ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King
Respondent
– and –
Omary Bent
Applicant
Hillary Dudding and Maxime Bédard, for Omary Bent
Sonya Andersen, for the Respondent
HEARD: January 30-31, February 1, 2, 5, 13, March 11-15, April 2-3, 29-30, May 1, June 7, 2024
RULING ON CHARTER APPLICATION
NISHIKAWA j.
Overview and Factual Context
1The Applicant, Omary Bent, is charged with possession of a loaded, prohibited firearm; possession of a non-restricted firearm without a licence; and two counts of possession of a prohibited device, namely, an over-capacity magazine.
2The Applicant has brought an application under ss. 7, 8, 10(b) and 12 of the Charter to exclude from evidence the firearms and ammunition under s. 24(2) of the Charter or, alternatively, to stay the proceedings. In brief, the Applicant alleges the following:
(a) the police lacked reasonable and probable grounds for the searches of his residence and two vehicles;
(b) the police used unreasonable and excessive force in deploying a taser on him and dragging him out of his residence by his hair;
(c) the police breached his right to counsel by engaging in questioning and threatening to break the windows of his vehicle if he did not tell them where to find the keys;
(d) the police failed to file a Report to Justice for a guitar case and rifle that were located during the execution of the search warrant; and
(e) the police failed to properly maintain a complete investigation file, undermining his ability to make full answer and defence.
3On May 31, 2024, I delivered a bottom-line ruling finding that the police had breached the Applicant’s rights under ss. 7 and 10(b) of the Charter. I found no breach of the Applicant’s rights under s. 8. I requested further submissions on the impact of my finding that Mr. Bent lacked standing in respect of certain discarded property on the analysis under s. 24(2) of the Charter. Those submissions were heard on June 7, 2024. These are my reasons on all the grounds raised.
The Investigation
4The Toronto Police Service (TPS) received information from a confidential source (CS) alleging that Mr. Bent was engaged in drug-trafficking activity and that he had a firearm. They also received information about two vehicles associated with the Applicant, a 2014 grey Ford Sedan, and a 2013 White Rolls Royce Ghost.
5From July 24 to July 26, 2021, officers of the TPS conducted surveillance to verify information provided by the CS. The details of the surveillance and the extent to which CS information was corroborated are addressed further in these reasons.
The Execution of the Search Warrant
6On July 26, 2021, Detective Constable Mark Frendo-Jones applied for search warrants for 10 Park Lawn Road, Unit 3702 (the “Unit”) and two vehicles registered to the Applicant, the Ford and the Rolls Royce. The authorizations were granted later that day by Justice of the Peace Richard Johnson (the “Justice”).
7As further detailed in these reasons, the search warrants were executed on the morning of July 27, 2021. In the Unit, police located the following:
a loaded .40 calibre Glock 23 with an overcapacity magazine and a laser attachment. Nineteen rounds of ammunition were in the magazine and one round was in the chamber;
seventeen more rounds of ammunition were found loose in a file folder on the bed;
another Glock magazine, an empty ammunition carton; and
Canadian currency ($400 + $1,720).
8As officers from the Emergency Task Force breached the door to the Unit, DC Frendo- Jones, who was stationed outside the building to watch the exterior, observed a guitar case and another object fall to an outdoor common area. On the eighth-floor common area of the building, officers recovered a guitar case containing a 5.56 × 45 mm EMEI semi-automatic long gun with three magazines and eight rounds of ammunition inside of it (together, the “discarded property”).
9No firearms were located in either vehicle.
Procedural Background
10This matter proceeded slowly and over an extended period of time because of disclosure and other issues that arose during the course of the hearing. I have briefly set out the procedural history below.
11The Applicant was provided with a vetted copy of the ITO containing significant redactions made on the basis of confidential informant privilege. The Crown made a Step 6 Garofoli application to have the court consider only as much of the redacted material as necessary to support the warrant.
12At the outset of the hearing on January 30, 2024, the defence brought a disclosure application. For oral reasons given on the record that day, disclosure of certain Versadex reports relating to 10 traffic-related interactions between the Applicant and police, as referred to in the ITO, was ordered.1
13The Crown provided a draft judicial summary of the redacted portions of the ITO and a draft summary of a redacted email message, as further detailed below. Extensive submissions on both draft judicial summaries were heard and both summaries were revised over the course of a number of days. That process came to an end on February 5, 2024.
14In the context of the Garofoli application, in my written ruling dated February 7, 2024, I granted leave to cross-examine the affiant of the ITO, DC Frendo-Jones, as well as a sub-affiant, Detective Constable Pawel Lecki. DC Lecki had verified certain information provided by the CS regarding the Applicant’s connection to the places to be searched. Both officers were cross-examined on February 13, 2024. Submissions on the Garofoli application were heard on that date and continued on March 11, 2024.
15On March 5, 2024, the Applicant amended his Charter application to add the following grounds: (i) the failure of DC Frendo-Jones to maintain a proper investigative file of all materials reviewed in preparation of the ITO; and (ii) the failure of DC Frendo-Jones to file a Report to Justice for the discarded property. The Report to Justice for the discarded guitar case and rifle was not filed until March 11, 2024.
16Also on March 11, 2024, the Crown produced a supplementary application record including the Reports to Justice that had been filed in August 2021, after the execution of the search warrant. Later that afternoon, Crown counsel forwarded to the defence a will-say statement from DC Frendo-Jones which, as detailed further below, set out information regarding the filing of Reports to Justice in this case.
17After submissions on the application regarding the search warrant were heard, but before a ruling on the application and before the Applicant called evidence on the remainder of the Charter application, the Crown called DC Frendo-Jones to testify on the issue of the Report to Justice.
18On March 12, 2024, after DC Frendo-Jones was cross-examined, an issue arose as to whether Crown counsel was in a conflict of interest. This resulted in defence counsel bringing a further disclosure application seeking information regarding the discussion between Crown counsel and DC Frendo-Jones about the filing of a Report to Justice.2
19In my written ruling dated March 20, 2024, I granted the disclosure application. On April 4, 2024, the Crown brought an application under s. 37 of the Canada Evidence Act on the basis that disclosure would encroach on a specified public interest. The application was heard on April 18, 2024. In my written ruling dated April 24, 2024, I dismissed the Crown’s s. 37 application.
20The hearing of the Charter application continued on April 29, 2024. After I delivered a bottom-line ruling on the Charter breaches, further submissions were heard on June 6, 2024.
Issues
21The issues in this Application are as follows:
(a) Should the Crown’s Step Six application be granted?
(b) Should portions of the ITO be excised on the basis that they are misleading? Relatedly, should the ITO be amplified as requested by the defence?
(c) Did the police lack reasonable and probable grounds to believe that the Applicants committed an offence and that evidence of the offence would be located in the places to be searched, in breach of the Applicants’ rights under s. 8 of the Charter?
(d) Did the police breach the Applicant’s s. 8 rights by failing to file a Report to Justice for the discarded property?
(e) Did the police use excessive force in arresting the Applicant in breach of his rights under s. 7 of the Charter?3
(f) Did the police breach the Applicant’s rights under s. 10(b) of the Charter by failing to hold off on questioning him until his right to counsel could be facilitated?
(g) If the Applicant’s Charter rights were breached, should this court exclude the evidence seized from the Applicant’s residence?
(h) Did the police’s loss of certain documents or the failure to maintain an investigative file result in a breach of the Applicant’s s. 7 rights?
(i) If so, should this court stay the proceedings against the Applicant?
Analysis
Were the Search Warrants Valid?
22The Applicant argued that the warrants to search his home and his vehicles were invalid. The ITO sworn in support of the warrants contained information from a CS. As a result, the defence received only a redacted version of the ITO. The Crown conceded the redacted ITO was insufficient. As a preliminary issue, the defence argued the Crown should not be permitted to rely on the unredacted ITO. The defence also argued that the affiant failed to make full, fair and frank disclosure, and some portions of the ITO should be redacted, and some information should be corrected. Finally, the defense argued that the ITO does not disclose reasonable and probable grounds to believe that an offence had been committed and that evidence would be located in his residence and two vehicles.
23Section 8 of the Charter states that “everyone has the right against unlawful search and seizure.” The purpose of s. 8 is to protect the property and privacy rights of persons against unwarranted incursions by the state: R. v. Hassan, 2020 ONSC 6354, at para. 56.
24A search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search was carried out is reasonable: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278. A search warrant is presumptively valid: R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30. The Applicant bears the burden of demonstrating that the warrant was not validly issued, that is, that the minimum standard required for authorizing the search was not established by the ITO: R. v. Crevier, 2015 ONCA 619, 339 O.A.C. 120, at para. 66.
Should the Crown’s “Step Six” Application be Granted?
The ITO
25In this case, Appendix “D” to the Information to Obtain the search warrant (ITO) detailed the information provided by the CS. Appendix “C” to the ITO described the database searches and subsequent steps taken by the TPS to verify the information. Substantial portions of Appendix “D” to the ITO were redacted to protect the identity of the CS. The Crown conceded that the redacted version of the ITO did not set out sufficient grounds to justify the issuance of the warrant and brought a “Step Six” application. The Crown gave the Applicant a redacted ITO and prepared a draft proposed judicial summary of the redacted portions.
26Defence counsel raised concerns about the adequacy of the judicial summary including, the lack of information as to when the CS provided the information to police and what timeframe the information pertained to; the lack of specifics about the CS’s sources of information; and the inability of the defence to know and challenge, because of the redactions, how specific or general the information provided by the CS was.
27Counsel for both parties agreed that communication between the court and Crown counsel regarding proposed revisions to the draft proposed judicial summary should take place in writing to ensure a clear record in the event of review. Certain questions that could be asked without the risk of revealing the identity of the CS were posed and responded to by Crown counsel in open court. Where questions raised the risk of revealing the identity of the CS, written notes were exchanged between the court and Crown counsel in open court.4
28The final version of the judicial summary was then provided to defence counsel.5
29Generally speaking, a judicial summary provides the nature of the redacted material, as opposed to its substance: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at para. 90. In this case, I am satisfied that the final judicial summary was sufficient to enable the Applicant to challenge the adequacy of the ITO. While the judicial summary did not provide the timeframe that the information pertained to, the defence was able to argue that the timeframe would have been important to determine how compelling the CS information was. The defence was also able to present alternative arguments based on whether or not the information was current. Similarly, while the defence was not provided with the precise sources of the CS’ information, the defence was provided with the degree of information that came from various sources, whether first-hand, second-hand or hearsay. The defence was thus able to argue that the strength of the CS information would depend on how much of the information was first-hand as opposed to second-hand or hearsay. In terms of the level of specificity, the judicial summary stated in respect of a number of paragraphs of the ITO that the CS information pertained to a specific fact or circumstance. The judicial summary was thus sufficient to provide the Applicant with a meaningful basis on which to challenge the adequacy of the ITO.
The Email Message
30In addition to the ITO, the Crown had disclosed a redacted email message sent by the CS handler to DC Frendo-Jones. The email message was 14 pages in length, including attachments. Other than the recipient and the subject line, the content of the email message and attachments was entirely redacted.
31The Crown conceded that because DC Frendo-Jones relied on the email to draft the ITO, it had to be disclosed. However, the Crown submitted that it could not redact the email message without a risk of “narrowing the pool” or revealing information that would compromise the identity of the CS. The Crown took the position that the format of the document, the location of certain terms in the document, and the identification of the attachments all raised the risk of identifying the CS handler, and consequently, the identity of the CS. The Crown thus provided a summary of the email message (the “email summary”). Both parties agreed that the court could address the issue of whether further information contained in the email should be disclosed using the same process as would be used for the vetting of the judicial summary of the ITO. The parties differed, however, on the use that could be made of the email message. The Crown sought to rely on the unredacted email message to support the issuance of the search warrant, as material reviewed by DC Frendo-Jones. The defence opposed this on the basis that the email message was not before the issuing Justice.
32At the hearing, I agreed with the defence’s position that the Crown is not entitled to rely on the content of the email to amplify the ITO to support the issuance of the search warrant. The email message was not before the issuing Justice and cannot be used to bolster the ITO. The email message was disclosure to which the defence was entitled. Because the content of the email was entirely redacted, the Crown chose to provide a summary of the email rather than unredact portions of the email message. The above process was followed solely to review the email summary and, to the extent possible, to enable the Crown to meet its disclosure obligations.
33In passing, I find that the final version of the email summary, as revised after exchanges between the court and Crown counsel, is sufficient to enable the Applicant able to make full answer and defence in respect of his Charter application. The email summary indicated that the email contained the following words that were also found in the ITO: Rolls Royce, 10 Park Lawn, flashy cars, very flashy rim, Slime, and tattoo.6 Without detailing the entirety of the email summary, the final version states that the information conveyed by the CS was accurately recorded in the ITO and that there were no material omissions in relating this information in the ITO. I have deferred to the Crown’s position, as informed by the police, that no further information could be disclosed without the risk of revealing the identity of the CS.
Should Portions of the ITO Be Excised?
34The Applicant argues that DCs Frendo-Jones and Lecki failed to fulfil their duty to provide full, fair and frank disclosure because the ITO was inaccurate and misleading in three key respects.
