COURT FILE NO.: CR-22-134-00 DATE: 2023 04 21

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Erryl Taggart, for the Crown / Respondent Respondent

– and –

DEAN McALPINE Applicant Lenny Hochberg, for the Applicant

HEARD: March 6-9, 2023

REASONS FOR JUDGMENT ON Charter APPLICATION J.M. Woollcombe J.

Introduction

[1] The applicant, Dean McAlpine, was arrested on January 21, 2021, following an investigation the Canada Border Services Agency (“CBSA”) and Royal Canadian Mounted Police (“RCMP”) conducted between July 2020 and January 2021. He is charged, with a co-accused, on a multi-count indictment with offences including conspiracy to export cannabis and possession of cannabis for the purpose of exportation. Mr. McAlpine is charged alone with multiple offences of possession of cannabis for the purpose of exporting and possession of proceeds of crime as well as charges relating to possession of a prohibited firearm and of a high capacity magazine and possession of cocaine for the purpose of trafficking.

[2] The applicant’s trial is scheduled to commence on June 12, 2023 for 3 to 4 weeks with a jury. I heard this application as designated case management judge.

[3] Mr. McAlpine brings a pre-trial Charter application seeking a stay of proceedings under s.24(1), or in the alternative, an order excluding evidence on the basis of violations of ss. 7 and 10(b). First, he submits that by deploying a taser on him during his arrest, while he was being fully compliant with police directions, the police used excessive force and breached his s. 7 right to security of the person. Second, he submits that the police failed to provide him with his rights to counsel as protected under s. 10(b) of the Charter. More specifically, he alleges that rather than contacting his counsel of choice at the scene of the arrest, police made a call to duty counsel. In addition, he says that police failed to properly inform him of his right to consult with counsel in private and failed to facilitate his right to speak to counsel privately in the police vehicle at the scene of his arrest.

[4] The Crown submits that there was no breach of ss. 7 or 10(b) of the Charter. If there was, the Crown says that the remedy is not a stay of proceedings, but accepts that if there was a s. 7 breach, potential remedies could include the exclusion of evidence seized on the applicant’s arrest or a reduction of sentence.

Factual and credibility findings

[5] In support of his application, Mr. McAlpine provided an affidavit and testified about the events surrounding both his arrest at 62 Forest Manor Road and about his rights to counsel. Four RCMP officers were called by the Crown:

• Officer Ross was one of the arresting officers and deployed the taser;
• Constable Owens was involved in the arrest;
• Constable Parray arrived at the scene after the applicant’s arrest as he was being put in handcuffs. He later transported him to the airport detachment, during which time he asked him nothing. He had little relevant evidence to offer on the application;
• Constable Johal was not present for the arrest, but he provided the applicant with his right to counsel at the scene, facilitated a call with duty counsel from the police car, and testified about the applicant’s opportunity to speak with counsel of choice on arrival at the police division.

[6] The other important evidence is a video recording made by a camera mounted in the lobby area of the building in which the arrest took place. It was played numerous times during the application and was filed as an exhibit.

[7] In many cases in which there are allegations of excessive police force, the trier of fact receives helpful information from sources other than the complainant and subject officers. This may include expert witness testimony respecting police training and the use of force, as well as police use of force reports: R. v. DaCosta, 2015 ONSC 1586, at para. 104. The parties adduced no such evidence on this application.

[8] I will not set out the details about the investigation that led to the applicant’s arrest as this background is largely irrelevant to the application. What happened on January 10, 2021 is relevant.

[9] That day, officers in the RCMP Emergency Response Team were briefed on a Tactical Operations Plan that had been developed with the objective of arresting the applicant, Mr. McAlpine, for Criminal Code, R.S.C., 1985, c. C-46 (“Code”) and Controlled Drugs and Substances Act, S.C. 1996, c. 19 offences. The goal was to conduct the arrest in a manner that was safe for Mr. McAlpine, the officers involved, and the public. The method planned was a “pedestrian ambush” in which plain clothes arresting officers were to get close to the applicant without being seen and quickly and efficiently arrest him.

[10] At the briefing, the officers were shown a photograph of Mr. McAlpine and provided with information that was relevant to their assessment of the risks involved in the anticipated arrest. This information included that:

• Mr. McAlpine was arrestable for exporting a controlled substance;
• He was 6 foot 6 inches tall and weighed 220 pounds;
• He was under a firearms prohibition with an indefinite expiry;
• He was known to conduct “lots of heat checks”;
• He had a lengthy history of involvement with law enforcement including:
  • 2008 convictions for possession of a schedule II substance and failure to comply with a recognizance;
  • 2013 convictions for dangerous operation of a motor vehicle and possession of a firearm.
• He also had a lengthy history of withdrawn offences, which counsel for the applicant agrees were a relevant consideration for the police who planned the execution of his arrest. These included:
  • 2009 possession offense (schedule II and III);
  • 2009 possession of property obtained by crime;
  • 2009 resist arrest;
  • 2013 attempt to commit murder using a firearm;
  • 2013 discharge a firearm;
  • 2013 aggravated assault;
  • 2013 multiple other firearm related offences;
  • 2019, 2020 multiple domestic related offences;
• He had known associations to the Hells Angels Motorcycle Club.

Evidence and findings relating to the applicant’s arrest

[11] Both Constable Ross and Constable Owens attended the morning briefing and were aware of the information presented about the applicant.

[12] Constable Ross testified that at around 15:28 on January 10, 2021, he learned that Mr. McAlpine was to be arrested at 62 Forest Manner Road. At 15:28:02, the applicant can be seen on the video waiting at the elevator bank, along with six civilians. Shortly after, the video shows officers running down the hall from the lobby and towards the elevator bank. The first officer rounded the corner into the elevator bank and entered the applicant’s view at 15:28:08.

