R v De Jong, 2016 ABQB 116

Court of Queen ’ s Bench of Alberta Citation: R v De Jong, 2016 ABQB 116 Date: 20160226 Docket: 130993850Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Simon Robert De Jong Accused _______________________________________________________ Voir Dire Decision of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ Table of Contents I. Background . 2 II. Evidence of Witnesses . 3 Constable Robert Weston Simmonds . 3 Constable Trevor Fraser 5

Constable Derek Leslie Carlson . 9 Sgt. Jason Dallas Reeves . 10 Mr. Simon De Jong . 10 III. Witness Credibility and Reliability . 10 Cst. Robert Weston Simmonds . 11 Cst. Trevor Fraser 11 Cst. Derek Leslie Carlson . 12 Sgt. Jason Dallas Reeves . 12 Mr. Simon De Jong . 13 IV. Issues . 13 V. Discussion . 13 1. Reasonable and probable grounds . 13 Defence’s position – re: grounds for arrest 13 Crown’s position re: grounds for arrest 14 Analysis . 15 2. Use of excessive force . 19 Defence’s position – re: use of excessive force . 19 Crown’s position – re: use of excessive force . 20 Analysis . 22 VI.

Disposition . 25 I. Background [ 1 ] I delivered an oral Synopsis of my Decision in this matter on February 26, 2016 and stated that formal written reasons will follow. [ 2 ] These are the written reasons. [ 3 ] On August 20, 2013, the police arrested Mr. Simon Robert De Jong [Accused or Mr. De Jong] in Fort Saskatchewan, in the Province of Alberta.

Following the arrest, an Indictment dated May 28, 2015 was filed, and the Accused stands charged with four counts: 1) Unlawful possession of cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19; 2) Obstruction of Constable Robert Simmonds, a peace officer and member of the Royal Canadian Mounted Police [RCMP] engaged in the execution of his duty by fighting, contrary to

section 129 (

a) of the Criminal Code , RSC 1985, c C-46 [ Criminal Code ]; 3) Obstruction of Constable Robert Simmonds, a peace officer and member of the RCMP engaged in the execution of his duty by attempting to destroy evidence, contrary to

section 129 (

a) of the Criminal Code ; and 4) Possession of property not exceeding $5000, knowing that the property was obtained by the commission of an offence punishable by indictment, contrary to

section 355 (

b) of the Criminal Code . II. Evidence of Witnesses [ 4 ] On this voir dire , the Crown called four witnesses: RCMP officers – Robert Weston Simmonds, Trevor Fraser, Derek Leslie Carlson, and Jason Dallas Reeves.

[ 5 ] The Accused testified but in a limited capacity. [ 6 ] From the Transcript in this proceeding, I have referenced below the evidence that are relevant for my disposition of the issues arising on this voir dire . Constable Robert Weston Simmonds [ 7 ] During examination-in-chief, Cst. Simmonds testified that, within one week of August 20th, 2013, when the Accused was arrested, he received information from a confidential source.

The information indicated that the Accused, aka “Kyle”, a male individual, was using a telephone number, xxx-903-xxxx, to traffic cocaine in Fort Saskatchewan, Alberta, and that the Accused was driving a black, two-door car, and an older red SUV. Cst. Simmonds, and other members of the RCMP, then took investigative steps to corroborate the information, and created an investigational plan, which confirmed the Accused’s address, the vehicle he was driving and would ultimately lead to his arrest. On the day of the arrest, Cst.

Simmonds and other members of the RCMP had kept covert surveillance on the Accused from the time he left his residence, throughout the City of Edmonton, and eventually to Fort Saskatchewan, where Cst. Simmonds observed what appeared to be a drug transaction between the Accused and an unknown customer. [ 8 ] After observing the suspected drug transaction, Cst. Simmonds and his team of RCMP officers believed that they had grounds to arrest the Accused, and accordingly, followed the Accused to a cul-de-sac in Fort Saskatchewan.

At this point, the Accused drove his vehicle into a driveway between a travel trailer and another vehicle. Following which, Cst. Simmonds and his team exited their vehicles and approached the Accused. Cst. Simmonds testified that it was his specific task to go to the passenger side of the vehicle, while Cst. Fraser and Cst. Carlson went to the driver’s side. At the passenger side, he saw the Accused swallowing pre-packaged cocaine with the assistance of a bottle of water.

Although he yelled at the Accused, “You’re under arrest, stop what you’re doing”, the Accused continued to try to destroy the evidence by swallowing the cocaine. He observed that either Cst. Fraser or Cst. Carlson removed the Accused from his vehicle, and brought him to the ground. He went over to where the Accused was on the ground with Cst. Fraser and Cst. Carlson, and he saw the Accused on the ground fighting the two officers with cocaine in the Accused’s mouth, while Cst. Fraser was preventing him from swallowing it. Cst.

Simmonds further testified that the Accused was on the ground in a confined area between his vehicle and a travel trailer, and that the Accused was wildly flailing his arms and kicking his legs. He then saw white bags of cocaine in the Accused’s mouth, and he tried to scoop them out of his mouth, at which time, the Accused grabbed his arm and raked his fingernails across his wrist. He testified that he saw the Accused acting in an assaultive manner towards Cst. Fraser and Cst. Carlson, and he refused to pay attention to their commands. [ 9 ] Cst.

Simmonds testified, that given the fact that the Accused had drawn blood by scratching him, he “punched him in the face basically to make him stop, and it worked because at that point they were able to get control of him. Once he was stunned from kind of the punch that I threw, we’re able to get him into handcuffs and subdue him finally after his struggle on the ground”. He stated that when he and his fellow officers were trying to subdue the Accused, they were, “all leaning over Mr.

De Jong trying to subdue him”, and that he did not recall suffering any other injury other than the scratching received from the Accused, which required treatment by way of a bandage. [ 10 ] In concluding his testimony, Cst. Simmonds described the manner of force, which he used to subdue the Accused as follows: A [CST. SIMMONDS] I used empty hand, control hard, is what I call it, which involved strikes and things of those nature. So I delivered a strike with my fist, his face. I punched him in the face to make him stop what he was doing so we could effect the arrest, and it worked.

We were able to subdue and get him into handcuffs after that. Q MS. RAWLUK: Do you recall how many times you had engaged in that maneuver? A I don’t think I have that noted, but I have noted several, but that means to me more than one. I did it until basically he stopped what he was doing and there was no more danger of the officers being assaulted..... Q And how long -- you indicated that you had hit him several times? A Until he stopped his assaultive behaviour, yes. Q When you stopped, did you hit him again after that? A No, when he stopped, I stopped, and we were able to get the handcuffs on him.

Q And to your knowledge, [as] to what you had seen, did any of the other officers engage in any of these maneuvers in order to subdue Mr. De Jong? A I recall Cst. Carlson trying to control his legs. Cst. Fraser was busy trying to make sure he didn’t swallow cocaine and possibly die, and I was kind of going in between trying to get the cocaine out of his mouth, and we were all actively trying to bring his arms and legs under control to arrest him.

[TT 23/ 33-41 – 24/1- 24] [ 11 ] During cross-examination, Cst. Simmonds confirmed that it was his belief that in order to be assured that the Accused was not concealing drugs on his person, at the time that the Accused was brought to the police station he would likely have had his clothes, and in particular his shirt removed. He testified that at the time the Accused scratched him on his wrist he was putting his fingers in the mouth of the Accused and was trying to get the cocaine out. At this time, the Accused had, “two other grown men on him”.

He confirmed that he weighed 215 pounds and that a fair assessment of the Accused’s weight would be 150 pounds. He could not recall if he was privy to any injuries occasioned to the body of the Accused but that “it stands to reason if he’s rolling about on a cement or asphalt driveway that he’s going to have scrapes on his body”. He also could not recall if any of the other RCMP officers had their knee on the Accused’s chest while the Accused was on the ground, or whether at the time, any of these officers had the Accused’s legs in control for most of the situation while he was present.

