ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R v. Hussey, 2026 ONSC 350
B E T W E E N:
HIS MAJESTY THE KING
J. Ng, for the Crown
Crown
- and -
JAHEIM HUSSEY
C. Levien, for the Applicant
Applicant
HEARD: July 30, 31, August 15, September 8, 23, October 24, November 21, 2025, January 14, 2026.
CHARTER MOTION RULING
Mirza J.
OVERVIEW
1The Applicant, Jaheim Hussey, brought a motion claiming that when he was detained by a police officer on December 20, 2023, at an apartment building in Brampton, evidence was obtained in violation of his ss. 7, 8, 9, and 10 rights of the Canadian Charter of Rights and Freedoms.
2He submits that the police officer’s conduct towards him was influenced by anti-Black racism and that the evidence should be excluded pursuant to s. 24(2) of the Charter because its admission would bring the administration of justice into disrepute.
3The Applicant is charged with possession of a loaded prohibited firearm without a license; possession of a firearm knowing that he did not have a license; carrying a concealed firearm; and occupying a motor vehicle that he knew had a firearm.
4For the reasons that follow, I find that the officer’s treatment of the Applicant during parts of the encounter was influenced by racism. Discretionary police decisions based on racism are not reasonable. The evidence is excluded.
5In addition, the police officer’s failure to inform the Applicant of the reasons for his detention was contrary to his rights protected by s. 10(a) of the Charter.
[6] I also find that the officer breached the Applicant’s ss. 7, 8, 9, and 10(b) Charter rights.
7This ruling examines the importance of the police’s fundamental constitutional duty to inform a person of the reasons they are being detained or arrested pursuant to s. 10(a) of the Charter. A person must be adequately informed about the reasons for their detention or arrest in order to decide whether to submit to it.
8This case demonstrates that when the police have a reasonable suspicion and decide to use physical coercion to detain, but do not adequately explain the reasons for the detention or arrest, this can result in Charter rights violations and indicate racist mistreatment. [1]
SUMMARY OF THE EVIDENCE
Background
9On December 20, 2023, Mr. Hussey, while with two other men, had an interaction with Officer Beduz of the Peel Regional Police in an apartment building in Brampton resulting in the Applicant’s detention and arrest.
10The incident was independently captured by a combination of the apartment building’s video surveillance of the lobby and hallway, and a police operator audio call from Mr. Hussey, all of which were filed as exhibits.
11The audio recording of the Applicant’s conversation with the police operator coincides with the video-footage of the incident from the lobby, into the hallway. The operator audio recording is about 11 minutes long, continuous, and includes the the timing of the officer’s takedown of the Applicant.
12The lobby and hallway surveillance videos from the apartment building interior do not have audio and do not show when the Applicant was taken by the officer to the ground and mounted face down; however, the police operator audio call captures this latter part of the interaction. In other words, because Mr. Hussey was on speakerphone with a police operator up to the time of his detention and arrest, that audio recording captures additional parts of their encounter.
13Further, there is body-worn camera footage with audio from another police officer that attends to assist officer Beduz after the Applicant is arrested, cuffed, and secured.
14I pause here to comment on a few unusual features of the Crown’s submission of the video footage evidence. Counsel did not initially explain to the that the apartment lobby and hallway videos are not the original video files from the apartment building’s surveillance system. It was later explained that they are copies of parts of the original surveillance recordings that were taken by Officer Beduz on his cellphone. During submissions counsel eventually clarified and agreed that the audio heard on the lobby clip from the officer’s phone that was filed is unrelated background noise from when the officer was recording the videos on his phone, even though at times it sounded related to the incident.
15Also, although the officer testified that the apartment building had multiple cameras, the Crown played the hallway video for the first time during submissions when the court asked counsel if there was any other relevant video-footage from the building obtained by the police of the total interaction. Up to that point only the lobby video was played and filed. After the Crown submitted the hallway clip during submissions which provided more information about the nature of the detention, the court asked counsel if they wanted to recall officer Beduz to ask him any additional questions arising from that footage. The Crown said that they did not have further questions for the officer. The Defence also declined to question the officer. The hallway video was filed on consent as an exhibit.
16Overall, both counsel were given an opportunity to recall the officer or adduce any other relevant evidence and both confirmed that they did not wish to. It is agreed by the Crown and Defence that Officer Beduz was aware of this hallway video (that he had collected) before testifying. I note that the officer was also sitting in the body of the court observing when the late submission of hallway video occurred, so he was available to be recalled. The Crown also had time to call the officer before the proceedings concluded as there were subsequent hearing dates. Ultimately, it was agreed by both counsel that, during the Charter motion hearing, the officer had a full and fair opportunity to explain the entirety of his position about the total interaction with the accused including the part of the interaction in the hallway: R. v. McDonald, 2025 ONCA 807, at paras. 58-59.
17With respect to all of the video footage filed being copies of segments of the original recordings taken by the officer on his cellphone, the parties came to a formal agreement that they were admissible.
18The agreed statement of fact filed on this point specifically states:
The surveillance video adduced on this application contains no audio in the native format.
The native format of the surveillance video was previously seized, but the files were corrupted.
The corrupt native surveillance video was never disclosed to the Crown, nor was its existence reflected in officer notes.
19Officer Beduz was the only witness who testified at the Charter motion. He did not explain why he copied the original video-footage onto his phone and how he determined that the original video footage clips from the apartment’s system were corrupted. The Defence consented to proceeding with the officer’s copies of and did not raise a lost evidence issue.
20Another concern about the video-footage was that when the court reviewed the lobby video-footage during deliberations, it became apparent that the timestamps indicated that there were possibly segments missing. This had not been explained by the officer or through agreed facts. It was not mentioned in submissions. As a result, I required the parties to re-attend before me so that I could identify this concern to them, obtain their input, and determine if more evidence had to be called.
21I identified for counsel that the lobby video time stamps skipped ahead in segments. It was not clear, however, whether there was disruption in the video-stream. For example, it appeared to jump ahead from 7:44:28 to 7:44:48. At 7:45:34, the surveillance video appears to skip ahead a few seconds, from 7:45:34 to 7:45:38. The case was adjourned for both counsel to review the video footage further and advise the court of their positions.
22Eventually, the parties submitted a further agreed statement of fact that explained that the apartment video surveillance technology uses motion detection. The surveillance system is “motion capture”, meaning the video stops recording when motion is not detected.
23As a result, the lobby surveillance system on December 20, 2023, may not have recorded every second of the interaction in the apartment lobby such as when people are standing still but represents most it. To address some of these gaps, I have mentioned in parts of the facts the time stamps from the police operator audio.
Officer Beduz
24In this part, I will summarize Officer Beduz’s testimony. I will also refer to parts of the police operator audio and lobby video.
25Officer Beduz has been an officer in Brampton since 2015. He has worked in various roles and was at the Criminal Investigations Bureau at the time of the investigation.
26Before becoming an officer, he was in the military for several years in the infantry and tactical teams. As an experienced police officer, he has been teaching other officers for the past one and a half years. He now works in the Homicide Bureau.
27Officer Beduz stated that on December 20, 2023, he became involved in an investigation related to a “possible” weapons dangerous, and armed robbery, as a result of a complaint by a person who called for assistance at a bar in Brampton. I pause here to note that Mr. Hussey is not charged with offences in relation to that investigation in the case before me.
28The alleged robbery incident happened around 3:43 p.m., based on the timing of the victim’s call to emergency services.
29Officer Beduz was briefed by another officer that the victim was attacked by two people in a red BMW with license plate DAYN148. The suspects were described as a Black male, six feet, thin build, wearing a black hoodie; and a Black male, 5’5”, thin build, wearing a black ski mask and bubble or puffer jacket.
30The victim said that he was punched, and there was a “possible firearm” among the individuals who had attacked him. The victim was not injured. The officer’s understanding of the context for a “possible firearm” possession was not further explained during his evidence on this motion. There was no description of a firearm possibly involved or who may have possessed or used it.
31The victim reported that the suspects were associated with 116 Railroad Street in Brampton.
32At some point, other police officers attended at 116 Railroad Street and seized a BMW vehicle with that license plate in the rear parking lot. The car was taken to Police Identification Services. Officer Beduz was not involved in the vehicle seizure, and this occurred before he attended the apartment building.
33Officer Beduz was assigned to attend the bar, obtain video-surveillance, take a witness statement from a bar employee, and then go to 116 Railroad Street to obtain video-surveillance. He was instructed that if grounds were formulated to obtain a search warrant specific to an apartment unit, he was to consult with property management so they could help facilitate the search.
34He conducted police system checks on the BMW and the registered owner. He learned that the vehicle was registered at a different address in Brampton, that was not 116 Railroad Street. The vehicle was registered to the Applicant, but the Applicant was not known to Officer Beduz at this point. There was no other relevant information. He said that he retained those checks for his digital file.
35Officer Beduz attended the bar around 6:32 p.m. This was about three hours after the complaint. The bar’s video-surveillance was not available at that time. He took an audio witness statement from an employee.
36He then proceeded to the apartment building at 116 Railroad. On route, he spoke to the officer in charge and learned that the victim’s statement was “less than satisfactory” and there were issues with identifying the suspects. Officer Beduz did not take the victim’s statement.
37At around 7:14 p.m., about 3.5 hours after the incident was reported, Officer Beduz arrived at the 116 Railroad Street apartment building. He spoke to the superintendent to access the building video-surveillance footage. Inside the superintendent’s office he started to review the surveillance. Based on the videos he reviewed, the BMW in issue was out of view of the camera systems.
38Officer Beduz then attempted to work backwards from 3:43 p.m., reviewing video footage from multiple cameras to track the arrival of the BMW and see if he could time the coming and going of people to coincide with the vehicle. He noticed that a white Mercedes arrived and left in tandem with the red BMW. At one point, both vehicles were parked near the kiss-and-ride part of the lot, and it appeared the occupants were communicating. This video footage was not filed.
39His theory was that individuals who used the red BMW in the incident at the bar then parked it at 116 Railroad, left the vehicle, entered the Mercedes, and fled. However, he did not have video footage to prove that theory. He said that the video review process took over an hour.
40While officer Beduz was in the superintendent’s office, the lights were on and Christmas music was playing. He was by himself. He spoke with another officer on the phone, Officer Van Raalte, and asked her to attend the apartment building to provide him assistance to go through the various camera footage. He said that officer Van Raalte told him that it would take her about ten minutes to get to the apartment building.
41The audio of Mr. Hussey’s call to the police operator demonstrates that around this time, Mr. Hussey had been on the phone with the police operator seeking help to locate his vehicle.
42The contents of this police operator audio recording assist in understanding how Mr. Hussey was interacting with the police operator both before and during his discussion with Officer Beduz. As noted earlier, the recording is for about eleven minutes. For now, it is important to identify that the call begins with Mr. Hussey seeking police assistance.
43This is the first minute of the call.
HUSSEY: Hi, um, I’m in downtown Brampton right now and my car got towed. I just wanted to know where my car is.
OPERATOR: Okay, what’s your license plate?
HUSSEY: D-A-Y-N-1-4-8
OPERATOR: D as in dog?
HUSSEY: Yeah. D-A-Y-N
OPERATOR: N as in Norman?
HUSSEY: Yup.
OPERATOR: Okay
HUSSEY: And then 1-4-8. I’m pretty sure that’s my license plate. I can give you my name if [inaudible]. I just got my car, that’s why.
OPERATOR: What kind of a vehicle is it?
HUSSEY: A BMW, it’s a red one, it’s a 2011.
44After, the Applicant is put on hold for a few minutes, between the time markers of 1 minute to 3 minutes and 30 seconds.
45There was no evidence led at the motion that the operator was deliberately collecting information pursuant to, or aware of, an ongoing police investigation.
46The following is a summary of the discussion of the call between Mr. Hussey and the police operator for several minutes, starting at 3 minutes and 50 seconds to 8 minutes and 50 seconds. I will reproduce the details of the discussion in an Appendix.
47In response to the operator’s questions, Mr. Hussey co-operated and provided detailed information. He spelled his full name. The operator told him that he should assume the vehicle is stolen. Mr. Hussey said that he did not believe it was stolen. He was asked for his home address, and he provided it. He said he was not at home but at an apartment building on Railroad Street, having stopped at his aunt’s house. Later, the operator said, “I’m not seeing that it’s towed here, but it looks like an officer has run it today. How long has it been parked there?” Mr. Hussey said an hour or two. Mr. Hussey asked the police operator to look up his name, put a call in to find the car, and said he was going to ask the building to check their footage. The police operator told him that when they tow a vehicle from private property, they have to call and let them know where the vehicle is being towed, and that had not happened. Mr. Hussey confirmed that he was going to speak to the building management office to ask to see their video footage. He said that his cellphone was also inside his car. He said that he would ask the superintendent to check whether the vehicle was towed. He asked the operator what the best thing was to do. The operator told him to report it stolen and that an officer would have to be sent out. He said okay. He was asked where he was, and he said 116 Railroad Street. He said he would meet them downstairs. He did not give a unit number.
48Around this time, Officer Beduz testified that while inside the superintendent’s office, he heard a knock on the door. He peeked through the blinds and saw two young males with Black complexion and dark clothes, and a third person in the distance with a lighter complexion and a ski mask. He opened the door to see what was going on.
49Officer Beduz was wearing a vest marked “police” under a raincoat. He was not in uniform. He said that he was not wearing a body camera because he was assigned to collect video surveillance at the building and not to interview or investigate people. He said that it may be difficult for a person, at least initially, to make out that his vest said police.
50Officer Beduz stepped out of the office and gave the male a head nod. He testified that he indicated that he was a police officer and was reviewing videos. At that moment, he observed one of male’s, later identified as Mr. Hussey, was holding a phone in his hand.
51Mr. Hussey was having an ongoing conversation with the police operator at the same time. As I will explain, Mr. Hussey told this to officer Beduz.
52From the lobby video it is visible that there are three people in the lobby: a taller Black male, wearing a black jacket with a hood with long braided hair (Mr. Hussey); a medium-height Black male wearing a mask, a dark jacket, and lighter pants; and a Black male with afro-style hair, standing outside the door.
53The Black male with the afro-style hair, not Mr. Hussey, knocked on the office door.
54Officer Beduz stated that at around the time Mr. Hussey asked, “Are you looking for my car?” he began to formulate a reasonable suspicion that this might be the individuals associated with the assault investigation.
55The parties agreed to a further agreed fact that the accused was not wearing a black hooded sweatshirt. However, on the post-arrest body-worn police camera video, the accused was wearing a black jacket with a hood. The Defence agreed to this point in submissions.
56At 7:45:44 p.m., Officer Beduz is seen speaking with Mr. Hussey.
57Officer Beduz testified that the other shorter male, and Mr. Hussey, appeared to look similar to the descriptions of the two suspects, while conceding the descriptions were vague. Mr. Hussey is Black, taller, thin, with braids. His clothing had a hoodie that was down. The other male was Black, shorter about 5’5”, wearing a ski mask, dark clothing, and a bubble jacket.
58Officer Beduz said that Mr. Hussey indicated that his vehicle was possibly stolen, and was a red BMW. At that point, Officer Beduz believed that Mr. Hussey may have been talking about the same red BMW seized by the police. At this time, Mr. Hussey was not told that the car was in police custody for a criminal investigation.
59Officer Beduz said that he formed a reasonable suspicion that he should detain all three men to determine their involvement, if any, in the offences under investigation. He acknowledged that he did not have reasonable grounds to arrest anyone. He recognized that Mr. Hussey may not be asking about the same vehicle seized earlier, and that he needed more information. The descriptions he had were general and consistent but not sufficiently detailed as they included generic components.