[13] Constable Ross was the third officer to run in. He had with him intervention options including a firearm, taser and pepper spray. As they rounded the corner, the officers ahead of him were yelling at the applicant to get down and show his hands. The video shows Constable Ross rounding the corner at 15:28:09, holding and pointing his taser. At that point, the video clearly shows that the applicant’s hands were up in front of him and that he had dropped the gift bag he had been holding.

[14] The video shows that by 15:28:11, two seconds after Constable Ross first saw him, the applicant was on the ground. Constable Ross testified that at that point, the applicant’s right hand was visible, but said that he was worried about the possibility of him having a firearm, based on the information he had received in the briefing. He did not think that the applicant was complying with the police directions to show his hands as his left hand was under his body and not visible. He said that he would not have gone in close proximity to the applicant to pull his arm out. Considering the applicant’s size, the presence of civilians and the safety of the officers and members of the public, as well as what he viewed as a lack of compliance with the direction to show his hands, Constable Ross decided to use his taser.

[15] Constable Ross deployed his taser twice. His purpose in using the taser was to effect pain compliance and incapacitation. He explained that deployment involves shooting two darts on a copper line. They spread out. To be effective, both need to be deposited onto the target’s skin and then an electric shock is given in order the incapacitate the subject. As he watched the video, he said that his first deployment was at 15:28:13, but that one of the two probes did not hit the applicant’s skin, resulting in it not being effective. Consequently, he deployed the taser a second time in what he called a “drive stun,” a technique in which he placed the taser directly on the applicant’s lower leg and administered a shock. It was his evidence that this was done at 15:28:18-20. He said that after that point, the applicant was completely compliant.

[16] Under cross-examination, Officer Ross agreed that his review of the video revealed that he had been able to see the applicant’s left hand at 15:28:23. He testified that at this point, he had already deployed the taser. He did not agree that this was after the first taser deployment, but before the second one. Nor did he agreed that the flash of light that can be seen at 15:28:25 was from his deployment of the drive stun. While he agreed that the applicant’s hand can be seen shaking on the video, which is clearly visible at 14:28:27, and agreed that this could be from the drive stun, and that at that point, the applicant’s left hand was visible, he insisted that he would never have deployed the taser if it had not been warranted.

[17] As the cross-examination progressed, Constable Ross testified that the applicant’s lack of compliance, and thus his reason for deploying the drive stun after the failed first taser deployment, may have been with his right arm, rather than his left, as he had initially testified. His evidence was not entirely clear. He seemed to agree that he had been able to see the left hand when the taser was deployed and that the applicant had not been resisting or challenging police, but also said that he would not have used the taser had its use not been warranted. Ultimately, his position was that he assumed he deployed the taser because of non-compliance by the applicant, but that the non-compliance may have been when the other officers, who were by the right arm, were trying to place him in handcuffs.

[18] The applicant said in his affidavit that as he was approached by the officers, he did as he was instructed and dropped to the ground. He said he showed his hands and was not a threat. He did not resist, threaten, or use violence. He felt heavy force applied to him as he was pinned on the ground. According to him, suddenly and without warning, he was tasered.

[19] Under cross-examination, he said that the police were loud as they rounded the corner and that he put his hands up and then dropped to the ground as instructed. As he lay on his left side, he was not sure if his left hand was initially under his body.

[20] The applicant agreed under cross-examination that none of the officers had put weight on him. He did not recall one of the officers pulling his right arm out, but testified that the officer had a knee on his upper body. He was pretty sure it was a knee and not a fist.

[21] Constable Owens also testified about the arrest. He was the sixth officer to enter the elevator bank, rounding the corner at 15:28:15 to assist as needed. At that point, he said that the applicant was already on the ground with officers around him, as the video confirms. As he approached, he heard other officers saying to show them his hands. He said nothing.

[22] Constable Owens approached the applicant at 15:28:19, with the goal of assisting in placing him in handcuffs. He described the applicant as moving around on the ground. He said that there was a moment after the applicant had been told to put his hands out when he looked like he was dipping his right hand to his waist, where he was wearing a satchel. Constable Owens was concerned that he was trying to access a firearm.

[23] In the period between 15:28:21 and 15:28:32, Constable Owens described himself delivering a strike to the applicant’s right shoulder and taking a position of control so that he could apply handcuffs. This was not visible to me in the video, as there were other officers blocking the sightlines.

[24] Asked about the taser deployment, Constable Owens said that the first deployment had been before he rounded the corner at 15:28:16, as he recalled seeing the taser debris strewn about. He did not know the number of times the taser was deployed.

[25] Based on my review of the evidence and video, I find:

• At 15:28:08, the first officer rounded the corner to the elevator bank. Almost immediately, likely in response to a command given by that first officer, the applicant raised his hands and dropped the gift bag he had been holding;
• Constable Ross was the third officer to round the corner into the elevator bank at 15:28:09. There is no doubt that at that point, the applicant had dropped the gift bag and raised his hands, even if Constable Ross did not immediately see this;
• At 15:28:10, the applicant was on the ground on his left side, with his back to the wall, his left hand under his body and his right hand visible to the officers to the right of him;
• Constable Ross approached the applicant’s feet while the first two officers were to his right with their firearms drawn. At the same time, other officers in the Tactical Unit arrived;
• While the time of the first taser deployment is not clear on the video, it appears from Constable Ross’s evidence to have been between about 15:28:13 and 15:28:16. It was certainly before 15:28:16 when Constable Owens rounded the corner.
• Over the following seconds, until 15:28:22, the three initial officers moved the applicant to a position face down on the floor. By 15:28:22, his left hand was clearly visible to police;
• The flash of light from the drive stun to the applicant’s left leg is at about 15:28:24-25. The applicant’s body appears to be responding to the tasering at 15:28:27-28, where his left hand shakes. At this point, his left hand was clearly visible and was not concealed under his body;
• Between 15:28:21 and 15:28:32, the applicant was punched in the shoulder by Constable Owens and then was handcuffed. The defence takes no issue with this administration of force;
• The applicant was completely compliant at all points after this.

