COURT FILE NO.: CR-22-10000301
DATE: 20240530
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KELVON CLARKE
Applicant
– and –
HIS MAJESTY THE KING
Craig Bottomley and Janelle Belton, for the Applicant
Anna Martin and Brandt Chu, for the Crown
Respondent
HEARD: July 31, August 1, August 2, October 20, 2023 and February 15, 2024
PINTO J.
Defence Application under ss. 7, 8, 9, 10(b), 24(1) and 24(2) of the Charter
[1] On April 22, 2024, I provided my oral ruling dismissing this Charter application with written reasons to follow. These are those reasons.
[2] On June 2, 2021, police executed a search warrant at a residence on the 17th floor of an apartment building in Toronto. The search warrant was in relation to personal items stolen in a break and enter (B&E) on May 29, 2021. When police entered the apartment on June 2, they found six individuals present: two suspects believed to have been responsible for the B&E, and four found-ins, one of whom was the applicant, Kelvon Clarke. The police found controlled substances, including approximately 1.3 kgs of fentanyl, in the kitchen and balcony area of the apartment, along with three digital scales. The police also found 4.18 g of fentanyl, 19.36 g of powder cocaine, and $1,150 in cash on the applicant.
[3] The applicant is charged with possession of fentanyl for the purpose of trafficking, and possession of proceeds of crime not exceeding $5,000. He alleges that, when police entered the apartment, they tackled him face-down onto a couch, and punched him repeatedly before handcuffing him. He also alleges that police did not advise him of his rights to counsel upon detention, and detained him for approximately 30 minutes before he was arrested. He claims breaches of ss. 7, 8, 9, and 10(b) of the Charter and requests that the charges against him be stayed or, in the alternative, that the evidence against him be excluded.
[4] The Crown concedes that the applicant’s s. 10(b) rights to counsel were violated, but otherwise denies that the police officers breached the applicant’s Charter rights. The Crown argues that the charges against the applicant should not be stayed and that, even if the applicant’s Charter rights were violated, the evidence should not be excluded.
[5] For the reasons that follow, the application is dismissed. Other than with respect to s. 10(b), the applicant’s Charter rights were not violated. In the alternative, even if they were, the evidence should not be excluded.
Evidence on Charter Application
[6] Seven police officers testified on behalf of the Crown:
a) Detective Constable (DC) Jason Crocker
b) DC Jaime Kerr
c) DC Christopher MacDonald
d) Police Constable (PC) Rob Hind
e) DC Simbert Charles
f) DC Ben Chandler
g) DC Daniel Shortt
[7] With the exception of DC Shortt, all are current members of the Toronto Police Service (TPS). DC Shortt was a TPS officer at the time of the incident and until the Fall of 2023. He then became a member of the Ontario Provincial Police (OPP).
[8] The parties entered a number of exhibits into evidence on consent:
a) Search Warrant.
b) Information to Obtain (ITO) the Search Warrant.
c) Briefing Package.
d) Notice of Intention, CV and Expert Report of DC Matthew Serrano, a member of the TPS assigned to the Organized Crime Enforcement – Toronto Drug Squad.
e) Search Warrant Entry Photographs 1 to 24.
[9] In his expert report, DC Serrano indicated that he reviewed a number of source materials and determined that 1,291.59 grams of fentanyl and three digital scales were found in the 17th floor apartment. He also stated that 4.18 g of fentanyl, 19.36 g of powder cocaine, and $1,150 in cash were found on the applicant. He provided an assessment based on drug pricing for the year 2021 that the approximate 1.3 kgs of fentanyl could yield between $138,000 to $207,000 at the ounce level, or $80,000 to $110,000 at the kilogram level. With respect to the 4.18 g of fentanyl, he opined that this quantity could yield $720 to $880 at the gram level; and with respect to the 19.36 g of powder cocaine, that this weight could yield between $1,600 to $1,900 sold at the “8 ball” weight level.
[10] The Defence called no evidence.
Testimony of Crown Witnesses
[11] DC Jason Crocker testified that he was involved in an investigation into a B&E that occurred on May 29, 2021 on Minerva Avenue in Toronto. Through video evidence, police identified two suspects, Cameron Trevena and Leah McCarthy, who were believed to have forced their way into an apartment. Apparently, the two left when they were confronted by the occupants.
[12] The police obtained a search warrant for Ms. McCarthy’s apartment which was identified as a unit on the 17th floor of 10 Gordonridge Place, an apartment building in Toronto. The search warrant listed property associated with the B&E such as an iPhone, bank card, VISA card, clothing worn by the suspects, and a blue pry bar. DC Crocker put together a search warrant briefing package and distributed it to his team members. The briefing package indicated that Ms. McCarthy owned a large pit bull that lived with her in the unit. The briefing package also included a recent booking photo of Mr. Trevena and Ms. McCarthy, and reference photos taken from the video evidence.
[13] The police determined that each of the two suspects were arrestable for the B&E. Mr. Trevena had outstanding warrants for assault, possession of a weapon, theft under, failure to comply with a release order, and failure to comply with a probation order. He had also been flagged as violent and an escape risk.
[14] DC Charles testified that on June 2, 2021 between 3:15 and 3:20 p.m., there was a briefing where the officers discussed the contents and duration of the search warrant and the nature of the targets.
[15] DC Crocker testified that at 5:26 p.m., he received information that Ms. McCarthy was returning to her apartment in the company of another female. At 5:45 p.m., he received information from another officer that three males were observed on the balcony of the target apartment.
[16] At 6:00 p.m., DC Crocker and twelve other officers met in the underground garage of the apartment building to go over the tactical plan how to execute the search warrant. The 13 officers involved were Officers Charles, Crocker, McDonald, Shortt, Kerr, Dezilva, Hind, Polychronis, Ashton, Akash, Jordan, Fraser, and Chandler.
[17] The officers decided to dispense with knocking on the door of the apartment because that would present an escape risk for the occupants and a greater opportunity for the occupants to destroy evidence. DC Crocker testified that there was no specific discussion of how the occupants would be taken into custody nor the use of handcuffs.