Upon being presented with photographs of the Accused without his clothes, Cst. Simmonds confirmed that there were red markings on the Accused’s lower shirt that could possibly be blood, the collar of the Accused’s shirt had been stretched, there were red markings on the Accused’s left arm and sleeve, and there were either a scrape or scrapes to the Accused’s hip, lower left rib cage, and face. [ 12 ] Cst. Simmonds further testified that he had known the confidential source for more than six months, and that, to his knowledge, none of the information provided by the source has led to a conviction.

He had received information from the confidential source that had been reliable in the past. He further testified that he witnessed the Accused park his vehicle in a parking lot in Fort Saskatchewan, adjacent to a townhouse complex; and that an individual left one of the townhomes, got into the Accused’s vehicle, and approximately 30 seconds later, exited the vehicle, and returned to his townhome. Cst. Simmonds said he did not see any exchange of monies or cocaine between the Accused and this individual, and that neither the individual nor the Accused’s vehicle was stopped.

Accordingly, he confirmed that he did not know what this individual looked like, the nature of any relationship between the Accused and this individual, what transpired while such individual was in the Accused’s vehicle; but in his experience, it was a drug transaction. Constable Trevor Fraser [ 13 ] During examination-in-chief, Cst. Fraser testified that in early August of 2013, he had received source information from a confidential informant to the effect that the Accused, who goes by the name of “Kyle”, was selling cocaine in Fort Saskatchewan, Alberta.

The confidential informant had advised him that the Accused was using the phone number xxx-903-xxxx as a dial-a-dope operation to sell cocaine, and was driving an older SUV and a black sports car. He testified that he had known the confidential informant for over one year, and that the informant had given him information on numerous occasions that had led to illegal drug seizures, charges and convictions. On the day of the incident, Cst. Fraser, Cst. Simmonds and Cst.

Carlson attended covertly at the residence of the Accused in unmarked vehicles in order to locate the vehicles and to confirm that the residence exists. [ 14 ] Cst. Fraser and other members of his team then followed the Accused in his red, Ford Explorer to Fort Saskatchewan. He testified that Cst. Simmonds voiced that they had what he believed to be a drug transaction, which formulated the grounds to believe that the Accused was, in fact, in the act of selling cocaine, and that he had more on him.

It was then determined that he and his team would conduct a vehicle takedown with their covert vehicles to apprehend and arrest the Accused for possession for the purpose of trafficking cocaine. He testified that they followed the Accused in his vehicle to a cul-de-sac, where the Accused had parked his vehicle on a driveway. Cst. Fraser exited his vehicle, walked to the Accused’s vehicle, and yelled, “Police. Stop. You’re under arrest”. He then observed the Accused put what he believed to be numerous small baggies of cocaine in his mouth, took a bottle of water, and tried to drink them down. At this point, Cst.

Fraser opened the driver’s side door of the Accused’s vehicle, and observed that the Accused had numerous pieces of what he believed to be cocaine coming out of his mouth. He advised the Accused that he was under arrest, and pulled the Accused from his vehicle. The Accused began to throw his arms and kick at him, and actively resisted Cst. Fraser by hitting his arms and legs.

He restrained the Accused by getting him down to the ground, and, at that point, he noticed that the Accused still had a large amount of cocaine in his mouth, so he put his left hand over the Accused’s neck to try and stop him from swallowing the cocaine. [ 15 ] Cst. Fraser testified that although he advised the Accused that he was under arrest and to stop resisting, the Accused continued to hit and throw his arms and kick his legs. He then concluded that he must try to restrain the Accused and get him on his stomach. At this point, Cst. Simmonds came to where Cst.

Fraser and the Accused were; and he observed Cst. Simmonds trying to scoop the pieces of what he believed to be cocaine out of the mouth of the Accused. Cst. Fraser testified that he and the Accused had now slid under the Accused’s vehicle, while he was still trying to roll the Accused onto his stomach. Cst. Carlson was assisting at this point, trying to restrain the Accused’s legs.

The Accused continued to get further and further underneath the vehicle, and he later managed to roll the Accused over onto his stomach, and placed the handcuffs on him. [ 16 ] Subsequently, he noticed that the nose of the Accused was bleeding, his eye was starting to swell, and he had scrapes along his back from the roadway, and he wasn’t sure what exactly had happened. He confirmed that at this time, Cst. Simmonds had advised him that he had hit the Accused in the face during the struggle to arrest him. Cst.

Fraser further testified that when he rolled the Accused over onto his stomach, he and the Accused both had their heads at shoulder length underneath the vehicle; and after placing the handcuffs on the Accused, he was brought out from underneath the vehicle and out of the area. He testified that during this time, the Accused had made contact with him but he could not remember exactly where, and that he had been shielding his face a lot at this time because numerous pieces of crack cocaine were flying in the air because of the struggle, and they had saliva on them as well. [ 17 ] Cst.

Fraser testified that he had not seen Cst. Simmonds strike the Accused. The Accused was taken to the RCMP detachment, at which time he noticed the eye of the Accused starting to swell. The EMS was contacted, and when they arrived, they assessed the Accused, determined that he would require possibly an x-ray for his face, and that he was to go to the hospital. He confirmed that he had taken photographs, in the cell area, of the Accused’s face and torso area; and then he and the Accused left with the EMS in an ambulance to the hospital.

He stated that during the entire time of the altercation, he had been in proximity with the Accused, and at no time did the Accused lose consciousness.

[ 18 ] During cross-examination, in answer to the Defence counsel’s question regarding the fact that the face of the Accused looked like he had been punched numerous times, at least more than once, with significant force, Cst. Fraser replied: “I can’t even -- I don’t even know what to say to that because -- well, I -- I wouldn’t know. I wasn’t -- I didn’t see how many times”.

He indicated that from the time he took the Accused from the vehicle to the time he had the Accused’s hands behind his back and in handcuffs, it had taken 10 seconds; and he did not sustain any injuries during the altercation which led to the arrest of the Accused. In his testimony, Cst. Fraser confirmed that Cst. Simmonds would have been present at the time of the arrest of the Accused for ten seconds, during which time the Accused was non-compliant. For at least a few seconds of that time, the Accused’s head was underneath the vehicle, and it would have been difficult for Cst.

Simmonds to get good leverage of the Accused in terms of a punch, while the Accused was underneath the vehicle. He also confirmed that during this time, he was dealing with the upper body and torso of the Accused. [ 19 ] The Court then examined Cst. Fraser, and the following questions and answers were provided: Q When you decided to make the arrest, and you were on the driver’s side with the accused, you had care and control of the accused upper body, so to speak? A At that point, he was still flailing his arms – Q You had -- A -- coming at me. Q But you were primarily concerned with the upper body, correct?

A Yes. Q And the other Cst. had care and control you might say of the legs trying to -- A He’s trying to -- yes. Q Okay. So all the time that you are trying to arrest the accused, you were primarily with the upper body, correct? A Yes. That’s correct. Q Right down to going on to the ground and then partially the head and shoulders of the accused and yourself under the Acura vehicle, correct? A Under the Ford Explorer, yes. Q Or Ford Explorer vehicle? A Yes. Q And you managed, at what point in time, to roll the accused over on to his back? A At what point in time in the altercation? Q Yes.

A I don’t know the time frame exactly, at that point. I had grabbed one of his arms, and that enabled me to flip him over at that point, which is how we’re trained in our handcuffing is to get them on their stomach to put handcuffs on both arms. Q So my question to you, Cst., is that you’ve rolled the accused over, correct? A Yes. Q At what point in time did you notice that the eye -- there was something wrong with his eye?