[26] In his affidavit, the applicant said that after being tasered, he had a barb from one of the darts stuck in the back of his thigh for three weeks, though he was inconsistent between his affidavit and evidence as to which thigh. He also testified that he had been in shock after, and that walking had been painful. He agreed that he did not see a doctor while awaiting his bail hearing and had not asked for any medical aid.

[27] In his affidavit, the applicant described having suffered from ongoing pain, flashbacks, loss of sleep, nightmares, anxiety and post traumatic stress disorder (“PTSD”) since being tasered. He has not seen a psychologist or social worker to discuss any of these issues and agreed that he had not ben diagnosed with PTSD, but felt it from his experience. In re-examination, he explained that he had not seen a doctor about the mental health effects of being tasered because he had been on house arrest and unable to move around without his sureties.

Evidence and findings relating to the applicant’s right to counsel

[28] Two very different versions of events respecting rights to counsel were presented by the applicant and Constable Johal.

[29] In his affidavit, the applicant said that at the time if his arrest, he was asked if he wanted to speak to a lawyer. He said he provided the name and phone number of his lawyer to the officer. He said he was placed in the rear of the police car and then given a mobile phone and was told he could speak with a lawyer. He expected his own counsel, but the person on the other end of the phone was duty counsel. The applicant said he was uncomfortable speaking to a stranger on the phone because he did not know who it was or whether it was a lawyer. He also said that the door to the police car was open and that one of the officers was standing beside him.

[30] Under cross-examination, the applicant confirmed that the officer had read to him his rights to counsel and that he had understood those rights. It was suggested to him that he could not remember the lawyer’s name at the time. He denied this and said he had provided counsel’s telephone number to the officer because he had it memorized, which he demonstrated in court by giving the number.

[31] The applicant could not recall if the officer had asked if he wanted to speak to duty counsel. He was unequivocal that he had told the officer the name of his counsel. He testified that he spoke to duty counsel and that while he did so, the officer was right beside him with the car door open. He disagreed that the door had been closed. He agreed that at the police division, he had been able to speak with his own counsel.

[32] Under re-examination, the applicant said that outside the police car, while he spoke to counsel, there had been two officers whom he had been able to hear talking while he spoke to duty counsel.

[33] Constable Johal, who had been a constable in the RCMP airport detachment since 2018, testified as to his understanding of the right to counsel generally. He understands that an accused has the right to contact any lawyer of choice as soon as possible. To implement this, he affords detainees the ability to contact counsel either in the police vehicle, or, if this is not possible because of security or safety issues, at the detachment. He testified that he had never been present when a detainee was on the phone with counsel as he understands that privacy needed to be afforded for these calls.

[34] On January 21, 2021, following the applicant’s arrest, Constable Johal was assigned to take custody of him and to provide him with his rights to counsel. He took custody of the applicant at 15:42. Beginning at 15:43, he read verbatim the “script” that he had been given at the briefing that morning. That script was copied a few hours later and placed in his notebook. It is reproduced in Exhibit 4.

[35] Constable Johal testified about reading the script. After advising the applicant of the offences for which he was under arrest, the script includes the following, with the answers given by the applicant recorded:

You have the right to speak to a lawyer in private without unreasonable delay. You may call any lawyer you want. There is a 24 hour telephone-service available which provides a legal aid duty lawyer who can give you legal advice in private. The advice is given without charge and the lawyer can explain the legal aid plan to you. If you wish to contact a legal aid duty lawyer I can provide you with a telephone number.

Do you understand? Yes, I do

Do you want to call a lawyer? Yes, I do __

You will be transported to the nearest police station at Toronto Pearson International Airport, T1 cells, RCMP where you will be provided with the opportunity to contact a lawyer of your choice in private, within approximately _____ minutes. If you do not wish to wait I can provide you with a cell phone to contact your lawyer right now, but I can only provide you with a semi-private environment. If you provide me with your lawyer’s telephone number, I will dial it for you and you will remain alone in the Police vehicle in order to speak with your lawyer. You will be able to contact your lawyer again when we get to the Police station.

You do not have to say anything but anything you do say may be given in evidence.

Do you understand? Yes I do

[36] Constable Johal was asked about what it meant when he said that he could provide a “semi-private environment.”. He explained that this meant that the detainee would be placed alone in the police vehicle, but that there would be an officer walking around outside the car, making it not as private as at the detachment, where there is a private room with a closed door. Semi-private means that officers do everything they can to facilitate privacy, but that if the person in the car is loud, it may be possible to hear from outside, where they remain.

[37] Constable Johal said that after the applicant was placed in the car, he indicated that he wanted to speak to his own counsel. The officer asked for the information about counsel. He testified that the applicant tried to provide a name, but only had partial information, and did not have the full name or phone number. With the information that the applicant did provide, Constable Johal tried to look up the lawyer’s name, but could not find it. Constable Johal testified that the applicant wanted to speak to duty counsel. As a result, he said he called duty counsel and told the applicant he could speak to duty counsel right then and that they could look into counsel’s name at the detachment and that the applicant would have another call then. The applicant spoke to duty counsel from 16:10 to 16:17 and said he understood duty counsel’s explanation of his rights.

[38] Under cross-examination, it was suggested to Constable Johal that the applicant had given him his counsel’s name and phone number. The officer said that this did not happen and that had the applicant done so, he would have given him the right to call counsel of choice right then.