[18] After the tactical briefing, the officers lined up behind the door of the apartment on the 17th floor in a stack. At 6:27 p.m., DC Charles, who was offset from the stack, used a key that had been provided by building management to open the apartment door. He yelled, “police, search warrant” and other officers in the stack did the same thing as they entered the apartment. The pit bull approached but then cowered as the stack moved forward into the premises. DC Crocker recognized Ms. McCarthy kneeling on a bed and handcuffed her at the rear. He provided her with her rights to counsel, turned her over to Officer Polychronis, who removed her from the apartment and took her to the outside hallway. PC Baksh placed Mr. Trevena in custody. DC Crocker arrested Mr. Trevena and read him his rights to counsel.
[19] The layout of the one-bedroom apartment was made an exhibit. The entrance door opens into a hallway, the end of which is the entrance to a bedroom. Before the bedroom is a bathroom to the left off the hallway. Off the hallway to the right is the common area of the apartment. The right side of the common area is the kitchen and the left side is the living room, the far side of which has an entry to the balcony. Between the kitchen and the living room areas is a loveseat that faces the balcony. Perpendicular to the loveseat and to its left is a three-seater sofa that faces a TV, which is on the right side of the loveseat.
[20] Based on the officers’ testimony, it appears that DC Shortt was the first officer to encounter the applicant.
[21] DC Shortt testified that after he entered the apartment, he saw a male (i.e. the applicant) in the common area running towards the balcony. Instinctively, he went in. He testified that the last thing that he wanted to see was someone running towards a balcony. He was concerned that the applicant might throw evidence off the balcony or go over the railing. The applicant turned around and put his hand in his hoodie. DC Shortt testified that he took his firearm out and had it in a “low ready” position but then put it back in his holster when he could see the applicant’s hands again.
[22] DC Shortt and the applicant were now in the area of the loveseat. The applicant was asking DC Shortt questions. He told the applicant that the police had a search warrant and that he was being detained. They were going back and forth. The applicant was not satisfied with DC Shortt’s answers. The applicant was speaking animatedly and frantically gesturing. DC Shortt took the applicant by the left hand or wrist area. He testified that he had a hold of the applicant’s arm but not 100 percent of the time. He testified that DC Kerr showed up and grabbed a hold of the applicant’s right hand. The applicant was still not complying with the officers’ demands to put his arms behind his back. DC Shortt pushed him down to the loveseat as DC Kerr pulled him down. DC Shortt saw DC MacDonald punch or try to punch the applicant about three times. He did not see any other officer punch the applicant. He took handcuffs from DC Kerr and handcuffed the applicant.
[23] DC Shortt testified that, after the applicant had handcuffs on, he was still trying to put his right hand into his right front pocket. DC Shortt stopped the applicant’s hand from going into his right pant pocket. He reached into the applicant’s pant pocket and found a wad of cash. He put the cash back in the applicant’s pant pocket and zipped it up. He passed the applicant over to PC Hind who took the applicant out into the hallway outside the apartment.
[24] DC Kerr testified about the same sequence of events. She testified that, after she entered the apartment, her intention was to take the dog to the balcony which was off the living room area. As she entered the living room, she saw DC Shortt and a male (i.e. the applicant) that she did not recognize. She testified that DC Shortt was struggling to get the applicant under control. He was excitable, repeatedly yelling “I don’t live here” and pulling away. DC Shortt was trying but unable to get a hold of the applicant’s arms. Someone took the dog away from DC Kerr. She concluded that there was no use talking to the applicant so she took her handcuffs out, and tried to cuff him. She was concerned that the applicant was trying to exit the unit. She concluded that she could not get the applicant handcuffed and decided to bring him down to the ground. She had her handcuffs in her left hand. She pulled the applicant towards her and went down with him. The applicant landed face first on the loveseat and she landed on the loveseat. She described the applicant as yelling but could not describe what he was saying. The applicant was trying to get up off the loveseat and she was on her knees, trying to get up off the floor.
[25] She testified that the applicant’s right arm was going under his torso and she wondered whether he was reaching for a gun or a knife. She punched him with her right hand four or five times, describing the punches as “distractionary blows.” She yelled to the applicant to give her his hands and to stop resisting. She stopped punching the applicant when she saw his right arm come out from under him. She put cuffs on the applicant. The applicant said, “I can’t breathe” and she said, “as soon as you settle down, we can sit you up”. He stopped struggling and she then sat him up.
[26] DC MacDonald testified that his primary responsibility was to take scene of the crime (SOCO) photos. Upon entry into the apartment, he proceeded to the bedroom directly in front of the main entrance after doing a quick check to ensure that no one was in the bathroom to the left off the hallway. He found a lone female occupant in the bedroom and passed her on to DC Crocker to be placed into custody.
[27] He then stepped into the common area of the apartment where there was a commotion. He observed the applicant “kind of breaking away from some of the officers that were around him.” He was not sure whether the applicant was trying to escape the apartment or if, by struggling with the officers, the applicant was losing his balance and falling towards him. A loveseat was between them. He testified that the applicant looked like he was kind of coming over the loveseat. He delivered three or four closed fist punches on the back or top of the applicant’s head, as the applicant was falling on to the loveseat.
[28] He testified that he felt he needed to punch the applicant because the balcony door was open and he wanted to bring the situation to an end immediately. He did not want anyone to head toward the balcony or escape the apartment. He testified that, “the strikes stopped as soon as the handcuffs went on.” He did not observe any physical injuries on the applicant.
[29] PC Rob Hind was at the rear of the stack. He testified that when he entered the common area, DC Kerr and DC Shortt were struggling with a male (i.e. the applicant). He heard the officers giving commands but the applicant was not listening. He was not putting his hands behind his back. The struggle went down to the loveseat. He testified that the applicant’s arms were under his front area. He was trying to get the applicant’s left arm out from underneath the applicant and put handcuffs on. Once handcuffed, DC Shortt passed the applicant on to him and he took the applicant out of the unit into the hallway on the 17th floor and sat him down.
[30] DC Charles was the central note taker for the team. He testified that the applicant was trying to get away and an officer was struggling with him. He went to them. The applicant was flailing and trying to move away from the officers. The applicant was moving towards a cabinet on the right side of the loveseat. The officers initially engaging with the applicant were DC Shortt and DC Kerr.
[31] He assisted the officers by pulling the applicant down onto the loveseat. He tried to push the applicant down and hold on to his legs. He testified that he did not see what the other officers were doing. He was holding on to the applicant’s legs, the bottom part of his body, below the waistline. He testified that the applicant was “apprehended” at 6:28 p.m., which is one minute after the police entry.
