Ruling on Charter s. 7 Application (Excessive Use of Force)

Court File No.: CR-22-90000564-0000
Date: 2025-01-24
Ontario Superior Court of Justice
Between:
Stephen William Koritar, Applicant
– and –
His Majesty the King, Respondent

Applicant Counsel: Dragi Zekavica
Respondent Counsel: Elisa Mastrorillo
Heard: February 5, 6, 7, 8, 2024
Judge: Renato Pinto

Overview

[1] On February 26, 2024, I provided my oral ruling dismissing this Charter s. 7 application with written reasons to follow. These are those reasons.

[2] On February 1, 2021, police executed a Controlled Drugs and Substances Act (CDSA) search warrant at a condominium unit on the 23rd floor at 2 Sonic Way in Toronto. There were three individuals in the unit when police entered: Christopher Delgado, who leased the unit; Stephen Koritar, the applicant; and Katelyn Carter, the applicant’s girlfriend.

[3] The condo had two bedrooms and two bathrooms: a larger Master bedroom with an ensuite bathroom; a smaller second bedroom; and a second bathroom near the main entrance.

[4] When police entered, Mr. Delgado was in the main living area, Ms. Carter was in the Master bedroom, and the applicant was in the ensuite washroom attached to the Master bedroom. There was an altercation between police officers and the applicant that forms the basis of his s. 7 application.

[5] In the Master bedroom, police located a variety of illicit substances including 70.48 grams of methamphetamine and 997 grams of fentanyl (mixed with caffeine and dimethyl sulphone), as well as mail in the name of the applicant, and an Ontario Health Card in the name of the applicant.

[6] In the kitchen, police located 14.365 kgs of GHB and 4.11 kgs of GBL (the precursor to GHB).

[7] The applicant is charged with 8 offences under the CDSA and the Criminal Code involving possession of various drugs (GHB, cocaine, fentanyl, ketamine, methamphetamine) for the purpose of trafficking, possession of the proceeds of crime, and assault of a police officer.

[8] The applicant argues that his section 7 rights were violated when police used excessive force in arresting him.

Evidence on the Application

Applicant’s Evidence

[9] The applicant is now 50 years old, born March 12, 1974.

[10] He testified that, at the time of his arrest on February 1, 2021, he was in the ensuite bathroom of the Master bedroom. Everyone was using the Master bathroom because the other bathroom was covered in dog feces and had a clogged toilet.

[11] He heard a big bang and a second bang that disoriented him. By the time he was getting up off the toilet, standing, and pulling his pants up, the door of the bathroom came flying open and two, maybe three police officers came in.

[12] When he saw the police officers, they were about two to four steps from the door. Another officer followed behind the two officers. The two officers, who were masked and standing side-by-side, told him to get down and put his hands above his head. He was not able to say which officer said what to him, but they said, “get down on the ground.” The other officer said, “put your hands above your head.” The officers were about 4 feet away from him. He was facing them and going down with his hands above his head.

[13] He felt a police officer on his left side punch him directly in the nose and eye area. The punch stopped him from going down because the officer hit him so hard. He believed he received two black eyes from the punch, a cut above his eye, and he had blood coming out of his ears. He clarified that he could not distinguish between whether he received all these injuries from the one punch or from subsequent blows. He ended up faced down on the floor.[1]

[14] One of the officers moved around to his back and put their knee or foot into the small of his back. He still has backaches from the injury to his back. One or more officers standing on either side of him grabbed the wrists of both his arms and told him to “stop resisting.” He thinks he was able to shout out, “I’m not resisting, I’m trying.” He then got tasered in his left leg around his thigh area. He saw the prong marks of the taser in his calf. The taser stunned him. One officer kept saying, “stop resisting”.

[15] He felt his left arm get pulled up and his sleeve get pulled down. He was then tasered again in the wrist by the officer who was to the left of him. By this time, he was facing the open bathroom door. He started to crumple to the floor. His right and left arm were grabbed and pulled down to the floor such that his feet were still in the bathroom, but the rest of his body was in the bedroom.

[16] The officers continued telling him to stop resisting, and he got tasered one more time on the left side of his rib cage and he blacked out. He testified that he was not resisting and was trying to comply with what the officers were demanding.

