Overview

[1] Mohamed Aden is charged with possession of a loaded restricted firearm and carrying a concealed weapon contrary to sections 95(1) and 90(1) of the Criminal Code, R.S.C., 1985, c. C-46. He pleaded not guilty to both charges.

[2] The charges against Mr. Aden arise from his arrest on June 21, 2017 when he was in the company of man who was the target of a police investigation (“the target”). On that date, police had the target under surveillance because the police intended to execute a search warrant at the target’s residence. They intended to arrest the target and to detain anyone who was with the target until after the execution of the warrant. Mr. Aden was observed in the company of the target and several other young men outside a McDonalds restaurant. One officer observed Mr. Aden repeatedly touch his waistband and the front of his hoodie when he was outside McDonalds. This caused the officer to believe that Mr. Aden possessed a firearm. The officer communicated his observations to the other members of the team. The target left the McDonalds with Mr. Aden and another man. The detective in charge of the operation instructed the team of police officers to arrest the target and to detain the other men with the target. The grounds for the detention were articulated by the detective to be to prevent interference with the execution of the search warrant and to ensure officer and public safety.

[3] When the ‘takedown’ was called by the detective, one of the officers, ran towards Mr. Aden and told him to get on the ground. According to that officer, Mr. Aden then turned and his hand moved towards his waistband. Mr. Aden was physically taken to the ground and arrested. A firearm and magazine were found near Mr. Aden following his arrest. Other officers testified that Mr. Aden ran and then was tackled.

[4] Two officers testified that they saw Mr. Aden throw the gun away. Mr. Aden testified that he did not possess or throw away a gun. He testified that he was tackled and taken to the ground by the police and that he was then struck multiple times after he had been handcuffed. Mr. Aden testified that one officer remained on top of him after he was on the ground and handcuffed. An independent witness, Anthony Cristobal, testified that he saw the police kick Mr. Aden on the ground after he had been handcuffed. Mr. Cristobal also observed an officer to kick a gun towards Mr. Aden while he was on the ground. Mr. Cristobal video-recorded part of the interaction between Mr. Aden and the police.

[5] Mr. Aden brought two applications. He applied for a stay of the charges against him pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms on the grounds that his rights under s. 7 of the Charter were infringed when the police used unreasonable and excessive force in arresting him. He also brought an application under s. 24(2) of the Charter to exclude the evidence of the gun and magazine seized at the scene of his arrest on the grounds that his right under s. 9 of the Charter to be free from arbitrary detention was infringed when he was detained. He further argued that he should, in any event, be found not guilty.

[6] Mr. Aden elected to have a trial without a jury. Counsel agreed that the evidence on the Charter applications and on the trial could be blended. The evidence included the evidence of the police officers involved in the arrest of Mr. Aden, photographs of the gun and magazine and of the scene, an agreed statement of fact, the testimony of Mr. Aden and of Mr. Cristobal and two short videos of the arrest taken by Mr. Cristobal.

Issues

[7] The issues that I must determine are:

Has Mr. Aden proven that his right under s. 9 of the Charter to be free from arbitrary detention was violated when the police detained him? If Mr. Aden’s s. 9 right was violated should the evidence of the gun and magazine be excluded under s. 24(2)?
If the evidence is admitted, has the Crown proved the guilt of Mr. Aden beyond a reasonable doubt?
If the Crown has proved the guilt of Mr. Aden beyond a reasonable doubt, should the charges be stayed because Mr. Aden’s rights under s. 7 were violated by the use of unreasonable and excessive force during his arrest?

Conclusions

[8] For the reasons that follow, I have concluded the following:

I find that the detention of Mr. Aden was arbitrary. Det. Balint, who ordered the detention of Mr. Aden did so on the grounds that Mr. Aden was with a target of a search warrant and to prevent interference with the warrant. DC Pitre, who ordered Mr. Aden to the ground, did so for that reason. I find that Mr. Aden’s detention crystallized at the point that he was ordered to the ground while surrounded by police. The only grounds were that he was with a suspect and he had suspiciously adjusted his clothing. The police did not have grounds for arrest or detention. I would exclude the evidence of the gun and magazine. The police witnesses articulated a standard or routine practice of arresting targets outside their residences and detaining anyone with the targets until after the execution of a warrant. This evidence demonstrates a systemic problem with the training of police and their understanding of the grounds for detention of individuals. The violation is extremely serious.
Even if I had not excluded the gun and magazine as a result of the violation of Mr. Aden’s s. 9 rights, I would have found that the Crown did not prove beyond a reasonable doubt that Mr. Aden was in possession of the gun and magazine found on the ground following his arrest. Two other people were arrested at the same time as Mr. Aden and near him. Considering the serious problems with the credibility and reliability of the evidence of the officers involved in the arrest of Mr. Aden, I cannot be satisfied that the officers saw Mr. Aden remove and throw the gun. Mr. Aden denied possessing the gun and his evidence is credible. It is supported in material respects by the evidence of the videos taken by the independent witness and the testimony of the independent witness. Mr. Aden’s denial, considered in light of all of the evidence, raises a reasonable doubt.
Due to my conclusion that the charges against him have not been proved beyond a reasonable doubt it is not necessary for me to consider whether the charges should be stayed because of the force used against Mr. Aden.

[9] In the reasons that follow I will set out the evidence and my findings of fact that apply to the application and to the trial. I will then review the law and apply it to the facts with respect first to the Charter application and then to the trial.

Summary of the Evidence

DC Chris Miller

[10] The police observed Mr. Aden on June 21, 2017 with a group of people outside a McDonald’s Restaurant (“McDonald’s”) in the City of Toronto. Within the group were two persons of interest to the police. The police surveillance was being conducted on the group because police intended to execute two search warrants on addresses associated with the two targets of the investigation. One officer (Haines) saw a group of men leave the target address at 7:45 pm and move to the nearby McDonald’s. By 7:58 pm it was determined that both targets were in the group. The accused, Mr. Aden, was in the group as well. He was not a target of the investigation. His identity was not known to the police at that time and the police had no reason to suspect that he had committed or was committing any offence.

[11] DC Miller testified that the purpose of the surveillance was to locate the targets and arrest them outside of their residences before the execution of the warrants.

