COURT FILE NO.: CR-18-50000534
DATE: 20191119
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SHANNON ROLLE
R. Robinson and P. Larmondin, for the Crown
J. Berman, for Ms. Rolle
HEARD: 3-5 September 2019
s.a.Q. akhtar j.
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[1] The applicant, Shannon Rolle, stands charged with five other co-accused of various offences related to the trafficking of cocaine.
[2] Ms. Rolle brings an application pursuant to ss. 7, 10(b) and 12 of the Canadian Charter of Rights and Freedoms attacking the manner in which she was arrested and transported to the police station. As a consequence, she seeks a number of alternative remedies: a stay of proceedings, exclusion of evidence, or a reduction in sentence in event of conviction.
[3] For the following reasons, the application fails.
Factual Background
[4] As part of their investigation into an operation labelled “Project Kronic”, the police successfully obtained an authorisation to intercept private communications between individuals suspected of drug trafficking, firearms offences, kidnapping and break and enters.
[5] One group of individuals, related through their drug trafficking activities, was the Burke family comprising Howard Burke, and his sons Jason and Omerjah. Their recorded conversations yielded evidence of drug trafficking amongst a wider circle which included Devon Dinall, Nandranee Persaud, Jason Burke’s common-law wife, and the applicant, Shannon Rolle.
[6] Jason Burke and Devon Dinall were arrested in the St. Catherine’s area of Ontario on 2 June 2017. However, the wider pool of approximately 63 suspects were not apprehended until 15 June 2017. The police designated two stations to receive the detainees: 23 and 31 Division.
[7] On 15 June 2017, 37 arrests were made in the Toronto area. All of the accused persons were sent to one of the two divisions, causing delays in completing the booking-in process.
[8] The applicant was arrested at her home in Niagara Falls at approximately 5:00 a.m. that day. She was taken to 31 Division and arrived at approximately 7:14 a.m. to find herself in a queue behind 12 other detained suspects. The applicant and transporting officers, Police Constables James Walker and Scott Surridge, sat in the transporting scout car whilst they waited for the other prisoners to be processed. During that time, the applicant visited the washroom before being returned to the car.
[9] Around 1 p.m. the applicant was provided with two pizza pockets and a juice box.
[10] At 1:23 p.m. the applicant was taken into the station and paraded before the desk sergeant, Sergeant Kyle Reid.
[11] At 1:27 p.m., Sergeant Reid informed the applicant that she would be strip searched to ensure that there would be no safety issues once the applicant was taken into custody. That strip search was conducted by two female officers.
[12] At 1:48 p.m., the applicant spoke to duty counsel.
The Evidence of Shannon Rolle
[13] The applicant testified at this hearing, outlining a series of allegations against the police which amounted to excessive force on arrest, inhumane treatment in transporting her to 31 Division and failing to ensure compliance with her ss. 7, 10(b) and 12 Charter rights throughout the arrest process.
[14] According to the applicant, the police entered her apartment at 5 a.m. on 15 June 2017. The arresting officer, Detective Constable Mark Frendo-Jones, dragged her off the bed, threw her onto the floor and placed his knee on her back causing severe pain.
[15] The applicant was then placed in handcuffs with her hands behind her back. She remained that way for the two-hour drive from Niagara to 31 Division, causing excruciating pain.
[16] When they arrived at the Division, the applicant testified that she needed to use the washroom and made two requests to do so. She was taken to the police washroom half an hour after the first request. As described, because of the arrests of a number of other Kronic suspects, a lineup had formed outside the Division, delaying the processing procedure. She was finally taken inside the station at 1:23 p.m., some six hours after arrival and approximately eight hours after her arrest.
[17] Amongst the applicant’s complaints about what occurred during her wait to be processed outside 31 Division are that: the heat inside the car was stifling and she was unable to breathe properly; the handcuffs and her position in the car caused severe pain, the consequences of which she still suffers today in the form of wrist and back pain; although she was extremely hungry she was not given food until close to 1:00 p.m.; and the police failed to enquire about her medical conditions and provided her with food that conflicted with her lactose intolerance.
[18] When the applicant was finally admitted into the station, she was paraded in front of the desk sergeant and then strip searched before being placed into a holding room so that she could speak to duty counsel.
LEGAL PRINCIPLES
[19] The applicant claims a breach of her rights under ss. 7, 10(b) and 12 of the Charter.
Section 7 of the Charter
[20] Section 7 of the Charter provides:
- 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.
[21] In R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30, the court held that state interference with bodily and psychological integrity could be classified as a breach of s. 7 of the Charter. See also: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 38.
