CITATION: R v. Green, 2026 ONSC 354

COURT FILE NO.: CR-19-1391

DATE: 2026-01-19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

R. Moir and N. Hassani, for the Crown

Crown

• and -

GREEN, Jervain

A. Newman, for the Defence

Defendant

HEARD: August 11, 12, 13, and 14, 2025

CHARTER MOTION RULING

Mirza J.

OVERVIEW

1Jervain Green is charged with committing four firearm offences contrary to ss. 92(1), 95(1) and 108(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46 on January 20, 2018.

2The allegations pertain to a police traffic stop that escalated to criminal charges after a loaded prohibited firearm was discovered.

3Mr. Green’s trial proceeded judge alone with a blended ss. 7, 8, 9, and 10 Charter application.

4The Crown did not bring a voluntariness application in relation to the accused’s statements to the police and therefore agreed that they are not admissible to prove the elements of the offence. The purported conversation between the police and accused is admissible for the limited purpose of the Charter application for narrative and police decisions.

5The Defence conceded that the offences have been proven beyond a reasonable doubt subject to the determination of the Charter application.

6For the reasons that follow, the ss. 7, 8, 9 and 10 Charter application is granted and the evidence is excluded pursuant to s. 24(2).

SUMMARY OF THE EVIDENCE

Overview

7On January 20, 2018, Mr. Green was driving a vehicle in a residential area and detained by Constable Qadree for a purported traffic violation after he exited the vehicle. As I will explain, it was contested whether Mr. Green was aware the officer had sought to stop him for a traffic investigation until after he exited the car to walk towards a home.

8Constable O’Connor arrived a short time after and assisted during the arrest.

9During the detention, the accused was taken down to the ground and restrained with the use of a taser.

10Then Officer Deston attended the scene to secure the firearm.

11I will summarize each of the officer’s evidence. Within that summary, I will mention some of the material differences in their testimonies.

Abdul Qadree

12Mr. Qadree worked with the Peel Regional Police from 2013 to 2020. He worked in uniform patrol. He is no longer a police officer. For the purpose of the summary of his evidence pertinent to the trial, I will refer to him as Constable (Cst.). He was the lead investigator that arrested the accused.

i) Remote testimony application

13The Crown brought a pre-trial application for Cst. Qadree to testify remotely pursuant to s. 714.1 of the Criminal Code on the basis that he lives in the Windsor area and recently had a child. The motion materials stated that his personal circumstances required him to remain home to support his wife. The Defence contested the application.

14However, during the remote testimony application, Cst. Qadree testified that his primary reason for requesting to testify online was due to business commitments. He stated that it would be difficult for him to cancel appointments, as he regularly travels for work and is involved in “17” businesses. He said that when he is not travelling, he helps out at home.

15In his testimony, he acknowledged that he had received a subpoena and contacted the officer in charge, Officer Mandville, to request accommodation. He testified that he could not commit to being available on the days set for trial. During the hearing, it became apparent that the childcare basis for the Crown’s motion was not supported by Cst. Qadree’s evidence.

16It was clear that Cst. Qadree was not taking seriously that he was required to appear in person, testify pursuant to the subpoena, and therefore prioritize this court ordered duty accordingly.

17To resolve the issue on consent, the Crown and Defence consented to make efforts for Cst. Qadree to testify at a police station on an independent digital device and if that was not possible, he would be required to attend in person. Ultimately, Cst. Qadree testified in person.

ii) Trial Testimony

18Constable Qadree’s stated that on January 20, 2018, he was on patrol in a marked car in Malton.

19He was travelling eastbound on Brandon Gate in a residential area. He came to a four-way stop. When it was his right of way, he observed a driver in a 2012 silver Dodge Sedan vehicle in oncoming traffic (facing him) fail to come to a complete stop. This vehicle was previously behind another vehicle and instead of stopping at the stop sign when it is was their turn to do so, the vehicle proceeded consecutively with the vehicle ahead of it, contrary to traffic laws.

20Constable Qadree stated that the driver of the second vehicle noticed his police car while in the middle of the intersection and slammed on the breaks. The driver made eye contact with him and then continued to drive towards a townhouse complex on Brandon Gate.

21After observing the alleged traffic violation, Cst. Qadree made a U-turn to conduct a traffic stop.

22He described the driver as having longer hair in dreadlocks. When asked in cross-examination, he said that he noticed the colour of his skin, which he described as not Black but light brown. He said that his attention was to the suspect’s action and not his expression or facial features. He did not notice a tattoo on his face.

23While following the dodge vehicle into the townhouse complex, Cst. Qadree ran the license plate and notified dispatch that he was going to conduct a traffic stop.

24Constable Qadree reached for his radio to advise dispatch that he was going to conduct the stop. He said that he usually notified dispatch that he was about to conduct a traffic stop. Constable Qadree noticed that when he activated the emergency lights, the vehicle was not stopping.

25In cross-examination, he said that he did not know that the car was registered to a female until after speaking to the accused. However, he agreed that he said at the preliminary inquiry that, when running the plate, the police computer returned information that it was a vehicle registered to a female. He explained that information did not factor in to his choice to conduct the stop.

26He stated that the vehicle slowed down but continued to drive North into a townhouse complex. In cross-examination, he was asked whether the vehicle slowed down because it was entering the complex and approaching a roundabout. He disagreed with that suggestion.

27I pause here to note that Cst. O’Connor, who later attended the scene, testified that the radio call by Cst. Qadree did not include plate or location information and that this lack of detail contributed to Cst. O’Connor’s view that Cst. Qadree was stressed and concerned. Cst. O’Connor did not state that officer Qadree indicated that the person he was dealing with was not co-operating. Officer Deston said that he rushed to his car to see Cst. Quadree’s location when Cst. Qadree said he was with a vehicle because he believed Cst. Qadree had not said his location and he mentioned the person he was dealing with was not being cooperative.

28In cross-examination, Cst. Qadree was asked about Cst. Ho Sue’s notes, purportedly referencing the information that he told him later. The notes said:

“stop sign as we about to make left on monica drive; breaked abruptly”

29Constable Qadree disagreed that he (or the accused) was about to make a left turn. He said that he remembered that the accused was trying to follow the vehicle ahead.

30He said that he saw a single person in the Dodge car, rolling, and there was some movement by the accused in the vehicle when it stopped. He said that this made him feel uneasy. He said that he told dispatch to stand by.

31He kept his eyes on the driver. He pressed his vehicle horn. He said this continued for 30-45 seconds. In cross-examination, he was challenged that the actual sequence was that he put on sirens and lights after the vehicle came to a stop at the curb. He disagreed and said that he remembered that he did it earlier.

32The vehicle came to a stop after about 30 seconds and pulled over next to a curb. The driver parked on the left side of the road near a green space, not the right side, where the town homes were situated. Constable Qadree thought that his behaviour was suspicious, driving slowly and moving around inside, as if he was buying time.

33Constable Qadree said that he stopped behind the vehicle and got out of his cruiser. He said the driver of the Dodge vehicle exited and started casually walking away. Constable Qadree demanded that he get back into the Dodge vehicle.

34I pause here to note that he did not explain why he would want the accused to return to the interior of the vehicle when he earlier said he thought his movements inside were suspicious.

35Constable Qadree stated that the accused immediately became belligerent and began cursing. Mr. Green repeatedly kept saying the car was his girlfriend’s car. Constable Qadree said that the accused made an utterance about the officer’s emotions, but did not explain this further.

36Constable Qadree said that accused’s behaviour heightened his awareness and made him feel uneasy. He said that the accused was wearing baggy clothing and a jacket. Constable Qadree said in cross-examination, that he did not recall the length or type of jacket that the accused was wearing, nor whether the jacket extended to the mid-thigh.

37Constable Qadree ordered the accused to return to the vehicle and sit down. He agreed that he had detained the accused.

38The accused returned to the car and sat down with his legs and feet out the open car door. He said that he tried to calm the accused down through communication but the accused told him that he needed to calm down. He said that the accused’s behaviour made him nervous.

39Constable Qadree said that he repeatedly instructed the accused to show his hands. He did not state that he explained to the accused the reason for the detention.

40Constable Qadree said that he knew dispatch was aware that he was conducting a traffic stop, so he ceased communications for a minute at least.

41Constable Qadree decided to go to the back of the Dodge vehicle because he wanted to read the license plate to dispatch. While doing so, he saw the accused reaching into the car, which made him nervous, so he came back. In cross-examination, he was asked that dispatch could have relied on the plate he ran moments earlier. He said his training is to read out the plate to dispatch as soon as possible.

42Dispatch asked for his location, but he did not feel safe going into his car to look on the map. Instead, he asked that they map him. He said that he did this because the driver was making him nervous.

43He explained that he did not feel safe because the accused was concealing his hands and acting unusual. He could not say if the accused had put his hands in his pockets.

44He stated that in police college, they teach officers that “hands kill”. He was concerned that the accused would not make eye contact. Every time he said to the accused let me see your hands, the accused would ignore the demand as if he was looking for an escape route. He was concerned that the accused was reaching for a weapon. He thought that the accused was sizing him up. He said his behaviour was not normal and made him feel unsettled.

45Constable Qadree testified that he repeatedly asked the accused for his name and identification but each time the accused responded that the vehicle was his girlfriend’s car, he was home now, and he did not need to give the officer anything.

