R. v. AFS, 2014 ONCJ 781

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1, as amended; CITATION: R. v. AFS , 2014 ONCJ 781 COURT FILE No.: Central East Region-Newmarket 4911-998-14-Y0189 2014·12·15 BETWEEN: HER MAJESTY THE QUEEN — AND — AFS, a young person Before Justice Peter C. West Heard on April 1, 2, 3, 4, 22, 23 and 24, 2014; June 6, 10, 11, and 18, 2014; September 10, 11 and 12, 2014; and November 12,

2014 Reasons on Charter Application for Stay released on December 15, 2014 Ms. M. Montemurro and Mr. D. Moull .................................................... counsel for the Crown Ms. P. Fry .................................................................................. counsel for the defendant AFS WEST J.: [1] On September 17, 2013, Mr.

AFS (AFS) was charged with the offences of robbery with a firearm; point firearm; assaultwith a weapon; disguise with intent and conspiracy to commit in relation to a robbery that occurred on September 11, 2013 at the CIBCBank located at 10652 Leslie Street in Richmond Hill. [2] Initially AFS intended to plead guilty to a charge of robbery with an offensive weapon and bring a Charter applicationfor a stay of proceedings pursuant to s. 24(1) for abuse of process due to state misconduct, namely, members of the Toronto PoliceService (TPS) Hold-up Squad officers used excessive force by beating AFS while he was in an interview room in the Youth Bureau at 41Division in Scarborough.

As a result of discussion with counsel, AFS entered a plea of not guilty to the charge of robbery using animitation firearm, an agreed statement of facts was filed as Exhibit 1 and the Charter application was commenced. [3] The defence called two witnesses from the Roy McMurtry Youth Centre: Venetia Samuels, Registered Nurse and LynnEagles, Acting Manager of Youth Services. AFS testified himself in support of the Charter application.

The Crown called a number ofpolice witnesses who were involved in AFS’s arrest and detention at 41 Division. [4] The application was adjourned to allow counsel to file written submissions and casebooks. I want to thank counsel forthese written submissions and their oral submissions made on November 12, 2014. [5] One issue, which arose in the written submissions, was whether Ms. Fry was raising Charter issues never raisedpreviously. Ms.

Montemurro took the position she had called specific witnesses to address the Charter issues originally identified by theApplicant, however, given the new issues raised, the Crown may have to call additional witnesses. The Crown was seeking a rulingrestricting the Applicant to the allegation of a breach of s. 7 of the Charter as a result of excessive force by police. In the alternative, theCrown was seeking an adjournment of the submissions to consider what additional evidence to call. [6] In her written submissions Ms.

Fry referred to four instances of state misconduct: 1. an egregious physical assault against the Applicant by members of the Toronto Police Service Hold-up Squad; 2. failure to inform the Applicant of and give effect to his rights to access a parent upon arrest, to be fully informed of the reasonsfor his arrest and to be brought before a bail court justice in a timely fashion; 3. blatant disregard for, dismissal of, and unwillingness to investigate, the Applicant’s repeated complaints regarding abusiveconduct by investigating officers; and 4. abject negligence or intentional non-disclosure of essential evidence and inadequate follow up by Toronto Police Service officersin charge of disclosure and this investigation, in relation to repeated and detailed requests by counsel for relevant disclosure in thismatter. [7] I raised this issue with Ms.

Fry and Mr. Moull, who was standing in for Ms. Montemurro as she was involved in acontinuing jury trial which had gone past its estimated completion, prior to hearing oral submissions. [8] I pointed out to Ms. Fry that on several occasions during the presentation of evidence, and specifically on September 12,2014, she had advised she was formally abandoning her disclosure application. It was Ms.

Fry’s position she was not re-opening herdisclosure application but rather was relying on a number of instances of state misconduct, which included disclosure being providedlate, relating to AFS’s Charter rights in seeking a stay under ss. 7 and 12. [9] I indicated to the Crown it was my view the issues raised in 1 and 3 were related to each other and clearly formed part ofthe evidence addressed by both the Applicant and the Respondent during the calling of witnesses.

Further, the issue raised in 2 had beenextensively dealt with in the evidence and it was open to the Applicant to make submissions that the Court should draw certaininferences, just as it was equally available for the Crown to submit the Court should draw the opposite inferences from the evidence. Iwas of the view, however, the Applicant had formally withdrawn its disclosure motion at the outset of the calling of evidence, as well ason September 12, 2014. Ms.

Fry advised it was not her intention to re-open this issue but she did intend to argue the court should drawcertain inferences, which together with the excessive force used by the TPS Hold-up Squad should lead to a stay of the charges. [10] I advised counsel it was my view the Applicant could point to any alleged Charter infringement which supported hisapplication for a stay pursuant to s. 24(1). Mr. Moull agreed, based on Ms. Fry’s submissions, the Crown would not be seeking anadjournment of the proceedings. I find there is no need to restrict the Applicant’s Charter motion, pursuant to R. v.

Kutynec, (ON CA), [1992] O.J. No. 347 (Ont. C.A.), in light of Ms. Fry’s position that she is relying on the cumulative effect of Charterviolations to support her submission AFS’s charges should be stayed pursuant to ss. 7, 12 and 24(1). Factual Background

[ 11 ] On September 11, 2013, at approximately 4:40 pm., three masked male persons entered the CIBC Bank located at 10652 Leslie Street in Richmond Hill. Suspect #1, alleged to be Keon Chisholm, was armed with what appeared to be a firearm. Suspect #2, AFS (AFS), was wearing a black hoody, black pants, black mask and carrying a Puma duffel bag. Suspect #3, alleged to be Romero Antonio Cameron, was also carrying a black duffel bag. [ 12 ] Suspect #1 ordered the customers at the ATM onto the ground at gun point. The three men then went to the main area of the bank.

They all walked behind the counter and ordered the tellers to hand over the money. One teller was assaulted by two of the robbers; AFS grabbed her arm with his left hand and brought his right hand up across the left side of her face and suspect #1 grabbed her by her shoulder and held the firearm to the left side of her face. This is captured by video surveillance. [ 13 ] They stole $3961.35 in funds, including foreign currency, from the bank. The three robbers exited the bank and got into a vehicle driven by D.M., AFS’s sister.

The vehicle was a GMC Yukon, license plate […], which was rented to D.M.’s mother, S.M., at 10:40 a.m. that same day. The vehicle was equipped with an Avis tracking device and police were dispatched to intercept the vehicle. The Yukon was tracked to D.M.’s residence, an apartment building at […]Avenue East, Toronto at approximately 5:30 p.m. on September 11, 2013. [ 14 ] Surveillance video at the apartment building shows AFS and suspect #1, Chisholm, exiting the vehicle and walking into the apartment building, at 5:34 p.m., each carrying a yellow No Frills bag. The vehicle was stopped at 5:36 p.m.

D.M. was driving and Mr. Cameron was in the rear seat. Both were arrested. Mr. Cameron had a No Frills bag with clothing similar to that observed on the video at the bank by suspect #3. Also in the vehicle were CIBC documents, including bank drafts and cheques from the CIBC that had just been robbed at approximately 4:40 p.m. that same day. [ 15 ] Earlier the same morning, D.M. is observed on video at Walmart purchasing a black hoody and black track pants at 11:46 a.m. This was the outfit worn by AFS during the robbery. She is seen entering to her apartment building at 12:06 p.m. with the Walmart bag.

AFS is seen leaving the building with a grey bag at 12:56 p.m. The Yukon is seen leaving the parking lot of the apartment building 4 minutes later. A Walmart receipt was seized in the vehicle in a Walmart bag. [ 16 ] The above facts were filed in an Agreed Statements of Facts, Exhibit 1, at the commencement of the Charter application. Defence Evidence [ 17 ] Venetia Samuels is a registered nurse employed at Roy McMurtry Youth Centre for five years. When AFS was brought into Roy McMurtry Centre on September 18, 2013, he complained of being assaulted by TPS Hold-up Squad officers.