60He said at that time that he decided to detain all three persons physically. He attempted to radio for additional officers. He stated that he was outnumbered three to one.
61The officer is seen on the video motioning to his radio.
62At 7:45:55 PM (lobby video timestamp), he gave his call sign to dispatch. He testified that before he could continue to provide information, he “sense[d] that all three individuals were wanting to distance themselves from [him].”
63He decided that, before he would lose the opportunity to detain all three parties, he would act and physically control as many of them as he could.
64I pause here to note that Officer Beduz is of medium height, 5’9”, stocky, broad, of significant weight and muscularity. He is noticeably broader than Mr. Hussey and appears to be much bigger than the other two men. In comparison, Mr. Hussey is taller and slender.
65While observing the lobby video during the hearing, Officer Beduz repeated that, upon noticing the three men wanting to distance themselves from him, he decided to gain physical control of Mr. Hussey.
66He explained that Mr. Hussey was closer to him, so he grabbed him by the arm.
67Officer Beduz testified that at that time, Mr. Hussey pulled away aggressively. As a result, Officer Beduz gave chase. He followed Mr. Hussey down the hallway of the building. A segment of that pursuit is caught on the hallway video.2
Police Operator Call Audio Summary (11 minutes and 5 seconds)
68The following are the contents of the audio of Mr. Hussey’s call with the police operator while speaking with Officer Beduz, which transitioned from a conversation to an arrest.
Minutes
POLICE OPERATOR (11 minutes and 5 seconds)
8:51
Mr. Hussey: Hi, [inaudible] um, my car got stolen, I’m on the phone with Peel Police right now, um…
8:56
Officer Beduz: Okay, I’m actually a police officer [inaudible] I’m looking at video.
8:59
Mr. Hussey: You’re looking at video?
Officer Beduz: Yeah.
9:02
Mr. Hussey: Video for? Like my car?
Officer Beduz: What kind of car do you have?
9:06
Mr. Hussey: A BMW, a red car.
Officer Beduz: A red BMW?
9:10
Mr. Hussey: A red BMW.
Officer Beduz: Alright, hang tight.
9:15
Mr. Hussey: I’ll be back though. I have to go upstairs quickly. I’ll be back.
[Radio noise]
9:25
Officer Beduz: Hey, bro…
[Inaudible]
9:27
[?]: No no no, what are you doing?
[Scuffling at the time of Mr. Hussey being grabbed]
Operator: Hello?
9:34
Mr. Hussey: What’d I do?
9:37
Officer Beduz: Stop. Bro, I’m actually talking to you about your car. I’m talking to you about your car.
[Scuffling]
9:42
Mr. Hussey: [Inaudible] What are you doing?
Officer Beduz: Stop. Stop.
9:45
Mr. Hussey: What are you doing?
Operator: Hello?
9:50
Mr. Hussey: Okay, take it. Take it. Take it. Take it….
Officer Beduz:… Stop. Stop. …
Mr. Hussey: … Take it. Take it. Take it.
Operator: Hello?
9:55
Mr. Hussey: What did I do though?
Officer Beduz: I gotta talk to you. I gotta talk to you.
Mr. Hussey: But what did I do?
10:01
Officer Beduz: I gotta talk to you. You’re under investigation. I’m gonna be honest with you, you’re being investigatively detained. You’re not under arrest…
Mr. Hussey: … But what did I do?
Officer Beduz: … but I need you to cooperate.
10:03
Mr. Hussey: Okay. Okay.
Officer Beduz: I need you to cooperate.
10:07
Operator: Hello? Hello?
10:12
Officer Beduz: I need units. I’ve got a male in custody for a firearm.
10:25
Mr. Hussey: What did I do? I didn’t do anything wrong bro. [inaudible] bro. [sigh]
[radio noises]
10:50
Officer Beduz (speaking on his personal radio): [inaudible] … five. I got a male adult in custody. For a firearm, firearm recovered. Can I get units here? I’ve got two parties outstanding.
10:55
Mr. Hussey: I don’t have a single [inaudible] bro. I’m not [inaudible].
[Female voice]: [inaudible] for a firearm.
11:02
Officer Beduz: [inaudible] … five. I have two outstanding males. Firearm recovered.
[End Of Recording]
Court’s Observations of the Lobby Video and Police Operator Audio
69I will now explain my observations from reviewing the total digital recordings.
70Before officer Beduz grabbed Mr. Hussey by the arm, Mr. Hussey is engaged in a polite conversation with the officer. He is responsive and cooperative. It is not clear what the officer meant when he said “hang tight” but this was not explained by the officer (or argued by the Crown) to be communicating to Mr. Hussey that he was detained. It may have been correlated to his radio communication.
71Mr. Hussey told the officer that he is going upstairs and walks a few feet towards the elevator briefly. While he continues to speak with the officer, he remains on the phone with the police operator.
72Officer Beduz motions to Mr. Hussey in a gesture with his hand consistent with to “come here.” Mr. Hussey faces the officer. The male who previously knocked on the door walks towards Officer Beduz.
73Officer Beduz takes a few steps toward Mr. Hussey and is getting closer, within a few feet. Mr. Hussey is facing him. He is not distancing.
74Officer Beduz says to Mr. Hussey, “hey bro”. Mr. Hussey is standing close to Officer Beduz and does not step away. He faces Officer Beduz and is responsive to the officer’s gesture. They appear to be in conversation at 7:46. I pause to note that the operator audio of the call with Mr. Hussey has inaudible portions.
75The other two males remain in the vicinity, and do not leave.
76At 7:46:03, Officer Beduz grabs Mr. Hussey’s left arm with his left arm (a full view of their arms is obscured by Mr. Hussey’s body).
77While holding Mr. Hussey’s arm with his left hand, Officer Beduz reaches toward the man with the mask to grab him but does not secure him.
78At 7:46:05, Officer Beduz turns toward Mr. Hussey and stops reaching for the man in the mask. Mr. Hussey is trying to walk away from Officer Beduz’s hold.
79The man with a mask begins walking away down the hallway at the top left of the screen.
80Officer Beduz continues to hold Mr. Hussey.
81It is only when Officer Beduz grabs Mr. Hussey that Mr. Hussey tries to walk away from the officer, while asking the officer – what is he doing, and then what did I do, repeatedly.
82At this point, after the officer initiated physical contact without explaining the reason, the man with the hat and mask has left in the opposite direction, past the office and off to the right of the screen. He does not return. Neither does the other male who has proceeded ahead through the hallway.
83Mr. Hussey tries to free his arm from Officer Beduz’s grip, as he tries to walk away. Officer Beduz tries to hold Mr. Hussey and follows him into the hallway and grabs Mr. Hussey with both hands. Officer Beduz continues to fail to tell the Applicant why he is holding him or explain that he is not free to leave because of a criminal investigation.
Hallway Video
84As Mr. Hussey attempted to leave, officer Beduz said that he chased him down the south hallway, holding him as best as he could on his left wrist. The hallway video of 41 seconds shows Officer Beduz using both of his hands to more intrusively and aggressively grab onto Mr. Hussey’s body.
85This next part is not captured on video because the officer and Mr. Hussey continue down the hallway out of the video-frame submitted. The court was not provided with video footage of the interaction in this further section of the hallway.
86In explaining their continuing interaction, Officer Beduz stated that, as he was holding onto Mr. Hussey’s wrist, he “sensed” Mr. Hussey’s right hand move down towards his waistband. This is not seen on the video-footage submitted.
87Officer Beduz said that he attempted to retrieve his service-issued firearm, but the jacket he was wearing over his vest prevented him from accessing his firearm in its holster, making it unavailable to him.
88I pause to note that the officer was holding onto Mr. Hussey with both hands (as visible on the hallway video). Yet he stated that he reached for his waistband to retrieve his firearm.
89Officer Beduz said that he decided, in that moment, “to maintain” a hold of Mr. Hussey. He wrapped his arms around Mr. Hussey’s lower body and legs, and the two eventually fell to the ground.
90The total evidence indicates that this was an aggressive takedown.
91Officer Beduz said that he quickly ended up on top of Mr. Hussey, straddling him. He intended to hand-cuff him, but he realized he was on top of Mr. Hussey, face down. The officer had Mr. Hussey in a full mount position, sitting on his back, and tried to monitor Mr. Hussey’s hands.
92He said Mr. Hussey, while down, repeatedly said, “just take it”. Officer Beduz said that initially he did not realize what Mr. Hussey meant, but then he saw the gun fall out of Mr. Hussey’s waistband.
93Officer Beduz said that as he hooked Mr. Hussey’s arms and attempted to apply handcuffs while mounted on Mr. Hussey’s back, he sensed Mr. Hussey’s hands moving. He said that Mr. Hussey had dropped his phone.
94In cross-examination, the Defence put to the officer that, on his version, there were only a few seconds between the accused dropping his phone and being mounted face down, leaving no time for him to reach for anything. The officer disagreed.
95Officer Beduz did agree that he was on top of the Applicant when the Applicant said, “take it”. The operator audio at 9:40 to 9:50 was played to the officer.
96In re-examination, Officer Beduz tried to further explain this part, saying that he wanted to clarify his earlier evidence. He stated that while on top of Mr. Hussey, “he did recall his right hand going down towards his waistband”. He said that he could not see the exact positioning of his hand but could “detect” it. He explained that the accused was face down with his hand underneath his body, so his line of sight to Mr. Hussey’s hand was obstructed. The reaching was not directly observed. But he maintained that he could detect Mr. Hussey’s hand going towards his waist.
97Then he was asked by the Crown in re-examination, without objection, about an additional circumstance. He was asked whether he observed Mr. Hussey reach for his waist while he was standing and giving chase before they both fell to the ground. The officer said that, as they stood, he could “sense” Mr. Hussey’s right hand going towards his waist. He said that Mr. Hussey was blading,3 as he tried to flee. He maintained that he could detect Mr. Hussey going towards his “area of reach”.
98I observe that this is not visible on the lobby or hallway video-clips. In the audio, Mr. Hussey is asking for an explanation.
99Officer Beduz later stated that as he hooked Mr. Hussey’s arms, he observed Mr. Hussey’s right hand travelling downwards.
100He stated that Mr. Hussey was saying, “just take it,” and then he saw the gun fall over his waistband. He said Mr. Hussey appeared to be giving in and he believed that Mr. Hussey did not want anything bad to happen. Officer Beduz grabbed the gun, threw it back, and then handcuffed him.
101He also said that, at one point, he tried to tell Mr. Hussey, as best he could, that he needed to talk to him about his car and that Mr. Hussey needed to cooperate.
102In cross-examination, Officer Beduz agreed that he had a duty to inform Mr. Hussey of the reason that he was being detained. He agreed that he did not do so. He did not tell Mr. Hussey that he was being detained for any criminal offence investigation. He did not state that he was detained in relation to either an assault, robbery, or weapons dangerous investigation. He did not tell Mr. Hussey that he was required to remain of not free to leave. Nor did he advise him of his right to counsel. He said that, if things were different, those words would have come out of his mouth.
103He said that “ideally” he would have said, “hey bro, you’re gonna stop right there. All of you are being placed under investigative detention right now. Place your hands behind your back.”
104He said he used the words “hey, bro” to initiate the detention process, and agreed that he grabbed Mr. Hussey without saying more.
105In cross-examination, he acknowledged that as proven by the lobby video, the accused did not run or leave when he said, “hey, bro”, and therefore did not distance himself.
106He acknowledged that Mr. Hussey only tried to walk away after Officer Beduz grabbed his arm and did not tell him any reason why. He said he used the words “hey, bro” based on the pressure of the moment.
107He said that he did not have a reason to search Mr. Hussey during the detention since it was not an arrest. Had he done one, the scope of any search may have been a pat-down, and he would have explained the reason.
108He said he tried to tell Mr. Hussey, “you’re not being arrested; you’re just being detained.” However, Officer Beduz said that he did not have the opportunity to have the conversation he would have liked to have had. When pressed in cross-examination about the importance of informing Mr. Hussey that he was detained and the reasons, the officer acknowledged that he could have issued verbal demands in the lobby.
109He said that in hindsight, he could have told Mr. Hussey, “you are detained for this investigation”. He said that, at the time, he was piecing it together. He agreed that the descriptions he had of the suspects were vague, but he was taking into account all of the information. He agreed that he did not have grounds to arrest anyone, which is why he decided to conduct an investigative detention.
110To justify his decisions, Officer Beduz maintained at different times that he had safety concerns due to the individuals distancing themselves, the possibility that they were armed, and that he was outnumbered. He said he was balancing those concerns with the need to control the situation and determine their involvement. He said words to the effect that: “there wasn’t explicitly outright a safety concern to me at that very moment, but there was a need to control the situation I felt”.
111He said that by the time he mentioned he was talking to Mr. Hussey about the car, as heard on the audio, he had already mounted and sat on top of him.
112He said that Mr. Hussey responded, “what are you doing?” and that he said “stop” during the struggle, as he wanted Mr. Hussey to cooperate. The officer recalled telling Mr. Hussey that he was detained while he was on top of him, not while Mr. Hussey was leaving.
113In cross-examination, it was suggested to the officer that Mr. Hussey had his phone in his hand throughout the incident, as the operator audio captures the interaction leading to the arrest. But the officer stated he believed Mr. Hussey had dropped the phone.
114The officer stated that he had grabbed the accused’s left arm in the wrist area but disagreed that the accused’s right hand remained on his cellphone throughout.
115He agreed in cross-examination that grabbing the arm of a member of the public without explaining the reason may result in them in leaving, distancing, or running. He agreed that he is aware that young Black men often have trust issues with the police. He acknowledged that once he grabbed Mr. Hussey, Mr. Hussey repeatedly said, “what are you doing?”
116After pinning Mr. Hussey on the ground, he said that he dragged him one meter, retrieved the gun, and cleared the ammunition of a fully loaded magazine and a round from the chamber. He dismantled the firearm, called dispatch, and advised that he had recovered a firearm, had two outstanding suspects, and required back-up.
117He said that while he waited, he was concerned that the two other men might be armed and return. He drew his firearm and kept it at the compressed ready position while monitoring the hallway. He remained on top of Mr. Hussey, pinning his hips down on his stomach, until backup arrived. He stated that Mr. Hussey was compliant.
118Officer Beduz acknowledged that he did not provide Mr. Hussey with complete rights to counsel. He stated that was because he did not have his notebook or his phone to recite the rights to counsel verbatim. He told Mr. Hussey that “you are under arrest now for this firearm”. He asked Mr. Hussey if he wanted a lawyer and asked does he have a lawyer. Mr. Hussey said yes, he wanted a lawyer, but that he did not have one. The officer did not tell Mr. Hussey that if he did not have a lawyer, he had a right to a lawyer from legal aid and that information would be provided to facilitate access. He did not caution him at that point.
119The officer said Mr. Hussey tried to make some exculpatory comments, so he told him “don’t talk to me until you can call your lawyer”. He added that his state of mind was that he was “not in a position to hear it either”, referring to feeling excited and preoccupied. He later described this as having given the accused “soft rights to counsel”.
120He stated in cross-examination, that there was a “litany” of questions for the provision of rights to counsel that he did not provide.
121With respect to the rights to counsel upon arrest or detention, he summarized that he did not give the following standardized rights to counsel from his notebook and confirm that the accused understood:
I am arresting you for X offence and explain the reason for arrest or detention; and asked if he understood.
My duty is to inform you have the right to retain and instruct counsel without delay; do you understand?
You have the right to telephone any lawyer you wish; do you understand?
You have the right to a referral to a legal aid lawyer; do you understand?
