R. v. Thomas, 2023 ONCJ 531

CITATION: R. v. Thomas , 2023 ONCJ 531 DATE: November 2, 2023 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HIS MAJESTY THE KING -and- ADRIAN THOMAS REASONS FOR JUDGMENT Duncan J. 1 . The defendant is charged with several offences all dated December 11 2019 and all arising from a traffic stop, a struggle and a subsequent search of the vehicle.

The particulars by count (paraphrased): 1. – Assault Cst Picken, with intent to resist arrest – s. 270 1 b 2 . – Carry concealed weapon – handgun - s90 3 . – Occupant of motor vehicle knowing it contains a gun -s 94 4 . – Possession of a loaded restricted firearm with no licence – s 95 5 – 9 – Charges against co-acc Shaw – withdrawn in April 2021 10 – Resist Cst Picken a police officer by trying to drive away- 129 11 – Possession of a handgun KNOWING no licence s 9 12 – Breach firearm prohibition – 117 2. On December 11 2019 Police officers Jordan Picken (

P) and Jamie McAuley (

M) were together patrolling an area around Queen and Hansen in the city of Brampton. There were several bars in the area; it was a well known site for all sorts of crime including impaired driving. 3. At around 2:20 am they noticed a Hyundai leave the parking lot of Wild Wing, a licensed premises. They said it was speeding. They had seen the vehicle earlier parked in the lot and believed therefore that the occupant or occupants had been in WW for about an hour and a half. They decided to do a sobriety check. After travelling a short distance on Queen, the Hyundai took the ramp to 410 North.

The police activated their lights while following on the ramp and the car pulled over onto the shoulder of the 410. 4. The police approached the car. The driver was a Ms. Shaw. She showed no signs of impairment – but she did not have a driver’s licence. The passenger was the defendant, Adrian Thomas. He told the police that he had a licence but that he believed it was under suspension. It was. 5 . The Hyundai was a rental vehicle from Enterprise Rent-a-Car in Scarborough. Mr. Thomas told the police that it had been rented by his girlfriend Petula Payne.

There was dispute in the evidence whether a rental agreement was produced or not. 6 . The police returned to their cruiser and confirmed that Ms. Shaw was unlicensed and Mr. Thomas was suspended. They faced a dilemma. Neither occupant could legally drive the car. Nor could they legally walk on a 400 series highway, an offence under the HTA. They would have to be driven by the police at least off the highway and possibly further (maybe home) if they wished. The car would be effectively abandoned and would have to be seized and towed. They checked with their sergeant and their plan of action was supported. [1] 7 .

Putting the driver and passenger into police cars would require a pat down search. A female officer was requested and at 2:44 Cst Gray (nee Butcher) was dispatched, arriving on scene at 2:53 a.m.

8 . Cst McAuley and Gray approached the driver’s side and Cst Picken went to the passenger side. The driver Shaw was asked to step out and go with the female officer. She voiced no objection and was co-operative. She left the engine running. They (Gray and Shaw) were walking back to the cruiser when events took a dramatic turn. 9 . Almost immediately after Shaw got out of the car and started walking with the officers, the defendant leaped into the driver’s seat and hit the accelerator hard, revving the engine while he struggled with the gear shift.

Cst McAuley who had been standing at the driver’s door believed Thomas was trying to flee. (Thomas admitted that he was). McAuley grabbed Thomas by the shirt and pulled him out of the car. He said that Thomas pushed him and he fell back striking his head on the pavement. He continued to hold onto Thomas’s leg and was dragged by Thomas trying to free himself and get away. At one point they were in a live lane of traffic on the 410. 10 . Cst Picken and Cst Faria (who had just arrived on scene) went to assist their colleague. Faria grabbed one of the defendant’s arms while McAuley had the other.

Picken put the defendant in a bear hug and they dragged him back near the rear driver’s side of the Hyundai. For an instant it seemed like the defendant was going to stop resisting – but he started again. The group then moved toward the gravel shoulder and the grass. They all fell down. Two other officers had arrived on scene – Sergeant Arifi and an off-duty officer, Galbraith – and they assisted as well. Notwithstanding that there were 5 officers and the defendant was a mere 5’6” and around 150 lbs, the police were unable to restrain and get him into cuffs. 11 . Three officers used their tasers.

Each said he was unaware of the other officers also employing tasers. They also all said that the tasers were ineffective. However soon after the taser use they were able to get the defendant under control and in cuffs. The defendant testified that he felt extreme pain and could no longer resist once tasered. 12 . The fifth officer, Galbraith, had just gone off duty from his shift at a different Division. As he drove home on the 410 he came across the scene. He pulled over and joined the struggle. He punched the defendant several times in the face, body and legs as he lay face up on the ground. 13 .