She made notes of her observations, namely a scratch/bruise to right knee, right upper eyebrow/eyelid slightly swollen and right cheek with small, dime sized scratch. All AFS said was he was assaulted by police when he was arrested; he did not provide further details to Ms. Samuels. Ms. Samuels did not ask further questions. AFS did not raise any other concerns with Ms. Samuels when she interviewed him. AFS did not make any complaints of pain or discomfort when she saw him. Ms.

Samuels, in cross-examination, indicated she did not notice anything about his demeanour which would have indicated to her AFS was in pain or discomfort. Exhibit 2 is a Health Care Record; Ms. Samuels filled in the top portion of this form and then signed it. Ms. Samuels did not put a time on this form when she saw AFS but she believes she saw him between 19:10 and 19:20 hours. Ms. Samuels also filled in paragraph 3 of An Accident/Injury Report dated September 18, 2013. Photos were taken of AFS’s injuries by Youth Services Manager, Lynn Eagles, and these were filed as Exhibits 4A-4D. Ms.

Samuels confirmed the photos depict the injuries she observed. [ 18 ] Lynn Eagles is an Acting Youth Services Manager at Roy McMurtry Youth Centre. She was detailed to bring to court AFS’s file from Roy McMurtry. Exhibit 4 has her signature and she filled in paragraph 4 respecting a complaint made by AFS against Toronto police assaulting him. She was assigned to take photos of AFS’s injuries on September 18, 2013 upon AFS’s admission at 19:05 hours. Another Youth Services Manager, D. Strong, appears to have witnessed AFS’s statement as to the details of the alleged assault by TPS Hold-up Squad officers.

AFS did not provide Ms. Eagles any further details of the assault. Ms. Eagles did not see this statement as it was not filled out by AFS at time she dealt with him shortly after his admission to Roy McMurtry Youth Centre. AFS told Ms. Eagles he was okay and he wanted to press charges. AFS did not advise he was in any pain or discomfort when he made his complaint alleging Toronto police at 41 Division had assaulted him. AFS did not request any medication. Ms.

Eagles notified her supervisor, Santo Lisi, of AFS’s complaint in an email and advised she had taken pictures of AFS’s “injuries” and he was seen by health care. Ms. Eagles further advised Lisi: “[AFS] appears okay nothing serious just scratches but he wants to press charges against them.

SOR is being done” (email is contained in Exhibit 5, documents filed from Roy McMurtry). [ 19 ] AFS identified his handwriting in the Accident/Injury Report, Exhibit 3, under the heading “Statement”, which reads: I got arrested at the front of my house by hold up squad they told me going to station and goin to court in the pm [cannot determine word] so the police bring me to 41 division and put me in the interview room with no camera’s for a couple like hours. After couple hours in the interview room I asked to use the wash room they let me.

An a hour or more I asked again and the man started to get aggrevise with me like pushing me and threatening me I sat there said I want to speak to my lawyer they refused to call my mom or lawyer then I was yelling, saying I need use the wash room. he left saying if I don’t shut the fuck up he gonna fuck me up if I cont. I cont saying I need to use the washroom and said I want a call to my lawyer instead of making the call he came in and choked me, punched me some times in my face, kicked me and stomped me with his two partners, also calling me a nigger and animal AFS also signed the statement. D.

Strong, a Youth Services Manager at Roy McMurtry signed as a witness to AFS’s statement. [ 20 ] AFS testified he only filled out the descriptions of the three officers he alleged assaulted him at 41 Division in form for the OIPRD (Office of the Independent Police Review Director) but did not fill out anything further in terms of a description of his allegations of what these officers did. [ 21 ] AFS testified he had been sleeping on his couch when he heard someone say “search warrant”. Tactical Force officers “threw [him] down” just outside the front door of his house.

The officers were “pretty forceful, but not really – like, not – nothing too extreme” when they put AFS on the ground and handcuffed him. He did not remember much about his arrest or what the officers told

him after he was arrested. [ 22 ] AFS testified he was put in a police car and brought to 41 Division where he was booked, strip searched and then put in an interview room in the Youth Bureau. He does not recall everything that happened when he first arrived at 41 Division. [ 23 ] He fell asleep in this room and was awakened so he could speak to his lawyer, Ms. Fry. AFS initially testified he was not permitted to use a washroom after he was put in this interview room but later testified shortly after he was booked he was taken to use the washroom.

He was never given an opportunity to call his mom the entire time he was detained at 41 Division and he never spoke to her. He testified he repeatedly requested to speak to his mom. [ 24 ] AFS testified he was knocking on the door to get the officers attention when he was asking to speak to his mom. He was just told to “shut up.” At one point an officer came in the room and AFS asked if he could speak to his mom, call his lawyer and go to the washroom but the officer just pushed him and he fell back on the chair. This officer told him to shut up again and left the room.

When he was pushed his hands were inside his shirt. In cross-examination, AFS agreed he was kicking the door and yelling. He also agreed his hands might not have been inside his shirt. He did not threaten this officer. AFS told the officer this was an assault. The officer left the interview room and AFS began to yell he wanted to speak to his mom and also his lawyer. AFS testified he only saw this officer on the occasion he pushed him back into the chair.

In his affidavit, Exhibit 13, which he read seven times before signing, AFS described the officer who pushed him as the “younger” officer who had assaulted him with the “older” officer. In cross-examination, AFS agreed the officer who pushed him was not the “younger” officer. [ 25 ] AFS testified this same officer came back into the room and told him if he was not quiet he was “gonna fuck [him] up.” He said Det. Goetz came into the room early in the process and wanted to take a statement but AFS told Det. Goetz he was not giving any statement. AFS did not remember if he asked Det.

Goetz to let AFS call his mom, although it is possible he did. He believed it was before he was pushed into the chair that he spoke to Det. Goetz. [ 26 ] After the officer who pushed and threatened AFS left the interview room for the last time, AFS testified he continued to knock on the door and yell that he wanted to speak to his mom, his lawyer and he had to use the washroom. He also yelled if he was not allowed to use the washroom he was going to pee on the floor in 30 seconds. He started counting backward from 30. When he got to five seconds three male officers came into the room.

When he was counting down the officers did not say anything to him. [ 27 ] The first officer was in his 50s and was wearing a grey coloured shirt and dark pants. He was white and had short grey hair. The “younger” officer was white, wearing a blue zip-up sweater with red lines on the arms and jeans. He was bigger than the first officer. AFS is not able to provide any description of the third officer, except he was white wearing plain clothes. [ 28 ] AFS believed he was already shackled at this point in time but he does not recall who shackled him.

When the older officer stepped into the room he immediately punched AFS in the area of his right eyebrow. He believed it was the third officer he cannot identify when then got behind him and put him in a “full Nelson” hold. As he was put in this hold the older officer grabbed AFS’s Adam’s apple in a claw-like shaped and squeezed and pulled hard on AFS’s neck. This officer called AFS a dirty animal and a nigger. AFS could not breathe and his eyes started to water. He held on for a while and when he let go the older officer then punched AFS in the head three more times.

The younger officer then punched him in AFS’s ribs and his body gave up and he fell to the ground. [ 29 ] AFS believes he received the injury to his right eyebrow when he was first punched byu the older officer. When he fell to the ground his knee skidded and this is when he received the injury to his right knee. The injury to his right cheek occurred after the assault with the three officers. [ 30 ] After he fell to the floor the three officers were kicking and stomping on him all over his body. One of the officers kicked him in the genitals.

AFS was pretty sure the shackles were on when he was lying on the floor being kicked and stomped on. He was kicked and stomped on a number of times, he does not knoe exact number but it was a lot. [ 31 ] After it was over he asked the officers for their badge numbers and information but they would not give him anything. AFS then asked if he could use the washroom and they told him he would have to wait 10 minutes before they could take him but it was more than 20 minutes.

The officers never told him anything about a conspiracy charge and he did not know about that charge until he was at 33 Division. [ 32 ] They finally took him to use the washroom and then an officer came into the room because he was still asking to speak to his lawyer and his mom. The officer told him to shut up and slapped him on the right side of his face. He does not know which officer slapped him. It was a different officer from the three officers who beat him.

