R v Brazeau, 2023 ABCJ 211

In the Alberta Court of Justice Citation: R v Brazeau, 2023 ABCJ 211 Date: 20231010 Docket: 221209570P1 Registry: Calgary Between: His Majesty the King Respondent - and - Muddy Jordan Brazeau Applicant RULING ON VOIR DIRE OF THE HONOURABLE JUSTICE H.A. LAMOUREUX [ 1 ] This is a ruling on a blended Voir Dire in the case of R v Muddy Brazeau. [ 2 ] The accused is charged pursuant to section 270 (1) and 145 (5) (

a) of the Criminal Code . [ 3 ] The Applicant is seeking an order that his Charter rights were breached at the time of his arrest by police, contrary to

section 7 and 10 (

b) of the Canadian Charter of Rights and Freedoms (The Charter ) . [ 4 ] The Applicant further submits that in the event that a breach is found pursuant to

section 7 and 10 (

b) of the Charter that this Court should issue a Judicial Stay of Proceedings pursuant to section 24 (1) of the Charter or in the alternative exclude evidence that was obtained following the breach of the Applicant’s Charter rights pursuant to section 24 (2) of the Charter . Evidence in the blended Voir Dire : [ 5 ] The Court has heard the evidence of two police officers who attended at the accused residence on December 12, 2022, on two separate occasions. All of the events were filmed on police body warn camera entered as Exhibit 1 in the Voir Dire . [ 6 ] Cst.

Fischer has been a member of Calgary Police Service since February 1, 2021. On December 12, 2022, he was working the night shift with his partner, a more senior officer, Cst. Trim, the second Crown witness. [ 7 ] Cst. Fischer was in full Calgary Police service uniform equipped with all of the use of force equipment required to be carried by police officers, including a police radio, handgun, pepper spray, collapsible baton, taser, and two pairs of handcuffs.

Officer Fischer testified that police service recruits receive training for each of the items on the use of force equipment tool belt, as well as the training with respect to normal de-escalation tactics. The training is six months in duration. All applicants are required to take and pass a formal examination at the conclusion of training. [ 8 ] On December 12, 2022, officer Fischer was dispatched to a residence in the city of Calgary in the Province of Alberta to

respond to a disturbance reported by the landlord occurring in the basement of his residence. Officer Fischer was wearing a body worn camera throughout the night. The interactions with the accused were recorded on the body worn camera Exhibit 1 in the Voir Dire . [ 9 ] In response to the dispatch call the officers arrived at the residence at 23:15:09 hours in their marked patrol car. A man standing in the living area of the residence identified himself as the landlord who made the call. The man directed officer Fischer and his partner to the downstairs access stairs located at the rear of the residence.

Police went down the stairs and knocked at a door indicating that they wanted to chat with the occupant. A man, later identified as the accused, came out of the bedroom in the basement. He immediately said “Get the F--- out of my house”. The accused was belligerent and confrontational. There was a female present in the basement who identified herself as the sister of the accused. [ 10 ] Initially the female attempted to put some distance between the accused and the police officers. The accused, according to Officer Fischer, shoved the female out of his way. Officer Fischer thought the accused was “very drunk”.

He identified signs of glazed eyes and slurry speech. The officer endeavoured to verbally de-escalate the tension in the room. He was successful, the accused appears calm as depicted on the body worn camera at 23:19:39 hours. [ 11 ] The police then engaged in a conversation with the female. She informed the officers that she came to see the accused because her boyfriend assaulted her. The officers have a conversation, and it is determined that the sister of the accused would be departing the residence shortly, via Uber. [ 12 ] Officer Fischer testified “we were confident that this was the end of the disturbance”.

The police depart after speaking to the landlord on their way out of the residence. [ 13 ] Thirty minutes later, Officer Fischer and his partner receive another call back to the same address. This time they were informed that the female, the sister of the accused had come upstairs asking the landlord to call police. On the way back to the residence police officers checked CPIC/ Sentry systems and determined that the accused was bound by conditions of release to have no intoxicants. They also determined that there were outstanding warrants for the arrest of the accused.

