COURT FILE NO.: YC-20-8000000-5-0000 YC-20-8000000-6-0000

DATE: 20210505

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

T.I.

M. Cole and P. Santora, for the Crown

M. Salih and E. Brownscombe, for T.I.

HEARD: 20-21 April 2021

PUBLICATION BAN:

s.110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED-(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

s. 129. NO SUBSEQUENT DISCLOSURE- No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES - Every person who contravenes subsection 110(1) (identity of offender not to be published), 111 (1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

s.a.Q. akhtar j.

RULING ON SECTION 12 and 10(a) OF THE CHARTER

FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] The applicant stands charged with second degree murder and firearms offences arising out of the seizure of a loaded prohibited firearm following the execution of a search warrant at 55 Gunton Drive in the city of Toronto. The warrant was obtained on the grounds that a search of the premises would yield evidence of the murder allegations and authorised the police to arrest the applicant on site. During the course of the arrest, police discovered the applicant in possession of a loaded handgun in a satchel. In addition to the murder, he was charged with offences related to his possession of a loaded prohibited firearm.

[2] Both sets of charges were originally contained in a single indictment. However, the Crown subsequently severed the matters paving the way for two separate trials.

[3] The applicant takes issue with the manner of his arrest and alleges that the police violated his rights under ss. 10(a) and 12 of the Charter of Rights and Freedoms. He applies for the exclusion of the firearm in both trials pursuant to s. 24(2) of the Charter.

Background Facts

[4] On 30 May 2018, police were called to a shooting at Dundas Square in Toronto where they found an 18-year-old male, Israel Edwards, laying on the ground. Mr. Edwards was transported to hospital but was declared dead on arrival as a result of a single gunshot wound to the chest.

[5] CCTV camera footage captured three males who had left a Tim Hortons located at 2 Queen Street East walking northbound on the east side of Yonge Street near Dundas Square. The Crown alleges that these three males were the applicant, and his friends, M.M. and M.H.

[6] This group encountered another male, Aaron Stewart, who was accompanying the deceased that day. CCTV footage showed that the deceased walked towards the group and to the left of Mr. Stewart. An altercation occurred and Mr. Stewart pushed M.M. in the face causing him to stagger backwards. Almost immediately, a tall male wearing a grey hooded jacket and white sneakers pulled out a gun and began firing at Mr. Stewart and Mr. Edwards. Mr. Stewart and the rest of the group fled the scene as did the shooter. Mr. Edwards, hit by one of the bullets, fell to the ground.

[7] During the course of their investigation, police released a series of internal bulletins in the hope of identifying the shooter from the CCTV footage. A subsequent police check revealed the applicant to be one of M.M.’s known associates and his image was discovered in photos extracted from a mobile phone seized in the execution of a search warrant on M.M.’s address on an unrelated shooting. A comparison between the images and the CCTV footage led investigators to conclude that the applicant was the shooter.

[8] Investigating officers sought and received judicial authorisation to search 55 Gunton Drive, in the city of Toronto, an address linked to the applicant. On 27 September 2018, the police moved to execute the warrant. Their original strategy was to arrest the applicant off-site when he attended a pre-arranged meeting with his probation officer. However, these plans changed when the applicant failed to appear.

[9] The police were well aware of some of the logistical risks involved in executing the warrant. The applicant was suspected of second degree murder by shooting and was thought to be in possession of the firearm used. In addition, police believed that the applicant’s brother, who had outstanding firearms charges, might be present when they entered the address.

[10] In light of the potential perils, Homicide Squad investigators elected to employ the Emergency Task Force (ETF) to force entry into 55 Gunton Drive. After announcing their presence, the ETF used a battering ram to break down the door and ordered all occupants to “stay down”. Distraction devices were utilised to ensure any residents were subdued without violence or use of guns. As the ETF entered the residence they yelled out that they were police and were executing a search warrant.

[11] After entering the premises, Police Constable Martin McLaughlin followed the rest of the ETF team to the basement where he saw the applicant sit up on a blow-up mattress. McLaughlin ordered him to “get down” and show his hands, turning the safety switch on his gun to “safe”. McLaughlin attempted to grab one of the applicant’s hands in order to restrain him but the instability of the mattress led him to fall onto it with the applicant. A struggle ensued. Another officer, Police Constable Christopher Moorcroft attempted to assist but found himself dragged into the mêlée and onto the mattress with the other two men.

[12] It appears that the applicant ended up on top of Moorcroft. McLaughlin reacted by throwing punches at the applicant in an effort to unseat him from Moorcroft. However, these blows proved ineffective as they landed with reduced force due to the unsteadiness of the mattress.

[13] Eventually, McLaughlin managed to pull the applicant off Moorcroft but the struggle continued. The applicant became situated between McLaughlin’s legs. The officer directed the applicant to “stop fighting” and to “give him his hands” but the applicant ignored these orders and began pulling on a satchel strap resting on his chest.