[17] The next thing he remembers was waking up at the hospital with police officers in the room. He stopped one of the nurses or doctors and said, “I’m in pain, I don’t want to go anywhere, I’m in a lot of pain.” But the doctors cleared him to leave, and he was taken by police to 51 Division.

[18] He recalled that, by the end of the ordeal, he had two black eyes, dried blood in his nose, dried blood in his ears, and his ears were in a lot of pain. He could not hear that well out of his left ear and he had bruising all over his body. There were also marks from where the taser prongs made contact with his body.

[19] He testified that, since the incident with the police, he has been to the hospital for leg pain and both of his legs swell up when he is on them for too long.

[20] He denied that he tried to take a taser away from any of the officers or resist arrest.

[21] In cross-examination, Crown counsel took the applicant to an affidavit that he had sworn on January 5, 2024, and asked him about discrepancies between the information in his affidavit and his testimony on the application. He agreed that his affidavit was missing some important information. He testified that, while his memory of February 1, 2021 was great, he had some difficulty putting his “troubles” that night into words.

[22] The applicant acknowledged that he has struggled with GHB (gamma hydroxybutyrate) use in the past. However, he disagreed that he had used GHB on the evening of February 1. He testified that he used methamphetamines at about 5:30 or 6:00 p.m. that evening, before officers entered the unit at 8:00 p.m., but that the effects had worn off.

[23] He testified that he is 6 ft, 5 inches tall and weighs between 235 and 240 pounds.

[24] He clarified that, even though he initially testified that he was punched directly in the nose, it was actually in the nose and eye area. He testified that the punch from the police came from below his head. The blow was unprovoked. It gave him a bloody nose. The blow initially stopped him from going down, but then he fell to the ground. He ended up on his stomach, face down. There was a knee or foot on his back and the officers kept telling him to “stop resisting.” He had been tased for the first time on his leg. Then an officer pulled him up, and he was tased again on the left wrist. Even though in his examination-in-chief he said that he then crumpled to the floor, in cross-examination he added that he was actually pushed and crumpled to the floor. He testified that he was tased again, for the third time, on the left soft side of his body near his rib cage. This third deployment of the taser resulted in him becoming unconscious.

[25] Further, in cross-examination, he testified that he actually got punched twice by the police officers: the first time in the face, and then in the back of the head. The second punch occurred even though he was complying with police and while he was headed in a downward direction.

[26] Crown counsel also pointed to discrepancies between the applicant deposing in his affidavit that it was the impact of the taser bolt on his body that caused him to bleed; and his testimony that it was the punch to his nose, back of his head, and multiple uses of the taser, that caused the bleeding.

[27] At the conclusion of his cross-examination, Crown counsel put a number of statements to the applicant suggesting that his version of events was not accurate or truthful and that police only used reasonable force on him given that none of the officers could control him, and that he was not compliant with their legitimate orders. He disagreed that he fought with the officers. He agreed that he was medically cleared after attending hospital the morning after the altercation and was brought back to a police station. He agreed that he never had his ear medically examined. He also never provided any medical records to the court or photos of his injuries sustained as a result of his encounter with police.

Crown Evidence

[28] The Crown called four police witnesses:

• PC Chris Burgher
• PC Wendell Galapon
• PC David Bilby
• PC Alexander Best

[29] PC Burgher, an Emergency Task Force (ETF) officer with 15 years on the Toronto Police Service (TPS), testified that three targets (the applicant, Mr. Delgado, and Ms. Carter) were identified at an investigative meeting which ended at 6:30 p.m. This was followed by a tactical briefing. PC Burgher entered the condo unit wearing a vest that said police. He entered the Master bedroom and saw that an adjoining door was closed. When he entered the door, it was an ensuite bathroom. He observed a large White male in the corner of the bathroom, gave him two to three orders to get down on the ground, but the male did not comply. He recognized the male from a photograph as the applicant. When the applicant did not comply, PC Burgher attempted to physically bring the applicant down to the ground by grabbing the scruff of his shirt near the neck area and pulling him down. He felt a lot of resistance from the applicant. Another officer, PC Galapon, and him managed to get the applicant down on all fours but the applicant was not prone flat on his chest or stomach on the bathroom floor. PC Burgher delivered one knee strike while the applicant was still on all fours and not complying with police instructions. PC Burgher denied punching the applicant in the face or back of his head. The applicant was kicking and flailing. PC Burgher had his rifle in his hand, so he was concerned about the potentially dangerous position that he and the other officers were in. The applicant could have grabbed a hold of his equipment. Other officers assisted PC Burgher in getting the applicant “proned out” – lying on his stomach with his hands out. The officers were ordering the applicant to get down on the ground and stop resisting. PC Burgher testified that he kneed the applicant on the left side of his trunk, just above his hip in an attempt to get his compliance. His actions appeared to be ineffective. PC Burgher was tapped out, so he left the Master bedroom and had no further interaction with the applicant.