46Constable O’Connor arrived moments later. Constable O’Connor testified that he did not speak with Cst. Qadree about what was going on at all when he arrived. Constable Qadree did not state that he informed Cst. O’Connor of any background information about the reason for the stop, the accused’s behaviour or conduct that caused him to be concerned for his safety.

47In cross-examination, Cst. Qadree agreed that for a traffic stop, it was typical to ask for license and registration. He denied that the accused was moving to provide this, and said that the accused continued to say that he did not want to give his license because the vehicle belonged to his girlfriend. Cst. Qadree said that he was not intending to arrest him even if he gave his identification. He just would have given him a ticket for the traffic violation if he had identified himself.

48Constable Qadree said that the accused’s hands were still hidden. Since there was another officer present, he told the accused that he was under arrest for failing to identify himself.

49Then he decided to take control of the accused’s hands and he intended to identify him once it was safe.

50Constable Qadree stood on the accused’s right side. He said that when he stood up and had the accused’s arm, the accused said, “Ok I will give you my ID.” Prior to that, he was adamant that he would not. Constable Qadree said that he had significant safety concerns at that point.

51He took the accused’s right hand and turned the accused’s body to face the vehicle. He said he was unsure whether he took the accused’s hand from his pocket. As soon as he brought the accused’s hand back, that is when the accused resisted and a fight started. He said that he believed that the accused was dangerous.

52In cross-examination, he agreed that he still did not tell Cst. O’Connor that he had concerns that the accused was dangerous. He explained that the interaction was a matter of seconds. He also stated that he did not express his concerns because he did not want to give the accused clues and he had to keep the situation calm.

53During this time, Cst. O’Connor was positioned on the accused’s left side.

54Constable Qadree said that as soon as he brought the accused’s right hand to his back, Mr. Green pulled his right hand away and started reaching for his waist area. He disagreed with the suggestion that the accused was merely bracing himself as he was being pushed up against the vehicle.

55Constable Qadree stated that he knew that the accused was possibly reaching for a lethal weapon, and so he punched the accused’s hand to control him. He explained that his head was at the accused’s waist area and he was trying to grab his hands. He described that it was a blur and then he felt a pull after which could see where the accused was reaching. He could see that there was something black in that area. When he got pulled, he heard a bang on the concrete and saw a gun on the ground.

56Later, he described the gun as black with silver metal and slightly shaved off. He said this was a flashback memory. He explained that it is not often that you see a gun at a traffic stop.

57At this time, he reached for his radio and said, “he’s got a gun”. He could not reach the gun because he was still fighting with the accused on the ground.

58Constable Qadree stated that his concern was that if the accused gets up and reaches for that gun now, “we’re gonna leave this situation.”

59He testified that while trying to keep an eye on the gun, he deployed his taser and tased the accused. Constable Qadree was asked which officer applied the handcuffs, but he could not remember. He stated that after he tased the accused, he was able to get him in handcuffs.

60He said that Cst. O’Connor assisted in taking the accused down and arresting him.

61Constable Qadree was asked a number of questions about his purported use of the taser by the Crown. He explained the taser functioning: he said it has a trigger, and when you deploy it - if it lands on the body of the person you are pointing at - it activates and sends shock waves into the person.

62He was asked why he used the taser. He specifically said that he used his taser because he knew there was a gun, and the accused was a larger individual. He did not want to risk the accused reaching for the gun and stated that he wanted to avoid using lethal force. He noted that the gun was within two arm’s lengths.

63In cross-examination, he said specifically that his use of the taser stuck out in his memory. He stated that he had used a taser in the past. Furthermore, the decision to use the prongs feature of the taser rather than the drive-stun was a split-second decision that he made because he wanted to prevent the accused from obtaining the firearm.

64He explained that he is not required to inform his supervisor when he uses a taser.

65He was shown his use of force report and stated that it was honest. In the report, he did not indicate that he had used a taser. However, when confronted with his written use of force report that has a specific section about taser usage, (and “reason taser not effective”), and the absence of an indication that he used a taser, he explained that he knew that a taser was used and it could have been Cst. O’Connor, but the incident occurred eight years ago and was a stressful situation with a lot going on. He had not reviewed his use of force report put to him again before testifying.

66He then explained that he mistakenly testified earlier that he used the taser because he thought he remembered using the taser, and it was mentioned in his notes. He acknowledged that he did not remember all the times that he had used a taser but did claim to remember this incident.

67He said that his memory was that the accused reacted to the taser being deployed. After it was used, they were able to cuff and control him.

68He said it’s possible that the accused screamed. He believes that he remembered him making a sound.

69He did not remember whether the taser probes punctured the accused’s skin. He agreed that the probes would make contact with the skin and go through.

70He said the first time he saw the firearm was while on top of the accused.

71When audio of the dispatch was played and it was suggested it captures the accused screaming, he said it was hard to say whether the accused screamed in reaction to the taser and suggested that it could be static noise, not a scream. When it was suggested to him that the accused screams about 20 seconds after he said there was a gun, he responded that the taser was deployed much earlier than 20 seconds from when he saw the gun.

72When asked about what Cst. O’Connor was doing, he said he could not say what he was doing but agreed Cst. O’Connor was using hard force. He could not confirm whether Cst. O’Connor was on top of the accused. Constable Qadree did not mention that Cst. O’Connor used his own taser, or how it was used despite them working together to arrest the accused.

73He did not recall whether the accused kicked or punched him. He said that during the altercation, it was hard to know, but the accused was not being “gentle with us”.

74He said that other civilians were gathering around. In cross-examination, he denied that he knew the area was a lower socio-economic neighbourhood with a large Black population. He stated that he was not familiar with the townhouse complex and that most of his patrols were conducted in Brampton.

75He said that another police officer attended the scene but he did not remember the officer’s name. He thought it was Officer Cippolini.

76After handcuffing the accused, he took him near the cruiser and conducted a search incident to arrest, during which he located marijuana in the accused’s jacket.

77While in the cruiser, he read the accused his rights to counsel for the firearm offence and marijuana possession from his notebook at 1:01 p.m. He said that the accused understood each part of the rights and caution and expressed that he wanted to speak to a lawyer. The accused stated that he was not going to use the gun against the officers.

78He described that it took about twenty minutes to get to the station. At 1:32 p.m., when back at the station, duty counsel was contacted. There was not much communication in the vehicle. He said that the accused was making comments on the way on his own. At 1:57 p.m., duty counsel called back and spoke with the accused.

79Constable Qadree did not recall how he identified the accused. It may have been that he compared his photo and vehicle computer information. He served the accused a Provincial Offences Notice for failing to stop while the accused was in the police station cells.

80Constable Qadree wrote an entry in his notes while at the police station that summarized the interaction. In cross-examination, he agreed that the officers debriefed later. At 16:03, he wrote the event as a lead summary note.

81He said that this entry included all the content of the interaction leading to the stop of Mr. Green. It was made five hours later, and an hour after being briefed.

82He explained that this entry in his notes included everything about what occurred from 12:53 p.m., when he first saw the car, to the time of grounding the accused.

83He said that he did not remember exactly who was present at the briefing. He recalled Officers Ho Sue and Mandville but did not recall if Cst. O’Connor was there. He rejected the suggestion that his notes could be inaccurate because he waited five hours after before writing the summary. He said that he had other stuff to do, but the event was fairly fresh. He stated that after they did their notes, he may have spoken to Cst. O’Connor. Since then, he has not spoken to him in five years.

84He said that he learned later that Officer Deston had been at the accused’s brother’s house earlier but claimed this was a coincidence. He denied that the accused was the target of an investigation for criminality.

85He denied that he would have acted differently if the accused had been a white person.

Constable. Tyler O’Connor

86Constable O’Connor has been with the Peel Regional Police since September 2015.

87He testified that on January 18, 2020, he became involved at 12:53 p.m., when he heard Cst. Qadree over the radio advising that he needed another unit to his location. Constable Qadree did not provide his location or other information such as vehicle license plate. Constable O’Connor used his mobile computer to find the location of Cst. Qadree.

88Constable O’Connor thought that Cst. Qadree sounded stressed. He said that Cst. Qadree was abrupt when asking for another unit and did not give details, which he found unusual since he had worked with him for three years.

89He saw that he was at 3525 Brandon Gate, a townhouse complex in Malton. He drove to the location. He said that Malton is small, so it took him about 30 seconds. In cross-examination, he stated that he was in the area but not doing an investigation.

90He pulled up and observed a silver Sedan facing northbound. Later, he explained that within the complex, the car was on a laneway that runs North and South. It was on the left side.

91Constable Qadree was at the driver’s side door. He saw the accused’s two legs facing outward toward the curb from inside the vehicle.

92Constable O’Connor walked up from behind and stood behind Cst. Qadree, who was speaking to Mr. Green and asking for identification. Mr. Green was asking why. Unlike Cst. Qadree, he did not describe the accused as yelling or being hostile to Cst. Qadree.

93Constable O’Connor said in cross-examination that he did not speak to Mr. Green or Cst. Qadree. He did not indicate that Cst. Qadree told him anything about his perception of danger regarding the accused. There was no information conveyed to Cst. O’Connor and he did not ask for any information.

94Constable Qadree then told Mr. Green that he was under arrest for failing to identify himself and instructed him to exit the vehicle.

95Mr. Green exited the vehicle. Constable Qadree held him by the shoulder and placed him at the rear driver’s side. Constable O’Connor was on Mr. Green’s other side, near the driver’s door. He described Mr. Green as wearing grey sweatpants.

