Court File and Parties

COURT FILE NO.: 18-1872 DATE: 2019/02/25 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen, Respondent – and – Lachlan MacGregor, Applicant

COUNSEL: Stephen Donoghue, for the Provincial Crown Kristen Mohr, for the Federal Crown James Bowie, for the Applicant

HEARD: January 7-11, 14-18, 2019

Ruling on s. 24 (1) Voir dire

A. E. London-Weinstein J.

Introduction

[1] Lachlan MacGregor is charged with 18 charges arising from an incident on November 24, 2016. The charges include carrying a loaded 9mm pistol on his person, impaired driving by drug, uttering death threats, and possession of Schedule 1 and Schedule 2 substances for the purpose of trafficking.

[2] The Applicant sought a stay under s. 24(1) of the Charter as police administered a taser in drive stun mode on his thigh for a few seconds after he was arrested and handcuffed at a time when he was not demonstrating any threats of violence. He was exhibiting signs of impairment at the time the taser was applied.

[3] For reasons which will be discussed below, I found that on the facts of this case, the force exercised was not reasonable, nor justified in order to maintain the state of arrest. I found a breach of s. 7 of the Charter. However, I did not find that the facts in the case distinguished it as being one of the clearest of cases for which no other remedy, other than a stay of proceedings could serve as an appropriate remedy.

Relevant Facts

[4] I found the following as facts on this voir dire:

[5] On November 24, 2016 Constables Shannick and Bolduc attended a call for a possible impaired driver in an apartment complex in the area of Meadowlands Drive in Ottawa. When officers arrived, Mr. MacGregor was being treated by paramedics in an ambulance.

[6] Prior to the arrival of the two attending officers, they were both made aware that on some undated prior occasion, Mr. MacGregor had expressed an interest in disarming a police officer. Upon learning that information, Constable Bolduc requested that an officer trained in the use of the taser attend the scene.

[7] Constable Shannick arrested Mr. MacGregor without incident. He did not wait for the taser trained officer to attend before arresting Mr. MacGregor. He testified that Mr. MacGregor’s demeanour shifted from fatigued to angry when he first dealt with him in the ambulance. As a result, Constable Shannick stepped out of the ambulance until paramedics were finished treatment.

[8] Constable Shannick said Mr. MacGregor was exhibiting signs of impairment, including heavy blinking and slow speech. He had admitted to the use of Xanax. He was confused when his rights to counsel were administered.

[9] Constable Shannick explained to Mr. MacGregor the reasons for his arrest. He and Constable Bolduc began to walk Mr. MacGregor toward Constable Bolduc’s parked cruiser. Constable Shannick used both of his hands to hold on to Mr. MacGregor as he walked him toward the cruiser.

[10] Midway to the car, Mr. MacGregor refused to walk any further. Constable Shannick testified that at this point he only had a hold of Mr. MacGregor with one hand due to Mr. MacGregor attempting to turn around. He said that Mr. MacGregor appeared angry at this point. He was flexing his body in an attempt to resist being moved towards the cruiser. Constable Shannick told him to stop resisting.

[11] Constable Shannick testified that the information he had received about Mr. MacGregor expressing a prior interest in disarming a police officer was not in his mind at this point in the interaction. I not only accepted his evidence on this point, but I found his candour with the court to be commendable.

[12] Constables Bolduc and Shannick struggled with Mr. MacGregor very briefly and Constable Shannick grounded Mr. MacGregor by pulling Mr. MacGregor down on to his buttocks, moved him on to his side and then moved Mr. MacGregor facing downward on to his belly.

[13] Constable Shannick took care to ensure that Mr. MacGregor did not fall on to his face when he was grounded as Mr. MacGregor was handcuffed to the rear.

[14] Mr. MacGregor became co-operative as soon as he was placed on the ground. Constable Shannick then did a quadrant search of Mr. MacGregor, who remained co-operative while on the ground. Constable Bolduc assisted by searching the legs of Mr. MacGregor. No weapons were located at this time but two baggies containing a white substance were located.

[15] Constables Bolduc and Shannick stood Mr. MacGregor up and walked him without incident to the cruiser. However, Mr. MacGregor refused to get into the cruiser. He asked again why he was being arrested. He pushed back against the door frame of the cruiser toward the officers. The rear passenger door of the cruiser was open.

[16] Although he refused to get into the cruiser, Mr. MacGregor did not display any violence towards the officers and Constable Shannick, again with characteristic candour, testified that he did not fear that Mr. MacGregor would inflict serious bodily harm on anyone either when Mr. MacGregor was grounded or during the interaction at the cruiser.

