R. v. Jackson, 2011 ONCJ 228

COURT FILE No.: Toronto DATE: 2011-04-20 Citation: R. v. Jackson , 2011 ONCJ 228 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — TYRONE JACKSON Before Justice Fergus ODonnell Heard on 5 & 28 January, 30 March and 5 April, 2011 Reasons for Judgment released on 20 April, 2011 Mr. Marcin Sabat................................................................................................... for the Crown Ms. Joanne Park............................................................... for the defendant, Tyrone Jackson ODonnell, J.: Overview 1 .

Tyrone Jackson stands charged with assault police, assault resist arrest and possession of marihuana, all arising out of a traffic stop on 9 July, 2010. In addition to the question of whether or not the Crown has proved Mr. Jackson’s guilt on any or all of those charges, Mr. Jackson has brought an application under the Charter of Rights , seeking a stay of these charges insofar as he alleges that his injuries arising from his arrest, which are objectively serious, are so excessive as to reflect an unacceptable use of force by the five arresting officers. 2 . By way of

summary, a traffic officer ran the plate of the car Mr. Jackson was driving on Jane Street, an Acura that belonged to someone else, and learned that the validation tag had expired and that the registered owner was a suspended driver with outstanding firearms charges. The constable followed Mr. Jackson into the underground parking garage of an apartment building, where a confrontation ensued. That confrontation was eventually joined by four other officers and ended with Mr. Jackson facing these charges and recovering from a broken jaw, among other injuries.

With the exception of one officer who injured his knee from kneeing Mr. Jackson, none of the other officers was injured except that the first officer had a scraped elbow, two scraped knees and a sore hand, none of which required medical attention. 3 . Parts of Mr. Jackson’s interaction with the police in the parking garage were captured on video, but for reasons I shall discuss later, while the video is helpful, it is an incomplete and imperfect record. The Evidence 4 .

At 14:58h on 9 July, 2010 Constable Verdoold was on traffic enforcement duties, stopped at the corner of Jane Street and Chalkfarm Drive when he saw Mr. Jackson make an “aggressive” or overly fast left turn onto Chalkfarm. When Constable Verdoold ran Mr. Jackson’s licence plate, he learned that the validation tag was expired, and that the registered owner of the car was a suspended driver who had outstanding firearms charges. Constable Verdoold followed Mr. Jackson down Chalkfarm as Mr.

Jackson drove about 20 kilometres per hour over the posted limit, but was able to catch up to him and followed him into the front parking lot of 160 Chalkfarm, a large apartment tower, where he said Mr. Jackson drove unusually fast through the parking lot. 5 . For reasons that are not at all apparent, Constable Verdoold did not activate his emergency lights to stop Mr. Jackson on the surface, but instead followed Mr. Jackson into the underground garage. [1] Constable Verdoold admitted that it would have been more prudent to have stopped Mr. Jackson above ground.

It is self-evident that from an officer-safety point of view, following a car registered to a person facing outstanding firearms charges into the underground garage of a building characterized by the police as a problem area for drugs and guns was by far the less prudent of two options. 6 . The fact that Constable Verdoold did not activate his lights or siren is also consistent with Mr. Jackson’s testimony that although he noticed Constable Verdoold parked in the bus-bay at Jane and Chalkfarm, he was not aware that the officer was behind him. 7 . Constable Verdoold said that Mr.

Jackson drove unusually fast around the first level of parking, passing some empty spots and then went down to the second level. Concluding that Mr. Jackson was now trying to evade him and that the incident was elevating

from what might have been a mere traffic stop, Constable Verdoold radioed in for assistance as he followed Mr. Jackson down to the second level, where he said Mr. Jackson backed into a U-shaped parking alcove. [2] 8 . Constable Verdoold stopped his car as Mr. Jackson was still parking. When Mr. Jackson moved the car forward after backing in, Constable Verdoold wondered if Mr. Jackson was going to flee and so put his hand on his firearm, a gesture intended to be obvious to Mr. Jackson. He told Mr. Jackson to shut the car off, which Mr. Jackson did, whereupon the car surged forward slightly.

As Constable Verdoold fairly conceded, this could well have been a consequence of Mr. Jackson failing to set the parking brake properly. 9 . A review of the video of the parking garage shows Mr. Jackson moving the car back and forth a few times within the stall, which seems entirely consistent with a normal, if inexpert, attempt to park. However, in the circumstances and given what Constable Verdoold knew at that time, his concern was not unreasonable. [3] 10 . Constable Verdoold said that he told Mr. Jackson that the validation tag was expired and the registered owner was a suspended driver. Mr.

Jackson told him that he was not the registered owner and that the car belonged to a girl. Constable Verdoold said that when he asked Mr. Jackson for his driver's licence, registration and insurance Mr. Jackson gave no answer. That, combined with the fact that Mr. Jackson seemed more agitated than a typical driver and was moving back and forth caused Constable Verdoold to characterize this as among two or three such odd incidents in the 800 or 1,000 traffic stops he would make in a typical year. Mr. Jackson opened the door of the car, but did not get anything from inside.

When told to identify himself and asked for his name, Mr. Jackson was silent. [4] He tried to brush past Constable Verdoold, so Constable Verdoold blocked him and Constable Verdoold’s level of unease rose. When Constable Verdoold asked Mr. Jackson if he was a suspended driver, Mr. Jackson said he was not. When asked if he was on bail, he said he was. Constable Verdoold said that he was nervous and still alone and expected to have to arrest Mr. Jackson for failure to identify under the Highway Traffic Act , so he took out his pepper spray. 11 . Constable Verdoold testified that Mr.