[12] At 8:04 pm DC Miller observed Mr. Aden to be constantly tapping and adjusting the front area of the waistband of his pants and touching the front of the grey hoodie that hung down around the front of his pants. DC Miller testified that as Mr. Aden was adjusting his pants, he was scanning the area. Based on these observations, DC Miller formed the belief that Mr. Aden was in possession of a firearm. DC Miller broadcast over the radio to the other officers on the team that Mr. Aden (then identified as unknown male #1) was adjusting the front of his waist up and down and touching the outside of his grey hoodie with palm of his right hand. He broadcast to the others that the behaviour he was observing was consistent with characteristics of an armed person. DC Miller testified that this conduct went on for several minutes.

[13] DC Miller testified that on the date of these events he had been with the Guns and Gangs Task Force (G & G) for under a year and had participated in about 30-40 gun investigations with that unit. He had also investigated gun offences before joining G & G. He had never before in his career been so certain that the person he was observing had a gun.

[14] After observing Mr. Aden adjust his pants for several minutes, DC Miller continued to observe Mr. Aden and the group for an hour and saw no other conduct that he thought was consistent with an armed person.

[15] DC Miller saw some members of the group move into McDonald’s and out again. Individuals joined and left the group.

[16] At 8:44 pm, one of the targets of the investigation left the group and moved towards his residence. At 9:01 pm the second target of the investigation moved away from McDonald’s accompanied by Mr. Aden and another man. The three men walked north on Jane Street toward a plaza. DC Miller drove north past the three and parked his car.

[17] The detective in charge of the investigation, Det. Balint, accompanied by DC Higgins, DC Pitre and DC Ditlof drove to the plaza north of where the three men were walking. They parked the unmarked car and waited outside the car for the men to enter the area.

[18] DC Miller testified that his understanding was that they needed to get into position to effect an arrest. At 9:05 pm, Det. Balint ordered the “takedown”.

[19] DC Miller testified that his understanding was that the target of the investigation would be arrested, Mr. Aden would be arrested and the third man with the group would be detained.

[20] DC Miller testified that before he saw Mr. Aden adjusting his pants, he had no grounds to arrest Mr. Aden. He formed the grounds to arrest based on his observations.

[21] DC Miller testified that it was standard practice when executing a search warrant to arrest the target of the warrant outside the residence if possible. This enabled the police to determine who was in the residence, to possibly enter using keys and to minimize that chance that evidence would be destroyed or persons within the residence alerted.

[22] DC Miller also testified that it was standard procedure to detain any person who was in close proximity to the target at the time of the arrest of the target. Persons accompanying a target would generally be detained until the search warrant was executed.

[23] In this case, DC Miller understood that the third man with the target would be detained. He understood that the target and Mr. Aden would be arrested. However, in cross-examination he testified that he did not make the decision to arrest. Det. Balint made that decision.

[24] DC Miller testified that after Det. Balint gave the instruction to ‘takedown’ the group, he left his car and walked north towards the plaza. He saw officers moving south through the plaza parking lot towards Mr. Aden and the other two men. He recalled seeing DCs Pitre and Ditlof coming from the parking lot towards the men. DCs Pitre and Ditlof were in plainclothes and were not wearing police vests. The target and the unknown man ran north into the parking lot. Mr. Aden ran in a northwesterly direction while turning to look back east at DC Miller. DC Miller was wearing a police vest and held his badge and warrant card in his hand. He yelled “Police, stop.” DC Miller ran towards Mr. Aden and at that point put his badge away in his pocket.

[25] DC Miller testified that Mr. Aden ran into DC Pitre’s arms.

[26] DC Miller was asked whether he or the other officers said anything to the men. He testified that at first they did not say anything but that after the men started to run he yelled “Police, stop!” several times. DC Miller believed that he initially had his firearm out but that he put it away when he started to run after Mr. Aden.

[27] DC Miller testified that when Mr. Aden looked back at him he had a “holy shit look” on his face.

[28] DC Miller testified that Mr. Aden ran 10-20 feet before he was stopped by DC Pitre.

[29] DC Miller saw DC Pitre grab Mr. Aden in a bear hug from behind. Mr. Aden was struggling and appeared to be trying to break free. DC Miller reached them within a second or two. Just before he got there, he saw Mr. Aden reach into his pants and fling a black handgun back over his head. The magazine separated from the gun and both the gun and magazine fell to the ground.

[30] DC Miller testified that by the time he got to Mr. Aden and DC Pitre, the gun had been thrown and was on the ground. DC Miller yelled “Gun, gun, gun!” DC Miller was facing DC Pitre and Mr. Aden. They were still standing. Mr. Aden was being held in the bear hug from behind by DC Pitre. DC Miller grabbed Mr. Aden with both hands and threw him to the ground. He agreed that it was possible that Mr. Aden’s feet left the ground in the tackle. Mr. Aden went to the ground with both of his arms beneath him. Mr. Aden tried to fight with DC Miller by lifting his elbows and kicking. DC Miller had his knee on Mr. Aden’s lower back and was trying to gain control of Mr. Aden’s left arm. After a couple of forceful pulls, DC Miller got Mr. Aden’s left arm behind his back. Mr. Aden continued to fight with his right arm. DC Pitre and possibly DC Doyle were on the right side of Mr. Aden, trying to control his right arm. Mr. Aden was rocking back and forth, actively resisting arrest. DC Miller said things like: “Stop resisting; stop moving; give us your arms.”

[31] DC Miller could not say what DC Pitre or DC Doyle were doing. One of them got Mr. Aden’s right arm out and DC Miller handcuffed Mr. Aden’s right arm to his left. DC Miller did not believe that DC Pitre put his knee on Mr. Aden’s back during the struggle because DC Miller already had his knee on Mr. Aden’s back.

[32] From the time that DC Miller saw DC Pitre bear hug Mr. Aden to the time that the handcuffing was complete was about 10-12 seconds, 15 seconds at the most.

[33] During the time that DC Miller was involved with subduing Mr. Aden, Mr. Aden did not say anything.

[34] After the handcuffs were on, DC Miller left his knee on Mr. Aden’s back and told him to calm down. When Mr. Aden stopped moving, DC Miller flipped Mr. Aden over and sat him up. He then asked Mr. Aden his name. Mr. Aden said, “Fuck you.” DC Pitre read Mr. Aden his rights to counsel. He was arrested for possession of a firearm.

[35] DC Miller testified that Mr. Aden was physically co-operative after he was handcuffed. A minute or two after he told DC Miller, “Fuck you”, he gave his name and other personal details.

[36] DC Miller saw DC Haines prove the firearm safe and take possession of it.

[37] At 9:15 pm DC Miller left the area and left Mr. Aden with DCs Higgins and Ditlof.

