HEARD: January 12, 13, 14, 16, 19, 20, 21, 27, April 2, and June 10, 2026

RULING ON DEFENCE STAY APPLICATION

1The defendant, Jawad Shamim, is charged with 11 counts under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) and the Criminal Code, R.S.C. 1985, c. C-46: two counts of trafficking cocaine on April 14, 2021, and April 23, 2021, contrary to s. 5(1) of the CDSA, and two counts of being in possession of proceeds of crime on both dates, contrary to s. 355(b) of the Criminal Code, following his alleged sales of cocaine to an undercover officer. He is further charged with possession of cocaine for the purpose of trafficking on May 13, 2021, contrary to s. 5(2) of the CDSA, when he is alleged to have attempted to sell cocaine to an undercover officer. The remaining six counts all relate to what was found during the search of his apartment following his arrest, namely possession for the purpose of trafficking MDMA, fentanyl, methamphetamine, GHB and ketamine, all contrary to s. 5(1) of the CDSA, and possession of proceeds of crime under $5,000, contrary to s. 355(b) of the Criminal Code.

2Mr. Shamim re-elected trial by judge alone before me and pleaded not guilty to all the charges. At the outset of his trial, I heard an application by Mr. Shamim seeking a stay of proceedings pursuant to ss. 7 and 24(1) of the Canadian Charter of Rights and Freedoms (the “Charter”). The basis for the application is that it is alleged that the police used excessive force when they arrested Mr. Shamim, injuring him and causing a serious sprain to his right foot, and that officers conducting the search of his apartment stole $5,000 in cash from the sale of illegal drugs.

The Issues

3This case is largely determined by my factual determinations of whether Mr. Shamim has proven on a balance of probabilities that excessive force was used in his arrest and/or that police stole cash from his apartment.

4Counsel agree that if I find that cash was stolen from his apartment, that a stay of these proceedings should be granted, so that this court distances itself from serious police misconduct.

5There is no issue as to the law governing the use of force by police, but the Crown rejects the defence position that if I find excessive force was used, that the appropriate remedy is a stay. It is Ms. Rivers’ position that the appropriate remedy would be a reduction of sentence, not a stay. She did reasonably concede that since there is no dispute that Mr. Shamim suffered an ankle sprain during the arrest, that a modest reduction in sentence is warranted if Mr. Shamim is convicted, even without a finding of excessive force.

6On the application, I received two affidavits sworn by Mr. Shamim, and he testified over the course of two days. In addition, all the police officers involved in his arrest, booking and the search of his apartment were called as witnesses. Counsel also filed an Agreed Statement of Fact (“ASF”) and introduced the video evidence of his apartment before and after the search, Mr. Shamim’s transport to the station, and his booking.

The Evidence of Mr. Shamim’s Arrest

The evidence of Mr. Shamim

7Mr. Shamim is 37 years old and a permanent Canadian resident who does not have a criminal record. He is single with no dependants. Mr. Shamim obtained a Bachelor of Commerce degree from the University of Toronto in 2010 and after a period working as a junior accountant, he started his own fitness company in May 2017, training clients and providing nutrition and supplement advice. At the time of his arrest, Mr. Shamim lived in a one-bedroom apartment at 59 East Liberty Street in Toronto.

8Mr. Shamim testified that he was arrested in the lobby of his apartment building on May 13, 2021, right after he met with an undercover officer, who had told him he was Russ and that he was there for a drug purchase. Mr. Shamim testified that he had been away on May 13, 2021, visiting a friend and when he returned, he was to meet Russ. He did not have the drugs on him, so after speaking to Russ, he starting to walk towards the elevators to go to his apartment. When he reached the elevators, he noticed two big men dressed like ordinary citizens who rushed towards him. Mr. Shamim did not notice any identification as police. According to Mr. Shamim, one of the men put one hand behind his neck, his other hand on his waist, and then he picked Mr. Shamim up off his feet and then slammed him to the floor face down. It was only when Mr. Shamim was face down that he heard them say “Toronto Police, Toronto Police, you’re under arrest”. The other man did not touch Mr. Shamim at this point.

9Mr. Shamim testified that he felt constant body pressure on his back that was “on and off”. It then felt like the officers were jumping and stomping on his back and his legs with their whole weight while he was on the floor. He said that they used their bodies to apply force on and off to his back and legs, although because he was face down, he did not really know what was happening.

10In cross-examination, Mr. Shamim admitted that he was shocked and that what happened was unexpected. He denied being upset or angry. He denied wiggling and struggling, and he testified that he was totally compliant the whole time. He then admitted that he was struggling with pain, but presumably this was once he was on the floor.

11Mr. Shamim testified that he was handcuffed and then the officers picked him up off the floor. That was when he saw a police vest. He admitted that his arrest was very fast.

12Mr. Shamim testified that as soon as he stood up, he noticed that he could not put any pressure on his right leg. He was in excruciating pain, and he felt he had a major sprain. He complained about it to the officer he now knows as DC Asner and told him that he thought he had broken his leg or ankle and that something had happened during the arrest. Mr. Shamim testified that DC Asner told him: “this is what you deserve”, and “this is what we do with people like you”. When Mr. Shamim kept complaining because of the pain he was in, he testified that DC Asner told him to “shut up, we don’t care”. According to Mr. Shamim, the officers had to drag him across the lobby to a police vehicle because he could not walk. He was handed off to the transport officers. He was helped into the police vehicle by a female officer, and the in-car camera was turned on.

Evidence of Detective Constable Woj Gorski

13Mr. Gorski was a police officer from 2008 to 2022, when he retired from the Toronto Police Services (“TPS”). He testified that he left the force for a better opportunity financially and to be able to work from home. He had worked in the financial industry before he joined the police and is back in that industry now. I will refer to Mr. Gorski as DC Gorski, as that was his rank at the time of Mr. Shamin’s arrest.

14DC Gorski was with the Toronto Drug Squad for 2.5-3 years prior to May 2021. He was with Team 5, a team of five or six members dealing with street drugs. This team acted as undercover officers for the purchase of drugs from street level drug dealers to mid-level dealers.

15For the undercover buy on April 14, 2021, DC Gorski was the Exhibits and Surveillance officer. He was next involved in this matter on May 13, 2021, when Mr. Shamim was arrested.

16DC Gorski was first tasked to wait for Mr. Shamim in the lobby. He was standing close to Detective Miranda, by the elevator bank. The plan was that once Mr. Shamim walked into the lobby and was identified by DC Keveza, the undercover officer who made the two prior purchases from Mr. Shamim, that he was to be arrested. DC Gorski was wearing a jacket, with a police vest underneath with big black and white letters “Police” on the front panel. He wanted to remain covert and blend in so that Mr. Shamim did not realize he was with the police, to run away, or pull out a weapon.

17DC Gorski testified that he saw Mr. Shamim walk into the main lobby. He approached Mr. Shamim with Detective Miranda. He kept his police vest covered but may have unzipped the jacket a bit. He did not know if it was fully open, but he also wanted to be visible as a police officer at the moment of arrest. DC Gorski testified he could not say that he produced a badge to Mr. Shamim as he approached.

18DC Gorski seemed to have a good memory of Mr. Shamim’s arrest, and in response to my question, he testified that he had the arrest detail of what he did, including his motions in his notes of the arrest, which he used to refresh his memory. I rely on that not to corroborate his evidence, but it did address my concern to some extent of how he could recall so much detail five years later. It is difficult to clearly summarize his evidence, as it was reviewed in detail by both counsel.

19DC Gorski testified that he placed his hand on Mr. Shamim’s arm, he identified himself as “police”, and he told Mr. Shamim that Mr. Shamim was under arrest. At that point, he felt resistance, or “tension”, of Mr. Shamim pulling away once he was told he was under arrest. DC Gorski testified that he was not going to struggle with Mr. Shamim, and that he decided he needed to take Mr. Shamim to the ground as quickly as possible so that he could control him and put him in handcuffs. DC Gorski said that to do that, he pivoted his body towards Mr. Shamim to his right, and he was able to wrap his arms underneath Mr. Shamim’s arms and around Mr. Shamim’s waist, like a bear hug. DC Gorski then started to drop his weight down and he rotated his hips in the direction he wanted, in order to knock Mr. Shamim off balance and to fall down with him. DC Gorski said that he was trying to use his body to position himself so that Mr. Shamim would be reflected off his body to soften the fall. That way he absorbed the impact. He testified that he would not have targeted Mr. Shamim’s neck, but rather the larger part of his body. DC Gorski testified he was trying to control the take down as effectively as possible and have Mr. Shamim come down on his front, so that he could grab Mr. Shamim’s arms.

20DC Gorski testified that Mr. Shamim fell down beside him and that he landed on half of his body as he had tried to do. DC Gorski tried to roll Mr. Shamim over onto his stomach. DC Gorski had his arms under one of Mr. Shamim’s arms, and Mr. Shamim was now on his belly. He told Mr. Shamim he was under arrest and he demanded that Mr. Shamim give him his arms, to remove any potential for danger, such as grabbing a weapon. He wanted to handcuff Mr. Shamim’s hands to his back, as he was trained.

21DC Gorski testified that there was a struggle while Mr. Shamim was resisting commands to get his hands behind his back. DC Gorski put his chest on top of Mr. Shamim’s back, trying to control Mr. Shamim with his weight and get his hands. DC Gorski testified he was most likely on his knees and covering Mr. Shamim’s upper body with his chest. He then wanted to release the pressure so he could get Mr. Shamim’s arms.

22DC Gorski testified that he did not know if Detective Miranda was holding down or applying pressure to parts of Mr. Shamim’s body, but DC Gorsk was covering his upper body and did not see anyone’s feet in his view. DC Gorski assumed Detective Miranda helped him get Mr. Shamim’s hands behind his back, as he was closest to him. He did not see Detective Miranda put his foot or feet on Mr. Shamim’s legs. The arrest was dynamic and took less than a minute. DC Gorski testified that the arrest needed to be done quickly and safely to minimize risk to others in the lobby.

23DC Gorski did not recall Mr. Shamim saying anything as he arrested him. He did not hear any cry or expression of pain from Mr. Shamim or recall Mr. Shamim complaining. Officers at the station later told DC Gorski that Mr. Shamim was complaining of foot pain and was being taken to the hospital. DC Gorski could not say how his foot was injured. DC Gorski testified it was not his intention to hurt anyone.

24DC Gorski handed Mr. Shamim over to DC Asner. DC Gorski testified that he did not hear DC Asner say to Mr. Shamim “this is what you get”.

Evidence of Detective Eduardo Miranda

25Detective Miranda has been with the Toronto Police Service for 25 years. He is now with the Major Toronto Drug Squad, but at the time, he was the Officer in Charge (“OIC”) of street level drugs. Before that, he spent nine years as an undercover officer.