[32] DC Charles testified that, once the applicant was in the hallway, the applicant identified himself as “Sean Jobe” and provided a date of birth (DOB). He did not believe the applicant because the applicant had difficulty providing his DOB. He asked DC Crocker to check the MTO records. A photo that came back did not resemble the applicant. He told the applicant that his detention was based on possession of property obtained by crime. He did not advise him of his rights to counsel. He warned the applicant that he would be charged with obstruction if he failed to identify himself. He estimated that this conversation with the applicant occurred before he took entry photographs of the apartment commencing at 6:40 p.m. The search of the apartment began at 6:45 p.m.
[33] DC Charles testified that the applicant was “for the most part belligerent, questioned his detention, questioned every part of the interaction.” The applicant would not hear the answers, even though he tried to answer the applicant’s questions. He testified that the applicant even asked at one point, if the police found anything in the house, whether he would get charged with it.
[34] PC Hind testified that, once the applicant was out of the apartment in the hallway, he performed a pat down search of the applicant. He felt a phone in the applicant’s right front pocket and some money. He testified that the applicant was wearing trackpants. He testified that, once the applicant was sitting on the floor after his pat down search, the applicant’s phone and cash fell out of his trackpants on the floor. That is when he saw the items.
[35] PC Hind testified that the applicant looked very nervous and kept on asking whose unit it was. The applicant provided the name of “Sean Jobe.” An officer besides him rang up the name and nothing came up. He testified that, before asking the applicant for his name, he advised the applicant that he was being detained for a search warrant. But he did not advise the applicant of his rights to counsel. He testified that, before he advises anyone of their rights to counsel, he asks for their name and their date of birth, so that he knows who he is giving rights to counsel and a caution to.
[36] PC Hind testified that the applicant provided the name “Sean Jobe” multiple times. PC Hind cautioned him that he would be arrested for obstructing the investigation if he did not provide a name. The applicant said that he had no fixed address. He arrested the applicant for obstruction of justice and gave him his rights to counsel and a caution. He thinks it may have been 15 or 20 minutes from when the police entered the unit. The applicant kept asking PC Hind whether he would be in trouble if police found anything.
[37] PC Hind testified that PC Jordan packed the cash that had fallen out of the applicant’s pockets.
[38] Between 6:45 and 7:43 p.m., DC Charles recorded time entries for when evidence was found and seizures were made.
[39] DC Chandler testified that he conducted a search of the balcony and found a medical glove in a black duffle bag that contained a hard rock-like substance. He notified the rest of the team that he had found what he suspected to be fentanyl. DC MacDonald came over and took photos of it. DC Chandler located the blue medical glove at 6:56 p.m. DC Crocker reported that fentanyl was found at that time. The search stopped briefly so that everyone could be informed and a discussion ensued about how best to deal with it.
[40] DC Crocker also testified that the applicant initially identified himself as “Sean Jobe” with a DOB of February 23, 1992. DC Crocker noticed that “Mr. Jobe” was very nervous and sweating. DC Crocker conducted MTO and police check searches of “Sean Jobe” and determined that the individual before him did not match that description.
[41] At 7:02 p.m., after fentanyl was found in the apartment, DC Crocker advised all remaining occupants that they were being arrested under the Controlled Drugs Substances Act (CDSA) and they were read their rights to counsel.
[42] The non-drug related property found in the apartment was an iPhone 7, a TD debit/bank card, identification belonging to “Richard Dennis”, a wallet, red running shoes, track pants and a blue pry bar.
[43] The search of the apartment concluded at 7:43 p.m. Exit photos of the apartment were then taken.
[44] A post-search debrief of the officers occurred at 7:50 p.m.
[45] DC Charles testified that this incident occurred at the height of the George Floyd saga and police were certainly mindful of the applicant’s safety. He testified that the applicant’s face was not obstructed when he went down on the loveseat. However, he conceded that he did not have a perfect picture of where the applicant’s face landed on the loveseat as it was a dynamic situation. He did not recall the applicant complaining that he could not breathe.
[46] PC Hind testified that one of the officer ordered a wagon to transport the occupants to the police station. He took the applicant downstairs to the lobby and outside to wait for the wagon. He followed the wagon back to 41 Division. He participated in the parading of the occupants before Staff Sergeant Rouette. A video of the parading was made an exhibit in the proceeding.
[47] PC Hind testified that it was in the parking lot at 41 Division that the applicant finally provided his true name.
[48] The applicant gave PC Hind a couple of phone numbers for his mother as she might have a lawyer’s information, however, both numbers were out of service. The applicant declined to speak with duty counsel. PC Hind told the applicant that if he changed his mind to let him know.
Cross-Examination and Re-Examination of the Officers
[49] Officers Shortt, Kerr, MacDonald, Hind, Charles and Chandler each acknowledged that they did not provide the applicant with his s. 10(b) rights to counsel upon being handcuffed and detained.
[50] DC Shortt agreed that he did not record in his notes that DC MacDonald or DC Kerr punched the applicant.
[51] DC Kerr testified that she was given a mugshot of Mr. Trevena with target information such as his birthday, height, weight, race and hair colour but denied that she studied the information. She denied that she looked at the applicant’s face long enough to determine whether it matched Mr. Trevena’s mugshot. She conceded that she did not know how many times she punched the applicant but guessed that it was at least four or five times.
[52] Out of her peripheral vision, she saw DC MacDonald raise his arm up to punch the applicant but she did not see where the punches landed. She agreed that she did not write down in her notes that DC MacDonald punched the applicant. She rejected the suggestion that PC MacDonald punched the applicant who then fell on the loveseat. She said that she pulled the applicant down. In re-examination, she testified that given the applicant’s conduct, at no point would she have been able to read the applicant his rights to counsel.
[53] DC MacDonald acknowledged that, even though the officers talked about punching the applicant in the debrief, no mention of this was made in DC Charles’s central notes.
[54] PC Hind testified, in cross-examination, that he did not see DC Kerr nor DC MacDonald punch the applicant. He stated that the scene was very chaotic.