[22] In R. v. Gowdy, 2016 ONCA 989, 135 O.R. (3d) 371, at paras. 100-101, Watt J.A., writing for the Court, explained the standard of proof required to establish a s. 7 breach on the basis advanced by the applicant:
To establish a restriction of security of the person, an applicant must demonstrate, on a balance of probabilities, that the state conduct in issue had a serious and profound effect on the applicant's psychological integrity. The effects of the state interference are to be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. The effects need not rise to the level of nervous shock or psychiatric illness, but must extend beyond ordinary stresses or anxiety: G. (J.), at paras. 58-60.
The phrase "serious state-imposed psychological stress" fixes two requirements that must be satisfied for the right to security of the person to become engaged. The psychological harm must result from the conduct of the state. In other words, there must be a causal link between the impugned state conduct and the Charter violation claimed. And the psychological prejudice or harm must be serious: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at paras. 57, 60.
Section 12 of the Charter
[23] Section 12 of the Charter provides:
- Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
[24] Treatment that is disproportionate or excessive is not of itself “cruel and unusual”. In order to prove a breach of s. 12 of the Charter, the applicant must demonstrate that the treatment was so excessive so as to outrage standards of decency: R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1072; R. v. Goltz, 1991 CanLII 51 (SCC), [1991] 3 S.C.R. 485, at p. 499; R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895, at para. 4.
[25] Here, the applicant submits that the manner in which she was treated during and after her arrest amounts to serious state interference with her physical and psychological integrity contrary to s. 7 of the Charter. In addition, and in the alternative, the applicant asks this court to find that the way in which events unfolded on 15 June 2017 outraged standards of decency contrary to s. 12 of the Charter. As a result, she asks that the charges against her be stayed pursuant to s. 24(1) of the Charter. In the alternative, she submits that any evidence found during the search of her premises be excluded pursuant to s. 24(2) of the Charter or that, if convicted, her sentence be subject to a reduction commensurate with the breaches of her Charter right
THE APPLICANT’S ALLEGATIONS OF CHARTER BREACHES
The Right to Counsel
[26] It is not disputed that even though the applicant received the informational component of her s. 10(b) Charter right upon arrest, the implementational component – being afforded an opportunity to speak to counsel – was not effected until after she had been processed at 31 Division, some eight and a half hours later.
[27] The Crown concedes that the applicant’s right to counsel was violated: R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135; R. v. La, 2018 ONCA 830, 366 C.C.C. (3d) 351; R. v. Do, 2019 ONCA 482. However, it points out that no evidence was obtained as a result of that violation and that unlike the scenarios in Rover, La and Do, the reason for the delay can be explained.
[28] I agree. I would also note that in cases where the delay in implementing the right to counsel is explained, the courts have held that there is no s. 10(b) breach.
[29] The delay in this case was caused by the circumstances of the mass arrests arising out of Project Kronic. In these circumstances, the only way in which the police could have implemented the applicant’s right to counsel would have been to call counsel whilst she sat inside the scout car. However, it would have been impossible for the applicant to meaningfully converse with counsel in a setting with little or no privacy.
[30] The applicant agrees that no evidence was elicited from her as a result of the breach and concedes that the s. 10(b) breach, if one exists, standing alone, does not give rise to a remedy. However, she submits that the fact of the breach should be taken into account alongside any other Charter breaches when determining whether a stay or other remedy be imposed.
The Handcuffs
[31] The applicant complained that after being handcuffed, she was forced to sit in a police cruiser with her hands tightly fastened behind her back for almost 9 hours. She testified that being seated in this position caused agonising pain, which she described as a level of “7 out of 10” and increasing to “10 out of 10” when the cruiser arrived at the police station.
[32] The applicant explained that the pain caused by the handcuffs led her to believe that her wrists would be bruised. Even after the handcuffs were removed when she visited the washroom, the pain she felt was still significant: at a level of of “8 out of 10”. When the handcuffs were replaced, the pain increased again and she felt a throbbing in her wrists and an “excruciating pain” in her neck and shoulders. The applicant suggests that this soreness in her wrists has lingered well beyond the arrest date and is present to this day. She testified that it was only when she observed another detainee handcuffed with their arms in front that the officers permitted her to be similarly handcuffed. The applicant submits that when viewed objectively, the officers’ actions amounted to inhumane treatment which breached her Charter rights.
[33] Despite the applicant’s claims, the evidence says otherwise.
