CITATION: R. v. Creary #2, 2021 ONSC 4936
COURT FILE NO.: 19-70000392-0000
DATE: 20210825
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KEERON CREARY
Defendant
John C. Healy, for the Crown
O. Benjamin Vincents, for the Defendant
HEARD: April 12, 14, 15, 16, 19, 20, 21, 22, 26, 27, 28, 29, May 3, 4, 5 and 6, 2021
MOLLOY J.:
REASONS FOR DECISION
(Charter Applications)
A. INTRODUCTION
[1] Keeron Creary is charged with three offences in relation to the shooting of Kevin Haselsteiner on Ontario Street in Toronto shortly before midnight on August 14, 2018: attempted murder; discharging a firearm with intent to wound or endanger life; and pointing a firearm at Mr. Haselsteiner. Mr. Haselsteiner was shot in the neck and lost a lot of blood due to arterial spray. He survived that injury and was discharged from hospital on September 20, 2018. Sadly, he died 31 days later, from a drug overdose.
[2] Within an hour of the shooting, Mr. Creary was arrested approximately seven blocks away, hiding in a carport near Carleton Street. He is charged with a number of offences relating to his actions on Carleton Street immediately prior to his arrest and things in his possession at the time of his arrest, specifically: pointing a firearm at a police officer contrary to s. 87(1) of the Criminal Code; possession of a loaded prohibited firearm (the same one pointed at the police officer) contrary to s. 95(1) of the Criminal Code; possession of that same prohibited firearm contrary to s. 92(1) of the Criminal Code; possession of that same firearm while under a s. 110 prohibition order; possession of ammunition (11 bullets found in his pocket) contrary to the s. 110 prohibition order; and breaching the term of a recognizance prohibiting him from being in possession of weapons or ammunition. That same firearm was used to shoot Mr. Haselsteiner.[^1]
[3] Mr. Creary elected to be tried by a judge without a jury on the Zoom platform, and pleaded not guilty to all counts. There were a number of Charter applications by the defence, the nature and extent of which were expanded upon significantly on the eve of trial. On April 12, 2021, the Crown brought a motion to dismiss those applications as being out of time or, in the alternative, for an adjournment of the trial. I dismissed the Crown’s motion and the trial started before me on April 14, 2021.
[4] I dealt with the Charter applications and the trial proper on a blended basis and, at the end of the evidence and argument, reserved my decision. There are many separate issues to be dealt with, as well as some issues that overlap. Rather than releasing one omnibus decision with every issue subsumed within it, I have written four separate decisions as follows, all released on the same day:
R. v. Creary #1, 2021 ONSC 4935: Point Firearm at Police Officer
R. v. Creary #2, 2021 ONSC 4936: Charter Applications: Exclusion of Evidence and Stay of Proceedings
R. v. Creary #3, 2021 ONSC 4937: Opinion Evidence of Firearms Expert
R. v. Creary #4, 2021 ONSC 4938: Attempted Murder and Related Charges
[5] While each of these decisions is meant to be a stand-alone, to fully understand the reasoning behind each decision, it may be necessary to refer to one or more of the other decisions. Ultimately, in a nutshell, I found Mr. Creary to be guilty of pointing the firearm at the police officer on Carleton Street and of being in possession of that firearm and separate ammunition in his pocket (and therefore also being in breach of the prohibition order and recognizance).[^2] The evidence of the firearms expert is admissible and reliable. The firearm Mr. Creary had in his possession and pointed at the officer is the same gun used to shoot Kevin Haselsteiner.[^3]
[6] For reasons provided in R. v. Creary #4, I found that there is not sufficient evidence for me to conclude that the shooter intended to kill Mr. Haselsteiner. However, I am satisfied beyond a reasonable doubt that whoever shot Mr. Haselsteiner intended to wound him and would be guilty of discharging a firearm with intent to wound (as charged in Count 2 on the indictment). I cannot be satisfied beyond a reasonable doubt that Mr. Creary was the person who shot Mr. Haselsteiner. I am satisfied that, at a minimum, Mr. Creary was present or nearby at the time of the shooting and that he took the firearm, knowing it had been used in the shooting, and fled with it in order to assist the shooter to avoid liability for the shooting. He is therefore an accessory after the fact to the discharge firearm offence. I have amended Count 2 to reflect that and found Mr. Creary guilty on the amended Count 2.
[7] This decision deals with all the Charter applications brought by Mr. Creary. The defence alleges that: Mr. Creary was subjected to excessive force at the time of his arrest; was not advised of his rights to counsel or the grounds for his arrest in a timely way; was subjected to further excessive force while being searched at the roadside prior to being transported to the police station; and, was improperly strip-searched in public at the side of the road prior to being placed in the police car. Based on these alleged violations of the rights of the accused, the defence seeks a stay of all charges against him or, in the alternative, exclusion of the evidence found on him during the roadside search (11 rounds of ammunition in a pants pocket). In addition, the defence alleges that the police lost important evidence (the plastic bag that the 11 rounds of ammunition had been in at the time they were seized) and argues that this further justifies a stay of proceedings.
[8] For the reasons that follow, the Charter applications are dismissed.
B. CHRONOLOGY OF EVENTS
[9] For purposes of the analysis that follows, it is useful to set out an approximate timeframe of relevant events.
• 11:53 p.m.: Multiple shots were fired on Ontario St., one of which wounded Mr. Haselsteiner. The shooter fled the scene heading south.
• 11:57 p.m.: D.C. Walker saw Keeron Creary run east onto Sackville from an alley, then south on Sackville, then east on Carleton.
• 12:00:26 a.m.: D.C. Walker saw Mr. Creary hiding between a car and fence in the driveway of 308 Carleton. Mr. Creary pointed a gun at D.C. Walker. When D.C. Walker ordered him to drop the gun, Mr. Creary put the gun on the ground under the front bumper of the car and immediately jumped the fence into the yard of 308 Carleton. Other police officers arrived immediately and a perimeter was set up to prevent the suspect from escaping.
• 12:12 a.m.: A loaded firearm was spotted in the location where D.C. Walker saw Mr. Creary crouching.
• 12:15 a.m.: Emergency Task Force (ETF) members and the Canine Unit arrived on scene and were briefed by D.C. Walker, including that Mr. Creary pointed a gun at him.
• 12:45 a.m.: Mr. Creary was found in the carport by ETF officers.
• 12:48:06 a.m.: Two officers escorted Mr. Creary from the alley out to the cruiser on Sackville Street.
• 12:49:22 a.m.: Police officers searched Mr. Creary at the side of the police car on Sackville.
• 12:53:09 a.m.: Mr. Creary is put into the police car.
• 12:54:45 a.m.: Paramedics examined Mr. Creary on Sackville.
• 1:01:41 a.m.: A police officer at the door of the cruiser, reading from his memo book, advised Mr. Creary of the reason for his arrest and his right to counsel, and cautioned him.
• 1:04 a.m.: Mr. Creary was taken to the police station in a police cruiser.
• 1:10 a.m.: Police car arrived at 51 Division sallyport.
• 1:13 to 1:14 a.m.: Mr. Creary, while in the back of the cruiser with his hands cuffed behind his back, manouevred himself to get his cuffed hands in front of him.
• 1:14:46 a.m.: Mr. Creary was removed from the police car in the sallyport at 51 Division. His cuffs were removed and he was cuffed again to the rear.
• 1:17 a.m.: Mr. Creary was paraded before the duty sergeant.
• 2:20 a.m.: Officers conducted a strip search at the station.
• 3:00 a.m.: Mr. Creary refused to speak to duty counsel.
• 11:00a.m.: At his request, Mr. Creary was transported to hospital for treatment. He was discharged at 13:40.
