COURT FILE NO.: CR19-1-215

DATE: 20191010

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Crown/Respondent

– and –

KEVIN NGUYEN and THI NGUYEN

Defendants/Applicants

Katherine Stewart, for the Crown/Respondent

Alana Page, for the Defendant/Applicant Kevin Nguyen

Jennifer Myers, for the Defendant/Applicant Thi Nguyen

HEARD: March 25-29, September 3-6, and 12, 2019

An Order restricting publication of this proceeding was made under ss. 645 (5) and 648 of the Criminal Code and continues to be in effect until after the conclusion of the trial.

SPIES, J.

Ruling ON Kevin Nguyen’s CHARTER APPLICATION

Overview

[1] The Defendant, Kevin Nguyen, is charged with assault resist arrest, possession of cocaine for the purpose of trafficking x2, possession of proceeds of crime exceeding $5,000, possession of a loaded prohibited firearm, and related offences. His mother, Thi Nguyen, is charged with possession of proceeds of crime exceeding $5,000 and possession of a loaded prohibited firearm; the same proceeds and firearm Mr. Nguyen is charged with.

[2] Mr. Nguyen brought an application before me for an order for the exclusion of evidence found in his possession at the time of his arrest on June 4, 2017; namely a quantity of crack and powdered cocaine, pursuant to ss. 7, 8, 9, 10(a) and 24(2) of the Charter of Rights and Freedoms. I heard this application and other applications brought by Mr. Nguyen and his mother in advance of their trial which is scheduled for October 21, 2019. Counsel agreed to be bound by my rulings even though I may not be the trial judge.

The Issues

[3] Mr. Nguyen takes the position that the circumstances of his detention, arrest and subsequent search demonstrates a pattern of the police officers’ disregard for the limits of their lawful authority. He argues that Officers Van Ruyven and Kenny detained him without reasonable grounds and that they targeted him only because they believed him to be a Parkdale Crips gang member, violating his s. 9 Charter rights. He also asserts that when PC Van Ruyven told him that he was being investigated for a theft at the LCBO, which the officer admitted was a complete fabrication (the “LCBO ruse”), his s. 10 (a) Charter rights were breached in that he was not advised of the actual reason for his detention. Finally, it is his position that he was unlawfully searched in breach of his s. 8 Charter rights and that unjustified and excessive force that resulted in injuries to him was used, which violated his right to security of the person as enshrined in s. 7 of the Charter. It is Mr. Nguyen’s position that the appropriate remedy is the exclusion of all drug evidence found on his person pursuant to s. 24(2) of the Charter. In addition, it is his position that the evidence surrounding his arrest and search of his person should also be redacted from the Information to Obtain (“ITO”) in support of the search warrant obtained to search the address alleged to be Mr. Nguyen’s home at 1430 King St. W., Unit 104.

[4] The Crown's position is that the detention of Mr. Nguyen was lawful because the officers had reasonable grounds to believe that he was carrying a concealed firearm, that PC Van Ruyven's LCBO ruse was not a violation of Mr. Nguyen's s. 10(a) rights, that the search of Mr. Nguyen following his detention was justified and not excessive as a safety search because Mr. Nguyen reached for the area where a firearm was believed to be concealed, and that the force used during his detention and subsequent arrest was justified and in any event if any Charter violations are found, the evidence should not be excluded from either the ITO or the trial proper pursuant to s. 24(2) of the Charter.

The Evidence and Preliminary Finding of Fact

The Discharge of Firearm Incident

[5] On June 4, 2017, Officers Van Ruyven and Kenny were with the Community Response Unit (“CRU”) and in uniform, on bike patrol. They had been assigned to the Parkdale area to investigate a report of a discharge of a firearm near the tennis courts at Parkdale Collegiate High School, which was alleged to have taken place on May 23, 2017. The person who reported the incident said that a black Acura stopped close to the tennis courts and he heard three shots. He saw a male at the corner of the tennis courts fall to the ground, roll over and run away. Officer Kenny believed that this incident had occurred the day before, which was not the case – I accept that she was simply mistaken. The police had no suspects who had been identified or arrested yet. The plan was that the officers were going to canvas the area to see if there was anyone who witnessed the incident. PC Van Ruyven testified that he was aware of one other shooting incident in the Parkdale area although he did not give any specifics about that.

The Three Males

[6] At around 6:30 pm, Officers Van Ruyven and Kenny approached the area where the discharge of firearm had reportedly occurred. They saw three males sitting on a park bench near the tennis courts. Both officers recognized one of the males as a member of the Parkdale Crips. They approached these men to question them to see if they had any information about the incident. PC Van Ruyven testified that these men told the officers that they had no idea what had happened. It was a very brief conversation. PC Kenny however, testified that she was 100% certain the men remained silent and did not respond to their questions.

The Officers’ Observations of Mr. Nguyen

[7] The officers continued northbound on Jameson Avenue, (which is a two-lane street), just north of King Street West. They were traveling in single file and PC Van Ruyven was in front. About five minutes later they noticed a male, whom shortly thereafter they both recognized as Mr. Nguyen, walking northbound on the west sidewalk.

[8] Both officers testified that it was a sunny and hot June afternoon and they were in shorts and a T-shirt. The fact that Mr. Nguyen was dressed in a dark hoodie, which PC Kenny said was baggy, with the hood up over his head and in black sweatpants, caught their attention. They conceded that it may have been that Mr. Nguyen’s sweat pants were pulled up to his knees as that is how they were when he was thrown into the back of the scout car, but the officers could not recall. PC Van Ruyven speculated that this happened during their struggle with Mr. Nguyen. Although I do not think this clothing would have seemed that unusual to the officers, notwithstanding the weather – as PC Kenny admitted, baggy clothing is a fashion statement and very popular with young people - I am prepared to accept that this is why they first noticed Mr. Nguyen.

[9] Both officers first made their observations of Mr. Nguyen from behind, as they approached him on bicycle. According to PC Van Ruyven, Mr. Nguyen's left leg was not moving as freely - at the same “cadence,” as his right leg. He also noticed that his left elbow was sticking out on his left side and his right arm was swinging freely. When the male looked back towards them the officers were able to identify him as the defendant, Kevin Nguyen.

[10] Mr. Nguyen pulled out a cellphone after making eye contact with the officers, which PC Van Ruyven believed must have come from his right hoody pocket, and he appeared to be making a call. PC Kenny thought he could potentially be alerting another party that police were in the area.

[11] According to PC Van Ruyven, Mr. Nguyen’s left elbow was sticking out and his left hand never left the front of his body. As he biked past Mr. Nguyen, the two continued to make eye contact and Mr. Nguyen’s pace slowed down - there was “hesitation in his step”. PC Van Ruyven also observed Mr. Nguyen turning his shoulders away from him for just a moment, which he referred to as “blading,” and that it appeared Mr. Nguyen was trying to conceal the object he was guarding, although it was a slight move.

[12] PC Kenny also testified about what she observed about the manner in which Mr. Nguyen was walking. She said that the right side of his body was swinging a lot more than the left side of his body - it was exaggerated rather than fluid and on the left he appeared stiff. His left hand appeared to be stuck or pressed against his body around his waist area as tight as it could be and was not swinging at all. She could not see the lower part of his arm and his left elbow was not sticking out. PC Kenny also observed Mr. Nguyen to turn his head to the right, which struck her as odd as his torso did not turn, just his head. She testified that he stared at them for a couple of seconds and then the difference between the right side and left side became more obvious and he quickened his pace and the swing of his right arm became more exaggerated. He kept looking over his shoulder. According to PC Kenny, Mr. Nguyen appeared panicked that the police were there. She testified that she knew that PC Van Ruyven was focused on Mr. Nguyen because he was quiet as opposed to his usual very chatty self and that she knew that something “serious was going on in his mind”.

