2021 QCCQ 13105, 2021 QCCQ 13105

Martell c. R. 2021 QCCQ 13105 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Criminal and Penal Division” N o : 500-01-192173-190 DATE: October 8, 2021 ______________________________________________________________________ BY THE HONOURABLE SALVATORE MASCIA, J.C.Q. ______________________________________________________________________ MARTELL, DYLAN SHAWN

(001) BREMNER, BRIAN JAMES

(003) REILLY, BAILEY CHANCE

(004) MARTELL, SHAWN GERARD

(005) PETITIONERS - accused v. HER MAJESTY THE QUEEN RESPONDENT - prosecutrix ______________________________________________________________________ JUDGMENT ON A MOTION TO EXCLUDE THE EVIDENCE PURSUANT TO SECTIONS 7, 8, 9 10

b) AND 24(2) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS [1] ______________________________________________________________________ 1. Overview 1.1 The charges [ 1 ] The petitioners are all charged with aggravated assault (268 of the Criminal Code ), assault causing bodily harm (267b) Cr.

C) and simple assault (266a) Cr.C .). Two of them face additional charges of assaulting and obstructing a peace officer. The events giving rise to the charges occurred in the early morning hours of July 14, 2019 outside of the New City Gas Bar located at the corner of Ottawa and Ann Streets.

In a nutshell, the petitioners were arrested for having instigated a violent brawl that resulted in injuries to five victims. 1.2 Brief statement of the issues and the positions of the parties [ 2 ] Prior to the trial, the petitioners, through their counsels, gave notice that they were making an application that certain evidence gathered by the police be suppressed on account of alleged violations to their rights at sections 7 , 8 , 9 and 10(

b) of the Charter . Summarily, the said evidence includes (

i) statements made to the police; (ii) photographs of the petitioners taken at the police station (showing evidence of blood on their clothing and injuries compatible with involvement in a fight); (iii) DNA results matching the blood on their clothing to that of the victims; and (iv) medical information obtained by the police regarding one of the petitioners (after his arrest, Shawn Gerard Martell was brought to the hospital for treatment to his broken hand). [ 3 ] With respect to the

section 10(

b) Charter violations, more particularly, there was no issue with the informational component of the police duties—upon arrest, the petitioners were promptly informed of their right « to retain and instruct counsel without delay. » Instead, the complaint lay with the inordinate delays in exercising that right. In the case of one petitioner (Shawn Gerard Martell) he only got to speak with an attorney some eight hours after his arrest. [ 4 ] While the exclusion of the aforesaid evidence is predicated upon one or more violation of the petitioners’ rights at sections 7 , 8 , 9 and 10(

b) of the Charter , the threshold issue centers on the question of the petitioners’ detention and whether it was arbitrary in violation of

section 9 of the Charter . As we shall see, the petitioners claim that the police did not have reasonable grounds to even suspect that they were involved in a brawl. In the absence of reasonable grounds to suspect, their detention for the purposes of investigation was illegal. The illegal detention, in turn, tainted all the subsequent police action. If the detention (and subsequent arrest) was not lawful, the police could not justify gathering evidence on the grounds that it was incidental to arrest.

For that matter, even the charges of obstructing and assaulting an officer would have to fall—as a baseless or arbitrary detention, by definition, means that the police were not acting in the course of their duties.

[ 5 ] The physical evidence against the petitioners was obtained, in part, by a telewarrant which authorized the police to take pictures of the petitioners’ injuries and bloodstained clothing. For the petitioners, the said telewarrant was issued in violation of their

section 8 Charter rights. More particularly, they pointed to the following flaws or frailties in the affidavit in support of the warrant: (

i) it violated the rule against narrative and conclusory statements; (ii) the allegations therein were either incorrect or insufficiently corroborated to believe (on reasonable grounds) that the petitioners were even involved in a brawl. Consequently, the evidence obtained on the basis of the warrant had to be suppressed. [ 6 ] Not surprisingly, the Crown’s position regarding the alleged Charter violations was diametrically opposed to that of the petitioners. Admittedly, there were delays in the petitioners’ exercise of their right to confer with counsel.

However, the delays were not occasioned by the deliberate or reckless disregard for their constitutional rights. Instead, the delays are explained by the particular circumstances of the police intervention. As we shall see in a later

section of this decision, the circumstances included (

i) delays in getting the petitioners to the detachment on account of a gridlock of police cruisers waiting to access the station’s garage; (ii) difficulty in reaching the particular attorney requested by one or more of the petitioners; and (iii) inaccurate or insufficient information regarding the identity of an attorney requested by one of the petitioners. [ 7 ] For that matter, the Crown alleges that petitioners were not reasonably diligent in exercising their right to counsel. The officers, on the other hand, went through «loops» to locate the petitioners’ attorney of choice.

In the case of Bailey Chance Reilly, for instance, the officers left a telephone message with his mother who resided in Nova Scotia in the hopes that she would know the name and coordinates of the attorney. A few minutes later, they called his grandmother who also resided in Nova Scotia. Once the police have discharged their informational and implementational duties, what more could they do? Press a phone against the petitioner’s ear and oblige him to call duty counsel? [ 8 ] In any case, the want of immediate access to counsel of choice did not cause any real prejudice to the petitioners.

While waiting to communicate with counsel, none of the officers questioned or solicited statements from the petitioners. For that matter, none of the petitioners made incriminating statement of any kind to the officers charged with the task of ferrying them to the police station. In the end, statements were made to the investigators in the afternoon following their arrest—by that time, all of them had exercised their right to counsel.

In sum, no harm, no foul. [ 9 ] With respect to the allegations of arbitrary detention, Crown counsel argued that the totality of the circumstances known to the police at the time of the intervention justified detaining the petitioners—at least momentarily—while obtaining more information about the altercation. In evaluating the reasonableness of the intervention, Crown counsel insisted that the circumstances are to be viewed through the eyes of the reasonable and prudent officer on the scene who must react to events as they unfold.

In this case, the officers quickly reacted to information that the instigators of the fight were walking northbound on Ann Street. Fearing that the suspects (petitioners) were fleeing the scene, the officers quickly proceeded to intercept them. [ 10 ] Unfortunately, the initial detention for the purposes of investigation quickly soured when one of the petitioners (Dylan Shawn Martell) refused to comply with the police orders to stop.

Eventually, force had to be used to control, detain and arrest all the petitioners. [ 11 ] While the petitioners will claim that the force used was excessive, Crown counsel will argue that it was necessary under the circumstances. Here, too, Crown counsel will insist that the standard for reasonableness must allow for the fact that police officers are often asked to make split-second decisions under tense, uncertain and rapidly evolving circumstances. In the present matter, the officers had to ward off an imminent attack from one of the petitioners (Dylan Shawn Martell).

Efforts to control and handcuff the petitioner proved difficult and required the use of physical force and a short burst of pepper spray. [ 12 ] The said physical confrontation, however, did not sit well with the other petitioners. One of them, Shawn Gerard Martell, kicked the officer (Sergeant Michon) while he was walking to the police cruiser with Dylan Shawn Martell in handcuffs. Even when handcuffed and restrained by two other officers, Shawn Gerard Martell wanted to get at the officer who arrested Dylan Shawn Martell.

According to the evidence, Dylan Shawn Martell is Shawn Gerard Martell’s son. [ 13 ] With respect to the physical evidence gathered by the police (photos and forensic analysis of the clothing they wore), Crown counsel argued that it was obtained pursuant to a validly issued telewarrant. Notwithstanding comments that may be construed as narrative or conclusory, the ITO contained sufficient information to justify the issuing of a telewarrant. In this regard, the facts and reasons justifying the issuance of the warrant were rather simple: Firstly, the petitioners were pointed out as instigators of the brawl.

