COURT FILE NO.: CR-19-1669-0000 DATE: 2024-04-17

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Brendan Jackson, for the Crown Brennan.Jackson@ontario.ca

- and -

ALAN KUMAR Jag Virk for the Accused office@jagvirklawyers.com

HEARD: In Writing

REASONS ON DEFENCE APPLICATION TO RE-OPEN HIS APPLICATION FOR EXCESSIVE USE OF FORCE, DECIDED BY BARNES J. WITH REASONS RELEASED 9 OCTOBER 2020

Trimble J.

Introduction

[1] The offender, Alan Kumar, seeks to reopen his Application to stay his conviction on five charges arising from a home invasion which occurred on 30 January 2018, or to reduce the sentence (yet to be determined) because the arresting officer used excessive force when arresting him, and then, with other police officers, conspired to cover up the excessive use of force.

[2] The original Application was heard by Barnes, J in May 2020, and dismissed by reasons dated 9 October 2020.

[3] The basis for this Application to reopen the excessive use of force Application is a) the disclosure at trial of the McNeil Reports relating to Constable Osborne, the officer in charge of the investigation into the home invasion, which reveal two disciplinary actions, the second of which resulted in his pleading guilty to assault and resigning from the Peel regional police, and b) the evidence adduced at Mr. Kumar’s trial.

The Application

[4] The parties agreed that this Application to reopen the excessive use of force Application would be determined in writing, based on the following material filed in Caselines:

a) Application Record of the Applicant re-section 7 and 11, and Exhibits and Affidavit of Mr. Kumar filed and uploaded to Caselines 7 December 2023;

b) Transcript of the proceedings before Barnes, J, of 2 and 11 March 2020 (comprising the argument only);

c) Affidavit of Megan MacKinnon sworn on 4 March 2024;

d) Applicant’s factum

e) Crown’s factum and exhibits – abuse of process, filed and uploaded to Caselines on 7 December 2023,

f) Crown’s factum uploaded to Caselines 8 March 2024

[5] The material filed in December 2023 related to Mr. Kumar’s Application seeking a declaration of Crown misconduct and abuse of process. However, the Affidavits is relevant to this application.

[6] The original Application Record was not placed before me nor were the transcripts of the evidence. From transcripts of the argument, it appears that Barnes, J., had before him the proceedings at the Primary Hearing (or relevant parts thereof), and the Affidavits attached to the original Application Record. It is unclear who gave evidence in front of Barnes J. and whose evidence came from the transcripts at the preliminary hearing.

[7] I have had the benefit of Officer Bothman’s and Officer Mahal’s evidence at Mr. Kumar’s trial.

[8] The Applicant and Crown advise that I have all I need to decide whether to reopen the excessive force Application in light of the new evidence of the McNeil Reports and criminal record of Officer Osborne. The re-opened Application will be brought on a full record, later, should I grant leave.

Preliminary Matters

[9] The parties agree that I have jurisdiction to a) hear the Application to reopen the excessive force Application, and b) to hear that Application anew, should I grant leave to reopen it.

[10] After reviewing the submissions and law proffered by Mr. Kumar, I agree I have jurisdiction to hear this leave Application (see: R. v. Farrah, 2011 MBCA 49, at para. 22 to 23; R. v El Zahawi, 2023 ONSC 2686, at para. 49 to 51 and 60 to 78; and R. v. Cunsolo, 2009 ONSC 23377, at para. 28 to 32).

[11] The Crown concedes that Mr. Kumar meets the admissibility and due diligence components of the Palmer and Truscott test to reopen the Application, discussed below, leaving to me to determine only whether the fresh evidence could reasonably be expected to have affected Barnes, J.’s original decision.

Result

[12] For the reasons set out below, Mr. Kumar’s Application to re-open his Application re the use of Excessive Force, is dismissed.

Background

The Home Invasion

[13] At 8:08 pm, January 30, 2018, Peel Regional Police sent a radio call asking officers to attend a home invasion that was in progress at 33 Mellowood Avenue in Brampton.

[14] Constable Bothman, and his partner that day, Constable Mahal, were in an unmarked police vehicle. They, with other police units, rushed to 33 Mellowood. Andy Chey, Allan Kumar, Song Sin, and Hashmatullah Lutfi were arrested and charged with various charges related to the alleged home invasion.

