COURT FILE NO.: CrimJ(P) 1220/18

DATE: 2019 08 13

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and -

SHAREEF ROBINSON

Applicant

Amy Mountjoy, for the Respondent

Kabir Sharma, for the Applicant

HEARD: May 27-31 and June 3-6, 19-21 and July 19, 2019

RULING ON CHARTER APPLICATION

Dennison J.

A. Introduction

[1] Mr. Robinson is charged with several offences relating to the illegal possession of a loaded firearm knowing that the serial number was altered, defaced or removed. He is also charged with possessing the firearm while he was prohibited from doing so.

[2] Police obtained a warrant to search Mr. Robinson’s residence and a warrant for his arrest. Mr. Robinson was believed to be involved in a shooting that occurred outside of his residence in Brampton during the early morning hours on March 27, 2018. Shots were fired at two vehicles. Police also received information that Mr. Robinson allegedly pointed a firearm at his ex-domestic partner earlier that day in Ajax.

[3] Things did not go as planned when police attended Mr. Robinson’s residence on March 28, 2018 to execute the search warrant. As police pulled up to the residence, Mr. Robinson exited his house and went to his vehicle. Police decided to arrest Mr. Robinson. Mr. Robinson fled from police. He ran down the street with a loaded firearm in his hand. Police pursued him.

[4] What happened next transpired in less than a minute. When Mr. Robinson ran he dropped the firearm and continued to run to the backyard of the residence. PC Parkin chased Mr. Robinson. He saw the firearm and radioed the containment team that Mr. Robinson had dropped the gun. No one on the containment team heard the radio call. The containment team consisted of four officers and a dog. They were positioned in the backyard to assist with the execution of the search warrant. Mr. Robinson stopped when he encountered the containment team in the backyard. PC Holmes followed Mr. Robinson into the backyard.

[5] When PC Holmes saw Mr. Robinson stop in the backyard, he transitioned from his firearm to his conductive energy weapon (taser). PC Holmes tasered Mr. Robinson. PC Holmes testified that the first taser did not appear to work, so PC Holmes tasered Mr. Robinson again because he was not following police commands to show his hands. At approximately the same time, PC Mante tasered Mr. Robinson. PC Holmes, PC Mante were also not aware that Mr. Robinson dropped the firearm, despite the radio call.

[6] When Mr. Robinson ran into the backyard, PC Bryant, a member of the containment team, focused his attention on the back of the residence to protect the officers. He went to the back door. He asked PC Mulder to breach the back door so he could see into the residence for the purpose of ensuring the safety of the officers. PC Mulder knew that Mr. Robinson had dropped the firearm but did not tell PC Bryant.

[7] The only equipment that PC Mulder had at the time was his breaching shotgun, because he dropped his other equipment while he was pursuing Mr. Robinson. There is a risk that a person may be injured if a person is behind the door when a breaching shotgun is used. PC Mulder assessed the door and the situation and used the breaching shotgun to open the back door. Although the door was locked, PC Bryant did not recall checking the door before it was breached, but that was his usual practise. PC Mulder did not check to see if the door was locked prior to using his breaching shotgun. PC Mulder was not aware that a child was associated with the residence when he decided to use the breaching shotgun.

[8] Mr. Robinson seeks to stay his criminal proceedings as an abuse of process or alternatively to have the firearm excluded from evidence. He submits that police violated his s. 7 rights under the Canadian Charter of Rights and Freedoms by using excessive force in tasering him during his arrest. He also submits that police violated his s. 8 Charter rights because it was unreasonable to use the breaching shotgun to enter the residence in the circumstances.

[9] The issues to be determined are:

1. Did police use excessive force in tasering Mr. Robinson during his arrest?

2. Was the use of the breaching shotgun unreasonable?

3. Does the conduct of the police justify a stay of the proceedings against Mr. Robinson? If not,

4. Does the conduct of the police justify excluding the firearm from Mr. Robinson’s trial?

B. Background Facts

i) The Investigation

[10] In the early morning hours of March 27, 2018, officers from the Criminal Investigation Bureau (CIB) of the Peel Regional Police received information that there was a shooting at New Pine Trail and Kayak Heights in Brampton. Bullets struck two vehicles. Police canvassed the area for witnesses or video surveillance. Police also checked hospitals to see if anyone had been shot.

[11] The following day, Peel Police received information from Durham Police that Mr. Robinson was wanted in Durham for assault causing bodily harm, uttering death threats, pointing a firearm, weapons dangerous, dangerous operation of a motor vehicle causing bodily harm and breach of probation. These alleged offences occurred during an altercation Mr. Robinson had with his ex-domestic partner in Ajax on March 27, 2018, where he pointed a firearm at her and fled in a grey Nissan. It was believed that this was the same grey Nissan involved in the shooting at Kayak Heights.

[12] Mr. Robinson was also wanted by the Ontario Provincial Police for breach of a recognizance.

[13] Police obtained a warrant to search Mr. Robinson’s residence located at 1 Kayak Heights. The warrant was issued at approximately 2:55 a.m. on March 28, 2018, by J.P. Smythe. It permitted entry into the residence from 6:00 a.m. to 9:00 p.m. on March 28, 2018. Mr. Robinson did not challenge the sufficiency of the grounds to obtain the warrant. The warrant was not filed on the Charter application.

ii) The Tactical Team’s Involvement

[14] The Peel Regional Police tactical team was assigned to assist with the execution of the search warrant and Mr. Robinson’s arrest because a firearm was involved.

[15] The tactical team is a highly specialized unit within Peel Regional Police that deals with high-risk situations, including: barricaded persons, high-risk arrests and executions of search warrants where a firearm is believed to be involved.

[16] It is a lengthy process to become a member of the tactical team. Much of the training is mandated by the provincial government. There is a written application. If selected, the officer must pass a physical test. After that, an officer must pass a tactical operating course that is approximately eight or nine weeks long.

[17] Members of the tactical team continually train. There is yearly training that all officers must pass. In addition, officers on the tactical team must also requalify to use the “use of force” options, including pistol, baton, pepper spray and tasers, on a yearly basis. Members of the tactical unit must requalify quarterly to use the carbine rifle. There is specialty training for certain jobs, such as a sharp shooter, rappelling and breaching (opening doors to enter buildings). In addition, in every 35-day rotation, officers have a 4-day block of training where they work on various scenarios that they might face. The officers also train when they are working, if they are not involved in responding to police calls.

iii) Plan to Execute the Search Warrant

[18] PC Mante was the team leader for the tactical team. He drafted the operational plan setting out how the search warrant would be executed. The tactical team was to enter first and secure the residence. The CIB officers would then conduct the search. It took PC Mante approximately two hours to draft the operational plan.

[19] The operational plan contains a mission statement so that everyone understands the purpose of the plan. This plan assessed the threat level at a level four, which is the highest threat level.

[20] PC Mante’s sergeant advised him that a small child resided at the address and that it would not change the plan. There was a domestic call to 1 Kayak Heights on February 24, 2018. The police report noted that Ms. Walter-Wright was present with a child. PC Mante did not include the fact that a child was associated with the residence in the operational plan.

[21] The operational plan contained several different plans depending on the situation. The deliberate plan, which is the most desirable plan, was a “breach and hold.” The police would breach the front door to gain a tactical advantage, where the police would have “eyes in the residence.” The purpose of this type of entry is that police take control of the area immediately and prevent people from acting against the police. Prior to breaching, the police announce their presence. Once the door is breached, the occupants are called out of the residence one at a time and the person to be arrested is taken into custody. The other occupants are taken to a safe place for the remainder of the operation.

[22] PC Holmes stated that he intended to use a ram to breach the front door under the deliberate action plan.

[23] The alternative plan was to “contain and call out.” The police would knock on the door and advise the occupants one by one to come to the door.

[24] The action on compromise plan was the same plan as the deliberate plan: a “breach and hold.” This plan would be used if the police’s presence became known prior to the police entering the residence.

[25] The operational plan requires approval from the senior officer in the division. Duty Inspector Howell approved the operational plan at 10:22 a.m. on March 28, 2018.

iv) Briefing at the Rendezvous

[26] The tactical team officers and two canine officers met at the rendezvous point near the residence prior to executing the search warrant. PC Mante briefed the officers. He did not advise members of the team that a child was associated to the residence.

[27] PC Mante assigned the officers to different roles. He assigned PC Holmes as the breacher and PC Mulder as assistant breacher. Two breachers are assigned because there is a lot of equipment to carry and sometimes two people are required to work together to create enough force to open the door. PC Mante also explained that people’s roles can shift during the operation.

[28] PC Mante assigned PC Silverberg and his service dog, PC Peterson, PC Bryant and PC Curtis to the rear containment team. The rear containment team was to secure the rear of 1 Kayak Heights and ensure that if anyone tried to escape through the back door when the police breached the front door, the police could apprehend the person.

[29] After the briefing ended, the rear containment team left in two vehicles to set up in the backyard of the residence. The tactical team loaded up into the cargo van. They departed at 10:57 a.m. PC Mante drove, and PC Parkin was in the front passenger seat. The remainder of the team were in the back of the van.

v) Observations of 1 Kayak Heights

[30] PC Perrault, a member of the CIB unit, watched 1 Kayak Heights prior to the execution of the search warrant. He arrived at the address at 8:28 a.m. There was a BMW parked in the driveway. He did not recall if he checked the licence plate.

