R. v. Allen, 2011 ONCJ 765

COURT FILE No.: Toronto Region – Metro East (Scarborough) DATE: 2011-·11·20 Citation: R. v.

Allen , 2011 ONCJ 765 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — OMAR ALLEN Before Justice Wong Heard on May 4 and 5, August 26, September 1 and 16, 2011 Reasons for Judgment released on November 20, 2011 Josh Levy ................................................................................................................ for the Crown Gail Smith .......................................................................................... for the accused Omar Allen Wong, J.: [ 1 ] Omar Allen pleaded not guilty to the offences of Assault Resist Arrest, Fail to Comply with a Recognizance, and Attempt to Disarm a Police Officer.

The Crown elected to proceed summarily and called five police officers. The Defence called one police officer and her client. [ 2 ] Defence counsel argues that the court should find police violated Mr. Allen’s rights under

section 7 , 10(a) , 10(b) , and

section 11 of the Canadian Charter of Rights and Freedoms , and seeks a stay of proceedings pursuant to section 24(1) . [ 3 ] Crown counsel submits this is not a Charter case, but rather one based on credibility. The Crown argues the version of events purported by either side is so factually opposite that the case rises and falls on the findings of fact. In other words, if the court accepts the Defence evidence or finds there is a reasonable doubt, then Mr.

Allen ought to be acquitted. [ 4 ] The following facts are not in dispute: [ 5 ] On June 29, 2009, officers from the 43 Division Community Response Unit were on general patrol, which included the apartment buildings at 3171 and 3181 Eglinton Avenue East in Toronto. The area and those buildings in particular were targeted as areas of high crime including drug trafficking, firearms, and violence. In April 2009, police executed a number of search warrants in the neighbourhood as part of what was dubbed Project Fusion. Many people were arrested, which left a void so younger offenders began selling drugs.

One of the goals in June 2009 was for officers to keep a constant police presence in the area and in those two apartment complexes. [ 6 ] Police had the support of the community: Toronto Housing Corporation sent a letter to police at 43 Division authorizing them to enter their properties at 3171 and 3181 Eglinton Avenue East, in order to enforce the Trespass to Property Act .

Property management had given police a security fob, which allowed police to enter locked areas of apartment building 3181. [ 7 ] On June 29, 2009, at approximately 5:35 p.m., Police Constables Andrew Garvey and Michael Tughan, drove by 3181 Eglinton and saw a male party wearing a white shirt and black baseball cap, in the door way on the main floor of the west stairwell. According to the officers, the apartment stairwells were often the place where drugs were trafficked. P.C.

Garvey radioed his team about this male who was possibly loitering contrary to the Trespass Act , and announced that he and his partner were going to enter the building and investigate. [ 8 ] The goal was for Garvey and Tughan to enter surreptitiously through one entrance while other members of the Community Response Unit waited at the opposite end of the building. Anyone loitering or anyone running away from the officers would likely be flushed out of the building and run directly into the officers waiting outside.

On June 29 th this is precisely what happened. [ 9 ] Officers Garvey and Tughan entered through the southeast entrance and went to the 2 nd floor so the male in the west stairwell would not see them. They traversed across the building and entered the stairwell from the 2 nd floor. As the officers entered, the male, who was originally seen wearing the white T-shirt, ran. It is not disputed that this male was Omar Allen.

[10] Mr. Allen ran out of the building past Sgt. Janice Blakeley and her partner, Bryan Mantle, who had parked their vehicle inthe parking lot. Both had a clear view of the defendant as he ran from the building being chased by Constables Garvey and Tughan. [11] All parties including Mr. Allen agree that he ran across Markham Road, a major street in Toronto, and into a woodedarea. Mr. Allen does not dispute that he knew that police were chasing him. Constables Mantle, Garvey, and Sergeant Blakeley, were allon foot running after Mr. Allen in and around this area. At one point, with P.C.

Mantle running behind him, Mr. Allen also does notdispute that he took off his white T-shirt and continued to run wearing now a black T-shirt. One of the officers radioed to the others thesuspect’s clothing change. Mr. Allan successfully climbed over an 8-10 foot chain link fence; as did P.C. Mantle but not before receivingpuncture wounds to both of his hands. [12] It is here where the Crown and the Defence case become diametrically opposed. The Crown alleges Mr. Allen wrestledand fought the officers’ efforts to handcuff him and attempted to grab Constable Tughan’s gun. Mr.

Allen testified that he had given upthe chase and was catching his breath, when 4-5 officers began beating and kicking him. He denies trying to disarm the police officer. [13] It is not disputed that police arrested Mr. Allen at 5:43 pm. Police located on Mr. Allen two bags of marijuana, 2 cellphones and $155.00 in cash. Officers left the scene with Mr. Allen at 5:58 p.m. They arrived at the police station at 6:05 p.m. and Mr.Allen complained of dizziness, soreness to his head and stomach pain. At 6:18 p.m., the police conduct a level 3 search and moremarijuana was found. At 6:25 p.m., Mr.