A I did not notice until we got Mr. De Jong up and I got him to the street to read him his rights and kind of calm down, and that’s when I noticed that -- because it was dark at this point. Q Okay. My next question is that while you’ve got the accused upper body restraining, or trying to restrain him -- A Yes. Q -- you’re there all the time. There’s no break in time, so to speak, where you’re away from the accused, or do you know what I mean? Do you follow what I’m -- A Like, as it’s going on, no. Q You’re always there -- you’re always there? A I am, yeah. Yes. Q You’re into a wrestling match, so to speak? A Yes.

Q You’re always there? A Yes. Q My question to you, sir, is that at no time, at no time, did you see Cst. Simmonds strike the accused in the face? A I did not. Q You did not? A No. [TT 97/41 – 99/1-22] Constable Derek Leslie Carlson [ 20 ] During examination-in-chief, Cst. Carlson testified that at the time of the incident that led to the arrest of the Accused, he saw Cst. Fraser pulling the Accused out of the vehicle onto his back. There was a struggle between Cst.

Fraser and the Accused, with the Accused’s head towards the front of the vehicle and his feet towards the rear tires, and he was swinging his arms back and forth. He further testified, “There’s a bunch of yelling going on. Stop resisting. That type of talk”. It got to the point where he was grabbing the Accused’s legs and feet. Cst. Carlson further testified, “We managed to flip Mr. De Jong onto his belly.

By doing that, the top -- like, the top third of his body -- so, yeah, I would say from about the chest up and then divided on to his right side would be under the vehicle, the red Ford Explorer that he was driving. So then I since got -- I have control of his legs and I’m bending them forward to his belt line to give him less leverage, to stop the bucking, to control his -- movements”. [ 21 ] Regarding whether or not he had seen Cst. Simmonds strike anybody, Cst. Carlson replied that he had not. He described the scene as follows: A [I]t was a melee.

Like, body limbs and parts flying around everywhere and people -- like, there was -- by this point, there’s some blood squirting out and there’s liquid. So there’s -- it’s a messy, dynamic altercation. And so when Cst. Simmonds comes around, [a] third of Mr. De Jong’s body is under the vehicle and we’re trying to pull him out and there’s flailing. [I] hear Cst. Simmonds yell, “Let go of my arm”. And then -- then we just pull him out. And so I don’t -- I just hear that yelled out. I didn’t yell it out, Cst. Fraser didn’t yell it out, so I’m assuming Mr. De Jong yelled it out.

But everybody’s yelling at everybody at this point, right? There’s things like, “Stop resisting. You’re under arrest. Stop. Police”. And then, “Let go of my arm”. Q And, I’m sorry, who did you believe shouted, “Let go of my arm”? A Cst. Simmonds.

[TT 107/36-41 – 108/1-7] [22] During cross-examination, Cst. Carlson testified that the reasons he did not see any person strike the Accused was that “Iwould -- I would put that -- like, some of the factors I described earlier would be the artificial lighting. We’re dealing with street lightsthat are orange in nature. It’s 9:30 at night in late August, and I’d also consider the fact that the accused is under a vehicle and this is all -- well, top third of the vehicle -- or top third of his body is under the vehicle when this happens”. [TT 110/20-24] Sgt. Jason Dallas Reeves [23] During examination-in-chief, Sgt.

Reeves testified that he remembered the Accused’s vehicle going into a cul-de-sac anddriving up onto the driveway and, “Both Cst. Fraser, Cst. Simmonds, telling subject he’s under arrest. They’re yelling. They’re trying toget into the vehicle. Eventually, I believe it was Cst. Fraser that pulled Mr. De Jong out of the driver’s side of the vehicle”. From hisobservations of the Accused, he did see that Cst. Fraser at one point “had his hands in the throat area of Mr. De Jong. I remember thekicking and flailing”. Sgt.

Reeves witnessed the Accused bleeding from his mouth, his eye was swollen, but he could not rememberwhich one, his shirt was dishevelled and pulled up, and he thought that the Accused had said “something about his back or his burning --or something to do with his back. And I don’t recall if it was me or another member had lifted up his shirt and on his back it looked likeroad rash. I’d call it road rash. And I took a look at it and made my observations. And then, at that time, I told Cst. Fraser that Mr. DeJong was -- you’re to contact EMS and have EMS examine him”. [24] Sgt.

Reeves testified that he did not see Cst. Simmonds strike the Accused with a closed fist, nor did he see any of the otherofficers that were involved strike the Accused. [25] During cross-examination, Sgt. Reeves indicated that he did not know why Cst. Fraser never took any photographs of theAccused’s body, but confirmed that photographs should have been taken specifically of the Accused’s “back and wherever he had roadrash or -- or injuries”. Mr.

Simon De Jong [26] During examination-in-chief, the Accused testified that in regards to Exhibit No. 3, it consisted of a body of photographs,taken by his neighbor, one day after his arrest around 4:00 p.m., and were developed at COSTCO. He stated that the photographs had notbeen tampered with or altered, in any form. III. Witness Credibility and Reliability [27] Evaluation of witness credibility is a multifactorial and contextual process.

In R v White, (SCC), [1947] SCR268 at 272, 89 CCC 148, Estey J observed: Eminent judges have from time to time indicated certain guides that have been of the greatest assistance, but so far as I have been able tofind there has never been an effort made to indicate all the possible factors that might enter into the determination. It is a matter in whichso many human characteristics, both the strong and the weak, must be taken into consideration. The general integrity and intelligence ofthe witness, his powers to observe, his capacity to remember and his accuracy in statement are important.

It is also important todetermine whether he is honestly endeavouring to tell the truth, whether he is sincere and frank or whether he is [biased], reticent andevasive. All these questions and others may be answered from the observation of the witness’ general conduct and demeanour indetermining the question of credibility. See also, R v G(M) (1994), (ON CA), 73 OAC 356 at para 27, 93 CCC (3d) 347 (Ont CA) [CanLII], cited in R vDevarajah, 2015 ABQB 256, 80 MVR (6th) 20. [28] The Crown’s case relies on the testimonies of the Crown’s witnesses, and the Defence has, in part, challenged the Crown’sevidence.

It is therefore critical for me to evaluate the testimonies of these witnesses and determine whether they are reliable andcredible witnesses. Cst. Robert Weston Simmonds

[ 29 ] I have concerns with the credibility of Cst. Simmonds and the reliability of his testimony. This is specifically in the context of his recollection of the number of times that he struck the Accused with a closed fist.

He initially testified that he struck the Accused once with a closed fist, and subsequently, changed his testimony to say that he struck the Accused more than once with a closed fist. [ 30 ] I find this testimony to be somewhat ambivalent and unbelievable, as surely, an RCMP officer, who is trained in the apprehension and arrest of individuals, would have a concise and clear recollection as to how many times he struck an individual with a closed fist. This is especially so, given the amount of damage that has been caused to the face of the Accused by such blows. I therefore find that Cst.

Simmonds is not a credible witness, and his testimony is not reliable in the context of how many times he struck the Accused. Cst. Trevor Fraser [ 31 ] I find that Cst. Fraser is not a credible witness and his testimony is not reliable, particularly, in relation to his testimony about his role in taking down and arresting the Accused, and as to whether or not he witnessed Cst. Simmonds striking the Accused. In this respect, Cst.

Fraser testified that from the time that he removed the Accused from the vehicle, he had at all times care and control of the upper body of the Accused and that the entire incident spanned around 10 seconds. During this time, in answer to questions by the Court, he confirmed that he had at all times had care and control of the Accused’s torso, yet at no time did he see Cst. Simmonds strike the Accused. I find this totally unbelievable, given that Cst. Fraser seemed to have a clear recollection that he had observed Cst.

