COURT FILE NO.: CRIMJ(P) 1859/19 DATE: 2020-11-24

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

E. Norman, for the Crown

Respondent

• and -

JEROME GREEN

S. Reid for the Accused

Applicant

HEARD: October 26, - 30, 2020

REASONS FOR RULING ON APPLICATION

Dennison J.

Introduction

[1] Mr. Green is charged with several firearm offences. He brought an application under the Canadian Charter of Rights and Freedoms to stay the charges or to exclude the firearm at his trial.

[2] Police received information that Mr. Green was in possession of a firearm. There was also an outstanding warrant for the accused’s arrest.

[3] When the police initially located Mr. Green, he fled. He ran to his auntie’s house at unit #83, 7555 Goreway Drive. When his aunt, Ms. Dyer, arrived at unit #83, police asked her if anyone was home. She said her daughter was home. Ms. Dyer called her daughter, Ms. Dyer-Lindsay. Ms. Dyer told her daughter to tell Mr. Green to come out of the residence.

[4] Mr. Green submits that the police used excessive force when arresting him. He stated that the police slammed his chin and chest against the hood of the SUV six to eight times when the police searched him.

[5] Ms. Dyer-Lindsay tried to record Mr. Green’s arrest. PC Moore commanded her to stop recording and to come over to his vehicle. He wanted to get her away from the front of the house, he also wanted to speak to her, and he did not want her to record anything. PC Moore questioned Ms. Dyer-Lindsay. She told him that Mr. Green had given her a gun and she hid it in the laundry room. PC Moore testified he detained Ms. Dyer-Lindsay because he would not have let her leave the scene. He did not give Ms. Dyer-Lindsay her rights to counsel. PC Moore relayed the information Ms. Dyer-Lindsay provided to him to the officer drafting the search warrant to enter unit #83.

[6] Police took Mr. Green to the police station, where he gave a statement to police. The Crown concedes that police violated Mr. Green’s s. 10(b) Charter rights. PC Moore denigrated the legal advice duty counsel gave to Mr. Green. Crown counsel also agrees that the statement was not voluntary. PC Moore threatened that if Mr. Green did not confess, his aunt and cousin would be charged with possessing the firearm.

[7] While Mr. Green was at the police station, police obtained and executed the search warrant at unit #83, where they seized the firearm.

[8] I was appointed as the case management judge to determine several applications brought by the Crown and defence. The issues to determine on these applications include the following:

1. Did the police use excessive force in arresting Mr. Green, violating his rights under s. 7 and s. 12 of the Charter?

2. Did the police violate Mr. Green’s s. 7 Charter rights by commanding Ms. Dyer-Lindsay to stop recording the accused’s arrest?

3. Should the charges be stayed as an abuse of process pursuant to s. 24(1) of the Charter?

4. Were Ms. Dyer-Lindsay’s s. 9 and s. 7 Charter rights violated, and if so, should the infringements be considered in the s. 24(2) Charter analysis?

5. Should the firearm be excluded as evidence pursuant to s. 24(2) of the Charter?

6. Should the Crown be permitted to introduce evidence of Mr. Green’s prior discreditable conduct?

ISSUE #1: DID THE POLICE USE EXCESSIVE FORCE IN ARRESTING MR. GREEN?

[9] The credibility of the witnesses is a crucial factor in determining whether the police used excessive force when arresting Mr. Green. It is therefore necessary to review the evidence of the witnesses in some detail.

A. The Investigation of Mr. Green

[10] Police received a Crime Stoppers tip that Mr. Green possessed a firearm. There were also outstanding warrants for his arrest for assaulting police with intention to resist, possession for the purpose of trafficking, proceeds of crime and dangerous driving from Niagara. Mr. Green allegedly struck an officer while attempting to flee from Niagara police.

[11] Police received information that Mr. Green resided at 7555 Goreway Drive, unit #83. Officer Ewles testified that the officers conducted surveillance with the goal of obtaining information to support an application for a Feeney warrant.

[12] On August 28, 2018 police observed Mr. Green leave unit #83 with an unknown male and unknown female early in the evening. He returned back to the unit and walked to a silver Nissan. Mr. Green entered the vehicle and went to Walmart. He was carrying a black backpack. He returned to unit #83 with the backpack.

[13] At approximately 9:43 p.m., Mr. Green left unit #83 and entered a Mercedes Benz that was driven by a female. Mr. Green had the backpack with him.

B. Mr. Green Flees from Police

a. The Officers’ Evidence

[14] PC Bothman and other officers followed Mr. Green to Kittridge Street in Mississauga. Police believed this was Mr. Green’s father’s residence. PC Bothman contacted his supervisor and received permission to do a takedown. The tactical unit was unable to assist because they were assisting another investigation.

[15] The plan was to wait until Mr. Green returned to the Mercedes Benz, then box in the Mercedes Benz with the police vehicles and arrest Mr. Green. PC Bothman was to take the front of the vehicle, PC Ries would be on the side and a third officer, PC Ewles, would be at the back. PC Bothman testified that he was driving an unmarked sedan. PC Ewles was driving an unmarked SUV. None of the vehicles were identified as police vehicles. PC Bothman was wearing his jacket, which had the word police on the back of it and a crest on the front.

[16] At 10:31 p.m., PC Bothman observed Mr. Green return to the car. He had the backpack with him. PC Bothman drove towards Mr. Green’s vehicle when he observed the interior lights shut off and the exterior lights go on. At approximately 50 feet from the vehicle, PC Bothman observed Mr. Green exit the passenger side of the vehicle. Mr. Green took the backpack with him. PC Bothman stopped his car and jumped out. PC Bothman disagreed with the suggestion that he stopped the car two feet away from the Mercedes Benz. He stated it was at least fifteen feet away.

[17] PC Bothman told Mr. Green to stop. He stated, “police, you are under arrest”. He observed Mr. Green jump a fence. PC Bothman also jumped the fence. Mr. Green jumped two more fences and PC Bothman lost sight of him. PC Bothman did not unholster his firearm because Mr. Green had already fled.

[18] PC Bothman testified that the canine unit was in the area and they were coming to assist. They were not quite present when the takedown commenced. PC Bothman denied telling Mr. Green that canine was on route. He explained that it was not something he would disclose, in case Mr. Green was “hunkered down”. PC Bothman did not want Mr. Green to run and in his experience an accused would run if you tell them a canine is coming to look for them.

[19] PC Ewles testified that he drove to the rear of Mr. Green’s vehicle. By the time PC Ewles arrived, he heard that Mr. Green had fled. He did not see Mr. Green, but believed he saw the back of PC Bothman. He believed he heard PC Bothman say the words “drop the gun”. It was approximately 10:20 p.m. PC Ewles described the area as dark, but there were streetlights. He stated that he could see fairly clearly.

[20] PC Ewles testified that canine arrived on scene but would not take the dog out without a tactical officer.

[21] PC Moore testified that he was also at the Kittridge address but did not see anything because he was parked around the corner. By the time he arrived, Mr. Green had already fled.

[22] The officers left the scene to continue to search for Mr. Green.

b. Mr. Green’s Evidence

[23] Mr. Green testified that he entered his girlfriend’s car on Kittridge Street. His girlfriend was in the driver’s seat. When the car turned on, he noticed a vehicle a couple of houses up. It looked like it was off. The car lights turned on and he realized it was an SUV. The vehicle drove quickly towards his girlfriend’s car and stopped two feet away from the car. When the SUV stopped, Mr. Green stated that he was already outside of the car. He was afraid. It was a dark area, and he did not know that it was the police. The SUV had no markings on it. He was afraid of the unknown.

[24] Mr. Green started to run. He jumped a fence and heard an officer say, “stop, police, we are going to send the dogs after you”. He continued to run. He explained that he is a black man, it was a dark area, and he did not want to be mistreated. He explained that he had been roughed up by the police in Niagara, so he decided that he wanted to make sure he had someone with him when he turned himself in. He then ran to his auntie’s house to gather his thoughts. He dropped his keys and cell phone when he ran.

[25] Mr. Green admitted that he had had an interaction with Niagara police that resulted in charges and that they were looking for him to arrest him. When Niagara police attempted to arrest Mr. Green, the police tried to box in his vehicle before he fled the scene.

C. The Arrest

[26] Niagara Police had a tracking warrant on Mr. Green’s phone. After Mr. Green fled from the police, the police received information that Mr. Green may be in the greenspace area near Westwood Mall. Some of the officers attended that area to look for him.

a. Mr. Green’s Evidence

[27] Mr. Green testified that when he fled from the police, he ran to his auntie’s house at unit #83, 7555 Goreway Drive.

[28] Mr. Green climbed the balcony to enter the residence. His cousin, Ms. Dyer-Lindsay, was home. He could see that there were unmarked police cars outside of the house. Mr. Green admitted that he gave Ms. Dyer-Lindsay a firearm but testified that the gun could have been in the house before he got there because Ms. Dyer-Lindsay does people’s hair and people come and go from the house.

[29] Mr. Green testified that his auntie, Ms. Dyer, called Ms. Dyer-Lindsay and said that if he did not come out, the police would come in. Mr. Green testified that he and Ms. Dyer-Lindsay had a plan that he would exit the house and Ms. Dyer- Lindsay would record his arrest.

[30] Ms. Dyer-Lindsay left the house first. She stood to the left of Mr. Green on the grass.

[31] Mr. Green testified that he exited the house with his hands up. He saw flashlights and people aiming their guns at him. He said there were approximately six to eight officers. He said more than two officers had their firearms out.

[32] Mr. Green stayed on the porch and the officers asked him to turn around with his hands raised. One of the officers told him to lay down. He never got to lie down because the officers forcibly grabbed him and pushed him down on the ground. He felt the momentum from two people. One officer grabbed his top and the other his legs and they pinned him to the pavement. It was a quick, efficient move and the momentum caused it to hurt. He stated that one of the officers had his knee on Mr. Green’s head for a split second and the other on the back of his thigh. He said the officer’s knee was on his jawline. It felt like their whole weight was on him. It hurt him to have two people on top of him. He said his cheek struck the concrete with force when the officers took him to the ground.

[33] Mr. Green stated that at no time did he resist the cuffs being placed on him. He stated that he did not do anything to make it more difficult to get the cuffs on him. He stated that he was on the ground for less than a minute.

[34] Mr. Green testified the officers were on each side of him and grabbed his biceps, pulling him up from the ground. The officers carried him and asked him if he could walk. Mr. Green wanted an answer from the officers about why they were unnecessarily rough with him. He asked the officers why they had to have two people arrest him and why they had to put their knee on his face. Mr. Green said he was not resisting arrest, and he felt mistreated. Mr. Green said he was not being disrespectful when he asked these questions.

[35] The officers took Mr. Green to the driver’s side of the police vehicle at the front at the hood. Mr. Green stated that one officer searched and the other stood and watched. Mr. Green’s chest was on the hood of the car. After the pat down search, Mr. Green was still nagging the officers as to why they went to such lengths when arresting him. Mr. Green wanted answers for why the officers were mistreating him. He stated that he did not call them names or use foul language and was not disrespectful. Mr. Green said he was not angry, but he wanted an answer. An officer told him to shut up. Mr. Green continued to question the officer, asking why they were going out of their way to do extra stuff to him. Mr. Green said he was persistent. The officer told him he was resisting and tensing up. Mr. Green did not know which officer said this.

[36] Mr. Green stated that an officer then grabbed his arms and raised the cuffs upwards from his back causing his wrists to hurt. The officer also grabbed him by the back of the neck, and he slammed his chest and chin onto the vehicle. It was three or four pushes. It was painful. It lasted a couple of seconds. The officer literally slammed Mr. Green on the vehicle three or four times. It was quick and it hurt. He was not bleeding. Mr. Green testified that the day after, he woke up with bruising and swelling.

[37] Mr. Green stated that after the officer did that, he asked the officer why he did that when it was not necessary. Mr. Green explained that at this point the situation was heighted. Ms. Dyer-Lindsay was screaming because she had the assault on the camera and an officer was saying “don’t record, don’t record”. There were neighbours outside. The officer said stop resisting and slammed Mr. Green again onto the vehicle another three or four times.

