R. v. Young, 2014 ONCJ 171

Citation: R. v. Young , 2014 ONCJ 171 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — CURTIS YOUNG Before Justice Hackett Heard on March 19, 2014 Reasons for Judgment released on March 27, 2014 R. Fried ..................................................................................................................... for the Crown A.

Martin .............................................................................................................. for Curtis Young HACKETT J.: [ 1 ] On February 25 th , 2014, this court delivered a brief oral judgment that found that the Crown had established beyond a reasonable doubt that on January 5 th , 2012, Curtis Young committed the offences of obstruct police, personation, and possession of marijuana. The accused was also acquitted of three counts of assault police and one count of threatening an officer.

At the same time, this court found that the defence had established on a balance of probabilities that Mr. Young’s rights under s. 7 and s. 12 of the Canadian Charter of Rights and Freedoms had been breached. The basis for these findings were set out in the written judgement dated March 17, 2014.

This court must now determine the appropriate remedy to be applied under s. 24(1) of the Charter for these breaches. [ 2 ] The defence argues that given the extent and nature of the police misconduct in this case, the only remedy that is just and appropriate, in all the circumstances, is a stay of proceedings for the three remaining offences. [ 3 ] The Crown argues that a stay is an extraordinary remedy that is not appropriate in these circumstances, and that this court should impose a reduced sentence, more specifically, a suspended sentence or a discharge for the three offences.

The Charter [ 4 ] Sections 7 , 12 and 24(1) of the Charter provide: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. The Test [ 5 ] In determining what is an appropriate and just remedy under s. 24(1), the law is clear that a stay of proceedings is rarely granted because it prevents the determination of a charge on its merits and thereby frustrates the public interest in criminal prosecutions and victims’ ability to seek justice.

The appropriate test to be applied has most recently been considered in R. v. Babos , [2014] S.C.C. 16 and is set out in paragraphs 31-32. [31] Nonetheless, this Court has recognized that there are rare occasions – “the clearest of cases” – when a stay of proceedings for an abuse of process will be warranted... These cases generally fall into two categories: 1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and 2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category)…

[32] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of threerequirements: 1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested,perpetuated or aggravated through the conduct of the trial or its outcome”…; 2) There must be no alternative remedy capable of redressing the prejudice; and 3) Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interestsin favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest thatsociety has in having a final decision on the merits”...

Case Law [6] In addition to Babos, this court has been referred to a number of other decisions: R. v. Tran, 2010 ONCA 471, [2010] O.J. No. 2785 (C.A.); R. v. Wallcott, (ON SC), [2008] O.J. No. 1050 (S.C.J.); R. v. Cheddie, [2006]O.J. No. 1585 (S.C.J.); R. v. Merrick, 2007 Carswell Ont. 2855 (O.C.J.); R. v. Gladue, [1993] A.J. No. 1045 (Prov. Ct., Crim. Div.); R. v.Spannier, [1996] B.C.J. No. 2525 (B.C.S.C.); R. v. Wiscombe, 2003 BCPC 418 , [2003] B.C.J. No. 2858 (Prov. Ct.); R. v.Grant, 2009 SCC 32 , [2009] S.C.J. No. 32; R. v. Nasogaluak, 2010 SCC 6 , [2010] S.C.J. No. 6; R. v.

Dickie, [2014]ON.S.C. 1576; and R. v. Bellusci, 2012 SCC 44 , [2012] 2 S.C.R. 509. These cases are helpful, however, the facts of each oneare significantly different than those before this court. The cases that were primarily relied upon by counsel are summarized here. [7] In Bellusci, the Supreme Court of Canada upheld a stay of proceedings after a finding of guilt on a charge ofintimidating a prison guard in circumstances where the trial judge found egregious misconduct by that guard.