35First, the ITO stated that the description of the Applicant provided by the CS as “male, black, about 5’10” with short black braided hair and a beard” matched the description of the Applicant provided by surveillance officers. However, the defence submits that one officer verified only two very general aspects of the Applicant’s appearance, that he was a Black male with braided hair.
36Second, the ITO stated twice that “Surveillance officers have observed Bent attend the underground lot of 10 Park Lawn Road on several [occasions].”7 However, the defence submits that officers did not observe him in the parking lot on several occasions, rather, one officer observed him outside the building once and otherwise inferred that he was in a vehicle that entered or exited the parking garage.
37Third, in the ITO, DC Frendo-Jones stated that DC Lecki spoke with the property management office at 10 Park Lawn and confirmed that the Applicant “currently resides” at Unit 3702 at 10 Park Lawn. However, the defence submits that DC Lecki’s evidence should not be accepted because he could not specifically recall what information he provided to building security and what information was confirmed, and his notes were deficient in this respect.
38The Applicant further submits that the ITO should be amplified to state that the officer who observed him was not able to confirm whether or not the tattoo observed on the Applicant’s neck was the same as described by the CS.
39The Applicant’s position is that once the misleading statements in the ITO are excised and the record is amplified as necessary, the search warrant could not have been authorized.
40When seeking a search warrant, a police officer must “present all material facts, favourable or not” and avoid incomplete recitations of known facts: R. v. Morelli (2010), 2010 SCC 8, 252 C.C.C. (3d) 273, at para. 58. Erroneous information is to be excised from the ITO and if, after excision, there remains sufficient reliable information upon which the issuing justice could reasonably have issued the warrant, there will be no s. 8 violation: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992.
41I find that the ITO overstated the degree of corroboration obtained from surveillance of the Applicant because it contained certain inaccurate statements. Those statements should be excised. However, despite the excisions, the ITO contained sufficient reliable information for the Justice to have reasonably issued the warrant.
Surveillance
42On July 24, 2024, Detective Constable John Xiouris confirmed that the Rolls Royce and Ford vehicles were located in the underground parking lot. The Ford was parked in a visitor parking spot (V020). The Rolls Royce was parked on P3 in spot 3030, which was the parking space assigned to the Unit.
43On July 25, 2024 at 2:00 p.m., DC Xiouris observed both vehicles parked in the same spots as the previous day. At 2:09 p.m., an individual DC Xiouris identified as Mr. Bent was seen walking on the south side of the building. He was described as male, Black with braided hair, tattoo on neck, wearing black pants, black shoes, and a black T-shirt with “SLIME” written in green letters on the back. He entered a Toyota that was parked in front of a restaurant near the building, which then drove eastbound through the parking lot and toward the front door of 10 Park Lawn. The Applicant then exited the vehicle and went into the front door of 10 Park Lawn. DC Xiouris believed this brief time in the vehicle to be a hand-to-hand transaction.
44Shortly after, at 2:12 p.m., the Ford was observed exiting the parking lot of 10 Park Lawn. The vehicle was lost until it was observed returning to the parking garage at 3:47 p.m. The vehicle was then seen parked in a visitor parking spot. DC Xiouris’ surveillance report notes that the Ford was “believed to be driven by” the Applicant.
45On the morning of July 26, 2021, surveillance officers observed the Rolls Royce parked in the underground parking garage in spot 3030. The Ford was not located until 12:19 p.m., when it was observed in visitor parking spot V046. At 12:43 p.m., the Ford was observed leaving the underground parking lot. Surveillance officers followed the vehicle to the parking lot of a plaza on Lakeshore Boulevard. An unknown white male was observed exiting the driver’s side. The unknown male was described as White, 25-30 years old, short dark hair, unshaven, skinny build, wearing black tank top, black shorts, black shoes, black satchel across chest, and a tattoo on the upper right arm “SLIME”. An individual identified as the Applicant was observed exiting the rear passenger side with a young child. He was described as wearing a green doo rag/hood over his head, a white T-shirt, red shorts, high white socks, brown shoes, and a black satchel across the chest. The three individuals walked through the parking lot toward a park. At 2:05 p.m., they returned to the Ford and drove to a McDonald’s drive-through, after which they returned to the underground parking at 10 Park Lawn Road at 2:30 p.m.
46Also on July 26, 2021, DC Lecki spoke to security at the front desk of 10 Park Lawn on two occasions. After DC Lecki provided “details” of the Applicant and the target address, security confirmed that the applicant “lives at” 10 Park Lawn, Unit 3702. DC Lecki could not specifically recall what details he provided, as referenced in his notes. He further confirmed that neither of the target vehicles, the Ford or the Rolls Royce, were registered to the parking space (3030) for Unit 3702. He did not inquire what vehicle was registered for that space.
Findings
47On the first issue, I find that the statement in the ITO that the description provided by the CS “matches the description provided by surveillance officers” should be excised.8 DC Xiouris, who was the only officer to have observed the Applicant, noted only the most basic physical characteristics of the individual he observed, that he was Black, had braided hair and a tattoo on his neck. Such a low level of corroboration gives rise to the risk of finding description matches where they do not in fact exist. DC Xiouris did not note the individual’s estimated height or weight and whether he had a beard, although that information was available in the person of interest package. Further, I agree that the ITO should be amplified to state that the officer observed a tattoo on the Applicant’s neck but was unable to determine what the tattoo said or depicted because this information would have been relevant to the issuing justice.
48On the second issue, I find that the statement that the Applicant was observed attending the underground lot “on several occasions” must also be excised. The statement is misleading because it would have led the issuing Justice to understand that surveillance officers actually observed the Applicant in the underground parking lot multiple times. In fact, a closer review of the surveillance reports reveals that the Applicant was never observed in the parking lot. DC Xiouris observed him once outside 10 Park Lawn on July 25, 2021. Aside from that, on July 25, 2021, DC Xiouris observed the Ford exit and enter the parking lot and believed that the Applicant was driving. On July 26, 2021, the Ford was observed leaving the parking lot. The Applicant was observed exiting the rear passenger side of the vehicle at a parking lot at a plaza. The vehicle was later observed returning to the underground lot of 10 Park Lawn. While it can be inferred that the Applicant was in the vehicle when it returned, he was not observed in the vehicle or exiting it.
49Further to the Crown’s concession that the redactions in the last part of paragraph 14 and in paragraph 16(l) cannot be summarized without revealing the identity of the CS, those portions must also be excised. Accordingly, I must consider the sufficiency of the ITO without reference to those portions.
50Once those statements are excised from Appendix “D” to the ITO, the degree of corroboration of the CS information is more accurately reflected. In addition, the more factually accurate statements in Appendix “C” remain. Those statements reflect that the surveillance officer believed that the Applicant was in the Ford when it exited and entered the underground lot.
51On the third issue, despite the lack of detail in DC Lecki’s notes and his lack of recollection as to the specific details he provided, I find that he confirmed that the Applicant lived at Unit 3702 at 10 Park Lawn. At the very least, DC Lecki had to have provided the Applicant’s name and the address, including the unit number. Otherwise, the exercise of confirming the information would have served no useful purpose. In my view, it is reasonable to infer from the evidence that DC Lecki provided the Applicant’s name and unit number to the security guard, who confirmed that Mr. Bent “lives at” at the Unit. This is consistent with his notes. Had the security guard not confirmed this information, it is unlikely that DC Lecki would have noted that the information was confirmed. It is more likely that DC Lecki would have provided further details, such as the photograph or physical description, in an attempt to verify that the Applicant resided there.
52While there is a discrepancy between DC Lecki’s evidence that he spoke to building security and the ITO, in which DC Frendo-Jones referred to the concierge, I do not find this to be a material discrepancy that raises an issue as to whether DC Lecki in fact confirmed that Mr. Bent residing at the Unit.
53In respect of the vehicles, DC Lecki received information that neither the Ford nor the Rolls Royce were registered to the parking space for the Unit. The ITO properly disclosed that a different vehicle was registered to the parking space. Because DC Lecki did not inquire as to the vehicle that was registered to the parking space for the Unit, that information is not known. Had he asked building security this question, there is a possibility that a vehicle registered to a third party would have been connected to the Unit, thus negating a link between the Applicant and the Unit.
54However, in my view, despite the officer’s failure to inquire as to the vehicle that was registered to the parking space for the Unit, there was sufficient confirmation to connect both vehicles to 10 Park Lawn. The Rolls Royce was observed in the parking space (3030) for the Unit on the two days during which surveillance was conducted. The Ford was observed leaving and returning to 10 Park Lawn. In addition, there were 14 parking tickets for the Ford at 10 Park Lawn Road in the four months leading up to the execution of the search warrant, and the most recent ticket was dated July 18, 2021. The Versadex check also revealed a recent speeding ticket issued to the Applicant while driving the Ford.
55After excision and amplification as detailed above, Appendix “D” to the ITO would include the following details that police were able to corroborate about the Applicant and his connection to the Unit, the Ford and the Rolls Royce:
The Applicant lived at 10 Park Lawn Road, Unit 3702;
Both the Ford and the Rolls Royce, which were registered to the Applicant, were seen at 10 Park Lawn Road on the two days before the execution of the search warrant;
The Rolls Royce was seen parked in spot 3030, the parking space for Unit 3702;
On July 25, 2021, the Applicant was observed leaving 10 Park Lawn on foot, entering a different vehicle, and returning to 10 Park Lawn a short time after; and
On July 26, 2021, the Applicant was believed to be in the Ford when it entered the underground lot at 10 Park Lawn.
Did the ITO Disclose Reasonable and Probable Grounds to Believe an Offence had been Committed and Evidence Would be Located in the Applicant’s Residence and Vehicles?
56The next issue is whether, considering the record as modified, there was sufficient credible and reliable evidence in the ITO to permit the issuing justice to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be located at the Applicant’s residence and vehicles: Morelli, at paras. 40–41.
The Applicable Legal Principles
57The standard for the issuance of a search warrant is that there are reasonable and probable grounds to believe that an offence has been committed and that there is evidence of that offence to be found at the place to be searched: Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641, at p. 168. Relatedly, there must also be grounds to believe that evidence of the offences would be found at the time the warrant is executed: R. v. Woo, 2017 ONSC 7655, at para. 60.
58The reviewing judge must not substitute their view for that of the issuing justice. The question is not whether the reviewing court would have issued the warrant, but whether there is sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place: Morelli, at para. 40. If, based on the record before the issuing justice, as amplified by the evidence adduced at the application hearing, the issuing justice could have issued the warrant, the reviewing judge should not interfere: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, 80 C.R. (3d) 317, at p. 1452.
59“Reasonable and probable grounds” means a “credibly-based probability” and does not mean proof beyond a reasonable doubt or even a prima facie case: Morelli, at paras. 127–28; R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, 73 C.R. (3d) 129, at p. 1166. A credibly-based probability requires that the grounds provided demonstrate a probability, as opposed to a suspicion, that the relevant facts could be true, and assuming the information to be true, that there are reasonable grounds to believe that the information relied upon is credible enough to support a conclusion that there is a reasonable probability that the relevant facts exist: R. v. Floyd, 2012 ONCJ 417, at para. 9.
60As stated in Garofoli, the existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant, but their sole impact is to determine whether there continues to be any basis for the decision of the issuing judge.
61In R. v. Debot, at para. 60, the Supreme Court of Canada articulated the following considerations when evaluating whether a tip provides a reasonable basis for a detention:
Is the information predicting the criminal offence compelling?
Was the source of the information credible?
Was the information corroborated by police investigation?
62It is not necessary, however, that a tip satisfy every element before it can be relied upon as a basis for an arrest: Debot, at para. 60. Weakness in one factor may be offset by the strength of another factor.
Application to the Facts
(a) Was the information compelling?
63The first Debot factor focuses on the reliability of the information, including the degree of detail provided by the CS and the basis or source for the CS’s knowledge.
64In this case, the CS provided detailed and specific information about Mr. Bent, including:
the length of time the CS has known the Applicant;
the Applicant’s street name;
the Applicant is a male, black, about 5’10”, 160 pounds with short black braided hair and a beard. He has a large tattoo across his neck that says “Slime”. The CS was shown a photograph of the Applicant and confirmed that it was Mr. Bent;
the Applicant’s connection to a specific unit at 10 Park Lawn Road;
the Applicant’s connection to a white Rolls Royce with “very flashy rims”;
the Applicant’s connection to a Ford vehicle;
that the Applicant possessed a handgun and some detail about the firearm; and
that the Applicant deals drugs and some details about his drug dealing activity.
65The judicial summary states that some of the information provided by the CS was first-hand knowledge. The level of first-hand information would have been apparent to the issuing Justice. Whether other information from the CS was second or third hand was indicated in the ITO and would have been apparent to the Justice. The circumstances in which some information was obtained was also stated in the ITO.
66The judicial summary makes clear that certain information about Mr. Bent’s alleged drug-trafficking activity was not based on hearsay or rumour. The information was not widely known or easily ascertainable. How the CS came to know the Applicant’s connection to the two vehicles was also disclosed in the ITO. Because of the risk of disclosing information that could identify the CS, I am unable to go into further detail.
67The ITO provided information as to the currency of the information provided by the CS. While the judicial summary does not provide the recency of the CS’s information, this information was available to the Justice. The information also provided reasonable and probable grounds to believe that evidence would be located at the residence.