[31] PC Perrault sat in an unmarked car parked in a driveway watching the residence and the grey Nissan associated to Mr. Robinson that was parked at the northwest corner of Kayak Heights and New Pines Trail. PC Perrault was in plain clothes. The area was quiet, and he did not see anything aside from construction trucks in this new subdivision.

[32] PC Perrault did not see anyone come or go from the residence until 11:00 a.m. At that time, he observed Mr. Robinson exit the front door of the residence with multiple bags and head towards the grey Nissan. Mr. Robinson put some bags into the trunk. PC Perrault immediately radioed that the target was out of the home. The tactical officers advised that they were too far out to assist.

[33] After putting the bags into the trunk, Mr. Robinson went to the driver’s door, opened it and leaned in. PC Perrault confirmed with the tactical team that they wanted him to arrest Mr. Robinson. PC Perrault put his police vest on while he was talking on the radio.

[34] PC Perrault backed out of the driveway and headed towards the Nissan. PC Perrault moved his rifle onto the dash. He put his car nose to nose with Mr. Robinson’s car, in case he needed to prevent the car from moving. He shouted “police, show me your hands” three times. His window was open a bit, but not all the way. There was nine or ten feet between him and Mr. Robinson.

vi) Mr. Robinson Flees

[35] Mr. Robison did not appear to initially see the police when he was leaning into his car. He looked up, shocked, with his eyes wide open. His hands were up around the top of the driver’s door. When PC Perrault yelled “police, show me your hands” the third time, Mr. Robinson slammed the driver’s door and ran.

[36] Around the same time, another CIB officer arrived in his vehicle. The vehicle was near Mr. Robinson’s vehicle. The tactical van also pulled up in front of the house.

[37] PC Parkin jumped out of the tactical van and chased Mr. Robinson. He saw a firearm in Mr. Robinson’s hand. He yelled, “Drop the gun, drop the gun”.

[38] Mr. Robinson either dropped the firearm or the firearm fell out of his hand as he was running. PC Parkin slowed down and confirmed that Mr. Robinson dropped a firearm. Mr. Robinson was running towards the backyard. PC Parkin radioed the officers at 11:02:06 that Mr. Robinson had dropped the gun.

[39] In the meantime, someone yelled at PC Perrault to cover the top windows of the residence. He got back into the vehicle and positioned it directly beside the firearm so that he could keep any eye on the firearm, keep an eye on the residence, and use his vehicle as cover if shots were fired.

[40] Mr. Robinson ran into the backyard of 1 Kayak Heights. What occurred in the backyard is reviewed in greater detail below in considering if the force used to arrest Mr. Robinson was excessive. Ultimately, Mr. Robinson was tasered three times and placed under arrest.

[41] While Mr. Robinson was being placed under arrest, PC Mulder, at the direction of PC Bryant, breached the back door of the residence using a breaching shotgun. The breaching shotgun caused damage to the door and to the wall of the residence. Photographs of the damage were made exhibits. The evidence regarding the decision to use, and the use of the breaching shotgun, is discussed in greater detail below in considering if Mr. Robinson’s s. 8 Charter rights were violated.

[42] Ms. Robinson, Mr. Robinson’s mother, stated that she was upstairs in the residence when she heard the police commotion. She resided at 1 Kayak Heights with her boyfriend. Mr. Robinson also lived there. His girlfriend, Ms. Wright‑Walters, and their young son – ten months old at the time – stayed at the residence approximately five times a week. Ms. Wright-Walters and her son were not present when the search warrant was executed.

[43] Ms. Wright-Walters testified that she had resided at 1 Kayak Heights for two years with Mr. Robinson and her son. She admitted that this was not her registered address for her driver’s licence or car ownership. She stated that she had not had time to update the Ministry of Transportation. She agreed she and her son were not present when the search warrant was executed.

[44] Ms. Robinson saw the police on her surveillance camera and believed they were coming to her house. She told her boyfriend to go downstairs because she did not want the police to break down the front door. She heard a couple of gun shots when she was heading downstairs. This was likely the breaching shotgun used to open the back door. Her boyfriend reached the front door and opened it at the same time the tactical team members opened the front door.

[45] The tactical team entered and secured the residence. After the residence was secured, the CIB officers entered and searched the residence.

vii) Procedural Background

[46] The Charter application occurred over several days. I was assigned as the case management judge pursuant to s. 551.1 of the Criminal Code of Canada, R.S.C., 1985, c. C-46. During the application, counsel for Mr. Robinson brought an application for disclosure of Peel Regional Police policies relating to use of force, the use of tasers and the use of breaching shotguns. I gave oral reasons ordering disclosure of any policies that existed.

C. Issue #1: Was the use of force by the police excessive?

i) Positions of the Parties

[47] Mr. Robinson submits that police used excessive force in tasering him three times during his arrest. This violated his s. 7 Charter rights.

[48] Mr. Robinson submits that there was no reason to taser him. He had already dropped the firearm. A radio call advised officers of this fact. PC Holmes and PC Mante ought to have known that he dropped the firearm when they tasered him. Mr. Robinson also submits that he complied with the officers’ commands to get to the ground, making the use of the taser unnecessary. The fact that Mr. Robinson was not complying fast enough for PC Holmes did not justify tasering him, particularly as Mr. Robinson was surrounded by officers who had their firearms drawn and a police dog was present.

[49] Crown counsel submits that the conduct of PC Holmes and PC Mante did not violate Mr. Robinson’s s. 7 Charter rights.

[50] The Crown submits that this was a dynamic, rapidly-changing situation. The tactical officers were tasked to arrest an armed individual who fled from police and was running in the neighbourhood armed with a firearm. Mr. Robinson was slow in complying with police commands to get onto the ground. Once on the ground, he did not show his hands. The officers subjectively believed they needed to taser Mr. Robinson to quickly gain control over the situation. Their actions were objectively reasonable given the totality of the circumstances.

ii) Relevant Facts

[51] Events rapidly unfolded when Mr. Robinson fled from police. A review of each of the officers’ evidence is necessary to determine what occurred.

PC Holmes

[52] PC Holmes has been a member of the tactical team for seven and a half years. He explained that he has been trained to use the taser and was qualified to use the taser. When considering whether to use a taser, he considers the age and health of the individual, the situation, the environment, the type of clothing and if there is any flammable gas nearby. He stated that the main reason he would use his taser is that it is a less lethal method to gain immediate control of a person.

[53] PC Holmes was sitting in the back of the tactical van when it stopped at 1 Kayak Heights. At approximately 10:59 a.m., he heard officers state that Mr. Robinson had exited the residence and walked towards a vehicle.

[54] When the vehicle stopped, PC Holmes heard people screaming, “Drop the gun, drop the gun”. He also heard an officer say, “He’s running.” PC Holmes exited the van and saw Mr. Robinson run. PC Holmes decided that this was the target and started to run after him, given the risk to the public. He was first off the back of the van.

[55] When PC Holmes came around the corner of the residence to the backyard, he observed Mr. Robinson encounter the rear containment team. They were directing him to get on the ground. The tactical team members had their guns drawn. He did not know who gave the command, but PC Bryant and PC Peterson were in the backyard.

[56] Mr. Robinson was standing still when PC Holmes turned the corner. PC Holmes did not recall the dog being deployed. PC Holmes transitioned from his firearm to his taser. PC Holmes observed the male’s hands going to his waistband.

[57] PC Holmes was not comfortable with the way Mr. Robinson was going to the ground. It did not seem normal. Mr. Robinson did not put his hands out to brace himself to go to the ground. His hands were hovering around his waist area. PC Holmes could not see Mr. Robinson’s hands. PC Holmes felt that there was an immediate need to get control of Mr. Robinson, so he deployed the taser.

[58] PC Holmes shot the prongs of the taser. He deployed his taser for five seconds or less. Mr. Robinson dropped to his knees and went to his stomach. PC Holmes agreed that there was a lot of yelling and that he was giving commands, but he did not know what the others were saying. He explained that the commands would have been straightforward.

[59] PC Holmes initially had a lockout on Mr. Robinson. He explained that a “lockout” is when the muscles spasm and the person who has been tasered has no control over their body. However, Mr. Robinson regained the ability to move. Mr. Robinson was on his stomach on the ground. He was told to put his hands out because they were beneath him.

[60] PC Holmes thought that the probes had been dislodged because the taser did not seem effective. He explained that in his experience, a taser makes a certain sound when there is a good hit and a different type of sound if it does not. He was hearing a bit of both. He thought that maybe he had a good hit initially but then the probes may have dislodged when Mr. Robinson went to the ground.

[61] While on the ground, Mr. Robinson did not comply with the commands to put his hands out. PC Holmes deployed his taser for a second time. He did not know how long he deployed the taser the second time. Around the same time, PC Mante deployed his taser. PC Holmes explained that the police used that opportunity to close the distance and got Mr. Robinson’s hands and arms under control, so he could not access any potential weapons.

[62] PC Holmes recalled that he and PC Mante took control of Mr. Robinson. PC Holmes believed that PC Mante handcuffed Mr. Robinson. PC Holmes did not find a firearm on Mr. Robinson.