This conduct was describedas intolerable physical and psychological abuse that recklessly provoked the accused into intimidating the guard, which then led thatguard to retaliate by grievously assaulting the accused while he was chained, shackled, handcuffed and defenceless. In determining theappropriate remedy, the trial judge also found that the testimony and solidarity of the victim’s fellow prison guards had further tarnishedthe integrity of the justice system. Both the misconduct of the state agent and the offence in Bellusci were more serious than the offencesand misconduct before this court.

However, in my view, it is not just a consideration of the seriousness of the misconduct and theseriousness of the offence, it is also a matter of proportion and the balancing of the relative seriousness of both behaviours. [8] In Babos, the accused was charged with serious and numerous gun and drug trafficking offences in the context oforganized crime. At trial, the judge stayed the proceedings. On appeal, the Supreme Court of Canada found that the trial judge had erredin a number of ways.

Firstly, the trial judge mischaracterized the Crown’s out of court behaviour concerning the medical records asprejudicial to the integrity of the justice system. Secondly, the police collusion was so slight in terms of its impact upon the integrity ofthe justice system that it could have been adequately addressed by excluding the firearm evidence instead of granting a stay. Thirdly, thethreatening conduct of the Crown out of court was too remote and not taken seriously enough by the accused to justify the weight givento it by the trail judge.

In the end, the Court found that the trial judge failed to properly balance the need for a stay against society’sinterest in a trial on the merits for the serious offences at issue in that case. The matter was returned for a new trial. Obviously, the natureof the state misconduct in Babos was very different than that in Mr. Young’s case and the offences were much more serious, andattracted much greater public interest. [9] In Nasogaluak, the Supreme Court of Canada considered when a reduction in sentence is the appropriate remedy unders. 24(1) to address police excessive force.

In that case, after a high speed chase and an attempt to resist his arrest, the officers excessivelypunched the accused repeatedly in the head, broke his ribs, and punctured his lung. The officers failed to report or deal with theaccused’s injury, despite his complaints at the time. It was only after the accused was released the next morning that he was able to seekmedical attention and receive immediate surgery.

The Court held that a reduction in sentence for the offences of impaired driving andflight from the police was the appropriate remedy given the “punishment” already meted out through the police use of excessive force. InNasogaluak, the excessive force, injury and offences were more serious than in Mr. Young’s case. However, in the case before thiscourt, there is additional misconduct in the form of collusion and lies by the police that have affected the charges that Mr.

Young faced,and the testimony of the police at trial. [10] In Tran, the Ontario Court of Appeal found that a stay of proceedings was the appropriate remedy in circumstances wherethe police: severely beat an accused charged with nine organized home invasions involving gratuitous violence; minimized his injuries totheir colleagues; and tried to cover-up their actions at trial. This police beating was characterized as “horrendous” and caused a brokenjaw and permanent injury. The attitude of the Crown in permitting the officers who were involved to continue to play a significant role inthe trial was also a factor.

The trial judge found breaches of both ss. 7 and 12 and reduced the accused’s sentence by half in light of thismisconduct. Upon review, the Court of Appeal found that the perception of trial fairness and the integrity of law enforcement werebrought into such disrepute by this police misconduct, that a stay of proceedings was the only appropriate remedy. While the excessiveforce, injuries and offences in Tran were more significant than in the case before this court, the police misconduct in Mr.

Young’s case iscomparable to the cover-up actions of the police in Tran when they tried to minimized the accused’s injuries to their colleagues and triedto conceal at trial the assault on Mr. Young in the cell. The Main Category [11] Throughout these proceedings, until the last appearance, defence counsel consistently argued that this case falls withinthe residual category for an abuse of process. However, at the very end of the defence reply to the Crown’s reopened submissions, thedefence briefly referred to the main category in Babos as being potentially relevant.

This submission was based upon the fact that this court was unable to determine what happened at the arrest and in the search room in its March 17th reasons. The defence submits that, asa result, the fairness of this trial has been affected. The Crown responded that this court acquitted the accused of four counts and was

able to find him guilty beyond a reasonable doubt on the remaining three counts. Accordingly, the Crown argues that Mr. Young’s fair trial rights have not been violated. [ 12 ] In considering the application of the main category in Babos , the following factors are relevant. First, the defence basically conceded the Crown’s case on all three of the remaining counts. Secondly, the offence of possession of marijuana was complete before the police engaged with Mr. Young physically that night. Thirdly, Mr.

