COURT FILE NO.: CR-22-90000203-000
DATE: 20220526
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ANTONY BLACK
Counsel: S. Malik and V. Rivers, for the Crown D. Paton, for Mr. Black
HEARD: 4-6 April 2022
S.A.Q. AKHTAR J.
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[1] The applicant, Antony Black, stands charged with four counts of possession of controlled substances with intent to traffic and one count of assaulting a police officer.
[2] He applies for a stay in proceedings under s. 24(1) of the Canadian Charter of Rights and Freedoms pursuant to an alleged violation of his s. 7 Charter rights. The applicant claims that police used unreasonable excessive force after finding him in a residence when executing a search warrant.
[3] In addition, the applicant also applies for exclusion of a small bag containing cocaine and heroin which was found in his jacket after he had been detained pursuant to s. 8 of the Charter. Although he also originally claimed a breach of his s. 9 Charter rights, he abandoned this ground at the end of the evidentiary portion of the voir-dire.
Background Facts
[4] On 13 November 2018, police attended Unit 5, 526 Oakwood Drive to execute a search warrant.
[5] Their subject of interest was Amman Charley, who was suspected of possessing a firearm and known to have prior convictions for violent offences and the use of guns.
[6] Members of the Emergency Task Force (ETF) were employed to breach the front door of the building. As the ETF began its entry into the residence, a black male wearing a red baseball cap was seen looking out of one of the windows. When commanded by police to stay inside the house, the male was seen to run from room to room.
[7] After breaking through the front door, officers entered the house and made their way into a small apartment on the first floor before proceeding to the upper level apartment. Two occupants, a female, Kathleen Berry, and a male, Omar Stephens, were detained pending the completion of the execution of the warrant.
[8] Two ETF officers entered the bathroom and noticed the shower curtain of the bathtub drawn closed. When they pulled it aside, they discovered the applicant, who was wearing a red baseball cap, hiding inside the tub. The applicant immediately kicked out at the closest officer, Police Constable Jeffrey Hynek, who fell backwards and into Police Constable Thomas Mackenzie, who had accompanied him into the bathroom.
[9] PC Mackenzie, holding a Conducted Energy Weapon (CEW), deployed it, striking the applicant and causing him to fall face first into the tub. Both officers directed the applicant to move off the tub so they could be sure he was not holding any weapons. However, the applicant continued to lay on his stomach with his hands beneath him and moving from side to side. Hynek struck the applicant with an open hand on the back of his head three to five times to elicit a response but was unsuccessful. PC Mackenzie repeated the use of the CEW on the applicant’s calf. Again, there was no response. Finally, PC Mackenzie lowered his foot onto the applicant’s leg to make him feel uncomfortable but, again, the applicant did not respond.
[10] Eventually, another officer, Police Constable Christodoulou entered the bathroom, pulled the applicant from the tub, and dragged him into the apartment living room where he was attended to by paramedics.
[11] After the ETF had left, one of the investigating officers, Detective Shawn Mackenzie spoke to the paramedics who told him they believed the applicant was feigning injury. However, out of an abundance of caution, it was agreed that the applicant should be taken to hospital.
[12] Detective Mackenzie conducted a pat down search to determine whether the applicant possessed weapons. After satisfying himself that this was not the case, Detective Mackenzie continued to search the applicant for identification. Reaching into the pocket of the jacket the applicant was wearing, Detective Mackenzie found a baggie containing a small amount of cocaine and heroin along with a piece of paper with the name “Antony Black” written on it.
[13] The applicant was taken to hospital where he was diagnosed with a blowout fracture of right orbital bone and a right nasal fracture.
WAS THE APPLICANT’S SECTION 7 RIGHT BREACHED BY THE USE OF EXCESSIVE FORCE?
Legal Principles
[14] The use of police force is governed by s. 25 of the Criminal Code which reads:
25 […]
(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if
(a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;
(b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant;
(c) the person to be arrested takes flight to avoid arrest;
(d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and
(e) the flight cannot be prevented by reasonable means in a less violent manner.
[15] In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 32-34, the Supreme Court of Canada explained that the requirements of “reasonable grounds” and “as much force as necessary” imported a subjective-objective test. In other words, not only did the officer have to believe that force was necessary but that belief had to be objectively reasonable.
[16] In R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, the Court, at para. 73, acknowledged that a “certain amount of latitude is permitted to police officers who are under a duty to act and must often react in difficult and exigent circumstances”.
