joined them at North York General hospital between 4 p.m. and 5 p.m. She noticed her son’s face seemed more swollen than the day before and saw bruises in the calf area of his left leg. She and her husband remained at the hospital for several hours while their son underwent an examination by the doctor and then a CT scan and an MRI.

[50] While driving to the walk-in clinic, Mr. Kim Sr. told his son to tell the doctor there that his injuries were from a fall. Mr. Kim did not think this was a good idea but his father “ordered” him to do it and so he did. Mr. Kim Sr. explained to the court that he was concerned that if the doctor at the clinic knew his son had been beaten by police, the doctor may have pre-conceived notions or even report them to the police. Mr. Kim Sr. was afraid of the police. He thought his family was still being watched or that his son would be charged with a breach of his bail. He readily admitted to the Crown in cross-examination that he knew he had told his son to lie and that this was wrong but that he did it only to help him.

[51] Mr. Kim Sr. took photos of his son while at the clinic. Mr. Kim Sr.’s evidence was that his son’s expression indicated that he was in pain. His evidence was also that the photo shows the swelling and damaged skin on the left side of Mr. Kim’s face. Mr. Kim Sr. testified that his son did not know he was taking photos of him.

[52] The doctor at the clinic recommended that Mr. Kim attend at the hospital right away for a CT scan given the head injury. Mr. Kim Sr. drove his son to North York General Hospital around 3:30 p.m. that day. Mr. Kim testified that he was at the hospital for about three hours waiting for various tests.

[53] Mr. Kim told the doctor at the hospital that he had been assaulted although he did not say by whom. He told the doctor at the hospital about the punches to his head but could not recall if he mentioned the punch to his nose and the blood. Mr. Kim had decided that he was no longer willing to go along with his father’s order to tell the doctor that his injuries were suffered from a fall. He thought that if he did not tell the doctor he had been assaulted, he may not get the treatment he required. While at the hospital he continued to feel nauseous with a pounding headache. His lower back and shins were tender and sore.

[54] Upon his return home on August 4^th, Yu-Jin monitored her brother’s condition. She noted the swelling on his face was worse. He complained of body and back aches and was still drowsy. It took two to three days for the vomiting and dizziness to resolve.

[55] Mr. Kim returned to the walk-in clinic on August 10^th because of persistent pain in his left leg. He went back again on August 15^th to try to obtain a copy of his medical records after consulting with counsel. Mr. Kim’s medical professionals did not recommend any further follow up.

[56] Mr. Kim Sr. has taken notes of everything that happened in his son’s case since August 2, 2012. He started writing the notes on August 3, 2012. He was permitted to consult the notes from time to time during his evidence in order to refresh his memory.

[57] It is conceded that Mr. Kim Sr.’s notes include entries from other people including his daughter and Mr. Kim. Nowhere in the notes is there any reference to Mr. Kim being beaten by the police.

[58] Mr. Kim Sr. was shown a copy of Exhibit 16, which was titled “Notice to Accused Regarding Cell Area DCCTV Recording Retention Periods.” The document is dated August 2, 2012, and in the Confirmation of Service section is signed by Detective Tompras. Mr. Kim did not sign it although there is a signing line for the accused. This form sets out that DCCTV images are retained for 12 months and that requests for cell area videos must be made in writing.

[59] Mr. Kim Sr. conceded that he received this document at the court office when his son was released on bail. He did not understand what it meant nor did he understand the significance of it until it was explained to him by his son’s lawyer during a court break on June 7, 2016. Mr. Kim Sr. testified that had he understood its significance he would have given it to his son’s lawyer. He could not recall whether he gave the document to his son’s lawyer. Mr. Kim testified that he does not recall ever receiving this document. He was not aware that his father had received it.

Summary of the Crown Evidence

Detective Tompras’ evidence

[60] Detective Tompras has been with YRP since 2001. In August 2012, he held the rank of Detective Constable and was working with the hold-up squad out of 5 District Headquarters in Markham. He was promoted to a full detective in June 2014. As of the date of Mr. Kim’s arrest on August 2, 2012, Detective Tompras had 13 years’ experience and had worked for 11 years at the 5 District Headquarters building. His evidence was that he had brought countless prisoners to that location for booking and was very familiar with the procedures in place for handling prisoners.

[61] In the course of his duties, Detective Tompras has been assigned the job of Acting Staff Sergeant. This entails administrative duties including booking and dealing with in-custody and out-of-custody prisoners. Detective Tompras described the booking process when a prisoner is brought in. Personal effects and shoelaces are logged and placed in a property bag, which then follows the prisoner to court and returned on his or her release. The entire booking area is covered by video surveillance. The sally port and holding cells are also subject to video surveillance. There is a dedicated interview room for videotaped statements. Other than as described above, no other areas of the station are videotaped.

[62] On August 2, 2012 Detective Tompras was conducting surveillance on Mr. Kim in an unmarked police car. He was the Officer in Charge (“OIC”). The other officers involved in the surveillance were Detective Noseworthy, Detective Tompras’ supervisor, and Constables Borovskis and Chabrzynski. All of the officers were in unmarked cars and plain clothes. Surveillance was conducted on the Kim home. Mr. Kim was observed leaving the home at 4:52 p.m. in a black Chrysler 300. A traffic stop took place on the ramp going to Highway 7 from Bayview Avenue at 5:09 p.m.

[63] Detective Tompras testified that he pulled Mr. Kim out of the car, took him to the ground chest down, and placed his hands behind his back for cuffing. Detective Tompras estimated that Mr. Kim was on the ground for about 30 seconds although he had nothing in his notes about how long Mr. Kim was on the ground. He denied that he or any other officer involved in the traffic stop ever had his knee or any other part of his body pressed on Mr. Kim’s back while he was on the ground but later changed that evidence and testified that another officer could have been putting his knee on Mr. Kim’s back or doing things with or to him that he just did not see. PC Borovskis assisted Detective Tompras with the arrest but Detective Tompras cannot recall exactly what PC Borovskis did. He was shown PC Borovskis’ notes, which said that he made the arrest with Detective Tompras’ assistance. Detective Tompras then said that they both made the arrest.

[64] Mr. Kim was then searched incident to arrest, given his rights to counsel and taken to an adjacent parking lot. Detective Tompras noted that upon searching Mr. Kim he found a wallet with cash. Detective Tompras did not know how much cash was in the wallet. When Mr. Kim was booked at District 5, he was noted as having no wallet and just over $2 in change.

[65] Upon being given his rights to counsel, Mr. Kim said he wanted to call a lawyer. Although cell phones were available, Detective Tompras did not want to risk such a call before the search had taken place. Notwithstanding Mr. Kim’s request for a lawyer, Detective Tompras asked him for the numbers of the cell phones in his possession. He agreed these were investigative questions that should have been asked after Mr. Kim spoke to counsel.

[66] Mr. Kim was then placed in an unmarked police car to await transport to District 5 Headquarters. Uniformed officer Goodfellow arrived at 5:30 p.m. in a marked police car to transport Mr. Kim to the station.