C. USE OF FORCE BY THE EMERGENCY TASK FORCE UPON ARREST
Legal Principles
[10] A police officer is entitled to use “such force as may be necessary” to effect an arrest, and to ensure that the arrest is maintained.[^4] This includes the use of reasonable force to prevent the detainee from fleeing.[^5] However, the degree of force used must be “no more than is reasonably necessary.”[^6]
[11] In describing the legal standard for the use of force by police, the Supreme Court of Canada held in R. v. Nasogaluak:
But police officers do not have an unlimited power to inflict harm on a person in the course of their duties. While, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness. Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences.[^7]
[12] Officer safety is a factor justifying the use of force in subduing a person under arrest. In Nasogaluak, the Supreme Court emphasized the importance of assessing the police conduct within the context of the exigent circumstances they were facing, stating:
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. [p. 218][^8]
[13] The assessment of whether police used an excessive degree of force has both subjective and objective components. The officers involved must have believed subjectively that they were only using the degree of force that was necessary and appropriate to the situation. In addition, those views must be reasonably held when viewed in the context of the surrounding circumstances.
[14] In R. v. Magiskan, Zelinski J. of this court set out a useful list of relevant factors to consider in considering an allegation of excessive force by the police, which I adopt, as follows:
• the nature and seriousness of the offence for which the arrest is being made (one does not engage a bulldozer when a flyswatter is sufficient).
• the certitude of the fact of the offence which is the basis of the arrest having taken place (Persons are presumed to be innocent until proven guilty. The more that is known about the circumstances that establish guilt, the more thorough the inquiry, the more complete the objective evidence and the more reasonable the grounds upon which the arrest is made are important considerations which govern necessity and reasonableness).
• the need for detention as an aspect of intervention;
• the protection of the officers and other persons from violence;
• the prospect of flight/escape;
• the likelihood of continuation/resumption of offending conduct;
• the apparent physical condition of the person being arrested and/or alleged victims;
• police modules and training affecting the use of force;
• the prospect of escalation and retaliation;
• knowledge of the identity and access to the person to be arrested; (A person who is to be arrested does not, of necessity, have to be arrested at that time and place if use of force is contemplated when it is reasonable that this can be accomplished on another occasion without violence or with less violence);
• the nature and extent of the force reasonably contemplated as likely to be necessary;
• other exigent circumstances.[^9]
Evidence of the Police Officers and Hearsay Statements of the Accused
[15] The accused alleges that he was gratuitously beaten up by officers of the ETF at the time of his arrest. The onus is on the accused to establish on a balance of probabilities that the police used excessive force to effect his arrest.[^10] Mr. Creary did not testify on the applications or trial before me. There is no video or audio recording of the arrest made by the ETF officers. There are photos of Mr. Creary taken immediately after his arrest showing a small cut on his forehead above his right eye, and some minor swelling in that area. Because Mr. Creary was taken to the ground at the time of his arrest, this injury is not necessarily evidence of excessive force. I therefore have no direct evidence as to Mr. Creary’s version of this event.
[16] Defence counsel argues that I should take into account statements made by Mr. Creary to other police officers after his arrest in which he said he had been beaten up by the Emergency Task Force officers who arrested him. The Crown’s position is that these statements are hearsay, self-serving, and inadmissible for their truth. I agree with the position taken by the Crown on this point.
[17] The classic statement of the general rule against admitting such evidence is found in the Ontario Court of Appeal’s decision in R. v. Edgar as follows:
[E]xculpatory out-of-court statements made by an accused person are generally considered inadmissible, although this rule is subject to many exceptions.[^11]
[18] In Edgar, the court cited its earlier decision in R. v. Campbell, stating:
The refusal of the trial Judge to admit the evidence of other witnesses, whether in cross-examination or otherwise, of previous statements made by the appellant, involves two separate rules of evidence:
I. The rule which precludes an accused from eliciting from witnesses self-serving statements which he has previously made.
II. The rule which provides that a witness, whether a party or not, may not repeat his own previous statements concerning the matter before the Court, made to other persons out of Court, and may not call other persons to testify to those statements.
Statements made by an accused which infringe rule I are excluded as hearsay. The narration by a witness of earlier statements made to other persons out of Court appears to be excluded under rule II, because of the general lack of probative value of such evidence, save in certain circumstances, in support of the credibility of the witness. Each of the above rules is subject to well-recognized exceptions or qualifications, and there is some overlap, both in the rules and in the exceptions to them: see Phipson on Evidence, 12th ed. (1976), at pp. 650-3; Cross on Evidence, 4th ed., at pp. 207-20; Previous Consistent Statements, [1968] Camb. L.J. 64, by R. N. Gooderson.[^12]
[19] This is consistent with the Supreme Court of Canada ruling in R. v. Simpson in which the court held that excluding hearsay exculpatory statements by an accused is based on the inability to test such statements through cross-examination. The court stated:
As a general rule, the statements of an accused person made outside court – ‑subject to a finding of voluntariness where the statement is made to one in authority – are receivable in evidence against him but not for him. This rule is based on the sound proposition that an accused person should not be free to make an unsworn statement and compel its admission into evidence through other witnesses and thus put his defence before the jury without being put on oath and being subjected, as well, to cross-examination.[^13]
[20] All of the cases recognize that there are exceptions to the general rule, e.g. to rebut an allegation of recent fabrication, to show state of mind, or where there has been a spontaneous utterance upon learning of the charge being laid. None of the recognized exceptions apply in the case before me. There is no reason that the general rule should not apply to exclude these hearsay statements.
[21] Further, applying the principled exception to the hearsay rule would be of no assistance to Mr. Creary’s position because the requirements of necessity and reliability are clearly not met. The absence of necessity is obvious: Mr. Creary was present, could have testified on this issue, but chose not to testify.
[22] I also find his utterances about the conduct of the ETF officers to be highly unreliable and self-serving. I will explore this general unreliability in more detail in relation to Mr. Creary’s allegations against other officers. For present purposes, suffice to say that Mr. Creary was prone to exaggeration and was likely fabricating much of his continuing complaints of abuse. He was seen by the paramedics on site and cleared for transport to the police station. When he continued to complain at the police station about the extent of his injuries, he was taken to Mount Sinai and examined in the Emergency Room. The medical records show that Mr. Creary complained of pain all over his body and would not say which area hurt more than any other area. He stated that he needed a full-body X-ray, which the examining doctor saw no reason to order. No physical injuries were found and Mr. Creary was discharged back into the custody of the police with no treatment prescribed, not even any pain medication. Given these records, it is certainly not possible to say that Mr. Creary’s complaints about being beaten up by the ETF officers are sufficiently reliable to be accepted into evidence, untested by cross-examination. Further, even if admitted, those statements would not be sufficient to satisfy the onus on the defence to prove the abuse allegations on a balance of probabilities.
[23] Mr. Creary’s conduct while being escorted by two police officers from the spot where he was first arrested to the scout car on Sackville Street, which would transport him to the police station, is also hearsay in nature. I deal with that aspect of the application in more detail in the following section. For present purposes, I say simply that although Mr. Creary appears to have been dragged part of the way, that does not mean he was unconscious, nor does it add credibility to his allegation of having been beaten by the ETF officers.
[24] That is not the end of the matter, however. Each of the police officers involved in the arrest testified at trial. I must consider their evidence and determine whether I accept it and, based on the evidence I do accept, consider whether those officers used excessive force in arresting Mr. Creary.
[25] Four ETF officers participated in the arrest: P.C. Sebastian Acui; P.C. Ron Willers; T.C. Robert DoBias; and P.C. Norman Gilchrist. Each of them was armed with a holstered pistol and a rifle, to which was attached a high-powered flashlight. None of the pistols were ever drawn.
[26] P.C. Sebastian Acui was the first officer to spot Mr. Creary hiding in the carport. He called out, “Police. Come out with your hands up.” He also immediately alerted other ETF officers in the area. P.C. Gilchrist was just a few feet away and the next officer to arrive at the carport. The others were not far behind. P.C. Gilchrist ordered Mr. Creary (who by this time was standing) to put his hands on his head and walk backwards out of the carport to the alleyway where the officers were positioned. Mr. Creary complied. Various officers report Mr. Creary as saying that he was coming out, telling them not to shoot, and asking them what this was about.
