COURT FILE NO.: 17-081101-01/02

DATE: 20210205

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RUSHAWN ANDERSON

Applicant

L. McCallum, for the Crown

C. Rippel, for the Applicant

HEARD: December 1, 2, and 15, 2020

REASONS FOR DECISION

McCARTHY J.:

I. The Application

[1] The Applicant seeks a reduction of the sentence handed down by this Court on October 25, 2019. The Applicant received a sentence of 16 years after he was found guilty of attempted murder and other offences.

[2] He seeks the sentence reduction as a remedy under both s. 24(1) of the Canadian Charter of Rights and Freedoms and the general jurisdiction of the court to consider all relevant matters in sentencing.

[3] The evidence presented during the two-day hearing included viva voce evidence of the Applicant as well as several correctional officers. In these reasons, corrections officers or correctional officers will be referred to simply as “officers”.

[4] The Court was also furnished with several Occurrence and Use of Force Reports, an Accident/Injury report, and other relevant documents. Finally, certain video footage from the facility’s closed-circuit cameras was available for review. The Court was particularly careful not to place inappropriate weight on the Use of Force Reports prepared by persons not called as witnesses. I have considered those reports for the limited purpose of reviewing the steps taken by the facility in the aftermath of the incident.

II. The Incident

[5] The incident giving rise to the application occurred on September 10, 2019 while the Applicant was in pre-sentence custody at the Toronto South Detention Centre (“the facility”).

[6] On the morning in question, concerns over inmate misconduct and officer safety (unrelated to the applicant) prompted the invocation of a Code Blue in the day room of the facility’s Unit BD3. This occurred at approximately 10 a.m. and resulted in a multitude of officers attending that unit’s day room. The officers ordered all inmates to return to their respective cells. At the time the Code Blue was invoked, the Applicant was showering in an area adjacent to the day room.

[7] Throughout much of the Code Blue, the Applicant remained in the shower area despite officers allegedly directing him to leave the shower and return to his cell. According to the evidence of officers, the Applicant was non-compliant, argumentative, and aggressive towards them. As the Applicant was being escorted from the shower area by Officer Du Preez and another officer, an altercation ensued during which those two officers, joined by several more, used physical force to first restrain and then subdue the Applicant. While in a prone position, the Applicant was then carried off to a segregation cell where he was searched and left naked until he was furnished with new clothing sometime later.

[8] The Applicant was found guilty of misconduct within the facility and assessed a penalty of seven days in “close confinement”. The facility’s Accident/Injury Report states that the injuries sustained by the Applicant were limited to a small laceration in his lower lip, a small scratch on his elbow and some complaint of ankle pain. The Applicant was given some pain medication, but no further treatment was recommended or administered. The Applicant refused to provide any kind of written statement and declined to pursue criminal charges against the officers involved.

The Applicant’s Position

[9] The Applicant argues that he suffered infringements of his rights under ss. 7, 8 and 9 of the Charter. Even in the absence of a Charter infringement, the officers clearly employed excessive force against the Applicant; in addition, the combination of the unlawful strip search and the Applicant being left naked in a segregation cell for half an hour constituted unwarranted punitive treatment. The conduct of the officers and the treatment accorded to the Applicant were unacceptable and warrant a reduction of 18 months from the sentence.

The Crown’s Position

[10] The Crown argues that the officers acted lawfully and reasonably when dealing with the Applicant. The Applicant willfully disobeyed the repeated orders of multiple officers to exit the shower area and return to his cell. The Applicant well understood that a Code Blue was in effect; he also understood the implications of a Code Blue for inmates. There was no excessive force used. There were no Charter violations and there is no basis for a sentence reduction. In any event, a finding of a Charter violation would not warrant any kind of reduction as it would be contrary to the proper administration of justice and the governing principles of sentencing set out in the Criminal Code.

