COURT FILE NO.: 4813-998-16-35001066-00
DATE: 20211005
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
SHAUNE BROWN
Appellant
Joanne Bruno, for the Respondent
Alexander Ostroff, for the Appellant
HEARD: September 14, 2021
Justice s. nakatsuru
[1] Shaune Brown was an inmate in the segregation unit at the Toronto East Detention Centre. He was convicted of assaulting two jail guards. One suffered bodily harm. Mr. Brown was convicted after a trial where he represented himself. He was sentenced to 15 months of incarceration. Mr. Brown is already doing a life sentence for second degree murder.
[2] Mr. Brown appeals both his conviction and sentence.
[3] For the following reasons, the conviction appeal is allowed.
A. FACTUAL BACKGROUND
Overview of the Incident
[4] A summary of what happened on February 16, 2016 between the appellant and the correctional officers in his cell will be enough for the purposes of this appeal.
[5] That morning, the appellant ate, showered, and then was told he would be moved from segregation and returned to general population. The appellant refused and wanted to speak to Sergeant Gardiner who the appellant claimed had given him permission to read his disclosure regarding criminal charges he was facing, in segregation. When told that Staff Sergeant Perkins was going to see him about this, he refused and insisted on talking to Sergeant Gardiner. The appellant testified that he had a bad relationship with Staff Sergeant Perkins. In addition, when the appellant got back to his cell from showering, his disclosure was scattered about his cell. Because he had made a lot of past complaints about correctional officers, the appellant believed that his disclosure was messed with that day to upset him.
[6] Staff Sergeant Perkins came to speak to the appellant. They got into an argument about the appellant leaving segregation. The appellant told Staff Sergeant Perkins to get out of his cell and pushed her on the chest. Staff Sergeant Perkins grabbed the appellant and forced him to the rear of his cell. When she did this, she testified he punched her in the right eye. Then Correctional Officer Steenson entered the cell and grabbed the appellant. A struggle ensued between the appellant and the officers. Another officer on scene, Correctional Officer Cipparone, activated a code blue button. This button alerts other officers to come help.
[7] The appellant was pressed onto a desk. The struggle continued. The appellant pushed his thumb into the eyes of the two officers. Correctional Officer Steenson repeatedly punched the appellant. The struggle ended when Correctional Officer Cipparone sprayed the appellant with pepper spray. Staff Sergeant Perkins also got sprayed. Both Staff Sergeant Perkins and the appellant suffered injuries to the face during the encounter.
[8] In response to the code blue alarm, many correctional officers rushed to the cell. At least nine other officers entered the appellant’s cell. They helped control the appellant. They picked him up and put him on the ground. He was then placed in leg irons and handcuffs and moved to another cell. Six minutes went by from the time the additional officers arrived at the time the appellant was removed from his cell.
The Appellant’s Testimony about the Charter Violations
[9] The appellant testified in his own defence. The following is his version of what happened.
[10] After being told he had to leave segregation and complaining about the scattered disclosure, Staff Sergeant Perkins arrived. The appellant told her to leave his cell. When she came in, the appellant pushed her. He testified that she grabbed him by the throat and twisted his arm. He denied hitting her. Then Correctional Officer Steenson started punching and slapping him. The appellant had his back on the small table at the rear of the cell. A third officer came. The appellant pushed Correctional Officer Steenson into a ladder. Correctional Officer Steenson continued to punch him and grab his legs. Correctional Officer Cipparone shot pepper spray twice but missed the appellant and hit the other officers. The third shot of pepper spray hit the appellant. He could not see as a result. They continued to grapple. The appellant admitted to poking Staff Sergeant Perkins and Correctional Officer Steenson in the eye to get them off him. He testified that he was being stomped on, kicked, and punched. After some time, some body weight was on him. A boot was ground into his face. Blood came down his face. Staff Sergeant Perkins also bent back his finger. He then heard a male voice say, “enough”.
[11] The appellant testified he was still being held down when Staff Sergeant Perkins and the others left the cell. He testified that he was still being stomped on and struck by other officers.
[12] The appellant was then removed from the cell and taken to another cell outside the shower. An hour later, his shackles were removed. The appellant could not see for an hour and the only way he could regain his sight was to blink the pepper spray out of his eyes. He spoke to many officers. He told them he wanted to speak to his lawyer to press charges. He was not given a call. The appellant got a fellow inmate to call his lawyer. An officer overheard this call and grabbed the phone from the inmate. The institution shut off the phone lines so no one else could call out. The appellant was in the cell for over eight hours. He was not given any food. He was refused the washroom. During this whole time, his hands were cuffed behind his back so tightly they cut into his skin and left scars. The pepper spray was burning him. After eight or nine hours, officers forced him into the shower and washed off the pepper spray and blood. The officers who cleaned his cell took his disclosure and threw most of it out. His personal belongings were taken and never returned to him.
