R. v. Alakeswaran, 2018 ONSC 4403
Court File No.: CR-17-566-00 Date: 2018 07 17 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent Alanna Fedak-Tarnopolsky, for the Crown
- and -
Nivethan Alakeswaran, Applicant Sharon Jeethan, for the Applicant
Heard: July 4 and 5, 2018 at Brampton
Ruling – Application to Stay Proceedings
F. DAWSON J.
[1] On March 28, 2018 a jury convicted Nivethan Alakeswaran of one count of aggravated assault. Subsequent to his conviction Mr. Alakeswaran brought an application to stay the proceedings. Sentencing was delayed to hear the application. The application to stay proceedings is brought pursuant to ss. 7 and 12 of the Charter of Rights. It is based on an allegation that the applicant was punched once in the face by the Peel Regional Police constable who interviewed him subsequent to his arrest. The applicant alleges the blow was struck while another officer held his arms behind his back.
[2] On July 5, 2018 I advised the parties that the application was dismissed with reasons to follow. These are those reasons.
Factual Background
[3] On September 26, 2015 Mr. Butale Abdallah was brutally attacked by a group of young men. The attack occurred on Mr. Abdallah’s front door step. Mr. Abdallah was gravely injured and almost died from the stabbing and beating injuries he received.
[4] The police investigation lasted for approximately one year. On September 28, 2016 the applicant and a number of other young men were arrested and charged with attempted murder and aggravated assault. They were taken to 21 Division of the Peel Regional Police where they were interviewed by teams of officers who had been working on the investigation.
[5] The applicant was interviewed by Cst. David Oxley and Cst. Beccario. The interview lasted for several hours. The applicant provided the police with little information and continued to deny his involvement throughout.
[6] When the interview concluded a cells officer, Cst. Julian Golia, attended to remove the applicant from the interview room and return him to the cellblock. The applicant testified that Cst. Golia removed him from the room, had him face the interview room door and patted him down. The applicant claims that Cst. Golia then restrained both of his arms as he started to take him towards the cells. The applicant alleges that at that point Cst. Oxley approached him from the front, grabbed the neck area of his hoodie style sweatshirt with one hand and punched him once in the face with his other hand. The applicant says that he was unable to move his hands to his face at that time as he was still being restrained by Cst. Golia.
[7] Cst. Oxley testified and denied the allegation. He said he was in another area of 21 Division some 75 to 80 feet away from the interview room at the time of the alleged assault. Cst. Golia also denied that the incident occurred. He denied restraining the applicant as alleged and denied seeing anyone strike the applicant at any time.
[8] The applicant, Cst. Oxley and Cst. Golia were the only witnesses called on the application. A number of video clips of what occurred during the interview and at other points in the cell area of 21 Division were played as part of the evidence. While the entire videos were filed as exhibits, upon my inquiry counsel agreed that I was only to consider the portions of the videos that were played in the courtroom. Each clip that was played was clearly identified on the record.
[9] There was no video camera in the area where the alleged assault occurred. The applicant submits that the police officers involved assaulted him at that location for that reason. The respondent submits that the applicant knew there was no camera in that area and took advantage of that to make a false allegation.
[10] I will deal with significant aspects of the evidence in more detail in my analysis.
The Applicable Legal Principles
[11] As the applicant points out in his factum, when the police use excessive force against an accused, in many situations the accused’s rights under ss. 7 and 12 of the Charter will be breached: R. v. Tran (2010), 103 O.R. (3d) 131, 2010 ONCA 471; R. v. Singh (2013), 118 O.R. (3d) 253, 2013 ONCA 750. As reviewed in Tran and in Singh, while a stay of proceedings is a discretionary remedy, it may be the most appropriate remedy in some cases.
[12] During submissions all counsel agreed that I should reach my factual findings before hearing detailed submissions related to whether a stay is appropriate. It is common ground that the applicant must establish on a balance of probabilities that the assault upon him occurred. Unless that burden is met there is no need for further submissions.
Analysis
[13] As I advised counsel at the conclusion of the evidential hearing and submissions on this factual matter, I am not satisfied that the applicant has satisfied his burden of proof. A number of significant problems with the reliability of the applicant’s evidence were clearly demonstrated during his cross-examination. On the basis of reliability concerns alone, I have difficulty in accepting his evidence. In addition, those reliability concerns give rise to significant concerns about the applicant’s credibility. I conclude that when all of the evidence is taken into account, those things which the applicant points to as “corroborating” his story do not have the probative value attributed to them by the applicant. Moreover, some of the submissions advanced that certain circumstances support the applicant’s allegation, have been demonstrated to be false. I will elaborate.