[38] Mr. Green said there were no visible injuries, but it hurt mentally even more. He felt like he was less of a person because of how the police treated him.

[39] A squad car came a couple of minutes later. Mr. Green believed another officer walked him to the squad car and put him in. Mr. Green believed Officer Moore said the squad car was there. Mr. Green stated that he heard Officer Moore tell Ms. Dyer-Lindsay to delete the recording because he did not want this being seen.

[40] Police took Mr. Green to the station. Mr. Green had no conversation with the uniformed officer that drove him to the station. Mr. Green is five feet and seven inches tall and he stated that in August 2018, he weighed 125 to 130 pounds.

b. Ms. Dyer-Lindsay’s Evidence

[41] Ms. Dyer-Lindsay testified at the preliminary inquiry that on August 28, 2018, Mr. Green came by earlier in the day to unit #83 to do laundry.

[42] When Ms. Dyer-Lindsay returned from visiting a friend that evening, Mr. Green was in the unit. All of the lights were turned off, which she noticed because when she left there were lights on. Mr. Green was wearing shorts. He told her that he was in trouble. He looked like he had been running. He was out of breath and he was sweaty. Mr. Green told her to “take this” and handed her a firearm. Ms. Dyer put the handgun in the laundry room where they kept the utensils. Ms. Dyer-Lindsay was very reluctant in court to give this evidence. She stated that “he knows that I love him” and “you know that I do not want to be here”.

[43] Ms. Dyer-Lindsay testified that shortly after Mr. Green gave her the firearm, her mother called her. Her mother called twice because Ms. Dyer-Lindsay could not find her phone the first time. Her mother told Ms. Dyer-Lindsay that the police were there. Her mother asked if Mr. Green was there and told Ms. Dyer-Lindsay to tell Mr. Green to come outside. Her mother told Ms. Dyer-Lindsay that if Mr. Green did not come out, the police were going to kick the door in and come in and get him.

[44] Ms. Dyer-Lindsay told Mr. Green to go outside calmly and surrender so the police would not come in and try to hurt him. Mr. Green exited the house first.

[45] Ms. Dyer-Lindsay thought the police were very rough with Mr. Green. She did not like it. The police threw Mr. Green on the concrete floor, and he was not resisting at all. She did not know if it was face-first but said that it could have been. She knew that he was on his chest. She thought there were four officers. She said that Mr. Green walked out calmly, and the police “ambushed him” and rushed at him, telling him to get on the floor. She did not recall if he was handcuffed. She tried to get a video, but PC Moore yelled at her to put her phone away.

[46] Ms. Dyer-Lindsay stated that as she started recording, PC Moore told her to put her phone away or he would take it. She and PC Moore had an argument and her mother stepped in and told her to calm down. Ms. Dyer-Lindsay stated that she did not get a full video. She does not have the video now because her old phone broke.

[47] It was Ms. Dyer-Lindsay’s evidence that the officers picked up Mr. Green and pushed him on the front of the police car. He looked like he was handcuffed behind the back. She believed there were three or four officers and they were surrounding him. When asked what part of his body contacted what part of the car, she explained that his stomach-chest was on the hood of the car. His feet were still on the ground. She thought it was pretty forceful and did not agree with it because it looked pretty forceful to her.

[48] Mr. Green’s counsel then asked if anyone struck, punched or kicked him. At that point, she said that she had a visual impairment, so she could say whether she saw a strike. She did hear him say “ow”, so the police could have struck him. He also told his auntie that he loved her. Ms. Dyer-Lindsay stated that Mr. Green was not resisting arrest and was not pulling away from the officers. She did not hear Mr. Green be verbally abusive towards the officer.

[49] Ms. Dyer-Lindsay saw Mr. Green be taken away in a police cruiser. She was permitted to enter the residence with an officer to get her shoes and then her and her mother went to the police station with PC Moore. PC Moore told her that she should not feel bad, that Mr. Green did this and it was not her fault.

[50] At the station, Ms. Dyer-Lindsay gave a statement to police and told police that Mr. Green gave her a firearm that she hid in the laundry room. During the interview, she said that “I understand you already have um, a profile, uh like young black male has a gun you have to get him”. PC Moore said, “it was more than that, the police knew who it was”. She then asked why the police had to be aggressive when Mr. Green was not resisting arrest. PC Moore stated that “but for all we know he has a gun on him” and the police did not know where the gun was. “So, he had to be taken into custody accordingly”. PC Moore stated that Mr. Green was fine, and no one was hurt, “so let’s wrap it up”. She stated, “Mm-hmm” and the interview ended.

c. Ms. Dyer’s Evidence

[51] Ms. Dyer testified that when she arrived at unit #83, 7555 Goreway Drive after work at approximately 11:00 p.m. on August 28, 2018. PC Moore approached her and asked her who was in the house. She told PC Moore that her daughter was.

[52] Ms. Dyer then called her daughter at the request of PC Moore. She asked her daughter if Mr. Green was inside and then told her to tell Mr. Green to come out with his hands up. Ms. Dyer did not know that the police believed Mr. Green possessed a firearm.

[53] Ms. Dyer stated that her daughter exited the house first. Her daughter stopped in the walkway. Mr. Green walked out, and the police went towards him. Mr. Green was on the ground and cuffed and then the officers brought him to a car. She remembered it was a little rough. She explained that Mr. Green came out of the house with his hands up and the officers rushed him, grabbed him, and actually put him on the floor. It happened quickly. She could not recall if the officers put Mr. Green on the ground or threw him to the ground. She testified that at this time, PC Moore was beside her and so was her daughter.

[54] Ms. Dyer stated that the officers picked Mr. Green up and brought him over to a car. In cross-examination, she stated that she did not see the police throw him up against the hood of the car; she was concentrating on her daughter because PC Moore brought her daughter over to where Ms. Dyer was standing.

[55] Ms. Dyer and her daughter attended with PC Moore at the police station and provided statements to the police. PC Moore told them they had nothing to worry about and the person the police were interested in was Mr. Green.

d. PC Bothman’s Evidence

[56] After Mr. Green fled from the police, PC Bothman returned to unit #83. PC Bothman noticed that all of the lights were off in the unit. When PC Bothman left to attend at Kittridge Street, both the interior and exterior lights were on. PC Bothman therefore believed that Mr. Green was inside unit #83.

[57] PC Moore was also conducting surveillance of the unit. PC Bothman could not see PC Moore, but knew he was in the area. PC Bothman saw a female exit a vehicle outside of the unit and advised PC Moore.

[58] PC Bothman exited his vehicle. PC Moore was speaking to the female, Ms. Dyer. PC Bothman overheard part of the conversation. Ms. Dyer stated that she owned the residence and lived there with her daughter and that Mr. Green stayed with them on and off. She did not know if Mr. Green was in the home.

[59] At the request of PC Moore, Ms. Dyer called her daughter. Her daughter did not answer the first call. Based on what he could hear of the second call it appeared that Mr. Green was present in the house. PC Moore did not know if Ms. Dyer-Lindsay was safe or not at this point.

[60] PC Bothman moved to the front of unit #83, approximately 25 feet from the front of the house. PC Bothman yelled, “Jerome, it’s the police, you are under arrest come with your hands up”. PC Bothman observed an interior light come on in the doorway, followed by the exterior light. PC Bothman had his firearm drawn. PC Moore had his flashlight directed at the door.

[61] Mr. Green came to the door, wearing the same tracksuit that PC Bothman observed him wearing earlier in the evening, but Mr. Green did not have the backpack. Mr. Green walked out facing PC Bothman. PC Bothman told Mr. Green to turn around and walk backwards. Mr. Green walked away from the front porch. PC Bothman backed up because he wanted to maintain space and did not know if Mr. Green had a firearm. PC Bothman stated that Ms. Dyer-Lindsay came out when Mr. Green came out, but PC Bothman told her to go back inside. PC Bothman’s focus was then on Mr. Green and not Ms. Dyer-Lindsay.

[62] PC Bothman stated that he told Mr. Green to put his hands behind his back and to prone down to the concrete. Mr. Green lied down on the sidewalk. He did not know if Mr. Green complied with putting his hands behind his back. PC Bothman was going to conduct the arrest himself because no one else was present. When he went to move in, PC Ewles ran up to assist him.

[63] PC Bothman testified that he continued to maintain cover over the front doorway. PC Ewles took control of Mr. Green and was attempting to handcuff Mr. Green. PC Bothman stated that he heard PC Ewles tell Mr. Green to stop tensing up. PC Bothman could see PC Ewles struggling to put the handcuffs on Mr. Green.

[64] After PC Bothman heard PC Ewles say stop tensing up, PC Bothman holstered his firearm and positioned himself on Mr. Green’s upper torso and turned Mr. Green’s head to the right so that he could not see what the officers were doing. PC Bothman stated that his right knee was on Mr. Green’s shoulder blades and his left knee was at Mr. Green’s side. PC Bothman stated that he did not apply his full body weight on Mr. Green, but it was enough to stop Mr. Green from tensing. PC Bothman grabbed Mr. Green’s bicep area so that PC Ewles could focus on getting the handcuffs on. With assistance, it took under ten seconds to get the handcuffs on Mr. Green.

[65] PC Bothman recalled Mr. Green complaining about something. He did not know if he complained that the handcuffs were on too tight, but his focus was on getting out of sight of the doorway because the officers did not know who was in the residence and they did not know where the firearm was. PC Bothman agreed that Mr. Green could have said “ow that hurts stop it”. PC Bothman also agreed that he did not put in his notes that Mr. Green complained. PC Bothman testified that there was nothing they did to complain about, so he did not include it in his notes. PC Bothman stated that he saw no injuries; if Mr. Green had any injuries, booking would have dealt with that because they would have asked him if he had any injuries.

[66] PC Bothman stated that he did not know where Ms. Dyer-Lindsay was. He could not recall what Ms. Dyer, Ms. Dyer-Lindsay or PC Moore were doing at this point.

[67] PC Bothman and PC Ewles took Mr. Green to PC Ewles’ vehicle. PC Bothman stated that Mr. Green's feet were on the ground when the officers picked him up. PC Bothman did not know if Mr. Green was walking or dragging his feet because his main concern was to get out of the area. PC Bothman did not believe that Mr. Green was being dragged because he did not remember carrying Mr. Green’s full body weight.

[68] PC Bothman testified that at the cruiser, Mr. Green pushed away from the vehicle. PC Bothman stated that Mr. Green was squirming, and PC Bothman told him to stop. PC Bothman stated that he took hold of both of Mr. Green’s triceps and put his biceps on the hood of the car. PC Bothman denied slamming Mr. Green’s body or head into the vehicle. He testified that Mr. Green was compliant when he was restrained.

[69] After PC Bothman and PC Ewles completed the pat down search, the officers stood Mr. Green up and waited for a uniform officer to arrive. PC Bothman did not notice any injuries and he did not hear Mr. Green complain that he was in pain or that he was injured. He did not recall PC Moore advising that the cruiser was present to take Mr. Green to the police station.

[70] PC Bothman denied the suggestion that he was mad and annoyed with Mr. Green for making him run through backyards in the dark, which he admitted could be dangerous. PC Bothman explained that he did not want Mr. Green to flee, but that it did not change how he felt towards Mr. Green. It did not matter to PC Bothman if the police caught Mr. Green then or later. PC Bothman was just doing his job.

[71] In cross-examination, counsel suggested that PC Bothman discussed his evidence with PC Ewles because PC Bothman used the word squirm and he never used that word in his notes or at the preliminary inquiry. PC Bothman denied that he spoke to PC Ewles about his evidence or read PC Ewles’ notes. PC Bothman stated that he observed Mr. Green pushing and squirming and those are the words to describe it. PC Bothman agreed with the suggestion that as the Officer in Charge, he could go onto the system and check the notes but stated that he has never done that.