26Detective Miranda testified that he was standing near the elevators with DC Gorski. He was wearing a police vest, which was covered up by his jacket. As soon as he was motioned by DC Keveza that Mr. Shamim was there, and as soon as he made eye contact with Mr. Shamim, he unzipped his jacket so Mr. Shamim could see that he was a police officer. He admitted, however, that it may not have been possible for Mr. Shamim to completely see the vest. Detective Miranda testified that he also told Mr. Shamim that he was under arrest. He did not produce a police badge to Mr. Shamim.

27Detective Miranda then “engaged” Mr. Shamim by grabbing one of Mr. Shamim’s arms, while DC Gorski grabbed the other. Detective Miranda could not remember which of them touched Mr. Shamim first, but he testified that when he did, he could feel tension. He did not know if that was due to Mr. Shamim being scared or that he was intending to flee. Detective Miranda testified that he wanted control of Mr. Shamim’s hands, as he did not know his abilities or if Mr. Shamim had any weapons on him. He did not recall if there were any civilians around, but he did not know who might come out of the elevator – it could be a child or an elderly person.

28Detective Miranda testified that he pushed Mr. Shamim to the floor to handcuff him safely because Mr. Shamim did not put his hands behind his back when he was asked to do so. Detective Miranda ended up on the floor using his upper body, trying to get control of Mr. Shamim. He called it an “arm bar” take down by grabbing Mr. Shamim’s arm at his wrist and twisting it behind his back. Everyone, including DC Gorski, assisted. This took a little extra time, because according to Detective Miranda, Mr. Shamim was not being compliant. The arrest was very quick and very dynamic.

29Detective Miranda also seemed to have a reasonably clear memory of the arrest and had notes of the arrest, which he used to refresh his memory. He admitted that that it was a hard floor and that Mr. Shamim was taken down “hard” to the ground, but he did not recall if Mr. Shamim cried out.

30Detective Miranda denied putting his foot on Mr. Shamim’s body or stepping on his leg. He did not have a reason to do so because he was focused on his upper body. He admitted, however, it is possible that it happened. If he had seen someone stomping on Mr. Shamim, he would have stopped it, or if he thought an officer was using excessive force, he would have also stopped it. He felt this was a normal arrest. Detective Miranda did not recall if a Use of Force report had been completed, but if one had not been, he admitted that would be an administrative error.

31Detective Miranda found out at the station that Mr. Shamim had been taken to the hospital because of an injury. He did not realize it at the time of his arrest.

Evidence of Detective Constable Robert Asner

32By 2021, DC Asner had been with the Toronto Drug squad for almost 8 years. At the time of Mr. Shamim’s arrest, DC Asner was also wearing a police vest under a light jacket, which was zipped up. He was standing near the concierge desk, waiting for a signal from DC Keveza. He recalled that the concierge was there. There was also some pedestrian traffic in and out of the building, but it was not congested. DC Asner did not recall if he had time to unzip his jacket fully as the event unfolded quickly but he did identify himself as police. He wanted people in the lobby to know that they were police and for Mr. Shamim to know this as well. He said there were multiple officers there repeatedly saying police and that Mr. Shamim was under arrest.

33DC Asner testified that when he saw the takedown signal, he saw DC Gorski and Detective Miranda approach Mr. Shamim and engage in conversation with him. At this point, DC Asner was closer to the front door entrance. He heard them identifying themselves as Toronto Police and saw them trying to get a physical hold of Mr. Shamim. It appeared to him like Mr. Shamim was pulling away during the takedown. DC Asner admitted that when Mr. Shamim pulled away from DC Gorski and Detective Miranda that could have been a reaction to being grabbed, but he does not know what was in his mind, and he could have been going to escape. DC Asner testified that DC Gorski used a particular takedown technique where he wrapped his arms around Mr. Shamim’s waist, like a bear hug, to restrain Mr. Shamim’s movements. He also saw that at one point, Detective Miranda had Mr. Shamim’s arm in a position like an armchair, so it could not be folded. This was to prevent access to weapons.

34By the time DC Asner arrived to assist, Mr. Shamim was on the floor, and DC Gorski and Detective Miranda were attempting to grab his arms and force them to his back to handcuff him. DC Asner testified that he and DC Keveza assisted in getting Mr. Shamim under control by putting his hands in front of Mr. Shamim, because Mr. Shamim was still “actively resisting” and not complying with the officers’ orders. Mr. Shamim was a “pretty strong guy” and so the police officers had to use physical force to do this. During the takedown, the force was mainly to Mr. Shamim’s upper body and hands. DC Asner did not see an officer positioned by his legs. DC Asner testified that he was concerned that Mr. Shamim had a weapon. He was also concerned if Mr. Shamim had drugs that he may try to swallow them, which is a really serious concern for overdose.

35DC Asner grabbed Mr. Shamim by the arm to lift him up onto his feet. He then searched Mr. Shamim’s person. As he was walking with Mr. Shamim to the transport vehicle, which was right outside the lobby, he was just holding Mr. Shamim’s arm. He was compliant at that point. DC Asner testified that as they were walking to the transport vehicle, Mr. Shamim complained that his foot hurt, and he could see that Mr. Shamim was limping. DC Asner admitted it was possible that MR. Shamim said something when he was on the floor, but he did not shout in pain. It was once he was standing up and started walking that DC Asner became aware that there might be an injury.

36DC Asner took Mr. Shamim to the transport officers and told them what Mr. Shamim was under arrest for, that he was complaining of injury, and that they should pass this information on to the OIC. DC Asner testified that he told the transport officers to monitor Mr. Shamim’s foot injury. It did not appear to him that Mr. Shamim needed immediate medical attention. There was no blood nor protruding bones. Mr. Shamim seemed to be in pain and some discomfort, but it was not an emergency at that moment. He did not need an ambulance. For a sprain, police officers will use discretion. DC Asner testified that if Mr. Shamim needed medical care, he would have received it. He instructed the transport officers to charge and caution Mr. Shamim on camera. He then joined in the execution of the search warrant.

37DC Asner testified that he did not hear DC Keveza say that the transport officers should not worry about “this guy”. I note that according to Mr. Shamim, it was only DC Asner who made these comments. DC Asner also denied telling Mr. Shamim that “this is what happens” or “this is what you get”. As I have concerns about some of Mr. Shamim’s evidence concerning his arrest, I am not satisfied that DC Asner made the comments Mr. Shamim testified to.

Evidence of Detective Constable Ryan Keveza

38DC Keveza has been with the TPS since August 2005.

39DC Keveza held himself out as someone named Russ to Mr. Shamim to arrange the first and second cocaine purchases from Mr. Shamim on April 14, and April 23, 2021. As I will come to, however, on those occasions, the person who came to buy the drugs was another undercover officer who called himself Kev, not DC Keveza.

40I will explain the texts leading to the arranged purchase of cocaine from Mr. Shamim on May 13, 2021, but this time it was DC Keveza, holding himself out as Russ who agreed to meet with Mr. Shamim in the lobby of his building at 7 pm to complete the purchase of $200 worth of cocaine. At 6:49 pm, DC Keveza let Mr. Shamim know that he was outside the front lobby. He told Mr. Shamim to meet him at the front doors. He saw Mr. Shamim get out of a sedan that had pulled up in front of the building. He waved at Mr. Shamim, so he knew who he was, as they had not met before. They met outside for the first time with a fist bump. After confirming the drug purchase, Mr. Shamim told him to wait in the lobby, and he started walking towards the elevators to go to his apartment to pick up the drugs. DC Keveza signaled to the crew that Mr. Shamim was “T1”. He then observed DC Gorski and Detective Miranda approach Mr. Shamim at the same time. DC Keveza testified that DC Gorski tackled Mr. Shamim to the ground. He heard Mr. Shamim yelling and screaming during the arrest.. He went over to assist. By the time he got there, DC Asner was there holding Mr. Shamim’s arms back. DC Keveza handcuffed Mr. Shamim with handcuffs he received from one of the other officers. He estimated the entire arrest lasted maybe 30 seconds.

41DC Keveza testified that Mr. Shamim was brought down to the ground slowly and that it was not hard. As a controlled takedown, there was nothing hard about it that he could see. He described it as “nonchalant and a “soft light takedown the ground” to control Mr. Shamim as much as possible. There was no punching, striking or stomping that he could see.

42DC Keveza testified that he did not know if Mr. Shamim was hurt and if he was, how he was hurt. He could not see someone sustaining injury as a result but conceded that Mr. Shamim could have landed on his foot or leg.

43According to DC Keveza, as soon as Mr. Shamim was handcuffed and under control, he calmed down. DC Keveza thinks he may have helped DC Gorski pick Mr. Shamim up off the ground. They walked Mr. Shamim to the transport vehicle, which was directly in front of the lobby. As they were walking, Mr. Shamim said that he had a sore ankle and he was limping on it as he was saying this.

44When DC Keveza turned Mr. Shamim over to the two uniform officers for transport, he told them that they should “do rights to counsel on camera” and that there was a possible ankle injury. DC Keveza testified that he did not see anything to make him believe that Mr. Shamim’s ankle was hurt, but he was complaining about it, so he wanted to make sure the officers knew about it.

Evidence of Detective Constable Farhanullah Khan

45DC Khan testified that he arrived in the lobby as Mr. Shamim was being handcuffed. At that time, he observed that Mr. Shamim was agitated and moving around and not complying. He did not remember what he was saying. He did not interact with Mr. Shamim.

The In Car Camera Video

46The transport video at 18:55:31 shows the door to the transport van open. DC Asner and DC Keveza both testified that they were present, but DC Keveza did not recall if he stayed after he heard his voice at the beginning.

47Mr. Shamim can be observed limping as he approached the door of the transport vehicle. As he was helped into the transport vehicle, an officer told him: “you’re all right” and “you’re okay”, but he did not know who said that

48While seated in the police transport vehicle, Mr. Shamim was given his rights to counsel.

49Mr. Shamim stated a lot of different things about his foot and his ankle inside the police transport vehicle on the way to the station and before he was in the booking hall. Mr. Shamim testified that he told the police officers he was struggling and that he was in a lot of pain at that time, and that it was like a shooting pain. He was asked if he needed immediate medical attention. Mr. Shamim responded “yes” and stated that he could not put any pressure on his right foot. He was told that it would be looked at when they got to the station.

50Mr. Shamim told the transport officers that he wasn’t sure if his foot was broken or sprained, and that his leg was “crushed”. That was an exaggeration. He testified that he was completely ignored. The transport officers did not respond at this time, but as I will come to, it is not clear that they could hear what Mr. Shamim was saying. Furthermore, they did not have a clear view of his entire body.

