COURT FILE NO.: CR-18-30000560-0000
DATE: 20191017
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
YASIN PATEL Applicant
Beverley Olesko, for Her Majesty The Queen
Doug Gosbee, for the Applicant
HEARD: September 23-26, 2019
RULING ON APPLICATION FOR AN ORDER TO STAY ALL CHARGES PURSUANT TO S. 24(1) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS
DUNNET J. (Orally)
Overview
[1] The applicant has been charged with firearm, ammunition and drug offences and with breaching court orders. He seeks a stay of proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, alleging that his ss. 7 and 12 Charter rights were violated when he was arrested on a warrant for attempted murder.
[2] On November 2, 2017, a warrant was issued for the arrest of the applicant on the charge of attempted murder.
[3] On January 6, 2018, the applicant was observed driving a motor vehicle around the City of Toronto. A team of police officers commenced surveillance, resulting in a high-risk takedown of the vehicle. During the takedown, the applicant was injured and taken to the hospital where he received three staples to each of two cuts to his scalp above his left ear. He was released and taken to the police station.
[4] During a search at the police station, cocaine, heroin and fentanyl were found in the applicant’s underwear and ammunition was found in his pants.
[5] On January 8, 2018, a Criminal Code search warrant was executed on the vehicle driven by the applicant. Inside the trunk, the police found documents in the name of the applicant and a gun with six rounds of ammunition.
[6] Sections 7, 12 and 24(1) of the Charter provide:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
24(1). Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
[7] The onus is on the applicant to satisfy the court on a balance of probabilities that there has been a breach of his Charter rights and that the proceedings should be stayed.
Evidence of the Police Officers
Police Officer Kevin Rasmussen
[8] On January 6, 2018, Officer Kevin Rasmussen was the central notetaker on the surveillance team investigating the applicant. He was aware that the applicant was wanted for attempted murder and was believed to be in possession of a firearm.
[9] At 7:35 p.m. Officer Rasmussen observed the applicant at Kennedy Road and Ellesmere Avenue in Scarborough driving a white Hyundai motor vehicle with licence plate number CDHH 861. The vehicle was followed to the west end of Toronto to a townhouse complex on Jayzel Drive. The vehicle then headed east and stopped at a gas station at Jayzel and Finch Avenue where an unknown male left the vehicle, entered McDonald’s, and returned to the vehicle.
[10] The vehicle left McDonald’s and was followed to Tim Hortons on Victoria Park Avenue north of Highway 401. It remained in the area from 9:04 p.m. to 10:35 p.m. The vehicle travelled to a parking lot at Canyon Creek Restaurant in the Scarborough Town Centre before proceeding north on McCowan Road.
[11] As Officer Rasmussen was driving his vehicle ahead of the applicant’s vehicle on McCowan approaching Commander Boulevard, a takedown was called at 10:55 p.m. The applicant’s vehicle was boxed in by seven police vehicles. The vehicle mounted the curb on the east side of McCowan where it became lodged in a snowbank.
[12] Officer Rasmussen approached the driver’s side of the vehicle and drew his firearm, holding it in the “low-ready” position. The word “POLICE” was visible on the front and back of his vest.
[13] He observed a male passenger seated behind the driver and the driver leaning forward and to the right. He thought that the driver was either attempting to flee on the passenger side of the vehicle or attempting to retrieve or discard a weapon. He could not see the driver’s hands.
[14] Officer Rasmussen and Officer Shawn Lillie removed the rear passenger from the vehicle who identified himself as Shaka Hibbert. Officer Bryan Correia arrested the front passenger who identified herself as Mia Hardware.
[15] After removing Mr. Hibbert from the vehicle, Officer Rasmussen assisted Officer Matthew Clarke in removing the applicant from the vehicle and putting him on the ground. Officer Clarke arrested him and Officer Rasmussen applied handcuffs.
[16] In cross-examination, Officer Rasmussen testified that as the central notetaker, he recorded the officers’ times and observations when they came over the air as events were unfolding. His own notes were made after the debriefing during which he reviewed his central notes with the other officers.
[17] In the surveillance report that he prepared after the debriefing, Officer Rasmussen recorded Officer Correia’s observations that at 10:35 p.m. the applicant went into McDonald’s with a male wearing a brown jacket, black pants and a black hoodie. At 10:45 p.m. they returned to the vehicle. Officer Rasmussen acknowledged that he made a mistake in the central notes when he recorded that there was one male who went into McDonald’s.
[18] He also acknowledged that he did not make a notation in the central notes of his observation of the applicant leaning towards the passenger seat or his belief that the accused was either attempting to flee or to retrieve or discard a weapon.