Young’s act of misidentifying himself as his brother occurred after a lawful arrest and was not induced by the conduct by the police. Rather, it was a deliberate attempt by the accused to avoid being detected for a breach of curfew. Fourthly, Mr. Young’s own serious credibility and reliability issues significantly contributed to the court’s inability to determine what happened at the arrest and in the search room. Based upon all of the evidence, I find that the police misconduct in this case has not affected Mr. Young’s fair trial interests in relation to the three remaining counts.

The Residual Category [ 13 ] The defence argues that the ongoing police misconduct throughout this night and the systemic issues this conduct raise go to the heart of the reputation of the integrity of the administration of justice and call for the unusual remedy of a stay of proceedings. [ 14 ] The prosecution argues that the state misconduct is not sufficiently egregious to warrant the unusual remedy of a stay of proceedings. Instead, the Crown argues that the alternative of a reduced sentence is the appropriate remedy in all of the circumstances. The Crown submits that, given Mr.

Young’s record, Exhibit A, the sentence that would be appropriate for the three offences in question, but for these Charter breaches, is 3-5 months in jail. The Crown relies primarily upon the accused’s 5 previous convictions for breaches of court orders to suggest this range. [ 15 ] Given the 4 ½ year gap in his record, the maximum sentence Mr. Young has received in the past, the circumstances of the offences, the overlap in the personation and obstruct offences, and the principles of sentencing, I find that the appropriate sentence range would be no more than 2 months.

That being said, the Crown has submitted that given the Charter breaches, the appropriate remedy would be to impose a reduced sentence of a suspended sentence or a discharge for all three remaining counts. The Misconduct [ 16 ] This court has found a wide range of police misconduct which all contributed to Mr. Young’s vulnerability that night and the subsequent violations of his right to security of his person and his right not to be subjected to cruel and unusual treatment.

This misconduct included not only the use of excessive force by state agents on two occasions which resulted in injuries, but it also included misconduct, both before and during this trial, that interfered with the delivery of justice to Curtis Young and the public. Before considering the appropriate remedy for this misconduct, the context of this arrest and its ultimate consequences must be remembered. [ 17 ] Curtis Young was arrested primarily for his own safety because he was intoxicated in a public place.

Ironically, as his continuing migraines and the head and facial injuries depicted in Exhibit 21 illustrate, the accused most likely ended up far worse off in the hands of the police than he would have been had he not been arrested. As PC Piccolo testified, police officers are trained to avoid injuring a prisoner’s head. Despite this training, the vast majority of Curtis Young’s injuries were to his head and face. While the officers, save PC Piccolo, all denied ever hitting or seeing Mr. Young get hit in the head or face at any point that night, that must have happened, and more than once.

PC Piccolo was the only one to candidly admit that he hit Mr. Young in the head in the cell. However, that admission cannot explain all of Mr. Young’s head and facial injuries. Given the problems with the evidence about the search, this court was not able to find with any degree of certainty what head and facial injuries can be specifically attributed to the excessive force used in the cell. Nevertheless, this court is satisfied on the evidence that further injuries were occasioned to Mr.

Young at that time. [ 18 ] The most significant aspects of the police misconduct in this case are: the failure of 7 officers to deal with Mr. Young’s allegation that he was punched in his eye at his arrest; the failure of 8 officers to address the significant injury to Mr. Young’s eye at the booking; the arresting officer’s lie to the Staff Sergeant at the booking about Mr.

Young’s assaultive behaviour towards his two partners at his arrest and the condonation of that lie by his partners’ silence; the arresting officer’s unchallenged assault on the accused in the booking hall in the presence of 5 officers that resulted in injury to his wrists; the collusion in the notes and testimony of 4 officers about Mr.