[30] PC Burgher described the applicant’s conduct as “assaultive”. He also testified that he did not deploy his taser against the applicant.

[31] In cross-examination, PC Burgher testified that at least five officers entered the unit after the main door to the unit was breached. He disagreed that he struck the applicant in his face around his nose and eye. He disagreed that either he or PC Galapon grabbed the applicant’s arm around his back as the applicant was going down to the floor. His notes reflect that, at the point he left the bathroom, the applicant was still fighting.

[32] PC Wendell Galapon, 20 years with the TPS, 6 years with the ETF, testified that he attended a briefing at 6:05 p.m. on February 1, 2021 at the ETF base. There was a bench warrant for the applicant’s arrest for trafficking cocaine. Following the investigative briefing, there was a tactical briefing led by Constable Leary. The tactical briefing ended at 6:40 p.m.

[33] The ETF team arrived at 2 Sonic Way at 7:56 p.m. Once PC Galapon entered the unit, he saw a male on the floor – Mr. Delgado – who was compliant. He entered the Master bedroom and observed a female – Ms. Carter – to the right, who complied with police orders to get onto the ground. He then observed PC Burgher just outside a bathroom door. When the bathroom door was opened, he observed a male that matched the applicant’s description.

[34] PC Galapon ordered the applicant, who was standing, to get onto the ground. The applicant did not comply. He observed PC Burgher pull the applicant down to the ground. They ended up moving toward the bedroom. The applicant did not get onto his stomach but was on all fours braced on his knees. PC Galapon pushed on the applicant’s back to get him down onto his stomach to facilitate handcuffing him, but that did not work. At that point, three other officers (PC Leary, PC Bilby and Sergeant Fonseca) entered the bathroom. PC Galapon got out of the way. He observed the applicant rolling around, onto his back, back to all fours, not complying with the officers. He testified that the applicant was kicking and trying to buck the officers off. He did not punch the applicant in the face or back of the head, nor did he see PC Burgher do so.

[35] Next, he heard the distinctive sound of a taser being deployed against the applicant. It was not effective. The applicant was still kicking. PC Galapon stood on the applicant’s calf in order to gain some pain compliance. The applicant was still moving trying to get free. Eventually, the other officers managed to handcuff the applicant to the rear. PC Galapon described the applicant’s behaviour as violent and assaultive.

[36] In cross-examination, PC Galapon testified that, when he entered Unit 2308, he was fully equipped with all his use of force options. He agreed that he did not advise the applicant that he wanted to handcuff him, but he did order him to get onto this stomach and put his hands on top of his head, which the applicant did not do. When PC Leary, PC Bilby and Sergeant Fonseca entered the bedroom, he stepped back because he was carrying a rifle. They took over to try to secure and handcuff the applicant. It was after this and after the applicant was tasered that PC Galapon stood with one foot on the applicant’s calf to get his compliance. PC Galapon disagreed that the applicant was assaulted by PC Burgher.

[37] PC David Bilby, a member of TPS since 2001, testified that there were outstanding warrants for the applicant’s arrest. At the time of the incident with the applicant, he was using an Axon X2 taser. The first way to use it involves deploying the taser where, once triggered, the taser probes spread out. Energy is conducted between the probes once they make contact with the target to cause neuro muscular incapacitation (NMI). The second way called “redirect” involves applying the taser directly onto the body of the target.