Allan came out of the search room. At 6:36 p.m., officers took Mr. Allen to ScarboroughCentenary Hospital and arrived at the hospital at 6:44 p.m. After a physical examination and x-rays, Mr. Allen was medically cleared toleave the hospital at 10:12 pm. He arrived back at the police station at 10:18 pm. [14] According to the medical reports marked as Exhibit 8 at this trial, Mr. Allen’s injuries consisted of “superficial abrasion”to his “left temporal cheek area, his eye was swollen with a small laceration over his left eyebrow”. He had Polysporin and a bandageapplied to his left forearm.

He was released from the hospital and police were told to check on him every hour or so because of thehead injury. Police gave Mr. Allen an extra prisoner’s jumpsuit to use as a pillow when he was lodge in the cell. Credibility Issues: [15] After having heard the evidence, I agree with Crown counsel that the main issue in this case is credibility. The Crownargues that if the Court accepts the evidence of Omar Allen or has a doubt about the Crown’s evidence, then the accused ought to beacquitted.

If, however, the Court accepts the Crown’s evidence and is satisfied beyond a reasonable doubt that the defendant is guilty ofthe offences, then the police were justified in the force used. [16] The leading case on credibility is R. v. W.D.(1991) (SCC), 63 CCC (3d) 397 (S.C.C.). It begins byindicating that a judge, or a jury, need not firmly believe or disbelieve any particular witness or a set of witnesses.

A judge can accept orreject some, all, or none of any particular witnesses’ testimony. [17] Further, a judge must apply the following test: [18] First, if I accept the defence evidence then obviously the accused must be acquitted. [19] Secondly, if I do not believe the defence testimony or that of his witness, I could still be left with a reasonable doubt, andagain I must acquit the accused. [20] Thirdly, even if the defence evidence does not raise a reasonable doubt, I have to consider all of the evidence includingthe evidence adduced by the Crown to satisfy myself that the Crown has met its high burden and proven beyond a reasonable doubt all ofthe essential elements of the offences against the defendant. [21] There is also the fundamental principle that everyone is presumed innocent until their guilt has been proven beyond areasonable doubt, and the onus is on the Crown throughout a trial.

The Defence Evidence: [22] I will first review the Defence evidence because if Mr. Allen’s testimony is accepted, then I must acquit. [23] According to Mr. Allen, he returned to the apartment building at 3181 Eglinton Avenue East after having stayed awayfrom the building for a year because of outstanding bail conditions. On June 29, 2009, Mr. Allen said his aunt lived in the building, andhe visited her at 11:30 am. When police approached him, Mr. Allen said he was talking to two friends in the stairwell. According toMr.

Allen, he saw two officers and a security guard running down the stairwell and someone yelled to him “Freeze”. Mr. Allen said heran because of two previous incidents where he had seen police harassing and assaulting people in that building: once while playingbasketball, 2 officers stopped the game and searched everyone up against a fence. Another time, Mr. Allen said he saw two officersbeating someone in the stairwell. It was based on those two past experiences the defendant said he ran because he was afraid. [24] Mr.

Allen testified the prior to June 29th, the last time he had been at 3181 Eglinton was in February 2008, which waswhen he was arrested on another offence and received bail which prohibited from entering that building. When asked by the Crown tocarefully consider whether the last time he had been at 3181 Eglinton was in “February 2008”, Mr. Allen said he was sure. However, theCrown showed Mr.

Allen a copy of an information wherein he was charged on December 12, 2008, with breaching a condition of hisrecognizance – to wit, “not to enter the premises at 3181 Eglinton Avenue East or to be found within 500 meters of that address” (Exhibit7). Mr. Allen changed his response and agreed with Crown counsel that he had been mistaken. [25] In cross examination, Mr. Allen agreed he was charged in February 2008 with offences relating to the building at 3181Eglinton Avenue East. As a result, his bail did not permit him to go back to the 3181 Eglinton. However, on June 29, 2009 (the date ofthis incident), Mr.

Allen said he was supposed to go to court to have the charges with the bail restriction withdrawn. However, hemissed court, but his lawyer called him and told him that charges were withdrawn; and hence, he was allowed to go back to 3181

Eglinton and visit his aunt. [ 26 ] However, Mr. Allen agreed when shown a copy of the recognizance for the December 12, 2008 allegation of breach of recognizance, that in fact he did not have a court appearance on June 29 th . Rather, the information shows that Mr. Allen was remanded from April 30, 2009 to July 27, 2009; and there were other subsequent court appearances. Mr. Allen could not explain why the information was not endorsed for a June 29 th appearance or why he appeared in court after he said the charges were withdrawn. [ 27 ] Mr.

