R. v. Manalo, 2018 ONCJ 653

ONTARIO COURT OF JUSTICE CITATION: R. v. Manalo , 2018 ONCJ 653 DATE: September 24, 2018 COURT FILE No.: Central East – Newmarket - 4911-998-16-02273 BETWEEN: HER MAJESTY THE QUEEN — AND — JEFFREY MANALO Before Justice M.C.

Pirraglia Reasons for Decision Application to Stay Proceedings September 24, 2018 Szirmak, V............................................................................................. counsel for the Crown Sachak, N .......................................................... counsel for the Applicant Jeffrey Manalo Pirraglia J.: OVERVIEW [ 1 ] Jeffrey Manalo pleaded not guilty to two counts of child luring contrary to s. 172.1(2) of the Criminal Code of Canada and one count of communicating for the purpose of obtaining sexual services for consideration of a person who he believed to be under the age of 18 contrary to s. 286.1(2).

The Crown elected to proceed by indictment and the Applicant elected to have a trial before me. [ 2 ] On March 24, 2016, the Applicant responded to an advertisement in the escort

section of a website known as Backpage.com. He entered into negotiations for the purchase of sexual services with an individual who represented “herself” to be a 15-year old girl. Those communications were in the form of text messages. As a result of the text exchange, Jeffrey Manalo arrived at the designated meeting place, Homewood Suites, Unit 306, where he was arrested and charged with the above-noted offences. [ 3 ] Following presentation of the Crown’s case, the Applicant applied for a stay of proceedings alleging a breach of his right to security of the person under

Section 7 of the Canadian Charter of Rights and Freedoms . In the alternative, he applies for an exclusion of his statement to police. [ 4 ] The parties agree that the evidence called on the trial proper is to be applied on this application. The Applicant also filed an affidavit and was cross-examined on it. Crown Evidence [ 5 ] As noted above, on March 24, 2016, the Applicant attended the Homewood Suites expecting to meet a young escort as had been arranged through a series of text communications.

The hotel room door was answered by police who were part of an undercover investigation into the sexual exploitation of women and children in York Region. Following a short struggle, the Applicant was pulled into the hotel room, taken to the floor and handcuffed. He was placed under arrest for the offences of luring and procuring. [ 6 ] I do not intend to review the entirety of the police evidence. There were at least five officers present on arrest. The officers testified that as the hotel room door opened, they moved to take control of the Applicant who attempted to pull away stepping

backwards. This caused the officers to pull the Applicant into the room and take him to the ground. Once on the ground, the Applicant continued to resist being handcuffed pulling his arms into his chest. The struggle was brief, lasting seconds. Once handcuffed the Applicant was brought to his feet and seated in a chair. The Applicant calmed down although it was apparent that he was upset. [ 7 ] The officers soon became aware the Applicant had urinated himself in the course of the arrest. There was a wet spot on the carpet where he had been taken to the ground and a wet spot in the crotch of his pants.

One of the police witnesses described it as a wet area the size of a “head”. The wet spot on the carpet was covered with a towel from the bathroom in the unit. No other reference was made to the urine by any of the officers or by the Applicant. The Applicant did not ask for, and was not offered the use of the bathroom. [ 8 ] The officers testified that the hotel unit was not equipped with spare clothing nor were they in possession of what is commonly referred to as a “bunny suit”.

They were not in a position at the hotel to offer the Applicant an opportunity to remove his wet pants. [ 9 ] The Applicant was transported to the police division for processing in two stages. Transition officers escorted him from the hotel in an unmarked police vehicle to a waiting police cruiser a short distance away. They were supplied with a towel to place on the car seat so as to protect it from coming into contact with the Applicant’s wet pants. The marked police cruiser that transported the Applicant the rest of the way was equipped with vinyl seats.

The second transporting officer made no note of any wetness at the time that he took control of the Applicant. He testified that when he reviewed the booking video, he was able to see a wet area on the Applicant’s pants. [ 10 ] Video images from the transport and booking of the Applicant were entered into evidence. The transport was unremarkable. While waiting to be booked, the Applicant complained that his handcuffs were tight.