[27] Several officers noted that Mr. Creary was looking around and from side to side. I do not find that surprising given that multiple officers were arriving and pointing firearms and flashlights at him. However, everything appeared to be proceeding smoothly until P.C. Willers stepped in to put handcuffs on Mr. Creary.
[28] From the outset, P.C. Willers had been assigned the task of handcuffing the suspect. He had obtained a set of handcuffs from the Primary Response Unit in advance. Once he started the handcuffing process, only P.C. Willers uttered verbal commands to Mr. Creary. This is in accordance with protocol, to avoid the risk of confusion. P.C. Willers testified that when he grabbed hold of Mr. Creary’s left hand in order to cuff him, Mr. Creary turned into a crouch and simultaneously started to pull away. P.C. Willers said that this was the point when he engaged the use of force to get control of Mr. Creary. He forced Mr. Creary to the ground, with his face down, but was unsure which part of Mr. Creary’s body hit the ground first. He said Mr. Creary continued to struggle and actively resist with his whole body moving, with the result that at one point he actually lost his grip on Mr. Creary’s left arm. P.C. Willers was aware of other officers assisting in taking Mr. Creary to the ground and restraining him, but not aware of what each officer was doing in that process. He acknowledged that he “might” have delivered “distractionary blows” to Mr. Creary in that process, but had no actual memory of doing so. He denied kicking Mr. Creary or seeing any other officer do so. He said Mr. Creary was fully conscious throughout this process, and only stopped struggling when his hands were securely cuffed behind his back. P.C. Willers testified that he believed Mr. Creary to be the person they were searching for, responsible for the shooting a few blocks away, and that he might be armed. He said that it was necessary for officer safety to use force in response to this dangerous situation. He noted that the darkness in the alley was a factor in this decision, as was the nature of the offence.
[29] P.C. Aciu was right next to Mr. Creary when P.C. Willers first tried to put him in handcuffs. He testified that as soon as P.C. Willers put his hand on Mr. Creary, the suspect suddenly turned and his hand went in front of him. He described this as a sudden “jerking twist movement” and believed Mr. Creary was trying to break free. Concerned that Mr. Creary was reaching for a gun, P.C. Aciu grabbed Mr. Creary’s hair with one hand, while using his other hand to secure his rifle against his side so that Mr. Creary would not be able to grab it. He then pulled Mr. Creary towards the ground and attempted to control him by keeping his head against the ground. He said Mr. Creary was continuing to struggle. One of the officers yelled out, “I don’t have his hand.” At that point, P.C. Aciu struck Mr. Creary on the left side of his head, using what he called a “hammer fist” (indicating the hand clenched like a fist, with the thumb on top, and striking a blow with the outside of the fist with the same motion as using a hammer—like a karate chop with a closed fist and using the soft side of the hand). He said he used medium strength, enough for the suspect to know he had been hit but not enough to cause damage or knock him out. He testified that he did this in order to distract Mr. Creary. P.C. Aciu denied kicking Mr. Creary and said it would have been impossible for him to do so as he was down on one knee attempting to control Mr. Creary’s head. He did not see what other officers were doing specifically, although he was aware that multiple officers were involved in trying to control Mr. Creary. He cited officer safety as the reason for the use of force. He also noted that the suspect’s jeopardy would have been very high as he believed he had just shot somebody and had already run from the police after a showdown type confrontation with another officer. P.C. Aciu stated that the decision to use force was immediate upon Mr. Creary moving as if he was trying to break free. He said, “He’s probably thinking survival – unfortunately, so were we at that moment, which is what triggered those series of moves in a split second.” He acknowledged that in this type of situation the safety of the suspect is “part of the matrix,” but that the number one priority is the safety of the police officers and any citizens. He did not notice any injuries on Mr. Creary.
[30] P.C. Gilchrist was standing with P.C. Aciu when Mr. Creary first came out of the carport. He testified that Mr. Creary was compliant at first, but started to pull away when P.C. Willers tried to cuff him. He said he was the third officer in (after Willers and Aciu) when Mr. Creary started to struggle, and that his priority was to get control of Mr. Creary’s arm. He considered Mr. Creary to be a “severe threat” to officer safety until his hands were under control. He described the use of force in effecting the arrest as “brief” and “measured.” He denied hitting or kicking Mr. Creary, but said this may have been because he was not in a position to do so. He did not remember if Mr. Creary was crying out in pain, and did not notice any injuries on Mr. Creary, but said he was not involved after he was cuffed so would not have seen his face.
[31] Like the other three officers involved in the arrest, T.C. Robert DoBias testified that Mr. Creary was initially compliant, but started to pull away when P.C. Willers attempted to cuff him. T.C. DoBias was not involved in bringing Mr. Creary to the ground. He stood by with his rifle and attached flashlight trained on Mr. Creary as he struggled and resisted on the ground. He believed Mr. Creary might be armed and his right hand being under him posed a danger that he could shoot an officer. He described the situation as being “dangerous” and “dynamic.” T.C. DoBias said that he kicked Mr. Creary several times on his leg and on his right side while he was struggling with the officers. He said he kicked as hard as he could to distract Mr. Creary from resisting the officers. He was wearing work boots, but they did not have steel toes. Shortly after, he put his knee on Mr. Creary’s back at the belt line to control his hips, as another officer had control of his head. He was then able to get hold of Mr. Creary’s left hand and brought it back to be cuffed. He said that the distracting kicks were all he could do at the time as he was too close to deploy a taser and he also needed to keep control of his rifle. He denied kicking Mr. Creary in the head, explaining that this would be an acceptable use of force to save a life, but otherwise would be too dangerous to the suspect. He did not see any injuries on Mr. Creary. He said Mr. Creary continued to resist after he was brought to his feet with his hands cuffed behind him, but no force was used against him at that point as he no longer posed a threat to officer safety.
Analysis
[32] I accept the testimony of the officers as being truthful. Each gave evidence generally corroborative of the others, with any differences easily explained by the role each played, their opportunity to observe, and the effects of memory. There is nothing to contradict their testimony. The cut to Mr. Creary’s head was minor and was likely caused by the right side of his head being on the hard road surface when P.C. Aciu hit him on the left side of his head. There were no injuries consistent with the degree of force alleged by the defence.
[33] Based on this evidence, I find that no force was applied to Mr. Creary until he stopped following the directions being given to him and began to pull away from the officer who was attempting to cuff him. All four officers on scene reasonably believed at that point that Mr. Creary was resisting arrest and attempting to get away.
[34] This was a dangerous and rapidly-unfolding situation, which is why the Emergency Task Force had been deployed to assist in apprehending the suspect. Within minutes of a serious shooting, an officer chased a suspect a short distance as he ran in a general direction away from the scene of the shooting. That officer then found that man hiding behind a car. When confronted, the man pointed a firearm at the officer, ignored his commands, and fled. That same man, Mr. Creary, was located by ETF officers hiding behind a car in a carport a short distance away. This was a dark laneway between many backyards of residential homes. The lighting was poor. It was reasonable for the ETF officers to believe the suspect was the same man who had fled from the officer a short distance away and to believe he might be armed with a gun or some other lethal weapon. The safety of the officers involved, as well as public safety given the adjacent residences, was paramount. They had no idea of this man’s identity, and it was imperative to obtain control of him then and there, lest he flee again.
[35] I accept the evidence of the officers who testified that, if Mr. Creary had continued to cooperate, they would simply have cuffed him and turned him over to other officers for transport to the police station. However, that is not what happened. When Mr. Creary started to resist the officers attempting to arrest him, it was necessary for them to apply force to effect his arrest and prevent him from escaping again. The only real issue, therefore, is whether the degree of force was proportional and reasonable in all the circumstances.