[15] Constable Bothman arrested Mr. Kumar.

Trial

[16] Mr. Kumar was charged with five counts arising from his alleged involvement in the home invasion: robbery, unlawful confinement, breaking and entering, using a handgun while doing so, and wearing a mask while doing so.

[17] On 20 December 2023, after 13 days of trial, the jury convicted Mr. Kumar of all five counts.

Proceedings Before Barnes J.

[18] The Application before Barnes, J. was heard on 2, 3, 4, 5, 9 and 11 March 2020. While the endorsement is not clear, it appears that Barnes, J. delivered his “bottom line” orally on 14 May, with reasons to follow, which were delivered 9 October 2020.

[19] Mr. Kumar alleged before Barnes J, that after he was handcuffed, Constable Bothman smashed his head on the ground five times, injuring his nose and face. Constable Bothman denied the allegations. Mr. Kumar submitted that racial prejudice and an unrestrained adrenalin rush were the reasons for Constable Bothman’s actions. Mr. Kumar’s alleged a breach of his section 7 and 12 Charter rights as a result of the use of excessive force by Constable Bothman. Finally, he alleged a conspiracy or cover up involving Officer Bothman and Officer Osborne, the office in charge of the investigation. He sought a stay of the proceedings against him or a reduction in sentence should he be convicted of the charges.

[20] Barnes, J., dismissed Mr. Kumar’s Application, holding that Mr. Kumar had not met his onus to establish, on a balance of probabilities, that Constable Bothman used excessive force when he arrested Mr. Kumar. In dismissing the Application, Barnes, J. made the following observations and conclusions:

a) Mr. Kumar brought no admissible evidence of his injuries. It was all hearsay, but even if admissible, that evidence did not support his claim that Officer Bothman used excessive force.

b) Mr. Kumar was not a credible witness. He embellished his injuries;

c) The photographs and video of Mr. Kumar at the police station did not support his position.

[21] Barnes, J., commented as follows on the police evidence:

a) He did not find Officer Bothman’s evidence convincing. There were holes in his notes. He failed to provide two pages of his notes before he was cross-examined. Further, Officer Bothman attempted to minimize the amount of the force he said he used. Barnes, J. rejected his evidence unless it was corroborated by other evidence.

b) Barnes, J. also rejected Mr. Kumar’s argument that withholding these two pages of notes was done for a nefarious purpose.

c) Barnes, J, rejected the argument of police collusion. He accepted the evidence of Constable Bothman’s partner, Constable Mahal, of Constable Pileggi, and of Staff Sergeant Douglas. The discrepancies in their evidence precluded collusion.

d) Mr. Kumar did not make out any racial motivation.

[22] On all of the evidence, Barnes, J., held that Officer Bothman’s conduct was objectively reasonable in all the circumstances.

The Late Disclosure of Officer Osborne’s McNeil Reports

[23] On the second day of trial, Mr. Kumar raised a disclosure issue. His counsel discovered by way of a Google search that Officer Osborne had been disciplined and ultimately dismissed in 2020 because he assaulted an accused in his custody in another, unrelated incident. Mr. Kumar asked for a mistrial. The Crown objected, and, in light of the allegations made against the Crown appearing at trial, I ordered that an Application be brought on proper materials. As a result, Mr. Kumar has filed an Application for a dismissal based on police abuse of process which is yet to be held. The material Mr. Kumar filed on that Application, however, is relevant to this Application.

[24] Mr. Kumar’s counsel’s student filed an Affidavit sworn 7 December 2023 in which he attested:

a) “Before beginning the jury trial” the defence asked for an updated criminal record for all witnesses and a McNeil report for all officers. No written request was appended to the Affidavit. The Crown advised that there were no criminal records for any of the witnesses nor McNeil reports for the officers.

b) On the 3rd day of trial “…this was found to be a misrepresentation and blatant lie.”

c) On 4 December the Crown produced the criminal records and McNeil reports for all witnesses but Officer Osborne.

d) It was only on the first day of trial, when the Defence asked that the OIC at the table with the Crown be excluded as he would be a witness, that the Defence was told that the OIC at the table was not OIC on this case, and only through the first police witness did the Defence learn that the OIC was Officer Osborne.

e) On 6 December, one of the victims of the home invasion met with Office Osborne wanting to change his statement. Osborne warned him to tell the truth.

f) At the request of the Defence, the Crown issued a subpoena for former Officer Osborne and agreed to produce Osborne’s criminal record and McNeil report.

g) By the end of 6 December, the Crown sent by email Officer Osborne’s criminal record which showed a conviction for assault, but not what the charges were. The Crown sent the McNeil report at 4:31 that day.

