His Majesty the King v. Andry Korkis, 2023 ONSC 174

Court File No.: CR-21-1088-00 Date: 2023 01 06

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Respondent Ryan Mushlian for the Crown

- and -

ANDRY KORKIS Applicant Andrea Vanderheyden for the Applicant

HEARD: November 28, 29, 2022

RULING ON AN APPLICATION FOR A STAY OF PROCEEDINGS

Justice Thomas A. Bielby

[1] The applicant alleges that his Canadian Charter of Rights and Freedoms ss. 7, 10(b) and 12, were breached and submits that the breaches were so egregious, that the only reasonable remedy is a stay of proceedings.

[2] On December 20, 2019, the applicant was arrested and charged with robbery with the use of a firearm. It is alleged that the applicant, via Kijiji, arranged to buy an American Bulldog puppy. It was agreed the owner of the puppy would travel to 75 Skylar Circle, in Brampton, so the applicant could see the dog. The applicant, when sitting in the front seat of the owner’s vehicle, is alleged to have pulled a gun, stolen the puppy and left the scene on foot. Shortly thereafter a gun shot was heard, and it was later determined that the applicant, when fleeing the scene, accidentally shot himself in the leg, breaking his tibia (the applicant initially told the police that he injured his leg by falling).

[3] An ambulance was called to attend the scene and at 7:42 p.m. the applicant was arrested and given his rights to counsel and cautioned. The applicant provided the arresting officer with the name of his lawyer.

[4] Subsequently, when at the hospital, the applicant was told of further charges and again given his rights and caution. The applicant advised the police that, at that time, he did not want to speak to a lawyer.

[5] Peel Police Officers, Gill and Gardner, were stationed outside of the applicant’s hospital room overnight and on December 21, 2019, at 615 a.m. were relieved by Officers Astone and MacLellan who, when testifying at the voir dire, said that they were told by Officer Gill that the applicant had said he did not want to speak to a lawyer. Officer Gill testified that when on duty at the hospital, he never spoke to the applicant and never told Officers Astone and MacLellan that the applicant did not want to speak to a lawyer.

[6] The applicant testified that he overheard Officer Gill tell the relief officers that he, the applicant, was told he could call his lawyer in the morning, after he woke up.

[7] The applicant testified that he awoke at 6:00 a.m. on December 21, 2019, and, approximately 30 minutes later, asked if he could call his lawyer. The applicant testified that, in response, he was told by Officer MacLellan to, “suck a dick”.

[8] The applicant testified that, thereafter, he and Officer MacLellan started exchanging insults. It is alleged the officer told the accused that he did not have a father and if he had a father, the father did not beat the applicant enough. The applicant alleges he was told that he was a criminal and would be going to jail for a long time. The applicant insulted Officer MacLellan by referencing his physical appearance and told the officer that he was unprofessional and miserable and that he (the officer) would get into a lot of trouble for not facilitating contact with the applicant’s lawyer. Officer MacLellan is alleged to have responded something to the effect of, “I don’t care”.

[9] The applicant testified that after this verbal exchange both officers, Astone and MacLellan, came into his room and closed the door. Officer Astone stayed by the door and Officer MacLellan approached the applicant’s bed to which the applicant was handcuffed. Officer MacLellan then held down the applicant’s uncuffed wrist, called the applicant a pussy and backhanded the applicant across the face, three times. Thereafter the officers returned to their chairs located just outside of the applicant’s hospital room.

[10] It is alleged by counsel for the applicant that the slaps were a physical assault upon the applicant by Officer MacLellan and breached the applicant’s s. 7 and s. 12 Charter rights.

[11] The applicant testified he was shocked by the conduct of the officers. He also testified that the slaps were not that hard but still hurt.

[12] The applicant testified that he was so scared and did not know what to do. He started yelling for help. As a result, Officer MacLellan is alleged to have told him to, “shut the fuck up” or he’d come back in and do it again.

[13] The applicant then pushed the emergency button located on his bed which triggered a “code blue” and resulted in an immediate response from hospital staff who rushed to his room. The applicant testified that he told a nurse about what had happened and showed the nurse his face and wrist. The applicant testified that the nurse responded that he could not see anything.

[14] Exhibit 1 to this application is the Crown’s responding record which includes the applicant’s hospital records. At page 157 of the medical records (Caselines page B157) can be found a notation in the Adult Patient Care Record dated December 21st, which reads,

“06:45 (or 06:48) Pt called/pressed on the code blue button sts the officers closed the door and told him to shut up writer re-assured.”