51On the ride to the station, Mr. Shamim can be seen moving a great deal in the seat and breathing heavily and moaning and groaning. He said the pain in his right foot was a nine out of 10, at least, and was getting worse. He testified that he has a high pain threshold from playing squash and has plenty of ankle injuries, so he knew something was wrong.

52Once they were in the sally port, Mr. Shamim can be heard saying that he was in excruciating pain; a cramping pain. Again, he testified that he was completely ignored.

53What Mr. Shamim told the officers about how he was taken down is a prior consistent statement and therefore not relevant for the purpose of corroborating his evidence. It does, however, illustrate that he made the complaint about excessive force soon after he was in the transport vehicle and is relevant to the claim by the defence that his injury was not properly addressed. At one point, when he complained about his right foot, the officer said that he had been walking completely fine. When he asked if his foot could be checked, he was told by one of the transport officers that nothing was going to change at that point, and that he would “need to sit tight” until they got to the station.

54It took just over a half an hour to get to the station and to be taken out of the police vehicle for booking.

55Before he was brought into the booking hall, one of the transport officers spoke to the booking sergeant and told him that as they were pulling up to the station that Mr. Shamim was complaining about a broken or strained foot. The officer stated, however, that he was “walking fine but now he’s complaining about it”.

The Booking Video

56In the booking video, Mr. Shamim can clearly be seen limping and favouring his left foot to avoid putting pressure on his right foot. His right foot appeared somewhat swollen.

57A level 2 search was authorized, and two male officers did that while on video in the booking hall. When Mr. Shamim complained to the booking sergeant about his foot, the officers took his socks off and stated they could not see any swelling or anything. According to Mr. Shamim, to this point the pain was excruciating and he was trying to balance on his left foot to take pressure off his right foot. He testified that his right foot was in fact swollen on the left side of the foot.

Evidence of Officer Rebecca Crosbie

58Officer Crosbie was one of the transport officers. Once she and her escort, Officer Shakov, were told that Mr. Shamim was in custody, they parked the police van in a little driveway that runs north/south next to the lobby.

59Officer Crosbie recalls DC Asner walking Mr. Shamim out. She did not recall any other officers with him. She was told that Mr. Shamim was complaining of foot pain but did not recall what DC Asner told her about the takedown “word for word”. She did recall him saying that there was “no snapping”, which I presume was a reference to breaking bones.

60Officer Crosbie was asked to give rights to counsel to Mr. Shamim. She does not believe she told Mr. Shamim whether he was charged with proceeds of crime either under or over $5,000.

61Officer Crosbie was the one who drove the police van to 14 Division. It took them about seven minutes. Officer Crosbie could not recall speaking to Mr. Shamim during the drive. Once they got to the station, they had to wait 18 minutes in the sally port until they could bring Mr. Shamim in for booking. Officer Crosbie agreed that Mr. Shamim’s expression of pain had increased. When she asked Mr. Shamim if he needed immediate attention, he answered “I am in pain”.

62Officer Crosbie testified that she understood that Mr. Shamim was in pain, but she did not feel it was life threatening or that it was urgent to take Mr. Shamim to hospital. Whether he would be taken there was a decision for the OIC at the station. She also said that medication cannot be given at the station, unless it is prescribed. Officer Crosbie testified that she did not know if Mr. Shamim had more drugs on his person which posed a safety risk until he was properly searched, which could not be done by two female officers.

63Officer Crosbie was asked about certain things that Mr. Shamim can be heard saying on the in-car camera video. She was also asked about the fact that he appeared at one point to be gasping in discomfort and pain. Officer Crosbie agreed that Mr. Shamim appeared to be in obvious pain and discomfort, but she testified that she could not necessarily see and hear what was going on. She would only have been able to see the upper portion of Mr. Shamim’s body while she was driving. She testified that even if she could see, she would not have gone to the hospital or called paramedics. At that point, due to the charges Mr. Shamim was facing, it was more appropriate to search him before taking him to the hospital. She did not believe his injury would get worse or that it was life-threatening.

64Officer Crosbie was also shown the booking hall video. She told the staff sergeant that Mr. Shamim was “walking fine initially”, because that is what she had been told, but then he started limping. She was not asked who told her this. Officer Crosbie admitted that Mr. Shamim was limping when he was brought into the booking hall. In the booking hall, the staff sergeant told them that it did not look like Mr. Shamim’s foot was broken. He told them to take his socks off. At that time, Officer Crosbie told the staff sergeant that Mr. Shamim had been “complaining the whole time”. Her partner, Officer Shakov, can be heard saying there was no swelling. They removed Mr. Shamim’s socks and his ankles did appear to be a bit swollen. When asked how swollen, on a scale of 1 to 10, Officer Crosbie testified that she would say his right foot was slightly swollen.

65The staff sergeant advised them to take Mr. Shamim to a hospital, which they did. They arrived at the hospital at 7:47 pm. Officer Crosbie was relieved shortly thereafter by two special constables.

The Hospital Records

66Mr. Shamim was taken to the Toronto Western Hospital. The Emergency Room Triage Assessment states that Mr. Shamim’s right foot injury was his chief complaint. I have ignored what the report states he said as to what caused the injury, because these statements were not put to Mr. Shamim. Mr. Shamim was noted to have reported “9-very severe pain” and that he was limping in pain. The ED Encounter Note (“Report”) reports that there was significant swelling over the dorsum of Mr. Shamim’s foot, but no swelling or bruising on the underside. The Report states that his pain is improved with analgesia. He was given some pain medication, and a prescription for Tylenol and Naproxen, which Mr. Shamim stated the police kept until he was released on bail the next day. Since crutches were not possible, as Mr. Shamim was in handcuffs, he was given a short walking boot for his right foot, which the Report states was to be used only as much as the pain required. The Report also states that “the patient knows” he is to seek medical care if the pain is ongoing in two weeks’ time.

67Mr. Shamim recalled that the doctor recommended that he see a specialist for the next couple of months to ensure his ankle healed properly, but there is no mention of that in the Report. He also testified that they asked him to come back for further evaluation and maybe even surgery if it did not improve, but there is no mention of that either.

68Mr. Shamim testified that the x-rays confirmed that he had a major sprain and torn ligaments on his right ankle. The report on the foot x-ray states there was no evidence of an acute fracture, but there was soft tissue swelling over certain portions of his right foot. There is no mention of any torn ligaments.

69Mr. Shamim took the prescription to a pharmacy after his release. He did not see a specialist or return to the hospital. He testified that he saw a physiotherapist two to three times per week for the next two months and that it was around two months before he could start walking again, and about three months to get back to normal.

70Pursuant to an ASF, several photographs, which were taken some time between May 17 and May 24, 2021, were entered into evidence. The photographs confirm that Mr. Shamim’s right foot and ankle were swollen at that time.

Evidence of Officer Daniel Dejak

71Officer Dejak is a special constable with TPS. He is not a police officer. He is one of the officers who relieved the transport officers who were with Mr. Shamim in the emergency area of the hospital. At 9:43 pm, he spoke to the doctor who had seen Mr. Shamim. He was told that Mr. Shamim’s ankle was not broken and that it was a sprain. They were at the hospital until just before midnight. Mr. Shamim would have been discharged earlier but they were waiting for an “air cast boot”, since he would not have been able to use crutches due to being handcuffed.

The Evidence Concerning the Alleged Theft of Cash by Police

72There are two factual issues with respect to the search of Mr. Shamim’s apartment that are relevant to the question of whether police stole cash from the apartment during the search. The first is the search of the bedroom, and in particular, the laundry hamper where Mr. Shamim alleges the cash was hidden. The second is whether a drawer of a bookcase was searched, as that is where Mr. Shamim testified that he kept a 250-page spiral bound Hilroy subject Notebook (“Notebook”). He identified the last page of the Notebook as his “weekly log” of his incoming week’s worth of drug transactions. Secondary to that question is if the drawer was searched, was the Notebook with the weekly log in it at the time?

The Evidence of Mr. Shamim

73Mr. Shamim apartment was searched by police after his arrest. His apartment was approximately 600 square feet, with a living room, which included the area where he kept his weights, kitchen, powder room and one bedroom with an ensuite. He also had a storage locker in the building.

74After his arrest, Mr. Shamim was held overnight and released on bail on May 14, 2021. He went back to his residence once with his surety to pick up the necessities. He looked at that time for his valuables and saw, of course, that all the drugs had been seized. He found his wallet with his identification was on the kitchen counter, but all his cash was gone. According to Mr. Shamim, he had $5,000 hidden at the bottom of a laundry hamper, and he estimated $1,550 in a bowl on the kitchen island, that were missing.

75In support of his allegation that $5,000 in cash was taken by police during the search, Mr. Shamim testified about how he was paid for the sale of drugs and how he alleges he kept track of upcoming sales each week.

76Mr. Shamim testified that he was paid in cash or by e-transfer for the sale of drugs. He would keep cash in the bowl on his kitchen counter, and he would count it at night. If it exceeded $5,000, he would bundle the bills with a rubber band and then put the bundle into a black garbage bag at the bottom of a laundry hamper inside his bedroom closet. The hamper had a lid that was attached like a flap that would close with a zipper. He used a black garbage bag because it was a bag he had in his residence for his garbage can, and he used this as extra precaution so the cash would not be visible. Mr. Shamim testified that he did not keep his dirty clothing in this laundry hamper. It was his evidence that he would throw any dirty laundry directly into the washing machine and that nothing was on top of the garbage bag in the laundry hamper. He did not worry about separating whites from darks. Mr. Shamim testified that he did not want to leave a large amount of cash lying around in case the building management entered his apartment. He did not leave any cash in the bowl on his kitchen counter when his cleaning lady came to his apartment each week.

77Mr. Shamim identified a photograph taken in the fall of 2020 of his kitchen and the bowl he used to hold cash. He estimated that there was around $4,000 of cash in the bowl. This evidence was not challenged.

78Mr. Shamim identified the last page of the Notebook as his “weekly log” of his incoming week’s worth of drug transactions starting on May 10, 2021. The entire Notebook is in evidence as some of the entries date back to 2013, with notes made by a former girlfriend. Mr. Shamim testified that he kept the Notebook on the kitchen counter when he was home, but when he left his residence, he put it inside the drawer of the shelving unit in his living room. Mr. Shamim testified that he always started a new log after he deposited cash in the bank. If he deposited cash on a Friday, he would start a new log on Saturday.

79When a customer told him they wanted a particular quantity of a drug, he would write down in his weekly log their first name, the quantity and price of the drug and the date when they were expected to pick up the drug. The weekly log did not state a time of pick up; only the day. He testified he did this so he would know what to package and when to have it ready, what amount of money he was expecting to receive, and to keep track of his weekly transactions. A drug client would have to pay him beforehand or at the time of picking up the drugs. He would then check off the name once he had received either an e-transfer or cash, and he had provided the drugs to the customer. If a customer changed their mind, he scratched their order out. Mr. Shamim did not identify on this log whether money was received by e-transfer or in cash. He testified that he had this weekly log so that he knew what drug to package and how much to package in time to complete the order. He would either send his driver or deliver an order personally.