[67] Sometime between the time of the arrest and the arrival of Goodfellow, Detective Noseworthy arrived. Detective Tompras denied hearing Detective Noseworthy say or whisper to Mr. Kim “wait until we get to the station.” His evidence was that he did not observe any injuries to Mr. Kim’s face or body and that nothing of note happened after Mr. Kim’s arrest and before the arrival of Goodfellow.

[68] Once Mr. Kim had left the scene with Goodfellow, Detective Tompras went to the Kim residence with Officers Cardwell and Blenkhorn, PCs Borovskis and Chabrzynski and Detective Noseworthy to execute the search warrant. They entered the Kim residence at 6:20 p.m. after showing the warrant to Mr. Kim Sr., who was cooperative. Mr. Kim Sr. was advised that his son had been arrested and why. Detective Tompras was the OIC for the search.

[69] Surveillance video of the robbery showed the band of the suspect’s underwear as he was bent over. Therefore, the officers were searching for Mr. Kim’s underwear and the clothing he appeared to be wearing in the video as well as a silver firearm. Detective Tompras testified that the home was of a modest size and unkempt with piles of clothing everywhere. They left the residence at 7:35 p.m. Detective Tompras, Detective Noseworthy, PCs Borovskis and Chabrzynski returned to 5 District Headquarters (“HQ”) to work on the investigation.

[70] Detective Tompras was shown Exhibit 20, which was a selection of photographs of the home taken after the search. Detective Tompras agreed that the Kim home was in a middle class neighbourhood in Toronto, and that he was aware that Mr. Kim’s parents and sister lived there and that no one in that home had a criminal record. Detective Tompras was asked why in the course of the search it was necessary to dump clothing on the floor, leave drawers open and mattresses upturned. It was suggested that as the supervising officer, he left the home in a deplorable state when he knew it was not Mr. Kim’s home but his parents’ home. It was suggested to him that no effort was made to put items back or preserve the dignity of the residents. Detective Tompras’ response was that they were looking for small items such as a firearm and underwear, which could be hidden anywhere, so the search had to be a thorough one. Detective Tompras told the court it simply did not occur to him to put back mattresses or drawers. He was asked if he would change the way he does searches in the future. His response was that he did not think there was a problem with the manner in which the search was done.

[71] Exhibit 18B is a partial floor plan of 5 District HQ. Detective Tompras was working in the room marked with a green dot identified as the Criminal Investigation Branch room (“the CIB room”). Detective Tompras learned that Mr. Kim had been placed in CIB interview room 2. Detective Tompras testified that he did not know how Mr. Kim got into that room. He is aware that an investigating officer can move an accused from a cell to an interview room with the permission of the staff sergeant. He left the Kim residence at 7:35 p.m. and estimated it would have taken him about twenty minutes to drive back to District 5 HQ. That would have put him there before Mr. Kim was moved to the interview room at 8:20 p.m. However, Detective Tompras was insistent that he did not move Mr. Kim. He testified that Mr. Kim was already in the interview room when he arrived. His evidence was that he had no intention of interviewing Mr. Kim and that Mr. Kim was placed in the room for the purpose of speaking to Duty Counsel.

[72] Detective Tompras went into the interview room and told Mr. Kim that there had been a delay in calling Duty Counsel because of the search. Detective Tompras then called the Duty Counsel number and noted that they called back at 8:38 p.m. Detective Tompras took a phone into the interview room, plugged it in and left Mr. Kim to speak with Duty Counsel in private.

[73] Detective Tompras testified that following the call, he took a series of photographs of Mr. Kim. The last of these photographs was taken at 8:57 p.m. Detective Tompras was asked why Mr. Kim was left in the interview room for over an hour after his call with Duty Counsel and before he was taken to the video room (he was left in the room between 8:57 p.m. and 10:02 p.m.). Detective Tompras testified that likely it was because it was easier to leave him there than take him back to the cells and then to the video room.

[74] Detective Tompras stated that it was his intention to compare those photos to the video surveillance of the suspect leaving the Roger’s store. Detective Tompras did not note any injuries on Mr. Kim when he took the photos or at any time that evening nor was there any staining on his shirt.

[75] Detective Tompras did not recall having taken these photos for the investigation until the Crown asked him whether photos had been taken at the District. When he reviewed the file he recalled the photos. He was certain no one else was in the room other than himself and Mr. Kim when the photos were taken. Detective Tompras testified that although it is not unusual for another officer to be present for such things, Mr. Kim did not pose a security concern. Upon seeing the photos he was certain they were taken in interview room 2. Detective Tompras agreed that there is almost a complete absence of notes with respect to his dealings with Mr. Kim up to the point of the videotaped interview. He agreed that his notes could have been better and that he did not follow the Command Directive with respect to storing and disclosing the rough notes he used to record the times in his notes.

[76] The interview room contained a table and bench that were fastened the floor and wall. It had a steel door with a sliding glass window, which is used to observe the occupant. The door can be locked from the outside only. There are usually no chairs in the interview rooms but they can be brought in. There is no system of monitoring who goes in and out of the interview rooms as there is with the cells. There are no video cameras in the interview rooms. Detective Tompras denied that, other than arranging for Duty Counsel, taking the photos and then removing Mr. Kim for his videotaped interview, he did not go into the interview room nor did he see any other officer go in. He agreed that Detective Noseworthy was in the CIB area but he did not see him go into the interview room.

[77] Detective Tompras told the court that each officer is issued a pair of black nylon and leather gloves as part of their “kit.” He agreed that locating a pair of such gloves would likely not be difficult at District 5. He denied ever seeing Detective Noseworthy with black gloves on August 2, 2012. He denied the suggestion that he and Detective Noseworthy did not like Mr. Kim’s attitude and they wanted to put him in his place. Detective Tompras denied that Detective Noseworthy slapped Mr. Kim around with gloves on until his nose bled. He also denied that when they saw the blood on the shirt, he and Detective Noseworthy went to the washroom down the hall and rinsed out the blood and tried to dry it out with the hand dryer. Despite denying this, he had no explanation for how blood got onto Mr. Kim’s shirt when it was not there at the time he took the photographs that evening.

[78] Detective Tompras was shown Exhibit 23. This was a series of six photographs. Crown and defence agreed by way of an agreed statement of facts (filed as Exhibit 23B) that the photos were taken at the Newmarket courthouse sometime between 9:00 a.m. and the time of Mr. Kim’s release on bail on August 3, 2012. Detective Tompras testified that he was not aware that these photos existed (other than the booking photo) until a new Crown took over the file and he was asked to enquire about additional photos in the system. They would otherwise have not been disclosed.

[79] Detective Tompras was asked about photo #4 which shows a front view of Mr. Kim with stains on the front of his shirt. He was questioned about the significance of the location of the stains given Exhibit 9, which was the shirt Mr. Kim wore on August 2^nd and 3, 2012, with the marks where the stains were cut out for analysis. Although Detective Tompras was aware that the stains had been analyzed as Mr. Kim’s blood, and although he was aware that the photos taken at District 5 by him the evening before did not show any stains on the shirt, he was unconvinced that the photo had the significance that defence counsel implied. His evidence was that he was not sure what blood stains looked like.