[55] He acknowledged that, prior to the hearing of the application, he had never stated that the applicant’s phone and money had fallen out of his trackpants after he patted down the applicant and felt those items. He acknowledged that, at the hearing he denied reaching into the applicant’s pocket but that, at the preliminary inquiry, he said it was possible that he did. He agreed that there was nothing in his notes about the items falling out of the applicant’s pocket.
[56] DC Charles agreed, in cross-examination, that he studied the photo of Mr. Trevena that had been sent to him electronically. He agreed that there was no mention of firearms or knives being used in the B&E that had taken place days earlier. He also agreed that, once the applicant was on the loveseat, multiple officers piled on top of him, maybe three or four. He agreed that there was nothing in his notes about anyone else hitting the applicant. But he wrote in his notes that DC Charles and DC Kerr were involved in physically detaining the applicant.
[57] DC Charles agreed that he did not write, in his central notes, that the applicant was punched several times by DC MacDonald or DC Kerr. Those officers did not advise him of that when they reviewed his central notes. He could not recall if DC MacDonald punching the applicant was discussed in the debrief after the search.
The Applicant’s Position
[58] The applicant made the following factual and legal submissions concerning the application.
[59] The applicant was detained the moment DC Shortt unholstered his firearm. The detention was made clear when DC Shortt and then DC Kerr grabbed the applicant’s arms and controlled his movement.
[60] The applicant was forcibly and unnecessarily pushed down into the loveseat. He was punched an estimated seven to nine times, probably first by DC MacDonald and then by DC Kerr. He was then handcuffed.
[61] Upon being detained and handcuffed, the applicant was not read his rights to counsel.
[62] The applicant was then segregated in the hallway under the supervision of police.
[63] It was only after about 30 minutes, and after the found-ins’ arrests for possession of controlled substances under the CDSA, that the applicant was read his rights to counsel.
[64] The police used excessive force when detaining the applicant constituting a breach of his s. 7 Charter rights.
[65] Police may search an individual incident to lawful detention where there are reasonable grounds to believe that their safety or the safety of others is at risk. The search must be conducted reasonably. Here, the search and entry of the applicant’s pant pocket once he was arrested exceeded the police’s common law power to search incident to detention contrary to s. 8 of the Charter. The violation was exacerbated by the subsequent intrusive search conducted by DC Hind in the hallway. DC Hind was not truthful about the applicant’s items falling out of his pocket in the hallway.
[66] Section 10(b) of the Charter imposes an informational and implementational obligation on the police to inform a detainee of their rights immediately upon detention and to provide a reasonable opportunity for them to retain and instruct counsel.
[67] The police violated the applicant’s s.10(b) rights by waiting approximately 30 minutes to advise him of his rights to counsel.
[68] The violation of the applicant’s Charter rights were significantly exacerbated by police officers not being truthful in their testimony, failing to record events in their notes properly, and the overall excessive and unnecessary force used on the applicant to affect his detention and arrest.
[69] Given the cumulative impact of the Charter breaches, in particular the excessive force used by the police, the appropriate remedy is a stay of proceedings under s. 24(1) of the Charter. Alternatively, the appropriate remedy is to exclude the evidence obtained during the search of the apartment and the applicant pursuant to s. 24(2).
The Crown’s Position
[70] The Crown responded to the applicant’s points as follows.
[71] The police did not use excessive or unreasonable force to secure the applicant.
[72] The manner of the applicant’s detention was reasonable.
[73] The manner of the searches incident to detention was reasonable.
[74] It is conceded that the police failed to inform the applicant of his rights to counsel in a timely manner and his s.10(b) rights were breached.
[75] Other than with respect to s. 10(b), no Charter rights were breached and, overall, a stay of proceedings would not be appropriate.
[76] The physical evidence should not be excluded pursuant to s. 24(2) of the Charter.
Discussion
[77] I have organized my discussion of the issues as follows:
a) Were the applicant’s s. 7 Charter rights violated?
b) Were the applicant’s s. 9 Charter rights violated?
c) Were the applicant’s s. 8 Charter rights violated?
d) Were the applicant’s s. 10(b) Charter rights violated?
e) What is the appropriate remedy under s. 24 of the Charter?
Were the applicant’s s. 7 Charter rights violated?
[78] The parties disagree about the necessity and degree of force that police employed in detaining and handcuffing the applicant. The parties also disagree over the other alleged Charter violations. However, the main argument, is over the officers’ use of force and s. 7 of the Charter.
[79] In the applicant’s telling, the police brought a battalion of 13 officers to arrest two suspects associated with a run-of-the mill B&E. Prior to entry, the police officers’ main security concern was about a pit bull. Further, the officers had photographs and descriptions of two B&E suspects so they knew who they were looking for. The police also knew, from surveilling the apartment, that there were at least five occupants in the 17th floor apartment. When the police gained entry, the dog cowered and that threat disappeared. The five other occupants, other than the applicant, were detained without incident. Therefore, the applicant argues, it was because the applicant had the temerity to ask questions about why he was being detained that the police turned on him and forcibly pushed him onto a loveseat, repeatedly punched him, and piled on top of him until he was handcuffed. Even worse, the police lied about their conduct in court. They omitted details in their notes about the violence, and their testimony was contradicted by what was in their notes, and by what was said at the preliminary inquiry. There was nothing threatening about the applicant. If his detention ended up being chaotic, it was because the police made it so. The police knew or ought to have known that the applicant was not one of the B&E suspects, and the police used unnecessary and excessive force when the applicant questioned their conduct.
[80] I disagree with the applicant’s narrative and find that his submissions invite the court to apply a retrospective and selective lens on the incident.
[81] The applicant was clearly not the police target, the two B&E suspects were. Prior to entry, the police knew that there were at least five occupants in the apartment. It turns out that there were six. The police could not have known in advance how the pit bill would react. The police knew that Mr. Trevena had outstanding warrants including for assault and possession of a weapon against him. He had also been flagged as violent and an escape risk. Among the items sought was a pry bar. I see nothing in the police preparation for and entry into the apartment that breaches the Charter.
[82] I find that the applicant’s criticisms arise from dissecting the police conduct and then drawing inferences about what the police ought to have known and done differently. While a careful dissection of events that took place over less than a minute is necessary, when done in a decontextualized and siloed manner, it can result in failing to appreciate the situation as it unfolded in real time.