[17] At this point in time, Constable Bellefeuille arrived. Constable Shannick had physical control of Mr. MacGregor, who remained handcuffed to the rear. He was giving Mr. MacGregor loud commands to get into the rear of the cruiser.

[18] At this point there were three police officers dealing with Mr. MacGregor, including Constable Bellefeuille, who was armed with a taser. Constable Bellefeuille is also 6’ 2” and said he weighed 260 pounds.

[19] Constable Shannick could not recall what Constable Bellefeuille said before the taser was deployed. Constable Bellefeuille used his taser because Mr. MacGregor would not get into the cruiser. He arrived at the scene and quickly made his way to the cruiser. He told Mr. MacGregor that he had a taser. He told him twice to get into the cruiser. He then sparked the taser and applied it to Mr. MacGregor’s leg. This entire interaction between Mr. MacGregor and Constable Bellefeuille unfolded in seconds.

[20] The taser was applied for a few seconds. Mr. MacGregor did not complain of injury. Constable Bellefeuille has been an officer since 2009. He used the taser in stun mode, as opposed to employing the full deployment of the prongs.

[21] Constable Bellefeuille had no information and made no inquiry into whether Mr. MacGregor had an underlying mental health condition, or any information in regard to his level of impairment. He knew however, that he was being called to assist in the arrest of a possible impaired driver. He also was aware of the historical information in regard to Mr. MacGregor’s alleged interest in disarming an officer. However, when he arrived at the scene, Mr. MacGregor was handcuffed to the rear. Constable Bellefeuille did not warn the other officers that the taser was about to be deployed in stun mode although both officers were nearby, with Constable Shannick being quite proximal to him when the taser was deployed. He applied the taser within seconds of first interacting with Mr. MacGregor.

[22] Exhibit 3 on the voir dire was the Conducted Energy Weapon Standard Operating Procedures. This operations manual, at page 7, stipulates that with any use of force option, a conducted energy weapon should only be used as necessary to gain physical control of a subject. The manual indicates that conducted energy should be avoided on a handcuffed subject. It makes no distinction as to whether that energy is applied in stun mode, or with full prong deployment.

[23] The operations manual also, at page 11, spoke to a number of ways in which a taser could be used to gain control without deployment, including pointing it at the subject, activating the ARC function, telling the subject that you have it and having someone acknowledge that you have it. Constable Bellefeuille adopted none of these measures before applying the taser.

[24] Constable Bellefeuille testified that despite the fact that the operations manual clearly states that conducted energy should not be used on a handcuffed person, he would “do it again.” He testified that he believed that the recommendation that conducted energy not be used on a handcuffed person did not apply to the taser being used in stun mode. However, the manual makes no such distinction and Constable Bellefeuille admitted he had never seen a handcuffed person tasered in a training exercise. He was asked what training he received in de-escalation techniques which could have been employed before resort to taser. He responded that de-escalation in his view was when a subject followed police command. Counsel again tried to address what training he had received in de-escalation techniques to be deployed prior to the use of the taser. His answer was not responsive to the question. He said verbal commands, whether the person is being held or not, and how the officer is standing. He said he had not experienced training scenarios dealing with an impaired person, although he had dealt with impaired persons as part of his actual work as a police officer. He testified that he felt it inappropriate to delay applying the taser to Mr. MacGregor, despite the fact that he was handcuffed to the rear. He said it did not enter his mind to exercise patience, or to try to reason with Mr. MacGregor through persuasion. “The goal was getting him in the car.” He admitted that he had never had a training scenario where a person was subject to a taser, even in drive stun mode, while handcuffed. His conclusion that this was an acceptable practice did not come from his training. I found as a fact that Constable Bellefeuille did not engage in any de-escalation technique before applying the taser. I find as a fact that the possibility of de-escalation before applying the taser did not cross his mind until he was asked about it in this voir dire.

Analysis

[25] Lachlan MacGregor was already under arrest, handcuffed to the rear, and not acting in a violent manner, nor threatening violence when Constable Bellefeuille administered the taser in stun drive to his leg.

[26] The Supreme Court has described arrest as a continuing act.

“The word arrest is a term of art. First it should be noted that arrest is a continuing act; it starts with the arrester taking the person into his custody, (by actions or words restraining him from moving anywhere beyond the arrester’s control), and it continues until the person so restrained is either released from custody or, having been brought before a magistrate, is remanded in custody by the magistrate or justice.”

R. v. Asante-Mensah, 2003 SCC 38, quoting Lord Diplock in Holgate-Mohammed v. Duke, [1984] A.C. 437 (U.K. H.L.) at p. 441.

Did Constable Bellefeuille exceed the force which was reasonable in the circumstances as he continued the state of arrest of Mr. MacGregor?