68The defence submits that in determining how compelling the CS’s information was, the court ought to consider details about the firearm such as the make and model and the context in which it was seen, including when, where, why and how. I can only say that I have considered those details.
69As a result, I conclude that the information provided by the CS was very compelling.
(b) Was the CS credible?
70The second factor reflects considerations such as the source’s motivation, criminal antecedents and past history of providing reliable information to the police.
71The judicial summary states that the CS had previously provided information to the police on at least 10 occasions, leading to several seizures and people arrested. The details of those investigations, including the nature of the investigation, whether the CS information led to a warrant being issued or executed, the result of the execution of a warrant, if issued, and whether charges were laid, among other details, were included. The ITO stated that the CS was not known to have provided misleading information in the past. The CS had previously provided information to the specific handler, which proved reliable.
72As stated in the judicial summary, whether the CS has a criminal record and the details, if any, were disclosed in the unredacted ITO that was before the issuing Justice. Similarly, the ITO disclosed whether the CS had any outstanding charges and the nature of such charges.
73The CS’s motivation for providing the information to police was stated in the ITO and involved either financial consideration or consideration relating to outstanding charges. The ITO states that the CS was advised of the consequences of providing untruthful or dishonest information. Any consideration would be given only after the determination of the truthfulness of the information on the particular case. The CS thus could not benefit unless the information was correct.
74Based on the foregoing considerations, I find that the credibility of the CS is high.
(c) Was the information corroborated?
75The third Debot factor relates to the independent confirmation of the CS’s information.
76It is often impossible for police to obtain confirmation of the “very criminality” of what the CS has witnessed or knows: R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at para. 38. The fact that police are not able to corroborate or confirm the criminal act is not a lack of corroboration for the purposes of issuing a search warrant: R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742, at para. 22. At the same time, meaningful corroboration requires more than confirmation of neutral or easily discernible facts: Woo, at para. 51, citing R. v. Muller, 2011 ONSC 4892, 276 C.C.C. (3d) 167, at para. 48 (rev’d on other grounds, 2014 ONCA 780).
77The defence submits that the police conducted minimal investigation and corroborated only easily discernible facts about the Applicant.
78I have detailed above the information that the police were able to corroborate by surveillance. Police corroborated that the Applicant lived at the Unit and that the Ford and Rolls Royce were seen in the underground parking lot of the building. Further, although I have excised the portion indicating that the CS’s description of Mr. Bent matched the description provided by surveillance officers, DC Xiouris observed that the Applicant was wearing a black T-shirt that said “Slime” in green letters on the back. This corresponded to the CS’s description of the Applicant’s tattoo. Despite the absence of other aspects of the physical description matching the CS’s description of the Applicant, this drew a link between the CS’s information and the person observed by DC Xiouris.
79The ITO further details the CS’s information that the police were able to corroborate through police database checks, including that the Applicant had a white Rolls Royce and a grey Ford registered to him with the Ministry of Transportation.9 The police also confirmed that the Applicant had a connection to a location during a general time frame. I am limited as to what can be said in this respect because of informer privilege.
80There was no corroboration of drug dealing activity or other criminality. While the ITO details an interaction that surveillance officers believe to be a hand-to-hand transaction, there is no explanation as to why that conclusion was drawn. In my view, there are alternative explanations for getting into a vehicle for a brief time period that do not involve criminality, especially because the Applicant had no criminal record and no history of involvement in the drug trade.
81While the degree of corroboration was limited, in my view, it went beyond neutral and easily discernible facts that would have been known to any member of the public. In my view, “the independent information conforms sufficiently to what one would have anticipated based on the informant’s information, such that ‘the possibility of innocent coincidence is removed’”: R. v. Jones, 2023 ONCA 106, at para. 20.
Summary
82Based on my analysis of the Debot factors and taking into consideration the record with the excisions and amplification detailed above, I find that there was sufficient credible and reliable evidence to permit the issuing Justice to find reasonable grounds to believe that an offence had been committed and that evidence of the offence would be found at the Applicant’s residence and vehicles. In my view, unlike Herta or R. v. Colucio, 2019 ONSC 4559, 440 C.R.R. (2d) 114, at para. 79, this was not a case of “roving grounds to believe”. The information before the issuing Justice included some detail connecting the Applicant, a firearm, and the places to be searched and went beyond a mere assertion that a person is a drug dealer and is known to carry a gun.
83In determining whether there were reasonable grounds, the totality of the circumstances is relevant. Moreover, weaknesses in one area may be compensated to some extent by strengths in the other two: Debot, at para. 60. I am satisfied that the credibility of the CS combined with the compelling nature of the information make up for any lack of corroboration by police.
84Accordingly, in relation to the unit and the two vehicles, the search warrant was valid.
Were the Applicant’s Section 8 Rights Breached by the Police Failure to File a Report to Justice?
85As detailed earlier in these reasons, police located a guitar case containing a rifle and ammunition on the eighth-floor balcony of the building. In his testimony on the application, the Applicant admitted that he threw the guitar case from the balcony of his Unit. The Applicant argues that even if the search warrant was valid, his s. 8 rights were breached because the police failed to file a Report to Justice in respect of the discarded property.
86Section 489.1(1) of the Criminal Code requires that a Report to Justice in relation to seized property be filed “as soon as practicable.” The requirement to file a Report to Justice is not simply technical. The filing of a Report to Justice places the property within the purview of judicial oversight and provides a measure of police accountability when dealing with seized property: R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, para. 45.
87DC Frendo-Jones submitted Reports to Justice for the property seized from the Unit in August 2021. No Report to Justice was filed in respect of the discarded property at that time. A Report to Justice for the guitar case and rifle was filed on March 11, 2024 but no Report to Justice has ever been filed in respect the ammunition and magazines located in the guitar case.
Does the Applicant Have Standing?
88The Crown conceded that the Report to Justice for the discarded property was not filed in a timely way and that if the Applicant has standing, this would constitute a breach of s. 8 of the Charter. However, the Crown submits that the Applicant lacks standing to bring a s. 8 claim based on the failure to file a Report to Justice for the discarded property in a timely manner because he abandoned the items when he threw them from the balcony of his Unit.
89Section 8 of the Charter is a personal right that protects personal privacy. A defendant must establish a reasonable expectation of privacy in the subject matter of the search: R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at para. 44. The test for standing has both subjective and objective elements: (i) did the accused have a subjective expectation of privacy over the subject matter of the search; and (ii) was that expectation objectively reasonable in all of the circumstances? Keshavarz, at para. 45; R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 13.
90Even where an accused is found to have had a reasonable expectation of privacy in the subject matter of the search, that reasonable expectation will give way where they act in a way that would lead a “reasonable and independent observer to conclude” that they have ceased to assert any privacy interest in the subject matter of the claim: Keshavarz, at para. 46. Abandonment is a question of fact: R. v. Patrick, 2009 SCC 60, [1027] 2 S.C.R., 696, at para. 25.
91In R. v. Stevens, 2012 ONCA 307, the police were about to enter an apartment to execute a search warrant in the middle of the night when they saw someone throw an item from the window. When police recovered the item, they found that it was a white sock containing a handgun. The Court of Appeal upheld the trial judge’s finding that the accused’s s. 8 rights were not violated on the basis that he no longer had any reasonable expectation of privacy respecting the gun. See also: R. v. Nesbeth, 2008 ONCA 579, 240 O.A.C. 71.
92In my view, even if the Applicant had a subjective expectation of privacy in the discarded property, he abandoned any reasonable expectation of privacy in the discarded property when he threw it from the balcony of the Unit, as he admitted having done. In throwing the guitar case containing a rifle and ammunition off the balcony, the Applicant divested himself of possession and control of the items: Stevens. In his testimony, the Applicant admitted that he did not know where the discarded property would land but that he just wanted to get rid of the items because he knew he should not have them.
93The items landed on the grass in an outdoor area on the eighth floor of the condominium building. The area, which has a pool, as well as tables and chairs, is intended for common use by the residents of the building. Because the area is within the property of the condominium, it is not accessible to the public. However, it was accessible to other residents of the building, and was not an area that the Applicant controlled. The discarded property would have been in plain view of anyone who accessed that common area. Although the Applicant had a subjective expectation of privacy in the discarded property, once he threw the items over the balcony, that expectation was no longer objectively reasonable.
94Accordingly, I find that the Applicant does not have standing to make a claim for breach of his rights under s. 8 of the Charter on the basis of the TPS’s failure to file a Report to Justice in relation to the firearm, guitar case, ammunition, and magazines that were thrown from the balcony.
95While I have found that the Applicant lacks standing to claim that his s. 8 rights were breached, this should not be taken as suggesting that the TPS was under no obligation to file a Report to Justice in relation to the discarded property. As stated above, a Report to Justice is required under the Criminal Code and provides for a measure of police accountability when dealing with property seized pursuant to an exercise of police powers: Canary, at para. 45. In this case, the delay of over two years to file a Report to Justice for the guitar case and rifle, and the continued failure to file a Report to Justice for the ammunition and magazines, remains concerning.
Did the Police use Excessive Force in Arresting the Applicant?
96The Applicant alleges that the police officers breached his rights under s. 7 of the Charter by using unreasonable and excessive force in arresting him. It is undisputed that one of the ETF officers, Police Constable Victor Romita, deployed a conducted energy weapon, commonly known as a taser, on the Applicant shortly after the door of the Unit was breached. The Applicant further alleges that he was dragged out of the Unit by an ETF officer by his hair and arm and that after he was out of the Unit, the officer said he should have killed him.
97The Crown submits that the use of force by police was reasonable, necessary and proportionate because the Applicant was not obeying the ETF officers’ commands and posed a risk to the officers’ safety.
The Applicable Principles
98Section 25 of the Criminal Code governs the use of force by police, and reads as follows:
Protection of persons acting under authority
25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
99The use of excessive force in arresting a person is a breach of s. 7 of the Charter right to security of the person: R. v. Walcott (2008), 2008 CanLII 11374 (ON SC), 57 C.R. (6th) 223 (Ont. S.C.), at para. 22.
100In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 32-34, the Supreme Court of Canada explained that the requirements of “reasonable grounds” and “as much force as necessary” imported a subjective-objective test. In other words, not only did the officer have to believe that force was necessary but that belief had to be objectively reasonable.
101The police decision to use force is to be judged by what was or should reasonably have been known to them at the time: R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 23. In addition, a “certain amount of latitude is permitted to police officers who are under a duty to act and must often react in difficult and exigent circumstances”: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 73.
102Once an accused person demonstrates that force was used in effecting an arrest, the burden shifts to the Crown to demonstrate that the use of force was justified: R. v. Davis, 2014 SCC 4, [2014] 1 S.C.R. 78, at para. 1.
103In assessing the reasonableness or necessity of the use of force, a court must take into account all the circumstances, including:
(i) whether the suspect was acting in a hostile manner towards the police, resisting arrest or failing to comply with an officer’s arrest procedure;
(ii) the relative sizes and weights of the officer and the suspect;
(iii) whether the officer was at risk of harm;
(iv) whether the police knew the suspect had a history which might represent a threat to them; or
(v) whether the police understood that weapons might be on the premises.
Walcott, at para. 24.
104The parties have vastly diverging accounts about what occurred after ETF officers breached the door of the Unit to arrest the Applicant. I must, therefore, make factual findings about what transpired before assessing whether any force used was reasonable.
The Applicant’s Evidence
105The Applicant testified that he first became aware of the ETF officers’ attempt to enter the Unit by a loud banging sound. He got up from the bed where he had been lying in the bedroom of the Unit and went to the door of the bedroom. He testified that he looked at the front door of the Unit, which looked like it was about to come off the hinges. The Applicant testified that he understood what was happening because he had previously heard a search warrant being executed in the building. The Applicant ran back into the bedroom and grabbed the guitar case, which was by the balcony door in the bedroom. He then threw the guitar case off the balcony. The Applicant testified that he knew there was a gun in the guitar case and did not want to get caught with it.
106The Applicant testified that he heard police calling his name and shouting: “Omary Bent, get the fuck out here.” He testified that the officers “sounded aggressive and angry” and that he wanted to show that he was complying. The Applicant did not recall being told to get down on the ground, to put his hands up or to stop moving. He testified that he heard shouting but does not remember what he was told. He did not remember being told to get on his knees.
107The Applicant testified that he came out of the bedroom door with his hands in the air and had only moved “a couple of feet” when he was struck by the taser. Because the bedroom door was perpendicular to the entrance to the Unit, the Applicant had to walk out a couple of steps and turn to go toward the entrance to the unit. On cross-examination, the Applicant testified that he made a couple of steps straight out of the bedroom, and that as soon as he turned to walk toward the officers, he was immediately tasered. He testified that it took about 6-8 seconds from the time he heard police announce themselves, threw the guitar case off the balcony and stepped out of the bedroom.
108Before being struck by the taser, he saw that the door was filled with police officers, and officers wearing what appeared to be “army” or camouflage clothing, with shields and long guns pointed at him. After being struck, the Applicant fell to the floor in front of the bedroom.
109The Applicant testified that when he was hit by the taser, it felt “like something ripping through [his] chest” and that his body was in shock. He testified that he was screaming and crying from the pain. The next thing the Applicant remembered was an officer moving toward him and grabbing him by his left wrist and the braid on the right side of his head. The officer pulled him out of the Unit and dragged him down the hallway to the stairwell, which he estimated was approximately 4-6 feet away from the Unit.