[36] It is important to take into account the surrounding circumstances, including that the laneway was poorly lit, and the nature of the charges the officers believed Mr. Creary to be facing. These officers are trained in the use of force to control a suspect, which training includes distractionary blows and kicks such as were used on Mr. Creary. Each officer had to exercise a degree of judgment as to how much force to apply, and it had to be done in a split second under volatile and dynamic circumstances. It is not the function of the court to second guess how many kicks were necessary, or even if the situation could have been controlled without any kicks or blows. The use of these techniques was, in my view, reasonable and proportional in all the circumstances. Further, I will not second-guess the decision of an experienced officer in the field as to whether it would have been better to order Mr. Creary to his knees before attempting to cuff him. That is a judgment call based on the dynamic factors at play at the time. P.C. Willers testified that he did not first order Mr. Creary to kneel down because he already had his hands raised and sometimes it can be difficult for a person to maintain their balance in that situation. There is no right or wrong answer on this issue. I have no reason to doubt the reasonableness of the cuffing procedure used in this case.
[37] Much was made in cross-examination about the weight of the officers involved in pinning Mr. Creary to the ground and the degree to which this must have been painful for Mr. Creary. I am sure this was a frightening experience for Mr. Creary, and it was no doubt uncomfortable for him, to say the least. I also recognize that some of Mr. Creary’s actions perceived by the officers to be struggling against arrest might not have been deliberate, but rather reflexive. However, regardless of the cause of all the struggling by Mr. Creary, the fact still remains that as long as he was cooperating, no force was used. Once Mr. Creary stopped struggling, he was not subjected to any further applications of force by the ETF officers.
[38] In my view, the use of force was both necessary and reasonable in these circumstances. Further, I find the degree of force to be minimal; merely what was reasonable to control the suspect. Accordingly, I find that the use of force by the ETF officers to effect Mr. Creary’s arrest was not excessive and did not violate his rights under the Charter.
C. GETTING MR. CREARY TO THE POLICE CAR
[39] After Mr. Creary was handcuffed, the four officers involved in his arrest turned to other duties, continuing to search the area in case there was another suspect. They turned Mr. Creary over to another ETF officer (T.C. James Parliament) and an officer with the Canine Unit for delivery to the 52 Division officers who would then take him to the police station. Mr. Creary was cuffed to the rear. Each officer held him by one arm. They brought Mr. Creary out of the laneway and onto Carleton Street, then along Carleton for a very short distance to Sackville where the police cruiser was parked. For part of that distance, video footage from the police cruiser’s in-car camera shows that Mr. Creary was walking on his own. For other parts of the way along Carleton, he was being dragged by the officers, still upright but with his feet not moving.
[40] I reject the suggestion from the defence that Mr. Creary was unconscious for any part of this process. He was clearly conscious at the beginning of the walk, and clearly conscious when he got to the cruiser. There is no evidence to support the defence contention that he was unconscious for any portion of this trip. T.C. Parliament testified that Mr. Creary simply stopped walking and they had no viable alternative but to drag him. D.C. Ferreira, who watched Mr. Creary being brought out to Sackville Street, testified that Mr. Creary was conscious and yelling and swearing throughout. I accept the evidence of these officers as being consistent with all of the surrounding evidence and uncontradicted by any other evidence.
[41] Mr. Creary was capable of walking. He chose not to. The officers’ decision to drag him the short remaining distance to the waiting cruiser was reasonable in all the circumstances and did not constitute an excessive use of force.
D. ROADSIDE SEARCH
[42] Mr. Creary alleges he was strip-searched in public on Sackville Street prior to being placed in the police car, in violation of his Charter rights. At the time of the arrest, the ETF officers did not do a pat-down search. They merely secured and handcuffed Mr. Creary and then turned him over to other officers to carry out the appropriate procedures before taking Mr. Creary to the police station. A pat-down search was carried out by 51 Division officers before Mr. Creary was placed in the police cruiser for transport, as is customary in these situations. It is this search that Mr. Creary alleges constitutes an improper strip search. He seeks a remedy of either a stay of proceedings or the exclusion of the evidence found during the search (11 rounds of ammunition found in his pants pocket).
Legal Principles
[43] The search of Mr. Creary on Sackville Street was a warrantless search and the onus is therefore on the Crown to establish that it was lawful and carried out in a reasonable manner.[^14] The law is clear that police officers are entitled to search a person who has been lawfully arrested as an incident to that arrest for the purposes of obtaining evidence of the crime for which the suspect has been arrested, or for purposes of safety where, for example, the suspect may be in possession of something that could be used as a weapon, provided that the search is conducted in a reasonable manner.[^15] No issue was taken with the lawfulness of the search in this case. The defence position is that the search was carried out in an unreasonable manner, in that it was a strip search in a public place, which was unnecessary, unreasonable, and demeaning to the accused.
[44] In R. v. Golden, the Supreme Court of Canada defined “strip search” as follows:
The appellant submits that the term “strip search” is properly defined as follows: the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments. This definition in essence reflects the definition of a strip search that has been adopted in various statutory materials and policy manuals in Canada and other jurisdictions (see for example: Toronto Police Service. Policy & Procedure Manual: Search of Persons, Arrest & Release (1999), at p. 3; Crimes Act 1914 (Austl.), Part 1AA, c. 3C, s. 1 “strip search”; Cal. Penal Code § 4030 (West 2000); Colo. Rev. Stat. Ann. § 16-3-405 (West 1982); Wash. Rev. Code Ann. § 10.79.070(1) (West 1983). In our view, this definition accurately captures the meaning of the term “strip search” and we adopt it for the purpose of these reasons. This definition distinguishes strip searches from less intrusive “frisk” or “pat down” searches, which do not involve the removal of clothing, and from more intrusive body cavity searches, which involve a physical inspection of the detainee’s genital or anal regions.[^16]
[45] Generally speaking, the more intrusive the search, the greater the burden on the Crown to justify the nature of the search as being reasonable. The onus is on the Crown to show why a strip search as an incident to arrest is required, rather than merely a pat-down or frisk search.[^17]
[46] Usually, strip searches, where warranted, will be conducted in circumstances that afford some degree of privacy to the individual being searched. Strip searches conducted in the field as an incident to a lawful arrest will not always be a violation of the Charter. However, there is a heavier burden on the Crown to justify a strip search in those circumstances. The Supreme Court held in Golden:
Strip searches should generally only be conducted at the police station except where there are exigent circumstances requiring that the detainee be searched prior to being transported to the police station. Such exigent circumstances will only be established where the police have reasonable and probable grounds to believe that it is necessary to conduct the search in the field rather than at the police station. Strip searches conducted in the field could only be justified where there is a demonstrated necessity and urgency to search for weapons or objects that could be used to threaten the safety of the accused, the arresting officers or other individuals. The police would also have to show why it would have been unsafe to wait and conduct the strip search at the police station rather than in the field. Strip searches conducted in the field represent a much greater invasion of privacy and pose a greater threat to the detainee’s bodily integrity and, for this reason, field strip searches can only be justified in exigent circumstances.[^18]
[47] The Supreme Court in Golden set out a framework for determining whether a particular strip search is justified and has been carried out in a reasonable manner:
Can the strip search be conducted at the police station and, if not, why not?
Will the strip search be conducted in a manner that ensures the health and safety of all involved?
Will the strip search be authorized by a police officer acting in a supervisory capacity?
Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?
Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?
What is the minimum of force necessary to conduct the strip search?
Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search?
Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time?
Will the strip search involve only a visual inspection of the arrestee’s genital and anal areas without any physical contact?
If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional?
Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?[^19]
Analysis
[48] The short answer to this allegation of Charter breach is that, as a question of fact, Mr. Creary was not strip-searched in public on Sackville Street. On this warm August night in downtown Toronto, Mr. Creary was wearing a black jean jacket over a black tank-top, similar in style to a basketball jersey. He was also wearing three pairs of pants: on top, a pair of blue jeans; under that, a pair of black jeans; and under that, loose-fitting black basketball shorts that reached well below his knees. The officers conducting the roadside search pulled his jacket down over his shoulders, but did not remove it. All that was exposed was the top portion of his tank-top, an article of clothing common on the streets of Toronto in August. The officers removed both pairs of jeans, but not the basketball shorts. Again, long basketball shorts are an ordinary item of outer clothing typically worn by many young men on the streets of this city in August. Mr. Creary’s private body parts were never exposed, nor was there any inspection of his underwear or genital area. This was not a strip search, as that term was defined by the Supreme Court in Golden.