If charged you can apply to legal aid plan for legal assistance and will be given a phone number for duty counsel and free legal advice; do you understand? and
Do you wish to call a lawyer now.
122He repeated that he did not give full rights because his notebook and cellphone were left in the office, it was stressful and he tried to remember what he could.
123He stated that backup arrived approximately eight minutes later. Sgt. York arrived and took custody of the accused at around 8:31 p.m.
124He agreed that he did not note the time at which the Applicant was given full rights to counsel. Later, he said that he recorded “soft RTC” at 8:23 p.m. The time of arrest is noted as 8:22 p.m.
125When asked by the Crown if the accused’s being a Black person influenced his conduct, the officer said that if the suspect description had been of white males, he would have acted in the same manner. He denied that race played any role in his characterization of the interaction, decisions not to inform the accused of the reason for his detention, to grab and ground him, and not fully inform him of his rights.
126Officer Beduz stated that, in his mind, the grounds for detention were based on his investigation of an alleged robbery involving a firearm. He was never informed about the property allegedly taken. Without knowing the item stolen but relying on information of witnesses indicating that the victim was assaulted, he was led to consider the offence of assault. He made the decision to investigate Mr. Hussey based on reasonable suspicion due to his appearance and his inquiries about the red BMW.
127The arrest was ultimately for the loaded firearm that was recovered during the takedown.
Body Camera of Sgt. York (27.5 minutes)
128Officer Beduz stated that Sgt. York attended the scene to assist him, arriving about 8 minutes after the arrest. Sgt. York did not testify. His body-worn camera footage was filed as evidence on consent.
129I pause here to note that the time stamps on the video from Sgt. York’s body-worn camera differ from the lobby video footage. The video is time-stamped starting at 20:29:15 and is about 27.5 minutes long. The audio in this footage is original. The differential between the time stamp of the apartment surveillance video-footage and this body-worn camera was not explained. The time stamp on the body-worn camera footage as compared to the time stamp on the surveillance video indicates a period longer than 8 minutes between the arrest and the sergeant’s arrival.
130The following are my observations of the Sgt.’s body-worn camera footage.
131Sgt. York travels down the hallway, and at 20:30:20, Officer Beduz has the Applicant pinned face down. Mr. Hussey is controlled, handcuffed to the back, quiet, and not moving.
132Officer Beduz states to Sgt. York that Mr. Hussey has been cooperative. He informs Sgt. York that the other two men fled in different directions. The white Mercedes is mentioned as being parked in the front and is later visible when Mr. Hussey is escorted back to the apartment entry.
133At 20:31, Officer Beduz asks Sgt. York to read Mr. Hussey his rights to counsel for one count of unauthorized possession of a firearm. Later, Officer Beduz states that he will also be charged with assault.
134Mr. Hussey responds, “assault, what did I do, I didn’t assault nobody”.
135Mr. Hussey is then searched. Later, at 20:33, Officer Beduz adds that Mr. Hussey should also be read his rights for careless storage of a firearm.
136The Applicant makes other utterances, stating that the guy hurt his little cousin and the other guy swung at him first. Sgt. York instructs him not to say anything until his rights are read to him.
137The Applicant continues to make comments about the earlier incident. He has still not been given his full rights to counsel.
POSITIONS
138The Applicant submits that he was not told the reasons for the detention contrary to s. 10(a) of the Charter and was not given proper rights to counsel contrary to s. 10(b) of the Charter. Also, the degree of force used to detain him was unnecessary, such that the manner of the detention was in breach of s. 9 of the Charter. The police conduct of grabbing the Applicant while not telling him their reason for doing so, despite being repeatedly asked to be informed, was influenced by racism.
139The Applicant submits that once the officer had a reasonable suspicion, he had a duty to tell the Applicant that he was detained. Before that, the Applicant was cooperative and seeking his help. He was also on the phone with the police operator requesting assistance. After Officer Beduz grabbed the Applicant, the Applicant asked, “what are you doing?” When Officer Beduz got physical and deliberately gave insufficient information, the Applicant lawfully tried to leave. Officer Beduz then arrested the Applicant by taking him to the ground, without adequate grounds, contrary to s. 8 of the Charter, while still not providing an explanation until the gun was located.
140During the arrest, Officer Beduz’s use of force escalated unreasonably by taking the Applicant to the ground and getting on top of his back. The Applicant submits that the total force used was unjustified and harmful contrary to s. 7 of the Charter.
[141] The Crown concedes that the officer failed to inform the Applicant of the reason he was detained and grabbed his arm. The Crown concedes this was a s. 10(a) Charter breach. However, the Crown submits that eventually the officer made his intentions clear, and that the officer’s conduct was in good faith.
142The Crown submits that the court should accept the officer’s explanation that he was concerned that the accused and his associates were possibly armed, as the underlying investigation dealt with an allegation of an assault and robbery. In this context, the manner of force was justifiable in effecting a detention. The Crown submits that the Applicant’s response of fleeing meant that it was impractical for the officer to comply with the s. 10(b) requirements.
143The Crown submits that the officer provided “soft rights to counsel”, which were given in circumstances where he was concerned for his safety. Therefore, the delay in giving rights to counsel was justifiable.
144The arrest ensued after the physical altercation, during which they fell on top of each other.
145The Crown submits that the police conduct was not influenced by racism.
THE LAW
The Charter
Life, liberty and security of person
7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Search or seizure
8 Everyone has the right to be secure against unreasonable search or seizure.
Detention or imprisonment
9 Everyone has the right not to be arbitrarily detained or imprisoned.
Arrest or detention
10 Everyone has the right on arrest or detention:
(a) to be informed promptly of the reasons therefor;
(b) To retain and instruct counsel without delay and to be informed of that right; and
Enforcement of guaranteed rights and freedoms
24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Exclusion of evidence bringing administration of justice into disrepute
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Fundamental Principles
146It is conceded by the Defence that Officer Beduz had a reasonable suspicion that the Applicant was involved in the offences under investigation (not those charged) based on the total circumstances. The Charter issues focus on the treatment of the Applicant during the detention and arrest.
147As a result, this Charter motion asks this court to consider whether the manner of the detention by grabbing and taking the Applicant to the ground without informing him of the reasons despite multiple requests for an explanation, are contrary to the Charter. The Crown concedes that the officer failed to tell the Applicant the reason for his detention, in violation of s. 10(a) of the Charter.
Section 9
148An investigative detention is not arbitrary if it is based on a reasonable suspicion of criminality. Reasonable suspicion requires a reasonable possibility of crime: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 27. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.
149The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in a crime: Chehil at para. 27. It also. means that innocent people will be caught in the net of investigative detentions so they must be conducted in a reasonable manner.
150Section 9 may be raised to challenge the reasons for detention, the procedures that result in detention being ordered, and the nature or manner of the detention.
151While s. 9 can be raised on its own, it is often raised in conjunction with other Charter rights such as those in ss. 7, 8, and 10.
152In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, the Supreme Court held that police officers may detain an individual if there are reasonable grounds to suspect, in all the circumstances, that the individual is connected to a particular crime and that the detention is reasonably necessary, on an objective view of the circumstances.
153These circumstances include the extent to which the interference with individual liberty is necessary to the performance of the officer’s duty, the liberty interfered with, and the nature and extent of the interference. At a minimum, individuals who are detained for investigative purposes must be advised, in clear and simple language, of the reasons for the detention. Investigative detentions carried out in accordance with the common law power recognized in Mann will not infringe the detainee’s rights under s. 9 of the Charter. They should be brief: compliance with s. 10(b) will not excuse prolonging, unduly and artificially, any such detention. Investigative detentions do not impose an obligation on the detained individual to answer questions posed by the police.
154Since the rights in other Charter sections are illustrative of the rights protected by s. 7, the procedural safeguards surrounding detention have been considered under s. 7 as an aspect of the principles of fundamental justice: R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, at pp. 1008-13.
155Like other Charter rights, s. 9 must be applied using a contextual approach: R. v. Jacques, 1996 CanLII 174 (SCC), [1996] 3 S.C.R. 312, at para. 20.
156In R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, the Supreme Court considered whether the exercise of the power to detain by way of a roadblock of all vehicles leaving the specific location of a person alleged to be in possession of a gun was reasonably necessary and responsive in the circumstances of the particular case.
157At para. 31, Abella J., for the majority, observed the analysis is deeply contextual and the nature of the detention must be reasonably tailored to the circumstances:
The determination will focus on the nature of the situation, including the seriousness of the offence, as well as on the information known to the police about the suspect or the crime, and the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope. This means balancing the seriousness of the risk to public or individual safety with the liberty interests of members of the public to determine whether, given the extent of the risk, the nature of the stop is no more intrusive of liberty interests than is reasonably necessary to address the risk. [Emphasis added.]
158I recognize that at a Charter motion, the reviewing court must carefully guard against the tendency to judge the actions of police with the benefit of hindsight: R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at paras. 23-24. This is because the police must react quickly to unexpected circumstances and “take quick action guided by on-the-spot observations”: R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569, at para. 90.
159The actions of the police are judged with consideration of the difficult or exigent circumstances they face, and the degree of force used should not be measured with exactitude: see R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at paras. 73-76; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 32.
160Conduct should not “be reduced to an over-analytical parsing of events into static moments without practical regard for the overall picture”: R. v. Amofa, 2011 ONCA 368, 282 O.A.C. 114, at para. 19; see also R. v. Rigo, 2017 ONSC 3694, 352 C.C.C. (3d) 307, at para. 73. R. v. Robinson, 2019 ONSC 4696, at para. 106.
161The decisions by the police must be judged by what was or should reasonably have been known to them at the time, not in light of how things turned out: Cornell, at para. 23.
162In R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, the Supreme Court examined whether securing a detainee in a police cruiser — which would have fundamentally altered the nature of his ongoing detention — was reasonably necessary in the totality of the circumstances. Specifically, the appeal concerned a police officer’s authority to detain a motorist in the rear of his police cruiser in the course of a roadside stop for a regulatory offence. The court ruled that even where an individual is lawfully stopped for a motor vehicle infraction, detention may be unlawful where the manner in which the individual is detained is not reasonably necessary in the circumstances: Aucoin, at paras. 31-43. The question to be asked is “whether there were other reasonable means” to meet the law enforcement objective: Aucoin, at para. 39.
[163] In R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, the Supreme Court stated, at various paragraphs, that racial social context is a relevant factor that aids in the total evaluation of the relevant events pertinent to the s. 9 Charter analysis:
75[…] The s. 9 detention analysis is thus contextual in nature and involves a wide ranging inquiry. It takes into consideration the larger, historic and social context of race relations between the police and the various racial groups and individuals in our society. The reasonable person in Mr. Le’s shoes is presumed to be aware of this broader racial context.
86[…] The race relations context is one consideration, among many, aiding in the analysis and interpretation of events that are crucial to this appeal.
90Members of racial minorities have disproportionate levels of contact with the police and the criminal justice system in Canada (R. T. Fitzgerald and P. J. Carrington, “Disproportionate Minority Contact in Canada: Police and Visible Minority Youth” (2011), 53 CJCCJ 449, at p. 450). In 2003, the Ontario Human Rights Commission (“OHRC”) issued a report titled Paying the Price: The Human Cost of Racial Profiling (online). The OHRC summarized then existing research studies, which established that racial minorities are both treated differently by the police and that such differential treatment does not go unnoticed by them. The following excerpt demonstrates the extent, breadth, and reliability of reports which began to chronicle the issues in the 1970’s:
91The most recent report of the OHRC, entitled A Collective Impact: Interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service, was issued in November 2018. It is the latest in what the OHRC says is its 15-year commitment to removing race based discrimination and was an interim report of its year-long inquiry into the relationship between the Toronto Police Service (“TPS”) and the Black community. In this report, the OHRC used quantitative and qualitative research methods to understand the experiences of members of the Black community with policing (p. 16).
92The report covers the period of time between January 1, 2010 and June 30, 2017.
93Overall, the OHRC expressed serious concerns. The study revealed that “Black people are much more likely to have force used against them by the TPS that results in serious injury or death” and between 2013 and 2017, a Black person in Toronto was nearly 20 times more likely than a White person to be involved in a police shooting that resulted in civilian death (p. 19). The OHRC report reveals recurring themes: a lack of legal basis for police stopping, questioning or detaining Black people in the first place; inappropriate or unjustified searches during encounters; and unnecessary charges or arrests (pp. 21, 26 and 37). The report reveals that many had experiences that have “contributed to feelings of fear/trauma, humiliation, lack of trust and expectations of negative police treatment” (p. 25).
[Emphasis added, citations and quotes omitted.]
164Based on these principles, I find that this social context of anti-Black racism must impact a court’s evaluation of not just whether there is a reasonable suspicion or of the timing of the detention, but also of the legality of the manner of the detention, in particular whether it was reasonably responsive to the total circumstances. This includes a consideration of the reasonableness of the force and conduct used to detain the person. The overall manner of detention is correlated to the s. 10(a) interest of whether the police adequately informed the person of the reason for the detention, as they are intended to operate together or in unison where feasible.
165A detention of a racialized person that involves an unreasonable resort to physical force while also not adequately informing the person the reason they are held, based on stereotyping and discriminatory factors, has no place in a lawful detention.
Section 8
166A person is arrested where there is either “(i) the actual seizure or touching of a person’s body with a view to his detention, or (ii) the pronouncing of ‘words of arrest’ to a person who submits to the arresting officer”: R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217, at para. 24; see also Asante-Mensah, at paras. 42-46.
167In R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278, a majority of the Supreme Court held that “[a] search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.”
168In general, when there is a lawful arrest, the common law power to search incident to arrest permits reasonable searches within the meaning of s. 8 of the Charter: Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, at p. 182; R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at para. 27; R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at paras. 12, 14; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 44, 49, 75, 104; and R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at paras. 49, 52.
169The power to search incident to arrest arises from the lawfulness of the arrest. This search is justifiable because the arrest itself requires reasonable and probable grounds or an arrest warrant. However, because the legality of the search depends on the arrest, if the arrest is later found unlawful, the search will also be invalid. Cory J. stated in Stillman, at para. 27, “[n]o search, no matter how reasonable, may be upheld under this common law power [of search incident to arrest] where the arrest which gave rise to it was arbitrary or otherwise unlawful.”
Section 7
170In R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417, at para. 38, the Supreme Court set out a three-step analysis in determining whether there has been a breach of s. 7:
38Where a court is called upon to determine whether s. 7 has been infringed, the analysis consists of three main stages, in accordance with the structure of the provision. The first question to be resolved is whether there exists a real or imminent deprivation of life, liberty, security of the person, or a combination of these interests. The second stage involves identifying and defining the relevant principle or principles of fundamental justice. Finally, it must be determined whether the deprivation has occurred in accordance with the relevant principle or principles: see R. v. S. (R.J.), 1995 CanLII 121 (SCC), [1995] 1 S.C.R. 451, at p. 479, per Iacobucci J. Where a deprivation of life, liberty, or security of the person has occurred or will imminently occur in a manner which does not accord with the principles of fundamental justice, a s. 7 infringement is made out.
171In Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 SCR 76 at para. 8. The Supreme Court adopted the following three-requirements to be a principle of fundamental justice:
Jurisprudence on s. 7 has established that a “principle of fundamental justice” must fulfill three criteria: R. v. Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74, at para. 113. First, it must be a legal principle. This serves two purposes. First, it “provides meaningful content for the s. 7 guarantee”; second, it avoids the “adjudication of policy matters”: Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 503. Second, there must be sufficient consensus that the alleged principle is “vital or fundamental to our societal notion of justice”: Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519, at p. 590. The principles of fundamental justice are the shared assumptions upon which our system of justice is grounded. They find their meaning in the cases and traditions that have long detailed the basic norms for how the state deals with its citizens. Society views them as essential to the administration of justice. Third, the alleged principle must be capable of being identified with precision and applied to situations in a manner that yields predictable results. Examples of principles of fundamental justice that meet all three requirements include the need for a guilty mind and for reasonably clear laws. [Emphasis added.]