[27] In R. v. Whitfield, [1970] S.C.R. 46, Judson J., stated at para 50, “A police officer has the right to use such force as may be necessary to make an arrest” (and it should be noted to continue the state of being under arrest).

[28] Section 25 of the Criminal Code provides that a police officer is justified in using force to effect a lawful arrest, provided he acted on reasonable and probable grounds and used only as much force as necessary in the circumstances. The officer’s belief must be objectively reasonable.

[29] In analyzing whether the actions of Constable Bellefeuille were reasonable, it is necessary to determine whether the actions of the officer were required or authorized by law to perform the action in the administration or enforcement of the law. Secondly, the police officer must have acted on reasonable grounds in performing the action he was required or authorized by the law to perform. Finally, the police officer must not have used unnecessary force. Chartier v. Greaves, [2011] O.J. No. 634 at para 54.

[30] It is on the second and third branch of the analysis that I find that the actions of Constable Bellefeuille, in the particular circumstances of this case, were both unreasonable and excessive.

[31] In analyzing the actions of the officer, I am aware that hindsight is 20/20 and that officers work in a dangerous and unpredictable work environment and I should exercise restraint while analyzing their actions after the fact.

[32] Where force is justified, an officer is not expected to carefully measure the exact amount of force the situation requires. R. v. Nasogaluak, 2010 SCC 6.

[33] In assessing all of the information which was available to the officers at the time, I do not agree that it was reasonable to apply the taser to an impaired subject who was handcuffed. In the circumstances, the force used was also excessive. While police are not required to use the least amount of force which would be required to accomplish the goals of law enforcement, the response of law enforcement must be proportionate to the circumstances faced by police.

[34] In this case, Constable Bellefeuille had no qualms about applying a taser to a person who was already under arrest and handcuffed to the rear within seconds of meeting him and without any attempt to de-escalate the situation. Although the operational manual indicated that applying electrical current to a handcuffed person should be avoided, making no distinction for the manner in which the current was applied, Constable Bellefeuille testified that he did not think this applied to the stun mode deployment. However, he admitted he had never been trained to use the taser on a handcuffed person.

[35] It was reasonable of police to call for the taser to be provided upon learning information relating to Mr. MacGregor indicating that he wanted to disarm police on a prior occasion. However, once he was handcuffed to the rear, and not violent or threatening violence, it was not reasonable to apply the taser in the manner in which it was used.

[36] There were no exigent circumstances in this case which warranted using a taser on an already secured person. It was not necessary to use the taser, nor was the response proportional or reasonable in light of the threat posed. It is also troubling that the officer did not consider whether Mr. MacGregor’s impairment may have affected his comprehension of police commands.

[37] In this case there was none of the urgency which was exhibited in R. v. DaCosta, 2015 ONSC 1586 where Justice Hill found that the officer’s use of force was reasonable in injuring a suspect who was fleeing while police were in pursuit.

[38] I do not agree that police were required to call a paddy wagon, as suggested by defence counsel, to retrieve Mr. MacGregor if he refused to get into the cruiser.

[39] Mr. MacGregor was confused and appeared somewhat disoriented to Constable Shannick when he was read his rights to counsel. Given the knowledge that Constable Shannick had in regard to potential impairment, including that Mr. MacGregor had professed to using Xanax, in my opinion, more effort should have been made to ensure that Mr. MacGregor was made fully aware, and understood that if he did not comply with the police commands to get into the cruiser, he would be subject to being tasered.

[40] Police should have done more to de-escalate the situation before applying electrical voltage to a handcuffed individual who was not being assaultive, but was resistant. Constable Bellefeuille could have told Mr. MacGregor that he would be tasered if he did not comply with the police demand to get into the cruiser. Constable Bellefeuille said he told Mr. Macgregor that he had a taser, but that is not equivalent to being advised that it would be used on him. More attention should have been paid in determining whether Mr. MacGregor understood, given his level of impairment, that he was in danger of being tasered. Police could have taken the time to engage in further persuasion. The manual also speaks to various ways with which the taser can be used to persuade an individual to comply without actually deploying the taser.

[41] A conducted energy weapon, according to the Ottawa Police Service operational manual, should only be used as necessary to gain physical control of a subject. Its use should be avoided on handcuffed individuals, according to the manual. No distinction is made in the manual as to whether the conducted energy is used in stun mode or with the full pronged deployment.