[19] He agreed that he failed to record in his notes that he assisted Officer Clarke in taking the applicant out of the vehicle. He did not see any injuries to the applicant at that point. When the ambulance arrived, he saw that the applicant was bleeding.
Police Officer Matthew Clarke
[20] Officer Matthew Clarke was part of the surveillance team on January 6, 2018. He was aware that the applicant was wanted for attempted murder in a shooting and that he was in possession of a firearm.
[21] Officer Clarke’s vehicle was travelling northbound in the curb lane of McCowan ahead of the applicant’s vehicle, which was travelling at a slow rate of speed.
[22] When the takedown was called, Officer Clarke stopped his vehicle and ran back towards the applicant’s vehicle. The officer was wearing a vest with the word “POLICE” in large reflective letters and he was carrying his police-issued shotgun.
[23] He heard Officer Allan Bishop yelling at the applicant to put his hands up. As Officer Clarke approached the driver’s side of the vehicle, he pointed his shotgun at the applicant. When he saw that the applicant was not following Officer Bishop’s orders, he yelled, “Police, hands up.”
[24] He saw the applicant partially lift his hands up and then make a quick movement with his right hand down to his waist area. The officer became concerned that the applicant could be reaching for a firearm. He used the muzzle end of his shotgun to break the driver’s side window of the vehicle. The momentum broke the glass and came into contact with the applicant’s head above his left ear.
[25] The officer testified that he was surprised that the window broke on the first try, which had not happened when he had used the technique before, and he was surprised that the gun hit the applicant’s head. He testified that he did not intend to hit him.
[26] He explained that the shotgun could not have fired because he positioned his finger off the trigger and along the lower part of the receiver where he had been trained to place it when he was not intending to fire the gun.
[27] After the window broke, the applicant put his hands up. Officer Clarke held him at gunpoint until Officer Rasmussen was able to assist him in taking the applicant out of the vehicle and onto the ground where he was arrested and handcuffed.
[28] Officer Clarke testified that when the applicant stood up, he noticed blood coming from above his ear. The applicant asked for an ambulance and the officer arranged for one to be called. Officer Clarke remained with the applicant until the ambulance arrived at 11:10 p.m.
[29] He testified that he did not see anyone kick the applicant in the face.
[30] That night, Officer Clarke prepared an injury report and use of force report.
[31] In cross-examination, Officer Clarke testified that he had been a member of the Toronto Police Service for twenty years and had been trained to use a handgun and shotgun. He had not received training to use a shotgun as an impact weapon and did not know if he was prohibited from doing so.
[32] He agreed that he hit the driver’s side window as hard as he could. He testified that he did so for safety reasons, believing that the applicant had a semi-automatic firearm concealed on his person. He denied that he struck the window more than once. He agreed that his shotgun came into contact with the applicant’s head, but that it was accidental.
[33] Officer Clarke was asked about the use of force document that he completed. He testified that under the heading, “type of force used,” he checked the box that read “firearm – pointed at person.” Under the heading, “reason for use of force,” he checked the box that read “effect arrest.”
[34] Under the heading, “distance,” he checked the box that read, “less than two metres between you and the subject at the time the decision was made to use force.” He checked the box that read, “weapon carried by subject,” as “semi-automatic” and “location of subject’s weapon,” as “concealed on person.”
[35] The officer agreed that he had received information that the applicant was in possession of a firearm, not that he had it on his person. He agreed that he did not see a firearm.
[36] He noted on the use of force report that medical attention was required and that the nature of the injuries was minor. He acknowledged that the doctor applied staples to the cuts to the applicant’s head.
Police Officer Andrew Judd
[37] On January 6, 2018, Officer Andrew Judd conducted the police briefing. He had information that the applicant was wanted for attempted murder in a shooting; he was operating a white Hyundai motor vehicle and was armed with a firearm.
[38] By the time that Officer Judd arrived at the scene after calling the takedown, the applicant and the two passengers were outside the vehicle. He was aware that the applicant had a cut to his head and was bleeding. He did not know what had caused the injury. He did not see anyone kick the applicant.
[39] Officer Judd took photographs of the vehicle before it was sealed and towed.
Police Officer Euan McDermott
[40] After the takedown and arrest of the applicant, Officer Michelle Olszevski asked Officer Euan McDermott to be a uniformed presence by assisting the drivers of vehicles travelling on McCowan in the vicinity of the takedown. He received information that there were two occupants in the vehicle driven by the applicant and both were known to carry firearms. He did not know who gave him the information.
[41] At 11:45 p.m. Officer McDermott sealed the vehicle before it was towed to a police facility to be searched.