The struggle had lasted no more than 2 minutes. After it was over the defendant was immediately seen to have a swollen and partially closed eye as well as being very dirty. 14 . An ambulance was called and, after examination at the scene, the defendant was taken to hospital. Officer Lamarre accompanied the defendant and, on the way, informed him of his right to counsel. This occurred about one half hour after the arrest. The defendant wished to speak to a named lawyer, Mr.

Ross, but no effort was made to facilitate contact with counsel until over 13 hours later when the defendant, still at the hospital, was remanded by a Justice via telephone. After that appearance, a call was placed to Mr. Ross at 4:10 pm. The lawyer called back within 20 minutes and the defendant spoke to him. 15 . Following the defendant’s departure to the hospital, the officer in charge considered that the SIU may become involved, depending on the extent of the defendant’s injuries. The scene was frozen pending that decision. Ultimately, around 8:40 am, it was determined that SIU would not be involved.

Shortly thereafter the Hyundai was searched. A loaded handgun was found in a Lacoste satchel under the driver’s seat. 16 . The finding of the gun was conveyed around 10 am to Officer Hope who had custody of the defendant at the hospital. Over three hours later he advised the defendant of the new gun charges and informed him of his right to counsel. Again the defendant asked to speak to Mr. Ross. As outlined above, no effort was made to facilitate such contact until around 4:30 pm. 17 .

The gun was eventually subjected to DNA analysis and a small sample of mixed DNA that included contribution from the defendant was identified. However, there were problems with the handling of the gun at the time of the search that the Crown concedes undermines the weight that can be attributed to the DNA match. I agree with that concession and give the DNA evidence no weight. 18 . The defendant testified that he had borrowed the Hyundai from his girlfriend Ms. Payne. She had rented it about a month earlier and he had used it several times.

He understood that she also lent it to other family members and friends – maybe as many as eight of them. He testified that on the evening in question he had borrowed it for a pre-arranged meeting with Ms. Shaw at Wild Wings. Shaw’s evidence was that it was a chance meeting and she left WW with him because he was giving her a ride home. 19 . On leaving WW, the defendant asked her to drive. He did not ask if she had a licence. His licence was suspended and he thought police were less likely to stop a car if a woman was driving.

He was very nervous about police and, before they left, he had Shaw check that the coast was clear and that police were not around. 20 . The defendant testified that he was always wary of police because of his background as a young black man who had been hassled and abused by police throughout his life. He said that this fear is what caused him to try to flee on the 410. 21 . The defendant said that he had no knowledge of a gun being in the car and had never touched or seen the gun or the satchel.

It was admitted in an agreed statement of fact that Shaw, the only other person in the car, had no knowledge of or association with the gun. 22 . The defendant testified that he did not push Cst McAuley but rather that they both fell from the momentum of his being pulled from the driver’s seat. He acknowledged that he resisted being put into cuffs but denied ever intentionally hitting or kicking any officer. He said he was greatly out- numbered and outweighed by the police.

Contrary to the police claim that the tasers were ineffective he said that at least one of them was devastatingly painful and caused him to lose the ability to resist. His heart raced and he lost control of his bowels. Contrary to the police claim that the fired taser prongs missed or failed to penetrate his clothing, he produced pictures of the marks on his skin where the prongs had penetrated. He produced other photos of the substantial injuries to his face and eyes. 23 . The defendant’s face was badly swollen though there were no fractures.

At the hospital there was concern about his elevated heart rate and he was kept for observation. His eyes were blood-filled and remained that way for at least a week. He testified that he continued to experience headaches, eye problems, sleeplessness and anxiety even at time of trial almost 4 years later.