[15] The applicant testified that at some point thereafter and as a result of what he testified he told the nurse Officer MacLellan called the applicant a “snitch”.

[16] The applicant testified that shortly thereafter, a nurse came in and told him to change into a hospital gown for his surgery that morning. The applicant alleged that he begged the nurse not to leave him alone with the police, with the door closed. The applicant was allowed to change into his gown with the door to his room left open.

[17] On the way to surgery to remove the bullet and set the leg, the applicant was accompanied by Officers Astone and MacLellan. The applicant testified he tried to show the doctor the marks on his wrist and testified that he told the doctor that he wanted to call his lawyer. The officers both testified that this was the first time, in their presence, that the applicant asked to speak to a lawyer. Officer MacLellan testified that it was he who asked the doctor if the applicant could call his lawyer. Both the applicant and the officers testified that the doctor would not facilitate the applicant calling a lawyer as the surgery was urgent and serious and/or they were ready to begin.

[18] Post surgery, the applicant awoke at approximately 10:30 a.m., (December 21st) and asked to speak to a lawyer. The applicant then apparently became sick to his stomach and was given more medication and fell back asleep. When he next awoke that morning, the applicant testified that he again asked to speak to his lawyer. It would seem that there was no phone within the hospital which could be made available with some measure of privacy and accordingly, one of the officers placed a call to Officer Reis who, at around 2:00 p.m., arrived at the hospital with a mobile phone which was used to facilitate the applicant’s call to legal counsel.

[19] On the following day, December 22nd, Officer Reis took a statement from the applicant. The officer asked the applicant if he had spoken to a lawyer and if he had told the lawyer of the assault. He also asked about what the lawyer told the applicant who said his lawyer advised not to say anything to the police. Officer Reis told the applicant that, regarding the assault allegation, he did not believe the applicant and suggested to the applicant that he might not want to follow his lawyer’s advice.

[20] Officer Reis was questioned about what steps he took to investigate the assault allegation. Officer Reis testified that he told his supervisor of the assault allegation and told the applicant that in regard to civilian complaints regarding police conduct, the applicant could register his complaint with the Office of Independent Police Review Director (OIPRD), an agency created to address such complaints. Officer Reis testified that he told the applicant he should talk to his lawyer about the OIRPD. No other investigative steps were taken by Officer Reis.

[21] It is conceded by the Crown that Officer Reis, when questioning the applicant violated the applicant’s s. 10(b) Charter rights. Officer Reis acted unlawfully, in asking the applicant about what he told his lawyer. This was a breach of solicitor/client privilege. It was compounded when Officer Reis suggested the applicant may not want to follow his lawyer’s advice.

[22] Notwithstanding this concession, an issue remains as to whether the applicant’s s. 10(b) Charter rights were also violated because he was not given an opportunity to retain and instruct counsel, without delay.

[23] Michael Astone, Officer MacLellan’s partner, testified that they arrived at the hospital at 6:13 a.m. on December 21, 2019, to relieve Officer Gill and his partner. They were briefed by Officer Gill who told them that the applicant said he did not want to speak to a lawyer. Officer Astone could not recall being told by Officer Gill, that Officer Gill told the applicant he could speak to his lawyer when he woke up the next morning (December 21st).

[24] Officer Astone could not recall any verbal interactions between the applicant and his partner, Officer MacLellan. He couldn’t recall what the applicant was initially wearing or whether the applicant was restrained by being handcuffed to the bed. Although not recorded in his notes, Officer Astone testified that he did recall the applicant making a “lot of commotion” and was “messing around” with the button which caused a lot of staff to rush in. Officer Astone said that it was then, for the first time, that he went into the applicant’s hospital room. Upon entering the room, the officer determined that nothing was wrong and believed the applicant was just trying to get attention.

[25] As noted above, Officer Astone testified that the accused, for the first time, asked to speak to legal counsel when the applicant was being wheeled to the operating room.

[26] Officer Astone testified that post surgery he could not recall any verbal interaction he had with the applicant, testifying that upon his initial awakening after the surgery, applicant was not in any shape to speak to a lawyer.

[27] Under cross examination, Officer Astone testified that the door to the applicant’s hospital room may have been partly closed to mask the sounds of the commotion, explaining the applicant was belligerent and yelling. He confirmed that his only recollection of being in the applicant’s room was when the medical staff went rushing in.