Allen clung to the position that he ran from police on June 29th because of the two previous incidents where he saw police harassing and beating up people: not because he was on a bail to stay away from the building or because he was in possession of marijuana. [ 28 ] There were other difficulties with Mr. Allen’s evidence: in Mr. Allen’s affidavit, filed as part of his Charter application, the defendant swore that his aunt lived at apartment “301”. In court, Mr. Allen said his aunt lived in apartment “403” and had for the past 10-11 years. According to Mr. Allen, his aunt never lived in 301.

He had no explanation for the discrepancy although obviously his counsel prepared the material; however, Mr. Allen swore to its contents and signed it. [ 29 ] Mr. Allen agreed that as he ran from police, he took off the white T-shirt that he was originally wearing and discarded it – leaving him wearing a black shirt. Mr. Allen said he did not remove the one shirt in an attempt to change his appearance to help him escape the police: rather he said he always wore two shirts in June, which he admitted was a hot day, and he took it off because it was bright. [ 30 ] All of the police officers testified Mr.

Allen ran across Kingston Road and ended up on a residential side street called “Brimloor Boulevard”. Mr. Allen, who in his affidavit wrote that he grew up at 3181 Eglinton for 10 years, knew the neighbourhood very well. Mr. Allen was certain that he never crossed Kingston Road and he was not arrested on Brimloor. [ 31 ] Instead, Omar Allen testified he ran to a side street, where a police cruiser was parked. He had stopped running and was gasping for breath with his hands on his knees, when a male officer tackled him to the ground.

Within 3-4 seconds, another group of officers joined the one officer and they all beat him. In paragraphs 13 to 15 of his affidavit, Mr. Allen wrote that they all kicked and stomped on him for “at least 5 minutes”, while he laid on his side with one officer holding his arms down. All of them kicked his back and stomach; stomped on his legs; one officer put his knee on his head while other officers kicked him on the left side of the face. In cross examination, Mr. Allen said he was kicked in the face more than once. He agreed the police were wearing boots as opposed to, for example, sandals.

Once he was able to get his hands free, Mr. Allen stated at paragraph 19, he kept trying to cover his face with both hands and curled up in a ball to protect his stomach, chest and privates. Mr. Allen said he never moved from his position on the ground so it was impossible for him to have reached for the officer’s gun. Mr. Allen said he never heard any officer shout “he’s got my gun”. [ 32 ] Mr. Allen claims police slammed him against the police cruiser and an officer fondled his genitals during the pat-down search. Mr. Allen says he was thrown face down and landed stomach first in the back of the police cruiser.

He claims he begged the officers to roll down the windows of the cruiser because he needed air, which they refused. While in the back of the police cruiser, Mr. Allen said he passed out and awoke to P.C. Ron Reise asking him “Omar, Omar, are you with us buddy”? Once in the police station, Mr. Allen says he was strip searched and was left naked and forced to sit on a cold stool. [ 33 ] Mr. Allen agreed that at the hospital, the x-rays did not reveal any broken bones or fractures. He agreed that the extent of his injuries included, according to the discharge

summary, “superficial” abrasions to his face and elbow which were treated with polysporin and band-aids. [ 34 ] In chief, Mr. Allen said at the scene, he was only told he was being charged with “possession of marijuana” as opposed to the offence of assaulting or trying to disarm a police officer. However, in his affidavit, at paragraph 27, Mr. Allen wrote that “it wasn’t until we were on our way to the station that I was told what I was being arrested for – breach, assaulting a police and disarming a police.

They didn't say drugs or proceeds even though they had found some marijuana and my money at that point”. [ 35 ] At paragraph 45, Mr. Allen also wrote that finally at the hospital, police asked him if he “still needed a drink of water”. Mr. Allen wrote: “ This was the first time he mentioned water since I was asking at the station. He then asked the nurse if it was okay to give it to me. The nurse said it was okay and got me a cup of water ”. On the booking video from the police station, Mr.

Allen was offered and accepted water during the initial booking procedure. [ 36 ] In his support of his Charter application, Mr. Allen’s evidence also covered his mistreatment at the hands of the police while being transported to the station, during the search and on the way to the hospital. In his affidavit and in his testimony, Mr.

Allen also referred to the lasting injury to his finger, for which he has not seen a doctor because he is afraid of doctors; his migraine headaches for which he does not take medication nor has he seen a doctor because the pain is bearable and he sleeps the headaches off; the recurring nightmares; and his complete distrust of police, which has only grown since this incident. [ 37 ] These are the substantial problems with Mr. Allen’s evidence. Mr.

Allen’s evidence was full of significant inconsistencies both in terms of what was written in his affidavit and also internally inconsistent between his evidence in chief and cross examination. Crown counsel, Josh Levy, skilfully and very successfully cross examined Mr. Allen, and effectively undermined his credibility. Mr. Allen’s evidence was self-serving: his explanation why he ran from the police was exposed, at best, as gross overstatement, or at worst, as a series of lies. His position that he no longer trusts police because of the way he was mistreated during this incident is disingenuous and exaggerated.

