COURT FILE NO.: CR/18/30000580/0000
DATE: 20191007
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
DEREK MACISAAC
Applicant
COUNSEL: Alexandra Penny, for the Respondent Crown Hussein Aly, for the Applicant
HEARD: September 16, 17, 18,19 20, 25 and 26, 2019
BEFORE: Forestell J.
RULING ON CHARTER APPLICATIONS
Overview
[1] Derek MacIsaac is charged with seven firearms-related charges all arising from his alleged possession of a loaded Walther 9 mm handgun. He is also charged with two counts of possession of cocaine for the purpose of trafficking relating to his possession of approximately one ounce of powder cocaine and one ounce of crack cocaine. He pleaded not guilty to the charges.
[2] The charges against Mr. MacIsaac arise from his arrest on May 14, 2017. On that date, sometime shortly before 8:55 pm Detective Wauchope of the Gun and Gang Task Force received information from a confidential informant (CI) that there was a male in possession of a handgun at Buddy’s Bar in Toronto. According to the testimony of Det. Wauchope, the information provided by the CI was that the man was drinking and pulled out a handgun. The CI described the man as black with light skin, medium build, and approximately 20-24 years old. The clothing of the male was described as a black Adidas jacket with white stripes on the sleeves, dark pants and black and white Jordan shoes.
[3] Det. Wauchope briefed his team on the tip provided by the CI. Four members of the team, DC’s Haffejee, Duran, McKenzie and Canning went to the bar and set up surveillance at about 9:25 pm. Det. Wauchope and two other members of the team, DC Luczyk and DC Taylor, went to an unrelated investigation. Det. Wauchope was in charge of the investigation at Buddy’s bar. DC Haffejee was the road boss who made the decisions when Det. Wauchope was not present.
[4] The objective of the attendance at Buddy’s Bar was to try to confirm the information and if it could be confirmed, to arrest the person with the gun.
[5] At approximately 9:30 pm Mr. MacIsaac was seen outside Buddy’s Bar. He was wearing dark pants, a black Adidas jacket with white stripes on the sleeves and black and white Jordan shoes.
[6] DC McKenzie testified that he saw Mr. MacIsaac holding his left hand pressed against his left waistband as he walked around the back of a taxi and entered the rear driver’s side door of the taxi. Two other men entered the front passenger seat and the rear passenger side seat of the taxi. DC McKenzie broadcast to the other officers what he had seen. The training of all officers led them to interpret this as a sign that Mr. MacIsaac could be armed.
[7] DC’s Haffejee, Duran, McKenzie and Canning followed the taxi. At 10:02 pm when the taxi was coming to a stop outside an apartment building at 400 McCowan Road, DC Haffejee, ordered the takedown of the taxi and its occupants.
[8] The taxi was surrounded by the police. Mr. MacIsaac was pulled forcibly from the taxi and put to the ground. The other two passengers were brought out about 30-40 seconds later and also put to the ground forcibly. A gun was located by DC McKenzie in the rear seat of the taxi near the passenger side seat.
[9] Mr. MacIsaac was struck on the back-left side of his head with a metal object, likely the barrel of a firearm, by a police officer.
[10] On Mr. MacIsaac’s evidence, he was struck by a police officer after he had been taken from the taxi and was lying on the ground, facedown with his hands behind his back.
[11] DC McKenzie testified, however, that he struck Mr. MacIsaac on the head with the barrel of his gun while Mr. MacIsaac was inside the taxi. DC McKenzie testified that he administered the blow to distract Mr. MacIsaac because DC Duran had yelled ‘gun’ and Mr. MacIsaac was leaning towards the passenger side. DC McKenzie could not see Mr. MacIsaac’s hands and believed that Mr. MacIsaac could be attempting to use a gun.
[12] Mr. MacIsaac brought two pre-trial 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 the cocaine on the grounds that his rights under ss. 8 and 9 of the Charter were infringed because the police did not have reasonable and probable grounds to arrest and search him.
Issues
[13] The issues that I must determine are:
Did the police strike Mr. MacIsaac with a firearm after his arrest and detention? It was conceded by the Crown that, in the circumstances of this case, if the police struck Mr. MacIsaac with a firearm while he was on the ground and compliant, the force used would be unreasonable and excessive and a violation of s.7, justifying a stay of proceedings under s.24(1) of the Charter; and,
Was the arrest of Mr. MacIsaac lawful? That is, did the police have reasonable and probable grounds to arrest Mr. MacIsaac? If the arrest was lawful, it was conceded that the police would have been authorized to search Mr. MacIsaac and the car incident to arrest. The evidence would be admissible. If the arrest was not lawful, the Crown submitted that the gun was in plain view and could, in any event have been seized. If the arrest was not lawful, it was conceded that the search of Mr. MacIsaac and seizure of the cocaine would have violated his rights under ss. 8 and 9. If there was a violation, the Crown argued that the evidence should not be excluded under s.24(2).
[14] For the reasons that follow, I have concluded that the police used excessive and unreasonable force following the arrest of Mr. MacIsaac and violated his s.7 rights. I find that there are serious credibility problems with the evidence of officers Wauchope, Haffejee, McKenzie and Duran. I find that the account of Mr. MacIsaac is credible, reliable and supported by other credible and reliable evidence from Brenda Anyon. Based on the totality of the evidence, I find that Mr. MacIsaac has proven on a balance of probabilities that he was struck with a firearm by a police officer while he was lying face down on the ground with his hands behind his back. I find that the force used against Mr. MacIsaac was unreasonable and excessive and that the integrity of the judicial process would be undermined by allowing the prosecution of Mr. MacIsaac to proceed. I find that the charges must be stayed pursuant to s.24(1) of the Charter.
[15] In light of my conclusion on s.24(1) it is unnecessary for me to address the application to exclude the evidence under s.24(2).
