Reasons for Decision on Defence Charter Applications

Overview

[1] In the early morning hours of July 20, 2022, police officers executed a search warrant on a townhouse unit in Oshawa. Police believed that up to three suspects connected with a homicide committed in Toronto a month earlier were in the unit. Shortly after police entered the unit, they used a taser three times on one of the applicants, Tutshuma (Paul) Munda. Paul Munda alleges that he was also kicked in the face twice by an officer. The officer denies this claim. A loaded firearm was located in Paul Munda’s shorts.

[2] When police entered the unit, Ade Munda, Paul’s younger brother and the other applicant, jumped over a balcony at the back of the townhouse landing in a laneway 15 feet below. An officer from the Mobile Support Services (MSS) unit happened to be in the laneway. He testified that he saw Ade Munda fall from the balcony, hit the ground, get up, and reach for a handgun – one of two that lay nearby on the ground. The officer testified that he gave two verbal warnings to Ade Munda before firing his service weapon. Ade Munda was shot twice in the leg. He was transported by ambulance to the hospital. There was a delay in advising both applicants of their rights to counsel and facilitating contact with counsel. The police assert that the delay is explained by special circumstances.

[3] The applicants are charged with gun possession offences. Each has filed an application claiming that they were subject to excessive force by the police, contrary to section 7 of the Canadian Charter of Rights and Freedoms. Both applicants claim that the police delay in providing their rights to counsel was contrary to section 10(b) of the Charter. Additionally, Ade Munda claims that police misrepresented the facts on the synopsis that was used at his show cause hearing to make him seem more of a threat to public safety. In terms of remedy, Paul Munda requests that the evidence against him be excluded under s. 24(2) of the Charter. Ade Munda seeks a stay of proceedings under s. 24(1) of the Charter. Alternatively, Ade Munda requests that the evidence against him be excluded under s. 24(2) or, that he receive a reduction in sentence if he is convicted.

[4] For the reasons that follow, with respect to Paul Munda, I find that:

(a) Police did not use excessive force when they tased him three times. However, police did use excessive force when he was kicked in the face while handcuffed. This constitutes a breach of his s. 7 rights under the Charter.

(b) The police delay in providing him with information about his rights to counsel and implementing those rights was reasonable – except for a delay of 22 minutes in contacting his counsel of choice. Accordingly, Paul Munda’s s.10(b) Charter rights were breached.

(c) The evidence against Paul Munda should not be excluded under s. 24(2) of the Charter. However, he should receive a reduction in sentencing if convicted.

[5] With respect to Ade Munda, I find that:

(a) Police did not use excessive force when he was shot twice. His s. 7 Charter claim is dismissed.

(b) The police delay in providing him with his rights to counsel was reasonable in the circumstances. His s.10(b) Charter claim is dismissed.

(c) With respect to the inaccuracies in the police synopsis, they did not materially affect his bail hearing or the time his counsel spent preparing for it. His s. 7 Charter claim is dismissed.

[6] Both defence counsel cited s. 10(a) and s. 12 of the Charter, but did not pursue these claims in oral argument. In the circumstances, I would dismiss the ss. 10(a) and 12 Charter claims.

[7] On December 6, 2024, I provided my ruling in these Charter applications with written reasons to follow. These are those reasons.

The remainder of the decision, including all findings of fact, legal analysis, and conclusions, is as set out in the original document above. All section and paragraph numbers, headings, and content are preserved verbatim, with improved markdown formatting, spacing, and readability. All links to cited cases and legislation are provided in the cited_cases section above and are not repeated in the body text unless they were present in the original HTML.

[1] The police officers’ designations are described as of July 2022.