Timeline: 24 . A further abbreviated

summary and timeline: • 12:52 – Officers M and P go to WW – check out lic plates and sobriety checks – saw the Hyundai – note male “ u/k race” and female white walking from car to ww • 1-2 am – M and P continue to patrol area and other establishments • 2 am – M and P see same car parked in different spot at WW • 2:05 – M and P deal with a separate incident re stolen car – it got away – pull into VW dealership to make notes of that incident • 2:19 – see Hyundai leave WW – speeding – occupants had been in WW for hour and half – maybe drinking – decide to stop for speeding and sobriety check – it takes ramp to 410N – police lights activated • 220 – Hyundai pulls over and stops on shoulder of 410– just south of Vodden – both officers go to car one on each side – driver shows no signs of drinking – driver has no licence – defendant passenger tells police that he has borrowed the car from his gf PP and he thinks his licence is suspended • 224 – both Shaw and Thomas were ‘run” on police computer – confirmed that she had no licence and that his was suspended for unpaid fines – formulate plan to tow car and drive S and T in police car – “We were going to drive them somewhere – just hadn’t determined where” • 241 – contact Sgt Arifi who confirms the plan – request for female officer - • 244 – female officer dispatched • 253 – Female officer Butcher/Gray arrives • 254 – PC Faria arrives • 255 – Plan explained to S and T – S is asked to step from car and go with Cst Butcher/Gray • 256 – approx. – Shaw gets out and goes with Butcher to back of car • 256 – Thomas jumps into driver’s seat and attempts to drive it away – motor revs but he can’t get it into drive – Cst M grabs him and the struggled ensues • 257 – Sgt Arifi arrives – “10:33” call (police in danger all available officers to scene) goes out (evidence of Sgt Arifi) • 2:58 – estimate – all officers say it was 1-2 minutes until defendant was under control and in handcuffs – “10:33” called off • 259 – Sgt calls for ambulance • 3:00 – approx. – Cst Lamarre arrives on scene in response to 10:33 call.

He estimates there were 30!! Police cars already there • 330 – PC Lamarre instructed to read RTC to defendant in ambulance • 334 – accused taken to hospital in ambulance – Duty inspector Cooper arrives – it is decided to freeze the scene pending SIU • 338 – Lamarre reads RTC to accused while on way to hospital – accused understands and asks to speak to a named counsel Mr.

Ross • 343 – arrived at hospital – long wait – small talk – nothing about the offences • 544 – at scene Sgt Arifi relieved by Sgt Henry who is informed that car has not been searched • 553 – At hospital Thomas seen by doctor who orders x ray and ultrasound • 6 am – Cst Jhajj arrives – Hyundai still on scene – both front doors are wide open – he is assigned to watch the car and make sure no officers go near it • 640 am – at hospital Lamarre relieved by Cst Hope • 715 – Def taken for imaging • 8:00 – doctor advises that there are no broken bones – heart rate is elevated and doctors want him to stay for observation at least until afternoon

• 840 – Cst Jahjj informed that SIU not going to be involved – and that car is going to be towed.

He is directed to conduct aninventory search • 848 – 915 – inventory search conducted – loaded handgun found in a satchel under the driver’s seat • 956 – Cst Hope informed that a gun had been found in the car • 1:17 pm – Cst Hope informs defendant about the finding of the gun and the new charges – RTC given – again he asks to speak tonamed counsel Ross • 220 pm – Cst Hope informed that the defendant was going to be remanded by telephone from hospital • 4:06 pm – remanded by telephone by Justice of the Peace • 410 pm – PC Hope calls Mr.

Ross and leaves message • 428 – 432 – Ross calls and defendant speaks to him Issues: 25. The evidence raises a host of issues both Charter based and substantive. I will deal with them in the order that they arose in thenarrative: S 9: Arbitrary detention – The initial stop and detention: 26. The police testified that they stopped the car for a sobriety check and because it was speeding. They claimed having no otherinvestigative interest. 27.

The law surrounding police authority to stop for what can generally be called “traffic purposes” can be briefly stated: The random(groundless) stopping of a motorist will be lawful and the ensuing detention not arbitrary if it is made for legitimate traffic purposes. Thetraffic purpose must be legitimate and not a mere pretext to provide police with an opportunity to conduct an investigation at large or intosome other suspected criminality: see R v Ffrench infra para 17. 28. In this case I am satisfied that the stop was for a legitimate traffic purpose.

The officers’ duties that night were largely concernedwith policing for impaired drivers in an area with several drinking spots. They had some reason to be particularly interested in theHyundai because they knew its occupants had just been in a licensed premises for about an hour and a half. When they stopped it, theyimmediately conveyed to the occupants of the Hyundai that it was for a sobriety check. Both Shaw and the defendant agreed that waswhat they were told. 29. Although the driver presented as sober, other issues immediately arose regarding licencing, ownership and insurance coverage.

Theinvestigation of these issues was also authorized as being related to traffic. Until the defendant’s attempt to flee, there was nothing toindicate that the police had stopped the car to pursue some extraneous non-traffic interest. I find that there was no pretext; the stop andthe initial detention was for legitimate traffic purposes. It was not arbitrary.

Section 8: Obtaining name from defendant passenger: 30. It was contended that the police obtaining of the defendant’s name at the time of initial detention was a search and seizure thatinfringed his

section 8 right: R v Harris 2007 ONCA 574. However, unlike Harris, the defendant Thomas was not just a passenger. Hewas the person who had custody and responsibility for the car. His identity was necessary to determine his legal right to both possessand drive it. There could be no reasonable expectation that he could keep that information from police. S 9: Arbitrary Detention: The prolonged detention: S 10b: Right to Counsel during prolonged detention: 31.