Simmonds trying to scoop pieces of what he believed to be cocaine out of the mouth of the Accused. [ 32 ] Furthermore, his memory was clear regarding the fact that he and the Accused had, during the incident, slid under the Accused’s vehicle, while he was trying to roll the Accused onto his stomach. He distinctly recalled that at this time, Cst. Carlson was assisting, trying to restrain the Accused’s legs; that the Accused continued to get further and further underneath the vehicle, and that he then managed to roll the Accused over onto his stomach and placed the handcuffs on him.

He also had a clear recollection that he had noticed the Accused’s nose was bleeding, his eye was starting to swell, he had scrapes along his back from the roadway, and that he wasn’t sure what exactly had happened. As a possible excuse for his lack of observing Cst. Simmonds strike the Accused, he testified that during the struggle to arrest the Accused, he had been shielding his face a lot at this time because numerous pieces of crack cocaine were flying in the air because of the struggle, and they had saliva on them as well.

I do not accept that excuse, and find that he is not a credible witness in regards to his failure to see Cst. Simmonds strike the Accused, and his testimony is unreliable in this regard. Cst. Derek Leslie Carlson [ 33 ] For the most part, I find Cst. Carlson to be a credible witness and his testimony to be reliable. However, his evidence does have its shortcomings especially regarding his inability to observe Cst. Simmonds strike the Accused during the altercation that led to his arrest. I have trouble accepting Cst. Carlson’s testimony on this issue.

The reason for my difficulty is that, given his clear recollection of the events that transpired during the struggle that led to the arrest of the Accused – from Cst. Fraser’s pulling of the Accused from the vehicle, to the positioning of the Accused’s head towards the front of the vehicle and his feet towards the rear tires, and the recollection of statements that were being spoken by the respective officers to the Accused at that time – it is surprising that he emphatically denies seeing Cst. Simmonds strike the Accused. I therefore find that, in terms of his account of Cst.

Simmonds’ action in striking the Accused, Cst. Carlson is not a credible witness, and that his testimony regarding that event is unreliable. Sgt. Jason Dallas Reeves [ 34 ] The one individual who could have provided the necessary credibility and reliability in testimony was Sgt. Reeves. Unfortunately, that is not the case. Although Sgt. Reeves gave a good accounting during his testimony as to what had transpired at the time of the arrest of the Accused, he shares the fate of some of his fellow officers.

This is in the sense that, while he has a strong recollection of minute details, he categorically stated that he did not see Cst. Simmonds strike the Accused with a closed fist, notwithstanding the fact that from his location, he did see Cst. Fraser at one point “had his hands in the throat area of Mr. De Jong. I remember the kicking and flailing”. He had testified that he witnessed that the Accused was bleeding from his mouth, and that his eye was swollen but he could not remember which, and that his shirt was dishevelled and pulled up.

He thought that the Accused had said: [S]omething about his back or his burning -- or something to do with his back. And I don’t recall if it was me or another member had lifted up his shirt and on his back it looked like road rash. I’d call it road rash. And I took a look at it and made my observations. And then, at that time, I told Cst. Fraser that Mr. De Jong was -- you’re to contact EMS and have EMS examine him. Given Sgt. Reeves’ specific testimony that he did observe certain minute details relative to the altercation that led to the arrest of the Accused, but did not see Cst.

Simmonds strike the Accused with a closed fist, nor see any other involved officers strike the Accused, I find that Sgt. Reeves is not a credible witness, and that his testimony is unreliable. [ 35 ] Perhaps the only redeeming grace for Sgt. Reeves lies in the fact that, during cross-examination, he stated that he did not know why Cst. Fraser never took any photographs of the Accused’s body. But that given the information that he had heard, he thought that photographs of the Accused’s “back and wherever he had road rash [or] injuries” should have been taken specifically.

Regrettably, this act of contrition does not outweigh his lack of recollection regarding Cst. Simmonds’ striking of the Accused, especially when he

was able to recollect other less serious minor details. Mr. Simon De Jong [ 36 ] The testimony of the Accused was restricted to Exhibit No. 3, which was a body of photographs. In this limited capacity, I find that the Accused is a credible witness, and that his testimony is reliable. [ 37 ] In sum, although I have found the testimonies of these police officers unreliable regarding the striking of the Accused by Cst.

Simmonds, it appears to me that, for the most part, they were credible on everything else. [ 38 ] It is important for me to observe that it is very concerning that, in the context of the severity of the injuries to the Accused’s face and eye, all the police officers involved in the investigation and arrest of the Accused did not see Cst. Simmonds hit him, and that even Cst. Simmonds could not recall how many times he struck the Accused. IV. Issues [ 39 ] There are two major issues arising in this voir dire : 1. Are there reasonable and probable grounds for arresting the Accused? 2.

If there are, did the police use excessive force in the process of arresting the Accused? V. Discussion 1. Reasonable and probable grounds Defence’s position – re: grounds for arrest [ 40 ] Defence counsel argues that it is a “telling aspect” of the investigation involving the arrest of the Accused that there was no lead investigator. He submits that it is uncommon for all the pertinent witnesses in a criminal trial to deny being the lead investigator.

The inference from the officers’ inability to identify the lead investigator is that they were trying to dissociate themselves “from the conduct that took place” during the arrest, which involved the use of excessive force by “three grown men on Mr.

De Jong” (Trial Transcript (TT), 132/26-34 – 133/28-40). [ 41 ] He notes that as a matter of general principle, and in the context of detention and allegations of drug transactions, our Court of Appeal in R v NO , 2009 ABCA 75 at para 41 , 448 AR 253, observed that: [I]n many innocent circumstances one person may hand a small object (such as a key or an earring) to another.

Without information about the individuals or the building, the fact of a hand-to-hand exchange shortly after midnight does not elevate the circumstances to the objectively reasonable level necessary to justify detention. [ 42 ] The Defence argues that, in the present case, there was no visible hand-to-hand exchange between Mr. De Jong and the person who entered the passenger side of the vehicle in which the alleged drug transactions occurred.

In addition, the police officers involved in the investigation were not close enough to make a visual description of the person entering the Accused’s vehicle – they are unable to provide the age, the type of clothing the person was wearing, “the type of hair they had, the colour of hair, colour of skin, absolutely nothing” (TT, 134/40-41).

He contends that, in fact, it is difficult to understand how “two [police officers] could be sitting side by side in a vehicle and only one [officer] sees [the alleged transaction] from afar and the other completely miss it or negate having seen any part of this [transaction]” (TT, 135/3-8). [ 43 ] Further, the Defence submits that the “tip” which the police received from informants, relates to information that anybody could know about the Accused just by befriending him.

He argues that the fact that the Accused met with someone in Fort Saskatchewan does not corroborate the “tip” in buttressing the grounds for arrest. Firstly, at that point, the police did not “know anything about his relationship to the other individual, who the other individual was, whether there was an exchange, what they talked about, how they knew each other”.

Secondly, the police officers have failed to demonstrate that there was a pattern of such transactions involving the Accused, as there was “nothing more to the fact that somebody was seen getting into his vehicle for a short period of time one time ... [and] no money [was] seen exchanging hands” (TT, 135/14-20). [ 44 ] Regarding reliability of the information, the Defence invites this Court to observe that the statements in the two police officers’ notes recording the confidential information obtained from two separate informants “were almost identical, literally mirroring

one another but for a couple of words about the vehicles. One called it a black car, sports car. One called it a two-door black car. That’sthe only difference in the tips. Other than that, there was nothing different” (TT, 135/22-27). He argues that in order to use a “tip” toform grounds of arrest, it must be reliable and specific. In this case, the Accused submits, the tip lacks specificity since it was not uniqueinformation that only a person who had seen him dealing drugs would possess.

In other words, the tip information is one that “anybodycould have known watching him for a day or two or hanging out with him for a day or somebody who had a vendetta or an ex-girlfriendwho didn’t like him” (TT, 135/32-38). [45] In conclusion, the Defence submits that the fact that Mr. De Jong was in Fort Saskatchewan, and briefly met with somebody“does not lend itself to suggest that [event] corroborated what the police had heard and provided grounds” for his arrest (TT, 135/39-40).