The attending officer did not loosen the handcuffs, but within five minutes of the complaint the Applicant was taken to the booking area where the handcuffs were removed. [ 11 ] The booking area is not equipped with audio equipment. P.C. Bartholomew, who was present during booking, testified that he did not recall any conversation taking place about the urine stain on the Applicant’s pants. He did note that the Applicant was allowed to keep his sweater which is not common practice. It is clear from the video that once the Applicant received his sweater, he placed it on his lap. P.C.

Bartholomew acknowledged that they have “bunny suits” and “jump suits” available at 4 District. He did not recall the Applicant asking for a change of clothing. If he had, it would have been addressed with the Staff Sergeant. He indicated further that “4 District is very accom​modating”. [ 12 ] Following the booking, the Applicant was placed in a holding cell equipped with a heated concrete bench, a toilet, toilet paper, and a sink with running water. He sat on the bench, but did not otherwise make use of any of the facilities. [ 13 ] At 12:45 a.m., the Applicant was taken to an interview room to meet with D.C.

Pozzobon. The Applicant made a statement which is admitted to have been voluntary and taken in compliance with his right to counsel. The interview was completed at 1:09 a.m. The tone throughout the interview was cordial. D.C. Pozzobon was polite and sympathetic. Although Mr. Manalo was upset by his circumstances, he was neither agitated nor distressed. He was inquisitive and forthcoming. When asked at the outset how he was, he answered “Not bad. I am in big trouble”. When asked at 1:07 a.m. whether he wanted to keep talking, the Applicant answered “Yeah, man….” [ 14 ] The Applicant was held overnight.

The following morning he was transported, along with several other detainees, to the courthouse. He was held in a bullpen type cell with other accused to await his bail hearing. He was granted bail and released 15 hours following his arrest. Defence Evidence [ 15 ] The Applicant presented affidavit evidence and oral testimony on this Application. He is a 41-year old man of Philippine descent. He has been in Canada for 12 years. He is a Canadian citizen. He has no criminal record. [ 16 ] He testified that when he grew up in the Philippines, police brutality was common.

He was never subjected to police misconduct, but he knew friends and family members who were. He learned from that experience that it was dangerous to challenge police authority. [ 17 ] He testified that this belief was confirmed by his interaction with Canadian police on one occasion prior to his arrest on these charges. He was travelling with his family, including young children near Blind River, Ontario when he was pulled over for speeding. Police checks revealed the existence of a restraining order prohibiting contact with his spouse. His spouse was in the vehicle.

The Applicant tried to explain that the restraining order had been lifted, but was arrested nonetheless. He was held in a police cell for several hours pending verification that the restraining order was no longer in place. Although the police were polite and respectful, they did not accept his word about the restraining order. He testified that this interaction reinforced his belief that “no good comes from challenging the police”.

It is this past experience in both the Philippines and Canada that informed his decision not to ask for a change of clothing while in police custody at the time of his arrest on these charges. [ 18 ] The Applicant did not seriously challenge the police evidence about the circumstances of his arrest. He admits that when the hotel room door was opened by police, he stepped backwards. When they took hold of him, he tried to pull away. He said he did this out of fear and shock. He said he felt pain in his ribs when he was taken to the ground and that several officers were on top of him.

The Applicant agreed in cross-examination that he resisted attempts to cuff him by holding his arms under his chest. He said he did so because he was scared and confused. Position of the Parties [ 19 ] The Applicant submits that a breach of

Section 7 occurred when he was allowed to remain in his urine stained clothing for the period of 15 hours. He says the state conduct is so offensive to societal notions of fairness and decency that allowing the trial to continue risks undermining the integrity of the judicial process. He urges me to find that the conduct is so egregious that the only available remedy is a stay of proceedings. He argues in the alternative that if a stay is not the appropriate remedy, his statement should be excluded.