In my view, once it was determined that neither the driver nor passenger had a valid driver’s licence, the situation ceased to begoverned by the legal parameters and limitations of random check stops. It became an entirely different situation and there was norequirement that the detention be of short duration or that RTC be given – because it was not a detention within

section 9 or 10 at all. 32. There is a well established difference between “ detained” as used in common parlance – meaning “delayed” or “held-up” – andbeing “detained” with the meaning of the Charter: R v Mann 2004 SCC 52 , [2004] 3 S.C.R. 59 at para 19; R v Grant 2009SCC 32 , [2009] 2 SCR 353 33. After the brief check stop, the defendant and Shaw were not detained by the exercise of any police power. They were detainedbecause of circumstance, that is, they were in a vehicle on a highway that neither was legally able to drive.

Their situation was nodifferent than being unable to leave because of a mechanical breakdown or empty gas tank, (with or without an immediately precedingcheck stop). At that point the police were assisting them, acting in a non-adversarial role: R v Grant supra at para 36. In short, they werenot detained; they were stranded. 34. I conclude that there was no breach of

section 9 or 10b during this period.

The arrest and struggle: 35. It is not disputed that the police had authority to arrest the defendant when he attempted to flee the scene. The defendant concededthat he tried to resist that arrest and it is clear that the police used considerable force to overcome that resistance. 36. Two of the counts on the information specifically relate to the arrest. Count #1 – assault on Cst Picken with intent to resist arrest s270 – relates to a kick during the struggle. In evidence, Picken agreed that the kick may well have been unintentional. The Crown hassurrendered on this count.

The other charge, Count #10 – resist Cst Picken in the execution of “his duty to arrest by trying to drive away”– is only faintly contested by the defence. It is argued that Picken was not initially, as particularized, attempting to execute an arrestwhen the defendant started to flee. However, my view is that Picken was trying to arrest as soon as the defendant attempted to drive off.On this view, the offence as particularized is made out. 37. Accordingly, the importance of the arrest lies in the submission that the force used by the police was excessive – so much so that itconstituted a violation of Charter

section 7. 38. Somewhat remarkably, there is little conflict in the evidence between the police and the defendant. Where conflict arises, I give thedefendant the benefit of the doubt on credibility as required by W.D. I make the following findings: • Cst McAuley fell back on the road and hit his head with the defendant on top of him not as a result of the defendant pushing himbut as a result of the momentum generated by Cst M pulling the defendant from the car. • The defendant got up and tried to flee on foot but Cst M, still on the ground, held tight to the defendant’s leg.

The defendantdragged Cst M a short distance. They were briefly in a live lane on highway 410, specifically the right exit lane for Williams Parkway(see photo TSC-3902). At the time Cst Faria’s car would have been partially blocking that lane to traffic, lessening the danger. • I do not accept Cst Faria’s evidence that the defendant picked up Cst M and slammed him down. This observation was not inFaria’s notes: McAuley did not recount such an occurrence. • Cst M and Cst P together with Faria were able to move the defendant to the shoulder near the grass on the passenger side of theHyundai.

The defendant continued to resist by flailing his arms and pulling away so the officers could not get control of him to put himin handcuffs. He was not otherwise assaulting the officers. At some point they all fell to the ground, though it is difficult and unnecessaryto determine exactly when that occurred other than shortly after arriving on the grass edge of the roadway. • Off duty police officer Galbraith stopped and joined the struggle.

He administered a series of punches to the defendant’s face as thedefendant was on his back and being substantially restrained by the four other officers. • Sgt Arifi arrived and joined the struggle. At one point Arifi kneed the defendant in his side to get him to release his arms fromunderneath his body. I find that if the defendant was on the ground and his arms were underneath his body, as Arifi said, then thedefendant could not have been striking out or flailing at that time. • At almost the same time as Galbraith was punching the defendant, three tasers were used by other officers.

Cst McAuley administered a contact “dry stun” seeking to achieve “pain compliance”; Cst Picken fired twice at close range sending a total of 4prongs towards and mostly into the defendant in an attempt to immobilize him. Cst Faria tried both methods – he first attempted toachieve incapacitation using prongs but believed that was not successful. He then used the contact dry stun method. He thought that wasalso unsuccessful. • No warning was called out by any of the officers that a taser was about to be used.