Mr. Allen never trusted nor liked police: perhaps in part because they arrested him in the past. [ 38 ] I find Mr. Allen’s evidence about the nature of the police beating highly exaggerated. Mr. Allen’s version of events would necessarily have left with him with significant injuries in particular to his face and head, where he said police repeatedly kicked him with their heavy boots. The medical evidence simply does not support Mr. Allen’s testimony. The injuries he received were described in the hospital discharge

summary as “superficial” and he was treated with topical cream and bandages.

[ 39 ] As such, I do not accept Mr. Allen’s evidence to the extent that it raises a reasonable doubt. Of his evidence that I do accept, I am still not left with a reasonable doubt. Therefore, I will examine the Crown’s evidence. The Crown’s case: [ 40 ] All four officers involved in chasing Mr. Allen, testified they saw the defendant run across Kingston Road from their various vantage points.

a) P.C. Andrew Garvey [ 41 ] After Mr. Allen, ran from the building, four officers began the pursuit. Constable Garvey, who was partnered with P.C. Tughan, stationed himself at the southwest corner of the wooded area, maintaining visual contact east on Kingston Road and north of the fence line of the property. Officer Garvey said he saw Mr. Allen as the defendant emerged from the wood area, and run southbound across all lanes of traffic on Kingston Road. Garvey then gave chase. [ 42 ] According to P.C. Garvey, he caught up with Mr. Allen on a Brimloor Boulevard, on the south side of Kingston Road.

The officer said he was closing the distance between himself and Mr. Allen, when the accused extended his right arm back, in an attempt to block him, but kept running. P.C. Garvey said Mr. Allen’s right hand struck his left shoulder, but the officer was not thrown off and he, too, kept running. Garvey testified he grabbed Mr. Allen around the waist or upper body, tackled him, and they both fell to the ground. P.C. Garvey said he initially tried handcuffing the accused, but Mr. Allen kept flailing. The officer yelled several times to “stop resisting” in attempt to get Mr. Allen to comply.

According to the officer, they were rolling on the roadway and some of his police equipment came loose and ended up on the ground. Mr. Allen continued to struggle and was trying to break free. P.C. Garvey admits he was striking Mr. Allen using “empty hand techniques”, which means he was punching and striking the defendant but was not holding anything like a baton. [ 43 ] P.C. Garvey said within 5 or more seconds, his partner Constable Tughan was on scene and helping him with the arrest.

b) P.C. Michael Tughan: [ 44 ] P.C. Tughan said his partner got out of their cruiser and he continued to drive north on Markham Road to the north parameter of the forest. He said he was to the north, his partner was to the south; and P.C. Mantel and Sgt. Blakeley were still pursuing Mr. Allen on foot. Officer Tughan said he heard over the radio that Mr. Allen was running towards Kingston Road. P.C. Tughan drove to Kingston Road and saw Mr. Allen and his partner running across the street. The officer followed the two as they ran to Brimloor Boulevard and, according to P.C.

Tughan, “within seconds”, his partner and the suspect were in a struggle. P.C. Tughan said the pair was approximately 4 houses south of the corner on Brimloor: Mr. Allen was on his knees, fighting, flailing his arms, and trying to get to his feet. Officer Tughan said he heard his partner shouting “stop resisting” [ 45 ] Tughan said as soon as he approached, Mr. Allen who was on his knees, reached up and grabbed his pistol. He pulled on it and the P.C. Tughan said he was scared that Mr. Allen would remove his gun from the holster.

Officer Tughan began yelling, “He has my gun, he has my gun”. [ 46 ] According to P.C. Garvey, as soon as he heard his partner shout, “He’s got my gun”, the intensity of the situation dramatically increased, and he became more aggressive trying to gain control. [ 47 ] Constable Garvey admitted he hit Mr. Allen hard in the head. He could not estimate the number of times he hit the defendant. Officer Garvey said his entire concentration was on trying to control Mr.

Allen’s hands, and he did not pay attention to what his partner was doing and he did not see the defendant’s hand on the gun. [ 48 ] Officer Tughan testified he threw multiple punches and does not know where the punches landed; he agreed it was possible he struck Mr. Allen in the abdomen. However, he denied kicking Mr. Allen and he did not see any other officers kicking the defendant. P.C. Tughan who stood 5’9” tall and weighed 185 pounds, rejected Defence counsel suggestion that while kneeling, Mr. Allen was too short to have reached for the holstered gun. P.C.

Tughan also disagreed with Defence counsel who suggested there were other explanations for how the thumb latch on the officer’s holster became disengaged, such as someone or something brushing up against it.

c) P.C. Bryan Mantle: [ 49 ] The third officer involved in the arrest was P.C. Bryan Mantle. He was the officer who was on foot chasing Mr. Allen through the wooded area and who injured his hands as he jumped the metal fence. According to P.C. Mantle, the accused cleared a second chain link fence and then ran across Kingston Road. Officer Mantle was east of Markham and Kingston Road and as he climbed this second fence, he saw a police cruiser travelling westbound in the direction of where Mr. Allen was running. P.C.