[14] First, two additional background circumstances should be mentioned. When the applicant was brought to the courthouse the day after his arrest he was photographed by the police. Close up photographs of the applicant’s face do not show any swelling or injury. The applicant concedes that to be so. He explains that as a result of the blow he had only a small cut inside his mouth that was no longer bleeding by the time the photographs were taken. He said that only a small amount of swelling was associated with the cut. It was on the inside of his mouth and would not be visible in photographs.
[15] Second, the applicant made no complaint about this alleged assault until shortly before his trial. He testified that he made no complaint as he thought being struck by the police was normal. His position is that he only decided to raise this when he wondered, after receiving various videos as part of Crown disclosure, where the video was of his being struck by Cst. Oxley.
[16] Given these facts considerable emphasis was placed by the applicant on circumstances which he submits support his version of events. I now turn to those circumstances.
[17] The applicant testified that it was only after he was struck by Cst. Oxley that he began to touch his face and look at his hand to see if he was bleeding. He relies on video clips from security cameras recording events as he came back into the cell area subsequent to his interview, which show such actions.
[18] The applicant also testified that after he was struck be began to spit blood. He denied spitting at any point prior to being struck. He relies on particular video clips identified on the record as supporting his contention that he was spitting blood subsequent to his interview. He testified that in relation to those clips he was spitting to get the sour taste of blood out of his mouth. He denied that on those occasions he was spitting to remove phlegm from his throat due to a cold or allergies.
[19] The applicant also testified that he can be seen on video in the cells area using his tongue to feel the inside of his mouth. He says this was due to the cut inside his mouth and that it was not for any other reason. Once again, he denied that he had ever been doing such things before he was struck by Cst. Oxley after his interview concluded.
[20] During cross-examination the applicant repeatedly said that he was 100% certain that he had not been spitting or engaging in the actions he relied on to support his account, prior to being struck. Crown counsel then played a number of video clips from the applicant’s interview which clearly contradicted the applicant’s testimony.
[21] During those video clips it can be seen that the applicant had a very bad cold or allergies. He was frequently sniffling, blowing his nose or wiping his nose on his hand or shirt. Frequently he would then look at his hand or shirt. He can also be seen touching his face with his hands and looking at his hands. More than once while alone in the interview room he got up, walked to a garbage can, and spit into it.
[22] On more than one occasion the applicant can also be seen running his tongue over his teeth or making other movements with his mouth which he described in cross-examination as “kissing his teeth”.
[23] After seeing these portions of the video the applicant acknowledged them but said he was making the motions with his hands and mouth and spitting on later occasions solely because he had been assaulted.
[24] Having been so categorical in his denials that he had not engaged in such actions at any time before he was struck, it is very difficult to accept the word of the applicant that some of his later similar actions were due to an assault. In addition, leaving credibility considerations aside, I have difficulty in attributing any weight to such actions as supportive of his allegations. The applicant had a very bad cold or allergies. His nose, throat and chest seem to have been full of phlegm and he was spitting and touching his nose and face as a result.
[25] I also note the following. The applicant relies on a video clip of his spitting while in cell F3. The video shows the applicant standing on the concrete bench or bed in the cell and spitting down and to his side. He testified that he was spitting blood. Yet when the video leading up to the spitting is observed it is apparent that the applicant’s chest was heaving as if he was deliberately clearing his chest or throat. There is no sound on cell block video. However, it certainly appears to me that the spitting was associated with efforts to clear his chest or throat, consistent with his bad cold. The applicant did not touch his mouth in connection with this act of spitting.
[26] There is also a video which shows Cst. Golia taking the applicant from cell F3 to the booking area where Golia can be seen removing the laces from the applicant’s shoes. This is after the conclusion of the interview. After the shoe laces have been removed the applicant can be seen entering a room just off the booking area. Approximately one minute later the applicant can be seen coming back out of that room.