172Racist mistreatment is undeniably an affront to human dignity in violation of s. 7 of the Charter. Resorting to physical coercion to detain or arrest based on racism violates an individual’s human dignity in a manner that is not in accordance with principles of fundamental justice.
173First, the requirement that a detention and arrest must be lawful are legal principles in ss. 8 and 9 of the Charter, and well-established common law about objectively reasonable decisions in this context. The reasonableness principles are also reflected in s. 495 and 25 of the Criminal Code dealing with powers of arrest and use of force. As part of this legal principle, to be lawful (or objectively reasonable), a detention or arrest must not be based on racism “to any degree in suspect selection of subject treatment”. Le at para. 76; See also Doherty J.A.’s reasoning in Peart v. Peel Regional Police Services, 2006 CanLII 37566 (ON CA) at para. 91 as cited in R. v. Dudhi 2019 ONCA 665, 147 O.R. (3d) 546, at para. 59.
174The Court of Appeal explained in Dudhi at para. 60 that policing decisions based on racism cannot satisfy the objectively reasonable legal requirement:
60The case law that relates racial profiling to the absence of reasonable suspicion or reasonable grounds must be understood in the context of the principle that policing decisions based on race or racial stereotypes are not, by definition, objectively reasonable decisions.
175Second, this anti-racism principle to criminal investigations is vital and fundamental to our societal notion of justice. A deprivation of liberty of an individual by the state based on racism is not in accordance with principles of justice. Reliance on racism will never strike the right balance between the accused’ interests and the protection of society. Cunningham v. Canada, 1993 CanLII 139 (SCC), [1993] 2 S.C.R. 143, at paras. 17-18. Racism causes a denial of rights that is contrary to society’s interests because it is arbitrary, unlawful, and unfair. Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519 at para. 147.
176Investigating and using force legitimately and without reliance on racism is a foundational requirement for the proper administration of justice. Some of the ways that racism undermines the justice system was discussed by the Court of Appeal in Peart at para. 93, citing the scholarship of Professor Tanovich:
[I]t is offensive to fundamental concepts of equality and the human dignity of those who are subject to negative stereotyping. It fuels negative and destructive racial stereotyping of those who are subjected to profiling. Racial profiling will also ultimately undermine effective policing both by misdirecting valuable and limited resources and by alienating law-abiding members of the community who are members of the targeted race: see David M. Tanovich, “E-Racing Racial Profiling” (2004) 41 Alta. L. Rev. 905 at 916; David M. Tanovich, “Using the Charter to Stop Racial Profiling: The Development of an Equality-Based Conception of Arbitrary Detention” (2002) 40 Osgoode Hall L.J. 145 at 161-65.
177In my view, these same principles apply to the detrimental impact of racism influencing subject mistreatment during police investigations.
178Third, as identified in the jurisprudence this principle that a stop or arrest is not reasonable when influenced by racism has been identified with precision and clarity. In addition, the cases cited above, see also R. v. Brown (2003), 2003 CanLII 52142 (ON CA), 64 O.R. (3d) 161 (C.A.), at para. 10; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789, at para. 33.
179In Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519 at para. 136, the Supreme Court held that security of the person includes protection of both physical and psychological integrity from state interference. See also Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 55; R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30, at pp. 56 and 173; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at paras. 64, 71.
180In New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, at para. 60, the Supreme Court held that for an infringement of security of the person to be established, the state action in issue must be objectively assessed to have a serious effect on a person’s psychological integrity:
For a restriction of security of the person to be made out, then, the impugned state action must have a serious and profound effect on a person’s psychological integrity. The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness but must be greater than ordinary stress or anxiety.
181In R. v. Smith, 2004 CanLII 46666 (Ont. S.C.), at para. 33, Dawson J. recognized the undeniable reality that the use of the power to detain or arrest that is influenced by racism has a serious detrimental impact on a person’s psychological integrity.
“Whether overt, subconscious or systemic, racism undermines the self-image and respect of its victims, causes psychological stress and, of course, may cause tangible disadvantages of every manner and kind: see, Paying the Price: The Human Cost of Racial Profiling, Ontario Human Rights Commission, Toronto, 2003.”
See also Peart at para. 93.
182Racist mistreatment in this context will violate psychological integrity and is therefore easily distinguishable from lesser or trivial intrusions, qualifications or compromises of a person’s security within the reach of s. 7 of the Charter. For example, in Cunningham v. Canada, 1993 CanLII 139 (SCC), [1993] 2 S.C.R. 143, in the context of prisoner rights under the 1986 Parole Act, the Supreme Court held that the Charter does not protect against insignificant or "trivial" limitations of rights: R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713, at p. 759 (per Dickson C.J.); R. v. Jones, 1986 CanLII 32 (SCC), [1986] 2 S.C.R. 284, at p. 314; Lavigne v. Ontario Public Service Employees Union, 1991 CanLII 68 (SCC), [1991] 2 S.C.R. 211, at p. 259; Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, at pp. 168‑69. Also, in R. v. Donnelly, 2016 ONCA 988, in the context of prisoner mistreatment, the Court of Appeal held that not every qualification or compromise of a person’s security comes within the reach of s. 7 of the Charter.
183In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 38, s. 7 of the Charter is engaged when there is a substantial interference with the accused’s physical and psychological integrity (and security of the person) that occurs upon arrest or detention. Nasogaluak dealt with whether the use of force by the police was excessive and not justified under s. 25 of the Criminal Code, R.S.C., 1985, c. C-46.
184The Supreme Court acknowledged that police actions cannot be measured to a standard of perfection but must be assessed in light of the dangerous, difficult, and exigent circumstances in which the police often find themselves. However, police officers do not have an unlimited right to assault or inflict harm on a person in the execution of their duties. The Supreme Court did not consider the psychological impact of racism in that ruling.
185In R. v. Jarrett, 2021 ONCA 758, at para. 61, citing R. v. Davis, 2013 ABCA 15, 295 C.C.C. (3d) 508, at paras. 76-78, the Ontario Court of Appeal stated that the onus is on the Applicant to show the police have used serious force, and then the burden shifts to the Crown to prove the force used was justified:
Davis establishes that an accused only has the burden of demonstrating that a Charter remedy should be granted. The accused does not have the burden of showing that excessive force was used. Rather, once an accused shows that the police used deadly force, a prima facie breach of s. 7 exists, and the evidentiary burden shifts to the Crown to prove the force used was justified. This requires a subjective-objective analysis. The court has to be satisfied that the police officer subjectively believed that the use of force was necessary in the circumstances to protect the officer or others from death or grievous bodily harm, and the belief must have been objectively reasonable.
Sections 10(a) and 10(b) - Rights to Counsel
[186] Section 10(a) requires that individuals be informed promptly of the reasons for their arrest or detention. This is because a person must be told the reasons for a detention or an arrest in order to decide whether to submit to it. Further, an individual must fully understand the reasons for their detention or arrest so that they may meaningfully consult or instruct counsel and thus exercise their s. 10(b) Charter rights: R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at p. 888; R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145, at p. 166.
187First, when interpreting s. 10(a) in a purposive manner, regard must be had to the double rationale underlying the right: "[a]n individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy": R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, at pp. 152-153.
188Second, the purpose of s. 10(b) is to provide a detainee with an opportunity to obtain legal advice about his rights relevant to his legal situation. When a person is in police custody, the paramount right that must be understood by the detainee is the right to choose whether to cooperate with the police or not, protected by s. 7: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 24.
189The right to counsel allows “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. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1242-43. The emphasis, therefore, is on assuring that the detainee’s decision to cooperate with the investigation or decline to do so is free and informed: Sinclair, at para. 26.
190Section 10(b) rights are described as “the single most important organizing principle in criminal law”: see R. v. P. (M.B.), 1994 CanLII 125 (SCC), [1994] 1 S.C.R. 555, at p. 577. Any breach of this provision “undermines the detainee’s right to make a meaningful and informed choice whether to speak, the related right to silence, and, most fundamentally, the protection against testimonial self incrimination”: Lafrance at paras. 96-97; see also Grant, at para. 95.
ANALYSIS
Overview
191I will explain the analysis in two parts. First, I will discuss how the officer’s conduct breached the Applicant’s Charter rights by failing to respect well-established legal doctrines. Second, I will analyze how those principles of law and credibility findings inform my findings of racist mistreatment. The two areas are related and not separate. They inform each other. By proceeding in this manner my hope is that the discussion will assist the public’s understanding of the full scope of how the officer’s conduct is contrary to law.
192In this case there is an intersection between the officer’s decision to use physical force to detain the Applicant and his failure to tell the Applicant the reason for the detention, contrary to s. 10(a) of the Charter. The officer’s deliberate decision not to tell the Applicant the reason he was detained and satisfy this fundamental duty had a serious adverse cascading impact on the interaction.
193This case illustrates the importance of the constitutional duty of the police to tell a person the reason(s) they are being detained, because no one is obliged to submit to a detention or arrest without knowing the reason for it. In other words, a person needs to know the reasons for the detention or arrest in order to decide whether to submit to it.
194The social context of the over-representation of Black people subject to detentions and use of force underlines that it is imperative that an officer reasonably communicate the reason for the detention. Fulfilment of this constitutional duty is more pressing when the police use significant force, and an explanation is reasonably feasible.
195Based on the total circumstances of this case, I find that the Charter violating conduct and treatment of the accused was influenced by racism. Despite the Applicant asking the police for help and being cooperative, the officer grabbed him and did not tell him the reason. When the Applicant lawfully tried to leave the officer forcefully put him on the ground and mounted him face down while still not adequately informing him of his full rights. The officer relied on stereotypes about Black people that influenced his failure to respect the Applicant’s rights and decision to use unreasonable force.
Sections 10(a) Breach
196I will start with a discussion of the s. 10(a) breach because it was a critical failure in this case.
197If courts are to give due consideration to the social context recognition introduced in Le, (at paras. 75, 86 and 93) the law of detention, arrest, and use of force must recognize how this specific failure negatively impacts racialized people that are over-represented in police detentions.
198In R. v. Beaver, 2022 SCC 54, [2022] 3 S.C.R. 718, at para. 90, the Supreme Court confirmed that failing to provide a person with a legally valid reason for their detention is a violation of s. 10(a). Although an individual need not be aware of the precise charge faced or all the factual details of the case, in this case, Officer Beduz’s failure to adequately explain in any way, including the use of plain language, meant that the Applicant did not know the jeopardy he faced while he was detained and then taken down to the ground: see also Mann at para. 21; R. v. Smith, 1991 CanLII 91 (SCC), [1991] 1 S.C.R. 714, at 728; Evans, at para. 35.
199In R. v. Virk, 2025 ONSC 5790, at paras. 28-31, Stribopoulos J. efficiently summarized the essential informational and temporal legal requirements of s. 10(a) that Officer Beduz clearly violated:
Section 10(a) of the Charter guarantees everyone the right "on arrest or detention … to be informed promptly of the reasons therefor" (emphasis added). The right has both an informational and a temporal component: see R. v. Roberts, 2018 ONCA 411, 360 C.C.C. (3d) 444, at para. 63.
From an informational standpoint, the right imposes a constitutional duty on the police to, at the very minimum, advise the person detained "in clear and simple language, of the reasons for the detention": Mann, at para. 21; see also R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at p. 888. If the police have more than one reason for detaining an individual, they must disclose each to the person detained: see R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145, at pp. 165-166; R. v. McGowan-Morris, 2025 ONCA 349, 447 C.C.C. (3d) 421, at para. 39; R. v. Bielli, 2021 ONCA 222, 405 C.C.C. (3d) 245. Additionally, the reason(s) for the detention must themselves be "legally valid": R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, at para. 90.
When evaluating the adequacy of what the police told a detainee, the ultimate question is "whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline or submit to arrest [or detention], or alternatively, to undermine his right to counsel under s. 10(b)": Evans, at p. 888; see also R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217, at para. 30.
In terms of the temporal requirement, as directed by the text of s. 10(a), the police must tell the person detained "promptly" the reason or reasons. That means immediately: see R. v. Nguyen, 2008 ONCA 49, 231 C.C.C. (3d) 541, at paras. 16-22. The only justification for a delay is where the police must first gain control over a detainee whose actions are creating a dangerous situation: see R. v. Boliver, 2014 NSCA 99, 352 N.S.R. (2d) 277, at paras. 15-20.
200The failure of Officer Beduz to comply with s. 10(a) of the Charter, where he had grabbed the Applicant, meant that the Applicant was entitled to leave. I find that Mr. Hussey lawfully and proportionately resisted being grabbed by Officer Beduz, because he was not told the reasons for his detention, contrary to s. 10(a): Evans, at para. 31.
201Instead of remedying the s. 10(a) breach by explaining what he was doing in response to Mr. Hussey’s reasonable questions, the officer then grabbed Mr. Hussey using both of his hands and then mounted Mr. Hussey face down on the ground. This was all done while the Applicant was asking, “what did I do?” The Applicant asked this nature of question up to five times before receiving a vague and insufficient response that did not satisfy the s. 10(a) informational requirement. It likely also did not satisfy the temporal duty.
202After the officer put the Applicant down on the ground, he told him that he was “talking to him about his car”. However, the officer testified that the actual investigation was about an assault or robbery or possible weapons offence. This information was not conveyed to the Applicant. This means that the basis for the detention was not reasonably communicated to the detained person.
203After Officer Beduz fully mounted the Applicant face down, Mr. Hussey continued to ask what he did wrong. Officer Beduz responded by stating he was “investigatively detained,” but still failed to provide a reasonable explanation of the offences for the duration of the detention that effectively became an arrest. This is demonstrated from their continuing discussion captured on the audio while Officer Beduz maintained physical control of the Applicant.
[204] An important aspect of the s. 10(a) right is the recognition that an individual must understand the reasons for their arrest or detention — and thus the extent of their criminal jeopardy — if the individual is to meaningfully instruct counsel and thus exercise their s. 10(b) Charter right: Borden, at para. 44. This logic applies similarly to whether they will choose to remain silent.
[205] As I will explain later, I find that this s. 10(a) Charter breach amounted to racist mistreatment. This is determinative of the Charter motion warranting exclusion of the evidence.
206However, I will go on to explain the reasons that I find that there were further Charter breaches.
Section 9 Breach
207I will now turn to the s. 9 breach based on the unreasonable nature or manner of the detention. I pause to note that even if this conduct could be found not to be technically a s. 9 breach, I find that the officer’s treatment of the Applicant during the detention was influenced by racism and therefore unreasonable.
208Officer Beduz said that he wanted to conduct an investigative detention, pursuant to the authority in Mann. In Mann, the Supreme Court explained that where a police officer has reasonable suspicion to detain an individual with reasonable grounds to believe that his safety or the safety of others is at risk, the officer may engage in a protective pat-down search of the detained individual. The investigative detention and protective search power must be distinguished from an arrest and the incidental power to search on arrest. This principle is that a measured use of force to protect officer safety is permissible when the circumstances so justify. Any interference with individual liberty using physical force must be necessary to the performance of the officer’s duty: Mann, at para. 26.
209At para. 45 of Mann, the Supreme Court summarizes the law that the detention and search must be conducted in a reasonable manner:
To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case. [Emphasis added.]
210I find that officer Beduz, while failing to adequately inform the Applicant of the reasons he was detained, contrary to s. 10(a), unreasonably resorted to increasing physical force to detain in a manner that is contrary to s. 9 on these facts.