[28] Officer Astone was questioned concerning the interactions between the applicant and his partner, Officer MacLellan. He answered many of the questions with such phrases as, “I can’t speak to that” and “I don’t recall”. Officer Astone testified that he had no clear memory of the events and utterances that occurred a number of years ago. When pressed on this issue, Officer Astone explained that he could have been “zoned out” or (may have been) in the bathroom or anywhere. He did testify that it was possible the applicant had a verbal interaction with Officer MacLellan. Officer Astone testified initially, that he could not recall his partner assaulting the applicant but thereafter he testified that, “it did not happen” and that his partner did not assault the applicant. Officer Astone did agree that it is possible that they told the applicant to be quiet, but that he had no memory of that or of Officer MacLellan telling the applicant that he was not tough and was a pussy.

[29] Officer MacLellan testified that upon his arrival at the hospital around 6:15 a.m., he and his partner Officer Astone, were briefed by the officers they were relieving, and were told that the applicant did not want to speak to a lawyer.

[30] The officer testified that he and Officer Astone then took up their positions of sitting outside the applicant’s hospital room. When asked if he ever went into the applicant’s hospital room, Officer MacLellan testified, “I’m sure that I was at some point”. Officer MacLellan was questioned about his verbal interactions with the applicant and could not recall if the applicant “engaged us in any way”. He testified that he usually did not speak to persons in custody.

[31] Officer MacLellan on cross examination agreed that he was in the applicant’s room when the applicant got changed prior to surgery and that the door to the room would have been closed at that time. Other than that, he had no recollection of being in the applicant’s hospital room with the door closed.

[32] Officer MacLellan testified that for the first time, when on the way up to surgery the applicant asked to speak to his lawyer. The officer testified that he did not think the applicant spoke to the doctor and that it was he or his partner who spoke to the doctor. Regardless, as noted above, the doctor responded to the effect that a call could not be facilitated because surgery was about to happen.

[33] The applicant’s surgery was completed at 9:50 a.m. on December 21st and when the applicant first woke up thereafter, Officer MacLellan testified that the applicant provided the name of his lawyer. It was 1:00 p.m. when the applicant again woke up and asked to speak to his lawyer. The applicant was finally able to speak to his lawyer at 2:21 p.m., using a phone, as noted above, brought to the hospital by Officer Reis.

[34] When questioned about the applicant’s conduct prior to surgery, Officer MacLellan could not recall any type of a commotion. He had no memory of the applicant yelling for help. He denied telling the applicant to “suck a dick”. He denied telling the applicant that he was a criminal and was going to jail for 5 years. When it was suggested to him that he made such a comment, Officer MacLellan stated, “that is not what happened”. He had no recollection of other verbal interactions suggesting he had difficult recalling these events as the occurrence happened a long time ago.

[35] Officer MacLellan denied assaulting the applicant. He denied calling the applicant a pussy and a snitch.

[36] Through cross examination, it was revealed that Officer MacLellan and Officer Astone, came to the courthouse together. They had lunch together. They discussed the case. When questioned about this, Officer MacLellan testified that he was not sure of the reason why he was at the courthouse, and testified something to the effect of, he needed Officer Astone to assist him in remembering the incident.

[37] The officer testified that if, at any time, the applicant asked to speak to counsel it would have been arranged. He could not remember Officer Gill telling them that the applicant was told he could speak to his lawyer when he woke up the next morning.

[38] Officer Maclellan testified on cross examination, that he had no memory of any verbal exchange with the applicant prior to surgery. He had no recollection of the applicant telling him he’d be in trouble or of the applicant yelling for help. The officer testified that he had very little memory of the incident.

ANALYSIS

[39] To succeed in this application, the burden of proof lies with the applicant, on a balance of probabilities. Having heard the evidence, I accept the evidence of the applicant over that of Officers Astone and MacLellan. As conceded by the Crown, the applicant was not shaken on cross examination. His recollection of the events was, for the most part, consistent. And variations in his evidence do not rise to the level necessary to challenge his credibility and reliability. The applicant was candid and acknowledged that he exchanged insults with Officer MacLellan. The fact that the applicant has been convicted of a criminal offence in the past does not change my acceptance of his evidence.

[40] As noted above, there is some indirect evidence supporting the applicant’s testimony. The emergency record referenced above, is not inconsistent with the applicant’s testimony that he made a complaint to a nurse. It confirms there was a code blue, and some type of interaction in the applicant’s hospital room. Yet Officer MacLellan had no recollection of any of this.