Crown’s position re: grounds for arrest [46] Foremost, the Crown advised that the disclosure earlier provided to the Defence counsel clearly indicated that Cst. Carlsonwas the lead investigator in the present case. She notes, critically, that while the Defence counsel, on this voir dire, questioned otherwitnesses as to who the lead investigator was, he certainly failed to ask Cst. Carlson the same question directly.

Accordingly, she argues,the Defence could not draw any negative inference from the testimonies of the other witnesses. [47] Further, the Crown argues that, on both the subjective and objective basis, there were reasonable and probable grounds for thepolice to arrest Mr. De Jong in this investigation. The officers in this case had two confidential informants and another anonymous tip. [48] The first confidential source provided Cst.

Simmonds with detailed information regarding the Accused’s street name of“Kyle” (which is nonetheless the name of the individual under investigation); the type of drug – i.e. “selling [cocaine] within FortSaskatchewan”; a telephone number; and the description of two different types of vehicles that the Accused uses for trafficking. Notably,all this information came to the officer within the month or approximately two weeks before the arrest (TT, 136/33-41-137/1-2).Similarly, the second source provided Cst. Fraser with detailed information, which include: both the street name of “Kyle” and Mr.

DeJong’s full names; identified the Accused by a photo; and information that the Accused traffics cocaine in Fort Saskatchewan using twodifferent vehicles. Cst. Fraser also received this information about two weeks before the investigation.

The Crown invites the Court toview the similarity between the officers’ notes as corroborative, in contrast to the suggestion by the Defence that there is something“nefarious” or “untoward” about the similarity. [49] The Crown contends that although testing the reliability of the anonymous tip is a challenge, that tip appears to corroboratethe use of a red SUV for trafficking in narcotics as well as the street name of “Kyle”. [50] According to the Crown, the police officers also corroborated the information from the two confidential sources and theanonymous tip by conducting PROS searches that resulted in the address of the Accused.

The police subsequently conductedsurveillance, prior to the arrest of the Accused, which confirmed he was the registered owner of two vehicles. They “located those twovehicles at an address, and further confirmed that the Accused was operating one of these vehicles”, as well as conducted the CanadianPolice Intelligence Center (CPIC) corroboration search before they commenced the surveillance of the Accused.

The Crown contendsthat while a hand-to-hand transaction alone would not be sufficient to make an arrest or detention, it was significant for the presentinvestigation that the brief meeting between the Accused and the individual occurred in the context of Mr. De Jong’s departure fromEdmonton out to Fort Saskatchewan. From the subjective perspective, the Crown submits, “what [the officers] put to mind was that thiswas certainly consistent with a drug trafficking transaction”.

This subjective understanding or opinion, she argues, together with the twoconfidential sources, the anonymous tip and “the corroboration of the information that the officers had obtained [are] sufficient to formreasonable and probable grounds” (TT, 137/27-41 – 138/1-6). [51] Finally, the Crown submits that looking at the totality of the circumstances of the investigation, “both on a subjective as wellas an objective ground” the required test or standards have been met. Analysis [52] The test for establishing reasonable and probable grounds is two-fold.

First, the Court must determine the informationsubjectively available to the police officer. Second, it must objectively determine whether that information was sufficient to qualify asreasonable and probable grounds of arrest.

In other words: might a reasonable person, having the means of knowledge available to thepolice officer at the time, come to the conclusion that the accused has committed the offence for which he has been charged?: CEDCriminal Law – Offences, §830; R v Storrey, (SCC), [1990] 1 SCR 241 at 250-51. [53] Thus, the question of reasonable and probable grounds must be based on the subjective and objective viewing of the factsknown to the police officer at the time he made the arrest.

This point was further clarified in R v McClelland, 1995 ABCA 199 at paras18-19, 165 AR 332 [McClelland], where the Alberta Court of Appeal observed as follows: The important fact is not whether the peace officer’s belief, as a predicate of the demand, was accurate or not, it is whether it wasreasonable. That it was drawn from hearsay, incomplete sources, or that it contains assumptions, will not result in its legal rejection byresort to facts which emerged later.

What must be measured are the facts understood by the peace officer when the belief wasformed…[Emphasis added]. [54] For the purpose of determining whether the information available to the police officers who conducted Mr. De Jong’s arrestmet the subjective standard, it is significant that as the Defence Counsel observed, they are all experienced officers, who had worked inthe area of drugs and substances abuse for a considerable period of time. In this context, it is necessary to confirm that the formation of

subjective opinion by the officers as a team does not, in my opinion, constitute a problem for satisfying the requirement of the subjectivestandard. This is more so where, as in this case, the evidence of Cst. Fraser indicates that Cst. Simmonds “voiced that they had what hebelieved to be a drug transaction” and the Crown had earlier provided disclosure to the Defence Counsel identifying the lead investigatorin the matter as Cst. Carlson. [55] The subjective belief formed by the police officers need not be accurate at the point of arrest: McClelland at 18-19.

What ismore important is the question: whether it was reasonable for the officers to subjectively form the belief that Mr. De Jong was involvedin a drug transaction, based on the information and facts as they understood them at the point when the belief was formed. In this regard,at the point that the police formed their subjective grounds that Mr. De Jong was engaged in a drug transaction in Fort Saskatchewan, (i)they had the confidential and anonymous tips in their possession; (ii) they had earlier conducted surveillance on Mr.

De Jong, pursuant toan investigational plan they created, which confirmed his address, and the vehicle he was driving; (iii) they attended covertly at Mr. DeJong’s residence, on the day of the arrest, in unmarked vehicles in order to locate his vehicles and confirm existence of the residence; (iv)they observed and followed Mr. De Jong’s travel from Edmonton to Fort Saskatchewan; and (

v) Cst. Simmonds observed a briefmeeting between the Accused and the individual who entered the Accused’s vehicle. [56] It would be impractical to suggest that prior to forming a subjective belief in drug trafficking cases, the police must havedetailed information about the relationship between the drug seller and all potential individual purchasers in any given drug transaction,especially where the seller moves about in a vehicle.

Neither would it be a productive strategy for the police, while conductingsurveillance, to be too close to the scene of such transaction in order to be able to accurately describe persons entering a vehicle for thatpurpose. That might prove to be a self-defeating operational mode. Additionally, while the establishment of a pattern of “brief meeting”transactions by Mr. De Jong in Fort Saskatchewan could be supportive of the formulation of a subjective belief by the police, it is not anobligatory requirement for the police to demonstrate in every case before effecting an arrest.

In this case, they had the benefit ofconfidential tips and the specific information about how Mr. De Jong travels between Edmonton and Fort Saskatchewan in his vehiclesfor drug transactions. Thus, the information in possession of the police officers who arrested Mr.

De Jong in this case far exceed “thefact of a hand-to-hand exchange shortly after midnight” recorded in R v NO at para 41. [57] I am of the view that, given the officers’ extensive experience that similar brief meetings are typical of drug transactions, itwas not unreasonable for them to have understood the facts they were dealing with, at the time of Mr. De Jong’s arrest, as sufficient toprovide the platform for forming the subjective opinion that an offence involving drug trafficking had been committed.

In other words,while a brief meeting inside a vehicle is not solely conclusive of a drug transaction, it was reasonable for the police officers, in thecircumstances of the facts known to them at the time of the arrest in this case, to form a subjective belief that a drug transaction hadoccurred. [58] Accordingly, I conclude that the police officers’ subjective belief, as a predicate of Mr.