[38] PC Bilby testified that on February 1, the ETF used a hydraulic device called a Door Raider to breach the main door of Unit 2308. It created a loud sound. Police yelled, “Police, search warrant” two or three times as they entered. He went through the living room area. Directly ahead of him was a closed door. It was a bedroom. He checked it and no one was inside. He then entered the Master bedroom on the left. There were already ETF officers in the bedroom. A male – the applicant – was on his stomach proned out on the floor in the area between the bedroom and the ensuite bathroom. Initially, the applicant’s head was facing the bed and his feet were pointing in the direction of the bathroom. It appeared to PC Bilby that the applicant was struggling to get back up. He grabbed the applicant’s right arm and pulled him forward. By this time, the applicant was not just struggling, he was actively resisting and fighting not to be handcuffed. It stood out in PC Bilby’s mind because this does not happen very often. For the most part, people are very compliant.

[39] PC Bilby testified that the applicant’s knees were flailing about, and his legs were kicking. He remembers the applicant being very strong. The applicant pulled PC Bilby’s right hand toward the applicant’s head and PC Bilby felt something come down on the tip of his finger. He believes that the applicant bit the tip of his glove. As PC Bilby tried to pull his hand back, his police glove came off. Subsequently, the applicant grabbed his vest and ended up pulling PC Bilby down to the floor in a kneeling position. PC Bilby was concerned about the applicant getting a hold of one of his use of force options. PC Bilby used knee strikes about the applicant’s body. He could not say how many. Since these were ineffective, he decided to punch the applicant in the face using open and closed fists. The applicant let go of PC Bilby’s vest and PC Bilby was able to pull himself back up. Since the applicant was still struggling, almost like a crocodile rolling, PC Bilby used his taser on the small of the applicant’s back. The probes of the taser deployed and landed about a foot apart but had no effect. Around three other officers were also trying to secure the applicant.

[40] Seeing that the first deployment of the taser was ineffective, PC Bilby used the taser a second time but this time in “redirect” mode in the area of the applicant’s buttocks. PC Bilby testified that this just seemed to “piss off” the applicant and he fought harder. The applicant ended up turning in the opposite direction such that his head was now facing the bathroom. The applicant grabbed a hold of PC Bilby’s taser. PC Bilby became concerned because the taser had one more cartridge which could be deployed. Numerous ETF officers became involved and were able to secure the applicant’s hands and cuff him. PC Bilby made a notation that it took six or seven officers to secure the applicant.

[41] After the applicant was handcuffed, tactical paramedics came in and looked over the applicant. They removed one taser probe from his back area, and the other was found loose in his grey jogging pants. PC Bilby noticed a little bit of blood on the left side of the applicant’s face in the area where PC Bilby punched him. He did not notice any blood in the surrounding area. PC Bilby realized that he had a cut on his right knuckle. PC Bilby testified that he did not recall any third intentional deployment of a taser on the applicant. At the conclusion of the incident with the applicant, PC Bilby completed a Taser Deployment Report and a User of Force Report.

[42] PC Bilby denied that he tased the applicant’s wrist. He described the applicant’s conduct on February 1 as “beyond active resistance” and “assaultive.” He described his own response to the applicant as progressive and measured.

[43] In cross-examination, PC Bilby explained that ETF officers were not assigned Body-Worn-Cameras (BWCs) at the time. He acknowledged that when he first encountered the applicant other officers were already engaged and he did not know what they had done to the applicant. He reiterated that the reason he pulled the applicant forward was because the area between the bathroom and the bedroom was rather small to try to bring the applicant’s arms back and cuff him. PC Bilby denied that he punched the applicant in the mouth. As for the knee strikes, he could not recall precisely where they landed but they probably landed on the upper part of the applicant’s body. PC Bilby disagreed that the police officers were using force on the applicant even though he was attempting to comply with them.

[44] PC Alexander Best testified that as he approached the Master bedroom, he heard a lot of yelling and screaming. When he entered the Master bedroom, he noticed two officers trying to gain control of a male’s hands. The male, the applicant, was attempting to get up and grab at the officers. PC Best testified that he started giving commands to the applicant to stop resisting. PC Best attempted to kneel on the lower part of the applicant’s legs to gain control and stop him from moving. The applicant actively kicked him. He was carrying a rifle and did not want to lose control of it. The applicant was reacting violently to the officers with kicks. PC Best stood back and heard PC Bilby deploy a taser on the applicant, but the kicks continued. PC Best ended up slipping and falling on top of the applicant’s legs but he was still unable to control the applicant’s legs due to his continuous kicks.