Mantle said he could not keep constant eye contact on the defendant because he had to pay attention to the traffic as he tried crossing Kingston Road. However, Mantle testified he saw Tughan get out of the police cruiser; shortly after, P.C. Mantle saw that Tughan and Garvey had Mr. Allen on the ground. Constable Mantle said he heard someone yelling, “Stop resisting” and words to the effect of “He has my gun, he has a hold of my gun”. According to P.C. Mantle, upon hearing those words he ran straight over and put his knee on Mr. Allen’s head; and he tried to get the defendant’s left arm from under his body.

Officer Mantle said he struck Mr. Allen a few times on the back in attempt to extract his left arm in order to cuff him. The officer said he was not sure whether Mr. Allen was face down on the ground, but he assumed so because he could not free Mr. Allen’s left arm. P.C. Mantle explained the reason for kneeling on Mr. Allen’s head: that if you get control of a person’s head and legs, they stop moving. Constable Mantle did not see Mr. Allen’s hand on P.C. Tughan’s gun because he was busy trying to subdue him. Similarly, P.C.

Mantle could not testify about what Tughan and Garvey were doing because he was concentrating on his part of the arrest. [ 50 ] According to P.C. Mantle, at 5:43 p.m., the officers finally had control of Mr. Allen. Officer Mantle said he and P.C. Garvey did a brief pat down search of Mr. Allen as the defendant lay on the ground. The officer located in the left rear pant pocket, two

white baggies containing what he believed was marijuana, $155; and two cell phones from his front pants pocket.

d) Sgt. Janice Blakeley: [ 51 ] The 4 th and final officer involved in the chase was Sergeant Janice Blakeley. She did not enter the forest with her partner, P.C. Mantle, but instead she ran along the east side of Markham going south. Sgt. Blakeley could see Mr. Allen running into the wooded area. The sergeant stated she wanted to set up a parameter around the forest so she headed to the west side. However, Sgt. Blakeley heard over the police radio that the suspect was running across Kingston Road, so she went in that direction. The sergeant saw Mr. Allen running ahead of P.C. Mantle, who was on the median.

She saw Mr. Allen run onto Brimloor Blvd – at this time, Sgt. Blakeley said she was about 200 feet west of Brimloor. Instead of following the accused onto Brimloor, Sgt. Blakeley said she ran to the side street just west of Brimloor, in case the defendant chose to cut through the houses. The sergeant then heard on the police radio that other officers had a person in custody. Sgt. Blakeley then cut back and went to Brimloor. [ 52 ] There she saw Mr. Allen handcuffed to the rear and bent forward over the hood or trunk of a police cruiser.

She was advised of the defendant’s identity; that officers had conducted a pat down search and property was located; Blakeley spoke to P.C. Tuggan who advised what had transpired. As a result, they discussed what Mr. Allen would be charges with: however, Sgt. Blakeley said the detectives back at the police division would be the final arbiters which charges would be laid. [ 53 ] Sgt. Blakeley noted the injuries to the three officers: P.C. Tughan had injury to his knuckles on his right hand; Garvey had scrapes to his right knuckles; and Mantle had injuries to the palms of his hands. Sgt. Blakeley also noted Mr.

Allan had a swollen left eye. [ 54 ] All of the officers testified that Mr. Allen was sweating and out of breath; so, too, were all of them. Officer Mantle estimated the foot chase from the apartment building to Brimloor took approximately 5-7 minutes and covered maybe 1-1.5 kilometres. [ 55 ] According to Sgt. Blakeley, some 20-30 residents on the street came out to see what was happening, but no one interfered. Some citizens stayed for a couple of seconds and others remained for a couple of minutes. Also, two other police cruisers responded because of the radio updates, but Sgt.

Blakeley turned them away at the top of the street because their help was not required. [ 56 ] Sgt. Blakeley, Defence counsel agreed, was a very straightforward witness. Although she did not see the initial takedown, Sgt. Blakeley was on scene within minutes. Sgt. Blakeley testified she did not see anyone mistreat Mr. Allen. She was in close proximity when Mr. Allen was put in the police car and if someone, as Defence counsel suggested, had thrown him face down into the cruiser, she would have noticed.

e) Other Officers

i) P.C. Ron Reise: [ 57 ] Sgt. Blakeley assigned P.C. Ron Reise and Mantle to transport Mr. Allen to the police station. According to officer Reise, Mr. Allen appeared to be tired and lethargic. He noted that the defendant had a swollen left eye, a small cut to his forehead over his same eye, and a small cut to his left elbow. [ 58 ] The officers left the scene at 5:58 p.m. with Reise driving, Mantle in the passenger seat, and Mr. Allan in the rear of the scout car. They arrived 7 minutes later at 43 Division at approximately 6:05 p.m. During the ride, P.C. Mantle noted that there was no conversation between Mr.

