Court File and Parties

COURT FILE NO.: CR-23-30000678-0000 DATE: 2024-01-09 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – ELIJAH GILMORE-BENT Applicant

COUNSEL: K. Papadopoulos, for the Crown H. Hussain, for Elijah Gilmore-Bent

HEARD at Toronto: December 4, 5, 6, 7 and 8, 2023

BEFORE: Penman J.

Overview

[1] Mr. Gilmore-Bent seeks a stay of the charges against him pursuant to section 24(1) of the Charter as a result of an alleged violation of sections 7 and 12 of the Charter. On December 12, 2023, I gave a ‘bottom line’ ruling granting the application with written reasons to follow. These are my reasons.

[2] Mr. Gilmore-Bent was charged with possession of a loaded firearm on March 24, 2022. On November 21, 2022, Mr. Gilmore-Bent was in custody at the Toronto East Detention Centre (TEDC), and was pepper sprayed in the face by corrections Officer Warburton who was tasked with placing the applicant in his cell. After Mr. Gilmore-Bent was pepper sprayed he was placed on a misconduct and spent fifteen days in segregation.

[3] The involved officers all filed Use of Force reports that it is alleged contradict the video recording of the event. The Duty Sergeant signed off on all the use of force reports that were submitted by the officers, notwithstanding the discrepancies with the video recording.

[4] Mr. Gilmore-Bent takes the position that the officers’ actions in deploying the pepper spray were an excessive use of force, and that the officers colluded to hide this use of excessive force in their reports. Mr. Gilmore-Bent argues further that there were systemic failures at the Toronto East Detention Centre in holding the officers to account. As such a stay is the only remedy in the circumstances. There is no assertion that procedural trial fairness will be affected by the continuation of the trial.

[5] The Crown’s position is that a stay of proceedings is the ultimate remedy and should only be granted when state conduct is so improper that it has overwhelmed the public interest in continuing a prosecution on the merits. The alleged state conduct in this case fails to meet that very high threshold. They argue that Mr. Gilmore-Bent has neither established a section 7 violation under the Charter nor that this matter is among the clearest of cases where a stay of proceedings is appropriate.

Legal Principles

[6] Sections 7 and 12 of the Charter provide:

7. 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.

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

[7] The use of excessive force in arresting a person, or during the currency of an arrest, has been held to be a breach of section 7 of the Charter right of “security of the person” and the section 12 right not to be subjected to “cruel and unusual treatment”.

[8] Section 25(1) of the Criminal Code provides that a police officer is justified in using 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. Regard must be had to the circumstances as they existed at the time the force was used. A police officer’s actions in using force must not be judged by a standard of perfection or measured with exactitude. Police do not have unlimited power and their use of force must be proportionate, necessary, and reasonable. R. v. Nasogaluak 2010 SCC 6 at para 34 and 35.

[9] Abuse of process cases fall into two categories. First, where state conduct compromises the fairness of an accused’s trial (the “main” category) and second, where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual category”): R. v. Babos 2014 SCC 16 at para 31.

[10] In this case, Mr. Gilmore-Bent is not arguing a threat to trial fairness but relies on the residual ground and argues that continuing the trial risks undermining the integrity of the judicial process:

[11] The test for determining if a stay of proceedings is warranted is the same for both categories:

a. There must be prejudice to the accused’s rights 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.” R. v. Regan 2002 SCC 12, 2002 161 C.C.C. (3d) 97 at para 54

b. There must be no alternative remedy capable of redressing the prejudice; and

c. 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”: see Regan at para 57; Babos at para 32.

[12] It is well established that a stay of proceedings is the most drastic remedy a court can order and should only be imposed in the “clearest of cases”: Babos paras 30 and 31.

A. Were Mr. Gilmore-Bent’s section 7 and section 12 rights violated?

[13] There is no question that Mr. Gilmore-Bent was pepper sprayed in the face by Officer Warburton. The question is whether that use of the pepper spray was justified, and whether the Use of Force reports were an attempt to hide any excessive use of force. In this case the overall circumstances that I have considered include the interaction between the officers and Inmate B that occurs before the incident with Mr. Gilmore-Bent. I will speak about Mr. Gilmore-Bent’s evidence and each officer’s evidence along with my findings.

Elijah-Gilmore Bent

[14] Mr. Gilmore-Bent testified that on November 21, 2022, he and two other inmates, Inmate B and Inmate R were out of their cells in the dayroom. Inmate B asked the officers on duty, Warburton and Akhtar for an early lock up to allow another group of inmate’s dayroom time. The request was denied, and Inmate B was upset and frustrated.

[15] About thirty minutes later Officers Warburton and Akhtar came on the unit for lockdown. Mr. Gilmore-Bent was on the phone but could hear Inmate B and Officer Warburton exchanging words back and forth. The officers approached Inmate B and told him to get into his cell. When Mr. Gilmore-Bent got off the phone, he went in the direction of Inmate B and the officer to ask Inmate B for some of his belongings that were in that cell. Mr. Gilmore-Bent’s cell was also right next to Inmate B’s cell.

[16] Mr. Gilmore-Bent observed Inmate B swing at Officer Warburton. Mr. Gilmore-Bent stepped forward toward the officers and Inmate B, and Officer Warburton told Mr. Gilmore-Bent to back up which he did. Mr. Gilmore-Bent testified he then stepped forward because he was concerned that Inmate B was going to be harmed. He said he would have stepped in if that had happened. Officer Warburton again told Mr. Gilmore-Bent to back up which he did. Officer Warburton deployed pepper spray into Inmate B’s cell and closed the door.