This is when his right cheek was cut. [ 33 ] AFS testified he was quiet for a bit after this but he then started yelling again he wanted to speak to his lawyer and his mom. The younger guy came back in and said “if [he] didn’t shut the fuck up [he’d] leave in a body bag. This made AFS very scared for his life. Later the older and younger officer brought him to the cells. It was AFS’s position after he was kicked and stomped on his legs and in his genitals he was not able to walk without a limp. This lasted to the next day. He continued to have pain in his back for a couple of days.

He asked for painkillers at Roy McMurtry. [ 34 ] At some point he was taken from the cell at 41 Division to get fingerprinted and photographs taken. [ 35 ] AFS complained when he left 41 Division and when arrived at 33 Division about being beaten up by officers at 41 Division. He testified the Staff Sergeant at both Divisions cut him off. [ 36 ] AFS testified he never assaulted any police officers at 41 Division. He did not threaten any police officers. He did not resist the police putting on the shackles.

He is pretty sure he was standing when they put on the shackles. [ 37 ] In cross-examination AFS testified he could not remember being shackled at 41 Division. He then testified he was shackled when he was getting beat up by the three officers. When the police brought him to the cell they removed his shackles, as he saw

on the video. He was kneeling on the bench when the officers removed his shackles. [ 38 ] AFS testified he was brought to a washroom on two occasions while he was in interview room “A” but was only able to urinate the first time, which was before the assault. The second time he could not urinate as he had been kicked in the genitals and his genitals hurt too much. AFS testified the pain continued for a couple of days.

When he was brought to the cell he was able to pee again because it was hours after the beating. [ 39 ] AFS testified there were three separate assaults by police officers; the first was the push, the second was the three officers and the third was the slap. There could have been five police officers involved. He did not remember what the officer who pushed him looked like but he thought he was dressed in plain clothes although, he does not know for sure.

In his affidavit he signed for this application he identified the police officer who pushed him as being the “younger” officer or Officer Taylor of the TPS Hold-up Squad. He agreed his affidavit was not true. [ 40 ] AFS agreed he was in an agitated state when he was kicking the door and yelling he wanted to speak to his mother. He does not remember two officers coming into interview room “A” and asking him to calm down as they were going to call his mother. He agreed it is possible this happened. He agreed he was making a lot of noise, was angry, agitated and was kicking the door.

AFS maintained the officer who pushed told him to “shut the fuck up.” He only remembered one officer coming into the room. [ 41 ] The officer who slapped him was a white male wearing a black zip-up turtleneck and he was alone. It was not the officer who pushed him. He told AFS to shut up and AFS kept asking for a call. The officer slapped his right cheek. He disagreed he was making this up. AFS testified he cannot recall anything else about this officer. [ 42 ] He did not remember Det. Clark coming into room “A” at 11:48 a.m., and telling him he was being charged with conspiracy to commit robbery.

It is possible Det. Clark said this to him. [ 43 ] AFS testified it was the “younger” officer (Officer Taylor), who came into the room and told him, “If [he] did not shut the fuck up, [he] was going to leave in a body-bag.” [ 44 ] AFS testified in cross-examination he was exaggerating when he said in-chief he was thrown to the ground by the ETF officers at the front of his house. [ 45 ] AFS testified he was kicked and stomped all over his body by the three officers when he was lying on the floor. He was kicked or stomped in his head more than once.

It was “pretty hard.” He did not remember if they stomped on his face. He remembered stomps on his arms. His arms are not as sensitive as his head or face but the stomps were still hard. It was more than once, although he cannot recall if it was both arms. AFS could not recall if he was stomped on his chest but he is pretty sure they did. He was stomped on his back more than once. He was stomped on his legs more than once. The force of the stomps was “hard.” All three officers were kicking him as well. He felt kicks to his head more than once. The kicks were more forceful than the stomps. It was very painful.

It is possible they kicked him in the face and neck. They kicked his arms more than once. They kicked him in the back more than once. The officers kicked his legs more than once. When he was being stomped on he was screaming. He denied making up the assault by the three officers. [ 46 ] AFS did not remember an officer telling him to kneel on the chair in room “A” so he could be handcuffed. It is possible this happened but he does not remember. He disagreed he refused to kneel on the chair when the officer asked him to. He did not recall if the two officers that beat him put shackles on him later.

AFS initially testified he did not step off the chair and then testified it is possible he did this because he does not remember. He disagreed the officers pushed him against the wall when he stepped off the chair. He disagreed this was how the redness and bruising occurred to his right eyebrow. [ 47 ] AFS did not remember if he was shackled the second time he was taken to the washroom. He remembered being taken to a private washroom the second time he went. He had been asking to go to the washroom because he had to go. He was able to urinate on that occasion. [Ms.

Fry objected to the Crown’s suggestion as it was not in accord with AFS’s previous testimony. I ruled it was proper cross-examination. AFS then changed his evidence because of Ms. Fry’s objection and testified, “Why would I say I went to the washroom if I just told you guys that I didn’t even get to use the washroom ‘cause my private parts was hurting so much.”] [ 48 ] AFS testified it was possible the older officer told him his rights to counsel in interview room “A” at some point but he does not remember. [ 49 ] AFS agreed he could not see any redness to his right eyebrow in the booking photo Exhibit 14A.

AFS agreed with the Crown he could see some slight redness to his right eyebrow area, essentially on his right eyelid and swelling in Exhibit 14C. He agreed there were no injuries to his neck in any of the booking photographs. [ 50 ] In cross-examination AFS agreed Exhibit 14C, a booking photograph depicting the right side of his face showed three little dots, which are not red but black. AFS then refers to these three dots as “Scabbing.” The Crown then said, “They’re scabbed over. They’re black.” AFS responds, “Yeah.” AFS later agreed it was a scab but maintained the scabbing was caused by the slap.

AFS denied he scratched the scab on his right cheek to make it appear fresh. Crown Evidence [ 51 ] On September 17, 2013, a search warrant was executed at 39 Epps Crescent in Ajax by members of York Regional Police (YRP). On September 16, 2013, Det. Clark met with Detectives Goetz and Martin of YRP Hold-up Squad and provided them with a copy of the search warrant for the next day.

It was discussed that YRP wanted to lay charges of robbery with a firearm, disguise with intent, point firearm, assault with a weapon and possibly one count of fail to comply and TPS wanted to lay a charge of conspiracy to commit an indictable offence. It was discussed that all arrested parties would be taken to 41 Division and would remain in Toronto for their initial bail hearings. The YRP would obtain a Judge’s Order to have AFS brought to Newmarket Courthouse at a later date.

[ 52 ] The evidence revealed that a number of search warrants were executed throughout the GTA respecting suspects involved in the Richmond Hill robbery, as well as a number of bank robberies that had occurred in the Toronto area. [ 53 ] The search warrant was executed at 39 Epps Crescent in Ajax at 6:00 a.m. This was the residence where AFS resided with his mother and other family members. Members of the YRP Emergency Tactical Force (ETF) were the first officers to enter the residence. They announced the presence of the police and that they were executing a search warrant.

AFS was observed in the living room and starting to run up the stairs to the second level. AFS was told not to move and to face away from the officers. He was directed to come out of the residence, which he did. AFS was turned over to Officer Pierce of the ERU, outside the front door, who took AFS’s arm and put AFS onto the ground. Officer Pierce testified AFS’s knees first came into contact with the interlock bricks on the front sidewalk as AFS was forced to lie on the ground on his stomach. He testified AFS’s knees could have been bruised or received an abrasion when he was put to the ground.

AFS’s upper body was lying flat on a grassy area at the front of the house next to the interlock sidewalk. [ 54 ] AFS was observed by Officer Chabrzynski, a member of the YRP Hold-up Squad, lying with his lower body on the interlock and his upper body on the grass at the front of 39 Epps Crescent. Two ERU officers were on either side of AFS, holding onto AFS’s arms with their knees in AFS’s back controlling him. Officer Chabrzynski provided his handcuffs to the ERU officers and AFS was handcuffed behind his back. AFS was turned over to Chabrzynski, who turned AFS over to Det. Goetz. [ 55 ] Det.

