Court File and Parties
Court File No.: CR-22-99 Date: 2023-06-05 Superior Court of Justice – Ontario
Between: His Majesty The King – and – Ivan Marincic
Counsel: Mr. H. Apel, for the Crown Mr. Y. Gupta, for Ivan Marincic
Heard: April 24, 25, 26 and 27, 2023
Ruling on Application Made Pursuant to Sections 7, 8, 9, 12 and 24(1) of the Charter
Chozik J.
Introduction
1The Applicant, Ivan Marincic, is charged with dangerous driving causing bodily harm and impaired driving causing bodily harm contrary to sections 320.13(2) and 320.14(1) of the Criminal Code, R.S.C., 1985, c. C-46. The charges arose out of a motor vehicle collision involving a vehicle and a conveyance that occurred on November 26, 2020, in Milton, Ontario. The Applicant and his wife suffered serious injuries. The driver of the other vehicle suffered life-altering injuries.
2The Applicant was arrested for these offences more than four months later. On April 1, 2021, members of the Halton Regional Police Service (“HRPS”) Tactical Response Unit (“TRU”) stormed into the Applicant’s parents’ home and arrested him. They entered the home ostensibly armed with a Feeney warrant. The arrest involved a “shield takedown”.
3The Crown conceded on this Application that the Feeney warrant was improperly obtained through the telewarrant process contained in section 487.1 of the Criminal Code. The Information to Obtain (“ITO”) was on its face deficient and the warrant should not have been issued. As a result, the Crown conceded that the Applicant’s rights guaranteed in sections 8 and 9 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (“Charter”) were violated.
4The critical issue to determine on this Application is whether the force used by the police to arrest the Applicant was excessive. If so, then (in addition to the breaches of section 8 and section 9) his right to life, liberty and security of the person guaranteed in section 7 and his right not to be subjected to cruel and unusual treatment or punishment guaranteed in section 12 of the Charter were violated. If these rights were violated, the ultimate issue for determination is whether a stay of proceedings under section 24(1) of the Charter is required to maintain the integrity of the justice system.
5On this Application, I heard the evidence of the Applicant, his father, and various police officers, including three TRU members who carried out the “takedown”. I also received transcripts of the evidence the police officers gave at a discovery. They adopted that evidence before me as their evidence-in-chief and were cross-examined. Ultimately, the decision as to whether excessive force was used turns on an assessment of the credibility and reliability of these witnesses. The onus is on the Applicant to establish on a balance of probabilities the violations of his Charter rights and the section 24(1) remedy.
6Having considered all the evidence, I accept the Applicant’s evidence in respect of the circumstances of his arrest and the force used by the police. I find that the police used excessive force and violated his section 7 and 12 Charter rights.
7However, I am not satisfied that this is one of the “clearest of cases” necessary for a stay of proceedings. The remedies available to the Applicant include a reduction of sentence, if one is imposed after trial, and financial restitution for the property damage and the emotional and psychological harm caused by the police misconduct. I am of the view that these other remedies would restore public confidence in the justice system and, as such, a stay is not appropriate in the circumstances.
Background
Introduction
8Many of the facts about what happened are not in dispute. On April 1, 2021, P.C. Zych went to the Applicant’s parents’ home in Mississauga to arrest the Applicant. He was accompanied by P.C. Baker and P.C. Forde. The officers wore plain clothes and drove unmarked police cars.
9P.C. Zych advised the Applicant that there were grounds to arrest him but did not tell him what offences he was being arrested for. The Applicant told P.C. Zych that he would contact his lawyer and would surrender if the lawyer advised him to. The Applicant was not arrested at that time.
10Based on inaccurate, misleading information about P.C. Zych’s interaction with the Applicant, the TRU was engaged to arrest the Applicant pursuant to a Feeney warrant. P.C. Zych authored the flawed Feeney warrant application.
11The critical but false information that officers relied on was that the Applicant was given “multiple” opportunities to surrender to police and had refused. I find that this was untrue. It is not supported by any evidence at this Application. Nevertheless, the TRU engaged its “barricaded person” protocol, where someone has been pursued to be arrested and is refusing to surrender, barricading themselves behind a wall or structure.
12A second piece of information that floated about amongst police was that there was a warrant for the Applicant’s arrest prior to the Feeney warrant. No evidence of any such warrant was adduced on this Application. None of the officers had seen a warrant. No one verified that a warrant had been issued. The ITO authored by P.C. Zych stated that the proposed arrest was “without a warrant.” According to the Applicant, when he asked P.C. Zych if he had a warrant for his arrest, P.C. Zych said that he did not.
13Several hours after P.C. Zych’s interaction with the Applicant on the porch, his arrest was carried out by geared up and armed members of the TRU. A distraction device was detonated. Dynamic entry was made into the Applicant’s parents’ home and, according to the Applicant, the degree of violence used was disproportionate, unnecessary, and unreasonable. He saw the helmets of the TRU team through the windows of the garage and exited the house with his hands up. He had been waiting to surrender for hours.
14At least three TRU officers – P.C. Proulx, P.C. Marini and P.C. Parker – executed the “shield takedown.” P.C. Proulx, using his Kevlar bulletproof shield, forced the Applicant back into the foyer of the house into mirrored sliding doors. The mirror exploded, showering both the Applicant and P.C. Proulx with glass shards. P.C. Marini and P.C. Parker moved in and took the Applicant down to the ground by force. According to the Applicant, P.C. Marini kneed him in the ribs and P.C. Parker grabbed his hair and repeatedly smashed his head into a tiled glass-covered floor. As he was led out of the house to a police cruiser, the Applicant claims that the police verbally abused and demeaned him.
15As I have said, whether excessive force was used turns on assessing the credibility of the Applicant and his father, the three TRU officers (P.C. Proulx, P.C. Marini and P.C. Parker) who carried out the arrest, and some of the other officers. The Crown and defence agree that determining whether the force used was excessive and whether a stay of proceedings is required turns, in essence, on a finding as to whether P.C. Marini kneed the Applicant in the ribs and P.C. Parker smashed the Applicant’s head against the floor while carrying out the arrest.