[17] In R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at paras. 23-24, the Court remarked:
First, the decision by the police must be judged by what was or should reasonably have been known to them at the time, not in light of how things turned out to be. Just as the Crown cannot rely on after-the-fact justifications for the search, the decision about how to conduct it cannot be attacked on the basis of circumstances that were not reasonably known to the police at the time: R. v. DeWolfe, 2007 NSCA 79, 256 N.S.R. (2d) 221, at para. 46. Whether there existed reasonable grounds for concern about safety or destruction of evidence must not be viewed “through the ‘lens of hindsight’”: Crampton v. Walton, 2005 ABCA 81, 40 Alta. L.R. (4th) 28, at para. 45.
Second, the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 73; Crampton, at para. 45. It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.
[18] Police conduct must be viewed as a whole and not parsed into analytical segments which would ignore the evidentiary picture as a whole: R. v. Amofa, 2011 ONCA 368, 235 C.R.R. (2d) 1, at paras. 19-25; R. v. Rigo, 2017 ONSC 3694, 352 C.C.C. (3d) 307, at para. 73.
Analysis
[19] I note that prior to attending 526 Oakwood, the police were briefed that the target of the search, Mr. Charley, was a violent offender believed to be in possession of a firearm.
[20] The officers were aware that a black male wearing a baseball cap and matching Charley’s description had been seen in the window of Unit 5 and had been ordered to “lay down” and comply with police demands. This male was seen to be running from room to room of the Unit seemingly panicked by the police presence.
[21] At this stage, it was perfectly reasonable to believe that Charley was in the apartment and in possession of a firearm.
[22] The ETF’s remit was to “clear” the apartment so that the search warrant could be executed. They had no personal stake in the search or any other targetted interest. Nor is there any evidence of any of the officers having a past history with Charley or any of the other occupants of 526 Oakwood. Accordingly, there appears to be no evidence of animus or reason for the ETF to engage in an unprovoked, gratuitous attack on the applicant when they found him in the bathroom.
[23] Hynek testified that as soon as he pulled aside the shower curtain, the applicant kicked out at him catching him in the midriff area of his body. This was confirmed by Hynek’s partner, PC Mackenzie.
[24] I reject the defence suggestion that the police assaulted the applicant without any justification as soon as they discovered him in the bathtub. As I have already described, the ETF remit was simple: clear the unit of any danger so that a search warrant could be executed. They did not know the applicant or Charley and had no reason to inflict an unnecessary and unprovoked beating on the man they found.
[25] There were no incidents of violence in police dealings with Ms. Berry or Mr. Stephens, the other two occupants found in the property. The Crown points out that this shows when the occupants complied with the police demands, there were no incidents. It argues that the physical altercation in the bathroom occurred because Mr. Black refused to co-operate from the outset.
[26] I agree and find that the actions of the police in the bathroom occurred as a result of Mr. Black’s kicking of PC Hynek immediately after he was discovered.
[27] Faced with the situation that the man in the tub was Charley, PC Mackenzie was justified in using the CEW in response. As he pointed out, there was no other option: firing the long gun he was carrying would cause serious injury and, in any event, Hynek was in his way.
[28] I also reject the defence assertion that the CEW data showed PC Mackenzie turned on the CEW in the bathroom and waited 9 seconds before deployment. According to the applicant, this happened because Hynek was beating the applicant and blocking PC Mackenzie from using the CEW for 9 seconds.
[29] When questioned on why the data showed the CEW being turned on 9 seconds before use, PC Mackenzie explained that it could have inadvertently become armed as he made his way up to the bathroom.
[30] I accept PC Mackenzie’s evidence. I reiterate my observation that there was no evidentiary reason for the officers to inflict a beating on someone that they had no dealings with or ever met prior to 13 November 2018.
[31] I also find that the continued use of force was justified in the circumstances: the applicant was laying in the bathtub keeping his hands in front of his chest and refusing police demands to show them so that they could confirm the absence of any weapons. It was reasonable for Hynek and PC Mackenzie to assume that the male who had been hiding, and then assaulted Hynek, was Charley and that he was carrying a firearm. In these circumstances, the force used to ensure the applicant was not carrying or concealing a weapon that could seriously injure or kill them was reasonable. As stated in Asante-Mensah and Cornell, in the heat of this rapidly moving situation, the police could not be expected to measure, with precision, how much force should be used to deal with the situation.
[32] Nor do I accept that the applicant’s injuries were caused by the blows administered by Hynek. The officer testified that even though he is right handed he was forced to use his left hand to administer the blows because of his position in the tub. The applicant’s head was turned slightly towards the right with the left side of his face against the bathtub. These circumstances would make it highly unlikely that Hynek could reach around to inflict the injuries to the applicant’s left eye. PC Mackenzie also testified that he was not administering full force strikes to the head but using only as much force as possible to force the applicant to raise his hands. I find nothing in the evidence to contradict his testimony.