Jackson then walked around the back of the car and up the passenger side, whereupon Constable Verdoold told him to stop moving around and to put his hands on the car, which Mr. Jackson eventually did, briefly. He then approached Constable Verdoold again, with his hands up, which made Constable Verdoold uneasy, so Constable Verdoold tapped him in the chest to stay in the alcove and Mr.

Jackson then walked back around the car and up to the front of the driver’s side, raised his hands, said “I don’t have anything” to Constable Verdoold in a normal tone of voice and then removed his t-shirt and baseball cap, something that Constable Verdoold said he’d never encountered before and which added to his sense that the situation was escalating. Constable Verdoold said he knew he’d have to place his hands on Mr. Jackson for an arrest but wanted to wait for backup. 12 . Constable Verdoold said that after removing his shirt, Mr.

Jackson turned face-in towards the car and put his hat and shirt on the car roof. He said that Mr. Jackson then dropped his right arm to his concealed right-hand waist, out of view, and brought it back up to his mouth, cupping his mouth, causing Constable Verdoold to believe that Mr. Jackson was ingesting drugs and destroying evidence. In keeping with his training, Constable Verdoold struck Mr. Jackson with his knee in Mr. Jackson’s kidney/rib cage area, on the theory that such pain will distract the person from swallowing whatever he has swallowed.

At the same time, Constable Verdoold said that he was yelling “spit it out”. Constable Verdoold said he was still alone with Mr. Jackson at this time, a contention that, in light of the video and other evidence, depends on one’s version of “alone” and perhaps on Constable Verdoold’s peripheral vision, as I shall discuss later. 13 . Whether Constable Verdoold knew it or not, he was not in fact alone at this time. Constable Hewitt testified that he and Constable Kramer arrived in time for him to see Mr.

Jackson take off his cap and shirt and put them on the roof of the Acura, (which happened as Constable Hewitt was getting out of his cruiser), then turn his back to Constable Verdoold and put his right hand to his mouth, whereupon Constable Verdoold started yelling at Mr. Jackson to “spit it out” and tackled Mr. Jackson to the ground. 14 . After the knee strike, Constable Verdoold managed to get Mr. Jackson down to the ground behind the car, with Constable Verdoold on top of Mr. Jackson’s torso, yelling “spit it out” and grabbing his throat to prevent him from swallowing. Mr.

Jackson began lashing out at Constable Verdoold with his hands and kicking, trying to push Constable Verdoold away with his hands and legs. Constable Verdoold said he still did not notice any other officers around and since he saw the situation as escalating, he sprayed pepper spray directly into Mr. Jackson’s eyes, nose and all over his face in order to get him to stop the “assault” and to spit out the drugs. He managed to flip Mr. Jackson over and was trying to get control of his arms but could not do that alone.

Constable Verdoold said it was at this point that Constable Hewitt and Constable Kramer arrived. 15 . Constable Hewitt’s evidence is to the effect that he had been on scene earlier than that (before either the pepper-spray or Mr. Jackson being flipped onto his back) and that he was near Mr. Jackson’s head trying to control his arms, with Constable Verdoold further down his body doing likewise. He described Mr. Jackson as having mild contact with him and with Constable Verdoold during his flailing. Constable Hewitt testified that he was present for the administration of the pepper spray.

He said that Constable Kramer was down towards Mr. Jackson’s legs. It was Constable Kramer’s evidence that it was he who used Mr. Jackson’s legs to flip him over onto his back. Given the relative position of Constable Hewitt and Constable Verdoold and the fact that Constable Hewitt testified that he was uttering commands to Mr. Jackson, it is difficult to understand how Constable Verdoold could not have been aware of Constable Hewitt’s and Constable Kramer’s presence as recounted in his testimony. 16 .

I note that Constable Kramer confirmed Constable Hewitt’s evidence about when they arrived on scene, in time to see Mr. Jackson remove his shirt and hat. His description of the next event, however, is different. He said that after Mr. Jackson took off his shirt, Constable Verdoold told him to put his hands on the car, whereupon Mr. Jackson instead raised his hands. As Constable Verdoold tried to grab Mr. Jackson’s wrists to hand-cuff him, Mr. Jackson put his hand to his face from a raised position rather than from his waist.

This is a materially different chain of events than that described by Constable Verdoold and Constable Hewitt. I noted that in cross-examination, Constable Kramer fairly conceded that he could not say whether Mr. Jackson’s arm movements were attempts at assault or mere flailing. 17 . Constable Verdoold testified that Mr. Jackson continued to resist surrendering his arms even after Constables Hewitt and Kramer arrived. Mr. Jackson managed to get up off the ground, with Constable Verdoold on his back and the four of them struggled over to the concrete wall of the alcove. Mr.

Jackson was upright, but bent over at the waist so that his torso was horizontal. Constable Verdoold recalled the arrival of Constables Inglis and Reynolds and that they had helped get Mr. Jackson under control. He also said he knew from the video that they had delivered knee strikes to Mr. Jackson but had not noticed that at the time. (These knee strikes would have been delivered while Constable Verdoold was right beside Mr. Jackson). 18 . Constable Verdoold said that soon after Constables Inglis and Reynolds arrived, Mr. Jackson went down hard to the ground, striking his head on the concrete.

This is consistent with the photographs tendered, which show a bloody injury to Mr. Jackson’s upper right forehead/temple area and a large accumulation of blood on the ground in that area, a triangle of roughly 20 cm by 20 cm. There are also what appear to be two blood stains on the wall in that area, about 30-40 cm apart. Constable Verdoold testified

that Mr. Jackson continued to struggle mightily against the application of handcuffs but stated that in this latter portion of the confrontation Mr. Jackson was not assaulting him, although he could not say if he had assaulted any of the other officers. Mr. Jackson was eventually subdued. 19 . Constable Jason Reynolds was one of two bicycle officers who responded to Constable Verdoold’s call for assistance. He described arriving and seeing Mr. Jackson “violently resisting” in a struggle he described as one of the most difficult, violent struggles he had seen in ten years as a police officer.