[63] PC Holmes did not hear over the radio that Mr. Robinson dropped the gun. In cross-examination, counsel played a clip of a radio transmission from a tactical team radio at 11:02:06. In that call, PC Parkin yelled, “Canine, he dropped the gun, he dropped the gun, he dropped the gun on the road”. PC Holmes was asked if this is what he heard on the radio, as opposed to a person saying he has a gun, he has a gun. PC Holmes agreed that it was possible. He also testified that this was the first time that he heard that call. He explained that there was a lot going on at the time.

PC Mante

[64] PC Mante observed PC Perrault’s and the other CIB officer’s vehicle approach Mr. Robinson’s vehicle. It appeared to PC Mante that Mr. Robinson was not aware of the police’s presence. PC Mante thought the arrest was imminent, so he manoeuvred the tactical van behind PC Perrault’s vehicle.

[65] Mr. Robinson suddenly noticed the police vehicle behind him and fled north on Kayak Heights. PC Parkin rapidly exited the van and pursued Mr. Robinson. PC Mante heard PC Parkin say “drop the gun, drop the gun” when the van door was open. PC Mante believed that Mr. Robinson had a firearm in his possession.

[66] PC Mante jumped out of the van and ran southbound to put himself in a position to apprehend Mr. Robinson if he ran south. PC Mante ran to the corner of New Pines Trail and Tollgate Street. He heard yelling and commotion coming from the backyard area of 1 Kayak Heights, so he ran to the backyard area of the row of houses on New Pines Trail.

[67] When PC Mante arrived in the backyard, Mr. Robinson was in the process of being taken into custody. Mr. Robinson was on the ground with his body facing the ground. His feet were facing north, and his head was to the south. He was like someone who was in a push up position. His palms were towards his torso just below the chest section, with his hands close to his body and his elbows out.

[68] It appeared to PC Mante that PC Holmes had deployed the taser. PC Mante could see the wires, but he could not see if the prongs were connected to Mr. Robinson. PC Mante heard a taser being deployed when he was running to the backyard. He only recalled hearing it once.

[69] As PC Mante approached, he heard PC Holmes providing verbal instructions to Mr. Robinson to put his hands behind his back. Mr. Robinson was not following the verbal instructions. PC Mante assessed the situation and believed that Mr. Robinson was in possession of a firearm. He was unsure if the rear containment officers knew that PC Parkin had yelled, “He’s got a gun.” PC Mante assessed the situation and decided that it was most prudent to control Mr. Robinson under taser power and take him into custody.

[70] Based on his observations, PC Mante believed that PC Holmes’ tasering was not effective. Mr. Robinson’s body did not appear to be in a lockout where he would not be able to control his hands. There also did not appear to be localized pain to generate compliance, because Mr. Robinson was not complying with police commands.

[71] PC Mante testified that he deployed the taser for four to five seconds. The probes hit Mr. Robinson in the buttocks. PC Mante told Mr. Robinson to put his hands behind his back. Mr. Robinson complied. PC Curtis then put handcuffs on Mr. Robinson.

[72] In deciding to taser Mr. Robinson, PC Mante testified that he took into consideration whether crisis intervention or de-escalation would work and was of the view it would not, given the time and situation. He did not believe there was a concern for a secondary injury because Mr. Robinson was already on the ground. He also considered whether there was flammable gas in the area. There was none.

[73] PC Mante stated that he was on the right-hand side of Mr. Robinson when he tasered him. The rest of the officers were facing south. Some of the officers had their rifles drawn.

[74] PC Mante described the situation as dynamic, rapidly unfolding and fluid. The entire incident took approximately 20 seconds from the time he left the van until he reached the rear of the residence.

[75] After Mr. Robinson was in custody, PC Mante learned that Mr. Robinson dropped a firearm. At that point, the residence became the focus. PC Mante did not know if that was the only firearm in play or if there was anyone in the residence who may be an accomplice. As such, the focus was to make the residence safe for the investigators.

PC Silverberg

[76] PC Curtis, PC Peterson, PC Bryant and PC Silverberg and his service dog arrived on Tollage Road at approximately 10:59 a.m. PC Silverberg put his dog on a leash and the officers began to walk through the backyards of various homes towards 1 Kayak Heights.

[77] PC Silverberg observed Mr. Robinson run into the backyard almost immediately after they arrived. It looked like Mr. Robinson was going to run though the houses that lie east to west, so PC Silverberg dropped his dog’s leash and yelled a command for his dog to apprehend Mr. Robinson. PC Silverberg did not know how far away he was, but it was loud and chaotic. There was a lot of yelling, but he could not recall what was said.

[78] PC Silverberg did not have his firearm drawn but thought it was likely that the tactical officers had their rifles drawn. He stated that releasing his dog is considered the same use of force level as using a taser or baton.

[79] Upon issuing the command, the dog went into a full sprint. PC Silverberg observed Mr. Robinson go down and prone himself out on his stomach on the ground. PC Silverberg could not say if other officers told Mr. Robinson to stop, but he did not. He believed that Mr. Robinson voluntarily got to the ground when he saw the dog.

[80] PC Silverberg called off the dog because Mr. Robinson was going to the ground on his stomach. PC Silverberg believed that his dog was seven to eight feet away from Mr. Robinson when he was called off. PC Silverberg took control of the dog to avoid any tactical officers or Mr. Robinson from being bitten. His dog was at his maximum capacity with so much going on.

[81] PC Silverberg’s focus was on his dog. He did not believe that Mr. Robinson was tasered. He did not see Mr. Robinson’s hands when he was prone on the ground. His was watching his dog for behavioural changes.

[82] In examination in-chief, PC Silverberg stated that he could not say if other tactical officers were present when Mr. Robinson went to the ground because his focus was on his dog. In cross-examination he agreed that Mr. Robinson was already on the ground when the tactical officers arrived.

[83] PC Silverberg did not learn until the debriefing that Mr. Robinson had dropped a firearm while running away from the police.

PC Bryant

[84] PC Bryant entered the backyard with PC Silverberg. He was carrying a tool to break the security camera at the rear of residence, and his rifle. It was part of the original operation plan that he would break the security cameras.

[85] As the containment team jogged to the backyard of 1 Kayak Heights, PC Peterson started to make verbal commands. PC Bryant then observed Mr. Robinson sprinting to the backyard. PC Bryant moved to the back of the residence to protect the officers and the other officers went to apprehend Mr. Robinson.

[86] PC Bryant cannot recall verbatim what PC Peterson yelled, but he identified them as police and told Mr. Robinson to get down. Mr. Robinson initially stalled as if he was trying to decide what to do.

[87] PC Bryant recalled that officers came from the front of the house at the same time and there were two teams converging on Mr. Robinson. He recalled that PC Mante, PC Holmes and PC Mulder were in the backyard, but he could not say in what order they arrived. He believed that PC Parkin came into the backyard and left.

[88] PC Bryant does not know how Mr. Robinson got to the ground. PC Bryant’s focus was on the residence. PC Bryant did not know if the dog was released and did not see how Mr. Robinson was taken into custody.

[89] PC Bryant did not hear any communication about a gun. He either missed it on his radio or did not hear what was yelled.

[90] PC Bryant heard a taser being deployed before the back door was breached. He did not know who deployed it or how many times it was deployed. He recalled hearing the distinct sound of a “pop” followed by the crackling sound that a taser makes.

PC Parkin

[91] As the tactical van pulled up to 1 Kayak Heights, PC Parkin observed Mr. Robinson leaning into the driver’s door of the Nissan. Mr. Robinson did not seem aware of the police vehicles. PC Parkin said the two police vehicles had essentially boxed in Mr. Robinson’s vehicle. This is different from PC Perrault’s observations of the vehicles’ location. PC Parkin saw Mr. Robinson glance to his right. PC Parkin saw what he thought was a firearm in Mr. Robinson’s hand. Mr. Robinson fled towards the backyard of 1 Kayak Heights where the containment team was.

[92] PC Parkin thought the situation was bad. He exited the vehicle and shouted “drop the gun, drop the gun” as Mr. Robinson ran down the street with the firearm in his hand. PC Parkin was the first officer out of the van. As PC Parkin was running, he tried to get his rifle out. Mr. Robinson threw the firearm on the ground in the middle of the street on Kayak Heights. Mr. Robinson continued running towards the backyard.

[93] Once Mr. Robinson dropped the firearm, PC Parkin slowed down to confirm it was a firearm. At 11:02:06 a.m., PC Parkin yelled over the radio, “Canine, he dropped the gun, he dropped the gun, he dropped the firearm on the road.” PC Parkin continued to run towards the backyard.

[94] PC Parkin followed Mr. Robinson but stopped at the fence area and did not enter the backyard. Mr. Robinson’s hands were up around his head level and he was getting into a crouch, which he interpreted as a sign that Mr. Robinson was surrendering. PC Parkin did not recall seeing Mr. Robinson go to the ground. He agreed that it was possible that a taser was fired, but he did not recall hearing or seeing a taser used.

[95] When PC Parkin saw that Mr. Robinson stopped or was close to stopping, PC Parkin changed directions and went to the front of the residence because he did not know who was in the residence and if there was any threat in the residence. He estimated that it was a minute or less from the time he exited the van to the time that he arrived at the front of the residence.