[72] PC Bothman agreed that he knew the allegation was excessive force. He agreed that he used some amount of force because he kneeled on Mr. Green. PC Bothman denied that he said Mr. Green was pushing back because he knew he would have to explain the amount of force he used. PC Bothman also agreed that it would be a good thing if someone taped the incident and he wished there were a video. PC Bothman testified that he was six feet tall and weighed 180 pounds.

e. PC Ewles’ Evidence

[73] PC Ewles testified that he received information from PC Bothman that Mr. Green was back at unit #83. When PC Ewles arrived at unit #83, he saw PC Bothman standing 25 feet from the front door and saw Mr. Green standing at the front door of the unit. It appeared that PC Bothman was calling out instructions to Mr. Green. The lighting in the area was somewhat dark. PC Ewles did not notice if PC Bothman had his firearm out, but he agreed that it would not be unusual for an officer to have his sidearm out in these circumstances. PC Ewles did not recall if Mr. Green had his hands up.

[74] PC Ewles stated that he and PC Bothman came together. PC Ewles could not recall if Mr. Green went to the ground or if they assisted him to the ground. PC Ewles described Mr. Green as mostly compliant. He stated that Mr. Green did not put up an excessive resistance but was squirming a bit. He explained in cross-examination that he would not describe Mr. Green as one hundred percent compliant; he would say compliant. Mr. Green was not combative.

[75] PC Ewles stated that Mr. Green’s hands were either at his side or at the side of his head. PC Ewles had to manipulate Mr. Green’s hands to get them into position to put the handcuffs on Mr. Green. PC Ewles did not perceive Mr. Green as doing anything to prevent PC Ewles from putting the handcuffs on. PC Ewles did not feel like Mr. Green was trying to escape. PC Ewles stated that there was tensing, but it was a tense situation. PC Ewles agreed that at the preliminary inquiry he characterized Mr. Green as compliant and does not disagree with that description.

[76] PC Ewles stated that Mr. Green’s face was in contact with the concrete. He did not recall if Mr. Green’s face was bumped.

[77] PC Ewles stated that when he thinks of tensing, he thinks of it as a combative action and when he thinks of squirming there are lots of reasons for that. PC Ewles thought Mr. Green was compliant. PC Ewles did not recall the specific words he used in trying to place the handcuffs on Mr. Green, but agreed that he would not have used the words “tensing” because that is not a word he would generally say. PC Ewles stated he would more likely have said, “stop moving”.

[78] PC Ewles did not hear PC Bothman say anything when Mr. Green was on the ground. PC Bothman assisted with the physical control of Mr. Green. PC Ewles stated that he did not see what PC Bothman was doing. They were shoulder to shoulder against each other, and PC Ewles was trying to get the handcuffs on Mr. Green.

[79] PC Ewles stated that after Mr. Green was handcuffed, he and PC Bothman each took one of Mr. Green’s arms and picked him up off the ground. They moved quickly from the house. Mr. Green was not walking; his feet were dragging. Mr. Green may have taken steps, but PC Ewles was not sure. PC Ewles agreed that he did not give Mr. Green an option of walking or not.

[80] PC Ewles explained that he wanted to get away from the house quickly. He did not know who was in the house. Based on surveillance earlier in the evening, he knew that persons had entered and exited the house. The police had lost continuity over the house when the police followed Mr. Green to the Kittridge address. PC Ewles did not know where the gun was.

[81] PC Ewles and PC Bothman took Mr. Green to the police car. They wanted to do a pat down search. PC Ewles stated that Mr. Green was placed in front of the cruiser and his stance was widened. PC Ewles then sandwiched Mr. Green between his body and the car. He explained that the officer places himself up against an accused’s back to keep control. PC Ewles explained that you ask the accused to lean forward, so they are off balance if they decide to run. Mr. Green’s wrists were handcuffed at his back.

[82] PC Ewles started searching Mr. Green’s pockets and his legs. It took about 30 to 40 seconds to search each side. PC Ewles did not recall what PC Bothman was doing. PC Ewles did not feel or perceive that there was great resistance by Mr. Green. PC Ewles stated that he did not see or hear PC Bothman slam Mr. Green’s head into the car six to eight times. PC Ewles agreed in cross-examination that it was possible that PC Bothman slammed Mr. Green’s head, but PC Ewles did not hear or see it. His focus was on searching Mr. Green.

[83] PC Ewles denied pulling Mr. Green’s wrists upwards. PC Ewles agreed that it would hurt if a person grabbed the handcuffs and pulled them up, forcing the arms upwards.

[84] PC Ewles agreed that when Mr. Green was bent over the vehicle, he made some comments. PC Ewles did not recall what Mr. Green said. PC Ewles agreed that he did not include what was said in his notes. He stated that he forgot to include it in his notes, but he remembered it later. PC Ewles explained that if he thought it was important enough, he would have included it in his notes. He agreed at the preliminary inquiry that he heard Mr. Green say, “ow that hurts, stop it” at the car.

[85] At the time of the search, PC Ewles knew that PC Moore was present and speaking to two females.

[86] PC Ewles did not know who arranged for the cruiser to attend the residence but recalled seeing the cruiser during or after the pat down search. No one directed him to take Mr. Green to the cruiser. He did not see any injuries and Mr. Green did not require medical attention.

[87] PC Ewles testified that at the time of Mr. Green’s arrest, PC Ewles weighed roughly 210 to 220 pounds and was six feet tall.

f. PC Moore’s Evidence

[88] PC Moore observed Ms. Dyer-Lindsay enter unit #83 while conducting surveillance. He then saw Ms. Dyer arrive and approached her. PC Moore believed that PC Bothman was present when PC Moore spoke to Ms. Dyer.

[89] At PC Moore’s request, Ms. Dyer called her daughter twice and her daughter confirmed that Mr. Green was in the residence.

[90] A short time later, PC Bothman called Mr. Green out of the unit. PC Moore believed that Ms. Dyer-Lindsay came out first and then Mr. Green. She moved to Mr. Green’s right. PC Moore believed that Mr. Green came out with his hands up. Ms. Dyer-Lindsay was approximately 25 feet from PC Moore.

[91] PC Moore shone his flashlight at the front door to assist PC Bothman. PC Ewles and PC Bothman moved quickly towards Mr. Green. When the officers approached Mr. Green, Ms. Dyer-Lindsay attempted to record them with her phone. He did not recall how Mr. Green got to the ground.

[92] PC Moore did not observe Mr. Green after PC Bothman and PC Ewles got to Mr. Green because he was dealing with Ms. Dyer-Lindsay. PC Moore admitted that he was harsh with Ms. Dyer-Lindsay when he told her to turn the phone off and come to his car. He stated that she did not record for more than ten seconds.

[93] PC Moore said he wanted to get Ms. Dyer-Lindsay away from the front of the house. He agreed that she could have done that without turning her phone off. PC Moore stated that he wanted to speak to Ms. Dyer-Lindsay to get information from her. Once he told Ms. Dyer-Lindsay to turn the phone off, she pointed it at PC Moore. PC Moore stated that he did not want Ms. Dyer-Lindsay to record the arrest or anything else. He agreed that it was not a lawful command.

[94] PC Moore testified that he did not see anything out of the ordinary during Mr. Green’s arrest, but that his focus was on Ms. Dyer-Lindsay.

[95] PC Moore stated that he commanded Ms. Dyer-Lindsay to come over to his vehicle and to stop recording. He admitted that he “technically detained her” because she was not free to leave. He stated that he did not realize that he detained her at the time, but he realizes it now. PC Moore did not advise Ms. Dyer-Lindsay of her rights to counsel. He did not think about calling her a lawyer because she was a witness, not a target. He realized while testifying that he should have given Ms. Dyer-Lindsay her rights to counsel. He did not give her a choice as to whether she wanted to cooperate with the investigation or not. PC Moore stated that if she did not want to attend the station to give a statement, he would have let her go. He could not think of another situation where he had detained a witness.

[96] Ms. Dyer-Lindsay gave PC Moore information; she told him that Mr. Green gave her a gun and that she hid it in the laundry room. PC Moore relayed that information to the officer preparing the search warrant.

[97] PC Moore did not take Ms. Dyer-Lindsay's phone, but testified that he could have seized it and used it as evidence. He agreed that he did not ask to look at the phone. He stated that he did not think about the cellphone once she put it away. He agreed that there was nothing in his notes about the cellphone incident.

[98] PC Moore drove Ms. Dyer and Ms. Dyer-Lindsay to the police station, where they both provided him with statements.

D. Interview of Mr. Green

[99] There is no dispute that Mr. Green was taken to the police station, where he was interviewed by PC Moore. The videotape of the interview was marked as an exhibit on the application. Some aspects of the interview are relevant to the credibility of the witnesses in assessing whether the police used excessive force.

a. Mr. Green’s Evidence

[100] Mr. Green stated that nothing improper happened at the police station. He did not tell anyone at the station that he had been hurt. He agreed that his wrist did not hurt back at the station and that he did push-ups while waiting to be interviewed by PC Moore. He explained that he was angry and had to take it out in some other form. He did not want to dwell on the fact that he had been assaulted by the police. He stated that he did not complain to Officer Moore because he would not have done anything to help him. He also stated that he did not say anything at the station because it would not help.

[101] Mr. Green stated that when he thanked PC Moore for taking him out of the area safely, he was thanking PC Moore because he seemed to be the one who called the squad car and therefore got him away from the other officers. Mr. Green agreed that there was nothing else in the statement that mentioned how he felt the officers had treated him.

[102] In cross-examination, Mr. Green agreed that Officer Moore did not threaten him. He stated that just because he engaged in small talk did not mean that he was comfortable.

[103] Mr. Green also agreed that he had no difficulty voicing his concerns when the officers were harming him and that he has no problem speaking up for himself. He did not bring up the fact that he was assaulted because PC Moore was not listening to him.

b. PC Moore’s Evidence

[104] PC Moore testified that he thought the interview with Mr. Green went well. They sat down and had a frank conversation. He did not find Mr. Green combative or disrespectful.

[105] PC Moore testified that he may have been told that you are not allowed to denigrate defence counsel, but he did not think he had denigrated counsel in the interview. He stated that he did not know it was a legal rule until defence counsel told him at the preliminary inquiry. He had been advised that you should not insult defence counsel but did not know there was a law about that.

[106] In cross-examination, PC Moore agreed that he received training in police college almost 25 years ago, including training on interviewing suspects. He agreed that he receives emails when important court decisions come out that impact how he should conduct himself.

[107] PC Moore agreed that saying that the police got counsel out of bed would suggest that the lawyer may be groggy and may not have all his facilities about him. He agreed this may cause an accused to question the advice they had received. PC Moore testified that it was not his intention to do that at the time. PC Moore also agreed that it is a tactic to try and have the accused doubt the advice given without saying that directly. PC Moore agreed it was not the first time he had used this tactic.

[108] PC Moore also agreed it was a tactic to tell a suspect to look past what the lawyer told the accused, and that he had done that in the interview.

[109] PC Moore disagreed that when Mr. Green asked him “what do you want me to say?” that he was trying to put words in Mr. Green’s mouth. PC Moore responded to Mr. Green’s question by saying, “you should say ‘JP I fucked up.’ You should say, ‘JP it’s my gun, my aunt and cousin have nothing to do with this’.” PC Moore agreed that in his training he was told to let suspects tell you what happened in their own words. PC Moore stated that he was trying to help him by answering his question.

[110] PC Moore stated that he suggested, but did not threaten, that Ms. Dyer and Ms. Dyer-Lindsay would be charged if Mr. Green did not confess. PC Moore stated that while he could not recall using this tactic before, it is fair to say that he had.

[111] PC Moore stated that during his policing career he learned these tactics from fellow officers. No one told him that there was a problem with these tactics.

[112] In cross-examination, PC Moore stated that he made an inappropriate comment regarding defence counsel to the articling student before court commenced. He denied disliking all defence counsel. While he did not like what defence counsel did, he understood that they had a job to do.

I. Positions of the Parties

A. The Applicant

[113] Counsel for Mr. Green submits that PC Bothman used excessive force when he slammed Mr. Green’s chest and chin against the hood of the SUV six to eight times. He submits that Mr. Green’s evidence is reliable and credible. There are no major inconsistencies that undermine Mr. Green’s evidence that PC Bothman wrenched up his wrists and slammed his head into the hood of the SUV six to eight times.

[114] Counsel submits that in considering Mr. Green’s actions and failure to complain about the assault, I must consider that Mr. Green is Black and therefore his perceptions and reactions must be viewed through the lens of a young Black man who has been subjected to systemic racism.