Analysis
The ITO and the Feeney Warrant
16Subject to the doctrine of hot pursuit, police have no general legal authority to enter a dwelling house to arrest anyone unless it has been judicially authorized pursuant to sections 529 and 529.1 of the Criminal Code.
17A Feeney warrant can be obtained by way of a telewarrant process. Where an officer seeks to engage the telewarrant process, section 487.1(4) requires an affiant to set out in an Information to Obtain that is submitted by telephone or other means of telecommunication (a telewarrant) a statement of the circumstances that make it impractical for the peace officer to appear personally before a justice.
18In this case, the Crown conceded that P.C. Zych failed to address the impracticability requirements necessary to obtain a telewarrant. He left this section of the ITO blank. Indeed, P.C. Zych testified that he was not aware that the requirements for telewarrants were any different from those he would get from attending before a justice of the peace in person. He had never reviewed the statutory requirements for a telewarrant. The courthouse was open at the time he had completed the application for the warrant. He was ready to submit it by around 4 p.m. and was only 20 minutes away from it. There was no evidence of any urgency that would prevent the execution of such a warrant the next day.
19I accept the Crown’s concession. I find that the ITO was deficient on its face and the Feeney warrant should not have issued. The Crown conceded that without a valid Feeney warrant, the police breached the Applicant’s section 8 and 9 Charter rights during the arrest. I agree.
20I note that there were multiple other problems with the ITO. For example, P.C. Zych set out in the ITO that he was relying on “Appendix A” for his grounds, but there was no “Appendix A” attached, only an Appendix “B”. In Appendix “B”, the section setting out the grounds for believing the person for whom the warrant was sought is or will be present in the dwelling house to be entered identified a different person (not the Applicant), a different address (not his parents’ home) and a different date (not April 1, 2021). Considering the Crown’s concession that the warrant should not have issued, it is not necessary to address the impact of these flaws on the warrant. However, the ITO was drafted in a way that fell well below the standard expected of an officer seeking the judicial approval for such a significant intrusion on a dwelling house.
21The police were not authorized to enter the Applicant’s parents’ house to arrest him. In doing so, they engaged in a serious breach of his and his family’s constitutional rights.
Excessive Force – The Legal Principles
22The common law and the Criminal Code recognize that police are entitled to use a degree of force to carry out their duties, including when they are making an arrest. Section 25(1) of the Criminal Code permits a police officer to use force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. An officer’s belief as to the necessity of force must be objectively reasonable: R. v. Nasogaluak, 2010 SCC 6 at paras. 32-35, 2010 SCC 6 at paras. 34-35.
23There are three elements to section 25(1): (i) the police action must be authorized by law, (ii) the police must have acted on reasonable grounds, and (iii) the police must not use unnecessary force: Nasogaluak at para. 35, R v. Angstadt, 2015 ABQB 547 at paras. 41-53.
24Police actions should not be judged against a standard of perfection or measured to a nicety. Police cannot be expected to measure the force used with exactitude. It is trite to say, but police engage in dangerous and demanding work. They often have to react quickly to emergencies and dynamic situations. Their actions should be assessed in light of these circumstances. In determining whether the amount of force used by an officer was necessary, regard must be had to the circumstances as they existed, or were reasonably perceived to be, at the time the force was used: Nasogaluak, citing R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.) at para. 16.
25Nevertheless, police do not have unlimited power to inflict harm on a person in the course of their duties. Police may, on occasion, have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, but the allowable degree of force remains constrained by the principles of proportionality, necessity, and reasonableness: Nasogaluak, at para. 32.
Application
26As I have set out, the determination of whether excessive force was used in this case turns on the credibility and reliability of the witnesses.
27I accept the evidence of the Applicant in respect of his interactions with the police prior to, during, and after the takedown.
The Applicant’s Interaction with Police Prior to the Takedown
28P.C. Zych was a member of the Risk Management Team for the HRPS. His function as part of this team was to locate and arrest people based on warrants issued at the request of the HRPS, and to conduct his own investigations. P.C. Zych was new to the HRPS: he had joined this police service in October 2019, having transferred from Edmonton, where he had been a police officer for about two and a half years.
29When he testified, P.C. Zych asserted that he had no memory whatsoever of the events on April 1, 2021. Since he had no independent recollection, he was not permitted to refresh his memory using notes or reports. He gave answers in cross-examination based on what he had read in a transcript of his discovery evidence from a year earlier and a supplementary report he prepared at some point. He had reviewed those (without leave of the court) prior to testifying.
30It was not disputed that the police formed grounds to arrest the Applicant on March 21, 2021. Prior to April 1, 2021, P.C. Zych attended at the Applicant’s parents’ home twice: on March 30 and 31. Both times, he was advised by the Applicant’s mother that the Applicant was not home. P.C. Zych testified that he accepted her statements as true. He did not regard the fact that the Applicant was not home or his mother’s statements as attempts by the Applicant to evade police.
31On April 1, 2021, at around 1:50 p.m., P.C. Zych returned to the residence with P.C. Baker and P.C. Forde.
32P.C. Zych stood on the front porch of the home, near the front door. He spoke with the Applicant through a large bay window beside the front door. P.C. Baker and P.C. Forde stood nearby. Their focus was officer safety. Both testified that they did not hear or recall the conversation. They had difficulty recalling how the conversation took place. Prior to attending at the residence, P.C. Zych told them that there was an outstanding warrant for the Applicant’s arrest. They understood that they were to attend to assist with the arrest. Neither saw an actual warrant. P.C. Baker testified that it would have been posted on Canadian Police Information Centre (“CPIC”), but she did not check.
33Despite having no memory of the events, P.C. Zych testified that he told the Applicant that he had grounds to arrest him. He did not tell the Applicant what those grounds were or what the charges were. Indeed, when he testified, P.C. Zych did not know what those charges were. He did not note them down. Most significantly, P.C. Zych testified that the Applicant told him that he wanted to contact his lawyer and that he would turn himself in of his own accord.