There was a picture on the police system which they confirmed was the same person that they were dealing with earlier at the residence, the accused, Muddy Brazeau. The officers returned to the residence. The body worn camera is activated again. They proceed to the rear of the residence at the direction of the landlord. This time the police enter the residence from the back door. They proceed down the same staircase into the basement. On the way down to the basement the landlord expresses his displeasure that troubles are continuing with the people in the basement of the residence.

There was brief involvement with another occupant in the basement suite. This occupant complained that the female who had earlier interacted with police is now in his bedroom. The officers descend the stairs into the basement. They see the accused standing in the landing area of the basement. Officer Fischer informs the accused that he is under arrest “for warrants and breaches”. It is officer Fischer’s intention to isolate the accused from other occupants in the basement. The female who had identified herself as the sister of the accused now tells police “he hit me, he stabbed me”.

Officer Fischer testified that he knows that he has authority to arrest the accused for breaches of release conditions which prohibit the accused from consuming intoxicants. The officer also knows that there are warrants outstanding for the accused. [ 14 ] Officer Fischer proceeded to the accused. He grabbed his right arm, placing it behind his back, while placing a handcuff on the right wrist. Officer Fischer testified that as he was going to secure the left hand of the accused in order to complete the handcuff, he determined that the accused “jerks away”.

Officer Fischer testifies that the left hand of the accused came up. Officer Fischer testifies “I thought he was going to punch my partner in the face”. Officer Fischer then proceeds to instantly take the accused to the ground. In seconds, the accused is on the ground. As he is taken to the ground his head strikes the door. He sustains a head injury with active bleeding. [ 15 ] The body worn camera, Exhibit 1 , records the arrest. The Court can clearly see the accused taken to the ground. He is now lying on the floor with blood flowing from a head wound.

The force of the accused’s head striking the door and hitting the ground causes the accused to lose consciousness. Officer Fischer explained to the Court that his decision to take the accused to the ground when he perceived that the accused had jerked away during the handcuff process is safer as it would give police “more control” over the accused person. According to the officer “he was less likely to be hurt”. [ 16 ] The Court has observed all of the actions and interactions between the officer and the accused on the body worn camera, Exhibit 1 .

The Court can see officer Fischer placing the handcuffs on the right hand of the accused. The Court can see the other officer pulling the accused’s body towards him with the left hand extended. The Court can see a forceful move by officer Fischer pulling the accused down to the floor. The Court can see the accused head striking the door. The Court can see that the accused has lost consciousness and is lying on the floor actively bleeding from a wound to his head. [ 17 ] Officer Fischer explained that the injury occurred as the arrest was undertaken in “a confined space”.

The close quarters, in officer Fischer’s opinion, made it difficult to take the accused into custody. In addition to obstruction of the furniture and room layout there were also other people in this basement space. Officer Fischer explained to the Court that he thought the movement of the accused after he had placed the handcuff on the right hand was what he perceived to be a swing of the left arm. Officer Fischer testifies that “once I saw him swing, my priority is to get him to ground”. Officer Fischer described the physical movement of the accused in detail.

He testified that as the accused went to ground, he rotated to the right and swung around with the left arm. The accused continued to rotate on his way to the floor. In the officer’s opinion the accused’s head hit the door and the ground thus rendering the accused unconscious. The Court can see that the accused is unconscious and actively bleeding on the floor from a wound to his head caused by the take down. The Court observed the officer bending over the accused holding his shoulders or other parts of his body. [ 18 ] After a period of approximately two minutes the accused appears to regain consciousness.

The Court watches his movements as he regains consciousness. The body worn camera shows the accused clearly in medical distress, actively bleeding, groggy, gradually regaining consciousness. The Court hears the officers say to the accused, “You have some warrants, you got arrested”. The officers say to the accused “we will sit you up”. Officers were observed then assisting the accused to sit up. He was still on the floor. The officers asked, “you ok?”. The accused responds “Yeah”.