[41] Officer MacLellan’s admission that, prior to testifying, he talked to Officer Astone about the facts of this case explaining that he had no idea why he was called to court to testify and needed to trigger his memory, is troubling. It suggests collusion. Further, I have difficulty believing Officer MacLellan would not recall an incident during which he is alleged he assaulted the applicant.

[42] As referred to above, Officers Astone and MacLellan, in answer to many of the question put to them in cross examination, gave answers such as “I have no recollection of that or “I can’t speak to that”. Such answers, at times, seemed ambiguous. Were the answers given to deny the suggestions put to them or did they mean, something may have happened that they do not remember?

[43] Officer Astone when in cross examination, as noted above, was questioned regarding his partner’s interaction with the applicant and testified that he had no recollection of such an interaction. He then opined that he may have been zoned out or been in the bathroom or anywhere.

[44] Accordingly, I accept the the evidence of the applicant and find that, on a balance of probabilities, on December 21, 2019, the applicant was, without justification, assaulted by Officer MacLellan, in the presence of Officer Astone. The Applicant was held down and slapped 3 times across the face. The applicant was thereafter threatened that it would happen again if he did not shut up.

SECTION 10(b) CHARTER RIGHTS

[45] Regarding the alleged breaches of the applicant’s s. 10 (b) rights, it is not disputed that the applicant was advised of his rights and caution at 7:44 p.m., and again at 10:28 p.m. on December 20, 2019. There is no issue regarding the applicant’s ability to understand what he was told. There is no dispute that that the applicant, on the evening of December 20th advised the police that he did not want to speak to counsel.

[46] As noted above, it is conceded that Officer Reis, when taking the applicant’s statement on December 22, 2019, breached the applicant’s s. 10 (b) rights.

[47] I am also of the opinion, that the applicant’s s. 10(b) Charter rights were further breached in that he was not allowed to retain and instruct counsel, “without delay”. While, on the evening of December 20, 2019, the applicant did advise the police that he did not want to speak to counsel, he was preoccupied with his serious injuries and the medical treatment he was receiving regarding those injuries. I find that the applicant’s rejection of a chance to speak to a lawyer was limited in time to that evening. It was not a general rejection of the right to speak to counsel.

[48] Regardless, at anytime thereafter, if the applicant asked to speak to counsel, he would have the right to do so, without delay.

[49] Regardless of whether Officer Gill told Officers MacLellan and Astone that the applicant was told he could speak to counsel, I accept that after he woke up on the morning of December 21st, at approximately 6:30 a.m., the applicant asked to speak to counsel. However, no steps were taken, without delay, by Officers MacLellan and Astone to facilitate the applicant’s request. The applicant reiterated the request to speak to counsel when he was being transported to surgery. While it may not have been practical to arrange for the applicant to speak to counsel at that point, it was not until almost 2:30 p.m. the applicant had an opportunity to speak to a lawyer. On these facts the applicant did not have an opportunity to instruct and retain counsel, without delay, resulting in a further breach of the applicant’s s. 10 (b) rights.

SECTIONS 7 AND 12 CHARTER RIGHTS

[50] The applicant alleges that as a result of the assault and threat his ss. 7 and 12 Charter rights were breached.

[51] Section 7 of the Canadian Charter of Rights and Freedoms states,

Every person 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.

[52] Section 12 of the Charter states,

Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[53] An assault is an application of force without consent. The officer, by slapping the applicant, applied some force to the applicant, without the applicant’s consent and thereby committed an assault for which there was no justification. The assault along with the threat represents a breach of the applicant’s ss. 7 and 12 Charter rights. The applicant was deprived of the security of his person and suffered cruel and unusual treatment. In making that finding I have had regard to the authorities set out below.

[54] Regardless of the lack of evidence of a visible injury, I consider the assault to be serious in nature, especially in regard to the context surrounding the assault. At the time the assault occurred, the applicant was lying in a hospital bed with one wrist handcuffed to the bed. He was suffering from a gun shot wound, and a broken leg. He was in pain and on medication. He was awaiting surgery. The applicant was vulnerable and not physically able to defend himself.

[55] I acknowledge that Officer MacLellan was provoked by insults directed at him by the applicant. However, such provocation is no excuse. I would expect an experienced police officer to act professionally and should be able to ignore any such provocation.