34P.C. Zych then returned to the police detachment to write the Feeney warrant application while P.C. Baker and P.C. Forde remained on scene for “containment”. The TRU was engaged to carry out the arrest once the Feeney warrant was obtained.
35According to the Applicant, when he said that he would call his lawyer and surrender of his own accord, P.C. Zych told him that he would be back in 20 minutes, that he would get a warrant, break down the door, and make a mess in the house. P.C. Zych denied saying this. I do not accept P.C. Zych’s denial.
36P.C. Baker testified that she heard P.C. Zych tell the Applicant that he would come back with a Feeney warrant. She also testified that the Applicant said that the police were not coming into the home. I find that P.C. Zych must have told the Applicant that he would get a warrant and enter or break into the house, to elicit this response from the Applicant. The Applicant did not know what a “Feeney” warrant was until after he spoke with his lawyer.
37P.C. Zych did not leave any contact information for the Applicant. He did not tell the Applicant his name or that he was with the HRPS (as opposed to Peel Regional Police Service, who would normally police Mississauga where the Applicant’s parents’ house was and where he was residing temporarily). He gave the Applicant no information or instructions about how to turn himself in. He did not offer any means by which the Applicant could contact him after he spoke to his lawyer. In my view, the fact that P.C. Zych gave no follow up instructions confirms the Applicant’s evidence that P.C. Zych told him he would be back.
38Instead of giving the Applicant an opportunity to surrender after he spoke to his lawyer, P.C. Zych chose to make the Feeney warrant application and engage the TRU to execute the arrest. There was no evidence to explain why the police took this course of action. There was obviously no urgency in arresting the Applicant. The offences were from months earlier, and the grounds to arrest him had been formed more than 10 days before. There was no evidence of any risk of flight or destruction of any evidence.
39I reject the claim that the Applicant had been given “multiple” opportunities to surrender and had “refused”. He was not even told of the reasons for his arrest or the charges. He wanted to speak to his lawyer, which was not unreasonable. It is not disputed that he said he would surrender if he had to. I find that this was not a “barricaded person” situation, nor would any reasonable officer perceive it as such.
40I accept the Applicant’s version of his interaction with P.C. Zych. His evidence is almost entirely consistent with that of P.C. Zych. P.C. Zych’s evidence is otherwise unreliable since he has no memory of the event. Where P.C. Zych’s evidence conflicts with the evidence of the Applicant, I accept the Applicant’s testimony.
41According to the Applicant, P.C. Zych told him that he would be back in 20 minutes and that when he came back, he was going to “break the door in and make a mess in the house”. The Applicant told him, “fine” and left the window. The Applicant’s mother was standing beside him at the window when he spoke to P.C. Zych. The Applicant denied that he told the officer to “fuck off”, as P.C. Zych claimed. The Applicant testified that he would never use such language in front of his elderly mother. I believe the Applicant. He was reverent of his parents throughout his testimony.
42P.C. Baker overheard part of the conversation between the Applicant and P.C. Zych. She did not hear the Applicant say “fuck off”. She recalled only that the Applicant was “disrespectful” to P.C. Zych. She thought so because he laughed at one point.
43After P.C. Zych left, the Applicant called his lawyer. The Applicant testified that the lawyer told him that the police would probably get a Feeney warrant and advised the Applicant to turn himself in. The lawyer explained that the police could use the warrant to come inside the house and take him away, so there was no point fighting it. The Applicant testified that he told his lawyer that he did not want the police coming into his parents’ home and would wait for the police to return outside.
44The Applicant waited for the police to return for hours. He could see P.C. Baker in an unmarked police car at the front of the house on the opposite side of the street. He did not approach her because he did not want to “spook” her. He could also see P.C. Forde in a neighbour’s backyard. While he waited, the Applicant left the house and went onto his porch many times. He smoked cigarettes and talked on the phone.
45The fact that the Applicant was waiting for hours to be arrested is confirmed by P.C. Proulx. He testified that during the takedown, when the TRU team entered the home, the Applicant’s mother was screaming. One of the things he heard her scream was that the Applicant had waited for the police for hours to be arrested. While the statement is not admissible for the truth, evidence that the statement was made by the mother confirms the Applicant’s version of events.
46I accept the Applicant’s evidence that he was waiting for police and that he unequivocally intended to surrender when they returned. The Applicant was not “barricaded”: he left the home repeatedly to smoke on the porch. P.C. Baker made detailed observations of the Applicant outside his home.
47P.C. Baker testified that she did not approach the Applicant because she did not feel it was “safe”. She testified that she felt he was dangerous because she heard the Applicant’s father tell P.C. Zych that he was not going back to jail. As a result, it was clear to her that the Applicant was not going to cooperate with the police. I reject P.C. Baker’s evidence about this. Although I accept P.C. Baker’s evidence where it conforms to that of the Applicant, I find her evidence otherwise to be unreliable. She was focused on officer safety during the interaction. Understandably, she could not remember many details that were peripheral to her focus.
48But P.C. Baker’s evidence that the Applicant was “dangerous” is contradicted by the evidence of P.C. Forde, who said that there were no officer safety concerns at the time and no threats to harm the police. Detective Williams, who authorized or retrieved the TRU’s operational plan, gave evidence at the discovery that the mission set out in the operational plan was to “safely arrest the accused party by knocking and requesting he exit the residence.” While police had prior interactions with the Applicant, and he had a criminal record, there was no indication that he had any firearms in his “possession” at the time.
49I also find that P.C. Baker’s recollection is unreliable. As I set out above, she testified that during the interaction on the porch, she heard the Applicant’s father say that the Applicant was not going to return to jail. This is not possible.
50I find that the Applicant’s father was not present when the conversation on the porch took place. He testified that he was in the kitchen, having coffee, and did not hear or participate in that interaction. P.C. Zych testified that it was the Applicant’s mother who made this statement to him days earlier, when P.C. Baker was not there. Other officers confirmed that they received information about the mother’s statement on the prior occasion. P.C. Baker must be mistaken in her recollection that she heard the father say this, but this mistake renders the rest of her evidence unreliable.