However, when asked to define this struggle of the decade, all Constable Reynolds could describe was that Constable Verdoold and Constable Hewitt were covered in sweat and unable to get Mr. Jackson, who was up against the wall, to the ground after a struggle that was objectively not very long. He testified that Mr. Jackson never struck out at him, but simply refused to go to ground. 20 . Constable Reynolds testified that upon arrival he struggled with Mr. Jackson for a matter of seconds to try to get him to ground, but almost immediately resorted to knee strikes in order to get Mr.

Jackson to comply, knee strikes being a technique he was taught at police college. After several knee strikes, Mr. Jackson crumpled to the ground and was eventually hand-cuffed by Constable Reynolds and Constable Inglis. 21 . Curiously, Constable Reynolds does not refer in his testimony to the fact that Constable Inglis had initially delivered knee strikes to Mr. Jackson. Constable Inglis testified that he first delivered knee strikes but then injured his knee in the process and realized that Constable Reynolds was there and Constable Reynolds stepped in and struck Mr. Jackson more times with his knee.

Constable Inglis was the only officer who thought that perhaps his knee strikes, aimed at Mr. Jackson’s torso, might have hit his jaw as a result of Mr. Jackson’s bobbing and weaving. 22 . Constable Verdoold said that after Mr. Jackson was removed from the alcove, Constable Verdoold returned to the area and saw a torn bible, a mobile phone and a bag of apparent marihuana on the ground near the back driver’s side of the Acura. He called for a scene of crimes officer to attend to take photographs.

Later, when Constable Brett brought those items up to him on ground level, he told Constable Brett that they were to be photographed and to return them as close as possible to the place they had been seized from. 23 . Mr. Jackson testified that he was driving the car to 160 Chalkfarm for a friend who was in custody and wanted him to sell the car because he needed the money. He was to show the car to a person on the 15 th floor of the building. On his turn onto Chalkfarm Drive he had noticed Constable Verdoold parked on Jane Street but did not notice him again until he was backing the Acura up into the spot. 24 .

As he got out of the car to enter the building, Constable Verdoold cut him off and wanted to speak to him for a second, asking if Mr. Jackson was the owner of the car. Mr. Jackson told him that it was not his car, it was Chad Baptiste’s. When Constable Verdoold asked for identification, Mr. Jackson says he told him that he did not have his driver's licence, but the ownership and insurance were in the car. He said that when he went to go into the car, Constable Verdoold told him to stop; Constable Verdoold was talking to the dispatcher. 25 . As Constable Verdoold continued to talk to dispatch, Mr.

Jackson could hear only part of what was being said. He asked Constable Verdoold if there was a problem and Constable Verdoold said ‘no’ and to hold on. Mr. Jackson told Constable Verdoold that he had to meet someone upstairs, so could Constable Verdoold accompany him to the buzzer; Constable Verdoold said ‘no’. When Mr. Jackson asked why he had been stopped, Constable Verdoold never gave a reason. Constable Verdoold never even got around to asking his name. 26 . Mr.

Jackson said he felt nervous in the basement if he was not under arrest, but Constable Verdoold told him he could not leave and put a hand up to block his way. He said he walked around the car and asked why he could not leave if he was not under arrest. At some point, Mr. Jackson said he heard a reference to firearms on the radio and told Constable Verdoold that he had no firearms on him. He was nervous so he took off his shirt and cap to show he was not armed and offered to let Constable Verdoold search him if he wanted.

Constable Verdoold told him to hold on and eventually told him to put his hands on top of the car, which Mr. Jackson did. 27 . Mr. Jackson said he had both hands on the back door of his car when Constable Verdoold put his hand on his shoulder and then struck him with what must have been the pepper-spray container and tripped him to the ground, asking Mr. Jackson what he had put in his mouth, choking him and eventually spraying him with the pepper-spray. Mr. Jackson said that he hadn’t put his hands anywhere near his mouth. 28 . While Mr.

Jackson was on the ground, he said, another officer came around and kicked him. Eventually, the officers got him off the ground and rammed him against the wall. Constable Hewitt was trying to punch him in the face and eventually got his arm behind his back. Other people were hitting him at this time, but it was neither Constable Verdoold nor Constable Hewitt because one of them had hold of his arm and the other had him in a head-lock. These punches may well be confirmed by the video. Mr.

Jackson said he eventually passed out and woke up upstairs with an officer banging his head against the cruiser and telling him to wake up; he thought this was Constable Inglis. He then recalled a man across the street taking pictures and the officers telling him to stop. 29 . Mr. Jackson said he did not strike Constable Verdoold. After Constable Verdoold struck him, the most he could do was try to turn his face from the pepper spray and wiggle because Constable Verdoold was on top of him and he was choking and losing oxygen. His legs never came anywhere near Constable Verdoold. 30 . Mr.

Jackson denied being in possession of the marihuana that was entered in evidence. He denied swallowing anything. When he was at the hospital, he recalled an officer telling the doctor that he was the guy who had swallowed crack and the doctor told him it would be in his best interests to have anything he had swallowed pumped out, but he hadn’t swallowed anything so he did not seek treatment for that. 31 . While Mr.

Jackson thought he was suspended from driving, that was not a significant concern; as he said, “I’ve been in worse.” As for his behaviour, he admitted that he was nervous and agitated in his dealings with Constable Verdoold but said that whether his behaviour was “bizarre” as suggested by the Crown depended on one’s perspective: it might be bizarre to an onlooker, but not from his perspective, faced with an officer who has his hand on his gun and wanting to demonstrate to that officer that he was not armed. The Videotape Evidence 32 .