PC Curtis

[96] PC Curtis was also assigned to the rear containment team. He assisted PC Silverberg with his dog. He saw Mr. Robinson run into the backyard area. PC Curtis yelled at Mr. Robinson to stop and get on the ground. Mr. Robinson stopped and got onto his stomach. PC Holmes came into the backyard after Mr. Robinson was on the ground. PC Curtis recalled that Mr. Robinson was tasered twice when he was on the ground by two different officers. He agreed that there were multiple officers yelling commands at the same time. He could not recall seeing Mr. Robinson’s hands when Mr. Robinson was on the ground.

PC Peterson

[97] An agreed statement of facts was filed for PC Peterson’s evidence. He was in the backyard as part of the containment team. He was in his tactical uniform with “Police” written on it. He was armed with a carbine rifle. He saw Mr. Robinson run into the backyard. During the unfolding of events in the backyard, PC Peterson maintained lethal coverage of Mr. Robinson. PC Peterson also assisted in covering the backyard because the residence was still not contained. The area around them was exposed, creating unknown variables.

Use of Taser

[98] Several officers testified about their understanding of how a taser works. Their evidence was consistent with the information contained in the Use of Force Policy. The policy explains that the taser delivers a metered and pulsed electrical current that results in involuntary muscle contractions and loss of motor control – referred to as neuro-muscular incapacitation (N.M.I.). The taser may render the subject incapacitated and may allow an officer the opportunity to gain control of the subject. The taser in this case was used in the probe mode. The policy explains that pulling the trigger discharges the cartridge and deploys probes that are attached to wires towards the subject to cause N.M.I.

[99] The Use of Force Policy also sets out the necessary training to be completed before an officer may use a taser. The policy states when the taser may be used and the factors that must be considered prior to using the taser. The policy defines resistance as “passive”, with little or no physical action, or “active” which includes the use of non-assaultive physical action. The policy also defines “assaultive” as an attempt or the application of force to any person; attempt or threat by an act or gesture to apply force; or to cause another to believe on reasonable grounds that he or she has the ability to affect his or her purpose. The policy states that the taser is intended to be used where the subject is threatening or displaying assaultive behaviour. Additionally, the policy states that the taser may be used in other situations upon consideration of the totality of the circumstances and the imminent need to control the subject.

[100] A Threat Assessment Continuum was also filed as an exhibit. It provides a continuum that lists the actions of the accused and the appropriate responses that police may consider. PC Mante explained that it is not a formula that tells an officer what to do. The continuum is a visual aid to assist an officer in understanding the application and use of force. He stated that it does not tell an officer how to respond. He further explained that considering appropriate action is not just about how the subject is acting; rather, the totality of the situation must be considered. For example, he explained that the Use of Force Policy states that if there is an imminent need to gain control of a subject because of the circumstances, use of force is appropriate.

iii) Governing Principles

[101] The parties agree that excessive use of force by police affects the liberty and security of the person, violating s. 7 of the Charter. The onus is on Mr. Robinson to demonstrate on the balance of probabilities that his s. 7 Charter rights were breached by the police’s use of force.

[102] The legal standard to be applied when assessing the police’s use of force in affecting an arrest of an individual is set out in s. 25 of the Criminal Code. Where the Crown seeks to rely on s. 25, it has the evidentiary burden to show that the use of force is justified in the circumstances: see R. v. Davis, 2013 ABCA 15, 75 Alta. L.R. (5th) 386, rev’d on other grounds 2014 SCC 4, [2014] 1 S.C.R. 78.

[103] The Supreme Court of Canada in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 explained the limits on the use of force. Police may use force “provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances”: at para. 34. The use of force must be proportional, reasonable and necessary: at para. 32.

[104] Section 25(3) of the Criminal Code also “prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm”: Nasogaluak, at para. 34. The use of force must be judged on a subjective-objective test. The officer’s belief must be objectively reasonable: Nasogaluak, at para. 34; and Chartier v. Greaves, [2001] O.J. No. 634 (S.C.), at para. 59.

[105] In considering if the use of force was reasonable, the actions of police must not be held to the standard of perfection. The situations that police face are often dynamic, fluid and call for quick decisions to be made on the spot. As explained in Nasogaluak, at para. 35, “police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work.” Police must often react quickly to unexpected circumstances. Their actions should be judged with consideration to the exigent circumstances they faced, and the degree of force used should not be measured with exactitude: see R. v. Asant-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at paras. 73-76; and R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 32, LeBel J.

[106] The reviewing court must be careful to guard against the tendency to judge the actions of police with the benefit of hindsight: see R. v. DaCosta, 2015 ONSC 1586, at para. 98; and R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at paras. 23-24. Nor should the conduct “be reduced to an over-analytical parsing of events into static moments without practical regard for the overall picture”: R. v. Amofa, 2011 ONCA 368, 282 O.A.C. 114, at paras. 19, 24-25; see also R. v. Rigo, 2017 ONSC 3694, 393 C.R.R. (2d) 204, at para. 73.

[107] In considering the totality of the circumstances, the court will necessarily have to engage in a fact-finding exercise and assess any inconsistencies in the evidence between the witnesses’ accounts, including the measure of the discrepancy, any explanation for the inconsistency and the materiality of the issue upon which differences arise. In the context of a dynamic arrest situation, the trier of fact must exercise a degree of common sense when considering inconsistencies in the evidence with a view to the totality of the circumstances. This includes a recognition that officer stress may be capable of limiting or distorting perceptions and reporting differences between witnesses may be a result of their “being in different positions and seeing things from different perspectives”: R. v. Phills, 2010 ONSC 4446, at para. 92; see also Rigo, at para. 91.

iv) Analysis

[108] Tasering Mr. Robinson three times during his arrest was not an excessive use of force in the circumstances. The evidence demonstrates that PC Holmes and PC Mante had a subjective belief that it was necessary to taser Mr. Robinson to gain immediate control of him. In the circumstances, the officers’ beliefs were objectively reasonable for the reasons set out below. Mr. Robinson’s s. 7 Charter rights were not violated.

i. Mr. Robinson was Wanted for Violent Offences

[109] Police had reasonable and probable grounds to believe that Mr. Robinson had committed serious violent offences. There was a warrant for his arrest and a warrant to search his residence for a firearm. It was believed that in less than 48 hours prior to executing the search warrant Mr. Robinson used a firearm twice. There were reasonable grounds to believe that he pointed a firearm at an ex-domestic partner in Ajax and that he fired shots into vehicles parked outside of his residence in Brampton.

[110] The police classified the threat level in executing the search warrant as a level four. That is the highest threat level. It was for this reason that the tactical team, a highly trained group of officers, was assigned to assist in executing the search warrant.

ii. Exigent Circumstances

[111] The arrest of Mr. Robinson took place under exigent circumstances. Mr. Robinson’s arrest did not go according to the operational plan. Police had to make several quick decisions to try and apprehend Mr. Robinson. Less than a minute likely passed from the time Mr. Robinson fled until his arrest.

[112] Police made a quick decision to surround Mr. Robinson’s vehicle and arrest him after he exited his residence and went to his vehicle.

[113] That plan did not work. Mr. Robinson evaded the police when they surrounded his vehicle. There are some minor discrepancies between PC Perrault’s evidence and PC Parkin’s evidence regarding where the other CIB officer’s vehicle was parked. This is a minor discrepancy, as officers’ evidence had the direction of the vehicles as the same and on the same street.

[114] Mr. Robinson escaped from police and ran down a residential street with a firearm visible in his hand at approximately 11:00 a.m. PC Parkin said the situation was bad. As PC Parkin jumped out of the tactical van, he yelled “drop the gun” and chased Mr. Robinson. PC Parkin tried to get his carbine rifle out for his own safety and the safety of the containment team because Mr. Robinson was running towards the containment team.

[115] Officers chased Mr. Robinson into the backyard. The intensity of the situation is reflected in PC Parkin’s voice in his radio call when he yelled at 11:02:06, “He dropped the gun, he dropped the gun.” PC Parkin testified that he slowed down to see if it was a firearm, and then he headed to the backyard. By the time he got to the fence near the backyard Mr. Robinson was stopped but had not gone to the ground.

[116] Given how quickly events were unfolding, I do not find that PC Holmes or PC Mante ought to have known from the radio call that Mr. Robinson had dropped the gun. Both PC Mante and PC Holmes heard an officer yell, “Drop the gun, drop the gun”. I do not find that PC Holmes misheard the radio call as suggested by Mr. Robinson. PC Holmes and PC Mante believed Mr. Robinson had a firearm. PC Holmes and PC Mante were focused on apprehending Mr. Robinson in what they reasonably believed to be a very dangerous situation for themselves, the other officers and for the public. None of the rear containment team gave evidence that they heard the radio call, and it was directed to them. PC Silverberg testified that he did not learn that Mr. Robinson dropped a firearm until the debriefing. PC Bryant did not hear the radio call. The only officer that entered the backyard that knew that Mr. Robinson had dropped the firearm was PC Mulder. He was one of the last officers to enter the backyard.

iii. Mr. Robinson did not Promptly Comply with Police Commands

[117] The officers all testified in a credible manner. None of the officers tried to exaggerate or understate their evidence about what they did when Mr. Robinson fled and was arrested. The greater concern is the reliability of the officers’ evidence. Events unfolded very quickly, and different officers saw events from different vantage points.