Young’s alleged threat during the booking; the collusion in the testimony of the same 4 officers about their lie that the accused swung multiple times at them in the search room; the collusion of the 4 officers in their notes and testimony about their lie that the accused attempted to spit at the arresting officer in the cell; and the use of excessive force by the same 4 officers on Mr. Young in the cell, when he was shackled, physically restrained by two officers by both arms, already injured, and defenceless.

In addition, this court has found that the police misconduct at the booking served to increase the vulnerability of Mr. Young and the power that the police had over him prior to them entering the search room and the cell, where the accused was assaulted and further injured because he continued to be mouthy. The Application of the Test to This Misconduct [ 19 ] In considering the first stage of the test set out in Babos , I find that the state misconduct is not minor and its depth and breadth is offensive to societal notions of fair play and decency in all the circumstances of this arrest, including Mr.

Young’s condition and behaviour that night. This misconduct both undermines and is harmful to the integrity of both law enforcement and the justice system. In my view, to impose the sentence Mr. Young would normally receive for the remaining three offences would result in an outcome that would create the wrong impression that the justice system and this court condones or excuses such misconduct.

In my view, this would only serve to aggravate the assault on the integrity of our justice system occasioned by the officers in this case. [ 20 ] In terms of the second stage of the test, no alternative remedy other than a reduction in sentence has been proposed to this court with respect to the obstruct and personation charges. While the defence had suggested earlier that the court could consider

excluding the marijuana as a remedy for the possession, this alternative argument was not pursued by the defence or Crown. In my view, the exclusion of evidence is normally done when there is a nexus between the Charter breach and the discovery of the evidence under s. 24(2) . Although it is still a possible remedy under s. 24(1), the police misconduct in this case began after the discovery of the marijuana and continued into this trial.

In my view, the exclusion of the marijuana would not reflect the nature and the extent of this misconduct in a manner that would redress the injury to the integrity of justice in this case. [ 21 ] Turning to consider the option of a reduced sentence for all three remaining offences, the court must assess whether or not this remedy would sufficiently address the prejudice that has been occasioned to the integrity of the justice system. In my view, the nature and extent of the behaviours of all of the officers who came into contact with Mr.

Young over a 77-minute period goes to the heart of the integrity of law enforcement and the justice system. Without a very clear response from the court, the solidarity of the police, in its negative sense, which has affected the delivery of justice in this case, would be reinforced and could cause further harm to our justice system.

In addition, in the absence of a clear response from the court, the systemic flaws in the civilian complaint system which were evident, although a minor factor in the outcome of this case, could continue to frustrate justice and undermine good law enforcement. [ 22 ] In my view, a reduction in the appropriate sentence would not provide the necessary clear response or adequately separate the justice system from this offending behaviour.

I find, there is no alternative remedy capable of redressing the prejudice in this case short of a stay of proceedings, in all of the circumstances. [ 23 ] As noted in Tran in paragraph 93 , …the nature and degree of the state misconduct demand a remedy that goes beyond an adjustment to the sentence – a remedy that appropriately responds to the damage that misconduct such as this does to the foundation of our system of justice.

To this I would add that the behaviour of the majority of the police officers, who act professionally and fulfill their duties to both uphold the law and the rights of the accused, also needs to be positively reinforced by a clear response from the court that denounces such misconduct. [ 24 ] If I am wrong in resolving the remedy at stage two of the test in Babos , then for the reasons that follow, I find that the requirement in stage three of balancing the interests in favour of a stay, against the interests of society in having a final decision on the merits, also leads to the conclusion that a stay is the only appropriate remedy, in all of the circumstances.

In coming to this decision, I have carefully considered the public interest in the three remaining offences before this court and make the following observations and findings. (

a) Obstruct [ 25 ] The obstruct police charge is based upon a drunken Mr. Young misidentifying himself as his brother at his arrest and then continuing to respond to that name at the booking. This is an offence against the community because it is an affront to the delivery of justice. Misleading the police about one’s identity wastes valuable, limited time and resources trying to straighten out the problem. It can potentially have greater consequences if the error is not caught early. However, in the circumstances of this case, this is not a very serious or sophisticated form of obstruction.