Some of the events in the parking alcove were captured on a covert building video camera installed opposite the stairwell entrance that was immediately beside the spot Mr. Jackson parked in. Overall, this video surveillance evidence was helpful, although it has its limitations. There were gaps in the video coverage, including at least one very relevant point, but any concerns about a sinister

explanation for the gaps was dispelled by Fraser Murray, who testified as an expert in such systems. 33 . Several factors limit the video camera’s ability to provide an optimal record of the events in the parking alcove, namely: a. The camera is covert, thus limiting its placement and angle. For example, it faces partially into the ceiling and into a light source, which affects image quality. Much of the relevant action also occurs in a corner of the alcove out of the camera’s line of sight. b.

The camera’s recording function is triggered by motion, which the camera cannot always detect due to the light source facing into it. Also, the lack of contrast between the officers’ black uniforms, the dark car, etc. means that not all motion is captured. c. The motion that is of interest to this case occurs at the very back of the camera’s view, meaning that any motion is less likely to be detected than it would be if it happened at the front of the car, where the officers and Mr. Jackson would be more obvious to the camera. d.

The camera is set to tape at 30 frames per second, which is roughly what the human eye would process as a full record. However, it is only one of multiple cameras feeding its data to a central recorder. If that recorder’s ability to record is less than the sum of the multiple video feeds coming to it at any given time, then data will be lost and there will be choppiness or even gaps in what is recorded. Both choppiness and substantial gaps are evident in this recording. 34 . The video filed shows the following chronology.

It should be noted that the clock on the video appears to run about fifteen minutes ahead of real time, keeping in mind that Constable Verdoold’s call for back-up, which was before he actually stopped Mr. Jackson, was around 15:02h: Time Event 15:15:56 Mr. Jackson’s Acura arrives in front of the parking alcove. He backs in and straightens the car a few times for about 25 seconds. When he opens the door to get out, the car is still rolling forward. 15:16:21 Constable Verdoold appears from the left and walks to the driver’s door of Mr. Jackson’s car, where he and Mr.

Jackson stand face-to-face, with Constable Verdoold between Mr. Jackson and the entrance to the alcove. There then follows some to-ing and fro-ing around the driver’s side of the car. 15:17:08 Mr. Jackson appears to try to walk away from the alcove and Constable Verdoold appears to rebuff him, keeping him in the alcove by the driver’s side. Mr. Jackson responds by walking around the back of the car to the passenger side. Constable Verdoold cuts him off from leaving the alcove on that side. 15:17:24 Mr. Jackson puts his hands on top of the passenger side of the car for at least three seconds.

There is then a thirteen second gap in the video. 15:17:40 Mr. Jackson is standing by the passenger side of the car with his hands in the air, walking towards Constable Verdoold, who is blocking his exit from the alcove and who puts out his hand to turn Mr. Jackson back. Mr. Jackson then walks back around the rear of the Acura to the driver’s side. 15:17:51 As Mr. Jackson rounds the driver’s rear of the car, he starts to remove his shirt and cap.

There is then an eight second gap in the video. 15:18:02 Constable Hewitt and Constable Kramer can be seen in the frame, one a couple of feet in front of the hood of the Acura and the other a few feet to his left. Mr. Jackson’s hat and shirt appear on top of his car. Mr. Jackson is now leaning against the rear quarter panel of the driver’s side of the Acura, with Constable Verdoold immediately behind him. Within a second, Constable Verdoold drags Mr. Jackson down to the ground behind the car. Within at most four seconds after that, Constable Hewitt is immediately on scene where Mr.

Jackson and Constable Verdoold are. After very brief initial engagement in the presumed struggle, both of Constable Kramer and Constable Hewitt stand back until 15:18:15, when there is a 37 second gap in the video 15:18:52 Constable Kramer can be seen by the passenger side of the car, consistent with his evidence of having to step back after his first experience with pepper-spray. By this time the action has moved into the corner of the alcove, out of the camera’s line of sight, although occasional movements can be seen.

One of those movements is a series of apparent punches being administered by a police officer. 15:18:53 15:18:59 The bicycle officers appear on screen six seconds apart. Constable Inglis joins the fray at 15:18:57 and detaches himself around 15:19:04 and is replaced by Constable Reynolds, whose knee strikes are partially visible on the video. From the sequence of events, all the officers are in the corner by 15:19:10. There is then a seventeen second gap. 15:19:27 Officers are now detaching themselves from the corner.

After some officers mill about the side and front of the car for a short while, the officers start to bring Mr. Jackson out from the corner of the alcove around 15:20:38.

From this chronology, it is apparent that within at most one minute of any physical struggle between Constable Verdoold and Mr. Jackson (which must have begun between 15:17:54 and 15:18:02), there are now five police officers on scene and that Mr. Jackson has been subdued within no more than another minute of their arrival. Within at most a few seconds of the swallowing motion alleged, there are three officers within about a three metre distance of Mr. Jackson. Having reviewed the video several times and the officers’ behaviour and other evidence, I believe that any “resistance” by Mr.

Jackson was almost certainly subdued within about 1 ½ minutes of Constable Verdoold first striking him. [5] Whatever impression might otherwise appear from the evidence, [6] the video also makes it clear that there was no material period of time during which this was a one-on-one struggle between Constable Verdoold and Mr. Jackson. Observations About The Evidence 35 . It is self-evident that it is open to me as the trier of fact to accept all, some or none of any witness’s evidence in the course of determining what facts have been proved. In this case, five police officers and Mr. Jackson testified. Mr.

Murray, the video expert, also testified but there was ultimately no controversy over his evidence, which was very helpful. 36 . Although his failure to stop Mr. Jackson before entering the garage was both bewildering and unexplained, particularly for an officer of such experience, I was generally impressed with most of Constable Verdoold’s evidence. Leaving aside for the time being the issue of whether it was objectively reasonable for him to conclude that Mr.