96Mr. Green had his left hand in his left pocket. Constable O’Connor removed Mr. Green’s hand and placed it on top of the vehicle. Mr. Green then “pushed off” Cst. Qadree to get his right arm free. Both Cst. O’Connor and Cst. Qadree told Mr. Green to stop resisting.

97Constable Qadree said Mr. Green’s right hand was at his waistband. However, Cst. O’Connor said that at that time he did not see that movement because he was focused on Mr. Green’s left side. Mr. Green then used his right hand to push Cst. Qadree off again, leaving only Cst. O’Connor on his left side. He said that Cst. Qadree kept saying, “He’s reaching for his waistband.”

98Constable O’Connor said the situation was chaotic. Once Cst. Qadree got on his right side again, they pulled on Mr. Green’s arms and used their body weight to put him on the ground. In cross-examination, he disagreed that the accused could have been bracing himself.

99He said that he did not think Mr. Green was armed and dangerous before the interaction.

100Constable O’Connor was on Mr. Green’s back, trying to handcuff him. Constable O’Connor had his left and right legs kneeling over Mr. Green’s left leg and was holding onto his left arm.

101In cross-examination, Cst. O’Connor said that he was on top of Mr. Green, he believes in a parallel position. He was focused on securing his left arm and could not see Cst. Qadree’s position or location.

102He said that the incident was seven to eight years ago, so he did not want to be held to a number of seconds but surmised it was 5 to 10 seconds once the arrest was made that he saw Cst. Qadree again.

103He described that Mr. Green’s left arm was underneath his own body. He was trying to pull it out to cuff him. Constable Qadree yelled out that he had located a firearm. He said “gun”.

104Constable O’Connor said his senses were heightened, and he found Mr. Green’s actions of resisting and reaching for his waistband to be alarming. Based on his understanding of s. 25 of the Criminal Code once he gained control of Mr. Green’s left arm, he removed his taser to apply force to get compliance.

105While on Mr. Green’s back, he attempted to drive stun him with the taser because they were in close proximity. However, he mistakenly pressed the trigger and deployed the taser prongs, which went into Mr. Green’s leg. He said it had no effect, as Mr. Green continued to move. He stated that tasers do not harm people, unless the person has a health or heart condition, but he agreed with the suggestion that it causes pain. Constable O’Connor explained that the drive stun deploys for five seconds and allows the police to control individuals who are aggressive and assaultive.

106The use of the taser and that “dart missed” is reflected in Cst. O’Connor’s use of force report, which was filed as an exhibit.

107This evidence was different from Cst. Qadree’s, who initially said that he tased the accused and this contributed to gaining compliance as it was successful and effective. However, he later resiled from having used a taser, when he was confronted with his use of force report that did not indicate that he used his taser.

108When cross-examined on his use of force report, Constable O’Connor said that where the form indicates the last use of force, it is indicating the most recent qualification date. On his form that date was June 2, 2017. Constable O’Connor was asked whether he had previously used pepper spray before at Brandon Gate complex, and he denied it. He agreed that he had attended there before but he could not recall whether he had arrested anyone there.

109He also said that he was not aware of the accused’s brother prior to the incident, but did learn of him afterward. This area of questioning pertained to an investigation of the brother the same day.

110Constable O’Connor agreed that he had used a taser before in a different incident in March 2018, where the taser was deployed and hit the person’s back while they were wearing a coat and sweater. He was asked if that was why it was ineffective in that case, he responded that the person got away, so he did not know.

111He was then asked whether that person was a Black man, and he said yes. He stated the fact that a person is Black does not change his actions. He explained that he works in the diverse community of Malton and said that he is not aware that force is used disproportionately against racialized people by Peel Regional Police.

112He was confronted with Track 3 of dispatch audio and asked whether he heard a scream sound around the 39-second mark. He said that he heard yelling but did not know who it was. He did not believe it was the accused yelling. He said if the probes had worked, he would have indicated that in his use of force report. Constable O’Connor said that the use of taser by prongs was by accident and ineffective. If it did work on the accused, he would have indicated this happened and would have been questioned by the Staff Sergeant at the station. If something happened to the accused, he would have requested the assistance of a paramedic.

113He did not know whether the yell occurred at the same time the taser was used. Prior to the yell heard on the audio, Cst. Qadree can be heard stating, “he has a gun". He said that he recognized the audio.

114In cross-examination, Cst. O’Connor agreed that Mr. Green was not kicking, punching, biting, or headbutting. He also confirmed that Mr. Green did not cause any bruising or injuries to the officers.

115However, he stated that Mr. Green continued to move and fight. Eventually, the officers managed to get Mr. Green’s hands behind his back and place him in custody. Constable O’Connor did not recall whether it was him or Cst. Qadree that had handcuffed Mr. Green.

116Constable O’Connor assisted Cst. Qadree in searching Mr. Green. He said that nothing further was found, and Mr. Green was then placed in the cruiser.

117Then he went to the rear of the vehicle and found the firearm, which was proximate to Mr. Green.

118In cross-examination, he stated that he did not see the gun until after the arrest and did not observe anyone else touching it. He said that he could not be sure no one else had. He explained that the time between the arrest and locating the firearm was about 15 to 20 seconds. He also agreed that he was not looking around during the arrest.

119He put on gloves and ensured the firearm was safe. He said there was no bullet in the chamber but the magazine contained six gold bullets. At about 12:54 p.m., he placed the firearm in a paper bag and maintained continuity of it, then brought it to 21 Division for forensic testing. The interaction was quick, estimating it lasted 10 to 15 seconds from the moment he arrived.

120He recalled Officer Deston arriving but could not recall if anyone else attended. He noted that civilians were coming out of their homes because of the sounds of demands and arrest.

121Once inside the cruiser, Mr. Green was co-operative. Constable O’Connor did not provide Mr. Green with his rights to counsel. He also did not hear anyone else give Mr. Green rights to counsel or a caution. He said the only offence he heard mentioned was “failure to identify,” which he believed was under the Highway Traffic Act, R.S.O. 1990, c. H.8.

122He did not observe any injuries on Mr. Green, and no medical attention was offered.

123In cross-examination, Cst. O’Connor said that there was a debriefing at the station from 2:25 p.m. to 3:00 p.m.

124He said that Cst. Qadree was not present during the briefing. They would have gone one by one to speak to the Criminal Investigation Division (CID) officer. Constable Qadree went before him.

125Constable Qadree testified that he could not recall if both of them were present for the debrief.

126Constable O’Connor stated that he did not know the accused before this incident. He acknowledged that during the preliminary hearing, he had referred to the accused by his first name. He said that it was a simple mistake and clarified that they were not on a first name basis.

127He agreed that at the time that he grounded the accused, he had no reason to believe Mr. Green was armed or dangerous. Constable O’Connor was asked whether he would have grounded the Applicant if he had been a white man. He responded that he would have done the same thing regardless of whether the person was white or not.

128It was suggested to him that had the person he was arresting been white, he would have communicated with the person prior to engaging in physical arrest. He said that was incorrect.

129He denied the suggestion that he would have used de-escalation techniques if the person had been white.

130He also denied that he would have tried speaking to the person to de-escalate the situation, if they did not have dreadlocks. He stated that the accused being Black had nothing to do with the interaction.

Officer Michael Deston

131Officer Deston has been with the Peel Regional Police since 2010.

132He stated that at about 12:50 p.m. on January 20, 2018, he heard over the radio that Cst. Qadree was with a vehicle and requesting assistance.

133Officer Deston was close by at 7669 Kittridge and was aware that the accused’s brother lived there. He stated that he was not investigating the accused and described it as a coincidence that the two brothers were being investigated around the same time that night.

134He stated that Cst. Qadree had mentioned the person he was dealing with was not being cooperative. However, he did not think he was advised of the location. I observe that this was different from Constables O’Connor and Qadree’s recollections in that neither claimed Cst. Qadree said the person was not cooperating over the radio call.

135Officer Deston arrived at the scene at 12:55 p.m., and saw that Constables O’Connor and Qadree had the accused on the ground in the grass area and were handcuffing him to the rear. In cross-examination, he agreed that he noted Cst. Qadree was on top of the accused in the snow. He testified that he recalled both Cst. Qadree and Cst. O’Connor on top of the accused.

136He said that people from the community were coming out of their houses.

137Officer Deston located the firearm behind the vehicle and maintained safe custody. He stayed with it so that it was not taken. Constable O’Connor then took possession of it and proved it safe.

138Officer Deston stated that he did not have any contact with the accused and did not have any conversation with Cst. Qadree or Cst. O’Connor at all about what had occurred at the scene prior to his arrival.

139He did not observe any officer giving the accused his rights to counsel or caution, he himself did not give the accused any rights.

140He did not observe the officers using force on Mr. Green after he was safely in custody and handcuffed.

141Officer Deston testified that he was quickly relieved of his obligation to safeguard the gun by Cst. O’Connor and that his involvement was then dealing with the tow of the vehicle. He could not remember if he had prior dealings with the accused.

142He mentioned that, back in 2018, he thought the complex was known for criminality. A cellphone was located in the vehicle, along with a license plate registered to Jerome Green. He believed that he had prior dealings with Jerome before January 20, 2018, and may have conducted a CPIC check on the plate, but he did not recall. He left the scene at 2:08 p.m.

Jervain Green

143The Applicant, Mr. Green said that this incident was the first time he was arrested and the first time he was ever tased, making the event memorable.

144He said he was at the intersection of Monica and Brandon Gate at 1:00 p.m.