While there is an absence of evidence about how long it took the police to properly identify Curtis Young, he did have a criminal record. It is therefore reasonable to conclude that his fingerprints would have straightened out his lie relatively quickly and that his brother would not have been ultimately impacted by this personation. [ 26 ] From a fairness perspective, it is important, in my view, to consider the impact of Mr. Young’s obstruction on the delivery of justice, and compare it to the impact of the police misconduct.

This court has found that a lie by the arresting officer to his superior, which was condoned by the silence of his partners, provoked the accused’s remark that caused him to be charged with threatening. The subsequent collusion and testimony of the 4 officers about these words then put the delivery of justice at risk because, without the booking video, Mr. Young might well have been found guilty of this offence on the basis of their testimony. In addition, the police collusion about what happened in the cell lead to a further charge of assault against Mr. Young.

The 4 officers’ subsequent lies at trial also jeopardized the delivery of justice, which in the end was saved by the cell video. Finally, the officers’ misconduct significantly increased the length and breadth of this trial, and thereby interfered with the accused’s liberty interests under the terms of his bail for a much longer period of time than would otherwise have been necessary. [ 27 ] In my view, the significant impact that the police misconduct had on the delivery of justice in this case far outweighs the minimal impact of Mr. Young’s lie about his identity.

I find that, in all the circumstances, the public would not be offended if this relatively minor obstruct charge was not disposed of on its merits in all of these circumstances. (

b) Personation [ 28 ] The personation and obstruct charges overlap because they are both founded in the same lie. Personation is also an offence against the community, but more importantly, it is an offence against an individual. In this case, the victim is the accused’s brother, Richard Young. In the absence of a victim impact statement, it is reasonable to conclude that the impact of this offence on Richard Young was very minimal, if any.

This victim had had prior contact with the police because the arresting officers discovered three outstanding warrants against Richard Young before they even got to the station that night. These warrants were one of the main reasons for the police originally requesting that the accused be held overnight for a show cause hearing. In this respect, Curtis Young’s impersonation backfired.

I find that this was not a very sophisticated crime and it did not have significant consequences for the victim, the police, or the community. [ 29 ] On the evidence of the accused, his motive for this personation was to avoid getting caught for being out past curfew, which in my view is a more serious offence because it is a breach of a court order. It is significant to note that when this trial began, the accused faced a breach of recognizance charge in relation to a curfew. However, the Crown did not offer any evidence to substantiate this breach and this count was non-suited.

[ 30 ] In all of these circumstances, Mr. Young’s personation lie was not a very serious offence, especially when compared to the subsequent lies of the police and their impact on the integrity of the justice system. I find that this personation count is also not an offence where there is an important public interest in seeing justice done on its merits. (

c) Possession of Marijuana [ 31 ] With respect to the marijuana charge, Mr. Young was in possession of this substance before the police came upon him. This court has found that the arrest was lawful and therefore the discovery of the marijuana was not the product of a breach of Mr. Young’s rights. The amount of 19.88 grams is a relatively minor quantity that indicates personal use and not trafficking. In my view, the need to denounce the police conduct that night in order to maintain the integrity of the justice system far outweighs the public interest in disposing this offence on its merits.

CONCLUSION [ 32 ] As stated in Nasogaluak at paragraph 32 , “Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences.” In my view, the courts must also affirm and reinforce the fundamental values of our society and good law enforcement by responding clearly to actions that seriously undermine and threaten the integrity of our justice system. [ 33 ] I find, applying the test in Babos , nothing short of a stay of proceedings can address the depth and breadth of the serious police misconduct in this case and its negative impact on both the delivery of justice and the integrity of our justice system and law enforcement.

I find that the appropriate and just remedy in these exceptional circumstances for the personation, obstruct and possession charges against Mr. Young is to enter a stay of proceedings. Released: March 27, 2014 Signed: “Justice Hackett”