[38] DC Miller testified that the only force he used against Mr. Aden was tackling him to the ground, pulling forcefully on his arm and putting his knee on Mr. Aden’s back. He saw DC Pitre grab Mr. Aden in a bear hug from behind. He did not see any other force used against Mr. Aden. DC Miller testified that Mr. Aden was not kicked or struck after he was under control.

[39] DC Miller agreed that he had received training on the use of force and knew that force that was not reasonable and necessary would be excessive. He agreed that if Mr. Aden was kicked while on the ground and under control that would probably be excessive but that did not happen. DC Miller agreed that he was very close to Mr. Aden and that he would have seen if Mr. Aden was kicked or if Mr. Aden was struck multiple times or struck with an object. He was certain that this did not happen.

[40] DC Miller testified that he would have noted it if excessive force was used against Mr. Aden.

[41] DC Miller testified that there are many characteristics of an armed person. Adjusting the waistband and looking around are two of those characteristics. He did not observe any other characteristics. He agreed that he relied on his intuition in reaching the conclusion that Mr. Aden was armed.

DC Richard Haines

[42] DC Richard Haines testified that he was part of the surveillance on the group of men on June 21, 2017. At 8:04 pm he heard DC Miller on the radio advising that unknown male #1, Mr. Aden, appeared to be adjusting his waistband and was behaving with characteristics of an armed person. DC Haines did not observe such behaviour. He could see Mr. Aden part of the time but not at all times.

[43] At 9:01 pm DC Haines saw one of the targets leave the McDonald’s with Mr. Aden and another man. He saw the group walk northbound on Jane Street. The decision was made to effect an arrest of the target after the target and the two other men broke off from the larger group.

[44] DC Haines testified that it was standard procedure for police to arrest the target of a search warrant. If the target is with other people, it was standard procedure to detain the other people until the search warrant had been executed. When detained, the person would be searched. If the detained person had no contraband, they would be released at the end of the execution of the warrant. The reason for this procedure is to prevent people from interfering with the search.

[45] In this case, he understood that the plan was to arrest the target for offences related to the search warrant, to detain Mr. Aden to investigate for possession of a firearm and to detain the third man because he was in close proximity to the target. DC Haines testified that the detention of the third man was to prevent him warning anyone about the search and because firearms can be passed within a group.

[46] After the target, Mr. Aden and the third man left McDonald’s, DC Haines drove from the McDonald’s north on Jane Street. He testified that as he reached the intersection of Jane Street and Downsview Avenue, he saw the three men crossing the street and walking toward the plaza. He then saw officers appear from the plaza. The next thing he saw was DC Pitre with Mr. Aden in a bear hug from behind. It appeared as though there was a struggle. He did not see what happened before the bear hug because he was driving.

[47] DC Haines testified that as Mr. Aden was struggling with DC Pitre, he saw Mr. Aden reached into his pants and take out a firearm. He saw Mr. Aden fling the firearm back over his head. He saw it hit the stop sign. The magazine broke off and the gun and magazine fell to the ground. DC Haines parked his car where the gun had landed and went to the gun to be sure that no one came to get it.

[48] DC Haines testified that he went to stand over the gun. As he stood over the gun, he noticed that Mr. Aden was on the ground, but his focus was on the gun. He saw that DC Pitre was over Mr. Aden, but he could not say how DC Pitre was positioned. He recalled DC Miller being in the area but could not say specifically what DC Miller was doing. DC Haines saw DC Doyle in the area but could not say what DC Doyle did in the arrest. He saw that Mr. Aden was under control and therefore he focused his attention on the gun.

[49] DC Haines testified that after Mr Aden was under control and handcuffed, Det. Balint came over and photographed the gun and magazine. DC Haines then proved the gun safe and took possession of it.

[50] At 9:15 pm, DC Haines left the area.

[51] In terms of the physical force used against Mr. Aden, DC Haines testified in examination-in-chief that he saw DC Pitre struggle with Mr. Aden while they were standing and while they were on the ground.

[52] He testified that he did not participate in the arrest. He did not apply force to Mr. Aden. He did not see what force, if any, was applied to Mr. Aden beyond the struggle with DC Pitre.

[53] DC Haines in cross-examination, initially testified that he did not hit, punch or kick Mr. Aden at any point and that he did not see anyone else do so.

[54] DC Haines was then confronted with a video. The video was subsequently authenticated by the witness Mr. Cristobal. The video showed DC Haines “winding up” and forcefully kicking Mr. Aden while Mr. Aden was lying face down on the ground with what appear to be three police officers overtop of him. DC Haines agreed, after viewing the video, that he must have kicked Mr. Aden but he testified that he had no recollection of doing so. He agreed that he was holding his firearm as he kicked Mr. Aden. DC Haines testified that if he had recalled kicking Mr. Aden he would have made a note of it and would have testified that he kicked him.

[55] In re-examination, DC Haines testified that the struggle was very dynamic and adrenalin was pumping. He speculated that he must have seen that Mr. Aden was not under control and that a kick was needed to get him under control. He agreed that he made no note of using force in the arrest.

Det. Michael Balint

[56] Det. Michael Balint was not called as a witness by the Crown and so was called by the defence.

[57] Det. Balint testified that he was in charge of the operation on June 21, 2017. In the operation, the plan was to execute two search warrants against two residences and to arrest two targets. Mr. Aden was not a target of the investigation. The two targets were seen that evening with a number of other men at McDonald’s. Mr. Aden was one of the group of men with the targets. Det. Balint heard DC Miller broadcast that he saw Mr. Aden outside McDonald’s adjusting his waistband in a manner consistent with characteristics of an armed person. This information was broadcast at 8:04 pm. Det. Balint did not intend to have Mr. Aden arrested based on this information. He testified that often when such signs are observed the person is not armed. Det. Balint was not convinced that Mr. Aden had a gun based on DC Miller’s observations and did not form grounds to arrest him.

[58] Det Balint intended to arrest the target and to detain anyone with the target. He testified that this was the usual procedure when a search warrant was to be executed. He testified that the reason for this procedure was that firearms are easily transferable and the detention and pat down search of all persons with the targets ensures the safety of officers.

[59] In this investigation it was Det. Balint’s intention that the target would be arrested and that Mr. Aden and the other man would be detained to ensure a safe environment to arrest the target.

[60] Because of the size of the group with the targets at McDonald’s, Det. Balint had called for extra officers to assist in the takedown. DCs Pitre, Higgins and Ditlof met Det. Balint and then travelled with him in his unmarked car.