[115] It is counsel’s position that the officers’ evidence is not believable. Both PC Ewles and PC Bothman testified that Mr. Green complained, yet neither officer made any notes of Mr. Green’s complaints.

[116] Counsel also submits that PC Ewles’ evidence that he did not hear or see PC Bothman slam Mr. Green’s body or head onto the vehicle because he was focused on searching Mr. Green should not be believed because PC Ewles was within feet of PC Bothman and Mr. Green. The fact that PC Ewles says it is possible that PC Bothman slammed Mr. Green’s head on the hood of the vehicle is an attempt by PC Ewles to distance himself from PC Bothman’s conduct.

[117] It is counsel’s position that PC Bothman had an animus towards Mr. Green because Mr. Green fled from him earlier that evening, requiring PC Bothman to jump fences in a dark area, which was dangerous. PC Bothman took his anger out on Mr. Green.

[118] Counsel also submits that the court should infer from the fact that PC Moore commanded Ms. Dyer to stop recording that the police acted with excessive force. The failure of the police to provide a reason for why the arrest was not recorded permits the court to draw an adverse inference.

B. Crown Counsel

[119] Crown counsel submits that Mr. Green’s evidence is not believable. It is not believable that Mr. Green did not know it was the police when the police boxed in the vehicle.

[120] Counsel submits that it is also not believable that Mr. Green’s head was slammed onto the hood of the SUV when he was being searched. Mr. Green suffered no injuries. He made no complaints to the officer who drove him to the station, and he made no complaints while he was being booked. Mr. Green also made no complaints when being interviewed by PC Moore. In the videotape, Mr. Green did push-ups and sit ups. He lied down with the side of his face on the floor. During the interview, Mr. Green talked about sports and seemed at ease with PC Moore. Moreover, neither Ms. Dyer nor Ms. Dyer-Lindsay saw Mr. Green’s head being slammed onto the hood of the car.

[121] It is the Crown’s submission that the officers’ evidence is believable. While there are minor inconsistencies between PC Bothman’s and PC Ewles’ evidence, this is to be expected given the rapid unfolding of the events. The officers provided reasonable explanations for not including the fact that Mr. Green complained; there was nothing for him to complain about.

[122] Finally, the Crown submits that the court should not draw an adverse inference from the fact that PC Moore commanded Ms. Dyer-Lindsay to turn off her phone. PC Moore wanted to get her away from the front of the house for her safety and made a bad judgment call in requiring her to turn off her phone.

[123] The Crown submits that when the totality of the evidence is considered, it is the Crown’s position that I should accept the officers’ evidence over Mr. Green’s and find that the police did not use excessive force in arresting Mr. Green.

II. Analysis

A. Governing Principles

[124] Section 25 of the Criminal Code, R.S.C. 1985, c. C-46, sets out the lawful authority for when and how police may use force when arresting an individual. The relevant portion of s. 25 states:

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(b) as a peace officer or public officer,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.

(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if

(a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;

(b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant;

(c) the person to be arrested takes flight to avoid arrest;

(d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and

(e) the flight cannot be prevented by reasonable means in a less violent manner.

[125] The authority of the police to use force during an arrest is not unlimited. However, where the police act within a reasonable range of forcible response they will not be denied the protection set out in s. 25(1) of the Code. The degree of force used by the police must be proportionate, necessary, and reasonable: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 32.

[126] The court must consider the officer’s subjective belief at the time the force was applied. That subjective belief must also be objectively reasonable, having regards to the totality of the circumstances: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at paras. 74-76.

[127] The conduct of officers must not be held to a standard of perfection. Courts recognize the dangerousness of the situations that officers are often faced with. Police must make quick decisions to respond to unfolding situations. The degree of force used cannot be expected to be measured with exactitude: Nasogaluak, at para. 35.

[128] The reviewing court must also guard against overreliance on reflective hindsight in determining if the degree of force used is appropriate: R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 23; R. v. DaCosta, 2015 ONSC 1586, [2015] O.J. No. 1235, at para. 98.

[129] The court should also consider that inconsistencies between the officers’ evidence and witnesses regarding a use of force situation may be “the result of the intensity and stress of fear, danger, and unfolding events”: DaCosta, at para. 100, referring to R. v. Boston, 2013 ONCA 498, 309 O.A.C. 24, at para. 13, and R. v. Pompeo, 2014 BCCA 317, 313 C.C.C. (3d) 539, at para. 45.

B. Factfinding in this Case

[130] The parties agree that credibility assessment of the evidence is central in determining whether I am satisfied on the balance of probabilities that Mr. Green’s body and chin were slammed against the hood of the vehicle six to eight times. If I am not satisfied that this occurred, the claim of excessive force fails.

[131] Ultimately, I am not satisfied on the balance of probabilities that Mr. Green’s chest and chin were slammed on the front of the hood of the SUV six to eight times, based on the evidence.

[132] I find that Mr. Green tended to exaggerate his evidence on certain points and that portions of his evidence are undermined by the evidence of Ms. Dyer and Ms. Dyer-Lindsay. I also accept that there are some troubling aspects of the officers’ evidence about the arrest, particularly as it relates to the officers’ failure to include in their notes that Mr. Green made complaints to the officers. My concerns with the evidence of the witnesses is set out below.

a. Mr. Green Flees from the Police

[133] Mr. Green’s evidence that he had no idea that it was the police who went to box him in on Kittridge Street is extremely suspect. I find that Mr. Green suspected it was the police and decided not to stick around to find out. His evidence on this point undermines his general credibility. I have come to this conclusion for the following reasons.

[134] First, Mr. Green had been in a similar situation before with the Niagara police, involving unmarked cars, where he fled and struck an officer. He knew at the time of this offence that the police were after him for those offences. Yet, according to Mr. Green, he did not think it was the police. He was afraid of the “unknown”.

[135] Second, I do not accept Mr. Green’s evidence that PC Bothman’s vehicle was two feet away from the Mercedes Benz when it stopped. I prefer PC Bothman’s evidence that as PC Bothman drove up, he saw Mr. Green jump out of the vehicle. PC Bothman immediately stopped his car and jumped out to chase Mr. Green, but Mr. Green had already jumped a fence. If PC Bothman had stopped his car two feet from the Mercedes Benz, one would have excepted PC Bothman to have been much closer to Mr. Green when he chased Mr. Green. PC Ewles also testified that, by the time he stopped his vehicle, Mr. Green was out of sight and he could see the back of PC Bothman.

[136] Third, despite being fearful of the “unknown”, Mr. Green had the wherewithal to take his backpack with him. The police had reasonable grounds to suspect that the gun was in the backpack, given that police observed Mr. Green with the backpack throughout the night.

[137] Fourth, in cross-examination, Mr. Green had no real explanation for who would have been after him other than the police. He gave a vague and convoluted explanation.

[138] Finally, there was no evidence that Mr. Green expressed his fear of the unknown to his girlfriend Lindsay, the driver of the car, or that he took any steps to get them both out of the situation.

[139] Based on the evidence, it is a reasonable inference that Mr. Green wanted to get out of the area because he believed it was the police, not because he was afraid of the unknown, despite the fact that the police were in unmarked cars.

C. Handcuffing Mr. Green

[140] I do not find that the police acted with excessive force when PC Ewles and PC Bothman handcuffed Mr. Green. Indeed, counsel for Mr. Green does not argue that police used excessive force at that time. Rather the witnesses’ evidence about what occurred during the initial arrest is relevant in assessing the witnesses’ credibility.

[141] In considering the evidence, I am cognizant that a person’s perspective of a situation is shaped by their life experience and the information that they possess at the time the event occurs.

[142] From Mr. Green’s perspective, the police acted unreasonably by having two officers take him to the ground and handcuff him. From Mr. Green’s perspective, he was surrendering and did not have the firearm in his possession. As a Black male, he had a heightened concern about police brutality while being arrested.

[143] Ms. Dyer-Lindsay had a similar perspective. Mr. Green was surrendering and was unarmed. She did not see why the police had to put him to the ground and handcuff him. She thought they were rough with him because he was a young Black man. These are valid perspectives and demonstrate that the police need to work on their relationship with the Black community.

[144] While I understand these perspectives, I find that Mr. Green exaggerated his evidence regarding what happened when he first exited the house. Mr. Green testified that when he exited the house, he estimated that there were six to eight officers and more than two officers had their firearms out. I do not accept his evidence on this point. I find that initially there were only two officers present: PC Moore and PC Bothman. PC Moore had his flashlight out to assist PC Bothman, who was going to arrest Mr. Green on his own. PC Bothman was the only officer with his firearm out. There is no evidence of any other officers being present at that time or that any other officers had their firearms out.

[145] I also do not accept Mr. Green’s evidence that he and Ms. Dyer-Lindsay had an agreement before he exited the residence that she would record the arrest. Ms. Dyer-Lindsay testified at some point that she was concerned about how Mr. Green was being treated by police. She stated that she was going to take her phone out and record it. If there had been an agreement, one would have thought that Ms. Dyer-Lindsay would have come out of the house with her phone already recording, and there is no evidence that occurred.

[146] From the officers’ perspective, this was a very dangerous situation. The police had information that Mr. Green had a gun. Mr. Green fled from the police earlier that evening and had previously fled from the police in Niagara. The police did not know where the gun was or if anyone was in the house. There were only two officers on scene when the arrest commenced. PC Bothman thought he was going to do the arrest on his own until PC Ewles came to assist.

[147] There is an inconsistency between the witnesses’ evidence as to who exited the residence first. Mr. Green, Ms. Dyer, and PC Moore all stated that Ms. Dyer-Lindsay exited first and was standing to the left on the grass. Ms. Dyer-Lindsay said Mr. Green exited first. I find that this is a minor inconsistency between the various witnesses that is likely the result of a stressful, rapidly unfolding situation. I am not relying on this inconsistency in assessing the witnesses’ evidence.

[148] There are also inconsistencies between the witnesses’ evidence regarding how Mr. Green was taken to the ground.

[149] Mr. Green testified that the police pushed him to the ground and stated that his cheek struck the concrete with force. Mr. Green stated that an officer’s knee was on his jawline and it felt like that officer’s entire weight was on him. Ms. Dyer-Lindsay also stated that the officers pushed Mr. Green to the ground. She believed there were three or four officers involved. I reject her evidence on this point and find that this error is likely the result of her perspective that the police were overreacting when they arrested Mr. Green.

[150] PC Ewles testified that both he and PC Bothman reached Mr. Green at the same time and he could not recall if Mr. Green went to the ground or they assisted him to the ground.

[151] PC Bothman testified that he was not involved initially with Mr. Green, but went over once Mr. Green was on the ground. I do not find that this was done to distance himself from any misconduct, because PC Bothman was clear that he had his knee on Mr. Green when he was on the ground. This inconsistency is likely the result of the rapidly unfolding situation that occurred within seconds.

[152] Given the evidence of PC Ewles, Mr. Green and Ms. Dyer-Lindsay, I find that both officers likely took Mr. Green to the ground as he was going down to the ground. I find that PC Bothman’s evidence was not accurate when PC Bothman stated that PC Ewles commenced the arrest and then PC Bothman joined in when it was apparent that Mr. Green was struggling.

[153] I do not find the inconsistency between the witnesses as to how Mr. Green to the ground to be a significant inconsistency. Mr. Green would have gone to the ground in a matter of seconds. He stated that he was going to the ground. I think it likely that while Mr. Green was going to the ground either PC Ewles PC Bothman or both officers grabbed him and took him all the way to the ground. It must be remembered that the officers were trying to get Mr. Green arrested quickly and away from the house.

[154] I find that Mr. Green exaggerated his evidence about the degree of force with which his cheek struck the pavement. Ms. Dyer-Lindsay did not see that; she saw his chest hit the ground. Moreover, there were no injuries suffered by Mr. Green that one would expect if his cheek hit the hard pavement as he claimed.

[155] I find that Mr. Green’s cheek was on the pavement as a result of PC Bothman pinning him down with his knee and turning Mr. Green’s head away from the officer so he could not see what they were doing. PC Ewles agreed that is a tactic police use when arresting individuals. I do not view PC Bothman’s conduct as excessive, given the situation that the police were in. Even if PC Bothman’s knee hit Mr. Green’s head while PC Bothman was kneeling on him for a second as Mr. Green claims, I do not find that this was intentional.