Summary of the Evidence
Evidence relating to the Grounds for the Arrest: The Confidential Tip and Observations
[16] In light of my conclusions on the issue of the stay, I will not address the evidence relating to the grounds for the arrest of Mr. MacIsaac in detail. I have assumed for the purposes of the stay application that the police were justified in arresting Mr. MacIsaac. I have assumed that the police had reasonable and probable grounds to believe that Mr. MacIsaac was armed with a handgun.
Video Footage from 400 McCowan and Images from Taxi Camera
[17] The taxi involved in the incident was equipped with a camera that took still photographs from each of the passenger and driver sides of the taxi about every 5 seconds. The images are not clear. The timing of the images means that not every event is captured by the images. The images have some utility in establishing a general timeline and sequence of events. They show that Mr. MacIsaac was taken out of the taxi first and that Mr. Freier was not taken out for about another 30-40 seconds. They show that DC McKenzie entered the taxi, appeared to back out of the taxi and then re-entered and held the front passenger. DC McKenzie can be seen in the images in the backseat and ultimately holding something – presumably the gun. The images do not show DC McKenzie hitting Mr. MacIsaac with his gun. They do not show DC McKenzie pushing Mr. Freier into the car door.
[18] The images do show Mr. MacIsaac’s arm across the back seat before he is removed from the taxi. This image also shows the string from his jacket hanging down as if his head and shoulders are close to the seat.
[19] The video footage from 400 McCowan Road contains footage from two cameras. One camera recorded the driveway area and captured the arrival of the taxi and the police cars before the taxi and the first police vehicles drove out of the range of the camera. The second camera captured the front entrance to the building. The front of the taxi, at the time of the takedown is just visible at the corner of the frame. The video is of poor quality and offers little assistance except to confirm general timelines.
[20] Counsel for Mr. MacIsaac filed photographs depicting an additional camera at 400 McCowan that appears to be situated at a location that would have captured the arrest. It is an agreed fact that only video from two cameras was copied by security for the Toronto Community Housing Corporation (TCHC) and provided to the police. It is an agreed fact that as of the date of trial the other camera was not recording video footage.
Det. Liam Wauchope
[21] Det. Wauchope was the detective in charge of the operation. He directed the other officers in the investigation. He testified that he arrived at 400 McCowan after the arrest of the three occupants of the taxi. He instructed DC Taylor to follow the taxi to Forensic Identification Services and obtain the download from the cameras in the taxi. He went personally to the security office of 400 McCowan to obtain the video footage from the surveillance cameras.
[22] He stated that he wanted to get the video of the takedown. He spoke to the security officers present at 400 McCowan who told him that they would download the video and bring it to 43 division. He did not know the name of any security officer he spoke to. He did not know who delivered the video footage or when they delivered it. He testified that he had never seen the video.
[23] The video footage itself shows Det. Wauchope and DC Luczyk entering 400 McCowan with security from the building. They were in the building for approximately 15 minutes before emerging.
[24] It is an agreed fact that Special Constables from TCHC later downloaded video footage from two cameras, attended 43 division and provided the footage to DC Duran at 1:15 am on May 15, 2017.
[25] Det. Wauchope was aware of the injury to Mr. MacIsaac. He recalled that DC McKenzie told him that he hit Mr. MacIsaac with a firearm during the arrest. He did not ask DC McKenzie why he struck Mr. MacIsaac. Det. Wauchope testified that a use of force report should be filled out every time an officer takes out their firearm or uses force. He agreed that DC McKenzie was required to fill out a use of force report. Det. Wauchope did not see any use of force report related to this takedown.
DC Fazal Haffejee
[26] DC Haffejee was the road boss on the night of the arrest of Mr. MacIsaac. He was in charge of the operation when Detective Wauchope was not present. DC Haffejee ordered the takedown of the taxi and its occupants.
[27] All of the officers testified that, while every situation was different, it was the practice of their team to execute a takedown ‘hard and fast’. This meant using the element of surprise to control and quickly extract all of the occupants of a car.
[28] DC Haffejee testified that when the takedown was ordered he used his car to block the taxi on the passenger side. DC Haffejee went immediately to the passenger side of the taxi with his gun drawn. He was yelling at the occupants to show their hands. He focused initially on the front seat passenger (who turned out to be Kevin Reddick). Mr. Reddick raised his hands. DC Haffejee then shifted his focus to the rear seat passenger (who turned out to be Deshaun Freier). Mr. Freier also raised his hands. DC Luczyk arrived and covered the front seat passenger. DC Haffejee then focused on Mr. Freier.
[29] DC Haffejee initially testified that he immediately opened the rear passenger side door to pull out the passenger. He said that as he was pulling out Mr. Freier, assisted by DC Duran, he glanced over to the passenger in the rear seat on the driver’s side. He noticed that the passenger on the driver’s side (Mr. MacIsaac) had raised his hands but was dropping his hands. DC Haffejee testified that he yelled to the other officers, “hands, hands, watch his hands.” DC Haffejee testified that he did not see what happened with Mr. MacIsaac after that point because he was focused on taking Mr. Freier out of the car. DC Haffejee did not see a firearm in Mr. MacIsaac’s hands and he did not hear anyone yell ‘gun’.
[30] In cross-examination DC Haffejee was shown the in-car photos from the taxi. Those photos show that Mr. Freier remained in the taxi for 30-40 seconds after Mr. MacIsaac had been taken out of the taxi. When confronted with these photos, DC Haffejee’s response was that he was not as fast as he thought he was. It was suggested to him that he was not in a position to see Mr. MacIsaac’s hands dropping. DC Haffejee disagreed vehemently. He testified that he saw Mr. MacIsaac’s hands drop as he looked through the rear passenger side window. He testified, “I am at the window. I can easily through that window to see ‘hands, hands’ right?…there’s a gun in that car…our lives are at stake here. I know you’re breaking it down per second but my head turns, I can see things, I can yell to other officers. He’s still in the car sure… the car door is open… I can also see through the window…”
[31] DC Haffejee testified that he did not see the gun in the car. He did not see a gun leaning against the leg of Mr. Freier as he was covering Mr. Freier. DC Haffejee did not see anyone strike Mr. MacIsaac inside or outside the taxi.