[61] One of the targets left the McDonald’s along with Mr. Aden and another man. Det. Balint drove to the plaza north of the men. He parked and called for the takedown. He and the three other officers from his car waited between parked cars in order to take the three men by surprise. They jumped out as the men were walking into the parking lot of the plaza. Det. Balint grabbed the third man, brought him to the ground and handcuffed him. While he was grabbing the man and handcuffing him he heard someone yell “Gun”. He then left that man with DC Higgins and went to see that the others were under control. It took about a minute to detain the man and over a minute to secure him with DC Higgins and walk over to where Mr. Aden was under arrest.

[62] When he reached the area where Mr. Aden was under arrest, DC Haines advised Det. Balint that there was a gun. He looked at the gun on the ground and then got a camera to photograph the gun.

[63] He did not remember seeing DC Pitre with his knee on Mr. Aden’s back. He did not remember seeing any use of force on Mr. Aden.

[64] Det. Balint was shown the video of DC Haines kicking Mr. Aden. Det. Balint agreed that he appeared to be near DC Haines and that he appeared to turn his head to look in the direction of the kick when it occurred. He testified that he did not remember seeing the kick.

[65] Under cross-examination by the Crown, Det. Balint testified that he may have put his police vest on before the takedown. He agreed that he testified that he wore the vest at the preliminary inquiry. He testified at trial, after seeing the video, that he may not have worn the vest.

[66] Det. Balint testified that he was focused on the third man and did not pay attention to what the target and Mr. Aden were doing when the police first approached and told the three men “Police, let me see your hands.” Under cross-examination by the Crown, he was directed to his preliminary inquiry testimony to refresh his memory. He then testified that the three men all ran. They were all surprised and began to move quickly in different directions.

DC Chris Doyle

[67] DC Chris Doyle testified that he was in the area of the McDonald’s when the surveillance began. He heard the information over the radio that DC Miller had seen Mr. Aden adjusting his waistband up and down and touching the outside of his hoodie in a manner consistent with an armed person. At 9:01 pm he moved north as the target, Mr. Aden and the third man were walking north from the McDonald’s.

[68] DC Doyle understood that the target was to be arrested and that the two men with the target were to be detained. He testified that this is the typical practice in investigations of this type. The persons with a target are detained to ensure officer safety and public safety and to prevent the destruction of evidence. He testified that typically the individuals with the target would be released after the search as long as they had no involvement.

[69] DC Doyle parked his car in the north part of the parking lot. Det. Balint called for the takedown at 9:05 pm after DC Doyle was parked. DC Doyle walked southbound on Jane Street towards Downsview Avenue. He did not see Det. Balint or DCs Higgins or Ditlof but walked to where Mr. Aden was being arrested. The first thing he saw was a black object flying through the air and hitting a stop sign. He did not see where the object came from. When he got closer he saw the gun and magazine on the ground.

[70] Near the gun and magazine, he saw officers in a struggle with M. Aden on the ground. DCs Pitre and Miller were struggling with Mr. Aden. Mr. Aden was on his stomach on the ground. Mr. Aden was “flailing” his arms and legs. He had one arm underneath him. DC Doyle tried to help to get the arm out from under Mr. Aden. DC Doyle was yelling “stop resisting, give us your arm” over and over. At first, Mr. Aden was not complying. DC Doyle punched Mr. Aden 3-4 times in the upper back and shoulder area. Shortly after the punches Mr. Aden’s arm was released and he was handcuffed by DC Miller. DC Doyle left moments after Mr. Aden was handcuffed. He did not see any officer use excessive force on Mr. Aden. Other than the 3-4 punches he delivered he was not aware of any other force used. He did not see any officer kick Mr. Aden. He would have made a note if he had used excessive force against a person during an arrest or if he had seen anyone else do so.

[71] DC Doyle agreed that Mr. Aden was compliant after his arm was released from underneath him.

[72] DC Doyle did not believe that DC Pitre remained on top of Mr. Aden after Mr. Aden was handcuffed. He did not remember having a conversation with DC Haines after the arrest in which DC Haines was pointing at Mr. Aden on the ground. When he was shown a video, he agreed that DC Pitre was on top of Mr. Aden who was on the ground. DC Doyle appeared to be having a conversation with DC Haines who was pointing at Mr. Aden.

[73] He agreed that it would have been unreasonable and disproportionate and unnecessary for DC Haines to forcefully kick Mr. Aden in the genitals while he was on the ground and under control.

DC Pitre

[74] DC Pitre did not testify at trial. At the time of trial, DC Pitre was on indefinite medical leave for a serious medical condition. On consent of both parties, the transcript of his preliminary inquiry testimony was admitted for the truth of its contents.

[75] DC Pitre was one of the three officers who attended to assist in the arrest. He was in DC Balint’s car with Det. Balint, DC Higgins and DC Ditlof. They were all in plainclothes and were not wearing police vests. Before the arrest, DC Pitre was told that there was a target and that the target was with two other men. He was told that one of the men with the target had been seen adjusting the front of his waistband and touching the front of his hoodie. The takedown was ordered at 9:05 pm. by DC Balint. When Det. Balint ordered the takedown, DC Pitre was behind Det. Balint’s car. The car was parked in the plaza parking lot.

[76] At the time that the takedown was called, Mr. Aden was walking behind the other two men. The other two men were on the sidewalk. Mr. Aden was walking in the same direction but in the parking lot. DC Pitre ran towards Mr. Aden. Mr. Aden was about a car length and half away from the other two men.

[77] DC Pitre was aware from the description of Mr. Aden’s clothing that Mr. Aden was the man who had been observed earlier touching the waistband of his pants and the front of his hoodie.

[78] DC Pitre ran towards Mr. Aden and repeatedly yelled “Police, get on the ground. Police, get on the ground.” He was about 15-20 feet from Mr. Aden when he yelled at him to get on the ground. His intention was to detain but not to arrest Mr. Aden. When asked about the plan for the takedown DC Pitre testified that Det. Balint was in charge of calling the takedown. DC Pitre’s understanding was that, “[T]he targets would have been arrested and any other unknown parties obviously would have been detained.”