[156] Counsel for Mr. Green submits that PC Bothman’s evidence about handcuffing Mr. Green fundamentally undermines the officer’s credibility such that I should not believe his evidence about what happened at the police vehicle. I will review some of the inconsistencies.

[157] The applicant submits that there is an inconsistency between PC Bothman’s and PC Ewles’ evidence regarding Mr. Green’s actions when PC Ewles was handcuffing Mr. Green.

[158] PC Bothman testified that he told Mr. Green to prone down to the concrete and put his hands behind his back. While PC Ewles tried to handcuff Mr. Green, PC Ewles said stop tensing up. PC Bothman saw PC Ewles struggling to put on the handcuffs. PC Bothman then holstered his firearm and positioned himself on Mr Green’s torso. PC Bothman positioned himself on Mr. Green’s upper torso and turned Mr. Green’s head to the right so Mr. Green could not see what the officers were doing. PC Bothman’s right knee was on Mr. Green’s shoulder blades and his left knee was by Mr. Green’s side.

[159] PC Ewles said that Mr. Green was mostly compliant, but he was a bit squirmy when he tried to handcuff him. This was recorded in his notes. PC Ewles agreed that Mr. Green was not combative. PC Ewles stated that he had to manipulate Mr. Green’s hands to get them into the position to put the cuffs on. He stated that there was tensing but that this was a tense situation. PC Ewles stated that when he thinks of tensing, he thinks of combative and Mr. Green was not combative. PC Ewles did not recall the specific words he used in trying to place the handcuffs on Mr. Green, but agreed that he would not have used the word tense. He would have likely said, “stop moving”.

[160] I do not find that PC Ewles used the word tensing up when he was handcuffing Mr. Green, but that is what PC Bothman appears to have heard. While the officers do not agree on the exact words that were said, they conveyed a general meaning that Mr. Green was moving around a bit. It is likely that PC Ewles said something like “stop moving.” Given the urgency of the situation and the danger facing the officers at that time, I do not find this to be a serious inconsistency. PC Bothman was of the view that PC Ewles needed help getting the handcuffs on and it was taking too long. PC Ewles stated that he had to manipulate Mr. Green’s hands to put the handcuffs on and that Mr. Green was squirming.

[161] Counsel for Mr. Green also accused PC Bothman of collusion because he used the word squirming in describing Mr. Green’s actions at the vehicle. The problem with this assertion is that PC Ewles used the term squirmy to describe Mr. Green’s actions when he was handcuffing Mr. Green. At the time Mr. Green was being handcuffed, PC Bothman said that PC Ewles said that Mr. Green was tensing up. He did not mention the word squirmy. PC Bothman used the words pushing back and squirming to describe what was happening at the SUV.

[162] I also do not find that there are any significant inconsistencies between Mr. Green’s, PC Bothman’s, and PC Ewles’ evidence that the officers each took one of Mr. Green’s arms and picked him up and took him to the SUV. Mr. Green stated that the officers picked him up and after a few steps they asked him if he could walk. Officer Ewles thought that Mr. Green was not walking, that his feet were dragging, but he was not sure if Mr. Green took any steps. His primary concern was getting away from the residence. Similarly, PC Bothman did not know if Mr. Green walked or not because his main concern was getting out of the area. It is likely that there was a combination of walking and dragging, as Mr. Green suggested.

D. Were Mr. Green’s chest and chin slammed against the SUV during the pat down search?

[163] There is no dispute that PC Bothman and PC Ewles took Mr. Green to the SUV to search Mr. Green. After considering all of the evidence, I am not satisfied that Mr. Green’s chest and chin were slammed onto the car six to eight times as Mr. Green claimed, nor am I satisfied that the police acted with excessive force for the following reasons.

[164] First, Ms. Dyer-Lindsay’s evidence does not support a finding that Mr. Green’s chest and chin were slammed against the car six to eight times. She testified that she did not like how the police were treating Mr. Green. She was approximately twenty feet away when she made her observations. She said that the officers were aggressive, that they threw him on the ground, and that they picked him up and pushed him onto the car.

[165] Counsel for Mr. Green submits that little weight can be given to Ms. Dyer-Lindsay’s evidence because in cross-examination she stated that she had a visual impairment. The difficulty with this answer is that earlier in cross-examination, Ms. Dyer-Lindsay provided details of how Mr. Green was pushed into the car. She said his stomach and chest were put on the hood of the car. He was bent over the hood of the car, so his chest was on top of the hood. She stated that Mr. Green’s feet were on the ground. She gave no evidence that Mr. Green’s chin was slammed to the car in describing what occurred, yet she provided a fairly detailed description of what she observed and heard. She heard him say “ow” and that he loved her mom.

[166] It is only when counsel asked her directly in cross-examination if anyone struck or punched Mr. Green that she indicated that she had a visual impairment. She responded that could not see a strike, but she heard him say “ow”, so they could have struck him.

[167] Ms. Dyer-Lindsay was a reluctant witness for the Crown. She did not want to testify that Mr. Green gave her the gun. She told him she loved him when she testified and that she did not want to be there. I find that in giving her evidence she wanted to help Mr. Green to the extent she could. I do not accept her evidence that her visual impairment is what prevented her from seeing the police strike Mr. Green. She had no difficulty seeing that Mr. Green was pushed forcefully into the car and that his chest was on top of the hood, and she only left open the possibility that he was struck when it was suggested to her in cross-examination.

[168] Second, Mr. Green’s evidence that his chest and chin were slammed on the vehicle is undermined by his evidence that Ms. Dyer-Lindsay was screaming. She was making a recording when this happened, and PC Moore told her to delete the recording. Again, Mr. Green appears to be exaggerating his evidence. Ms. Dyer-Lindsay’s evidence and PC Moore’s evidence is that she started to record when Mr. Green was initially being arrested. She only recorded ten seconds or so before PC Moore demanded that she stop. There is no evidence aside from Mr. Green that PC Moore told Ms. Dyer-Lindsay to delete the recording.

[169] Third, Mr. Green testified that he wanted an answer from the police as to why they were being so rough with him when they handcuffed him, yet he did nothing to pursue this issue after being mistreated by the police. I do not accept his evidence on this point. Mr. Green said he nagged the officers and wanted answers after they took him to the ground and put on the handcuffs. He testified that he continued to nag the officers for answers after he was slammed onto the hood three or four times. He stated that he would ask questions even if they did not give answers. Getting an answer was so important to him that he continued to ask the officers why they were treating him this way after the officer slammed him into the vehicle three or four times.

[170] After hearing Mr. Green testify, his evidence that he made no attempts to tell anyone or demand answers for how he was treated does not make sense. When Mr. Green testified, he had no difficulty speaking his mind and challenging the Crown when he did not agree with the suggestion the Crown put to him. Mr. Green was not timid in court. He is a well-spoken and assertive young man. I simply do not believe that Mr. Green would let the issue drop as he said he did if what he said had happened was true. Mr. Green could have told the officer who drove him at the station. He was also directly asked at the station by the booking officer if he had any injuries and he said nothing. He could have told PC Moore during the interview about how he was treated.

[171] It is also worth noting that while Ms. Dyer-Lindsay said she heard him say “ow” and that he loved her mom, she did not hear Mr. Green question the officers’ conduct.

[172] Counsel for Mr. Green submits that I must consider the fact that Mr. Green did not say anything to PC Moore through the perspective of a young Black male. Mr. Green did not think that saying anything would help at that time, so why would he bother. While I accept that may be a legitimate response for a young Black male, that reaction does not seem believable in Mr. Green’s case, given the manner in which he testified in court and his evidence that he deserved and wanted answers.

[173] Fourth, Mr. Green stated that his chest and chin were slammed onto the hood of the car six to eight times. He did not say his chin was pushed or placed on the hood but used the word slammed repeatedly. Slammed means to push or put somewhere with great force. In these circumstances, one would expect there to be some injury, yet none were observed. Mr. Green does not appear to be favouring his face or his wrists at any time during the videotaped interview, and in fact is observed doing push-ups and sit ups. He is also seen to be lying on his face. Mr. Green stated that his face was swollen the next day, but no photographs were provided to the court to corroborate his evidence on this point.

[174] Fifth, I do find that Mr. Green thanking PC Moore for getting him out of the area supports Mr. Green’s evidence that his chin was slammed on the hood of the car six to eight times. The comment is too general. Assuming that Mr. Green was referring to PC Moore getting away from PC Bothman and PC Ewles, the statement assists in assessing Mr. Green’s general credibility that he was of the view that the police mistreated him, but it does not assist in assessing how the police mistreated him. In addition, it is not clear to me that Mr. Green’s comment is about getting him away from the officers when one reads the preceding conversations about the danger in the community that Mr. Green faces. Particularly, as Mr. Green does not mention anything about the police mistreating him.

[175] In rejecting Mr. Green’s evidence, I recognize that there are inconsistencies between PC Ewles’ and PC Bothman’s evidence and a lack of detail in their notes regarding Mr. Green’s complaints. The concerns with the officers’ evidence do not rise to a level that satisfies me on the balance of probabilities that Mr. Green’s version of events is what occurred.

[176] I accept PC Ewles’ evidence that he sandwiched himself and Mr. Green between his body and the SUV. He explained that an officer places his body against the back of the accused to keep control. Officers have an accused lean forward so that they are off balance if they decide to run. PC Ewles’ description is consistent with what Ms. Dyer-Lindsay observed. It is also consistent with PC Bothman’s evidence that he used his arms to press Mr. Green against the hood of the car. It makes sense that the officers would position Mr. Green over the car this way, given that Mr. Green was a flight risk.

[177] Counsel for Mr. Green submits that it is not believable that PC Ewles did not hear or see what PC Bothman is doing at the SUV. With respect, that was not exactly his evidence. I found PC Ewles measured and fair throughout his evidence. When asked about what happened at the SUV, he stated that his focus was on searching Mr. Green and that he did not hear or see PC Bothman slam Mr. Green’s head six to eight times on the hood of the vehicle. In cross-examination he agreed that it was possible because he was not focused on Mr. Green’s upper body. Several possibilities were put to PC Ewles and PC Bothman during their cross-examination and both officers admitted that events were possible, even if they were far-fetched. For example, it was put to PC Bothman that he overheard PC Ewles’ evidence in court and that is how PC Bothman came to use the word squirm. PC Ewles’ evidence is that because he was not focusing on PC Bothman, he could not say with certainty what occurred. I take nothing more than that from his answer.

[178] I agree that it is very troubling that neither officer put in their notes that Mr. Green complained. That should have been put in their notes. The reason for that is clear. Both officers admitted that Mr. Green complained, but they could not recall what he complained about. PC Bothman thought he might have been complaining about the handcuffs being too tight. PC Bothman stated that he did not feel it was relevant because he did nothing wrong. Regardless of whether the officers felt they did anything wrong, they should have included this information in their notes. It is not for them to determine whether the complaints were justified or not. Rather, a record of the complaint is what matters so that it can be fully explored.

[179] I accept PC Bothman’s evidence that he did not act out of anger and aggression because Mr. Green had fled, and PC Bothman had to chase him. PC Bothman readily admitted that he did not like running through the dark and chasing accused persons. I found PC Bothman’s evidence throughout to be fair and I found him to be forthright on this point. He explained that he did not choose for how the situation unfolded, but that it did not change how he felt towards Mr. Green. It did not matter to PC Bothman if the police caught him then or later; PC Bothman was just doing his job.

[180] I also do not find that PC Moore prevented Ms. Dyer-Lindsay from complaining about the arrest of Mr. Green during her interview and therefore I should draw an inference that the officers mistreated Mr. Green. Ms. Dyer-Lindsay’s comments and questions were made at the end of her interview that took place in the middle of the night. PC Moore explained that the police did not know where the gun was, and that Mr. Green was not harmed. It would have been helpful if PC Moore spent more time on this issue so that Ms. Dyer-Lindsay better understood why the police felt they had to take Mr. Green to the ground and handcuff him and search him, but he answered her questions.