Police Officer Shawn Carter
[42] At 1:11 a.m. on January 7, 2018, Officer Shawn Carter was asked to relieve Officer Glenn Espie who was with the applicant at the hospital. When the officer arrived, the applicant was seated in the waiting room with a bandage wrapped around his head and blood on his hands, face and clothing. The officer did not recall any excessive blood coming from the bandage.
[43] At 2:30 a.m., a doctor applied staples to the cuts above the applicant’s ear. The applicant was transported to the police station where he was booked and searched at 3:14 a.m.
[44] In the opening of the front of the applicant’s underwear, Officer Carter found a clear Ziplock bag containing a large white chunk and smaller pieces of a substance, a ripped grey plastic bag with a substance, and a ripped white plastic bag with a substance. It is agreed that the bags contained 2.93 grams of fentanyl, .27 grams of a mixture of heroin, cocaine and fentanyl, and .56 grams of cocaine.
[45] Inside the applicant’s track pants worn under his jeans, Officer Paul MacIntryre found one round of 9 mm ammunition.
Yasin Patel
[46] The applicant is twenty-four years old. On January 6, 2018, he was driving a white Hyundai motor vehicle with Mr. Hibbert seated behind the driver and Mr. Hibbert’s girlfriend in the front passenger seat.
[47] When the vehicle was stopped in the parking lot of the Canyon Creek Restaurant, the applicant noticed a black Chrysler. The driver gave him a weird look and then sped away. He saw the Chrysler again as he was travelling northbound on McCowan. The applicant started to drive slowly and as he approached Commander, he realized that the driver of the Chrysler was a police officer. He knew that he was wanted for attempted murder. He testified that he had been “on the run” since November 2, 2017.
[48] The applicant saw the police vehicles closing in on his vehicle. When the Chrysler pulled into his lane, he panicked, turned his wheel to the right and the vehicle climbed a snowbank. He testified that as he turned the wheel, he accidentally unhinged the driver’s door handle and the door was slightly ajar.
[49] He saw the police getting out of their vehicles with their guns pointed at him. He tried to put his hands up almost even with his head.
[50] A couple of seconds later, someone smashed the driver’s window three times with a gun. On the first hit, there was a small crack 2.5 inches in diameter. The second hit made him flinch and little pieces of glass began to shatter. The third hit opened a hole in the window ten inches high and fourteen inches wide. He testified that the gun did not make contact with him.
[51] The applicant testified that as they were smashing the window, he leaned to the right, but he kept looking to the left because their guns were pointed at his face. He said that there were at least two hits to the window before it broke.
[52] At that point, someone hit him. The first hit was a full swing. The second hit was a quick tap. He said that he was dazed. Blood was dripping from his nose onto his pants.
[53] He testified that Officer Clarke said, “Don’t move. Keep your hands up or I will smash your head again.” Two men grabbed him by the arms, tossed him out of the vehicle and threw him onto the ground. After he was handcuffed, someone with brown shoes kicked him in the nose before he was lifted off the ground.
[54] When Officer Clarke asked for his name, the applicant told him that he needed an ambulance. The officer said, “It’s just a cut. Get over it. Tell me your name and I will call an ambulance.” He told the officer his name and then said, “Congratulations.”
[55] At the hospital, a doctor applied staples to his head. At the police station, the applicant told the booking officer that an officer had kicked him in the nose.
[56] In cross-examination, the applicant denied that he was trying to open the driver’s door as he turned the wheel of the vehicle. He testified that the door had a lever that pulled inward and he accidentally “unhooked” the door.
[57] He maintained that his hands were up in the air “from the get go” and he did not bring them down to his waist. He said, “If I reached for my waist, I could get shot, so I kept my hands up.”
[58] The applicant denied that the window broke on the first hit. When it was suggested to him that if glass was coming into the vehicle, he would have instinctively been looking away from the window, he said that he kept looking to the left because guns were pointed at his face.
[59] He testified that Officer Clarke hit him twice. One hit was above his ear and the other was an inch higher. When it was suggested to him that there was only one hit to the head with the gun, he replied, “Could be possible.”
[60] The applicant stated that when the officer with brown shoes kicked him in the nose, it was bruised and remains “slightly bent.” It was suggested to him that he did not say anything about his nose in the ambulance or at the hospital. He answered, “I needed medical attention for my face, not my nose.”
The Position of the Applicant
[61] The applicant takes no issue with the manner in which the police stopped his vehicle during the takedown or the manner in which the police approached him with their guns drawn. It is submitted that this was a reasonable response to a high-risk situation.