[80] Detective Tompras denied that he was ever alone in an interview room with Mr. Kim and Detective Noseworthy. He denied seeing Detective Noseworthy put on black gloves and assault Kim or hit him with his own shoe. He further denied that he saw Detective Noseworthy demand that Mr. Kim give him his shirt, undershirt and shoes or that he or Detective Noseworthy washed the blood out of the shirt. He denied that he pushed Mr. Kim’s face against the wall in the interview room and told him that this is what happens to people who hold up a commercial business in broad daylight.

[81] After taking the photos, Detective Tompras turned to administrative duties related to the investigation including completing his notes, reviewing items seized during the search and preparing for a video interview with Mr. Kim. He began the videotaped interview at 10:02 p.m. in room 138, which is marked with a red dot on Exhibit 18B. This room is known as the “old” video room as it is smaller and less comfortable than the new video room (room 137A and B on Exhibit 18B). Mr. Kim went into the video interview room and he asked him to take a seat. Detective Tompras could not recall if he made a hand gesture or directed Mr. Kim to take one seat or the other. According to Detective Tompras, Mr. Kim chose where to sit. He did not deliberately place Mr. Kim so that he could not be seen by the camera.

[82] Detective Tompras denied that Mr. Kim was sitting in the “officer’s” chair even though it was the only one with wheels, more elevated than the other chair and had direct access to the door. Detective Tompras agreed that as a result of the seating arrangement one can see his face and shirt quite well but Mr. Kim’s face and the front of his shirt could not be seen. Only the back of Mr. Kim’s head and a bit of the right side of Mr. Kim’s face was visible in the video. Detective Tompras testified that ideally Mr. Kim should have been sitting in the other chair but he had no issue with the arrangement and continued with the interview. He agreed that he could have asked Mr. Kim to change seats but he did not. He agreed that part of the reason for a videotaped interview is to allow the witness or accused’s face to be clearly seen. He agreed that there was only one camera on for this interview but that the other video room may have had two cameras. He could give no reason why he chose this video room over the other and was aware that the other room was available at that time. He agreed that there is a command directive that requires witnesses or accused persons be placed in the video interview room such that they can be seen. He denied that he put Mr. Kim in that room and in that position so that the blood on his shirt could not be seen.

[83] Detective Tompras then took Mr. Kim to the booking area and he was placed in a holding cell for the night and had no further contact with him that night. Detective Tompras initially testified that he completed the Notice Form regarding the security video retention video and tried to serve it on Mr. Kim but Mr. Kim refused to sign it. Detective Tompras made no note of the refusal of service and agreed that since there was no note, he may not have served him at all. Detective Tompras’ evidence on this point was vague as he could not remember if he served Mr. Kim personally or simply placed a copy in his property bag to go to court with him the next day. He finally conceded that he could not remember if he served him with the document at all.

Detective Noseworthy’s evidence

[84] Detective Noseworthy is a detective with YRP who has been with the hold-up squad since 2009. He has been a police officer for 22 years. He is six feet tall, weighs 230 pounds and is in good physical shape. He was present with Blenkhorn, Borovskis, Chabrzynski, and Detective Tompras conducting surveillance near the Kim residence on August 2, 2012. He arrived on the scene several minutes after Mr. Kim was arrested. He observed Mr. Kim in Detective Tompras’ custody on the side of the ramp. He observed that he was turned over to DC Goodfellow for transport. He was sure he did not turn Mr. Kim over for transport and could not explain why DC Goodfellow’s notes say that he did. Once Mr. Kim had left the scene, Detective Noseworthy called for a tow truck for Mr. Kim’s car.

[85] Detective Noseworthy testified he had no contact with Mr. Kim during his arrest. He did not whisper anything in his ear nor did he ever see Mr. Kim on the ground. He did not observe that Mr. Kim looked injured in any way.

[86] Detective Noseworthy then attended at the Kim residence for the search. He told Mr. Kim Sr. that his son was in custody and explained the charges. Detective Noseworthy testified that the officers involved in the search were primarily searching for a gun. He personally searched the master bedroom and a hallway and some closets. His observation was that the house was very messy and filled with clothing. It was difficult to search as the piles of clothing had to be moved in order to do a thorough search.

[87] Detective Noseworthy agreed that clothing was thrown on the floor, closets were emptied and drawers were pulled out. He agreed that the contents were dumped on the floor. He did not think it was necessary to put the drawers or clothing back when the search was completed.

[88] The search was completed at 7:35 p.m. and Detective Noseworthy was back at 5 District by 8:30 p.m. He speculated he must have stopped for food because it does not take an hour to get from the location of the Kim residence to the station. When he arrived at the station, Mr. Kim was already in an interview room. He knew that because Mr. Kim’s name was written on the whiteboard on the interview room door. He recalls that he was in interview room 2 although he had no note of that. Staff Sergeant Dalgleish testified that it was possible that Detective Noseworthy asked him for permission to put Mr. Kim in an interview room, since Staff Sergeant Dalgleish had noted speaking to Detective Noseworthy just before 8:20 p.m. when Mr. Kim was moved to interview room 2. Detective Noseworthy did not recall that conversation with Staff Sergeant Dalgleish. Detective Noseworthy began processing Mr. Kim which means putting together documents for a Crown brief. He was aware that the interview room and CIB area was not video monitored. He agreed that any officer in the CIB area could have had access to Mr. Kim without such access being recorded on video. Staff Sergeant Dalgleish testified that the use of the interview rooms in the CIB area is “much diminished” because of the lack of video monitoring.

[89] Detective Noseworthy was the supervisor of the group working on Mr. Kim’s case. He recalled that Detective Tompras was assigned to interview Mr. Kim and PC Chabrzynski was to monitor him but he did not recall assigning them those duties. He denied that he ever went into the interview room to see or talk to Mr. Kim nor did he attend the video interview or the monitoring room. The only contact he had with Mr. Kim was when he delivered a meal to him at 9:35 p.m. He did not note that Mr. Kim had any injuries or any blood on his shirt. He denied assaulting Mr. Kim, hitting him with his shoe or laundering his shirt to remove blood stains. Detective Noseworthy agreed that there were washrooms at the District office that had sinks, soap and hand dryers. He denied that he had easy access to black gloves or that he put them on to avoid leaving marks on Mr. Kim.

[90] Detective Noseworthy had nothing in his notes about what happened between 8:30 p.m. and 9:35 p.m. For example, he has no recollection or note of Mr. Kim being removed for a videotaped interview or that photos were taken of him. He agreed that during this period of time, Mr. Kim was not subject to video monitoring and that if Mr. Kim had been in a cell, he would have been on video and checked every 30 minutes. His evidence was that he did not make notes during that time as he was just processing paperwork and nothing of significance occurred.

[91] When he was shown the shirt that Mr. Kim wore that evening he testified that the stains on it could be coffee stains. He did not agree that they looked like washed out blood stains and denied that he tried to wash the blood stains out himself.