Secondly, blood stains on their hands and clothing (along with injuries to the hand of one them) strongly suggested that they were involved in the fight. On the authority of the leading decisions of Garofoli , [2] Araujo, [3] and Morelli, [4] Crown counsel correctly noted that the issue is whether the authorizing judge could have issued the warrant on the basis of the sworn ITO. [ 14 ] Even allowing (for the sake of argument) that the warrant was issued on insufficient grounds, Crown counsel’s position was that the exclusion of the evidence was not warranted on a section 24(2) Charter a nalysis.

Firstly, the forensic evidence yielded from the seizure of the clothes was inherently reliable and valuable to the case against the petitioners. More particularly, the DNA evidence of the blood stains on the petitioners’ clothing matched the DNA of the alleged victims. When balancing all the relevant factors, the admission of such reliable and valuable evidence would not bring the administration of justice into disrepute.

Quite the contrary, when one considers society’s greater interest in trying this case on its merits, the reputation of our judicial system would only be tarnished by excluding the said evidence. [ 15 ] Always on a section 24(2) analysis (and always for argument's sake), it could not be said that the affiant’s disregard for Charter rights was so egregious that the Court has to disassociate itself from the alleged misconduct. At all times, the investigator (who was also the affiant) acted in good faith.

Criticism relating to the use of narrative or conclusory statements aside, the ITO contained no misleading or false information. Moreover, can one really blame the investigator for wanting to seize evidence that was clearly observable to anyone and which could reasonably serve to corroborate the petitioners’ involvement in the crime? 2 . The facts 2.1 Preliminary remarks on the evidence heard at the application stage

[ 16 ] It should be noted that petitioners did not testify in support of their application.

The only evidence heard was that of the police officers involved in this case, namely: - The officers who first set off to detain the petitioners for questioning regarding their involvement in a brawl (Sergeants Michon and Giguère); - The first set of officers who arrived on the scene as back-up to the arrest (Constables Henry and Girard); - The officers called to transport the petitioners to the police station for booking; - The officers who were involved, one way or another, with helping one or more of the petitioners communicate with counsel while at the police station; - The officers who were tasked with guarding the petitioner, Shawn Gerard Martell, while he was in the hospital to treat his injured hand; and - The investigator, DS Pavlos Bitzakidis, who drafted the ITO for the telewarrant authorizing him to take pictures of the petitioners’ injuries and bloodstained clothing. [ 17 ] The want of testimonial evidence from the petitioners will have some bearing on the merits of certain claims made by the petitioners.

In both their written applications and in their oral arguments, for instance, the petitioners referenced the laconic nature of their conversations with duty counsel in order to buttress the claim of a violation to their

section 10(

b) Charter rights. In one instance, it appears that the contact with duty counsel lasted a mere 30 seconds. The inference, of course, was that an abbreviated consultation was wholly inadequate to apprise the petitioners of their rights or to convey to them the extent of their peril. Without the testimony of the petitioners, however, I have no idea of why the conference with the attorney was so short or why it may have been inadequate. Under the circumstances, it is improper for me to speculate as to the adequacy of the advice given by duty counsel to the petitioners.

The evidence, however, does show that they only made statements much later in the day after having had the opportunity to speak with counsel. [ 18 ] In the same vein, oral arguments for the petitioner, Shawn Gerard Martell, belaboured the fact that he was not allowed to consult with an attorney while awaiting treatment for his injured hand at a hospital emergency room. As we shall see in the next section, officers refused to let him make a call to an attorney identified only as «Max» at a number that had a Nova Scotia area code.

Essentially, permission was refused as the number and the name did not correspond to that of a practicing attorney. It was argued, however, that the petitioner wanted to call the said number in order to speak to his wife who, in turn, would give him (or the officers) the number of an attorney in Montreal who went by the name of «Max». However, without the testimony of the petitioner, I can only speculate as to why the petitioner wanted to make that phone call. [ 19 ] What is more, there is nothing in the evidence to show that the petitioner—while at the hospital—wanted to communicate with another attorney.

However, there is nothing to suggest that the officers guarding him pressed a telephone book to his face (in the figurative sense) and encouraged him to communicate with local counsel or with duty counsel. I do, however, have the testimony of one officer who emphatically insisted that he would have accommodated the petitioner had he made such a request. 2.2 Outline of the facts [ 20 ] Sergeants Michon and Giguère testified that around 3:15 a.m. they were dispatched to a brawl outside of the New City Gas Bar located on the corner of Ottawa and Ann Streets.

When they arrived at the scene, they recounted seeing three or four white males with bloodied faces standing near an adjacent sidewalk—no doubt the alleged victims of the assault. Within seconds, employees of the bar came up to them (Sgts Michon and Giguère) and pointed to four individuals (the petitioners) some 80 to 100 metres away as being the instigators of the fight. [ 21 ] The officers wasted no time in intercepting the group of four men. From the very start, however, their efforts to control the group were tenuous at best.

The situation quickly degenerated when one member of the group (Dylan Shawn Martell) appeared ready to engage one of the officers (Sergeant Giguère) in a fight. Subduing the belligerent suspect [5] required the considerable use of police force. A kick by Sergeant Giguère to the thigh of the suspect proved ineffective—in fact, it only made him more aggressive. Stepping in to prevent an imminent assault on his partner, Sergeant Michon eventually succeeded in taking down the suspect and handcuffing him. The latter, however, did not go down without putting up a significant struggle.

In order to avoid coming to blows, Sergeant Michon had to apply a short burst of capsicum spray to the petitioner’s face. [ 22 ] The physical confrontation between the officer and the belligerent suspect had a ripple effect among the other three suspects who, until then, were haphazardly complying with the officers’ orders to stand still and face the wall with their hands up. One of them (Shawn Gerard Martell) was particularly upset by the manner in which his son (Dylan Shawn Martell) was being «manhandled» and brought down by Sergeant Michon.

According to the evidence he was not only lashing out verbally at the sergeant, but also bent on going after him physically. Restraining him required the intervention of two officers (Constables Girard and Henry) who had just arrived on the scene in support of the two sergeants. Subduing Shawn Gerard Martell also required a burst of pepper spray to the face. [ 23 ] Another suspect, Brian James Bremner, showed signs of wanting to get involved in the melee and had to be physically restrained by Sergeant Giguère. Though warned several times that he’d be pepper sprayed if he failed to stay put, Mr.

Bremner continued to struggle. As with the others, a dose of pepper spray weakened his resistance and assured his compliance. [ 24 ] At first, the grounds for arrest were limited to charges of obstructing and assaulting a peace officer. As there was no issue with their identification and addresses, the usual procedure for individuals charged with such offences is to release them on a promise to appear or a summons to appear. The suspects, however, were being held whilst awaiting for the results of the investigation regarding the initial brawl outside of the New City Gas Bar.

[ 25 ] Eventually, the police investigation (which included the viewing of video footage taken by a bystander) confirmed that the four suspects were involved in the brawl. More still, it appeared from the video that one of the suspects wearing a white t-shirt (Dylan Shawn Martell) had kicked a man in the head while he was lying helpless on the ground.

Apprised of the new developments, Sergeants Michon and Giguere re-arrested the four men for aggravated assault and reiterated to them their constitutional rights. [ 26 ] Though the situation was now under control, the petitioners languished in different police vehicles for some 30 to 50 minutes before being transported to the police station.