III. Charter Provisions and Governing Principles

[11] Sections 7, 8 and 9 of the Charter provide as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. Everyone has the right to be secure against unreasonable search and seizure.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

[12] The remedial section of the Charter applicable to this application is s. 24(1). It reads as follows:

24. (1) Anyone whose rights or liberties, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[13] In the alternative, it is not disputed that the court maintains the discretion to consider all relevant circumstances when arriving at a just and fit sentence.

[14] The court should always have regard to the fundamental principle of sentencing set out in s. 718.1 of the Criminal Code. It reads:

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

IV. The Evidence

The Applicant

[15] According to the Applicant’s testimony, on the morning in question, he was showering in his boxers when the Code Blue alert was activated. An officer directed him to leave the area. The Applicant did not refuse to comply; rather, he simply asked to retrieve his clothing and towel. The officer said no and began pushing him towards the cells. The Applicant denies swearing or issuing any threats. He simply exclaimed “You don’t have to push me”. One of the officers attempted to trip him; then approximately 12 officers jumped on him. He was punched and kicked in the back and the head before being pinned to the floor. The Applicant could not breathe and the officers were hurting him; that is why he continued to struggle. The Applicant was finally picked up and escorted to the segregation cell by about 12 officers. While being carried off, the Applicant exclaimed that he was being compliant, but force was still being applied to his wrists.

[16] In the segregation cell, his wet boxers were removed. While the Applicant was naked the officers searched his mouth and the bottoms of his feet. The Applicant was left in the cell with only wet boxers and was not provided clothing until sometime within the next hour.

[17] Under cross-examination, the Applicant admitted that he understood at the time that both the search and change of clothing in segregation were in line with facility policy and were both entirely normal and justified for safety reasons. The Applicant also conceded that neither the search nor the period during which he was left without clothing caused him any emotional or mental distress. The Applicant understood that a Code Blue signaled danger for both officers and inmates and that inmates needed to follow instructions

[18] I found the Applicant to be lacking in credibility. I found most of his evidence highly unreliable. I would assign it little weight. At first, he stated that only one officer told him to finish showering; then hesitantly, he stated that he could not recall. However, when shown the video footage, which clearly shows multiple officers addressing him over a period of several minutes, he conceded that it might have been two to three officers. Although he understood what a Code Blue was and that inmate compliance was essential, the Applicant denied having an understanding at the time that non-compliance during a Code Blue was a disciplinary matter and that officers could and would employ physical force to a non-compliant inmate. This was simply not credible. The Applicant further suggested that officer force could be employed only after a certain number of warnings. I found this statement lacking credibility also. He stated that officers would “usually” tell the inmates to go to their cells three times before employing force. Not only does this make no sense, it is completely unsupported by the balance of the evidence which establishes that inmates were expected to comply with officer directions and requests immediately during a Code Blue. Moreover, there was not a shred of evidence with respect to a three-warning policy in the facility; nor was there any corroborating evidence that this was the general understanding amongst inmates or staff.

[19] In any event, the balance of the evidence suggests that the Applicant was directed multiple times by more than one officer to leave the shower area and return to his cell.

[20] I do not accept the Applicant’s weak suggestions to the effect that: the shower water was cold and needed some time to warm up; he may not have heard the first officer request him to leave the shower; he was merely drying off when the officers escorted him out of the shower; he asked for his items of clothing because he was concerned that he would never get them back. I find that he simply made these assertions up to portray himself as compliant in all circumstances and therefore an innocent victim in what followed.

[21] The Applicant even had the temerity at one point to suggest that while in the shower he was “not sure” if he knew that the officers were attempting to gain control of the situation and that he could not recall what any officer said to him at 10:03:45. This in spite of the fact that he admits a Code Blue was in effect and understood what that entailed.

[22] Tellingly, the video footage captures the Applicant poking his head out from behind the shower curtain several times during the Code Blue; on one occasion he looks up to the second floor cell; on another occasion he is seen reaching for his soap; all of this while a Code Blue was in effect and while officers can be seen ordering all inmates to return to their cells. It is abundantly clear that the officer who addresses the Applicant at 10:03:58 is directing him to finish up and get back to his cell. Seconds after this instruction was clearly given to him, the Applicant is again seen peeking out from behind the shower curtain.