[39] Constable Johal agreed under cross-examination that there were details about the events that he did not recall and had not recorded. For instance, he had not recorded that he read a prepared script. He had no record of what partial name of counsel had been provided by the applicant. He did not record the colour of the police car he drove that day or its make or model. He could not recall if the applicant had been handcuffed with his hands in front or behind him.

[40] Constable Johal could not recall and had made no note as to whether, when the applicant spoke to duty counsel, the police car door had been open or closed. He testified, however, that had he not closed the door, he would have recorded this in his notes. His explanation was that it would be out of the ordinary to leave the door open, as a result of which this is something he would have recorded in his notes. He was asked if there were any circumstances under which he would not close the door and said he did not think so. He explained that police could close the door and walk away, but that this poses a flight risk. Instead, he said that he closes the door and stays outside so as to maintain custody of the detainee and facilitate the right to counsel. He did not hear any of the conversation between the applicant and duty counsel.

[41] Constable Johal testified that the applicant was taken to the RCMP cells at the airport detachment, arriving at 17:00. There was no conversation during the transport. He was lodged in a cell, and at 17:13, his counsel of choice was contacted. The applicant spoke to counsel between 17:16 and 17:25, after which he confirmed that he understood the advice he had been given. Constable Johal had no memory as to how he had obtained counsel’s full name or telephone number at the detachment.

[42] At 17:45, after the police had determined that there would be additional charges, the applicant was arrested for them and again provided by Constable Johal with his rights to counsel. At 18:07, he was again afforded the opportunity to speak with his counsel and he finished that second call at 18:15.

[43] As this summary makes clear, there is a divergence between the evidence of the applicant and Constable Johal in a number of respects.

[44] I find the evidence of Constable Johal respecting whether the applicant provided him with counsel’s name and number at the scene of the arrest to be more credible. The officer specifically told the applicant that he would facilitate a call to counsel immediately if the applicant had counsel’s information. He testified that he would have done so had he received information that would have made this possible. The officer understood the right to counsel of choice and conveyed it to the applicant. Given this, and the manner in which he facilitated the applicant’s exercise of the right over the relevant period, I accept Constable Johal’s evidence that he would have permitted a call to counsel of choice had he received either counsel’s name or number.

[45] While the applicant was able to provide counsel’s name and recite his phone number in court, I do not accept his evidence that he did so accurately to the officer at the time. Had he done so in the manner that he says he did, I find that the officer would both have recorded that information and permitted the call to counsel of choice. I conclude that after trying to obtain the number for the partial name of counsel he was given, Constable Johal was not capable of facilitating a call with counsel of choice until they were at the detachment and obtained whatever further information as needed to do so.

[46] The applicant’s evidence that he was certain that he provided Constable Johal with counsel’s name and telephone number, evidence that I do not accept as credible or reliable, causes me to be concerned about the reliability of his evidence respecting his right to counsel more generally.

[47] On the issue as to whether the police vehicle door was open or closed, the applicant was unequivocal that the door was open and that the police outside were close enough that he could hear them speaking.

[48] Constable Johal fairly agreed that he did not have any memory as to whether the door was open or closed. While this certainly leaves open the possibility that the applicant’s memory is better and that his evidence should be accepted, I am not persuaded to do so. On the basis of the evidence as a whole, I find that the police vehicle door was closed. In reaching this conclusion, I rely on the following:

• Constable Johal said that what is meant by an environment that is “semi-private” is not that the vehicle door is left open. He said that usually, the vehicle door is shut but that officers are outside the vehicle, raising the potential for them to hear if the detainee is loud;
• Constable Johal could think of no scenario under which the police vehicle door would be left open while a detainee spoke to counsel. He recognized that this would not afford any privacy;
• While he made no note of closing the door, and fairly conceded having no memory about this, Constable Johal was clear that had he taken the unusual step of leaving the door open, he would have made a note of having done so. This evidence makes sense in the context;
• As demonstrated by his evidence respecting having provided counsel’s name and telephone number to Constable Johal, evidence I have rejected as neither credible nor reliable, the applicant’s memory of the events surrounding being given his rights to counsel is not reliable.

Analysis

Were the applicant’s s. 7 rights breached by the police use of the taser while effecting his arrest?

[49] Section 7 of the Charter provides that:

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.

[50] The applicant has the burden of establishing, on a balance of probabilities, that there was a breach of his s. 7 Charter rights.

[51] The use of force by police is constrained by the Code. Section 25 of the Code provides that a police officer is justified in using force to effect a lawful arrest provided that the officer acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. The allowable force is “constrained by the principles of proportionality, necessity and reasonableness”: R. v. Nasogaluak, 2010 SCC 6, at paras. 32-34. The use of excessive force in arresting a person has been held to be a breach of s. 7 of the Charter: R. v. Walcott, at para. 22.

[52] Reviewing the police use of force in an arrest context requires consideration of the reasonableness of the force “in all the circumstances”: R. v. Asante-Mensah, 2003 SCC 38, at paras. 74-76. This means considering the actions of the police bearing in mind what a reasonable officer would have done in the same circumstances. It takes into account all of the information that the officer had about the urgency and risks posed, as well as the knowledge, training, and experience of the officer: DaCosta at para. 105; Nasogaluak at para. 34.

[53] There can be no question that in the course of effecting arrests, police officers must exercise their discretion and judgment in challenging and rapidly evolving circumstances. Second guessing decisions that had to be made quickly and without the benefit of time to reflect and weigh all possible options is to be avoided. Assessments of police conduct must not rely too heavily on “reflective hindsight,” a luxury that officers acting in real time do not have: R. v. Cornell, 2010 SCC 31, at paras. 23-24.