B. THE TRIAL JUDGMENT
[13] The trial judge found that many of the facts were not really in dispute. The appellant admitted he had started the fight by pushing Staff Sergeant Perkins. The trial judge accepted that the appellant had past difficulties with her. A struggle ensued. The appellant admitted poking the eyes of the officers. The struggle only ended after the pepper spray was used a third time and the appellant stopped resisting.
[14] The trial judge considered the possibility that Mr. Brown acted in self-defence under s. 34 of the Criminal Code. He rejected this. He found that the Crown had disproved self-defence beyond a reasonable doubt. He held that the correctional officers had the right to enforce their control over the inmates of the institution. He determined that the blows and force used by the officers were not beyond what was necessary to gain control over the appellant, who was physically resisting them.
[15] The trial judge noted that the appellant made reference to matters he felt were Charter rights violations. The trial judge said that he had considered the Charter application in an informal hearing. The trial judge noted the appellant had been asking for further disclosure such as the photos taken of his cell afterwards, additional photos taken of his injuries, and more jail videos of what took place after he was moved. However, the trial judge concluded that this disclosure was not needed as he accepted much of what the appellant testified to. The trial judge accepted the appellant’s evidence about the injuries he suffered. He further accepted the appellant’s evidence that his disclosure was scattered and how he said he was treated afterwards: the handcuffs, not being allowed to shower for hours, his personal belongings not being returned to him, and not being able to call his lawyer in order to press charges against the correctional officers.
[16] The trial judge held that most of the complaints and concerns of the appellant had occurred after the alleged assaults. He found that the violations could not affect the reception of evidence or allow for a stay because they were matters that happened after the events of the charges. He held he would consider the treatment received by the appellant on sentencing.
C. ARGUMENTS ON APPEAL
[17] The appellant submits that the trial judge erred in law by categorically dismissing his Charter application on the basis that the violations occurred after the events that gave rise to the charges. The trial judge had accepted the appellant’s evidence about the extent of his injuries and treatment he received afterwards. This presumably also included the appellant’s testimony that he was subject to retaliatory stomping and kicking by officers who later entered the cell after he was pepper sprayed. Due to the trial judge’s mistaken belief that he had no jurisdiction to deal with these issues, he failed to conduct any analysis of whether the appellant’s rights were violated and what the appropriate remedy should be.
[18] The respondent submits that the trial judge did not dismiss the Charter application categorically. Rather, when his reasons are properly read, the trial judge acknowledged that the conduct complained of could, in other circumstances, have warranted Charter relief. What the trial judge concluded was that the conduct complained of should not result in a stay as the connection between the assaults and the treatment of the appellant afterwards was too remote.
[19] The appellant also made other submissions, including that the trial judge erred in his application of the law of self-defence under s. 34 of the Criminal Code to the facts of the case. Given the appellant’s success on the ground of appeal relating to the Charter application, as outlined below, I find it unnecessary to deal with the rest of the appellant’s arguments.
D. ANALYSIS
[20] I do not accept the respondent’s characterization of the trial judge’s reasons.
[21] The trial judge said little about the alleged Charter violations. No analysis was conducted. No authorities were cited. What little he did say fell into serious error. The following is the sole reason given in dismissing the appellant’s application:
Most of those complaints and concerns he had, while I am sure very important to him, took place following the alleged assault. While that behaviour toward him by the officers after the events can be considered to some extent on whether they are reliable when they are relating to the events that happened. But what happened to him afterwards may be grounds for a legitimate complaint under some statute or even the Charter of Rights, they are not violations that would affect the reception of evidence or allow a stay, because they are matters that happened subsequent to the events of the charge. Not to belittle his complaints, but I just do not have the authority to say, well, what happened to him afterwards can now result in the nullification of evidence that was produced at trial, or even result in a stay in the trial. They may well be something that could theoretically be used on sentencing if it comes to that.
Criminal trials are limited to focusing on the charges and the rules of evidence concerning admissibility of what is put forth by anyone at the trial. [Emphasis added.]
[22] In my opinion, the correct interpretation of the trial judge’s reasons is plain. The trial judge is not dismissing the Charter application for the exclusion of evidence or a stay of proceedings in favour of the more appropriate remedy of a reduction in sentence. He clearly focuses on the fact that because the conduct of the correctional officers happened after the event, he did not have the “authority” to deal with them at the trial. No other part of his reasons for judgment clarifies or adds to this paragraph. In other words, resort to the whole of the reasons does not advance the respondent’s position.