[34] First, and most importantly, it is very clear from the video recordings, the officers’ testimony, and her own evidence that the applicant never complained about the “excruciating” pain she allegedly suffered. It was only after one of the officers noted that she was moving her shoulder awkwardly that the situation changed, and the police, on their own accord, agreed to allow her to be seated with her arms in front.
[35] When questioned on her silence, the applicant testified that she was intimidated and thought the officers to be “dismissive”. Any credibility attached to this assertion disappears on a review of the video evidence. Far from being an intimidated participant reluctant to engage with the police, the applicant had several conversations with the officers asking them to roll down the window to let in air; open the door so that she could “shimmy” out to the side and extend her legs; complain about the way in which the removable back seat in the car had shifted; and enquire whether she would be fed if she had to wait a lengthy spell to be booked in.
[36] Moreover, at various points in the proceedings, the officers asked the applicant how she “was doing”, to which she replied that she was “all right”. When the officers asked the applicant if there was “anything pressing we should know about?”, the applicant simply shook her head. At 10:18 a.m., the applicant enquired about when the handcuffs would be removed and was told that this would occur after she had been paraded. There was no reference to any pain or discomfort. When the applicant told the officers about her need to use a washroom, they took the request seriously and sought to accommodate her. Their behaviour was the very opposite of being dismissive: they were respectful and friendly as can be seen on the in-car video.
[37] At one point, the applicant did tell the officers that she was “uncomfortable” but made no mention of the pain in her back or wrists. The officers took that to mean that she was sitting in a manner that she was not used to.
[38] Accordingly, I reject the applicant’s testimony. She had several opportunities to tell the police of the “excruciating pain” that she was experiencing. Not once did she do so.
[39] Secondly, the video evidence shows that the applicant was not experiencing pain in the manner she now attests to. At one point, she can be seen sleeping in the back of the car. In cross-examination, the applicant conceded that despite this pain supposedly caused by the tight-fitting handcuffs and the location of her arms, there was no bruising caused to her wrists. Again, I find this to be somewhat surprising given the applicant’s account.
[40] Thirdly, when the desk sergeant asked her whether she had any injuries during the booking-in procedure, the applicant indicated that there were none. As with the other officers, the applicant explained that she did not inform the desk sergeant of the pain or perceived injuries to her wrists because she found him intimidating due to his rank as a superior officer. Again, I have reviewed the video footage capturing the booking-in procedure. I find no visible evidence that the applicant was in pain. Nor do I find the behaviour of the desk sergeant to be anything other than polite and respectful. When pressed in cross-examination, the applicant clarified that she did not classify her pain as being an injury. I find that this explanation beggars belief. It makes no sense for someone in the applicant’s position, who is suffering “10 out of 10” pain, not to signify that fact when asked directly about the issue. I repeat that it is also very surprising, in light of the applicant’s description, that there was no evidence of any bruising.
[41] Fourthly, although the applicant was clear in her evidence that the pain caused by the handcuffs was a result of how tight they were against her wrists, the in-car video shows that, at various times, the handcuffs were loose enough to be sliding up and down her wrists. P.C. Surridge testified that he checked the applicant’s handcuffs to make sure that they were not overly tight. He found no discolouration and some “wiggle room”.
[42] Finally, the applicant testified in-chief to the lingering pain that continues in her wrists and upper back as a result of the events of 15 June 2017. In cross-examination, however, she testified that she sought no medical attention at the time despite the “10 out of 10” pain levels that she endured. Nor has she done so in the intervening two years despite the pain that she still experiences.
[43] For these reasons, I find the applicant’s allegations to be a fabrication. I find that whilst the applicant might well have been in some discomfort because of the extended wait period, it hardly rose to the levels described. I also find the conduct of the police to be more than reasonable. Despite the applicant’s contention that the officers should have taken account of the fact that she had no prior criminal record and had been arrested only for drug offences, I find that there was nothing wrong with the police handcuffing her in the manner that they did. Transporting police officers are particularly vulnerable in situations where they have their back to arrested individuals and their sights on the road ahead. There is no rule that suggests an arrested individual poses less of a threat simply because they have no criminal record for violence or have been arrested for a non-violent offence. There was every reason for the police to handcuff the applicant in the way they did given they had no prior familiarity with her.
[44] It might have been a different situation if the applicant was in pain and had requested the handcuffs be removed or changed. As I have noted, that never happened in this case because any discomfort felt by the applicant was minimal. At no time did the applicant indicate anything that might have suggested the pain and suffering she now alleges. The change in position occurred because the officers saw the applicant having difficulty in moving her shoulder. At that point, they took it upon themselves to change the method in which she was handcuffed.