80Mr. Shamim also produced screenshots of his May 2021 calendar from his iPhone. His calendar included everyone he had a preplanned meeting with, including his cleaning lady, his trainer, who he was seeing twice per week, appointments for clients he was training, and massage and doctor’s appointments. As for his drug clients, they are only in his iPhone calendar if they had placed their order beforehand. If they placed an order the same day, or at the last minute, they were not put into his iPhone calendar. He would, however, note the details of the order on his weekly log. He did not put training client appointments in his calendar if they were made the day before. He was only paid by e-transfer for his training clients. Some training clients also purchased drugs from Mr. Shamim.

81The weekly log for the week of Mr. Shamim’s arrest lists orders for drugs to be completed on May 10, 11, 12, 13 and 14. For Saturday, May 15th, there was a possible deal, and nothing was noted for Sunday, May 16. Mr. Shamim identified those transactions on his weekly log that were by e-transfer, and they do match his bank records that he produced for May 10, 11, and 12. Adding up the amount of cash, the total received from and including May 10 to the morning of May 13, before he was arrested, was $6,650. Given the amounts that were e-transferred, based on this list, the amount of cash in Mr. Shamim’s apartment would have been $6,550, minus $100 to $200 that he said he would have used for groceries and other expenses earlier in the week.

82Mr. Shamim testified that he took all the cash he had to deposit at the bank at the end of the week, sometime between the Friday and the Sunday. Sometimes it would be the Thursday, if he was going away for the weekend. He deposited the cash using an ATM at either the CIBC or the Scotiabank, or both. Mr. Shamim testified that no more than 50 bills can be deposited using an ATM at one time. As a result, in terms of weekly deposits, they might not all be $5,000, as there is a limit to the number of bills an ATM machine can take. Mr. Shamim testified that he would deposit all the cash he received from drug sales each week. He did not say that he would wait until he had $5,000 to go to the bank. Mr. Shamim testified that he would tear the page containing his weekly log out of the Notebook and start a new weekly log, using the last clean page of the Notebook.

83The transaction listed on the weekly log for Thursday May 14, the day Mr. Shamim was arrested, states “Kev200C” which Mr. Shamim said was an order for $200 worth of cocaine. Ms. Rivers reviewed the chronology in terms of the undercover buys. As I have said, DC Keveza held himself out as someone named Russ to Mr. Shamim to arrange the first and second cocaine purchases from Mr. Shamim on April 14, and April 23, 2021. However, on those occasions, the person who came to buy the drugs was another undercover officer who called himself Kev

84Ms. Rivers submitted that based on the text messages on May 14th, Mr. Shamim was to meet with Russ, not Kev, and she argued that the fact Mr. Shamim wrote “Kev” in his weekly log instead of Russ supports her position that the weekly log was created after he was arrested.

85The chronology that is in evidence for the first two undercover buys is as follows:

(1) The communication about the undercover buy began on April 6, 2021, when Mr. Shamim received a text and after asking who it was, he was told it was from Russ who said: “my other connect just linked me. Sorry to bug U”.

(2) On April 14, 2021, Mr. Shamim received a text from the same phone number: “Hey buddy. Can my boy give u a shout for a link today?” When Mr. Shamim asked who, he was told: “It’s Russ”. Mr. Shamim responded and provided his “weekend menu”. Russ then told him: “Thx buddy. Kev is going to msg u. Hs’s a good guy. Treat him good” to which Mr. Shamim responded: “Will do sir.”

(3) Later on April 14th, on a different phone, Mr. Shamim received a text message that stated: “Yo it’s Kev.. my boy Russ told me your’re good. Can I get a half ball of white today.” There is no dispute that this text came from Officer Shaw, who was holding himself out as Kev, who made the purchase of cocaine from Mr. Shamim on April 14th, 2021. and again on April 23, 2021. For the second purchase, when Kev was meeting with Mr. Shamim, Russ texted Mr. Shamim to tell him: “My boy said he’s there” and Mr. Shamim responded that he had already talked to him.

86The chronology for the third buy when Mr. Shamim was arrested is as follows:

(1) On Wednesday, May 12, 2021, Russ texted Mr. Shamim asking if he could come by the next day for some “soft”. Mr. Shamim responded asking: “how much n what time”. Russ answered: “Let U know for sure tomorrow but around 6-7 pm and $200”. Mr. Shamim replied that he needed an exact time and he gave Russ prices for pure and for average. Mr. Shamim testified that he wrote down “Kev200C” in his weekly log on Wednesday for the next day, Thursday.

(2) On Thursday, May 13, 2021, Russ texted Mr. Shamim: “Can come c u at 7 if that still works?” Mr. Shamim responded: “Sure 7. pm exact? N whats the order”. Russ replied that he would come at 7 pm exact and that he wanted “$200 of the avg”.

87At one point, when Ms. Rivers was reviewing the text messages, Mr. Shamim seemed to get confused and he refused to answer a question. I granted him time over the lunch to review the text messages. When we resumed, Mr. Shamim testified that Russ had always messaged him, but he always sent “his boy Kev” to pick up the drugs. After hearing from Russ, he would then receive a message from Kev about a specific order and date, and Kev was then the one who Mr. Shamim met with and sold drugs to on both occasions. On May 12th, when he wrote down Kev, he assumed that it would be Kev coming again. This time, unlike the prior occasions, he did not have a separate conversation with Kev about this purchase. When on Thursday, Russ texted that he was in fact coming, Mr. Shamim did not see the point in amending his Weekly Log.

88Mr. Shamim testified that around the time of his arrest, he was seeing three to four paying training clients per day. They were usually one-hour sessions. He would see them either in the gym of his building or at their condo gym. He did not bring clients to his own apartment. Some would be noted in his iPhone calendar, but if the appointment was arranged the same day or the day before, he would not record it.

89Mr. Shamim testified that he only received e-transfers from the clients he was training. They did not pay him in cash. The only other cash he might receive is from someone who owed him money, for example to share a restaurant bill. The training customers would not pay after each session. Typically, they would buy a package and pay in advance. His price for training would vary depending on where he had to go.

90In cross-examination, the Crown took Mr. Shamim through all his deposits into the Simply and Tangerine accounts for the April/May 2021. He identified which deposits were for drugs and which were for training, or in one case, supplements and nutrition advice. Mr. Shamim was questioned about the fact that he was not keeping track of all appointments for training and for example, if a client had purchased a package, how many sessions had been used. All he had was his bank records, which he said he used to complete his tax returns. He testified that at the time of his arrest, he was seeing three to four clients per day.

91Mr. Shamim was asked when he had spent cash before the week of May 10 to purchase drugs. He testified that he had purchased drugs two to three months before his arrest. When he needed more drugs, he would buy everything he was low on or out of. He testified that at the time in question, he was not selling on a big scale.

92In cross-examination, Mr. Shamim denied the suggestions that he did not have the $5,000, that he made up the weekly log at the back of the Notebook after reviewing his bank records, or that he altered the log that he had made.

93When shown the Entry Video, Mr. Shamim testified that dirty clothes can be seen in the washing machine. Although he could only say that the blue that can be seen in the drawer of the shelving unit looks like the Notebook, he was firm that he retrieved the Notebook from that drawer.

94When shown the Exit Video, Mr. Shamim identified the laundry hamper, which was open and outside his bedroom closet. Mr. Shamim testified that he could see the black garbage bag inside the hamper, although it was not very clear. This evidence was not challenged in cross-examination.

95Mr. Shamim testified that when he went back to his apartment the first time to get necessities, he did not pick up the Notebook. When he went back to his apartment later with his surety to pick up his belongings, he took the Notebook out of the drawer and packed it up along with his other belongings.

96Mr. Shamim testified that shortly after finding that cash was missing, he found out that receipts should be given for property seized during a search. He hoped that he could apply to get his money back to use it for expenses. When he met with Mr. Moustacalis, Mr. Shamim testified that he told him about the missing cash and supported that with his weekly log of transactions. When he received a property receipt for $1,340, a few months later, he accepted that was accurate for the money in the bowl on the kitchen counter. He did not receive a property receipt, however, for the $5,000 he had hidden in the laundry hamper.

97Mr. Shamim testified that he did not know that a stay could result from an allegation of police theft of money, and he denied that he made up the weekly log after the fact. Mr. Shamim testified that he had provided this document to his legal counsel long before he received the disclosure and “so it’s impossible I made the document up”. He testified that he provided the weekly log to his counsel, before he knew how much property had been seized. Mr. Shamim denied the suggestion that he used his bank statements and his iPhone to prepare the weekly log to fit with his evidence.

98On January 20, 2026, the Crown closed its case, and I was advised that the defence did not intend to call any Reply evidence. Argument was put over to January 27, 2026. On that date, I was advised by counsel for Mr. Shamim that they had decided they would like to call evidence and would like to reopen the defence case. The only problem was that that evidence entailed the anticipated evidence of Mr. Moustacalis, and so Mr. Shamim was going to need new counsel. An application to reopen the defence evidence was brought by new counsel, Anil Kapoor, on January 27, 2026. The Crown objected, and after discussion, I suggested that rather than forcing Mr. Shamim to retain new counsel, it might be possible to agree to a will say of what the evidence of Mr. Moustacalis would be, so that the matter could proceed expeditiously. Mr. Kapoor was not available for argument in any event, and so the matter was put over to April 2, 2026. When counsel returned on that date, I was advised that the parties had not been able to reach an agreement on the evidence and that Mr. Kapoor was no longer retained. In the hope of resolving this issue, I arranged for a judicial pre-trial with a colleague, which resulted in an ASF which sets out facts that Mr. Shamim admits. There is no agreement to these facts from the Crown, but Ms. Rivers did not ask to cross-examine Mr. Shamim on this additional evidence, presumably because it essentially comes from Mr. Moustacalis.

99Further to the ASF, it is Mr. Shamim’s further evidence that he retained Mr. Moustacalis for a show-cause hearing on May 14, 2021. He was released on a recognizance of bail the same day. Mr. Shamim continued to communicate with Mr. Moustacalis. They had a video call on May 18, 2021, when Mr. Shamim advised Mr. Moustacalis that $5,000 was missing from his bedroom and an amount less than approximately two thousand dollars was missing from his kitchen. Mr. Shamim asked Mr. Moustacalis if this money could be used towards his legal fees. During a second call that day, Mr. Shamim showed Mr. Moustacalis a Hilroy notebook and a handwritten transaction list contained in the notebook. Mr. Shamim explained the transaction list to Mr. Moustacalis. Mr. Shamim counted the pages of the Hilroy notebook in front of Mr. Moustacalis, who noted that the notebook contained less than 200 pages, but did not note the exact page count. Mr. Moustacalis received the disclosure on August 24, 2021, which I presume included the Asset Description Form: Cash Only, showing that the amount of cash seized was $1,340. On September 3, 2021, he and Mr. Shamim discussed a s. 7 Charter motion alleging theft of money, and a stay as the remedy.