[79] Mr. Aden made no response when DC Pitre yelled “Police, get on the ground.” DC Pitre testified that Mr. Aden “locked eyes” with him and then turned and started to reach for his waist. DC Pitre testified that “He’s sort of blading I guess they would call it.” He testified that Mr. Aden was not complying. He said, “Because generally well, ‘Police get on the ground’ either they, people raise their hands or they get on the ground and they spread their arms.” Because of the observations earlier, DC Pitre thought that Mr. Aden was reaching for a gun. DC Pitre then grabbed Mr. Aden from behind in a bear hug. He grabbed Mr. Aden’s arms to prevent Mr. Aden from moving. DC Pitre then took Mr. Aden to the ground. As he took Mr. Aden to the ground and fell on top of him DC Pitre heard other members of the team yell “Gun, gun, gun!”

[80] DC Pitre testified that while on the ground, Mr. Aden struggled and DC Pitre could not get to Mr. Aden’s hands. A short time after they were on the ground struggling, DC Pitre heard a bang. The sound was like something hitting a stop sign. DC Pitre then looked and saw a gun and magazine on the ground about ten feet away. At the time that DC Pitre heard the bang, Mr. Aden was face down on the ground with DC Pitre on top of him.

[81] DC Pitre struck Mr. Aden twice in the middle of his back to make him comply and give DC Pitre his hands. At this point DC Miller was helping. DC Doyle also assisted. They got Mr. Aden’s hands out from underneath him and DC Miller handcuffed Mr. Aden. DC Pitre advised Mr. Aden that he was under arrest for possession of a firearm and advised him of his right to counsel.

[82] DC Pitre did not see DC Miller until he was already on the ground with Mr. Aden and DC Miller helped him to subdue Mr. Aden. DC Pitre recalled that when he heard the bang and looked up and saw the gun and magazine he also saw DC Haines near the gun and magazine with his firearm drawn.

Mohamed Aden

[83] Mr. Aden testified on the Charter applications and trial.

[84] Mr. Aden testified that on June 21, 2017 he went to McDonald’s. He spoke to some people outside and then went into McDonald’s to get food and eat it. He then went back outside and asked someone for a cigarette. He did not remember if he was adjusting his pants while he was standing outside McDonald’s. He was wearing black sweat pants with basketball shorts under the sweatpants. At the time he was thin and needed shorts under his sweatpants to keep them up. He was 5’8” or 5’9” and weighed 147 pounds.

[85] After smoking the cigarette he went back into McDonald’s to refill his drink. When he went back out he decided to go to the convenience store to buy cigarettes. He asked his friend “Chunnel” to come to the store and “Chunnel” asked Jiovan to come with them.

[86] The three walked to the plaza. Mr. Aden was a bit behind the other two as they approached to plaza. He heard Jiovan yell “What the fuck?” and then he heard voices say “Get on the ground. You are under arrest.” He then saw what he described as a “bunch of white men with guns” running from the plaza parking lot. Mr. Aden tried to turn to see what was going on and saw more white men coming from the other direction. At that point, he felt someone grab him from behind. He felt himself lifted into the air and thrown to the ground. He testified that he had not reached for his waistband before he was tackled.

[87] Mr. Aden testified that he did not know that the men were police when they approached him. He did not know what was happening and he was scared and shocked. He did not hear anyone say police and he did not see anything that would identify the men as police.

[88] Mr. Aden testified that he did not have a gun and did not throw anything away.

[89] Mr. Aden landed facedown and felt a knee in his back. His arms were underneath him. The officers on top of him struck him, took his arms out from under him and handcuffed him.

[90] After Mr. Aden was handcuffed, three officers were around and on top of him. One had a knee on his back. He asked the officers to get off his back and the officers said “Don’t resist. Don’t resist.” Mr. Aden testified that after this he was struck forcefully multiple times. Mr. Aden believed that more than one person was hitting him because he felt 4 to 5 blows at the same time. it felt as if he was struck with fists and kicks. At one point it felt as if he was hit with an object. The kicks were to his lower body including his groin area. The punches were to his upper back. As he was hit, Mr. Aden was yelling and grunting. When the blows continued, Mr. Aden stopped yelling.

[91] Mr. Aden heard onlookers yelling. The beating then eased up. After the blows stopped, the police continued to hold Mr. Aden on the ground with one officer kneeling on his back. He remained on the ground until uniformed officers arrived to take him to the station. At that point someone put him in to a sitting position. He recalled someone putting his hat on his head and his hood up. He threw his head back and the hat and hood came off.

[92] He did not ask for help or medical attention from the police who had beat him because it did not make sense to do so. He did not ask the uniformed officers or the booking Sergeant because he was scared and trying to process the events. He had never been arrested and brought to a police station before.

[93] The in-car video shows Mr. Aden shifting to try to get comfortable. In the booking Mr. Aden does not show any obvious signs of pain.

[94] When he was asked if he was injured during the booking at the station he shook his head.

[95] Mr. Aden testified that he was bruised and sore after the arrest. He was particularly sore by the next day. He asked to see the nurse at the jail but was not sent to see the nurse. He did not seek medical attention after he was released from jail 13 days later. He did not raise the issue of the beating before trial because he did not think that he would be believed.

[96] Mr. Aden did not know that there was a video recording of part of his interaction with the police until a few months before trial. He came to learn of the video through a friend who had seen the video on a social media platform. When he learned of the video, Mr. Aden gave the information to his lawyer and did not contact the witness who had recorded the incident.

[97] Mr. Aden agreed under cross-examination that he could have bought cigarettes at the gas station that was closer to McDonalds. He was questioned about the fact that at the police station he had only $1.25 and this was not enough to buy a pack of cigarettes. He testified that he had $30 when he first went to McDonalds and he used about $10 to buy food. He had about $20 in his pocket after McDonalds. He believed it must have fallen out of his pocket during the arrest.

[98] Under cross-examination Mr. Aden agreed that in his neighbourhood the residents were mostly visible minorities but that there were some white people in the neighbourhood. He agreed that police in his neighbourhood often stopped visible minorities. He agreed that he had felt verbally harassed by the police in the past. He disagreed that the police officers in the neighbourhood were mostly white. He disagreed with the suggestion that when he saw white men coming at him with guns he must have known that they were police. It was suggested to him that he knew that it was not a robbery and that he knew that it was police. He said that he did not know what it was.

[99] It was suggested to Mr. Aden that he ran and that he turned to find an escape route. Mr. Aden said that the men had guns and he did not run because he did not want to get shot.

Anthony Cristobal

[100] On June 21, 2017, Anthony Cristobal was in his car in the parking lot of the plaza where the arrest of Mr. Aden occurred.

[101] Mr. Cristobal video-recorded portions of the arrest on his phone.