Goetz obtained AFS’s name from him and then advised AFS he was under arrest for robbery with a firearm, disguise with intent, point firearm, assault with a weapon and conspiracy to commit robbery. He advised AFS of his right to counsel. AFS said he understood and provided Det. Goetz with the name and phone number of his lawyer. He also provided AFS with his “young offender rights” to which AFS said he wanted to speak with his mother. AFS was advised he would be able to speak to his counsel and his mother at the police station. AFS was then cautioned by Det. Goetz and AFS stated he understood.

AFS was then turned over to Officers Azzopardi and Phuong at 6:10 a.m. [ 56 ] At 6:33 a.m., Det. Goetz spoke to Officer Taylor, TPS Hold-up Squad, and provided him with the name and contact numbers for Ms. Fry, AFS’s lawyer, and AFS’s mother. [ 57 ] AFS was brought to 41 Division and was subject to a strip search by Officers Azzopardi and Phuong between 7:09 a.m. and 7:14 a.m. Neither officer observed any injuries to AFS.

Officer Phuong testified if he had observed, during the course of the strip search, the small marking on AFS’s knee, as depicted in Exhibit 4C, he likely would not note such an injury as it was not significant. [ 58 ] Exhibit 23 is the Record of Arrest for AFS, portions of which would have been filled in by the officer in charge of 41 Division. It was disclosed in the evidence called that information is added to this document throughout AFS’s detention at 41 Division and later at 33 Division. Patricia Frye’s (sic) is listed as AFS’s lawyer.

It is not known when this entry was made. [ 59 ] At 7:16 a.m., AFS was brought to the Youth Bureau and lodged in Interview/Holding Room “A” by Officers Azzopardi and Phuong. There are two interview/holding rooms in the Youth Bureau; both rooms are not equipped with video-recording equipment. The evidence disclosed that young persons are generally kept in either of these two rooms at 41 Division. Officer Phuong completed the “Welcome to the Youth Bureau Sheet (Exhibit 19) with AFS, after AFS was put into this room.

Officer Phuong testified AFS did not indicate he wanted to speak to his mother when this form was filled out, although her name and phone number were provided by AFS. AFS also provided the name and telephone number of his lawyer. Officer Phuong could not recall if AFS requested to speak to his lawyer or what happened to this form after it was completed. [ 60 ] Officer Azzopardi testified AFS provided the information about his lawyer but did not request to speak to her.

Officers Azzopardi and Phuong were tasked as transport officers only and were instructed to await the arrival of the officer-in-charge of the case at the station. It was this officer who was to provide AFS access to a telephone. [ 61 ] At 8:00 a.m., AFS was turned over to Officers Jaswal and Hogan when Officers Azzopardi and Phuong finished their shift. Det. Clark testified he and Det. Cst. Taylor arrived at 41 Division at 8:30 a.m. and went to the Youth Bureau/Fraud office, which were connected. Clark and Taylor entered Room “B” at 8:50 a.m., where another young person, David Rose, was being held.

At 8:52 a.m. they both entered Room “A” where AFS was being held. [ 62 ] Det. Clark testified he was taking verbatim notes of his conversation with AFS and Det. Cst. Taylor was present for officer safety. He testified the following exchange occurred: Clark: Do you know why you are here? AFS: Yeah, robbery. (followed by mumbling) Clark: Do you have a lawyer? AFS: No. Clark: Do you want to speak to duty counsel? AFS: Yeah. This is bullshit, no fucking robbery. Why you writing? Why you writing? I’m asking you. Clark: I’ll get duty counsel shortly. [ 63 ] Det.

Clark described AFS as being belligerent and upset during this brief conversation. Det. Clark testified he went back to Room “A” and asked AFS if he needed to use the washroom, to which AFS replied no. At 8:54 a.m., the door to Room “A” was closed. Det. Cst. Taylor confirmed the conversation and that AFS did not want to use the washroom. He advised when they left AFS, he was fine.

[ 64 ] Det. Clark and Det. Cst. Taylor began to debrief the various teams that had executed search warrants that morning. At 9:06 a.m., Det. Clark commenced a debrief with Officers Jaswal and Hogan but this was interrupted as AFS requested to use the washroom. AFS was taken to the washroom at 9:07 a.m. by Officers Jaswal and Hogan. It was decided to have two officers escort AFS to the washroom given his history of assaulting police officers and the nature of the charges he was facing. These two officers did not use shackles to take AFS to the washroom. [ 65 ] At 9:09 a.m., Ms.

Fry called 41 Division and spoke to Det. Clark. AFS was still in the washroom at that time. When AFS returned at 9:13 a.m., he was returned to Room “A” and a phone was provided so he could speak in private to Ms. Fry. AFS spoke to Ms. Fry while he was in Room “A”. [ 66 ] At 9:40 a.m., Det. Goetz and Officers Chabrzynski and Abreu arrived at 41 Division and were taken to the Youth Bureau/Fraud Office where they waited to speak with Det. Clark and Det. Cst. Taylor. Det. Clark offered food, water and the use of the washroom to AFS at 10:16 a.m., which he declined.

This is consistent with the Record of Arrest; one copy is contained in the Roy McMurtry documents, Exhibit 5 and a police copy, Exhibit 23. [ 67 ] The YRP officers were debriefed by Det. Clark from 10:20 a.m. to 10:40 a.m. After the debrief, the YRP officers remained in the Youth Bureau/Fraud Office. Det. Clark went upstairs to debrief another group of officers involved in the execution of related search warrants. Det. Goetz testified he began to prepare for a video statement with AFS. At 10:55 a.m., AFS began to kick or punch the door to Room “A” such that the door was violently shaking.

AFS was also yelling at the top of his lungs. As a result Officers Chabrzynski and Abreu went to Room “A”. Officer Chabrzynski testified he went to the door , opened the slide for the window and told AFS to calm down. Officer Abreu was behind him. Chabrzynski did not believe AFS could hear him because of the commotion he was causing. [ 68 ] AFS was yelling about three to four feet from the door, he wanted his mom. Chabrzynski opened the door and stepped into Room “A” with Abreu behind him. AFS immediately stepped forward right up to Chabrzynski’s face.

AFS was within inches of Chabrzynski’s face and the officer told him to step back. AFS did not comply. AFS was very agitated, Chabrzynski believed he was going to be assaulted by AFS, so he put his left palm onto the centre of AFS’s chest and pushed AFS backwards so that AFS sat down in the chair that was against the wall directly behind AFS. [ 69 ] Chabrzynski told AFS his mother would be contacted and for AFS to calm down. Chabrzynski closed the door to Room “A” and once again AFS started to kick the door and yell.

Officer Abreu confirmed the evidence of Chabrzynski and testified AFS lunged at Chabrzynski in an intimidating manner and Chabrzynski put his arm up right away to protect himself from AFS. Abreu stayed outside Room “A” and had no physical contact with AFS. AFS continued to kick the door, yell profanities and request to speak to his mother. They told Det. Goetz what had transpired and Det. Goetz went to Room “A” to calm AFS down. Det. Goetz opened the door; AFS was standing and said he wanted to talk to his mother. AFS provided Det. Goetz with his mother’s phone number. Det.

Goetz testified he told AFS he would call AFS’s mother for him. AFS did not make any other requests of Det. Goetz. [ 70 ] Det. Goetz called AFS’s mother at 11:00 a.m. and left a voice-mail message for her advising that AFS wanted to speak to her and she should call 41 Division and have Det. Goetz paged. Det. Goetz advised AFS he had called AFS’s mother and left a message for her to call 41 Division. At some point Det. Goetz left AFS’s mother a second message for her to call 41 Division. [ 71 ] Det.

Goetz decided he would not attempt to take a video statement from AFS as AFS had not been able to speak with his mother. Officer Chabrzynski testified a statement was not taken from AFS as his mother had not been reached and AFS’s emotional state was too fired up and too agitated. This evidence was also confirmed by Officer Abreu.

Officer Taylor was advised by the YRP officers they would not be interviewing AFS. [ 72 ] The YRP officers all testified they did not hear any police officer tell AFS to shut the fuck up, swear at AFS, threaten AFS or yell at AFS while they were present in the Youth Bureau/Fraud Office at 41 Division. Chabrzynski and Abreu only observed Det. Goetz deal with AFS. [ 73 ] Det. Goetz testified a decision was made for AFS to remain in Toronto for a bail hearing on the conspiracy to commit robbery charge.

