R. v. Upper, 2019 ONCJ 969

CITATION: R. v. Upper , 2019 ONCJ 969 DATE: November 28, 2019 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. DANIEL W. UPPER **************** REASONS FOR JUDGMENT **************** BEFORE THE HONOURABLE MR. JUSTICE M. BLOCK on Thursday, November 28, 2019 at 60 Queen Street West, Toronto, Ontario APPEARANCES: Counsel for the Crown Ms. V. Rivers Counsel for Mr. Upper Ms. Pace BLOCK J: (Orally) This is my judgment in the matter of Daniel Upper on manifold alleged Charter violations brought to the court's attention through an application brought by counsel, Ms. Pace Violations are alleged , amongst others , sections 8, 9 , l0(a) , l0(b), and

section 7. On September the 17 , 2018, Mr . Upper was arrested for possession for the purpose of trafficking of crystal meth and GHB . The evidence is that he was at the vicinity of a large apartment building at the address of 33 Isabella Street through much of the afternoon and early evening on the date in question. As I ' ve indicated, the building is a large one. It is a multi-floored apartment building . Mr. Upper and his friend · a nd ultimate co-accused , Connor O'Brian , had made plans to meet at this apartment, though those plans were flexible and Mr .

O ' Brian apparently not very good at communicating accurate times that he might be present at the studio apartment located at unit 2503 at that address. The defendant contacted O ' Brian at numerous times to try and confirm a time when O ' Brian would be present to provide access as Mr . Upper had no key to the unit. It's also clear from his own evidence that he had no stable address and was couch surfing with various friends . During the day, Mr . Upper entered the building two or three times, once to attend Mr. O ' Brian ' s unit and on another occasion to visit another friend on the sixth floor .

Unbeknownst to the defendant , and to his great misfortune, unit 2503 was the target of a search warrant that had been gran t ed just after 9 p . m . on that day. From about 2 p . m . , s u rveillance on the premises had been carried out by D etective Hurtado and Detective Ga li o t os of the Toronto Police Service d r ug squad . There was no sight i ng of the search warrant target , O'Brian , at any point during the day unti l af t er t h e warra n t h ad been served. He appare n tly arrived at the apartment during the search and was arreste d at that point .

The evidence stro n gly s u ggests that he was in fact completely absent from the apartment from the poi n t surveillance comme n ced a b out 2 p.m. until t h e t i me of his arrest . De t ectives Hurtado and Galiotos observed the defenda n t at severa l points d u ring the day . At one point , they saw him enter and leave 33 Isabella wearing a backpack and piloting his bike , and at ot h er t imes , in conversations with various other persons outside the building on that warm , late s u mmer afternoon an d evening . The detectives test i fied that the defendant had given them a "hard stare" a t one point.

All this activity allegedly inspired their suspic i on towards the defendant. There was no evidence of any exchanges by the defendant with any other person on that day . No evidence that he visited the target apartment , or rather , there was no indication to the detectives that he visited the target apartment earlier that day, or that was even on that floor and there was no evidence of his involvement in any drug activity. Nevertheless, the detectives told the court that they believed the defendant was "keeping six" in front of the building .

T here was no evidence that there was loitering or chattering outside 33 Isabe l la was connected with anything inside the building, and no prior evidence of any kind linking the defendant with the target unit at any time prior to his arrest. When the police ultimately re​attended to execute the warrant, they found the defendant in front of the door with his bike nearby . Detective Hurtado yelled "Police" and tackled the defendant. No resis t ance was offered. While shorter than the defendant, Hurtado is substantially bigger and heavily muscled. In my view, he outweighed the defendant by at least 80 pounds .

Hurtado told the court he thought the defendant may have been entering the unit or leaving in possession of evidence. It entered his mind that the defendant may be about to run into a nearby stairwell. There was no evidence before the court as to what ac t ions the d e f e ndant did that might indicate he was either entering or leaving or might be in poss e ssion of evidence . Hurtado test i f i ed tha t he told the defendant that he was under arres t af t er f orcing him to the floor. Detective Galiotos assisted Hurtado in cuf f ing th e def e ndant, on his evidence.

Hurtado did not notice any black eye in encountering the defendant on arrest. He did notice bruising around the right eye later . Hurtado wasn ' t able to explain how the defendant may have acquired a blackened right eye , neither was any other police witness. Detective Galiotos testified he made the same observations outside the building in relation to the defendant as Hurtado. He s uggested that the defendant was holding court outside the building as he chatted with people . He saw nothing that connected the defendant to the target address . His evidence differed from Hurtado in two important respects.