[45] After the taser was deployed, the applicant’s kicks became more aggressive. PC Best observed other officers punching the applicant as the applicant attempted to grab a taser from one of the officer’s hands. PC Best was able to step back in and pin one of the applicant’s legs down to the ground. At this point, the applicant was on his stomach, and he became a bit calmer. PC Best observed some visible injuries to the applicant’s face and the applicant’s ear was bleeding. He could not remember how much blood there was or whether there was blood on the floor. One of the officers turned the applicant onto his side, and officers subdued and handcuffed the applicant.

[46] PC Best described the applicant’s conduct as assaultive. He denied deploying his taser on the applicant or striking him with his fist or open hand.

[47] In cross-examination, PC Best denied that he simply fell off, rather than being kicked by the applicant, when he was trying to pin down the applicant by kneeling on the back of his legs.

The Law Concerning Police Use of Excessive Force

[48] In R. v. Abdillahi, 2019 ONSC 3645, Schreck J. described the legal test to determine if police have used excessive force in violation of s. 7 of the Charter:

[19] Police officers are sometimes required to use force to carry out their duties and are expressly authorized to do so by s. 25 of the Criminal Code. There are, however, limits on the extent of force that may be used, as was explained in R. v. Nasogaluak, 2010 SCC 6, at para. 34:

Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm. The officer’s belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis (Chartier v. Greaves, [2001] O.J. No. 634 (QL) (S.C.J.), at para. 59). If force of that degree is used to prevent a suspect from fleeing to avoid a lawful arrest, then it is justified under s. 25(4), subject to the limitations described above and to the requirement that the flight could not reasonably have been prevented in a less violent manner.

[20] In evaluating whether the amount of force used by the police was excessive, courts will usually afford the police a degree of latitude for the reasons outlined in Nasogaluak, at para. 35:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances.

[21] However, there will be some cases where the police use force beyond what is permissible and cause injury to a suspect. When that occurs and the suspect’s security of the person is violated in a way that does not accord with the principles of fundamental justice, the result is a breach of s. 7 of the Charter: Nasogaluak, at para. 38.

Did police use excessive force on the applicant contrary to s. 7 of the Charter?

[49] The applicant submits that various discrepancies and inconsistencies in the officers’ evidence demonstrates that the officers’ evidence is not credible or reliable. For instance, the difference in an officer claiming that he pulled the applicant down by the neck versus his T-shirt, was said to permit an inference that the applicant was, in fact, punched in the face. Or the fact that PC Galapon and PC Bilby did not testify to seeing blood, whereas PC Best seeing blood was again said to be evidence that the applicant’s narrative was in fact true. Yet another example was the implausibility of the applicant being dragged from the bathroom to the bedroom in the manner that the police claimed. I find that the applicant makes too much of what are ultimately minor discrepancies in the police officers’ evidence. Instead, I find that there were significant inconsistencies between the applicant’s evidence in his affidavit versus his testimony at the hearing of the application. The inconsistencies relate to:

(a) where the applicant was punched;
(b) how many times he was tased;
(c) the presence or source of blood; and
(d) his memory of what hospital he woke up in.

[50] The applicant’s evidence also changed from his examination in chief to his cross-examination. He testified initially that he was punched in the nose, and later in cross-examination that he was punched in the nose and eye area. Initially, he testified that he crumpled to the ground, and later he was pushed and crumpled to the ground. In chief, he testified that he was punched in the face by one officer, in cross-examination it became punched by a second officer and a second punch to the back of the head.

[51] I have difficulty accepting the applicant’s narrative of an unprovoked attack by the police. The consistency in the officers’ evidence versus the inconsistencies in the applicant’s evidence leads me to doubt that the applicant was being fully honest in his version of events. The applicant’s counsel never put to the officers that they colluded with each other. I also doubt the reliability of the applicant’s evidence as it evolved as the hearing progressed. For instance, the applicant testified that he got punched in the ear which caused blood to come out, but later testified that he also got punched in the back of the head and the eyes/ears.