During this time, they were never afforded the opportunity of calling an attorney. [ 27 ] Though it took but a few minutes to get to the station, a long line of police cruisers waiting to gain access to the garage entrance added an extra half hour or so to the booking procedure. By all accounts, it was a busy night at the detachment. Despite the wait, none of the petitioners were given the possibility of calling an attorney. [ 28 ] In the case of Shawn Gerard Martell, the wait at the station’s garage took a different turn when he began complaining of severe pain to his hand.

Seeing that the petitioner’s hand was visibly swollen and bloodied, the officers in charge of his transport (Constables Girard and Henry) called the desk sergeant (Sgt. Tremblay) for further instructions. Upon the latter’s instructions, the petitioner was then transported to the closest hospital—which just happened to be located but a few minutes away. [ 29 ] Arriving the emergency room shortly after 5h00, Constables Girard and Henry were with the petitioner at all times (which included the initial consultation with the triage nurse and the time spent waiting to see the doctor).

During this time, the officers offered the petitioner the possibility of communicating with counsel, but he declined. According to the officers, he was principally concerned by the condition of his injured hand. [ 30 ] At 6h35, Constables Girard and Henry were relieved by a second group of officers (Constables Dessureault and Barbe). Not unlike the first pair of officers, they also kept a watchful eye on the petitioner. When he was sent for an X-ray exam, they followed him to the door of the X-ray room, but never entered.

When he consulted with the doctor on duty, they stood aside and discreetly observed him from the door frame of the examination room. Though mindful that the consultation between the petitioner and the attending physician is a private matter, they could not help but overhear the latter tell the former that the hand was broken. [ 31 ] It’s while Shawn Gerald Martell was in the custody of this second group of officers that he asked to make a phone call.

After being informed by Constable Dessureault that only calls to an attorney were permitted, the petitioner—after hesitating for a moment— stated that the name of his attorney was «Max» and then proceeded to give him his telephone number: 902-XXX-XXXX. [ 32 ] Given that the area code was for a telephone number in Halifax, Nova Scotia, the officer had his suspicions about whether or not the number given to him corresponded to an attorney who went by the name of «Max». A quick check on the internet revealed no matches for the attorney and the number in question.

When questioned further about the identity of the attorney, the petitioner appeared hesitant and evasive in the answers he gave. Convinced that the number given to him was not that of an attorney, the officer did not allow the suspect to make the requested phone call. [ 33 ] From the evidence, it does not appear that the petitioner made further requests to call his attorney (Max) or any other attorney.

It must be said, however, that nether one of the officers offered him the possibility of consulting with another lawyer or with duty counsel. [ 34 ] At around 7h24 another duo of officers (Carlucci and Vigneault-Edwards) were tasked with guarding the petitioner. More particularly, they’re with him in an examination room whilst waiting for the specialist to arrive (the physician on duty had called for a hand specialist to look at the petitioner’s injuries). When the specialist finally arrived at 8:40, they discretely retreated to the doorframe of the examination room.

Concerns for patient privacy aside, the specialist informed them that he could not operate on the petitioner’s hand on account of the severity of the injury he sustained. At 8h52, the petitioner was discharged from the hospital with only prescription medication to assuage the pain. [ 35 ] Before the specialist had arrived, it should be noted that Constable Carlucci had been instructed by one of the investigators [6] to seize the petitioner’s clothing.

According to her report, the clothes were placed in a plastic bag and contained the following items: a pair of shoes, a pair of blue jeans and a beige coloured sweater. [ 36 ] The petitioner and the officers guarding him left the hospital and arrived at the police station around 9:03. Shortly thereafter, the petitioner stated that he wanted to speak with his attorney. However, he doesn’t have the coordinates of his counsel and informs the booking officers that his wife has all the information.

A note in the booking report at 9h17 simply indicates that «the suspect’s wife will call back with information regarding the lawyer. » [7] [ 37 ] Finally, it’s sometime between 11h30 and 11h39 that the petitioner manages to speak with duty counsel, Me Maria Vivas.

Unfortunately, the booking sheets are not the best example of clarity when it comes to the duration of the consultation—it either lasted some 30 seconds according to counsel for the petitioner or a little over nine minutes according to Crown counsel. [ 38 ] As for the petitioner, Brian James Bremner, he too had difficulties conferring with counsel without delay. At 5h14, just a few minutes after the booking procedure at the station, an officer left a message on the answering machine of the petitioner’s attorney of choice, Me Maximilien Briand.

However, it’s only at 11h20—over five hours later—that he gets to speak with duty counsel, Me Maria Vivas, for some 11 minutes. Several hours later, at 16h11, while waiting to be interrogated, he finally gets to speak with Me Maximilien Briand. [ 39 ] As for Dylan Shawn Martell, the evidence is to the effect that he spoke to an attorney at 4h18, Me Berbelli. Some seven hours later—circa 11h30—he spoke with another attorney, Me Maria Vivas. At 16h41, he is interrogated by an investigator and makes a statement. 3.

Methodology: One issue and one petitioner at a time 3.1 Preliminary comments (score card of alleged police errors)

[ 40 ] From the perspective of the petitioners, the police in the present matter were no better than the fictional Keystone cops—they did nothing right from start to finish.

Summarily, the laundry list of alleged police errors and alleged violations of the petitioners’ Charter rights reads as follows: • A baseless detention for investigative purposes; The claim being that the police didn’t have the requisite reasonable suspicions to detain the petitioners for questioning. • An abuse of police force in the arrest of the petitioners; The petitioners claimed that they presented no threat to the police and that the latter’s use of physical force and capsicum spray to arrest them was unjustified and disproportional to the situation at hand. • Delay in the exercise of petitioners’ right to counsel; Though arrested and apprised of their rights sometime between 3h20 and 3h30, they only got to speak to counsel several hours later.

And even then, they did not always get to speak to counsel of their choice. • Submitting a deficient or defective affidavit (ITO) in support of a telewarrant authorizing the taking of photographs depicting what appeared to be blood stains on the petitioners’ clothing and on their persons and injuries compatible with involvement in a fight; • Executing the said telewarrant without an additional caution for the petitioners to consult with an attorney; • Seizing the petitioners’ clothing without a warrant; • Failing to assist the petitioner, Shawn Gerard Martell, in communicating with an attorney while he was at the hospital; • Failing to respect Shawn Gerard Martell’s right to privacy at the hospital by gathering information relating to his medical situation. [ 41 ] In their oral pleadings, attorneys for the petitioners argued that the said breaches were not mere incidents of isolated errors in judgment, but rather, part of a larger pattern of disregard or indifference to their clients’ Charter protected rights.

It would be wrong, therefore, to analyze the alleged Charter violations in a piecemeal manner. Instead, the full impact of the breaches are best appreciated when viewed as a continuous pattern of police conduct in which no regard is given to the rights of the accused and the limitations of police power in a free and democratic society. [ 42 ] For the petitioners, the pattern of police misconduct is especially relevant to a section 24(2) Charter inquiry.

More particularly, the sustained pattern of police misconduct requires that the Court disassociate itself from it by ordering the exclusion of the evidence obtained as a result of that pattern of conduct. 3.2. The situation of each applicant must be examined individually [ 43 ] In a general manner, the allegations of police conduct mentioned above constitute the basis for each of the petitioner’s application for suppression of evidence. This being said, the facts underlying each application are not exactly similar.

There are differences, for instance, in the time frame in which certain petitioners were able to access counsel. There were also differences in which the individual petitioners were aided (or not) by the police in facilitating their right to confer with counsel of their choice. [ 44 ] There are also privacy claims that have to be analyzed differently for each individual petitioner.