Jackson had ingested drugs and thereafter to knee, ground, choke and pepper-spray him, I have no doubt that Constable Verdoold subjectively and honestly believed that Mr. Jackson had swallowed something and also believed that he was entitled to use force in response. His evidence was precise and detailed and exhibited no suggestion of hostility to Mr. Jackson. He readily conceded that there were alternate explanations for some of the things he observed. [7] His evidence was not entirely without issues, however. For example, when accused by Ms. Park in cross-examination that he and other officers punched Mr.

Jackson repeatedly in the face, Constable Verdoold gave a peculiarly worded answer to the effect that he did not “recall” “personally” striking or punching Mr. Jackson in the face. As I have noted, it is also hard to reconcile Constable Verdoold’s and Constable Hewitt’s evidence about when Constable Hewitt arrived on scene, and the video evidence seems more consistent with Constable Hewitt’s and Constable Kramer’s recounting than with Constable Verdoold’s, even making allowances for the intensity of the situation. 37 .

While this was a decision not made by Constable Verdoold, it was seriously regrettable that, for overtime reasons, his sergeant sent him home that night without having done his notes, meaning that his notes were then not completed until the following morning, by which time it was known that the Special Investigations Unit had invoked its mandate. Even if it was not known at the time that Constable Verdoold booked off shift that Mr. Jackson’s jaw was broken, it was readily apparent that there was a more-than- minor head wound with a large amount of bleeding that is often typical of head injuries.

In those circumstances, the importance of all the officers’ notes being made promptly should have been apparent. 38 . I had serious concerns with the evidence of Constables Reynolds and Inglis. In almost twenty-five years of criminal law, I do not recall having either heard or read a single witness testify about how they knew a situation was dire because the officer radioing in for assistance was otherwise invariably as cool as a cucumber and capable of handling every challenge thrown his way, but now sounded stressed.

Yet in this trial, I heard that same formulation twice, one after the other, from these two officers who were escorts on that day. Is it possible that this is mere coincidence? Of course, an enormous number of unlikely events are “possible”, but the likelihood of innocent coincidence in this testimony strikes me as infinitesimal compared to the likelihood of scripted and coordinated response. 39 . I also found it deeply disturbing that both Constables Reynolds and Inglis volunteered that Mr.

Jackson was wanted on firearms charges, which were not before the court, a detail that was entirely irrelevant to any determination I had to make. [8] Given their level of experience, such an utterance on each of their parts is troubling. Any police officer should know that such evidence is out- of-bounds and hugely prejudicial. If such an utterance were made in a jury trial, a mis-trial would have been the almost certain result. I was left with the impression that, having gotten their knees into Mr.

Jackson on 9 July, 2010, these officers took one last chance to get their boots into him on the witness stand, or, to borrow a phrase used by Mr. Jackson in his evidence, to take a cheap shot. This was in contrast to the much more professional testimony of Constable Verdoold who consciously stayed away from communicating any prejudicial data to me. 40 . Constable Inglis also suggested that he was concerned that with five officers in the near vicinity there was a danger that Mr. Jackson might seize one of their weapons.

While this is always a theoretical risk, advances in police holster design mean that it is not a particularly credible concern, particularly in the context of this case, where there were ten police arms available overall to deal with Mr. Jackson’s two arms. On the spectrum between justifications and rationalizations, this struck me as closer to the rationalization end. 41 . Constable Hewitt testified that when Mr. Jackson left the alcove, he did so under his own power, albeit that he was being held by the arms. [9] Constable Hewitt specifically denied that Mr.

Jackson was being dragged insofar as his legs were supposedly moving. It takes only a rudimentary survey of the videotape to reject this contention. On the videotape it is patently obvious that Mr. Jackson is not walking out of the alcove. His whole body seems limp and his legs and feet are in such a position that for him to be “walking” would defy the law of gravity quite apart from the law of common sense. Mr. Jackson’s evidence that he was unconscious when he was removed from the alcove is much more consistent with the video than the police evidence on this point.

I also noted that Constable Hewitt offered two pretty non-responsive answers when questioned about whether or not he had seen other officers punch and kick Mr. Jackson, before finally giving a straight denial on the third asking. Answers such as this are not the foundation upon which confidence in a witness is built. 42 . There is also an overall concern with respect to the evidence of the police witnesses. There seemed to be a bit of a theme whereby most of the officers believed they could not have delivered the blow that broke Mr.

Jackson’s jaw and whereby most of the officers could recall what they had done or not done but not what any other officer had done or not done, even when those other officers were in extremely close proximity to them, such as in a pile-on of three or so officers at a time on Mr. Jackson. 43 . I accept that in the intense environment of a struggle such as this it is entirely understandable that the police officers might have better recollection of their own actions than of the actions of the other officers and might not have seen everything that an adjacent officer did or did not do.

However, it strikes me as highly implausible that so many officers could see so little of what happened in their immediate vicinity, however tense the circumstances. People of a certain age will recall Sergeant Schultz, the Luftwaffe prison camp guard in the television series, Hogan’s Heroes , who, in order to avoid getting himself or anyone else in trouble when faced with controversy routinely intoned, “I hear nothing, I see nothing, I know nothing!” Much of the police evidence in this case

struck me as reflecting awareness on the witnesses’ part that a line had been crossed in that underground garage, that there could be very serious consequences as a result and that “job one” was to avoid admitting to any observation that could incriminate them or any of their fellow officers. Not only were the police wagons being drawn into a circle; if their evidence about the great many things they did not see is to be believed, it appears that the various officers had blinders on. 44 . Mr. Jackson testified.