[83] One point of factual disagreement is whether the applicant was intercepted by the police when he was moving towards the balcony door or coming back from that direction. The applicant makes more of this point than is warranted. DC Shortt testified that he saw the applicant heading toward the balcony door. DC MacDonald was concerned about the same thing. The parties agree that the area between the loveseat and balcony door is small. The applicant submits that DC Shortt was not being truthful when he testified that he pulled his firearm out as the applicant was coming back from the direction of the balcony door, given that his notes say that his firearm was pulled in response to the applicant going to the balcony. DC Shortt’s response was “it all happened in a matter of seconds.” I find the key concern is that, once the applicant had headed once towards the balcony door and was not standing still, it was reasonable for the officers to be concerned about the applicant doing so again. The threat posed by a balcony 17 floors up was not diminished simply because the applicant had stopped going in that direction and had turned back. The point is: the applicant had not stopped moving.
[84] Next, I accept DC Shortt’s testimony that the applicant put his hand in a pocket in the front of his hoodie. While his evidence of when this occurred was different at trial than what was reflected in his notes, I accept that this difference can reasonably be attributed to it all happening within a few seconds. I do not see what advantage DC Shortt would gain from changing his evidence on this point. The applicant reaching into his hoodie raised a further concern for DC Shortt that the applicant may have been carrying a weapon. Once the applicant removed his hand from the pocket, DC Shortt returned his firearm to its holster.
[85] What happens next is a verbal altercation between the applicant and one or more of the officers. The applicant had been advised that he was being detained pursuant to a search warrant but was not following police orders to stop and put his hands behind his back. The testimony of officers Shortt, Kerr, Hind and MacDonald was that the applicant was agitated, moving, and breaking away notwithstanding that DC Shortt was holding him by one arm. DC MacDonald believed that the applicant was trying to come over the loveseat and exit the apartment. Further, despite the officers answering the applicant’s questions, they believed that he was either not listening or not satisfied with their answers.
[86] In my view, the officers were faced with a potentially volatile situation where an unknown male, found in a small one-bedroom apartment with multiple other officers and occupants present, was not listening and not standing still. He had been told by DC Shortt that he was being detained pursuant to a search warrant. The male had shown an inclination to head towards the balcony door or appeared to be breaking away and heading toward the exit. He had placed his hand in a hoodie and, up to that point, the officers could not tell whether he possessed any weapons.
[87] I find the applicant’s submission that that the officers knew or ought to have known that the applicant was not Mr. Trevena to have little merit. First, while it is reasonable to expect that police are to study the material in their briefing notes, in a situation such as this where there were five male occupants and one female occupant present in a dynamic situation, it is not realistic to expect that officers could distinguish between the applicant and Mr. Trevena. Recall DC Kerr’s evidence that she was initially focused on minding the dog with the intention of taking it out to the balcony. DC Macdonald entered when there was already a commotion. Second, even assuming that officers had concluded that it was not Mr. Trevena who they were dealing with, I fail to see why they would have used a different approach when dealing with an agitated individual who was continuing to move in a crowded apartment contrary to their instructions.
[88] The applicant also makes too much of an apparent discrepancy between DC Kerr who testified that she brought the applicant down to the loveseat / floor with her, and DC MacDonald who testified that it was his punches that brought the applicant down to the loveseat. I find that it is entirely reasonable that each perceived their actions to be primarily responsible for the applicant ending up on the loveseat. Similarly, since I accept that the time between the applicant coming back from the balcony area and then going down to the loveseat was only a few seconds, I do not find the evidence about “which officer threw the first punch?” to be all that relevant to the alleged Charter breach.
[89] To be clear, I disagree that the evidence demonstrates that DC MacDonald was punching the applicant for several seconds before DC Kerr starting doing so. I find that Officers Kerr and MacDonald perceived the same threat posed by the applicant’s conduct and reacted to it almost simultaneously. I accept that the applicant was punched roughly five times by DC Kerr and roughly four times by DC MacDonald. I find that the punches commenced roughly as the applicant was being forcibly brought down to the loveseat and they continued until the applicant was handcuffed. DC Charles grabbed onto the applicant’s legs or lower half to control him. Notwithstanding the evidence that the applicant said, “I can’t breathe,” I find no evidence that the officers sat on top of the applicant’s body or chest in such a way as to restrict his breathing. The applicant expressed no medical concerns and did not have any injuries.
[90] Another factual question is whether the applicant moved his arms or hands after he had them under his chest once he was lying on his chest on the loveseat. The applicant submits that PC Hind’s testimony - that the applicant’s arms did not go anywhere once he had them bent under his chest - is correct, whereas DC Kerr’s evidence, that the applicant’s right arm was going under his torso, was fabricated, so that DC Kerr could justify continuing to punch the applicant based on a fear that he was reaching for a gun or a knife.
[91] I find that a careful reading of the evidence does not show a contradiction in these two officers’ testimony. In cross-examination, DC Hind testified at the preliminary inquiry that the applicant’s arms were crossed over and up towards his upper chest area. But, at the application hearing, DC Hind testified that he could not see the applicant’s arms and maybe, on reflection, they were not crossed over. The key takeaway is that while DC Hind confirmed that the applicant’s arms were under his chest area, he could not actually see what the applicant was doing with his arms.
[92] I also note the following important exchange during DC Hind’s cross-examination:
Q. And you didn’t see his arms go any – anywhere else other than, I suppose, in handcuffs.
A. Not that I recall. There was a big – there was a lot going on, a lot of chaos inside the unit. And like I said, I just remember grabbing his arm to try and pull it to the back.
Q. Yeah. That’s right. So you saw his arms bent underneath him toward his – the up – his upper chest.
A. Correct.
Q. And you didn’t see them go anywhere else.
A. At that moment, no. Prior to that, I don’t – I don’t know.
[93] While it is fair for the applicant to point out that DC Hind repeated in cross-examination that he did not see the applicant’s arms go anywhere, it is also evident that DC Hind had earlier testified that he could not see what the applicant was doing with his arms. Accordingly, I find it likely that DC Hind simply missed seeing what DC Kerr observed, which was that the applicant’s right arm was moving under his torso raising a risk that he was reaching for something. In my view, this would justify the ongoing punches – what DC Kerr called “distractionary blows” - until the applicant’s arms could be secured behind his back to be handcuffed.