The Takedown
The Applicant’s Version
51The Applicant testified that at around 5 p.m., he was inside his garage. He had gone there to smoke. Suddenly, he saw helmets of what he believed was a SWAT team through the windows on top of the garage door. He ran back into his house through an interior door, put on his shoes, coat and a Covid mask, and told his parents he saw the helmets. He emptied his pockets of his personal belongings and got ready to turn himself in. He told his parents he was going outside so that the police did not break into the house. He exited the house onto the porch, with his hands up in the air.
52As he stood just on the outside of the threshold, an officer in street clothes (P.C. O’Halloran) came running out of a van in front of the house. According to the Applicant, the officer yelled across the street: “do you know why you are being arrested”. As the officer was coming from one side, the TRU team came rushing out from behind the garage on the other side. A distraction device was detonated on the front lawn about 8 feet from the Applicant. It sounded like a grenade. He was momentarily blinded and deafened. He may have stumbled backwards a bit, when one of the TRU officers rushed at him at full speed from around the corner of the garage.
53The Applicant testified that he said: “I surrender” with his hands in the air.
54The TRU officers wore full gear including helmets, knee and elbow pads, and bulletproof vests. They were armed with pepper spray, batons, automatic guns and other weapons. The first TRU officer (P.C. Proulx) carried a Kevlar shield. The Applicant was pushed backward by P.C. Proulx’s shield into the house and into the mirrored sliding doors of a closet in the foyer. The mirror exploded, showering both of them with shards of glass. According to the Applicant, four or five officers were behind P.C. Proulx.
55The next two were P.C. Marini and P.C. Parker.
56The Applicant testified that he was grabbed, pushed and tackled onto the tiled floor of the foyer. It was covered in broken glass. He felt officers on his back, beating him. His arms were still in the air. One officer was grabbing one arm while a second officer was grabbing the other arm. He was held in a chokehold by one, while he could feel the other at his feet. He was kneed in the ribs by an officer on his right (P.C. Marini). The Applicant testified that he yelled repeatedly that he could not breathe. He yelled that his ribs were broken (his ribs were broken in the earlier motor vehicle collision).
57The Applicant testified that an officer on his left (P.C. Parker) was “bouncing” his head off the tiled floor “like a basketball”, yelling at him “why didn’t you surrender”. The Applicant told him to stop bouncing his head off the floor, to which the officer said: “like this?” and banged his head on the floor a few more times.
58Once his hands were handcuffed behind his back, the Applicant was lifted by his elbows and led outside. His head was covered by his hood. He was forced to walk, bending forward. He was escorted past an officer with a dog outside, who said: “you want some of him?” The Applicant replied: “animals like me”. As he was escorted down the walkway, one officer was forcing his arm up behind his back and another was pushing his head down. The Applicant complained, stating, “you’re hurting me”. The officer said, “shut up! I’ve never seen such a big bitch in my life”. The officers also called the Applicant a “junkie” and a “fag”.
59The Applicant testified he was put on the hood of a car. His father was saying something like “what’s wrong with you, why are you doing this?” His mother was crying and saying “Oh my god” a lot. He yelled out “I love you ma, don’t worry”. The officer with the shield (P.C. Proulx) pinned his head down with the shield. An officer told him that all the damage was his fault and that he should have surrendered earlier. A marked police car arrived. He was put in the back and taken to the police station.
60The Applicant denied that he was resisting arrest. He testified that he was ready to go and did not want any violence in front of his parents. He testified that there were no commands given. The officers did not direct him to do anything. There was just a lot of yelling. He testified that he would never resist the police: he lost an uncle in a police station and was never going to fight police. He did not want the police in his parents’ house and came outside with his hands up.
61According to the Applicant, he suffered physical and psychological harm because of this interaction with the police. His broken ribs from the motor vehicle collision in November had been healing but were refractured during the arrest. He has a piece of glass lodged in his right eye. No medical evidence was produced on the Application but I accept the Applicant’s evidence about his injuries.
62The Applicant also claimed that he suffered psychological and emotional harm. This included fear of police officers, humiliation, and embarrassment. He testified that he is too humiliated to return to his parents’ home. He did not go there for Christmas or Easter. He feels humiliated and embarrassed in front of his whole neighbourhood. During the proceedings, I observed that the Applicant was often emotional during the testimony of the TRU officers. I find that he, and his father, were deeply traumatized by this event.
63The Applicant’s version of the takedown was largely confirmed by the police officers, and his father. The main question in dispute is whether P.C. Marini kneed the Applicant in the ribs and P.C. Parker smashed his head against the floor. The Applicant’s father testified that he saw those officers do so.
The Applicant’s Father’s Version
64The Applicant’s father testified through an interpreter. He said that in the evening, at around 5 or 5:30 p.m., the Applicant went to the garage to smoke. He then came back and told his father that the special forces were there in full armour and gear with weapons. The Applicant put on his running shoes, saying that they had come for him. He went out onto the porch with his hands up.
65According to the Applicant’s father, the officers jumped the Applicant. The officers came in through the front door, and brought the Applicant down. The father was in the living room, maybe 4 feet away. He testified that one officer on the left side was hitting the Applicant with his knees in the ribs and “his ribs were hurting.” The other officer grabbed the Applicant’s hair and started “hitting” him. They were “pressing” the Applicant into the tiles. Three or four of them brought the Applicant down onto the tiled floor in the foyer. One officer started kicking the Applicant in the ribs with his knees. The other officer grabbed the Applicant’s hair and pressed him onto the tiles. His wife was screaming to stop. The Applicant’s ribs were hurting.
66The Applicant’s father testified that he could see exactly where his son was on the floor of the foyer, and that he saw the officer pull his son’s hair and hit his head on the tiles. He saw the officer do this two times, as far as he could remember. Then his wife wanted to approach them to make it stop. Another officer stopped them with his shield. Then he could not see any more.
67The Applicant’s father testified that he was very scared “for sure” during the event: these were “special forces”, and they were armed with automatic weapons. He said that he had served in the army, but “even the biggest guy in the world would be scared.”