[27] The applicant testified that the room was a washroom where there was no video camera. He repeatedly stated that he spit blood into the toilet or sink in that washroom. He relied on that in support of his allegations. However, by the end of the application it was common ground that the room in question was not a washroom but a telephone room which did not contain a sink or toilet. While there was a washroom nearby in the booking area there is no evidence that the applicant was in that washroom at any time after he says he was hit by Cst. Oxley. There is some evidence, put in through Cst. Golia, that the applicant was in that washroom earlier, before the applicant says he was hit by Cst. Oxley. If he was in that washroom earlier there would be no reason for him to be spitting blood.
[28] In the context of all of the evidence it appears to me that the applicant is fabricating this evidence. He claimed a distinct recollection of spitting blood in a washroom in the booking area but there is no evidence he was in a washroom in the booking area after the alleged assault. I observe that the applicant had disclosure of a video showing him going into a room. From the video one cannot tell what that room contains. However, a silver metal panel can be seen in the video mounted on the wall near the door to the room. That panel has a control on it that allows the cell officer to flush the toilet in the booking area washroom which is located further along the wall and is not visible on the video disclosed to the applicant.
[29] It is also apparent upon close examination of the video that Cst. Golia is holding a white tee shirt in his hand after the applicant came out of the telephone room. Cst. Golia testified that he had the accused go into the telephone room to remove one layer of upper clothing. Prisoners are only permitted one layer. When the applicant initially testified, he denied that he was wearing a shirt under his hoodie. The video and further cross-examination of the applicant clearly demonstrated that aspect of the applicant’s testimony to have been incorrect.
[30] There are other ways in which the evidence of the applicant demonstrated weaknesses or a lack of reliability. I have mentioned only those which I find to be most significant.
[31] Before commenting on the evidence of Csts. Oxley and Golia I think it is important to deal with the layout of the area of 21 Division where the assault is alleged to have occurred. A diagram of the area is marked as Exhibit 6. This shows that the doors to the interview rooms, including room number 2 where the applicant was, open into a large office area used by officers of the Criminal Investigation Bureau and the Neighbourhood Policing Unit. The evidence is that this is a very busy area used by many officers. As such it seems like a most unlikely area for an assault of the sort described by the applicant.
[32] Cst. Oxley testified that Cst. Beccario initially asked questions of the applicant during the interview. Cst. Oxley described Beccario as taking a soft approach. He agreed that the applicant was smiling and did not seem to be taking the matter seriously. Counsel for the applicant suggested to Cst. Oxley that when he took over the questioning he was more aggressive. Cst. Oxley agreed. On the video of the interview Cst. Oxley can be seen pulling the hood off the applicant’s head on two occasions when the applicant was withdrawing inside his sweatshirt. Counsel for the applicant suggested to Cst. Oxley that he became frustrated with the applicant and lost his temper.
[33] Cst. Oxley denied these suggestions. He testified that Cst. Beccario’s approach was not working and that he decided that a somewhat more aggressive approach was more likely to produce results. Still, in the video clips of the interview which I was shown, Cst. Oxley is not very forceful with the applicant. While he did tell the applicant the matter was serious and tried to show him some evidence, including cell phone records, I must say that his approach was much milder than frequently seen in videos of police interviews. Cst. Oxley testified that at one point earlier in the interview the applicant asked to be shown the evidence. When he tried to show the applicant the cell phone records the applicant pulled up his hoodie and seemed to hide inside his sweatshirt.
[34] I have carefully watched the video clips where Cst. Oxley pulled back the applicant’s hood. From the perspective of establishing voluntariness, this may not have been a wise move. Touching an accused during an interview in any way raises potential concerns. Here, however, Cst. Oxley pulled the hood back gently without actually touching the applicant. He told the applicant to look at him and to look at the evidence. However, I did not see anything in the video clips to suggest that Cst. Oxley was truly angry or upset. What occurred does not rise to the level suggested by the applicant.
[35] Cst. Oxley testified that the police did not believe that the applicant was a major participant in the assault on Mr. Abdallah. They thought he was the driver of a car that brought some of the people to the area of the assault. They had cell phone records and other evidence which they could rely on to establish that involvement. I accept Cst. Oxley’s evidence that a confession from Mr. Alakeswaran was not of great significance in the circumstances.
[36] Cst. Oxley testified that after the applicant’s interview concluded he went to the video monitor room to watch the interview of another accused, Trevor Singh. Singh was providing important information about the assault and who was involved in it. Cst. Oxley testified that when the two officers interviewing Singh took a break from the interview, he spoke with them. It is an agreed fact (Exhibit 7) that those officers were out of the interview at times which coincide with Cst. Oxley’s evidence. Cst. Oxley denied that he was near the door to interview room 2 when the applicant says he was struck.