[56] In R. v. Woodland [2001] B.C.J. No. 2113, it was determined that a police officer without warning struck a package of cigarettes and a lighter out of the hands of an accused who had been arrested for impaired driving. It alleged that such action on the part of a police officer, along with comments made by the officer, caused the accused to be afraid. On these facts M.J. Brecknell J. ruled that, the accused’s s. 7 and 12 Charter rights were breached.

[57] In R. v. Spanier [1996] B.C.J. No. 25525, the accused was arrested for impaired driving and at the police station resisted exiting a police vehicle. As a result, a police officer sprayed pepper spray in the accused’s face. This police response was found to be a “painful assault” and was a s. 7 Charter violation.

[58] R. v. Kemper [1989] O. J. No. 3310 is a decision of K.A. Langdon J. of the Ontario Court of Justice. The accused struck an officer on the head from behind and attempted to flee but was struck to the ground. He was, thereafter, the subject of gratuitous physical abuse by the police. The Court ruled that the abuse was a violation of the accused’s s. 7 rights.

[59] After reviewing the above authorities and others set out in the case books provided by counsel, and on the facts before me, I find therefore that the assault suffered by the applicant and the threat made thereafter, breached the applicant’s s. 7 and 12 Charter rights.

STAY OF PROCEEDINGS

[60] In R. v. Babo, 2014 SCC 16, [2014] 1 S.C.R. 309, the Supreme Court of Canada addressed the principles of law regarding stays of proceedings, and I note the following.

[61] A stay of proceedings for an abuse of process will only be warranted in the clearest of cases.

[62] There are two types of state conduct which may warrant a stay. The first is conduct that compromises the fairness of the accused’s trial.

[63] The second type is conduct that does not threaten trial fairness but risks undermining the integrity of the judicial process. This is often said to be the residual category.

[64] Both categories are determined using the same test, set out as follows:

i there must be prejudice to the applicant’s right to a fair trial or to the integrity of the justice system that will be manifested, perpetrated or aggravated through the conduct of the trial or by its outcome;

ii there exists no alternate remedy capable of redressing the prejudice; and

iii where there is still uncertainty over whether a stay of proceedings is warranted after considering steps 1 and 2, the court must balance the interests in favour of granting a stay against the interest society has in having a final decision on its merits.

[65] When the residual category is invoked, as it is in this matter before me, the first stage of the test is met when it is established that the state has engaged in conduct that is offensive to societal notions of fair play and decency and that proceeding with a trial in the face of such conduct would be harmful to the integrity of the justice system.

[66] In the matter before me the assault and threat, as detailed in the evidence, can only be said to be offensive to societal notions of fair play and decency. As noted, what is most offensive is the context surrounding the assault.

[67] At the second stage, the focus is on whether an alternative remedy short of a stay will adequately disassociate the justice system from the conduct. As a remedy for the wrongful conduct of the police, Crown suggested that an appropriate and alternate remedy would be to consider such conduct to be a mitigating factor on sentencing. While I recognize this to be an alternative remedy, I disagree that such a remedy is appropriate, having regard to the authorities discussed below.

[68] Finally, the court must decide whether staying the proceeding or having a trial despite the impugned conduct better protects the integrity of the justice system. The court must consider the nature and seriousness of the conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the applicant and the charges faced by the applicant.

[69] A robbery by firearm is a very serious charge. The use of firearms in the commission of crimes in this country is troubling and at times, rampant. However, given the context within which the applicant was assaulted, if not addressed, would cause the justice system to suffer.

[70] In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, the Supreme Court of Canada discussed whether a sentence reduction is an appropriate remedy under s. 24(1) of the Charter. The accused had been charged with impaired driving and fleeing police.

[71] The assault suffered by the accused in Nasogaluak resulted in serious injuries. The accused was punched in the head three times by a police officer and was punched two times in the back, breaking some ribs which lead to a punctured lung. This use of force was not reported by the police.

[72] Immediately after the assault the applicant did not have any sign of an injury and did not request medical treatment although he told an officer that he was having difficulty breathing.

[73] The trial judge ruled that the police used excessive force and reduced the accused’s sentence to a 12-month conditional sentence.

[74] The Supreme Court confirmed that while a trial judge has a discretion in sentencing but cannot override the legislative intent and impose a sentence under a statutory minimum.

[75] The Court also noted that it wasn’t necessary to invoke s. 24(1) to affect an appropriate reduction in sentence, although it was conceded that in exceptional circumstances a sentence outside of statutory limits may be possible under s, 24(1) of the Charter (para. 21). A reduction of sentence can be invoked by virtue of the sentencing provisions found in the Criminal Code (s. 718 to 718.2). as stated at para. 32,

“Courts must guard against the illegitimate use of power by the police against members of our society, given its grave circumstances.”