[118] I prefer PC Holmes’ and PC Mante’s evidence regarding Mr. Robinson’s behaviour responding to the police commands. Their focus in the backyard was exclusively on Mr. Robinson. Their evidence is corroborated in certain aspects by other officers and there are consistencies in their evidence. Where there are discrepancies between the officers, this appears to be the result of the fact that officers were focusing on different aspects to ensure the safety of all the officers and viewed the events from different vantage points.

[119] PC Holmes testified that when he came around the corner, he observed Mr. Robinson encounter the canine officers and the two tactical officers. Mr. Robinson was standing still. Police were directing him to the ground. They had their guns drawn.

[120] PC Holmes was behind Mr. Robinson. PC Holmes’ perception was that Mr. Robinson was not getting on his knees quickly. This is consistent with PC Bryant’s evidence that Mr. Robinson appeared to be stalling as if deciding what to do.

[121] PC Holmes was not comfortable with the way Mr. Robinson was complying in getting to the ground because it did not seem normal. Mr. Robinson’s hands went to his waist and were not put out to brace himself as he went to the ground. PC Holmes could not see his hands. That is when PC Holmes made the decision to taser Mr. Robinson.

[122] PC Holmes made a split-second decision in a tense, uncertain and rapidly-evolving situation to use his taser. He had the wherewithal to transition from his firearm to his taser. I am satisfied that PC Holmes honestly believed that the discharge of this lesser-force weapon was required to safely apprehend Mr. Robinson.

[123] PC Holmes tasered Mr. Robinson, and he dropped to his knees and went to his stomach. I accept PC Holmes’ evidence that it did not appear that his first taser incapacitated Mr. Robinson because he was not complying with the command to put has hands out. At this point, Mr. Robinson was on his stomach on the ground being told to put his hands out, as they were beneath him. None of the other officers recalled seeing Mr. Robinson’s hands out when he was on the ground.

[124] PC Holmes’ evidence is also consistent with PC Mante’s evidence. PC Mante explained that Mr. Robinson was prone out on the ground but was not putting his hands out. He was in a push-up-like position with his hands close to his body.

[125] PC Mante’s split-second decision to taser Mr. Robinson was also reasonable. He believed Mr. Robinson had a firearm. He could see the wires from PC Holmes’ taser but not the prongs. He was of the view that PC Holmes’ taser was not effective and had not achieved lockout because Mr. Robinson was not complying with PC Holmes’ commands to put his hands behind his back. PC Mante also noted that there was less concern about secondary injury to Mr. Robinson because he was already on the ground. In the circumstances, PC Mante made the decision that it was most prudent to taser Mr. Robinson so that he was under power and could be taken into custody.

[126] PC Mante testified that he deployed his taser and provided verbal instructions for Mr. Robinson to put his hands behind his back. PC Curtis put the handcuffs on Mr. Robinson. PC Holmes’ believed that PC Mante handcuffed Mr. Robinson. This is a minor inconsistency.

[127] PC Silverberg’s evidence does not assist in establishing that Mr. Robinson was complying with police commands prior to him being tasered. PC Silverberg’s evidence on this point is not reliable because his primary focus was on his dog as opposed to what was happening with Mr. Robinson. PC Silverberg repeatedly testified that his focus was on his dog because his dog was at his maximum capacity with so much going on. PC Silverberg did not believe that Mr. Robinson was tasered. He testified that with everything going on it was possible. The evidence from other officers is that the taser makes a loud and distinctive sound. PC Silverberg did not hear this sound, nor did he observe the wires or probes from the taser. He was also asked if he saw Mr. Robinson’s hands when Mr. Robinson was prone out on the ground. PC Silverberg said no as he was watching his dog for behavioural changes. I accept his evidence that his focus was on his dog and not on what exactly was happening with Mr. Robinson.

[128] PC Bryant’s evidence also does not assist in establishing that Mr. Robinson was complying with the police commands prior to being tasered. PC Bryant testified that the officers came from the front of the residence at the same time and the two teams were converging on Mr. Robinson. He testified that when he saw Mr. Robinson run into the backyard, he knew he his role was to cover the residence while the others contained Mr. Robinson. PC Bryant testified that Mr. Robinson initially stalled as if he was trying to decide as to what to do. This was consistent with PC Holmes’ evidence. Mr. Robinson then got to the ground. PC Bryant could not say how Mr. Robinson got to the ground. PC Bryant also did not know if the dog was released or not. He recalled hearing a taser being deployed before the back door was breached.

[129] PC Parkin’s evidence also does not assist in demonstrating that Mr. Robinson was complying with police commands. When PC Parkin ran to the corner of the backyard, he saw Mr. Robinson stop and freeze. Mr. Robinson had his hands at his head level. PC Parkin did not see Mr. Robinson go down to the ground but believed he was in the process of doing so. PC Parkin believed that Mr. Robinson was surrendering, and the containment team was there, so he returned to the front of the residence because he was supposed to be the first officer into the residence. He believed that only the containment team was in the backyard. He did not recall any other officers being present and did not recall a taser being used.

[130] PC Curtis’ stated that Mr. Robinson was on the ground when PC Holmes arrived. The difficulty with his evidence is that PC Curtis believed that Mr. Robinson was only tasered twice while he was on the ground. Mr. Robinson’s position, which is supported by the evidence, is that he was tasered three times. It appears that PC Curtis did not see or hear the first taser that occurred as Mr. Robinson was going to the ground. PC Curtis agreed that he did not recall seeing Mr. Robinson’s hands.

[131] PC Peterson’s evidence does not assist, as the agreed statement of facts contains no information about how Mr. Robinson was arrested.

[132] There are some inconsistencies between the evidence of PC Holmes, PC Mante and the other officers. These inconsistencies are not central to the reliability of PC Holmes’ and PC Mante’s evidence regarding Mr. Robinson’s compliance with the police commands. Rather, I find the inconsistencies are reasonably the result of how quickly everything was unfolding and the perspective the officers made their observations from. For example, PC Holmes did not believe the dog was deployed, whereas PC Silverberg said the dog was. I find that the dog was deployed but that it is likely that PC Holmes did not see this as his focus was on Mr. Robinson. Similarly, PC Mante’s evidence that the rear containment team was located north of him as opposed to south was contradicted by PC Holmes and PC Silverberg. Again, his focus was on Mr. Robinson, who did not appear to be complying with police commands. PC Holmes testified that PC Mante put the handcuffs on Mr. Robinson. This is different from PC Mante’s and PC Curtis’ evidence that it was PC Curtis who handcuffed Mr. Robinson. This is not a material inconsistency.

[133] The police did not act outside of the Use of Force Policy in tasering Mr. Robinson, given the circumstances they faced. Mr. Robinson was acting threatening because he was not complying with police commands to put his hands out and behind his back when it was believed he possessed a firearm. Even if his behaviour was not considered threatening, the police acted within the policy. The policy states that the taser may be considered where a subject is not threatening or displaying assaultive behaviour in other circumstances, “taking into account the totality of the circumstances and the imminent need for control of the subject.” In this case, there was an imminent need to gain control of Mr. Robinson. The officers reasonably believed that Mr. Robinson had a firearm in his possession and he was not complying with police commands to put his hands out and behind his back.

[134] Mr. Robinson submits that there was no need to taser him because he was surrounded with officers who had their rifles out and there was a dog. The fact that he was surrounded by officers with rifles and a dog did not change the immediate need to gain control of the situation. It takes a matter of seconds for a person to use a firearm. Time was of the essence.

iv. Mr. Robinson Suffered no Injuries

[135] There was no evidence that Mr. Robinson suffered any physical injuries or psychological harm during his arrest. He did not testify.

[136] Several officers explained that the taser is designed to inflict no permanent injury. Many of the officers stated that they had been tasered in the past. They described being tasered as painful and unpleasant, but transient. It is not a tool that is likely or intended to cause death or grievous bodily harm when used properly.

[137] There was no evidence that Mr. Robinson was tasered for longer than the five seconds that the taser is set to. No Use of Force Reports were filed as evidence, which would have contained more detailed information regarding how long and precisely when the taser was used. There is no evidence before me that the taser was used on Mr. Robinson for an unacceptable length of time such that its use could have resulted in death or grievous bodily harm.

[138] Most importantly, there is no evidence that Mr. Robinson was tasered after he was arrested and in control of the police. There is no evidence that Mr. Robinson was tasered to punish him. Tasering in that situation is unacceptable and a Charter violation: see R. v. Walcott (2008), 2008 CanLII 11374 (ON SC), 57 C.R. (6th) 223 (Ont. S.C.), at para. 108.

v. Conclusion

[139] PC Holmes and PC Mante subjectively believed they needed to taser Mr. Robinson to gain control of him immediately to protect themselves, the other officers and the community. Even if PC Holmes and PC Mante misread Mr. Robinson’s willingness to comply with the officers’ commands, I am mindful of the importance of examining and understanding the circumstances as they appeared to the officers at time. Police are entitled to be wrong, but they must act reasonably based on the circumstances known at the time: see Crampton v. Walton, 2005 ABCA 81, 250 D.L.R. (4th) 292, at paras. 22, 40. Mr. Robinson fled from the police with a firearm in his hand. The officers in the backyard believed that Mr. Robinson was still in possession of the firearm. Some officers had their carbine rifles aimed at Mr. Robinson. The actions of PC Holmes and PC Mante in tasering Mr. Robinson were objectively reasonable in the circumstances. Mr. Robinson’s s. 7 Charter rights were not violated.