[54] Related to this is the importance of recognizing that because of the dynamic situations in which arrests may take place, and the need to make difficult decisions quickly, police are to be afforded some leeway for the choices that they make. They are not to be judged against a standard of perfection: Nasogaluak at para. 35. In keeping with this idea, it is not appropriate to analyse police conduct in slow motion, frame by frame, after the fact. Doing so necessarily distorts the analysis: R. v. Rigo, 2017 ONSC 3694, at para. 73.

[55] As set out in Walcott, at para. 24, among the circumstances to be taken into account in assessing the reasonableness or necessity of the force used are the following:

(i) the suspect was acting in a hostile manner towards the police, resisting arrest or failing to comply with an officer's arrest procedure; (ii) the relative sizes and weights of the officer and the suspect; (iii) the officer was at risk of harm; (iv) the police knew the suspect had a history which might represent a threat to them; or, (v) the police understood that weapons might be on the premises.

R. v. Mulligan (2000), 142 C.C.C. (3d) 14 (Ont. C.A.), at para. 41; R. v. Markowska, 2004 ONCJ 332, [2004] O.J. No. 5153 (Ont. C.J.), at para. 27; R. v. Spannier, [1996] B.C.J. No. 1325 (B.C. Prov. Ct.), paras. 76 and 77; R. v. Gladue, [1993] A.J. No. 1045 (Alta. Prov. Ct.), paras. 18 and 19.

See also: R. v. Morias, 2023 ONSC 1299, at para. 48.

[56] In this case, Constable Ross used force by deploying the taser and then using the drive stun. Force was also used by Constable Owens also used force because he punched the applicant in the shoulder. I did not understand the applicant to take any issue with Constable Owens’ punch. He does, however, submit that Constable Ross’s use of the taser was excessive.

[57] I have been able to carefully review, second by second, what took place at the time of the applicant’s arrest. However, this sort of microscopic analysis of what occurred, with the benefit of hindsight, is not the lens through which the police conduct is to be assessed. All of the events at issue took place between 15:28:08, when the first officer rounded the corner to the elevator bank where the applicant was standing, and 15:28:35, the time at which the applicant was completely under police control and was being handcuffed. This is less than 30 seconds, start to finish.

[58] In evaluating Constable Ross’s use of the taser, the information he knew about the applicant from the morning briefing is significant. This included that he was a large man at 6 foot 6 inches tall, weighing 330 pounds. He was arrestable for drug exportation. He had been convicted of possession of a firearm. He had been previously charged with firearms offences, a factor that was agreed to be relevant for the police to consider. In sum, this was to be a high risk arrest in which, as Constable Ross testified, police needed to consider the safety of the applicant, the officers, and the public.

[59] The arrest took place in the elevator area of the lobby of a large residential building. The applicant takes issue with the police choice of this location because of the presence of civilians in the immediate vicinity. While this location was not the one anticipated for the take-down at the morning briefing, there is no evidence that this was not a legitimate location for the arrest to take place.

[60] What is clear is that as the police entered the elevator bank, the applicant was standing in an area where there were civilians waiting for the elevator. From the time of the initial police instructions at 15:28:08, the applicant was largely compliant. Almost immediately, he dropped the bag he had and lay on the floor. From that point onward, there were at least three officers immediately around him, including Constable Ross.

[61] I accept that Constable Ross was not able, initially, to see the applicant’s left hand as he lay on his side with his back to the wall. The applicant was moving on the ground. This gave rise to legitimate concerns as to whether the applicant was being completely compliant with the police directions. In light of everything that Constable Ross knew and the need to effect a quick and safe arrest, I find that Constable Ross’s initial decision to deploy the taser was neither unreasonable nor excessive.

[62] It is common ground that the initial deployment did not result in contact with the applicant’s skin and so did not effect the result it was intended to. That said, shortly after, the applicant’s left hand was on the floor exposed. It had to have been visible to Constable Ross, who was by the applicant’s feet. The critical question is whether Constable Ross’s subsequent administration of the drive stun to the applicant’s left leg was reasonable and necessary, or if it was excessive.

[63] Things obviously evolved quickly. However, Constable Ross’s explanation for his second use of the taser was not internally consistent. Initially, he said it was because the applicant’s left hand was not visible. When shown the video, which makes clear the left hand was visible for at least a couple of seconds before he used the drive stun, his evidence changed. He suggested that perhaps he had deployed the drive stun because the other officers were having difficulty applying the handcuffs. This does not correspond to Constable Owens’ evidence, who said that he used a punch in order to ensure that the applicant’s right hand was not able to reach his satchel and to enable officers to apply the handcuffs. He does not appear to have been aware of the drive stun or to have had any difficulties applying the handcuffs.

[64] In my view, before administering an electric shock to the applicant’s leg with the drive stun, Constable Ross needed to be satisfied that it was necessary. The evidence before me does not support a finding that he satisfied himself it was necessary at the time, given his inability to explain what the necessity really was.

[65] Nor does it appear to me that in the circumstances, the drive stun was reasonable. By the time it was used, the applicant was lying on his stomach with his left hand exposed. The officers on his right side were controlling him. There were three officers in close proximity to him. There were at least 6 other officers in the immediate vicinity. There were no civilians in the immediate area. The police had the applicant subdued and there appears to have been no ongoing risk identified by Constable Ross prior to utilizing the drive stun. Doing so cannot be said to have been reasonable or proportionate. I find that doing so was, in all of the circumstances excessive.

[66] In reaching this conclusion, I am mindful of the evidence of Constable Owens who was the officer trying to apply the handcuffs. To the extent that he had concerns about the applicant reaching for a weapon with his right hand, he administered a punch, a lower application of force than a taser. I accept that officers are not expected to measure their applications of force with exactitude. However, it is significant that Constable Owens’ viewed a punch as sufficient force to respond to his specific concern about the applicant’s hand reaching for his waist where he had a satchel and potentially a firearms. In my view, Constable Ross’s decision to use a taser, in the absence of any particularized or identifiable safety concerns, suggests that the taser was significantly more force than was necessary or reasonable in all of the circumstances.