He said that Hurtado told the defendant that he was under arrest for possession for the purpose of trafficking in the hallway, and he told the court that the defendant, Hurtado, and himself all became tangled up in the defendant's bike at the point he was arrested. Hurtado hims e lf mad e no mention of a tangle of men and bicycle despite his alleged personal entanglement in it. Galiotos told the court that he gave rights to the defendant within the apartm e nt. All police officers testified that Galiotos never offered the defendant violence after his arrest .

After he was tackled to the hallway floor , the defendant was brought inside the unit and searched. He was found to have a wallet, a cellphone, some crystal meth and GHB in quantities allegedly consistent with trafficking . Galiotos told the court that he told Upper he was arrested because of the drugs in the backpack, although t h ose drugs were not discovered until after Mr . Upper was brought inside the apartment . Detective Patterson noticed no injuries to the defendant Mr . Upper. She saw t he tackle/ bear hug that floored the defendant .

Neither she nor Hurtado made any observations of any entanglement with the bicycle though she was present . She noted , as did the other detectives , that the unit door was closed when Mr . Upper was in front of it; and in comm o n wi th other police witnesses, she gave no evidence that described any action the defendant was doing in relation to that door other than standing i n front of it . She heard no words of arrest in the corridor.

Constable Jason Ferreira received a telephone call at 10 : 23 to tr ansport the defendant and his co-accused , O ' Brian, to 51 Division and the two men were turned over at 10 : 34 p . m . At least one hou r had passed since the defendant had been arrested . For the bulk of this time, according to the e vidence , he had been held in the unit itself or outside 33 Isabella. There is no evidence whatso eve r that th e impl e m entat ion of the defendant ' s rights to counsel were considered by any police officer until he had been at 51 Division for so me period of time .

An agreed statement of fact was entered into evidence. It establishes that the defendant was placed into a squad car at 10 : 36 p.m . He arrived at 51 Division at 10 : 49. The car he was in entered the sally port at 10 : 54 , that Mr. Upper asserted h is intention to use duty counsel at 11:06 p.m., and attended th e booking hall some 30 minutes later . It is uncontroversial that the defendant did not speak to duty counsel until 1 : 03 a . m., at which time, he had been in custody at least three and a half hours since his arrest.

He related that, after arriving at 51 Division and before speaking to duty counsel , he had been interviewed by a detective regarding criminal associations and obliquely offered consideration for his cooperation . This evidence was uncontradicted and I accept it . I cannot accept that any security considerations laid behind the failure to implement the def endant 's lO(

b) rights . What is clear is that, throughout his contact with the police they exhibited complete indifference to the implementation o f his l0(

b) rights . The defendant testified at leng th . While demeanor is ofte n and perhaps usually useless as a consi deration in determining credibi lity and reliability , that is not the case in this matter. Mr. Upper presented as a timid, cooperative, diffident, submissive and comp lian t subject . If the meek shal l inherit the earth , then the defendant has much to look forward to. He was clearly very nervous in co urt. Nevertheless, he main tained his compos ure and made no display when sitting in the body of the court alongside counsel when he heard evidence he clearly disagreed with . Mr .

Upper has had his share of challenges. He came to Toronto from his na t ive Niagara Falls for a restaurant job. He apparently lost that job because of his HIV status . He lives in poverty, and at least at the time of arrest , couch surfed in friends ' apartments . He disclosed to the court that he was a heavy user of crystal meth at the time of this matter, and that he had consumed crystal meth much earlier on the day of the arrest. He has no criminal record. He is a man in his mid-30s . Mr. Upper responded fairly to questions from both counsel.

He allowed that his memory of the events could be flawed because of his distress at his arrest and the subsequent beating, and also perhaps his drug use. He appeared not to gauge whether his responses advanced his legal interest or not . He was clearly somewhat ashamed of his Bohemian lifestyle. His responses tend to run on more than little , and were often no t directly responsive to questions from both counsel. His responses occasionally elicited mild exasperation from his own counsel.

My own view is that he was a reliable reporter on major issues and less reliable on smaller details , which is exactly what he told the court on numerous occasions. When responding to questions, he often advised whether or not he had a distinct memory of the event. The defendant denied being told he was under arrest being handcuffed in the hallway . I ' m not sure he ' s correct on that and nothing turns on it . It is clear that he was surprised and shocked by the bear hug tackle and subsequent events . He told the court words to the effect that the brutality affected his perception and recall .