D. Issue #2: Was the Use of the Breaching Shotgun Unreasonable?

i) Positions of the Parties

[140] Mr. Robinson submits that the police violated his s. 8 Charter rights because the police used a breaching shotgun to open the back door of his residence. He submits that it was unreasonable to use the breaching shotgun because there were no exigent circumstances. Mr. Robinson was apprehended. The firearm was located. Other officers at the front of the house opened the unlocked door.

[141] Mr. Robinson submits that the use of a breaching shotgun is extremely dangerous to occupants of a home and should rarely be used. The officers should have known that a child was associated to the residence. Mr. Robinson argues that there was no basis for police to presume that there were others in the residence that posed a risk to officer safety. Using a breaching shotgun in these circumstances was not reasonable. There were other reasonable options available to the police.

[142] The Crown submits that using the breaching shotgun to quickly gain access inside the residence was reasonable in the circumstances. The police had a warrant to search the residence. Unfortunately, nothing went according to the plan. Events unfolded rapidly and unpredictably. PC Bryant, a senior officer, told PC Mulder to breach the back door. PC Mulder quickly assessed the danger associated with the use of the breaching shotgun and the urgent need to view inside the house for officer safety. He reasonably determined that using the breaching shotgun was appropriate.

ii) General Principles

[143] Section 8 of the Charter provides everyone with the right to be secure against unreasonable search or seizure. To be compliant with s. 8 of the Charter, a search must be i) authorized by law; ii) the law must be reasonable; and iii) the way the search is executed must be reasonable: see R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 12, citing R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278. In this case, there is no dispute that the police were authorized by law to search the residence and that the law was reasonable. The sole issue to determine is whether the search was executed in a reasonable manner.

[144] When executing a search warrant on a residence, the police must generally give notice of their presence prior to forcefully entering a dwelling. This usually includes knocking or ringing the doorbell; announcing themselves as police; and stating their purpose for seeking entry. Exigent circumstances, including if there is a need to prevent the destruction of evidence, or to ensure the safety of the police or the occupants, or if in hot pursuit may justify a departure from the knock-and-announce method Cornell, at para. 20; see also R. v. Burke, 2013 ONCA 424, 307 O.A.C. 171, at para. 41.

[145] When the police do not use a “knock-and-announce method”, the onus is on the police to justify their actions. As the Supreme Court of Canada explained in Cornell, the Crown must lay out an evidentiary framework to “support the conclusion that the police had reasonable grounds to be concerned about the possibility of harm to themselves or the occupants…. The greater the departure from the principles of an announced entry, the heavier the onus on the police to justify their approach”: para. 20.

[146] There must be evidence to demonstrate that there were grounds to be concerned about the possibility of violence. The Supreme Court agreed in Cornell, at para. 20, that “section 8 of the Charter does not require officers to put their lives or safety on the line even if there is even a low risk of weapons being present.” The evidence to justify the grounds to believe there is a possibility of violence must be apparent in the record and available to police at the time they acted: R. v. Genest, 1989 CanLII 109 (SCC), [1989] 1 S.C.R. 59, at pp. 89-91; see also R. v. Gimson, 1991 CanLII 24 (SCC), [1991] 3 S.C.R. 692, at p. 693.

[147] The Crown is not entitled to rely on ex post facto justifications for the police’s belief: Genest, at p. 89. Police decisions must be judged by what was or should reasonably have been known to them at the time, not based on how things turned out to be.

[148] Police must be given some latitude with respect to how they respond to a particular situation: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 73. Police “cannot be expected to measure in advance with nuanced precision the amount of force the situation will require”: Cornell, at para. 24; see also Asante-Mensah, at para. 73; and Crampton, at para. 45. “It is often said of security measures that, if something happens, the measures were inadequate but if nothing happens, they were excessive”: Cornell, at para. 24. As the Supreme Court noted in Cornell, at para. 24, these sorts of after-the-fact assessments are unfair and inappropriate when applied to situations where officers must exercise their discretion in difficult and fluid circumstances.

iii) Analysis

[149] The use of the breaching shotgun was reasonable in the circumstances. The circumstances included the urgency of the situation, the information that the police ought to have known and the assessment made by PC Mulder that breaching the door using the breaching shotgun could be done safely, as explained in greater detail below.

iv) Exigent circumstances

[150] As outlined above, this was a dynamic, fluid event that occurred in less than a minute. There were exigent circumstances that justified a departure from the knock-and-announce method of entering a residence.

[151] The initial plan was to breach and hold the front door using the ram. PC Holmes was the main breacher. He brought the ram. He did not bring a breaching shotgun. The police had reasonable and probable grounds to believe that at least one firearm was present in the residence. The rear containment team was assigned to watch the back of the residence and to apprehend anyone who fled through the back door when the officers entered through the front door. PC Bryant planned to break the security camera at the back of the residence to ensure that officer safety was not compromised.

[152] Things did not go according to the plan. Mr. Robinson ran into the backyard of 1 Kayak Heights. He was believed to be armed. PC Bryant viewed the situation in the backyard as dangerous. He explained that the police were exposed at the back of the residence even though he broke the security camera. PC Bryant was the most senior officer in the backyard and was the training coordinator for the tactical team. PC Bryant broke the security camera. He explained that, normally, he would stand forty yards back from the residence for officer safety. He could not do that because of where Mr. Robinson was being apprehended.

[153] PC Bryant saw that most of the front door breaching team was in the backyard. He could not hear anyone inside of the residence. He concluded that the officers had not entered the residence through the front door. PC Bryant quickly came up with a new plan.

[154] PC Bryant wanted to keep physical and visual control of the residence to make sure that no one escaped, and that officer safety was not compromised. He believed that he needed to see into the house for officer safety. He did not know that the firearm had been found. He decided that the back door should be breached so that he could see into the home. He explained that way there was less of a chance of someone surprising him or shooting through the door as he had seen in the past.

[155] PC Mulder ran into the backyard. He heard PC Holmes yelling commands for Mr. Robinson to get on the ground and to put his hands behind his back. Others were yelling. PC Bryant called PC Mulder over to breach the door because he was the assistant breacher and PC Holmes was dealing with Mr. Robinson.

[156] PC Bryant stated that it was his practise to check to see if the door was locked. He could not specifically recall if he did so on that date. It is likely that he did check the door because it was locked.

[157] PC Mulder did not check the lock before breaching the door. He should have. While I accept that there are situations where a breacher may not want to check the lock – for example, where they want an element of surprise – that was not this case. I cannot justify the police action based on hindsight that the door was locked. At the same time, it must be remembered that this was a fast-paced situation. PC Bryant was already at the door. He was senior to PC Mulder and he directed PC Mulder to breach the door. PC Mulder viewed the request to open the door as urgent.

[158] The only breaching tool that PC Mulder had with him was his breaching shotgun. He dropped his other tools when he ran to the backyard. The only other tool that would work with the inward swinging door was the ram. PC Mulder did not have the ram. He did not know where it was because PC Holmes brought the ram and PC Holmes did not have any tools with him in the backyard. PC Mulder felt like he did not have time to go and look for the ram, given the circumstances.

[159] Counsel for Mr. Robinson submits that there were not exigent circumstances justifying the use of the breaching shotgun. PC Mulder knew the firearm had been dropped and the officers who entered through the front door just opened the door. I disagree for several reasons.

[160] First, events in the backyard were happening quickly. PC Mulder estimated that he was in the backyard for a total of 20 to 25 seconds. He described the situation as a “very fast fluid situation.” He and other officers had to make quick decisions in exigent circumstances.

[161] Second, the situation was not under control when PC Mulder arrived in the backyard. Mr. Robinson was still not handcuffed. PC Mulder recalled that PC Holmes was yelling for Mr. Robinson to put his hands behind his back. In contrast, when the officers went to the front door, Mr. Robinson was arrested, and the police had already had “eyes into the home”.

[162] Third, while PC Mulder knew a firearm had been located, PC Bryant, who directed him to open the door, did not. PC Bryant was the senior officer.

[163] Fourth, the fact that a firearm had been located did not mean that there was still not a concern about what was happening in the residence. As noted in Cornell, there must be reasonable grounds to be concerned about the possibility of harm. Police had a warrant to search the residence for firearms. They did not know who else was in the residence. They did not know if Mr. Robinson only had one gun. They did not know if Mr. Robinson had any accomplices. They did not know how the occupants of the residence would react if they had seen Mr. Robinson’s arrest where he was tasered and officers had their rifles out. Given the high-risk nature of the situation and how quickly events unfolded, it was reasonable for the police to want to ensure that they were not at risk while in the backyard.

[164] There were exigent circumstances that justified a departure from the knock-and-announce method.

v) Consideration that Breaching Shotgun Could be Safely Used

[165] As held by Cromwell J. in Cornell, at para. 31, once it is determined that a departure from the knock-and-announce method is justified, the court should not attempt to micromanage the police’s choice of equipment. The role of the reviewing court is limited to assessing whether the search overall was reasonable.