100With respect to the collection of the Notebook, in his evidence in-chief, Mr. Shamim said that he was released on May 14 and initially went back to his department with his surety to collect his necessities. He looked for his valuables and noticed all the money was gone. He did not collect the Notebook on that occasion, but he did have it for his Zoom meeting with Mr. Moustacalis.

Evidence of the Officers Generally

101All the officers involved in the search of Mr. Shamim’s apartment testified and they all denied stealing any cash from the apartment or observing anyone else stealing cash. They all testified that they would not do so, that they would tell the officer in question not to do so, and that they would report anyone they saw stealing case to the commanding officer.

102It is not clear from the evidence who searched where in the apartment, because for the most part, the officers did not make notes of this. DC Wecker did identify a map of Mr. Shamim’s apartment which shows the badge numbers of some of the officers and the location of where they searched. Only DC Gorski is shown for the bedroom and DC Wecker for the weight room, where the shelving unit is located, as well as the powder room and balcony.

Evidence of DC Gorski

103When Mr. Shamim was arrested, he had had a Goodlife red duffle bag, two cellphones and a set of keys on his person. After his arrest, DC Gorski picked these items up and he was instructed to go and search the apartment. He went up to Mr. Shamim’s apartment and unlocked the door. He was the first one into the apartment and ensured no one else was there. He was then tasked to search the bedroom and the ensuite washroom.

104DC Gorski testified that he would have searched the entire area and would have looked in the closet. He searched the ensuite as well. DC Gorski testified that he would have looked inside the laundry hamper because people hide things in the most conspicuous places; however, he did not have any clear memory of this. He testified that there “might” have been dirty laundry in the hamper. When Ms. Rivers took him to the Exit Video that shows the laundry hamper, at 2:0 minutes into the video, she asked him if there are any dirty clothes around. DC Gorski answered that there were inside the hamper. As I will come to, that is not correct. Furthermore, if there had been, that would have meant that he took them out and put them back in, rather than just emptying the hamper onto the floor or pulling the clothing out, as he did with other items that can be seen on the bed.

105DC Gorski was shown the Exit Video. At 1:11 minutes into the video, it shows the closet door of the bedroom open. DC Gorski testified that the laundry hamper was in the closet, and he took it out of the closet and looked inside. He probably overturned it and probably put the contents on the bed. He was looking for whatever was in there. When Mr. Moustacalis suggested that there was a garbage bag at the bottom of the hamper, DC Gorski testified that there might have been a garbage bag full of clothes “but that there is something in there”. This is important, as it confirms that he could see something at the bottom of the hamper in the Exit Video.

106DC Gorski has no note of anyone going into the bedroom with him for the search. He testified that Central Notes would show if someone else was assigned to search the bedroom. He did recall someone else searching with him, but he did not recall who. They were searching the other part of the bedroom. DC Gorski admitted that he might have been there in the bedroom alone, but he said it was not for an extended period, because the bedroom “was packed with stuff”. Detective Miranda, who was overlooking the search, might have gone in. He did not remember if DC Khan went into the bedroom to search. DC Gorski admitted that at a preliminary inquiry on September 28, 2023, he did not say he was ever searching in the bedroom with anyone else, but he testified that he did not think he was asked that question. I have no evidence to the contrary on that. As I will come to, DC Keveza recalled searching in the bedroom.

107DC Gorski did not seize any cash. He testified that he did not locate any cash in the bedroom. If he had, he would have seized it and handed it over to the exhibits officer. They had located a large amount of drugs, and so cash would be relevant to a charge of possession of proceeds of crime. He did not recall anyone else finding money in the bedroom.

108After the search was completed, DC Khan, the Exhibits Officer, had all the evidence in a central area. DC Gorski testified that he gave what he found to DC Khan in the hallway, because they had a lot of property in the property bag.

109DC Gorski did not search the shelving unit with two drawers where Mr. Shamim alleges his Notebook was. DC Gorski was asked what he would have done had he seen a book with handwriting in it. In my view, that evidence is not helpful, as there is no doubt that he did not search the drawers where Mr. Shamim alleges the Notebook was kept. His evidence as to what he would have done is therefore irrelevant.

Evidence of Detective Miranda

110Detective Miranda was the OIC present at the search. He testified that it was a small condominium, so he did not need to assign people to different searches. He just directed the officers to different areas. He personally did not search. He testified that he usually does a walk around after a search, to ensure an officer has not forgotten a vest and to look for damage. It was not clear if he recalled doing so in this case.

111While the officers were searching, Detective Miranda became aware of the fact that Mr. Shamim had a locker in the building. He got a second set of keys and returned to search the locker and found more drugs there. I presume this was after DC Berry obtained a search warrant for that search.

Evidence of Detective Constable Michael Wecker

112DC Wecker was present at the time of the arrest but did not believe he was in the lobby. He did not see the arrest. Once Mr. Shamim was arrested, he went up to the apartment to do the search.

113DC Wecker was the Central Notetaker during the search. He testified that he made notes as things were happening. He had his rough notes, which were examined during his cross-examination. He testified that one detail was added later, namely that he showed Mr. Shamim a copy of the search warrant once Mr. Shamim was placed in the transport vehicle, and DC Wecker told him that they were executing a search at that time. DC Wecker would have told Mr. Shamim that the police had a key and that he would lock the unit himself. This would have taken a few minutes and then he went upstairs for the search.

114DC Wecker also drew the map of Mr. Shamim’s apartment, which included what he described as the agent numbers of the officers for different areas they searched. He confirmed the accuracy of a copy of the map that had the names of the officers that Ms. Rivers added.

115DC Wecker testified that the other officers that entered Mr. Shamim’s apartment to search were Gorski, Berry, Khan, Asner and Miranda. He did not note in the Central Notes where everyone searched, although he did note on a map of the apartment where some of the officers were searching. DC Wecker testified that he would expect officers to note in their own notes where they searched. Officers Miranda, Kevesa and Berry are not shown on this map searching any location.

116DC Wecker testified that he searched three areas; the tiny powder room, the balcony area and the weight area in the corner where there was some weightlifting equipment. In addition to the weight area, he searched the bookshelf with the two drawers. He believed he searched these areas by himself. He did not find any items of evidentiary value. He did not recall if anyone helped him search this area, although that sometimes happens. DC Wecker testified that he was searching for records, such as debt lists with amounts owing, and sometimes more detail with the type and amount of a drug. Sometimes he would see something like “9 pack” or “9 outs” or that something was given on consignment or loan. A debt list could be on a scrap piece of paper or a napkin with dollar amounts, or a even store memo book.

117DC Wecker was shown the Exit Video where, at 59 seconds into the video, you can see that one of the drawers of the bookcase is open a crack. When DC Wecker saw that the top drawer was ajar, he testified this refreshed his memory and he testified that he assumed that he went through that drawer at some point, but he still had no recollection. He was sure, however, that he would have searched the drawers. He had no note of finding anything.

118With respect to the Notebook, he would have flipped through the pages to see if there was any relevant content. He was shown the Notebook and the back page of the Notebook and testified that it was consistent with a debt list. He would have considered it a form of debt list and seized it, had he seen it.

Evidence of DC Khan

119DC Khan’s assigned role during the search was to be the Exhibits Officer. If an officer found an item to be seized, then that officer would tell the Central Notetaker and him and a note would be made. The item would be put in a property bag and given to him. He would then put that information in a property report. Items that were seized were submitted to property or Health Canada.

120DC Khan testified that he was also searching the unit. He searched the center of the living room and found items in an ottoman, which he seized. He also helped DC Asner search in the kitchen. He located Canadian currency on the kitchen island totalling $1,340. He did not do any searching in the bedroom.

Evidence of DC Berry

121DC Berry has been with Major Crimes for the last year and a half. In 2021 he was with the Toronto Drug Squad. He was promoted there to sergeant.

122Once DC Berry heard there was a storage locker, he went back to the office to get a search warrant to search it and Mr. Shamim’s vehicle. He did not note when he left the apartment.

123There is no reference on the map of the apartment to DC Berry helping in the search. With respect to the shelving unit in the living area, he did not recall what he searched in that area. He did not recall searching the drawers of the shelving unit. DC Berry was shown the Notebook and had no recollection of it. He did not recall if anyone searched in that area with him. During the search, he said that they were looking for drugs, packaging material for drugs, drug paraphernalia, debt lists, proceeds of crime, cell phones, identification documents, and tenancy agreements to show control of the apartment.

124He had no recollection of the Notebook. If he had seen a notebook, he would have skimmed through it, but not thoroughly. If he saw a debt list, it would have jumped out at him. The drawers would have been searched.

Evidence of DC Keveza

125By the time DC Keveza attended at Mr. Shamim’s unit for the purpose of the search, it was already underway. He first assisted DC Gorski searching the bedroom. He searched the items on the bed as DC Gorski placed items there. He did not believe that he searched the laundry hamper in the bedroom unless the items in it were dumped onto the bed. DC Keveza testified that there was a lot of stuff in the bedroom, but it was a pretty neat apartment. He estimated that he was not in the bedroom for more than 10 minutes. When he was shown the shelving unit in the Exit Video, DC Keveza testified he could not remember looking in the drawers.

Evidence of DC Asner

126By the time DC Asner got to the apartment, the police had gained entry, and the Entry Video was done. He searched the freezer and refrigerator and located six items that were seized.

127He was also tasked with determining if Mr. Shamim had a storage locker or parking spot. He left the drugs that he had found in the apartment and went to the concierge desk. He got the keys from DC Gorski and went to the storage locker to search it. This was just as the search team was securing the apartment to leave. He did not find anything else of evidentiary value. He made no note of looking anywhere else.

The Entry and Exit Video of the Apartment

128Based on the times the Entry and Exit Videos were taken, the search of the apartment lasted about one hour. My relevant observations from these videos are as follows.

The Entry Video:

a) the apartment is very neat;

b) the drawers of the shelving units are completely closed;

c) there is nothing on the bed save for one piece of clothing;

d) there are no clothes on the floor

e) the laundry hamper is not visible as the closet door is closed.