[62] The applicant contends that the actions of the police thereafter were unreasonable and breached his right to life, liberty and security of the person and his right not to be subjected to any cruel or unusual treatment or punishment.
[63] It is asserted that the court should have serious concerns about the failure of Officer Rasmussen to record in the central notes his observation of the applicant leaning to the right, causing the officer to believe that he was either trying to flee or to retrieve or discard a firearm.
[64] The applicant submits that Officer Clarke’s belief that there was a firearm in the vehicle does not justify his actions and does not make sense when no firearm was found inside the vehicle. It is submitted that Officer Clarke had not received training to use the shotgun in such a dangerous and reckless manner.
[65] It is submitted further that although Officer Clarke described the injury in the use of force report as “minor,” the medical records describe two 1 to 2-inch lacerations to the scalp.
[66] The applicant contends that Officer Clarke had no knowledge of the facts surrounding the attempted murder investigation or whether the applicant had a history of non-compliance. Therefore, his actions in breaking the window and injuring the applicant went beyond what was reasonable in the circumstances.
[67] It is submitted that the court should accept the applicant’s evidence that he was compliant with the demands of the police. After Officer Clarke approached the vehicle, things were happening quickly and the applicant could not have known that it was a shotgun that struck the window.
[68] The position of the applicant, therefore, is that his Charter rights were violated and the charges against him should be stayed because the prejudice caused by the abuse will be manifested through the conduct of the trial or by its outcome and no other remedy is appropriate. In the alternative, if he is convicted, it is submitted that a sentence reduction may be appropriate because of excessive use of force causing significant bodily injury.
The Position of the Respondent
[69] The respondent submits that Officer Clarke had information that the accused was wanted for attempted murder involving a shooting and was in possession of a firearm. The officer had no duty to do a second investigation before the arrest.
[70] It is submitted that when the applicant was non-compliant with the police demands and lowered his right hand to his waist, Officer Clarke thought that he could be reaching for a firearm. He did not know that there was no firearm inside the vehicle. In the circumstances, it was reasonable for the officer to use a distraction technique for officer and public safety.
[71] When Officer Clarke had used the same technique before, it had taken two or three strikes before the window broke. He was surprised that the window broke on the first try and he was surprised that it struck the applicant.
[72] Moreover, it is the contention of the respondent that the only options in the use of force report describing the nature of the injuries were “minor, serious, fatal and unknown.” Therefore, although the applicant received two cuts requiring staples, it is not the most serious of injuries.
[73] The applicant testified that the window was struck three times and on the fourth delivery, Officer Clarke hit him in the head. He also testified that the gun did not make contact with his body. The respondent submits that it does not make sense that if the applicant was looking to the left as the window was being smashed, as he testified, he could not have seen the gun coming at him. It is submitted that it makes more sense to accept the evidence of Officer Clarke that the applicant was injured when the muzzle struck the window.
[74] The position of the respondent is that the police did not use excessive force and there were no violations of his Charter rights. Should the court find a violation, this is not the clearest of cases that would give rise to a stay of proceedings or any other remedy under s. 24(1).
Did the police use excessive force when arresting the applicant?
[75] In R. v. Nasogaluak, at paras. 32, 34-35, the Supreme Court of Canada held:
32 … [P]olice officers do not have an unlimited power to inflict harm on a person in the course of their duties. While, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness.
34 Section 25(1) [of the Criminal Code] essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him-or-herself, or another person under his or her protection, from death or grievous bodily harm. The officer’s belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis. …
35 Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances.
[76] The applicant was wanted for attempted murder that involved a shooting. When the police boxed in his vehicle, he turned the wheel to the right and the vehicle mounted the curb and became embedded in a snowbank. I conclude that he was trying to evade the police.
[77] When officers approached the vehicle with their guns drawn, they told the applicant to raise his hands. Officer Rasmussen saw the applicant leaning to the right. I put little weight on the officer’s failure to put his observation in the central notes. He recorded the observation in his own notes. He removed Mr. Hibbert from the vehicle before assisting Officer Clarke with removing the applicant. He did not see Officer Clarke break the window. In the end, it is Officer Clarke’s actions that are central to the issue of excessive force.
[78] When Officer Clarke saw that the applicant was not following Officer Bishop’s orders, he instructed the applicant to put his hands up. The applicant partially raised his hands and then made a quick movement with his right hand down to his waist. The officer was concerned that the applicant might be reaching for a firearm.