While all of them claim, for instance, that the seizure of the clothing at the police station was obtained illegally, the case for Shawn Gerard Martell has one added wrinkle—his privacy rights (it is alleged) were violated while in a hospital setting. [ 45 ] The allegations of police violence and the unjustified use of force also varies for each petitioner. When it appeared that the petitioner, Dylan Shawn Martell was about to assault Sergeant Giguère, the latter quickly landed a preemptive kick to the thigh of his would-be assailant.

Then, when the kick proved ineffective, Sergeant Michon had to intervene in order to subdue the petitioner. This included grabbing the petitioner by the scruff of his collar, holding him down while straddled on top of him, applying a choke hold (with the crook of his arm around the petitioner’s neck) and, ultimately, having to resort to applying a burst of pepper spray to his face. By contrast, controlling the other petitioners was physically less arduous, though pepper spray also had to be used. [ 46 ] In short, assessing the alleged Charter violations requires that I examine the case for each petitioner.

The devil is in the details. [ 47 ] For the sake of convenience, I will proceed with general comments on the nature of the violations complained of and then assess the claims for each of the petitioners individually. In the event that I find that a Charter right has been violated, I will then proceed to a s. 24(2) analysis to determine if the evidence should be suppressed or not. [ 48 ] Let there be no mistake, I am mindful of the petitioners’ claim regarding the cumulative effect of the alleged violations when it comes to the s. 24(2) analysis.

My approach—assessing each violation separately—is merely for the sake of presentation or convenience. In any case, my conclusions on the alleged rights violations renders a cumulative approach to a s. 24(2) analysis superfluous (I guess I’ve given the ending away). 4. First issue: were the petitioners’

section 9 Charter rights violated? 4.1 The concept of detention for the purposes of investigation [ 49 ]

Section 9 of the Charter guarantees that « [e]veryone has the right not to be arbitrarily detained or imprisoned. »

[ 50 ] Any deprivation of liberty is a detention. A detention, however, is only «arbitrary» (and contrary to the s. 9 of the Charte

r) where it «bears no relation to, or is inconsistent with the law which founds the state action» under statute or common law. [8] Consequently, an investigative detention that is carried out in accordance with the common law power will not infringe on a detainee’s rights under the s. 9 of the Charter . [9] [ 51 ] In the seminal decision of R. v. Mann [10] , the Court held that a brief investigative detention based upon « reasonable grounds to detain » may be lawful as a part of police common law powers to preserve the peace and prevent crime. Such powers, however, are not without limits.

In assessing the legal significance of the police action, Justice Iacobucci, writing for the majority of the Court, adopted a two-point inquiry test set out in the English case of R. v. Waterfield .

Firstly, it must be demonstrated that the officers were acting in the exercise of a lawful duty, including, at common law, «the preservation of the peace, the prevention of crime, and the protection of life and property.» [11] Secondly, their conduct must amount to a justifiable use of the police powers associated with that duty. [12] [ 52 ] Under the second prong of the Waterfield test, determining whether an investigative detention is lawful is one of reasonable suspicion . [13] Whether or not reasonable suspicion attaches to certain conduct or circumstances is a factual question.

In evaluating reasonable suspicion, the investigating officer must have had before him specific, articulable facts that, when coupled with any rational inferences that may be drawn from those facts, warrant the investigation . Idle wondering or a mere hunch about criminal activity afoot is insufficient to justify a detention for investigative purposes. [ 53 ] In Mann, Justice Iacobucci quoted with approval the definition of «articulable cause» given by Justice Doherty in R. v.

Simpson [14] : «… a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation. » [15] Though Justice Iacobucci stated that he preferred to use the term « reasonable grounds» to detain rather than the U.S. phrase «articulable cause», both terms are functionally equivalent. [ 54 ] From the said definition, one understands that there must be a rational or reasonable connection between the supporting material and the officer’s suspicion to detain for investigative purposes.

«Reasonable suspicion» is not arbitrary. Instead, it must be based on evidence that has some probative value. Once again, mere curiosity, idle wondering or some inchoate speculation about the existence of such evidence cannot provide the basis for a «reasonable suspicion» to detain. [ 55 ] The requirement of a «reasonable suspicion» entails satisfaction both that the police officer held the suspicion at the time he or she decided to proceed with a detention (for investigative purposes) and that the suspicion was objectively reasonable given the facts and circumstances then known to the officer.

Said differently, the police officer must not only suspect but «reasonably suspect» that the detainee is involved in criminal activity. The evaluation of the reasonableness of the suspicion must consider the totality of the evidence.

Also it must take into consideration the context and the purpose of the police powers along with the civil liberties abrogated by their exercise. [ 56 ] The guiding principles governing the use of police power to detain individuals for investigative purposes were described as follows in Mann : [34] [....] The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.

Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield [ R. v.

Waterfield , [1963] 3 All E.R. 659 ] test. [45] To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner.

In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case. [ 57 ] Subsequent decisions from the Supreme Court have reaffirmed the legitimacy of detaining an individual on the basis of reasonable suspicion that he or she is involved in criminal activity [16] .

Just as importantly, the objective, fact-based test—which takes into consideration «the totality of the circumstances» or the whole picture—for assessing the reasonableness of the officer’s suspicion has not been modified. Notably, in R. v. Chehil, [17] the Court stated that [29] Reasonable suspicion must be assessed against the totality of the circumstances . The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation.

This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience: see R. v. Bramley , 2009 SKCA 49 , 324 Sask. R. 286, at para. 60 .

A police officer’s grounds for reasonable suspicion cannot be assessed in isolation: see Monney , at para. 50. [Emphasis added] [ 58 ] As was the case in Mann, the Court in Chehil stated that the officer had to point to specific and articulable facts which, taken together, logically support the inference that the detainee is involved in criminal behaviour: [46] Rigorous judicial scrutiny is an independent review that ensures that the suspicion relied on by the police is supported by factors that are objectively ascertainable, meaning that the suspicion is based on “factual elements which can be adduced in evidence and permit an independent judicial assessment”: P.

Sankoff and S. Perrault, “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123 , at p. 125 . The constellation of facts must be based in the evidence, tied to the individual, and capable of supporting a

logical inference of criminal behaviour. If the link between the constellation and criminality cannot be established by way of a logicalinference, the Crown must lead evidence to connect the circumstances to criminality. This evidence may be empirical or statistical, or itmay be based upon the investigating officer’s training and experience. [Emphasis added] [59] A consideration of all the circumstances may allow for inferences other than «reasonable suspicion» to detain an individual.

Asthe Court explained in Chehil: [32] Further, reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Much asthe seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to areasonable suspicion may also support completely innocent explanations.

This is acceptable, as the reasonable suspicion standardaddresses the possibility of uncovering criminality, and not a probability of doing [60] Further, a reasonable suspicion—predicated upon the totality of the evidence—must be sufficiently particularized, and notamount merely to a generalized suspicion that would include too many presumably innocent persons within its scope.[18] For thisreason, factors that apply broadly to innocent people and those that may «go both ways», cannot, on their own, support a reasonablesuspicion:[19] [33] Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors.

The totality of thecircumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regardingreasonable suspicion. As Doherty J.A. found in R. v. Golub (1997), (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 751,“[t]he officer must take into account all information available to him and is entitled to disregard only information which he has goodreason to believe is unreliable”. This is self-evident.[20] [61] The reasonableness inquiry has to include some «latitude for honest mistakes».

Allowance for such errors is inherent in theCourt’s comments in Chehil holding that the « reasonableness standard » is based in possibilities rather than probabilities.[21] Allowingfor possibilities—rather than probabilities—necessarily means that in some cases the police will reasonably suspect innocent people ofbeing involved in crime.[22] [62] Also, an assessment of the officers’ decision to detain must take into account the «pressure of events» and the «agony of themoment» and not by reference to hindsight.