[102] Mr. Cristobal testified that he saw 3 black males walking towards the area of the plaza. He then saw multiple vehicles and white men who he believed were police running towards the three black men. He heard the police yell “Freeze!” and “Get to the ground!” He saw at least one of the white men wearing a vest that said ”police”.

[103] Mr. Cristobal saw one of the police officers “slam” one of the black men to the ground. He described the black man as the “grey hoodie guy” and it is conceded that this was Mr. Aden. He testified that Mr. Aden did not run, that he did not have a chance to run. He heard one police officer ask “Where’s the gun?” and heard one of the black males say “What gun?” Mr. Cristobal saw a police officer kick a gun from an area near the street towards Mr. Aden.

[104] After Mr. Aden was on the ground and handcuffed, Mr. Cristobal saw the police officer kicking Mr. Aden. He saw a minimum of 3-4 kicks. Mr. Cristobal believed that the officer who kicked the gun was the same officer who kicked Mr. Aden. There were 4-5 officers around Mr. Aden. One officer had his knee on Mr. Aden’s back.

[105] Mr. Cristobal saw Mr. Aden on his stomach with at least one officer on top of him for the whole encounter and until the uniform officers arrived.

[106] Mr. Cristobal took two videos. The first was midway through the arrest. The video shows part of one kick. Mr. Cristobal testified that there were kicks before and after the first video. The second video was at the end of the arrest with Mr. Aden and the other two males on the ground.

[107] Mr. Cristobal testified that the arrest took 10 minutes or more. The kicking took at least one minute. During the time that Mr. Aden was being kicked he was screaming. Mr. Cristobal saw Mr. Aden being taken to the police car afterwards. He agreed that Mr. Aden was not limping. He testified that Mr. Aden’s face was “scrunched up” and he looked like he was in pain.

[108] Mr. Cristobal testified that he took out his phone because he was concerned about the police using inappropriate force. He pulled out his phone to record the interaction as soon as he felt comfortable and felt the police were not watching him. Mr. Cristobal testified that his phone battery died after the first video and he had to plug it in to recharge before recording the second one.

[109] Mr. Cristobal posted one of the videos to SnapChat on the day of the arrest. He did not know Mr. Aden. He did not ever speak to Mr. Aden before coming to court to testify.

The videos

[110] The two videos taken by recorded by Mr. Cristobal are very brief. The first is about 8 seconds and the second is about 10 seconds. The first video shows DC Haines winding up as if to kick a soccer ball and then following through and kicking the person on the ground who we know to be Mr. Aden. Det. Balint is visible standing behind and to the right of DC Haines. He appears to be on his phone but also appears to look towards DC Haines as he kicks.

[111] In the second video, DC Haines is smiling and appears to be speaking to DC Doyle who is standing nearby. DC Pitre is on top of Mr. Aden with his knee on Mr. Aden’s back. One of the other detained men is on the ground a short distance from Mr. Aden and the stop sign.

Findings of Fact

Credibility and Reliability of the police witnesses

[112] As I will discuss in more detail with respect to the facts that are essential to a determination of the issues in this case, there are serious credibility and reliability issues with respect to the testimony of all of the police witnesses in this case.

[113] I find that DC Haines deliberately lied about his application of force to Mr. Aden. He denied applying any force to Mr. Aden and denied having any involvement in the arrest because Mr. Aden was under control. He testified that he focused his attention on the gun. Once he was confronted with the video of him kicking Mr. Aden, he testified under cross-examination that he had no recollection of doing so. In re-examination he testified that Mr. Aden must not have been under control and that a kick was required to control him.

[114] I reject the explanation that DC Haines gave for his testimony in-chief after he viewed the video. In his evidence-in-chief DC Haines did not describe any difficulty in recalling the events and his actions. He was clear in his initial evidence that he stood near the gun and focused his attention on it during the time that other officers were with Mr. Aden. He was clear that he did so because Mr. Aden was under control.

[115] In light of the credibility issues with respect to DC Haines’ testimony concerning the use of force, I have approached the balance of his testimony with caution.

[116] DC Doyle testified that although he was physically assisting in the arrest and handcuffing of Mr. Aden, he did not see anyone kick Mr. Aden while he was on the ground. He was only aware of the 3-4 punches he delivered to Mr. Aden’s back. It is not credible that DC Doyle would be unaware of the kicks delivered by DC Haines given his proximity to Mr. Aden at the time of the kicks. DC Doyle did not believe that DC Pitre remained on top of Mr. Aden after Mr. Aden was under control and handcuffed. The second video taken by Mr. Cristobal shows DC Doyle apparently in a conversation with DC Haines while DC Haines points at Mr. Aden on the ground with DC Pitre on top of him. I find DC Doyle’s evidence to be unreliable.

[117] DC Miller testified that he was certain that no one kicked Mr. Aden. DC Miller was on top of Mr. Aden when DC Haines kicked him. It is not credible that he was not aware of the kick. DC Miller also testified that once Mr. Aden was under control he flipped him over and sat him up. He added the detail that when he asked Mr. Aden his name, Mr. Aden said “Fuck you”. He said that he left the area after sitting Mr. Aden up and leaving him with the other officers. The second video shows that Mr. Aden remained on his stomach on the ground with DC Pitre on top of him and DC Doyle and DC Haines overlooking him.

[118] DC Miller gave detailed evidence concerning the arrest and use of force. His evidence is contradicted by the video evidence and the testimony of Mr. Cristobal.

[119] Det. Balint testified that after he arrested one of the other two men he left that detainee with another officer and went to Mr. Aden. He testified that he saw no use of force against Mr. Aden. The first video taken by Mr. Cristobal shows Det. Balint standing near DC Haines at the time that DC Haines kicks Mr. Aden. Det. Balint appears to look at DC Haines as he kicks Mr. Aden. It is not credible that Det. Balint failed to notice the forceful kick delivered by DC Haines to the suspect on the ground.

[120] DC Pitre also failed to mention the kicking of Mr. Aden. He was not confronted with the video because he was not available to testify at trial. Like the other officers who were on or next to Mr. Aden, DC Pitre had to be aware of DC Haines kicking Mr. Aden.

Credibility and Reliability of the Evidence of Mohamed Aden

[121] I accept the evidence of Mohamed Aden. His evidence that he was beaten by the police when he was arrested is credible and it is confirmed by the video and the testimony of Anthony Cristobal. Mr. Aden’s testimony was internally consistent and it was consistent with the evidence of Mr. Cristobal and the video evidence.