[76] It was said at paragraph 38,

“The substantial interference with Mr. Nasogaluak’s physical and psychological integrity that that occurred upon his arrest and subsequent detention clearly brings this case under the ambit of s. 7.”

[77] A Court must consider whether a s. 24 (1) Charter remedy is necessary to address the consequences of a Charter breach or whether this can be accomplished through the sentencing process (para. 39).

[78] Incidents alleged to have constituted a Charter breach can be considered in sentencing as mitigating factors (para. 48).

[79] Section 24(1) factors can be accounted for through the Criminal Code without the need to uses s. 24(1) (para. 55).

[80] In R. v. Markowska, 2004 ONCJ 332, [2004] O.J. No. 5153, the accused sought a judicial stay of proceedings because his Charter rights were violated by the police by the use of force in the execution of a search warrant. It was acknowledged that the stay remedy is only to be used in the clearest of cases and is to be used with an abundance of caution (para. 31).

[81] The Court in Markowska, made reference to the decision of the Supreme Court of Canada in Tobias v. Minister of Citizenship and Immigration, 1997 SCC 322, [1997] 3 S.C.R. 391, (para. 33) in which it was said at para. 89 of Tobias,

“Most often a stay of proceedings is sought to remedy some unfairness to the individual that has resulted from the state’s misconduct.

[82] In Markowska it was said that the breach was serious and egregious enough that it detrimentally affected the integrity of the judicial system (para. 36).

[83] In R. v. Tran, 2010 ONCA 471, the accused was arrested for a home invasion. At the police station he was beaten to the extent he suffered a broken jaw and injuries to his ribs. The trial judge ruled that the accused’s s. 7 and 12 Charter rights were violated but declined to grant a stay of proceedings. The matter was appealed, and it was determined that the trial judge erred in failing to grant a stay of proceedings under s. 24(1) of the Charter.

[84] I note and adopt the following principles set out in the Tran decision:

i. “Nasogaluak” recognizes that excessive force by the police can be remedied through a reduction of sentence either by application of the remedial provisions of the Charter or through the sentencing provisions of the Criminal Code.” (para. 82).

ii. The common law abuse of process doctrine is designed to protect the fundamental principles of justice that under lie the community’s sense of fair play and decency…The objective of a stay as a remedy is to maintain public confidence in both the legal system and the judicial process” (para. 83).

iii. a stay is an exceptional remedy only to be employed as a last resort (para. 85).

iv. The determination of whether a sentence reduction or a stay of proceedings is the appropriate and proper remedy in the circumstances will depend upon the application of the appropriate principles and the facts of each case (para. 91).

v. A sentence reduction may be appropriate when taking into account the punishment already handed out (para. 92).

vi. the nature and degree of the state misconduct may result in the demand for a remedy that goes beyond an adjustment to the sentence (para. 93).

[85] In Tran, the Court of Appeal, ruled that the appropriate remedy was a stay of proceedings and described the police conduct as despicable, regardless of motivation (para. 97).

[86] In the authorities R. v. Kemper, R. v. Woodland and R. v. Spanier, all cited above, the appropriate remedy was said to be a stay of proceedings.

[87] The assault by Officer MacLellan, while probably somewhat painful, did not result in injury and left no marks. On that point alone, it would have been a minor assault and not the clearest of a case to impose a stay of proceedings. However, in my opinion, given the context of the assault and the s. 1(b) Charter breaches, a stay of proceedings is the appropriate remedy, and no appropriate alternate remedy exists. Regarding the context and at the risk of repeating myself the applicant, at the time of the assault was handcuffed to his hospital bed. He was in pain and suffering from a broken leg, the result of a gunshot wound. He was awaiting surgery as the bullet needed to be removed and the leg repaired. The applicant, while guilty of provoking the officer, was helpless, vulnerable and could not defend himself. The officer took advantage of the applicant’s situation. Provocation was not excuse. There was no justification for what occurred.

[88] Further there was no real effort made to investigate the applicant’s allegations.

[89] I find the conduct in issue was harmful to the integrity of the judicial system and this court must distance itself from such behaviour by staying the proceedings.

RULING

[90] The application by the accused Andry Korkis is granted and these proceedings are stayed.

Bielby J. Released: January 6, 2023