[32] DC Haffejee testified that he was made aware of the injury to Mr. McIsaac at some point. DC Haffejee completed the injury report for Mr. MacIsaac’s injury. The report indicated that the laceration to Mr. MacIsaac’s head which required three staples or stitches to close was inflicted ‘during the arrest’. DC Haffejee testified that he knew that Mr. MacIsaac was struck but did not know any of the circumstances.
[33] DC Haffejee recalled someone mentioning that a woman questioned police about the injury to Mr. MacIsaac after the arrest but he had no contact with the woman.
[34] DC Haffejee testified in cross-examination that that he had nothing to do with obtaining the video footage from 400 McCowan. He said: “I was not the one who seized it or caused it to be seized.” In re-examination he was asked by the Crown, “My friend asked you if you had seized the video from 400 McCowan. You said no but that you had encouraged it?” DC Haffejee then said: “I asked for someone to go and get the video and look at the video and see if it was worth seizing. I was doing other things at the scene. I believe it was officer Luczyk that took care of it.”
[35] DC Haffejee testified that he took Mr. Freier out of the rear seat. On the first day of DC Haffejee’s cross-examination DC Haffejee testified that he did not remember Mr. Freier being injured. He testified that he would be shocked to hear that Mr. Freier had a black eye. DC Haffejee testified that he did not strike Mr. Freier and he did not see anyone else strike Mr. Freier. He agreed that Mr. Freier was completely compliant throughout the takedown.
[36] On the second day of his cross-examination DC Haffejee said that he had gone to look at the ‘case’ overnight and discovered that Mr. Freier had a laceration to his face and a black eye. He learned this by looking at the booking video and the injury report which he had authored. DC Haffejee testified that the injuries would probably have seen sustained when Mr. Freier was taken forcefully to the ground.
[37] When DC Haffejee was questioned about how Mr. Freier could have received lacerations to the right side of his face and a black eye on the left side from being taken to the ground, DC Haffejee said that he did not know how Mr. Freier got the black eye and that he could have had it before he got in the taxi. DC Haffejee later agreed that it was not possible that Mr. Freier had the black eye before the arrest because DC Haffejee would not have prepared an injury report attributing it to the arrest if it was a pre-existing injury. He explained that he testified that it could have been there before Mr. Freier got in the taxi because he was angry at being accused of striking Mr. Freier.
[38] DC Haffejee did not complete a ‘use of force’ report in relation to taking out his firearm during the takedown or in relation to the use of force against Mr. Freier. DC Haffejee explained that the officer in charge of the police station accepting custody of an injured detainee would insist on the completion of an injury report.
[39] The Crown re-examined DC Haffejee on the injury to Mr. Freier. The Crown asked DC Haffejee if he looked at the injury report during the break in his cross-examination. DC Haffejee said: “I looked into the picture of the guy… to see, you know, his booking picture. That’s what I looked at and then someone said, ‘oh, he’s got an injury report’ and I said ‘oh, okay, well print it out for me, let me see.’ And that was it. I didn’t go into anything else”
[40] I asked DC Haffejee who it was that said that there was an injury report. He testified that it was DC Luczyk. I permitted counsel to ask further questions concerning DC Haffejee’s interaction with DC Luczyk. In response to questions from counsel for Mr. MacIsaac, DC Haffejee testified that he went to his office after court and that DC Luczyk and DC McKenzie were in the office. DC Haffejee said, in their presence, that ‘someone said that he got punched in the face. I don’t even know what they’re talking about.”
[41] When it was drawn to DC Haffejee’s attention that the conversation with DC Luczyk was a violation of the order excluding witnesses he said it was a mistake and that he was focused on himself at the time. Later in his testimony on this point he said that when he spoke to DC Luczyk he told DC Luczyk that the defence was saying that [Freier] had a black eye. DC Haffejee testified that he did not think that Luczyk was on the witness list but that he realized that there was always a chance that this could change. He knew that DC McKenzie was on the witness list and had not yet testified. DC McKenzie was 20-30 feet away and DC Haffejee said that he was probably within earshot.
DC Roberto Cordova
[42] Immediately following DC Haffejee’s testimony, the Crown called DC Roberto Cordova to testify. DC Cordova was the officer who had been in court throughout the voir dire evidence. DC Cordova testified that DC Luczyk had not been on the original witness list but had been added later. He testified that he had notified DC Luczyk that he may or may not be required. He texted the original witness list to DC Haffejee but did not send DC Haffejee the update with respect to DC Luczyk. DC Cordova also testified that he had been present in the office when DC Haffejee discussed the evidence with DC Luczyk. He overheard DC’s Haffejee and Luczyk talking about the injury report being located. He heard DC Haffejee reading the report and saying that he was the author. DC Cordova was two desks away from DC Haffejee when he heard DC Haffejee discussing the evidence. DC Cordova testified that DC McKenzie was in the room at the time but he could not say how far away he was.