Unlike legal technicians who have the luxury of dissecting each and every move or decisionmade by the officer in the relative calm of the courtroom, the reality of police work often entails making quick decisions in emergencysituations and under pressure. In R. v. Kephart, 1988 ABCA 325 (warrantless entry of a dwelling by police officers), the Courthighlighted the problem with the retrospective criticism of what a police officer might or might not have done in an emergency situationas follows: [10] Police must make choices, wrenching choices, with little time to consult or reflect before they are taken.

They are heavily criticizedwhen they are wrong. They are frequently criticized even when they are legally correct but hindsight and fresh facts suggest alternativesto force or arrest. No informed citizen would see a firm police response in an emergent, life-threatening situation, such as a hostage-taking, denied or even delayed by the absence of a handy legal precedent. And, in Blackstone’s phrase, the Court should not look withEagle-Eyes to spy out variances with the statutes in such cases. The law does not ignore the occasion and the demands under which thechoice was forced.

Where a police officer perceives or believes that a serious offence has or is being committed, or is about to becommitted, his belief and his response will prevail even if they should be proved incorrect later. R. v. Biron (1975) (SCC), 23 C.C.C. (2d) 513 (S.C.C.); even if he is sued; Shuck v. Stewart (BC SC), [1978] 5 W.W.R. 279; Campbell v.Hudyma et al. 1985 ABCA 286 , [1986] 2 W.W.R. 444. But, equally, the law will closely review those same perceived facts todetermine if they disclose a justification.

Most frequently it is a justification for the use of force but the standard of review is no lessstringent when a case for the warrantless entry of a dwelling house is offered. [63] In the same vein, our Court of Appeal in R. c. Bilodeau, (QC CA) (investigative detention / interception ofvehicle) stated that: [56] […] [O]n doit déterminer le caractère raisonnable des motifs en se plaçant dans les circonstances de temps, de lieu et d'urgenceauxquels sont confrontés les policiers et non par une analyse sophistiquée que permet le recul du temps. [64] In R. v.

Cornell, 2010 SCC 31 (whether a lawfully authorized search involving dynamic entry into accused’s residence wasconducted reasonably), the Court held that the justification for the officers’ conduct has to be based on what was known or reasonablycapable of being known by them at the relevant time: : [23] First, the decision by the police must be judged by what was or should reasonably have been known to them at the time, not in lightof how things turned out to be.

Just as the Crown cannot rely on after-the-fact justifications for the search, the decision about how toconduct it cannot be attacked on the basis of circumstances that were not reasonably known to the police at the time: R. v.DeWolfe, 2007 NSCA 79, 256 N.S.R. (2d) 221, at para. 46. Whether there existed reasonable grounds for concern about safety ordestruction of evidence must not be viewed “through the ‘lens of hindsight’”: Crampton v. Walton, 2005 ABCA 81, 40 Alta.

L.R. (4th)28, at para. 45. [24] Second, the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannotbe expected to measure in advance with nuanced precision the amount of force the situation will require: R. v.Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 73; Crampton, at para. 45. It is often said of security measures that, ifsomething happens, the measures were inadequate but that if nothing happens, they were excessive.

These sorts of after-the-factassessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment indifficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is toappropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Mondaymorning quarterback. . .

[Emphasis added] [ 65 ] In short, the reasonable suspicion standard has to be assessed in light of operational requirements. While an officer has to consider all the relevant facts in justifying a detention for the purposes of investigation, there will be circumstances where he or she need not search round in order to negative his or her suspicions or to negative the allegations of the suspect.

In certain exigent circumstances, officers dispatched to the scene may not have the luxury of conducting a complete investigation (i.e. interviewing witnesses and taking depositions) before deciding on whether or not to proceed with the arrest of a suspect.

Instead, exigent circumstances—such as suspects appearing to be fleeing the scene of a chaotic brawl—call for quick action in the form of a brief detention for the purposes of investigation. 4.3 Justification for the lower standard of «reasonable suspicion» to detain [ 66 ] Obviously, the «articulable cause» or «reasonable suspicions» grounds for an investigative detention establishes a lower and more flexible standard than that of arrest without warrant at s. 495 of the Cr.

Code —which is based on reasonable and probable grounds. [23] The greater flexibility of the «articulable cause» standard is justified in the context of police duties under common law to preserve the peace, prevent crime and protect life and liberty.

The less exacting requirement of the standard is a recognition of the difficulties facing police officers who often have to make difficult judgments in haste. [ 67 ] On the other hand, the greater flexibility afforded by the reasonable suspicion standard cannot be so generalized so as to give officers carte blanche to detain suspects on the basis of some vague or indiscriminate suspicion.

The suspicion must be sufficiently particularized, and not amount merely to a generalized suspicion that would include too many presumably innocent persons within its purview. [ 68 ] Ultimately, one must examine the duty being performed by the police, the extent to which some interference with individual liberty is necessitated, the importance of that duty to the public good, the liberty interfered with and the nature and extent of the interference. [24] 4.4 Application of the principles governing police power to detain individuals for investigative purposes to the case at bar [ 69 ] As mentioned above, the petitioners maintain that the officers (Sergeants Michon and Giguère) did not have reasonable grounds to detain them, but rather were acting on a hunch.

For them, the specific articulable facts cited by the officers were scant at best, and certainly insufficient to lead a reasonable person to believe that the petitioners were engaged in a criminal act. In what could be termed as a «rush to judgment», the officers simply acted on the say-so of two bar employees who pointed to four suspects (the petitioners) as the instigators of the brawl. Neither one of the officers bothered to substantiate the said information with a few follow-up questions that could have buttressed the grounds for an investigative detention.

For instance, they should have asked the employees if they had witnessed the brawl or if they were simply recounting what was told to them by bystanders or patrons of the bar. Instead, they quickly went after the petitioners with a view of detaining them despite the want of «reasonable suspicion» to do so. [ 70 ] For that matter, the petitioners took issue with the officers’ claim that their primary objective was to detain the petitioners for the purposes of investigation.

More particularly, they pointed to the fact that the police wasted no time in using strong-arm tactics to assure their compliance, submission and eventual arrest. The use of force, they argued, was more akin to a de facto arrest than a brief detention for investigative purposes. Moreover, the force used by the officers was excessive and totally unnecessary to assure their compliance. [ 71 ] An assessment of the reasonableness behind the officers’ decision to detain requires an examination of the totality of the circumstances.

Most importantly, one has to examine the investigative information available to the police at the moment of their intervention.

In point form, the said information could be summed up as follows: • At around 3h15, they received a radio dispatch to the effect that a brawl involving some 20 people was taking place outside of the New City Gas Bar; • Arriving at the scene in less than two minutes, they noticed a large crowd of people in front of the bar (the officers added that the scene was rather chaotic); • Thereat, they noticed three or four white males with bloodied faces; • Almost immediately upon disembarking from their cruiser, two of the bar employees pointed to a group of four men walking north on Ann Street as being the instigators of the brawl; one (or perhaps two of the men) was bare-chested; • At that moment, the four suspects [25] were some 80 to 100 metres away from the bar and quite close to William Street, which runs from West to East; • Ann Street, however, stops at William (northbound).

Beyond that point, the suspects could only walk east or West on William. The configuration of the streets was a fact well known to the officers; • When the suspects saw the patrol car, they immediately changed path and appeared to be heading south on Shannon Street; • Walking on Shannon Street, however, would take the suspects back to the scene of the brawl. [ 72 ] For the following reasons, I am of the view that the officers had more than enough grounds to detain the petitioners for questioning:

-The information given to them was particular enough to warrant the intervention [ 73 ] The information given to the police was not from an «unknown caller» at an «unknown location», but rather by two bar employees at an active crime scene who spoke face to face with the police officers. Moreover, the suspects were pointed out as being the «instigators» of the brawl. [ 74 ] We are not confronted, here, with a dragnet operation where the police were indiscriminately questioning and stopping everyone on the streets.