YRP would need to obtain a judge’s order to have AFS brought to Newmarket Court to be charged with the CIBC robbery in Richmond Hill. He spoke to Det. Cst. Taylor about this. The YRP officers left 41 Division to return to their offices at 11:15 a.m. Det. Goetz did speak to AFS’s mother around 1:35 p.m. when he was back at his office and he advised her of the charges AFS was facing in Toronto and the charges that were going to be laid in York Region. [ 74 ] Officer Taylor testified after the YRP officers left 41 Division, AFS started to pound and kick the door to Room “A”.

AFS was screaming he had to “take a fucking piss.” Taylor advised AFS he had to wait for another officer to attend before he could take him to the washroom. AFS became angrier and continued to kick the door saying he “was going to start pissing on the floor” and “if he didn’t get to piss in 30 seconds he was going to piss on the floor.” AFS then began to count down from 30. [ 75 ] Det. Clark returned to the Youth Bureau during AFS’s screaming and kicking the door. He told Taylor he was going to get shackles so they could take AFS to the washroom. Det.

Clark came back with shackles he had obtained from the Staff Sergeant in the booking hall. Clark told AFS they were going to take him to the washroom but needed to shackle him because he was “acting like an idiot.” They told AFS to turn around and kneel on the chair facing the wall so they could put the shackles on him. AFS kept saying this was wrong, they were treating him like an animal and he would just piss on the floor. He was pacing back and forth and looked as if he was getting ready for a fight. He finally agreed to kneel on the chair, which he did.

Officers Clark and Taylor entered the room and Clark began to put on the shackles on AFS’s left foot. AFS stepped off the chair abruptly with his right foot after the shackle was put on his left foot. Both officers forcefully pushed AFS as hard as they could into the wall to control him. They testified they believed AFS was going to fight them. [ 76 ] Officer Taylor testified AFS’s upper chest and face made contact with the wall when he pushed him. Taylor continued to put his weight on the right side of AFS’s body, his arm and shoulder, and controlled AFS’s head by holding AFS’s neck with his left hand.

AFS was struggling, pushing back and trying to move his head. AFS was actively resisting the officers’ attempts to hold him

against the wall and was saying the officers were assaulting him. AFS was told to stop resisting and calm down, which he eventually did.Clark pushed AFS’ waist area against the wall after he stepped off the chair with his right leg. Finally, after AFS calmed down his rightfoot was shackled and he was handcuffed to the front. At 11:30 a.m., the officers took him to the washroom. Both officers testified AFSurinated when he was in the washroom. AFS was then escorted back to Room “A” and the shackles and handcuffs were removed. [77] At 11:48 a.m. Det.

Clark entered Room “A” and advised AFS he was being charged with conspiracy to commit theindictable offence of robbery and asked AFS if he understood. Det. Clark also read AFS his right to counsel, which AFS said heunderstood. When AFS was asked if he wanted to speak to his lawyer he said, “I already did.” When Det. Clark asked AFS if he wantedto speak to her about the new charge AFS told him, “Don’t worry, she said don’t say anything.” Clark asked AFS if he wanted to providea video statement, which AFS declined. [78] AFS continued to yell in a loud voice while he was in Room “A” and Det.

Clark finally went to the booking area to ask ifAFS could be put in a cell. At 12:20 p.m. the Booker advised Clark AFS could be put in a cell. [79] At 12:22 p.m., AFS was put in shackles again and escorted to cell 11. When he was placed in the cell the shackles wereremoved by Det. Clark. This is recorded on video, although there is no sound. Det. Clark testified AFS did not complain about beingassaulted when he was put into the cell. The only time he complained of an assault was when he was pushed against the wall in Room“A” when he stepped off the chair as he was being shackled. [80] Det.

Clark spoke to AFS's mother at 12:45 p.m. and advised her of AFS’s charges. He told her they were trying to getAFS into court that day for a show cause hearing. At 2:25 p.m. Det. Clark brought the other young person, DR, to the cells. He asked theBooker if a car was available to transport both DR and AFS to the Scarborough Courthouse. He was told the youths would not be goingto court as no Justices of the Peace would sit past 3:00 p.m. [81] Det. Clark put DR into cell 12 and advised both DR and AFS they would not be attending bail court until the next day andwould be taken to 33 Division that night.

Both DR and AFS were not happy when they received this information. [82] Officers Pece and Aitken were the booking officers at 41 Division on September 17, 2013, from 2:00 p.m. to 11:00 p.m.Their duties included taking prisoners for fingerprints and photographs. Officer Pece dealt with AFS on two occasions on September 17.The first occasion was at 3:54 p.m when AFS was brought to the print room to photograph AFS and obtain his fingerprints. Thephotographs taken by Pece were marked as Exhibit 14 A-D.

A disc containing the digital images of the photographs was marked asExhibit 22. [83] Officer Pece testified when he was dealing with AFS in the print room, AFS did not complain about being assault.Further, AFS never requested additional photographs be taken of specific areas of his body, including his face. Officer Pece testifiedwhen he took the photographs in Exhibits 14A-D, he did not observe any injuries, such as redness to AFS’s face or scratches on AFS’sright cheek.

The markings on AFS’s face in Exhibit 14C appear to be brown or black and appear to be an older injury, whereas themarkings seen in Exhibits 4A and 4B, on AFS’s right cheek appear to be red and fresher. Further, Officer Pece testified the marking onAFS’s right cheek in Exhibit 14C does not appear to be consistent with the marking on AFS’s right cheek in Exhibits 4A and 4C, as thepattern appears to be different. [84] Officer Aitken’s evidence confirms the evidence given by Pece.

AFS made no complaints about being assaulted earlierby police officers when he was brought to the print room for photographs and fingerprints. Officer Aitken testified if he had seen ascratch on AFS’s right cheek as shown in Exhibit 4A, which appeared to be a small cut or abrasion, he would have made a note of it. Themug shot, Exhibit 14C, shows something very different, which appears to be a spot and not an abrasion or cut. [85] The booking officers were involved in bringing AFS to the booking hall before he was transported to 33 Division. AFSwas brought before Staff Sgt. Rouette.

Officer Pece was behind AFS when he made a complaint about being assaulted. He did notobserve any injuries to AFS when he was standing in the booking hall. If AFS had any injuries he would not have been transported to 33Division unless there was an injury report filled out.

Officer Pece also testified if he observed any injuries to AFS and did not advise hissuperiors he would get into trouble and risk being reprimanded or charged under the Police Services Act. [86] Staff Sergeant Rouette testified he did not observe any injuries to AFS’s face when AFS complained he was punched inthe face earlier by police at the station. He was five to six feet from AFS and he did not observe any injury to the area under AFS’s righteye that he was pointing to. It was his evidence there was nothing to investigate as he did not see any injury.

The discussion moved to thecharges AFS and DR were facing and their bail hearings in court the next day. When AFS left the booking hall and was walking to thepolice van he was laughing, joking and smiling. Staff Sergeant Rouette did not believe AFS’s complaint was genuine based on thetotality of the circumstances. If the transport officers had observed injuries to AFS they would not have transported AFS until an injuryreport was filled out.

These two officers were present when AFS made his complaint to Staff Sergeant Rouette. [87] When AFS arrived at 33 Division he once again complained he had been beaten by officers at 41 Division and pointed tohis right eye and said it was swollen. The Booking officer did not investigate AFS’s complaint any further. Applicable Law [88] A judicial stay of proceedings is an exceptional remedy that is reserved for the clearest of cases. In R. v. Babos, 2014SCC 16 , [2014] S.C.J.

No. 16, at para. 30., Moldaver J., for the majority, held: A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para.53). It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public isdeprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court. [89] The leading authorities are generally recognized as R. v. O'Connor, (SCC), [1995] 4 S.C.R. 411, Canada(M.C.I.) v.

Tobiass, (SCC), [1997] 3 S.C.R. 391, and R. v. Regan, 2002 SCC 12 , [2002] 1 S.C.R. 297. The

principles that emerge from these three cases have very recently been summarized by the Court of Appeal in R. v. Zarinchang , 2010 ONCA 286 , at paras. 57 (see also R. v. Babos , supra , at para. 32 ): 1. There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual's trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process. 2.