[122] There are some parts of Mr. Aden’s evidence that require further examination. One part of his evidence that was not consistent with the other reliable and credible evidence in the trial was his testimony that he was on his way to purchase cigarettes when he was arrested. He did not, at the time of booking, have enough money to purchase cigarettes. It is possible, as he speculated, that the rest of his money fell out of his pockets during the struggle. Another minor discrepancy in his evidence was that although he testified that he had trouble keeping his pants up and this may have caused him to adjust his pants, the video of his booking does not show him trying to adjust his pants or hold them up. He explained that the police had, by then, rolled up his pants. Finally, Mr. Aden did not seek medical attention from the police on the night of his arrest or after he was released from custody 13 days later. I accept his explanation that he was too scared and confused to seek assistance on the night of the arrest and that his injuries were no longer as serious by the time he was released from custody. To the extent that these areas of his testimony were vague and somewhat inconsistent with other evidence, I find that this does not detract from Mr. Aden’s overall credibility and reliability.

[123] I accept his evidence that he did not think that the men running at him were police because he did not have time to process the events. I accept that he did not run but froze and turned to see who was coming from behind him. This part of his evidence is supported by Mr. Cristobal and by DC Pitre.

Credibility and Reliability of Anthony Cristobal

[124] Anthony Cristobal was an independent and credible witness. He did not know Mr. Aden. He recorded part of the arrest but was unable to record the whole incident. His testimony is supported by the video evidence to some extent. His evidence was consistent and clear. He was challenged on his failure to record all of the events and offered an explanation that makes sense and that I accept.

[125] I have considered that the events observed by Mr. Cristobal were fast moving and disturbing. I have considered that Mr. Cristobal was trying to watch all three arrests and I accept that there were inevitably aspects of the arrests that he would not have seen. He conceded that he did not see everything that occurred. However, I find Mr. Cristobal’s evidence reliable with respect what he said that he could and did observe.

The Force used in the Arrest

[126] I find that DC Haines, as described by Mr. Cristobal, kicked Mr. Aden 3-4 times after Mr. Aden was handcuffed and while he was face down on the ground with three police officers on or around him.

[127] Mr. Cristobal’s evidence was credible and reliable. The video evidence shows one kick. I rely on Mr. Cristobal’s evidence and the evidence of Mr. Aden that he felt several forceful blows after he was handcuffed. I find that kicks were delivered after Mr. Aden was handcuffed and under control.

[128] For the reasons set out above, I find the police evidence on this point not to be credible or reliable.

[129] I find that Mr. Aden was kicked unnecessarily and unreasonably given that he was fully subdued at the point that he was kicked.

[130] I further find, on the basis of the video evidence, and the testimony of Mr. Aden and Mr. Cristobal, that Mr. Aden was held face down on the ground with DC Pitre on top of him after he was handcuffed and under control and until the uniform officers arrived. I accept the evidence of Mr. Aden that the officer on top of him was placing pressure on Mr. Aden’s back. Mr. Aden is a small man and the officer on top of him was a large man.

[131] I find that it was unnecessary and unreasonable for DC Pitre to remain with his weight on Mr. Aden after he was handcuffed and under control.

The Provenance of the Gun

[132] I accept the evidence of Mr. Cristobal that DC Haines kicked the gun towards Mr. Aden after Mr. Aden was subdued and handcuffed and after DC Haines kicked Mr. Aden. I reject DC Haines’ evidence on this point. DC Haines is simply not credible. His evidence concerning his actions and his observations of the gun are not credible. He claimed to have focused his attention on the gun and to have not participated in the arrest. That was clearly not true.

[133] I reject the evidence of DC Haines that he saw Mr. Aden take the gun out of his pants and throw it over his head to hit the stop sign. DC Haines is not a credible or reliable witness.

[134] I also reject the evidence of DC Miller that he saw Mr. Aden take out the gun from his pants and fling it over his head while he was being held in a bear hug from behind by DC Pitre.

[135] I reject DC Miller’s evidence because of the credibility issues outlined above. He denied observing the kicks by DC Haines and this is not credible. Even if I were to find that DC Miller genuinely missed the forceful soccer-type kick delivered to a suspect he was holding at the time, I could not rely on DC Miller’s powers of observation. If he did not see that kick, I cannot find that he could accurately observe and recall the movements of Mr. Aden prior to Mr. Aden being taken to the ground.

[136] DC Miller’s evidence is also inconsistent with the evidence of DC Pitre that DC Pitre heard a ‘bang’ like something hitting a stop sign after he had been struggling for some time on the ground with Mr. Aden.

[137] I accept that the police found a gun, but I do not accept that either DC Miller or DC Haines saw Mr. Aden throw the gun.

[138] Mr. Aden testified that he did not possess a gun and that he did not throw the gun and magazine that the police found on the ground on the night of his arrest. I accept his testimony.

Grounds for the Arrest

[139] All of the police witnesses endorsed the view that persons in the company of a target of a search warrant could be detained, searched and held until after the search warrant was executed. They testified this was to ensure the safety of the officers arresting the target and to prevent the destruction of evidence.

[140] DC Miller believed that he had grounds to arrest Mr. Aden because of Mr. Aden adjusting his clothing at McDonald’s.

[141] Det. Balint, who ordered the takedown, did not believe that the clothing adjustment provided grounds for arrest or detention. Det. Balint ordered the arrest of the target and the detention of the other two men to ensure officer safety.

[142] DC Haines understood that the target would be arrested, Mr. Aden would be detained and investigated for possession of a firearm and the third person would be detained to facilitate the execution of the warrant.

[143] DC Doyle understood that the target would be arrested and that the two other men would be detained to ensure safety and to prevent the destruction of evidence.

[144] DC Pitre, when he ordered Mr. Aden to get to the ground, was doing so on the basis that Mr. Aden could be detained to facilitate the execution of the search warrant. After Mr. Aden turned his body, DC Pitre believed Mr. Aden had a gun. Although DC Pitre did not specifically articulate his grounds for tackling Mr. Aden to the ground after he saw Mr. Aden turn his body, it is implicit in his testimony that DC Pitre believed at that point that he had grounds to arrest or investigatively detain Mr. Aden for possession of a firearm.

Analysis

Arbitrary Detention

[145] In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, the Supreme Court of Canada articulated the test to be applied in determining whether a brief investigative detention by the police is lawful. At para. 34 of the judgment, Iacobucci J. wrote:

The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.