[166] PC Mulder’s decision to use the breaching shotgun was reasonable in all the circumstances. PC Mulder had extensive training using the breaching shotgun and was equipped to make the decision that it was appropriate to use it. Breachers receive specialized training. They train with other breachers on a quarterly basis. Breaching training is also incorporated into regular training every fifth week. PC Mulder had trained with the breaching shotgun since 2015. He used it in training 70 to 80 times. He had used it as a primary breacher three to four times before this day. This was not a situation where another officer who was not trained to use the breaching shotgun had to step in.

[167] PC Mulder explained his understanding of how the breaching shotgun worked. The breaching shotgun has a bullet that consists of metal powder that dissipates immediately on contact with the locking mechanism on the door. It is shot at the door at close range. His explanation is consistent with how it is explained in the Tactical Breaching Manual.

[168] It was agreed that both primary projectiles, coming from the breaching round, and the secondary projectiles can cause serious bodily injury and can be potentially lethal to a human. The severity of injury would depend on the distance of the human from the area of the discharge and the location of impact/contact with the body. The energy/velocity of a secondary projectile would also affect the seriousness of the injury. The damage to the drywall inside the residence demonstrates the dangers of using a breaching shotgun to enter a residence.

[169] PC Mulder was aware of the risk of using the breaching shotgun. He explained that occupancy is a factor he considers in determining whether to use the breaching shotgun. He also stated that there is always a risk of harm if anyone is standing on the other side of the door whether the breaching shotgun is used or the ram. PC Mulder had not seen anyone injured where the breaching shotgun had been used. Several other officers, including PC Bryant, PC Holmes and PC Mante, also testified that they had never seen anyone injured from the use of the breaching shotgun.

[170] PC Mulder stated that the ram is the most commonly used breaching tool. He stated that the breaching shotgun is used approximately ten percent of the time. Indeed, it was PC Holmes’ evidence that he intended to breach the front door using the ram.

[171] PC Mulder assessed the door and the risk of harm that could arise from using the breaching shotgun and was satisfied that he should use it to safely breach the door.

[172] PC Mulder explained the factors he considered in determining whether to use the breaching shotgun. These factors included: the need for expediency in entering the residence; if there were children or elderly persons in the house; what the door and doorframe were made of; and what was on the other side of the door.

[173] PC Mulder described the door as a wood-core door. It likely had a thin metal sheeting around it because it was a residence. He believed the frame was wood. He looked at the locking mechanism, which was on the left of the door. He was satisfied that the door did not open into the middle of the room. He believed there was a concrete wall immediately to the left, given the configuration of the house. The door was at the edge of the house, which was easy to tell because there was a fence adjacent to the same wall. It took him three to four seconds to assess the door. He agreed that he had no idea if there were any occupants in the residence.

[174] PC Mulder was satisfied that by deploying the breaching shotgun in a 45-degree angle, the projectiles would go directly into that concrete wall, limiting the risk of harm to any persons. As per his training, PC Mulder yelled “police, get back” prior to firing the shotgun to give anyone who was behind the door an opportunity to move. He then fired three shots into the lock.

[175] PC Mulder explained that he put the muzzle right on the lock and pointed it down at approximately a 45-degree angle and at the wall. He fired two shots at the deadbolt and one at the handle. After firing three rounds he kicked the door open and then moved away so that PC Bryant would have eyes into the residence with his firearm. PC Mulder was not successful in shooting out the deadbolt but damaged the doorframe sufficiently to kick open the door. After he breached the door, PC Mulder went to the front door in case they needed a breacher.

[176] Mr. Robinson states that the officers, including PC Mulder, ought to have known that a child was associated to the residence and using the breaching shotgun in these circumstances was unreasonable. I agree that the officers ought to have been told this information. This was a relevant factor that the officers should have been told about.

[177] However, for the following reasons, I find that PC Mulder’s decision to use the breaching shotgun in this case, even though a child was associated to the residence, was reasonable for the following reasons.

[178] First, there were exigent circumstances. PC Mulder stated that he did not know if there were other parties in the residence. The concern that there were other persons in the residence was the very reason why he breached open the door: the officers needed to ensure the safety of the officers and the public in the backyard. Time was of the essence, PC Bryant wanted to get eyes into the house as soon as possible. The front door had not yet been breached as was the original plan because Mr. Robinson fled. The officers were concerned about other persons in the residence where there were reasonable grounds to believe there was a firearm located.

[179] Second, PC Mulder stated that he tries to avoid using the breaching shotgun if there are children because of the risk of using it and that police always try to use the least risky form of entry. However, if the situation calls for a quick entry, it may nonetheless be used.

[180] Several other officers also testified that the breaching shotgun may be appropriate even if a child is associated to the residence. PC Holmes has been a breacher since 2012. He explained that generally officers try to avoid using the breaching shotgun if children or elderly persons are in the residence because of the concern of shrapnel and the noise that it causes. PC Bryant, who is a trainer, stated that they would not use flash bangs if children were present. He explained, however, that there is no hard and fast rule that the breaching shotgun cannot be used if a child is present, as it is a discretionary decision. PC Mante explained that police would not use a distraction device if a child was associated to a residence. He explained that the preference is not to use the breaching shotgun where it is unknown who is in the residence, but it is a judgment call.

[181] There is nothing in the police policies about when the breaching shotgun should be used. There is, however, a Beaching Manual that is primarily used by trainers of the tactical team. The manual states that the breaching shotgun is not to be used if children are present. All the officers who were asked agreed that they try not to use the breaching shotgun if a child is present, but there are still situations where its use is appropriate, particularly in urgent situations. All the officers recognized the risks of using a breaching shotgun.

[182] Third, in this case, PC Bryant had no concerns about PC Mulder using the breaching shotgun based on the urgency and the layout of the door. The door opened into a breezeway or a mudroom, and it was not a big room. PC Bryant held in a place of concealment and cover and commenced a call out of the occupants of the residence.

[183] Fourth, the fact that PC Mulder was not required to obtain approval from the team leader before using the breaching shotgun does not make PC Mulder’s use of the breaching shotgun unreasonable. PC Mulder had significant experience in using the breaching shotgun. He and PC Holmes were in the best position to assess whether it was appropriate to use the breaching shotgun given their experience. PC Mante was not an experienced breacher. He stated that he trusted PC Mulder to decide how best to breach the door.

vi) Conclusion

[184] In all the circumstances, the use of the breaching shotgun was reasonable. The actions of the police must not be measured with nuanced precision. There were exigent circumstances that justified the police not following the knock-and-announce method. The police ought to have known there was a child associated with the residence. In hindsight, it may have been preferable for PC Mulder to have used the ram to gain entry to the residence, but he did not have the ram. It was somewhere in the front yard. The situation in the backyard was unfolding quickly. The police had grounds at the time to be concerned about the possibility of violence. PC Mulder made an assessment that the risk of harm from the breaching shotgun was minimized, as the door did not open into the middle of the room, and that any projectiles would hit the cement wall between the houses. PC Mulder announced “police, stand back” before he used the breaching shotgun.

E. Issue #3: Should the Charges be Stayed Pursuant to s. 24(1) of the Charter?

[185] Although I found that Mr. Robinson’s ss. 7 and 8 Charter rights were not violated, if I erred in coming to that conclusion, I have considered whether a stay of proceedings would be appropriate. I conclude that a stay would not be appropriate in this case.

i) Positions of the Parties

[186] Counsel for Mr. Robinson submits that a stay of the proceedings is an appropriate remedy, looking at the breaches individually and cumulatively.

[187] Mr. Robinson submits that the amount of force used to arrest him was a flagrant violation of s. 7 of the Charter. Mr. Robinson dropped the firearm. The officers should have known that, given the radio call. Mr. Robinson submits that it was completely unnecessary to taser him three times because he was complying with the police commands to get to the ground.

[188] Mr. Robinson also submits that the use of the breaching shotgun was unreasonable in the circumstances. The Charter breach is aggravated and will be perpetuated because there is no police policy limiting when the police may use the breaching shotgun. Both Mr. Mulder and PC Holmes stated that they would continue to use the breaching shotgun.

[189] The Crown’s position is that if the court finds that Mr. Robinson’s ss. 7 and 8 Charter rights were violated a stay of proceedings is not warranted. Mr. Robinson’s arrest and search of his home involved a loaded firearm. The situation did not go according to plan. Mr. Robinson’s arrest and breaching the door occurred in a dynamic situation. The Crown submits that there was no evidence of any intent by the officers to punish or injure Mr. Robinson when arresting him. The Crown submits there was a distinct possibility that police may have had to use lethal force in this situation. There was also no evidence of any intent to engage in any gratuitous violence in breaching the door of the residence. Rather, the police believed that entry into the residence was imperative for officer safety.

[190] The Crown also submits that while there is no specific police policy in place dealing with breaching shotguns, there are substantive safeguards in place to help ensure that it is safely used. Policies do not ensure Charter compliance. In this case, there is no evidence that there is a systemic misuse of the breaching shotgun.

ii) Governing Principles

[191] A stay of proceedings is the most drastic remedy that a criminal court can order. It should only be granted in the “clearest of cases”: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31. There are, however, situations where a stay would be appropriate. First, where the state conduct compromises trial fairness. That does not arise in this case. Second, where the state conduct creates no risk to trial fairness but risks undermining the integrity of the judicial process. The second or residual category is at issue in this case.