[ 19 ] At this point in time, officer Fischer places a call for EMS. Officer Fischer testifies that once again “he started belligerent behaviour”. Officer Fischer tells the Court “I thought we need to get him out of the house”. The situation is escalating by the second and officer Fischer’s partner is dealing with a highly verbal, upset female, the sister of the accused. Officer Fischer tells the Court that this is “now a bad situation”.

The removal of the accused from the floor of the basement residence up the narrow stairs to the rear exit door of the residence is filmed on the officer’s body worn camera, Exhibit 1 . It is clear from the events recorded on the body worn camera that the situation has escalated. The accused has an active bleeding wound on his head. The accused is told to stop kicking by the officers. There is a violent struggle between police and the accused on the stairs.

The accused spits at Officer Fischer’s partner, as the two officers’ endeavor to physically haul the accused up the stairs in order to get him out of the residence. [ 20 ] Officer Fischer tells the Court that mid-way through this attempt to extricate the accused from the basement landing up the stairs he realizes that he will need additional help from other officers as his partner is diverted to deal with the female in the basement. The accused asked the officer “what do you want from me”. The accused yelled at the officer “get off me”. The accused is highly agitated.

As officer Fischer drags the accused up the stairs the other police officers arrive, Cst. Leroux and then Cst. Lee. The body worn camera depicts the police dragging the accused by his feet across the landing doorway into the outside area. His head strikes the sill of the doorway and the accused cries out in pain. Once the two police officers, officer Fischer and officer Lee drag the accused across the doorway of the residence to the outside they stand him up. The accused spat at officer Fischer.

The officer explained that the accused spat directly on his face and mouth area. [ 21 ] The accused is informed on two occasions that he is under arrest for assaulting a police officer. The first occasion is as he is being physically hauled up the stairs. The second occasion is at the police car. The accused

section 10 (

b) Charter rights are not read to him until arrival at the police car. They are read from the officer’s cell phone through a link to the Charter card embedded in the officer’s phone. The body worn camera, Exhibit 1 is a true and accurate representation of the events that occurred on that evening. It is the best evidence as to events that transpired, in the interactions between police and the accused. [ 22 ] Officer Fischer tells the Court that EMS personnel “cleared” the accused once he arrived outside the residence.

There is no evidence as to the nature of the examination conducted by medical personnel once the accused was extricated from the residence. [ 23 ] Officer Fischer is clear to say that he was “scared” that a transmissible disease might have been transmitted to him by the accused in the saliva and blood as the accused spit on the officer at the police car. The police officer was required to undergo a hospital lab test.

All tests were negative. [ 24 ] Officer Trim, the second Crown witness testified that the physical takedown of the accused to the ground was necessitated because the accused tensed and rotated to the left with his free arm moving in towards the officer’s partner. The Court has watched the body worn camera as the officer testified about his perception that the accused was moving his left arm towards the officer’s partner.

The Court cannot see the manner of movement of the accused’s left arm, as described by officer Fischer or by officer Trim. [ 25 ] The body worn camera discloses an instantaneous act by police of taking the accused to the ground during the process of handcuffing. It does not appear to the Court that the accused raisied his arm toward either officer. [ 26 ] Officer Trim who is a senior officer with Calgary Police has eighteen- and one-half years on the force. Officer Trim testifies that when the accused had one handcuff placed on him it “appeared that he tried to pull away”.

Officer Trim testifies that he reached in towards the accused to grab his hand. A he did so the accused was forcefully taken down to the ground by officer Fischer. Officer Trim agrees that the accused hit his head. Officer Trim testified that he participated in endeavouring to pull the accused out of the basement, up the stairs and out the back door. There is a violent physical struggle as the accused is pulled up the stairs. There is no question that during the physical struggle to get the accused up the stairs that the accused is highly agitated and that he spit at officer Trim’s face.