[17] Mr. Gilmore-Bent acknowledged being close to the officers and Inmate B but denied that he was trying to get involved or intimidate the officers. He did not expect Inmate B to take a swing at Officer Warburton. He was pressed on the movements he made towards the officers and agreed that he was trying to see what was going on but said it was out of concern for Inmate B. The video shows Mr. Gilmore-Bent close to the officers while they are engaged with Inmate B, but it also shows him complying with the officers demands to back up. I find that Mr. Gilmore-Bent was forthright in his evidence that he was not trying to provoke the officer but would have become involved had further harm come to Inmate B.

[18] Mr. Gilmore-Bent testified the pepper spray was bothering him, so he walked away. He can be seen on the video pulling his shirt up over his nose. He was upset and wanted to get back into his cell, but it was still locked. The officers approached and told him to get into his cell. He backed up so the door to his cell could open. Mr. Gilmore-Bent testified that Officer Akhtar had his arms outstretched in front of him but was not pushing him back. He moved back on his own to allow the cell door to open. He was cross-examined about whether Officer Akhtar’s arm was across his chest to which he replied it was not on his chest but pointing in front of him but on the side.

[19] As Mr. Gilmore-Bent walked toward his cell, he saw several other officers come on to the unit. It is clear from the video that Mr. Gilmore-Bent was looking towards the officers who had started to enter the unit. Mr. Gilmore-Bent denied threatening the officers or making a move to attack Officer Warburton. He testified being concerned having seen numerous other officers come on to the unit and just wanted to get into his cell. Mr. Gilmore-Bent’s evidence on this point made sense as he was clearly outnumbered by the officers and was the only inmate left in the dayroom.

[20] Mr. Gilmore-Bent testified that he was then pepper sprayed in the face by Officer Warburton. He described being in excruciating pain and rushing to the back of his cell. He denied turning around and attempting to leave the cell. His sink was not working so he used toilet water and milk to rinse the pepper spray out of his eyes. I accept Mr. Gilmore-Bent’s evidence that he did not turn around in the cell and attempt to leave or charge back out. This conclusion is supported by the video which does not show a direct view into the cell, but the entranceway is visible. Mr. Gilmore-Bent is never at the entranceway to the cell.

[21] Approximately forty-five minutes later Mr. Gilmore-Bent was taken to the shower to decontaminate. He was cross-examined about exaggerating the time it took for the officers to take him to the shower. The evidence from the other officers would suggest that Mr. Gilmore-Bent was taken to the shower within five to fifteen minutes after the incident. Mr. Gilmore-Bent explained that he did not have a watch and based his timing on the typical schedule that the officers would come to the unit every thirty minutes. I accept that Mr. Gilmore-Bent was wrong in his recollection of how long it took to take him to the shower, but also find that time would have been distorted given that he was in pain.

[22] When Mr. Gilmore-Bent was taken to the shower he remained handcuffed while his head and face were put under the water. On the way back from the shower his hair was dripping into his face and eyes and still had pepper spray in it. The pepper spray water was hurting his eyes, so he shook his hair. The officers threw him up against the wall angry that he was getting water on them. His cell and bedding still had pepper spray in it and was not cleaned.

[23] This general sequence of events was confirmed by Officer Blainey who was tasked with escorting Mr. Gilmore-Bent to be decontaminated. Officer Blainey testified that Mr. Gilmore-Bent shook his hair, so he was pushed up against the wall to prevent the pepper spray water from getting on the officers. According to Officer Blainey it was Mr. Gilmore-Bent’s responsibility to otherwise decontaminate himself and voice any concerns he had to the unit officers, Warburton, and Akhtar.

[24] Mr. Gilmore-Bent was placed on a misconduct and put in segregation for fifteen days. He was adamant that he cooperated with Sergeant Kamran that night and wrote a letter to the Deputy complaining about what had happened. No one from the institution ever spoke to him about the incident.

[25] Mr. Gilmore-Bent testified in an honest and straightforward manner. He acknowledged his own behaviour and did not try to exaggerate or minimize his actions.

Evidence of Officer Warburton

[26] Officer Warburton has been a correctional officer since 2018. On the night of November 21, 2022, he was working on Unit 4A with Officer Akhtar and Officer McGrath. He testified that Inmate B wanted an early lock up, but this was not facilitated. When he and Officer Akhtar returned to the unit at 8:00pm for lock up, Inmate B was frustrated, and they began having words. He asked Inmate B to return to his cell. Inmate B went into his cell but put his foot out to prevent the door from being shut. Officer Warburton testified that he was then struck in the face by Inmate B. Officer Akhtar went into Inmate B’s cell to secure him, and Officer Warburton became aware that Mr. Gilmore-Bent was getting close and told him to get back.

[27] Officer Akhtar testified that he left Inmate B’s cell once it was safe to do so. The video then shows Officer Warburton deploying the pepper spray into Inmate B’s cell, and quickly shutting the cell door. Initially Officer Warburton could not recall deploying the pepper spray into Inmate B’s cell, but once shown the video agreed that is what happened. He denied that he was ever angry or that he had sprayed into the cell to further punish Inmate B by filling the cell with pepper spray.

[28] Mr. Gilmore-Bent had come closer, so Officer Warburton again told him to get back. Officer Warburton called for a code blue so that other officers would attend the unit. Officer Warburton told Mr. Gilmore-Bent to go to his cell. The officer repeated several times in his evidence that he told Mr. Gilmore-Bent to go to his cell. What was not clear from the officer’s evidence, however, was that Mr. Gilmore-Bent’s cell was still locked. It would seem that this evidence was given to create the impression that Mr. Gilmore-Bent was not complying with the officers’ demands.