[42] In arriving at my conclusion that the force was excessive, I am fully aware that police work is dangerous and unpredictable and that the decisions which are made by police in the field should be afforded a measure of latitude when analyzed years later in a court room. However, while a taser is a valid police tool, it should not be used as a weapon of convenience, especially before any meaningful attempts at de-escalation have been attempted. In this case, Constable Bellefeuille applied the taser within seconds of interacting with an individual who was not only impaired, but handcuffed to the rear. Three police officers were present when the taser was applied. When asked why he did not try to de-escalate the situation, Constable Bellefeuille said that he did what he did and it worked. He said it would be speculation to try and determine what other less aggressive techniques may have sufficed. Constable Bellefeuille said he could not answer the question as to why he did not attempt de-escalation techniques before applying the taser, but said he would do it again tomorrow if the scenario called for it. He did not know whether Mr. MacGregor had seen the taser before it was deployed. And while Constable Bellefeuille depicted Mr. MacGregor as being assaultive, his behaviour was not assaultive. At the highest he could be described as being resistant to being put into the car. But all of the officers agreed he did not kick, or head butt, or in anyway strike out at the officers. He was simply pushing back against the officers pushing him into the car.

[43] Before applying electrical voltage to a handcuffed individual who is fully secured, but not compliant with commands to enter a cruiser, restraint must be exercised. Alternative, less extreme measures must be considered before resort to the taser. This was not done in this case and should have been done. For these reasons I find that Mr. MacGregor’s right to security of the person as guaranteed by s. 7 of the Charter was violated. Section 7 of the Charter guarantees a right to everyone to life, liberty and security of the person and not to be deprived thereof except in accordance with the principles fundamental justice. I found a s. 12 breach although I did not find that the taser was administered for the purpose of imposing punishment. The fact that the force exercised was excessive renders it a form of cruel and unusual punishment, even while I accept that this was not the intent of the administering officer. The fact that the force was excessive characterizes it as a form of punishment.

[44] I declined to stay the charges under s. 24(1) of the Charter, despite finding that there was a breach of s. 7 of the Charter. I am required to grant a remedy as is appropriate and just in the circumstances which will vindicate the rights of the claimant, be fair against the party against whom it is ordered, and consider all other relevant circumstances. R. v. Bjelland, 2009 SCC 38 at para 15.

[45] A stay of proceedings is the most drastic remedy a criminal court can order. R. v. Regan, 2002 SCC 12. It is a rarely granted remedy which should be granted in only the clearest of cases. In my view, the facts of this case do not compromise the fairness of Mr. MacGregor’s trial, but rather risk undermining the integrity of the judicial process. This case falls into the residual category, where state conduct risks undermining the integrity of the judicial system. The test used to determine whether a stay of proceedings is warranted is the same for either category and consists of three requirements:

1. There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan at para.54)
2. There must be no alternative remedy capable of redressing the prejudice; and
3. Where there is still 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” (ibid, at para 57.)

[46] In this case, there is no prejudice to the accused’s right to a fair trial. The prejudice in this case arises from the residual category. The question is whether the state has engaged in conduct which is so undermining of societal notions of fair play and decency that it would harm the integrity of the justice system to proceed.

[47] In my view, the conduct of the police in this case is not of the type which would be aggravated through the conduct of a trial. The conduct was unacceptable, but not of the type that in my view would sully the integrity of the justice system if a trial is held. The damage to the integrity of the justice system has already been done, but on the facts of this case, it will not be aggravated if a trial is held.

[48] If I am wrong in that finding, I went on to conduct the balancing which is mandated as the third step of the test to determine whether a stay is warranted.

[49] In regard to the second step, there are alternative remedies to a stay of proceedings which could be granted in this case.

[50] In regard to the balancing of factors which makes up the third prong of the test, while I found that police should not have tasered Mr. MacGregor while he was handcuffed and not behaving violently, he suffered no lasting injury and did not complain of injury at the time. The taser was only for a few seconds. In applying the taser while Mr. MacGregor was handcuffed, police acted in contradiction of the operating manual and also failed to engage in de-escalating behaviours short of applying the taser. While they did have information that he had previously expressed a desire to disarm an officer, he had not made any such attempt and was already secured.

[51] It was also very troubling that despite the dictates of the manual that Constable Bellefeuille said that he would use the taser in a similar fashion in the future. However, I have no evidence before me that misuse of the taser is a systemic or ongoing problem in Ottawa. If conducted energy weapons are to be relied upon, it is imperative that de-escalation training accompany their use, and that they not be regarded as weapons of convenience. The charges facing Mr. MacGregor are extremely serious and there is a substantive societal interest in having a trial on the merits. When I balance all of the relevant factors I am persuaded that this case does not fall into the clearest of cases category which would mandate a stay of proceedings under s. 24(1).

A.E. London-Weinstein J. Released: February 25, 2019