[92] Detective Noseworthy did not know why Mr. Kim was interviewed in the older video room that had only one camera. He could not recall which of the two video rooms were used. He only found out later from PC Chabrzynski that Mr. Kim was interviewed with his back to the camera. He agreed that there was little sense in a video interview in which the accused’s back was to the camera. He agreed it should not have happened. He denied that he had a conversation with Detective Tompras about seating Mr. Kim in that manner to avoid a frontal view of the blood on his shirt. His evidence was that the stains on Mr. Kim’s shirt looked like coffee stains.

PC Chabrzynski’s evidence

[93] PC Charbrzynski was on scene for Mr. Kim’s arrest. He did not observe any inappropriate actions on the part of the officers involved in the arrest or at the station after Mr. Kim was transported there. He was assigned to monitor the videotaped interview. At some point he realized the accused was in the wrong chair but the interview was already underway and he did not want to interrupt. He had to type notes with two fingers and was focused on that. He agreed that he had personally never done a videotaped interview with the accused sitting in the wrong chair.

PC Borovskis’ evidence

[94] PC Borovskis was with Mr. Kim throughout his arrest. He did not observe any of the other officers acting inappropriately or using excessive force with Mr. Kim. He does not recall Mr. Kim being on the ground or being taken to a nearby parking lot.

[95] PC Borovskis arrived at 5 District at 8:00 p.m. but had no contact with Mr. Kim. He was not aware that Mr. Kim was in one of the interview rooms. He would not have recalled or noted any officers going in or out of the interviews rooms as that happened frequently. He may have remembered if he had seen Detective Tompras walking around with clothing but he has no recollection of that. He did not observe any other officer assault or threaten Mr. Kim while there.

Staff Sergeant Dalgleish’s evidence

[96] Staff Sergeant Dalgleish testified that he was on shift when DC Goodfellow brought Mr. Kim into 5 District station at around 6:20 p.m. He asked Mr. Kim to provide some personal information for police records and then logged personal property consisting of a belt, some shoelaces and $2.20 in coins. He was then placed in a cell. Staff Sergeant Dalgleish testified that if Mr. Kim had come into the station with injuries or blood on his shirt, he would have made enquiries.

[97] At 8:20 p.m. Staff Sergeant Dalgleish removed Mr. Kim from his cell and another officer took him to the CIB area. It is not unusual for an officer to ask that a prisoner be removed to an interview room. He did not have a note as to which officer took Mr. Kim to the CIB area. He agreed that he had a note that he had been speaking to Detective Noseworthy just before this but could not confirm that it was actually Detective Noseworthy who took him to the interview room. He agreed it was possible that it was Detective Noseworthy. At 10:42 p.m. Mr. Kim was placed back into a cell.

[98] Staff Sergeant Dalgleish testified that the cell area is video monitored and checked by the Staff Sergeant every 30 minutes. The checks are recorded and entered into a computer log. He did not have any note that Mr. Kim complained about being assaulted or about how he was feeling. This is something he would have noted if Mr. Kim had made such a complaint. Mr. Kim was never placed with other prisoners while at the station. He was always on his own. Staff Sergeant Dalgleish was not aware that Mr. Kim had complained about being cold in his cell.

[99] Staff Sergeant Dalgleish was shown a Command Directive regarding prisoner care (Exhibit 24). He agreed that Part C (11) of the Directive instructs that interview rooms are for investigative purposes and not to be used as holding cells. Staff Sergeant Dalgleish testified that between 8:20 p.m. when Mr. Kim was moved to the interview room and 9:50 p.m. when Mr. Kim’s video interview took place, he expected Mr. Kim would have been interviewed.

Mr. Marcus Gumpenberger’s evidence

[100] Marcus Gumpenberger is a multimedia support supervisor who has worked for YRP since 1996. He is knowledgeable about the digital closed circuit TV system used in the stations (DCCTV). Video recordings are done in real time and stored in a central server for one year. Due to a mechanical failure of the hard drive, the video related to Mr. Kim’s time at 5 District station was not available even if defence counsel had asked for it during the one-year retention period.

[101] Mr. Gumpenberger agreed that at the preliminary inquiry his evidence was the video related to Mr. Kim was overwritten because it was requested after the one year-retention date but did not mention the hard drive failure. He went on to say that the hard drive failure had effectively the same result (data being overwritten) but that the data was overwritten prior to the one-year timeline. It was suggested to Mr. Gumpenberger that telling the court that the data was overwritten when it was never available due to the hard drive failure was misleading. He denied this suggestion.

[102] Mr. Gumpenberger testified that both of the video interview rooms at 5 District have two cameras. He presumed they were both working in both rooms on the night Mr. Kim was interviewed. If one camera had not been working he would have received request to repair it.

FACTUAL ANALYSIS

The Arrest and Booking

[103] It is unclear what happened on arrest as even the officers on scene have different accounts of what occurred. This was a police takedown of Mr. Kim’s vehicle, which led to Mr. Kim’s arrest. There were four officers involved in the takedown. There was no doubt a degree of confusion and noise. Mr. Kim had no prior involvement with police or the justice system. There is no evidence that he was uncooperative on arrest. Mr. Kim testified that he believed it was Detective Noseworthy who pinned him to the ground, put his knee in his back and whispered a threat to him. Detective Noseworthy said he had no physical contact with Mr. Kim at the arrest scene. Detective Tompras said he put Mr. Kim to the ground for about 30 seconds and that Detective Noseworthy arrived after that. PC Chabrzynski said he could not recall Detective Noseworthy being there at all. PC Borovskis said he could not recall Mr. Kim being put to the ground.

[104] In the end, I do not think that a determination of what did or did not happen at the arrest scene is critical to my findings in this case. It is clear that Mr. Kim had a swollen lip. I find that he was likely put to the ground to be handcuffed and the swollen lip occurred at that point. That on its own is far from sufficient to find any degree of state misconduct.

[105] Similarly, nothing of note happened when Mr. Kim was booked at the station. The booking area of the station is video monitored but since the video is not available it is not possible to determine if Mr. Kim arrived at the station with blood on his shirt. I accept Staff Sergeant Dalgleish’s evidence that if he had noticed anything unusual about Mr. Kim (such as blood on him) he would have enquired about it as he is responsible for the monitoring and safety of all persons in custody at the station.

The Search of the Kim Residence

[106] The defence position is that the horrendous condition in which the Kim home was left after the search demonstrates the animus of the officers towards Mr. Kim and a reckless disregard for the rules relating to searches. The Crown makes no excuses for the mess but submits that it is going too far to say that the state of the home can be linked to the officers’ attitude towards Mr. Kim.

[107] No one denied that the Kim home was left in complete disarray after the search. Drawers were left upturned, mattresses were removed and not put back, and clothes were removed from closets and thrown on the floor. The explanation appeared to be that when one is searching for something small (like underwear or a small handgun), a thorough search must be done.