110The Applicant testified that once he was in the stairwell, the officer who dragged him there said: “I should have fucking killed you.” The Applicant described the officer as wearing army-type clothing and shorts. He testified that a plain clothes officer in the stairwell, who was later identified as DC Xiouris, looked at him with a raised eyebrow, as if reacting to what the other officer had said. He was then handcuffed and left with DC Xiouris, who told him to get up and sit on the stairs. The Applicant had two taser probes in his body, one on the right side of the stomach area and the other near the right side of his collar bone.
111The Applicant testified that the other person who was in the Unit, Talal Al-Ghanem, was dragged to the stairwell, shortly after he was. Mr. Al Ghanem was also handcuffed and told to sit on the stairs.
112The Applicant testified that he was wearing blue, swimming-type shorts that had a small back pocket but no side pockets. He had no shirt or shoes on. The Applicant denied moving around the Unit, reaching for his pockets or advancing on the officers. He denied looking for the other firearm, which was found in a satchel on an office chair in the living area.
113The Applicant admitted that he told DC Xiouris that he did not want to go to hospital, but he was in shock and was “not OK.”
114After he was released from custody the following day, the Applicant’s sister, Breanna Bent, took photographs of his injuries. The photographs show scrapes on right arm, which the Applicant testified was carpet burn from being dragged. He also had cuts and scrapes on his right knee. Photographs of the Applicant’s face show a red line on the corner of his face above the eye. The braid on right side of the Applicant’s head is lifted, unlike the braid on the right side of his head, which lies flat against his scalp. Another photograph shows a bald, raw spot where the braid has detached from the skin of his scalp.
The Officers’ Evidence
115Sergeant Richard Macfarlane, who was the ETF supervisor that day, testified that there were eight ETF officers on site in total. Four or five officers were stationed at the door. The plan was to breach the door and call out the occupants. He was set up in the hallway with a couple of other ETF officers to receive the occupants. Once that was complete, the Unit was to be cleared to ensure that it was safe to search, and the Unit would be handed over to the Guns and Gangs Unit officers to execute the search warrant.
116PC Dorazio was the #1 officer in the line of ETF officers, which meant that he was at the door giving commands to the occupants. PC Dorazio was not called as a witness. DC Moorcroft was the #2 officer, which involved covering PC Dorazio, who was on the floor in a crouched position between DC Moorcroft’s legs. The front door of the Unit was breached at 7:18 a.m. with a hydraulic ram. PC Moorcroft testified that as the door was being breached, the officers called out “Police, search warrant” so the occupants would know that it was police who were at the door.
117After the door was breached, DC Moorcroft testified that he saw Mr. Al-Ghanem sitting on the sofa in the living area directly across from the door. He did not see anyone else at the time. DC Moorcroft testified that PC Dorazio began giving commands to Mr. Al-Ghanem to walk backward to the door, to the sound of his voice. DC Moorcroft testified that Mr. Al-Ghanem walked backward toward the door with his hands on his head, as instructed.
118PC Romita testified that he was on the left side of the door frame facing the unit when the door was breached. Once the door was breached, he saw Mr. Al-Ghanem at the back of the living room. PC Romita then moved to the right side of the door frame. PC Romita testified that Mr. Al Ghanem was called out of the Unit, and around that time, he received information that something had been thrown off the balcony. He testified that he observed the Applicant “come running out” of the bedroom, to the right of the doorway. He told the Applicant to stop, but he did not listen and ran back into the bedroom. PC Romita testified that the Applicant ran back and forth between the bedroom and living room “several times.”
119PC Romita testified that Mr. Al-Ghanem came out of the Unit without incident and that he was handcuffed by other ETF officers and moved to the side.
120Sgt Macfarlane testified that Mr. Al-Ghanem came out of the Unit within one minute of the door being breached. Contrary to the testimony of DCs Moorcroft and Romita, however, DC Macfarlane testified that Mr. Al-Ghanem was not complying with commands and that there was a struggle in the threshold because he was not giving up his arms. Mr. Al-Ghanem was taken to the ground by Sgt Macfarlane and another ETF officer, Officer Farrell. Sgt Macfarlane testified that they used force to handcuff Mr. Al-Ghanem, who was yelling and screaming throughout the cuffing process. When they told Mr. Al-Ghanem to stand up, he would not cooperate. Sgt Macfarlane testified that Mr. Al-Ghanem was dragged away from the threshold of the Unit because it was unsafe for them to be struggling with him at the doorway when they did not know who else remained in the Unit. Once Mr. Al-Ghanem was out of the threshold, he stood up and was walked to the stairwell to be handed off to another officer. DC Lecki, a Guns and Gangs Unit officer who was in the stairwell, testified that he saw scrapes on Mr. Al-Ghanem’s shoulders and asked if he was OK.
121DC Moorcroft testified that while Mr. Al-Ghanem was coming out of the Unit, he was observing different angles of the Unit, from which someone could potentially have emerged. He testified that Mr. Bent came out of the bedroom into the living area and was looking around. DC Moorcroft testified that he told the Applicant to put his hands on his head and get down on the ground. He testified that because PC Dorazio was dealing with Mr. Al-Ghanem, it became his role to give commands to Mr. Bent. DC Moorcroft testified that the Applicant “ignored” him and moved into the living room area and appeared to be looking for something. He described the Applicant’s movements as “walking around and looking as if you’re looking for car keys before leaving the house.” DC Moorcroft repeated the command to put his hands on his head several times, but the Applicant continued to walk around and then went back to the bedroom. DC Moorcroft testified that while the Applicant was in view and walking around the living area, he had his shotgun pointed at him.
122DC Moorcroft testified that once Mr. Al-Ghanem was out of the Unit, PC Dorazio gave commands for Mr. Bent to come out of the bedroom with his hands on his head. DC Moorcroft testified that the Applicant came out of the bedroom but did not have his hands on his head. He was walking forward, and not backwards, as he would have been directed to do.
123DC Moorcroft testified that the Applicant then dropped his hands toward his waist and put his right hand into his pocket. That is when he heard the taser being deployed. DC Moorcroft testified that when Mr. Bent was tasered, he was walking in the officers’ direction, facing them. DC Moorcroft still had a firearm pointed at him. DC Moorcroft testified that the Applicant passed the area where the bedroom wall ends and was near the “office nook” closer to the front door.
124PC Romita testified that after Mr. Al-Ghanem had exited the Unit, the Applicant stopped running back and forth. He was told by another officer to walk backward with his hands on his head. However, PC Romita testified that the Applicant had a “problem with commands” and that at points he would stop listening. He testified that he had to “constantly stop and correct him” to ensure things were done in the proper manner.
125PC Romita testified that he saw a chair near the door of the bedroom with a satchel on it. He testified that because he received information regarding items thrown off the balcony, he had a heightened concern about the satchel, which he believed could contain a firearm. PC Romita testified that when Mr. Bent came out of the bedroom, he would go into the proximity of the chair with the satchel and then back into the bedroom.
126PC Romita testified that at some point, the Applicant dropped his hands near the chair with the satchel and turned toward the ETF officers at the door. It was at that point that he deployed the taser. PC Romita testified that he deployed the taser to protect himself and the team, because he believed there was a gun in the satchel. PC Romita admitted that he did not see anything in the Applicant’s waist band area, and that he did not see him put his hands into his pockets. He testified that it was Mr. Bent’s proximity to the chair and satchel that caused him to deploy the taser.
127After Mr. Bent was struck with the taser, he fell to the floor. PC Romita testified that PC Dorazio told the Applicant to crawl out to toward the officers, which he did. As he crossed the threshold, other officers removed him from the door area. PC Romita testified that that was the end of his involvement with the Applicant, and he did not see him handcuffed by the other officers because he was still watching the Unit. PC Romita testified that he did not see anyone drag the Applicant.
128DC Moorcroft also testified that the Applicant crawled to the threshold and explained that they would not have gone into the Unit to retrieve him because they did not know if anyone else remained in the Unit.
129Sgt Macfarlane testified that after he handed Mr. Al-Ghanem to other officers, he returned to the door area and heard over the radio that a guitar case had been thrown off the balcony. Sgt Macfarlane testified that he heard the taser being deployed and commands being given to a male who was not complying. One of the officers was yelling for the male to crawl out to them at the door frame so he could be handcuffed. Sgt Macfarlane testified that like Mr. Al-Ghanem, the Applicant was handcuffed with a struggle because he was not giving up his arms. He testified that he knelt on Mr. Bent’s shoulder and forced his arms back in order to put the handcuffs on and that Officer Farrell assisted him.
130In examination in chief, Sgt Macfarlane did not initially recall the Applicant being dragged across the threshold, as Mr. Al-Ghanem was. On cross-examination, Sgt Macfarlane confirmed that the Applicant was dragged a short distance to get him out of the threshold. Sgt Macfarlane denied telling Mr. Bent that he should have killed him.
131DC Xiouris testified that the Applicant was brought to him by an ETF officer at 7:21 a.m., after Mr. Al-Ghanem. DC Xiouris testified that he did not see the Applicant being dragged and did not hear another officer tell the Applicant that he should have killed him. At the time, the Applicant was standing, handcuffed, with the taser probes in him. DC Xiouris did not conduct a pat down search of either Mr. Al-Ghanem or Mr. Bent. While DC Xiouris initially testified that they were brought to him in the stairwell, he accepted his notation that they were turned over to him in the hallway and then moved to the stairwell.
132At 7:23 a.m., DC Xiouris received information from DC Frendo-Jones that a firearm was located in the guitar case that was believed to be thrown off the balcony. He advised both Mr. Al-Ghanem and Mr. Bent of their right to counsel. He remained with Mr. Al-Ghanem and Mr. Bent until 7:25 a.m., when the unit was turned over by the ETF officers to the Guns and Gangs officers to conduct the search.
133DC Xiouris acknowledged that Mr. Bent was in discomfort from the taser probes. DC Xiouris testified that he wanted paramedics to attend to Mr. Bent before facilitating his right to counsel. However, he later found out that the tactical paramedics with the ETF officers had left without removing the taser probes from Mr. Bent. At 7:45 a.m., paramedics were called and the taser probes were removed at 8:15 a.m.
Findings
134The entire interaction from the breach of the door at 7:18 a.m. to the Applicant’s handover to DC Xiouris at 7:21 took place within a span of three minutes. The circumstances were dramatic and fast-changing, which no doubt affected the participants’ recollections. The contradictions in the evidence, however, are difficult to reconcile, especially because the officers’ evidence is also inconsistent with one another.
Credibility and Reliability
135In respect of Mr. Bent’s evidence, his recollection was incorrect and unreliable in certain respects. Contrary to his testimony, the evidence of multiple officers was that Mr. Al-Ghanem came out of the Unit before him. As a result, the taser could not have been deployed on him within 6-8 seconds of the door being breached, as he testified. The timing of events is more consistent with the taser having been deployed just shortly before the Applicant was handed over to the Guns and Gangs Unit at 7:21 a.m. In addition, while the Applicant testified that he was following the officers’ commands, he could not recall what the commands were. Moreover, his evidence was that he was walking forward out of the Unit, which was contrary to the instruction to walk with his back to the officers. In this regard, I accept the evidence of Officers Moorcroft and Romita that the standard command, which they used in this case, is for arrestees to walk backward because this would help mitigate any risk.
136At times, the Applicant’s testimony was lacking in specifics or detail. Having said this, I recognize that Mr. Bent’s memory would be impacted by the traumatic experience of having been tasered and dragged. Moreover, he admitted when he did not remember a particular detail, such as the location of the chair with the satchel.
137In terms of credibility, I find that the Applicant’s testimony was generally candid and that he resisted the temptation to exaggerate. He testified that he was dragged to the stairwell but minimized the distance at 4-6 feet. When asked how long the tasering went on, the Applicant said he was not sure. He described the pain he felt and the injuries he experienced without overstating the extent or impact on himself. He admitted incriminating facts, including that he threw the guitar case away because he knew it contained a rifle and that there were drugs “all over” the Unit when police arrived. He further admitted that he knew the firearm in the satchel was loaded.
138Mr. Bent would not, however, admit that there was ammunition in the file folder, despite being shown a photograph of it. The Applicant testified that he kept documents for his business in that folder. As a result, I find his refusal to admit there was ammunition in the file folder or that he knew that there was ammunition in the file folder not credible.
139On the whole, however, Mr. Bent’s testimony was not significantly challenged on cross-examination. As a result, I find that Mr. Bent’s recollection was unreliable in respect of some details of the events that took place on July 27, 2021 but that his testimony on other issues, as detailed further in these reasons, was both credible and reliable.