145He was using his girlfriend’s mother’s car, which he used about once a week. He said it was silver with clear windows. In cross-examination, he said he did not think he was insured to drive the car.

146He was wearing grey track pants and a mid-thigh length jacket. In cross-examination, he stated that he was 5’11” and weighed 180 pounds.

147He was living at 7669 Kittridge Drive in Malton with his father and brothers. He had lived there since high school.

148He was driving home from his girlfriend’s place, from the night before. He left her place to buy some weed (marijuana) from Woodbine Mall at 12:30 p.m. He was heading back to his girlfriend’s but stopped at his friend Joshua’s, in the Brandon gate complex, first. In cross-examination, he said this was at around 1:00 p.m. He agreed that had he smoked weed, he would have been impaired to drive afterward.

149He wore glasses for reading when testifying but was not wearing glasses that night.

150His plan was to eventually go back his girlfriend’s home for dinner. He said he was not in a rush.

151He described the four-way stop. He said that he knew the area and the stop sign, as he was there often. There was a van in front of him, though he did not recall the make of the vehicle. The van stopped about 15 meters in front of him. There was oncoming traffic. He said that before he reached the intersection, the van was already going through. He approached the stop sign. He saw a police car on his left, about to make a left turn. Then he saw the police car’s blinker turn off. The police car was at the stop sign about 1 to 2 seconds and did not turn. He looked up to see if it would proceed. It did not. He could see the officer was looking at him. He said he put up his hand (palms facing toward him) in a gesture, wondering if the officer was going left or what was going on. He understood that the officer had the right of way. He said the officer did not respond. As a result, he proceeded. He had been at the stop sign about 4 seconds. In cross-examination, he denied that he failed to stop and then slammed on the breaks when he saw the officer.

152He drove into Brandon Gate complex and pulled over to the side of the curb. He put the car in park and turned it off. He said he was driving at about the speed limit of 40 km/h or a little less. He slowed to make a right turn.

153He said that he did not hear a siren or see police lights while driving. It was only when he pulled over and parked that he became aware of them. He denied suggestions to the contrary put to him in cross-examination that he saw the sirens and heard the honking while driving.

154He pulled over beside the curb near his friend Joshua’s home, whom he was going to visit to smoke marijuana. He said that as he walked from his car, the officer who was out of his own vehicle, shouted at him to get back into his vehicle. He denied that he was moving around in the car before being stopped.

155Around this time, is when he saw the police lights on and heard honking. He walked back to the car with his hands up and palms out.

156He was confused and wanted to ensure that Cst. Qadree knew that he was not a threat. He was calm and asked the officer what was going on.

157The officer did not tell him why he had to return to the car. He stated that he was out of the car for about 4 seconds before being ordered to go back. In cross-examination, he denied that he tried to evade the police officer. He stated that as soon as he was asked, he returned to the car. He had walked four to five steps and then sat down with his hands on his thighs.

158When he returned to the car, he sat down because he wanted to know what was wrong. He offered to give his identification and started to reach for it but was told, “don’t move”. He did not put his hands in his clothing. He kept his hands in front of him. The car was off. He believed that when he was directed back to the car, the officer may want his identification. The officer went to the back of the car for a moment and then came back. In cross-examination, he denied putting his hands in his pockets. He said that he was not given a chance to identify himself.

159Then another officer arrived, and they grabbed a hold of him. Constable Qadree pulled him out of the car. He grabbed Mr. Green’s arms with both hands and pulled him out of the car. Then he pushed Mr. Green toward the left rear door of the car. Since Cst. Qadree was holding Mr. Green’s right arm, Mr. Green braced for hitting the car and flexed his arm. Then he felt punches to the back of his head. He was hit a few times.

160Next, he was dragged to the ground while still being punched in the back of the head. He was facing down, with his stomach and ribs on the concrete. On the ground, he was pinned down and then he was tased. The taser prongs hit his leg and lower back. He said it was painful and that he screamed for help. He stated that it was him screaming as heard on track 3 audio. In cross-examination, he said he was hit while his hands were behind his back. He was not sure if he was handcuffed when tased but that it was possible that he was handcuffed afterward.

161In cross-examination, he denied that he was aggressive or pushing off when arrested. He denied he was argumentative, fighting both officers or refusing to go down without a fight.

162He said he was hit multiple times on the left side of his ribs. One officer had his knee on his ribs making it hard to breath. It was painful.

163Mr. Green said that he recognized Cst. O’Connor from seeing him previously in the complex.

164He described that he did not move his arms or know where his gun was. He believed the gun fell out of his pocket while the officers had control of him and were grounding him. He heard the noise of metal hitting the concrete.

165He was placed in the cruiser and felt that his head and back were injured. He said he had two holes in his legs from the taser prongs and bruised ribs. In cross-examination, he said that he realized the injuries while in the holding cell. He stated that he was not asked if he needed medical help. He told Cst. Qadree that he did but he did not receive any. He thought that his request was sufficient because he had not been arrested as an adult before.

166In cross-examination, he agreed that he was not hit or tased further after the arrest. He agreed that he was told he was under arrest for firearm possession, taken to the station, and given an opportunity to speak to counsel.

167He described the complex as having a large Black population. At the time of the incident, he was 21 years old and had friends in the complex who had attended high school with him.

168In examination-in-chief, he acknowledged a photograph of the black gun seized as the one he was carrying on January 28, 2018. He said that he had it in his right pant pocket. He described the gun as relatively small in size, using his hand to measure, and stated that it was not visible when in his pocket. His jacket covered his pants. He said its weight was similar to the weight of the Bible that he held in court. In cross-examination, he agreed that he did not have a license to possess the gun.

169Mr. Green said that he did not pull it out and would not do so on a police officer.

170He stated that he carried the firearm for protection because people had made threats on his life, and he felt safer carrying it. He agreed that it had bullets in the clip. In cross-examination, he said that he did not feel safe in Scarborough either, where his mother lived. He denied that he was prepared to use the gun. He said that there is a big line between having it and using it. He said that he received the gun loaded and agreed that he had loaded and unloaded the gun. When pressed further in cross-examination, he said he was willing to use it if needed, but not on police.

171He had in his possession his keys and some money earned from labour work. It was $1,800. He also had some marijuana that he had bought earlier. His phone was in the cup holder of the car.

172He agreed that he had committed seven Highway Traffic Act offences in the past and before this incident, including careless driving. However, he denied being an unsafe driver.

Agreed Statements of Fact

173Two agreed statements of fact (ASF) were filed.

ASF #1:

174It is conceded that the .22 Caliber Jennings Model J22 handgun seized on January 20, 2018, in relation to this incident is a prohibited firearm.

175The ammunition seized on January 20, 2018, in relation to this incident is ammunition as defined in the Criminal Code.

176The .22 Caliber Jennings Model J22 handgun had the serial number scratched off and thus had been altered.

177Mr. Green was not licensed and had no legal authorization to possess the .22 Caliber Jennings Model J22 handgun, nor did he have authorization or any licenses allowing the possession of any restricted or prohibited firearm or ammunition.

ASF #2:

178The second ASF stated that Mr. Green agrees that he has 11 convictions for Highway Traffic Act offences. Seven of these convictions pre-date January 20, 2018, including one for careless operation.

POSITIONS

179Mr. Green claims that on January 20, 2018, Cst. Quadree was in his police vehicle and pulled him over without any valid justification. He denies committing a traffic violation or failing to identify himself. He submits that he was not given the reason for his detention nor was he given his rights to counsel or caution upon being detained. The Defence submits that the illegal detention led to an unconstitutional search. During his arrest, the Applicant was subject to unjustified use of force that included punching, grounding, and the use of a taser.

180The loaded prohibited firearm found by police, the marijuana found on the Applicant, and any utterances were obtained by the police in a manner which violated his ss. 7, 8, 9, 10(a) and 10(b) Charter rights.

181The Applicant further submits that the mistreatment was due to him being Black.

182The Respondent, Crown submits that the Applicant’s Charter rights were not violated. The court should accept the evidence that Cst. Qadree saw the accused fail to stop at the stop sign and then the accused refused to stop for the officer immediately. He then failed to identify himself. The accused was not arbitrarily detained or unlawfully arrested.

183The Crown submits that the testimony of Cst. Qadree was reliable and credible. Although there were external inconsistencies in his testimony, the reliability of his memory is sufficient for the court to rely on when determining the factual nexus for any findings.

184The Crown submits that the testimony of Cst. O’Connor was problematic. However, there are portions of his evidence that are corroborated between himself and Cst. Qadree which can be relied upon. His involvement is ultimately quite brief, and he is acting primarily as an assisting arresting officer. Although the court may take issue with his reliability or credibility, the impact of such a finding should not impact the facts found in relation to the Charter application.

185The Crown submits that the testimony of Mr. Green cannot be relied upon as credible and reliable. Mr. Green’s testimony asserts a degree of confidence in his memory of details which would otherwise be exceptionally miniscule but-for the Charter application before the court. Also, his characterization of the conduct of Cst. Qadree and Cst. O’Connor during the physical altercation (and the cause of that altercation) is inconsistent with uncontested facts surrounding their conduct towards him. The manner in which he frames his character as a victim in the context of this situation is inconsistent with his conduct.

186Officer Deston’s testimony was very brief. However, his testimony was reliable and credible and was unshaken in cross-examination.

LAW

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.

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.

Section 9: Arbitrary Detention

187In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44, the Supreme Court held that detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint.