[94] The applicant submits that it is startling that DC Kerr, after supposedly being concerned about the applicant reaching for a weapon, did not search the applicant for weapons, or direct that someone else do so. Instead, DC Kerr walked away to pick up her hat and deal with the dog. This line of argument concluded with the submission that DC Kerr did not punch or continue to punch the applicant because she thought he had a weapon, rather she punched him because he had the audacity to ask why he was being detained.
[95] I disagree that so much can be made out of DC Kerr’s conduct following the successful handcuffing of the applicant. When DC Kerr was cross-examined, she indicated that she herself did not search the applicant and that she did not know who did. But she was not asked why she did not conduct a search given that she had testified that she was concerned about the applicant reaching towards his pant pocket, possibly to grab a weapon. The applicant is allowed to submit that DC Kerr’s post-handcuffing conduct is inconsistent with her professed concern for a weapon. However, in my view, DC Kerr’s explanation that she simply handed the applicant on to another officer who would do the search is a reasonable response that goes some distance in undercutting the defence suggestion she was being less than truthful when testifying.
[96] In that vein, I disagree with the applicant that the officers who testified at this hearing were untruthful about their takedown of the applicant. This is unlike the situation in R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, where the Court of Appeal affirmed the trial judge’s finding that two officers lied under oath about their forcible and unreasonable stop of the accused’s vehicle.
[97] With respect to the officer’s notes, I find their note taking to be deficient but not dishonest. I see, for instance, that DC Kerr stated in her notes, “began striking male with my hand.” In cross-examination, she acknowledged that she did not say how many times she hit the applicant, whether she used a closed fist, or where on the applicant’s person her punches landed. She also did not make any notes about DC Macdonald striking the applicant. DC Kerr testified that she wrote down what she was doing, but did not feel that she was obliged to note what other officers were doing. She qualified her answer that if, for example, what another officer did resulted in an injury to an individual, she would write this in her notes.
[98] DC Charles, the central note taker wrote, “9-3-9-2 [DC Kerr] and 1-0-8-2-2 [DC Shortt] struggling with male as they attempt to detain male. Male trying to get away from officers.” DC Charles did not make any explicit notes about officers striking the applicant.
[99] The burden is on the applicant to prove, on a balance of probabilities, that his s. 7 Charter rights were infringed. Section 25(1) of the Criminal Code authorizes peace officers who are required or authorized to do anything in the administration or enforcement of the law to use as much force as is necessary to effect that purpose if they act on reasonable grounds.
[100] The situation faced by police when they entered the apartment was extremely dynamic. The police were faced with an unknown male in a small, crowded one-bedroom apartment who had headed towards the balcony, turned around and put his hand in his hoodie. He kept on moving and, in the view of several officers, looked like he might have been trying to exit the apartment. The police tackled him down to the loveseat while punching him until he gave up his hands to be handcuffed. Both before and after he was handcuffed, the applicant continued to reach towards his waistband or pocket. After the applicant was handcuffed, he gave the officers a false name and remained belligerent throughout. I find that the officers can be criticized for their notetaking which either understated or, in DC MacDonald’s case, omitted to mention the fact that they punched the applicant several times. But, while the applicant was able to show some inconsistencies in the officers’ evidence, overall, the applicant failed to demonstrate that the police used excessive or unnecessary force, therefore I find that the applicant’s s. 7 rights were not violated.
Were the applicant’s s. 9 Charter rights violated?
[101] Section 9 guarantees the right to be free from “arbitrary detention.” A detention will not be arbitrary if it is lawful and is undertaken in a reasonable manner.
[102] The applicant submits that he was detained in handcuffs for 30 minutes, a lengthy period of time, before his arrest under the CDSA. Relying on such cases as R. v. Ahmed-Kadir, 2015 BCCA 346, 327 C.C.C. (3d) 33, R. v. McSweeney, 2020 ONCA 2, 384 C.C.C. (3d) 265, Lane v. Attorney General of Canada on behalf of the United States of America, 2012 ONSC 5404, and R. v. Campbell, 2016 ONCJ 236, he submits that the manner of his detention amounted to a de facto arrest and was unreasonable in light of the low risk he posed to officers.
[103] I find that the cases cited by the applicant are not analogous to the present case.
[104] The appellant in R. v. Ahmed-Kadir was detained following a 911 call reporting screaming and hitting sounds coming from an apartment. The reports referenced a man and a woman. The appellant was the only man in the unit. The court found that police had authority to detain him. The issue was the use of handcuffs: the officers had handcuffed, then uncuffed, then re-cuffed the appellant upon hearing he may have gang involvement. In the case before me, officers were concerned that the applicant was attempting to flee, which was not an issue in Ahmed-Kadir. Moreover, the court agreed that police had authority to detain the man to investigate the 911 call. The officers in the case at bar were expecting to arrest a person who was known to be violent and encountered the applicant, who was believed to be attempting to flee. I find these facts sufficiently distinguish this case from Ahmed-Kadir such that handcuffing was reasonable.
[105] The appellant in R. v. McSweeney was psychologically detained by police in the course of their execution of a search warrant. Officers brought him to his porch to give a statement. The court concluded that a reasonable person in his situation would conclude they were obliged to comply. The appellant alleged that he was treated as the primary suspect from the moment police entered his home. The court agreed. This argument is dissimilar to that made by the applicant in the case at bar. He was not psychologically detained, nor treated as a primary suspect.
[106] The applicant in Lane v. United States of America was arrested in a rough manner. In the execution of a warrant for child pornography, officers set fire to the carpet outside the applicant’s door, threw grenades, and blew a hole through his door, among other things. He was subsequently arrested and questioned by five or six officers without being given his right to counsel. I do not find that the manner of search in the case at bar is similar to that in Lane.
[107] The applicant in R. v. Campbell was detained for a “dual purpose” namely, for a Highway Traffic Act offence and for a suspected criminal offence. Justice Nakatsuru found that the officers’ treatment of the applicant went beyond what was expected in an HTA stop, and that there was insufficient information tying the criminal offence to the car or its driver. Specifically, the moment that the officer handcuffed the applicant made the manner of detention arbitrary and a violation of s. 9 of the Charter because the officers had no grounds to believe he would attempt to flee. Officers in the case at bar were concerned that the applicant was attempting to flee.