211The officer grounded the Applicant when he lawfully tried to leave, while continuing to fail to explain the reasons, despite being asked. The manner of this detention was excessive and contrary to the reasonably measured response required by s. 9 of the Charter to conduct an investigative detention and pat-down search.
212In Chehil, at para. 33, the Supreme Court found that in finding a reasonable suspicion, courts cannot disregard exculpatory, neutral, or equivocal information when assessing the constellation of factors. The totality of the circumstances, including both favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion.
213In similar principled approach, when an officer determines whether physical force is necessary to enable a detention, the officer cannot disregard evidence that the person is cooperating and is not posing a safety threat at the time the officer is reasonably required to explain the basis for the detention. The facts preceding this use of force and failure to explain the reason for the detention, are that the Applicant was asking the officer for help and told him that he was on the phone with the police operator at the same time. These circumstances are relevant factors that Officer Beduz ignored. There is corroboration from the police operator audio that the Applicant immediately told Officer Beduz that he was on the phone with the police operator when they first came into contact. Also, at that time, Officer Beduz had already called for another officer to assist, who he knew was on their way.
214The Applicant and the other men were not “distancing.”
215I also do not accept the officer’s evidence that came out in re-examination that while they were standing, and the Applicant was being held, that the Applicant was “blading.”
216The Applicant was not evasive to Officer Beduz or acting in a way that posed a safety threat. The Applicant was transparent that he was speaking to the police. The Applicant and Officer Beduz were having a reasonable conversation. The Applicant was responsive to Officer Beduz’s direction before being physically grabbed.
217The officer’s depiction of the Applicant (and the other men) is a mischaracterization of the interaction contradicted by other digital evidence. It is an effort to describe these Black men as engaging in criminally suspicious conduct or behaviour that support the officer’s justification to grab them for safety reasons. In the face of contradictory independent evidence, I cannot accept the officer’s claim that he sensed that the Black men were “distancing” or “blading” during the interaction. This mischaracterization relies on presumptions of wrong-doing indicative of unconscious or conscious racial bias amounting to racism.
218I am mindful that there were two other persons present that the officer was concerned about, but they were not engaged in conduct that would reasonably cause the officer or anyone else safety concerns.
219I do not second-guess Officer Beduz's concern that the offences he was investigating are serious: an assault, robbery and possible weapons dangerous. The officer’s explanation of the concern about possession of a “possible firearm” was valid but limited and general on this record as he did not interview any person and received a briefing. I accept this was part of the total information pertinent to personal and public safety that he was considering.
220However, Officer Beduz was wrong to ignore that the Applicant was advancing his own complaint to the police and cooperating. The Applicant told the officer directly at the outset that he was seeking the help of the police over the phone, and then asked Officer Beduz to review video footage to help locate his car.
221In those circumstances, the officer is required by law to verbally inform the accused that he was not free to leave and that he was going to investigate him for the criminal offences explained. He did not fulfill these fundamental duties.
222The Applicant was entitled to resist the unlawful nature or manner of the detention. It was because the officer held onto the Applicant, failed to inform him why, and did not respond when the Applicant asked him what he was doing, that the officer increased the physical force. This conduct cannot constitute a reasonable detention in the total circumstances.
223In comparison, this is not a situation like in other cases that I will address below, where the officer informed the suspect that he had to remain for a criminal investigation, and then the person fled, justifying an arrest.
Section 10(b) Breach
224After forcefully pinning the Applicant to the ground and sitting on his back, with the Applicant face down for several minutes, the officer violated the Applicant’s s. 10(b) rights. The experienced officer only gave Mr. Hussey what he called “soft rights to counsel”, even after he was handcuffed, fully controlled, and compliant for eight minutes.
225In explaining his experience and background, this officer testified that he teaches and trains other officers. I do not accept that the officer was unable to provide the Applicant with the full informational component required of s. 10(b) out of concerns for his safety, or as he stated, because he was essentially too excited in the moment and could not explain the rights without his notebook or phone to read from. While I take into account that after the arrest of the Applicant for the firearm, the officer felt “adrenaline” and his mind was racing, Sgt. York’s body camera video shows that when Sgt. York arrived, Officer Beduz had the Applicant under total control and the situation was calm. Officer Beduz’s evidence was he and the Applicant were alone in the hallway and Mr. Hussey was cuffed, face down, and sitting quietly underneath him for several minutes. This position was held for a sufficiently lengthy period, but the officer made no further reasonable attempt to fully explain to the Applicant his rights to counsel.
226Officer Beduz conceded that he had the Applicant's cooperation for several minutes before Sgt. York arrived. Given the officer’s considerable experience and control of the Applicant, I do not accept that due to the absence of his notebook or phone to read from that he could not comply with this obligation that officers are expected to state regularly. A verbatim reading from his notebook was not the only way to convey these fundamental rights where the Applicant was controlled. This self-described experienced officer was well-versed in the rights to counsel required to be given. Provision of the full information of these rights in a reasonably timely manner are a fundamental professional duty that must be done properly and consistently. Officer Beduz knew the requirements and stated them without difficulty during his testimony.
227Although I recognize that sometimes it will not be safe for an officer or officers to give full rights to counsel with the full necessary information when they are struggling to arrest a person, involved in securing of evidence, or officer or public safety is in jeopardy, or other extenuating circumstances, that was not the case here: see Suberu, at para. 42; R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at paras. 57-63.
228The question of whether a delay in providing the right to counsel is warranted for reasons of officer and public safety must be decided on a case-by-case basis through a “highly factual and contextual inquiry”: Brunelle, at para. 83; see also Taylor, at para. 24; R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at paras. 26, 33. As Doherty J.A. explained in R. v. Rover, at para. 27: “concerns of a general or non-specific nature” do not warrant delaying access to counsel. In my view, if generalized concerns are insufficient to delay implementation, they are insufficient to delay the informational component which was an easier obligation to satisfy in this case.
229I find that Officer Beduz failed to satisfy the informational component of s. 10(b) by not giving the Applicant proper rights to counsel after detaining him for several minutes after his arrest. In R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, 118 D.L.R. (4th) 83, Lamer C.J. summarized the three duties that s. 10(b) imposes on the police:
i) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
ii) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
iii) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).
230The purpose of these three duties is to protect any person whose detention puts them in a situation of vulnerability relative to the state: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 2, 40‑41. While under the control of the police, a person suffers a deprivation of liberty and is at risk of involuntary self‑incrimination: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 22, citing Bartle, at p. 191.
231The first duty is triggered immediately upon detention: Suberu, at para. 41.
232The second and third duties arise only if the detainee indicates a desire to exercise their right to counsel. In relation to these duties, on arrest the Applicant responded that he wanted to speak to counsel but did not have a lawyer. This reinforces the importance that he be told of the availability of counsel through legal aid and duty counsel so that he knows his rights before speaking.
233I accept the holding off on facilitating the Applicant’s actual opportunity to speak to counsel in private until back-up arrived was reasonable.
234It must be understood that the officer’s violation of the Applicant’s s. 10(a) and part of s.10(b) informational rights was because of the other improper decisions of a lack of communication and immediate resort to greater force. These failures were self-induced by the officer’s unreasonable conduct.
235Officer Beduz only giving “soft rights to counsel” upon arrest for serious offences, after the Applicant was controlled for several minutes, was not adequate. The Applicant was also not properly cautioned immediately. When the Applicant was eventually told he was being accused of an assault, the Applicant made comments to the arresting officers that are connected to this breach and then told not to say anything.
236Officer Beduz was an experienced officer and able to give full rights to counsel upon detention and arrest. His purported concern that the other persons who had left could return does not justify the breaches. All of the men had been cooperative and were with the Applicant as he spoke with the police operator on the phone seeking help to locate the vehicle, and they did not act unreasonably with Officer Beduz. They left when the officer used force, failed to provide a reason and a clear verbal demand to remain. It was primarily the officer’s improper conduct that altered the interaction, not the actions of the men that he was speaking with.
Section 8 Breach
237Officer Beduz's grounding of the Applicant also amounted to an unlawful arrest. Forcing the Applicant onto the ground face down meant that the officer effectively arrested the Applicant without reasonable and probable grounds that he committed an offence. I find that the firearm was located as a result of this unlawful arrest.
238Notwithstanding Officer Beduz's stated intention to conduct an investigative detention, his conduct had the effect of putting Mr. Hussey under de facto arrest: Latimer, at para. 24; Asante-Mensah, at paras. 42-46.
239In Mann, Iacobucci J. stated that while the police have a common law duty to investigate crime, they are not empowered to undertake any action in the exercise of that duty. An investigative detention is not the same thing as an arrest and must not be allowed to become "a de facto arrest".
240I do not accept Officer Beduz’s evidence that they fell during a struggle. The hallway video footage shows that Officer Beduz used both of his hands and deliberately grabbed the Applicant as he tried to walk away, to gain total control of him. I find that Officer Beduz took the Applicant down to the ground to de facto arrest him immediately thereafter, even though he eventually told him he was not under arrest at that moment.
241It must be remembered that in this case the Applicant was speaking to both the police operator on the phone and directly to Officer Beduz to seek their help. He remained on the phone with the operator when being subject to physical force. This is the opposite of flight or non-cooperation.
242A review of some leading cases in this category illustrates this point. I find that the facts of the Applicant’s case are distinguishable from other decisions that I discuss below, involving facts where the police clearly communicate their intentions and then the suspect attempts to flee as the police seek to advance their investigative detention, thereby justifying an arrest.
243In R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, police officers went to a bar in response to a report that several men had been passing a firearm around. They attended the live scene, and the doorman identified the accused as one of those men.
244When Mr. McGuffie walked quickly away from the bar, one of the officers followed him and clearly informed him that he was being detained on suspicion of possession of a handgun. Constable Greenwood asked McGuffie why he was "running away from his friends". Mr. McGuffie gave conflicting responses. Constable Greenwood decided to detain McGuffie as he suspected he had the weapon seen earlier in the bar.
245As a result of that interaction, the officer then handcuffed him, patted him down, placed him in the back of a police car, and went back to the bar to continue the investigation.
246The Court of Appeal confirmed, at para. 38, that the circumstances surrounding the nature of the detention are critical to the evaluation of the Charter rights:
The duration and nature of a detention justified as an investigative detention must be tailored to the investigative purpose of the detention and the circumstances in which the detention occurs. A brief detention on the street to question an individual implicated in a criminal investigation involving ongoing events may be justifiable under the Mann criteria, but under those same criteria imprisonment in a police cruiser while handcuffed for some indefinite period while an officer carries out other aspects of a criminal investigation could not be justified. The police cannot use investigative detention as an excuse for holding suspects while the police search for evidence that might justify the arrest of the suspect. Nor does investigative detention mean that the police can detain suspects indefinitely while they carry out their investigation.
247On those facts, the Court of Appeal held that the manner of the initial investigative detention, including the handcuffing, was reasonable. However, the court then held, at para. 39, that the investigative detention became unreasonable and contrary to s. 9, when police placed the accused in the back of the police car:
Constable Greenwood was justified in briefly detaining the appellant to question him about his knowledge of the handgun. However, after that brief detention, he was required to release the appellant unless he had grounds to arrest him. There is no suggestion that he had the grounds to arrest the appellant. Constable Greenwood was therefore required to release the appellant. Instead, he imprisoned the appellant while he pursued his investigation elsewhere. In doing so, he completely disregarded the appellant's right to liberty and rendered him vulnerable to further police investigation. The appellant's right to be free from arbitrary detention was infringed by Constable Greenwood when he confined the appellant in the back of Constable McDonnell's cruiser.
248An important difference between the decision in McGuffie and the case before me is that in McGuffie, at the time of the detention, the officer informed the accused that he was being detained because the officer believed he had a handgun: McGuffie, at para. 8. This is an example of how fulfillment of the s. 10(a) informational duty impacts the analysis.
249Similarly, in R. v. McGowan-Morris, 2025 ONCA 349, the accused was told the reasons for the detention before the situation escalated. In McGowan-Morris, the accused was a passenger among four people in a Jeep. The police pulled the Jeep over to investigate a potential contravention of s. 12(3) of the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1.
250The officer informed the occupants that they pulled the vehicle over because they were not allowed to have cannabis inside a vehicle. A passenger, Mr. Williams, ran from the vehicle. He yelled “run”, and another officer heard “gun”. The police caught Mr. Williams and forcibly grounded him. They removed Mr. McGowan-Morris from the Jeep and grounded him too, with a “fair degree of force”. The police found two handguns and an extended magazine in the Jeep: McGowan-Morris, at paras. 2, 13-15.
251The trial judge found that, while the police would have been justified in asking Mr. McGowan-Morris to get out of the vehicle, the police were not permitted to pull him out of the vehicle and ground him in the way that they did: see McGowan-Morris, at para. 105.
252On appeal, Trotter J.A. explained that had the CCA search proceeded without incident, the Court of Appeal would have agreed that it would not have been appropriate for the officer to exert such force. However, the trial judge failed to appreciate the totality of the circumstances, including the officer’s safety concerns and the fact that the officer was making a split-second decision, in difficult, fluid circumstances, because “everything changed” when, after being told the basis for the stop, the accused tried to flee. The video evidence vividly demonstrated the chaos that ensued when Mr. Williams bolted from the Jeep. The court found that whether Mr. Williams yelled “run” or “gun”, the police cannot be faulted for the steps that they took to regain control of the situation in these circumstances: McGowan-Morris, at paras. 106-108.
253Similar reasoning was applied in R. v. Brown, 2023 ONSC 2002, where the accused fled and the investigating police officer’s total conduct clearly expressed their purpose to detain. In that case, an officer responded to a report of a man pointing a gun at someone. The witness was only able to describe the man with the gun based on his race, height, and what he was wearing. Police arrived within minutes and activated their lights. The court found that in response, the accused got into a vehicle to leave, aware that the officers had arrived at the scene. The officer told the accused to put his hands up. The officer then asked the accused to exit the vehicle, and he held the accused’s wrist as he exited. The court found at para. 53, that the manner of this detention was reasonable:
In these circumstances, I find that there are ample objective reasons for the police to be cautious and detain the men for a firearms investigation. Individuals who were connected to the firearm that was reported remained at the scene. These men went to their car when a police officer activated his emergency lights. From this I infer that they were planning to leave. While the witness described the colour of the coat of the gunman, which was not seen on any of the individuals, a coat is something that is easily removed. The remainder of her description, albeit vague, matched the men on the boulevard. Also, the officer had no way of knowing whether all the occupants of the vehicle were there voluntarily. None of them indicated that they were a victim of a firearm offence and needed assistance.
254In contrast, the Applicant was cooperating and responsive to direction. The interaction was calm and controlled, but for the officer’s decision to grab the Applicant without informing him that he was being detained for a criminal investigation.
255In these circumstances, the Applicant’s attempt to leave was lawful and does not become grounds to justify the manner of the detention or arrest (before the firearm was located). It would be problematic to make weight of a person trying to lawfully walk away from an officer who initiates force to detain and does not tell them the reason.
256Since detaining the Applicant this way was an unlawful manner of detention, given there were other reasonable means by which Officer Beduz could have detained the Applicant and his associates, it cannot constitute the requisite basis in law to support a warrantless arrest and search: Collins, at p. 278.
257Therefore, the arrest was unreasonable within the meaning of s. 8 and constituted a breach of the Applicant’s Charter right against unlawful arrest, resulting in an unreasonable search and seizure.
258I also find that the Applicant’s utterances including but not limited to, “take it, take it”, which was in reference to the gun, while underneath the officer who had mounted him, was connected to the ss. 8, 9, and 10 breaches.