The Exit Video:

a) the apartment is now very messy with various items on the floor,

b) there appears to be clothing in the washing machine consistent with Mr. Shamim’s evidence,

c) there are many items in a large rectangular storage box in the living area. There is no evidence about this piece of furniture, but I note that if the inside was searched, which it likely was, only a few items were left on the floor,

d) there are only a couple of items on the floor near the shelving unit. One item appears to be a video tape,

e) the top drawer of the shelving unit is slightly ajar. A small patch of royal blue can be seen, which is the same colour as the blue on the Notebook cover,

f) the bedroom closet door is open with the laundry hamper outside the door with the lid hanging open,

g) as the camera passes over the top of the laundry hamper there appears to be something inside. Zoomed in and slowing the video down to a quarter of its usual speed there does appear to be something that is dark in colour at the bottom of the laundry basket that is catching the light. It certainly could be a black plastic garbage bag at the bottom of the hamper, as Mr. Shamim testified. Two close-up photos were taken from the video, and the resolution is not as good as the video itself, but they too show that there is definitely something dark coloured at the bottom of the laundry bin. Even DC Gorski agreed with that suggestion in cross-examination,

h) there are no clothes on the floor or on the bed or anywhere else in the bedroom that are not hanging up in the closet, although I presume the piece of clothing seen in the Entry Video was still on the bed, covered by the mountain of items that were searched and moved to the bed,

i) DC Gorski testified that this video shows the items that he took out during the search of the bedroom that he put on the bed. A Rolex watch, in what appears to be its original case, is on the bed, along with many other items. A certified cheque and money order were not seized.

129Two photographs taken in the fall of 2020 were entered into evidence, and they show cash in what looks like the same bowl on Mr. Shamim’s kitchen counter as the one in the Exit video. These were introduced to corroborate Mr. Shamim’s evidence that he kept significant amounts of cash in this bowl. That evidence was not challenged in any event, as that is where cash was found during the search.

Analysis

The Law

130In the recent decision of R. v. Brunelle, 2024 SCC 3, 92 C.R. (7th) 219, at para. 29, the Supreme Court of Canada stated that a stay of proceedings will only be ordered where the situation meets the high threshold of being one of the “clearest of cases”. The defence must establish that proceeding to trial, in all the circumstances, would undermine the integrity of the judicial process. The Supreme Court, at para. 29, outlined the three-part test:

(1) there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that will be “manifested, perpetrated or aggravated through the conduct of the trial, or by its outcome”;

(2) there must be no alternative remedy capable of redressing the prejudice;

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

[Citations omitted.]

131These conditions are cumulative and none of them are optional: Brunelle, at paras. 58, 114. This three-part formulation was first adopted in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 32.

132As I have said, Ms. Rivers fairly conceded that if I find that the police stole cash from Mr. Shamim’s apartment, a stay of these proceedings must be granted, as no other remedy would distance this court from the misconduct of police that this court must denounce in order to preserve the integrity of the justice system.

133With respect to the use of excessive force, both counsel referred to R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 34-35, which summarize the legal standard from s. 25(1) of the Criminal Code as follows:

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

35 Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 1981 CanLII 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

Assessment of Credibility

Mr. Shamim

134Mr. Moustacalis submitted that Mr. Shamim’s evidence was candid and easy to follow. He argued that he was not touched by vigorous cross-examination and had a good explanation for why there was $5,000 in his laundry hamper. I agree that Mr. Shamim was a convincing witness overall. He was very careful in giving his answers, but not in a way that suggested he was being evasive. That said, as I will explain, I have some concerns about his evidence related to his claim of excessive force.

135Before dealing with the issues raised by Ms. Rivers, I will clarify how I will use the further evidence of Mr. Shamim in the ASF with respect to his discussions with Mr. Moustacalis. In cross-examination, when Ms. Rivers put to Mr. Shamim that he knew that a stay could result from an allegation of theft of money by police, he answered that he knew this now but had no idea “initially”. She then suggested to him that he made up the weekly log in the Notebook “after the fact in order to substantiate the theft” that he is alleging. Mr. Shamim responded that he provided the weekly log to his legal counsel long before he received the disclosure and knew the amount of money the police said they seized. Ms. Rivers then stopped him, raising a concern about solicitor-client privilege.

136When Mr. Shamim was arrested, he was told there were three counts of possession of property of crime, but he was not told he was charged with under $5,000. He did not know how much cash police had seized until he received disclosure. The purpose of the further evidence in the ASF was simply to rebut any suggestion that Mr. Shamim fabricated his allegation of theft after he was charged, and after he knew from Mr. Moustacalis that he could seek a stay of these proceedings if the police stole money during the search. The fact that he told Mr. Moustacalis that he had $5,000 in his apartment along with the cash in the bowl and showed him the weekly log before he had disclosure of what amount of cash the police seized, rebuts that suggestion. However, what Mr. Shamim told Mr. Moustacalis is a prior consistent statement and does not make his evidence before me more likely to be true. It just neutralizes any argument that he created the weekly log and fabricated his allegation of the theft of $5,000 once he knew he could get a stay for police theft of money during the search.

137Mr. Moustacalis relies on the fact that Mr. Shamim did not know how much cash police would say they seized before he showed the weekly log to him and told him about the $5,000. He points out that he also did not exaggerate the amount of money in the bowl on the kitchen counter. Mr. Shamim was working in a vacuum, as he had not seen any disclosure. The difficulty with this submission is that if it is the case that Mr. Shamim did not in fact have $5,000 hidden in the apartment, he would know that there would be no reference to such a sum of cash in the list of property seized.

138Ms. Rivers argued that it would make sense that Mr. Shamim knew, even before he was told by Mr. Moustacalis, that he could get his charges stayed if police stole money from him because he could have heard this on the news or from drug associates. When I put to her that she had not put this suggestion to Mr. Shamim, she referred to the most recent case on Browne v. Dunn, from the Court of Appeal, although not by name. She submitted that he clearly would have denied this, and so she did not breach the rule.

139Mr. Moustacalis argued that Mr. Shamim’s evidence that he knew about a stay much later was not challenged. I believe Ms. Rivers was referring to R. v. McDonald, 2025 ONCA 807, 179 O.R. (3d) 721. In that case, the court confirmed at para. 59, that the rule requires the cross-examiner to confront the witness on matters of true substance to give the witness an opportunity to explain unless it is apparent from the tenor of counsel’s cross-examination that they do not accept the witness’s version of events, the confrontation is general and known to the witness, and the witness’s view on the contradictory matter is apparent. In my view, Ms. Rivers should have put these suggestions to Mr. Shamim, but I agree with her that the most likely response from him would have been a simple denial. Certainly, without putting the suggestion to Mr. Shamim, I have no evidence to consider on the point, and there is no evidence to contradict Mr. Shamim’s evidence that he did not know about this until later. In my view, the fact that he asked Mr. Moustacalis if he could use the money police seized from his apartment for legal fees does not suggest he knew about the remedy of a stay.

140Ms. Rivers submitted there are several reasons why I should not believe Mr. Shamim. First, she argued that he was a commercial drug dealer and motivated by fraud. He had voluntarily engaged in criminal conduct. She submitted that I should approach his evidence with caution, unless confirmed by other evidence. Mr. Moustacalis submitted that even though Mr. Shamim admitted to selling drugs, that does not mean I should conclude that he is not believable, because that crosses the line into character evidence. In my view, although Mr. Shamim has admitted for the purpose of this application only to engaging in illegal drug dealing, he does not have a criminal record currently. Furthermore, the admitted conduct does not involve a crime of dishonesty, and so it does not inherently make him an unbelievable or less credible witness.

141Ms. Rivers also submitted that I should find Mr. Shamim’s evidence not credible because his personal training business is in fact fake and he was lying about it. In support of this submission, Ms. Rivers argued that Mr. Shamim admitted he was not keeping records for this legitimate business, whereas he wants me to believe he was keeping a record for his illegal sale of drugs.

142I have carefully reviewed the evidence on this issue. Ms. Rivers asked Mr. Shamim if he kept “books” for the purpose of declaring his income from training for his income tax returns. He responded that he did not, but testified that he was able to track his income using his bank records. Although I agree this is unusual given his educational background, I could not find that answer is not true. Mr. Shamim was also asked if he was not “writing down” to keep track of how many sessions a training client had purchased and redeemed, and that he was not doing “that type of bookkeeping” and he admitted he was not. That, on its face, seems unusual, as I am not clear on how Mr. Shamim kept track of that information, but he was not asked if there was another way this was recorded other than by Mr. Shamim writing down. In any event, without more, I could not conclude that evidence was not true.

143Ms. Rivers also submitted that Mr. Shamim minimized or trivialized the extent of his drug dealing practice. He testified he was making “very little money” and yet he had multi-kilograms of Schedule 1 drugs in his apartment and storage locker. She also submitted that according to his weekly log, he made $10,000 in four days and would have made more but for his arrest. This answer from Mr. Shamim came up when he was asked when he had last restocked his supply of drugs, and after he said he was “making very little”, he immediately corrected himself and stated he was not selling large scale amounts. This evidence was also in the context of the fact that I had already raised a concern about this line of questioning, after Mr. Moustacalis stood to make an objection. The evidence on the application was not for trial. After some discussion, I agreed to give Ms. Rivers some latitude to get a sense of the amount of money Mr. Shamim would have in his apartment at any given time in relation to his drug dealing. In short, Mr. Shamim did not say that he was only making very little money from the sale of drugs.

144Ms. Rivers submitted that Mr. Shamim was prone to exaggeration in his evidence. She reviewed his bank records to establish that he was not always making weekly deposits to his bank, and when he did, they were not always $5,000. Mr. Shamim was not asked about the fact that he did not make a weekly deposit in a particular week, so I do not know what his explanation would have been, but he did not say that when he deposited money, it was always $5,000. He said he would deposit whatever cash he had. Therefore, the fact the deposit amounts vary does not contradict his evidence.

145I do agree with Ms. Rivers, however, that Mr. Shamim exaggerated his evidence somewhat about the injury to his ankle. As Ms. Rivers submitted, there is no evidence that Mr. Shamim was told he might need surgery or that he was referred to a specialist. I also note there is no evidence that he tore a ligament. Ms. Rivers also submitted that Mr. Shamim had been told to see a doctor if he was still in pain after two weeks, and he did not do so. The record, however, states he was to seek “medical care if the pain is ongoing in two weeks’ time”. I agree that suggests a doctor, but that is not clear. Mr. Shamim testified that he saw a physiotherapist. He did not provide a record of this, but his evidence that he did so was not challenged.

146Ms. Rivers submitted that the reference to “Kev” in the weekly log for the day Mr. Shamim was arrested is a “red flag”. Mr. Shamim’s phones were seized at the time of his arrest, so he would not have access to the text exchanges with Russ. Mr. Moustacalis did not see the weekly log until May 18, 2021, and so Ms. Rivers argued that Mr. Shamim had four days to create the weekly log from the time he was granted bail on May 14. Ms. Rivers argued that the fact Mr. Shamim wrote “Kev” on his weekly log, instead of Russ, supports her position that the log was created after his arrest. Ms. Rivers also argued that Mr. Moustacalis cannot say that what he saw is in fact the weekly log admitted into evidence in this case, because they met via Zoom.