[108] Instead, I find the cases of Chaif-Gust and McGuffie to be analogous to the one before me. In R. v. Chaif-Gust, 2011 BCCA 528, 280 C.C.C. (3d) 548, the police detained the accused for investigation during a drug investigation in handcuffs in the back of a locked van for 42 minutes. The court found these actions to be reasonable in order to maintain control of the scene and search the premises. In R. v. McGuffie, 2016 ONCA 365, 348 O.A.C. 365, the accused was handcuffed subject to investigative detention in relation to a firearm investigation. He was placed in the back of a police vehicle for 30 minutes while the officer completed their investigation. On appeal, the Court of Appeal found that this initial investigative detention, handcuffing and pat down search was reasonable, but the officers’ subsequent actions violated the accused’s rights.
[109] While an investigative detention must be brief, its duration is dependent on the circumstances of a particular case: R. v. Barclay, 2018 ONCA 114, 44 C.R. (7th) 134, at paras. 28 to 31. The permitted duration of an investigative detention is determined by considering whether the interference with the suspect’s liberty interest by his continuing detention was more intrusive than was reasonably necessary to perform the officer’s duty, having particular regard to the seriousness of the risk to public or individual safety: Barclay, at para. 27, citing R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 31; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at p. 324; R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, at para. 36.
[110] Here, I find that it was necessary that the applicant be handcuffed. He was agitated, moving his arms toward his waistband, and belligerent. There were up to 13 officers and 5 other occupants in the one-bedroom apartment. The entry to the apartment was authorized under a search warrant and geared towards the search of items identified in the B&E, therefore it was important that evidence not be tampered with or destroyed. The applicant also actively misled the officers by providing them with a wrong name (Sean Jobe). The officer unexpectedly found controlled substances and needed some additional time to take safety measures. Handcuffing the applicant, taking him out into the hallway, having him wait roughly 30 minutes in detention, was reasonable given the number of other occupants involved, the safety concerns raised by the fentanyl, and the applicant’s suspicious behaviour.
[111] In sum, the manner of detention was reasonable and did not violate the applicant’s s. 9 rights.
Were the applicant’s s. 8 Charter rights violated?
[112] Section 8 of the Charter guarantees the right to be free from unreasonable search and seizure. The applicant argues that the searches of his pocket exceeded the scope of the police’s common law power to search incident to detention. The applicant submits that it would have been apparent based on a pat-down of the applicant that he did not have any weapons in his pocket or on his person.
[113] In Mann, the Supreme Court of Canada held that there is a limited common law power of protective search incidental to an investigative detention. Such a search will only be justified if it is reasonably necessary, reasonably executed, and based on a reasonable belief by the police that officer safety or the safety of others is at risk in the totality of the circumstances: R. v. Dunkley, 2016 ONCA 597, 351 O.A.C. 283, at para. 37; R. v. Plummer, 2011 ONCA 350, 279 O.A.C. 359, at para. 48.
[114] At para. 45 of Mann, Iacobucci J. stated:
To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case.
[115] There is no doubt that the applicant was detained and handcuffed within the first minute of the officers’ entry. Once DC Kerr or DC Shortt applied handcuffs, the police stood the applicant up. DC Shortt testified that the applicant began again to reach forward toward his pocket. I find that this evidence supports DC Kerr’s testimony that the applicant had tried to do the same thing earlier when he was not handcuffed and was chest down on the loveseat. In any event, after the handcuffs were applied, DC Shortt stopped the applicant from reaching into this pocket. DC Shortt reached into the applicant’s pant pocket and found a wad of cash. He put the cash back in the applicant’s pant pocket and zipped it up. He passed the applicant over to PC Hind who took the applicant out into the hallway outside the apartment.
[116] By this point, Mr. Trevena and Ms. McCarthy had been arrested and had been read their rights to counsel. The other occupants were handcuffed and in the hallway outside the apartment.
[117] PC Hind testified that, once the applicant was out of the apartment in the hallway, he performed a pat down search of the applicant and felt a phone in the applicant’s right front pocket and some money. Once the applicant was sitting on the floor, and after his pat down search, the applicant’s phone and cash fell out of his trackpants on the floor and then he saw the items. While I find the part about evidence falling out of the applicant’s pocket highly unlikely to have happened - because DC Shortt had zipped up the pocket earlier - I am not prepared to find, as the applicant suggests, that PC Hind lied under oath about this happening. I find that PC Hind was speculating, which he should not have done, as to why he was able to know that it was a phone and cash in the applicant’s pocket.
[118] The applicant relies on Mann for the proposition that an officer’s decision to reach into a detainee’s pocket after feeling a soft object contained within could amount to “an unreasonable violation of the appellant’s reasonable expectation of privacy in the contents of his pockets.”
[119] In response, the Crown cites R. v. Ellis, 2016 ONCA 598, 340 C.C.C. (3d) 279, where the Court of Appeal held, at para. 28, that:
What the Supreme Court did not do in Mann was pronounce a general rule that a protective pat down search incident to an investigative detention can never extend to a search of the contents of pockets. Implicit in the court’s holding was that, had the pat-down search revealed a safety concern, the officers would have been justified in extending the search to the accused’s pockets.
[120] In Ellis, the officer conducted a pat-down search and felt hard objects in the appellant’s pockets that could have been weapons. This was not the case in Mann where the pat down did not give rise to any articulable safety concern.
[121] The Crown submits, and I agree, that the situation at bar was more akin to Ellis rather than Mann. The applicant was located inside an apartment where up to 19 people (13 officers and 6 occupants) were present. The applicant had acted in an agitated and belligerent manner. He had placed his hand in his pocket and, even after being placed in handcuffs, had again reached for his pockets. DC Shortt reached into the applicant’s pocket, found a wad of cash and returned it to the applicant. Out in the hallway, PC Hind appears to have been unaware that DC Short had earlier conducted a search. PC Hind conducted a pat down of the applicant’s right front pocket and felt a phone and some money. Given the “hard object” he found, and notwithstanding his questionable testimony that the items subsequently fell out of the applicant’s pocket, I find that the search was still reasonable in the circumstances and necessary for the protection of the officers and occupants. Accordingly, I find no s. 8 Charter breach.
Were the applicant’s 10(b) rights to counsel violated?
[122] Upon detention, the right to counsel, and the right to be informed of that right, under s. 10(b) of the Charter, arise immediately: R. v. Suberu, 2009 SCC 33, [2009] 2. S.C.R. 460, at para. 2; R. v. Ahmed, 2022 ONCA 640, at para. 37.