[108] Somewhat surprisingly, Detective Noseworthy testified that this is normally how searches are done. He went further and said he had no problem with the way in which the home was left. He was shown photographs of rooms in complete disarray and was still unshaken in his view that this was just the way things were done when police needed to search for a small item.

[109] Mr. and Mrs. Kim were the homeowners and were not involved in the robbery. While the somewhat cavalier attitude towards leaving the home of innocent people in a mess may be distressing to some, it does not rise to the level of a Charter violation as in R. v. Thompson.[^1] In Thompson, the police damaged furniture, floors and walls in the course of a search for drugs. They cut the fabric on a couch, scorched walls and left the home in complete disarray. The court held that the manner of the search was unreasonable, unnecessary and showed a lack of respect for the accused’s home. The manner of the search was found to violate the accused’s Charter rights pursuant to s. 8.

[110] The police did not damage any walls, floor or furniture in the Kim home. While both the manner of the search and the police attitude towards the mess they left was unfortunate and should not be condoned, it cannot be compared to the flagrant disregard for the sanctity of one’s home exhibited in Thompson. Further, making a link between clothes not put back into drawers and general animus towards Mr. Kim is too big a leap in this court’s view.

The Interview

[111] Mr. Kim was very clear in his evidence about what happened in the interview room with Detective Tompras and Detective Noseworthy. In short, Mr. Kim alleges that he was beaten, told to confess, and to cover up what they had done, the officers washed the blood out of Mr. Kim’s shirt and made him put it back on when it was still damp. The officers denied that anything inappropriate occurred in the interview room.

[112] I have carefully reviewed all of the evidence related to Mr. Kim’s alleged injuries, the blood on his shirt and the various factual details relating to the interview and find that on a balance of probabilities, Mr. Kim was assaulted in the interview room by either Detective Tompras or Detective Noseworthy or both. I do not think it is necessary to determine the extent of each officer’s role in the assault in making this finding. There is no other realistic conclusion to draw based on the circumstantial evidence available. I rely on the following in reaching this determination:

(a) Staff Sergeant Dalgleish did not note anything unusual about Mr. Kim when he arrived at the station. I accept that if he had come into the station with blood on his shirt or if he had looked in any way injured, Dalgleish, as an experienced staff sergeant, would have noted this.

(b) Mr. Kim was removed from the cells at 8:20 p.m. so that he could call Duty Counsel. He was placed in an interview room to do so. The evidence was uncontroverted that the interview room in which he was placed did not have video monitoring. Mr. Kim was left in the interview room. Duty counsel called back at 8:38 p.m. according to Detective Tompras. Detective Tompras photographed Mr. Kim at 8:56 p.m. He was not removed from the interview room until his videotaped interview began at 10:02 p.m. There is no evidence about what happened to Mr. Kim between 8:38 p.m. and 10:02 .pm. other than the photographs. Detective Tompras’ evidence was that it was easier to leave Mr. Kim there until his videotaped interview rather than take him back to the cell and then out again. I find that this explanation is unsatisfactory and does not comply with paragraph C 10) and 11) of YRP Command Directive relating to Prisoner Care and Control (Exhibit 24). That directive stipulates that prisoners are not to be left in interview rooms unsupervised, nor are interview rooms to be used as holding cells.

(c) Detective Tompras did not note any physical injuries or blood on Mr. Kim when he photographed him at 8:56 p.m. Objectively, the photos contained in Exhibit 15A do not show any injuries or any blood on Mr. Kim’s shirt.

(d) The photos taken at the courthouse on August 3, 2012, at 9:00 a.m. show stains on Mr. Kim’s shirt. The Crown conceded that the blood is Mr. Kim’s based on DNA analysis of those stains.

(e) After Mr. Kim’s videotaped interview at the station, he was placed back in the cells. He was never with any other prisoner. The next morning he was transported to the Newmarket courthouse for his bail hearing. There is no evidence that any injury occurred to Mr. Kim during transport or at the courthouse prior to being photographed.

(f) Both Detective Tompras and Detective Noseworthy had access to Mr. Kim while he was in the interview room. As prisoners were routinely placed in such interview rooms to receive calls from Duty Counsel, no one would have questioned Mr. Kim being placed in the room.

(g) There is some evidence that it may have been Detective Noseworthy who asked Staff Sergeant Dalgleish to have Mr. Kim moved from the cells to interview room 2.

(h) While Mr. Kim did not complain about the officers’ treatment or his injuries, I accept his explanation that he was frightened, had never been involved in the criminal justice system and felt that saying or doing anything might make things worse.

(i) The fact that Mr. Kim was subsequently interviewed on videotape facing away from the camera is a fact that simply cannot be explained away. The only inference to be drawn is that this was done to ensure that the blood on Mr. Kim’s shirt or any facial swelling would not be seen on camera since all the officers testified that an accused is always interviewed facing the camera.

(j) There was evidence that all of the co-accused gave videotaped statements. All of them were seated in the proper chair facing the camera.

(k) I accept that there were public washrooms at the station that had sinks and hand dryers. Blood could have easily been washed out of the shirt and dried until it was damp as described by Mr. Kim. I find that the brownish stains on the shirt are faded and consistent with an attempt at washing them out.

(l) There were only three places in the station that were not monitored by video. The CIB area, the interview rooms off the CIB area and the hallway running north out of the CIB area. If the assault had occurred in the hallway, Staff Sergeant Dalgleish’s testimony was that he would have heard the commotion. If it happened in the CIB room there were several officers present doing paperwork who would have observed it. The only remaining location is one of the interview rooms, exactly where Mr. Kim was located. If Mr. Kim had no bloodstains on his shirt when he was in the booking area, nor when he was photographed just before 9:00 p.m., that leaves the hour he was in the interview room before he went for his videotaped statement. Detective Tompras and Detective Noseworthy have virtually no notes about what happened during this period. Why was he left in the interview room if he had already spoken to Duty Counsel? I find that he was left there was so that Detective Tompras and Detective Noseworthy could obtain a confession from Mr. Kim and they assaulted him to do so.

(m) I accept the observations of Mr. Kim made by his mother, father and sister that there were brown stains on his shirt, that his left eye was red and that the left side of his face was swollen. I accept the evidence of Mr. Kim’s father that there was a bump on the back of his head and a bruise on his left calf. I further accept that the family observed Mr. Kim not to be normal and that his sister was concerned about a concussion given Mr. Kim’s vomiting and complaints of dizziness.

(n) It is admittedly difficult to tell from the photos whether Mr. Kim had any facial swelling other than his lips. I agree with the Crown that there is no visible bruising or other easily noticeable signs that Mr. Kim was assaulted. However, Detective Tompras and Detective Noseworthy knew that the next step for Mr. Kim was a videotaped interview. I infer that they were careful and aware that whatever they did to Mr. Kim could not show on camera, which explains the rather odd decision to hit Mr. Kim on the head with his own shoe and kick him in the shin. Those types of assaults would not result in any injury that could be seen on camera. Mr. Kim testified that he was also punched in the face and nose, which caused his nose to bleed. That was clearly not a wise decision by Detective Tompras or Detective Noseworthy, but I accept that emotions were running high and they knew about Mr. Kim’s involvement from Mr. Jivitov and they wanted his confession. There was no medical evidence presented with respect to facial bruising from a punch. I accept that one of the officers put on a pair of gloves before punching Mr. Kim. I infer that this was either to protect the officer’s own hand or to reduce injury to Mr. Kim.