140Based on the following inconsistencies in the testimony of the ETF officers who were called as witnesses, I am left without a reliable account of what took place after the door to the Unit was breached:
PC Romita testified that the Applicant went back and forth between the bedroom and the living area several times, while DC Moorcroft testified that the Applicant went into the bedroom once;
DC Moorcroft testified that the Applicant was walking forward out of the Unit while PC Romita testified that the Applicant was walking backward but turned rapidly toward the officers when he reached the chair with the satchel;
DC Moorcroft testified that the Applicant lowered his arms once while PC Romita testified that his arms went down toward his waist multiple times;
DC Moorcroft testified that Mr. Bent put his hand in his pocket; however, PC Romita testified that he never saw the Applicant put his hand in his pocket;
DC Moorcroft testified that the Applicant could have had something at his waist but PC Romita testified that he did not see anything in his waist area;
DC Moorcroft and PC Romita testified that Mr. Al-Ghanem came out of the Unit without incident, contrary to Sgt Macfarlane’s testimony that he had to be taken down, removed and handcuffed with force; and
DC Moorcroft and PC Romita testified that they did not know whether Mr. Bent was dragged over the threshold, even though Sgt Macfarlane admitted that he was, and they were at the door when this took place.
141While not an inconsistency, it is worth noting that Officers Moorcroft, Macfarlane, Xiouris and Lecki could not recall whether the Applicant was wearing a shirt, despite dealing with him very closely or testifying that they had seen the taser probes. By contrast, PC Romita admitted that the Applicant was not wearing a shirt and that he did not see a weapon at the Applicant’s waist. I find that the reluctance of the other officers to admit that Mr. Bent had no shirt on was to maintain some basis for the belief that he could have had a firearm concealed on his person. It would be more difficult to maintain such a belief when the Applicant was wearing only swimming-trunk type shorts. I find that their testimony lacked candour in this regard.
142In addition, PC Romita’s testimony is problematic because it is inconsistent with (i) his contemporaneous notes; (ii) the Conducted Energy Weapon Report (CEW Report) that he completed; and (iii) the Use of Force Report that he completed. The cumulative effect of these inconsistencies is to render it impossible for me to accept his account as credible.
143First, the concern that PC Romita articulated in his testimony at trial was that the Applicant was going to reach for a gun in the satchel on the chair. This was inconsistent with his contemporaneous notes, which make reference to the Applicant dropping his hands but make no mention of the satchel on the chair.
144In respect of the location of the chair, PC Romita testified that it was near the doorway to the bedroom. The Applicant testified that he did not recall the location of the chair but that it was usually located near the desk-type area where he had a computer, which was on the wall opposite to the bedroom. The entry photos show the chair in the middle of the living area of the Unit. While it is possible that the chair was moved when ETF cleared the Unit, PC Romita’s notes also stated that the chair was in the centre of the living room.
145According to the CEW Report, Mr. Bent was 2-3 metres from the officers when he was tasered. This was a short distance from the entry to the unit. Between the bedroom door, from which the Applicant emerged, and the front door of the Unit was an alcove and a closet. If the chair with the satchel was closer to the bedroom, as DC Romita testified, it would have obstructed the Applicant as he went between the bedroom and living area. Or, it would have been in the area between the door to the Unit and the bedroom wall, which means he would have been moving away from the chair as opposed to closer to it.
(a) The CEW Report
146On cross-examination, PC Romita was asked about the CEW Report that he was required to complete as a result of having deployed the taser. In the synopsis portion of the CEW Report, PC Romita stated:
While the target was being called out, he repeatedly dropped hands to [sic] his hands to his waist and failed to listen to command from officers. At one point the target turned to face officers and dropped his hands to his waist in a rapid fashion. At that point, fearing the male may have been reaching for a firearm, a CEW was deployed successfully locking the male up.
147On cross-examination, PC Romita admitted that the concern articulated in the CEW Report was that Mr. Bent was reaching for his waist and that there was no mention of him reaching for the satchel. He admitted that the key aspect that he testified to as triggering his decision to use force, his belief that Mr. Bent was going to arm himself by retrieving a gun from the satchel, was missing from both his written notes and the CEW report.
148In the CEW Report, PC Romita checked the box for “yes” under both “Subject Believed Armed” and “Subject Confirmed Armed.” Yet, the concern that PC Romita testified to at trial was that the Applicant was going to arm himself with the firearm from the satchel. On cross-examination, PC Romita testified that he checked “yes” for “Subject Confirmed Armed” because of the firearm thrown from the balcony and the satchel in proximity to the Applicant. PC Romita admitted, however, that the Applicant was not armed with either weapon and that “the gun was not in his hands.”
149In my view, the CEW Report includes both “Believed Armed” and “Confirmed Armed” because there is a distinction between the two. Police may believe that a subject was armed but later confirm that he was not. On the other hand, if the subject was both believed armed and confirmed armed, the level of risk would be higher and the use of a taser could potentially be more easily justified.
150In this case, checking “yes” for “Subject Confirmed Armed” was false and misleading. At no time was the Applicant confirmed armed. Based on PC Romita’s testimony at trial, checking “yes” for “Subject Believed Armed” was also incorrect. His testimony was that he believed Mr. Bent was going to arm himself with a gun from the satchel, not that he believed that he had a firearm on his person.
151The CEW Report is reviewed and signed by the supervisor, which in this case was Sgt McFarlane, the officer in charge, and the unit commander. The CEW Report was completed in a manner that would lead a reviewer to understand that the Applicant was in fact armed. The synopsis implies that PC Romita believed, at the time, that Mr. Bent was retrieving a firearm from his waist. In my view, PC Romita completed the CEW Report in a manner that would avoid questioning of his use of a taser in the circumstances where the Applicant was unarmed and known to be unarmed.
152However, the evidence on the application was that the Applicant was wearing shorts with a small rear pocket and no shirt. If he had a firearm on his person, it would have been visible. None of the officer who testified conducted a pat-down search of Mr. Bent, belying any belief that he was armed. Given those circumstances, PC Romita had to provide a different explanation for deploying the taser. The use of a taser on an unarmed man is more difficult to justify. If the reason for deploying the taser was because PC Romita believed that the Applicant was reaching for a firearm in the satchel, this would have been noted in his notes or the CEW Report. The fact that neither of those contemporaneous accounts make mention of a potential firearm “at hand” in the satchel makes it difficult to accept that explanation as credible. Accordingly, I reject PC Romita’s evidence that the Applicant was reaching for a firearm when the taser was deployed.
(b) Use of Force Report
153PC Romita was also cross-examined about the Use of Force Report that he completed after the arrest. Unlike the CEW Report, the Use of Force Report is a provincial form, required by regulation: Equipment and Use of Force Regulation, R.R.O. 1990, Reg. 926 (made under the Police Services Act, R.S.O. 1990, c. P.15), s. 14.5.10
154In the Use of Force Report, under “Weapons Carried by Subject(s)” PC Romita checked “Semi-automatic.” For the “Location of Subject’s Weapon (at time decision was made to use force)” the options provided are: “At hand”, “Concealed on person” and “In-hand”. PC Romita checked the box for “Concealed on person.”
155PC Romita admitted on cross-examination that it was a “mistake” to indicate that the weapon was “concealed on person” because Mr. Bent was unarmed. PC Romita denied that he intentionally checked “concealed” to justify his use of force. However, he admitted that if the Use of Force Report had indicated that the Applicant was unarmed, this would have raised questions about whether his use of force was appropriate.
156PC Romita admitted he would not be entitled to use force against a member of the public unless they were armed with an offensive weapon under the Use of Force policy. However, he attempted to justify his use of force on the basis that the Applicant’s behaviour was “assaultive.” While the Applicant was not following commands, nothing in the evidence would support that the Applicant’s conduct before being tasered was assaultive. To the contrary, DC Moorcroft testified on cross-examination that he did not view the Applicant’s behaviour as assaultive. I accept DC Moorcroft’s evidence on this point.
157Like the CEW Report, the Use of Force Report was drafted in a manner that would raise little question about the use of the taser on Mr. Bent. In my view, the checking of the box indicating that the weapon was “concealed on person” was not an innocent mistake because it is consistent with the false and misleading version of events put forward in the CEW Report. The Use of Force Report was therefore deliberately misleading.
158The Use of Force Report also contradicts PC Romita’s testimony at the hearing. PC Romita put forward one version of the incident in the CEW and Use of Force Reports, in which the Applicant had a concealed weapon and a different version, in which the Applicant was reaching for a firearm in the satchel, at the hearing. Based on this apparent willingness to advance a narrative that suits a specific purpose at a particular time, I find that PC Romita was not a credible witness and that he tailored his testimony to justify his use of the taser.
(c) Team Use of Force Report
159Sgt Macfarlane, as supervisor of team, reviewed the team use of force report (the “Team Report”), which was completed by PC Dorazio. One Team Report was prepared in relation to both Mr. Bent and Mr. Al-Ghanem.
160On the Team Report, under “Type of Force Used”, the following boxes are checked off and numbered indicating the sequence: (i) “Firearm – pointed at person,” (ii) “Other” with “CEW FD” typed in, (iii) “Empty Hand Techniques – Soft”, and (iv) “Empty Hand Techniques – Hard.”
161Sgt Macfarlane testified that “Empty Hand Techniques – Soft” referred to manipulating the subjects’ arms, grabbing to handcuff, and gaining control over them. Despite being responsible for reviewing the Team Report before it was submitted to his supervisor, Sgt Macfarlane could not say who used “Empty Hand Techniques – Hard” against either Mr. Al-Ghanem or Mr. Bent. He said that someone had to have struck one of them, but he could not say who or when. He had made no inquiries in this regard.
162On “Weapons Carried by Subject(s)” the Team Report indicated that each subject had a rifle and a semi-automatic weapon. Sgt Macfarlane testified that he did not know whether Mr. Al-Ghanem or Mr. Bent were carrying weapons because he did not search them before handing them over to the Guns and Gangs Unit. Sgt Macfarlane testified that he did not later inquire as to whether they in fact had weapons.
163On cross-examination, it was put to Sgt Macfarlane that the Team Report was inaccurate because neither individual “carried” a weapon, as indicated in the report. Sgt Macfarlane maintained that the Team Report was accurate because both Mr. Al-Ghanem and Mr. Bent had access to the rifle that was thrown off the balcony and the semi-automatic found inside the Unit. Sgt Macfarlane testified that whether a subject “carried” a weapon was based on the subjective belief of the officer at the time force was used and that it was not up to him to “disprove” them. Sgt Macfarlane admitted, however, that the risk level would be different between having access to a firearm and brandishing one.
164When it was put to Sgt Macfarlane on cross-examination that the responses on the Team Report would lead a supervisor reviewing the form to believe that each subject carried both a rifle and a semi-automatic, Sgt Macfarlane responded that that was the fault of the form.
165In this case, as completed, the Team Report implies that each subject “carried” both a semi-automatic and a rifle. For “Location of Subject’s Weapon (At time decision was made to use force)” the box for “At hand” is checked for both subjects. This suggests that, as Sgt Macfarlane testified, “carried” can include a weapon “at hand”. However, to the extent that the Team Report, as completed, also refers to the discarded rifle as being “at hand”, it is inaccurate. It goes without saying that the rifle on the eighth-floor balcony was inaccessible to either Mr. Bent or Mr. Al-Ghanem when force was used.
166In my view, Sgt Macfarlane’s evidence that the responses on the Team Report can be based entirely on the officer’s subjective perception at the time force was used cannot be the correct interpretation of that form. Sgt Macfarlane admitted that the Team Report is meant to inform superiors of the basis for a use of force by police. Sgt Macfarlane acknowledged that team use of force reports are taken very seriously and that they are used to ensure force is being used appropriately and for police accountability. While subjective perception of risk may be a factor, there must also be some indication as to the actual risk or the objective reasonableness of the perceived risk. Otherwise, it would be difficult for superiors to assess whether the use of force was based on reasonable grounds and whether the degree of force used was proportionate.
167The Team Report was misleading to the extent that it implied that each subject “carried” two weapons or that they each had two weapons at hand. At no time after ETF breached the door was the discarded rifle “at hand” for either Mr. Al-Ghanem or Mr. Bent. Moreover, because the Crown did not call PC Dorazio as a witness, it is not possible to know what weapons he believed were “at hand”. Given that DC Moorcroft testified that the Applicant was putting his hand in his pocket and PC Romita testified that he believed that the Applicant was reaching for a firearm in the satchel, it is not possible to infer what firearms PC Dorazio was referring to in the Team Report.
168I would further observe that the Team Report undermines the Use of Force Report completed by PC Romita, in that it states only that the weapons were “at hand” and does not state that they were “in-hand” or “concealed on the person.”
169The inconsistencies between the CEW Report, the Use of Force Report, the Team Report, and the evidence given at trial lead to a lack of coherent or reasonable explanation as to the basis for the use of force against the Applicant.
Summary of Factual Findings
170Based on the foregoing analysis of the evidence, I make the following factual findings:
As the door to the Unit was being breached, Mr. Bent came out of the bedroom to see what was going on. Mr. Al-Ghanem was on the sofa in the living area.
Mr. Bent returned to the bedroom to dispose of the guitar case containing a rifle, which he did shortly after 7:18. At that time the door was breached, and Officers Moorcroft and Romita observed him going into the bedroom.
Mr. Bent remained in the bedroom while PC Dorazio gave commands to Mr. Al-Ghanem. An officer gave commands to Mr. Bent to come out of the bedroom. At some point while Mr. Al-Ghanem was walking toward the officers, Mr. Bent came out of the bedroom and went into the living area of the Unit. Mr. Bent did not go back and forth to the bedroom multiple times.