68The Applicant’s father said after the police led the Applicant out of the home, he threw the broken mirror frame out onto the porch and started cleaning up. He admitted that he may have yelled and shouted things at the police. He testified that nobody told him and his wife where they took the Applicant or why. He just saw his son on the hood of the vehicle across the street, with his hands up on the car and handcuffed. Crying, the Applicant’s father testified that he felt and continues to feel that he was “killed in his soul” and that it “still hurts”.
The Police Version
69Members of the TRU who testified denied using excessive force to arrest the Applicant. P.C. Proulx denied using the shield to deliberately direct his movement into the mirrored doors of the foyer closet or to pin the Applicant on the hood of the police car. P.C. Marini denied kneeing the Applicant in the ribs. P.C. Parker denied bouncing the Applicant’s head against the floor. Each officer denied hearing or seeing the words or actions attributed to them by the Applicant.
70The TRU officers testified that they believed they were responding to a “barricaded person” situation. Each officer believed that the Applicant had been advised of his arrest, the reasons for it, been given multiple opportunities to surrender, and had refused to come out of the house. As I have already set out, I find that they were mistaken in this belief. Their belief about this is not supported by any evidence on this Application, is what they believed.
71P.C. Proulx testified that his role was to lead the TRU in a “shield takedown”. The operational plan was not to go into the house, but to wait for the Applicant to come out onto the porch and pin him while he was sitting down on the patio furniture. The TRU had received information that the Applicant had been taking smoke breaks on the porch.
72The TRU officers were lined up behind the garage. P.C. Proulx believed that their arrival was not known to the Applicant. When the Applicant exited the front door of the house, the investigator was to approach and give the Applicant an opportunity to surrender. Then, with a squeeze on the elbow, the TRU team was to move in. P.C. Proulx saw the Applicant exit, saw the investigator (P.C. O’Halloran) on the front lawn, got the squeeze on his arm, and moved in. P.C. Proulx admitted that the investigator never made it to the porch.
73P.C. O’Halloran testified that when he saw the Applicant come out onto the porch, he radioed the team to tell them. He then exited his vehicle and approached the Applicant saying “Ivan”. The Applicant responded, “What?” P.C. O’Halloran said: “are you going to turn yourself in?”. The Applicant said “no”. P.C. O’Halloran denied yelling, though he was speaking to the Applicant from more than 50 feet away. The distraction device was then detonated. I do not accept P.C. O’Halloran’s evidence.
74None of the other officers heard this exchange. They heard the investigator say something to the Applicant, but no one heard the Applicant respond. On all the evidence, P.C. O’Halloran was far from the Applicant and he must have raised his voice to be heard at this distance.
75I also find that there was no time for this exchange to have occurred. The Applicant’s and the TRU officers’ evidence is very clear: the investigator said something and the distraction device was detonated almost immediately.
76Moreover, I find that this interaction between P.C. O’Halloran and the Applicant was not intended as an opportunity for the Applicant to surrender. Rather, as P.C. Proulx testified at discovery, it was a distraction tactic used to give the TRU a few extra seconds to pin the Applicant. P.C. Forde also testified that P.C. O’Halloran said something “to get [the Applicant’s] attention”.
77Most importantly, I find that this exchange could not have occurred: it is inconsistent with the one fact I am certain of – the Applicant came out of the house with the intention of surrendering to police. He would not, and did not, say “no” to the question supposedly posed by P.C. O’Halloran.
78P.C. Proulx testified that when he came around the corner of the garage, he saw the Applicant at or in the threshold of the front door of the house. He could recall nothing of the Applicant’s clothing or the location of his hands. He confirmed that the Applicant had nothing in his hands. He saw that the Applicant was not sitting in a chair. The plan had changed at that point.
79P.C. Proulx testified that he was making split-second decisions and responding to the dynamic circumstances as they arose. P.C. Proulx gave no commands to the Applicant on his approach. He made contact with the Applicant with the shield. In his mind, the Applicant did not know that the TRU was there and was backing up, retreating into the house when he saw them. I find that he was wrong in this regard. P.C. Proulx was “responding” to the Applicant’s movements. The Applicant was pushed into the mirrored doors. Glass fell everywhere, and it shocked him.
80I do not accept P.C. Proulx’s evidence that he did not push the Applicant backwards to the mirrored doors. P.C. Proulx is 6 feet tall. The Applicant is considerably shorter and smaller. P.C. Proulx ran at him in full gear, at full speed for a short distance (about 10 feet), with the 35 lbs. Kevlar shield in front of him. The force with which he contacted the Applicant must have been significant – it caused the mirrored sliding doors to explode, and their metal frame to bend. He pushed the Applicant backwards but tried to minimize it in his evidence. He would not allow for the possibility that the Applicant had come out of the house to surrender.
81According to P.C. Proulx, P.C. Marini and P.C. Parker entered next. They were shouting commands at the Applicant to get down on the floor. The Applicant’s parents were screaming. P.C. Proulx testified that he thought the mother would assault them. He used his shield to block the mother and the father in the living room.
82P.C. Proulx testified that he did not assist with the arrest. He saw the other two officers kneeling over the Applicant, who was on the floor. He agreed that it was hard for him to see what was happening: the shield blocked his line of sight. He could not see the Applicant’s hands, feet or body. It looked like P.C. Marini and P.C. Parker were trying to gain control of the Applicant’s arms. He was not sure of their positions, but they “completely engulfed” the Applicant. He heard them say: “stop resisting” and “give us your hands”. P.C. Proulx testified that he heard the Applicant say that he could not breathe and that he has broken ribs.
83P.C. Proulx confirmed that the Applicant did not resist his actions: he did not push back, kick, scratch, or otherwise resist. He described the Applicant as calm and not fighting by the time he was escorted to the police cruiser.
84P.C. Marini testified that he was second in the TRU stack after P.C. Proulx. He denied using excessive force to execute the arrest. Specially, he denied that he put the Applicant in a chokehold, that he knelt on the Applicant’s back, or that he kneed him in the ribs.