Allen and the officers en route. P.C. Mantle did not hear Mr. Allen asking to roll down the windows and he would have remembered if Mr. Allen had “blacked” out. [ 59 ] Constable Reise had less specific recall and did not remember the accused complaining that he was dizzy or asking for them to roll down the windows. P.C. Reise said it was possible that he asked Mr. Allen, if he was okay: words to the effect of “Omar, Omar, are you with us, buddy?” He denied that he said to the accused that if it had been him that chased him, P.C. Reise would have shot him. [ 60 ] Once at the police station, Mr.

Allen was paraded before the booking sergeant. The booking procedure was recorded on tape and has been marked Exhibit 1 at this trial. From 6:08 p.m. to 6:17 p.m., Mr. Allen appeared before the booking sergeant along with officers Mantle and Reise He appeared winded and doubled over, he needed assistance to stand and complained of a sore stomach. The booking sergeant noted the injury to his left eye and Mr. Allen showed them a scrape to his elbow. Mr. Allen asked for and was given a glass of water. [ 61 ] At 6:17 p.m., Mr. Allen was lead off camera to an area where he was searched. At 6:19 p.m., P.C.

Reise is seen exiting the room carrying a pair of pants leaving P.C. Mantle in the room with Mr. Allen. At 6:22 p.m., P.C. Mantel leaves with the room with Mr. Allen’s shoe laces and puts them in a property bag. Someone brings in a waste basket in case Mr. Allen is sick. At 6:23 p.m., Mr. Allen is still in the room but comes out at 6:25 p.m. [ 62 ] In his affidavit at paragraph 33, Mr. Allen alleges that he was left standing naked for at least 10 seconds and was told to sit down on a cold metal stool. He claims P.C. Reise whipped him twice in the head with his own jeans. In his testimony in court, Mr.

Allen doubled the time and said he was left standing naked for 20 seconds. [ 63 ] P.C. Mantle in chief said “10 seconds” sounded about right as the officers would have examined each piece of Mr. Allen’s clothing and agrees Mr. Allen may have stood without clothing for a brief period. Officer Mantle said that no one touched Mr. Allen during the entire inspection, which officers do not prolong. P.C.

Reise said it’s not his usual practise to have a prisoner take off all of their clothing: rather they are instructed to remove their top and then their bottom, but Reise said sometimes the person jumps ahead and takes off all of their clothing. P.C. Reise said he did not believe that Mr. Allen was ever stark naked. [ 64 ] If Mr. Allen was told to sit on a metal stool, P.C. Reise said it was possible that Mr. Allen was unsteady on his feet and

told to sit down. Both officers denied that either of them whipped Mr. Allen’s jeans at his head. [ 65 ] During this level 3 search, P.C. Mantle found a small bag of marijuana in the accused’s front pants pocket. Officer Mantle said he did not locate the baggie of drugs until the strip search, which he says supports his position that his initial search at the scene was only a cursory pat down search. If it had been a more intrusive search as Mr. Allen claimed, P.C. Mantle said he would have found the baggy earlier. [ 66 ] It is noted that although there were no video cameras in the room where Mr.

Allen was searched, the video camera in the booking hall continued to record the sound of Mr. Allen’s search. The quality is not great, but some of the officer’s comments and instructions to Mr. Allen were recorded. The audiotape does not reveal any inappropriate comments or complaints. ii) P.C. Blaise Krucz [ 67 ] At 636 p.m., P.C. Reise and Constable Blaise Krucz were assigned to transport Mr. Allen to the hospital. Constable Kurcz noted minor injuries to Mr. Allen, and he was told the defendant had complained of dizziness. When they arrived at the hospital at 6:44 p.m., Mr.

Allen also complained of a sore jaw. [ 68 ] While at the hospital, the officers accompanied Mr. Allen at all times. He was examined by a doctor at 9:16 p.m., he was taken for x-rays because of the complaint of a sore jaw, and a nurse applied polysporin and bandages to his head and arm. There were no broken bones or fractures, but the officers were told to check Mr. Allen every 1 to 1 ½ hours for signs of concussion. At 10:12 p.m., the officer left the hospital to return to the station. At 10:18 p.m., they arrived back at 43 Division and Mr.

Allen was again before the booking sergeant. [ 69 ] While on their way to the hospital, Mr. Allen alleges that officer Reise remarked that he was suppose to end his shift, but was unable to go home because he was stuck watching this “dick” at the hospital. P.C. Reise was asked about his shift and he believed he was working until midnight. The officer denied he would have made the comment. [ 70 ] The booking tape marked as an exhibit shows Mr. Allen being brought back to the station, paraded, but not subjected to a search because one had already been done.

The officers summarized the medical treatment given at the hospital, and the sergeant asked if an injury report was being completed. In this trial, there are 2 injury reports prepared by P.C. Mantle and witnessed by Sgt. Blakeley. Neither of them recall why there would have been two reports prepared, but it appears that Exhibit 3 is an incomplete version of Exhibit 2 – the latter containing a synopsis of the incident. P.C. Mantle’s signature is missing from Exhibit 2, but is found on Exhibit 3. Sgt. Blakeley’s signature appears on both.