[23] The Applicant’s evidence then descended into the realm of ludicrous: he had finished showering but remained in the area because the water was still on. He stood off to the side trying not to get wet and was waiting for both the water to be turned off and for a towel to put around his waist. Yet, he can be seen reaching out from behind the curtain to grab body wash or shampoo at 10:04:57. At first, he denied doing this entirely. When faced with the video footage which shows that he did, the Applicant offered three competing and equally porous explanations for this movement: he could not recall; he passed the item to the inmate next to him; he needed to wash off his slippers.

[24] The Applicant rather too conveniently could not recall what the officers in the shower area were saying to him between 10:07:38 and 10:16:16, or even if they were addressing him at all; this despite the fact that more than one officer can clearly be seen addressing and gesturing towards the persons inside the shower. Finally, multiple officers are seen congregating at the shower area between 10:07:41 and 10:07:43. From this point on the Applicant was able to remember the officers talking to him, touching him, and telling him it was “time to go”. Almost in the next breath, however, the Applicant reverted to his default answer that he could not recall anything that was said to him around this time. He even added, with a guileful expression, that he could not remember what happened that long ago.

[25] The Applicant asserts that one officer told him he could have his clothing while another officer continued pushing him; yet, he could not identify such a push in the video footage until 10:07:49. Indeed the Applicant was at least candid in admitting that there was nothing inappropriate in the way he was being handled until that time.

[26] It is abundantly clear that the Applicant’s injuries were minor, required little treatment and no follow-up. I do not accept that he asked to see a doctor for his elbow or that his elbow still hurts when it is cold. There is simply no corroborating evidence on that point and my findings in respect of his credibility do not incline me to give his bald assertions any weight. Nor do I accept that he sought to appeal the finding of guilt on the misconduct disposition or that he asked to speak to a superintendent about the incident. Again, there is nothing to support that assertion; nothing in the evidence even raises that as a remote possibility. The Applicant’s assertion that he did not sign a statement because he was waiting to make a verbal statement cannot be accepted. It makes no sense.

[27] Overall, I simply attach little to no weight to the Applicant’s evidence. Worse than being scripted, I find much of it to have been fabricated.

Officer Pinnock

[28] I found this witness to be credible and her evidence consistent with the documents she prepared. I accept her evidence. Officer Pinnock witnessed the Applicant being asked for “quite a while” to exit the shower. She noted that other officers were forced to signal for the shower water to be shut off because the Applicant was not complying with the verbal direction to exit that area. This accords perfectly with the evidence from the video footage. Officer Pinnock also confirmed that the Applicant refused to provide a statement on the Accident/Injury Report.

[29] I also accept that, had the Applicant made inquiries of Officer Pinnock about an appeal from the misconduct finding or his other rights relating to the incident (including any criminal charges against an officer), she would have conveyed that to her supervisor for follow-up. She could not recall any verbal or written notice or request from the Applicant in that regard. I find that there was no such thing.

Sergeant Onabajo

[30] Sergeant Onabajo was the floor sergeant in the unit when the Code Blue was called. All inmates were instructed to return to their cells. He recalls that it took seven to eight minutes before the Applicant was taken out of the shower. While being held in a C-clamp and escorted back to his cell, the Applicant turned around to grab something and attempted to shrug off an officer. A verbal and physical altercation ensued in which the Applicant was taken to the ground. The Applicant was left struggling on the floor. When he appeared to have been subdued, Sergeant Onabajo directed the officers to lift him up. Officer Du Preez reported to Sergeant Onabajo that the Applicant had struck him. In Sergeant Onabajo’s view, the Applicant’s conduct constituted non-compliance. The unit was not yet secured and under control at the time of the incident. The officers’ response to the non-compliance was therefore appropriate. I accept the evidence of Sergeant Onabajo. I found him to be straight forward and credible. His evidence is generally consistent with the video footage.