85P.C. Marini testified that he saw the investigator on the front lawn verbally engage with the Applicant, and then felt a squeeze on his arm as the signal to move. He did not recall the detonation of the distraction device, though it was in the operational plan. The Applicant was not in the position the team was expecting. He saw P.C. Proulx pin the Applicant, the glass shatter, and P.C. Proulx move off somewhere. P.C. Marini grabbed the Applicant’s right side.
86P.C. Marini testified that the Applicant was resisting and not complying with directions. At the same time, he did not give the Applicant any commands on approach. He claimed that someone “at the front” told the Applicant he was under arrest and to get on the ground. P.C. Proulx, who was at the front, denied giving any commands.
87P.C. Marini testified that he shouted at the Applicant to get down, but the Applicant did not comply. There was glass all over the floor. Together with P.C. Parker, he pulled the Applicant down to the ground. It was a dynamic situation. There was no time to watch out for glass. His aim was to take control of the Applicant, in particular his right arm. According to P.C. Marini, the Applicant’s hands were either under his body or above his head. He was trying to bring the Applicant’s his right arm around to behind his back to handcuff him. P.C. Marini had concerns about possible concealed weapons under the body.
88P.C. Marini testified that he knelt on the floor beside the Applicant. The Applicant was moving his head back and forth, speaking to his parents in their native language. He took the Applicant’s Covid mask, which was on his chin, and attempted to cover the Applicant’s face. He did not want to be spit on (it was the height of Covid and, he testified police often get spit on). He recalled that the Applicant said four or five times that he had broken ribs. P.C. Marini testified that he kept telling the Applicant to give him his hands.
89Contrary to P.C. Proulx’s evidence, P.C. Marini testified that at no point was his body on top of the Applicant’s, covering him. He testified it was not his intent to be on top of him and he was not. He denied deliberately inflicting any pain on the Applicant (or on people generally). The top priority was to secure him, to gain control of him in as little time as possible. P.C. Marini testified that he delivered “zero” knee strikes. The Applicant was on the ground for not more than 20 seconds. Standard procedure was used to walk the Applicant out of the residence.
90P.C. Marini testified that he did not recall the Applicant saying, “stop hurting me”. He denied hearing the Applicant say to P.C. Parker to stop banging his head on the ground. He denied seeing P.C. Proulx pin the Applicant with the shield on the police car, saying that if it happened, he did not see it. He did not hear anyone say the things alleged by the Applicant after the arrest, though he could not recall any of the conversation.
91P.C. Parker, the team leader for TRU, was third in the queue. He testified that he saw the Applicant on the porch, heard the glass break and saw P.C. Marini trying to get the Applicant onto the ground. He grabbed the Applicant from behind by the waist, and pushed on his back with his arm. According to P.C. Parker, the Applicant was “not complying” and not getting on the ground. The interaction took “mere seconds”, but he was brought down to the ground.
92When asked if he grabbed the Applicant by the hair and banged his head on the ground as described by the Applicant, P.C. Parker testified that the proposition was “absurd” and there was “no chance” that it happened. He claimed that the Applicant kept trying to pull away, yelling and swearing when escorted out of the house.
Conclusions on Credibility
93I find that the Applicant’s evidence in respect of his interactions with the police leading up to and during the takedown on April 1, 2021 was entirely credible and reliable. He did not exaggerate or embellish. His memory of the events was detailed, and he had an excellent recollection of the events. Not surprisingly, the details of what happened have stayed with him. More importantly, his evidence is supported by other evidence that is either not disputed or that I accept. Where his evidence conflicts with that of the officers, I accept the Applicant’s evidence.
94I reject the evidence of the police that the Applicant had created a “barricaded person” situation, or that he was retreating into the house during the take down or that he resisted the arrest in any way. I find that the Applicant waited for police for hours, having been told by P.C. Zych that they would be back. When he saw them, he exited the house with his hands up. None of the officers who saw him could refute that his hands were up. I reject their claims that he had multiple prior opportunities to surrender or that he had “refused”. I also reject their claims that he resisted arrest.
95There can be no doubt that the Applicant exited the house with the intention of surrendering. He had emptied his pockets, put on his shoes, coat, and a Covid mask. This is confirmed unequivocally. Nothing was found on his person when he was arrested except his shoelaces: he had no cigarettes, lighter, or cell phone. If he was coming out onto the porch to smoke, as he had done earlier in the day, then one would expect him to have cigarettes, a lighter, or a cell phone. But he did not.
96The Applicant was not given an opportunity to surrender. P.C. Proulx ran at him in full gear, with full force, and with the Kevlar shield pushed him backwards into the mirrored sliding doors of the foyer closet. He was then grabbed by P.C. Marini and P.C. Parker, and forcibly pushed to the ground amongst the shards of broken glass. Those officers used significant force to gain control of him, though I find that he was not resisting arrest. The interaction lasted seconds, during which there was barely time for the Applicant to react or comply.
97That excessive force was used by the officers is confirmed to some extent by the undisputed fact that the Applicant yelled that he had broken ribs and that he could not breathe. The TRU officers and his father confirmed this. Everyone present heard him. Why would someone yell that his ribs were broken unless he was being hurt in his ribs in the moment? Why would someone yell that he could not breathe, unless he could not? I found the Applicant to be credible and reliable about all of the other details of the event. I have no reason to disbelieve the Applicant about this either. I accept that the officers were probably on top of him, that he was held in a chokehold, and that he was probably kneed in the ribs.
98At the same time, I cannot reject P.C. Marini’s evidence that he did not deliberately knee the Applicant in the ribs. P.C. Marini, a very experienced officer, testified in a candid, forthright fashion. He did not embellish, though he easily could have. For example, he testified that he did not hear the distraction device. He just didn’t. He knew it was part of the plan, but he did not hear it. He did not remember it and did not note it down. He was careful and honest about details in his testimony about what he could and could not recall. I found his evidence about the takedown otherwise credible and reliable.
99P.C. Marini stated unequivocally under oath that he does not lie. He also stated unequivocally that he does not set out to deliberately hurt people. I believe him.