147As I have reviewed, the first undercover buy was set up by someone who held himself out as Russ, but the person who came to purchase the drugs was an officer who said his name was Kev. Mr. Shamim testified that Russ had always messaged him, but then he always sent “his boy Kev”. He assumed that it would be Kev coming again. He wrote Kev down on the Wednesday, the day he was contacted by Russ for the purchase and the day before the pick-up. Reading the messages closely suggests that this time, Russ was the one coming. In my view, that was not clear on the Wednesday when the order was placed. Mr. Shamim’s evidence that he believed Kev would be the one coming when he wrote the order down on his weekly log is not unreasonable, given the two prior undercover buys.

148Ms. Rivers submitted that Mr. Shamim’s evidence was “littered by convenient coincidences”. She pointed out that the weekly log begins on Monday, May 10 and yet Mr. Shamim deposited money on the Friday, May 7, which she submitted would suggest he did not do any drug deals on the Saturday/Sunday, which does not make sense. Ms. Rivers, however, did not ask Mr. Shamim about this and in any event, he did talk about going away at times to a cottage. If he did so that weekend, that would explain why the cash deposit was on Friday and nothing was recorded in a weekly log for that weekend.

149Having reviewed the various issues raised by Ms. River, they do not raise the concerns about Mr. Shamim’s credibility that she suggested. However, I am left with my concerns about Mr. Shamim’s evidence about what happened during his arrest, which I will come to.

The Officers

150As I will come to, Mr. Moustacalis challenged the credibility of DC Gorski, Detective Miranda, DC Asner and DC Keveza. He also made two more general arguments. He argued that I should reject the evidence that each of the officers gave, namely that if they saw another officer steal cash, they would report that officer to his superiors. He suggested, as colleagues, they would not do so, but I have no evidence upon which I could come to that conclusion with respect to these officers. In any event, as I will explain, the theft of cash could have been accomplished by one officer, without any other officer seeing it.

151Mr. Moustacalis also suggested that there could have been collusion in the taking of notes, given the officers took most of their notes after a debrief. I do not accept that submission. First, Mr. Moustacalis did not put that suggestion to the officers, although I am sure they would have denied that suggestion. As Ms. Rivers submitted, the fact that the evidence of the officers is not all identical, and the fact that the takedown was described in different ways by the various officers, is consistent with the fact they did not collude and the fact they all had different vantage points. I would add that is also consistent with the fact that this event occurred over five years ago.

DC Gorski

152With respect to the credibility of DC Gorski, I found him to be a very convincing and confident witness. He was responsive to questions from both counsel. I did have some concern about the incredible detail he seemed to recall about the arrest of Mr. Shamim, but he testified that he has some description of the arrest in his police notes, which of course he had been able to use to refresh his memory before he testified.

153In cross-examination, DC Gorski was asked about a decision by Dunnet J., R. v. Fortune, 2016 ONSC 2186, where she did not accept some of his evidence. Her findings were reviewed with DC Gorski in some detail and in each case, he disagreed with the finding and the reasons given for her finding. DC Gorski testified that he was cleared of any of these issues but did realize that he should make more detailed notes. When Mr. Moustacalis raised the issue later, after he had finished cross-examining DC Gorski, the question of whether he could go further by providing evidence from the hearing before Justice Dunnet was argued. For reasons I gave on the record, I did not permit Mr. Moustacalis to essentially relitigate the evidence that Dunnet J. heard so that I could make my own findings.

Detective Miranda

154I found Detective Miranda to be very fair in giving evidence. In cross-examination, Mr. Moustacalis asked Detective Miranda about a third-party complaint when a person videoed an arrest he was making on the street and complained about his conduct. Detective Miranda explained how the complaint was resolved. I did not permit Mr. Moustacalis to introduce the video that was taken by the complainant, as in my view, it was clearly irrelevant. The circumstances of that arrest, based on the evidence of Detective Miranda, were very different than Mr. Shamim’s arrest. It would not have been able to show any propensity on his part to act in a particular way relevant to what I must decide in this case.

DC Asner

155DC Asner also seemed to be a fair witness. He was taken to a portion of his evidence at the preliminary inquiry where he was asked questions about a comment made by a judge in a decision called R v. Saunders, [2010] O.J. No. 4612, where the judge found that he and a partner had made a mistake in an arrest from 2009. DC Asner agreed that it made a difference in his notetaking, but testified that in this case, there was a central notetaker who would record what he found and where he found it. DC Asner testified that he had noted where he searched and if he searched anywhere else, he would have noted that as well.

DC Keveza

156Mr. Moustacalis argued there were inconsistencies in the evidence of DC Keveza. At the preliminary hearing he said that the takedown “would not be soft”, but at trial he said that it was “nonchalant”. He suggested that DC Keveza was trying to minimize or he did not have a good recollection of what happened. I agree that the evidence of DC Keveza was problematic in this regard, but his evidence is not critical to the findings of fact that I need to make.

Findings of Fact

Was Excessive Force Used in the Arrest of Mr. Shamim?

157Although Mr. Shamim believed it was only one officer who made contact with him to take him down to the floor, on this issue I find Mr. Shamim’s evidence was simply not reliable. The evidence that both DC Gorski and Detective Miranda did so was not challenged. I find that they both approached Mr. Shamim and as he said, they are both big men. DC Gorski is 6’1” tall and weighed 215 to 220 pounds at the time. He testified that Mr. Shamim was a bit bulkier at the time of arrest, compared to now, but agreed that Mr. Shamim was smaller than him. At the time Detective Miranda weighed about 190 pounds, and his height was 5’10 ½”. He admitted that Mr. Shamim’s build at the time was smaller than his. Mr. Shamim, however, was a personal trainer who saw his own trainer twice weekly and was in his early thirties at the time of his arrest. This is consistent with him being a strong guy, as DC Asner observed.

158I accept Mr. Shamim’s evidence that when DC Gorski and Detective Miranda approached him, he did not realize they were police officers. The officers were in plain clothes with their jackets zipped up to cover their police vests. It is unclear how far they were able to unzip their jackets to show their police vest. They did not show their police badges, although I accept the evidence of DC Gorski and Detective, they said they were Toronto Police and that Mr. Shamim was under arrest. This was corroborated by other officers who were present. I also find it likely, however, that they announced they were police just as they were both grabbing Mr. Shamim’s arms. The arrest happened so quickly and likely did not register with Mr. Shamim because, as he put it, he was in shock. As DC Gorski and Detective Miranda each grabbed one of Mr. Shamim’s arms, I accept the evidence of the officers that they felt Mr. Shamim tense up. Mr. Shamim denied this, but I do not accept that denial in the circumstances. Given his admission that he was shocked and surprised, I do not see how he could not have reacted in some way, given the circumstances.

159The issue that arises is whether, as Mr. Seymour-Butler submitted, DC Gorski and Detective Miranda should have refrained from grabbing Mr. Shamim and taking him to the floor before they properly identified themselves and gave him an opportunity to comply with the police demands by putting his hands behind his back. Mr. Shamim was outnumbered and was holding a gym bag. Mr. Seymour-Butler submitted that the officers’ desire for an expedient and quick arrest overrode the need to take things in a more controlled approach.

160The evidence on the timing of the sequence of events is not clear. I do not know how much time Mr. Shamim was given to comply before the officers grabbed his arms. I can conclude that he was likely unresponsive because he was in shock. Furthermore, in cross-examination of the officers, it was not suggested to either officer that it was not necessary to take Mr. Shamim to the floor. They were cross-examined on Mr. Shamim’s evidence that they stomped or jumped on his back and legs while he was face down on the floor, which they both denied. I do not know what the officers would have said, but they were both clear that the arrest had to be quick and done safely. They needed to get control of Mr. Shamim as quickly as possible, as they were in the lobby of a publicly accessible building, near the elevators, and at any time someone could come out of the elevator. Furthermore, Mr. Shamim was an unknown person that they were arresting for at least trafficking cocaine. They believed Mr. Shamim had done this twice before with one of their colleagues working undercover and he was about to engage in a third transaction. The concern Detective Miranda raised about the possibility of a firearm was also a realistic one in those circumstances. Although Mr. Shamim was not known to have a firearm, I agree with Boswell J. in R. v. S.B., 2020 ONSC 5406, at para. 61: “Whether it is a matter of common human experience or of judicial notice, drugs and guns are frequently intertwined”.

161The main factual issue from Mr. Shamim’s and the officers’ evidence is whether one of them lifted Mr. Shamim up and slammed him to the floor, and whether they then stomped and jumped on his back with the whole weight of their bodies. If I accepted Mr. Shamim’s evidence, then without a doubt that would not be a proportional or reasonable response. However, I find that the officers did not slam Mr. Shamim to the floor or jump and stomp on his back as he alleges. On this point, Mr. Shamim is not being truthful, or at least he was mistaken in translating what he felt. I find that it happened suddenly, he was shocked and surprised, and once he was on the floor, he was face down and could not see what the officers were doing. Simply put, if he was slammed down to the floor, face down, he would have some injury from that force, although it was not clear from his evidence if he used his arms to break his fall. However, if what Mr. Shamim said about the jumping and stomping on this back and legs was true, with these big officers using all of their body weight, he would have had serious injuries at least to his back and legs, or at the very least, bruising.

162I accept the evidence of DC Gorski that he did not target Mr. Shamim’s neck and that he tried to break Mr. Shamim’s fall to the ground. If DC Gorski did not manage that and Mr. Shamim fell directly onto the hard floor, I find that this was not deliberately done to hurt him. Once he was on his stomach on the floor, Mr. Shamim would have felt pressure on his back as the officers wanted him to bring his hands out from under his body to handcuff him. This did not take long to do, but having found the officers were not jumping on Mr. Shamim’s back, I accept their evidence that the pressure they did apply to his torso with their bodies was to get him handcuffed and that Mr. Shamim was resisting. The only injury Mr. Shamim suffered as a result was a sprained ankle, which in my view must have happened because of the fall, not the deliberate action of any of the officers involved in his arrest. The sprain was the incidental result of the decision to take Mr. Shamim to floor. The injury to his foot was inadvertent and did not result from excessive force. There is no reason to doubt the operational decision to take Mr. Shamim to the ground.