[29] Approximately fifty-eight seconds into the video footage, Mr. Gilmore is down the range away from the officers. Officer Akhtar appears to then be unlocking Mr. Gilmore-Bent’s cell and Officer Warburton is standing right beside him. Officer Akhtar outstretches his arms in front of Officer Warburton, seemingly keeping him away from Mr. Gilmore-Bent. Both Officers Warburton and Akhtar walk past Mr. Gilmore-Bent leaving their backs to him, as they go and secure Inmate R into his cell. Mr. Gilmore-Bent was now the only inmate left on the unit out of his cell. Officer Warburton testified that after they secured Inmate R into his cell, he believed Mr. Gilmore-Bent was a threat and needed to be secured in his cell.

[30] As they guided Mr. Gilmore-Bent towards the cell, Officer Warburton testified that he sensed that Mr. Gilmore-Bent was about to “attack” him based on Mr. Gilmore-Bent looking at his chest area and his clenched fists. It is clear on the video that Mr. Gilmore-Bent is looking towards the officers coming onto the unit and does not have clenched fists. Officer Warburton had no recollection of Mr. Gilmore-Bent saying anything abusive or threatening. Officer Warburton claimed that Officer Akhtar held his arms outstretched in front of Mr. Gilmore-Bent to prevent him from “charging” at him.

[31] Officer Warburton testified that Mr. Gilmore-Bent was “charging” towards him, so he deployed the pepper spray into Mr. Gilmore-Bents face. He was pressed on the use of the word “charging” with reference to the video and kept repeating the phrase “he was moving towards me”. On a careful review of the video, Mr. Gilmore-Bent was not “charging” at the officer. To the extent that Mr. Gilmore-Bent was “moving toward” the officer, this movement was so that Mr. Gilmore-Bent could get into his cell. I find that Mr. Gilmore-Bent was facing in the direction of Officer Warburton but also in the direction of the door to the unit where the officers were arriving. I do not accept that Officer Warburton had an honest belief that Mr. Gilmore-Bent was about to “charge” at or “attack” him. Officer Warburton was agitated and angry and was unable to control his behaviour while dealing with Mr. Gilmore-Bent.

[32] Officer Warburton in his Use of Force report wrote the following: “I had to tell I/M Gilmore-Bent several times during the escort to go towards his respective cell. Once I/M Gilmore-Bent entered cell #4308 I saw him move towards me. I believed I/M Gilmore-Bent was about to attack me so I sprayed the OC foam towards his face area, and CO Akhtar secured cell #4308 door.”

[33] This description of the event is inaccurate as it is clear from the video footage that Mr. Gilmore-Bent was not in his cell when Officer Warburton deployed the pepper spray. When asked about this in cross-examination Officer Warburton would not agree that what he wrote in the report was inaccurate. He just kept repeating that Mr. Gilmore-Bent was at the entrance to the cell area. The officer’s evidence on this point was disingenuous and an attempt to distance himself from the very words he used in his report which are obviously untrue.

[34] Officer Warburton testified that he continued to use the pepper spray after Mr. Gilmore-Bent was in his cell because he had turned around and was at the entrance way to the cell about to charge at him. On the video it is obvious that Mr. Gilmore-Bent rushed face first into the cell. The officer can be seen continuously spraying into the cell. The video footage angle does not show a direct view into the cell, but the entranceway is visible. Mr. Gilmore-Bent is never at the entranceway to the cell. I do not believe the officers evidence that Mr. Gilmore-Bent quickly turned around and made a movement towards the officer. This never happened and was an attempt by the officer to justify his continuous use of the pepper spray. I do not accept this evidence and find that this gratuitous use of the pepper spray was done out of anger.

[35] After the incident with Mr. Gilmore-Bent, Officer Warburton attended back at the window to Inmate B’s cell on two occasions and appeared to be yelling and gesticulating. He was taken by the arm and guided away by another officer. I find that Officer Warburton’s body language while he was outside the cell was agitated and angry. He walked past the other cells and gestured dismissively while walking past cell 3. Mr. Gilmore-Bent testified that the inmates in cell 3 were yelling and asking the officers to come take him to the shower to be decontaminated. Officer McGrath agreed that Officer Warburton appeared visibly angry after having been struck by Inmate B. I do not accept Officer Warburton’s denials that he was angry and find that he was angry about having been struck by Inmate B and was still angry at the time he was dealing with Mr. Gilmore-Bent.

[36] I find Officer Warburton both in his Use of Force report and in his testimony before me tried to dishonestly paint a picture that would justify his use of the pepper spray. I find that this attempt by Officer Warburton to create a version of events that would justify his actions, demonstrates that he knew what he had done was wrong.

[37] Officer Warburton denied writing his report in conjunction with any of the other officers. As will become apparent below I find several officers colluded together to write false reports to justify the use of the pepper spray. I find that Officer Warburton was one of these officers. Officer Warburton testified that no one ever followed up with him about this report. He has never had any follow up by the institution with respect to any of the use of reports he has written in his time as a correctional officer.

Officer Akhtar

[38] Officer Akhtar has worked as a correctional officer since March of 2022. He described Inmate B striking Officer Warburton. He had no recollection of Mr. Gilmore-Bent in the area at the time. Officer Akhtar guided Inmate B into the cell, and once it was safe to do so he left the cell. Officer Warburton deployed the pepper spray directly into the cell and closed the door.