PC Dorazio was directing Mr. Al-Ghanem and DC Moorcroft was directing Mr. Bent. At one point, PC Romita also directed Mr. Bent to stop moving. All of the ETF officers at the door had weapons drawn. At various points, the Applicant was directed to get down on the ground and to walk backward toward the officers. He did not immediately follow the officer’s commands.
Mr. Al-Ghanem was eventually removed from the threshold area with a struggle, with Sgt Macfarlane and Officer Farrell taking him to the ground and handcuffing him. Mr. Al-Ghanem was dragged from the threshold and handed over to Guns and Gangs officers in the hallway.
The chair with the satchel was in the living area of the Unit. It was not near the bedroom door. As Mr. Bent walked toward the officers, the chair was behind him and he was moving away from it, rather than closer to it. The satchel was not within his reach.
Mr. Bent was wearing swimming-type shorts and no shirt. It was, therefore, clear to the officers that there was no weapon at his waist.
Mr. Bent walked toward the officers with his hands up. He was not reaching for a weapon in his pocket, because he did not have one on his person. However, he was not walking backward as directed and failed to keep his hands up.
PC Romita tasered the Applicant when he was 2-3 metres from the officers. The taser probes hit his abdomen and collarbone area. The Applicant fell to the ground on his front, a short distance from the threshold with his head toward the door and feet toward the Unit.
Sgt Macfarlane and Officer Farrell dragged the Applicant from the threshold into the hallway by his hair and arm. They handcuffed him with force, as described by Sgt Macfarlane. The Applicant was handed over to DC Xiouris in the hallway. He was not dragged down the hallway to the stairwell.
None of the officers who testified conducted a pat-down search of the Applicant, which shows that no one believed he had a weapon on him.
171I do not accept Mr. Bent’s evidence that an ETF officer told him, “I should have fucking killed you” because his testimony in this regard was vague and lacked specifics. He could not describe the officer who said this to him and none of the officers recalled hearing this statement.
172Based on my findings above, I find that in his testimony at the hearing, PC Romita intentionally exaggerated the risk that Mr. Bent posed, a risk that differed materially from the risk that he had described in the CEW and Use of Force Reports. Both versions of the incident cannot be true. The discrepancy between PC Romita’s testimony and the reports that he authored lead to the inescapable conclusion that he tailored his testimony to justify his use of force because the evidence would show that the Applicant was unarmed.
Conclusions on the Use of Force
173As noted above, once the Applicant proves that force was used, the burden falls to the Crown to demonstrate that the use of force was not excessive.
174In respect of the use of a taser, in Walcott, at para. 25, Brown J. (as he then was) observed that taser use has been held to be excessive in some cases even where a subject had refused to comply with directions or commands by police officers. Brown J. found that by using the taser in a manner that failed to comply with the TPS Taser Policy, the officers used unnecessary force.
175On the subjective-objective test identified above, given the multiple inconsistencies and my rejection of PC Romita’s explanation for deploying the taser on Mr. Bent, I am not convinced that he had a subjective belief that it was necessary in the circumstances to deploy the taser.
176Even if PC Romita subjectively believed that it was necessary to use force, his subjective belief was not objectively reasonable. The circumstances may have been somewhat chaotic, with Mr. Al-Ghanem resisting at the threshold and Mr. Bent going to and emerging from the bedroom. However, the Applicant did not have a weapon on his person and, in the circumstances, could not have been reaching for one. There is no suggestion that at that time, the Applicant was belligerent, hostile, or defiant. There is no evidence that the Applicant said anything at all, let alone anything that could lead the officers to believe that he would resist arrest. As noted earlier in these reasons, DC Moorcroft did not see the Applicant as assaultive.
177The Applicant is approximately 5 feet 11 inches and weighs 160 pounds. He was barely dressed and unarmed facing a team of 4-5 ETF officers at the door with weapons trained on him. He was clearly outnumbered. As the Applicant testified, he “was not trying to die” running around the Unit and trying to find a gun, while multiple weapons were pointed at him. Although the police had information that he had a firearm and were there to execute a search warrant for firearms, the Applicant had no criminal record and was not known to be violent. There is no coherent explanation for the necessity of deploying the taser in the circumstances where the Applicant was moving toward the door of the Unit, as directed, although not in the manner he was told. In my view, PC Romita deployed the taser on Mr. Bent, not because of a perceived risk to officer safety, but because Mr. Bent was not complying with the ETF officers’ commands.
178After the taser was deployed, the Applicant was then dragged by his arm and hair across the threshold. Although Sgt Macfarlane did not recall the Applicant being pulled by his hair, he admitted that the Applicant was pulled through the doorway and that they struggled with him to put the handcuffs on. I find that he was in fact pulled by the hair, as visible from the injury to his scalp. While it was necessary for officer safety to remove the Applicant from the entrance to the Unit, in case there was anyone else in the Unit, it was not necessary to pull him by the hair, which could be foreseen to cause injury to him. Moreover, having just been tasered, it is understandable that the Applicant was unable to immediately follow officer commands to crawl out of the Unit. In my view, given the Applicant’s clothing, it was clear at that stage that he was unarmed and the officers exaggerated the potential risk that he posed after he had been tasered to justify their use of force.
179The injury to Mr. Bent’s scalp, as well as to his arm, from being dragged is corroborated by the photographs. There were also marks on his face. While they were not permanent injuries, they were more than superficial. I find it surprising that the ETF officers at the door did not notice either occupant being dragged out by Sgt Macfarlane and Officer Farrell. While DC Moorcroft and PC Romita testified that their attention was on the Unit, the struggle occurred in their immediate vicinity. Their lack of recollection about the struggle raises questions about the degree to which they were forthright in their testimony.
180The Crown submits that the Applicant’s injuries were not serious because he did not request medical assistance, either while he was waiting with DC Xiouris or when he was being booked at the station. The Crown relies on the booking video as evidence that the Applicant was fine. The Crown further notes that the Applicant has not made any complaint against the police for the use of force.
181I accept the Applicant’s evidence that he did not request medical assistance because he had just been arrested and was at the mercy of the officers. I further accept that he was in a state of shock after having been tasered and because he had never been arrested before. Mr. Bent was eventually cleared by the paramedics who removed the taser probes, almost one hour after he was tasered. I draw no adverse inference from the fact that the Applicant has not made a complaint against the TPS to date.
182The use of a taser against an arrestee is a significant use of force from which serious harm can result. While I recognize that police must often act quickly in difficult and exigent circumstances, in the circumstances of this case, the use of the taser against the Applicant, who was unarmed and not behaving in a hostile or belligerent manner, was not necessary or proportionate. As a result, I find that the Crown has failed to demonstrate that the use of force was reasonable, proportionate and necessary. I, therefore, find the police violated Mr. Bent’s rights under s. 7 of the Charter by using excessive force during his arrest.
Were the Applicant’s Rights under Section 10(b) Breached?
183The Applicant submits that after he was informed of his rights to counsel but before he had an opportunity to speak to counsel, DC Xiouris asked him where the keys to the Rolls Royce were located. The Applicant testified that when he did not respond, DC Xiouris threatened to break the windows of the vehicle to conduct the search. The Applicant then told him that the keys were in the top drawer in the kitchen.
184The Crown denies that DC Xiouris made any threat to damage the Rolls Royce if the Applicant did not advise him of the location of the keys. The Crown submits that there was no urgency in searching the vehicle and the police would have located the keys without the need to elicit a statement from the Applicant in breach of his rights. The Crown takes the position that not only did the TPS officers not breach the Applicant’s right to counsel, they took all reasonable steps to ensure that he could speak to counsel as soon as practicable in the circumstances, both at the Unit and after he was taken to the station.
The Applicable Principles
185Section 10(b) of the Charter guarantees that any person arrested or detained has the right to retain and instruct counsel without delay and to be informed of that right. In R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 25, Doherty J.A. stated:
Section 10(b) obliges the police to advise a detained person of the right to speak with counsel without delay and, if the detained person exercises that right, the police must immediately provide the detainee with a reasonable opportunity to speak with counsel.
186The purpose of the s. 10(b) right is to “allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights…”: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 21. In Taylor, the Supreme Court of Canada stated that the right is meant “to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.”
187Where an accused person requests to speak to counsel, the arresting officer is “under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity”: Taylor, at para. 24. This includes providing access to a telephone: Taylor, at para. 28. The burden is on the Crown to show that a given delay was reasonable in the circumstances: Taylor, at para. 24.
188Courts have recognized that in specific circumstances, some delay is justifiable to ensure officer safety, public safety, the preservation of evidence, and the safety of others by securing the scene of an arrest or search: Rover, at para. 26. Such concerns must be case-specific as opposed to general: Rover, at para. 27. Even if such circumstances exist, the police must take reasonable steps to minimize the delay in granting access to counsel: Rover, at para. 27.
189In addition, once a detainee has invoked the right to counsel, police must refrain from questioning the detainee “until such time as the implementational component of the right to counsel has been accommodated”: R. v. Keshavarz, 2022 ONCA 312, 507 C.R.R. (2d) 222, at para. 75. This is also known as the duty to hold-off.
190In this case, the issue is whether the Applicant’s right to counsel was breached because the police failed to hold off in questioning him until the right to counsel had been facilitated.
Application to the Facts
191The Applicant testified that after he was dragged from the Unit to a stairwell, the plain clothes officer in the stairwell, who was DC Xiouris, told him and Mr. Al-Ghanem that they were being charged for the gun that had been thrown off the balcony and that they could call a lawyer. Mr. Bent testified that he told DC Xiouris that he wanted to call his sister to get a hold of a lawyer for him. He testified that he was still in shock at the time. DC Xiouris advised him that the call would have to take place later.
192The Applicant testified that it was at that point that DC Xiouris asked “is there anything else you want to tell me?” but he did not answer. Mr. Bent testified that DC Xiouris then told him he had a warrant for the Rolls Royce and asked him “where’s the Royce keys?” The Applicant testified that when he did not respond, DC Xiouris said he would “just break every window on that thing,” referring to the car. The Applicant testified that he did not want the windows to be broken because he had not fully paid for the vehicle, so he told the officer that the keys were in the top drawer in the kitchen.
193DC Xiouris testified that he advised both Mr. Bent and Mr. Al-Ghanem of their rights to counsel at approximately 7:25 a.m., shortly after they were brought to the stairwell. He testified that they both stated that they understood. While the Applicant said that he wanted to speak with counsel, Mr. Al-Ghanem initially declined.
194DC Xiouris went into the Unit after it was cleared by the ETF. He looked over the balcony to see if he could see the discarded items and then stood by at the front door. DC Xiouris testified that he then went back to the stairwell to show and explain the search warrants for the Unit and vehicles to the Applicant. In chief, DC Xiouris testified that it was then that the Applicant volunteered the location of the Rolls Royce keys.
195DC Xiouris’ notes reflected that at 7:37 a.m., he went into the Unit and took entry photos, which were completed at 7:39 a.m. He testified that he had noticed the keys to the Ford vehicle on the coffee table while taking photos. At 7:40 a.m., DC Xiouris took a photo of the Rolls Royce keys in the top right kitchen drawer. Within a couple of minutes, he handed the keys for both vehicles to DC Daniels, whose team was standing by to search the vehicles.
196At 7:51 a.m., Mr. Al-Ghanem was put into the bathroom of the Unit to speak to duty counsel. DC Xiouris testified that he was waiting for paramedics to attend and remove the taser probes from the Applicant before he could speak to duty counsel. The evidence was that paramedics had to be called because the ETF officers had left without removing the taser probes.
197The evidence is that paramedics attended at 8:20 a.m. and removed the taser probes from the Applicant. At 8:37 a.m., DC Xiouris brought the Applicant to the bathroom of the Unit to speak with duty counsel. The call to duty counsel was made at 8:41 a.m. and lasted 10 minutes. The Applicant testified that when he was put in the bathroom of the Unit, he called his sister and that she contacted a lawyer for him. However, it is clear from the evidence that the Applicant in fact spoke to duty counsel, who DC Xiouris had called for him.
198In my view, it is unlikely that the events transpired as DC Xiouris described them for a number of reasons. According to DC Xiouris’ testimony, he was in the stairwell with Mr. Bent and Mr. Al-Ghanem from 7:21 to 7:25 a.m. but did not show or explain the search warrants to them at that time. It was only after the Unit had been cleared and after he had taken an initial look around the Unit that he went back to the stairwell to show and explain the search warrants. If DC Xiouris was going to explain the search warrants, he could have done so while waiting in the stairwell for ETF to clear the Unit. In fact, before entering the Unit would have been a more logical time for him to explain the search warrants to them.
199Moreover, DC Xiouris’ testimony about showing the search warrants to the Applicant was equivocal. He did not recall whether he held them up, whether he allowed the Applicant to read them, or whether he simply explained them without showing them to the Applicant. While he testified that it is his practice to show the search warrants, he did not mention this practice during his testimony at preliminary inquiry. When asked why he did not previously testify to this practice, he responded that it was because he was not asked. Moreover, there is nothing in his notes to support that he showed copies of the search warrants or explained them to the Applicant.
200In addition, DC Xiouris’ testimony about the circumstances that led the Applicant to volunteer the location of the keys was inconsistent. In chief, DC Xiouris testified that the Applicant told him the location of the Rolls Royce keys after he showed him and explained the search warrants. However, on cross-examination, DC Xiouris testified that the Applicant volunteered the location of the keys, unprompted, after he had told DC Harris, who was also in the stairwell, that he was going to start the search. DC Xiouris testified that he only remembered this detail on cross-examination. His notes contain no mention about how the information about the keys came up, whether it followed his explanation of the search warrants or whether it was following his discussion with DC Harris about starting the search.