[181] Finally, counsel for Mr. Green submits that I should draw an adverse inference because PC Moore told Ms. Dyer-Lindsay to stop recording. In support this argument he relies on R. v. Moore-McFarlane (2001), 2001 6363 (ON CA), 56 O.R. (3d) 737. In that case the Court of Appeal for Ontario held that where a statement taken at the police station is not video recorded and there is no “sufficient substitute” for an audio or video recording, it is for the trial judge to determine if the Crown has met the heavy onus to prove voluntariness beyond a reasonable doubt: Moore-McFarlane, at para. 65. Counsel submits that the same analysis applies in this case.

[182] I am not prepared to draw an adverse inference that because PC Moore commanded Ms. Dyer-Lindsay to turn off her phone that PC Bothman used excessive force in arresting Mr. Green. I am satisfied that there are sufficient substitutes for the recording that demonstrate that the police did not act with excessive force.

[183] This is not a situation where Mr. Green was alone in an interrogation room with an officer giving a statement. There were several witnesses to Mr. Green’s arrest: Ms. Dyer, Ms. Dyer-Lindsay, and neighbours.

[184] Second, there was at least a partial recording in existence for a certain period of time. There is no evidence that Mr. Green took any steps to acquire the recording.

[185] Third, while PC Moore acted without lawful authority, it is speculative that PC Moore knew that PC Bothman would use excessive force. Based on the evidence, PC Moore told Ms. Dyer-Lindsay to stop recording at the time Mr. Green was put to the ground and handcuffed.

[186] Finally, PC Moore was not an impressive witness. His disregard for the law and Charter principles is evident throughout this investigation. His evidence was evasive and internally inconsistent on many points. I am not prepared to find that PC Moore’s demand that Ms. Dyer-Lindsay stop recording supports an inference that PC Moore knew that PC Bothman, PC Ewles of both officers were going to use excessive force in arresting Mr. Green. Rather, I prefer the evidence of PC Bothman that he would have preferred that there was a video recording of the arrest. The arresting officers had nothing to do with PC Moore’s decision to order Ms. Dyer-Lindsay to stop recording.

[187] Ultimately, I reject Mr. Green’s evidence that PC Bothman slammed his chest and chin onto the SUV six to eight times. I am satisfied that the officers had a subjective belief that Mr. Green was dangerous and possibly armed when they arrested him, and that this belief was objectively reasonable. In those circumstances, their conduct in putting Mr. Green to the ground, handcuffing him, and pushing him up against the SUV to search him may have appeared a bit rough to those who love Mr. Green, but the court is not to measure the force used by the police with exactitude. I find that the police’s conduct was reasonable and proportional given the circumstances.

ISSUE #2: DID PC MOORE’S ACTIONS IN STOPPING THE RECORDING VIOLATE MR. GREEN’S S. 7 CHARTER RIGHTS?

I. Positions of the Parties

A. The Applicant

[188] Counsel for Mr. Green submits that PC Moore denied Mr. Green relevant evidence when PC Moore prevented Ms. Dyer-Lindsay from recording Mr. Green’s arrest. He submits that the demand that Ms. Dyer-Lindsay stop recording in and of itself breached Mr. Green’s right to a fair trial.

[189] Counsel further submits that PC Moore should have informed Ms. Dyer-Lindsay of her Charter rights and then asked to look at her phone to see if it contained relevant evidence or asked Ms. Dyer-Lindsay to provide her phone to the police. Counsel submits that Ms. Dyer-Lindsay may have consented to providing the phone to the police, or if PC Moore looked at the phone, he may have seen relevant evidence that would have justified seizing the phone. Counsel submits that the arrest of an individual is always an issue and therefore relevant. It is the applicant’s position that PC Moore did not ask for the phone because he knew exactly what it showed.

B. Crown Counsel

[190] The Crown submits that there is no breach of Mr. Green’s s. 7 Charter rights. The Crown submits that there is no obligation for the Crown to bring evidence into existence. There is no requirement that police record everything that goes on during the course of an arrest. Therefore, the fact that the police precluded a third party from recording does not result in a breach of Mr. Green’s Charter rights. The police did not ask to look at the phone or ask that it be turned over, because PC Moore did not believe that phone contained relevant evidence.

[191] The Crown submits that s. 7 of the Charter does not require the Crown to preserve evidence it does not possess. Even if s. 7 of the Charter could be engaged in the circumstances of the case, it is the position of the Crown that Mr. Green has not demonstrated that he suffered actual prejudice by not receiving the evidence.

[192] Finally, the Crown submits that the issue of a stay should be considered at the end of the trial.

II. Analysis

[193] There is no need to wait to determine whether Mr. Green’s right to a fair trial was denied by PC Moore’s demand that Ms. Dyer-Lindsay stop recording Mr. Green’s arrest. The rationale for waiting until the end of the trial to determine whether the charges should be stayed is so the court can determine the relevancy of the evidence that was lost or stolen in determining if a stay is an appropriate remedy. In this case, the “lost evidence” has no relevance to the guilt or innocence of Mr. Green. There is no point in waiting until after the evidence is heard at trial to determine whether a stay should be granted, because the recording is not relevant to proving the offence; its only relevance is to a possible Charter breach: R. v. Bero, 2000 16956 (Ont. C.A.), at para. 18.

[194] There is no dispute that the Crown has an obligation to disclose all relevant evidence in its possession and to preserve that evidence: R. v. La, 1997 309 (SCC), [1997] 2 S.C.R. 680, at paras. 20 and 23. However, in this case, the evidence was never in the possession of the Crown.

[195] Similarly, the police were not negligent in collecting the evidence. Even if the police had allowed Ms. Dyer-Lindsay to record Mr. Green’s arrest, the police could not have seized the phone. The police did not have reasonable and probable grounds to believe that evidence of the firearm would be on the phone. Police cannot simply seize a civilian’s phone without a legal basis.

[196] While PC Moore could have asked to look at the phone or asked Ms. Dyer-Lindsay to give him the phone, there is no obligation on the police to gather evidence that they do not believe is relevant and which they do not have reasonable and probable grounds to believe would contain evidence of an offence. The police’s duty to preserve evidence does not obligate the police to create evidence. Both the Court of Appeal and the Supreme Court of Canada have declined to impose either a constitutional or common law requirement that police record video or audio of custodial interrogations: Moore-McFarlane, at paras. 61-65; R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 46.

[197] In R. v. Khan, 2010 ONSC 3818, 97 M.V.R. (5th) 35, at paras. 12-16, the Court held that the police were not constitutionally obligated to make a video recording of a breath analysis. Similarly, in R v. Kurmoza, 2017 ONCJ 139, 9 M.V.R. (7th) 151, at para. 17, the Court held that there was no Charter breach where the police did not record the arrest and transport of the appellant. However, in both cases, the trial judges found that there was no nefarious purpose on the part of the police; the cameras simply did not work.

[198] Even if there was no unacceptable negligence in the gathering of the evidence, “in some extraordinary case[s], there may still be a s. 7 [Charter] breach if the loss can be shown to be so prejudicial to the right to make full answer and defence that it impairs the right to a fair trial”: Bero, at para. 30, citing R. v. F.C.B., 2000 NSCA 35, 142 C.C.C. (3d) 540, at pp. 547-48.

[199] In this case, there was unacceptable negligence by the police, not in gathering the evidence, but by preventing its creation. Assuming, without deciding, that this type of police conduct would engage Mr. Green’s s. 7 Charter rights, Mr. Green must still demonstrate that the police’s actions actually prejudiced his right to full answer and defence.

[200] In R. v. Bradford (2001), 2001 24101 (ON CA), 52 O.R. (3d) 257, at para. 8, the Court of Appeal explained that the trial judge erred in staying the case where the police had lost the original statement of the complainant because the appellant did not demonstrate actual prejudice:

The fact that a piece of evidence is missing that might or might not affect the defence will not be sufficient to establish that irreparable harm has occurred to the right to make full answer and defence. Actual prejudice occurs when the accused is unable to put forward his or her defence due to the lost evidence and not simply that the loss of the evidence makes putting forward the position more difficult. To determine whether actual prejudice has occurred, consideration of the other evidence that does exist and whether that evidence contains essentially the same information as the lost evidence is an essential consideration.

[201] The present case is similar to R. v. Deesasan, 2018 ONSC 4180, 35 M.V.R. (7th) 322. In that case, Akhtar J. upheld the trial judge’s decision declining to grant a stay of the case where the police did not have a recording of the appellant’s arrest. The appellant argued that the cameras in the police vehicles would have shown that the police mistreated the appellant. The police denied any wrongdoing and stated that the appellant did not report any injuries and no injuries were observed at the time of his arrest.

[202] Akhtar J. held that a credibility contest would have been quickly resolved had the audio and video recording existed. However, Akhtar J. held that the appellant was more than able to advance his arguments as to the merits of the Crown’s case through his own testimony. In addition, there was evidence from the police officers, video evidence in the breathalyzer room, and civilian witnesses. Finally, it was pure speculation as to what was on the tape.

[203] Similarly, Mr. Green has failed to demonstrate that he could not put forward his defence on the basis that PC Moore prevented Ms. Dyer-Lindsay from recording his arrest for several reasons.

[204] First, Mr. Green took no steps to try and secure the evidence. Ms. Dyer-Lindsay testified that she did not record the whole event. PC Moore testified that Ms. Dyer-Lindsay recorded approximately ten seconds of Mr. Green’s arrest before he told her to stop recording. There is no evidence that Mr. Green attempted to get the phone from Ms. Dyer-Lindsay or that he went to the police and requested that they seize the phone from Ms. Dyer-Lindsay. Unfortunately for Mr. Green, by the time of the preliminary inquiry, Ms. Dyer-Lindsay no longer had the phone.

[205] Second, there were witnesses to Mr. Green’s arrest, including Ms. Dyer, Ms. Dyer-Lindsay, and neighbours who could give evidence about what they observed during Mr. Green’s arrest. There was also a video-taped statement of Mr. Green after his arrest.

[206] Finally, it is speculative to say that the tape would have helped Mr. Green, based on the evidence that was before the court.

[207] When all of these factors are considered, Mr. Green has not demonstrated that his right to a fair trial was breached by PC Moore’s order that Ms. Dyer-Lindsay stop recording.

ISSUE #3: MR. GREEN’S S.10(B) CHARTER RIGHTS WERE VIOLATED

[208] The Crown does not dispute that Mr. Green’s s. 10(b) Charter rights were violated and that Mr. Green’s statement was not voluntary.

[209] PC Moore undermined the advice duty counsel gave to Mr. Green on several occasions during Mr. Green’s interview as set out in the questions and answers below:

Q. I know. Every lawyer says don’t say anything right?

A. Sir, like, you know, you don’t dis-, your lawyer

Q. What?

A. Ah, you have to stay with the lawyer, you know?

Q. Your duty counsel lawyer, who we got out of bed most likely…

A. Mm-hmm.

Q. told you don’t say anything. Don’t give a statement.

A. mm-hmm.

Q. Doesn’t realize the amount of trouble is on the other end.

Q. …you gotta look past this lawyer stuff, man?

A. Ah, like, I don’t know, like, you know.

Q. It’s deeper than this.

A. I know its deeper than this. I know that—everything you know what I mean? But like [indiscernible] And like, you know, you got to understand, like, I don’t—I never been through the system like this, you know?

[210] PC Moore readily admitted that, while he did not directly insult the lawyer’s advice, his purpose in putting the suggestions to Mr. Green was to get Mr. Green to confess to possessing the firearm.

[211] In addition to the s. 10(b) Charter breach, PC Moore threatened Mr. Green into confessing to the offence, rendering the confession involuntary. Throughout the statement, Mr. Green indicated he did not want to say anything. In response, PC Moore suggested to him that if he did not confess, Ms. Dyer and Ms. Dyer-Lindsay would be charged, as set out in the following questions and answers:

Q. Okay? So, you understand that—you know, that if I were to tell you that they could be facing these firearm charges?

A. Mm-hmm.

Q. What-what do you say to that?

A. (no audible response.)

Q. It’s not fair.

A. Honestly, I can’t even say nothing right now because the room is audio again, and my lawyer told me not to say nothing, you know what I mean?