[13] Having passed Mr. Nguyen, PC Van Ruyven testified that he could see that his left hand was not inside a pocket but appeared to be guarding the left front side of his pants - it was open against the centre of his chest at the belt line or a bit lower. PC Van Ruyven testified that he formed a belief that Mr. Nguyen was concealing “something” at the front of his body – that it looked to him like Mr. Nguyen was holding onto “something” - that Mr. Nguyen was almost patting or guarding this area with his left hand. He made these observations in a period of 10 to 15 seconds as they were continuing to ride on their bicycles.

Information Officers Van Ruyven and Kenny had before they saw Mr. Nguyen on June 4,2017

[14] PC Van Ruyven confirmed that he had personally never investigated Mr. Nguyen before. Mr. Nguyen was known to PC Van Ruyven as a member of the Parkdale Crips and he believed him to be involved in drug dealing and possession of firearms. All the information he had about him, he received from other officers, as well as from seeing bulletins and posters up at 14 Division of gang members from Parkdale. He agreed that Mr. Nguyen was one of many. Some of that information would have come from the Field Intelligence Officer Merritt. He recalled a safety bulletin which stated that Mr. Nguyen was “believed to be armed”. He testified that he was able to recognize Mr. Nguyen “without a doubt” from safety photos and that he had known him from the area since his early years in 14 Division. He stated that the officers pay special attention to currently active gang members in the Parkdale area and that he had come to know Mr. Nguyen from previous cases that he was involved in. He was known to PC Van Ruyven as an active drug dealer in Parkdale.

[15] PC Van Ruyven testified that he was aware of two prior specific incidents involving Mr. Nguyen and firearms: 1) an 11 Division case in which Mr. Nguyen was arrested and taken to a police station. He was carrying a firearm, which was located in his pants during a Level 3 Search. PC Van Ruyven believed this occurred in 2015 but it was in fact in 2012, and Mr. Nguyen was convicted in youth court in February 2013, and 2) a 14 Division case in 2015 in which Mr. Nguyen was charged with being in possession of a firearm while in a stairwell.

[16] PC Van Ruyven admitted that with respect to the 2015 incident he had no information that Mr. Nguyen was actually carrying a firearm although that was the case in 2012. With respect to the 2012 incident, PC Van Ruyven admitted that he believed that Mr. Nguyen was found not guilty, but he testified that as far as he was concerned, what was important was that he was found in possession of a firearm. The result of the trial was not as relevant to him.

[17] The posters in Officer Merritt’s office do not indicate if the gang members whose photos are shown are active or not. PC Van Ruyven testified that he believed Mr. Nguyen was active based on conversations with Officer Merritt, information from confidential informants, and people in the community. He agreed that he was not aware of any specific cases after 2015 of any criminal activity of Mr. Nguyen but said the word of mouth was that he was currently operating as a drug dealer and carrying a firearm. He testified that Mr. Nguyen was believed to be carrying a firearm, dealing drugs, and a gang member. He said that this was “common knowledge” in 14 Division although there was no incident he could speak of specifically.

[18] PC Kenny was also aware of prior occurrences where Mr. Nguyen was arrested and found to be in possession of a firearm. She could not recall how many prior occurrences there were, but she did recall the 14 Division case from 2015 where she understood that a firearm was obtained from Mr. Nguyen. She did not know why he was arrested or whether he was ever convicted. She did not know of any other criminal activity on the part of Mr. Nguyen.

The Detention of Mr. Nguyen

[19] PC Van Ruyven admitted there was nothing connecting Mr. Nguyen with the discharge of firearm incident. He was not known to drive a black Acura or known to be present when the shots were heard. After PC Van Ruyven observed Mr. Nguyen talking on his cell phone, as he had ridden past him just a little bit, he did a U-turn on his bicycle, hopped his bicycle up onto the sidewalk, dismounted and approached Mr. Nguyen on foot, stopping in front of Mr. Nguyen.

[20] PC Van Ruyven admitted that when he turned around and approached Mr. Nguyen and stopped his bicycle in front of him that it would have been clear to Mr. Nguyen from his body language, and the fact he stopped his bicycle, that the police were stopping him. I find that this is the point of detention.

[21] At this point Mr. Nguyen stopped where he was. According to PC Van Ruyven, Mr. Nguyen’s left hand was still guarding whatever object was there. PC Kenny observed that Mr. Nguyen "froze" and both officers testified that Mr. Nguyen “bladed” his body by turning the left side of his body away from PC Van Ruyven as the officer approached him.

[22] At this point, for the first time, PC Van Ruyven testified that he believed that what Mr. Nguyen was guarding was a firearm. He said that he did not pay attention to what Mr. Nguyen had in his right hand. He was more concerned about what he might do with his left hand. His only explanation for why he believed the object was a firearm was that he believed Mr. Nguyen was an active gang member of the Parkdale Crips, knew him to be involved with firearms in the past and he testified that he recognized Mr. Nguyen as a “gun person” and “known to carry a firearm”. He also stated that the recent shootings had heighted the risk to public safety.

[23] PC Kenny also jumped off her bike and approached Mr. Nguyen from behind while PC Van Ruyven was approaching him from the front. PC Kenny testified that she believed that there was a firearm in the location on Mr. Nguyen’s left side, where he had his left hand. When asked why she thought it was a firearm, she referred back to the three males that they had come across and the fact that one was associated to firearms and the Parkdale Crips. Now there were two known gang members and they were known to associate with each other. PC Kenny testified that this was another reason she believed Mr. Nguyen was concealing a firearm. She said that it appeared as though "something was there" on the left side. The fact that Mr. Nguyen stopped and froze when PC Van Ruyven did his U-turn added to her conclusion that he was demonstrating characteristics of an armed person, although she did not explain why.

[24] PC Van Ruyven testified that he told Mr. Nguyen that he was investigating a theft from an LCBO. This was false. PC Van Ruyven testified that he did this for officer safety reasons, that he was thinking quickly under the belief that Mr. Nguyen had a firearm and that his motivation for being dishonest was the fear that, if he drew Mr. Nguyen's attention to his belief about the firearm, Mr. Nguyen would either take off running, with the firearm still in his possession, posing a risk to public safety, or Mr. Nguyen would draw the firearm and use it on PC Van Ruyven and/or PC Kenny. PC Van Ruyven testified that he wanted to lower Mr. Nguyen’s anxiety and distract his mind from what he believed he was concealing, with another investigation, and that he did this strictly for officer and Mr. Nguyen’s safety. Mr. Nguyen responded that he was not involved in the LCBO theft and that he did nothing wrong.

[25] PC Kenny testified that PC Van Ruyven engaged in a verbal interaction with Mr. Nguyen, but she could not recall what was said. I will come back to her explanation for why she has no recall about this. She said that the stiffness on Mr. Nguyen's left side continued and his left hand never left his front. PC Kenny testified that she truly believed he had a firearm and that Mr. Nguyen had displayed "characteristics of an armed person".