201DC Lecki, who was the central notetaker that day, testified that when he was in the stairwell, he heard DC Xiouris explain the search warrants to the Applicant. However, he did not hear the discussion about the Rolls Royce keys. He testified that DC Xiouris later relayed to him that the Applicant told him where the keys were. However, if the Applicant had volunteered the location of the keys when DC Xiouris explained the search warrants to him, one would expect that DC Lecki would have heard that comment as well.
202In my view, it is highly unlikely that the Applicant would volunteer the location of the Rolls Royce keys without some inquiry on the part of DC Xiouris. Moreover, it is unlikely that the Applicant would volunteer the information without at least an implicit threat that the vehicle would be broken into. The information had the potential to incriminate Mr. Bent because it would connect him with the vehicle to be searched. When asked on cross-examination about whether he was aware that asking about the keys could incriminate the Applicant, DC Xiouris testified that the thought had not crossed his mind. In my view, this is unlikely, given that DC Xiouris had been in the Guns and Gangs Unit of the TPS for three years and a police officer for 12 years before that.
203Had DC Xiouris not inquired about the Rolls Royce keys, it would also have been unusual for Mr. Bent to volunteer only the location of those keys and not the location of the keys to the Ford as well. In my view, DC Xiouris did not ask about the location of the Ford keys because they were readily visible on the coffee table in the Unit, and he had an opportunity to see them when he entered the Unit shortly after it was cleared.
204The Crown submits that there was no urgency to locating the Rolls Royce keys because the Unit had been cleared and the occupants were dealt with. Given the small size of the Unit, the location of the keys, and the distinctive Rolls Royce key chain, the officers would have readily located the keys without having to ask the Applicant in breach of his right to counsel. In chief, DC Xiouris testified that if they could not locate the keys, the vehicles would be towed to the auto squad to be accessed. On cross-examination, however, DC Xiouris admitted that it would be preferable if they could locate the keys to the vehicles because the auto squad has only one or two officers, and it would not be ideal to inundate them with vehicles. He further admitted that he was looking for the keys to make it easier for DC Daniels’ team to conduct the search, which was the original plan.
205It is noteworthy that in response to a question in chief about where the Applicant was being detained, DC Xiouris provided a lengthy explanation about how it was taking longer than usual for the tactical paramedics from the ETF to attend to Mr. Bent. DC Xiouris testified: “Shortly after standing by the front door, I needed to get the search started.” He explained that he wanted to locate the keys for the vehicles so he could turn them over to DC Daniels, whose team was tasked with searching the vehicles, because he knew he “would be up fairly shortly after execution.” This testimony belies the Crown’s submission that there was no urgency in finding the keys.
206In my view, DC Xiouris was anxious to commence the search because he knew that DC Daniels’ team was standing by to search the vehicles. At the same time, there were a number of other moving pieces, including the need to facilitate rights to counsel for both Mr. Al-Ghanem and the Applicant. The Applicant’s right to counsel could not be implemented because tactical paramedics with the ETF had left without removing the taser probes from Mr. Bent. Paramedics were called for the Applicant at approximately 7:45 a.m. The search of the Unit did not commence until 8:15 a.m., approximately 50 minutes after it was turned over by the ETF. This gives credence to the defence’s position that the urgency was about finding the keys to the vehicles and less about searching the Unit itself.
207In the end, the search of the vehicles did not yield any further evidence. At 9:02 a.m., DC Daniels returned the vehicle keys to DC Xiouris.
208At 8:58, the Applicant was transported to 11 Division. While the Crown adduced evidence about the steps taken by police to facilitate the Applicant’s right to counsel at the station, the Applicant does not allege a breach of his s. 10(b) rights beyond the eliciting of the location of the Rolls Royce keys. Moreover, the subsequent steps taken by police to facilitate rights to counsel do not mitigate the earlier breach of the duty to hold off.
209The Crown concedes that if the court finds that DC Xiouris elicited a statement from the Applicant regarding the location of the Rolls Royce keys, this would be in breach of the duty to hold off on questioning until the right to counsel has been facilitated. As a result, in my view, the Applicant’s s. 10(b) right to counsel was breached by the officer’s failure to refrain from asking questions before the Applicant had an opportunity to speak to counsel.
210The Crown further submits that any breach of s. 10(b) is addressed by its concession that it would not seek to admit the Applicant’s statement about the location of the Rolls Royce keys. That submission is addressed in the section addressing s. 24(2) of the Charter.
Should the Evidence be Excluded?
211In summary, I have found that the Applicant’s rights under ss. 7 and 10(b) of the Charter have been breached. Pursuant to s. 24(2) of the Charter, he seeks to have the firearms and ammunition excluded as evidence obtained in a manner that infringed his rights.
The Applicable Legal Principles
212Section 24(2) of the Charter allows the court to exclude evidence obtained in a manner that violated an individual’s Charter rights, where admitting the evidence would bring the administration of justice into disrepute.
213There are few reported cases where exclusion of evidence is considered for a breach of section 7 because of an excessive use of force. However, there is “no reason in principle… why exclusion of evidence cannot be a remedy to be considered, provided the necessary connection to the obtaining of the evidence exists”: R. v. Thomas, 2023 ONCJ 531, at para. 74. See also: R. v. Dubé, 2024 ONCJ 105,94 C.R. (7th) 411, at paras. 117-118.
214The first issue to address under s. 24(2) is whether the evidence sought to be excluded was “obtained in a manner” that infringed on a right guaranteed by the Charter. In determining whether evidence was obtained in a manner that infringed on a Charter right, the connection between the evidence and infringement need not be causal in nature. The connection may be temporal, contextual or causal, or a combination of the three. Evidence may be tainted by the infringement if it is part of the same transaction or course of conduct: R. v. Mack, [2014] 3 S.C.R. 3, 2014 SCC 58, at para. 38. The “obtained in a manner” requirement is “just the gateway to the focus of s. 24(2) – whether the admission of the evidence would bring the administration of justice into disrepute” and should be approached generously: R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 56.
215The second issue is whether the admission of the evidence would bring the administration of justice into disrepute. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, the Supreme Court of Canada held that in determining whether the admission of evidence would bring the administration of justice into disrepute, the court must balance the following three factors:
(i) the seriousness of the Charter-infringing state conduct;
(ii) the impact of the breach on the Charter-protected interests of the accused; and
(iii) society’s interest in the adjudication of the case on its merits.
216In assessing the seriousness of the breach, the court is required to evaluate whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct: Grant, at para. 72. The overarching concern is to maintain public confidence in the rule of law and its processes.
Application to the Facts
Obtained in a manner
(a) Evidence seized from the Unit
217In this case, the breaches of ss. 7 and 10(b) of the Charter occurred during the execution of search warrants on the Applicant’s residence and vehicles. The Crown does not dispute that there is both a temporal and contextual connection between the breaches and the evidence obtained from the Unit, namely, the handgun, ammunition, magazine and currency. The breaches and the seizure of evidence was part of the same transaction. The evidence seized from the Unit thus meets the “obtained in a manner” requirement.
(b) The discarded property
218In this case, an additional question arises as to whether the discarded property meets the “obtained in a manner” requirement because the Applicant threw it from the balcony. Police outside the building observed the discarded property falling and located it on the eighth floor common area.
219The Court of Appeal’s decision in R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, is relevant to this analysis. In that case, the appellant was observed entering a vehicle with two “weighted” bags, and then exiting the vehicle with nothing in his hands. He and the driver of the other vehicle were subsequently arrested, and the two bags were found to contain two Glocks. Because they were detained for hours without access to counsel, their s. 10(b) rights to counsel were found to have been breached. However, the trial judge found that the appellant had abandoned the Glocks and declined to conduct a s. 24(2) analysis on the basis that his Charter rights were not engaged.11
220On appeal, the Court of Appeal found that the trial judge erred in failing to conduct the s. 24(2) analysis on the basis that the appellant had abandoned the Glocks. A lack of standing in relation to evidence targeted for exclusion, while relevant for the purposes of a s. 8 claim, does not bar access to s. 24(2) relief in the wake of a different Charter breach: Keshavarz, at para. 49. Abandonment was, however, relevant to the question of whether the Glocks were sufficiently connected to the s. 10(b) breach to meet the “obtained in a manner” requirement because it could dilute the strength of a contextual connection between the Charter breach and the evidence targeted for exclusion: Keshavarz, at para. 54.
221Unlike Keshavarz, in this case, there is a close temporal connection between the breaches of ss. 7 and 10(b) and the seizure of the discarded property. As described above, the door was breached, the discarded property was thrown from the balcony, the items were retrieved by DC Frendo-Jones and the Applicant was tasered in breach of his s. 7 rights. All of the events took place within a three-to-five-minute time period. The s. 10(b) breach took place within 15-20 minutes of those events.
222Moreover, the abandonment of the discarded property took place as a result of the execution of the search warrant which, while lawful, involved the deployment of the taser on the Applicant. Although the Applicant threw the discarded property before he was tasered, there is also a close contextual connection in that it was the execution of the search warrant that caused the Applicant to discard the guitar case.
223The Crown submits that there is no causal connection between the Charter breaches found in this case and the seizure of the discarded property. The Crown takes the position that DC Frendo-Jones, who located the discarded property, had nothing to do with the conduct of the ETF officers who used excessive force on the Applicant.
224I agree that there was no causal connection. However, the existence of a causal connection is not required and placing undue emphasis on the absence of a causal connection in the context of a s. 24(2) has been found to be an error: R. v. Whitaker, 2024 ONCA 182, 435 C.C.C. (3d) 221, at para. 52; R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, at para. 55.
225In my view, while there is no causal connection between the ss. 7 and 10(b) breaches to the seizure of the discarded property, there is both a temporal and contextual connection. Despite the Applicant’s abandonment of the discarded property, in my view, the connection is not too tenuous or remote to satisfy the “obtained in a manner” requirement.
Seriousness of the Charter-infringing state conduct
226The first Grant factor involves an examination of the conduct of the police. The more severe or deliberate the state or police conduct leading to the Charter violation, the greater the need for the courts to disassociate themselves from the conduct so as to preserve public confidence in the rule of law: Dubé, at para. 119.
227I have found that the police used excessive force in arresting the Applicant, in violation of his right to security of the person under s. 7 of the Charter. The Applicant was tasered and dragged out of the Unit by his wrist and hair, causing injury to his face, arms and scalp. The s. 7 breach was serious. While the Applicant may not have been in perfect compliance with the officers’ commands, he was not hostile, threatening, assaultive, or even uncooperative. It was not appropriate for police to deploying a taser, which is an intermediate level of force, to secure the Applicant’s compliance.
228In my view, the officers’ subsequent attempt to justify the use of force by different after-the-fact explanations belies any good faith belief in the necessity of using force at the time. The CEW Report and Use of Force Report reported the circumstances giving rise to the use of force in a misleading manner because they stated that the Applicant was armed. The justification for the use of force given by PC Romita then was that the Applicant had a firearm concealed on his person. The explanation PC Romita gave at trial was that the Applicant was reaching for the firearm in the satchel. While somewhat less misleading because it described the firearms as “at hand”, the Team Report was similarly inaccurate in that it stated that each subject had access to two firearms. Despite being responsible for reviewing the Team Report, at no time did Sgt Macfarlane verify the existence of the firearms and whether they were at hand.
229The inaccurate and misleading manner in which the reports were completed is a serious matter because it undermines the very accountability and oversight that they were implemented to foster. I find the misleading reporting of the incident exacerbates the seriousness of the state conduct at issue. Moreover, the misleading testimony given before this court further aggravated the seriousness of the police disregard of the Applicant’s Charter rights: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 27.
230Similarly, I find that the s. 10(b) breach is serious. The duty to hold off questioning is a basic obligation that has been well-settled in the case law. In violation of the duty to hold off, the Applicant was asked for the location of the keys to the Rolls Royce. The question elicited incriminating evidence. Moreover, the information was obtained through a threat to break the windows of the vehicle while the Applicant was in a vulnerable position – he had taser probes in him and was reliant on the police for medical assistance. That medical assistance was delayed because the tactical paramedics inexplicably left before removing the taser probes from the Applicant. The evidence is that the taser probes were removed approximately one hour later and the Applicant’s right to counsel was facilitated at that time. At subsequent stages, the Applicant was provided his right to counsel. This does not, however, alleviate the earlier breach.
231When assessing the seriousness of the state conduct under s. 24(2), I must also take into account the cumulative effect of the breaches: R. v. Poirier, 2016 ONCA 582, 131 O.R. (3d) 433, at para. 91. While I have found no breach of s. 8 of the Charter, the ss. 7 and 10(b) breaches are serious in nature and go to the root of the protections that those rights are intended to provide to individuals interacting with police. As a result, I find that the first factor weighs heavily toward the exclusion of the evidence.