[25] The Crown produced the email exchanges which provided a different account of requests for information.

a) On 29 November the Crown emailed the Defence providing the Crown’s witness list, which included several police officers who might testify, but not Officer Osborne.

b) On 2 December, the Defence replied to the Crown’s email asking for McNeil reports for “all the officers”, referring to the officers in the Crown’s proposed witness list. These McNeil reports were provided on 4 December.

c) On 4 December, the Defence requested that the Crown make officers Trainer and Osborne available at trial.

d) On 6 December, the Crown provided Officer Osborne’s McNeil Report to the Defence.

[26] For this Application, Mr. Kumar’s counsel’s new student filed an Affidavit attaching Osborne’s McNeil Report and criminal record. In it, she said that the Crown withheld facts relating to Office Osborne until after the Excessive Force Application had been decided.

[27] For the purposes of this motion, I have accepted the Defence students’ nonspecific statements of requests and responses for McNeil reports except where the Crown has provided specific evidence, in which case I accept the latter. I have ignored the opinions and characterizations of Crown conduct proffered by the Defence’s students. They are conclusory and argument.

Officer Osborne’s Conduct

[28] The new information on which Mr. Kumar wishes to revisit his Application for excessive force relates to two aspects of Officer Osborne’s conduct, one more serious than the other.

[29] The first and more serious of the two incidents is found in the McNeil report, Officer Osborne’s criminal record, and the agreed statement of facts filed a Mr. Kumar’s trial.

[30] On 14 November 2019 (22.5 months after Mr. Kumar’s arrest), Officer Osborne arrested an accused. He was charged with assault of that accused while he was in Officer Osborne’s care. Whether Officer Osborne faced other charges is not clear. On 26 February 2021, he pleaded guilty to assault of that accused person and was given a suspended sentence with one year probation. As a result of his conviction, on 11 July 2022, he resigned from the Peel Regional Police Force.

[31] The second event is recorded in Officer Osborne’s McNeil report which indicates that on 9 September 2009 Officer Osborne forfeited 5 day’s pay for discreditable conduct in the apprehension of an accused and the ensuing search. No further details are available. This latter event is not one on which Mr. Kumar relies, principally.

The Law

[32] The admissibility of fresh evidence is governed by the four-part test in Palmer v. The Queen, [1979] 1 S.C.R. 759:

1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases;
2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
3. The evidence must be credible in the sense that it is reasonably capable of belief; and
4. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[33] In Ontario, in Truscott (Re), 2007 ONCA 575 at paras. 92-93, Justice Watt reformulated the Palmer test into three components:

1. Is the evidence admissible under the operative rules of evidence?
2. Is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict?
3. What is the explanation offered for the failure to adduce the evidence at trial and should that explanation affect the admissibility of the evidence?

[34] The Crown concedes that Mr. Kumar has met the first and third components. The only issue remaining is whether the evidence is sufficiently cogent in that it could reasonably be expected to have affected Barnes, J.’s decision?

[35] As Watt, JA explains in paras 99 and 100 in Truscott, in order to meet the 2nd criteria, the fresh evidence must pass a cogency test. The cogency tests asks three questions:

1. Is the evidence relevant in that it bears upon a decisive or potentially decisive issue at trial?
2. Is the evidence credible in that it is reasonably capable of belief?
3. Is the evidence sufficiently probative that it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result?

[36] The cogency inquiry requires a qualitative assessment of the fresh evidence which measures the probative potential of the evidence considered in the context of the evidence heard at first instance. If the fresh evidence considered in this context could reasonably be expected to have changed the result at first instance, the evidence is sufficiently cogent to justify its admission on appeal (or in this case, on a reconsideration), subject to a consideration of the explanation for the failure to lead that evidence. The latter is not an issue here.