[79] I accept Officer Clarke’s evidence that he struck the window for safety reasons because he was concerned that the applicant had a semi-automatic firearm on his person. In these circumstances, it was reasonable for Officer Clarke to believe that the applicant might be in possession of a firearm and that he might be reaching for the firearm. I find that Officer Clarke struck the window for safety reasons to gain access to the vehicle and to gain control of the applicant in order to prevent him from obtaining a firearm.
[80] I accept the officer’s evidence that he hit the window once with the muzzle of his shotgun, which struck the applicant accidentally. I do not believe the evidence of the applicant that the window was struck again and again.
[81] It may well be that events were happening so quickly that the applicant does not know how he sustained the injury to his head. In any event, I do not believe his evidence that someone hit him twice in the head.
[82] The officer’s conduct must be “constrained by the principles of proportionality, necessity and reasonableness” (Nasogaluak, at para. 32).
[83] In my view, Officer Clarke’s use of force was objectively reasonable in the circumstances. The applicant was being arrested on the authority of a warrant for attempted murder and the officer had reason to believe that he was in possession of a firearm. The applicant was not following instructions given to him by the police and Officer Clarke believed that the officers’ safety and the safety of others was in danger. The situation necessitated that he react quickly in order to gain access to the vehicle.
[84] I have no difficulty in accepting Officer Clarke’s testimony about his actions that day. His evidence was candid, forthright, credible and reliable. When he saw that the applicant was injured and wanted to go to the hospital, Officer Clarke called for an ambulance. The police accompanied the applicant to the hospital. That night Officer Clarke completed a use of force report.
[85] The applicant testified that after the window was broken, someone hit him above the left ear and again an inch higher. Then he was tossed out of the vehicle and onto the ground where he was kicked in the nose.
[86] There is no credible evidence to support the allegation that the applicant was forcefully removed from the vehicle. The defence concedes that aside from the applicant’s own evidence that he was kicked in the face and that he reported this to the booking sergeant, there is no other evidence to support the allegation. In my view, the applicant’s evidence about how he sustained his injuries does not have the ring of truth. I reject his evidence.
[87] I am of the opinion that Officer Clarke was justified in using force to effect the arrest of the applicant. He was acting on reasonable and probable grounds and used as much force as was necessary to break the window of the vehicle, believing that it was necessary to protect himself and others from harm. He thought that the applicant had a firearm and was reaching for the firearm. In the circumstances, I find that his belief was objectively reasonable.
[88] Therefore, the applicant has not satisfied the court on a balance of probabilities that the actions of Officer Clarke and the police violated his Charter rights.
If there was a breach, should a stay of proceedings be granted?
[89] A stay of proceedings is appropriate “in the clearest of cases” where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued (R. v. O’Connor, [1995] 4 S.C.R. 411 at para. 82).
[90] Two types of conduct may warrant a stay of proceedings: (a) conduct that compromises the fairness of an accused’s trial; or (b) conduct that creates no threat to trial fairness, but risks undermining the integrity of the judicial process (O’Connor at para. 73).
[91] In R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 at para. 32, Moldaver J., speaking for the Supreme Court of Canada, set out the test to be used to determine whether a stay of proceedings is warranted:
(a) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome;
(b) There must be no alternative remedy capable of redressing the prejudice; and
(c) Where there is still uncertainty over whether a stay is warranted, the court is required to balance the interests in favoring granting a stay, such as denouncing misconduct and preserving the integrity of the justice system against the interest that society has in having a final decision on the merits.
[92] For the reasons stated above, I find that in the circumstances of this case, there is no prejudice to the applicant’s right to a fair trial or the integrity of the justice system that would be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome. Balancing the interest that society has in having a final decision on the merits with the interests in granting a stay, I find that even if there was a violation of the applicant’s Charter rights, this is not the clearest of cases warranting a stay of proceedings.
Disposition
[93] The actions of Officer Clarke did not involve an egregious and unjustified use of force. Based on the information that he had at the time and in the face of non-compliance with police orders, Officer Clarke was required to act quickly. I am satisfied that his actions were necessary, reasonable and proportionate in the circumstances. There was no breach of the applicant’s Charter rights.
[94] Even if the police used excessive force, this is not the clearest of cases to warrant a stay of proceedings. To permit the proceedings to continue would not be prejudicial to the applicant’s right to a fair trial or detrimental to the integrity of the justice system.
[95] The application is dismissed.
Dunnet J.
Released: October 17, 2019
COURT FILE NO.: CR-18-30000560-0000
DATE: 20191017
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Respondent
– and –
YASIN PATEL Applicant
REASONS FOR RULING on application to stay all charges pursuant to s. 24(1) of the canadian charter of rights and freedoms
Dunnet J.
Released: October 17, 2019