[67] I conclude that Constable Ross’s use of the taser was excessive and breached the applicant’s right to security of the person as protected by s. 7 of the Charter.

Were the applicant’s s. 10(b) rights violated?

[68] Initially, the applicant’s s. 10(b) argument was framed as him having been deprived the right to counsel of choice and as him not having been afforded the right to consult with counsel in private. After Constable Johal’s evidence about the script he used, including language about the right to a “semi-private” environment, the applicant’s position expanded to include a submission that the script did not comply with the Charter right to be able to consult with counsel in private, and that this represents a systemic problem with the RCMP.

[69] Section 10(b) of the Charter protects the right of a person who has been detained or arrested to obtain legal counsel. Section 10(b) imposes on the police the duty of informing the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel. If the detainee indicates a desire to exercise this right, the implementational obligation imposed on the police is to provide the detainee with a reasonable opportunity to exercise the right and to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity: R. v. Bartle, [1994] 3 S.C.R. 173, at para. 18; R. v. Taylor, 2014 SCC 50, at para. 23; R. v. Willier, 2010 SCC 37, at para. 29; R. v. Suberu, 2009 SCC 33, at paras. 37-39.

[70] When a detainee opts to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles him or her to a reasonable opportunity to contact that chosen counsel: R. v. McCrimmon, 2010 SCC 36, at paras. 17-18.

[71] It is the applicant who bears the burden of establishing, on a balance of probabilities, that his Charter right was breached.

a) Was there a violation of s. 10(b) because counsel of choice was not contacted?

[72] The applicant submits that the police breached his right to counsel because his counsel of choice was not contacted while they were at the scene and, instead, duty counsel was contacted. I find no s. 10(b) violation in Constable Johal contacting duty counsel in the context of this case.

[73] As I have already explained, I do not accept the applicant’s evidence that he provided the name and number for his counsel of choice. Constable Johal specifically told the applicant that he would call counsel of choice if the applicant gave him the name. He testified that the applicant was not able to do so. I find that on these facts, it is most logical to conclude that if the applicant had done as he says he did, Constable Johal would most likely have recorded this information in his notes and would then have contacted the lawyer requested. I prefer the evidence of Constable Johal that he was provided with insufficient information to identify counsel of choice, resulting in an inability to call that counsel.

[74] In addition, I find no violation in Constable Johal calling duty counsel and offering the phone to the applicant. The officer recognized that the applicant wanted to speak to a specific counsel and told him he would be able to do so. He explained that efforts would be made at the station to identify and contact counsel of choice and that a call to that counsel would be permitted. However, he also appreciated that the applicant wanted to speak to counsel immediately and that there would be some delay in getting to the detachment. In these circumstances, it was reasonable for Constable Johal to provide the applicant with the opportunity to obtain legal advice as soon as possible when that could be facilitated through duty counsel.

[75] This is not a case of the officer steering the applicant to duty counsel over counsel of choice or limiting the applicant to one contact with counsel. The officer recognized the applicant’s right to speak to counsel of choice, could not facilitate this at the scene, and so offered the applicant the opportunity to obtain legal advice expeditiously, while ensuring that he understood that he could speak to counsel of choice at the detachment. The applicant availed himself of this opportunity. No breach has been established by the call having been made to duty counsel.

b) Was there a violation of s. 10(b) violation because the applicant was told that contact with counsel at the scene would be in a semi-private environment?

[76] The applicant submits that the police breached the informational component of s. 10(b) by advising the applicant that he would only be able to exercise the right to counsel at the scene of the arrest in a “semi-private environment.”

[77] There is no question that the right to counsel includes the right to consult in private. Section 10(b) is violated either if the police fail to provide privacy to the detainee or if the detainee establishes that in the circumstances, he or she reasonably believed that the communications with counsel were not in private: R. v. Playford (1987), 40 C.C.C. (3d) 142 (Ont.C.A.), at para. 40; R. v. Pileggi, 2021 ONCA 4, at para. 77.

[78] Portions of the “arrest script” read by Constable Johal to the applicant was helpful in ensuring that the applicant understood his rights to counsel. These parts were clear, correct, and appropriate, and told him that:

• he had the right to speak to a lawyer without delay in private;
• he could call any lawyer he wished or could obtain free advice from a duty counsel in private; and
• he had the right to consult with counsel of choice in private at the detachment.

[79] In my view, where the script became less helpful was when the officer advised that if he wished to speak with counsel before arriving at the detachment, it would only be in a “semi-private environment.”. This term was not explained so he knew what aspect would not be private. The applicant was told he would be alone in the police vehicle, but not whether the door would be closed.

[80] There is merit in the Crown’s suggestion that the police script and accompanying approach were intended to provide the detainee with an opportunity to contact counsel more quickly, without the delay caused by driving to the detachment and the booking process. The Crown submits that what the police offered was effectively an option of speaking to counsel sooner, understanding that this would be “semi-private.”