(o) I accept that Mr. Kim required medical treatment for his injuries and that he was fully recovered from them in a few weeks. It is clear that Mr. Kim had no lasting or permanent injuries.

(p) I do not accept the denial of Detective Tompras or Detective Noseworthy with respect to this incident. A more detailed analysis of their credibility and that of Mr. Kim is found below.

Credibility Analysis

Mr. Kim

[113] Mr. Kim was not a perfect witness. He admitted that he was often in conflict with his father and would not allow him to take photographs of him when he got home from the bail hearing. He readily conceded that he sometimes did things just because he knew his father did not want him to. However, certain parts of Mr. Kim’s evidence rang true. First, his attitude that he did not really want to cooperate with his father to investigate the police behaviour is consistent with his view that the police were aligned and would cover up for one another so there was no point. Second, he confessed the robbery to his parents and sister immediately upon his release. Third, his descriptions of the assault, his fear of the police and his confusion about trying to maintain his right to silence while undergoing threats to confess were explained in a logical and credible way.

[114] Specifically, Mr. Kim’s description of the assault was clear and unembellished. The following is an excerpt from Mr. Kim’s testimony:

“At that point Detective Noseworthy said I should admit to everything on camera or they would beat me up for a while. I said I wouldn’t admit to anything I didn’t do. I didn’t think there was any point in saying anything to the police. I wanted to maintain my innocence and right to silence at that point. So Detective Noseworthy put on the gloves and punched me on the side of the face – a closed fist punch. I was in shock, adrenaline pumping. I couldn’t believe it was happening. I thought this stuff only happened in movies. He told me to get up and come around the desk and then he punched me a couple of times. I put my hands up to cover my face and block his punches and put my head down at which point he punched me in the head, one punch landed on my nose. My nose started to bleed and got on my shirt. He told me to take off my shirt and shoes and then he kicked me in the shins a couple of times. He gave me some tissue and I rolled it in a ball and put it into my nose. Detective Tompras pushed me towards the wall and pressed the side of my face and head against the back wall. He said this is what happens to people who rob businesses in broad daylight…..they then left with my shirt and the tank top I was wearing under it and shoes and I was there for a while. Then Detective Tompras came back with my clothes and the bloodstains were basically gone. The clothes were still damp but hot.”

[115] I accept Mr. Kim’s evidence about this incident. I accept that the blood was minimized by both the Kleenex he put in his nose and the washing of his shirt. The account he told the court mirrors what he told his family upon his release on bail. I further accept that he did not say anything about the assault during his videotaped interview because he did not want to aggravate the police. That is logical given my finding that they assaulted him. Further, Mr. Kim had just received advice from Duty Counsel. He was told to maintain his right to silence. We know that Mr. Kim committed the robbery, but the fact that he was entitled to maintain his right to silence after receiving legal advice cannot be disputed. That is, Mr. Kim should not be made out to be lying about the incident just because he wanted to maintain his right to silence. This should not affect his overall credibility.

[116] I also accept the evidence of his mother, father and sister with respect to Mr. Kim’s injuries and his complaints about pain and nausea following his release on bail. I found that their evidence was believable with respect to a sense of shock both in terms of what Mr. Kim had done (the robbery) and how the police treated him. As Mr. Kim’s parents and sister, I find that they were in the best position to observe and recount what injuries they saw. I do not accept that they gave their evidence in order to lie and buttress Mr. Kim’s account of events. Rather, I found them to be remarkably restrained considering the state in which their house was left by police after the search.

[117] Mr. Kim admitted that he was not honest at the walk-in clinic with respect to how he obtained his injuries and did not disclose at the hospital that it was the police who assaulted him. However, Mr. Kim’s father had ordered his son to lie about how he sustained his injuries. Further, both seemed to have some fear of admitting that the police had assaulted Mr. Kim for fear of the reaction of the hospital or doctors and receiving some lesser form of treatment from them. This fear was obviously misplaced, but I find that it was genuine.

Detective Tompras

[118] Detective Tompras was not evasive during cross-examination; dismissive is a better term. Despite describing himself as a meticulous, “by the book” officer with 13 years’ experience (at that time), his evidence belied such descriptions in the following ways:

(a) Detective Tompras admitted to questioning Mr. Kim after reading him his rights to counsel and after Mr. Kim told him he wanted to speak to a lawyer.

(b) He did not ask Mr. Kim if he wanted to speak to or had a private lawyer. He simply called Duty Counsel without making further enquiries.

(c) He was asked how he could record precise times (such as 17:09 for the traffic stop) when he actually recorded the notes several hours after the incident. He initially testified that the reason he was able to do this was because he carried a scratch pad with him. He later threw out the scratch pad and testified that he was unaware of any Command Directive that related to retention of such notes. Ultimately, his evidence was that he had the ability to remember exact times several hours later even without recording them on a scratch pad or his phone. He does not wear a watch, although he has a cell phone.

(d) He was certain that when he arrived at the station Mr. Kim was in interview room 2 although he had no note to that effect. He testified that he does not know why he remembered that detail. He agreed that at the preliminary inquiry in December 2013, he said he was not sure which interview room Mr. Kim was in. His evidence was that after reviewing the photographs taken of Mr. Kim at the station he was able to identify the room.

(e) He admitted to having a conversation with Mr. Kim about the search warrant delaying his conversation with Duty Counsel. He agreed that all conversations with Mr. Kim at this point should have been recorded in his notes but were not.

(f) He agreed that any officer could walk into the interview rooms from the CIB area. There was no monitoring of who was going in and out of those rooms. He was certain that neither he nor Detective Noseworthy were ever in the interview room with Mr. Kim other than when he brought in the phone for Mr. Kim to talk to Duty Counsel and when he took the photographs. His evidence was that four years after the event and without any notes relating to that period of time, he was certain of those facts. He agreed that there was almost a complete absence of notes related to his dealings with Mr. Kim at the police station up to the point that he was interviewed on camera.

[119] Detective Tompras was shown Command Directive LE022, which deals with Officers’ Notes and Notebook Control. Although this directive was dated July 2015, Detective Tompras agreed that there was a Note and Notebook Control Directive in place in 2012. He agreed that he did not comply with the Directive in the Kim case with respect to making sufficient notes, signing and retaining rough notes and providing rough notes to the Crown for the purpose of disclosure.

[120] I find that Detective Tompras was not a “by the book” officer as he claimed. I also find that when cornered about how he was able to come up with precise times for events hours after they occurred, he fabricated the fact that he had rough notes. I observed him to hesitate in his evidence on this point as if rapidly assessing how to deal with the fact that his notes were clearly deficient for certain critical events such as the time when Mr. Kim was in the interview room.