[45] The applicant’s lack of truthfulness significantly impacts her credibility and, in my view, taints her entire testimony.
[46] I would add that I also find her complaints that the car was unbearably hot to be untrue. The evidence from the officers was that there was air conditioning in the car which was “not great”, and that the temperature in the back of the car might have been warmer than that in the front. However, both officers were wearing uniforms with vests and neither felt, from their visual observations, that there were any concerns about the applicant’s well-being. According to them, there were no signs of dehydration, hunger or thirst. Again, the video evidence bears this out. It is also worth mentioning that the applicant, despite being offered all the water she “could handle” never asked for a drink.
[47] Accordingly, I reject the applicant’s testimony on this point.
The Lack of Food and Drink
[48] The applicant complains that she received no food or drink despite being hungry and thirsty. According to the applicant, she felt dehydrated because of the heat inside the police car.
[49] As described, the applicant never mentioned her dehydration or hunger to the police. The applicant points to a comment made by her at 10:47 a.m. where she asked the officers “If I am here all day, am I going to get fed?” as a request for food. I disagree. When this question was asked, the officers assured her that she would be fed telling her “there’s all the water you can handle and juice boxes”. One might assume that, if hungry, thirsty, or dehydrated, the applicant’s natural response would have been to tell the officers that she needed food and drink. She said nothing.
[50] In my view, the applicant’s comments about being fed were not a request for food but simply an enquiry whether she would be given food if the delay continued. And, as previously mentioned, at 1 p.m., the officers gave her two pizza pockets and a juice box. If the applicant’s complaint is that she wanted more, it would have been very easy to ask. She did not.
[51] The applicant further complains that she was lactose intolerant and could not eat the cheese inside the pizza pockets. She complains that the police were remiss in not asking her about her dietary habits before obtaining the meal. Once again, I note the applicant’s silence at the time: she never told the police of her condition. It is hard to criticise the officers for providing the meal that they did when they had no idea of her eating habits and health. What is equally noteworthy is that when given the pizza pockets, the applicant complained not of the cheese but of the fact that the pizza pockets were too hot.
[52] Again, I reject her evidence on this point as a fabrication.
The Applicant’s Complaints Regarding the Washroom
[53] The applicant testified that at 7:27 a.m., whilst waiting outside 31 Division, she required the use of washroom facilities. The police began to make arrangements as soon as she asked to do so. At 7:38 a.m., the applicant repeated her request with the warning that she “could not hold it”. At 7:43 a.m., the applicant was taken inside the police station to use the facilities and returned to the scout car at 7:54 a.m.
[54] I find very little wrong in the police conduct with respect to this issue. They were unfamiliar with the police station and were facing a situation where a large number of arrested individuals were being taken in to and processed at the station. Even though there was a delay between the initial request and the applicant’s eventual visit to the bathroom, that delay was understandable and explained. I find there was little by way of obvious stress or discomfort as a result.
The Level 3 Strip Search
[55] After the applicant had been paraded before Sergeant Reid, the police decided to conduct a Level 3 strip search. P.C. Surridge indicated that this decision was based on an assessment of the totality of the circumstances, and the fact that the applicant was to enter the prison population. Given the nature of the charges, the fact that the applicant’s arrest occurred in the context of a gang project, and the applicant’s custodial status, this was an entirely reasonable decision. The search was to ensure that the applicant had no drugs or weapons secreted that might cause harm to her or anyone that she came into contact with whilst in custody and awaiting bail.
[56] In R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, the leading case on strip searches, the Court observed, at para. 96:
It may be useful to distinguish between strip searches immediately incidental to arrest, and searches related to safety issues in a custodial setting. We acknowledge the reality that where individuals are going to be entering the prison population, there is a greater need to ensure that they are not concealing weapons or illegal drugs on their persons prior to their entry into the prison environment. However, this is not the situation in the present case. The type of searching that may be appropriate before an individual is integrated into the prison population cannot be used as a means of justifying extensive strip searches on the street or routine strip searches of individuals who are detained briefly by police, such as intoxicated individuals held overnight in police cells.
[57] It is clear that the applicant was not going to be released by the police and was to be held in the prison population if and until she was released on bail. In these circumstances, the police had the right to conduct a strip search to ensure that she was not carrying concealed weapons or drugs to ensure her safety and that of others that she came into contact with whilst in custody. See also: R. v. Gerson-Foster, 2019 ONCA 405, at para. 108.