His criminal record makes it clear that he is not likely to win a “citizen of the year” award any time soon, although the seriousness of his record has declined dramatically over the past half-decade. Although I do not believe he was entirely truthful, there were certain parts of his evidence that made sense. For example, when cross-examined by the Crown about being concerned over being found driving while suspended, Mr. Jackson testified that such an offence was pretty trivial to him and that he’d faced much bigger problems before. That response is entirely plausible in light of the number of times Mr.

Jackson has spent time in custody and since whatever penalty he might receive even if he had actually been suspended at the time would pale into irrelevance compared to his 3 ½ year penitentiary sentence several years ago. Mr. Jackson’s evidence about a bystander on ground level being confronted by the police for filming the scene also has a certain ring of truth to it. Mr. Jackson’s contention that he was unconscious when removed from the alcove is consistent with the video footage; if he was not actually unconscious, he appears to have been very close to it. 45 .

As will be seen hereafter, however, I do not believe that Mr. Jackson told me the unvarnished truth about everything that happened that day. As with most situations in life, I suspect the truth lies somewhere between the two versions presented. The Charter Application 46 . Mr. Jackson advances an application under sections 7 , 12 and 24(1) of the Charter of Rights , seeking to have these charges stayed.

Section 7 guarantees every citizen’s right to “life, liberty and security of the person”.

Section 12 proscribes the infliction of “cruel and unusual treatment or punishment”. 47 . Certain basic propositions govern this application, including the following: a. In a criminal trial, the burden is on the Crown to prove its case beyond a reasonable doubt. In an application such as this, however, the burden is on Mr. Jackson to prove that his rights have been violated. However, he need only prove the violation on a balance of probabilities. b.

Where a defendant seeks a stay of criminal proceedings arising out of an alleged violation of a Charter right, a stay should be granted only in “the clearest of cases.” 48 . Policing can be a challenging and dangerous undertaking. Police officers are often required to deal with risky and unpredictable situations and unsavoury and unpredictable people. A police officer’s lawful authority is not always accepted by everyone with whom the officer interacts.

While the most skilful police officer recognizes that his most valuable weapon is his mouth, there will invariably still be situations where the use of force is required. Parliament and the courts both recognize this daily reality. Parliament, in s. 25 of the Criminal Code , authorizes a peace officer to use “as much force as is necessary” for the proper enforcement of the law. The courts supplement that recognition of the realities of day to day policing by not requiring police officers to measure the degree of force they use with exacting precision.

As long as the force used is within a reasonable range, having regard to the particular circumstances of the case, the police can be confident that their conduct will be upheld by the courts, without undue “Monday morning quarterbacking”. [10] 49 . With respect to the use of force, as I have said, the courts will permit the police a reasonable degree of latitude in determining how much force to use in a given situation. This was a situation in which, by the time Constable Verdoold first put hands on Mr. Jackson, there were three officers on scene, with another two officers arriving within less than a minute.

The only concern those three or five officers had to deal with was Mr. Jackson. They were in a private area with no crowd control issues or other distractions, no other suspects to concern themselves with and no external threats. Mr. Jackson was not only a couple of floors below ground in a parking garage, he was in the back corner of a small alcove in that parking lot effectively boxed in by his own car with two fairly narrow routes of escape. He was significantly outnumbered throughout. When Constable Inglis and Constable Reynolds arrived, there were more police officers on scene than Mr. Jackson had limbs.

Even accepting that Constable Verdoold’s initial knee strike might have been justified based on his evidence retrieval concerns (which I shall address later), the use of knee strikes by Constable Reynolds and Constable Inglis at a point when Mr. Jackson was outnumbered 5:1 was, even allowing the police reasonable latitude, excessive. It was not a measured, restrained or proportional use of force. Finally, while the degree of injury to Mr. Jackson is not the determining factor, neither is it an irrelevant factor.

All things considered, even by the police version of events, the use of force here overstepped the mark by a significant margin. 50 . Of course, Mr. Jackson alleges not only that the admitted force used was excessive; he also asserts that there was additional gratuitous violence by the police. In this case, I am presented with two starkly divergent versions of what happened in the parking alcove. According to the police evidence, even with a 3:1 or 5:1 advantage in numbers, the only reasonable way to subdue Mr.

Jackson and overcome his resistance to being handcuffed was to subject him repeatedly to knee-strikes, a process that the video evidence shows left him limp and unable to move on his own. According to Mr. Jackson, there was even more to it than that: by his version, he was subjected to additional kicks, punches and “cheap shots” by various officers. There is some support in the video evidence for Mr. Jackson’s contention that he was punched. Objectively, the injuries suffered by Mr. Jackson were serious, most notably the broken jaw, but also a wound to his forehead/temple area. 51 .

Given the frailties to which I have referred above, I, reluctantly, have difficulty accepting the police version of what happened that day. Ultimately, only Mr. Jackson and the officers with him in the alcove that day know with absolute certainty what did or did not happen. I have to make my determination based on the evidence before me, including the manner in which it was presented, which was not impressive insofar as much of the police evidence was concerned.

As I have noted, the evidence of some of the police witnesses seemed exaggerated, at times inconsistent with other evidence, wilfully blind and unbalanced. On the evidence before me, I am satisfied that Mr. Jackson’s version of events, even if not entirely truthful, is more likely true than the version portrayed by the officers and that Mr. Jackson was more likely than not subjected to additional blows by the police. 52 . Policing, of course, like all human endeavours, is subject to human frailty.