In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied: i. the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and ii. no other remedy is reasonably capable of removing that prejudice. 3.

In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider - the balancing of the interests in granting a stay against society's interest in having a trial on the merits. [ 90 ] The claim before me clearly falls within the "residual category" of cases that may attract the remedy of a judicial stay. The defence concedes this.

In such cases, as said by the Supreme Court in an oft-quoted passage from Tobiass , supra , at para. 91 (and re- affirmed in Regan , supra , at para. 55 ), The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings. For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice.

As restated by the Court of Appeal in Zarinchang , at para. 58 , the concern is "not ... about continuing prejudice to the applicant by proceeding with the prosecution" but, "[r]ather,...for the integrity of the justice system." [ 91 ] Importantly, the Court of Appeal continues: However, the "residual category" is not an opened-ended means for courts to address ongoing systemic problems. In some sense, an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if the price of the stay of a charge against a particular accused is worth the gain.

Does the advantage of staying the charges against this accused outweigh the interest in having the case decided on the merits? [ 92 ] Accordingly, the Court notes, at para. 60, judges hearing residual category applications, as here, "will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion." This balancing, the Court then explains, commands regard for ... the particulars of the case, the circumstances of the accused, the nature of the charges he or she faces, the interest of the victim and the broader interest of the community in having the particular charges disposed of on the merits. [ 93 ] A very recent decision of the Ontario Court of Appeal, R. v.

Singh , [2013] O.J. No. 5727 , dealt with very similar circumstances to the case at bar. The allegations in Singh , which were conceded by the Crown during the trial, related to police brutality towards Mr. Singh and his co-accused, Mr. Maharaj, used by the Toronto Hold-up Squad police officers in obtaining statements. Maharaj suffered serious injuries, including a fractured rib and Singh was less seriously injured. The Crown stayed the charges against Maharaj but continued to prosecute Singh.

Although Singh’s statement was exculpatory there was other circumstantial evidence, upon which it was open for the jury to convict. Singh brought a Charter application to stay the convictions pursuant to s. 24(1) of the Charter arguing his rights to life, liberty and security of the person under s. 7 and cruel and unusual punishment under s. 12 of the Charter had been infringed. [ 94 ] The trial judge dismissed the application.

Although she recognized the police conduct was egregious and the Crown conceded Singh’s Charter rights had been violated, she concluded the breaches could be remedied by a reduction in sentence. At the stay application both Singh and Maharaj testified. The Crown did not call any of the officers who were the subject of the allegations or any other evidence to counter the accused’s’ allegations. Further, the Crown on appeal did not contest that evidence. [ 95 ] The uncontested allegations involved three instances of assault over an extended period of time.

It was the Crown’s position because Singh was not permanently injured and may have exaggerated his injuries, he was not the subject of police misconduct sufficient to warrant a stay of proceedings.

Justice Blair, for the majority in Singh , found the trial judge erred in failing “to direct her mind to the nature of the police misconduct in the context of its potential systemic ramifications and the need to consider its impact upon the integrity of the administration of justice” (see para. 36). [ 96 ] Justice Blair relied on Tobiass , supra , at paras. 91 and 96 : For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice ....

There may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive . But such cases

should be relatively very rare. Admittedly, if the past abuse were serious enough, then public confidence in the administration of justice could be so undermined that the mere fact of carrying forward in the light of it would constitute a new and ongoing abuse sufficient to warrant a stay of proceedings . However, only an exceedingly serious abuse could ever bring such continuing disrepute upon the administration of justice.

It is conceivable, we suppose, that something so traumatic could be done to an individual in the course of a proceeding that to continue the prosecution of him, even in an otherwise unexceptional manner, would be unfair .

Similarly, if the authorities were to fabricate and plant evidence at the scene of a crime, continued pursuit of a criminal prosecution might well be damaging to the integrity of the judicial system. [ Emphasis added ] [ 97 ] It was a significant circumstance for the Court of Appeal that none of the police officers, against whom these allegations had been made, provided any response to the testimony of Singh and Maharaj.

In fact, it was the lack of a response or any meaningful disciplinary measures as a result of “the inability or refusal of the police to muster a pointed response in the face of such unchallenged allegations of serious criminal conduct by state actors during a criminal investigation makes the case for a stay under the residual category all the more compelling” (see Singh , supra , at para. 46). [ 98 ] Consequently, Justice Blair concluded at paras. 48 and 49: …Balancing all of the competing interests at play in contemplating a stay of proceedings - the seriousness of the offence and society's interest in upholding a conviction, the integrity of the justice system, and the nature and gravity of the violation of the appellant's rights - I am satisfied that a stay is warranted and should have been imposed.

The state misconduct was a flagrant breach of the appellant's Charter -protected rights. The prolonged and grave nature of the beatings, and the careful choreography underlying them, suggest a pattern of misconduct on the part of D.C. Clark and Detectives Watts and Belanger that has systemic implications. That similar assaults were committed against the appellant's co-accused reinforces this concern.

To adopt the language of Tobiass , cited above, a stay of the convictions is necessary "to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole in the future." [ 99 ] The onus is on the Applicant to establish on a balance of probabilities the assaultive behaviour alleged against the police. In light of the decision in Singh , it is my view if the Applicant succeeds in establishing the assaultive behaviour he described, the only appropriate remedy is to stay the charges pursuant to s. 24(1) of the Charter .

Position of the Parties [ 100 ] The position of the Applicant is the charges he is facing should be stayed “for abuse of process due to state misconduct which can be characterized as an overarching disregard for [AFS’s] fundamental protections as guaranteed by the Canadian Charter of Rights and Freedoms , ss. 7, 12 and 24(1) . Ms. Fry argues AFS’s evidence should be accepted and the evidence of Det. Clark and Det. Cst. Taylor should be rejected. It is Ms.

Fry’s position “the abuse of police authority through violence and persistent flagrant breaches of the Applicant’s Charter rights” provides the basis for a stay of proceedings. The evidence of AFS establishes this is “one of the clearest of cases” and no other remedy short of a stay of proceedings is appropriate. [ 101 ] The Crown argues “the Applicant’s rights under ss. 7 , 10(a) , 10(

b) and 12 of the Charter were respected at all times on September 17, 2013 and no police officer used more force than was reasonably necessary in their dealings with AFS. On the contrary, given the actions of the Applicant at the relevant times, the force used by the officers was proportional, measured and reasonably necessary in the circumstances.” Analysis [ 102 ] The onus to establish, on a balance of probabilities, AFS was assaulted by the Toronto police rests with the Applicant.

The Applicant argues the charges facing AFS should be stayed pursuant to s. 24(1) of the Charter as a result of the egregious misconduct of the Toronto police officers in assaulting AFS while he was in police custody at 41 Division. Both counsel agree the police misconduct alleged by the Applicant would not affect AFS’s ability to have a fair trial, rather, it is the residual category which applies involving “state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process” (see Zarinchang , supra , at para. 57 ).

Both the Applicant and the Crown agree if I am satisfied, on a balance of probabilities, the Toronto police officers assaulted AFS in the manner he has described, an unprovoked, brutal, continuous beating by three police officers while he is being detained in police custody, I should stay the charges facing AFS.

It is clear from the caselaw I referred to above, a stay of proceedings is reserved for “the clearest of cases” where the “stay of proceedings is necessary to preserve and protect the integrity of the justice system” and anything less “would amount to judicial condonation of egregious misconduct and erode the public's confidence in the administration of justice” (see R. v. Babos , supra , at para. 3 ). [ 103 ] For the reasons which follow, it is my view the Applicant has not established on a balance of probabilities that he was assaulted in the manner he alleged.

AFS’s credibility was seriously called into question as a result of his evidence, both in-chief and in cross-examination. (

a) The nature of the assault alleged is not reflected by injuries observed by Ms. Samuels, the nurse. [ 104 ] The nature of the assault described by AFS was a brutal, continuous and serious beating, which extended for at least a minute and a half or longer. According to AFS, Det. Clark walked into the interview room and punched him in his right eye, without warning and without reason. It was what is often referred to as a “sucker punch”. Det. Clark then grabbed AFS’s Adam’s apple and choked his throat; to the point AFS described his air being cut off and he could not breathe. AFS testified Det.