188Psychological detention is established on an objective basis either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply: R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, at para. 57; Grant, at paras. 30, 44; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 26; Le, at paras. 25-26; R. v. Lafrance, 2022 SCC 32, [2022] 2 S.C.R. 393, at para. 21.

189A 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.

190The Supreme Court’s decision in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, 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.

191These circumstances include the extent to which the interference with individual liberty is necessary to the performance of the officer's duty, to the liberty interfered with, and to the nature and extent of the interference.

192In Chehil, at paras. 29-33, the Supreme Court explained that the total circumstances available to the police must be considered:

Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience: see R. v. Bramley, 2009 SKCA 49, 324 Sask. R. 286, at para. 60. A police officer’s grounds for reasonable suspicion cannot be assessed in isolation: see Monney, at para. 50.

While some factors, such as travelling under a false name, or flight from the police, may give rise to reasonable suspicion on their own (Kang-Brown, at para. 87, per Binnie J.), other elements of a constellation will not support reasonable suspicion, except in combination with other factors. Generally, characteristics that apply broadly to innocent people are insufficient, as they are markers only of generalized suspicion. The same is true of factors that may “go both ways”, such as an individual’s making or failing to make eye contact. On their own, such factors cannot support reasonable suspicion; however, this does not preclude reasonable suspicion arising when the same factor is simply one part of a constellation of factors.

Further, reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Much as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so.

Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion. As Doherty J.A. found in R. v. Golub (1997), 1997 6316 (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 751, “[t]he officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable”. This is self-evident. [Emphasis in original].

Section 8 and Warrantless Arrest

193In R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, at paras. 71-72, the Supreme Court explained the legal requirements of reasonable grounds and principles for a warrantless arrest:

The police have statutory authority to arrest a person without a warrant under s. 495 of the Criminal Code, R.S.C. 1985, c. C-46. The applicable part of s. 495 in this appeal, s. 495(1)(a), allows a peace officer to arrest a person without a warrant if, on reasonable grounds, they believe the person has committed or is about to commit an indictable offence.

The essential legal principles governing a warrantless arrest are settled:

1. A warrantless arrest requires subjective and objective grounds to arrest. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint (R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-51; R. v. Latimer, 1997 405 (SCC), [1997] 1 S.C.R. 217, at para. 26; R. v. Tim, 2022 SCC 12, at para. 24).

2. In assessing the subjective grounds for arrest, the question is whether the arresting officer honestly believed that the suspect committed the offence (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 17). Subjective grounds for arrest are often established through the police officer’s testimony (see, for example, Storrey, at p. 251; Latimer, at para. 27; Tim, at para. 38). This requires the trial judge to evaluate the officer’s credibility, a finding that attracts particular deference on appeal (R. v. G.F., 2021 SCC 20, at para. 81; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at para. 4).

3. The arresting officer’s subjective grounds for arrest must be justifiable from an objective viewpoint. This objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer (Storrey, at pp. 250-51; Latimer, at para. 26; Tim, at para. 24).

4. Evidence based on the arresting officer’s training and experience should not be uncritically accepted, but neither should it be approached with “undue scepticism” (R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 64-65). Although the analysis is conducted from the perspective of a reasonable person “standing in the shoes of the [arresting] officer”, deference is not necessarily owed to their view of the circumstances because of their training or experience (R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45 and 47; MacKenzie, at para. 63). The arresting officer’s grounds for arrest must be more than a “hunc[h] or intuition” (Chehil, at para. 47).

5. In evaluating the objective grounds to arrest, courts must recognize that, “[o]ften, the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete”(R. v. Golub (1997), 1997 6316 (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 750, per Doherty J.A.). Courts must also remember that “[d]etermining whether sufficient grounds exist to justify an exercise of police powers is not a ‘scientific or metaphysical exercise’, but one that calls for the application of ‘[c]ommon sense, flexibility, and practical everyday experience’” (R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 22, per Fairburn J.A. (as she then was), citing MacKenzie, at para. 73).

6. “Reasonable and probable grounds” is a higher standard than “reasonable suspicion”. Reasonable suspicion requires a reasonable possibility of crime, while reasonable and probable grounds requires a reasonable probability of crime (Chehil, at para. 27; R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1166). At the same time, police do not require a prima facie case for conviction before making an arrest (Storrey, at p. 251; Shepherd, at para. 23; Tim, at para. 24). Nor do the police need to establish that the offence was committed on a balance of probabilities (Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 114; see also R. v. Henareh, 2017 BCCA 7, at para. 39; R. v. Loewen, 2010 ABCA 255, 490 A.R. 72, at para. 18). Instead, the reasonable and probable grounds standard requires “a reasonable belief that an individual is connected to the offence” (MacKenzie, at para. 74 (emphasis deleted); Debot, at p. 1166). A reasonable belief exists when “there is an objective basis for the belief which is based on compelling and credible information” (Mugesera, at para. 114; see also R. v. Al Askari, 2021 ABCA 204, 28 Alta. L.R. (7th) 129, at para. 25; R. v. Omeasoo, 2019 MBCA 43, [2019] 6 W.W.R. 280, at para. 30; R. v. Summers, 2019 NLCA 11, 4 C.A.N.L.R. 156, at para. 21). The police are also not required to undertake further investigation to seek exculpatory facts or to rule out possible innocent explanations for the events before making an arrest (Chehil, at para. 34; Shepherd, at para. 23; R. v. Ha, 2018 ABCA 233, 71 Alta. L.R. (6th) 46, at para. 34; R. v. MacCannell, 2014 BCCA 254, 359 B.C.A.C. 1, at paras. 44-45; R. v. Rezansoff, 2014 SKCA 80, 442 Sask. R. 1, at para. 28; E. G. Ewaschuk, Criminal Pleadings & Practice in Canada (3rd ed. (loose-leaf)), at § 5:40).

7. The police cannot rely on evidence discovered after the arrest to justify the subjective or objective grounds for arrest (R. v. Biron, 1975 13 (SCC), [1976] 2 S.C.R. 56, at p. 72; R. v. Brayton, 2021 ABCA 316, 33 Alta. L.R. (7th) 241, at para. 43; Ha, at paras. 20-23; R. v. Montgomery, 2009 BCCA 41, 265 B.C.A.C. 284, at para. 27; Ewaschuk, at § 5:40).

8. When a police officer orders another officer to make an arrest, the police officer who directed the arrest must have had reasonable and probable grounds. It is immaterial whether the officer who makes the arrest personally had reasonable and probable grounds (Debot, at pp. 1166-67).

Section 8: Search Incident to Arrest

194In 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 122 (SCC), [1990] 1 S.C.R. 158, at p. 182; R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607, at para. 27; R. v. Caslake, 1998 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, and 104; and R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at paras. 49, 52.

195The right to search incident to arrest arises from a lawful arrest. This right is justifiable because the arrest itself requires reasonable and probable grounds or an arrest warrant. However, since the legality of the search is derived from the legality of the arrest, if the arrest is later found to be invalid, 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 10(a) and 10(b) - Rights to Counsel

196Section 10(a) requires that individuals be informed reasonably and promptly of the reasons for their arrest or detention. This is because a person must be told the reasons for 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 instruct counsel and thus exercise the s. 10(b) Charter right: R. v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869, at p. 888; R. v. Borden, 1994 63 (SCC), [1994] 3 S.C.R. 145, at p. 166.

197In R. v. Virk, 2025 ONSC 5790, at paras. 28-31, Stribopoulos J. helpfully 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 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 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 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.

198In 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 75 (SCC), [1989] 2 S.C.R. 138, at pp. 152-53.

199The 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: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 24.

200The rights to counsel are to be provided immediately upon arrest and without delay: Suberu, at para. 41.

201Before being questioned, and once detained, the police are required to provide an accused proper access to legal advice, including advice on whether and how to exercise the right to silence in the face of questioning, which itself includes “the benefits and drawbacks of co-operating” and “strategies to resist co-operation”: Lafrance, at paras. 75-76; see also R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 28.

202For the right to counsel to be effective, the detainee must have access to this advice before he is questioned or otherwise required to provide evidence: R. v. Manninen, 1987 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1242-43.

203Section 10(b) rights are described as “the single most important organizing principle in criminal law”: see R. v. P. (M.B.), 1994 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.

Section 7 and Excessive Force

204In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 38, the Supreme Court held 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. The Supreme Court acknowledged that police actions cannot be measured to a standard of perfection but must be assessed in light of the dangerous 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 found a s. 7 Charter breach based on the officer's repeated punches to Mr. Nasogaluak’s head and body including after he was pinned down on the ground, face down with two officers on top of him. The body blows broke his rib and punctured his lung.

205In R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, at para. 61, the Ontario Court of Appeal, stated that the onus is on the Applicant to show that the police have used force, then the burden shifts to the Crown to prove that 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: Davis, at paras. 76-78.

206Jarrett cites the dissent in R. v. Davis, 2013 ABCA 15, 295 C.C.C. (3d) 508, which was upheld by the Supreme Court: 2014 SCC 4, [2014] 1 S.C.R. 78. Davis was ultimately sent back to trial by the Supreme Court due to the impact of the trial judge’s legal error in misallocating the burden of proving that excessive force was used, onto the accused.

Remedy for Charter Breach: Section 24(2)

207Section 24(2) requires that evidence obtained in a manner that infringes the Charter rights of an accused be excluded from the trial 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”.