[39] After securing Inmate R into his cell, he and Officer Warburton walked towards Mr. Gilmore-Bent to secure him in his cell. He was being verbally abusive, so the officer held his arms out in front of Mr. Gilmore-Bent. As Officer Akhtar guided him toward his cell, Mr. Gilmore-Bent “charged” at Officer Warburton and that is when the pepper spray was deployed. The video was played for Officer Akhtar, and he was pressed on his use of the word “charging” to describe Mr. Gilmore-Bent’s movements. Officer Akhtar maintained that was the correct description. Officer Akhtar’s evidence on this point is disingenuous. Mr. Gilmore-Bent does not charge at Officer Warburton as he is being guided into the cell.

[40] Officer Akhtar had no recollection of whether Officer Warburton used the pepper spray continuously once Mr. Gilmore-Bent was in the cell. He had no recollection of whether Mr. Gilmore-Bent turned around once he was inside the cell. He then testified that based on his report, Mr. Gilmore-Bent turned around in the cell and charged towards them. He was shown the video again and testified that he did not recall. On further cross-examination he maintained that once Mr. Gilmore-Bent was inside the cell he turned and charged towards them. I do not accept this evidence as it is clear Mr. Gilmore-Bent is not charging at the officers as he is being guided into his cell.

[41] Officer Akhtar in his Use of Force report wrote the following: “CO Warburton opened cell #4307, I then told I/M Gilmore-Bent, Elijah to go in his cell. He went inside his cell and just as I was about to close the door I/M Gilmore-Bent, Elijah started to charge towards us. CO Warburton then immediately used OC spray”.

[42] When shown the video Officer Akhtar acknowledged that Mr. Gilmore-Bent was not in his cell at the time the pepper spray was deployed. He explained that a lot was happening in the moment, and he had not remembered it correctly. He indicated that there was a lot of adrenalin flowing, and that he may have forgotten details.

[43] Officer Akhtar wrote his report approximately three hours after the incident. He could not speak to why he and Officer Warburton had made the same mistake in their reports and denied speaking with Officer Warburton or any other officer prior to writing his report. He had no explanation for why the rest of his report was accurate with respect to the video, and that this was the only mistake. The report was clearly written to leave any reader with the impression that the use of the pepper spray was justified. I do not accept Officer Akhtar’s explanation for the obvious discrepancy in his report about when and why the pepper spray was deployed.

[44] Officer Akhtar was also questioned about the number of Use of Force reports he has written in his time as a correctional officer. He responded, “I don’t recall”. When asked if it was more than 50, he responded “I don’t recall”. When asked if it was more than 100, he responded “I don’t recall”. When asked it was less than 2, he responded “I don’t recall”. When asked if it was less than 1, he responded “I don’t recall”. When asked if it was zero, he responded “I don’t recall”. This testimony was simply not believable and outright dishonest.

[45] Officer Akhtar’s Use of Force Report was a dishonest after the fact justification for Officer Warburton’s unreasonable use of the pepper spray. His evidence before this court was disingenuous and not truthful. His memory issues were contrived and not reasonable, and his explanation for the errors in his report were not believable.

Officer McGrath

[46] Officer McGrath has been a correctional officer since 2021. He was standing at the door of the unit watching his partners throughout this incident. He testified that Mr. Gilmore-Bent was being instructed to go to his cell and that he was not complying with this demand. On cross-examination he acknowledged that Mr. Gilmore-Bent’s cell was locked and that what he meant was that Mr. Gilmore-Bent should have stood outside his cell.

[47] He agreed that Mr. Gilmore-Bent had to walk towards Officer Warburton to make his way into the cell, given where Officer Warburton was standing. Officer McGrath initially described in his evidence and in his use of force report that Mr. Gilmore-Bent’s “lunged” towards Officer Warburton. When cross-examined on this in reference to the video, he claimed that “lunging” and “moving forward” are the same thing. Officer McGrath testified that Mr. Gilmore-Bent’s chest was pressed up against Officer Akhtar’s arm and that this indicated an abrupt movement.

[48] I find that the officer’s use of the word “lunging” in his report and in his evidence was an attempt to paint a picture that would justify Officer Warburton’s use of the pepper spray. The change in the officer’s description of Mr. Gilmore “lunging” to “moving forward” when confronted with the video was disingenuous.

[49] Officer McGrath also explained that he himself has been pepper sprayed and did not find it particularly painful, and instead “kind of laughed through it”. He testified that it is worse breathing pepper spray in the air, than having it sprayed into one’s face and eyes. This defies common sense and was also directly contradicted by Sergeant Kamran who said being sprayed in the face and eyes is obviously much worse. This was an attempt by Officer McGrath to minimize the severity of what had been done to Mr. Gilmore-Bent.

Officer Blainey

[50] Officer Blainey worked as a correctional officer beginning in 2018 until he became a police officer in 2023. He was working on Unit 2A at the time the Code Blue was sounded. Officer Blainey testified that when he arrived at the unit door, he saw Officer Warburton deploying the pepper spray and the cell door was being closed and secured.

[51] Officer Blainey was taken to his use of force report where he said, “Once I had entered the west side I saw CO Warburton check inmate Gilmore-Bent Elijah #1001542180 into cell #4307 giving tactical communication for him to get back. I/m Gilmore-Bent did not comply and made another attempt to rush out of his cell. CO Warburton then deployed his Oleoresin Capsicum (OC)foam on I/M Gilmore-Bent in order to shut and secure the cell door safely”.