Officer Du Preez

[31] I found this witness to be generally credible. I found his evidence to be reliable. While not without problems, it generally accorded with his Use of Force Report as well as the video footage. By the time Officer Du Preez approached the shower area, he had already heard the day room supervisor instructing the officers to get the inmates, including those in the showers, back into their cells and locked up. When Officer Du Preez drew back the shower curtain and ordered the Applicant out, the latter replied, “don’t touch me”. As Officer Du Preez placed the Applicant into a C-clamp and began to escort him out of the shower, he was met with insults and threats. When they reached the program area, the Applicant began to resist and pull away. Fearing for his safety, Officer Du Preez attempted to trip the Applicant but slipped. The applicant appeared ready to strike him. Other officers entered the confrontation and assisted in taking the Applicant to the ground. It was at this time that the Applicant punched Officer Du Preez in the eye and lip. While on the ground the Applicant was continuing to resist; this prompted Officer Du Preez to deliver three distraction strikes with his knee. Officer Du Preez maintains that he cannot recall what happened next but was cognizant of the fact that he did not help escort the Applicant to segregation. Officer Du Preez sustained a concussion and some musculo-skeletal injuries.

[32] Officer Du Preez’s evidence was somewhat flawed: the evidence does not support that 10-15 inmates were still out of their cells when he arrived at the shower. I doubt that his memory of events is as vague as he would suggest given that he was able to write up a Use of Force report one hour after the incident. The video footage does not capture any of the blows he suffered. His assertion that the Applicant told him to “fuck off” is not recorded in his Use of Force Report. Nonetheless, there is no evidence that the Code Blue had been lifted when he proceeded to deal with the non-compliant inmates in the shower; there is no evidence to contradict that he suffered a concussion; the video footage is inconclusive on a number of points including whether he was the victim of a blow to the head from the Applicant; Sergeant Onabajo does corroborate the assertion that the Applicant struck Officer Du Preez and that Officer Du Preez sustained injuries. The officer’s report also mentions verbal abuse directed towards him by the Applicant. Overall, the witness impressed me as credible and I would place considerable weight on his testimony.

The Video Footage

[33] The video footage from the day room is inconclusive on several points. Without audio it is difficult to confirm how many times the officers asked the Applicant to leave the shower area. It is also not possible to learn the content of the exchanges between the officers and the Applicant. Finally, it is inconclusive on what caused the Applicant to slip and whether the Applicant delivered a blow to the head of Officer Du Preez.

[34] The video footage is compelling, however, and captures with sufficient clarity the time frames within which the incident took place and the actions and movements of the involved parties at crucial points.

Other Evidence

[35] As stated earlier, I have given limited weight to the Use of Force and Misconduct Reports where the author of those respective reports was not called to give evidence. However, those reports do satisfy me that an appropriate investigation was ordered and conducted. As well, by his signature on the misconduct notice, I find that the Applicant was advised of the misconduct decision and declined to give a statement or appeal. Finally, the Applicant was advised of his rights to pursue criminal charges but declined to do so.

V. Findings

[36] Having considered all the evidence, I have made the following findings:

1. The officers made repeated attempts over many minutes to persuade the Applicant to leave the shower area during the Code Blue. While it is difficult to pinpoint the start time of the Code Blue and exactly when and how many times those officer requests were made, it is apparent that the officers were urging the Applicant by both words and gestures to leave the shower area and return to his cell. They finally had to resort to signaling in the direction of some off-camera person for the water to be turned off. During this time, the Applicant must have understood the Code Blue was in effect and that officers were ordering inmates to their cells.

2. The Applicant was afforded ample opportunity to comply with the demand to leave the shower area and return to his cell without being forced. The officers exhibited patience and restraint in doing so. Nonetheless, the body language of the officers, including hand waving and gesticulating, together with the growing number of officers making their way to the shower area suggests not only that verbal commands were being ignored but that the Applicant’s non-compliance was of growing concern.

3. The Applicant chose to delay exiting the shower and to continue soaping up when he clearly was aware of the demands being made of him, the exigencies of the Code Blue, and the unfolding of events outside the shower room. In the face of that, he exhibited ongoing and repeated non-compliance with verbal direction.