208The s. 24(2) analysis is an objective one, evaluated from the perspective of a reasonable person, and the burden to persuade a court that admission of the evidence would bring the administration of justice into disrepute rests on the party seeking exclusion: Grant, at para. 68.

209Section 24(2) is focused on maintaining the long-term integrity of, and public confidence in, the justice system. Accordingly, the exclusion of evidence under s. 24(2) is directed not at punishing police misconduct or compensating the accused, but rather at systemic and institutional concerns: Grant, at para. 70.

210The s. 24(2) analysis engages three lines of inquiry followed by a balancing assessment:(1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter‑protected interests of the accused; (3) society’s interest in the adjudication of the case on its merits; and then (4) balancing the assessments under each of these lines of inquiry. In Grant, at para. 140, the Supreme Court stated that “[t]he balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision”. Trial courts must evaluate each of the three lines of inquiry thoroughly. A cursory review of the Grant test prevents appropriate appellate review and transforms s. 24(2) from a contextual inquiry into a bright-line rule: R. v. McColman, 2023 SCC 8, 478 D.L.R. (4th) 577, at para. 55.

211Police dishonesty or misleading by the police aggravates the seriousness of a Charter breach and is properly considered in relation to the first Grant factor given the need for a court to dissociate itself from such misconduct: R. v. James, 2025 ONCA 213, at para. 44; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 26. The failure of the court to consider police dishonesty or understating its impact in the s. 24(2) assessment is an error: R. v. Lai, 2019 ONCA 420, 438 C.R.R. (2d) 1, at paras. 13-23; R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 100-3.

212The Applicant typically has the onus to establish Charter breaches on a balance of probabilities in relation to ss. 7, 9 and 10.

213Where the arrest the Crown is relying upon to justify the search incident to arrest is subject to a s. 9 challenge, the Crown will carry the burden on both of the overlapping ss. 8 and 9 claims and must prove that the arrest was legal: R. v. Gerson-Foster, 2019 ONCA 405, 437 C.R.R. (2d) 193, at para. 75; R. v. Lee, 2017 ONCA 654, 351 C.C.C. (3d) 187, at paras. 82-83; R. v. Brown (1996), 1996 1794 (ON CA), 47 C.R. (4th) 134 (Ont. C.A.); R. v. Besharah, 2010 SKCA 2, 251 C.C.C. (3d) 516, at paras. 32-35. When it is established that the police used force against a person, it is the state’s onus to justify that force was lawful: R. v. Murray, 2025 ONSC 4127, at para. 209.

ANALYSIS

Sections 9 Violation

214I accept the evidence of Mr. Green that he did not commit a traffic violation before being stopped. His evidence was credible on this point. His credibility and reliability about the interaction with Cst. Qadree at the stop sign was not undermined in cross-examination. While I do not accept all of his evidence such as the circumstances that he came to possess the firearm and that he did not necessarily intend to use the firearm in his possession, I accept the parts of his evidence pertinent to the initiation of the police stop.

215I accept that Mr. Green approached the four-way stop sign at the intersection of Brandon Gate and Monica Drive, after the van ahead was already driving through the intersection. While at the four-way stop sign, he saw a police cruiser across from him with its left turn signal on. Mr. Green stopped at the four-way stop. Given that it was clearly a police cruiser with the right of way, he waited at the stop sign for the police cruiser to proceed. The police cruiser turned off its left-hand turn signal and did not proceed. Mr. Green and the officer looked at each other and Mr. Green waited, expecting the officer to proceed. Once it was clear the officer was not proceeding, Mr. Green proceeded through the intersection.

216I find that Cst. Qadree waited for Mr. Green to proceed so that he could follow and detain him. After the observations at the intersection, Cst. Qadree notified dispatch that he was going to conduct a traffic stop, but the stop was not for that purpose but rather a criminal investigation. He knew that he was investigating a racialized male with dread locks. He knew that the vehicle was registered to a female because he ran the vehicle in his police database.

217Mr. Green drove into the Townhouse complex and slowed down when he entered the Townhouse complex because the speed limit is reduced and there are speed bumps.

218Constable Qadree observed Mr. Green pull over and exit his vehicle. Constable Qadree initiated the criminal detention and directed Mr. Green back to his vehicle.

219I find that Cst. Qadree detained Mr. Green for a criminal investigation without a reasonable suspicion that Mr. Green had committed any criminal offence. This detention was arbitrary contrary to s. 9 of the Charter.

220I do not accept Cst. Qadree’s evidence that Mr. Green committed a highway traffic violation by failing to fully stop at the sign and following the van into the intersection, abruptly stopping mid-intersection and making eye contact with Cst. Qadree. I also do not accept Cst. Qadree’s evidence that he promptly activated his cruiser lights and sirens and that Mr. Green refused to pull over and exit his vehicle.

Section 10a and 10b Violations

221I find that once detained, Mr. Green did not understand why he was being commanded to re-enter his vehicle and asked the officer why. I find that he was not told by Cst. Qadree that he was detained for a criminal investigation contrary to s. 10(a) of the Charter. He was also not told clearly that he had committed a traffic violation.

222Mr. Green returned to his vehicle and sat down with the door open so that he could communicate with the officer. His hands were visible to Cst. Qadree. He was prepared to provide identification but was told not to move his hands. I find that Mr. Green’s movements were not suspicious both while in the vehicle and after exiting and then returning, as described by Cst. Qadree. I find that Mr. Green did not put his hands towards his waist or try and hide them. I am satisfied that Mr. Green put his hands up, showing his palms to Cst. Qadree.

223Mr. Green went back to his vehicle as he was commanded to do. Despite being criminally detained, Mr. Green was not given the reason for his detention, or his rights to counsel contrary to ss. 10(a) and 10(b).

224Since I have found that this was a criminal investigation where the accused was clearly detained (arbitrarily), and I reject the officer’s evidence that there were safety concerns or operational obstacles to providing an explanation for the detention and rights to counsel, I find that the accused’s ss. 10(a) and (b) rights were violated during the totality of the detention.

225Constable Qadree’s evidence was not credible for several reasons.

226I am troubled by the following portions of his evidence and do not accept them as credible.

227Constable Qadree stated that he thought Mr. Green was acting suspiciously when he decided to stop him for the alleged traffic violation. He said that Mr. Green acted suspiciously by not stopping for 30 to 45 seconds after the police lights and sirens were implemented, driving slowly, moving around as if he was buying time and then exiting the vehicle and walking away.

228Since Cst. Qadree claimed that he was concerned by this point that Mr. Green was acting suspiciously by being evasive and moving around in the vehicle, it does not make sense that he did not convey any of these concerns to dispatch while he was still in the police vehicle so that police assistance would arrive properly informed. According to his evidence, this was a simple traffic stop and there were no emergency circumstances dictating that he could not provide that information. This was not a tense or fast-moving situation. Mr. Green exited the vehicle and at that point it was for a failure to stop traffic infraction.

229Further, Cst. Qadree says that as the interaction continued, he increasingly became concerned about the accused’s behaviour and therefore his own safety. Yet, he never conveyed any concerns over the police radio, and notably he did not share any of that important information with Cst. O’Connor when he arrived. It is not credible that Cst. Qadree would not tell the assisting officer what had happened that justified the detention and safety concerns, if they were valid. As I will explain further, Cst. Qadree used dramatic language to describe the danger to officers when a suspect does not show or hides their hands yet there was no discussion with his colleague. I note that Cst. O’Connor said that he did not know what had happened when he attended, which as I will explain I also find is not credible in the circumstances.

230I also do not accept Cst. Qadree’s evidence that he knew dispatch was aware that he was doing a traffic stop so he ceased communications for a minute at least, despite having escalating safety concerns. In the context of the officer’s claims of safety concerns, especially while he was alone, this decision to cease communications is not credible.

231Constable Qadree’s evidence was that the accused was posing a danger. In addition to alleging unseen movements that caused him concern, he stated that Mr. Green immediately became belligerent, cursed and made an utterance about the officer’s emotions. Then, Constable Qadree ordered him back to the vehicle, where he had previously been concerned that Mr. Green was moving around and acting suspiciously.

232It is important to put this characterization of the accused in the context of Cst. Qadree’s description of the events. He said that he did not feel safe because he felt that the accused was concealing his hands and acting unusual. He even said that in police college, they teach officers that “hands kill.” He was concerned that the accused would not make eye contact. Every time he said to the accused “let me see your hands”, the accused would ignore the request, as if looking for an escape route. He was concerned that he was reaching for a weapon and sizing him up. He described the accused’s behaviour as abnormal and unsettling.

233He stated that he repeatedly asked the accused for his name and identification, but each time the accused responded that “it’s my girlfriend’s car and I’m home now, and I don’t need to give you anything”. He said the accused’s hands remained hidden.

234Given the officer’s total description of the Applicant, the police evidence about the absence of information about these perceived sources of suspicion and safety concerns shared by Cst. Qadree with dispatch and the other officers arriving to assist, is not credible. I also find that Cst. O’Connor contradicted Cst. Qadree that the accused was acting belligerent, at least by the time that he attended to assist which was before the arrest.

235I do not accept Cst. O’Connor ’s evidence that, due to Cst. Qadree’s lack of detail in his communications, he believed that Cst. Qadree was stressed and concerned. Despite claiming he had this concern about his colleague when driving over, Cst. O’Connor said that when he arrived, he did not ask Cst. Qadree for any information about the stop or the interaction or they did not talk about it. This is despite stating that he was concerned that Cst. Qadree was in a stressful situation.