[49] Further, it was reasonable for the officers involved to have removed the two pairs of jeans to properly carry out the level of roadside search that was necessary before Mr. Creary could be safely placed into the police cruiser for transport.
[50] Two 51 Division officers (P.C. Michael Cioffi and D.C. Ferreira) conducted the roadside search of Mr. Creary, assisted by the two officers who had brought Mr. Creary out to Sackville Street. The two officers conducting the search testified that they believed this to be incidental to Mr. Creary’s arrest and necessary before Mr. Creary was to be put into P.C. Cioffi’s cruiser for transport to the police station. They were concerned about officer safety in case Mr. Creary had a knife on him, and were also interested in locating and preserving any evidence Mr. Creary may have had on his person relevant to the charges. These are legitimate, lawful reasons for conducting the search.
[51] The searching officers frisked Mr. Creary. They described his demeanour as being hostile throughout, with much yelling and swearing. He was never cooperative, and continued to resist and struggle throughout the search. P.C. Cioffi testified that Mr. Creary was wearing his pants low and that he could see three separate waistbands, the two pairs of jeans and a pair of sports shorts, although he could not tell initially how long the shorts were. They could feel bulges in Mr. Creary’s pockets.
[52] P.C. Cioffi decided to remove the outer pair of pants after doing an initial pat down. In order to accomplish that, it was first necessary to remove Mr. Creary’s shoes. P.C. Cioffi testified that this decision to remove two layers of clothing was based on the totality of the surrounding circumstances. He found it odd that Mr. Creary would be wearing three pairs of pants on a warm night in August. This was a serious offence and Mr. Creary was being aggressive and violent. It was difficult to search him properly while he was struggling. Although P.C. Cioffi was confident about his ability to locate a firearm through a simple pat down, he said he would not necessarily find a knife that way. P.C. Cioffi removed two cellphones from Mr. Creary’s pants pockets. He was aware that D.C. Ferreira removed a plastic baggie containing a number of rounds of ammunition from a pocket of the second pair of pants. Obviously, those could not have been recovered without removing, or at least lowering, the outer pants.
[53] The decision to remove the outer two pairs of pants was a judgment call made by an experienced officer based on the dynamic situation he was facing. In my view, it was a reasonable decision due to the behaviour of Mr. Creary, the difficulty of reaching into pants pockets of a struggling suspect, and the difficulty of locating potential weapons and evidence through multiple layers of clothing. As I have already noted, this was not a strip search. I find the removal of the outer two pairs of pants to be reasonable in the circumstances. No Charter rights were violated by doing so. I am also satisfied on the evidence before me that the decision to remove the pants was based on legitimate concerns about the ability to do an effective search incident to arrest without removing the pants and for no other or improper purpose.
[54] D.C. Cioffi testified that the two pairs of jeans were seized after they were removed from Mr. Creary, rather than being returned to him. He gave two reasons for doing so: (1) Mr. Creary did not need them because he was fully clothed without them; and (2) the pants were evidence and were seized for forensic testing. I agree with both points. Mr. Creary remained fully clothed throughout, even without the two pairs of redundant jeans. The outside pair of pants could be relevant evidence for gunshot residue or the blood of the victim. The inside pants contained the ammunition. The presence of gunshot residue along with the ammunition would also be relevant evidence. The officers had good reason to seize the pants and there was no indignity caused to Mr. Creary by their decision to do so.
[55] Subsequently, at 51 Division, a senior administrative officer directed officers to carry out a Level 3 (strip) search on Mr. Creary. All the Golden protocols were met. Three male officers were present. This was prior to Mr. Creary being held in custody pending a bail hearing. Normally two officers would perform this function, but the supervisor requested three for officer safety, given Mr. Creary’s volatile conduct. Nothing further was found. There was nothing about this search that violated the Charter.
E. USE OF FORCE BY OFFICERS DURING SEARCH AND TRANSPORT
[56] The defence also alleges that the officers conducting the search of Mr. Creary at the roadside used excessive force both at the time of the search, when placing Mr. Creary in the police cruiser on Sackville Street, and when removing him from the cruiser in the sallyport at 51 Division. The defence contends that this excessive use of force renders the search unlawful, and constitutes a further breach of the accused’s s. 7 rights supporting the application for a stay of proceedings or, in the alternative, the exclusion of the evidence found during the search (the 11 rounds of ammunition in Mr. Creary’s pants pocket).
[57] Mr. Creary did not testify. I heard evidence from Officers Parliament, Ferreira, and Cioffi. In addition, everything inside the cruiser was audio and video recorded, and some of what happened outside the car during the search is also caught on video. Those recordings were exhibits at trial.
[58] For reasons already stated above, the self-serving hearsay statements made by Mr. Creary at the time are not admissible for the truth of their content. I have considered whether moans or groans or other expressions of apparent pain during the course of the search might be admissible as spontaneous utterances, particularly when coupled with actions by the police seen on video, such as when they pinned his head to the trunk of the car. I see such utterances as falling into a different category from statements of fact claiming, for example, that he had been beaten up by the ETF officers. I have taken those types of utterances into account in determining whether there was an excessive degree of force used by the officers conducting the search.
[59] The problem for Mr. Creary is his own lack of credibility. For example, his most frequent complaint throughout the time of the search and during transport in the cruiser to the station was that the handcuffs were too tight. He claimed that his wrists were injured. However, nothing of this nature was noted in the record of injuries at the police station or at the hospital where he was later taken for assessment. At one point during the video from inside the car, while Mr. Creary was complaining that he could not move his wrists, he can be seen on video actually moving his wrists. Later, he managed to wriggle about sufficiently to bring his handcuffed wrists down his back, under his buttocks and legs and around to his lap, resulting in the handcuffed wrists now being in front of him rather than behind. It is difficult to imagine how he could have achieved this contortionist feat if his wrists were in fact as tightly manacled as he professed.
[60] Notwithstanding Mr. Creary’s constant complaints about the cuffs being too tight, none of the officers did anything to adjust them until he was removed from the car in the sallyport with his hands by then in front of him. At that point, with the assistance of another officer, the two transporting officers removed the cuffs and once again cuffed Mr. Creary’s hands behind his back. The officers explained, and I accept, that it was important for officer safety that Mr. Creary’s hands be kept behind his back so that he could not assault anyone.
[61] According to the officers who testified at trial, officer safety was also the reason for not adjusting the cuffs at the scene. All three officers described Mr. Creary as resisting through the search and persistently struggling with the officers. They said it took four of them to control Mr. Creary while the search was being done. They also testified that to adjust the cuffs, they would first have to remove them, which they were not prepared to do given Mr. Creary’s conduct. I find this to be a reasonable position for the police officers to have taken given the surrounding circumstances.
[62] Mr. Creary was placed up against the trunk of the police cruiser, with his head held down on the car, while the search was being done. The officers were cross-examined about whether Mr. Creary’s head was in fact slammed against the trunk, rather than simply being placed there. The officers denied slamming his head on the car. There is no evidence of any injury having occurred as a result of the alleged force. On the video, a sound can be heard as Mr. Creary’s head came in contact with the car, and he was screaming out in apparent pain as this was occurring. I have no doubt this was not comfortable for Mr. Creary. However, I am not able to find that the officers deliberately slammed his head into the car in an act of gratuitous violence. There is no evidence to that effect. What is more consistent with the whole of the evidence is that Mr. Creary’s head hit the car because he was constantly squirming and protesting and resisting the officers. It was lawful for the officers to search Mr. Creary. I am satisfied on the evidence that, if Mr. Creary had been cooperative, the officers would not have handled him roughly. Any rough handling arose directly from Mr. Creary’s own conduct and, in my view, the officers were justified in using the force that they did. The only force used was passive in nature, to hold Mr. Creary in place so that the search incident to arrest could be completed; there were no punches or kicks or anything of that nature.
[63] At one point during the search, Mr. Creary can be heard on the recording complaining that he could not breathe. T.C. Parliament testified that when Mr. Creary made this complaint, he adjusted the pressure he was putting on him to get his chest off the trunk. This can be seen on the video. There were no further complaints about any difficulty breathing after that adjustment was made.