[192] A stay is a prospective remedy. As explained in Babos, at para. 32, a three-part test applies. First, 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 its outcome. Second, there must be no alternative remedy capable of redressing the prejudice. Third, if there is still uncertainty if a stay should be granted after considering the first two factors, the court is required to balance the interests in favour of granting a stay against society’s interest of having a trial on the merits.

iii) Analysis

[193] This is not an appropriate case for a stay of proceedings. Unlike in R. v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131, and Walcott, the police did not use gratuitous violence where no force was justified. The police were entitled to use reasonable force to apprehend Mr. Robinson but may have crossed the line, resulting in a s. 7 Charter breach. Similarly, the police had lawful authority to enter the residence, but may have crossed the line in how they gained access to the residence, resulting in a s. 8 Charter breach.

[194] There is no evidence that the officers were motivated to cause harm to Mr. Robinson or his residence. There were no injuries suffered by Mr. Robinson. The damage to the residence was limited to the damage to the wall caused by the breaching shotgun.

[195] The fact that there is not a specific policy setting out when it is appropriate to use the breaching shotgun does not demonstrate that the improper use of the breaching shotgun will be perpetuated.

[196] Police policies have many benefits but following a policy does not necessarily result in a determination that police conduct is reasonable. There are examples of policies that have violated the Charter, for example, policies with respect to strip searches: see R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 72.

[197] What is important is the actual police conduct. While policies may be helpful, the evidence does not suggest that the lack of a policy will result in the perpetuation of improper use of the breaching shotgun for several reasons.

[198] First, Peel Police limits who may use the breaching shotgun. This is not a tool used by the police force at large. It is used by members of the tactical unit. There are training requirements that breachers must satisfy to be able to use the breaching shotgun, as outlined in the Peel Regional Use of Force Directive and Tactical Rescue Unit Standard Operating Procedures for Breaching. The officers who are permitted to use the breaching shotgun have extensive and continual training on how and in what circumstances they should use the breaching shotgun.

[199] Second, Peel Police have determined that the breaching shotgun is an appropriate tool for trained individuals to use. It is a listed tool in the Tactical and Rescue Unit Standard Operation Procedure for Breaching. There is also a “Breaching Manual” that is used for training. This manual sets out how the breaching shotgun works and states that it is extremely destructive and lethal if fired at living tissue. The manual also sets out how to deploy the breaching shotgun properly.

[200] Third, the officers who are trained to use the breaching shotgun all recognized the risk associated with the use of the breaching shotgun and stated that when children were present, they tried not to use it.

[201] Fourth, there was no evidence that the breaching shotgun is used indiscriminately by members of the tactical team. PC Holmes and PC Mulder testified about the factors that they considered in deciding to use the breaching shotgun. It is not used routinely. PC Mulder stated that the breaching shotgun is used approximately 10 percent of the time. PC Holmes stated that in his 7 years on the tactical team, he guessed that he saw it used 30 to 50 times. PC Bryant stated that he had seen it used approximately 100 times in 10 years. PC Mante stated that he had seen it used approximately 20 times in the 5 years and 2 months he has been on the tactical team.

[202] Fifth, even if there was a policy, it could not address every situation that arises. Consider the Breaching Training Manual, which states that the breaching shotgun will not be considered when a child is present. However, the trainers and officers all stated that there are circumstances where using the breaching shotgun would be appropriate even if a child was present. PC Mulder provided an example where there was a hostage situation involving child and police needed to enter quickly and without prior notice. While policies may be helpful, every situation police may face cannot be addressed in a policy. We rely on officers to exercise their discretion reasonably based on their experience and the situation that they find themselves in – policy or not. These highly-trained officers are in the best position to determine the appropriate course of action in the dynamic circumstances that they often face.

[203] Any Charter breaches in this case arose from police making unreasonable decisions in a very tense and dynamic situation. There is no basis to find that the police will disregard the risks in using the breaching shotgun in determining when it may be used, perpetuating and aggravating the Charter breach. There are also other alternative remedies than a stay that would address the prejudice to the integrity of the justice system, such is a reduction in sentence, if Mr. Robinson was convicted. This is not the clearest of cases where a stay of proceedings should be granted.

F. Issue #4: Should the Firearm be Excluded Pursuant to s. 24(2) of the Charter?

i) Positions of the Parties

[204] If the court finds that a stay of proceedings is not appropriate, Mr. Robinson submits that the firearm that was seized at the time of his arrest should be excluded from his trial pursuant to s. 24(2) of the Charter. He submits the breaches individually and cumulatively are extremely serious, particularly the use of the breaching shotgun, given the risk of harm associated with its use. The breaches had a significant impact not just on Mr. Robinson’s Charter rights but on the administration of justice, because there is no policy for the use of the breaching shotgun. This means the police may continue to use the breaching shotgun without sufficient restrictions. The seriousness of the Charter breach and the serious impact of the Charter breach weigh in favour of excluding the gun. Where these two factors weigh heavily in favour of exclusion, it is unlikely that the third factor will result in inclusion of the evidence.

[205] The Crown submits that the exclusion of the firearm is not warranted pursuant to s. 24(2) of the Charter. Even if there were Charter breaches, the police acted in good faith and took officer and public safety into account in proceeding as they did. The events the police faced were dynamic, dangerous and stressful. Any Charter breach should be found to be at the lower end of the spectrum.

[206] The Crown submits that the impact of the breach is significantly attenuated because Mr. Robinson fled from the police armed with a firearm. Police acted pursuant to prior judicial authorization to arrest Mr. Robinson and to search his residence.

[207] Finally, the Crown submits that having this case adjudicated on its merits favours admission of the gun. Firearm violence is prevalent in our society and affects many people. Exclusion of this reliable evidence would effectively gut the prosecution’s case and serve to undermine confidence in the administration of justice. When all the three factors are balanced, the inclusion of the evidence would not bring the administration of justice into disrepute.

ii) Analysis

[208] Section 24(2) of the Charter states that evidence may be excluded because of a Charter breach if it was “obtained in a manner” that infringed the Charter. In considering whether the evidence was “obtained in a manner” that violated the Charter, the court considers the temporal, contextual and causal connection between the Charter breach and how the evidence was obtained: see R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 50-70, 72; and R v. Daley, 2016 ONCA 564, 34 C.R. (7th) 206, at paras. 10-11. Where it can be said with confidence that the Charter-infringing conduct did not cause the evidence to become available because it was otherwise discoverable in obedience to constitutional restraints, the impact of state action is minimized: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 122; and R v. Tennant, 2018 ONCA 264, at paras. 5-6.

[209] In considering whether evidence should be excluded, the court must balance the three factors set out by the Supreme Court of Canada in Grant, at para. 71: the seriousness of the violation; the impact of the breach on the accused’s Charter rights; and society’s interest in an adjudication on the merits. The overarching purpose of s. 24(2) is to determine if the admission of the evidence would bring the administration of justice into disrepute: R v. Lee, 2019 SCC 34, at para. 140.

iii) Seriousness of the Breach

[210] Any Charter breach was unintentional. There were extenuating circumstances that attenuates the seriousness of the Charter breaches: Grant, at para. 18. Police may have made poor choices, but these choices were made in a very stressful situation. Excessive use of force in arresting Mr. Robinson and in entering the residence raises serious concerns, but there is no basis to find that the police acted maliciously, which renders the breach less serious.

[211] There was also no evidence of a systemic pattern of abuse by the police in using the breaching shotgun that would render the Charter breach more serious. There was no evidence that the police used the breaching shotgun in an indiscriminate manner without regard to the harm it could cause: see R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 40

[212] Any Charter breaches were moderately serious. This factor is neutral.

iv) Impact of the Breach

[213] The impact of the breach was minimal. Police had lawful authority to arrest Mr. Robinson and to search his residence. Mr. Robinson suffered no long-term injuries as a result of being tasered. There was some damage to the residence because of the use of the breaching shotgun.

[214] There was no causal connection between the Charter breaches and discovering the gun. There is a temporal connection. Police had lawful authority to arrest Mr. Robinson and to enter his residence. Mr. Robinson fled when police were lawfully attempting to arrest him. He dropped the firearm when he fled. The breaches occurred after the firearm was discovered by police. As noted in R. v. Lenhardt, 2019 ONCA 416, at para. 11, the lack of a causal connection weighs against the exclusion of the evidence, though it is not determinative.

[215] This factor favours admission of the evidence.

v) Society’s Interest in Adjudication on the Merits of Justice

[216] The firearm is reliable evidence that is critical to the Crown’s case. Society has an important interest in prosecuting offences involving firearms given the significant risk they pose to the community. This weighs in favour of admission of the evidence.

vi) Balancing the Three Grant Factors

[217] The seriousness of any Charter violation was moderate. The impact on Mr. Robinson’s Charter rights would also be minimal. When these two factors are balanced against the importance of adjudicating the case on its merits, I am not persuaded that the firearm must be excluded to protect the long-term reputation of the administration of justice.

G. Conclusion

[218] Mr. Robinson’s Charter application is dismissed.

Dennison J.

Released: August 13, 2019