[26] PC Van Ruyven readily admitted that the LCBO theft was a complete fabrication. He was aware that s. 10(a) of the Charter requires him to promptly inform the detainee of the reasons for detention. He also admitted that he did not tell Mr. Nguyen he was being placed under an investigative detention. PC Van Ruyven testified that he made up his mind he was going to arrest Mr. Nguyen for possession of a firearm at the point that he told him that he was being investigated for a theft at the LCBO. It was put to PC Van Ruyven that the reason he stopped and searched Mr. Nguyen was that he recognized him as a suspected gang member and that he was curious to see if he was carrying anything illegal. PC Van Ruyven denied this.

The Arrest of Mr. Nguyen

[27] As PC Van Ruyven was closing the distance between himself and Mr. Nguyen, he testified that Mr. Nguyen's left hand was still in the front area of his pants, where he believed a firearm was concealed. PC Van Ruyven instructed Mr. Nguyen to: "keep your hands where I can see them" or "show me your hands" or something to that effect – he could not recall his exact words. PC Van Ruyven admitted that Mr. Nguyen’s hands were always where he could see them and that Mr. Nguyen did not move his hands - he continued to keep his left hand in the guarded position. Nevertheless, he also said that Mr. Nguyen was continuing to “grab” for and “reach” the object he was concealing. PC Van Ruyven testified that after he saw Mr. Nguyen “reach for that area”, he closed the distance between him and Mr. Nguyen as quickly as he could and grabbed his left arm to prevent him from grabbing what he believed to be a firearm. Mr. Nguyen pulled away and a struggle ensued. PC Van Ruyven agreed that at this point Mr. Nguyen was not under an investigative detention or arrest. He admitted that he knew Mr. Nguyen was not legally required to comply with his demands.

[28] PC Van Ruyven testified that after he grabbed Mr. Nguyen, he told him that he was under arrest, but he did not tell him what for, although he believed he had grounds to arrest Mr. Nguyen for possession of a firearm.

[29] PC Kenny testified that she knew that PC Van Ruyven intended to arrest Mr. Nguyen by his demeanor when he told him to show his hands. PC Kenny said that she could not see the skin of Mr. Nguyen’s left hand and so she did not remember if his left hand was outside or inside his pants. According to PC Kenny, Mr. Nguyen did not show them his hands although she too admitted that his left hand stayed in place. She testified that they had to make physical contact with Mr. Nguyen so that they could see what was "in" his left hand. She could not recall who put their hand on Mr. Nguyen first. She believes that they both did and that it was important to get Mr. Nguyen’s left hand off of whatever he was “grasping” onto. She also said the purpose of the arrest was for possession of a firearm.

[30] PC Van Ruyven testified that he commanded Mr. Nguyen to stop resisting. He was trying to control Mr. Nguyen’s arms and put handcuffs on. Mr. Nguyen continued to fight with them in a standing position for about 10 seconds. Mr. Nguyen got his left arm free and took a swing at PC Kenny and struck her with a closed fist on her face. At this point PC Van Ruyven testified that he brought Mr. Nguyen to the ground. They were lying on the ground and PC Van Ruyven had his legs wrapped around Mr. Nguyen. He was squeezing Mr. Nguyen’s torso and legs to prevent Mr. Nguyen from moving further. His hands were trying to restrain Mr. Nguyen’s right hand. PC Kenny was trying to control his left arm. Mr. Nguyen continued to struggle at that point and according to PC Van Ruyven his left hand continued to reach to the object he was concealing, which PC Van Ruyven stated again he believed was a firearm. PC Van Ruyven described the struggle as “violent”. Mr. Nguyen was shouting although he could not remember what Mr. Nguyen was saying.

[31] PC Kenny said that within a half a second of PC Van Ruyven telling Mr. Nguyen to show him his hands the struggle ensued. She did not hear PC Van Ruyven tell Mr. Nguyen that he was going to arrest or search him. She also described a very intense physical struggle with Mr. Nguyen and testified that he did not let his left hand go from what he was "pressing into" and that he struggled to keep his hand there while she and PC Van Ruyven tried to put handcuffs on him. She testified that Mr. Nguyen attempted to reach down the front of his pants at several points during the struggle. She was scared and believed that there was imminent harm because Mr. Nguyen's left hand would not leave his body - he was attempting to push the officers away and was grabbing at his clothing.

[32] PC Van Ruyven gave Mr. Nguyen two strikes to his torso to distract him – what he referred to as “distractionary strikes”. PC Van Ruyven described this as a closed fist punching Mr. Nguyen’s torso in the area of his ribs and stomach. PC Kenny also testified that PC Van Ruyven delivered strikes to Mr. Nguyen’s torso and stomach. If this is correct, then at this point Mr. Nguyen must have been on his back.

[33] DC Worth, who was with the Major Crimes Unit, arrived during the struggle after Mr. Nguyen was taken to the ground but before he was handcuffed. DC Worth was in plain clothes in an unmarked scout car driving around in the Parkdale area. At about 6:36 p.m., he turned north on Jameson Avenue and he saw two uniformed officers rolling on the ground and struggling with an unknown party. According to DC Worth, the male was on his stomach and was struggling and resisting and it appeared to him they were in a fight for some reason. He pulled over and noticed two CRU bicycles on the scene and he realized who the officers were as he approached them. DC Worth assisted in controlling and arresting this person who was not yet handcuffed. PC Van Ruyven recalled that PC Kenny was trying to handcuff the male. DC Worth tried to control the upper half of the male’s body by “jumping on his back”. If this is correct, then Mr. Nguyen must have been on his stomach by this point. According to DC Worth, PC Kenny then got one arm handcuffed and was still trying to get the other hand cuffed. DC Worth recalled the officers telling the man to stop resisting. At some point he was successfully handcuffed to the rear although he was still struggling and flailing and yelling.

[34] I note that DC Worth did not testify that he recognized the male as Mr. Nguyen. Later in his evidence when he explained why he decided he needed to “freeze” the apartment where there was to be a search once a warrant was issued, he testified that he had not had any dealings with Mr. Nguyen but he was known as a drug dealer in the Parkdale area and his name had come up many times at 14 Division.

[35] According to PC Van Ruyven, they were trying to maintain as much control of Mr. Nguyen as possible but even once he was handcuffed, he was trying to reach around to the front of his body to the area where PC Van Ruyven believed the object was concealed. PC Kenny also testified that even while handcuffed Mr. Nguyen still tried to reach his hands around to the front of his pants to whatever was in his pants. He seemed "highly motivated". DC Worth also testified that the whole time the male was trying to get his hand into his waistband area of his pants to get a weapon or to try to remove something concealed in his pants. However, because he was on his stomach, DC Worth believed he was trying to reach into the rear of the waistband area of his pants. The confusion in the evidence as to whether or not Mr. Nguyen was on his stomach or on his back when he was handcuffed was not cleared up. DC Worth’s evidence makes more sense as it seems unlikely that DC Worth would be incorrect about jumping on Mr. Nguyen’s back. It also makes sense that Mr. Nguyen would be kept on his stomach so that he could be handcuffed to the rear.

[36] This discrepancy is significant as I do not see how Mr. Nguyen could reach to the front of his body once he was hand cuffed to the rear as described by officers Van Ruyven and Kenny, despite the evidence of DC Worth explaining that this is possible. As for the evidence of DC Worth as to where the male was reaching, there is no evidence that Mr. Nguyen had anything concealed in his rear waistband area and so he would have had no reason to try to reach into that area.