While all three officers claimed that they wereunaware of any other taser being used, I find that difficult to accept given their close proximity to each other and notwithstanding thedarkness. The defendant testified that the tasers were effective and inflicted great pain. His heart began to race and he lost control of hisbowels. At the hospital he was found to have an irregular heart rhythm and was held for observation. • I find that at least two of the taser deployments were effective and inflicted significant pain on the defendant. • The defendant is a small man 140-150 pounds standing 5’6” tall.

The five police officers weighed a total of 700-800 pounds. 39. The police are authorized to use force to affect an arrest. However the force that they use must be reasonably necessary andproportionate. R. v. Nasogaluak, 2010 SCC 6 , [2010] S.C.J. No. 6 (S.C.C.), at paras 32-34. In determining whether the amountof force used by an officer was necessary, regard must be had to the circumstances as they existed at the time the force was used: R. v.Bottrell (1981), (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.); R. v. Roberge, (SCC), [1983] 1 S.C.R.312, at pp. 333-4.

A certain amount of latitude is permitted to police officers who are under a duty to act and must often react in difficultand exigent circumstances, and cannot be expected to measure the force used with exactitude: R v Walcott (ON SC),[2008] OJ No 1050 (Sup Crt) D. Brown J. Relevant considerations include whether: (

i) the suspect was acting in a hostile manner towards the police, resisting arrest or failing to comply with an officer's arrestprocedure; (ii) the relative sizes and weights of the officer and the suspect; (iii) the officer was at risk of harm; (iv) the police knew the suspect had a history which might represent a threat to them; or, (

v) the police understood that weapons might be present.

40. I find that the defendant was not so much hostile and aggressive as he was desperate to flee and resistant to attempts to prevent thathappening. While there was initially a risk of harm to the officers, it was minimized if not eliminated when he was moved to theshoulder. The force became excessive after that point. No weapon was seen and the possibility of one materializing was no greater thanin any other arrest. The defendant was greatly outnumbered and outweighed; the 140 pound defendant was subjected to the force appliedby almost 800 pounds of police officer.

It was five on one; there was almost no chance of escape. Of those five, three used taser or stunguns on him almost simultaneously and without warning;[2] the fourth kneed the defendant in his side while the fifth pummeled thedefendant’s face with his fists. At the time this was occurring, the defendant was substantially restrained. It was inevitable that he wouldsoon be brought under control by use of reasonable force. 41. I find that the totality of the force used was unnecessary and greatly excessive.

While not every case of excessive force constitutes aCharter violation it is my view that the facts in this case were serious enough that the defendant’s

section 7 right to security of his personwas infringed: see R v Donnelly 2016 ONCA 988 , [2016] OJ No 6681 (C.A.) at para 106. I am particularly troubled by thepunches to the face while the defendant was lying on his back, substantially restrained. Post arrest – right to counsel: 42. The information re the right to counsel is supposed to be given immediately upon arrest or detention. The defendant was undercontrol and arrested and at 2:58 am. It was not until 40 minutes later (3:38) that he was read RTC as the ambulance headed to thehospital.

During part of this time, he was waiting for the ambulance or receiving medical treatment but it has not been shown that it wasimpossible or even impractical to provide him with the 10b advice earlier. Apparently no officer even thought to do it until 3:30 when PCLamarre was so instructed. I find this was a clear violation of the informational component of 10b. 43. The defendant was not provided with an opportunity to contact counsel until 4:28 pm, about 13 hours after his arrest. During thistime he was examined by medical personal and taken for x-rays and ultrasound.

He was sedated and was asleep for unspecified periods. 44. Clearly the delay in facilitating contact with counsel was extraordinarily long. I have not been provided with any evidence otherthan of the most general and vague variety to explain or justify the delay. Officer Lamarre, who read the RTC in the ambulance, said thathe told the defendant that he would facilitate contact with counsel when they could have privacy. But he gave no evidence of any effortshe made once at the hospital.

Cst Hope who took over custody at the hospital said there was only one room that could have been used fora private consultation but that it was always in use or about to be used. He acknowledged that he didn’t make any other inquiries for anyother room or place that could be used. He said that he made use of the one busy room at the first opportunity that presented itself, thatis, when the telephone remand was done around 4 pm. 45. In my view insufficient effort was made to facilitate contact with counsel.

It was incumbent on the police to make reasonableattempts to overcome circumstances that hindered or prevented facilitation of contact with counsel- and keep a record of those efforts if itis sought to justify a delay of this magnitude[3]. In the absence of such evidence, I must conclude that there was an unjustified delay infacilitating the defendant’s right to counsel under 10b. Racial Profiling 46. Counsel argues that the defendant was the victim of racial profiling. 47.