Conclusion
[58] For the foregoing reasons, I dismiss the Charter application and find no breach of the applicant’s rights. With respect to the alleged s. 10(b) breach conceded by the Crown, even though it appeared to explain the delay in implemention, the applicant acknowledges that this breach, of itself, would not warrant a remedy in the circumstances of this case.
[59] I find that whilst it is clear that the applicant was in some discomfort during the wait to be booked in at 31 Division, that discomfort rose nowhere near the level of pain and distress that she now alleges and nowhere near the level required to establish a Charter breach. Although she remained handcuffed to the rear for approximately five hours, she made no complaints to the police about any pain or injuries. The in-car video evidence demonstrates that she was comfortable enough to fall asleep during the drive to the station and, at one point, used her sweater as a blanket. This belies any notion that the back of the car was unbearably hot. Whilst the temperature may have risen after arriving at the station, the doors were opened at her request and she made no complaints about any difficulties in breathing or being dehydrated.
[60] The applicant, as a witness, had very little credibility and, in my view, fabricated the allegations that were advanced on her behalf. Her testimony was wholly contradicted by video evidence – both in-car and at the booking desk – played in this case which showed she was in no distress. I would add that her evidence also contradicted, in parts, her sworn affidavit filed as part of the application. For example, she testified that when waiting at 31 Division, the police told her that there were several cars with arrestees ahead of them. In her affidavit she claimed that she was not provided with any information about delay and was made to “just wait in the scout car”.
[61] I find that the police acted with courtesy and respect towards the applicant. I reject the applicant’s allegations of police brutality when they entered her bedroom to arrest her. I accept the evidence of Detective Constable Frendo-Jones that the applicant was treated properly when arrested and that the police had no reason to use force as the applicant was compliant when detained.
[62] I also find the conduct of officers Surridge and Walker to have been appropriate to the situation. At times, the officers enquired about the applicant’s welfare and at no time did she raise complaints of hunger, pain, or heat. When they realised the applicant might be having difficulties, they used their discretion to allow her to sit in the car with her hands in front of her. The officers provided the applicant with food and told her that she could have as much water or juice as she wanted.
[63] There was also a reason for the delay: the arrest of several participants in a gang operation. Sergeant Reid testified that prior to the applicant’s parade, he had processed 20 individuals at the station. If there is a criticism of the police, it is that they did not properly prepare for the delays that were bound to occur in the arrest of so many accused. However, Detective Sergeant Travis Clark, called by the Crown as witness, explained that since Project Kronic, the procedure has been altered so that arrestees can be processed as quickly as possible. Detective Sergeant Clark testified that each accused would be spoken to in advance, and their lawyers contacted so that each accused could receive prompt advice whilst waiting to be booked in.
[64] The applicant relied upon R. v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131 and R. v. Jackson, 2011 ONCJ 228, 235 C.R.R. (2d) 289, as cases where a breach of the accused’s Charter rights resulted in a stay. These decisions do not assist her. In Tran, the court found a breach of ss. 7 and 12 based on police acts of brutality which resulted in the accused suffering serious injuries including a broken jaw. Moreover, the same officers destroyed evidence and committed perjury in an attempt to cover up their actions. Similarly, in Jackson, five police officers descended upon an accused suspected of being a suspended driver with outstanding firearms charges and inflicted a beating which, like Tran, resulted in a broken jaw.
[65] This is a far cry from the applicant’s case, which, at best, was one of inconvenience and discomfort rather than an intended infliction of assault. This was not a case of unjustified serious state interference with the applicant’s physical and psychological integrity. Nor is it a case where the treatment of the applicant outrages standards of decency as defined by the Supreme Court of Canada in Smith.
[66] I also note the comments of the court in R. v. Farrell, 2011 ONSC 2160, 275 C.C.C. (3d) 128, which are equally apposite to the instant case. There, the accused brought an application pursuant to s. 12 of the Charter regarding living conditions during his pre-trial custody in a provincial remand centre. Those complaints were that he was subject to bright fluorescent lights causing headaches, restricted telephone access, shared clothing and linen amongst inmates, insufficient portions of meals, inadequate library access and exercise facilities. In dismissing the application, Lalonde J. remarked, at para. 67, that “to call the Applicant’s living conditions at [the remand centre] cruel and unusual punishment or treatment would trivialize the Charter”. By comparison, in Farrell, the accused had been residing at the provincial remand centre for weeks as opposed to the hours spent by the applicant in the scout car.
[67] For these reasons, the application is dismissed.
S.A.Q. Akhtar J.
Released: 19 November 2019
COURT FILE NO.: CR-18-50000534
DATE: 20191110
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SHANNON ROLLE
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.