[52] This description of the event is entirely inaccurate. When asked about this Officer Blainey testified that once the cell door was secured, he heard a sound from inside the cell as though someone was kicking the door. He interpreted this to mean that the inmate was trying to come out of the cell. He acknowledged that his report should have included these new details. He also agreed that if he did hear something, he could not be sure what the sound was or that it was coming from Mr. Gilmore-Bent’s cell. He denied the suggestion that he was making up the detail about hearing the bang on the door to account for the difference in his report to the video.

[53] Officer Blainey’s explanation in his evidence about hearing a bang, does not make sense when looking at the video. I do not accept the officer’s repeated assertion that the report was not inaccurate but simply poorly articulated on his part. I find that Officer Blainey’s evidence was not truthful and not believable. His account of the event in his report was written as a justification for Officer Warburton’s use of the pepper spray, and his evidence in court was a dishonest attempt to fix the problems with that account.

Officer Boes

[54] Officer Boes has been a correctional officer since 2018. He was also working on Unit 2A when the Code Blue was sounded. As he was entering 4A he testified that based on his report he saw the inmate move toward Officer Warburton.

[55] He agreed that in his career he has written many Use of Force reports and never had a superior officer follow up with respect to the contents of his report, other than one occasion for a minor omission.

Sergeant Kamran

[56] Sergeant Kamran has been a correctional officer since 2018 and became a Sergeant in July of 2022. He was the sergeant on floor duty the night of November 21, 2022. He responded to the code blue and afterwards had to complete paperwork with respect to the incident. As part of his duties, he reviewed and signed off on all the Use of Force reports that were submitted by the officers. The Sergeant explained that he has never had a Use of Force report provided to him that was not accurate. It has never happened but if there was a mistake in the report, he testified that he would just ask the officer to re-write the report.

[57] On this occasion he testified that when the code blue was called, he ran to the unit. When he arrived Mr. Gilmore-Bent was moving towards his cell, and he did not see anything that would suggest Mr. Gilmore-Bent was not complying. He agreed that assuming Mr. Gilmore-Bent was not threatening the officers verbally, there was no need for pepper spray to have been used. He also agreed that at the time the pepper spray was deployed, Mr. Gilmore-Bent was outside of his cell and not charging or lunging at the officers.

[58] Sergeant Kamran initially testified that he reviewed all the Use of Force reports and did so while reviewing the video footage. He signed off on all the reports and did not follow up with any of the officers. When asked if the reports in this case were consistent with the video footage, he said they were. Sergeant Kamran was then shown the reports of Officers Warburton, Akhtar and Blainey where they describe Mr. Gilmore-Bent inside his cell at the time the pepper spray was deployed. He agreed the reports were not accurate. He testified that he must not have been paying attention and acknowledged that he had failed in his duty in ensuring the officers were truthful in their reports.

[59] Sergeant Kamran denied the suggestion that it was possible the officers collaborated and believed that the officers were just doing their best to remember the event. Once Sergeant Kamran signed off on the reports, he understood they would then be reviewed by a Staff Sergeant. The implication of this evidence seemed to be that it would become someone else’s responsibility.

Was Officer Warburton’s use of Pepper Spray Reasonable?

[60] The video was played several times in court, and I have been able to review it in slow motion and frame by frame. I am mindful of the caution from the Supreme Court that trial judges should be careful in their assessments of officer conduct in situations where officers must exercise discretion and judgment in difficult circumstances. Trial judges are not to become “Monday morning quarterbacks”: R. v. Cornell 2010 SCC 31 at para 24.

[61] I find that Mr. Gilmore-Bent did not lunge, charge at, or take an aggressive step towards Officer Warburton. Officer Warburton positioned himself such that Mr. Gilmore-Bent would have to pass by within inches of him to get into his cell. Mr. Gilmore-Bent had to maneuver past the cell door to get into the cell. It makes sense that when the other officers came racing on to the unit Mr. Gilmore-Bent’s attention was going to be drawn to them.

[62] There was no indication that Mr. Gilmore-Bent was not complying with the instruction to enter his cell, and Officer Warburton agreed that Mr. Gilmore-Bent was not saying anything abusive or threatening. Mr. Gilmore-Bent was the only inmate out of the cell so there was no other threat from the unit. Other officers were streaming on to the unit to assist in response to the code blue. Officer Warburton is significantly larger than Mr. Gilmore-Bent, and his partner was right beside him.

[63] In his evidence Officer Warburton described Mr. Gilmore-Bent “stepping forward” as a justification for why he felt unsafe. But this is not what Officer Warburton wrote in his use of force report. On any reading of his report, Mr. Gilmore-Bent had already entered his cell and at that point turned around and moved towards him. This is a very different description of the event that I find was intentionally written to justify his actions. Officer Warburton, remarkably, refused to agree that these were different descriptions, repeatedly saying Mr. Gilmore-Bent was at the entrance to the cell.

[64] Having considered all the evidence, I am satisfied that Officer Warburton’s deployment of the pepper spray into Mr. Gilmore-Bent’s face was an excessive and unnecessary use of force. I also find that the continuous deployment of the pepper spray on the back of Mr. Gilmore-Bent into the cell was gratuitous. Officer Warburton was angry, understandably so, about having been punched in the face and was unable to control his behaviour when dealing with Mr. Gilmore-Bent. I am satisfied that Officer Warburton’s use of the pepper spray on Mr. Gilmore-Bent was gratuitous, borne out of anger, and not reasonable.