[37] According to PC Van Ruyven, Mr. Nguyen was screaming to the three males that the officers had already spoken to who were across the street on the east side of Jameson Avenue. PC Van Ruyven felt it was an increased risk to officer safety and so after Mr. Nguyen was handcuffed, he called dispatch and asked for more units to assist in “potential crowd control”. On the audio recording of his call to dispatch, PC Van Ruyven sounds out of breath and someone can be heard saying: “I can’t breathe” and “what the fuck”.

The search of Mr. Nguyen by PC Van Ruyven

[38] PC Van Ruyven testified that they conducted a search of Mr. Nguyen after his arrest while he was on his side on the ground. PC Van Ruyven wanted to see what he was guarding. He did not tell Mr. Nguyen that he was going to search him. Initially PC Van Ruyven described his search as a “pat-down” search but when he was asked if he touched the outside area of Mr. Nguyen’s pants first and was able to tell there was no weapon on him, he said that he did not recall that happening and that he never did this. He agreed he did not in fact do a pat-down to see if Mr. Nguyen was in possession of a weapon. PC Van Ruyven testified that it was a very dynamic situation and there was no time for an initial pat-down because Mr. Nguyen started to fight with the officers right away. However, PC Van Ruyven admitted in cross-examination that he could have touched the outside of Mr. Nguyen’s pants and determined that the object (later found to be cocaine) was not hard and not consistent with a firearm, but he did not do this. This is clearly the case since at the time of the search Mr. Nguyen was handcuffed to the rear.

[39] PC Van Ruyven testified that he was able to glance “inside the elastic of his pants”, and said it is possible that Mr. Nguyen’s pants were hanging down a bit lower. There was nothing sticking up outside the pants that he could see. All he could say was that he found the drugs in the upper portion of Mr. Nguyen’s pants. Initially, PC Van Ruyven testified that he did not have to pull Mr. Nguyen’s pants down nor did he reach into his pants - he was certain that he did not reach into Mr. Nguyen’s pants to grab the object. In cross-examination however, he admitted that at some point he did have to “reach behind” Mr. Nguyen’s clothing but he denied reaching down the front of Mr. Nguyen’s pants into the area where his testicles were. He said that the bag was being concealed just below the belt line above his genitals and PC Van Ruyven testified that he did not have to reach down far enough to reach into Mr. Nguyen’s pants for the drugs. He said that the object he located was just inside or just below the belt line of Mr. Nguyen’s pants. It was possible the edge of the bag was visible, and it was also possible he pulled Mr. Nguyen’s pants down “a bit”.

[40] PC Van Ruyven testified that he located the top of a Ziploc® bag, which was visible, and he just removed it with his hands. It was a very brief search across the top area of his pants. If Mr. Nguyen had been standing and he lifted up his hoody, it is possible he might have seen the Ziploc® bag but he could not say for certain. The Ziploc® sandwich bag had two Ziploc® bags inside. One he believed contained powdered cocaine and the other crack cocaine. There is no dispute that the total weight of the powdered cocaine was 27.35 grams and the crack cocaine weighed 26.63 grams for a total of 53.98 grams.

[41] DC Worth estimated that the time from when the man was handcuffed to recovery of the Ziploc® bag was 30 seconds or less than a minute, it was not very long. He did not know where the bag was removed from. DC Worth testified that PC Van Ruyven was trying to locate what the man was trying to obtain from his waist and that there was “some sort of pat search”. I do not accept that evidence as PC Van Ruyven eventually admitted that he did not do a pat-down search.

[42] PC Kenny testified that she saw PC Van Ruyven pull out a large Ziploc® bag containing narcotics, which he passed to her. She testified that PC Van Ruyven was able to “reach into Mr. Nguyen’s pants in the groin area of his sweat pants where this large freezer sized bag was found”, that it was not far down from his waist line, but he was wearing his pants low perhaps five to six inches below his waist. She believed the drugs were located in the front part of Mr. Nguyen’s groin area.

[43] On this point I prefer the evidence of PC Kenny. I do not accept that PC Van Ruyven did not reach into Mr. Nguyen’s pants-it may be that they were lower than Mr. Nguyen’s waist but as he ultimately admitted he did reach into Mr. Nguyen’s pants. If they were as low as suggested by PC Kenny, then he would in fact have reached into the groin area to locate and pull out the drugs.

[44] DC Worth testified that PC Van Ruyven gave the male “one distracting strike” after he was handcuffed. He was still trying to get his hands into his waist and DC Worth said that he was still concerned about weapons. He testified that someone who is handcuffed can still get their hands around their body. He thought there was still the risk of the man accessing something at his waist. After PC Van Ruyven struck him, the man was somewhat cooler, and he got him to his feet. I do not believe PC Van Ruyven testified about this, but it seemed to me that this further strike was likely unnecessary given there were now three officers controlling Mr. Nguyen who was in handcuffs.

[45] The waistband of Mr. Nguyen is the first area that PC Van Ruyven searched. He continued to do a weapons search incident to arrest while Mr. Nguyen was on the ground. He then stood him up and escorted him to a scout car. He then told Mr. Nguyen that he was under arrest for possession of the drugs, read him his rights to counsel and cautioned him.

Transport to Station

[46] When PC Van Ruyven was trying to put Mr. Nguyen into the police car, Mr. Nguyen braced his feet up against the car, pushing away from the car. PC Van Ruyven and someone else were holding him. PC Van Ruyven used a closed fist to deliver another strike to Mr. Nguyen’s stomach to wind him and to take away his ability to fight them. Mr. Nguyen lost his wind and then PC Van Ruyven testified that they “placed” Mr. Nguyen in the scout car, but he could not recall how.

[47] DC Worth testified that he and PC Van Ruyven walked Mr. Nguyen to the police car. As they did so, he was still resisting and yelling to the young males on the street. DC Worth did not know what he was saying. DC Worth confirmed the evidence of PC Van Ruyven that Mr. Nguyen lifted up one of his legs and put his foot on the front of the car to prevent himself from being put in it. He said that PC Van Ruyven gave him a “distraction strike” and he was then “placed” in the vehicle.

[48] When PC Van Ruyven was asked if he threw Mr. Nguyen head first into the car, PC Van Ruyven said he could not recall. Having watched the in-car video of Mr. Nguyen’s transport to the station it is clear that PC Van Ruyven did throw Mr. Nguyen into the back seat of the scout car while he was handcuffed to the rear and that his did so aggressively, with more force than seems necessary.

[49] PC Van Ruyven was not in the vehicle for transport but met Mr. Nguyen at the station and was present for his booking.

Was Excessive Force used to handcuff Mr. Nguyen and get him into the scout car?

[50] PC Van Ruyven is 6’1” tall and weighed about 200 lbs. at the time. DC Worth is 5’11” tall and back then weighed 250 lbs. Mr. Nguyen is 5’6” tall and probably weighed about 160 lbs. at the time, the same as he appeared in the courtroom. I appreciate that he was resisting his detention and arrest, but it seems to me that having PC Van Ruyven squeezing his torso and DC Worth jumping on his back, which would have resulted in his full weight of 250 lbs. on Mr. Nguyen’s back and PC Kenny trying to control one of his arms must have been excessive. The weight of DC Worth alone on Mr. Nguyen could have been expected to cause him to have difficulty in breathing, even if he was not suffering from asthma. As I have already stated, it also appears that the force used to throw Mr. Nguyen into the back of the scout car was excessive.