For various reasons, in various circumstances, to various degrees, buttons may be pushed, lines will be crossed, power will be abused and rights will be trampled. Sometimes, detainees will be subjected to excessive force. It would be naïve to expect otherwise in any human institution. 53 . While human experience teaches us that some degree of abuse of power is likely inevitable in any institution, the rule of law requires that we repudiate abuses of power wherever they are uncovered. In this case, Mr. Jackson says that a stay of proceedings

is the only appropriate remedy. There is a limited range of remedies available for breaches of this type, the other one being asentence reduction.54. Guidance with respect to when a stay will be appropriate for abuse of process is set out by the Supreme Court of Canada in itsdecisions in R. v. O’Connor (SCC), [1995] 4 S.C.R. 411, Canada v. Tobiass (SCC), [1997] 3S.C.R. 391 and R. v. Regan 2002 SCC 12 , [2002] 1 S.C.R. 297. The Court of Appeal for Ontario has recently dealt witha request for a stay in a case involving a police beating (albeit one not in the course of an arrest), in R. v.

Tran 2010 ONCA 471, [2010] O.J. No. 2785. Generally speaking, stay applications can be divided into those where trial fairness is jeopardizedand a “residual” category.55. Even where a case falls into the residual category, the stay must serve as a prospective remedy, not a mere redress for past shabbytreatment at the hands of the state. It will only be in exceptional cases that going forward in light of the abusive conduct will beconsidered oppressive.56. Regardless of whether the use of force was as described by the police or went the extra step as described by Mr.

Jackson, I am ofthe view that this is a case in which the standard required for a stay of proceedings has been satisfied. It should be kept in mindthat even if I limit the misconduct to the police version of events, that misconduct was exacerbated during the trial by what struckme as a conscious effort at damage control and minimization by the police. If each officer honestly saw as little of what hiscolleagues did as they testified to, this was a particularly unobservant collection of trained observers.57. The unlawful use of force by police officers is a serious matter.

While society allows the police great latitude to do their jobs,society also expects that the police will act at all times with restraint and will respect the physical integrity of everyone with whomthey interact, no matter how unsavoury the police may consider them to be. What is done to those on the fringes of society in darkalcoves should matter to every person interested in the rule of law because it is the rule of law that separates this country from agreat many places on the globe. There is no place for extra-judicial punishment in Canadian law-enforcement. 58.

Accordingly, I am of the view that the first two criteria set out by the Supreme Court of Canada in Tobiass have been satisfied inall the circumstances of this case. To advance this prosecution in light of either version of events would offend society’s sense offairness and no other remedy (such as sentence reduction) would reasonably suffice given the nature of the offences with whichMr. Jackson is charged and the likely penalty if he were to be found guilty of them.[11] I am satisfied that Mr.

Jackson has proveda violation of his Charter rights as alleged and that a stay of proceedings is the only appropriate remedy in the circumstances ofthis case. Has The Crown Proved The Charges Beyond A Reasonable Doubt? 59. Given my conclusion that a stay of proceedings is justified, an assessment of the charges on their merits might seem moot. However, given the length of this trial and the public interest in having an adjudication on all issues in the event that the matterdoes not end in this court, I shall address the merits of the case also. The Possession of Marihuana Charge 60.

To earn a finding of guilt on this charge the Crown must prove that Mr. Jackson “possessed” the 2.89 grams of marihuana seizedfrom the floor of the garage near the rear of the Acura after his arrest. There is no live issue that the substance filed as an exhibitwas in fact marihuana. The concept of possession necessitates proof, directly or indirectly, but beyond a reasonable doubt, that Mr.Jackson had control of that substance and that he had knowledge of its nature.61. In this case, there is no direct evidence that Mr.

Jackson possessed the marihuana in the sense that no officer saw it in his possession, saw him drop it, and so on. Mr. Jackson himself has denied seeing it. Constable Verdoold’s description of thecircumstances that caused him subjectively to believe that Mr. Jackson had swallowed something did not include a description ofany particular object or of any characteristic of what he suspected Mr. Jackson had swallowed. In any event, if the item Mr.Jackson intended to swallow was the item tendered in evidence, given its size as shown in the photographs tendered, Mr.

Jacksonwould be a brave or perhaps foolhardy person to have tried to swallow the marihuana and its packaging. It is, however, entirelypossible that what Constable Verdoold thought Mr. Jackson swallowed or tried to swallow was a different substance entirely. Isuspect Mr. Jackson did swallow something else.62. The Crown’s proof of possession is also complicated by the handling of the marihuana in this case.

After being seen towards therear of the Acura by Constable Verdoold, it was removed from that location by Constable Brett, who then returned it to thelocation it was taken from, as best he could remember, having been told by Constable Verdoold that he wanted the itemsphotographed on location by the scenes of crime officer. This mis-step means that it is not at all clear precisely where the seizedmarihuana was found.63. The proof of the Crown’s case on this charge is further complicated by the evidence that the building in which the marihuana wasfound is itself a problem area for drugs.

While I am not so naïve as to believe that that means the floors and corridors ofChalkfarm are littered with controlled substances, that is one relevant factor in the overall determination of whether or not theCrown can prove beyond a reasonable doubt that Mr. Jackson was in possession of the marihuana. 64. I will go so far as to say that in light of the location of the drugs, Mr. Jackson’s movement back and forth around the car and hisagitated nature, it is likely that the marihuana was his, but whether that has been proved beyond a reasonable doubt is anotherquestion. The absence of direct evidence of Mr.

Jackson’s possession, the imprecision with respect to the location of the drugscreated by their being moved before being photographed and the nature of the area all combine to leave me with a reasonabledoubt with respect to Mr. Jackson’s guilt on this charge. The Assault Charges Was The Search of Mr. Jackson Lawful? 65. While there are other issues in relation to the assault charges against Mr. Jackson, one of the central issues is whether or notConstable Verdoold had reasonable grounds to believe that Mr. Jackson had ingested a controlled substance.