100It is difficult to reconcile P.C. Marini’s evidence that he did not deliberately knee the Applicant in the ribs, which I do not reject, with the evidence of the Applicant and his father, whom I found credible, that the Applicant was kneed in the ribs. Having carefully considered the evidence, I accept the Applicant’s evidence and that of his father that the Applicant was kneed in the ribs.
101However, I conclude that in the dynamic situation presented, it is entirely possible that any “kneeing” took place without any specific intention to strike the Applicant in that fashion.
102P.C. Marini was beside the Applicant, one of his knees on the ground beside him. He must have been applying some force to hold the Applicant down. Otherwise, the Applicant could have either rolled over and pulled out a weapon or have otherwise gotten up. There is no question those few seconds were very dynamic. There was yelling, and the Applicant was thrashing his head about. The officers were holding him down and grabbing at his arms, trying to bring the arms around to his back.
103It is more likely than not that P.C. Marini’s knee made physical contact with the Applicant’s ribs. The Applicant felt pain. He yelled. It is possible, maybe even likely, that it was deliberate contact, but it could also have been unintentional. I cannot say. The Applicant’s father said P.C. Marini was “kicking” the Applicant in the ribs with his knee. The Applicant was face down. I accept that he felt the pain, but it is not clear how he concluded that P.C. Marini was delivering knee strikes. Based on the evidence, I am not satisfied that P.C. Marini delivered deliberate knee strikes to the Applicant’s ribs.
104I accept the Applicant’s evidence that P.C. Parker grabbed his hair and smashed his head against the tiled floor. I accept the Applicant’s evidence that when he told the officer to stop smashing his head against the floor, P.C. Parker said: “what, like this” and did it again.
105I accept the evidence of the Applicant’s father that he saw this happen. He had a very specific recollection of it. I find that he had a good vantage point from where he and his wife stood, though P.C. Proulx blocked his way. The Applicant’s father drew exactly where his son lay in the foyer and where his head was. His evidence in this regard conforms exactly to the other evidence in this trial, including the evidence of the TRU officers. He must have seen his son laying there and saw P.C. Parker hitting the Applicant’s head against the floor.
106I do not accept P.C. Parker’s evidence. I found his evidence to be inconsistent with other evidence I accepted. I had the impression that he embellished. For example, he testified that P.C. Marini covered the Applicant’s face with the Covid mask during the struggle and said something along the lines of “don’t spit at me’. P.C. Marini admitted that he covered the Applicant’s face with the mask. But when P.C. Marini testified, he did not say anything about telling the Applicant not to spit on him. P.C. Proulx testified that the Applicant was calm and compliant on the escort. P.C. Marini testified that the Applicant was not pulling away, resisting, or swearing when led out of the house. P.C. Parker, on the other hand, claimed that the Applicant continued to resist, pulled away and was screaming.
107P.C. Parker claimed that the Applicant said that his ribs were broken and that he could not breathe before “anything happened”. This is not consistent with the other evidence. The other officers, the Applicant and his father all testified that the Applicant said that his ribs were broken and that he could not breathe when he was down on the floor. I also found that P.C. Parker engaged in unnecessary verbal gymnastics: he refused to say that the Applicant was “resisting” the officers, but instead insisted that the Applicant was “not complying” with commands.
108All of the officers gave confusing evidence about who was giving commands and what those commands were. This was important because when P.C. Marini and P.C. Parker came on the scene, both decided to take him down to the glass covered floor. Both used a degree of force and tried to justified it saying the Applicant was not complying with commands. But P.C. Parker could not say who gave the Applicant any commands. Like P.C. Marini, he maintained that it was someone ‘from the front’. There were only two officers ahead of P.C. Parker: P.C. Proulx and P.C. Marini. P.C. Proulx testified, and I accept his evidence, that he did not give commands on approach or otherwise. P.C. Marini testified that he did not give any commands either. Whose commands the Applicant was not complying with when P.C. Parked concluded that he was not complying, and had to be taken down, is not clear.
109From all the evidence, I find it more likely that if the Applicant was told to get down on the ground after he was smashed into the mirror, he had no time to comply with any commands before he was grabbed, pulled and brought to the ground. He was not “resisting” or “not complying”, as P.C. Parker claimed.
110I also do not believe P.C. Parker’s evidence that he put “no weight” on the Applicant. P.C. Parker testified that if the Applicant would have just laid down on the ground, there would be no need to “pin” him there. I take this as an admission that the Applicant was “pinned” on the ground. It makes no sense that he was “pinned” with no weight on him. P.C. Parker described straddling the Applicant. If the Applicant had “no weight” on him, and was resisting as P.C. Parker said he was, the Applicant would have been able to stand up or roll over and face the officer. If he had been armed, he could have pulled out a weapon. Of course, these highly trained officers had to put weight on the Applicant to maintain control of him on the ground face down. The Applicant’s father described P.C. Parker “pressing” the Applicant into the tile floor and “laying” on him. This makes sense. P.C. Parker’s evidence on this point is not credible. It makes sense that the Applicant was “pinned” by him.
111Ultimately, I do not find P.C. Parker’s evidence about the interaction credible or reliable. I found multiple aspects of his evidence suspect. I therefore do not accept his denial: that he did not grab the Applicant’s hair or hit his head on the floor. I do not believe him about this. I accept the Applicant’s evidence and that of his father, both of whom I found very credible and reliable, that this happened.
112In respect of the demeaning statements made by officers after the takedown, I have no reason to disbelieve the Applicant. There would have been conversation after the arrest. None of the officers noted it down or could remember what it was. On a balance of probabilities, I find that those statements were probably made as the Applicant described.
113In conclusion, I accept the Applicant’s evidence in respect of the circumstances that led to the arrest and the arrest itself. It is confirmed by other evidence, including the evidence of the police officers in most respects. The most compelling evidence, in my mind, is that the Applicant came out of the house ready to surrender. That his intention was to surrender is confirmed by the fact that he put on his shoes, jacket, Covid mask, and emptied his pockets. No cigarettes, lighter or cell phone were found on his person. Indeed, nothing was seized from him except his shoelaces. I find that this confirms his evidence that he intended to surrender and exited the house for this purpose.