[ 20 ] The Respondent submits that there is no violation of

Section 7 on the facts before this court. She distinguishes the facts in the rulings of Wielgosz , Sathymoorthy and Stoney . She further submits that if the court were to find a breach, this is not the clearest of cases in which a stay should be entered. Nor should the statement be excluded. She submits that an alternative remedy is available by way of a reduction of sentence should the Applicant be convicted. Issues and the Law (

A) Section 7 — General Principles [ 21 ]

Section 7 of the Charter provides that, 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. The Supreme Court of Canada established a two-step procedure to assess an alleged violation of

section 7 in the case of R. v. Beare : [1] To trigger its operation, there must first be a finding that there has been a deprivation of the right to "life, liberty and security of the person" and, secondly, that the deprivation is contrary to the principles of fundamental justice. [ 22 ] If no interest in the Applicant’s life, liberty or security of the person is implicated, the

Section 7 analysis stops there. [ 23 ] Life, liberty and security of the person are three distinct interests each of which must be given independent significance by the courts. This Application is limited to a consideration of the Applicant’s security of the person. (

B) Section 7—Security of the Person [ 24 ] State interference with bodily integrity and serious state-imposed psychological stress constitute a breach of an individual's security of the person. Security of the person has been held to protect both the physical and psychological integrity of the individual. [2] [ 25 ] The boundaries that protect an individual’s psychological integrity from state interference are ill-defined. The right does not protect an individual from the ordinary stresses and anxieties that any reasonable person would suffer from government action.

If this were so, the right would be meaningless. [3] [ 26 ] To establish a restriction of security of the person, an applicant must demonstrate, on a balance of probabilities, that the state conduct in issue had a serious and profound effect on the applicant’s psychological integrity. The effects of the state interference are to be assessed objectively, with a view to their impact on the psychological integrity of a reasonable person.

The effects need not rise to the level of nervous shock or psychiatric illness, but must extend beyond ordinary stresses or anxiety. [4] [ 27 ] In this case, it is necessary to focus on the impairment that flows directly from the actions or non-action of the police in not providing the Applicant with a clean set of clothing. The Applicant must establish that the psychological prejudice or harm flowing from this conduct was serious. [ 28 ] The Applicant relies on two decisions from this court which have considered the application of

Section 7 in factual circumstances which were similar to the case at bar. [ 29 ] In R. v. Sathymoorthy , [5] a charge of impaired driving was stayed under

Section 7 . The defendant was arrested and placed in the back of the police cruiser where he urinated himself. During the parading process, the police became aware the accused was wet with urine from the waist down. The booking video revealed that the officers mocked the accused for having wetted himself. The accused was made to provide breath samples while still wet and barefooted.

When the detainee complained that he was cold, an officer replied “What else do you expect in jail?” The court found that this conduct disclosed a degree of scorn and indifference to the detainee who was held in this fashion for 10 hours. [ 30 ] These facts caused the court to find a breach of the defendant’s right to security of the person under

Section 7 . The humiliation, discomfort and likely jeopardy to the composure of the defendant during the time that he was giving breath samples were entirely avoidable. Officers did nothing to minimize the detainee’s discomfort but rather made light of his condition in a belittling manner. The trial judge concluded that such indifference to the security of detainees was endemic to the arresting police force. In the circumstances, nothing short of a stay would remedy the institutional attitude. [ 31 ] In R. v.

Stoney , [6] Justice Duncan was also dealing with a defendant arrested for operating a motor vehicle with excess alcohol. While waiting in the sally port for 25 minutes prior to booking, the defendant asked to use the bathroom. He was told to “hold it in” which he tried to do experiencing considerable discomfort. He eventually urinated himself. He was held in a cold cell with his wet clothing for nine hours before being released. [ 32 ] The court described the holding cell as a concrete box with a concrete slab for a bed. No toilet facilities were described. The cell was unreasonably cold.

The defendant was freezing. He was wearing only a T-shirt and his wet pants although he had been wearing a winter coat and sweater on arrest. He eventually asked for a blanket and, half an hour later, was given a thin plastic sheet. There was evidence that the defendant was hungry and not provided any food, even as an inmate in the adjacent cell was fed. [ 33 ] Justice Duncan found that the police failed to provide the defendant with: • Access to toilet facilities at a time when such facilities were needed, requested and readily available; • Change of wet clothing; • Warmth;

• Food. It was the totality of this neglect that amounted to a violation of

Section 7 of the Charter . [7] [ 34 ] Duncan J. considered the earlier decision in Sathymoorthy and found the police indifference to the security of the detainees’ person constituted a serious breach of

Section 7 . Applying the factors that had been identified in Sathymoorthy , he also imposed a stay of proceedings. [ 35 ] The Applicant also relies on the voluntariness ruling in R. v. Wielgosz. [8] The offender, Wielgosz, was a suspect in an attempted murder investigation. Police knew that the defendant was a schizophrenic. He was arrested at gun point in his parent’s home. A police trained German shepherd dog was used to assist in the arrest. When he was arrested, he was dressed in boxer shorts and a sweatshirt but was not wearing shoes.