[51] On the way to the station, Mr. Nguyen reported pain to his right lung and problems breathing. He told the police that he required a “puffer” for his asthma.

Booking of Mr. Nguyen

[52] Sgt. Jesse Van Nest was the booking Sargent when Mr. Nguyen was brought in. The booking video was introduced into evidence. At the outset Mr. Nguyen can be heard asking for a puffer and stating that he could barely breathe, and his lungs were tight and hurting. He asked why police were targeting him and denied resisting arrest. He complained that he could not move his wrists and that it, presumably the handcuffs, were tight.

[53] Sgt. Van Nest noted that “male breathing hard – bent over”. His concern was that when he first started talking to Mr. Nguyen, he was having trouble breathing. Mr. Nguyen was in medical distress and had asked for a puffer, was breathing hard, and was bent over. Sgt. Van Nest confirmed that he hoped that having Mr. Nguyen sit on a bench would alleviate this, but it did not and so he called EMS for an ambulance when Mr. Nguyen was not getting better. Sgt. Van Nest did not remove Mr. Nguyen’s handcuffs as he did not see the fact that he was cuffed was causing a problem with his breathing.

[54] Sgt. Van Nest asked PC Van Ruyven: “when did this happen?” and “where did this come from?” He was trying to get some idea why Mr. Nguyen was this way. Notably he received no answer from PC Van Ruyven, but he did not follow up. He admitted that he should have as it would have been important to know. PC Van Ruyven did say that Mr. Nguyen had been brought into 14 Division before, but “I’ve never known him to have asthma”. He made no statement about the force used to arrest Mr. Nguyen.

[55] An ambulance was called for at 7:08 p.m. Sgt. Van Nest heard Mr. Nguyen tell EMS that he had a sore stomach. Mr. Nguyen asked for a lawyer again towards the end of the booking and was told that this would be arranged after went to hospital.

[56] PC Van Ruyven and PC Firacchi did a Level 3 Search at 7:23 p.m. I note this was done before Mr. Nguyen was taken to the hospital since he was not seen by a doctor at the hospital until 9:45 p.m. While the search was being done in a private room, you can hear:

Presumably PC Van Ruyven: You punched her in the face!

Mr. Nguyen: I punched her in the face?

PC Van Ruyven: She has a big bruise.

Mr. Nguyen: I don’t have no history of violence. I would never do that. I am smarter than that.

[57] Sgt. Van Nest did not see bruising on PC Kenny’s face.

Mr. Nguyen’s Injury Report

[58] PC Van Ruyven testified that he believed an Injury Report was submitted although he was not sure who prepared it. He said normally an Injury Report is prepared when someone is taken to hospital as Mr. Nguyen was. On re-examination the Crown introduced the Injury Report, which PC Van Ruyven signed and submitted. He stated that it was prepared after Mr. Nguyen returned from the hospital. The Injury Report does state that the circumstances of injury were that it was sustained during arrest but in the Synopsis section, PC Van Ruyven stated that Mr. Nguyen complained of “soreness to his chest and requested to be taken to the hospital”. He admitted in cross-examination that in the booking hall Mr. Nguyen complained of difficulty breathing, that he had asthma and needed his puffer.

[59] I find it significant that there is no reference to the fact that Mr. Nguyen was having trouble breathing in the Injury Report. When asked why not, PC Van Ruyven said there was limited space in the Synopsis but then added that that was not why he did not refer to this. He testified that generally they just do a “quick blurb” about why someone they have arrested is taken to hospital.

[60] I found PC Van Ruyven’s evidence to be disingenuous on this issue given that the evidence is clear that the fact Mr. Nguyen complained of difficulty breathing is why Sgt. Van Nest decided to call an ambulance in the first place. Furthermore, there was more space to type information in the section of the report headed Synopsis which states after the heading: “(Continued on the back if necessary)”. Clearly it is not intended that the officer preparing an Injury Report be limited to a “quick blurb”. I did not find that the fact that PC Van Ruyven failed to include the real reason why Mr. Nguyen was taken to hospital as suggesting he was trying to avoid disclosure of this as he did note soreness to Mr. Nguyen’s chest. The fact however that I had difficulty with his answers on this point was more problematic as it impacted my overall assessment of his credibility.

Preparation of the Search Warrant

[61] On June 4, 2017, when he encountered Mr. Nguyen, PC Van Ruyven testified that he had no knowledge that a search warrant was being prepared. He learned this at the station after he arrested Mr. Nguyen. PC Kenny gave the same evidence. Although it seems to be a significant coincidence that on this date the officers singled out Mr. Nguyen, there is no evidence to contradict this evidence.

Analysis

Credibility

PC Van Ruyven

[62] PC Van Ruyven generally struck me as a credible witness as he gave his evidence although as I have noted there were internal inconsistencies in his evidence. Furthermore, although I would not say that all of his answers to questions in cross-examination were responsive, he readily admitted the LCBO ruse and that he had given various distractionary strikes to Mr. Nguyen. I did find however that he was exaggerating the force needed to control Mr. Nguyen and minimized the injuries to Mr. Nguyen, as already stated.

[63] Ms. Page submitted that there were several differences betwen the evidence of PC Van Ruyven and PC Kenny on what their observations of Mr. Nguyen were. I agree that some of these differences were significant. For example, PC Van Ruyven testified that he saw Mr. Nguyen’s left elbow cocked out to the left side whereas PC Kenny testified that she could not see his left elbow as it was tight against his body. PC Van Ruyven testified that once Mr. Nguyen noticed police he slowed down and hesitated whereas PC Kenny said that his pace quickened. There were other differences in their evidence that were not as significant.

[64] I might have been prepared to accept these differences as demonstrating the officers were being honest and simply made different observations. However, I had more serious concerns about their evidence which put simply, I did not believe.

[65] In particular, I do not accept the evidence of either officer that they actually believed Mr. Nguyen was concealing a firearm. As I will come to, when I consider the credibility of PC Kenny’s evidence, given the weight of the Ziploc® bag with the cocaine, I do not believe that Mr. Nguyen’s gait would have been affected by the fact he had such a light weight of drugs ( 54 grams), concealed under the waistband of his underwear or inside his underwear. I do not believe that Mr. Nguyen would have been walking with a stiff left side and a more fluid right side or for that matter that his concealing such a light bag of drugs would have affected his gait in any way.

[66] Even if I accepted the evidence that it appeared from his gait that Mr. Nguyen was concealing “something”, PC Van Ruyven never provided any explanation for how he moved from a belief that Mr. Nguyen was concealing “something” to the belief that he was concealing a firearm, which would have been a heavy object. Furthermore, accepting PC Van Ruyven’s evidence as to what he knew about Mr. Nguyen, he believed that Mr. Nguyen had been found in possession of a firearm twice before, in 2015, which was two years before this incident and he had no specifics to support his more recent belief that Mr. Nguyen carried a firearm.

[67] Furthermore, according to PC Van Ruyven, he also believed Mr. Nguyen was a drug dealer. No explanation was provided for why he would be in possession of a firearm rather than drugs. There was nothing that suggested the object that was being concealed was a firearm as opposed to drugs apart from vague assertions by the officers. PC Van Ruyven gave no consideration to the fact that if Mr. Nguyen was concealing something, it was just as likely that he was concealing drugs.