[52] The applicant’s version of events would involve PC Burgher or PC Galapon punching the applicant in the bathroom for no reason whatsoever, even though he was being compliant and going down to the floor. This was not consistent with each officer’s testimony that the applicant was violent and assaultive.

[53] Further, I note the discrepancy between the applicant’s evidence of being tased in the wrist versus the locations on his body as indicated by PC Bilby on the Use of CEW report. The applicant’s testimony that he was tased a third time does not correspond to the police evidence.

[54] The applicant’s testimony was also at odds with the Agreed Statement of Fact (ASF) that the parties entered. For instance, the applicant testified that, after the final tase to his wrist, he became unconscious and woke up in a hospital bed. But the ASF indicates that, after the altercation with the officers, the applicant walked through the apartment with the officers to the entryway, where he was escorted onto a stretcher.

[55] I considered the possibility that the violent altercation was the product of the applicant being stunned and confused as police rapidly entered the bathroom. I considered whether the applicant may have believed that he was being attacked in a home invasion scenario. However, the applicant never gave the explanation that he was confused by strangers entering the bathroom and commanding him. Instead, he knew these were police officers and that he had to comply. His evidence was that he was trying to be compliant when the officers attacked him. He testified that he was no longer feeling the effects of the methamphetamine that he ingested a few hours earlier probably around 5:30 or 6:00 p.m.

[56] I find that each officer subjectively believed that the force used was necessary in the circumstances. The objective factors – the applicant was arrestable on two warrants, he had a history with possession of a shotgun, the officers knew that he was a large man, PC Bilby testified that the applicant was very strong – all provide objective support for the officers’ belief and all of these factors influenced the officers’ behaviour. Each officer described the applicant’s conduct as assaultive. PC Bilby additionally testified that the applicant attempted to grab his taser, and PC Best testified that the applicant kicked him forcefully.

[57] I note the contrast between the officers’ conduct towards the other occupants, Mr. Delgado and Ms. Carter, and their conduct towards the applicant. Mr. Delgado and Ms. Carter were compliant, and no force was used against them.

[58] Another indicator of reasonableness is that the officers escalated their physical use of force from initially pulling the applicant towards the bedroom, then using knee strikes, followed by open and closed fist strikes, to a first and second use of the taser. Officers Galapon and Best testified that they used one foot to secure the applicant’s legs to the ground. In my view, such actions are evidence of reasonable, not excessive, force.

[59] Finally, the injuries sustained by the applicant do not correspond to an excessive use of force. The applicant presented no medical evidence of temporary or permanent injury. He suffered no broken bones. He walked to a stretcher after the altercation with police and was discharged the morning after the incident.

[60] In conclusion, I find that police did not use excessive force on the applicant. His rights under s. 7 of the Charter were not violated.

Is a stay of proceedings warranted under s. 24(1) of the Charter?

[61] Although I find no s. 7 Charter breach, in the alternative, I will address the applicant’s request for a stay of proceedings.

[62] In R. v. R.B., 2025 ONSC 153, Petersen J. described the law with respect to a stay of proceedings under s. 24(1) of the Charter:

[120] A stay is the most drastic remedy a criminal court can order: R. v. Regan, 2002 SCC 12, at para. 53. It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated, and the public is deprived of the opportunity to see justice done on the merits. In a case like this one, the complainant is also deprived of the opportunity to be heard and to have her allegations adjudicated by a court: R. v. Babos, 2014 SCC 16, at para. 30.

[121] The Supreme Court of Canada has therefore ruled that a stay of proceedings should only be granted to remedy an abuse of process in the “clearest of cases”: R. v. O’Connor, at para. 68; Babos at para. 31. Such cases generally fall into two categories. The first “main” category is where state conduct compromises the fairness of an accused’s trial. The second “residual” category is where state conduct risks undermining the integrity of the judicial process, even if it does not jeopardize trial fairness. The Crown concedes that the CFNIS misconduct in this case invokes both categories.

[122] As set out in Babos (at para. 32), the test used to determine whether a stay of proceedings is warranted consists of three requirements:

(i) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.

(ii) There must be no alternative remedy capable of redressing the prejudice; and

(iii) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interest that society has in having a final decision on the merits.