He was likely intoxicated and appeared to have urinated himself. [ 36 ] The defendant was placed in an interview room at the station. He appeared on video wearing only his urine soaked underwear and remained in that state with his hands cuffed behind his back for the period of approximately two and-a-half hours. He called out several times for assistance but no one responded. He eventually stood up and urinated in a corner of the carpeted room. [ 37 ] The handcuffs were removed when officers eventually entered the room to swab and photograph the defendant’s hands.

They used excessive force in doing so and then left the defendant alone in the room for an additional two and-a-half hours before commencing the statement. [ 38 ] Justice Monahan found that the Crown had failed to prove that the statement was voluntary, relying in part on the oppressive conditions to which the defendant had been subjected.

The oppressive factors included: • Remaining handcuffed for a prolonged period of time; • The urine soaked underwear and the decision to leave the defendant in an interview room beside a large spot of urine; • Excessive use of force used in obtaining the hand swabs; • Sleep deprivation. Application of Law to Facts [ 39 ] Security of the person is capable of encompassing a broad range of conduct. The determination of whether

Section 7 has been breached is invariably driven by the particular facts of the case. While the decisions relied on by the Applicant are helpful in outlining the analytical framework, they are distinguishable on their facts. [ 40 ] The conduct at issue in this case is the failure of police to provide a dry set of clothing and nothing more. The police were polite and respectful to the applicant throughout the arrest, transfer, booking and interview process. Unlike the case in Sathymoorthy , there was no hint of mocking.

In fact, it is unclear on the evidence whether anyone at the police station, including the booking officer who was best situated to accommodate a change of clothing, knew that Applicant’s pants were wet. [ 41 ] In Stoney , the police controlled the circumstances which led to the breach of the security of the detainees’ person. It was the police who held the detainee for a prolonged period in the sally port and then failed to provide him with any clothing when he was clearly suffering in the cold station.

The conditions in which the Applicant was held may have been Spartan in nature, but they did not approach the inhumane circumstances described in Stoney . The Applicant was held in a cell with a heated bench. He was given his sweater. He had a toilet and sink with running water. He testified that by the time that he was in the interview room, his pants were a “little bit dry but still damp”. He did not complain at any time of being cold or suffering any other discomfort.

He did not request a change of clothing. [ 42 ] I accept the Applicant’s evidence that the entire experience following his arrest left him feeling upset, anxious and humiliated. But I find that his emotional state was caused by his arrest on charges of child luring and not by any police misconduct. Throughout the interview process, he expressed concern over how these charges would impact his children, his work and his life in general.

I am not satisfied on a balance of probabilities, that the effects of the state conduct, objectively viewed, had an impact on the Applicant’s psychological integrity to the degree that it breached his security of the person. [ 43 ] I do not want to be seen as condoning the police inaction in this case. Members of the arrest team could have shown greater consideration by, at the very least, informing the Duty Sergeant at the station about the urine on the Applicant’s pants.

The conduct of the police in this case did not demonstrate the degree of courtesy one would hope for in enforcement personnel, but the failing falls considerably short of a breach of

Section 7 . [ 44 ] If I am wrong and a breach did occur, applying the principles in R. v. Babos [9] , I would not find that this is ‘the clearest of cases’ which would warrant a stay of proceedings. A reduction in sentence would adequately redress any prejudice and send a message that the state misconduct cannot be tolerated. [ 45 ] I would similarly not give effect to the request for an exclusion of the Applicant’s statement pursuant to s. 24(2). On a consideration of the Grant [10] factors, I do not find that the admission of the evidence would bring the administration of justice into disrepute. [ 46 ] The Application is dismissed.

Released: September 24, 2018 Signed: “Justice M.C. Pirraglia”