[64] At another point, Mr. Creary asked for water, which request was refused. I might have an issue with such a refusal at the police station. However, in the situation here – in the field, in the middle of a pat down search, where there is no urgency or medical need for water – is a different matter altogether. I do not fault the officers for failing to comply with that request.
[65] Mr. Creary was complaining of injuries and saying he was in pain. There was a team of paramedics at the scene. After Mr. Creary had been searched, he was taken to the paramedics to be examined. I accept the reasonableness of completing the search before taking Mr. Creary to the paramedic unit. That was important for the safety of the officers and of the paramedics who would be examining Mr. Creary. According to D.C. Cioffi, Mr. Creary demanded to be returned to the car before the paramedics completed their examination. It is difficult to tell from the video whether this was the case. However, a short time after being brought to the paramedics, Mr. Creary was returned to the cruiser.
[66] D.C. Cioffi testified that upon returning to the vehicle Mr. Creary again resisted with the result that D.C. Cioffi roughly shoved him into the backseat stating, “Get the fuck in my car.” Again, it is difficult to tell from the video exactly what was going on. It does seem as if Mr. Creary pushed backwards before the officer pushed him into the car. However, it is possible this motion was simply awkwardness caused by the fact that Mr. Creary was cuffed to the rear. On cross-examination, D.C. Cioffi sought to justify the action of shoving Mr. Creary into the car and also the language he used at the time, explaining that Mr. Creary was being aggressive and it was necessary to take that tone with him.
[67] When the officers arrived at the sallyport of 51 Division with Mr. Creary in the back seat, they asked him more than once to get out of the car. Mr. Creary did not get out. D.C. Cioffi then reached into the car and pulled Mr. Creary out by his foot. In cross-examination, D.C. Cioffi sought to justify that use of force as being no more than was necessary in the circumstances.
[68] In my view, D.C. Cioffi was somewhat rougher than was necessary in shoving Mr. Creary into his car and also in pulling him out of the car feet first in the sallyport. He also should not have used the language he did when putting Mr. Creary into the car. That said, officers are not held to a standard of perfection, particularly not when working in the field under highly stressful circumstances such as existed in this case.
[69] Not everything Mr. Creary was saying outside the car during the search can be heard clearly on the in-car recording. However, the officers who testified said he was using abusive language to them throughout, similar in nature to the things he was saying in the cruiser. It is difficult to describe the level of vitriol and filth that poured out of Mr. Creary’s mouth for the entire time he was in the police car on the way to the station. His diatribe was racist, homophobic, misogynist, demeaning to persons with disabilities, and just plain filthy. He directed this filth not just against the two officers in the car, but also against their wives and mothers. I was disgusted listening to it. The officers said nothing, except for one officer in the car telling Mr. Creary early on, and in a very calm voice, that it would “probably be best if [he] stayed quiet.”
[70] There is an old adage, attributed in the case law to various sources, to the effect that “a trial is not a tea party.” This adage is frequently used to explain or excuse inappropriate language or conduct of lawyers during the heat of a trial. Multiply that by one hundred for police officers in the field. These officers were sorely tested by Mr. Creary’s behaviour. That they were able to control their own tempers in that situation is commendable. If a swear word slipped out on occasion, that is scarcely surprising. Perhaps a touch too much force was used putting Mr. Creary into the car and taking him out of it. However, this was minor and caused no injury to Mr. Creary. There is nothing in such conduct to undermine the lawfulness of the search, nor to support suppressing any evidence that flowed from it.
F. REASONS FOR ARREST AND RIGHTS TO COUNSEL
Factual Context
[71] Context is important. On the night in question, a person had been shot in the neck on a downtown Toronto residential street. A police officer had pursued a running man and found him hiding behind a car in a residential driveway. That man first pointed a firearm at the police officer, then fled by vaulting a fence into a private backyard, and then vaulting another backyard fence. Senior police officers on scene decided to seal the perimeter of an area within which they believed the suspect was contained. They then called in the Emergency Task Force and Canine Unit. The police officers in those two units, working together, combed the area for the suspect. Many other officers remained at the edges of the perimeter waiting for these specialized teams to carry out their duties.
[72] By 12:45 a.m., the ETF officers had found Mr. Creary in his hiding spot in a nearby carport and, after a brief struggle, cuffed his hands behind his back. Two officers escorted Mr. Creary out of the dark alley where he had been found, emerging onto Carleton Street at 12:48:06 a.m., and turned him over to 51 Division officers for processing at approximately 12:49 a.m. The ETF officers did not search Mr. Creary, did not advise him of the reason for his detention and arrest, and did not advise him of his rights to counsel. Immediately upon turning him over to other 51 Division officers, the ETF officers resumed their search inside the perimeter, looking for a possible second suspect.
[73] The time from when Mr. Creary was spotted in the carport by ETF officers to when he was received by the 51 Division officers is approximately four minutes. At least two of those minutes must have been taken up by Mr. Creary coming out of the carport, followed by the struggle required to get handcuffs on him. The two-minute delay from when ETF arrested Mr. Creary to when they turned him over to 51 Division officers is relied upon by the defence as a breach of Mr. Creary’s rights under ss. 10(a) and (b) of the Charter.
[74] When 51 Division officers took control of Mr. Creary at 12:49:15 a.m., the first thing they did was conduct a search incident to his arrest, for the purpose of determining if he had a weapon that could be dangerous to officers or to himself, and for the purpose of preserving evidence. For the reasons stated above, this was a reasonable step to have taken for the purposes cited by the police.
[75] The search was completed at 12:53:09 a.m. Throughout the search, Mr. Creary had been complaining about various physical problems, stating that he had been beaten up by the ETF, that he was bleeding, that he was unable to breathe, and that he was unable to see. He said he needed to go to the hospital. D.C. Cioffi determined that he should be seen immediately by the paramedics who were on site. He placed Mr. Creary in his cruiser and reversed to where the ambulance and paramedics were located a short distance away on Sackville Street, where Mr. Creary was examined. At 1:00 a.m., Mr. Creary was returned to the police cruiser, and D.C. Cioffi advised him formally of his rights. He told Mr. Creary he was under arrest for attempted murder and discharging a firearm, and advised him of his right to counsel, as well as cautioning him as to his right to remain silent, reading these rights to Mr. Creary from the back of his police-issued memo book.
[76] D.C. Cioffi testified that it was not clear to him that Mr. Creary heard any of the rights he read to him. That is a reasonable assessment. Mr. Creary shouted profanities the entire time that D.C. Cioffi was speaking.
[77] D.C. Cioffi testified that at the time of the search, which was prior to reading the formal rights from his memo book, he informally told Mr. Creary what he was being charged with and may also have given him his rights to counsel. He made no note of that and could not remember precisely what he said. None of it was picked up by the in-car recording system, and no other officer heard any of it. I am treating that as if it did not happen. If Mr. Creary was advised of his rights prior to when he was seated in the cruiser after his examination by the paramedics, it was in a truncated version and was very likely not understood by him. That is not to say that I do not believe D.C. Cioffi on this point. However, the situation was so chaotic that, even if it was said, Mr. Creary is unlikely to have heard or absorbed it.
[78] I agree with D.C. Cioffi that Mr. Creary likely did not hear what was being said to him when he was being formally advised of his rights at the door of the police car. However, it was clear from the context what was happening, and if Mr. Creary chose to shout obscenities at the officer rather than pay attention to his Charter rights, the failure to hear those rights is his own fault. They were clearly and calmly told to him.
[79] During the course of the search, various officers asked Mr. Creary questions. This would have been prior to his having been cautioned and advised of his rights to counsel. Some of the questions related to the search, e.g., whether there was anything dangerous in his pockets or whether he had a weapon on him. Also, officers asked him if he acted alone or if there was somebody with him. He was told it was important to tell the officers this for officer safety. Mr. Creary did not respond to any of these questions.