Clark’s hand was like a claw, which squeezed both sides of his throat around his Adam’s apple. A third officer went behind AFS and put him in a “full Nelson” hold. Det. Clark punched AFS a number of times in the head after he let go of AFS’s throat. Officer Taylor hit him in his torso and ribs, causing AFS to fall to the floor. AFS testified this was when he skidded on his knee and likely injured it. AFS testified he was hit or punched three times after the first punch by Det. Clark, before he fell to the floor. He was kicked and stomped by all three officers. The

kicks and stomps by the officers landed on his head, his neck, his arms, his back, his ribs, his legs and one kick was to his genitals. He thought he was going to “puke” and his eyes watered up. He curled into a ball as he lay on the floor when he was being beaten. The stomps were hard and the kicks were harder and more forceful. AFS testified he could not recall the number of times he was kicked or stomped but it was a lot of times. He believed the officers put shackles on him during the beating. They called him derogatory names, like nigger and dirty animal.

After the beating another officer came into the room and slapped his face. [ 105 ] There were no injuries other than a scratch or cut with fresh blood to his right cheek; redness and swelling to his right eyebrow/eyelid; and bruising and a small abrasion to his right knee. There was no bruising or broken skin to his arms, legs, back, ribs, chest, neck or his head, all areas that AFS testified he was repeatedly and continually kicked and stomped on by three police officers as he lay curled on the floor of the interview room.

He described the stomps and kicks as being hard and forceful, with the kicks being done with greater force. It is my view, having regard to the brutal assault described by AFS, there would be significant injuries of bruising, broken skin and swelling, if not broken bones to the areas that were struck. There were no scratches or redness or bruising to AFS’s neck although, according to his testimony, Det. Clark squeezed with such force his airway was cut off and he could not breathe.

It is my view, the injuries, observed by the nurse and the staff at Roy McMurtry Youth Centre, were completely inconsistent with the brutal assault described by AFS. [ 106 ] Further, according to Ms. Samuels, AFS did not provide her with any details of the brutal, serious assault as he described in court. It was AFS’s testimony he told the nurse what he told the court and she did not write everything he said down. I find Ms. Samuels was clear in her evidence; AFS did not complain about being kicked and stomped on by three police officers, nor did he tell her he had pain in his back or genitals from being kicked.

AFS did not advise the nurse he was in pain, nor did he request any pain medication to help him with the pain he testified he was still experiencing. I accept the evidence of Ms. Samuels, who was called by the Applicant, and I reject AFS’s evidence on this issue. Ms. Eagles testified AFS told her he was “okay” and this is what she wrote in the forms. He did not complain to her about being in pain.

In my view, these are significant omissions by AFS and this detrimentally affects his credibility and reliability concerning his allegations. [ 107 ] AFS testified in-chief he was unable to use the washroom after the assault by the three police officers because he had been kicked in the genitals and he was unable to urinate as it hurt too much. Yet in cross-examination, AFS testified he did use the washroom when he was taken by the older and younger officer to the private washroom. This evidence changed as a result of an objection by AFS’s lawyer.

It is my view there was no confusion surrounding the questions in cross-examination by the Crown. It is my view AFS clearly understood the questions being asked and he answered them. Unfortunately his answers were completely inconsistent with his earlier testimony. (

b) The injury to AFS’s right cheek was caused after the booking photograph was taken. [ 108 ] AFS testified a scratch or cut with fresh blood to his right cheek was caused when he was slapped in Room “A” by an unidentified police officer, yet the booking photo, which is taken after the alleged assault, does not show a scratch or cut with fresh blood. The booking photo (Exhibit 14C) shows what, in my view, can only be described as three scabs, which is a much older injury than what is depicted in photos Exhibit 4A and 4B taken at the Roy McMurtry Youth Centre, approximately one and a half days later.

In fact, AFS describes the three little dots on his right cheek in Exhibit 14C as “scabbing” or a “scab.” In my view, AFS volunteered these answers. The Crown did not suggest the three little dots were a scab or scabbing.

AFS described them in this manner. [ 109 ] The fact the earlier booking photo depicts what I believe to be a scab and the photo of AFS’s right cheek, taken at the Roy McMurtry Youth Centre, shows a fresh scratch or cut with red blood is a serious discrepancy, which I find leads irretrievably to the inference that AFS picked or scratched the original scab on his right cheek so it would appear worse and fresher, thereby altering it. It is my view the difference between the two sets of photographs seriously affects AFS’s credibility. In fact, as I discussed with Ms.

Fry during oral submissions, there is an available reasonable inference that AFS scratched the scab off his cheek after the booking photos were taken to make it appear to be fresh and consistent with being assaulted approximately one and a half days earlier, thereby fabricating this injury and blaming it on the police. It is my view, AFS’s own description of the three little dots as being scabbing or a scab is particularly significant as it strongly supports the reasonable inference AFS scratched or picked the scab to make it appear fresh after the booking photographs were taken. (

c) The injury to AFS’s right knee very probably was caused during AFS’s arrest at his house at 6 a.m. on September 17, 2013. [ 110 ] In his evidence in-chief, AFS testified the ETF officers who arrested him “threw me down” on the ground. I accept the evidence of Officer Pierce of the ETF, who testified he took hold of AFS and forced him to the ground on his knees, which came into contact with the interlock pavement. This is confirmed by Officer Chabrzynski, who observed AFS prone on his stomach in front of the house, with his lower body on the interlock sidewalk and upper body on a grassy/bushy area.

AFS cannot recall a hundred percent all of the details of his arrest outside his house. AFS’s evidence changed in cross-examination from being thrown to the ground to being “placed” on the ground by the ETF officers. It is my view, AFS changed his testimony when it became clear Ms. Montemurro was suggesting the bruising and scratch to his right knee was caused when the ETF officer threw him to the ground on the interlock pavement. [ 111 ] In cross-examination, it was AFS’s position he had exaggerated his evidence in-chief when he testified the ETF officers threw him to the ground.

I find this evidence also draws into question AFS’s credibility and reliability. In re-examination, when asked if there was any way the injury to his right knee could have occurred during his arrest, AFS said, “I don’t remember what happened at my arrest exactly, so I really don’t know. I don’t think it was from my arrest though.” Ms. Fry points to the transporting officers who were involved in a strip search of AFS at 41 Division upon his arrival not observing any injury to AFS’s right knee as supporting her submission this injury did not occur during the arrest.

Officer Phuong testified when he was shown Exhibit 4C, which shows an abrasion to AFS’s right knee, he probably would not have noted that if he saw it, as it does not appear to be a significant injury. [ 112 ] AFS also testified he was shackled when he was taken to the ground during his arrest, until Ms. Fry pointed out the booking video at 41 Division, which showed him unshackled as he was brought into the station by Officers Azzopardi and Phuong.

Based on the evidence, it is my view AFS was not shackled during his arrest at 6:00 a.m. [ 113 ] I find it is quite probable AFS’s knee was injured when he was taken to the ground by Officer Pierce. Given the allegations surrounding the CIBC bank robbery in Richmond Hill, which involved the use of a firearm and assaultive behaviour by the robbers towards the tellers, I find Officer Pierce did not use excessive force in his arrest of AFS. It was appropriate in the circumstances for Officer Pierce to forcibly take AFS to the ground in order to control him and search for weapons for officer safety.

I am also cognizant of AFS’s original position concerning being thrown to the ground by ETF officers and his final evidence of not knowing whether the injury to his knee was caused when he was taken to the ground outside his house. (

d) The injury to AFS’s right upper eyebrow/eyelid [ 114 ] The photo, Exhibit 4A, shows redness and swelling above AFS’s right eye. This photo is taken approximately one and a half days after the alleged assault. Exhibits 14A and 14D, the booking photos, do not show any swelling or redness. I have carefully examined the booking photos, both the printed photos (Exhibits 14A-

D) and the digital photos, which are on a disc (Exhibit 22) and I am only able to see a slight redness and swelling above AFS’s right eye in Exhibit 14C. I do not agree with Ms. Fry’s written submission that the injury to AFS’s right eyebrow/eyelid can be seen in Exhibits 14A and D. There were no visible injuries in either the booking photos (Exhibits 14A-

D) or the Roy McMurtry photos (Exhibits 4A-

D) to AFS’s neck. [ 115 ] Ms. Fry subsequently submitted, in oral submissions, a possible explanation for this discrepancy is that the booking photographs are dark and AFS has a skin condition that makes it difficult to see bruising or injury on his skin. Ms. Samuels confirmed she was aware AFS has a skin condition where his skin is both dark and lighter brown; however, she did not observe any skin problem in the area where she observed the injury to his right upper eyebrow/eyelid.