[14] As he did so, McLaughlin observed a pistol inside the satchel and yelled to his colleagues that the applicant had a gun. Fearful of being shot, McLaughlin punched the applicant several times in the face - possibly ten times or more - to subdue him. Eventually, McLaughlin removed the gun and handcuffed the applicant to the rear using flexible constraints made up of a plastic fastener with laces.

[15] After McLaughlin placed the gun on a nearby table, he noticed that the applicant had freed himself and was engaged in a new struggle with other officers.

[16] McLaughlin, assisted by two other officers, made renewed attempts to control the applicant. At one point, one of the officers punched him in the face two to three times as the applicant sought to break free. The same officer tried to gain control of the applicant’s wrists whilst issuing numerous commands to stop fighting and permit handcuffing.

[17] Eventually, the applicant was placed on his stomach and handcuffed.

[18] Exhibits tendered by the defence show the applicant’s injuries including swelling to the face and blood stains around the nose and mouth. It is not disputed that at the police station, the applicant complained of urinating blood and this was confirmed by attending officers.

[19] The firearm, removed from the satchel by McLaughlin, was seized. It is the subject of this application.

The Charter Application

[20] Although the applicant applies for a remedy under both of s. 10(a) and s. 12 of the Charter, the two form part of the same alleged violation.

[21] The applicant submits that when the police entered the basement of 55 Gunton Drive and confronted the applicant they did not properly advise him of the reasons for his detention and arrest as required by s. 10(a) of the Charter. The applicant further contends that when carrying out the arrest, the police used unreasonable and excessive force, which amounted to a violation of his s. 12 Charter rights.

[22] The applicant argues that these breaches warrant the exclusion of the seized firearm for both the murder and firearms charges pursuant to s. 24(2) of the Charter.

[23] In response, the Crown argues that there were no Charter breaches. In attending 55 Gunton Drive the police were cognisant of the significant danger posed when entering the premises and acted reasonably in accordance with proper procedure. Moreover, the physical force used only arose because of the applicant’s refusal to comply with police demands.

WERE THE APPLICANT’S SECTION 10(a) RIGHTS VIOLATED?

[24] Section 10(a) of the Charter requires the police, when they detain or arrest an accused, to promptly inform them of the reasons for doing so.

[25] In R. v. Gonzales, 2017 ONCA 543, 354 C.C.C. (3d) 572, at para. 122, the Court of Appeal for Ontario described the right as comprising two aspects:

Section 10(a) includes both temporal and substantive aspects. The beneficiaries are those who are arrested or detained. The phrase "on arrest or detention" serves not only to define the class of beneficiaries -- those arrested or detained -- but also to assist, together with the adverb "promptly", in marking out when the right accrues. The provision describes the substance of the information to be conveyed -- "the reasons" for the arrest or detention. At a minimum, s. 10(a) requires that individuals who are arrested or detained for investigative purposes be advised, in clear and simple language, of the reasons for their detention: Mann, at para. 21.

[26] The applicant argues that his rights were violated because McLaughlin was obliged to tell him the reason for his arrest or detention before physically taking hold of him as he sat up. He relies on para. 124 of Gonzales where the court remarked that the “right to prompt advice of the reasons for detention is rooted in the notion that a person is not required to submit to an arrest if the person does not know the reasons for it.”

[27] The applicant argues that when McLaughlin saw him sit up on the mattress, he was obliged to tell him the reason for his detention to permit him to make a decision “to submit to an arrest”.

[28] I reject this submission: in the applicant’s case this would amount to putting the legal cart before the horse.

[29] As Gonzales makes clear, there must first be a detention or arrest for the s. 10(a) reasons to be given. Here, there was no detention when McLaughlin approached the applicant. The officer told the applicant to get down and sought to safely detain him by grabbing his hands and handcuffing him. That did not occur because McLaughlin lost his footing and the applicant began to resist violently.

[30] On these facts, there was no “arrest or detention” requiring the s. 10(a) reasons to be explained. That detention only occurred after the applicant had been safely restrained. Nor do I accept the applicant’s argument that the police could have requested that the applicant identify himself and “calmly” arrested him. I think it totally unrealistic to expect McLaughlin, in the circumstances known to the police, to stop and read out the s. 10(a) right without safely restraining the applicant.

[31] The police actions in breaking down the door to 55 Gunton Drive, the use of distraction devices, and ordering all occupants to comply with their requests had reason and purpose: the occupants inside the premises were considered dangerous and needed to be arrested with the minimum of risk.

[32] As is clear from the evidence, the reason that this did not occur in the applicant’s case was because his conduct made it impossible.

[33] There is no dispute that once the applicant had been safely detained and seen by the paramedics, he was given his s. 10(a) rights.

[34] For these reasons, I find no s. 10(a) violation.

WERE THE APPLICANT’S SECTION 12 RIGHTS VIOLATED?