259I will address whether there is a s. 7 breach separately in the next section.
Racism
260I find that the mistreatment of the Applicant by the officer during important parts of this interaction was influenced by racism.
261Also, the officer’s failure to inform the Applicant of the reasons for the detention contrary to section 10(a) was influenced by racism. This finding is determinative.
[262] I also find that the circumstances pertaining to other treatment as described above in the discussion of ss. 9, 8, and 10(b) Charter breaches were influenced by racism.
263In R. v. Dudhi, 2019 ONCA 665, 147 O.R. (3d) 546, at paras. 59-63, the Court of Appeal stated that racial mistreatment occurs when race is illegitimately used to any degree in the treatment of the person detained:
[…] As Brown and Martin JJ. said in Le, at para. 76, racial profiling occurs where race or racial stereotypes are used “to any degree in suspect selection or subject treatment” (emphasis added). Similarly, in Peart, at para. 91, Doherty J.A. explained:
[Racial profiling] is wrong regardless of whether the police conduct that racial profiling precipitates could be justified apart from resort to negative stereotyping based on race. For example, a police officer who sees a vehicle speeding and decides to pull the vehicle over in part because of the driver’s colour is engaged in racial profiling even though the speed of the vehicle could have justified the officer’s action: Brown v. Durham Regional Police Force (1998), 1998 CanLII 7198 (ON CA), 131 C.C.C. (3d) 1 (Ont. C.A.). [Emphasis added.]
The case law that relates racial profiling to the absence of reasonable suspicion or reasonable grounds must be understood in the context of the principle that policing decisions based on race or racial stereotypes are not, by definition, objectively reasonable decisions. For example, in R. v. Brown, at para. 10, Morden J.A. cited Brown v. Durham Regional Police Force in explaining that “[i]f a police officer stops a person based on his or her colour (or on any other discriminatory ground) the purpose is improper and clearly would not be an articulable cause” (citations omitted).
Similarly, I read para. 33 of Bombardier as consistent with the proposition that a decision made in reliance on race or racial stereotypes cannot provide the reasonable basis for that decision. In Le, Brown and Martin JJ. made this same point after quoting para. 33 of Bombardier, when they said that “a detention based on racial profiling is one that is, by definition, not based on reasonable suspicion”: at para. 78.
In my view, it is self-evident that a decision need not be motivated solely or even mainly on race or racial stereotypes to nevertheless be “based on” race or racial stereotypes. If illegitimate thinking about race or racial stereotypes factors into suspect selection or subject treatment, any pretence that the decision was reasonable is defeated. The decision will be contaminated by improper thinking and cannot satisfy the legal standards in place for suspect selection or subject treatment.
Put simply, passages such as para. 11 of R. v. Brown, and para. 33 in Bombardier, are entirely consistent with the proposition accepted in Le and Peart. Where race or racial stereotypes are used to any degree in suspect selection or subject treatment, there will be no reasonable suspicion or reasonable grounds. The decision will amount to racial profiling. [underlining in original; bold added.]
264The principle worth emphasizing is that discretionary police decisions based on racism to any degree are not reasonable and lawful. This is because they rely on an illegitimate mindset grounded on stereotypes or racial bias. For example, when racism influences the manner of a detention, or arrest, or use of force to any degree, it is unreasonable.
265For example, the grounds for an investigative detention may be reasonable but the manner of the detention or arrest may be tainted by racism. The deliberate failure of the police to give the Applicant Charter rights may be indicia of the existence of racism, but there may be circumstances where rights are given but there is evidence of other misconduct consistent with racism that renders the manner of the detention, arrest, or use of force unreasonable.
266A trial judge’s duty is to analyze the total interaction for indicia of the influence of racism. The court must evaluate the existence of evidence of the influence of racism (whether conscious or unconscious) on discretionary decision-making, to determine if the mindset is illegitimate or contaminated: Dudhi, at para. 62; R. v. Sitladeen, 2021 ONCA 303, 155 O.R. (3d) 241, at para. 54.
267In Sitladeen, at paras. 52-54, the Court of Appeal further explained that because the reality is that some officers may not recognize their own subjective bias, the court has a responsibility to look beyond their denial or perception, which may or may not be credible, and focus on whether the total circumstances objectively correspond to racial profiling or racist mistreatment.
54To summarize, the case law from Brown onward recognizes that in cases where an officer had objective grounds to detain a person or stop a vehicle but was also subjectively motivated by racial stereotypes, the officer is unlikely to admit his bias. The matter becomes more complicated when the officer is unaware that he was influenced by race because of unconscious bias. The officer may not be consciously lying about his motivation, but that does not mean he did not unconsciously engage in racial profiling. It is the role of the trial judge in such cases to consider all the circumstances that led to an accused's detention and/or arrest and to determine whether they correspond to the phenomenon of racial profiling, as understood in the social science literature, the reports of inquiries into race relations with police,5 and the case [page257] law. The trial judge can then decide whether those corresponding circumstances form a basis to infer that the record is capable of supporting a finding that the stop was based on racial profiling, contrary to the evidence of the officer. Ultimately, to reach a conclusion about racial profiling, the trial judge is not required to find that a police officer who testifies that race played no role in the decision to detain or arrest was lying.
268The racist “influence” on a decision can be inferred from circumstantial and direct evidence, or a combination of deliberate acts, omissions or failures during an interaction.
269The officer’s mischaracterization of the Applicant’s conduct to justify his own problematic acts and omissions is indicative of stereotypical perceptions of Black people during interactions with the police.
270First, the officer mischaracterized the Applicant and his two peers as “distancing” at the time the officer decided to grab him. This testimony was a deliberate attempt to make the Applicant appear to be evasive and dangerous. It is part of a pattern to portray the Applicant’s behaviour as inducing the nature of force. It is remarkable that the officer mischaracterized the interaction despite the video and audio evidence that he collected, which contradicts this perception.
271The officer’s claim of sensing the Applicant distancing before he grabbed him is contradicted by the total evidence including the video footage of the lobby and police operator audio. After the Applicant tells Officer Beduz he is on the phone with the police and wanted help to find his car, their discussion continues. The officer says hang tight to someone and the Applicant says, “I’ll be back though. I have to go upstairs quickly. I’ll be back”. The Applicant had previously told the operator that he was visiting at his aunt’s place. At that point the Applicant stood a short distance from the officer, near the elevator, waiting and clearly visible. He was not fleeing. Importantly, at that point, Officer Beduz clearly gestured with his hand to the Applicant to come closer to him. In response, the Applicant and the other persons did not distance themselves or leave. In fact, the Applicant faced Officer Beduz, who walked towards the Applicant. Then they stood closer together. This face-to-face interaction was a continuation of the Applicant’s earlier cooperation and communication. This occurred right before the officer grabbed the Applicant. The Applicant also remained on the phone with the police operator the entire time.
272The turning point was the officer grabbing the Applicant and not explaining the reason. There was no distancing or resistance by anyone before that time. In cross-examination, the officer reluctantly, agreed to the suggestion that the dynamics changed when he grabbed the Applicant.
273Second, the officer’s choice of only the words “hey, bro” before grabbing the Applicant, and then deliberately not responding to the Applicant’s reasonable questions to the officer about what he was doing, is symptomatic of a racist mentality impacting the mistreatment. The officer used improper, inadequate, and unprofessional language to address the Applicant, while grabbing him. He treated the Applicant as if he were a person deserving of lesser respect at a critical juncture in the detention using physical coercion. At that time, the officer was obligated to reasonably inform the Applicant of the reason he was detained in accordance with s. 10(a). I find that the officer’s decision to use inappropriate language, in combination with grabbing the Applicant and then deliberately not informing him of the reason despite being asked, failed to respect the Applicant’s Charter rights because he was Black. The officer was deliberately vague and gave insufficient information.
274The use of the word “bro” by an officer standing alone is not necessarily racially biased. I recognize that this is a common colloquial term. It was also used by the Applicant after when he was asking the officer what he did. Rather, it is the failure of the officer to fulfill his professional duty to use context appropriate language to inform the Applicant of his rights. Resorting to that word, at that time, with this person, while applying force, is indicative of the Officer Beduz treating the Applicant in a racially discriminatory manner.
275While police officers can (and arguably should) use a wide range of available language to clearly communicate the reason for a detention, in the context of this case, merely saying “hey, bro” to a Black person, while grabbing them, is entirely unacceptable. It is also wrong for the officer to refuse to explain what he was doing when reasonably asked “what did I do” repeatedly. Section 10(a) of the Charter clearly demands respect for the rights of the person that the officer is grabbing, commensurate with equal respect.
276The officer conceded in cross-examination that due to negative experiences with the justice system, Black people in general have a greater sense of distrust that they will be treated fairly. Still, he deliberately employed this problematic method of communication, all while escalating the physical force. In that moment, the officer decided that saying “hey, bro” while grabbing the Applicant was an appropriate way to speak to the Applicant. I do not accept his evidence that this decision was to keep the situation calm, given the officer’s escalating use of force.
277From a reasonable person standard, this officer’s primary obligation in this interaction was to reasonably inform the Applicant that he was being detained and of the reason for the detention in a clear professional manner. Clearly communicated information can be stated by the officer in a few sentences in plain language. For example: “Sir(s), you are detained in relation to a robbery investigation, and you are not free to leave.”4 This officer’s conduct was a clear and deliberate deviation from this reasonable standard against a compliant Black person. Simply stated, I find that the officer’s conduct in that moment indicates that he decided that he would treat the Applicant in this improper way influenced by the Applicant’s race.
278The officer’s deliberate decision to disregard the duty to inform the Applicant of the reason for their detention is particularly problematic because he was dealing with a cooperative person who was still on the phone with the police operator. There were no difficult, dangerous, exceptional or exigent circumstances justifying a departure from satisfying this fundamental duty in this case.
279Next, the officer portraying the situation to the court as one in which he felt that he was obligated or that it was paramount to take “physical control” of the Applicant (and his peers) immediately is demonstrative of stereotypical reasoning that Black men are dangerous, even when the circumstances establish otherwise. I reject the officer’s evidence that Mr. Hussey was acting aggressively after he grabbed him. Mr. Hussey simply tried to walk away while asking for a reasonable explanation. When the officer escalated the force without explaining what he was doing, this was naturally alarming to the Applicant who wanted to leave with more urgency.
280I find that this was a situation in which the officer jumped to a conclusion, influenced by racism, that he had to physically control the Applicant first, without explaining the reason, all while resorting to unacceptable language. He then mischaracterized the Applicant’s response as aggressive, implying he was dangerous.
281I do not accept that the officer’s eventual acknowledgment at this Charter hearing that he should have communicated better when confronted with the video and audio evidence proving that he acted improperly, means that he was not influenced by racism at the time of the interaction. During his testimony, he emphatically tried to justify his conduct by unfairly claiming he sensed “distancing”, “blading” and other conduct associated with danger, to support the need for more force.
282I also find that Officer Beduz was not credible about the accused “going for” his waist. This was part of the pattern of trying to portray the Applicant’s conduct as increasingly dangerous to fit with a stereotype to help support there were special circumstances that justified his elevated use of force and failure to give proper rights to counsel.
283He was unclear on this important point. The officer initially said that the Applicant dropped his phone, and around that time he “sensed” or “detected” that the Applicant was reaching for his waist. Later, in re-examination, Officer Beduz stated that he detected the Applicant’s right hand going towards his waistband, but qualified that statement by saying he could not see it. Further, he added at the end of the re-examination in response to a Crown question about the Applicant’s conduct while standing with the phone still in his hand, that before they fell to the ground, he could sense Mr. Hussey’s right hand going towards his waist, blading, as he tried to flee. Then he added that he could detect the Applicant going towards his “area of reach.”
284I do not accept the officer’s evidence in this part. He was inconsistent and adding significant information in re-examination that was not credible. It is not believable that the officer could “sense” or “detect” Mr. Hussey “going for” his waist, while also stating he was on top of Mr. Hussey’s back and could not see his hand.
285The officer comments in re-examination adversely impacts his credibility. He added that Mr. Hussey was going for his waist as he stood and tried to leave, blading his body. I find that this was deliberately stated to add to his false narrative. I do not accept that the Applicant was blading during any part of the period that he tried to walk away before being taken down.
286I find that their interaction was straightforward until Officer Beduz grabbed Mr. Hussey and unreasonably did not tell him the reason. Then the officer quickly took Mr. Hussey down to the ground and controlled him. The Applicant likely held his phone until he was grounded.
287While I recognize that this police officer has a difficult job and can reasonably rely on his perceptions to ensure his own safety, I find that his claims lack credibility. In this case the officer’s use of vague terms such as sensing or detecting while conceding he did not see actual movement, falsely sought to portray the accused as going for his waist to justify more force. After saying he sensed movements but did not see it, in re-examination he said that he recalled observing his right hand “going” to his waist on the ground. This explanation which I do not accept, was either deliberately false to fit with a presumption of danger, or exemplary of unconscious bias, contaminating the officer's perception due to race.
288Third, I do not accept the officer’s evidence that they simply fell to the ground during the pursuit. The hallway surveillance video shows that Officer Beduz, the heavier, stockier person, used both of his hands to hold and try to control the Applicant, escalating the use of force. This was deliberate conduct as part of his ongoing effort to physically control the Applicant. Although Officer Beduz acknowledged that he did not have grounds to arrest the Applicant, he physically forced the arrest.
289The audio evidence and the officer’s evidence on this point establish that he maneuvered to control and then quickly mounted the Applicant face down in a position of total dominance. That is when the gun was discovered, with the Applicant acknowledging it to the officer by saying “take it.”
290The officer’s decisions not to comply with the accused’s fundamental Charter rights to be told the reason he was detained and that force was being used against him when it was reasonable for the officer to do so, are deliberate omissions influenced by racism. The decision to escalate the use of force and arrest the Applicant without reasonable grounds was also influenced by racism.
291I find that the total evidence corresponds with indicia of racist mistreatment. I find that the police officer is not being frank about the total relevant circumstances, and in particular, the truth about why and how he used force: R. v. Brown, 2003 CanLII 52142 (ON CA), 64 O.R. (3d) 161 (C.A.), at para. 45.
292A reasonable person, fully aware of the circumstances and Charter rights, would find that the officer had opportunities at the outset to inform the Applicant that he was being detained and give him his rights respectfully and accordingly. Even if it was an initial error, rather than reasonably rectifying that error, when repeatedly asked by the Applicant for an explanation, the officer made further decisions to increase the physicality and still not tell the Applicant the reason.
293While it was reasonable for the officer to be cautious after a firearm was eventually discovered, it was a breach to not inform the accused of the full rights to counsel after handcuffing and controlling the Applicant for several minutes. This omission included but was not limited to informing the Applicant, that indicated he wanted to consult a lawyer, that he could have access to legal aid to obtain a lawyer or could speak with duty counsel.
294Officer Beduz’s emphasis of the men “outnumbering” him is part of the actual context but it is also an over-simplification to advance that they were dangerous when that was not their conduct. No one was hostile, difficult, or aggressive before the officer applied force. When he did so, one of the men had left early and proceeded down the same hallway as the arrest. The other man had also walked away in the opposite direction. Their prior conduct did not indicate they posed a continuing danger that would somehow prevent the officer from conveying necessary Charter compliant information to the Applicant while he dominated him physically for several minutes.
295The officer’s explanation about the reasons for his decision to “physically control” multiple people on his own is not credible. It does not make sense for the officer to grab one or more persons and escalate the situation, if he felt he was unsafe because they outnumbered him.
296The total evidence is that he dealt with compliant people seeking his help. He decided to dominate the Applicant physically and disregard of his rights because he was Black.