[63] Although stays have been granted when police use excessive force, those cases are relatively rare in Canadian jurisprudence. Those cases typically involve “gratuitous police brutality in circumstances where no force was justified,” rather than cases where the police were entitled to use force but exceeded what was reasonable in a fast-moving and dynamic situation: R. v. Tran, 2010 ONCA 471, at para. 90; R. v. Abdillahi, 2019 ONSC 3645, at para. 30.

[64] I decline to order a stay as this is not the “clearest of cases.” Had I found that the police used excessive force, I would have found that the police misapprehended the applicant’s defensive conduct and overreacted to the applicant who was likely overwhelmed and disoriented by several officers rapidly entering the bathroom and ordering him down to the ground. There is no apparent systemic issue at play. There was no evidence to suggest that the police set out to brutalize the applicant and he did not sustain any significant injuries. The police conduct in this case was not so egregious that allowing the case to proceed would undermine confidence in the administration of justice. The applicant has not met his onus in establishing that a stay is warranted in the circumstances.

[65] In the further alternative, a stay is not called for because an alternative remedy such as a Nasogaluak sentence reduction would be appropriate in the circumstances. Had I made a finding of excessive use of force, a sentence reduction would bring a measure of justice to the applicant and remedy a Charter violation without the drastic remedy of a stay.

Should the evidence be excluded under s. 24(2) of the Charter?

[66] Also in the alternative, I turn then to consider whether to exclude the evidence that was obtained in breach of the Charter under s. 24(2).

[67] As Presser J. explains in R. v. Williams, 2024 ONSC 1170, at paras. 222 to 224:

[222] This requires two determinations. The first is a “threshold requirement” which “asks whether the evidence was “obtained in a manner” that infringed or denied a Charter right or freedom”: R. v. Beaver, 2022 SCC 54, at para. 94. If the threshold is met, the court moves on to make the second determination. Here the court must evaluate whether, on balance, in all the circumstances, the admission of the evidence would bring the administration of justice into disrepute over the long term: Beaver, at para. 94.

[223] The evaluative component of the s. 24(2) analysis requires the court to consider three avenues of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused’s Charter-protected interests; and (3) society’s interest in the adjudication of the case on its merits: Grant, at para. 71.

[224] The assessment, weighing, and balancing of these three inquiries to determine whether exclusion would bring the administration of justice into disrepute is a long-term, prospective, systemic, and objective exercise: Grant (2009), at paras. 67-70; Beaver, at para. 133.

[68] In this case, there was no causal connection between the evidence of controlled substances in the condo unit and the alleged excessive force used by police on the applicant. Still, given the generous approach that courts have adopted in determining whether evidence was “obtained in a manner” that infringed the Charter, I will move on to the 3-part Grant test.

(i) Seriousness of the Violation

[69] While any unreasonable use of force is a serious matter, the fact that the police did not act maliciously renders the breach less serious: Abdillahi, at para. 32. Also, the applicant did not suffer any serious injuries. He was clearly arrestable, and police likely overreacted in trying to arrest the applicant, a large man, in a confined space where they feared he could access their use of force options. I would find the breach in this case to be moderately serious.

(ii) Impact of the Breach

[70] The impact of the breach would also be moderate. The applicant only suffered minor injuries and there was no reliable evidence of long-term impact. There was no causal connection between the breach and the evidence sought to be excluded. Some of the controlled substances like the GHB were in plain view.

(iii) Society’s Interest in the Adjudication on the Merits

[71] The evidence in this case is reliable and critical to the Crown’s case, particularly possession for the purpose of trafficking methamphetamine, cocaine, fentanyl, ketamine and GHB. The quantities of drugs were considerable, and society has a strong interest in prosecuting drug offences including with respect to fentanyl which is causing death and devastation in communities: R. v. Parranto, 2021 SCC 46, at paras. 73 and 97. I do not see any reason that the evidence must be excluded to protect the long-term reputation of the administration of justice.

[72] Considering the three factors in Grant, as well as the evidence and circumstances as a whole, the factors weigh in favour of inclusion.

Conclusion

[73] The s. 7 Charter application is dismissed.

Renato Pinto
Released: January 24, 2025

[1] The applicant used the word “faced down” not “face down” so I have used his wording.