A. So you’re charging---you’re charging whatever—whatever with the same charge. Hmm?

Q. What do you –what do you think I’ve been saying to you the whole time.

A. Fucking, I don’t know.

Q. You have to own up to this gun, my friend.

A. I don’t do the—the—statement

Q. you have to own up to this thing.

A. Yeah

Q. ‘Cause what’s done is done.

A. Mm-hmm. It’s true.

Q. And its not fair for anyone else to suffer the consequences.

A. No.

Q. But I’ll tell you right now, if you play this little game with me, there’s gonna be consequences for those people.

A. Oh, ‘kay. Okay. I see what you’re saying.

Q. Do you think—do you think I’m playing? Do you think I’m trying to trick you into?

A. No, I don’t think you’re trying to trick me, but I don’t know you know?

Q. The -gun is in aunties house.

A. Mm-hmm.

Q. Right? Auntie and your cousin live in that house.

A. Mm-hmm.

Q. You were in that house.

A. Mm-hmm

Q. If we would charge you and not charge them….

A. Mm-hmm.

Q. …it comes to court, they’ll say, yea, it was ours. That way, if we charge everybody, right….

A. Mm-hmm.

Q. … then it goes to the court, and then—then the judge will say.

A. Oh, shit, like what.

ISSUE #4: SHOULD THE TRIAL BE STAYED PURSUANT TO S. 24(1) OF THE CHARTER?

[212] Counsel for Mr. Green concedes that if I do not find that the police slammed Mr. Green’s chest and chin onto the SUV, violating his s. 7 and s. 12 Charter rights, a stay is not an appropriate remedy. I agree. Given my finding that the use of force to arrest Mr. Green was not excessive, this is not the clearest of cases requiring a stay.

ISSUE #5: SHOULD THE GUN BE EXCLUDED PURSUANT TO S. 24(2) OF THE CHARTER?

I. Positions of the Parties

A. The Applicant

[213] Counsel for Mr. Green submits that the firearm should be excluded pursuant to s. 24(2) of the Charter. The breach of Mr. Green’s s. 10(b) Charter rights is extremely serious. The denigration of counsel and inducement to confess are part of PC Moore’s pattern of conduct ignoring the Charter and the law. The seriousness of the breach is aggravated because PC Moore has engaged in these tactics for years. No one has ever told him that they were not appropriate, and he has trained others. Counsel submits that the use of these type of tactics is a systemic problem in Peel Region.

[214] It is counsel’s position that PC Moore’s disregard for Ms. Dyer-Lindsay’s Charter rights is part of PC Moore’s blatant disregard for the Charter and the law when investigating criminal cases. PC Moore views the Charter and defence counsel as obstacles to convicting criminals. Counsel submits that this is a relevant factor in considering the seriousness of the Charter breaches in this case.

[215] Counsel submits that the court must disassociate itself from such conduct. While society’s interest in adjudicating the case on its merits favours inclusion of the firearm, there are other societal interests that must be considered, including that the police act properly and within the law when investigating crimes.

B. Crown Counsel

[216] The Crown submits the firearm should not be excluded under the s. 24(2) Charter analysis.

[217] It is the Crown’s submission that the firearm was not “obtained in a manner” that violated Mr. Green’s s. 10(b) Charter right. The firearm was legally seized pursuant to a search warrant prior to the s. 10(b) Charter breaches. The seizure of the firearm does not form part of the same transaction as the Charter breaches. The firearm was discoverable in the absence of the s. 10(b) Charter breach.

[218] The Crown also submits that the transactions between Ms. Dyer-Lindsay and Mr. Green are separate and therefore any Charter breaches relating to Ms. Dyer-Lindsay should not be considered in the s. 24(2) analysis.

[219] In considering the seriousness of the Charter breach, the Crown’s position is that the s. 10(b) breach is serious, but it did not impact the investigation in any way. In addition, there is insufficient evidence to find a systemic problem in Peel regarding how officers take statements of accused persons. PC Moore’s conduct is not reflective of the Peel Region. He is not a training officer, and the way he took the statement is not based on a Peel Police policy. There is also no jurisprudence that suggests the manner in which PC Moore took the statement is a systemic problem. The Crown submits that the fact that the statement was involuntary is separate and apart from the Charter violations.

[220] Finally, it is the Crown’s submission that the administration of justice would be brought into disrepute if the firearm is not admitted into evidence. The public has an interest in having a trial on its merits. Gun violence in Peel Region is high. The public deserves to be properly protected. Moreover, the firearm was obtained in a lawful manner.

II. Analysis

[221] Section 24(2) of the Charter provides that:

Where… a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[222] Two requirements must be satisfied before evidence will be excluded pursuant to s. 24(2) of the Charter. First, the court must determine whether the evidence was “obtained in a manner” that infringed Mr. Green’s Charter rights. If that threshold is satisfied, the court must consider whether the admission of the evidence would bring the administration of justice into disrepute.

A. Was the Firearm Obtained in a Manner that Violated Mr. Green’s Charter Rights?

[223] In determining if the evidence was “obtained in a manner” that infringed the Charter, the court must consider whether the discovery of the evidence is sufficiently proximate to the Charter breach. The court applies a generous and broad approach in this analysis, considering the “entire chain of events” between the police and the accused. The connection between the discovery of the evidence and the Charter breach may be sufficient if both events are part of the same transaction or course of conduct. The connection between the evidence and the breach may be “temporal, contextual, causal or a combination of the three”. However, the connection must be more than tenuous: see R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 50-56.

[224] The parties agree that there is no causal connection between the seizure of the firearm and the breach of Mr. Green’s s. 10(b) Charter rights because Mr. Green’s statement was not used to locate the firearm. However, this does not end the analysis. The court must also consider whether there is a sufficient contextual or temporal connection: R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, at p. 649; R. v. Strachan, 1988 25 (SCC), [1988] 2 S.C.R. 980, at pp. 1005-6.

[225] “Contextual” is defined in Pino, at para. 74, “to mean pertaining to the surroundings or situation in which something happens”. I find that the breach of Mr. Green’s s. 10(b) Charter rights is contextually connected to the seizure of the firearm. They both arose out of the same course of conduct and are part of the same transaction. Mr. Green’s arrest led to him giving a statement where his s. 10(b) Charter rights were breached. When police arrested Mr. Green, the police obtained reasonable and probable grounds for a search warrant to seize the firearm. Mr. Green was at the police station waiting to be interviewed by the police while the police executed the search warrant and seized the firearm.

[226] A temporal link will also often suffice to engage s. 24(2) of the Charter, but it is not determinative if the connection between the securing of the evidence and the breach is too remote. If both the temporal connection and the causal connection are tenuous, the court may conclude that the evidence was not obtained in a manner that infringed a Charter right. However, the “temporal connection may be so strong that the Charter breach is an integral part of a single transaction.” In those cases, “a causal connection that is weak or even absent will be of no importance”: R. v. Goldhart, 1996 214 (SCC), [1996] 2 S.C.R. 463, at para. 40.

[227] I am satisfied that there is a sufficient temporal connection between the s. 10(b) Charter breach and the seizure of the firearm to engage s. 24(2) of the Charter.

[228] Mr. Green was arrested sometime after 11:00 p.m. He was taken to the station. He waited at the station and was ultimately interviewed from 5:00 a.m. until 5:45 a.m. Officers were posted outside of Ms. Dyer's residence from the time of Mr. Green’s arrest until the search warrant was executed. Police seized the firearm pursuant to the search warrant at 3:27 a.m. A similar timeframe was considered to engage s. 24(2) in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 35.

[229] I do not find the connection between the breach of Mr. Green’s s. 10(b) Charter right and the discovery of the firearm to be too remote when one considers both the contextual and temporal connections; the infringement and the discovery both flowed directly from Mr. Green’s arrest and occurred within a relatively short period of time.

B. Would the Admission of the Firearm Bring the Administration of Justice into Disrepute?

[230] Once the court is satisfied that the evidence was obtained in a manner that violated the accused’s Charter rights, the court must consider the effect of admitting the evidence on society’s confidence in the administration of justice, having regard to the following factors:

a) The seriousness of the Charter-infringing state conduct;

b) The impact of the breach on the Charter-protected interests of the accused; and

c) Society’s interest in the adjudication of the case on its merits.

R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71.

[231] As the Supreme Court of Canada made clear in Grant and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, evidence cannot be found to be admissible solely on the grounds that the offence is serious, and the evidence is reliable and central to the Crown’s case. The Court of Appeal for Ontario, in R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1, at para. 56, held that “there is no ‘firearms exception’ requiring that guns obtained in breach of Charter rights be admitted into evidence”. The test for considering whether to exclude evidence obtained contrary to the Charter remains the same. The court must bear in mind the long-term and prospective repute of the administration of justice, focusing less on the particular case than on the impact over time of admitting the evidence obtained by infringement of the constitutionally protected rights of the accused.

[232] The tension between the three Grant factors in cases involving firearms was discussed by Doherty J.A. in R. v. Le, 2018 ONCA 56, 360 C.C.C. (3d) 324, at para. 151:

What the jurisprudence under s. 24(2) of the Charter recognizes is the problematic nature of the Grant calculus. The relevant age-old philosophical question is this: Do the ends justify the means? The usual answer is that bad means undermine good ends. The answer often yielded by the Grant calculus is this: Sometimes the achievement of a good end can retrospectively justify bad means. This tension is particularly pronounced in the case of guns obtained as a result of Charter-infringing police conduct. For instance, in Grant, the Supreme Court of Canada admitted a firearm. In Paterson, the majority excluded one. As it excluded the conversations in Marakah.

[233] In considering the analysis under s. 24(2) of the Charter, it is also appropriate for judges to reflect on the limits of their own experiences. As noted by Binnie J. in Grant and recently discussed by Sharpe J.A. in Omar, at paras. 58-59:

[58] However, the limited perspective of appellate judges ultimately cuts both ways in s. 24(2) cases. As Binnie J. recognized in his concurring opinion in Grant, visible minorities and marginalized people disproportionately experience “unjustified ‘low visibility’ police interventions in their lives”. Appellate judges may lack direct experience of such police interventions. The limits of the judicial perspective also require judges to recognize that many unlawful police detentions and searches never come before the courts. As the Supreme Court explained in Grant:

It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge.

Placing excessive weight on the fact that a firearm was found in a particular case before the court risks neglecting the reality that many cases of unlawful detentions and searches do not produce incriminating evidence.

[59] These factors require that judges be conscious of how admitting evidence in cases of such unjustified police interventions could affect the long-term repute of the justice system from the perspective of “long-term community values”. [Citations omitted.]

a. Seriousness of State Misconduct

[234] This factor involves a determination as to whether the admission of the evidence would send a message to the public that courts condone serious state misconduct. Inadvertent or minor violations may minimally undermine public confidence in the rule of law. In contrast, wilful or reckless disregard for Charter rights or egregious conduct will “inevitably” have a negative effect and risk bringing the administration of justice into disrepute”: Grant, at para. 74. As noted in Grant, at para. 72, “[t]he more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to disassociate themselves from that conduct…”

b. Section 10(b) Charter Breach

[235] The s. 10(b) Charter breach in this case is extremely serious. The right to counsel provides the accused with an important opportunity to speak to counsel to obtain information about the jeopardy they face and to receive legal advice regarding how to protect their interest.

[236] Since R. v. Broyles, 1991 15 (SCC), [1991] 3 S.C.R. 595, at p. 615, and R. v. Burlingham, 1995 88 (SCC), [1995] 2 S.C.R. 206, at para. 14, the law has been clear that police cannot disparage counsel or seek to undermine the advice given by counsel.

[237] Disparaging counsel has the effect of violating the accused’s right to remain silent by systematically undermining the accused’s confidence in their counsel for the purpose of getting the accused to talk in spite of the instructions of their lawyer to remain silent.

[238] PC Moore admitted to knowingly trying to undermine the legal advice given to Mr. Green by duty counsel. He testified that he did not know he could not disparage counsel, so at a minimum he was ignorant of the law. However, his evidence demonstrated that he knew he could not say counsel was an idiot and instead chose to frame his questions to undermine the advice of counsel without overtly stating that was his purpose.