[23] My reading of the trial judge’s reasons is supported by an exchange the appellant had with the trial judge after the Crown closed its case and the appellant moved for various relief, including a stay of the charges due to violations of his Charter rights. The appellant submitted that his rights under ss. 7 and 12 of the Charter were infringed because of the numerous wrongful acts directed at him including: a “revenge” beating by the correctional officers before and after the code blue button was pushed; being left in handcuffs for over eight hours with his hands behind his back; not being fed or allowed to use the washroom until he was transferred to the Lindsay Jail hours later; theft of his property by the staff from his cell after he was transferred to another cell; being forced to strip and take a shower to remove the pepper spray and blood; and being denied any opportunity to press criminal charges against the correctional officers.
[24] When directed by the trial judge that it would be helpful to start his testimony from the beginning of the morning, the appellant said he would start from the very beginning to piece together the whole puzzle, as set out in his complaints and motions. The trial judge stopped him and stated that he was only dealing with the two criminal charges. Though potential violations of the appellant’s rights may have happened before and after the incident, the trial judge said he did not have the “jurisdiction” to deal with them unless they affected the charges.
[25] In referring to his lack of “authority” and “jurisdiction” to deal with these alleged violations of rights because they happened after the fact, I find it clear that the trial judge was not just dismissing the appellant’s arguments as a matter of a proper remedy. Rather he concluded that in law he was unable to address the appellant’s alleged Charter violations. This was an error.
[26] Courts have ordered stays of proceedings in cases involving mistreatment in custody, including cases involving brutality on the part of correctional staff. In R. v. Bellusci, 2012 SCC 44 at paras. 17-32, the Supreme Court of Canada affirmed a stay of proceedings where a prison guard, apparently out of revenge for threats the appellant had made against him, attacked the appellant while he was handcuffed in a prison van. The appellant’s threats, though reprehensible, would not have been made but for the guard’s inappropriate disclosure to other prisoners that the appellant was a sex offender, which had jeopardized the appellant’s safety in custody. Fish J. said at para. 25, citing Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3. S.C.R. 391:
Having found that Mr. Bellusci had been provoked and subjected by a state actor to intolerable physical and psychological abuse, it was open to the trial judge to decline to enter a conviction against him. As the Court explained in Tobiass, “if a past abuse were serious enough, then public confidence in the administration of justice could be so undermined that the mere act of carrying forward in the light of it would constitute a new and ongoing abuse sufficient to warrant a stay of proceedings” (para. 96).
[27] See also R. v. Ugbaja, 2019 ONSC 96 at paras. 67-69, where McKelvey J. ordered a stay of proceedings because correctional staff failed to provide a necessary medical referral for the appellant and refused to let him use crutches in his cell in administrative segregation, resulting in permanent injuries.
[28] Further, trial judges can grant a stay of proceedings in other circumstances where the state misconduct came after the event leading to charges against the accused: police brutality that occurs after the accused has already been apprehended;[^1] unconstitutional strip searches;[^2] delay in holding a bail hearing once an accused is in custody;[^3] and loss or destruction of evidence.[^4]
E. DISPOSITION
[29] Given the error, a miscarriage of justice has occurred. I acknowledge that the trial judge made some findings of fact in favor of the appellant by accepting his evidence. Other factual findings such as what exactly transpired between the officers and the appellant are less than clear from the reasons. Additionally, no analysis was conducted on the alleged Charter violations. Consequently, on this appeal, I should not decide the question of whether a stay of proceedings should be granted. The appellant does not argue otherwise. Both parties agree that if the trial judge erred in this way, a new trial should be ordered.
[30] The convictions are quashed. A new trial is ordered. The appellant is ordered to set a date for a new trial on October 26, 2021, in courtroom 407, Ontario Court of Justice, 1911 Eglinton Avenue East, Toronto, at 10 a.m.
Justice S. Nakatsuru
Released: October 5, 2021
COURT FILE NO.: 4813-998-16-35001066-00
DATE: 20211005
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
SHAUNE BROWN
Appellant
REASONS FOR JUDGMENT
NAKATSURU J.
Released: October 5, 2021
[^1]: R. v. Tran, 2010 ONCA 471 at paras. 54-58, 103-105; R. v. Singh, 2013 ONCA 750 at paras. 34-48; R. v. Dickie, 2014 ONSC 1576 at paras. 4, 35-38.
[^2]: R. v. Samuels, 2008 ONCJ 85 at paras. 59-81; R. v. Lozano, 2013 ONSC 1871 at paras. 92-94; R. v. McKanick, 2015 ONSC 2128 at paras. 152-155.
[^3]: R. v. Zarinchang, 2010 ONCA 286 at paras. 62-63; R. v. B.(S.), 2014 ONCA 527 at para. 17.
[^4]: R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80 at paras. 53-57.