[123] The Crown concedes that there was an approximate 30 minute delay between the time that the applicant was detained in the living room area, and the time that he was read his rights to counsel outside the apartment in the hallway after his arrest pursuant to CDSA charges. His s. 10(b) Charter rights were therefore violated.
What is the appropriate remedy under s. 24 of the Charter?
Should the proceeding be stayed under s. 24(1) of the Charter?
[124] It is well established that a judicial stay is an exceptional remedy that is reserved for the clearest of cases: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 30-31; R. v. Sullivan, 2022 SCC 19, 472 D.L.R. (4th) 521, at para. 95. If Charter breaches are found, lesser remedies, including a sentence reduction, can be imposed: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 17.
[125] In R. v. Abdirahman, 2022 ONSC 5059, Dunphy J. found that a 12 to 21 minute delay in advising the accused of his ss. 10(a) and 10(b) informational rights, in addition to s. 10(b) breaches with respect to implementing calls to counsel without delay, did not justify a stay of proceedings under s. 24(1).
[126] In R. v. Gaffney-Myles, 2022 ONSC 4613, Tranquilli J. found that a nine-minute delay in advising the accused of her right to counsel did not justify a stay of proceedings under s. 24(1).
[127] I do not consider this to be the clearest of cases. I find that the police officers’ delay in immediately advising the applicant of his rights to counsel upon detention was the result of the officers dealing with six occupants, being sidetracked by the finding of the fentanyl, and poor coordination between the officers. The circumstances do not merit a stay of charges.
[128] In the alternative, if the applicant’s ss. 7, 8, and 9 Charter rights were violated in addition to his s. 10(b) rights, I would still not order a stay under s. 24(1) of the Charter. I would find that the police breaches were not so egregious that they merit a stay. If such Charter breaches were found, lesser remedies, including a sentence reduction, would be a preferable remedy in light of the excessive force, unreasonable search, and unreasonable manner of detention that the police employed in addressing a dynamic situation.
Should the evidence be excluded pursuant to s. 24(2) of the Charter?
[129] I turn then to consider whether to exclude the evidence that was obtained in breach of the Charter under s. 24(2).
[130] As Presser J. explains in R. v. Williams, 2024 ONSC 1170, at paras. 222 to 224:
[222] This requires two determinations. The first is a “threshold requirement” which “asks whether the evidence was “obtained in a manner” that infringed or denied a Charter right or freedom”: R. v. Beaver, 2022 SCC 54, 420 C.C.C. (3d) 421, at para. 94. If the threshold is met, the court moves on to make the second determination. Here the court must evaluate whether, on balance, in all the circumstances, the admission of the evidence would bring the administration of justice into disrepute over the long term: Beaver, at para. 94.
[223] The evaluative component of the s. 24(2) analysis requires the court to consider three avenues of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused’s Charter-protected interests; and (3) society’s interest in the adjudication of the case on its merits: Grant, at para. 71.
[224] The assessment, weighing, and balancing of these three inquiries to determine whether exclusion would bring the administration of justice into disrepute is a long-term, prospective, systemic, and objective exercise: Grant (2009), at paras. 67-70; Beaver, at para. 133.
[131] On the first threshold requirement, I do not find that the physical evidence (cash, fentanyl) was obtained in a manner that infringed or denied the applicant’s Charter rights or freedoms. The fact that the applicant was not advised immediately of his rights to counsel on detention does not appear to be related to the searches that revealed that he had a phone and cash on his person, or to the fact that the officers found controlled substances in the kitchen and balcony area of the apartment. Given this finding, it is not necessary for me to proceed to the second question, whether the admission of the evidence would bring the administration of justice into disrepute.
[132] In the alternative, if I am wrong, and either the s. 10(b) violation by itself, or in conjunction with the ss. 7, 8, and 9 violations allowed the police to obtain physical evidence, I would address the second part of the Grant test as follows.
[133] With respect to the seriousness of the Charter breaches, I would find the excessive use of force that was contrary to s. 7 to be moderate in terms of the seriousness of the breach. I would find that while it was necessary for the officers to use force, the degree of force they used was excessive. The force was not intended to injure the applicant, but ended up being excessive because of multiple officers reacting to the same concerns and piling on the applicant, taking him down to the loveseat. Seeing as the applicant did not experience any injuries or medical concerns following his takedown, I would find that the blows were not inflicted at maximum strength and that they were, in fact, closer to the “distractionary” end of the spectrum in order that the applicant allow his hands to be handcuffed. I would find the seriousness of the ss. 7, 8, 9 and 10(b) breaches to be relatively minor. The delay of 30 minutes to provide the applicant with his rights to counsel did not result in him providing a statement that the Crown used, and did not prejudice his rights.
[134] I would find that the impact of the Charter breaches on the applicant was minor. There was a causal link between the searches and the initial finding of cash on the applicant’s person but the fentanyl was found by the police quite unexpectedly in the course of their lawful search for evidence of the B&E in the apartment. The applicant had no expectation of privacy in the premises.
[135] With respect to the third factor, society’s interest in the adjudication of the case on its merits, the evidence was reliable and essential for the adjudication of the merits of the charges before the court. A significant quantity, almost 1.3 kgs, of fentanyl was found in the apartment. Fentanyl is a particularly dangerous drug that is devastating communities: R. v. Parranto, 2021 SCC 46, at para. 97.
[136] I find that all three Grant factors pull towards inclusion. The nature of the Charter breach was not very serious, the impact on the applicant not great, and society has a strong interest in the adjudication of this case on its merits. I find that the exclusion of the evidence would tend to bring the administration of justice into disrepute.
Conclusion
[137] I find that, other than with respect to s. 10(b), the applicant’s Charter rights were not violated. In the alternative, even if they were, the charges should not be stayed nor should the evidence be excluded.
[138] The application is dismissed.
PINTO J.
Released: May 30, 2024
COURT FILE NO.: CR-22-10000301
DATE: 20240530
ONTARIO
SUPERIOR COURT OF JUSTICE
KELVON CLARKE
Applicant
– and –
HIS MAJESTY THE KING
Respondent
reasons for decision on charter application
Pinto J.
Released: May 30, 2024