[81] I accept that it may well be desirable for the police to offer detainees the option of speaking to counsel in the back of a police vehicle because this can provide access to legal advice sooner. If privacy for that call can be achieved before arrival at the detachment, it should be. If privacy cannot be achieved (for example, for safety reasons), police should advise the detainee that there will be a delay and why. If the only option is that the call in the back of the police vehicle has reduced privacy, for some reason, I think the police have to tell the detainee how their right to privacy would be impacted and ensure that they understand their right and their choice. When that explanation is only that a call at the scene will be in a “a semi-private environment,” without further explanation, that expression could be confusing. Moreover, there is a risk of undermining the detainee’s right to consult with counsel in private. Accordingly, if there would be any limitation on the right to privacy because of the location or situation, the police need to better explain to the detainee what that means so that the detainee can exercise a meaningful choice about what to do. [^1]

[82] The applicant concedes that the police were not required to offer him a cell phone at the scene of the arrest at all. Doing so was no doubt done to try to ensure that he could exercise his right to counsel immediately. Despite the fact that I think Constable Johal’s script was less clear than it should have been, there was no evidence from the applicant that he was confused by the information he received or that he believed, on the basis of hearing it, that his consultation on the phone would not be private. Indeed, he made no mention of anything related to the script in his evidence.

[83] Considering all the evidence, given that Constable Johal provided the applicant with all of the informational components of his right to counsel, including his entitlement to consult in private and that he would have a private call with counsel at the detachment, I find no Charter breach in Constable Johal’s reference to facilitating a call in a semi-private environment at the scene.

c) Was there a violation of s. 10(b) because the applicant was not afforded privacy?

[84] I do not accept that the applicant’s right to consult with counsel in private was violated in this case.

[85] I reach that view because, as I have already set out, I find that the applicant accepted the offer made by police to speak with duty counsel at the scene of his arrest. I find that after he gave the mobile phone to the applicant so that he could speak to duty counsel, Constable Johal was outside the police vehicle and closed the car door. I accept Constable Johal’s evidence that had he left the car door open, he would have made a note of having done so and would have indicated in his notes why he had found it necessary to do so. I do not accept the applicant’s evidence that the door was open when he spoke to duty counsel. Nor do I accept that the officers outside the vehicle could hear what he said, or that the applicant reasonably believed that they could hear him. As a result, I cannot accept that he believed he could not retain or instruct counsel in private, or that such a belief was reasonably held in the circumstances. He was afforded privacy and made no complaint to the police after his conversation with duty counsel that he felt his communications had been impaired or inhibited in any way.

[86] The law requires there to be consideration of the particular factual context in assessing the reasonableness of a detainee’s concern about a lack of privacy. At the same time, the detainee “should be reasonably expected to make his concerns known to any police officer present”: R. v. Burley, [2004] O.J. No. 319 (C.A.), at para. 21; R. v. Cairns, (2004) CarswellOnt 316 (Ont.C.A.). The applicant expressed no concerns to police at the scene at all.

[87] I am not satisfied on a balance of probabilities that when the applicant spoke to duty counsel from the police vehicle with the door closed, he reasonably believed that he was not being afforded his right to do so privately. There is no s. 10(b) breach.

What is the appropriate remedy for the s. 7 breach?

a) Should there be a stay of proceedings under s. 24(1)?

[88] The applicant seeks a stay of the proceedings under s. 24(1) on the basis of an abuse of process. Section 24(1) of the Charter provides:

24.(1) Anyone whose rights or freedoms, 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.

[89] Following a judicial finding of a breach of s. 7 of the Charter, as I have found from the deployment of the drive stun, the court must determine the appropriate remedy under s. 24(1).

[90] A stay of proceedings is a discretionary remedy, not an automatic one. It is an exceptional remedy to be granted “only in the clearest of cases,” as a last resort, and only after canvassing other available remedies: R. v. Babos, 2014 SCC 16, at paras. 30-33; R. v. Regan, 2002 SCC 12, at paras. 53-55; R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 68; R. v. Tran, 2010 ONCA 471, at paras. 83-91.

[91] Generally, Babos instructs that there are two categories of cases where a stay may be warranted. The first category includes cases in which state conduct compromises the fairness of an accused’s trial. The second, or residual category, is cases where state conduct creates no threat to trial fairness, but risks undermining the integrity of the judicial process: Babos, at para. 31. As there is no prejudice to the applicant’s fair trial rights caused by the tasering, this case falls into the residual category. The test for a stay, in accordance with Babos, at para. 32, is the same for both categories, with three requirements:

1. There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" [citation omitted];
2. There must be no alternative remedy capable of redressing the prejudice; and
3. Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" [citation omitted].

[92] In the residual category of cases, as Babos notes at para. 35, the question is:

…whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial — even a fair one — will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system.

[93] While Constable Ross’s conduct was neither necessary nor reasonable, I do not see it as the sort of conduct that will be manifested, perpetuated, or aggravated if a trial is held, or through the outcome of the trial. Constable Ross had a reasonable basis to deploy the taser initially. It was his short deployment of the drive stun, seconds later, that I have found to be excessive because it was not needed to effect control of the applicant as he lay on the ground with his left hand visible and two other officers controlling his right side. Viewed in its proper context, which was the arrest in a public area of a large, dangerous suspect, I do not think that this conduct leaves the impression that the justice system condones society’s sense of fair play and decency. I do not think the integrity of the justice system would, in these circumstances, be undermined by the applicant having a trial.

[94] There are, as I will discuss, alternative remedies to a stay of proceedings that are available to redress the prejudice that the applicant has suffered.

[95] Since my assessment of the first and second required steps leaves me certain that a stay is not warranted. Accordingly, I decline to grant a stay and will consider alternative remedies.

[96] The two possible alternative remedies available are the exclusion of evidence and the reduction of the applicant’s sentence, if he is found guilty of some or all the charges after a trial. I have considered each of them.

b) Should there be an exclusion of evidence?

[97] The parties filed, as Exhibit 5, an Agreed Statement of Facts pursuant to s. 655 of the Code. It identifies all of the exhibits that were seized during the police investigation, evidence that the Crown plans to tender at trial. By way of summary, there were seizures of cannabis on July 16, 2020; August 20, 2020; October 14, 2020; and January 20, 2021. Police also seized from the applicant, incident to his arrest, 598 grams of cocaine and $28,100 in cash.