[239] PC Moore also blatantly disregarded basic procedures when he questioned Mr. Green. He knew he was not to induce or threaten the accused. However, he did exactly that – he threatened Mr. Green that if he did not confess, the police would charge his aunt and cousin. PC Moore’s testimony that it was just a suggestion is ludicrous and disingenuous when one looks at the questions he put to Mr. Green. The fact that PC Moore did not expressly state “if you do not confess, I will charge your aunt and cousin” does not detract from the deliberate attempt by PC Moore to threaten Mr. Green into confessing. The deliberate breach of the law is further demonstrated by the fact that PC Moore agreed that he did not have grounds to charge either Ms. Dyer or Ms. Dyer-Lindsay.

[240] The Charter breach and PC Moore’s disregard for the law regarding voluntariness is aggravated by the fact that the law on disparaging counsel and the law on inducements and threats is well-established: R. v. Paterson, 2017 SCC, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44.

[241] Ignorance of Charter standards cannot be rewarded or encouraged. Similarly, the Court must distance itself from evidence obtained as a result of deliberate breaches of the Charter or where the police were negligent in meeting Charter standards: Grant, at para. 75; R. v. Le, 2019 SCC 34, 434 D.L.R. (4th) 631, at para. 143. I am satisfied that PC Moore deliberately asked questions in a manner that he knew violated the Charter and the law, but he thought he was doing it subtly and would not get caught.

[242] The Charter breach in this case is further aggravated by the fact that PC Moore testified that he has used these tactics for some time and that no one has corrected him. I find PC Moore’s conduct completely unacceptable. It is disturbing that he thought it was proper and that no one has corrected him. It is also disturbing that PC Moore has sat in on interviews and given advice to younger officers. This is an institutional issue that Peel Regional Police needs to address. This is an aggravating factor.

[243] I am not, however, prepared to find that there is a systemic problem across Peel Regional Police wherein officers that take statements from accused denigrate counsel and threaten to charge others if an accused does not confess. There was no evidence before me that this was the standard practise in Peel Region. While PC Moore testified that he sat in on interviews and gave younger officers advice, it must be remembered that these officers received proper training. In addition, there is no evidence that similar cases have arisen in Peel Region, which is distinguishable from other cases where courts have found a systemic problem with police conduct: R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, at paras. 92-93.

c. The Impact on Mr. Green’s s. 10(b) Charter Rights

[244] At this stage, the court is required to assess the extent to which a Charter breach “actually undermined the interests protected by the right infringed”. The impact may vary from being fleeting, transient or technical to profoundly intrusive. The more serious the incursion on the Charter-protected interest, “the greater the risk that admission of the evidence would bring the administration of justice into disrepute”: Grant, at paras. 76-77.

[245] Counsel for Mr. Green does not suggest that the Charter rights of Ms. Dyer-Lindsay have any relevance at this stage. I agree.

[246] The right to counsel is a “lifeline” for detained persons. Accused persons obtain legal advice from counsel about the jeopardy they face and the process that will follow their arrest. As noted by Doherty J.A. in Rover, lawyers provide a sense that the accused person is not at the mercy of the police while detained. “The psychological value of access to counsel” should not be underestimated: Rover, at para. 45. In this case, Mr. Green stated throughout his interview that his lawyer instructed him not to talk to the police. This advice is rooted in the right to remain silent. The breach had a significant impact on Mr. Green’s s. 10(b) Charter rights because it resulted in Mr. Green confessing to possessing the firearm.

[247] The impact would have been more serious if the breach of Mr. Green’s Charter rights led to the discovery of the firearm. As noted, there is no causal connection between the s. 10(b) Charter breach and the discovery of the firearm. There was a valid search warrant to enter the residence and seize the firearm. The fact that the firearm was discoverable without the Charter breach lessens the impact of the breach and the admission of the evidence is more likely: Grant, at para. 122; R. v. Druken, 2015 NSSC 394, [2015] N.S.J. No. 601, at para. 109.

[248] Given that there was presumptively valid search warrant, this factor weighs in favour of admission of the firearm.

d. PC Moore stopping Ms. Dyer-Lindsay from recording Mr. Green’s arrest

[249] Counsel for Mr. Green submits that I must consider that Ms. Dyer-Lindsay’s Charter rights were breached when she tried to record Mr. Green’s arrest and that she was illegally detained by PC Moore when assessing the seriousness of the state misconduct.

[250] The Crown submits that I should not consider any breaches of Ms. Dyer-Lindsay’s Charter rights because the evidence “was not obtained in a manner” that violated Mr. Green’s Charter rights. The connection between Charter breaches involving Ms. Dyer and Mr. Green’s Charter rights are too remote and tenuous.

[251] I need not consider the police misconduct having regard to how it impacted Ms. Dyer-Lindsay’s Charter rights. PC Moore’s unlawful actions in preventing Ms. Dyer-Lindsay from taping Mr. Green’s arrest impacted Mr. Green directly and therefore it is relevant police misconduct to consider under the s. 24(2) analysis.

[252] In R. v. Boutros, 2018 ONCA 375, 361 C.C.C. (3d) 240, Doherty J.A. held that while the s. 10(b) Charter breaches that occurred were not sufficient to trigger s. 24(2), that did not mean that the breaches were irrelevant under the s. 24(2) analysis, where s. 24(2) is otherwise engaged. Rather, “the conduct of the police throughout their investigation and even throughout the prosecution, including the initial s. 10(b) violations, are [sic] germane to the admissibility inquiry required under s. 24(2)”: Boutros, at para. 26.

[253] The focus at this stage is on the police misconduct. PC Moore’s actions denied Mr. Green an opportunity to create or recover evidence of his arrest. While I found that PC Moore’s misconduct did not sufficiently impact Mr. Green’s right to a fair trial to find a s. 7 Charter breach, that does not detract from the seriousness of PC Moore’s unlawful conduct in preventing the recording.

[254] PC Moore’s unlawful conduct in preventing a recording of Mr. Green’s arrest is extremely serious because it shows a pattern by PC Moore disregarding the law and Charter standards. Within six hours of Mr. Green’s arrest, PC Moore violated Mr. Green’s s. 10(b) Charter rights and ignored the law relating to the voluntariness.

[255] PC Moore had no lawful authority to demand Ms. Dyer-Lindsay to stop recording. PC Moore admitted that she could have continued recording while she walked over to PC Moore.

[256] Had PC Moore been recording and had Ms. Dyer-Moore tried to stop him, she would have likely been charged with obstruction of justice. Absent a lawful reason, the police have no right to prevent a person from recording a public event. One need only consider the names George Floyd and Robert Dziekanski to recognize the importance of allowing public recordings of events to ensure that the administration of justice is not brought into disrepute. The fact that Mr. Green was not actually prejudiced by PC Moore’s actions in preventing Ms. Dyer-Lindsay from recording Mr. Green’s arrest does not lessen the egregiousness of PC Moore’s conduct.

[257] The blatant disregard for Mr. Green’s 10(b) Charter rights in and of itself is very serious and militates in favour of exclusion of the evidence. PC Moore’s unlawful conduct in preventing Mr. Green from having the opportunity to obtain a recording of his arrest further demonstrate the need for the court to dissociate itself from the police misconduct in order to preserve public confidence and to ensure state adherence to the rule of law and Charter principles: Grant, at para 72. This factor therefore weighs strongly in favour of excluding the firearm.

[258] I leave for another day whether the Charter breaches involving Ms. Dyer-Lindsay should be considered in the s. 24(2) analysis. I find that it is not necessary to consider this issue because PC Moore’s conduct towards Mr. Green is sufficiently egregious to justify exclusion of the firearm. I note that in Ontario there is no jurisprudence as to whether third party Charter rights should be considered in the s. 24(2) analysis. The British Columbia Court of Appeal takes the position that once the threshold issue of whether the evidence was obtained in a manner that breached the accused’s rights, the court considers Charter breaches involving third parties in the s. 24(2) analysis: R v. Lauriente, 2010 BCCA 72, 251 C.C.C. (3d) 492, at paras. 7-8, 26-30; R. v. Mauro, 2017 BCCA 45, 379 C.R.R. (2d) 234, at paras. 26-27.

[259] If the Court were to consider the breaches of Ms. Dyer-Lindsay’s Charter rights, that would provide a further reason for the court to disassociate itself from the police misconduct, particularly given that Ms. Dyer-Lindsay advice PC Moore of the location of the firearm when she was unlawfully detained.

e. Society’s Interest in a Trial on the Merits

[260] The third consideration is whether the truth-seeking function of the trial would be better served if the evidence is admitted or excluded: Grant, at para. 79.

[261] There is no dispute that the public has an important interest in having a trial on the merits. This is a serious case. The scourge of firearms in the Peel Region and its impact on our community cannot be understated. The firearm is real evidence and without its admission, the Crown’s case is gutted.

[262] This is one factor to consider. It cannot overwhelm the s. 24(2) analysis. While the public has an interest in having a serious offence determined on its merits, the public “also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high”: Grant, at para. 84: Harrison, at para. 34; Le (SCC), at para. 158.

[263] The concern about how police treat accused persons and members of the public is a legitimate consideration. The police serve the community. The community must have faith that the police will treat both accused persons and non-accused persons fairly. I find that the need for a trial on the merits is significantly outweighed by the community’s interest in ensuring that the police act in accordance with the law and Charter values throughout the course of an investigation.

[264] This factor favours exclusion of the firearm.

f. Balancing the Three Grant Factors

[265] In considering the three Grant factors, the court must remember that the focus of s. 24(2) is societal. It is not aimed at punishing the police or providing compensation to the accused; it is about systemic concerns. The focus in the s. 24(2) analysis “is on the broad impact of admission of the evidence on the long-term repute of the justice system”: Grant, at para. 70. It must also be remembered that for every Charter breach that comes up in court, many may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge: Grant, at para. 75.

[266] The importance of maintaining the long-term repute of the justice system means that “[w]here the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility”: Le (S.C.C.), at para. 142. Even if only one of the first two lines of inquiry supports exclusion, the evidence may still be found to bring the administration of justice into disrepute. “It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion”: Le (S.C.C.), at para. 141.

[267] The violation of Mr. Green’s s. 10(b) Charter rights is extremely serious in its own right. The denigration of counsel undermined Mr. Green’s fundamental right to remain silent. On this basis alone, there is a need for the court to disassociate itself from the police conduct. The fact that PC Moore did not comply with basic principles to ensure that the statement was voluntary provides a further need for the court to disassociate itself from the police misconduct.

[268] The need for the court to disassociate itself from the police conduct that resulted in the seizure of the firearm in this case is magnified given PC Moore’s apparent disregard for Ms. Dyer-Lindsay’s s. 9 and s. 10(b) Charter rights during the arrest of Mr. Green, which provided definitive evidence regarding the location of the firearm.

[269] In addition, the unjustifiable command by PC Moore that Ms. Dyer-Lindsay stop recording is conduct that the court must vigilantly disassociate itself from. Efforts by police to try and shield themselves from any sort of scrutiny is not something that the courts should accept.

[270] When the cumulative pattern of misconduct is considered, the only way the court can adequately disassociate itself from the police misconduct is to exclude the firearm. I recognize that in doing so, the applicant, who is most certainly guilty, will not be punished for these serious offences. However, the court must consider the long-term repute of the administration of justice in determining whether to exclude the evidence. As Doherty J.A. noted in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 83, “[t]his unpalatable result is a direct product of the manner in which the police chose to conduct themselves.”

[271] The firearm is therefore excluded from evidence at Mr. Green’s trial, pursuant to s. 24(2) of the Charter.

Issue #6: Evidence of Prior Discreditable Conduct

[272] Given my ruling regarding the admissibility of the firearm, it does not appear that this issue needs be resolved. In any event, counsel for Mr. Green agrees that there is no problem with the jury being told that Mr. Green was being investigated for a firearm offence. This would explain to the jury why the police were at unit #83, 7555 Goreway Drive. I see no need for the Crown to lead evidence that Mr. Green was also wanted on an outstanding warrant from Niagara. That evidence is extremely prejudicial. That evidence may have become relevant if Mr. Green asserted that the police did not have a legitimate purpose in investigating him, otherwise the prejudicial effect of the admission of the evidence outweighs its probative value.

Dennison J.

Released: November 24, 2020