Common sense dictates that the police should—at the very least—detain for questioning the four individuals that were pointed out to them. —Want of further inquiry is explained by exigent circumstances [ 75 ] As the petitioners have it, the officers were remiss in their duties for failing to get additional information before chasing after the suspects. In the absence of such information, the officers cannot be said to have articulable cause or reasonable suspicion to justify a detention. [ 76 ] With respect, I cannot accept that the situation called for further inquiry.

To begin, the information pointing to the petitioners’ involvement in the brawl was specific enough and warranted a quick intervention. [ 77 ] Next, quick action was justified by the fact the petitioners appeared to be fleeing the scene of the crime. Surely, the police could not be faulted for chasing after the petitioners rather than wasting precious time interrogating witnesses and taking their depositions. At that moment, their duty to protect life and prevent crime called for a quick detention of the petitioners for investigative purposes.

Questions with respect to who started the fight or why the employees of the bar pointed to the four petitioners as the instigators of the brawl could wait. [ 78 ] What is more, one has to keep in mind that officers have to react quickly to a myriad of events as they unfold without the benefit of hindsight. Under the circumstances of this case, Monday-morning quarterbacking is uncalled for and blatantly unfair. If the police act too quickly, they are faulted for having decided to arrest without conducting an inquiry.

On the other hand, they would have been heavily criticized had the petitioners made a get-a-way on account of the time it would have taken to interview all the witnesses. Damned if you do, damned if you don’t. —Indications that they were attempting to flee [ 79 ] In the present case, the police had reason to suspect that the petitioners were fleeing from a crime scene.

In point form, the reasons are as follows: • Firstly, they (the petitioners) were seen walking away from the bar, heading northbound on Ann Street; • Secondly, they abruptly changed direction when they saw the police cruiser coming their way (at that time they were walking on William Street) • Thirdly, the change in direction made no sense.

As mentioned earlier, they immediately turned to walk southbound on Shannon Street—a path that would only take them back to the scene of the crime. [ 80 ] The fact that one of the petitioners (Dylan Shawn Martell) continued to walk away when ordered by the police to stop is an additional factor that confirms the reasonableness of the detention for investigative purposes.

But this is mere surplusage; by the time the officers got out of their car to intercept the petitioners, they already had reasonable grounds to suspect that they were involved in criminal behaviour. —Police did not conduct a de facto arrest (despite the use of force and despite the nature of the initial order to stop—«hands on the wall» [ 81 ] The looser standard of «reasonable suspicion» to stop a citizen can easily lend itself to abuse of police powers (including arbitrary and oppressive detention ).

Consequently, judges must be acutely conscious of the need to evaluate the reasonableness of the officer’s decision to detain someone for investigative purposes. [ 82 ] The said potential for abuse also mandates limiting the scope of the police action.

Thus, the police duty to investigate crime does not empower them to undertake any and all action in exercise of that duty. [26] As Justice Iacobucci explained in Mann, the detention contemplated by an investigative detention cannot interfere with individual liberty to the extent contemplated by a full arrest: [35] While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order.

Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain.

The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest. [Emphasis added] [ 83 ] The duration and nature of a detention justified as an investigative detention must be tailored to the investigative purpose of the detention and the circumstances in which the detention occurs. [27] [ 84 ] In the present case, the petitioners have argued that the interference with their liberty was akin to a de facto arrest rather than a stop for investigative purposes.

While a suspect would be asked to merely stop and answer some questions, the petitioners, on the other hand, were ordered to stop and face the wall with their hands up—just like an ordinary arrest .

[ 85 ] Moreover, the excessive force used by the police to arrest them was inconsistent with an investigating detention. According to the petitioners’ take on the facts, they were kicked, choked, wrestled to the ground and pepper sprayed by the officers before any questions were asked of them. The only real investigation regarding the brawl occurred after the petitioners were all handcuffed and seated in the back of a police cruiser. Placing the proverbial cart before the bull, the officers were at fault for having arrested first and asked questions later.

Compounding the fault, was the brutal nature of the arrest. [ 86 ] For the petitioners, there was not the slightest iota of truth in the officers’ claims to the effect that the initial order to stop was for investigative purposes. Their testimony in that sense was nothing more than a «cover-up». In short, a made-up story intended to give an air of legitimacy to an illegal and abusive arrest. [ 87 ] For the following reasons, I cannot agree with the petitioners’ position that from the very start of the officers’ intervention they were subjected to a de facto arrest rather than a stop for investigative purposes.

To begin, their position fails to consider that an investigative detention has to be tailored to the investigative purpose of the detention and the circumstances in which the detention occurs. In the present matter, officers intercepted suspects who were involved in a bloody brawl and who appeared to be fleeing the scene of the crime. Not without concern, the officers were outnumbered, two against four. [28] Perhaps other officers would have used a kinder and gentler approach: «Sorry to bother you lads, but would you mind stopping for a short while and answer a few questions. »

But under the circumstances known to the police at the time of the intervention, one can’t blame them for forcefully impressing upon the suspects—in no uncertain terms—that the order to stop and obey was not negotiable. Now was not the time to ask gently, but rather the time to take control of individuals they reasonably suspected were involved in a violent brawl and appeared to be absconding from the crime scene. [ 88 ] Next, an examination of all the facts does not support the position that the police immediately resorted to brute force (including the use of pepper spray) to detain the petitioners.

Rather, the evidence is consistent with the use of force when it appeared that one of the petitioners (Dylan Shawn Martell) was about to assault Sergeant Giguère. Eventually, containing and controlling the whole group required both physical force and the use of pepper spray. [ 89 ] It should be noted that the petitioners’ complaints regarding the premature (and unwarranted) use of police force is not based on their testimony, but on some innocuous contradictions in the testimony of the officers.

While Sergeant Michon, for instance, stated that both he and his partner walked towards the suspects when they disembarked from their vehicle, Sergeant Giguère stated that they ran after the group. [ 90 ] Evidence regarding the rash use of force was also predicated on a liberal

interpretation of some testimonial gaps from the testimony of the officers who came to the aid of Sergeants Michon and Giguère. More particularly, regarding the hurried use of pepper spray, the petitioners attempted to make hay from the following portions of Constable Girard’s testimony: So as I was taking care of Mr. Martell [29] , I saw my partner going after another individual. [30] That individual appeared to be lost. Now that I remember, I forgot to mention that I smelled something like pepper spray. So, I cannot tell you exactly when , what…as I was intervening with Mr.

Martell, I smelled a spicy odour in the air. So I didn’t see exactly who could have used the pepper spray, but the individual coming towards us seemed to be lost and to be suffering from the effects of the pepper spray . [31] [ 91 ] Nothing in the said passage can support the view that the pepper spray was deployed before the petitioners were even stopped. If anything, the context in which the testimony was given supports the view that the pepper spray was used only when matters risked getting out of control.

More particularly, Constable Girard’s observations regarding the «disoriented individual» and «the odour of pepper spray» were made after he explained that he had placed Shawn Gerard Martell in the police cruiser. [ 92 ] Certain portions of the cross-examination are consistent with pepper spray being used just before Constable Girard had decided to contain Shawn Gerard Martell. My attention was drawn towards Mr. Martell …I had the impression that he wanted to direct himself towards one of my colleagues. I know that there’s something going on…there was a conflict. So it would become a physical police intervention.