[65] I find that this is aggravated by the fact that Mr. Gilmore-Bent was placed on misconduct and had to spend fifteen days in segregation.

[66] If Officer Warburton was the only officer to have dishonestly covered up the use of force, this would be an isolated issue. But the dishonest use of force reports and testimony by several other officers causes this court great concern.

The Use of Force Reports

[67] Correctional Officers are required to fill out Use of Force reports anytime there is use of force. In this case all the officers filled out Use of Force reports shortly after the incident, which were then reviewed by Sergeant Kamran. All the officers testified that they understood they were required to be truthful about the incident. They all indicated they wrote their reports independently of the other officers and did so without having reviewed the video footage.

[68] All the officers wrote their reports in a way designed to leave the reader with the impression that Mr. Gilmore-Bent was about to attack Officer Warburton. This is just not accurate when looking at the video. He did not charge, attack, or lunge. It was necessary that he “move forward” to get into his cell. I find that the language used by the officers was intentional. It defies coincidence that all the officers would coincidentally happen to have the same general description in their reports and that this description provides an inaccurate justification for the use of the pepper spray.

[69] Officer Warburton, Officer Akhtar, and Officer Blainey all wrote in their reports that Mr. Gilmore-Bent was inside his cell when the pepper spray was deployed. Again, this is entirely inaccurate when looking at the video. It is very suspicious that these officers all make the same mistake in their reports when it is so obviously wrong. There is no other explanation on the evidence other than the officers discussed amongst themselves what they would write in their reports to support their fellow officer.

[70] Before me Officer Warburton would not agree that his characterization of the event was inaccurate. Officer Akhtar testified that any discrepancies were because of adrenalin and getting the details wrong. Officer Blainey added details to explain his report. This evidence was designed to mislead the court not just about the event itself, but what took place in the writing of the reports.

[71] I am satisfied that several of the officers colluded or at minimum discussed their reports with other officers with a view to supporting Officer Warburton. I also find that they then misled the court with respect to this conduct.

[72] I am satisfied on a balance of probabilities that there has been a violation of Mr. Gilmore-Bent’s rights under s. 7 and 12 of the Charter.

B. Is a Stay of Proceedings the Appropriate Remedy?

[73] The misconduct that is at issue in this case is not just the unreasonable use of the pepper spray in Mr. Gilmore-Bent’s face, but the conduct of the officers in the writing of their reports to hide this use of force, misleading this court about that conduct, and finally the culture of complacency at the institution resulting in no accountability for officer misconduct. Unlike the misconduct in Babos, I find that this conduct must be looked at cumulatively, because it is all part of one ongoing course of misconduct.

Would proceeding to trial do further harm to the integrity of the justice system?

[74] There is no doubt that only in rare cases would the appropriate remedy be not to proceed with a trial: Babos para 36. However, our courts have recognized that there are “diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.”: see R. v. O’Connor, [1995] 4 S.C.R. 411 at para 73. The question is whether the misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society’s sense of justice.

[75] In R. v. Bellusci 2012 SCC 44, Fish J., found that a stay of proceedings was warranted where a prison guard recklessly provoked and then grievously assaulted the accused while he was chained, handcuffed and defenceless. The trial judge in that case had considered other available remedies including a reduction of sentence and the possibility of legal or disciplinary proceedings against the jail guard, and none were found to be adequate. The court at para 29 expressly approved of the balancing of interests including the difficult position of prison guards, the importance of ensuring their protection, the seriousness of the charges against the accused, the integrity of the justice system and the nature and gravity of the violation of Mr. Bellusci’s rights.

[76] In R. v. Singh 2013 ONCA 750, two police officers administered beatings to an accused for the express purpose of getting him to confess to a serious robbery. The court made clear that the serious nature of the charges, the absence of fair trial issues and the nature of the injuries inflicted were not “controlling” of the issue, but that the conduct involved went to the heart of the integrity of the justice system.: see para 42. The court found that the conduct of the police officers was not a momentary overreaction by a police officer caught up in the moment but was a calculated, prolonged investigative technique developed by the officers to secure evidence.

[77] The court also noted that there appeared to be no indication that the officers had been called to account in any meaningful way. Balancing the competing interests, the court found that the misconduct on the part of the officers and any lack of accountability suggested systemic implications, including the fact that similar assaults were committed against the co-accused.: see para 48.

[78] In R. v. Tran 2010 ONCA 471, when the accused surrendered himself to police, he was subject to a beating at the hands of two officers resulting in a broken jaw and permanent injury. The officers attempted to cover up their behaviour and the Crown then permitted them to remain in the courtroom to assist with the prosecution. There was no need for the officer conduct in that case, given the accused was surrendering himself to police. The misconduct in that case continued with the officers destroying evidence, lying to fellow officers, and perjuring themselves in court. Sentence reduction was generally available considering the “punishment” that had already been meted out. However, the nature and degree of the misconduct demanded a remedy that went beyond an adjustment to sentence.: see para 92-94.

[79] Like in Singh, there was also no evidence of any effective response to the police misconduct. “It is not for this court in this appeal to concern itself with punishment for those who abused Tran. It is, however, for this court to affirm the fundamental values of our society and to respond to actions that undermine the integrity of the justice system. The failure of the SIU and other authorities to follow through with a meaningful investigation also militates in favour of a stay.”: see para 102. The court found that the extent of the misconduct was an affront to decency and fair play that precluded any societal interest in the prosecution of the case.: see para 107.