Racial profiling occurs when race or racial stereotyping is used either consciously or unconsciously in the selection or treatment of asuspect: R v Le 2019 SCC 34 , [2019] SCJ 34 at para 76. A finding of racial profiling can invalidate otherwise lawful stops,detentions and searches: see R v Ffrench 2022 OJ 1452 and authorities cited therein. Paras 19-34. I think it also is beyond question thatracial profiling accompanying a Charter infringement can aggravate the seriousness of the infringement and influence the determinationof the appropriate remedy. 48.

The burden is on the defendant to demonstrate on a balance of probabilities that racial profiling played a role in his selection ortreatment: Peart v PRP (ON CA), [2006]OJ 4457 at para 140. This is a difficult burden to meet as there is rarelydirect evidence available. Proof usually involves inference from conduct by police that corresponds with what is considered to be raciallyinfluenced actions or thinking. [4] 49. With respect to selection, I find that the officers knew that the defendant was black, having seen him earlier connected to the carthey eventually stopped.

But that obviously cannot be enough to infer racial profiling: Ffrench supra para 25. As for selection instopping, no grounds are required for random sobriety stops, but here there was something additional in that the police knew that the carand occupants had just been at a drinking establishment long enough to have had some drinks. When the car was stopped the policeimmediately told the occupants that it was for a sobriety check. There was no suggestion that they pursued any other investigativeinterest. I am far from satisfied that racial profiling played any role in selection. 50.

As for treatment, I don’t see any racialized taint in the prolonged though lawful detention, nor in the Charter infringing breaches ofthe defendant’s right to counsel following his arrest. I have a suspicion that racial animus or racially stereotypical thinking may havecontributed to the thinking and degree of force used by one or more of the officers. But it is a serious allegation to make and for goodreason the law requires that I not find the allegation established based on suspicion. Rather, I must be satisfied by evidence on a balanceof probabilities. I am not so satisfied.

Section 8: The search of the car 51. The first issue is whether the defendant had a reasonable expectation of privacy in the car. It was not his car; he had not rented it.He had not been driving it when it was stopped, though he had been driving it earlier in the evening. He had no belongings in it. Hisconnection to it was minimal and temporary. While he had standing to challenge the search, given the allegations against him (R v Jones[2017] 2 SCR 96) that is not the same thing as the requirement that he have REP. 52. But assuming he had a reasonable expectation of privacy, I am of the view that the search was authorized by law as an inventory

search of a vehicle being lawfully seized or impounded by police: Section 217(4) HTA; section 55(1) HTA: R v Nicoloski (1998) (ON CA), 127 CCC3d 176 (Ont CA); R v Cuff 2018 ONCA 276. See also excellent extended discussion of this issue in R.v. Buakasa, [2021] O.J. No. 7573 paras 76-111. 53. This legal authority is manifestly reasonable; the search itself was conducted in a reasonable manner. Accordingly, the search wasreasonable and there was no infringement of

section 8. Possession of the gun: 54. Possession requires proof of knowledge and control. The element of knowledge relates both to the presence of the thing and natureof the thing. In this case the Crown must prove beyond a reasonable doubt that the defendant knew that a gun was present and that he hadcontrol over it. 55. The defendant testified that the car did not belong to him. It had been rented by his girlfriend PP who sometimes allowed him – andothers – to drive it. The defendant said that he had borrowed the car that evening, had nothing to do with the gun and didn’t know it wasthere. 56.

The evidence of Ms. Shaw and the agreed statement of fact eliminates her as a suspect in possession of the gun. 57. The implication of the defendant’s position is that PP or one of those other car borrowers (or some earlier renter of the same car)must have left the loaded gun there intentionally or unintentionally. 58. I do not believe the defendant about these other borrowers. It is too convenient and easy to make up unnamed alternative suspects.It makes no sense that PP would lend the car to many others when she would be on the hook for any damage or mayhem they mightcause.

PP did not testify to lend credence to her supposed generosity with the car. It is implausible that another driver or earlier renterwould leave a valuable and probably cherished item like a handgun in a borrowed car or a rental return. 59. The defendant’s attempted flight from the scene is a crucial circumstance in this case. The defendant said it was his unthinkingreaction to his extreme anxiety about police, born of his lifetime of being targeted, mistreated and abused at their hands.

The Crown didnot challenge him on this history, and I accept that he has had those experiences though some he mentioned may have been somewhatexaggerated. 60. However, I do not accept or have a doubt that his attempted flight was solely triggered by this anxiety. He demonstrated no anxietyor discomfort after the stop until the moment that he attempted to bolt. He acknowledged that in his many encounters with police over theyears he had never run or reacted in any similar way.