297The victim’s complaint was from several hours prior at a different and commercial location. There was no emergency in that apartment lobby. The information from the original complaint about the suspect was enough to warrant reasonable suspicion, but the officer conceded that the description was vague. He also admitted that the circumstances about identification and the presence of a “possible weapon” were less than clear. It was hours later that he interacted with the accused, and again Mr. Hussey was clearly on the phone with the police.
298While mindful that it was ultimately shown that the Applicant had a dangerous firearm in public, it is critical not to reason backwards to justify the unreasonable methods. The Supreme Court has acknowledged that investigative detentions must be imposed in a measured manner because innocent people will be caught in their net. They are tool to investigate, not to be used to disregard fundamental informational rights.
299This was not just an erroneous or flawed and understandable decision by an officer in a fluid moment of stress. It was a series of deliberate decisions to disregard the Applicant’s right to know why he was being physically held and then take him to the ground when he exercised his right to try to walk away. While the officer had Mr. Hussey on the ground, he eventually told him he that was “investigatively detained”, not under arrest, without stating what for. Mr. Hussey asked again - what he did.
300The eventual locating of a firearm speaks to the grave danger that guns pose to the police and public. Still, the officer’s conduct and mistreatment contrary to the Charter, elevated the danger to both the accused and the police.
301In the end, I find that the officer’s breach of s. 10(a) was influenced by racism. This is determinative and warrants exclusion of the evidence. The Crown conceded that if the court found racism influenced any of the officer’s decision-making during the interaction that the evidence must be excluded.
[302] I also find that racism influenced the officer’s manner of detention and take down of the Applicant. It also had an impact on the officer’s failure to give the Applicant full rights to counsel. Even if the officer’s actions did not amount to ss. 8 and 9 Charter violations, racism still influenced aspects of the officer’s conduct during the total interaction.
Section 7 Breach
303I will now explain my findings regarding s. 7. Although the findings above are determinative, the important principles about violations of human dignity in this context are deserving of comment.
304Section 7’s right to security of the person guards against police abuse of their power to use force. Courts must scrutinize the illegitimate use of physical force by the police against all members of our society, while recognizing that racialized people disproportionately experience physically coercive tactics. In Le, at para. 93, the Supreme Court documented the different experiences of Black people with the police, including over-representation with inappropriate use of police powers and the use of force.
305Section 7 deals distinctly and specifically with the protection of physical integrity and psychological dignity. An understanding of the right to security of the person must fairly consider the full social context in this regard.
306Findings of sections 8, 9 or 10 Charter violations may involve normative considerations that overlap with s. 7 considerations, but they are not necessarily inclusive of all of the relevant context and resulting harms from unjustified use of force against racialized people. It is traumatic for a person to be forcefully taken to the ground and mounted face down by an officer without clearly being told the reason as required by law. Racist mistreatment in this context significantly demeans physical dignity and psychological integrity.5
307The use of physical coercion to detain and arrest influenced by racism is contrary to well-established legal principle, essential foundations of our justice system, and illegitimate. Therefore, it is not in accordance with principles of fundamental justice: Smith, at paras. 33-34. This conduct clearly conflicts with “basic constitutional values” of protection from unjustified detention, arrest, use of force and equal treatment under the law: R. v. Kloubakov, 2025 SCC 25, at para. 137.
308Even though in this case race was a relevant descriptor for suspect selection, the Applicant’s race was an illegitimate basis to resort to this manner of force (and breach other rights) in these circumstances. In racial profiling cases the person is unjustly selected based on their race. In racist mistreatment cases the person is unfairly treated at some point during the interaction because of their race.
309This case proves that Black people who are seeking police assistance and cooperating may still be subject to unreasonable force and not told the reason, based on stereotypes. When the Applicant exercised his constitutional right to walk away because he was not told why he was being grabbed, more force was used against him violating his physical integrity.
310I find on a balance of probabilities that the officer violated the Applicant’s physical integrity and adversely impacted his psychological dignity contrary to s. 7. While not adequately explaining the reasons for the detention, Officer Beduz forced the Applicant down to the ground and mounted him face down. This was not necessary, proportionate, or reasonable in the circumstances.
311Factoring in the well-established social context, detentions of this nature can have serious adverse impacts on a person’s physical or psychological integrity that is not in accordance with principles of fundamental justice. Racialized people are disproportionately impacted by use of force. Courts must consider this critical social context to engage in a full and fair interpretation of criminal and constitutional laws: R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 47.
312Being subject to the unjustified use of force, causes distress resulting from the humiliation and a loss of trust. It can contribute to feeling fearful and unsafe in police interactions and undermine future co-operation: see Ontario Human Rights Commission, Under Suspicion: Research and Consultation Report on Racial Profiling in Ontario (2017), at pp. 80-83; Peart. This is part of the reason that the law of detention does not permit unjustified use of force.
313I find that the conduct in this case caused “serious state-imposed psychological stress,” which is not ordinary: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 SCR 307 at para. 56-57; G. (J.), at para. 59. In Blencoe, at para. 55, the Supreme Court held that state interference with bodily integrity and serious state-imposed psychological stress constitute a breach of an individual’s security of the person, contrary to s. 7 of the Charter.
314The effects of state interference on a person’s security must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility: New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 SCR 46, at para. 60.
315The reasonable person that informs the objective assessment, must live in the same world as the accused. A court must consider all relevant circumstances particular to the accused: Le, at para. 121.
316Although the detention and arrest of the Applicant did not result in visible physical injuries, this was a Black man seeking police assistance in a respectful manner, before being forcefully taken to the ground and mounted face down when he tried to walk away because he was not told the reason for the coercion, contrary to his other Charter rights.
317I find that a reasonable person aware of these specific facts would find that this police officer's conduct had a significant adverse impact on the Applicant’s psychological integrity. This finding is independent of whether the conducted violated physical integrity. There may not be visible injuries in these types of interactions, but they are psychologically injurious and harm a person’s confidence and trust in the justice system. This mistreatment contributes to feelings of anger, fear, distrust and unfairness in the justice system: Ontario Human Rights Commission, “Under Suspicion: Research and Consultation Report on Racial Profiling in Ontario” (Ontario Human Rights Commission, 2017) at pp. 80-83, cited with approval by the Supreme Court in Le, at para. 95.
318It is reasonable to infer from the total interaction, informed by the social context, that the Applicant experienced fear and distrust, when he repeatedly asked the officer what he is doing or what he did wrong, and then after being forcefully mounted was still not told accurately what precipitated this use of force.
319In this case, I have found that the arrest was not lawful and therefore s. 25 of the Criminal Code does not authorize the officer’s use of force. Section 25(1) of the Criminal Code 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. The officer conceded that he did not have reasonable and probable grounds to arrest and take the Applicant to the ground.
320As an additional comment, having found that there are indicia of racist mistreatment, I do not accept the officer’s evidence that he would have acted the same (problematic) way if the people under investigation were white males. While the credibility of this type of binary comparison could be a useful analytical tool, it is not necessary to evaluate in every case as it focuses on the officer’s subjective state of mind and denial, which is not determinative, and risks missing the bigger picture. Most reasonable people will deny that they engage in racist conduct or thinking. A mere denial is of minimal probative value. The focus of the analysis must be on the presence of objective indicia of the influence of racism against Black people that factors into subject treatment in relation to the specific circumstances of this case. Not some alternate hypothetical scenario.
321Since the Crown asked the officer and made submissions on this point, for the sake of completeness, I will address the position in a manner responsive to anti-Black racism. I do not find credible the officer’s evidence that he would have acted the same in terms of failing to adhere to basic rights if the Applicant and his peers were not Black people. The Applicant’s race influenced this officer’s mischaracterization of the events, presumptions, and decisions to violate the Applicant’s rights.
Section 24(2)
322The evidence was "obtained in a manner" that violated the claimant's Charter rights: see R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234, at para. 78.
323Racist mistreatment that contributes to finding evidence of criminality cannot stand in the Canadian justice system. The evidence must be excluded.
i) Seriousness of the Breaches
324Admitting evidence that is obtained from police conduct tainted by racism, conscious or unconscious, will bring the administration of justice into disrepute: Le, at para. 78; R. v. Morgan, 2023 ONSC 6855, at para. 92.
325When there is a finding of racism influencing the police conduct to any degree, the misconduct is gravely serious (and the impact of the breach(es) and long-term damage to the administration of justice are severe) warranting exclusion of the evidence.
326Even when there is no evidence of racism, police dishonesty standing alone aggravates the seriousness of a Charter breach. It supports exclusion of the evidence in this case, given the need for a court to dissociate itself from such behaviour: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 26; R. v. James, 2025 ONCA 213, at para. 44.
327The s. 10(a) breach was serious and a catalyst for an improper use of police powers. In Virk, Stribopoulos J., at para. 82, found “a persistent and concerning pattern of Peel Regional Police officers failing to respect their obligation to inform those they detain or arrest of their reasons for doing so,” citing in a footnote a high volume of reported decisions over the past twenty years. This was despite the clear directive of the Supreme Court in Mann, that officers inform those that they detain of the reasons for their detention in clear and simple language.
[328] The s. 10(a) Charter breach was a deliberate disregard of the Applicant’s rights. The take down of the Applicant was a serious violation of his right to walk away when he was not told the basis for the detention.
329The officer mischaracterized the events to justify the denial of fundamental rights. This misconduct weighs heavily in favour of exclusion.
330The breach of the Applicant’s s. 10(a) right was followed by an unreasonable nature of detention, unlawful arrest and denial of full rights to counsel, all of which were serious.
331The officer did not give the Applicant his full rights to counsel in a timely manner, as required by well-established jurisprudence, despite agreeing the Applicant was cooperative, pinned on the ground face down for several minutes and wanted to speak to a lawyer. This delay in providing full informational rights was not justified: Suberu, at paras. 41-42. While the facts of each case are different, this type of breach is also part of a long-standing systemic problem in this region: R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, at paras. 92-94; Virk, at para. 82.
332Charter breaches that are connected to systemic failures elevates the seriousness of the breaches: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 25.
333Also, the ss. 10 breaches in this case are deviations from well-established Charter protections and obligations on the police, which elevates their seriousness.
334The total contextual analysis of the seriousness of the breaches must factor that racialized people have long experienced police detentions disproportionately and differently because of racism. Black people are over-represented in the use of force by the police. The reasonable person considering the seriousness and impact of these breaches must be aware of the history of discrimination faced by disadvantaged groups in Canadian society protected by the Charter’s equality provisions: R. v. S. (R.D.), at para. 46.
335Black people are over-represented in both high-level and lower-level police use-of-force incidents. Relatively lower-level use of force incidents can still have serious adverse physical and emotional impacts on the person subjected to that force: Government of Ontario, A Collective Impact: Second Interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service (Government of Ontario: August 2020), at pp. 3,9, and 22. See also, Peel Regional Police, Committed to Action, 2023 Progress Report: Human Rights Project & Use of Force (Peel Regional Police: 2023).
336In Le, at para. 95, the Supreme Court acknowledged the mental harm and long-term exclusionary consequences caused to the Black community by systemic racism in the forms of over-policing and arbitrary detentions:
[…] Carding takes a toll on a person’s physical and mental health. It impacts their ability to pursue employment and education opportunities (Tulloch Report, at p. 42). Such a practice contributes to the continuing social exclusion of racial minorities, encourages a loss of trust in the fairness of our criminal justice system, and perpetuates criminalization (see N. Nichols, “The Social Organization of Access to Justice for Youth in ‘Unsafe’ Urban Neighbourhoods” (2018), 27 Soc. & Legal Stud. 79, at p. 86; see also Ontario Human Rights Commission, Under Suspicion: Research and Consultation Report on Racial Profiling in Ontario (2017), at pp. 31-40)
337This important acknowledgment of harms from arbitrary detentions, also applies to improper methods to detain and use of force against Black people. The officer’s conduct compounds distrust of racialized people in the justice system and exacerbates anti-Black racism. The unequal treatment of Black people by the justice system that causes distrust was recognized by Chief Justice Tulloch in R. v. Theriault, 2021 ONCA 517, 157 O.R. (3d) 241, at para. 143:
It is well recognized that criminal justice institutions do not treat racialized groups equally: Robin T. Fitzgerald and Peter J. Carrington, “Disproportionate Minority Contact in Canada: Police and Visible Minority Youth” (2011) 53 Can. J. Crimin. & Crim. Just. 449, at p. 450; R. v. Le, 2019 SCC 34, 375 C.C.C. (3d) 431. This reality may inform the conduct of any racialized person when interacting with the police, regardless of whether they are the accused or the complainant.
338As Professors James, Owusu-Bempah, and Sibblis summarize in their report found at Appendix A to the decision in R. v. Morris, 2018 ONSC 5186, 422 C.R.R. (2d) 154 (which was endorsed as essential reading by the Court of Appeal in R. v. Morris, 2021 ONCA 680 for the courts to combat anti-Black racism), the detrimental long-term psychological impact caused by discrimination causes distinct serious harms to Black people:
Black Canadians, and young Black men in particular, keenly feel the discrimination they experience at the hands of the criminal justice system. Young Black Canadians are not only over-represented in stop, search and carding practices of local police, but they serve longer periods of time in pre-trial detention, resulting in longer periods of incarceration than are others charged with the same or similar crimes. Not surprisingly, as Owusu-Bempah (2014) has found, Black male youth who perceive discrimination in policing also feel the same way about both the educational and employment sectors. Further, as Khenti (2013) notes, their experiences, personal and vicarious, with the criminal justice system contribute to the perception that they live “socially unjust lives.” The conclusion is inescapable – that young Black Canadians who view the system as unjust are less likely to believe they should abide by that system’s rules.
ii) Impact of the Breaches
339The Charter breaches have a significant negative impact on the Applicant’s rights and freedoms which weighs heavily in support of excluding the evidence.
340The Charter breaches violated the Applicant’s fundamental rights during detention: to be informed of the reason for his detention; to have his dignity respected; to be free from unreasonable use of force; and to be given the necessary information about his right to counsel without delay: Grant, at para. 76; Le, at para. 151.
341The failure to inform the Applicant of the reason for the detention with an unnecessary force are deeply harmful to a person’s right to make informed decisions during detention and arrest.
342The circumstances of the arrest are precipitated by a clearly improper manner of detention and failure to tell the Applicant the reason: R. v. Zacharias, 2023 SCC 30, at para. 54. The Applicant was in the midst of seeking police assistance. In that context, there is a seriously detrimental impact on the Applicant’s rights.
343The ss. 10(a) and 10(b) breaches impact the Applicant’s right against self-incrimination as he continued to ask questions about why he was arrested and then made comments confirming his identity when, after Sgt. York arrived, he was told by Officer Beduz that he was charged with assault.
344It must be understood that this total conduct is reflective of a reaction rooted in stereotypes that has immediate and long-term harmful impacts on individuals and community members: Le, at para. 162.
iii) Society’s interest in adjudication on the merits
345Reliable evidence of the discovery of a loaded gun seized from an accused or their property in similar circumstances that is critical to the Crown’s case will generally pull towards inclusion: Harrison, at paras. 33-34; McGuffie, at para. 62; and R. v. McSweeney, 2020 ONCA 2, 384 C.C.C. (3d) 265, at para. 81.
346I recognize that Mr. Hussey’s possession of a loaded gun while walking around in the lobby of an apartment building is gravely dangerous to the public and police. I accept that, in general, the public will want these serious charges, which threaten safety and victims to be adjudicated on the merits.
347Excluding the evidence in this case will result in the Crown being unable to proceed with the prosecution. I understand that exclusion of this evidence is a major consequence, and that public interest in accountability for gun crimes is high.