236It also does not accord with Officer Deston’s evidence that Cst. Qadree relayed that the accused was not co-operative. This is externally inconsistent with both Cst. Qadree and O’Connor. Yet, Officer Deston also said that when he arrived, he also did not ask either officer what happened. This is despite a gun being recovered and his understanding of the context. The total purported silence amongst the three officers about what precipitated the detention and what was going on when each arrived - is not credible. On any of the officer’s version, it does not make sense that none of them would ask (or be told) what was going on when they arrived given each of their respective alleged safety concerns. Even if it were true, then it raises concerns about the absence of information being communicated transparently to the accused about the actual basis for the detention.

237Constable Qadree’s claim that the accused was not showing his hands, and that this signaled imminent danger, would clearly be urgent information to convey to Cst. O’Connor and provide a basis to communicate a criminal detention was being conducted. Yet, Cst. Qadree stated that he did not express any concerns to Cst. O’Connor, even after deciding to arrest the accused for failing to identify.

238I do not accept the explanation that he did not say anything to his colleagues, because he did not want to give the accused “clues” and needed to keep the situation calm. This explanation is not credible given how Cst. Qadree explained his perception of the accused already being hostile.

239I am satisfied that officer Qadree presumed criminality and treated the accused based on this assumption. He was then assisted by Cst. O’Connor in the unlawful detention and arrest, where there were s. 10 breaches.

240I also do not accept that Cst. Qadree was unsure of his location and did not return to the cruiser due to safety concerns. In cross-examination, he said that he did not intend to arrest the accused if he provided identification; he would have issued a ticket.

241Further, Cst. Qadree said that during the arrest, where the accused was allegedly resisting and using force, he knew the accused was possibly reaching for a lethal weapon and so he used force to control his hand. He said his head was at the accused’s waist area and he was trying to grab his hands. Yet, at no time did he say to Cst. O’Connor, who was positioned on the accused’s left side, that he was concerned the accused was armed or reaching for a weapon. Constable O’Connor testified that there was no mention by Cst. Qadree of a possible firearm or the Applicant reaching. This is not credible, given the paramount officer safety concerns claimed by Cst. Qadree to justify the suspicion, detention, and arrest.

242While I recognize that these interactions are often rapid, fluid, and dynamic, the absence of any reasonable communication over radio or between officers consistent with the dire circumstances they described, is not credible.

243After the gun fell, Cst. Qadree reached for his radio and said, “he’s got a gun”. This was the first time any grave concern about the accused was communicated to dispatch on the record before me. As I have already explained, I do not accept that Cst. Qadree’s claimed omissions were true or implied to his assisting officers he had concerns.

244He could have communicated over the radio regarding any of the preceding alleged concerns but did not. I find that this is because those concerns did not exist until after the gun was located.

Section 8 Violation

245The arrest of the Applicant was unlawful in the total circumstances. The accused was arrested for failing to identify for a traffic violation that I find did not occur. I find that he was searched as part of a pre-text criminal investigation without reasonable grounds to believe he had committed an offence justifying the arrest.

246This was a pre-text stop for a criminal investigation leading to an unlawful arrest and takedown involving a search, that resulted in the firearm being located. The investigation was for criminality at the outset without the requisite grounds.

Section 7 Violations

247I find that the use of force of a taser to effect the arrest of the accused was without reasonable justification. The detention and arrest were unlawful and cannot justify this use of force on these facts. Cst. Qadree’s explanation was not credible. Cst. O’Connor’s explanation also is not accepted.

248I do not accept Cst. Qadree’s evidence with respect to the use of the taser. It was dishonest and symptomatic of a deliberate mischaracterization of the total interaction.

249The officer’s evidence was inconsistent and dishonest.

250Constable Qadree stated with confidence in examination in chief and initially in cross-examination that his use of the taser stood out in his mind. He described that this usage would have involved him specifically pulling the trigger to deploy the prong feature. He further stated that the decision to use the prongs rather than the drive stun taser feature was made in a split second, as he wanted to prevent the accused from reaching the firearm. It was a critical part of his description of the events leading to the arrest.

251He stated that while struggling with the accused and while trying to watch the gun that had fallen to the ground, he took out his taser and tased the accused.

252He explained that he used his taser because he knew there was a gun and the accused was a bigger person. He did not want to risk him reaching for the gun and he did not want to have to use lethal force.

253Earlier he said that this was a memorable incident because it involved a firearm.

254His explanation about the use of the taser fundamentally changed as cross-examination progressed. When confronted with his own use-of-force report, which indicated he did not use a taser, he altered his testimony and stated that he did not recall who used it, and only knew that it was used.

255While I recognize that the incident was from eight years ago and memories fade, the officer’s own earlier testimony was that the taser use stood out in his mind, he had used a taser before, and that it was split-second decision where the prongs were deployed. He essentially said that he had to use it to get compliance.

256The major shift in his characterization from having a clear memory of deploying the taser, to acceptance in cross-examination, after being confronted with his own use of force report, that he did not remember how it was used, demonstrates a willingness to mislead the court.

257Constable Qadree also said that the taser was effective. Constable O’Connor’s evidence directly contradicted Cst. Qadree’s on this important point.

258I find that Cst. O’Connor’s evidence was not credible on material points and I do not accept that the taser was a justifiable use of force in these circumstances. Constable O’Connor was not credible when he said that he did not speak with Cst. Qadree when he arrived about what was transpiring. In my view, the silence does not make sense, especially if the call for assistance was vague, causing him subjective alarm.

259I find that these comments about there not being communication between officers are deliberate attempts by the officers to avoid inconsistencies in their versions about the basis for the stop and search, and what if anything was communicated to the accused about the reasons for the detention and arrest.

260I do not accept Cst. O’Connor’s evidence that he did not believe that his use of the taser was successful because Mr. Green did not stop resisting from the prong of the taser. I find that the audio of Track 3 is consistent with Mr. Green screaming in pain from being hit by the taser prongs. Mr. Green was subdued shortly thereafter and that the situation de-escalated quickly after the taser was used.

261In combination, the officers evidence were inconsistent overall regarding who deployed the taser, whether it was deployed (on purpose or mistake using prongs) and its effectiveness in getting compliance. These are not minor inconsistencies due to the passage of time. It is important to recall that officers have a professional duty to take notes of their use of force and complete reports. They are used for disclosure and to refresh their memories.

262Also, both officers claimed to recall clearly what happened. Constable O’Connor put in his notes that the taser darts missed; while Cst. Qadree says they struck the accused and facilitated the arrest.

263I cannot accept the officers evidence. These were not honest mistakes in my view.

264I am also concerned that Cst. Qadree completed his notes about the lead-up to the interaction several hours later, around the time of the debrief involving other officers.

265Although not determinative, it is suspicious that Officer Deston was at the Applicant’s residence investigating the Applicant’s brother at the same time he received a call that the Applicant had been detained. This suggested some collaboration at some point, or alternatively at least that there was communication between the officers even after the arrest that was not explained.

266Again, none of the officers stated they spoke to each other about their interactions with the Applicant when they arrived. The total lack of communication between them is illogical and cannot be reconciled with the purpose of their attendance or their narrative of the investigation.

267Overall, I find that, for the reasons noted above, the officers’ testimonies respectively and in the aggregate are not credible. It is symptomatic of an after the fact justification for detaining the accused and using the taser as they breached his Charter rights.

Racial Profiling or Mistreatment

268I have turned my mind to whether this was racial profiling or racial mistreatment. I have considered the total circumstances carefully. I have found multiple Charter breaches and police dishonesty in the characterization of the events. This was a difficult record to assess on this important issue on this record.

269When the argument is advanced, mindful of the Applicant’s onus, a trial judge’s duty is to analyze the total interaction for indicia of the influence of racial mistreatment. The court must evaluate the existence of evidence of the influence of racism on discretionary decision-making, to determine if the officers’ mindset is illegitimate or contaminated by racism, whether conscious or unconscious: R. v. Dudhi, 2019 ONCA 665, 147 O.R. (3d) 546, at para. 62; R. v. Sitladeen, 2021 ONCA 303, 155 O.R. (3d) 241, at para. 54.

270I am concerned that Mr. Green, a racialized person was improperly detained and mistreated during the arrest. It is reasonably plausible that he was targeted and then mistreated at least in part because he is a Black man. There is an air of reality to the argument that this detention and arrest was racist. Cst. Qadree stopped the vehicle for a criminal investigation without grounds, and even if I had been persuaded that he had a traffic stop in mind, he treated this like a criminal investigation in relation to a racialized person.

271Where an officer has objective grounds to detain an individual, those grounds cannot justify that decision if they are tainted by any degree of racism. Sitladeen, at paras. 52; Dudhi at para. 52-53.

272Racial profiling refers to where certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of a racial group. Racial mistreatment is where the person is treated unfairly at some point during the interaction with the police because of their race.

273The police were not honest about their interaction and the accused’s Charter rights were violated in ways that disproportionately impact racialized people. Le, at para. 93.

274While factoring the above and the total circumstances, after careful consideration of the plausible indicia of racism influencing the stop or treatment of the Applicant, I am not satisfied on this record that it has been established on a balance of probabilities that racism influenced the police decision to stop or mistreat the accused, to any degree, either consciously or unconsciously: Dudhi, at paras. 59-63.