The digital photographs contained in Exhibit 22 are much larger and there is no redness or swelling or bruising to AFS’s right upper eyebrow/eyelid in Exhibits 14A or 14D. [ 116 ] Given AFS’s testimony of at least four punches to his face, as well as a number of kicks and stomps to his head when he was on the ground, I would have expected to see significant bruising and other injuries to his face, such as cuts or contusions, in the booking photos. Yet, no injuries are observable in the booking photos, apart from Exhibit 14C. In my view, the full face photos of AFS’s face appear normal.

There are no injuries, either scratches or redness, to AFS’s neck. The booking officers, Pece and Aitken, both testified they did not observe any injury to AFS’s right upper eyebrow/eyelid when AFS was being fingerprinted and photographed. The officers testified if they had seen any injury they would have filled out an injury report and advised the Staff Sergeant in charge of the station.

Staff Sergeant Rouette, who was in charge of 41 Division when AFS was transported to 33 Division, testified he was only five to six feet from AFS and looked directly at AFS’s right eye, which is where AFS can be seen pointing to on the booking video: release to 33 Division (Exhibit 18), and he did not observe any injury; no swelling, bruising or redness. [ 117 ] AFS testified he told the identification officers he had been beaten by hold-up squad officers earlier. He further testified he asked the officer taking the photographs to take additional close-up photographs of his injuries.

Officers Pece and Aitken testified AFS did not advise them during the fingerprinting and photos he had been beaten by three hold-up squad officers earlier, nor did AFS ask Officer Pece to take additional photographs of injuries.

I accept the evidence of the two identification officers that they did not observe any injuries to AFS, they were not told by AFS he had been beaten earlier by three officers and they were not requested to take further photographs. [ 118 ] I find these further discrepancies between the booking photos and the photos taken at Roy McMurtry, in terms of injuries not being observable in the earlier photos, together with the evidence of Officers Pece and Aitken and Staff Sergeant Rouette, provides further evidence refuting AFS’s allegations of a significant, brutal, continuous assault by three police officers.

The only issue is whether the slight redness and swelling, which is only observable in Exhibit 14C, is consistent with any other explanation than what was testified to by AFS. (

e) Could the slight redness and swelling observable in Exhibits 14C and Exhibits 4A and 4D have been caused as a result of AFS being forcefully pushed into the interview room wall by Det. Clark and Officer Taylor? [ 119 ] There is no doubt there is slight swelling and redness to AFS’s upper right eyebrow/eyelid in the booking photo Exhibit 14C and in the photos taken at the Roy McMurtry Youth Centre, Exhibits 4A and 4D, one and a half days after his detention at 41 Division. As I have indicated above, given AFS’s description of the beating he received I would have expected Ms.

Samuels to have discovered far more significant injuries than she found. She describes the injury to AFS’s right upper eyelid as “slightly swollen” and Ms. Eagles describes AFS and his injuries as “He appears okay nothing serious just scratches.” [ 120 ] In my view, because the injury to AFS’s upper right eyebrow/eyelid was relatively minor, (Ms. Samuels described it as “slightly swollen” and Ms. Eagles described it as “just a scratch”) it might not have been observed by the booking officers or the Staff Sergeants at 41 and 33 Divisions as it had not developed to the point shown in Exhibits 4A and 4D.

It is clear from the video, Exhibit 18, Staff Sergeant Rouette was looking at where AFS was pointing, his right eye, and Staff Sergeant Rouette was only five to six feet away, in a brightly lit area. I accept the evidence of Staff Sergeant Rouette that he did not observe any injury to the right eyebrow/eyelid of AFS. [ 121 ] There is, in my opinion, another explanation for the slight redness and swelling observable in Exhibits 14C, and 4A and 4D, namely, the action of Det.

Clark and Officer Taylor in pushing AFS against the back wall of interview room “A” when he stepped off the chair he was kneeling on before he was fully shackled. It is my view, considering the evidence of Det. Clark and Officer Taylor, their act of pushing AFS forcefully against the back wall of the interview room could very likely have caused the minor injury to AFS’s upper right eyebrow/eyelid.

As I have discussed above, the beating described by AFS, which included at least four punches to his face and a number of kicks and stomps to his face and head, would have resulted in far more significant injuries than observed both in the photographs and by the nurse, Ms. Samuels. Further, it is significant that AFS cannot remember if he kneeled on the chair in interview room “A” or if he stepped off the chair. He testified it was possible this occurred. This supports the evidence of Det. Clark and Officer Taylor. [ 122 ] It is my view, the force described by Det.

Clark and Officer Taylor in pushing AFS against the back wall was not excessive

having regard to AFS’s aggressive behaviour and demeanour prior to the officers attempting to shackle him. His continued defiant behaviour as described by Clark and Taylor of stepping down from kneeling before the final shackle was put on, together with his background of assaulting police officers and committing violent offences, provided a basis for the officers to respond as they did. (

f) Evidence of AFS limping [ 123 ] Ms. Fry argues AFS can be seen limping as he is led into cell 11 at 12:22 p.m. AFS is wearing shackles and is on video walking for a matter of seconds. Ms. Montemurro does not dispute AFS appears to be limping slightly when he walks into the cell before the shackles are removed. The Crown refers to AFS’s evidence of being seriously injured in a bus accident when his femur was fractured. AFS testified he still suffers the effects of this injury, his leg getting stiff, if he has to sit for long periods of time. [ 124 ] I have watched the video of AFS walking into cell 11.

He is on camera for a matter of seconds. It appears he is either shuffling because of the shackles or is slightly limping. After the shackles are removed he does not appear to be limping when he is pacing back and forth in his cell, after he is standing with his back to the camera and appears to be going to the washroom. I am unable to determine whether the manner of AFS’s brief period of walking observed on the video is as a result of the shackles, his earlier injury when he fractured his femur or his allegation of his legs being repeatedly kicked and stomped on, including his genitals.

He does not appear to have any difficulty using the toilet as he is standing in front of it for only a short period of time. [ 125 ] A further observation from the video is that AFS is very much aware the cell is being video-taped, which is evidenced by his repeatedly pointing to his right eye and motioning towards to the camera. [ 126 ] AFS also is not limping when he is paraded before Staff Sergeant Rouette at 41 Division prior to being transported to 33 Division. In the 33 Division video he is not limping when he is paraded before the officer in charge of the station. (

g) Was there a breach of s. 10(

a) of the Charter ? [ 127 ] It was AFS’s evidence he was not informed about the conspiracy charge until he was being transported from 41 Division to 33 Division, when Staff Sergeant Rouette advised him, at 7:43 p.m., he had been charged with conspiracy to commit an indictable offence, robbery. There is no doubt AFS expressed surprise on the 41 Division video prior to his being transferred to 33 Division. It is my view, AFS’s surprise arose because he was only being charged with one offence and not five offences.

It is clear from the booking videos at 41 Division and 33 Division that AFS thought he had been charged with a number of offences and consequently, he appears happy when he is advised there is only one charge of conspiracy. [ 128 ] I accept Det. Goetz’s evidence he advised AFS, immediately after he was handcuffed outside his residence at 6:00 a.m., that AFS was being arrested for robbery with a firearm, disguise with intent, point firearm, assault with a weapon and conspiracy to commit a robbery. When AFS was cross-examined about Det.

Goetz and other officers at his arrest advising him of his charges, he testified it was possible but he simply could not recall. Further he agreed it was possible the “older officer”, Det. Clark, came into the interview, at 11:48 a.m., and told AFS he was being cha

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