Mr. Kumar’s Position

[37] Mr. Kumar submits that the evidence concerning Officer Osborne is highly relevant, and the absence of that information at the hearing of the original Application before Barnes J. inhibited Mr. Kumar’s ability to cross examine Police Officers with respect to Officer Osborne’s “…interactions with them, orders or directions he provided to them, acts and /or actions at the scene, involvement in the arrest of the Applicant, and many additional facts and factors this new information (sic), including his actual presence at the scene, which may be been explored.” He said that he was misled by the failure to produce this information and his ability to plan for an engage in the Application and trial was impaired.

Analysis

[38] This Application to re-open the earlier Application re excessive use of force is not a hearing de novo. Rather, the test is whether the fresh evidence could reasonably be expected to have changed the result at first instance. The test is relatively low.

[39] As a matter of logic, Mr. Kumar must establish that the fresh evidence could reasonably have changed Barnes, J.’s finding that a) there was no excessive force used in the arrest, and b) the police conspired to cover it up. If he fails to do the former, the latter falls away.

[40] Mr. Kumar has not met his onus of establishing, on a balance of probabilities, that the fresh evidence regarding Officer Osborne’s conduct meets the second component of the Palmer/Truscott test.

[41] With respect to the use of excessive force, the evidence of the two instances of Officer Osborne’s misconduct would not reasonably have been expected to change Barnes’, J.’s conclusions. I say this for the following reasons:

1. There is nothing in the fresh evidence to suggest that Officer Osborne was present in the parkette when Officer Bothman arrested Mr. Kumar, allegedly with excessive force. Mr. Kumar’s suggestion that Officer Osborne might have been present, is pure speculation. At trial, the only evidence was that the only two officers present when Mr. Kumar was detained were Officers Bothman and Mahal.
2. The evidence of Officer Bothman would not have changed given the fresh evidence. Barnes, J., found that Officer Bothman was not credible and did not accept his evidence absent corroboration. In any event, the fresh evidence was disclosed by the time officer Bothman testified at trial. I also concluded that Officer Bothman was not credible and his evidence not reliable unless corroborated by other evidence. The fresh evidence would not have changed Barnes, J.’s assessment of Bothman as a witness or his evidence.
3. There is nothing in the fresh evidence that suggests or supports the proposition that Officer Osborne, before the arrest, counselled or influenced office Bothman on now to make an arrest.

[42] With respect to the allegation of collusion, the fresh evidence would not reasonably have been expected to change Barnes’, J.’s conclusion or the result. I say this for the following reasons:

1. There is nothing in the fresh evidence to suggest that Officer Osborne counseled or advised Officer Bothman or anyone else as to how to make notes or otherwise ‘cover up’ the excessive force. This is speculation.
2. Mr. Kumar’s submission is that the gaps in Officer Bothman and Osborne’s notes, the delays in making certain notes, and the additions made to their notes is evidence that they may have colluded in order to cover up Officer Bothman’s excessive use of force in Mr. Kumar’s arrest. This too is speculation.
3. Barnes, J. rejected Mr. Kumar’s allegation that the police officers colluded to conceal Officer Bothman’s use of excessive force based on the evidence of the other police officers. He found that the differences in their evidence spoke to a lack of collusion rather the presence of it. The fresh evidence would not reasonable have been expected to have lead to a different conclusion on the issue of collusion.

[43] The main reason Barnes J., dismissed Mr. Kumar’s Application, however, was because he found that Mr. Kumar had not met his onus to establish, on a balance of probabilities, that Officer Bothman smashed his head on the frozen ground, causing him injury. He rejected Mr. Kumar’s evidence based on his credibility, as well as objective evidence such as the video of Mr Kumar when he was brought to the police station for processing, and the medical information that Mr. Kumar proffered, assuming it had been admissible. The fresh evidence would not have changed those findings.

[44] Mr. Kumar’s Application to re-open his Excessive Force Application determined by Barnes, J., based on new evidence is dismissed.

Trimble J. Released: April 17, 2024

COURT FILE NO.: CR-19-1669-0000 DATE: 2024-04-17

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

- and –

ALAN KUMAR

REASONS ON DEFENCE APPLICATION TO RE-OPEN HIS APPLICATION FOR EXCESSIVE USE OF FORCE, DECIDED BY BARNES J. WITH REASONS RELEASED 9 OCTOBER 2020

Trimble J.

Released: April 17, 2024