[35] Section 12 of the Charter provides that everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[36] The applicant’s argument on this issue is based on the amount of force used by the officers in effecting his arrest.

[37] Section 25 of the Criminal Code, R.S.C. 1985, c. C-46, provides:

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

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

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.

[38] What is clear from the jurisprudence is that police action must be judged in context and viewed through the lens of the knowledge they possessed at the time of the arrest, including the threat of violence: R. v. Genest, 1989 CanLII 109 (SCC), [1989] 1 S.C.R. 59. at p. 89. In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 35, the Supreme Court of Canada, in reviewing the workings of s. 25(3)-(4) of the Criminal Code, observed that:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 1981 CanLII 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude.

[39] The courts have long recognised the need for police to be able to protect themselves and others when making an arrest as well as make decisions in the midst of evolving and dynamic situations: R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.), at para. 45.

[40] In R. v. White, 2007 ONCA 318, 85 O.R. (3d) 407, at para. 54, the court commented:

When Constable King seized the respondent's cell phone, he found himself in a dangerous and potentially volatile situation. In the circumstances, he had little time to reflect. He had to make a split second decision; a moment's hesitation could have put his life and that of his partner in peril. Courts should keep this in mind when assessing the conduct of officers in the field. When it comes to officer safety and preserving the integrity of their investigation, police officers should be given a good deal of leeway and second guessing should be avoided. [Emphasis added]

[41] Applying these principles, I find no breach of the applicant’s s. 12 rights.

[42] There is no question that the police executed the warrant having been made aware of the significant risks involved.

[43] As previously described, the applicant was suspected of committing second degree murder with a firearm. There was every reason for the police to believe that the firearm was on the premises and that the applicant knew how to operate it.

[44] The ETF officers had also been told that there was a realistic possibility that the applicant’s brother, facing his own firearms charges, would be at the address.

[45] From any objective standpoint, the execution of the warrant was fraught with danger. The use of the ETF and the dynamic entry into 55 Gunton Drive reflects the police apprehension. The applicant, quite rightly, does not contend that this type of entry was unwarranted.

[46] Against this backdrop, the police cannot be faulted in seeking to ensure that before anything else was done, everyone inside the residence had been safely detained with the minimum of force.

[47] The evidence of the officers makes clear that this is what they intended. However, things did not go to plan.

[48] The key driving factor in the events that followed was the applicant’s conduct. From start to finish, the applicant aggressively resisted police efforts to arrest him. His continued refusal to respect police demands significantly undermines his position that the police could have acted more “calmly” when dealing with him.

[49] It is clear from the evidence that the applicant had no interest in co-operation or compliance. I find that it was more than reasonable for McLaughlin to believe that the applicant was reaching for his gun in the satchel as he fought the police on the mattress. The punches thrown by McLaughlin were more than justified given the perceived threat.

[50] The applicant’s resistance after he escaped from his initial restraints further weakens his “calm approach” arguments.

[51] I agree with the Crown that, if anything, the police showed commendable self-control and discipline in dealing with a suspect alleged to have killed another person in public and found in possession of a gun. Even though they were armed with submachine guns, none of the officers sought to use them. As pointed out by the Crown, the Use of Force Wheel, filed by the applicant as an exhibit, authorised the use of lethal force in these circumstances. Thankfully, that proved unnecessary.

[52] Instead, the police resorted to defensive tactics approved under the Ontario Use of Force model such as a the “head turn take down” to bring the applicant under control. The police were faced with split-second decisions and they exercised them by using as much force as was reasonable to arrest the applicant.

[53] It is highly regrettable that the applicant sustained injuries. However, any harm he suffered was a direct result of constant and continued aggression towards the police rather than their use of excessive force.

[54] The applicant’s argument amounts to a “what the police could have done in hindsight” analysis and holds no water. The words of Cromwell J. in R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at paras. 23-24 are particularly apposite:

First, the decision by the police must be judged by what was or should reasonably have been known to them at the time, not in light of how things turned out to be. Just as the Crown cannot rely on after-the-fact justifications for the search, the decision about how to conduct it cannot be attacked on the basis of circumstances that were not reasonably known to the police at the time: R. v. DeWolfe, 2007 NSCA 79, 256 N.S.R. (2d) 221, at para. 46. Whether there existed reasonable grounds for concern about safety or destruction of evidence must not be viewed "through the 'lens of hindsight'": Crampton v. Walton, 2005 ABCA 81, 40 Alta. L.R. (4th) 28, at para. 45.

Second, the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 73; Crampton, at para. 45. It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.

[55] For these reasons, I find no breach of the applicant’s s. 12 rights and the application is dismissed.

S.A.Q. Akhtar J.

Released: 5 May 2021

COURT FILE NO.: YC-20-8000000-5-0000 YC-20-8000000-6-0000

DATE: 20210505

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

T.I.

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.