[68] My conclusion in this regard is bolstered by the fact that when PC Van Ruyven told Mr. Nguyen that he was under arrest he did not say for what and notably did not say that he was under arrest for possession of a firearm.

[69] I also have difficulty in believing that Mr. Nguyen would have been “guarding” the drugs in the manner stated by PC Van Ruyven and PC Kenny. Although he may have hand his left hand over the area where the drugs were concealed, once he noticed the police officers, the last thing Mr. Nguyen would have wanted to do was to attract attention to the drugs he was concealing. I definitely do not accept the evidence of all three officers that while he was struggling with PC Van Ruyven that Mr. Nguyen would have been trying to reach these drugs while he was being handcuffed as again that would simply have drawn attention to them. There is no conceivable reason why he would do so. As Ms. Page submitted, if the drugs fell down into his pants, he was wearing sweat pants that had a cuff and so the drugs would not have fallen to the ground. He would have wanted to avoid drawing attention to them.

[70] In this regard, I also found that the evidence of PC Van Ruyven was inconsistent in an effort to support his position that Mr. Nguyen was attempting to reach for this supposed firearm. PC Van Ruyven admitted that after he commanded Mr. Nguyen to show him his hands, that his hands did not move and that he could see both hands. Even if I accepted the evidence that Mr. Nguyen had his left hand over the area where the drugs were concealed, which for reasons already stated I do not believe, since his hand did not move, there was no basis upon which PC Van Ruyven could testify that he was “reaching” for this object. In my view this evidence was made up to support the alleged risk that Mr. Nguyen was reaching for a firearm so that PC Van Ruyven’s grabbing Mr. Nguyen could be justified.

[71] I also do not believe that even after he was handcuffed that Mr. Nguyen continued to try to get his hands into the front of his pants. Again, that would only have drawn attention to the drugs he knew were illegal and the drugs could not have assisted him in resisting arrest. There would be no reason for him to do this and there were reasons for him not to do so.

[72] For these reasons I have concluded that PC Van Ruyven did not in fact believe Mr. Nguyen was carrying a firearm when he detained him.

PC Kenny

[73] PC Kenny was well prepared and had clearly reviewed her police notes and her prior testimony at the preliminary inquiry carefully and committed it to memory. Like PC Van Ruyven she generally struck me as a credible witness as she gave her evidence although unfortunately, some of her evidence was simply unbelievable and like my view of the evidence of PC Van Ruyven, I do not accept it as true.

[74] As already stated, PC Kenny testified that the drugs weighed a total of almost 54 grams. She said that in her view the best equivalent to this was if one had a personal sized water bottle filled with sand – that would be equivalent to the weight of both types of drugs combined. In cross examination PC Kenny was given a CLIF energy/protein bar to hold, which weighs 50 grams. I held it as well. Notwithstanding how light this CLIF bar feels in your hand, PC Kenny still insisted that in her mind the weight of the drugs she seized from Mr. Nguyen was in her estimation equivalent to a personal sized water bottle filled with sand. This evidence was clearly false in my view and I can only conclude that PC Kenny exaggerated the weight of the drugs in the first place or being faced with this real evidence refused to admit she was mistaken. Either way, it was a serious blow to her credibility.

[75] Once the CLIF bar was in evidence I came to the conclusion that, given the weight and where the drugs were being concealed, that Mr. Nguyen concealing these drugs in his underwear would in no way have affected his gait and in particular would not have caused him to walk in the manner described by the officers that they claimed, suggested he was concealing “something” let alone a firearm. The drugs were so light that they could easily have been held in his underwear and not only not affected the way Mr. Nguyen walked but also would not have caused a bulge that would have been noticeable given that he was wearing sweat pants.

[76] Furthermore, for all of the reasons I have given with respect to PC Van Ruyven’s evidence, I do not accept that PC Kenny suspected that Mr. Nguyen was carrying a firearm when PC Van Ruyven detained him.

[77] There was at least one other significant aspect of the evidence of PC Kenny that caused me to conclude that she was not being truthful. In cross examination PC Kenny said that she could not recall any conversation between PC Van Ruyven and Mr. Nguyen when PV Van Ruyven first spoke to Mr. Nguyen and in particular, she did not hear the LCBO ruse. She testified that at this point she experienced an “auditory exclusion”, which she attributed to the fact that in that moment she was scared. Within seconds of whatever was said by PC Van Ruyven, she testified that she heard PC Van Ruyven tell Mr. Nguyen to “show me your hands” or something along lines. That is when she knew Mr. Nguyen was going to be arrested. I found this point to be hard to believe as well as that command would not necessarily give a basis to arrest someone. Furthermore, even accepting that there is such a condition as an auditory exclusion, given that I do not believe PC Kenny thought Mr. Nguyen was concealing a firearm, there would have been no reason for her to be so scared that it would result in her not actually hearing what was said.

[78] Ms. Myers asked PC Kenny more questions about the “auditory exclusion” that she alleges she experienced. She testified that this was a self-diagnosis and that she has experienced an auditory exclusion since on two other occasions. However, she has never reported the fact that she has had these experiences to any senior officer. She acknowledged however that this could be dangerous, and Ms. Myers gave her several examples of situations where this could amount to a life or death situation. This evidence suggested that perhaps PC Kenny was not being truthful about this auditory exclusion, a conclusion I came to once I considered all of her evidence on this point.

[79] PC Kenny testified that she realized for the first time when she was preparing to give evidence at the preliminary inquiry that PC Van Ruyven had a conversation with Mr. Nguyen that she did not hear. She insisted that she did not hear PC Van Ruyven tell Mr. Nguyen that he was stopping him to investigate a theft from the LCBO. She testified that Mr. Nguyen was arrested for possession of a firearm due to his displaying characteristics of an armed person.

[80] PC Kenny mentioned this auditory exclusion for the first time in her evidence in chief at the preliminary hearing. She testified at trial that having reviewed her notes before giving her testimony at the preliminary hearing she realized that she had experienced an auditory exclusion although she did not tell anyone about this. I asked PC Kenny further questions about this since she did record in her police notes that there had been a conversation between PC Van Ruyven and Mr. Nguyen at the end of her shift and she admitted that at that time she would have realized that there had been a conversation that she did not recall the details of. PC Kenny testified that she did not recognized the importance of the conversation at the time she made her notes but that she did when she was preparing to give evidence at the preliminary inquiry. She insisted that she had not heard about PC Van Ruyven’s testimony about the LCBO ruse but that is the only reason I can think of why this conversation would now have become important to her.

[81] I have come to the conclusion that PC Kenny had not heard that PC Van Ruyven had admitted to fabricating the reason for the detention – the LCBO ruse, and that she gave the evidence of an auditory exclusion at the preliminary inquiry and again at trial to avoid having to tell the court about this ruse which she knew was in breach of the Charter. I do not believe that she in fact experienced an auditory exclusion.

Was Mr. Nguyen Lawfully Detained?

[82] The threshold to trigger an investigative detention was set out in R. v. Mann, 2004 SCC 52 at paras. 34-35. Police officers may detain an individual for investigative purposes if the police are acting in the exercise of their duty and the detention is justified as reasonably necessary in the totality of the circumstances. 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. As stated by the Supreme Court of Canada in R. v. Chehil, 2013 SCC 49 at para. 26, reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny.