De Jong’s arrest, was reasonable. [59] The objective standard for examining the officer’s subjective belief requires the Court to consider: whether “a reasonableperson placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds” forforming the opinion that the Accused has committed the offence: Can v Calgary (Police Service), 2014 ABCA 322 at para 3, 560 AR202 [Can v C(PC)].

The Court should not evaluate the pieces of evidence separately, but “should [determine] whether the circumstancesupon which the Crown relied as objective justification for the arrest, considered cumulatively, amounted to reasonable and probablegrounds for the arrest”: R v Bracchi, 2005 BCCA 461 at paras 4, 20-21 [emphasis added], citing R v Debot (1989), (SCC), 52 CCC (3d) 193 (SCC) at 206ff. [60] The Supreme Court of Canada also outlined that: (

i) hearsay statements of an informant can provide reasonable and probablegrounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probablegrounds; (ii) the reliability of the tip is to be assessed by recourse to “the totality of the circumstances”. There is no formulaic test as towhat this entails. Rather, the Court must look to a variety of factors including: (

a) the degree of detail of the “tip”; (

b) the informer’ssource of knowledge; and (

c) indicia of the informer’s reliability such as past performance or confirmation from other investigativesources. (iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information: R v Garofoli, (SCC), [1990] 2 SCR 1421. [61] Further, in R v Greffe, (SCC), [1990] 1 SCR 755 at para 24, 107 AR 1 (WL), the Supreme Court indicatedthat: There must be an independent inquiry into the source and reliability of the confidential information in order to determine whether, in thetotality of the circumstances, there existed reasonable and probable grounds to believe the appellant was carrying the heroin or whetherthere was mere suspicion.

Relevant to this inquiry is whether the information received contains sufficient detail to ensure that it is basedon more than mere rumour or gossip, whether the source or means of knowledge is revealed and whether there is any indicia of thereliability of the source of the information, such as the supplying of reliable information in the past.

Citing, R v Debot, (SCC), [1989] 2 SCR 1140, 102 NR 161, where the Court additionally confirmed that weakness inone of the three criteria may, to some extent be compensated by strengths in the other two: Ibid at 1168. [62] In terms of the reliability of the confidential tips that both Cst. Simmonds and Cst. Fraser obtained, I note that the informationwas very detailed, and came to the officers within a period of time that was close to Mr. De Jong’s arrest. First, Cst. Simmonds’ sourceprovided: (

i) the Accused’s street name of “Kyle”; (ii) the type of drug he sells (cocaine); (iii) where he sells it – (within FortSaskatchewan); (iv) a telephone number; and (

v) the description of two different types of vehicles that the Accused uses for trafficking(TT, 136/33-41-137/1-2). Secondly, Cst. Fraser’s source provided specific information, which include: (

i) both the Accused’s streetname and his full names; (ii) identified the Accused by a photo; (iii) the type of drug he sells (cocaine); (iv) where he sells it – (withinFort Saskatchewan); and (

v) how he sells the drug – using two different vehicles. [63] Significantly, Cst. Simmonds gave evidence that he had known the confidential source for more than six months, and that,while none of the information provided by the source has led to a conviction in the past, “he had received information from the

confidential source that had been reliable in the past”. Similarly, Cst. Fraser’s evidence is that he had known the confidential informant for over one year, and that the informant had given him information on numerous occasions that had led to illegal drug seizures, charges and convictions.

Based on the evidence of these two officers regarding the past performances of their confidential informers, I am satisfied that there are sufficient indicia of these confidential informers’ reliability. [ 64 ] It is also relevant for me to consider the actions of the police that engaged confirmation of the confidential and anonymous tips from other investigative sources. In the present matter, I do note that the police officers involved in Mr. De Jong’s investigation and arrest, prior to the arrest, did the following: (

i) conducted PROS searches that resulted in the address of the Accused; (ii) conducted the Canadian Police Intelligence Center (CPIC) corroboration search before they commenced the surveillance of the Accused; and, (iii) conducted surveillance that confirmed Mr.

De Jong was the registered owner of the two vehicles that the confidential informers told the police he operates with. [ 65 ] The Supreme Court of Canada stated that where there is weakness in one of the criteria prescribed for assessing the reliability of the confidential tips that the police are relying on, the assessing Court may, to some extent, compensate that weakness by the strengths in the other two criteria: R v Debot at 1168. [ 66 ] Having considered the degree of details of the confidential tips that the police officers obtained in this case, the indicia of the confidential informers past performances, and the police officers’ confirmations of the confidential information available to them from other investigative sources, which effectively provides corroboration for the confidential and anonymous tips, I conclude that, in the totality of the circumstances, the confidential information obtained by the police, prior to the arrest of Mr.

De Jong, were reliable and sufficient to independently support the existence of reasonable and probable grounds to believe that Mr. De Jong was committing the drug offence for which he is charged. [ 67 ] Essentially, the reasonableness of the subjective belief of the police, which culminated with Cst. Simmonds’ observation of the brief meeting between the Accused and the individual who entered his vehicle in Fort Saskatchewan, together with the reliability of the confidential tips, as corroborated by other factors, constitute the existence of reasonable and probable grounds for arresting Mr.

De Jong. [ 68 ] In the result, I find that when the circumstances upon which the Crown relied as objective justification for Mr. De Jong’s arrest are considered cumulatively, a reasonable person placed in the position of the police officers in Mr. De Jong’s investigation matter would be able to conclude that there were indeed reasonable and probable grounds for forming the opinion that Mr. De Jong has committed the offence for which he was arrested: Can v C(PC) at para 3.

Both the subjective and objective standards of the test for establishing reasonable and probable grounds were met by the police in this case. 2. Use of excessive force Defence’s position – re: use of excessive force [ 69 ] The Defence draws the Courts attention to the “evasive” and “self-serving” nature of Cst. Simmonds’ evidence as he “tried to justify his actions through [the] scar he had on his wrist”, which he alleged was inflicted by the Accused. He argues that, looking at the set of circumstances involved in this investigation, and the way Mr.

De Jong appeared in the photographs in evidence before this Court, it was unrealistic for Cst. Simmonds to suggest that his behaviour in the course of subduing Mr. De Jong was a proportionate reaction to Mr. De Jong’s behaviour during the arrest. [ 70 ] The Defence notes that the endorsements before this Court indicate that, at the time of the investigation and arrest, Mr. De Jong was 18 years old, and weighed approximately 150 pounds. He argues that, based on Mr. De Jong’s age and weight, it is inexcusable for “three grown trained police officers” to have inflicted the level of injuries visible on Mr.

De Jong in those photographs. Apparently, from the evidence, these officers had a hold of Mr. De Jong, in a “confined space” and used a degree of force that left him with significant injuries “in what almost all the officers described as a transaction that takes seconds”. The Defence submits that, given the way Mr. De Jong appeared in these pictures, the amount of force used by the police officers in the course of his arrest was clearly excessive and unacceptable in the Canadian society and its criminal justice system. In this context, the Defence observes that neither Cst. Fraser nor Cst.

Carlson, who were dealing with Mr. De Jong initially, “had even a bruise to take a picture of, not an injury that was noteworthy” (TT 132/36-41 – 133/1-7). He maintains that “the subjective conduct of the officers is that they used excessive force in this case [upon] Mr. De Jong [which is] unacceptably excessive [especially] given the fact that there were three grown men on Mr. De Jong” (TT 133/36-40). [ 71 ] The Defence says it is worrisome that, subsequent to the arrest, the officers failed to take pictures of the injuries to Mr.

De Jong’s body at the detachment, and instead of taking him to the hospital for medical attention, only invited the EMS to assess him. The reason Cst. Fraser gave for this course of action was that Mr. De Jong never claimed any injuries relating to his body, and neither was he aware of any injuries relating to Mr. De Jong’s body. The Defence submits that, given the totality of the evidence before this Court, Cst. Fraser’s evidence is misleading. He submits that it is impossible and hard to believe the officer when “he says he was dealing with the upper torso, the waist up of Mr.