348Even where the evidence would have been discoverable through lawful means, that is only one relevant factor: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 70; Grant, at para. 122; Rover, at para. 43.
349On the other hand, allowing trials to proceed based on evidence obtained from serious Charter violations results in a loss of confidence in the administration of justice.
350Also, courts must distance themselves from police mischaracterization of the events leading to the charges. “Those who feel this is the wrong result should understand that “[t]his unpalatable result is the direct product of the manner in which the police chose to conduct themselves” (McGuffie, at para. 83; Paterson, at para. 56) — and not of an indifference on the part of this Court” towards gun crimes or public safety: Le, at para. 164.
351I find that in totality this factor weighs against admission due to concerns about evidence obtained by unlawful discriminatory means.
iv) Final Balancing
352The final step requires balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. When balancing the Grant factors, the cumulative weight of the first two lines of inquiry must be balanced against the third line of inquiry: R. v. Beaver, at para. 134; R. v. McColman, 2023 SCC 8, 167 O.R. (3d) 559, at para. 74. This balancing involves a qualitative exercise, one that is not capable of mathematical precision: Harrison, at para. 36.
353The court must weigh the factors that point towards and away from admission of the evidence and determine whether a reasonable person, informed of all the circumstances, would conclude that the admission of the evidence would bring the administration of justice into disrepute.
354I find that there will be a long-term negative impact on the administration of justice if this court admits reliable evidence gathered in serious violation of the essential rights and freedoms. The breaches are part of a systemic problem of failures to adhere to s. 10 of the Charter.
355Anti-Black racism is a grave problem in the criminal justice system. Society’s long-term interests of ensuring an equal, fair and principled justice system free from racial discrimination are damaged when evidence obtained in this manner is admitted. The court must not only disassociate itself from anti-Black racism, but it must address it head-on when the facts establish its existence.
356Overall, the first and second lines of inquiry support a strong case for exclusion of the evidence. I recognize that society’s interests normally favour admission of real evidence of very serious crimes. However, the court must also factor in the detrimental impact of the officer’s conduct. It cannot be said that this is a clear case where admission will better serve the truth-seeking function of the criminal trial process and would not damage the long-term repute of the justice system: McColman, at para. 73. While the public has a heightened interest in a determination on the merits where the offence is serious, it also has a vital interest in maintaining a justice system that is above reproach: Grant at para. 84.
357In the totality of the circumstances, I find that factors one and two strongly support exclusion. Society’s interest in adjudication on the merits has complicated considerations but it still supports exclusion.
CONCLUSION
358Balancing all of the factors in the three lines of inquiry, I find that admission of the evidence would bring the administration of justice into disrepute.
359The firearm evidence is excluded.
Mirza, J.
Released: January 16, 2026
APPENDIX A
R v. Hussey – Police Operator Call Summary
HUSSEY: Hi, um, I’m in downtown Brampton right now and my car got towed. I just wanted to know where my car is.
OPERATOR: Okay, what’s your license plate?
HUSSEY: D-A-Y-N-1-4-8
OPERATOR: D as in dog?
HUSSEY: Yeah. D-A-Y-N
OPERATOR: N as in Norman?
HUSSEY: Yup.
OPERATOR: Okay
HUSSEY: And then 1-4-8. I’m pretty sure that’s my license plate. I can give you my name if [inaudible]. I just got my car, that’s why.
OPERATOR: What kind of a vehicle is it?
HUSSEY: A BMW, it’s a red one, it’s a 2011.
OPERATOR: Okay
HUSSEY: Like…
[Long pause]
HUSSEY: [inaudible]
OPERATOR: Give me a second here
HUSSEY: my car is never [inaudible] … my car got towed … [inaudible]
OPERATOR: Can you hang on a second?
HUSSEY: Yes, yes.
OPERATOR: Yeah, hang on.
[Long pause until 3:28]
OPERATOR: Hi there
HUSSEY: Hello?
OPERATOR: Okay, um, what’s your first name?
HUSSEY: Jaheim
OPERATOR: James?
HUSSEY: Jaheim Hussey
OPERATOR: Sorry, J-E-…
HUSSEY: Jaheim
OPERATOR: Oh, Jane(?)…
HUSSEY: Jaheim, Jaheim. Ja-heim. J-A-H-E-I-M.
OPERATOR: And what’s your last name?
HUSSEY: H-U-S-S-E-Y.
OPERATOR: Okay. And what phone number are you calling me from?
HUSSEY: Um, I’m calling from somebody else’s phone number, I don’t know their phone number.
OPERATOR: Okay, do you have a cell?
HUSSEY: My, my phone’s inside of my car, and they towed my car and my phone.
OPERATOR: Okay, well I don’t see that your car has been towed, so we’re going to assume that it was stolen.
HUSSEY: Huh?
OPERATOR: Okay? I don’t see that it’s been towed anywhere…
HUSSEY: HUH? My car’s locked.
OPERATOR: Sorry?
HUSSEY: My car’s locked though. And there’s no glass on the floor, my car’s locked.
OPERATOR: Yeah, well, they’re pretty, they’re pretty savvy.
HUSSEY: Huh?
OPERATOR: Okay, so…
HUSSEY: No way, no way, no.
OPERATOR: Well, I’m not seeing that it’s towed here, but it looks like an officer has run it today. How long has it been parked there?
HUSSEY: For an hour or two
OPERATOR: Okay an hour or two
HUSSEY: My car, you don’t see, so, can you search up my name and see if my, like, … cause I’m gonna call, then I’m gonna go to the building right now and see anyways.
OPERATOR: Okay, where was it stolen from?
HUSSEY: I don’t think it’s stolen, I locked my car, I checked the lock my car, I checked the locks before I left. It’s downtown Brampton.
HUSSEY: Well I can assure you that anybody that’s had their vehicle stolen, 99.9% of them had their vehicle locked. There are ways to get into cars that…
HUSSEY: It’s… It’s… I’m about to… It’s by one… It’s by Railroad Street.
OPERATOR: Okay, what’s your home address?
HUSSEY: 117 Balmoral Drive.
OPERATOR: Okay, were you headed home?
HUSSEY: No, I’m not home, I’m at a building right now, my aunt’s building…
OPERATOR: No no, I didn’t ask if you were home, I said were you heading home?
HUSSEY: I was stopping at my aunt’s house, and I went down to go do something.
OPERATOR: Okay.
HUSSEY: Bro, my car cannot.. nah, nah, nah.
OPERATOR: Okay, well the thing is that, uh, you know, how long has it been parked there? You said about an hour?
HUSSEY: An hour or two.
OPERATOR: Okay, when they tow a vehicle off of private property they have to call us and let us know where the vehicle is being towed. That has not happened yet.
HUSSEY: I’m gonna go into the office [inaudible].
[Someone else not on phone]: Oh okay.
HUSSEY: Alright, alright, thank you so much. I will call back if anything.
OPERATOR: Okay, you don’t want me to make up a call then? You’re gonna try to look for it?
HUSSEY: No, I’m going to call, I’m going to, yeah can you, you could put a call in to look for it, yeah. But I’m going to go in the office right now and get the footage to see where, who took my car, or what it is.
OPERATOR: Okay, well they probably won’t let you see the footage. So am I making up a call for your, a stolen auto?
HUSSEY: But, like, I’m still gonna have to ask the office to see like if they [inaudible] anything, like this is my car, like this is my life, my phone is inside the car, like…
OPERATOR: Okay, and again, have you asked the superintendent or management if they had the vehicle towed?
HUSSEY: That’s what I’m trying to say right now. I’m going to go to the office right now to ask them.
OPERATOR: Okay, well, in the meantime, am I making up a call for a stolen auto for you?
HUSSEY: Um, what do you think is the best decision to do? Cause I can’t find my car.
OPERATOR: Well, then it’s probably stolen.
HUSSEY: Like… stolen like… so yeah, I guess. I guess. I guess you’re just gonna have to do that until I find out where my car is.
OPERATOR: Okay, and normally we’d have to send an officer out. Where would you like to see an officer? At your home address or?
HUSSEY: Do I have to see them?
OPERATOR: You have, they have to see you yes.
HUSSEY: Holy… Okay…
OPERATOR: Where was the vehicle parked? What was the address?
HUSSEY: Uh, 116 Railroad Street. … 116 Railroad Street.
OPERATOR: Okay, and where would, where would you like to see an officer? There or at home?
HUSSEY: I could see, I could see one here.
OPERATOR: Pardon me?
HUSSEY: Here, here. Here would be good. 116 Railroad Street.
OPERATOR: Is this, is this an apartment?
HUSSEY: Yes, it is an apartment.
OPERATOR: Yup. Is there a unit number?
HUSSEY: No, there’s not a unit number. I’ll met them downstairs.
OPERATOR: Okay, well it could be a while before we get there?
[Officer Beduz interaction starts – 8:46]
HUSSEY: Oh boy.
OPERATOR: Okay, I’ll put in the…
HUSSEY: Hi, [inaudible] um, my car got stolen, I’m on the phone with Peel Police right now, um…
OFFICER BEDUZ: Okay, I’m actually a police officer [inaudible] I’m looking at video.
HUSSEY: You’re looking at video?
OFFICER BEDUZ: Yeah.
HUSSEY: Video for? Like my car?
OFFICER BEDUZ: What kind of car do you have?
HUSSEY: A BMW, a red car.
OFFICER BEDUZ: A red BMW?
HUSSEY: A red BMW.
OFFICER BEDUZ: Alright, hang tight.
HUSSEY: I’ll be back though. I have to go upstairs quickly. I’ll be back.
[Radio noise]
OFFICER BEDUZ: Hey, bro…
[Inaudible]
[?]: No no no, what are you doing?
[Scuffling]
OPERATOR: Hello?
HUSSEY: What’d I do?
OFFICER BEDUZ: Stop. Bro, I’m actually talking to you about your car. I’m talking to you about your car.
[Scuffling]
HUSSEY: [Inaudible] What are you doing?
OFFICER BEDUZ: Stop. Stop.
HUSSEY: What are you doing?
OPERATOR: Hello?
HUSSEY: Okay, take it. Take it. Take it. Take it….
OFFICER BEDUZ: … Stop. Stop. …
HUSSEY: … Take it. Take it. Take it.
OPERATOR: Hello?
HUSSEY: What did I do though?
OFFICER BEDUZ: I gotta talk to you. I gotta talk to you.
HUSSEY: But what did I do?
OFFICER BEDUZ: I gotta talk to you. You’re under investigation. I’m gonna be honest with you, you’re being investigatively detained. You’re not under arrest…
HUSSEY: … But what did I do?
OFFICER BEDUZ: … but I need you to cooperate.
HUSSEY: Okay. Okay.
OFFICER BEDUZ: I need you to cooperate.
OPERATOR: Hello? Hello?
OFFICER BEDUZ (speaking on his persona radio and captured on this audio): I need units. I’ve got a male in custody for a firearm.
HUSSEY: What did I do? I didn’t do anything wrong bro. [inaudible] bro. [sigh]
[radio noises]
OFFICER BEDUZ: [inaudible] … five. I got a male adult in custody. For a firearm, firearm recovered. Can I get units here? I’ve got two parties outstanding.
HUSSEY: I don’t have a single [inaudible] bro. I’m not [inaudible].
[Female voice]: [inaudible] for a firearm.
OFFICER BEDUZ: [inaudible] … five. I have two outstanding males. Firearm recovered.
[END OF RECORDING]
Time stamp
LOBBY VIDEO (1 minute 50 seconds; no audio)
7:45
Three Black men are in the lobby. One of them dressed in Black winter jacket and pants, (not the Applicant) knocks on the superintendent’s door.
7:45:25
Officer Beduz opens the superintendent’s office door and speaks to this person (not the Applicant).
7:45:30
Mr. Hussey walks towards Officer Beduz to speak with him, while still holding his phone. Officer Beduz speaks to them while standing in the doorway.
7:45:50
Officer Beduz steps out into the lobby and the office door closes. He stands directly outside the door. Mr. Hussey walks around on the phone.
7:45:52
Officer Beduz motions at his vest and appears to say something and then walks towards Mr. Hussey.
7:45:54
Mr. Hussey holds his phone, talking on speaker, and turns and takes about five steps away. Officer Beduz remains in the same place at the superintendent’s office door.
7:45:58
The man with no mask presses the elevator button, then turns so he is facing partially toward the elevator and partially toward Officer Beduz. All three men are near the elevator waiting. This is a short distance from Officer Beduz. Mr. Hussey stops briefly and is facing toward the elevator, with his back to Officer Beduz. The man with the mask is doing the same.
7:45:59
After the elevator button is pressed, Officer Beduz begins walking toward the three men. He appears to motion “come here” with his right hand. The three men turn to face Officer Beduz.
7:46:00
Just after Officer Beduz motions “come here” and appears to say something, Mr. Hussey faces the officer. The male that previously knocked on the door walks towards Officer Beduz. Officer Beduz has now taken a few steps toward the men and is getting closer, within a few feet.
7:46:01
Mr. Hussey takes a step toward Officer Beduz. They are standing close to each other.
7:46:03
Officer Beduz and Mr. Hussey are facing each other as if they appear to be in conversation. Officer Beduz grabs Mr. Hussey’s left arm with his left arm (a direct view of their arms is obscured by Mr. Hussey’s body).
7:46:04
While holding Mr. Hussey’s arm with his left hand, Officer Beduz reaches toward the man with the mask, to grab him. Mr. Hussey begins walking away from Officer Beduz.
7:46:05
Officer Beduz turns toward Mr. Hussey and stops reaching for the man in the mask. Mr. Hussey is pulling away from Officer Beduz’s hold. The man with no mask begins walking down the hallway at the top left of the screen.
7:46:06
Officer Beduz continues to hold Mr. Hussey.
7:46:07
Mr. Hussey momentarily frees his arm from Officer Beduz’s grip and Officer Beduz gives chase and grabs him with both hands as they move towards the hallway. Officer Beduz gives chase. As the interaction unfolds, the man with the hat and mask leaves in the opposite direction, past the office and off to the right of the screen.
7:46:09
All three men and the officer are now off screen. [End of lobby video]
Time Stamps
HALLWAY VIDEO (41 seconds; no audio)
7:46:08 7:46:09 7:46:11 7:46:15
The man without the mask enters frame, running up the hallway. Mr. Hussey follows close behind, also running. Officer Beduz uses both of hands and grabs a hold of Mr. Hussey’s side and arm. The two of them tussle as they continue down the hallway for a few more steps and then out of frame.
CITATION: R v. Hussey, 2026 ONSC 350
COURT FILE NO.: CR-24-690
DATE: 2026-01-16
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJETY THE KING J. Ng, for the Crown
- and – JAHEIM, HUSSEY C. Levien, for the Applicant CHARTER MOTION RULING Mirza, J.
Released: January 16, 2026
Footnotes
- This is the hallway video clip that the Crown did not submit until submissions when asked by the court if there was any other surveillance footage showing the interaction.
- In Le, at para. 14 the Supreme Court explained that “blading” is a term of art used by police to refer to when they believe persons are angling their bodies in such a way as to conceal something.
- I note that based on my findings of racism, this conduct would also likely amount to a violation of s. 15, although not litigated. In Smith, at para. 40, Dawson J. observed that counsel could not conceive of a situation in which a finding of violation of s. 7 of the Charter on the basis of racial profiling would not also result in a violation of s. 15 of the Charter.
- Further s. 10(b) rights should be provided before questioning. On arrest, the officer told the accused he was under arrest for assault.
- An oral bottom line ruling was given to the parties on January 14, 2026 with reasons to follow.