[80] In R. v. Spagnoli 2011 ONSC 4843 in the context of a search warrant application of a large marijuana grow operation, concerted efforts were made by the affiant to conceal and lie about the identity of the main source that led to the commencement of the investigation. At para 47 the court, in staying the proceedings found that “…the courts expect that the police will testify truthfully. If the courts permit cases to go ahead notwithstanding police lying, this will not long be the case. If police lying is tolerated by the courts, they will soon lose the respect of the community.”

[81] In R. v. Walcott 2008 CarswellOnt 1423 (Ont.S.C.J.) officers executing a search warrant and arrest, tasered an accused at a time when he was lying on the ground, handcuffed and under control and compliant. A stay of proceedings was granted based on the conduct of the officers rising to the level of “egregious act of misconduct” outweighing societal interest in the prosecution of the drug offence.: see para 129-130.

[82] Inmates housed in pre-trial detention are at the mercy of their jailers. They are beholden to the correctional officers for their basic needs and expect that they will be treated fairly and justly. There is no question that there are limits and rules placed on inmates to ensure smooth and proper management of the institution, and there can be danger involved for officers when dealing with inmates in certain situations.

[83] The conduct in this case is not just an isolated incident of an excessive use of force. In addition to that, several of the officers then dishonestly filled out use of force reports to justify that use of force. Their brazen account of the incident in relation to where Mr. Gilmore-Bent’s was situated at the time he was pepper sprayed, was false and easily contradicted by the video. The seeming ease with which this falsehood was promulgated by not one but three of the officers is disturbing.

[84] The superior officer tasked with the oversight of those officers that night, signed off on all their reports notwithstanding his later acknowledgement in court that the reports were not accurate. Either he was woefully negligent in his duties, or he turned a blind eye to this improper officer conduct. It is also of concern to this court that this same Sergeant indicated that had he noticed similar errors in a report, he would have just asked the officer to re-write the report. This is far from a satisfactory response and does nothing to alleviate the courts concern that these practices will continue.

[85] The officers’ testimony before this court is also very troubling and I find indicative of a significant problem with officer conduct and accountability. Officer Warburton’s insistence in the face of video evidence, that Mr. Gilmore-Bent was “charging” at him, and that his report was accurate. The other officers filing inaccurate reports and then coming to court and attempting to support their fellow officer, even when confronted with video evidence. All had different explanations for why their reports were contradicted by the video but nonetheless stuck to their positions with little hesitation.

[86] When dealing with the first branch of the test, I find that there would be a loss of public confidence in the legal and judicial process if the prosecution in this case were to continue. The conduct in this case cannot be described as “unwise, unnecessary, inappropriate or improper”.: R. v. Currado 2023 ONCA 274 at para 17. The conduct in this case was wrong, excessive, and dishonest. The conduct in this case, were it to continue, “would continue to trouble the parties and the community as a whole in the future”.: R. v. Tobiass [1997] 3 S.C.R. 391 (S.C.C.) at para 91.

[87] I am satisfied that this conduct looked at in its entirety is “offensive to societal notions of fair play and decency”, and proceeding with the trial would be harmful to the integrity of the justice system: Babos para 34. This is not simply the case of an officer going too far and assaulting an inmate in the context of an emotionally charged situation. The officers as a group then wrote their reports with a view to ensuring there would be no accountability. The impunity with which the officers then came to court and continued to mislead, obfuscate, and simply not tell the truth, was shocking and disturbing. This is what constitutes the ongoing nature of the misconduct in the circumstances of this case. To continue with the trial considering this kind of misconduct would be an affront to societal norms of fair play and decency and serve to undermine the integrity of the justice system.

Is there an alternate remedy available?

[88] With respect to the second question of whether there is an alternate remedy capable of addressing the prejudice, counsel for the Crown argued that I could craft reasons that would effectively condemn the conduct of the officers. Reasons are written for an audience that includes police officers and correctional officers and would send a message that this kind of behaviour will not be tolerated.

[89] I am not satisfied that this alternate remedy is sufficient to address the prejudice in this case. I agree that reasons play a very important role in the administration of justice. In the context of jail conditions and pre-trial custody detention, particularly at the Toronto South Detention Centre, there are dozens of pronouncements from various courts across this province condemning the conditions and calling for change. Notwithstanding these repeated findings by trial courts, very little has changed: R. v. Persad 2020 ONSC 188. I am not confident that my reasons would meaningfully redress the conduct in this case. While my reasons would express the dissatisfaction of the court, there is nothing on the evidence to suggest the issues would not continue.

[90] The Crown also argued that sentence reduction is an appropriate alternate remedy. Counsel for Mr. Gilmore-Bent argued that if this was just a question of an isolated excessive use of force, sentence reduction might have been appropriate but when considering the cumulative nature of the misconduct, a stay is the only appropriate remedy.

[91] I agree. Sentence reduction is generally available for the excessive use of force.: see Nasogaluak at para 56-64 However, I do not find that sentence reduction is an available remedy for the misconduct relating to the obstruction of justice and false testimony. These issues have no connection to the sentencing exercise, as “the charter breach must bear upon the circumstances of the offence or the offender.”: see R. v. Claros 2019 ONCA 626 at para 71.

[92] Specifically, the conduct in this case is not an isolated incident of an officer deploying his pepper spray in the face of an inmate in the context of losing his temper. The conduct continued with the dishonest use of force reports, a complacent attitude at the institution with respect to officer conduct, and misleading testimony before this court.