The injury report noted “cut/swelling left eye, punctures to both hands”, but Sergeant Blakeley agreed it did not note the defendant’s scraped elbows and knees, or his complaint of stomach pain and dizziness. [ 71 ] During the booking someone suggests that Mr. Allen be given something to put his head on while waiting in the holding cell. They only thing they could find was a prisoner’s jumpsuit, which could be rolled up. On the tape, Mr. Allen stands up with P.C. Kurucz holding his arm. Mr. Allen was allowed to call counsel, but it is unclear who facilitated the call. [ 72 ] When asked why Mr.

Allen was not allowed to call counsel when he was initially booked into the police station at 6:05 pm, the officers stated that after the level 3 search the priority became to take Mr. Allen to the hospital. Once back at the police station, Mr. Allen was allowed to call counsel. It is noted that police did not try and interview Mr. Allen once he was returned to the station. He was held in cells and presumably taken to court in the morning for a show cause hearing. [ 73 ] Overall, I found the police officer’s evidence to be consistent and credible. Cross examination did not significantly undermine their testimony.

Each officer made observation from their different vantage points. For example, they all were involved in the foot pursuit of Mr. Allen from different starting points and they all took different roles. Their evidence reflected these differences. All of the officers testified they saw Mr. Allen run across Kingston Road. I accept their evidence that this was the route Mr. Allen took and that he ran down Brimloor Blvd. I have no idea why Mr. Allen would dispute this position except, perhaps, he felt that he had to disagree with the everything the police said. Even Sgt. Blakeley, testified she saw Mr.

Allen cross Kingston Road and run down Brimloor but she took a different route in case he decided to make his escape by dodging through the houses. Sgt Blakeley, who I agree with Defence counsel, was very straightforward and honest because she agreed with counsel that neighbours came out from their houses to observe, and that other police cars responded but the officer said they were not required: Sgt. Blakeley’s evidence supported the other officer’s testimony. [ 74 ] I also accept the evidence of P.C. Garvey, Tughan and Mantle regarding the struggle to arrest Mr. Allen.

All three officers freely admitted they fought hard to gain control of Mr. Allen, who was trying to escape and refusing to cooperate with their attempts to handcuff him. None of them downplayed their involvement in trying to physically subdue Mr. Allen. The extent and nature of Mr. Allen’s injuries is consistent with their efforts to arrest him. [ 75 ] I accept the evidence of P.C. Tughan that Mr. Allen grabbed his sidearm, which resulted in him calling out “he’s got my gun”, which understandably intensified the situation resulting in numerous punches being sent to Mr. Allen’s head and body. P.C.

Mantle freely acknowledged he kneeled forcefully on the defendant’s head in an effort to subdue him and make him more compliant. I do not find it significant that neither P.C. Mantle or P.C. Garvey saw Mr. Allen’s hand on the Tughan’s gun. I accept their evidence that they were concentrating on gaining control of Mr. Allen, in what was a very fast moving and emotionally heightened situation. [ 76 ] The struggle was over quickly once all three officers became involved. Mr. Allen was understandably winded, exhausted, and injured as a result of the chase and his arrest. I do not accept Mr.

Allen’s evidence that he was mistreated or mishandled during the search and being placed in the police cruiser. I accept P.C. Mantle’s evidence that had he performed a more intrusive search at the scene such as what Mr. Allen suggested, then he would have located the drugs found in the accused’s pants pockets, which were later found during the level 3 search at the police station. I accept the evidence of Sgt. Blakeley, who again impressed the court with her candour, that Mr. Allen was already in handcuffs and standing at the back of a cruiser when she arrived on scene. Sgt.

Blakeley did not see, and would have been in a position to see, if Mr. Allen was roughed up by police at the scene or improperly thrown head first into a police cruiser.

[77] The booking videotape speaks for itself. Mr. Allan swore in his affidavit that it was not until the hospital that the officersoffered him a glass of water. This evidence was part of his overall theme that police continually mistreated him and gave him noconsideration for his medical condition. Mr. Allan is clearly wrong in his evidence: he was offered water soon after he arrived at thestation. [78] I agree with the Crown that Mr. Allan’s evidence was severely undermined in many areas during his cross examination.

Ihave already reviewed the many significant inconsistencies in his evidence. [79] In conclusion, I am satisfied that the Crown has proven the charges against Mr. Allen beyond a reasonable doubt and hewill be found guilty as charged. I am satisfied that Mr. Allen assaulted P.C. Tughan who was in the proper execution of his duties. Further that he attempted to disarm him by grabbing his firearm. While committing these offences, Mr. Allen was also bound by acondition of a recognizance dated December 15, 2008, which required him to keep the peace and be of good behaviour.