DC Shawn McKenzie
[43] DC McKenzie testified that when the takedown was called, DC Haffejee’s car stopped on the passenger side of the taxi, DC Duran’s car stopped immediately behind the taxi and DC McKenzie’s car was behind DC Duran’s car. DC McKenzie saw DC Duran run to the rear driver’s side door of the taxi and open the door. DC Duran was standing in the open door with his shoulders squared inside the door when DC McKenzie reached the taxi. DC McKenzie had his firearm out. He assumed that DC Duran had his firearm out. DC McKenzie testified that he could not ‘get squared’ in the door because DC Duran was in the door. DC McKenzie came to DC Duran’s right side and was able to look into the cab and extend his arm into the cab with his firearm in hand. At that moment he heard DC Duran yell “gun”. DC McKenzie testified that he saw Mr. MacIsaac turn and lean away from the open door. DC McKenzie did not see a gun but he could not see Mr. MacIsaac’s hands. At that point, DC McKenzie delivered a ‘distractionary strike’ to Mr. MacIsaac’s head with the barrel of his firearm. At that same moment, DC Duran reached in and grabbed Mr. MacIsaac and dragged him closer to the door, at which point DC McKenzie grabbed him as well. DC McKenzie and DC Duran then took Mr. MacIsaac quickly out of the taxi and forced him onto the ground on his stomach.
[44] Once Mr. MacIsaac was on the ground, DC McKenzie and DC Duran secured his hands behind his back, cuffed him and searched him to try to find the gun. They did not find the gun and DC Duran then said to McKenzie that Mr. MacIsaac had tossed or thrown the gun.
[45] DC McKenzie re-entered the taxi to find the firearm. He testified that he saw what appeared to be a firearm leaning against Mr. Freier’s left thigh.
[46] DC McKenzie testified that upon seeing the firearm he dove past the gun and pushed Mr. Freier as hard as he could against the door. He also grabbed the front seat passenger (Mr. Reddick) and held on to him. DC McKenzie testified that the police officers on the passenger side of the car ultimately took Mr. Freier and Mr. Reddick out of the car and after they did so, DC McKenzie picked up the firearm and confirmed that it was a real firearm.
[47] The images from the camera in the taxi show DC McKenzie entering the backseat of the taxi, then appearing to back out of the taxi and then re-entering and holding the front passenger.
[48] After viewing the images from the taxi camera, DC McKenzie testified that when he entered the taxi and went past the gun, he “drove that passenger to the door to help the guys get him out that side…I just kind of push him to the door. The door opens and then they take him out.” DC McKenzie testified that he pushed the passenger out the door then backed out of the taxi and went in again to hold the front seat passenger. The front seat passenger was then taken out and DC McKenzie picked up the firearm
[49] The firearm was a loaded Walther 9mm Ruger. DC McKenzie took the gun to a lockbox in his car and secured it. When he returned to the scene after securing the firearm he noticed that Mr. MacIsaac had a gash to the side of his head and was bleeding profusely.
[50] In cross-examination DC McKenzie agreed that when he reached into the taxi and struck Mr. MacIsaac with his gun he put himself between DC Duran and Mr. MacIsaac and therefore in the line of fire. He agreed that reaching into the taxi with his gun made a ‘gun grab’ possible.
[51] He testified that the blow that he delivered was a backhand strike.
[52] DC McKenzie did not fill out a use of force report. He testified that his understanding was that he was required to fill out a use of force report when force was used or when his firearm was out. He testified that it was an administrative form and that there are no disciplinary consequences if an officer does not fill one out.
[53] DC McKenzie testified that when he went back into the car to look for the gun, DC Duran had custody of Mr. MacIsaac. He believed that Mr. MacIsaac was handcuffed at that point.
[54] DC McKenzie recalled a woman coming through the scene after the arrest of Mr. MacIsaac but did not recall her saying anything.
[55] DC McKenzie agreed that he had greeted the TCHC security officer who arrived on scene at 10:29. He asked the security officer if there were cameras and if they recorded. He recalled that someone else went into the building with TCHC security. He understood that arrangements were made to obtain the video from the building. DC McKenzie said that he did not ever follow-up to see if the video was produced.
DC Canning
[56] DC Paul Canning was part of the team that made observations at Buddy’s Bar and then arrested the occupants of the taxi at 400 McCowan. DC Canning was the last car following the taxi. He was stopped his car behind DC Duran’s car and DC McKenzie’s car. he ran to the taxi. He said that DC Duran was with a male who was on the ground (Mr. MacIsaac) at the driver’s side of the taxi and DC McKenzie was in the taxi. He heard McKenzie yell ‘gun’. DC Canning believed that the other two passengers were already out of the taxi on the passenger side. He testified that he helped to handcuff Mr. MacIsaac. Mr. MacIsaac was not struggling or resisting. He observed that Mr. MacIsaac had a cut on his head. He did not see how the injury was caused.
[57] The video footage from the outside of 400 McCowan shows DC Canning arriving and running from his car and then returning to his car and retrieving what appear to be handcuffs. It was suggested to him that it was when he returned to the taxi the second time that McKenzie was in the car and yelled ‘gun’. He did not recall it being the second time.
[58] DC Canning conducted a patdown search of Mr. MacIsaac and located 2 packages. One contained powder cocaine and one contained crack cocaine.
DC Duran
[59] DC Adrian Duran was part of the team that conducted surveillance and then arrested Derek MacIsaac, Deshaun Freier and Kevin Reddick on May 14, 2017. He was the central note-taker for the investigation.
[60] DC Duran explained that the Gun and Gang Task Force had a procedure that they routinely followed.
[61] DC Duran explained that the practice is for the central note-taker to record the observations of the other officers that are broadcast over the radio over the course of the night. The role of the central note-taker is to take down as much detail as possible of the observations of all members of the team that are communicated to them over the radio. The individual who made the actual observation might have a more detailed account than is contained in the central notes. DC Duran explained that during the debrief after the operation, the central note-taker would generally read out the contents of their handwritten notes. He said that if there are discrepancies or anything that needs to be changed then the person who actually made the observation would indicate the change to the central note-taker. The central note-taker would type up his handwritten notes after the debrief.