Officer Trim testifies that he felt the accused saliva hit the whole side of his face whereupon he punched the accused in the face. Understandably the officer was concerned about the transmission of disease as he was not wearing any protective face gear at the time of the spitting by the accused. The officer was required to go for extensive lab testing every six weeks for a period of time to ensure there had been no transmission of disease in the saliva of the accused. [ 27 ] Officer Trim explains that there were extenuating factors in the arrest of the accused. The arrest occurred in close quarters.

The officers were also dealing with a female, the sister of the accused who was obviously upset. Officer Trim, like officer Fischer testified that he perceived he did not have control of the accused during the process of handcuffing him. He perceived that the accused was pulling away which required police to revert to use of force “to gain control”. Legal Analysis [ 28 ] There is no issue that the officers were legally entitled to enter the residence at the invitation of the owner the landlord of the accused. There is no issue that the officers had legal authority to arrest the accused for outstanding warrants.

The issue is whether the officers used proportionate force necessary in the circumstances to effect the arrest as is required by

section 25 of the Criminal Code of Canada . The guiding case with respect to the scope of the police officers’ powers during the course of arrest is R v Nasogaluak , 2010 SCC 6 . While police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, “the degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness” Nasogaluak , supre, at paragraphs 32-34 . [ 29 ] The Court agrees with the submissions of the Prosecution, in paragraph 14 of its written submissions.

The Court agrees that the use of force does allow the officers a degree of discretion and the Court must not judge the officers’ actions against a standard of perfection. The Court agrees that a range of responses may be reasonable when officers effect the power of arrest. It is equally important that the Court recognize the inherently dangerous nature of police work and the emergent circumstances that arise which require police officers to make instantaneous decisions. An officer’s actions are not to be judged by the Court with the benefit of hindsight.

The Court agrees that, provided the officer acted reasonably given the known circumstances, the officer may be entitled to latitude with respect to the amount of force applied during the course of arrest. The Court cannot characterize the actions of a police officer with exactitude.

Rather the Court must examine the use of force in the context of the surrounding circumstances and the knowledge of the officers at the time, to determine if the force applied was proportionate to the risk presented, and ultimately reasonable. [ 30 ] This case has an unusual fact aspect in that the testimony of the officers as to the risk that they perceived in the actions of the accused cannot be seen by what the Court can observe on the body worn camera, Exhibit 1 .

The Court cannot see resistance by the accused which would justify the taking the accused to the ground in the manner that was undertaken in this case. The Court agrees with Defence submissions that the police appear to have overreacted to what could objectively be described as “very mild resistance to the second handcuff being placed on (the accused)” (Defence Brief paragraph 9).

The Court concludes that the take down of the accused in the constrained physical environment of the basement landing involved an application of excessive force which was disproportionate to the risk objectively presented by the accused in the process of being handcuffed. [ 31 ] In the Courts view the use of excessive force does not end after the accused is taken down to the ground. He loses consciousness. The officers wait for him regain some level of consciousness and then begin to physically haul him up the stairs from the basement to the landing by dragging him while he is injured and actively bleeding.

The dragging of the accused prone body across the doorway of the house was objectively unreasonable. It is clear that the accused is injured by the take down, bleeding profusely, and only barely conscious. The Court agrees with the submissions of the defence in paragraph 11 and 12 of the defence Charter notice. The applicant has established on a balance of probability, excessive use of force by police, not protected by

section 25 of the Criminal Code . The excessive force interfered with the physical and psychological integrity of the body of the accused. The Applicant proves a breach of

section 7 of the Charter . The defence makes no submissions on

section 8 of the Charter . The Court does not deal with that argument. The defence submissions with respect to a breach of

section 10 (

b) of the Charter is not established. There were exigent emergent circumstances in this case which prevented the officer from forthwith informing the accused of his rights to retain and instruct counsel, until such time as the accused was outside of the residence in the police car. The

section 10 (

b) Charter argument is dismissed. Heard on August 21, 2023 Dated at Calgary , Alberta this 10 th day of October 2023. H.A. Lamoureux A Justice of the Alberta Court of Justice Appearances: G. Whiteside for the Crown S. Sikora For the Applicant