275That said, it is important to recognize that Mr. Green’s experience reflects that racialized people are disproportionately subject to improper police conduct during police stops. Le, at para. 80; R. v. Golden, 2001 SCC 83 at para. 83; and R. v. Grant, 2009 SCC 32 at para. 154; Procureur général du Québec c. Luamba, 2024 QCCA 1387 at para. 177.

276I pause here to note that if the legal test required the arresting police officers to justify that their conduct was not influenced by racism once it was shown by the Applicant that it was reasonably plausible (or there was an air of reality) that the stop was contaminated by racism, the officers would have failed. However, that is not the current state of the criminal and constitutional law. The legal burden is on an accused to prove it on a balance of probabilities. There is no section 15 claim that could require the court to consider the disproportionate impact of such stops.

277Although, I am deeply troubled by the arresting officers conduct, disregard for the Applicant’s rights, and dishonesty, and it is clear that this was a criminal investigation at the outset where presumptions of danger were made about the accused that were not reasonably grounded before the gun was found, there is the potential for other explanations that influenced the pre-text stop that was not fully explored on this record. This includes the police investigation of Mr. Green’s brother earlier that same evening and possible related interest in the prospect of criminal conduct by the accused. Also, presumptions about criminality regarding people in this neighbourhood may have also contributed to the police conduct.

278I have considered that these factors could reasonably intersect with racism and that an investigation could be both influenced by racism and connected to another interest in the Green family or this neighbourhood (either legitimate or illegitimate). However, in the end, in a close call, mindful of the Applicant’s onus, the record did not substantiate a finding of racism influencing police decisions during the interaction.

Section 24(2) Analysis

279The 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.

280There was a causal connection between the Charter breaches of the arbitrary detention, unlawful arrest, and unjustified use of force and the discovery of the evidence. The evidence was obtained in a manner that violated the Charter: Grant, at para. 71.

i) Seriousness of the Breaches

281The police dishonesty elevates the seriousness of the breaches and supports exclusion of the evidence because the court must disassociate itself from this grave misconduct: Harrison, at para. 26; R. v. James, 2025 ONCA 213, at para. 44.

282The stop, conducted without a reasonable suspicion, was blatantly a pre-text stop conducted in bad faith, contrary to s. 9.

283The arrest and search incident to arrest were the product of a pre-text stop to search for crimes and not for a purported traffic stop. The arrest and search were facilitated by unjustified use of a taser amounting to excessive use of force.

284The breaches of ss. 10(a) and 10(b) are very serious. The police deliberately failed to advise the Applicant of the reasons for his arrest or of his right to counsel immediately, as required by well-established jurisprudence: Suberu, at paras. 41-42.

285The ss. 10 violations are part of a larger pattern of systemic failures in this jurisdiction. Virk, at para. 82. Upon detention the officer did not give the Applicant rights to counsel in a timely manner, as required by well-established jurisprudence. This delay was not justified on the facts that I have determined: Suberu, at paras. 41-42. There was no reasonable justification for the breaches, such as dynamic circumstances, urgency or exigency. The police officer detained the Applicant and then aggravated the Charter offending conduct by unlawfully arresting him.

286This s. 10 failure is 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, 2025 at para. 82, citing at footnote 1 “reported cases over the past two decades reveal 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.”

287Charter breaches connected to systemic failures elevate their seriousness: Harrison, at para. 25.

288As the Court of Appeal emphasized: “[t]he law around s. 10(b) is clear and long-settled. It is not difficult for the police to understand their obligations and carry them out”: R. v. Noel, 2019 ONCA 860, at para. 34; see also Thompson, at para. 90; Virk, at paras. 28-31.

289The s. 7 breach, involving the physical and psychological integrity of the accused due to excessive use of force is serious. The officers tased the accused to facilitate an unlawful arrest. It caused pain and injury to the accused, that were dishonestly described.

290Overall, I find that the Charter breaches are very serious.

ii) Impact of the Breaches

291The impact of the Charter breaches on the accused supports exclusion. These Charter breaches violated the Applicant’s fundamental rights to be free from unjustified state intrusion, unlawful arrest and unreasonable search, to consult counsel without delay, and to security of his person and respect for his dignity: Le, at paras.152-54; Grant, at paras. 19-20; see also Harrison, at para. 31.

292This second line of inquiry under s. 24(2) asks whether the Charter breach “actually undermined the interests protected by the right infringed”: Grant, at para. 76; Le, at para. 151. This involves identifying the interests protected by the relevant Charter rights and evaluating how seriously the Charter infringements impacted those interests. The more serious the impact on Charter-protected interests, “the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute”: Grant, at paras. 76-77; Harrison, at para. 28; and Le, at para. 151.

293The impact of the breaches on the accused are serious. Being criminally detained without sufficient and legitimate justification entirely denies a person’s rightful expectation of liberty and therefore intrinsically injures their s. 9 interests. Thompson, at para. 101.

294Contrary to s. 10(a), the officers failed to fairly inform the Applicant of the reasons for his detention and arrest in a timely manner, so that he could be reasonably informed to make voluntary decisions regarding whether or not to comply: R. v. Roberts, 2018 ONCA 411, 360 C.C.C. (3d) 444, at para. 63.

295The breach of s. 10(b) rights to retain and instruct counsel without delay upon detention or arrest, and to be informed of that right denied the Applicant the opportunity to obtain legal advice about how to exercise their rights relevant to their legal situation: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 21; R. v. Wong, 2015 ONCA 657, 127 O.R. (3d) 321, at para. 77. This core legal right helps ensure that a detainee’s choice to speak to the police is free and informed and guards against the risk of involuntary self-incrimination: Suberu, at para. 40; Sinclair, at para. 25; and Wong, at para. 77.

296By violating the Applicant’s s. 10 rights, the police breached “the single most important organizing principle in criminal law”: see P. (M.B.), at p. 577; LaFrance, at paras. 96-97; see also Grant, at para. 95.

297There was a causal connection between the arbitrary detention, unlawful arrest and search, and the evidence obtained that elevates the impact of the breaches on the accused. The evidence seized would not have been obtained unless the accused was arbitrarily detained, and unlawfully arrested: Grant, at para. 122.

298This was a purported traffic stop that escalated based on a false narrative of the accused acting suspiciously warranting an arrest for failing to provide identification.

299The excessive use of force to enable the unlawful arrest and unreasonable searches to discover the evidence was injurious to the Applicant’s physical and psychological dignity. The pain endured and confirmed on the audio from the unjustified taser use is not trivial or insignificant. People should not be tasered during an unlawful arrest.

300I find that the negative impact on the Applicant’s total Charter interests was serious and supports a finding that the admission of the evidence would bring the administration of justice into disrepute.

iii) Society’s interest in adjudication on the merits

301I find that although a gun was recovered which weighs in support of inclusion to ensure serious crimes are adjudicated on the merits, the overall analysis of this part still favors exclusion of the evidence.

302In considering society’s interest in adjudication on the merits, the court must step back and consider society’s long-term interest in preserving the repute of the administration of justice: Le, at para. 158.

303This inquiry asks whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence or by its exclusion: Grant, at para. 79; R. v. McSweeney, 2020 ONCA 2, 384 C.C.C. (3d) 265, at para. 81. Stated differently, would upholding the Charter rights and excluding the evidence exact too great a toll on the reputation of the administration of justice.

304Reliable evidence of a loaded gun that is critical to the Crown’s case will pull towards inclusion: Harrison, at paras. 33-34; R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 62; and McSweeney, at para. 81.

305Gun crimes are a serious problem in the Peel region that put public and police safety in jeopardy. I recognize that the public will want these serious charges that threaten safety and victims to be adjudicated on their merits.

306Excluding the evidence in this case will result in the Crown being unable to proceed with the prosecution. This is a severe consequence, given that the safety and public interests are high.

307However, it was avoidable had the police not conducted themselves in this manner during the incident and in their testimony.

308I find that in this case, the total police misconduct against the accused and dishonest explanations to the court would seriously erode long-term public confidence and faith in a fair justice system if the case proceeded to adjudication. The public would reasonably find that where the police deliberately violate well-established Charter rights and constitutional principles that they know they are obligated to follow, exclusion of reliable evidence is required to maintain the reputation and integrity of the administration of justice.

309The constitutionally compliant exercise of their considerable powers to detect crime are not optional. The violation of the Applicant’s s. 10 rights adds to the long-standing systemic problem of this avoidable failure that is a long-standing problem in this region. Virk at para. 82. The police dishonesty and abuse of their authority cannot stand.

iv) Final Balancing

310The final step under the s. 24(2) analysis involves 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. Such balancing involves a qualitative exercise, one that is not capable of mathematical precision: Harrison, at para. 36. The Court must weigh the factors that point to 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.

311I find that there would be a long-term negative impact on the administration of justice if this court were to admit reliable evidence gathered from serious violations of essential rights and freedoms, aggravated by deliberate misconduct.

312The total misconduct is not akin to technical or inadvertent violations due to responses in a fast paced or difficult to control situations, that would deserve less weight in the final balancing.

313Overall, the first and second lines of inquiry support a strong case for exclusion of the evidence. Society’s interest in upholding the protection of the fundamental Charter rights at the time of arrest that were not respected in this case, also favours exclusion in these circumstances, even when real evidence of very serious crimes would be excluded.

314Balancing all of the factors in the three lines of inquiry, I find that the admission of the evidence would bring the administration of justice into disrepute.

CONCLUSION

315The Charter motion is granted and the evidence is excluded.

Mirza, J.

Released: January 19, 2026

CITATION: R v. Green, 2026 ONSC 354