[146] R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, Abella J. writing for the majority, summarized the development of the law in relation to investigative detention at paras. 25 to 31:

25 In R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, at para. 18, this Court accepted the following test developed by Doherty J.A. in R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.) at p. 499, for assessing whether police interference with individual liberties was justified:

[T]he justifiability of an officer's conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference.

26 In determining the boundaries of police powers, caution is required to ensure the proper balance between preventing excessive intrusions on an individual's liberty and privacy, and enabling the police to do what is reasonably necessary to perform their duties in protecting the public. It was expressed by Le Dain J. in Dedman v. The Queen, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, as follows:

The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference. [p. 35]

30 The justification for a police officer's decision to detain, as developed in Dedman and most recently interpreted in Mann, will depend on the “totality of the circumstances” underlying the officer's suspicion that the detention of a particular individual is “reasonably necessary”. If, for example, the police have particulars about the individuals said to be endangering the public, their right to further detain will flow accordingly. …

31 The determination will focus on the nature of the situation, including the seriousness of the offence, as well as on the information known to the police about the suspect or the crime, and the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope. This means balancing the seriousness of the risk to public or individual safety with the liberty interests of members of the public to determine whether, given the extent of the risk, the nature of the stop is no more intrusive of liberty interests than is reasonably necessary to address the risk.

[147] The Crown conceded that the police did not have grounds to detain Mr. Aden on the basis of his presence accompanying a target of a search warrant. That is clearly the case. It is troubling that every police officer involved in this case appeared to believe that it was lawful to detain and search a person simply because that person was with a target whose residence was about to be searched.

[148] Mr. Aden’s movements at McDonald’s as observed and described by DC Miller did not, inthemselves, provide grounds for arrest. Det. Balint, who was the officer in charge of calling the takedown, testified that such movements were ambiguous and would not provide grounds for arrest or detention without more.

[149] The Crown argues, however, that the movements observed and described by DC Miller, in combination with the movements described by DC Pitre of Mr. Aden turning and ‘blading’ when DC Pitre told him to get on the ground, provided grounds to arrest Mr. Aden or at least to investigatively detain him. The Crown argued that Mr. Aden was not detained until he was physically held by DC Pitre because he fled and failed to submit to the direction of DC Pitre to get on the ground.

[150] To decide whether the detention was arbitrary, I must determine when Mr. Aden was detained. In R. v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353 and more recently in R. v. Le 2019 SCC 34, the Supreme Court of Canada explained the approach to resolving the question of the timing of a detention. In Grant, at para. 31 the Court provided three non-exhaustive factors:

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[151] I find that Mr. Aden was clearly detained before he turned his body. He was detained at the point that DC Pitre told him to get on the ground. At that point DC Pitre was advancing on him from one direction and DC Miller from the other. He had been told to get on the ground. He was not free to move. I accept Mr. Aden’s evidence that he did not flee. I find that at the point that DC Pitre ordered him to the ground the police had no grounds to detain him. The only stated basis for the detention was because he was with the target of the search warrant and he had suspiciously adjusted his clothing. His detention was arbitrary.

[152] Section 24(2) of the Charter provides that evidence that is obtained in a manner that infringed or denied an accused person’s Charter rights “shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

[153] In Grant, the Supreme Court of Canada set out at para. 71 the approach to the exclusion of evidence under s. 24(2):

[A] court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[154] In this case, the seriousness of the Charter-infringing state conduct and the impact on the Charter-protected interests of the accused strongly favour exclusion.

[155] The Charter-infringing state conduct was extremely serious and impacted significantly on the liberty interest of Mr. Aden. The police all expressed the view that the imminent execution of a search warrant justified the detention of anyone with the target of the search warrant and that this was a routine procedure. This demonstrates a serious systemic problem in the training of the police. As the Supreme Court explained in Le, “the reputation of the administration of justice requires that courts should dissociate themselves from evidence obtained as a result of police negligence in meeting Charter standards.”

[156] The impact on Mr. Aden’s Charter-protected interests was also serious. There was actual physical constraint of Mr. Aden and the application of significant force.

[157] The third inquiry, society’s interest in the adjudication of this case on its merits, favours admission. The offences in this case are extremely serious and are of concern to the community. The prosecution of Mr. Aden must fail without the evidence of the gun and magazine.

[158] In this case, I reach the conclusion that, given the conduct of the police, the Charter-infringing conduct is so serious and the impact on the Charter interests of the accused so substantial that the evidence of the gun and magazine must be excluded.

Proof of Offences

[159] In the event that I am mistaken in my conclusion that the gun and magazine should be excluded, I have gone on to consider whether, with the evidence of the gun and magazine, the Crown has proved the guilt of Mr. Aden beyond a reasonable doubt. I find that the offences have not been proved beyond a reasonable doubt.

[160] I will not repeat my assessment of the credibility and reliability of the witness and the findings of fact set out above. As I have already explained in these reasons, I accept the evidence of the accused. I find his evidence that he did not have or throw a gun to be credible. I have considered his evidence in the context of all of the evidence. The evidence of DC Miller and DC Haines is not credible and reliable with respect to the throwing of the gun. Their evidence is also inconsistent with the evidence of DC Pitre that he heard a bang after he was on the ground with Mr. Aden. The evidence of Mr. Cristobal that the gun was kicked towards Mr. Aden further supports the testimony of Mr. Aden that he did not have the gun. The two other men, including the target of the investigation, were arrested close to Mr. Aden after they tried to run away from the police. The gun could have been thrown by either of those men.

[161] I therefore would have found Mr. Aden not guilty of the offences even if I had not excluded the evidence of the gun and magazine.

[162] In light of my conclusions on the s. 9 application and the trial, it is not necessary for me to address the application to stay based on unreasonable force.

Conclusion

[163] I find Mr. Aden not guilty of both charges.

Forestell J.

Released: August 20, 2019

R. v. Mohamed Aden, 2019 ONSC 4890

Case Summary

Overview

Issues

Conclusions

Summary of the Evidence

DC Chris Miller

DC Richard Haines

Det. Michael Balint

DC Chris Doyle

DC Pitre

Mohamed Aden

Anthony Cristobal

The videos

Findings of Fact

Credibility and Reliability of the police witnesses

Credibility and Reliability of the Evidence of Mohamed Aden

Credibility and Reliability of Anthony Cristobal

The Force used in the Arrest

The Provenance of the Gun

Grounds for the Arrest

Analysis

Arbitrary Detention

Proof of Offences

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 3

Legislation 6