[33] The second use of the CEW on the applicant’s calf was also justified because, despite police efforts to determine what was in the applicant’s hands, he refused to co-operate. The police made reasonable efforts in seeking to control the applicant and protect themselves.
[34] I find that the applicant’s injuries were a result of the face-first fall into the bathtub following PC Mackenzie’s deployment of the CEW.
[35] Nor do I accept the defence argument that the police delayed writing their notes to concoct a fictitious account of what had occurred. There is no dispute that Toronto Police Service policy required the officers to write up their notes as soon as possible. However, as Sergeant Kent Lefort explained, when the ETF left 526 Oakwood, they had to complete administrative duties. Since no overtime was authorised, they were given permission by their acting supervisor, Sergeant Forestell, to complete their notes the next day. There was nothing improper about the police actions.
[36] For these reasons, the section 7 application is dismissed.
SHOULD THE EVIDENCE OF THE COCAINE AND HEROIN BE EXCLUDED?
Was There a Breach of the Accused’s Section 8 Rights?
[37] The applicant argues that Detective Shawn Mackenzie breached his s. 8 Charter rights when he searched his jacket and found the bag containing cocaine and heroin.
[38] As noted, Detective Mackenzie testified that after the accused had been handcuffed he was tended to by paramedics and although there was a suspicion that he was malingering, there was some discussion about the applicant being taken to hospital.
[39] Detective Mackenzie said that faced with this possibility, he decided to conduct a pat down search to ensure the applicant was not armed. After doing so, and finding no weapons, Detective Mackenzie testified that he continued to search the applicant to locate identification which might assist the medical staff at hospital and permit him to contact the applicant’s next of kin.
[40] After removing the jacket worn by the applicant, Detective Mackenzie found a small green bag in the right breast pocket. Detective Mackenzie believed that this might contain an identity card which would reveal the applicant’s name. However, he discovered two bags containing heroin and cocaine. The applicant was subsequently charged with possession of the drugs which are the subject of counts one and two on the indictment. In addition, Detective Mackenzie found a piece of paper containing poetry and the name “Antony Black”.
[41] There is no dispute that Detective Mackenzie was entitled under the principles in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, to conduct a pat down search of the applicant to eliminate any safety risks.
[42] However, once the pat down search was complete and no weapons were found, Detective Mackenzie was obliged to stop. The continued search for identification, was, accordingly, a breach of the applicant’s s. 8 rights.
Should the Evidence be Excluded Under Section 24(2) of the Charter?
[43] In deciding this question, the three-part test in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, directs the reviewing court to evaluate the following three factors:
(a) The seriousness of the police conduct in committing the breach;
(b) The impact of the breach on the applicants’ Charter protected interests; and
(c) Society’s interests in the adjudication of the case on its merits.
[44] For the following reasons, I find that in this case the evidence should be admitted under these principles.
[45] First, I accept Detective Mackenzie’s evidence that he was simply looking for identification to assist hospital staff and notify the applicant’s next of kin. I do not accept the applicant’s argument that Detective Mackenzie was looking for additional incriminating evidence. There was no reason for Detective Mackenzie to search for drugs after the applicant had been detained: Detective Mackenzie was part of the team executing a search warrant looking for Charley and any firearms that he may have had in the apartment. He had no reason to suspect the applicant was in possession of any drugs.
[46] Whilst I agree that lack of bad faith does not equate to a finding of good faith, I find that Detective Mackenzie was motivated by a desire to assist the hospital and the applicant. Accordingly, I find that this conduct falls on the less serious side of the spectrum and favours admission.
[47] Turning to the second Grant limb, a personal search conducted in the manner could clearly be found to be a relatively significant impact upon the applicant’s Charter protected interests. However, this impact is somewhat attenuated by the fact that the applicant was to be arrested for assaulting Hynek and taken to the police station for that offence as well as an unrelated warrant. Given these facts, it was inevitable that the applicant’s jacket would have been the subject of a search when being processed for arrest. I find that whilst this limb might favour exclusion, it does not weigh heavily in its favour.
[48] Finally, it cannot be disputed that under the third limb of Grant, society’s interest in the adjudication of the case favours admission as exclusion of the evidence would mean that the prosecution of counts 1 and 2 on the indictment would be over.
[49] Balancing the factors, therefore, I find the evidence of cocaine and heroin to be admissible under s. 24(2) of the Charter.
S.A.Q. Akhtar J.
Released: 26 May 2022
COURT FILE NO.: CR-22-90000203-000
DATE: 20220526
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ANTONY BLACK
RULING ON CHARTER MOTIONS
S.A.Q. Akhtar J.