[62] DC Duran took notes at the initial briefing by Det. Wauchope. His handwritten notes indicate that Det. Wauchope told the team that the tip that he had received indicated that there was an unknown male in possession of a firearm at Buddy’s Bar- formerly “Happyland”. The description of the male in the handwritten notes was: “male, light skinned black, 20-24 years old (approx.) medium build, black Adidas jacket with white sleeves, dark pants and black and white Jordan shoes.” In the typed central notes the description was the same except that the jacket was described as “black Adidas jacket with white stripes on the sleeves”.
[63] DC Duran testified that he attended at Buddy’s Bar and made observations from across the street from the bar. He saw that Mr. MacIsaac, who matched the description in the tip had entered the rear driver’s side of the taxi. He, along with the other members of the team, followed the taxi to 400 McCowan. At 400 McCowan he pulled his car in behind the taxi and bumped the rear of the taxi with the front of his car.
[64] DC Duran ran immediately to the rear driver’s side door of the taxi. He had his firearm in his hand and pointed in the direction of the rear driver’s side passenger. He saw that DC Haffejee and DC Luczyk were covering the front passenger and the rear passenger side passenger. DC Duran was yelling, “Toronto police” He heard DC Haffejee yelling “Show me your hands.” DC Duran opened the door with his left hand and stood in the doorway of the car with his gun in his right hand pointed at Mr. MacIsaac. His gun was not within the taxi because then someone might be able to grab it.
[65] He saw Mr. MacIsaac with a gun in his left hand near the area of his left waistband. He saw Mr. MacIsaac lean towards his right side. DC Duran yelled “gun.” He lost sight of the gun after he yelled “gun”.
[66] DC Duran reached in to pull Mr. MacIsaac out of the car. DC McKenzie was close to DC Duran on his right side. DC Duran observed DC McKenzie to also be reaching into the taxi to pull Mr. MacIsaac out. DC Duran did not see DC McKenzie administer a backhand strike to Mr. MacIsaac in the taxi.
[67] DC Duran said in cross-examination that if DC McKenzie had swung his firearm at Mr. MacIsaac in the taxi, DC Duran might not have noticed it. He testified that he was focused on Mr. MacIsaac and his hands. He agreed that when he was taking Mr. MacIsaac out of the taxi he had every reason to closely observe Mr. MacIsaac.
[68] DC Duran testified that when he reached in with his left hand to take Mr. MacIsaac out of the taxi there would have been room for DC McKenzie to also reach in. DC McKenzie was right beside him, touching him as they pulled Mr. MacIsaac out. They were both in the door of the taxi. DC Duran at the time was 5’8” tall and weighed 200 lbs.
[69] They pulled Mr. MacIsaac quickly out of the taxi and put him straight down onto the ground. DC Duran had one hand on Mr. MacIsaac and another on his gun. When it was safe to do so, DC Duran re-holstered his gun. DC McKenzie also re-holstered his gun. Mr. MacIsaac was searched and they realized that he did not have the gun on his person. DC Duran believed that Mr. MacIsaac had thrown the gun and conveyed this to DC McKenzie. DC McKenzie then went into the taxi to look for the gun. Mr. MacIsaac was handcuffed at around the same time. DC Canning assisted DC Duran in handcuffing Mr. MacIsaac while DC McKenzie went into the taxi to look for the gun.
[70] After Mr. MacIsaac was handcuffed DC Duran advised him that he was under arrest for unauthorized possession of a firearm. DC Duran then went to the passenger side of the taxi. Mr. Freier was on the ground being covered by DC Haffejee. DC Duran handcuffed Mr. Freier. He then handcuffed Mr. Reddick who was being covered by DC Luczyk. DC Duran next moved back to Mr. MacIsaac. He read him his rights to counsel. He then ordered an ambulance for Mr. MacIsaac. He noticed after the arrest that Mr. MacIsaac had a laceration on his head and was bleeding. DC Duran testified that he saw blood on the ground.
[71] DC Duran did not ever come to learn that DC McKenzie had struck Mr. MacIsaac on the head with a firearm. He was aware of the injury to Mr. MacIsaac but did not know how it was caused.
[72] DC Duran testified that he did not strike Mr. MacIsaac and he did not see anyone else strike Mr. MacIsaac. He did not strike Mr. Freier and did not see anyone else strike Mr. Freier.
[73] DC Duran said in cross-examination that Mr. MacIsaac was definitely not struck outside the taxi because DC Duran was watching Mr. MacIsaac with his firearm pointed at him and he did not see anyone strike his head.
[74] DC Duran agreed that Mr. MacIsaac did not struggle or resist his arrest. From DC Duran’s observations there was no reason for anyone to strike Mr. MacIsaac while he was on the ground.
[75] DC Duran did not make a note of seeing a gun in Mr. MacIsaac’s hand until after 12:20 am on May 15th, after the debrief back at the station. DC Duran’s observation of the gun in the hand of Mr. MacIsaac was recorded as a late entry to the notes. Before the late entry, DC Duran recorded several pages of handwritten notes of other events including that DC McKenzie located the gun in the taxi, the identification of the occupants and the proving safe of the gun. DC Duran testified that the details of his observations of a gun in Mr. MacIsaac’s hand were recorded as a late entry after the debrief because he did not have an opportunity to record them before then.
[76] DC Duran testified initially that he played no role in seizing the video footage from TCHC. He was aware that Det. Wauchope spoke to TCHC security. It came to light after DC Duran completed his evidence that DC Duran had signed a property receipt for video footage of 400 McCowan at 1:15 am on May 15, 2017. DC Duran returned to the witness stand after it was learned that he had received the video. He testified that he did not remember receiving the video footage or viewing it. He testified that there was no discussion of the video footage at the debrief.