114The Applicant’s evidence as to how the arrest was carried out is largely confirmed by the evidence of the police officers. Though their perspectives might be different, what happened is the same. The only substantive divergence is about whether he was resisting arrest, whether P.C. Marini kneed the Applicant in the ribs and whether P.C. Parker grabbed his hair and smashed his head against the floor.
115The standard of proof is the balance of probabilities. The onus is on the Applicant to satisfy me that the police used excessive force to carry out the arrest. He does not need to satisfy me in respect of each piece of evidence. I must make the decision having regard to all the evidence as a whole.
116In all the circumstances, I find that the force used in executing the arrest was manifestly excessive. The takedown caused the Applicant physical, emotional, and psychological harm. At the time of the “takedown”, the Applicant was unarmed. He was not violent. He had come out of the house to surrender to police. He had emptied his pockets, put on his coat and running shoes and a Covid mask. His hands were up. He was not resisting. There can be no doubt he came out to surrender.
117The situation was not urgent: the offences for which the Applicant was to be arrested were not violent specific intent offences. The events that gave rise to those charges happened months earlier. There was neither any active investigation nor any danger to anyone. The TRU was engaged on the basis that the Applicant had refused to surrender multiple times. This was not true. The Applicant had only been approached by the police in respect of an arrest once, at 2:00 p.m., by P.C. Zych who did not properly articulate the reasons for the arrest and told the Applicant he would be back. The Applicant was not given any information or means by which to surrender or contact P.C. Zych in the meantime. He waited and exited the house to surrender after police returned.
118I conclude that the arrest and detention of the Applicant were contrary to section 8 and 9 of the Charter. I conclude that the officers used excessive force and violated the Applicant’s section 7 and section 12 Charter rights. Each of these breaches was very serious.
Issue Two: Is a Stay of Proceedings Required?
119A stay is tantamount to an acquittal and will usually be awarded only when other remedies cannot adequately redress the wrong at issue: Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 SCR 391 at para. 90.
120A stay of proceedings is a remedy that is ordered under section 24(1) of the Charter in three scenarios: (i) where the accused’s right to be tried within a reasonable time, guaranteed under section 11(b) of the Charter, has been violated; (ii) where a stay of proceedings is required to remedy entrapment, and (iii) in cases of other abuses of process: Steven Penney, Vincenzo Rondinelli & James Stribopoulos, Criminal Procedure in Canada, 3rd ed (Toronto: LexisNexis, 2022) at pp. 888-890.
121An abuse of process may arise where the state conduct compromises the fairness of an accused trial (the “main” category) or where the state conduct creates no threat to the fairness of the trial but risks undermining the integrity of the judicial process (the “residual” category): R v. Babos, 2014 SCC 16 at para. 31.
122This case falls into the “residual” category. In dealing with the “residual” category, 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”: Babos at para. 35. Although this category looks at past misconduct by the state, it is intended to have a prospective remedial aspect. The question is whether the Court, by allowing the Crown to continue prosecuting the Applicant in light of the impugned state conduct would do further harm to the integrity of the justice system: Babos at para. 38.
123In most cases, claims based on the residual category are not ultimately successful. A stay is only granted in the “clearest of cases”: R v. O’Connor, [1995] S.C.J. No. 98 (QL) at para. 68. A stay of proceedings was granted where physical and psychological abuse was perpetrated by a state actor on a restrained prisoner: R v. Bellusci, 2012 SCC 44 at para. 25. A stay of proceedings was also granted where police inflicted a severe beating on an accused, causing permanent injuries. The police then attempted to conceal the abuse and were not prosecuted or disciplined for the misconduct: R v. Tran, 2010 ONCA 471.
124Some factors that have been considered in deciding whether a stay of proceedings is appropriate include:
a. the need to dispel any notion that the police are above the law in performing their duties, b. the potential for a positive prospective effect on the police in applying provisions of the Criminal Code or otherwise performing police duties, c. the obligation of the courts to preserve the integrity of the justice system by not allowing their processes to be used in the face of serious police misconduct, d. the necessity to avoid giving tacit approval of the misconduct in issue, e. the absence of an alternative remedy and the importance of providing a remedy that will act as a deterrent against the abuse of police powers: R v. Knight, 2010 ONCJ 400 at para. 26.
125The test for granting a stay of proceedings is the same no matter which category of abuse is alleged: Babos at para. 32. The Applicant must establish on a balance of probabilities that there is prejudice to his 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”, and that there is no alternative remedy capable of redressing the prejudice. The court must 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.
126The court must consider whether an alternative remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct: Babos at para. 39. The remedy in this case must be aimed at restoring the reputation of the justice system, not to provide redress to the Applicant for the wrong: Babos at para. 39.
127I find that in this case, the violations of the Applicant’s Charter rights do not warrant a stay of proceedings.
128Despite the excessive force used to arrest the Applicant, I am not satisfied that proceeding with the trial would do further harm to the integrity of the justice system. To the contrary. The alleged offences involve life-altering injuries to a third party who had nothing to do with the police misconduct. There is a strong societal interest in an adjudication of those charges on the merits. While this was a close call, I am of the view that the integrity of the justice system and public confidence in the administration of justice weighs slightly against a stay of the proceedings. The trial itself is not rendered unfair by the misconduct. And I find that other available remedies can restore the integrity of the justice system damaged by police misconduct in this case.
129There should be no doubt that this Court disassociates itself entirely from the abusive conduct of the state actors responsible for the various breaches noted above. However, a stay of proceedings overshoots the mark where there are other potential remedies.
130Those remedies include a substantial reduction in any sentence ordered and financial restitution, including compensation for the Applicant’s emotional and psychological suffering. In my view, these other remedies would contribute to respect for the administration of justice and protect the integrity of the justice system from further harm.
131In all the circumstances, I am not satisfied that a stay of proceedings is necessary to prevent further harm to the integrity of the administration of justice in this case.
Conclusion
132For these reasons, the Application is granted, in part. I will entertain further submissions as to quantum of both a reduction of sentence and financial restitution at the conclusion of the Applicant’s trial.
Chozik J.
Released: June 5, 2023