163Defence counsel also argues that the treatment of Mr. Shamim after the arrest is conduct that falls into the alleged s. 7 Charter breach. I agree. Mr. Seymour-Butler submitted that the officers did not have any sense of urgency in addressing Mr. Shamim’s expression of pain. I do not accept that submission. I find that the transport officers heard at least some of Mr. Shamim’s complaints about injury to his foot or leg and that he claimed he was in severe pain. Their decision to take him to the station instead of immediately to the hospital was a reasonable one. There is no evidence that Mr. Shamim might have suffered a broken ankle or foot, and he was not bleeding. The evidence of Officer Crosbie that a further search was necessary to ensure Mr. Shamim was not hiding drugs on his person was important. It was a two-minute drive to 14 Division and not much of a distance. The wait in the sally port was unfortunate, but once Mr. Shamim was booked and searched, his complaint was checked out and following a brief level two search, he was taken to hospital. He was at the emergency department with an hour of his arrest.

164For these reasons, I do not find that excessive force was used in arresting Mr. Shamim. The officers were justified in using some force to arrest Mr. Shamim. I agree with Ms. Rivers that because of the injury to Mr. Shamim’s ankle suffered during the arrest, I have jurisdiction to reduce his sentence somewhat should he be convicted. The defence application alleging use of excessive force is dismissed.

Was Cash Stolen During the Search?

165I come then to Mr. Shamim’s allegation that police stole $5,000 in cash when they searched his apartment.

166A preliminary factual issue I will consider is the authenticity of the weekly log. Was this log created at the time and for the purpose Mr. Shamim testified to, or did he fabricate it after his arrest?

167The first question is whether the drawer of the bookcase where Mr. Shamim testified he retrieved the Notebook from was searched by police. It was fully closed in the Entry Video and slightly ajar in the Exit Video. Based on the little than can be seen in the open drawer, and given the colour of the Notebook, I find that what we see is the Notebook. That, of course, does not mean that it contained the weekly log at the time of the search.

168The officer who searched that area of the apartment was DC Wecker and he said he was responsible for searching the shelving unit. Officer Berry said he searched the area, but he did not recall searching the shelving unit or inside the drawers and I note he is not shown on the map as a searching officer. Mr. Moustacalis submitted that DC Wecker’s evidence was based more on his usual practice rather than an actual recollection of what he did. I agree. Although DC Wecker testified that his memory was refreshed when he saw that the top drawer was ajar in the Exit Video, he then testified that he “assumed” he went through that drawer at some point, but he still had no recollection. He then said that he was “sure” that he would have searched the drawers, but that must be a belief based on his usual practice and the fact the drawer was ajar.

169Mr. Moustacalis submitted that the best practice for searching would be to take everything out of the drawer and leave it on the floor. He questioned if the drawer was even searched, as there were no items from the drawer on the floor. I cannot conclude from the evidence that if the drawer was searched, that the contents would be on the floor. As I have said, there is a storage box in the living area that is open that can be seen in the Exit Video; although it is possible some items were taken out of it and put on the floor, there are still quite a lot of items in the box.

170The fact the top drawer is ajar suggests the drawer was at least opened and there was a cursory look through the drawer. I agree with Ms. Rivers that DC Wecker at least opened the drawer, because it was left slightly open after the search. She submitted that he was looking for a debt list and would easily be able to locate the last page of the Notebook. She relies on the fact that they did not locate the weekly log to support her position that the weekly log was not there at the time of the search. I disagree. If DC Wecker did go through the contents of the drawer, since he would only have flipped through the Notebook, I do not agree that he would have necessarily found the weekly log. He likely would have started from the front, and the beginning of the Notebook has notes of miscellaneous information dating back to 2012. A good portion of the pages are then blank. Had DC Wecker flipped through the Notebook as he said his practice would be to do, he could have easily missed the last page with what Mr. Shamim called his weekly log and concluded that Notebook was irrelevant and left it in the drawer.

171I therefore find that the weekly log could have been in the Notebook at the time of the search, and that DC Wecker did not notice it. I accept that if he had, he would have seized it. I also believe there is merit to Mr. Moustacalis’ submission that the police knew they had an excellent case for charging Mr. Shamim with trafficking in cocaine, given the two undercover buys and the large amount of Schedule 1 drugs they easily found in his apartment. In these circumstances, searching specifically for a debt list would be less important. Mr. Moustacalis also submitted that this also led to sloppy recording of the actual search, in terms of noting down which officer was responsible for different areas of the search.

172In his closing submissions, Mr. Moustacalis stressed the importance of proper notetaking, as set out in several cases from the Supreme Court of Canada. He essentially made two points. He complained that the officers did not note where they searched, save for DC Asner, and they only recorded what they found. It is his position that they should have noted where they searched, even if they did not find anything. He submitted that there should have been notes about whether the drawers of the shelving unit were searched and that the lack of notes should be “held against the Crown”.

173The cases Mr. Moustacalis referred to talk about the importance of note taking during an investigation. I agree there should have been better notes of who searched where, but I do not agree that the police had an obligation to record every item of furniture that they searched unless something was found inside. In any event, although I have had to rely on other evidence to determine the extent of the search of the shelving unit, I only need to find that at least one officer searched Mr. Shamim’s bedroom where he alleges that he had hidden $5,000 in cash. I need to consider, whether on a balance of probabilities, that an officer, or even more than one officer, took cash from Mr. Shamin’s apartment. It does not matter to my determination of this issue who that was. I only need to determine if it happened.

174There is no dispute that at least DC Gorski searched the bedroom. I accept his evidence that the room was “jam packed with stuff”, as that is clear from the mound of items that were removed from the furniture and put on the bed. It makes it likely that someone assisted him, although he was not clear in his recollection of that or who did. DC Keveza testified that he first assisted DC Gorski searching the bedroom. He searched the items on the bed as DC Gorski placed items there. He did not believe that he searched the laundry hamper in the bedroom, unless the items in it were dumped onto the bed.

175I have carefully looked at the original Notebook and the last page referred to as the weekly log. I accept that it is possible that Mr. Shamim created this weekly log after he was arrested, since the Notebook was not seized. I accept it is possible that Mr. Shamim either made up the weekly log for the first time after his arrest, or he altered the log that he had already made.

176There is no doubt that the Notebook itself has been used for some time. There are notes that appear to have been written by someone other than Mr. Shamim relating to genetics, and although not clearly dated as such, 2013-2014 appears and the top of one page and 2019 at the top of another near the beginning of the Notebook. After these notes, the pages are mostly blank, save for a couple that Mr. Shamim said were for keeping score in a game.

177Having closely examined the original Notebook and the original weekly log, there is no obvious sign that alterations were made to make the math work in terms of having cash orders for drugs add up to $6,340. Just looking at the weekly log itself, it all appears to have been written with a black pen. There are a couple of places, where as Ms. Rivers pointed out, Mr. Shamim wrote over the name a second time, but only to redraw the same letter, not to change a letter. Mr. Shamim testified that that could have happened if his pen was running out of ink. I have considered the fact that all the writing was done with a black pen and so it is not possible to confirm this, but I accept that is a possible explanation. Certainly, if this was a document created after the fact, I would not expect this to be done. I do not know what Mr. Shamim’s usual handwriting is, but the writing on this page is quite messy, certainly messier than what I would expect if it were created after the fact. The list does not appear on its face to have been made all at the same time. Certain names are scratched out and if Mr. Shamim created this list after the fact, why Mr. Shamim would have put down “Tony?” for the Saturday and nothing for the Sunday.

178I have also considered the arguments made by Ms. Rivers in support of her position that it was created after the fact and dealt with them. In particular, I have dealt with what she referred to as the “red flag” of the reference to “Kev” on May 13th. I cannot be certain without expert evidence, but on balance, I find that the weekly log is likely authentic. It was not created by Mr. Shamim after his arrest, but rather he prepared it beforehand in the manner he testified to.

179That log, along with Mr. Shamim’s bank statement, provides some corroboration to his evidence that he had $5,000 cash hidden in the apartment. There is also other evidence that corroborates this.

180First, DC Gorski’s evidence is not borne out by the Exit Video. I accept that he would have searched the laundry hamper, but find that it did not contain any clothing, which corroborates the evidence of Mr. Shamim. If it had, I accept that DC Gorski would have emptied the hamper onto the floor or the bed. There is no evidence of clothing on the bed or the floor, although I accept it is possible that the hamper simply did not have any clothing in it at the time.

181Mr. Shamim’s evidence that he could see the black garbage bag at the bottom of the hamper in the Exit Video, along with my own observations that could be what I see, is strong evidence that he used one to hide cash as he testified to. Had DC Gorski or another officer searched the hamper and found the black plastic bag, it would not have been difficult to find the cash, as the bag was otherwise empty. They could then hide the cash on their person and not be detected by anyone else in the apartment. The fact that the plastic bag is still in the hamper is also consistent with it having contained cash, as otherwise I would have expected the bag to have been pulled out of the hamper and left on the floor.

182The onus on Mr. Shamim is a balance of probabilities - do I find it more likely or probable that the police stole $5,000 from his apartment during the search? Despite the issues I have with Mr. Shamim’s credibility with respect to his evidence about his arrest and the injury to his ankle, I believe his evidence about the weekly log and the fact that he had $5,000 in cash hidden in a black plastic garbage back at the bottom of his laundry hamper. His evidence is corroborated by several other facts that tip the scale in his favour, as follows:

(a) I have found the weekly log to be an authentic document, and the transactions there, in addition to Mr. Shamim’s banking records, establish that he should have had $6,650 in his apartment, less the cash Mr. Shamim used to pay for some expenses. $1,340 was seized from the bowl on the counter, which Mr. Shamim accepts is correct, so $5,000 is unaccounted for.

(b) I also find that there are corroborating facts from the Entry and Exit Videos, as follows:

a. There is no evidence of any clothing in or around the laundry hamper, and so it must have been empty as Mr. Shamim said;

b. I do see something a bit shiny on the bottom of the open hamper very briefly, which could be a black garbage bag as Mr. Shamim testified to. That evidence was not challenged; and

c. There are clothes in the washing machine, which also corroborates his evidence that he did not use the hamper for dirty clothing.

183Mr. Shamim’s evidence about why he used the figure of $5,000 may seem arbitrary, but that is what he chose to do.

184For these reasons, I find that $5,000 was likely stolen by the police during the search of his apartment. I stress that this finding is made on a balance of probabilities, not using the standard of beyond a reasonable doubt. This finding also means that at least one officer lied in giving evidence before me, which compounds the misconduct.

Disposition

185Having found that the Mr. Shamim has proven on a balance of probability that police stole cash from his apartment, a stay of these proceedings and of all charges in the Indictment must be granted, as no other remedy would distance this court from the misconduct of police. Notwithstanding the serious charges against Mr. Shamim, I have no choice but to grant the application, in order to denounce this misconduct and preserve the integrity of our justice system.

Spies, J.

Date: July 6, 2026

Edited Reasons Released: July 24, 2026