Derek MacIsaac
[77] Mr. MacIsaac testified that in May of 2017 he was 19 years old and lived at 400 McCowan. On May 14, 2017 he went to Buddy’s Bar. He intended to drink but also intended to sell cocaine if the opportunity arose. He admitted to having almost an ounce each of powder and crack cocaine. He admitted that he was selling cocaine at that time. He denied having a gun.
[78] He left the bar in a taxi with Mr. Freier and Mr. Reddick. He knew both men but did not know Mr. Reddick well.
[79] Mr. MacIsaac testified that when he entered the taxi at Buddy’s Bar he opened the door normally with his left hand after Mr. Freier unlocked the door. He entered the car normally.
[80] When the taxi stopped in front of 400 McCowan Kevin Reddick said “Fuck, it’s the police”. Mr. Reddick then put his hand back as if to tap Mr. Freier. Mr. MacIsaac heard police yell, “Toronto police’ and “Show me your hands.” His door opened and he saw a police officer with a gun. He put his hands up but flinched and moved to his right. He was then pulled out of the car by his shoulders and put to the ground. He first said that he believed that one officer took him out and then said that he could not remember if it was one or two officers. When he was on the ground, the right side of his face was on the ground. His hands were behind his back and he was searched. While on the ground with his hands behind his back, he was then struck on the side of the head with what felt like a metal object.
[81] After he was struck he heard one officer say “Why did you do that?” He heard another officer say “Because I had to.”
[82] It took only a few seconds for him to be pulled out of the car and he was hit within a few seconds of being on the ground. He was hit before he was handcuffed.
[83] When he was on the ground he felt a puddle of blood on the ground. He was later taken to the hospital and the laceration was stitched.
[84] In cross-examination Mr. MacIsaac was shown the image from the taxi’s in-car camera that showed his arm reaching across the rear seat of the taxi just before he was taken from the taxi. He testified that this could have been when he flinched or it could have been when he was being pulled out of the car because his hands came down to the seat as he was pulled.
[85] Mr. MacIsaac denied putting a gun on the seat or seeing a gun.
Deshaun Freier
[86] Deshaun Freier went to Buddy’s Bar with Kevin Reddick on May 14, 2017. Derek MacIsaac came to the bar after Mr. Freier. Mr. Freier knew Kevin Reddick and Derek MacIsaac who both lived at 400 McCowan.
[87] In May of 2017 Mr. Freier was selling cocaine. He was in possession of 1.7 grams of cocaine the night of the May 14, 2017. He did not know that Mr. MacIsaac sold cocaine. He did not see Mr. MacIsaac with a gun that night or at any other time.
[88] He left the bar with Mr. MacIsaac and Mr. Reddick and took a taxi to 400 McCowan. When the taxi stopped in front of 400 McCowan, Kevin Reddick turned, extended his arm into the backseat and said something about police. Mr. Freier turned to look out his window and felt something tap his knee. Mr. Freier believed that Mr. Reddick could have tapped his knee or Mr. Reddick could have dropped something. Under cross-examination he agreed that he did not see who tapped his knee and that it could have been Mr. MacIsaac.
[89] Mr. Freier looked out the window and saw police with guns. The police yelled “Put your hands up” or “show me your hands.”
[90] Mr. Freier looked to his right at the officer outside his window with a gun. He then heard the driver’s side rear door open and looked to his left. He saw police at the open driver’s side rear door. He saw the police drag Mr. MacIsaac out of the taxi and put him on the ground. Shortly after Mr. MacIsaac was on the ground with his hands behind his back, he saw one of the police officers hit Mr. MacIsaac on the back of his head with a gun. After seeing Mr. MacIsaac get hit he turned his attention to the officer outside his window.
[91] Mr. Freier was taken out of the taxi after Mr. MacIsaac had been taken out and hit. An officer dragged him out by his hands and someone punched him a couple of times in the face. Once he was out of the car, he was face down on the ground on a speed bump. He was pressed into the ground. He had lacerations to the right side of his face and he had a black left eye. His ribs were sore.
[92] The only officer that Mr. Freier saw clearly was the officer who was at his window. That officer had curly hair. DC Haffejee has curly hair. Mr. Freier believed that it was the officer with curly hair who punched him but he could not be sure because he only saw and felt the fist but not the face of the person who hit him.
[93] Mr. Freier did not seek medical attention immediately. He testified that he was concerned about complaining to the police about being hit. He was taken to the police station and booked and searched. The cocaine that he was carrying was located during the search. He was charged with possession of the cocaine for the purpose of trafficking and placed in a holding cell. He lay down in the cell and later had difficulty getting up because of the pain in his ribs. He then asked for medical attention and was taken to the hospital. His ribs were not fractured and so he was discharged back to the station with Advil for the pain.
[94] Mr. Freier agreed in cross-examination that after Mr. Reddick said something about police and he turned to see an armed police officer at his window, his focus was on the police officer and not on Mr. MacIsaac or Mr. Reddick. He was shown the image from the camera in the taxi showing Mr. MacIsaac’s hand reaching across the seat of the taxi towards Mr. Freier. He did not recall that happening and said that his focus was on the police.
[95] Mr. Freier did not recall seeing a police officer enter the rear seat of the taxi from the driver’s side while Mr. Freier was still in the car. It was put to him that he was pushed against the door by that officer and he disagreed.
[96] Mr. Freier was shown the images from the taxi camera and he saw that at 22:03:07 DC McKenzie’s hat was visible and at 22:03:08 Mr. Freier’s hand was still visible inside the taxi. Mr. Freier did not recall Dc McKenzie being in the car at the same time that he was in the car even after being shown the images.
Brenda Anyon
[97] Brenda Anyon testified that she was waiting for a friend in the lobby of 400 McCowan at around 10 pm on May 14, 2017. She saw a taxi stop in front of the building and saw someone pull the passenger out of the rear driver’s side seat and onto the ground. She then saw someone else approach and strike downwards towards the person on the ground.