He told the court that Galiotos knelt on his neck and back while he lay prone , that he punched him in the right eye several times , once be fore demanding "Where is the stash?" and several times afterwards when Mr. Upper asked, "Why this was happening?" and that "He was not resisting." There was no question that the defendant had a black eye. Hurtado· didn ' t notice one before the bear hug tackle . He no ticed some bruising afterwards .

There certainly was a black eye , it was confirmed by t h e evidence of PC Fererra, not ed by th e nurse at t he Toronto South Detention Centre , and clearly visible in the contemporaneous photo of the mugshot . However , it was n ot noticed by Detective Patterson. It is certainly technically possible t h at the black eye was the product of Hurtado ' s tackle of the defendant . The difficulty is there ' s absolutely no evidence before the court that Mr . Upp er did a face plant as a r esult of this tackle . What is · excluded is the rational possibility that a three-man and one-bike tangle caused this result.

Galiotos ' s evidence is unsupported by any of the other witnesses to the tackle bear hug. This is not some insignificant detail. This is a key part of t h e narrative of this detective at the initial part of the arrest . It is not possible t ha t this incident would have escaped the attention of Patterson and Hurtado . I reject this evidence as a fiction concocted as an ex post facto explanation for the injury to the defendant . I accept the evidence of Mr . Upper. I find that he was punched by Galiotos for no reason related to legitimate police purposes. I find Galiotos an incredible witness.

It gives me no pause whatso ever that the defendant did not disclose the beating to other officers at 51 Division . He articulated on the sta n d that he distrusted the police as a result of this conduct . I find that distrust reasona ble in the circumstances .

I also do not find persuasive the s ubmission that there was no rational police related reason for the punching to the eye, and therefore , it was unlikely or did not happen. Sometimes in the course of human events there is no rational reason for the expression of brutality except the power that the brutalizer has and the circumstances in which they fi nd themse lve s , where they f i nd it possible to administer a beat in g without consequences. The mere fact that this is unrelated to any rational police purpose doesn ' t mean it didn 't happen .

I disagree with the submission that t h ere i s reasonable and probable grounds for the arrest of the defendant in the corridor. There was nothing associated with the conduct of Mr . Upper outside 33 Isabella or his entry and exit on several occasions that would have occasioned any reasonable suspicion. Mr. Upper , in fact , agreed with much of the activity described of t h e detectives . He told the court he looked at the detectives outside the premises because he thought , as one of them was carrying a large brown pap er bag, they might be d elivering his Uber Eats order . I entirely discount the

interpretation of the defendant ' s conduct placed on it by the police . What constitutes a “ hard stare”? While this phrase went unexplained, my sense is it means a frankly aggressive confrontational p robe that continues beyond the point of social comfort. This requires an aggression and self-confidence that Mr . Upper clearly does not possess. The use of the phrase suggests that Mr. Upper was suspicious of these plain clothes detectives. I cannot claim to know Mr . Upper, but I have seen him over the course of his testimony and his deportme n t in court and I do not accept this evidence.

I mean no disrespect to Mr. Upp er , but his demeanor ent irely recalls the antique English phrase , "Wouldn ' t say boo to a goose" . There is no suggestion of any exchange by Mr . Upper or anyone else ou t side the premises , as I have i n dicated . And there was no evidence associating him with the search targe t prior to h i s arrest . I reject t h e sugges t ion that h e appeared to be keeping six outside t he premises . I ask the quest i on : "keeping six for what purpose? " There ' s no suggestion of contemporaneous t rafficking outside of 33 Isabella . And t he evidence is that the target , M r .

O ' Br i an , wasn 't observed on the premises at all prior to t he search . E xact l y what then would the defe n dan t have been on the lookout for? P l ain c l ot h es de t ec t ives present o u tside a bui l ding where nothing was taki n g place? T h e suggestion that the defenda n t w as e n teri n g or leav i ng t he apartment was p u ffery . Mr . Upper was not see n using the door lock because h e had n o k ey . The detectives simply jumped to a concl u sio n w h ich is unsupported by any evidence available to them .