The impact of the breach on the Charter-protected interests of the accused
232In respect of the second Grant factor, the impact of the s. 7 breach on Mr. Bent’s Charter-protected rights is significant. A taser was deployed on him, resulting in the probes hooking into his skin, and an electrical pulse causing incapacitation resulting in his falling to the floor. The Applicant testified to being in severe pain, like something “ripping through” his chest. After that, he was dragged by his hair and arm in a manner that caused him to feel dehumanized and at the mercy of police. The Applicant testified that he was terrified and in a state of shock. I find that the impact of the excessive use of force on the Applicant’s security of the person was substantial.
233In respect of the s. 10(b) breach, the Crown submits that the impact is mitigated by the Crown’s concession that, in the event that a s. 10(b) breach was found to have occurred, it would not seek admission of the statement that was elicited in response to the question posed by DC Xiouris.
234It is open to application judges to take into consideration the exclusion of evidence arising from Charter breaches when determining whether other evidence should also be excluded pursuant to s. 24(2). The Crown’s concession not to seek admission of a statement obtained in breach of s. 10(b) can thus lessen the negative impact of the breach. The concession also permits the court to distance itself from the breach, which is relevant to the analysis of the third Grant factor. R. v. Hamouth, 2023 ONCA 518, 167 O.R. (3d) 682, at paras. 42-46.
235In the same vein, the absence of a causal connection between the violation and the evidence sought to be excluded is a factor to consider at the second stage. However, undue emphasis should not be placed on the absence of a causal connection: Whittaker, at paras. 50, 52.
236While the Crown’s concession goes some way to lessening the negative impact of the s. 10(b) breach on the Applicant, it does not address other interests that s. 10(b) is intended to protect. As the Court of Appeal noted in Jarrett, at para. 52, s. 10(b) protects interests beyond the principle against self-incrimination, including the ability to obtain advice about how long the detention may last and how liberty may be regained. The Applicant responded to the question without the benefit of the “lifeline” of communicating with counsel in a moment of extreme vulnerability. The loss of that lifeline is not entirely remedied by a later concession that the statement will not be relied upon as evidence. Moreover, s. 24(2) should not be interpreted in a way that could create perverse incentives for the police to breach someone’s rights if it advances their investigative objectives with the knowledge that the Crown could later make a concession if necessary.
237In assessing the impact of the breaches on the Applicant’s Charter-protected interests, the abandonment of the discarded property is again a relevant consideration. In Keshavarz, the Court of Appeal held, based on the trial judge’s finding that the appellant had abandoned any expectation of privacy in the Glocks, that he had “no remaining constitutional relationship with the Glocks at the point that they were lawfully seized”: Keshavarz, at para. 116. Consequently, although his s. 10(b) rights were found to have been subsequently breached, his privacy rights were not impacted by the s. 10(b) breach or otherwise, and the evidence was not excluded under s. 24(2): ibid. In other words, the fact that the appellant had abandoned the Glocks meant that there was no additional impact on a privacy right or interest in the seized item thereby compounding the breach.
238In this case, I find that the cumulative impact of the ss. 7 and 10(b) breaches on the Charter-protected interests of the Applicant is significant. Had I found a breach of s. 8, the impact of the breaches would have been compounded by the additional incursion on the Applicant’s privacy rights. In my view, given the significant impact of the s. 7 breach in particular, the impact on the Applicant is not alleviated by the fact that, in relation to the discarded property, there was no additional breach of a privacy right. Moreover, the impact of the seizure of the firearm and ammunition from the Unit on the Applicant’s privacy rights was similarly minimal, given that it would have been discovered pursuant to the execution of a lawful search warrant. As a result, the abandonment of the discarded property does not impact the analysis of the second Grant factor in a material way.
239In my view, the significant impact of the ss. 7 and 10(b) breaches on the Applicant’s Charter-protected interests weighs in favour of exclusion of the firearms and ammunition.
Society’s interest in an adjudication on the merits
240Society’s interest in an adjudication on the merits almost always favours admission of the evidence: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 62-63.
241The admission of evidence obtained in violation of a Charter right cannot be supported solely on the ground that the offence is serious and that the evidence reliable and central to the Crown's case: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494. The negative effects of the loss of reliable, important evidence must be considered, but cannot be allowed to overwhelm the other considerations: R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1, at para. 53, rev’d 2019 SCC 32, [2019] 2 S.C.R. 576. The third Grant inquiry is concerned with the long-term reputation of the administration of justice, which is jeopardized by judicial indifference to unacceptable police conduct: Morelli, at para. 102.
242In this case, there is a strong public interest in having the charges for possession of prohibited firearms and ammunition, which pose a serious danger to the public, adjudicated on their merits. The seized evidence is reliable. It is also crucial to the Crown’s case. It is highly likely that the prosecution cannot proceed if the evidence is excluded.
243Given the importance of the evidence to the Crown’s case and its reliability, this factor strongly favours the admission of the evidence.
Balancing
244In McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63, Doherty J.A. held that “if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence.” (Internal citations omitted.) See also Whitaker, at para. 59.
245In R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1, at para. 135, Brown J.A. (dissenting) found that the inherent dangerousness of illegal firearms and society’s “desire to live free from the lethal threat” posed by them should inform whether the exclusion of a firearm obtained in violation of the Charter will undermine public confidence in the administration of justice. The Supreme Court of Canada, without further comment, agreed substantially with Brown J.A.’s reasons: R. v. Omar, 2019 SCC 32, [2019] 2 S.C.R. 576. However, in R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 142, a majority of the Court reiterated the principle stated in McGuffie. The Court further found that public confidence in the administration of justice is better served by requiring police compliance with the Charter: at para. 165.
246The overriding consideration in any s. 24(2) analysis is whether admitting the evidence would bring the administration of justice into disrepute: Whitaker, at para. 60.
247In this case, the excessive use of force by police and the breach of s. 10(b) constitute misconduct by police resulting in a significant intrusion on the Applicant’s Charter-protected rights. Based on my balancing of the Grant factors, my view is that the court should dissociate itself from evidence obtained in this manner. The evidence should be excluded.
248In the circumstances of this case, a reasonable person informed of the relevant circumstances and familiar with Charter values would conclude that the admission of the seized evidence would bring the long-term reputation of the administration of justice into disrepute. As the majority of the Supreme Court stated in Le, at para. 164, this “unpalatable result is the direct product of the manner in which the police chose to conduct themselves – and not of an indifference on the part of this Court towards violence, drugs, or community safety.” [Internal citations omitted.]
Did the Loss of Certain Documents by the Police Result in a Breach of the Applicant’s Section 7 Rights?
249During the course of the pre-trial motions, the Applicant brought applications for further disclosure from the Crown. It became apparent that the investigative file of the ITO affiant, DC Frendo-Jones, was incomplete. In submissions on the Charter application, the defence argued that the loss of certain evidence constitutes a further Charter breach, warranting a stay of the proceeding.
250The following constitutes the “lost evidence”:
DC Frendo-Jones’ investigative file, which he testified was over-written or corrupted; and
the notes of Officer Farrell, who had participated in removing the Applicant from the Unit.
251The defence further submits that DC Frendo-Jones’ practice of not keeping contemporaneous notes or an index of documents or records that he reviewed in the preparation of an ITO means that it is impossible to know the totality of the documents and records he reviewed.
252The Crown disputes that any evidence from DC Frendo-Jones’ investigative file was lost. The Crown admits that Officer Farrell’s notes have been lost but that the information in the central notes would include information that came from him. As a result, the Crown submits that the Applicant’s ability to make full answer and defence on the Charter application is not adversely affected.
The Applicable Principles
253A defendant’s right to disclosure of relevant information in the possession of the Crown is a component of the right to make full answer and defence. As a result, the failure to preserve information which would be disclosable to the defence will constitute a breach of an accused’s constitutional right to disclosure, as protected by s. 7 of the Charter: R. v. Bero (2000), 2000 CanLII 16956 (ON CA), 151 C.C.C. (3d) 545 (Ont. C.A.), at para. 32. In R. v. Bero, the Court of Appeal summarized the principles applicable to a claim by a defendant of a Charter breach based on the Crown’s failure to preserve material in its possession as follows:
The Crown has an obligation to disclose all relevant information in its possession.
The Crown’s duty to disclose gives rise to a duty to preserve relevant evidence.
There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence.
If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.
In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it.
If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused’s s. 7 Charter rights.
In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if for example, the conduct leading to the destruction of the evidence was deliberately for the purpose of defeating the disclosure obligation.
In either case, a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy, only if it is one of those rare cases that meets the criteria set out in O’Connor.
Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary case, there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairs the right to a fair trial. In this case, a stay may be an appropriate remedy.
In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application after hearing all of the evidence.
Application to the Facts
254In the case of DC Frendo-Jones’ investigative file, the evidence is that two documents that DC Frendo-Jones referred to in drafting the ITO were not maintained in his digital file: (i) a screenshot of a Versadex check; and (ii) a Highway Traffic Act speeding ticket. DC Frendo-Jones explained that when he went to provide disclosure to the case manager, he could not locate those documents in his digital file. His explanation was that the documents were either accidentally deleted or overwritten. As a result, he provided the documents, but they bore the date of disclosure (April 2022), as opposed to the date when the checks were first run (July 26, 2021). The TPS did not advise the Crown that the original documents could not be located but simply provided the versions that were subsequently retrieved in April 2022.
255In respect of the screenshot of the Versadex check and the speeding ticket, those documents were disclosed to the defence. To that extent, the evidence has not been lost.
256In cross-examination, DC Frendo-Jones admitted that he does not keep a list of records that he reviewed in the preparation of an ITO. He maintains a digital file folder for the specific matter and saves all records reviewed in that folder. DC Frendo-Jones admitted that if a document is accidentally deleted or overwritten, as happened here, and is not referenced in the ITO, he would not be able to say whether he looked at it.
257DC Frendo-Jones’ practice of not keeping a list of records reviewed in the preparation of an ITO is problematic in that if records are accidentally deleted or overwritten, there is no separate record of what he reviewed. That would make it more difficult to ensure that the Crown meets its disclosure obligations. In this case, however, I am not prepared to find that the absence of such a list constitutes unacceptable negligence. DC Frendo-Jones explained that the records reviewed are referenced in the ITO. While the two records were accidentally deleted, they were ultimately disclosed to the defence. As a result, the Applicant has not been prejudiced by the loss of the original records because they could be reproduced.
258Accordingly, there was no breach of the duty to disclose in relation to the two records and the absence of a list of all documents reviewed by DC Frendo-Jones.
259In respect of Officer Farrell’s notes, the Crown has provided no explanation for their loss. Officer Farrell was not called as a witness, despite his role in using force against the Applicant from the Unit. In fact, the absence of Officer Farrell’s notes was not brought to anyone’s attention until Sgt Macfarlane testified that he and Officer Farrell used force to handcuff the Applicant.
260Based on the absence of any explanation by the Crown for the loss of Officer Farrell’s notes, the Crown has failed to demonstrate that the notes were not lost due to unacceptable negligence. As a result, the Applicant’s right to disclosure under s. 7 has been breached.
Should a Stay be Granted?
261The Applicant seeks a stay of the proceeding as a remedy for the breach of the Crown’s disclosure obligations under s. 7.
262In order to justify a stay, the Applicant must demonstrate that the lost evidence prejudiced him in a substantial or material way: R. v. Sheng, 2010 ONCA 296, 254 C.C.C. (3d) 153, at para. 46. Because Officer Farrell was one of the officers who used force on the Applicant and he did not testify on the application, the absence of his notes had an impact on the Applicant’s ability to proceed with the application. Nonetheless, the Applicant was able to make full answer and defense in respect of the Charter application. As a result, in the circumstances, I would not order a stay of proceedings based on the lost evidence.
Conclusion
263For the foregoing reasons, the application is granted. While there was no breach of the Applicant’s rights under s. 8 of the Charter, I find that the police used excessive force in breach of the Applicant’s rights under s. 7 of the Charter and that his right to counsel under s. 10(b) was also breached. Pursuant to s. 24(2) of the Charter, the firearms and ammunition are therefore excluded.
“Nishikawa J.”
Released: June 20, 2024
COURT FILE NO.: CR-23-50000575
DATE: 20240620
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King
– and –
Omary Bent
RULING ON CHARTER APPLICATION
Nishikawa J.
Released: June 20, 2024
Footnotes
- The underlying Versadex report for one incident had already been disclosed.
- The Crown opposed disclosure on the basis of privilege, and not based on the Applicant’s lack of standing.
- The Applicant submits that the excessive use of force by police was also in breach of his rights under s. 12 of the Charter.
- The written questions and answers between the court and Crown counsel were marked as Exhibits “S1” to “S9” and sealed.
- The final judicial summary (version 6) was marked as Exhibit “H”. All earlier versions were also marked as lettered exhibits.
- The final version of the email summary (version 4) was marked as Exhibit “I” for identification. The previous versions were also marked as lettered exhibits.
- The ITO in fact states “several locations”. It is clear from the context, and the defence does not dispute, that this is an error, and that it is meant to state “several occasions”.
- Based on this excision, it is unnecessary to change “surveillance officers” to “surveillance officer” as agreed by the parties.
- No connection was ever made between the Applicant and a 2011 black Porsche Panamera referred to in the Person of Interest package.
- The regulation was revoked on April 1, 2024. O. Reg. 134/24, s. 1.
- In Keshavarz, the Glocks were excluded from evidence in relation to the other defendant, the driver of the vehicle.