[121] There is a concern about all of the officers’ evidence with respect to the videotaped interview. Even if I accept Detective Tompras’ evidence that Mr. Kim went into the video room and sat down without being directed where to sit, I find that Detective Tompras knew he was sitting in the wrong seat. Yet he did not redirect Mr. Kim. I do not accept Detective Tompras’ evidence that he had no control over where Mr. Kim sat. Of course he did. He was the interviewing officer and Mr. Kim was under arrest. To insist that he had no control on how the interview was set up is simply not believable. Further, I do not accept his evidence that it “would have been better” if Mr. Kim had sat in the other seat. Detective Tompras was an experienced officer. I infer that he knew that the purpose of a videotaped interview was to allow the accused to be seen on camera. For him to suggest that this was effectively a matter of officer discretion is bordering on ludicrous.

[122] Further, it was disingenuous for Detective Tompras to say that the seat that Mr. Kim sat in was not strictly for the use of the interviewing officer when it was higher than the other chair, on wheels and closer to the door. Detective Tompras persisted with his view that there was nothing wrong with the manner in which the interview was conducted even though one could not fully see Mr. Kim’s face or the front of his shirt but one could see Detective Tompras without obstruction. It is also difficult to accept why Detective Tompras would not have chosen the other camera room for the videotaped interview, which allows for a view of both the officer and the witness and was available at the time of Mr. Kim’s interview. Detective Tompras knew of the existence of the other camera room because he had worked out of that location for 11 years.

[123] Detective Tompras was shown a portion of the videotaped interviews of Mr. Kim’s co-accused, Mr. Zandi and Mr. Jivitov. Although he did not conduct these interviews, he agreed they were done in the other video room (the “better” one) and with Mr. Zandi and Mr. Jivitov in full view.

[124] Detective Tompras testified that there was no rule about where witnesses were to be placed for the purpose of videotaped statements although “ideally” they should be in full view of the camera. He later conceded that there was a Command Directive related to videotaped statements that included a requirement that witnesses be placed in the room so that they can be clearly seen on video. He agreed that he did not follow that Directive and contradicted his prior testimony that there was no rule about such things.

[125] The entire situation begs the question of why an experienced officer like Detective Tompras would interview Mr. Kim in the manner he did while having the full capability and authority to comply with the Command Directive unless there was some other motive to do so.

[126] There is also the puzzling evidence of PC Chabrzynski concerning the videotaped statement. He was assigned to “monitor” the videotaping by making typed notes. He noticed that Mr. Kim was seated in the wrong place but did not do anything about it. He was very consumed with making typed notes since he can only type with two fingers. While leaving aside the question of why someone who cannot touch type was assigned to such a job, it defies logic that PC Chabrzynski, an officer with 26 years’ experience, would allow the situation to continue when his own evidence was that that he had never seen a videotaped interview done that way.

[127] As well, there was the evidence of Detective Tompras when he was recalled to give evidence about Exhibit 23. The reason he was recalled was that the defence was not aware of the photographs in Exhibit 23 until the continuation of the trial in June 2017. A new Crown had taken over the file at that point and made an enquiry of Detective Tompras as to whether there were any photographs of the accused on the “Niche” system. Detective Tompras has access to this system and found that there were photos taken at the Newmarket courthouse on August 3, 2012. One of these photos was a head shot of Mr. Kim (Exhibit 17), which had been disclosed to the defence initially. What is important, and somewhat shocking, is that the balance of these photos were not disclosed to the defence until the continuation of this matter in June 2017. Importantly, one of the photos shows a full frontal view of Mr. Kim wearing his white shirt. The stains on the shirt are fully visible. By way of agreed statement of facts, there is no dispute that these photos were taken after 9:00 a.m. at the Newmarket courthouse on August 3, 2012.

[128] Did Detective Tompras simply forget that such an important photograph was available to be disclosed to the defence? I might have accepted his evidence in that regard had he not told the court repeatedly that he was a meticulous, “by the book” officer with a good memory for detail. The court is therefore left with a concern that Detective Tompras knew what was contained in the photos and that they were not disclosed until a diligent Crown insisted on it.

[129] A final factor that relates to this court’s complete rejection of Detective Tompras’ evidence was his reaction to being shown Mr. Kim’s shirt with blood stains. He was aware that there had been DNA testing that confirmed that the stains were Mr. Kim’s blood. However, he refused to concede that they looked like blood stains. He went so far as to say that he did not know what blood stains looked like. This evidence from a police officer with 11 years’ experience is incongruous at best.

[130] Another factor in this case that bears mentioning is the lack of video surveillance tapes from the station, which would have included the video of Mr. Kim in the booking area. This evidence would have been important with respect to viewing the state of Mr. Kim’s shirt and whether he had injuries at that point. Detective Tompras agreed that it was his responsibility to ensure that the videotapes were preserved and that a Notice was given to Mr. Kim regarding their availability if he wanted them. Unfortunately, the evidence is very confusing about what happened to that Notice. It appears it was never served on Mr. Kim, but given to his father at bail court. His father may or may not have given it to defence counsel. In the end, none of this mattered as a hard drive problem meant that the videotapes from the relevant date were overwritten and could not have been produced even if defence counsel had requested them during the one-year retention period. While somewhat out of the control of the police and defence, it is yet another of the panoply of circumstances in which the proper protocols were not followed. In this case the defence was not informed of the lost files and then the defence was effectively blamed for failing to request the video within the one-year retention period.

Detective Noseworthy

[131] Turning to Detective Noseworthy, he was unable to tell the court much of what happened at the station despite being the ranking officer in this investigation. His evidence was that he only made note of one contact with Mr. Kim between 8:30 p.m. and 9:35 p.m., which was when he delivered food to Mr. Kim in the interview room at 9:35 p.m. He did recall (without having any note of it) that Mr. Kim was in interview room 2. He could not say why he recalled that detail. He denied assaulting Mr. Kim or having any contact with him whatsoever, other than as noted above. When showed Mr. Kim’s shirt, he refused to concede that the stains could have been blood stains. They looked like coffee stains to him.

[132] Detective Noseworthy’s evidence was similar to that of Detective Tompras. Both agreed that any officer could have had unmonitored access to Mr. Kim before he was taken to the video room and had very few notes about Mr. Kim during that period. Detective Noseworthy testified this was because nothing of consequence happened. Detective Noseworthy was not evasive, but similar to Detective Tompras, he was dismissive of any possibility of wrongdoing with respect to Mr. Kim. He agreed that the seating of Mr. Kim in the wrong chair for the videotaped interview was a silly error that should not have happened. Surprisingly, as the supervising officer, he was not even aware it had happened until the following day.