If he had reasonablegrounds to believe that, then Constable Verdoold had the right to arrest Mr. Jackson and the right to search him incident to thatarrest. In that case, Constable Verdoold would have been engaged in the lawful execution of his duties. If, however, ConstableVerdoold’s choke-hold search of Mr. Jackson was not objectively reasonable, his initial use of force against Mr. Jackson wouldhave constituted an assault, he would not have been engaged in the lawful execution of his duty and Mr. Jackson would have been

entitled to use force to repel Constable Verdoold.66. The law is clear that where there is a power of search incident to arrest, that power of search may in appropriate circumstances beexercised before the formal arrest.[12] Where the police reasonably believe that a person has swallowed evidence and the time forretrieval is measured in seconds, that seems to be one of the most obvious situations in which the search might precede the arrest.67. The law requires that Constable Verdoold have both honest, subjective belief in his grounds to arrest/search and also that his beliefbe objectively reasonable.

In this case, I have little difficulty concluding that Constable Verdoold honestly believed that he hadseen Mr. Jackson put his hand to his mouth in a cupping motion, that is, I do not believe he made that observation up and I rejectMr. Jackson’s insistence that he never put his hand to his mouth. While the police observations of the precise detail of Mr.Jackson’s movement of his hand to his mouth do differ, I must keep in mind that observation is subject to human frailties both atthe time of the observation and the later recollection of it. More significantly, Mr.

Jackson himself agrees that Constable Verdooldboth choked him and repeatedly insisted that he “spit it out”, two actions on Constable Verdoold’s part that make no sense at allunless he honestly believed Mr. Jackson had swallowed something.68. The question then becomes whether or not Constable Verdoold’s belief was objectively reasonable. In this case, I accept that Mr.Jackson put his hand to his mouth as described by Constable Verdoold, leading to the objectively reasonable conclusion that he hadingested something. The action happened while Mr.

Jackson was involved in a confrontation with the police in which he hadasked if he was to be arrested; if he was to be arrested, he would be subject to a search and the discovery of any contraband in hispossession. While there may be another explanation for it as proffered by Mr. Jackson in his evidence, Mr. Jackson’s behaviour inthe parking alcove can fairly be described as agitated, nervous and perhaps even bizarre, the word used by Constable Verdoold. This is a factor relevant to the reasonableness of Constable Verdoold’s conclusion. Mr.

Jackson was driving a car registered to aperson facing firearms charges and the link between firearms and the drug trade while not universal is sufficiently frequent as towarrant it being part of the reasonable grounds analysis. Finally, the reputation of the building Mr. Jackson was parked in alsobolsters the objective reasonableness of Constable Verdoold’s conclusion.

I am satisfied that all of these facts were within theknowledge of Constable Verdoold, an officer of twenty years’ experience While none of these facts taken independently wouldconstitute reasonable grounds, when they are combined and added to Constable Verdoold’s observation of the hand-to-mouthgesture, there is no question in my mind that Constable Verdoold’s conclusion that Mr. Jackson had ingested something, mostlikely a controlled substance, was a reasonable conclusion. On all the evidence, I believe that Mr. Jackson did raise his hand to hismouth and that he did so in an attempt to swallow contraband.69.

Ms. Park relies on the Supreme Court of Canada decision in R. v. Collins (SCC), [1987] 1 S.C.R. 265. It must beremembered that the Supreme Court in Collins did not hold that a choke-hold was necessarily an unreasonable search. The courtheld only that in light of the failure to elaborate upon the searching officer’s grounds for believing Ms. Collins was in possessionof drugs, the reasonableness of any such search had not been proved before the trial judge.70.

I am satisfied that Constable Verdoold’s initial use of force, including a restrained use of distractionary measures such as the singleknee strike he described and a brief choke-hold was a lawful use of force in the legitimate execution of his duty. Has It Been Proved That Mr. Jackson Assaulted Constable Verdoold? 71. It is an essential element of each of the two assault charges that the Crown prove that Mr. Jackson intentionally struck ConstableVerdoold. In this case, various officers have referred to Mr. Jackson lashing out and/or striking with his arms and/or legs.

Mr.Jackson has denied striking the officers, saying that he did not have the use of his hands and that while he may have kicked out hisfeet, he did not actually kick anyone, but rather was flailing from being choked. Constable Verdoold conceded that Mr. Jacksondid not start to flail right away, only after a second or two of being choked. 72. I have referred earlier to the difficulties I have with some of the police evidence. Those concerns are also relevant to the questionof whether or not the Crown has proved the assault beyond a reasonable doubt.

Constable Verdoold is materially unaware of, orjust plain wrong about, when Constable Hewitt and Constable Kramer arrived to assist him, which was virtually immediately afterMr. Jackson was taken to the ground. The proof of the assault charges depends on the degree to which his specific evidence canprove that Mr. Jackson intentionally struck him.[13] I must also keep in mind Mr. Jackson’s evidence that he was not activelyresisting, but rather was flailing about as a response to being choked, a not entirely implausible reaction. The question is notnecessarily whether or not I believe Mr.

Jackson, but whether his evidence creates a reasonable doubt. I must also keep in mindthat the mere act of resistance to being handcuffed, of which I have heard much evidence, does not make out the offence of assault;there must be proof beyond a reasonable doubt of the intentional application of force by Mr. Jackson against Constable Verdoold. In light of the accumulation of the foregoing considerations, I am not satisfied that the Crown has met its burden on those twocharges. I stress that I suspect that Mr. Jackson did consciously strike out at Constable Verdoold and assault him.

This case isclose to proof beyond a reasonable doubt, but when I apply that standard, I am left with a reasonable doubt on that issue. Conclusion 73. The three charges against Mr. Jackson are stayed in light of the Charter violation. If I had not been satisfied of the Charterviolation, I would have had a reasonable doubt with respect to Mr. Jackson’s guilt on each charge. Released: 20 April, 2011 Signed: “Justice Fergus ODonnell”