[83] However, as stated by the Ontario Court of Appeal in R. v. McGuffie, 2016 ONCA 365 at para. 38, the police cannot use an investigative detention as an excuse for holding suspects while the police search for evidence that might justify the arrest of the suspect.

[84] I have concluded that I do not accept the evidence of the officers that they reasonably suspected that Mr. Nguyen was walking in a manner that suggested that he was concealing something, let alone a firearm. In other words, they did not have a reasonable suspicion that he was committing any crime. Even if I had come to another conclusion, I would have had difficulty in concluding that the officers could point to a constellation of factors that would lead them to believe that Mr. Nguyen was in possession of a firearm as opposed to drugs. This has significance to the manner in which Mr. Nguyen was searched, as I will come to.

[85] The only conclusion I can come to on the evidence, and the facts as I have found them is that Mr. Nguyen was "targeted" by police because they believed he was a member of the Parkdale Crips. In my view, they used the ruse of not only an LCBO theft but an investigative detention as an excuse to detain Mr. Nguyen and then to search him for evidence that might justify his arrest. In doing so, they breached his s. 9 Charter rights.

[86] In addition, I find that there was a s.10(a) Charter violation. Section 10(a) of the Charter provides that everyone has the right to be promptly informed of the reasons for their detention. The police must tell the detainee in clear and simple language the reason for the detention; Mann, supra at para. 21.

[87] Given the conclusion I have come to as to what the officers in fact believed before they detained Mr. Nguyen, the only reason I can think of for their detaining Mr. Nguyen and telling him this lie was that PC Van Ruyven knew he did not have sufficient grounds to detain Mr. Nguyen. I find that his motive for lying to Mr. Nguyen about the LCBO theft was not because of public safety and officer safety concerns in that PC Van Ruyven did not in fact reasonably suspect that Mr. Nguyen was carrying a firearm. It was a ruse to detain Mr. Nguyen so that he could be searched for evidence that might justify his arrest. Although the courts have held that a delay in advising of the reasons for detention can be justified if there are safety concerns, for example see R. v. Gonzales, 2017 ONCA 543 at para. 128 and R. v. Rafiq, 2017 ONCA 185 at paras. 2 and 3, that was not this case. Mr. Nguyen was told a lie.

[88] I fail to see how telling a lie can be justified-whereas a delay in advising of the reason for detention might have been if there were legitimate safety concerns. I do not need to determine that issue however, as I have not found that PC Van Ruyven in fact believed that Mr. Nguyen was armed and as such, he could not have had the safety concerns that he claimed.

[89] The Crown submits that if this Court finds that PC Van Ruyven breached Mr. Nguyen's s.10(a) Charter rights, that his underlying safety concerns should be viewed as an attenuating factor in any s. 24(2) Charter analysis. However, since I have not found that PC Van Ruyven had underlying safety concerns, I cannot find that his ruse was intended to manage the perceived level of risk that Mr. Nguyen posed.

Was Mr. Nguyen’s arrest lawful?

[90] Given my conclusion that the officers did not reasonably suspect that Mr. Nguyen was concealing a firearm, there can be no doubt that his arrest was also unlawful. They had no evidence that he was committing any crime or was linked to any crime. In unlawfully arresting Mr. Nguyen, the officers further breached his s. 9 Charter rights.

Was the search of Mr. Nguyen lawful?

[91] Safety searches are only permitted where the officer believes on reasonable grounds that his or her safety, or that of others, is at risk. These are warrantless searches aimed at addressing an imminent risk; R. v. Macdonald, 2014 SCC 3 at paras 32 and 41. As the court stated at para. 32:

A search that is reasonably necessary to eliminate threats to the safety of the public or the police -- which I will term a "safety search" -- will generally be conducted by the police as a reactionary measure. In other words, although such searches may arise in a wide variety of contexts, they will generally be unplanned, as they will be carried out in response to dangerous situations created by individuals, to which the police must react "on the sudden".

[92] In Mann, supra, at paras. 40, 43, and 45, the court referred to the power to conduct a pat-down search incident to an investigative detention, where an officer has a reasonable belief that his safety or the safety of others is at risk, and the fact that it cannot be justified on the basis of a vague or non-existence concern for safety nor can the search be premised upon hunches or mere intuition.

[93] Given my finding that the officers did not actually believe that Mr. Nguyen was concealing a firearm, obviously the search done by PC Van Ruyven cannot be justified as a safety search. Assuming that Mr. Nguyen was lawfully detained for investigative purposes, the circumstances would have authorized the officers to do no more than a pat-down search to confirm that he was not in possession of a weapon. In that case, a pat-down search confirming he had no weapon, as PC Van Ruyven conceded, would have been the case, should have ended of the police contact with Mr. Nguyen. There was no legitimate reason to reach into Mr. Nguyen’s underwear to pull out the drugs, regardless of how close the bag was to the waistband of his underwear.

[94] It is difficult to conclude how intrusive the actual search conducted by PC Van Ruyven did was but to some extent he glanced in and reached into Mr. Nguyen’s underwear and removed the drugs. As I have already said I prefer the evidence of PC Kenny that he reached into Mr. Nguyen’s underwear much further than he admitted to. Clearly this search was more intrusive than a pat down search and it violated Mr. Nguyen’s rights as guaranteed by s. 8 of the Charter.

Was Excessive Force used in Detaining, Arresting and Searching Mr. Nguyen?

[95] As submitted by Mr. Nguyen, since his detention, arrest and search were unlawful, he was justified in resisting his detention by PC Van Ruyven and the arrest and search of his person that the officers proceeded to do. By definition the use of force by the police to overcome his resistance was excessive.

[96] Even apart from this conclusion, I find that the use of force in detaining, arresting and searching Mr. Nguyen, was excessive. I appreciate that the circumstances confronting a police officer in an arrest situation are continuously evolving and unfolding - a review of the actions of a police officer in such a dynamic situation "ought not to be reduced to an over-analytical parsing of events into static moments without particular regard for the overall picture". The actions of a police officer ought not to be judged with 20/20 hindsight; see R. v. Amofa, 2011 ONCA 368 at paras. 19, 24-25 and R. v. Rigo, 2017 ONSC 3694 at para. 73.

[97] The Crown argues that the force used by the officers was reasonable in the circumstances because they were attempting to safely detain an individual that they believed to be armed with a firearm concealed around the front left area of Mr. Nguyen's waist. Believing that they were facing an imminent danger, the police officers used force that was reasonable in the circumstances.

[98] I have found however, that not only was the initial detention unlawful, but that the officers were not acting on the basis of what they subjectively believed to be a lawful detention and that they did not subjectively believe that Mr. Nguyen was armed with a firearm. Similarly, they had no reason to arrest Mr. Nguyen and at most could only have justified a pat-down search. As a result, the use of force was not justified.

[99] Had I found otherwise I would still have been concerned that excessive force was used. I accept that Mr. Nguyen vigorously resisted his detention, arrest and being handcuffed. However, both PC Van Ruyven and DC Worth had their weight on him and given Mr. Nguyen’s size in comparison it is not surprising that he had difficulty breathing as a result. I find it impossible to believe that whatever strength Mr. Nguyen exhibited that it required the weight of two officers weighing a total 450 lbs. versus Mr. Nguyen’s weight; a little more than one third of their combined weight at 160 lbs. This is without considering the fact that Officers Van Ruyven and Worth were assisted by PC Kenny.

