COURT FILE NO.: CR-19-5000420-0000
DATE: 20190917
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DUJON ANDRE TAYLOR Defendant/applicant
COUNSEL: Paul Zambonini, for Her Majesty the Queen Elliott Willschick, for the defendant/ applicant
HEARD at Toronto: September 12, 2019
Reasons for Decision
Low J. (Orally)
[1] The defendant Dujon Taylor brings an application under s. 24(1) of the Charter for a stay of proceedings against him.
[2] It is said that his rights under ss. 7 and 12 of the Charter were violated by police at the time of his arrest on April 15, 2018. It is said that unnecessary or excessive force was used against him and that the only remedy capable of redressing the resulting harm to the integrity of the justice system is a stay.
[3] The application was launched following the close of the Crown's case and this defendant's election to call no evidence. No evidence was filed in support of the application. The defendant relies on the evidence adduced in the course of the Crown case.
[4] The applicable law is not in dispute.
[5] The test for a stay where the court has found an unnecessary or excessive use of force in abuse of police powers is stated in Regina v. Babos, 2014 SCC 16, [2014] S.C.J. No. 16 at paras 31 -32:
There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" (Regan, at para. 54);
There must be no alternative remedy capable of redressing the prejudice; and
Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits"
[6] A stay of proceedings should be imposed only in the exceptional and clearest of cases (see Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, [1997] S.C.J. No. 82 at para 91).
[7] There is no suggestion that police conduct in the manner of effecting Mr. Taylor's arrest would have any impact on his right to a fair trial. Mr. Taylor's application relies on the assertion that there was an unnecessary or excessive use of force on him that prejudices the integrity of the justice system to the extent that the court should denounce the use of force by staying the prosecution. The factual and evaluative question to be addressed is whether the police conduct has been so offensive to societal notions of fair play and decency that proceeding with a trial on the merits would be harmful to the integrity of the justice system.
[8] The first issue to consider is whether there was a use of force that was unnecessary or excessive in the circumstances.
[9] Mr Taylor sustained a cut to the back of his head in the course of the arrest that required six staples. Defence argues that this is in itself indicative of severe or significant injury. The fact that Mr. Taylor sustained that injury as well as a swollen bruising to his cheekbone is not in dispute. Nor is the fact that he was struck several times by officers trying to get control over him and to prevent him further using his automobile as a weapon.
[10] Whether the laceration was a severe or significant injury is a matter about which reasonable people could reasonably disagree. There is no medical evidence. There is also no evidence as to the length or depth of the laceration, its location on Mr. Taylor's head, or as to any sequelae. The fact of the laceration and the method used to close it is not, in my view, in itself determinative of whether the force used was unnecessary or excessive in the circumstances.
[11] It is argued that because the laceration was on the back of Mr. Taylor's head, that it had to have been inflicted on him as punishment after he had been subdued and put onto the ground front down and thus unable to resist further. It is said that the laceration was inflicted by Officer Jugpall with his firearm after it was accidentally discharged and after Mr. Taylor stated that he thought he had been shot. The defence argues that Officer Jugpall should not be believed when he testified that he holstered his gun in the time that lapsed between the discharge of his firearm and getting Mr. Taylor on to his stomach on the ground. It is said that Officer Jugpall's denial of hitting Mr. Taylor on the back of the head after he had been subdued and put on the ground face down should be rejected.
[12] I found Officer Jugpall's evidence to be, on the whole, frank and credible. It was not contradicted by any credible and reliable independent evidence.
[13] There is no direct evidence that Officer Jugpall struck Mr. Taylor on the back of his head after he had been subdued.
[14] I do not accept the evidence of Mr. Taylor's nephews, Mr. Thomas-Barrett and Mr. McLean, other than for their biographical details and the main outline of their respective arrests. They were removed from the Kia on the passenger side. Mr. Thomas Barrett was placed on the ground on his front with feet toward the convenience store and Mr. McLean was taken to another car. There was no evidence from these individuals to the effect that they saw Mr. Taylor being struck on the head after being subdued. They would not, in my view, have physically been in a position to see from their vantage points the specific movements relating to Mr. Taylor which were in the car, beside the driver door or on the ground next to the driver door.
[15] Both of Mr. Thomas-Barrett and Mr. McLean testified that they heard Mr. Taylor saying, "I'm not resisting; I just want my shoes". On this point, the two witnesses gave unequivocal and almost identical evidence. In my view, the evidence of Mr. Thomas-Barrett and Mr. McLean had about it the badge of collusion in that on the single point calculated to lead to an inference that Mr. Taylor was not resisting and thus supporting this application, their evidence was on all fours with each other whereas on other material points, their evidence had the air of invention on the fly. On matters other than the evidence as to Mr. Taylor's declaration that he was not resisting, the evidence of both individuals was internally inconsistent, in conflict with evidence given at the preliminary inquiry, and physically implausible.
[16] I find that there was a struggle between Officer Jugpall and Mr. Taylor that did not end until Office Taylor came to Officer Jugpall's assistance to gain control over Mr. Taylor after the gunshot was heard.
[17] I find that the struggle was occasioned first by Mr. Taylor weaponizing his automobile in the attempt to escape when three of the car doors were open and three officers were in the lea of the open doors attempting to arrest the occupants. By putting his automobile into reverse with the doors open and police officers standing behind the open doors, Mr. Taylor drove his car doors into the legs of the police officers, and, but for the presence of the unmarked Buick blocking him in, would more likely than not have knocked the officers to the ground and dragged them. The collision of the Kia into the Buick stopped the attempt to escape and most likely prevented serious injury to the officers. I find that a struggle ensued as a result of Mr. Taylor's attempt to escape and continued as a result of Mr. Taylor's refusal to submit to control. I accept the evidence of Officer Jugpall that Mr. Taylor continued to flail and kick after he had been pulled out of the car. Officer Jugpall acknowledged that he struck Mr. Taylor with his firearm more than once in his effort to subdue him. I find that he did not succeed in getting control over Mr. Taylor until Officer Taylor arrived to assist him.
[18] As noted above, there is no direct evidence that Officer Jugpall hit Mr. Taylor on the back of the head as punishment after he had been subdued. It is argued on behalf of the applicant that this is a fact that could and should be inferred from the location of the wound on the back of Mr. Taylor's head and from Officer Jugpall's evidence that he did not remember seeing blood on the ground. I would note, however, two countervailing points from Officer Syed's testimony: first, that when Mr. Taylor was reversing the car, he, Officer Syed, hit Mr. Taylor on the back of the head in order to get him to stop, and second, that when he heard the sound of a gunshot, there was blood on the ground.
[19] I am not satisfied, on a balance of probabilities, that Mr. Taylor was struck on the back of the head after he had been subdued.
[20] In my view, the circumstances entailed a violent resistance to arrest. Officer Jugpall testified that when the defendant reversed the car with him partially in it trying to extract Mr. Taylor, he thought he was going to die that day. After failing to escape by reversing the car, Mr. Taylor engaged in a physical struggle with Officer Jugpall and was not successfully brought under control until Officer Taylor arrived to assist. I am not persuaded that the force used was unnecessary or excessive in the circumstances.
[21] As the foregoing factual findings are determinative of the application, it is in my view not necessary to apply the tests in R. v. Babos.
[22] The application is dismissed.
___________________________ Low J.
Released: September 17, 2019
COURT FILE NO.: CR-19-5000420-0000
DATE: 20190917
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DUJON ANDRE TAYLOR Defendant
REASONS FOR CHARTER RULING
Low J.
Released: September 17, 2019