I do not accept t h at t h e defendan t' s mere presence outside the door of the target u n it coupled with earlier observa t ions gave rise t o reasonable and probable grounds . The sad tr u th is that the detectives came to know o f M r. Upper’s e xistence outside 33 Isabella earlier in the day , and t hen without any evidence ca m e to t h e unit , jumped to the conclusion that he had an i n timate connection to t h e interior o f the target apartment , and what we h ave h ere as a result is that t h e detectives acted on mere hunch.

They did have a legitimate reason to ask him who he was, what was he doing there, did he have a key to that apartment, and what d id he know about it . In the circumstances there was no reasonable and probable grounds for arrest , and certainly no legitimate reason to flatten the defendant to the floor with a bear hug. At most, a momentary investigative detention wou ld have been appropriate . The arrest, the manner of the arrest , and the subsequent search were clearly not. And as I ' ve indicated i t follows that the search of the backpack subsequent to this unlawful and brutal arrest was unlawful .

I have already indicated that I accept Mr . Upper ' s evidence that he was punched i n the eye by Detective Galiotos: there is nothing in the conduct of t he defendant at any point that is in the course of h is contact with the police which jus ti fied this gratuitous and brutal conduct. The s. 7 breach is an inescapable conclusion . In reference to l0(a), I am not certain of the accuracy of Mr. Upper ' s evidence that he was not told of th e reason for arrest or given the formal language or in fo rmal language of the availability of a l a wy e r insid e unit 2503 . I just don ' t know.

What I am certain is t hat the police did not turn their collective minds to the issue of implementation until h e had been in custody for three and a half hours, over three and a half hours . The breach is profound and very serious. It falls squarely within the recent case of Noel, November 1, 2019, Ontario Court of Appeal . Noel is also a situation where there is no causal link between the seizure and the 10 (

b) violation. In my view , there was one continuous transaction of police involvement between the flattening of Mr . Upper outside the premises, or outside the unit 2503 at 33 Isabella, and his ultimate recourse to duty counsel after his i nterview at 1 : 03 a . m.

As indicated, I have found breaches of sections 7, 8, and l0(

b) of the Charter. It is almost an afterthought t hat there is clearly a violation of

section 9 . Each of the breaches is profound . The

section 8 breach is by no means trivial . The level of state misconduct in the arrest is in my view greatly heightened by the highly aggressive means us ed to effect that arrest, which would have been suitable to active and effective resistance , certainly suitable to the display of weaponry , possibly marginally useful in the case of flight, but totally unjustified in relation to a passive, stationary, and unresisting accused. I reject the suggestion that a dynamic situation required this aggressive conduct. There was as close to a static situation as a search in the presence of one passive subject could be.

The means of detention w ere profoundly inappropriate to the highest degree and resulted in an assault to th e defendant's person . Not only is the level of state culpability high , but the impact on the defendant clearly profound . I have found that Mr . Upper was punched in the right eye by Detective Galiotos as he has testi f ied . There can be no possible justification for this conduct. This is clearly a violation of

section 7 on its face and as the evidence emerged , would have justified a stay of proceedings and not just an exclusion of the evidence . I reject the suggestion that Noel implemented new law in On t ario . N oel is just a brief , efficient, recapitulation of l aw that ' s been in existence for years . The police could n ot possibly have been ignorant of their duty to implement Mr . Upper ' s right to counsel at the earliest possible moment, and while their conduct demonstrated considerable indif f erence to his right to counsel, it also seems to have had a purpose, which was to isolate Mr.

Upper from contact with counsel until it could be confirmed whether or not he would be a useful and willing informant. I suppose I should put "willing" in quotes . In my view , this is a significant, an extremely significant breach which impacted greatly on Mr . Upper ' s Chart e r protected right to access counsel , and on its own would require the exclusion of the evidence of contraband drugs in his backpack . The totality of the breaches exacerbates the situation in which we find ourselves .

What we have here is a pattern of deliberate 1 misconduct and cynical misconduct, and the only possible expression for such a grievous series of acts of misconduc t must be that they outweigh any possible public interest in the continuation of the misconduct by allowing this evidence before the court . I find that the administration of justice would be brought into extreme disrepute by its admission and I exclude it from the evidence . Ms. Rivers , i . s t here any further evidence you wish to call on the trial proper. MS. RIVERS: No , Your Honour . THE COURT: Okay .

So there will be no ob j ection at this point to me dismissing all charges agai nst Mr. Upper. Thank you . Mr. Upper, you are free to go . ... WHERE UP ON THIS MATTER WAS CONCLUDED