De Jong and doesn’t see him get struck in the face repeatedly” (TT 133/16-20). [ 72 ] Further, the Defence observes that none of the officers was able to explain how Mr. De Jong was hit, except Cst. Simmonds. Even at that, Cst. Simmonds’ first discussion of his striking Mr. De Jong during examination-in-chief was that he “hit Mr. De Jong once”. The officer then proceeded to describe the stitches under Mr. De Jong’s eye as “a black eye” (TT 133/28-34).

The Defence submits that the injury was more than a “black eye” as it was inflicted by: ... a series of punches, and this was so many punches [because] it wasn’t something where it was two or three. ..This was in a matter of seconds. [And] Constable Simmonds was punching the face of the accused while the accused has a man on his legs and a man on his

torso dealing with his arms. He’s getting punched in the face by Constable Simmonds. He said he was 215 pounds. That’s significantinjury [TT 145/25-33]. The Defence submits that, in any event, this set of circumstances “could have easily resulted in death” as the level of force used by theofficers was neither transitory nor trivial; it was disproportional. He notes that, “because the necessity was not there,” Cst. Fraser had noexplanation for the question of the Defence as to what could have “necessitated that level of injury to subdue the accused”.

The Defenceargues that Canadian society does not hurt people as a matter of convenience (TT 146/12-18). [73] The Defence refers to the statement of the Supreme Court of Canada in R v Nasogaluak, 2010 SCC 6 at para 32, [2010] 1SCR 206 [Nasogaluak], that: While, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody,the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness.

Courtsmust guard against the illegitimate use of power by the police against members of our society, given its grave consequences. He submits that, given the extensive experience and significant positions held by the investigating officers, the degree of force that theyused on Mr. De Jong in this case, that left him with the type of injuries visible in the photographs, was excessive and fails to meet thestandards of proportionality, necessity and reasonableness.

Crown’s position – re: use of excessive force [74] The Crown takes the position that the Defence appears to have abandoned the aspect of the Charter notice that deals withallegation of use of excessive force regarding the fleeting throat hold by Cst. Fraser. As such, her arguments would focus on Cst.Simmonds and the “empty hand hard maneuver or a closed hand strike commonly known as a punch and that this was administered tothe accused in an undetermined number of times [and by Cst. Simmonds’ evidence] until [Mr.

De Jong] had complied or he hadrefrained from resisting” (TT 139/2-4). [75] The Crown notes that, according to the evidence, the officers’ use of force was in circumstance where Mr. De Jong,throughout the initial interaction, remained in his vehicle, thereby obstructing the police; and further, was “destroying evidence [as] hehad placed cocaine in his mouth, was attempting to swallow it”. She points to the evidence that “there was a water bottle visible andcertainly water seen around him and his mouth full of water attempting to swallow the cocaine that he was in possession of” (TT 139/8-14).

Further, the Crown maintains, after Mr. De Jong was removed from the vehicle by Cst. Fraser, the testimonies of the officersindicate that he “continued to be combative”, was non-compliant, and was “kicking and flailing about” notwithstanding the officersadvice to Mr. De Jong “several times to stop resisting, that he was under arrest”. She notes that Cst. Simmonds testified that Mr. De Jong“grabbed him and specifically scratched his arm”. These developments, the Crown submits, “would be considered assaulting the officers[as] at this point [Mr.

De Jong] has directly also scratched the officer, [and] gone beyond just what may have been hitting them by hisresistance” (TT 139/16-33). [76] Cst. Simmonds testified that it was in the context of this “melee” that “he had struck [Mr. De Jong] until he stopped resisting”.Significantly, Cst. Simmonds stated, “he struck the accused, unsure of how many times but in the face only, and that he only did thisuntil the accused complied”. The Crown maintains that, looking at the “bruising on [Mr.

De Jong’s] face” in the final photograph, it“appears to be a cut on his eye that was the primary source of the blood that went about on his face and the blackening [as well as]swelling of an eye (TT 139/35-36 – 140/6-8, 32-39). [77] In terms of the extensive bodily injuries on Mr. De Jong’s body, the Crown contends that there was no evidence before theCourt that any of the officers struck him on the torso. She contends that it is apparent that those injuries on Mr. De Jong’s torso resultedfrom his resistance.

In effect, any consideration of the use of force by the Court should exclude the injuries to the torso, and be restrictedto the fleeting throat hold by Cst. Fraser, the cut and swelling to the eye, and related bruising (TT 142/30-36). In this context, where Mr.De Jong actively resisted and assaulted Cst. Simmonds by scratching his arm, the Crown submits that the officers are entitled to use asmuch force as is required to arrest the Accused, pursuant to the administration and enforcement of law: Criminal Code, RSC 1985, c C-46, s 25(1).

Also in support, she cites R v Dewey, 2010 ONCJ 106, where the Ontario Court of Justice found that the use of similar force– i.e. a punch to the face of the accused – was not excessive in a situation where the accused had taken an “aggressive stance” with theofficers. [78] Regarding the amount of force to be applied by officers, the Crown refers to the statement of LeBel J in Nasogaluak at para35: Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous anddemanding work and often have to react quickly to emergencies.

Their actions should be judged in light of these exigentcircumstances. As Anderson J.A. explained in R. v. Bottrell (1981), (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 theyexisted at the time the force was used.

They should have been directed that the appellant could not be expected to measure the force usedwith exactitude. [79] The Crown submits that the officers in the present case reacted to the Accused with the force required to perform their duty.She describes the situation where the officers “at the time believed [that Mr. De Jong was] being arrested for the possession of cocainefor the purpose of trafficking. He was destroying evidence.

He was resisting arrest, and he was assaultive against the officers, and he wasnot compliant, and this set the tone for the elevated actions necessary by the officers” (TT 143/21-24). The Crown argues that in thesecircumstances, the officers did not use excessive force in controlling Mr. De Jong, and in preserving evidence. The Crown observes thatthe degree of injury suffered by the officers is not the legal test for determining their reaction time.

[80] In conclusion, the Crown submits that even if this Court finds that the police officers involved in the present investigationused excessive force, the appropriate remedy should be mitigation or reduction of sentence, and not the exclusion of evidence or a stay ofproceedings: see, Nasogaluak at paras 51-53. In this regard, the Crown draws the Court’s attention to the evidence that Cst. Simmondstook responsibility immediately for the injuries suffered by Mr. De Jong, he photographed the injuries caused by him to the Accused,and called the EMS to provide care within minutes of arrival at the detachment. Analysis [81] Section 24(1) of the Canadian Charter of Rights and Freedoms,

Part 1 of the Constitution Act, 1982, being

Schedule B to theCanada Act 1982 (UK), 1982, c 11, provides: Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competentjurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [82] A stay of criminal proceedings is an uncommon remedy; and the case law is clear that the bar is set high: see, R v Steele, 2010ABQB 191 at para 99, 485 AR 321 [Steele], citing Nasogaluak at para 35. [83] It must always be remembered that a stay of proceedings is only appropriate “in the clearest of cases”, where the prejudice tothe accused’s right to make full answer and defence cannot be remedied or where the irreparable prejudice would be caused to theintegrity of the judicial system if the prosecution were continued”: R v O’Connor, (SCC), [1995] 4 SCR 411 at para 42-43, 130 DLR (4th) 235. [84] The Supreme Court indicates that in most situations, the appropriate way to account for police misconduct or excessive forceis through a reduction in sentence: Nasogaluak at paras 51-53.

In Nasogaluak, the Supreme Court upheld the trial judge’s finding thatpunching the accused when he was already under control, which caused broken ribs and a punctured lung, was excessive force. Whilethe trial judge did not enter a stay under s 24(1), he considered the police misconduct to reduce the sentence. The Supreme Courtaffirmed that a reduction in sentence is an appropriate way to account for the excessive force. [85] In R v Desrosiers, 2013 ABQB 24 at paras 28-42, 549 AR 386, this Court reviewed the case law dealing with policemisconduct that resulted in a Charter, s 24(1) remedy.