[100] Furthermore, although I accept from the video evidence that when Mr. Nguyen was brought to the scout car, he was continuing to physically resist and he was not complying with instructions, there seems to have been no reason for PC Van Ruyven to throw him into the back seat of the scout car with the force that can be seen on the video. I note that both PC Van Ruyven and DC Worth attempted to minimize what is obvious from the video when they testified that Mr. Nguyen was “placed” in the scout car.

[101] The position of the Crown is that the complaints made by Mr. Nguyen while at the police station have minimal relevance to the question of whether excessive force was used during the arrest. Mr. Nguyen asked for a puffer and advised the booking sergeant that he has asthma and that his asthma is something he deals with on a regular basis. Without expert evidence to support a causal link, Ms. Stewart argues that Mr. Nguyen's difficulty breathing could be attributed to a number of possibilities: the physical exertion during the arrest, the stress and anxiety over being arrested for possession of drugs, the stress and anxiety over the uncertainty of what is going to happen next, or an asthma attack could simply be a regular daily occurrence for Mr. Nguyen that can occur in any and all circumstances, both calm and stressful.

[102] It is not necessary for Mr. Nguyen to prove that he suffered injuries caused by the force used to detain, arrest and search him. In my view, on the evidence before me, for the reasons given, the force used to detain, arrest, search and get Mr. Nguyen into the scout car seems excessive. Had this been the only concern with the conduct of the officers, I do not know that I would have been able to conclude that the force used deprived Mr. Nguyen of his right to "security of the person" in accordance with the principles of fundamental justice, in breach of s. 7 of the Charter, but nevertheless it is of serious concern.

The s. 24(2) Charter Analysis as it relates to the Detention, Arrest and Search of Mr. Nguyen

[103] Having found that the detention, arrest and search of Mr. Nguyen violated his ss. 8, 9 and 10(a) Charter rights I must consider whether or not the drug and related evidence found on his person should be excluded from the ITO and the trial proper.

[104] R. v. Grant, 2009 SCC 32, sets out the factors I must consider and balance in order to make this determination. With respect to the first factor, the seriousness of the Charter breach, I must assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts effectively condone state deviation from the rule of law (Grant at para. 72). This analysis involves a consideration of whether or not the Charter breach was, on the “one hand inadvertent or minor” or, on the other hand, showed "willful or reckless disregard for Charter rights" (at para. 74). The court must also consider whether the police acted in good faith (at para. 75).

[105] In light of my findings that the officers have not been truthful and that they attempted to persuade me that their actions were all lawful, knowing that they had no grounds to detain, arrest and search Mr. Nguyen, this was clearly a very serious breach not only of Mr. Nguyen’s Charter rights at the time but also each officer’s oath to tell the truth. Even if Mr. Nguyen was a member of the Parkdale Crips and had a reputation for dealing drugs and carrying a firearm, that did not permit them to take shortcuts – he had Charter rights that they willfully disregarded and attempted to hide from this Court in their evidence. This serious and deliberate breach and bad faith conduct strongly favours, if not compels, exclusion of the evidence.

[106] The second factor in Grant, requires a consideration of the impact of the breach on the defendant. When considering the impact of the breach on the accused person's Charter protected interests, it is necessary to evaluate the extent to which the breach actually undermined the interests protected by the right infringed. A court should consider whether the impact of the breach was "fleeting and technical" or "profoundly intrusive" and consider the effect of the breach on the accused's human dignity: paras. 76 and 78.

[107] The majority of the court in Mann, supra, found that the evidence obtained as a result of the unlawful search during a detention short of arrest should be excluded. Although the court determined this issue under the earlier test prescribed by R. v. Collins, [1987] 1 S.C.R. 265, the case is still instructive, given its factual similarity. Iacobucci, J. said (at para. 56):

While a frisk search is a minimally intrusive search, as noted by this Court in Cloutier, supra, at page 85, the search of the appellant's inner pocket must be weighed against the absence of any reasonable basis for justification. Individuals have a reasonable expectation of privacy in their pockets. The search here went beyond what was required to mitigate concerns about officer safety and reflects a serious breach of the appellant's protection against unreasonable search and seizure. [Emphasis added]

[108] In R. v. Mellenthiln, [1992] S.C.J. No. 100 the court came to the same conclusion at paragraphs 26 and 27 where, even though there was no bad faith on the part of the officers, the court concluded that the evidence seized; marijuana, be excluded.

[109] In this case I have found that PC Van Ruyven had no reason to lie to Mr. Nguyen about why he was detaining him and certainly no reason to physically take control of him, take him to the ground and use excessive force along with DC Worth and PC Kenny to detain and arrest him. He then reached into Mr. Nguyen’s underwear, rather than doing a pat-down search. This was clearly very intrusive and it seriously impacted Mr. Nguyen’s human dignity.

[110] For these reasons I conclude, that the detention, arrest and search of Mr. Nguyen were serious breaches, in terms of their impact on Mr. Nguyen, and that they were sufficiently serious breaches of his s. 8, 9 and 10(a) Charter rights so as to favour exclusion of the evidence.

[111] Finally, considering the third Grant factor; society's interest in the adjudication of the case on its merits, the drugs are real evidence and clearly very reliable evidence. The Crown's case on this charge and the related charges depends upon this evidence. Without this evidence the Crown has no case. This is a strong factor favouring inclusion of the evidence. This, however, has the potential to "cut both ways" in that the reasons for both exclusion and admission of the evidence are heightened when the stakes are high; Grant at para. 84.

[112] At this stage of the analysis I must weigh the various factors. I do so understanding that there is no overarching rule governing how the balance should be struck; Grant at para. 86.

[113] Although the evidence is reliable and important to the Crown's case and the charges are serious, the breaches of Mr. Nguyen’s s. 8, 9 and 10(a) Charter rights were deliberate and serious. The officers had no regard for Mr. Nguyen’s Charter rights. Essentially the officers behaved as if he had no Charter rights because of his criminal record and the fact they believed he was a member of the Parkdale Crips. That of course is not the case and this Court cannot condone such conduct; this was a serious and flagrant breach of Mr. Nguyen’s Charter rights.

[114] What makes these Charter breaches even more serious is that I have found that the officers have acted in bad faith. They came to this Court and gave false evidence in an attempt to persuade me that they believed Mr. Nguyen was concealing a firearm on his person, which if true would have gone a long way to justify their actions in detaining, arresting and searching Mr. Nguyen. This was a clear attempt to mislead the Court and the officers must have realized they had no lawful basis to act as they did at the time.

[115] In my view the conduct of the police officers in this case would not be countenanced by reasonable, right thinking people in the community.

[116] For these reasons, balancing all of the factors as required by Grant, I find that despite the fact cocaine was found on Mr. Nguyen’s person, the other Grant factors tip the balance of the s. 24(2) factors strongly in favour of the exclusion of the evidence. Admission of this evidence in the trial would bring the administration of justice into disrepute. This Court cannot condone the serious misconduct of the officers in this case notwithstanding the seriousness of these charges.

Disposition

[117] For these reasons I find that the Crown has not satisfied me that the detention, arrest and search of Mr. Nguyen was lawful. I find that Mr. Nguyen’s s. 8, 9 and 10(a) Charter rights were violated and that the drug and related evidence found on his person, when he was arrested, should be excluded as evidence at his trial and in the ITO pursuant to s. 24(2) of the Charter.

SPIES J.

Released: October 10, 2019

Edited Decision Released: October 17, 2019