[37] Cst. Oxley explained that what Trevor Singh was saying was significant. Cst. Oxley made some notes about that, which consisted of a list of names mentioned by Trevor Singh. He was then detailed to arrest Jevonte Brown, who Trevor Singh had mentioned in his interview.
[38] I conclude that Cst. Oxley was unshaken in his evidence. There is nothing about the context of his evidence or the manner in which he gave it that renders it unreliable or incredible. Based on the video clips of the interview Cst. Oxley was not overly aggressive. It does not appear to me that Cst. Oxley was angry or highly frustrated.
[39] Cst. Golia testified that in September 2016 he was a cells officer at 21 Division. As a cells officer he does not make notes as other officers do, but he and other cells officers make computer entries into an activity log for each prisoner. He referred to that log to refresh his memory.
[40] Cst. Golia testified that one of his responsibilities was to take prisoners to and from interview rooms. When an interview is over he is generally notified by telephone to retrieve the prisoner. That call usually comes from the front desk. Although he knew who Cst. Oxley was, Cst. Golia said he had no contact or conversation with Oxley on September 28, 2016 regarding the applicant. Cst. Golia testified that he was not part of the investigation.
[41] Cst. Golia testified that if he saw blood on a prisoner or on the floor or any other place near the cells he would notify his sergeant so the matter could be investigated. He saw no blood on or around the applicant or on the floor.
[42] Cst. Golia said he does not normally pat down prisoners being taken from an interview room until they are back in the cells area. That area is subject to video surveillance, as is the adjacent booking area. Cst. Golia described what could be seen on the video in the booking area of him removing the applicant’s shoe laces and directing the applicant into the telephone room to remove his shirt. He said he never saw the applicant spit blood. He did observe the applicant coughing before he spit into a large garbage can outside the telephone room. This is captured on video. He did not look into the garbage can after the applicant did that.
[43] Cst. Golia testified that he did not see Cst. Oxley when he removed the applicant from the interview room. He denied holding both of the applicant’s arms as the applicant testified and denied that anyone struck the applicant at any time.
[44] Cst. Golia had no recall as to whether the applicant used the washroom during the course of his police interview. A video clip of the interview, at a point where the interview was paused so that the applicant could use the washroom, was then played for Cst. Golia. He recognized himself as the officer who came to the door of the interview room and took the applicant to the washroom. Cst. Golia said the applicant would have been taken to the washroom in the booking area which is located just down from the telephone room.
[45] This trip to the washroom was long before the applicant says he was assaulted or had any reason to spit blood. Yet the applicant said he did so when he was in that washroom. This evidence from Cst. Golia, which I accept, feeds my conclusion that the applicant fabricated his testimony about spitting blood while in that washroom after seeing the video of himself entering what was later proven to be the telephone room.
[46] Cst. Golia’s evidence was given in a straightforward fashion and much of it is confirmed by the video recording. There is what appears to be a time discrepancy in the Activity Log concerning when the applicant was moved by way of cell transfer, but I accept Cst. Golia’s explanation for why that occurred. In my view it is not significant.
Conclusion
[47] There are a number of problems with the applicant’s evidence which I have generally described. On the other hand, the evidence of the two officers is not significantly tarnished. There is an absence of an early complaint by the applicant and photos of his face show no injury. These last two circumstances are not determinative given his evidence of his thought process and the minor nature of his injuries. However, for the reasons given, both the reliability and credibility of the applicant’s evidence is highly suspect. I am unable to put significant weight on his evidence.
[48] I also take into account that the applicant claims the assault occurred in an area of the police station where many other officers would be expected to be.
[49] Both Cst. Oxley and Cst. Golia were also aware that an undercover police operation was planned in the cellblock area. Undercover officers were to be placed into the cells with the applicant and his co-accused. While Csts. Oxley and Golia had little information about the details of that operation, Golia said he thought such operations would usually be recorded. It seems quite unlikely to me that an assault as described by the applicant would have been perpetrated under such conditions. I also note that the applicant did not, based on his evidence, complain to his friends in the cells. Csts. Oxley and Golia would be aware that if he had, there was at least a reasonable chance that his complaint would have been overheard by one of the undercover officers.
[50] The assault alleged has not been established on a balance of probabilities. The stay application is dismissed.