[98] Ms. Anyon did not know who the person was who had been taken from the car until later. She saw that the person was handcuffed and taken over to the wall of the building. He was covered in blood. She went out to have a cigarette and saw that the person was Derek MacIsaac. Ms. Anyon lived in the neighbourhood and knew Mr. MacIsaac from the neighbourhood. When she recognized Mr. MacIsaac she went over to see if he was alright. An officer told her not to talk to him. She asked, “Why not? He’s hurt.” The officer said, “That’s what happens when you are running with a loaded gun and an ass full of crack.”
[99] Under cross-examination, Ms. Anyon agreed that everything happened very quickly. She agreed that it was possible that the second officer who appeared to strike Mr. MacIsaac could have had his hands going down towards Mr. MacIsaac without actually striking him. She could not see whether the officer was holding anything and she could not see if he was making a fist.
Findings of Fact
[100] Having considered all of the evidence I find on a balance of probabilities that Mr. MacIsaac was struck on the head with a firearm while he was lying on the ground outside the taxi with his hands behind his back. I accept the evidence of Mr. MacIsaac on this point. His evidence is supported by the evidence of Mr. Freier and Ms. Anyon.
[101] I find DC McKenzie’s version of events to be highly improbable when viewed in the context of the totality of the evidence.
[102] Neither DC Duran nor DC Haffejee saw DC McKenzie hit Mr. MacIsaac inside the taxi although they were both focused on the backseat of the taxi at that time and believed Mr. MacIsaac to be armed.
[103] DC Duran was standing in the door of the taxi with his gun pointed at Mr. MacIsaac. The area was small and DC McKenzie would have had to reach past DC Duran, directly in his line of vision to hit Mr. MacIsaac in the taxi. It is unlikely that DC McKenzie could have squeezed past DC Duran who was standing square in the door of the taxi and been in a position to deliver the blow that he described. It is highly unlikely that he could have done so without DC Duran noticing what he was doing. I also find that it is unlikely that DC McKenzie would have put himself in the line of fire and risked a gun grab by reaching past DC Duran and reaching into the car with his firearm.
[104] DC Haffejee testified that he was looking through the rear window at the point that Mr. MacIsaac’s hands dropped. I find that it is improbable that DC Haffejee would have looked away from Mr. MacIsaac if Mr. MacIsaac was turning and his hands were dropping. DC Haffejee initially explained that he looked away from Mr. MacIsaac because he was extracting Mr. Freier from the car. The images from the taxi contradicted this version of events. DC Haffejee agreed that he was not taking Mr. Freier from the car at the same time that Mr. MacIsaac was being removed. There was no other explanation for why DC Haffejee would not have seen the interaction between Mr. MacIsaac and DC McKenzie in the backseat of the taxi.
[105] There are two further troubling aspects to the evidence of DC Haffejee.
[106] DC Haffejee had no recollection of any injury to Mr. Freier whom he removed from the taxi. He went to check the case file overnight during his cross-examination and determined that Mr. Freier was injured and that he was the officer who filled out the injury report. DC Haffejee still could not recall the injury nor could he explain the black eye inflicted on Mr. Freier. He had no notes of the injury. There was nothing in his account of the arrest of Mr. Freier that would account for facial injuries on both sides of Mr. Freier’s face.
[107] Also of considerable concern is the fact that during the course of the trial DC Haffejee spoke about his evidence during cross-examination to a potential witness (Luczyk). He did so in the presence of another witness (McKenzie). DC Haffejee is a very experienced police officer who was aware of the order excluding witnesses. The conversation about the evidence took place in the presence of DC Cordova, the police officer who was present in court during the voir dire evidence to assist the Crown.
[108] The conduct of DC Haffejee in discussing his evidence in contravention of the order of this court and the complicity of Officers Luczyk and Cordova in this contravention raises very serious concerns about the approach of these officers to this investigation and prosecution. I am troubled by the fact that DC Cordova, who was exempted from the order excluding witnesses in order to assist the Crown, was present and did nothing while a witness violated the court’s order. Police officers are routinely exempted from orders excluding witnesses in order that they can assist the Crown. This practice depends on the integrity of the officers who are exempted from such orders. That integrity was absent in this case.
[109] The conduct of DC Haffejee in violating the order of the court impacts on his credibility. In this case, DC Haffejee’s testimony plays a minor role in my determination of where and when Mr. MacIsaac was hit. It does, however, play a role.
[110] I also find that there are also credibility concerns with respect to DC Duran. DC Duran testified that he saw Mr. MacIsaac with a gun in his hand and then lost sight of it. He did not make a note of this crucial observation until over two hours had passed and until after he had attended a debrief with the other members of the team. I find it highly improbable that an observation of such critical importance would not have been noted while other less important events were recorded in chronological order.
[111] DC Duran also testified that it was possible that DC McKenzie had reached into the backseat of the taxi and struck Mr. MacIsaac just as DC Duran lost sight of the gun. He testified that it was not possible that he would have missed a strike that happened outside the taxi when Mr. MacIsaac was on the ground.
[112] DC Duran was re-holstering his gun and obtaining handcuffs after Mr. MacIsaac was outside the taxi. After Mr. MacIsaac was searched DC Duran was aware that Mr. MacIsaac did not have a gun on his person. While Mr. MacIsaac was in the taxi, DC Duran believed him to have a gun and he was focused only on Mr. MacIsaac. DC Duran’s insistence that he could have missed a strike inside the taxi, when he was focused on Mr. MacIsaac and believed him to be armed but could not have missed it when Mr. MacIsaac was on the ground, under control and he knew him to be unarmed, simply does not make sense.