I am satisfiedthe Crown has proven beyond a reasonable doubt that he was in breach of this condition and that he had no lawful excuse. Charter Argument: [80] For the purpose of thoroughness, I shall briefly address Defence counsel’s Charter application: [81] The Defence argues that Mr. Allen’s Charter rights under

section 10(

a) were violated because police did not inform himof the reason of his arrest. As I have already reviewed, Mr. Allen contradicted himself when he testified that, at the scene, police toldhim he was being charged with only the drug offences. However, in his affidavit at paragraph 27, Mr. Allen stated the opposite: he wastold on the way to the police station that was being charged with assault police, disarming a police officer and breach of a recognizance,but not the drug charges. [82] According to P.C. Garvey, he initially advised Mr. Allen that he was being arrested for assault resist arrest. At this point,Mr.

Allen had not been searched so the drugs had yet to be found. By the time Mr. Allen was being transported to the station, P.C.Mantle said Mr. Allen was being charged with assault police, disarming an officer, and possession of the drugs. On the bookingvideotape in front of the booking sergeant, P.C. Mantle advises the sergeant that Mr. Allen was arrested for possession marijuana,“possibly” fail to comply, and disarming a police officer. As Sgt.

Blakeley testified, the final decision as to what charges are being laidis left to the detectives at the police station to determine. [83] I do not find, as Defence counsel argues, that Mr. Allen was not advised of his reasons for his arrest. [84] Regarding Mr. Allen’s

section 10(

b) rights to counsel, the defendant does not dispute that he was advised of his right, butsays his head was hurting and could not think straight. In court, Mr. Allen testified he did not ask to speak to a lawyer because it was noton his mind because he was busy thinking of too many other things. Later, after he returned from hospital, Mr. Allen does not dispute hecontacted counsel. Police did not attempt to take a statement or illicit any other information from Mr. Allen. The Defence has notestablished a breach of her client’s right to counsel under

section 10(b). [85] Defence counsel argues police used excessive force on Mr. Allen resulting in a breach of his

section 7 rights to be securein his person. In R.v. Nasogaluak 2010 SCC 6 , [2010] 1 S.C.R. 206 (S.C.C.), the Court held that police officers may have toresort to force in order to complete an arrest or to prevent an offender from escaping their custody. However, the allowable degree offorce is constrained by the principle of proportionality, necessity and reasonableness. Under section 25(1) of the Criminal Code, the useof force to effect a lawful arrest is justified if the police officer believes on reasonable and probable grounds that it is necessary and ifonly as much force as necessary is used.

Further, under section 25(3), force intended or likely to cause death or grievous bodily harm isprohibited unless the officer has an objectively reasonable belief that the amount of force used is necessary for self-protection or for theprotection of another person. [86] In Mr. Allen’s case, I have made a finding that the defendant was trying to disarm P.C. Tughan, who was attempting tolawfully arrest the accused. Officer Tughan and those who assisted him were authorized to use reasonable force to protect themselvesand others.

I find none of the officers used excessive force or gratuitous violence under the circumstance or else Mr. Allen’s injurieswould have been more extensive. In fact, I am prepared to go farther and commend the officers for using restraint in their arrest of Mr.Allen and affecting the arrest so quickly. [87] Finally, the Defence argues Mr. Allen’s

section 11 Charter rights to be free from cruel and unusual punishment wereviolated because he was forced to stand naked and later sit on a cold metal stool. Further counsel argues P.C. Reise intimidated Mr.Allen throughout his part of the investigation by making overt and veiled threats to him. [88] The only evidence with respect to any mistreatment of Mr. Allen is, of course, himself. I have already stated why Mr.Allen’s testimony is unreliable. However, I do agree with Defence counsel that P.C. Reise, who has been a police officer since 2004,was unnecessarily combative and evasive during cross-examination.

But P.C. Reise worked alongside P.C. Mantle during the initialtransportation and booking; and then with P.C. Krucz for the transportation to and from the hospital. I accept the evidence of those twoofficers and do not find that Mr. Allen’s

section 11 Charter rights were violated. [89] P.C. Mantle admitted it was likely Mr. Allen stood naked for a few seconds while his clothing was checked, which wasnot standard police protocol, but falls far short of a

section 11 Charter violation of cruel and unusual punishment. Similarly, sitting on acold metal stool for a few seconds, also does not meet the threshold. Moreover, the level 3 search was performed off camera in a roomwhere the audio portion of the booking room captured some of the instruction and comments the officers made to Mr. Allen. Nothinginappropriate was heard on the tape and Mr. Allen did not complain of any mistreatment when he came out of the room. [90] It is recognized that an infringement of an accused’s persons Charter rights can result in a remedy within that person’strial.

Even if I were to find that P.C. Reise made inappropriate remarks to Mr. Allen, I do not find that Mr. Allen’s Charter rights have

been violated. The use of the stay of proceedings as a Charter remedy should only occur in unusual or special circumstances. Mr. Allen’s is not one of those cases. Released: November 20, 2011 Justice M. Wong