[80] Upon reaching the police station, Mr. Creary was again formally advised of his rights and the charges against him in the booking hall at 1:18 a.m. Again, he paid no attention, yelled obscenities at the officers throughout, and was not responsive to questions asked as to his understanding, his typical and repeated answer to such questions being, “Suck cock.” Further, when given an opportunity to speak to duty counsel, he refused to do so, as was documented at 3:23 a.m. in the Counsel Call Log (Exhibit 26 at trial).
Legal Principles
[81] Section 10(a) of the Charter provides that everyone has the right on arrest or detention “to be informed promptly of the reasons therefor.” Section 10(b) provides that everyone on arrest or detention has “the right to retain and instruct counsel without delay and to be informed of that right.”
[82] The time qualifiers in ss. 10(a) and 10(b) are essentially synonymous. Immediately upon arrest a person is entitled to know why they have been arrested and advised of their right to counsel. However, the exigencies of each situation will justify some delay in advising a person under arrest of these rights. Such priorities may include concerns about officer safety, public safety, and the preservation of evidence, or other reasonable limits prescribed by law and justified under s. 1 of the Charter.[^20]
[83] The right to counsel under s. 10(b) has both an informational component and an implementational component. Officers are required to hold off any interrogation of a person under detention until these rights have been provided or waived.[^21]
Analysis
[84] The suspect in this case was believed to have shot a man in the neck and to have pointed a firearm at a police officer. He was hiding on private property in a residential neighbourhood, having already fled from the first police officer who confronted him. This was a dangerous situation and the decision to call in the Emergency Task Force was reasonable and prudent in all the circumstances. The role of the ETF was to locate and apprehend the suspect, while protecting the safety of the public and other police officers.
[85] The laneway in which the ETF found Mr. Creary was poorly lit. He resisted arrest and force was required to secure him. There was no duty upon police officers to advise Mr. Creary of his rights before he was arrested. Those rights arose upon his arrest. It was reasonable and lawful for the ETF officers to secure Mr. Creary before they had any duty to advise him of his Charter rights. The question is whether, upon doing so, they were then obliged to tell him why he was under arrest and advise him of his right to counsel.
[86] The ETF officers directed that Mr. Creary be brought back to the perimeter and turned over to 51 Division officers for processing. They did not search him as an incident to arrest, nor did they tell him why he had been arrested, nor did they advise him of his rights. The 51 Division officers who took custody of Mr. Creary were advised of this. The delay in moving Mr. Creary from the point where he was arrested to turning him over to 51 Division officers was a matter of only a few minutes and was, in my view, inconsequential.
[87] The role of the ETF did not end with Mr. Creary’s arrest. The officers who arrested Mr. Creary had duties elsewhere. There was a concern that there might still be another suspect at large. The area inside the sealed-off perimeter had not yet been fully searched. It was reasonable to delay searching Mr. Creary until he was away from this poorly lit alleyway surrounded by residential homes. Further, the ETF officers were not as familiar with the surrounding circumstances as the 51 Division officers and not in as good a position to advise Mr. Creary as to the charges he was facing. It also would be better for the officers actually handling the case to be the ones to seize any evidence found on Mr. Creary.
[88] In all of the surrounding circumstances in this case, I find no breach of Mr. Creary’s s. 10 rights by the ETF officers who effected his arrest. Much was made at trial of the testimony of several ETF officers that providing this kind of information to an accused is not part of their role and they simply do not do it. I do not agree that this means they consider themselves above the law or not bound by the Charter. I recognize that there might be situations in which it will be incumbent on ETF officers to advise a suspect of his rights. However, the role played by the ETF in this case is similar to the role they typically play. They are involved at the outset in dangerous circumstances, where there may be weapons and where the safety of the public and other police officers is at risk. They come in and render the circumstances safe, at which point their role is done. If they apprehend anybody, they immediately turn them over to other officers who are there for that very purpose. In my view, it would be rare in this sort of situation for s. 10 rights to come into play. It is not reasonable to expect ETF officers to bear this responsibility while still engaged in ensuring safety. If they immediately then hand-off to another officer charged with the responsibility of providing Charter rights, any time delay is likely a matter of scant minutes, if not seconds.
[89] Accordingly, I find no breach of Mr. Creary’s s. 10 rights up to the point when he was turned over to the 51 Division officers. Those officers testified that they considered officer safety and public safety to be their first priority. Their second priority was to get medical attention for Mr. Creary who was complaining vociferously about various ailments. Only once those two priorities were met did they formally advise Mr. Creary that he was under arrest for attempt murder and advise him of his right to counsel.
[90] I take no issue with those priorities. Officer safety and the safety of the public made it reasonable to conduct a field search of Mr. Creary to ensure he had no weapons that could injure officers or himself. It was also reasonable to conduct that search for purposes of preserving evidence. The search would have been very brief if Mr. Creary had been at all cooperative. However, even with Mr. Creary behaving the way he did, the delay caused by the search was only a matter of a few minutes.
[91] Mr. Creary was insisting on medical treatment. He wanted to go to the hospital. D.C. Cioffi made the very reasonable decision to have Mr. Creary examined first by paramedics who were nearby. Even if the pat down search had not been mandated by a concern for officer safety, it was certainly necessary before Mr. Creary could be turned over to unarmed paramedics for a medical assessment. The time to get to the paramedics was mere seconds. Their examination took only a few minutes.
[92] Once the paramedics were finished with Mr. Creary, he was immediately advised of the charges upon which he was being held and of his rights to counsel. In my opinion, this was in full compliance with the Charter.
[93] There is, however, one aspect of the officers’ conduct during the search which I do find to be a breach of his rights to counsel. Before Mr. Creary had been advised of those rights, and before he had any opportunity invoke his right to speak to a lawyer, officers asked him questions. Some of those questions were innocuous. Others were problematic. In particular, questions of Mr. Creary about whether others were involved with him or if he had acted alone could have elicited incriminatory statements, and should not have been asked. In this case, no direct harm was done as Mr. Creary provided no answers to the officers. However, this was nevertheless a breach of s. 10(b) of the Charter.
G. LOST EVIDENCE
[94] D.C. Ferreira testified that he found a plastic baggie containing 11 rounds of Luger 9 mm ammunition in Mr. Creary’s pants pocket. D.C. Ferreira placed the ammunition, still in the plastic bag, into a police property bag and put it in his own pocket. Later, at the police station, he removed the bullets and counted them. He said he placed the bullets, still in their bag, on a table in an interview room at the police station, along with the other property seized from Mr. Creary. Nothing else was in the room.
[95] D.C. Cioffi testified that, at the time of the search on Sackville Street, D.C. Ferreira showed him the ammunition he seized from Mr. Creary’s pants. D.C. Cioffi said that the ammunition was in a clear plastic baggie when he saw it.
[96] Det. Angela Roberts arrived at 51 Division at 1:47 a.m. She was with the Forensic Investigations Unit and was assigned to do gun shot residue testing on Mr. Creary’s hands and collect any property seized as exhibits. Det. Roberts testified that she laid out the items seized on kraft paper and took photographs of them. If those items were in bags, she removed the bags before taking the photographs. She did not photograph police evidence bags. She could not recall what type of bag the 11 rounds of ammunition were in. However, she said that if they had been in a plastic baggie, she would have photographed the baggie and also seized it. The photographs taken of the ammunition by Det. Roberts do not include a baggie and she did not seize a baggie.
[97] I accept the evidence of Officers Ferreira and Cioffi that the 11 bullets were originally in a small plastic baggie. That plastic bag has been lost. There is nothing to suggest that this was done deliberately, nor would there be any reason to do so. Where and how it got misplaced will never be known. I will deal with what, if anything, flows from that in the section below on remedies.
H. REMEDY
Nature of the Breaches
[98] Police officers were a little bit rougher than they needed to be with Mr. Creary when placing him in and removing him from the police cruiser. He sustained no injuries. They also used some slightly immoderate language on at least two occasions.