[98] The applicant submits that if a stay of proceedings is not granted, there should be an exclusion of all of this evidence under s. 24(2) of the Charter.

[99] Section 24(2) of the Charter provides that where evidence was “obtained in a manner that infringed or denied any rights or freedoms” in the Charter, the Court shall exclude the evidence if it is established that, having regard to all of the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[100] The phrase “obtained in a manner” is to be read broadly: R. v. Pino, 2016 ONCA 389, at paras. 50-78. Thus, there is no need for a causal connection between the discovery of the evidence and a breach. A close temporal connection suffices: R. v. Rover, 2018 ONCA 745, at para. 35.

[101] In my view, the excessive force the police used during the arrest could trigger the exclusion of the evidence seized from the applicant on his arrest, as this meets the “evidence obtained in a manner” requirement. However, the excessive use of force during the arrest could not, in my opinion, trigger the exclusion of evidence lawfully obtained by police in the course of their investigation days or months earlier. This is because that earlier seized evidence was obtained in a manner that was causally, temporarily, and contextually distinct and separate from what happened at the time of the arrest: R. v. Do, 2019 ONCA 482, at paras. 10-11; R. v. Daye, 2022 ONCA 675, at para. 8.

[102] I turn, therefore, to consider whether the items seized from the applicant incident to his arrest should be excluded as a s. 24(2) remedy for the s. 7 breach. This analysis requires consideration of the three-pronged line of inquiry set out in R. v. Grant, 2009 SCC 32, with the focus being on the broad impact of admitting the evidence on the long term repute of the justice system.

Seriousness of the Charter-infringing state conduct

[103] The Grant decision explained in para. 72:

The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

[104] While I was urged to find multiple breaches of the applicant’s rights, I concluded that the only one was Constable Ross’s use of the drive stun after the applicant had complied with the direction to make his hands visible.

[105] While any decision to unnecessarily taser a person during an arrest is serious, it must be remembered that the situation was one in which Constable Ross was required to make very quick decisions in the challenging circumstances of this arrest. The applicant was known to have had a gun before. His left hand was not immediately visible. I have found that the officer’s first deployment of the taser was reasonable. While the drive stun was not proportionate, I cannot conclude that his conduct revealed a wilful or reckless disregard for the applicant’s Charter rights. Nor is there any basis upon which to conclude that this error in judgment was part of any systemic pattern of abuse.

[106] I find that the first line of inquiry favours inclusion of the evidence.

Impact on the Charter protected interest of the applicant

[107] The second line of inquiry mandated by Grant considers the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. An assessment is to be made of the extent to which the breach actually undermined the interests protected by the right infringed. This can range from “fleeting and technical to profoundly intrusive.” The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may undermine public confidence in the administration of justice.

[108] The violation of the applicant’s right to security of the person that was occasioned by the drive stun, while brief, was certainly not technical. While he largely complied with police directions during his arrest, the applicant was subjected to an unnecessary electric shock to his body. In his affidavit, he spoke about the lasting impacts of this experience. While he likely had a barb in his leg for several weeks after his arrest, that barb was from the first taser deployment, which I have found was reasonable and not the cause of a Charter breach. In his evidence, the applicant was clear that he had never sought medical assistance from the tasering, at the time or after his arrest. There is no evidence of any short term or lasting physical injury. Nor has he been medically diagnosed with PTSD or any other mental health consequence of the drive stun, though I acknowledge that he may have suffered such effects.

[109] I assess this line of inquiry in the mid-range of seriousness, favouring exclusion.

Society’s interest in adjudication on the merits

[110] The third line of inquiry focuses on whether the interests of justice are better served by the admission or exclusion of the evidence. The public interest in truth-seeking is relevant, as is the reliability of the evidence. So, too, is the importance of the evidence in the prosecution’s case.

[111] While the exclusion of the cocaine and cash found at the time of the applicant’s arrest would not gut the entire case against the applicant, it would lead the Crown to have no evidence on the proceeds of crime and possession for the purpose of trafficking counts. This line of inquiry favours inclusion of the evidence.

The Balancing

[112] There is no mathematically correct way to balance the Grant factors. Having considered the three lines of inquiry, it is my view that the evidence obtained at the point of the applicant’s arrest should not be excluded.

c) Should there be a reduction in the applicant’s sentence?

[113] The Supreme Court has made clear that it may be appropriate for a court to address a Charter breach when passing sentence. Incidents alleged or found to have constituted a Charter breach can be considered on sentencing, provided that they are connected to the sentencing exercise. This may be done even without invoking s. 24(1) of the Charter, and even if the state misconduct does not rise to the level of a Charter breach. But, when a Charter breach is found, it may give rise to a sentence reduction, as long as the incidents giving rise to the breach are relevant to the usual sentencing regime: Nasogaluak, at paras. 47-53.

[114] I have found a Charter breach as case management judge, and not as the trial judge. The applicant’s position is that if there were to be a sentence reduction, it should be by at least 50%. In my view, if he is found guilty, the applicant’s sentence ought to be reduced as a result of the excessive force used in his arrest. It is not for me to say at this point what that reduction ought to be. It will be for the sentencing judge to consider all of the relevant sentencing principles, including my findings respecting the excessive force that led to the s. 7 breach, and to reduce the sentence imposed appropriately.

J.W. Woollcombe J.

Released: April 21, 2023

[^1]: I note that in R. v. Hassan, 2023 ONSC 1300, at para. 70, Nakatsuru J. refers, at para. 70, to the police practice at 53 Division in Toronto of allowing detainees to use police work phones to call counsel from the back of the cruiser with a warning of “limited privacy.”