Why would he try to flee here when, he says, he was breaking no law?[5] Hischoosing to go to the Wild Wing area – always crawling with police according to Shaw – seems inconsistent with his claimed extremeaversion to them. It also seems odd and certainly less than gallant that he would flee and leave Shaw behind if he expected that thepolice were about to get nasty. Most significantly, his reaction was over the top – furious and desperate – much more consistent with hisknowledge that he was (or might soon be) in big trouble and had to get away. 61.

I am satisfied beyond a reasonable doubt that while his augmented general anxiety of police may have had a contribution, hisattempted flight and resistance were driven primarily by the fact that he knew a loaded[6] handgun was in the car. It was in his solecontrol and possession. It was his gun. Remedy: 62. I have found breaches of 10b based on delay in both the informational and implementational components. I have also found a breachof

section 7 based on the excessive force used in the arrest. 63. The defendant is entitled to a remedy or remedies. The available remedies include a stay of proceedings, exclusion of evidence (thegun) or reduction of sentence. Stay of proceedings: 64. A stay of proceedings is the most drastic remedy a criminal court can impose. It frustrates the truth-seeking function and mortallywounds the prosecution, thereby depriving the public and victims of an adjudication on the merits. It should be imposed only in theclearest of cases, when no other remedy is available or will suffice to address the severity of the breach.

In choosing between a stay andanother remedy, the Court must take into account the interest of society in having a final decision on the merits: R v Babos 2014 SCC 16at para 30-32. 65. Extreme cases of excessive force have sometimes resulted in stays. These cases usually involve assaults on a detainee who hadalready been handcuffed or otherwise rendered harmless, or there was other gratuitous or sadistic police conduct: R v Tran 2010 ONCA471; R v Bellusci 2012 SCC 44 at para 31. The present case does not have any of these or similar features.

To the contrary, even thedefendant admitted that he continued to struggle at least until he was tasered. No violence was inflicted by the police after the defendantwas finally restrained. 66. I do not think the “last resort” and “clearest of cases” standards or the preconditions specified in Babos– including that there be noalternative remedy – are met in this case. Exclusion of evidence 67. Exclusion of evidence is as drastic as a stay for the same reasons – it is usually fatal to the prosecution and frustrates a trial on themerits. But exclusion does not carry the high- hurdle preconditions of a stay.

Instead, it has its own test – that the admission of theevidence would bring the administration of justice into disrepute.

68. The threshold requirement is that there be a connection between the Charter breach or breaches and the obtaining of the evidence.That connection can be causal, temporal or contextual. R v Pino 2016 ONCA 389 , [2016] OJ 2656 CA). While there was nocausal connection in this case between the breaches and the lawful search that led to the discovery of the gun, I think there is a sufficienttemporal and contextual connection to clear this threshold: R v Rover 2018 ONCA 745; R v Beaver 2022 SCC 54. 69.

Once the threshold requirement has been satisfied, the court must determine the central issue of whether the admission of theevidence would bring the administration of justice into disrepute. This task is guided by the three-factor analysis established in R v Grantsupra. 70. Turning then to the Grant analysis with respect to the 10b violations:[7] The lengthy delay in facilitating contact with counsel wasserious, but there is no evidence or even suggestion that it was deliberate or intentional on the part of police. There would be no reason orbenefit to be gained for the police to intentionally delay.

In my view the delay in reading the RTCs at the scene was likely just a matterof confusion at a chaotic scene. At the hospital the officers said there was no private room available but there was no good record kept ofhow many times they inquired or of any alternatives that they considered or pursued. 71. As for the impact on the defendant’s Charter protected interests; The absence of a causal connection between the 10b breach andthe obtaining of the evidence mitigates the impact of the breach on the defendant’s Charter protected interests: Rover para 43.

Noevidence was obtained nor was the defendant’s legal position altered in any way by the delay. Still, as in Rover, the defendant wasdenied the “lifeline” to counsel that could assure him that he is not alone and at the mercy of the police – that he’s “got a friend.” Heprobably knew that anyway; he immediately named the lawyer he wanted to call. There is no evidence that he asked to call a lawyerduring the long wait (other than when the RTCs were read) and when the defendant testified at trial he made no mention at all about thisdelay much less that he was bothered by it.