4. The initial force applied by Officer Du Preez was quite mild; the video footage clearly shows the officer gently, but firmly, guiding the Applicant out of the shower using the C-clamp technique. There is no evidence of manhandling, clenching, or twisting any part of the Applicant’s person. There is no evidence that the Applicant was being pushed or handled inappropriately.

5. While being escorted past the small stand outside the shower area, upon which appeared to be towels and items of clothing, the Applicant motioned towards it as if to retrieve something. Whatever was said or expressed certainly escalated events. A split second later, with Officer Du Preez still escorting him, the Applicant made a motion as if to resist, or to disengage from, the officer’s grasp. It was this physical non-compliance which quickly led to the tumult that followed.

6. It is difficult to determine exactly what happened in the brief skirmish that followed. The Applicant and Officer Du Preez became lost from view behind a wall of intervening officers. If punches were thrown, they are not discernable. Without audio, it is impossible to determine who said what to whom and when. Regardless, the Applicant was soon on the floor. It required the involvement of multiple officers to finally subdue him. It appears that Officer Du Preez delivered two to three knee strikes in the process. The Applicant was then carried from the area with his wrists secured behind his back to a segregation cell by a handful of officers

Was the force excessive?

[37] I conclude that the Applicant’s conduct amounted to disobedience and non-compliance during a Code Blue. Not only was there verbal non-compliance in the shower, both the video footage and the evidence of the officers lead me to conclude that the Applicant did attempt to resist, or to disengage from, Officer Du Preez while being escorted in a C-clamp shortly after attempting to access some personal items outside of the shower area. This physical non-compliance, although not exceptionally violent, must be viewed in context with the Applicant’s verbal non-compliance, the insults and threats he levelled at Officer Du Preez, and the extremely fluid and dangerous situation of a Code Blue. Taken together, these factors justified the need for some increased force to be applied to the Applicant.

[38] I am unable to conclude that the force applied was excessive. Whether the Applicant slipped, tripped or went to ground as a result of the struggle to get away, I find that the officers were justified in subduing and securing him on the floor while any form of struggle or resistance continued. While the knee strikes administered by Du Preez constituted a severe tactic, I find that they were justified in light of the fluid nature of the situation, the spirited and continuing struggle by the Applicant and the risk of greater harm to officers or the inmate if some significant distracting force was not applied.

[39] The jurisprudence is clear that, in considering whether the use of force was reasonable, the actions of police and officers must not be held to a standard of perfection; their actions must be judged with consideration to the exigent circumstances they faced, and the degree of force should not be measured with exactitude: see R. v. Robinson, 2019 ONSC 4696, [2019] O.J. No. 4158, at para. 105. As stated by the Supreme Court of Canada in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 32 and 34, an officer may employ force, “provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary”.

[40] In my view, the force applied by the officers was measured, appropriate, restrained and reasonable force which was entirely justified. I agree with the Crown that the circumstance was a dynamic, fluid and dangerous situation where a quick decision was called for. It is no overstatement to describe the unfolding of events as chaotic, unpredictable and volatile. The court should exercise extreme caution in second-guessing the decisions and actions of officers faced with such a situation.

The Charter Issues

[41] I am not persuaded that the Applicant suffered any infringement of his ss. 7, 8 or 9 Charter rights. For the reasons set out above, I find that he was not the victim of excessive force.

[42] To find a s. 7 infringement of the right to security of the person, the court must find substantial interference with the person’s physical or psychological integrity: see R. v. Pan, 2012 ONCA 581, [2012] O.J. No 4162, at para. 47. The injuries he sustained amounted to a laceration on his lip and some elbow and ankle pain. He was given Motrin. Apparently, his x-rays were normal. There is no reliable evidence that he sought or required any medical follow-up. I am unable to find that he suffered any significant damage or interference with his physical integrity.