[133] In conclusion, I find that the defence has met their onus with respect to proving that Mr. Kim was assaulted at the police station on August 2, 2012. The circumstantial evidence when looked at as a whole can lead to no other conclusion. I find that both Detectives Tompras and Noseworthy were involved in the assault, although the extent of each of their participation cannot be exactly determined. They placed Mr. Kim in an unmonitored room for an extended period of time and used physical intimidation to attempt to extract a confession from him. When they were unsuccessful, they had to hide the evidence of their actions by washing the blood out of his shirt and placing him away from the video camera for his interview. The assault, their attempts to cover it up and their failure to comply with Command Directives with respect to note taking, prisoner handling and videotaped statements result in a breach of Mr. Kim’s Charter rights pursuant to sections 7, 11(d) and 12.

What is the Remedy?

[134] Having found that Mr. Kim’s Charter rights were breached, the court must now turn to the proper remedy. Mr. Kim seeks a stay of proceedings pursuant to the common law and s. 24(1) of the Charter. He seeks this remedy pursuant to the principles in R. v. Mack where the Supreme Court of Canada stated that a stay is available when state conduct transcends what our society perceives as acceptable.[^2] The objective of a stay is to maintain confidence in the legal and judicial process.

[135] Mr. Kim seeks to invoke what has come to be known as the “residual category” of abuse of process. As such, the remedy does not relate specifically to the trial process. Instead, as stated in R. v. O’Connor, the remedy relates to 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.”[^3] The residual category, although narrow, is permitted where the abusive action undermines the fundamental justice of the legal system as opposed to specifically undermining trial fairness.[^4]

[136] The unusual remedy of a stay is not so much centred on the accused or the merits of the case, but on maintaining public confidence in the judicial system. In R. v. Conway, the Supreme Court of Canada held that “where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings.”[^5]

[137] The remedy of a stay is a prospective one, designed to prevent future or ongoing state misconduct. As the Supreme Court of Canada held in Canada (Minister of Citizenship & Immigration) v. Tobiass, a stay is appropriate on the residual grounds when “the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society’s sense of justice.”[^6]

[138] Finally, a stay may be granted only in the “clearest of cases” as per R. v. Jewitt.[^7] In the case of an application to stay on residual grounds, this means circumstances where “irreparable prejudice would be caused to the integrity of the justice system if the prosecution were continued.”[^8] As per R. v. Piccirilli,[^9] there are three requirements used to determine whether a stay is warranted: (1) there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; (2) there must be no alternative remedy capable of redressing the prejudice; and (3) where there is uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interest that society has in having a final decision on the merits.

[139] What type of state conduct is then required to offend the community’s sense of fair play? Some examples from the case law below illustrate what type of conduct is or is not required to meet threshold:

(a) An unacceptable degree of negligent conduct may be sufficient.[^10]

(b) State conduct need not be flagrant, intentional or demonstrative of mal fides to be sufficient.[^11]

(c) An improper motive on the part of the Crown or police is not required.[^12]

(d) The good faith of the prosecutor is not enough to bar a stay of proceedings.[^13]

[140] Police misconduct that includes assaulting accused persons and then lying about it has been held as sufficient to form the basis for a stay of proceedings. In R. v. Tran,[^14] the accused was beaten by police in an interview room without any video recording. The officers then attempted to cover up what they did by cleaning up the blood and lying about what happened. The Court of Appeal of Ontario held that force was not warranted. Mr. Tran had turned himself in and was beaten to the point of causing him permanent bodily harm. The court held that the officers lied to the court, destroyed evidence and lied to other officers. A stay was necessary to prevent the undermining of the public’s confidence in the justice system.

[141] In R. v. Tang,[^15] the accused was kneed in the stomach and punched in the eye by police on arrest. He was not resisting arrest or trying to escape. The officer failed to make proper notes of the injury and his testimony was found to be evasive. The Ontario Court of Justice considered the failure to document what took place to be an aggravating factor. The court also noted that the accused had no prior record or familiarity with the justice system, which it found increased the contextual seriousness of the misconduct. The court found substantially in favour of a stay.

[142] I find that this case is similar to Tran. While the injuries in this case were not as serious as in Tran, many of the other facts were similar such as officers concealing their misconduct and then denying the conduct in court. The court in Tran determined that the trial judge’s remedy of a reduction in sentence was insufficient to address the nature and degree of the police misconduct. As in Tran, I find that the police conduct in this case brings the integrity of law enforcement into disrepute and offends society’s sense of justice.

[143] An individual who receives legal advice and wishes to invoke their right to silence should be respected. While the police are permitted to question the accused person and even use tactics such as telling an accused that a co-accused has implicated him or her, physical intimidation and force cannot form part of such tactics.

[144] A further important consideration in this decision is the videotaped interview. The entire point of such an interview is to ensure that the witness or accused person can be fully seen. This is to ensure that the interview is fair, that the demeanour of the person can be observed and, frankly, that the police conduct vis-a-vis the witness is appropriate. The cavalier manner in which Detective Tompras and Detective Noseworthy and Police Constable Chabrzynski treated this grave error was disquieting to say the least.

[145] Had it not been for this factor, a reduction in sentence alone may have been a sufficient remedy in this case given that Mr. Kim’s injuries did not result in permanent bodily harm as in Tran. However, given what I find to be a deliberate attempt to ensure that Mr. Kim’s face and shirt could not be observed on video, the officers’ conduct affronts decency and fair play. It precludes the societal interest in having the case decided on its merits. Not granting a stay may send a message to the public that this court implicitly condones such behaviour. That cannot be the case. As such, I find that in considering all of the evidence and the case law, this is one of those rare clear cases in which the remedy of stay must be granted.

[146] The defence application is allowed. Given that a stay has been granted, the August 28, 2017, court date in Newmarket is hereby vacated.

Gilmore J.

Released: August 24, 2017

CITATION: R. v. Kim, 2017 ONSC 5034

COURT FILE NO.: CR-13-07401

DATE: 20170824

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

GIL KIM Applicant

STAY APPLICATION

Gilmore J.

Released: August 24, 2017

[^1]: 2010 ONSC 2862, 255 C.C.C. (3d) 236. [^2]: 1988 24 (SCC), [1988] 2 S.C.R. 903 at p. 942. [^3]: 1995 51 (SCC), [1995] 4 S.C.R. 411 at para. 73. [^4]: R. v. Regan 2002 SCC 12, [2002] 1 S.C.R. 297 at para. 55. [^5]: 1989 66 (SCC), [1989] 1 S.C.R. 1659 at 1667. [^6]: 1997 322 (SCC), [1997] 3 S.C.R. 391 at para. 91. [^7]: 1985 47 (SCC), [1985] 2 S.C.R. 128 at p. 14. [^8]: O’Connor, supra 3 at para 82. [^9]: 2014 SCC 16, 2014 CarswellQue 575 (S.C.C.). [^10]: R. v. La, 1997 309 (SCC), [1997] 2 S.C.R. 680. [^11]: R. v. Bressette [2001] O.J. No. 3514 at para 12. [^12]: R. v. Atikian, 1992 CarswellOnt 5166. [^13]: R. v. Pearson, 1994 CarswellQue 166. [^14]: 2010 ONCA 471, 103 O.R. (3d) 131. [^15]: 2011 ONCJ 525, [2011] C.R.R. (2d) 348.