I infer that it had no or limited impact on him. 72. As for the third Grant factor: The public interest in trial on the merits in a gun case is obviously very high: see R v Omar 2019 SCC32 substantially adopting reasons of Brown JA dissenting in the Ontario Court of Appeal: R. v. Omar, 2018 ONCA 975 , [2018]O.J. No. 6346 73. On balance I am not satisfied that evidence of the gun should be excluded as a remedy for the 10b breaches. The seriousness of theviolation was moderate; the impact was low; the public interest is high. 74. Turning then to the Grant analysis for the

section 7 violation (excessive force): There are few reported cases where exclusion ofevidence is considered for a

section 7 violation of this type. The remedies considered seem to be either a stay or reduction of sentence.This is probably because

section 7 violation cases do not necessarily involve the obtaining of evidence at all. But there is no reason inprinciple that I can think of why exclusion of evidence cannot be a remedy to be considered, provided the necessary connection to theobtaining of the evidence exists. 75. The Charter infringing conduct was very serious. The facts speak for themselves. The impact on the defendant’s Charter-protectedright to security of the person was direct and substantial. Both criteria favour exclusion.

The public interest in adjudication on the meritsfavours admission, but that third factor can rarely if ever tip the balance in favour of inclusion where the other two factors stronglyfavour exclusion: R v McGuffie

(2016) CCC3d 486 (Ont CA). [8] 76. I have also considered that the gun is real and reliable evidence and that it was likely discoverable had the Charter infringement notoccurred. However, I don’t think discoverability has the same significance in a

section 7 breach as it does in a

section 8 search context.The essence of the

section 7 infringement is that the defendant’s security of the person was infringed or denied, not that some evidencewas discovered. 77. On the facts as I have found them and the law as I understand it, the defendant has met the test for exclusion under 24(2) as a resultof the

section 7 violation. Reduction of sentence 78. The alternative remedy of reduction of sentence is available and has many qualities that commend it. Unlike a stay or exclusion ofevidence, it is a particularly apt response to a case of mistreatment, since both the Charter infringement and this remedy relate to thetreatment or punishment inflicted or imposed upon the defendant. There is a natural synchronicity between the two that is absent in theother two remedies. This enhances its appropriateness. 79.

Further, reduction in sentence is highly flexible allowing the court to make as little or as much allowance as appropriate to balancethe competing interests. By contrast, a stay or exclusion of evidence is an all- or-nothing remedy that often vindicates the rights of theaccused but sacrifices legitimate public interests: R. v. Bellusci, 2012 SCC 44 , [2012] S.C.J. No. 44 at para 18. In short it canbe an undeserved windfall to the defendant while giving insufficient weight to society’s interest.

This interest is particularly strong in thiscase having regard to the proliferation of firearm violence in this community: see R v Omar infra 80. In my view a reduction of sentence is the most appropriate and just remedy having regard to all of the circumstances of this case. Itis preferable to exclusion because it provides a better balance between the competing interests. Can I choose between these remedies? 81. There can be more than one remedy that is just and appropriate in the circumstances of any case.

Here I have found above that thedefendant has met the test for exclusion of evidence, but also that reduction of sentence is a more just and appropriate remedy. Thisraises a neat question – is the defendant entitled to the remedy of exclusion since he has met the test? Or can I simply pass over exclusionand choose what I regard as the more just and appropriate remedy? 82. With respect to 24(1), the Supreme Court of Canada in the early days of the Charter observed in R. v. Mills, (SCC), [1986] 1 S.C.R. 863, that “It is difficult to imagine language which could give the court a wider and less fettered discretion.”

This has been repeated by the Supreme Court and the Court of Appeal numerous times since: see for example R v Donnelly 2016 ONCA988 , [2016] OJ No. 6681 at paras 145-9; R v Nicholas 2017 ONCA 646 at paras 56-7. As a general proposition then, this widediscretion must permit a trial Court to choose between available remedies when both are considered just and appropriate. 83. More specifically with respect to exclusion of evidence, the Supreme Court of Canada in R v Bjelland 2009 SCC 38 held that thetrial judge had erred in excluding evidence instead of choosing a lesser remedy.

On its face this would appear to be high authority topermit me to choose sentence reduction over exclusion in this case. However, Bjelland was an unusual case where the exclusion wasordered as a remedy under 24(1) for late disclosure of the evidence. Alternative remedies including a simple adjournment with disclosureorder were readily available. Sentence reduction was not in the picture. 84. The present case is quite different. I can’t choose a remedy of reduction of sentence unless the proceedings are going to have asentencing stage and that stage will not be reached unless and until there is a conviction.

There can’t be a conviction unless the evidenceis admitted, but it can’t be admitted because it has been determined by me through the Grant analysis that to do so would bring theadministration of justice into disrepute. 85. Accordingly, whatever be the general discretion to choose between remedies, it can’t be exercised here. The evidence of the gunmust be excluded. Conclusion: 86. The defendant is found not guilty of all charges except count 10 (resist arrest). November 2 2023 B Duncan J Zaire Puil for the defendant: J Bellehumeur, for the Crown