A few of those cases that appear to be particularly relevant for consideration inthe present matter include the following: 1) In Steele, Justice Macklin ordered a stay because he found that the police shooting the accused as he attempted to flee wasexcessive force, given there were alternate means to prevent him from fleeing. This was a clear case of excessive force because thepolice misconduct was potentially lethal (para 151). The accused suffered serious and lasting injuries, including the loss of his kidneyand a portion of his large intestine.

The fact that the investigation into the accused’s shooting was negligent also contributed to thecircumstances warranting a stay (para 157). 2) In R v JW, 2006 ABPC 216, 398 AR 374 – Kvill PCJ held that a stay was required to remedy the egregious police conduct.

Shefound that using a taser during a strip search on a 15-year-old, small boy was completely unjustified and done as punishment. 3) In R v Pigeon (1992), (BC CA), 14 BCAC 139, 73 CCC (3d) 337 (BCCA), the British Columbia Court of Appealreduced the accused’s sentence as the arresting officer dragged the accused by grabbing his hair, threw him on the pavement a couple oftimes and kicked him.

The Court found that the officer’s methods of arresting the accused constituted excessive force, especially since atthat point the accused had not resisted arrest nor attempted to escape. 4) In R v Jara, [2006] AJ No 1804 (QL) (Alta QB), the accused was tasered after he was already under control. Sanderman J held thatthe tasering constituted excessive force, but that a reduction in sentence was more appropriate than a stay.

Part of his justification for asentence reduction – as opposed to a stay – was because the public should not have to suffer both the crime and a lack of accountabilityof the offender simply because of a “failure of public servants to do their jobs properly” (para 66). 5) In R v Walters, 2012 ABQB 83, 529 AR 126, Graesser J also accounted for excessive force by the police through a sentencereduction. The Court held that kicking the accused upon arrest was excessive, though not life-threatening (para 74).

The short-term,minor injuries sustained by the accused were that he was sore and bruised, but some of those injuries could be attributed to lawful forceused by the police. Therefore, the Court found that some reduction in sentence was appropriate, though the impact of the policemisconduct was not as egregious as in ... Steele (para 75). [86] In the present case, I am alive to the fact that the police officers are entitled to use “as much force as is required” to arrest Mr.De Jong, pursuant to powers conferred on them by section 25(1) of the Criminal Code.

However, the exercise of that authority and thedegree of force that they are permitted to exert “remains constrained by the principles of proportionality, necessity and reasonableness”:Nasogaluak at para 32. [87] Based on the evidence before me, and the critical context of my credibility assessments in

Section III of this Decision, itappears that in the circumstances of Mr. De Jong’s arrest, it was necessary for the police officers to use a proportionate and reasonable

degree of force to prevent him from destroying evidence of what they believed was cocaine in his possession at the time he was approached by the officers. In this regard, I accept the officers evidence that the Accused: (

i) had placed the suspected cocaine in his mouth; (ii) was attempting to swallow the suspected cocaine; (iii) had “a water bottle visible [around] him and his mouth full of water attempting to swallow the cocaine that he was in possession of”; and (iv) “continued to be combative”, was non-compliant, and was “kicking and flailing about”. Mr. De Jong’s actions evince the picture of a desperate person naively attempting to swallow numerous pre- packaged substances, which the police believed to be cocaine, in order to destroy evidence.

His reaction and struggle to swallow the substances, and thereby destroy evidence in relation to them, is distinguishable from an attempt to flee or escape from the police. [ 88 ] In that context, I am less prepared to accept that the behaviour of Mr. De Jong constituted a resistance of arrest or fighting that would justify the amount of force used on him at the time of his arrest. Even if the police officers perceived this set of reactions by Mr. De Jong as “resisting arrest” and/or “obstructing the police”, I consider the multiple punches inflicted by Cst.

Simmonds on his face as disproportional; notwithstanding Cst. Simmonds’ testimony that Mr. De Jong “grabbed him and specifically scratched his arm”. [ 89 ] Significantly, Cst. Simmonds’ “empty hand hard maneuver or a closed hand strike commonly known as a punch”, was administered in circumstances where: (

i) the police officers had Mr. De Jong in a “confined space” on a driveway; (ii) Mr. De Jong was pulled from his vehicle and brought to the ground by the police; (iii) Cst. Simmonds, at 215 pounds, administered the punches on Mr. De Jong – an 18 year-old, weighing approximately 150 pounds – in a matter of seconds, and in an undetermined number of times; and (iv) Cst. Simmonds was punching the face of Mr. De Jong while he had an officer [Cst. Carlson] on his legs, and another officer [Cst. Fraser] on his torso dealing with his arms. As a result of the amount of force administered in this whole process, Mr.

De Jong suffered a swollen eye and cut under his eye that ultimately required surgical stitches. That type of force deployed by experienced police officers in the circumstances described above was neither reasonable nor proportional. [ 90 ] Although the police officers involved in this investigation, especially Cst. Simmonds who struck Mr. De Jong multiple times, were not expected to measure the force used at the point of arrest with exactitude, the extensive experiences that the officers have garnered over the years should have served them in determining the degree of force that matched the circumstances of Mr.

De Jong’s arrest. In the set of facts that existed in Mr. De Jong’s case, the rapid use of multiple punches on his face by Cst. Simmonds, while the Accused was being restrained on the ground by Cst. Fraser and Cst. Carlson, cannot be considered as the appropriate degree of force that was necessary to subdue him. [ 91 ] Consequently, I find that although some level of lawful force was required to prevent Mr. De Jong from destroying evidence and from resisting arrest, the police officers involved in his arrest went beyond what was proportional, necessary and reasonable.

As such, I conclude that, in the course of effecting Mr. De Jong’s arrest, the police officers used excessive force, which resulted in serious injuries to Mr. De Jong’s face, the swollen eye, and the cut under his eye, which required surgical stitches. [ 92 ] Nevertheless, I do not consider the impact of this excessive force, i.e. the injuries suffered by Mr.

De Jong as shown in Exhibit 3, as so egregious as to warrant a stay of the charges or proceedings in this matter. [ 93 ] In the result, I conclude that a reduction in sentence would be an appropriate way to account for the excessive force used by the team of police officers in arresting Mr. De Jong. VI. Disposition [ 94 ] Based on the totality of the circumstances, comprising my finding that the police officers’ subjective belief was reasonable, and that a reasonable person placed in the position of the police officers involved in Mr.

De Jong’s investigation would be able to conclude that there were indeed reasonable and probable grounds for forming the opinion that Mr. De Jong has committed the offence for which he was arrested, I hold that both the subjective and objective standards for establishing reasonable and probable grounds were met by the Crown in this case. [ 95 ] Further, I find that the police officers involved in Mr. De Jong’s arrest used excessive force in the arrest of Mr.

De Jong, which resulted in serious injuries to his face, including bruising, swollen eye, and a cut under his eye that required surgical stitches. [ 96 ] However, the impact of the excessive force or police misconduct in this case, i.e. the injuries suffered by Mr. De Jong, is not so egregious as to warrant a stay of the charges in this proceeding. [ 97 ] Consequently, I conclude that a reduction in sentence would be an appropriate way to account for the excessive force used by the police in the arrest of Mr. De Jong. Heard on the 7 th – 8 th day of January, 2016.

Dated at the City of Edmonton, Alberta this 26 th day of February, 2016.

Don J. Manderscheid J.C.Q.B.A. Appearances: Melina Rawluk Department of Public Prosecutions for the Crown Hasaan J Jomha Jomha Karout Law for the Accused