[99] Officers asked Mr. Creary some questions before he had been given his rights to counsel, which is a breach of s. 10(b). They did so for the purposes of officer safety and did not intend them to be investigatory in nature. However, they did have an investigatory aspect and could have resulted in Mr. Creary incriminating himself. Mr. Creary did not answer those questions and did not make any inculpatory statements at all that night.
[100] A small plastic baggie that originally held the 11 bullets seized from Mr. Creary’s pocket was misplaced.
No Remedy is Appropriate
[101] In the original application before me, the defence sought a stay of proceedings as the appropriate remedy for the numerous Charter breaches alleged. A stay of proceedings is an exceptional remedy granted only in the “clearest of cases” and where no other remedy would suffice.[^22] The defence submission in that regard was based on alleged facts I have found are not established by the evidence. In particular, I have found no mistreatment of Mr. Creary or excessive force by the ETF officers who arrested him and that the roadside search incident to arrest was not a strip search and was both reasonable and lawful. There is no misconduct or negligence by the police that even approaches the level required to warrant a stay of proceedings.
[102] I have considered whether it would be appropriate to exclude evidence as a remedy for any of the minor breaches that occurred. The possible evidence to be excluded would be the firearm Mr. Creary abandoned under the car parked in the driveway on Carleton Street and/or the bullets found in Mr. Creary’s pocket.
[103] In my view, any breaches that occurred were so minor in nature that no remedy should be granted.
[104] I am fully satisfied that the 11 bullets in Mr. Creary’s second layer pants pocket were in a small plastic baggie when they were originally located by D.C. Ferreira. Absolutely nothing turns on that fact. No forensic testing of the baggie could possibly change Mr. Creary’s circumstances. It was a bulky package in a pocket of pants underneath another pair of jeans. He had to have been aware of it. Nobody could have placed it there without his knowledge. Even if there were somebody else’s fingerprints all over the bag, Mr. Creary would still be in possession of the bullets, which, to his knowledge, he kept in the pocket of an inside pair of pants. Therefore, the fact that the baggie can no longer be located is irrelevant to any real issue in the case and causes no prejudice or unfairness to Mr. Creary.
[105] Applying the criteria established by the Supreme Court of Canada in R. v. Grant,[^23] I find no basis for excluding evidence based on any of the conduct of the police in this case.
[106] At the first stage, I must consider the seriousness of the Charter-infringing conduct. The officers swore a couple of times and pushed and pulled Mr. Creary in an out of the car with slightly more force than was strictly necessary. This conduct was minor in the extreme, particularly in light of Mr. Creary’s own appalling conduct at the same point in time. The officers asked questions of Mr. Creary that should not have been asked as he had not been advised of his rights to counsel, nor had he waived the right to speak to a lawyer. However, the officers did not consider the questions to be investigatory in nature, but only related to officer safety. Any minor breach of Mr. Creary’s rights was unintentional, a factor which reduces the seriousness of the conduct.[^24]
[107] Second, I have taken into account the impact of this conduct on Mr. Creary. It was, at best, negligible. Mr. Creary was pushed and shoved getting into and out of the car because he did not comply with proper commands. He was not injured. The language used by the officers, while not polite, was so minor as to be inconsequential. Certainly, it pales in comparison to the filth pouring out of Mr. Creary’s mouth. It is unclear if Mr. Creary even heard it at the time. Further, it is unclear if he heard any of the questions put to him at the roadside. Even if he did, he provided no responsive information so there was no impact on his Charter rights.
[108] Finally, this was hard, physical evidence, not evidence conscripted from Mr. Creary. He had abandoned the firearm under the car. Its discovery was inevitable. Likewise, the bullets in his pocket were seized lawfully without any breach of his Charter rights, and would certainly have been found at the police station eventually, even if not seized at the search incident to his arrest. In these circumstances, excluding evidence would clearly not be required in order to preserve public confidence in the justice system. On the contrary, in my view, any fully-informed member of the public would be outraged at the exclusion of evidence such as this in these circumstances.
Alternative: Remedy if Delay Resulted in Breach of ss. 10(a) and 10(b)
[109] If I had found extreme police misconduct approaching the seriousness alleged by Mr. Creary, my decision on remedy might well have been different. However, I have considered whether my decision would have been different if I have erred as to the issue of delay in respect of ss. 10(a) and 10(b) of the Charter. I found that the searching officers complied with the Charter even though they searched Mr. Creary and took him for a medical assessment prior to providing him with his rights. However, even if I had found that Mr. Creary was entitled to those rights before the search and before medical treatment, I would have reached the same conclusion applying the Grant test.
[110] First, the officers acted in good faith. Given Mr. Creary’s conduct and the nature of the charges, it was reasonable to believe he could be in possession of a weapon and/or evidence crucial to the case. They believed it to be important to conduct a search right away. With respect to the medical treatment, this was at Mr. Creary’s own request. Thus, the seriousness of the Charter-infringing conduct was at the low end of the scale.
[111] Second, there was no impact on Mr. Creary. Even if his rights were delayed, this was only by a matter of a few minutes. Further, Mr. Creary paid no attention whatsoever to what was being said to him both at the scene, and again at booking at the police station. He talked over the officers explaining his rights to him, calling them disgusting names and swearing incessantly. He was completely unresponsive to all proper questions they asked him. Later, when given the opportunity to speak to duty counsel, he refused to talk to her.
[112] He made no statements to the police and the discovery of all the evidence on him was inevitable, regardless of any delay in advising him of his rights.
[113] In my view, society’s interest in an adjudication on the merits of this case greatly outweighs concerns about the impact on the justice system if the evidence were to be included due to these Charter breaches.
[114] Ultimately, the issue to be determined under s. 24(2) is “whether, on balance, the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute.”[^25] For the reasons stated above, I consider the reverse to be true – the administration of justice would be brought into disrepute by the exclusion of evidence in this case, rather than by including it. Accordingly, even if I had found that the officers breached Mr. Creary’s rights under s. 10, I would not have excluded any of the evidence.
I. CONCLUSION
[115] In the result, the Charter applications are dismissed in their entirety.
Molloy J.
Released: August 25, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KEERON CREARY
Defendant
REASONS FOR DECISION
Molloy J.
Released: August 25, 2021
[^1]: See R. v. Creary #3, 2021 ONSC 4937. [^2]: See R. v. Creary #1, 2021 ONSC 4935. [^3]: See R. v. Creary #3, 2021 ONSC 4937. [^4]: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 52, quoting R. v. Whitfield, 1969 CanLII 4 (SCC), [1970] S.C.R. 46, at p. 46. [^5]: Asante-Mensah, at para. 56. [^6]: Asante-Mensah, at para. 51, citing Dedman v. The Queen, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, at p. 35 (internal quotations omitted); R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, at para. 22. [^7]: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 32. [^8]: Nasogaluak, at para. 35. [^9]: R. v. Magiskan (2003), 2003 CanLII 859 (ON SC), 19 C.R. (6th) 330 (S.C.), at para. 27. [^10]: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at para. 22. [^11]: R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, at para. 26, leave to appeal to SCC refused, 33984 (31 March 2011). [^12]: Edgar at para. 28, citing R. v. Campbell (1977), 1977 CanLII 1191 (ON CA), 17 O.R. (2d) 673 (C.A.), at p. 685. [^13]: R. v. Simpson, 1988 CanLII 89 (SCC), [1988] 1 S.C.R. 3, at p. 22; Edgar, at para. 31. [^14]: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 36. [^15]: Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, at pp. 180-81. [^16]: R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 47. [^17]: Golden, at para. 88. [^18]: Golden, at para. 102. [^19]: Golden, at para. 101. [^20]: R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at para. 123; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 2, 42; R. v. Griffith, 2021 ONCA 302, at paras. 36-38. [^21]: R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 71; R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, at pp. 269-79; R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1242-44. [^22]: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at paras. 68, 82; R. v. BabosPiccirilli, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31. [^23]: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 85. [^24]: R. v. Omar, 2019 SCC 32, [2019] 2 S.C.R. 576, dismissing appeal and adopting the reasons of Brown J.A. in dissent in R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1. [^25]: Grant, at para. 85.