But where I was, I mean, where I was standing, I was not able to see what was going on exactly…The details. Who was doing what? Q. But at that moment , it’s when you smell the cayenne pepper? A. It would be around that moment . I cannot tell you the exact moment. It was when we were holding Mr. Martel l. [32] [ 93 ] From Constable Girard’s testimony, he and his partner (Constable Henry) were right behind their sergeants when the latter disembarked from their police cruiser to go after the suspects.

However, «that moment» (when pepper spray was used) cannot be construed as any time before Sergeants Michon and Giguère ordered the suspects to stop; and certainly not before the first efforts to control and arrest an aggressive Dylan Shawn Martell. On the contrary, the observations of Constable Girard are logically consistent with the following time line: (

i) Dylan Shawn Martell ignores the initial order to stop and displays signs of wanting to assault Sergeant Giguère; (ii) Sergeant Michon has to intervene physically to foil the impending assault on his colleague;

(iii) Sergeant Michon has to use pepper spray in order to control Dylan Shawn Martell (from the evidence, the latter was forcefully resisting all efforts by the former to cuff him); (iv) Constable Girard has to restrain Shawn Gerard Martell who was bent on going after Sergeant Michon (from the evidence, the said petitioner took objection to the manner in which his son (Dylan Shawn Martell) was being «manhandled» by Sergeant Michon); (

v) And it’s at that point (when Constable Girard is «holding» Shawn Gerard Martell), that he (Constable Girard) detects the odour of pepper spray in the air. [ 94 ] In short, it stands to reason that pepper spray was only deployed after the initial efforts to stop and contain Dylan Shawn Martell had failed. The aforementioned timeline also accounts for the subsequent actions of (

i) Shawn Dylan Martell who wants to intervene on the confrontation pitting his son against Sergeant Michon and (ii) the efforts of Constable Girard to stop Shawn Dylan Martell from intervening. [ 95 ] At the risk of redundancy, it bears repeating that the petitioners chose not to testify and will have to deal with the consequences of that decision in so far as my appreciation of the facts is concerned. Essentially, they hung their hats on minor contradictions and on a very liberal reading of the gaps in some of the officers’ testimonies.

These minor inconsistencies, however, cannot support the view that the officers came out of their vehicle with guns blazing (in the figurative sense). To begin, in a situation where police officers must act quickly and under pressure, one cannot expect picture perfect testimony. The officers are not followed by a play-by-play sports commentator who could describe each and every move they make with surgical precision. [33] Nor can one expect them to take a «timeout» from their intervention, whip out their note pads and faithfully jot down what’s going on.

Asking them to account for all of their moves and the responding moves of the petitioners as if they were watching a movie is simply impossible. Certain inconsistencies are only normal. For that matter, when one considers the exigent circumstances that gave rise to the detention and arrest of the petitioners, lockstep testimony would only give rise to suspicions of collusion. [ 96 ] In short, there is no merit to the petitioners’ claim that the immediate use of force was incompatible with a detention for the purposes of investigation.

Rather, the unfolding of events—which included the aggressive and non-compliant behaviour of one or more of the petitioners—eventually mandated the use of police force. [ 97 ] For the same reasons, I dismiss as baseless the petitioners’ argument that the officers’ testimony regarding the arrest for investigative purposes was nothing more than an after-the-fact «cover up» of an illegal detention. 5. Excessive use of force 5.1 Preliminary remarks [ 98 ] Excessive use of force and unnecessary detention methods can also transform a lawful detention into an arbitrary detention under

section 9 of the Charter . As noted by the Newfoundland and Labrador Court of Appeal in R. v. Squires [34] : [29] […] Generally, subduing and immobilizing by threatening force, handcuffing and placement in a police vehicle will not be necessary to carry out an offence investigation. In most cases, a direction to cease movement, exit a vehicle, keep one’s hands visible and respond to questioning will be sufficient.

Obviously, as the events following the initial interaction with the suspects in Clayton demonstrate, handcuffing and other forms of physical restraint and confinement may be necessary in an investigative detention, but generally that should be the exception rather than the rule. […] [34] […] The use of force such as pointing a weapon, ordering the suspect to the ground, handcuffing and confining in a police vehicle will usually be regarded as a de facto arrest (see, e.g., R. v. Strilec 2010 BCCA 198 , 256 C.C.C. (3d) 403; R. v.

Orr , 2010 BCCA 513 at paras. 10-11 ). [Emphasis added] [ 99 ] In Squires , the police were acting on a tip that a male in a black vehicle had a firearm. Because the accused was cooperative, the police went too far by requiring him to lie on the ground, handcuffing him, and placing him a police vehicle, prior to having reasonable grounds for an arrest: [ 35 ] […] Once the police went beyond a scenario requiring Mr.

Squires to keep his hands visible, exit the vehicle and put his hands on the roof of the vehicle preparatory to, perhaps, a pat down search, and instead used physical restraint, and threats of physical force, they exceeded the bounds of permissible detention and, given the conceded absence of grounds for an actual arrest, caused the resulting detention to become arbitrary. [ 100 ] Nevertheless, the use of handcuffs and/or placing a detainee in a police cruiser will not render the detention arbitrary in every case:

- Pierre Clermont c. R., 2020 QCCQ 3408 (j. Costom), at paras 40-43 (domestic violence suspect previously implicated in a shootinghandcuffed and placed in a police vehicle for 20 minutes before being arrested and taken to station) - Wolfson c. R., 2020 QCCA 856, at para 62 (accused suspected of being a “watchman” detained for investigative purposes andhandcuffed due to lack of cooperation and suspicion he was armed) [101] In the present matter, it is obvious that an investigative detention could not be carried out without restraining one or more of thepetitioners.

In the case of Dylan Shawn Martell, more particularly, there could be no doubt that he wasn’t the least bit interested inhaving a «chat» with the officers. Clearly, he had to be restrained and arrested. [102] As for the other three petitioners, they complied with the first orders to stop and face the wall. Their compliance (described ashaphazard or reluctant by Sergeant Giguère) fell apart during the tussle between Sergeant Michon and Dylan Shawn Martell.

Clearly, theofficers had to resort to some form of physical restraint to carry out their duties. 5.2 Did the police use excessive force in the execution of their duties? [103] Admitting—for the sake of argument—that the officers had to use some force to restrain the petitioners, the latter still maintainthat the force used was excessive, unreasonable, cruel and punitive. Relying on s. 7 of the Charter, the petitioners insisted that the saidsection must encompass freedom from unwarranted physical punishment or suffering at the hands of the state.

Public interest in lawenforcement cannot be allowed to override the fundamental principle that all police officers are subject to the rule of law. Excessive useof force by the police officers, they argued, is a serious breach and warrants the intervention of the Court. [104] Typically, the remedy granted in cases where a s. 7 breach is established is a stay of proceedings under s. 24(1) of the Charter[35], provided the claimant can show it is an appropriate remedy[36].

However, the exclusion of evidence under s. 24(2) remains available.[37] [105] My discussion on the petitioners’ arguments relating to the violation of their s. 7 Charter rights will begin with an overview ofthe applicable legislation governing the use of force by police in the execution of their duties. Then, I will review in some detail thedifferent actions taken by the police to control and arrest the petitioners.

Ultimately, my decision will have to consider whether the policeaction was grossly disproportionate to that required in the circumstances that they were faced with. 5.3 Applicable law regarding use of force by police [106] In R. v. Nasogaluak[38], the Supreme Court confirmed that excessive use of force by a police officer during an arrest couldconstitute a violation of s. 7 of the Charter: [38] […] The substantial interference with Mr. Nasogaluak’s physical and psychological integrity that occurred upon his arrest andsubsequent detention clearly brings this case under the ambit of s. 7 (R. v.