[113] While it does not play a central role in my findings, I am also troubled by the evidence of the police witnesses with respect to obtaining the video footage from 400 McCowan. Det. Wauchope was the detective in charge of the operation. He directed the other officers in the investigation. He instructed DC Taylor to follow the taxi to Forensic Identification Services and obtain the download from the cameras. He went personally to the security office of 400 McCowan to obtain the video footage from the surveillance cameras. He stated that he wanted to get the video of the takedown. He spoke to the security officers present at 400 McCowan who told him that they would download the video and bring it to 43 Division but he testified that he did not know the name of any security officer he spoke to. He did not know who delivered the video footage or when they delivered it. He testified that he had never seen the video. Given the fact that he was seeking the video of the takedown and given the footage that shows that he spent about 15 minutes in the security office at 400 McCowan, it does not make sense that he did not view the video.
[114] DC Haffejee also distanced himself from the video. His evidence was not internally consistent on the issue of his involvement in obtaining the video. He testified under cross-examination that he played no part in obtaining the video but in re-examination he said that he had asked another officer to view the video and see if it was worth seizing.
[115] The debrief with all of the officers involved in the takedown took place at 12:05-12:20 am, after officers Wauchope and Luczyk had the opportunity to determine the content of the video footage.
[116] Finally, I am also troubled by the failure of all of the officers to fill out ‘use of force reports’ and the failure of Det. Wauchope and DC Haffejee to make any inquiry into the use of force by DC McKenzie against Mr. MacIsaac. It seems improbable that an officer who was in charge of a team of officers conducting a takedown would have made no inquiry into the circumstances of the infliction of a gash to the head of a detainee that was bleeding profusely and required three stitches to repair.
[117] It does not make sense that Det. Wauchope and DC Haffejee took steps to obtain the video footage but never looked at it. It does not make sense that Det. Wauchop and DC Haffejee wanted to obtain the video of the takedown but neither officer asked about the circumstances of the injury to Mr. MacIsaac.
[118] Having considered the evidence as a whole, I accept the account of Mr. MacIsaac that he was struck by a police officer while he was facedown on the ground with his hands behind his back.
[119] His testimony was consistent and credible. He did not exaggerate his injuries. He admitted that he was selling drugs at the time of these events. He did not claim to know precisely what object struck him or who struck him, except that he was struck by a metal object.
[120] Mr. MacIsaac’s testimony that his hands dropped as he flinched away from the door and as he was pulled from the car makes sense and is consistent with other evidence on the voir dire including the image from the taxi camera.
[121] His version of events is supported by the evidence of the independent witness Ms. Anyon. Her evidence was credible and reliable. I recognize that she was looking through two sets of doors and that the lighting was not optimal. However, Ms. Anyon had no difficulty seeing the officer make a downward striking motion. This would not be consistent with an officer coming to help handcuff Mr. MacIsaac. It is consistent with the sequence of events described by Mr. MacIsaac.
[122] Mr. MacIsaac’s version of events is also supported by Mr. Freier. I recognize that Mr. Freier’s attention was diverted at points by other activity including by the officer to Mr. Freier’s right. He did not see DC McKenzie enter the back seat of the car although Mr. Freier was in the car when DC McKenzie entered the back seat. I give Mr. Freier’s evidence less weight because he was distracted. However, his testimony lends some support to Mr. MacIsaac’s account.
[123] Overall, given the serious credibility problems with the police evidence and the consistency in the evidence of Mr. MacIsaac and Ms. Anyon, I find on a balance of probabilities that Mr. MacIsaac was struck, as he described, outside the taxi.
Remedy
[124] A stay of proceedings is a remedy that is reserved for the “clearest of cases”.[^1] It is available in cases where state agents have conducted themselves in a manner that contravenes fundamental notions of justice thereby undermining the integrity of the judicial process.[^2]
[125] In R. v. Zarinchang[^3], our Court of Appeal enunciated the following principles that must be applied when a stay of proceedings is sought:
(1) There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual's trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.
(2) In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied:
(i) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and
(ii) no other remedy is reasonably capable of removing that prejudice.
(3) In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider — the balancing of the interests in granting a stay against society's interest in having a trial on the merits.
[126] It is conceded by the Crown that a finding that police struck Mr. MacIsaac with a firearm after he was pulled from the car and was compliant and facedown on the ground would require a stay of proceedings.
[127] I am satisfied that this case does call for resort to this remedy. This case falls into the residual category of cases involving state conduct that contravenes fundamental notions of justice and undermines the integrity of the justice system.
[128] I am satisfied that the prejudice caused by the abuse in this case would undermine the integrity of the justice system, particularly in light of the conduct of the police witnesses during this voir dire. I am satisfied that there is no other remedy reasonably capable of addressing that prejudice. I find that a stay is necessary even though the charges against Mr. MacIsaac are extremely serious and even though society has a strong interest in a trial on the merits.
[129] I adopt the comments of Corrick J. in R. v. Robinson[^4] where she writes: “The role played by police officers in law enforcement is critical to the maintenance of a society that respects the rule of law. As a result, society vests police officers with powers and authority that other citizens do not have. When police officers exceed their authority and abuse their power by using excessive force against a suspect, they generate disrespect for the police generally, which threatens the rule of law.”
Order
[130] The charges against Mr. MacIsaac are stayed pursuant to s. 24(1) of the Charter. As noted above, given my conclusion on this issue I need not address the application to exclude evidence under s.24(2).
Forestell J.
Released: October 7, 2019
COURT FILE NO.: CR/18/30000580/0000
DATE: 20191007
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DEREK MACISAAC
RULING ON CHARTER APPLICATIONS
Forestell J.
Released: October 7, 2019
[^1]: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 at para. 68; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 at para. 53.
[^2]: O’Connor at par 73.
[^3]: 2010 ONCA 286 at para 57
[^4]: 2016 ONSC 1667 at para. 63