[43] I agree with the Crown that the most compelling evidence with respect to whether the Applicant being naked in the segregation cell caused a substantial interference comes from the accused himself. The Applicant admitted he understood it to be facility policy and practice that when an inmate went into segregation, his clothing was to be changed. This makes sense in context as well since the Applicant was wearing wet boxer shorts when he was placed in the cell. The Applicant also agreed that by the time photographs were taken of his minor injuries he had shorts on. The Applicant may have been left naked for about 20 to 30 minutes; however, he freely admitted that he suffered no physical, emotional, or psychological harm as a result. The officers were following facility protocol. After he was subdued, the Applicant was taken to the cell and arrangements were made for his clothing to be changed. This is typical; there was no discriminatory, distinct or arbitrary treatment visited on him. During the time that he was naked, he was left alone. There was no interference with his privacy or the integrity of his person. I can find nothing in the treatment he received that would rise to the level of a s. 7 Charter infringement.

[44] I am unable to find that he was subject to unreasonable search for the purposes of s. 8 of the Charter. Again, facility policy required that he be searched when going into segregation. As stated by my sister B.A. Allen J. in R. v. Rootenberg, 2020 ONSC 171, [2020] O.J. No. 4438, at para. 114, “[s]ecreted contraband like firearms, other weapons and drugs are an ever-present threat in correctional facilities. Correctional facilities house some of the nation’s most dangerous people and this cannot be underestimated in balancing inmates’ rights.” The search of the Applicant was not arbitrary, discriminatory, or random. There was no evidence that the search was anything but routine and mandated. There was no evidence that it was intrusive, prolonged, invasive or painful. It was a standard and justifiable search which was necessary before an inmate was to be left alone in a segregation cell. Officer and inmate safety required that such a search take place. While I am unable to determine on the evidence whether a prompt call was made by officers to have new clothing brought to the Applicant, I am equally unable to determine that any omission in this regard was lengthy, deliberate, or done in bad faith. What is certain is that facility protocol was followed; the Applicant understood what the facility protocol was; the facility protocol was justified; by the time the photographs of his injuries were taken, the Applicant had been issued clothing; and the entire episode had no physical, psychological or mental impact upon the Applicant.

[45] Finally, and as should be obvious from the findings set out above, I am unable to find that the Applicant was arbitrarily detained or imprisoned. The Applicant exhibited both verbal and physical non-compliance during a Code Blue; he was taken to a segregation cell as a result; the facility followed its policies and procedures in the aftermath of the confrontation; the Applicant was found guilty of misconduct within the facility and received an appropriate penalty. There was nothing arbitrary about the Applicant being detained in “close confinement” for seven days. There was no breach of his s. 9 Charter rights.

VI. Section 24(1) Considerations

[46] Even if I were to have found that the Applicant had suffered an infringement of his Charter protected rights or had been the victim of excessive force, I would not grant a reduction of his sentence. The Applicant was convicted of attempted murder by a jury of his peers. He received a carefully crafted sentence which was arrived at after fulsome submissions and considerations of several mitigating factors. He was given fair credit for pre-sentence custody. I have found that the Applicant caused the commotion which led to the unfortunate altercation on September 10, 2019, the application of force, the strip search, and the time in the segregation cell that followed. The context in which the incident took place must play a crucial role: an inmate in a correctional facility being first verbally and then physically non-compliant during a Code Blue.

[47] There are other considerations as well: the Applicant’s injuries were minor; he required little to no medical attention; he declined to give a statement; he did not appeal the finding of inmate misconduct; he testified that neither the search nor the time period when he was naked in the segregation cell caused him any mental, physical, or emotional grief; facility protocols were followed; there was transparency in how the investigation into the matter unfolded.

[48] On balance and in light of all of the circumstances, I find that, even had there been excessive force or Charter infringements, the remedy of sentence reduction would be highly inappropriate; it would instead serve to subvert the principles of sentencing and undermine the integrity of the justice system.

VII. Disposition

[49] For the foregoing reasons, the application is dismissed.

McCarthy J.

Released: February 5, 2021

NOTE: This written version of this ruling although delivered orally in the presence of the Applicant, is to be considered the official version and takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral version and this written version, it is the written version that is the official record to be relied upon.