[93] The deployment of the pepper spray, although a serious violation, did not result in serious or lasting injuries to Mr. Gilmore-Bent. The continued misconduct had nothing to do with Mr. Gilmore-Bent and none of the misconduct had anything to do with the offence itself. There is nothing about the Charter breaches in this case that relate to the principles of sentencing and for that reason, I am not satisfied that a sentence reduction would be an appropriate remedy: see Claros at para 74.

[94] I also note that Mr. Gilmore-Bent has no criminal record and has been in custody on these charges since March of 2022, approximately twenty-one months of actual time. When his pre-trial credits are factored in, his pre-trial custody could be in the range of three years, putting him at the low end of the appropriate range of sentence for a first offence, firearm conviction. I understand that the defence position is one of time served. The Crown takes the position that they would be asking for an additional year in custody, depending on Mr. Gilmore-Bent’s personal circumstances. Of course, the remedy of sentence reduction depends upon a conviction or guilty plea, neither of which have yet occurred.

[95] For all these reasons, I am not satisfied that sentence reduction would sufficiently address the prejudice in this case.

Balancing of Interests

[96] This third stage of the test takes on added significance in cases like this one where the residual category is invoked. The question is whether having a trial on the merits or staying the proceedings better protects the integrity of the system: Babos paras 40 and 41.

[97] The conduct in this case is serious and it is cumulative. The excessive use of force was administered by an officer mandated with responsibility for the inmate. After the incident, very little was done to ensure that the aftereffects of the pepper spray were mitigated and in fact Mr. Gilmore-Bent was left to deal with it himself. It was suggested by the officers that it was the unit officer’s responsibility to ensure that Mr. Gilmore-Bent had a change of clothing and bedding, and that it was up to Mr. Gilmore-Bent to tell the officers if there were any issues. This is not a reasonable position when the very officers responsible for his basic needs were the ones who assaulted him.

[98] The excessive force is further aggravated by the fact that Mr. Gilmore-Bent was then charged with a misconduct and spent fifteen days in segregation.

[99] This is not just a question of an excessive use of force on its own. The officers then attempted to cover up the use of force. It is clear from the evidence that several of the officers wrote their reports in such a way as to justify why Officer Warburton deployed the pepper spray in Mr. Gilmore-Bent’s face. But the key elements about why Mr. Gilmore-Bent was pepper sprayed are just not true when looking at the video. It is not reasonable on the evidence to assume that by coincidence the officers would make the same general mistake in their reports, that would just happen to justify the use of the pepper spray.

[100] The institutional culture appears to be that there is no oversight or management of use of force situations, and the officers were aware of this. All the officers have filed numerous Use of Force reports in their years as correctional officers. Not one of the officers had ever been spoken to by a supervising officer with respect to the contents of their report. Not one of the officers was aware of a policy or process that would be followed in the case of alleged officer misconduct. All the officers provided examples of scenarios they imagined would happen, but that evidence did not come close to establishing any awareness of actual oversight or management of officer conduct in use of force situations.

[101] The fact that these officers wrote their reports in this fashion, while knowing they were being videotaped speaks to this institutional culture. It was clear from all the officers that they never expected to have to explain what happened and why they wrote what they did in their reports.

[102] I also have great concerns about the testimony of several of the officers. Refusing to acknowledge an obvious contradiction between a report and a video recording, is unreasonable. Refusing to answer an obvious question claiming no memory is disingenuous and not believable. The evidence of these officers was calculated to mislead the court not just about the event itself, but what took place in the writing of the reports. My finding that the officers were dishonest in their testimony is another relevant factor I have considered in the balancing exercise and conclude that the court must strongly dissociate itself from such conduct: R. v. Harrison 2009 SCC 34 at para 26.

[103] There is no doubt that there is a heightened societal interest in the prosecution of firearms offences: R. v. Campbell 2012 ONCA 394 at para 18. Our courts have repeatedly commented on the plague of gun violence in Toronto. In this case Mr. Gilmore-Bent is alleged to have had in his waistband a fully loaded firearm while in a mall and then a car in the parking lot of the mall. I understand that the Crown’s case is strong.

[104] The misconduct in this case is serious, cumulative and does not lend itself to an individualistic approach: see Babos at para 73. It is also systemic, there has been no accountability and there is no evidence to suggest that it will not continue.

Conclusion

[105] Having considered all the evidence and submissions, I am satisfied that Officer Warburton’s deployment of the pepper spray into Mr. Gilmore-Bent’s face was an excessive and unnecessary use of force. I find that this is aggravated by the fact that Mr. Gilmore-Bent was placed on misconduct and had to spend fifteen days in segregation. This continued when the officers dishonestly and intentionally attempted to cover up the assault by writing false reports and giving false testimony in court. I am satisfied on a balance of probabilities that there has been a violation of Mr. Gilmore-Bent’s rights under s. 7 and 12 of the Charter.

[106] In the circumstances of this case, I find that a stay of proceedings is warranted for the following reasons. First, the excessive use of force by Officer Warburton was borne out of anger and an inability of the officer to control his behaviour, in the context of being responsible for the safety of the inmate. This is aggravated by Mr. Gilmore-Bent spending fifteen days in segregation as punishment. Second, the officers attempted to cover up the assault by writing false reports and then misled the court with respect to the event and their writing of the reports. Third, the evidence suggests a systemic institutional problem of a lack of oversight and accountability with respect to issues surrounding use of force.

[107] Notwithstanding the serious nature of the crime alleged by the Crown, this is one of those “clearest of cases” where the exceptional remedy of a stay of proceedings is warranted.

Penman J. Released: January 9, 2024