Morgentaler, (SCC), [1988] 1 S.C.R.30; Rodriguez v. British Columbia (Attorney General), (SCC), [1993] 3 S.C.R. 519). The excessive use of force by thepolice officers, compounded by the failure of those same officers to alert their superiors to the extent of the injuries they inflicted on Mr.Nasogaluak and their failure to ensure that he received medical attention, posed a very real threat to Mr. Nasogaluak’s security of theperson that was not in accordance with any principle of fundamental justice.

On that evidence and record, we may assume that there wasa breach of s. 7 and that there was no limit prescribed by law justifying such a breach. The conclusion that s. 25 was breached, in thatexcessive, unnecessary force was used by the police officers at the time of the arrest, confirms it. [107] To establish whether the use of excessive force constitutes a violation of s. 7 of the Charter, the Supreme Court refers to s. 25 ofthe Criminal Code because “[t]he legal constraints on a police officer’s use of force are deeply rooted in our common law tradition and are enshrined in the Criminal Code”[39].

While s. 25 of the Criminal Code is a statutory defence for police officers, according to theSupreme Court, this

section is nonetheless relevant to examine whether the use of force by police officers constitutes a breach of s. 7 ofthe Charter. [108] The burden of proof, based on a balance of probabilities, lies on the person claiming a Charter violation[40]. However, « theCrown has the evidentiary burden of showing that

section 25 of the Code has been met when it relies upon that provision to justify the use of force».[41] [109] Subsection 25(1) of the Criminal Code reads as follows: 25(1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(

a) as a private person, (

b) as a peace officer or public officer, (

c) in aid of a peace officer or public officer, or (

d) by virtue of his office, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose. [ 110 ] Thus, «[s]ection 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances». [42] [ 111 ] The Crown must show that police officers (

i) were required or authorized by law to perform an action in the administration or enforcement of the law, (ii) acted on reasonable grounds in using force, and (iii) used as only as much force as was necessary [43] . [ 112 ] The first element is relatively straightforward.

Essentially, it requires the court to review whether the type of action undertaken by the officer was within the scope of his or her law enforcement duties. [44] [ 113 ] The second criterion, the existence of reasonable grounds, requires the consideration of two factors: [35] […] First, a court must focus on [the police officer’s] subjective perception of the degree of violence of the assault or threatened assault against him or her.

Second, a court must assess whether the [police officer’s] belief is reasonable on the basis of the situation as he or she perceives it. [45] [ 114 ] The police officer must have subjective reasons, which are objectively reasonable, to believe that using force is necessary under the circumstances.

This requires « […] the court [...] to place itself in the shoes of the officer and assess whether reasonable grounds existed for the actions taken. » [46] At this stage of the analysis, the court must essentially ask itself whether the police officer has proven he subjectively had reasonable grounds for using force [47] . [ 115 ] The third and final criterion exclusively focuses on the level of force applied given the circumstances [48] . Here again, the subjective perception of the police officer must be examined based on objective grounds [49] .

If the court finds that the degree of force used by the police officer was excessive, then regardless of the reasonable grounds the police officer had for using force, he will not benefit from the protection of s. 25 of the Cr. C. [50] According to the Supreme Court, « the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness. » [51] [ 116 ] In R. v.

Asante-Mensa , the Court (integrating the following passage from Justice Doherty’s decision in Simpson ) provides a non- exhaustive list of circumstantial factors that deserve consideration: […] [t]he duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference. [52] [ 117 ] Moreover, in Gamache v.

R ., as stated by the Quebec Superior Court, « the degree of permissible force will largely depend on the conduct of the suspect in the course of the arrest. » [53] In this decision, the Court held that regardless of the lack of gravity of the offence and the perceived non-urgent nature of the matter, the conduct of the suspect justified the use of force [54] . [ 118 ] To the extent that this

interpretation puts the emphasis on what actions of the police officer were necessary to conclude the arrest, this reasoning appears to be consistent with the views of the Supreme Court in R. v. Asante-Mensah , which concerned whether a citizen can use reasonable force in making a lawful arrest. In that context, the Supreme Court observed that «the ability to use force often provides the necessary precondition to securing the submission of the person arrested.

It is therefore necessary to the efficacy of the arrest power. » [55] Indeed a statutory provision that confers on a person the power of arrest, but made no allowance for the use of force to exercise that power would be, in most cases, a very ineffective power to bestow. [ 119 ] Concerning the evaluation of the third criterion, it is essential that the Court remain alert to the reality of policing.

Consequently, when balancing the principles of proportionality, necessity and reasonableness, one must keep in mind that: [l]’appréciation de la force appropriée dans un contexte donné est une question de fait qui ne s’évalue ni dans l’abstrait ni en portant a posteriori un jugement de valeur rétrospectif. [56] [ 120 ] Scrutiny in an officer’s decision to use force is not to be at a level of perfection. This is because the calculus of «reasonableness» in the amount of force necessary to carry out a detention or an arrest has to allow for the fact that police officers are

often forced to make split-second decisions in tense and rapidly evolving circumstances. As the Court explained in Nasogaluak : [35] Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies.

Their actions should be judged in light of these exigent circumstances. [ 121 ] In a decision in which a police officer appealed his guilty verdict for assault, the Quebec Court of Appeal also noted that: [63] Le caractère de ce qui est urgent est intimement lié à l’appréciation de la proportionnalité de la force utilisée en l’espèce. La pertinence de ce facteur s’explique par le fait que les policiers sont confrontés dans l’exercice de leur fonction à des situations qui les obligent à prendre des décisions rapides.

Dans Nasogaluak , la Cour suprême reconnaît cette dimension du travail des policiers qui « […] doivent souvent réagir rapidement à des situations urgentes ». Les policiers ne peuvent pas toujours dans le feu de l’action mesurer avec précision la force nécessaire.

Ces considérations tiennent toutefois au contexte propre à chaque intervention. [57] [References omitted] [ 122 ] As a consequence, police officers should be given some leeway regarding the level of force they use because « […] in stressful and dangerous situations [they] do not have time for subtle reflection. » [58] [ 123 ] Moreover, police officers should not be expected to use the least amount of force possible. The reason is that such expectation « […] would result in unnecessary danger to themselves and others. » [59] .

In short, « a certain amount of latitude is permitted to police officers who are under a duty to act and must often react in difficult and exigent circumstances. » [60] 5.4 Force used by the officers in the present matter [ 124 ] Determining whether the use of force in a particular situation was reasonable, requires that I look at the totality of the circumstances.

Though the task is tedious, assessing the reasonableness requires that I review the circumstances in which force was deployed and the nature or degree of the force used for each of the petitioners. [ 125 ] The background to the police intervention was already discussed at length and will not be repeated here. For the sake of context, I will limit myself to the following recap: (

i) Sergeants Michon and Giguère were dispatched to the scene of a brawl at the New City Gas Bar located at the corner of Ann and Ottawa Streets; (ii) Once at the scene, they noticed three or four men with bloodied faces (the purported victims of the brawl); (iii) Disembarking from their police cruiser, they were immediately met by two employees of the New City Gas Bar who then pointed to four individuals walking southbound on Ann Street as the instigators of the brawl; (iv) Back in their police cruiser, the officers quickly caught up to the suspects who, by then, were walking on William Street (the first intersection North of Ottawa Street); (

v) Upon seeing the police cruiser, the suspects abruptly changed course and proceeded to Shannon Street (a path that would only take them back to the scene of the crime). [ 126 ] Essentially, these were the circumstances that justified the serge

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