Stay for excessive use of force

R. v. Tang, 2011 ONCJ 525 deals with a stay of proceedings as a result of excessive use of force by a state actor.  Although the trial level the decision is careful and thorough.  It is useful as a precedent.  The Court holds:

 

The Legal Framework - Overview

[62]                  The Applicant applies for a stay of proceedings on all charges under the provisions of the following sections of the Charter:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.          

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[63]                  It is clear in law that the application of force by state actors engages both the section 7 security-of-the-person interest as well as the section 12 protection against cruel and unusual punishment. 

It seems to me that even if one adopts the narrow approach advocated by counsel for the minister, 'security of the person' must encompass freedom from the threat of physical punishment or suffering, as well as freedom from such punishment itself. (Re: Singh and M.E.I.,1985 CanLII 65 (SCC), (1985) 17 DLR (4th) 422 (S.C.C.) at p. 460

[64]                  In R. v. Tran [2010] O.J. No. 2785, The Ontario Court of Appeal reviewed the law with respect to the appropriate remedy for police misconduct both in an investigation, where there was excessive use of force, and at trial, where the Crown witnesses tried to cover-up their original misconduct, starting at paragraph 83:

The inherent jurisdiction of a superior court to stay proceedings as a measure of control over the judicial process was affirmed in R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128. The common law abuse of process doctrine is designed to protect the fundamental principles of justice that underlie the community's sense of fair play and decency. In R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903, the Supreme Court confirmed that the judiciary should resort to a stay when necessary to communicate that it will not condone state conduct that transcends what our society perceives as acceptable. The objective of a stay as a remedy is to maintain public confidence in both the legal and the judicial process.

84     The leading post-Charter stay decisions are R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391 and R. v. Regan, 2002 SCC 12 (CanLII), [2002] 1 S.C.R. 297. In these decisions, the Supreme Court developed more specific guidance for when a stay is an "appropriate and just" remedy under s. 24(1).

85     In O'Connor, L'Heureux-Dubé J., writing for herself, La Forest and Gonthier JJ., stated that a stay of proceedings is an exceptional remedy to be employed as a last resort, only after canvassing other available remedies. Of significance to this case, L'Heureux-Dubé J. noted at para. 73, that in Charter cases "concern for the individual rights of the accused may be accompanied by concerns about the integrity of the judicial system." She added:

In addition, there is a residual category of conduct caught by s. 7 of the Charter. This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.

86     In Tobiass, the Supreme Court, drawing from the reasoning in O'Connor, held that where the Crown has rendered the proceedings unfair or has acted in such a way as to adversely affect the integrity of the administration of justice, (the residual category) a stay is warranted. However, two criteria must be satisfied:

(i) The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

(ii) No other remedy is reasonably capable of removing that prejudice: para. 90.

87     The court went on to suggest that there may be a third criterion in cases where it is not clear that the abuse in question is sufficient to warrant a stay. In such cases, "it will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits": (See paragraph 92)

88     Significantly for the purposes of this case, at para. 96, the court held that a stay is appropriate not only where the abuse will be manifested in the future but also where it is so traumatic that to continue the prosecution would be unfair:

[I]f a past abuse were serious enough, then public confidence in the administration of justice could be so undermined that the mere act of carrying forward in the light of it would constitute a new and ongoing abuse sufficient to warrant a stay of proceedings. However, only an exceedingly serious abuse could ever bring such continuing disrepute upon the administration of justice.

89     Finally, in Regan, a case involving prosecutorial abuse, the Supreme Court again considered the approach to cases in the residual category. Lebel J., for the majority, said at para. 55:

As discussed above, most cases of abuse of process will cause prejudice by rendering the trial unfair. Under s. 7 of the Charter, however, a small residual category of abusive action exists which does not affect trial fairness, but still undermines the fundamental justice of the system (O'Connor, at para. 73). Yet even in these cases, the important prospective nature of the stay as a remedy must still be satisfied: "[t]he mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings" (Tobiass, at para. 91). When dealing with an abuse which falls into the residual category, generally speaking, a stay of proceedings is only appropriate when the abuse is likely to continue or be carried forward. Only in "exceptional", "relatively very rare" cases will the past misconduct be "so egregious that the mere fact of going forward in the light of it will be offensive" (Tobiass, at para. 91).

90     Few cases appear in Canadian jurisprudence where a stay has been imposed as a remedy specifically for police brutality. But there have been some. I refer to cases such as R. v. Gladue, [1993] A.J. No. 1045 (Prov. Ct., Crim. Div.); R. v. Spannier, [1996] B.C.J. No. 2525 (B.C.S.C.), R. v. Murphy, [2001] CarswellSask 613 (Prov. Ct.); R. v. Wiscombe, [2003] B.C.J. No. 2858 (Prov. Ct.); R. v. Markowska, [2004] O.J. No. 5153 (O.C.J.); R. v. Fryingpan, [2005] A.J. No. 102 (Prov. Ct., Crim. Div.); R. v. Cheddie, [2006] O.J. No. 1585 (S.C.J.); R. v. Merrick, 2007 CarswellOnt 3855 (O.C.J.).

91     These cases demonstrate that the determination of whether a sentence reduction or a stay of proceedings is the appropriate and just remedy in the circumstances will depend upon the application of the above principles to the facts of each case.

[65]                  In Tran, the accused, while being transported to a police station after voluntarily turning himself in, was assaulted by a powerful punch that broke his jaw and caused permanent damage. The police assault was found to be predicated on Mr. Tran’s assertion of his right to remain silent. The Court of Appeal found that there was no need for force to have been used at all in that case.

[66]                  In addition, in Tran, the police conduct continued at the trial itself, where the police, in their testimony, attempted to cover-up their excessive use of force at the investigative stage of the proceeding.

[67]                  Justice Gloria Epstein, speaking for the Court, stated:

The misconduct continued into the trial and, in my view, implicated trial fairness in the broad sense identified by Deschamps J., in her concurring reasons in R. v. Grant, 2009 SCC 32 (CanLII), [2009] 2 S.C.R. 353, at para. 207, where she wrote that "trial fairness corresponds to courtroom fairness."

[68]                  Justice Epstein, in her reasons, also lamented the lack of any institutional police response or supervisory response, to the excesses of the arresting officers, at paragraph 100: 

To make matters still worse, there is no evidence of any effective response to the police brutality here.

[69]                  It is clear that section 25(1) of the Criminal Code provides that police officers acting pursuing a valid police purpose are justified in using “as much force as necessary” for that purpose, if acting “on reasonable grounds.” 

[70]                  However, section 26 of the Criminal Code provides that police officers are criminally responsible for force used in excess of what is needed.   As a result, the police only have lawful authority to use force in effecting an arrest where 1) the use of force is necessary and does not exceed what is necessary, and 2) they are acting on reasonable grounds.  (R. v. Asante-Mensah 2003 SCC 38 (CanLII), (2003), 174 C.C.C. (3d) 481 (S.C.C.) at paragraphs 50-53, R. v. Magiskan, [2003] O.J. No. 4490 (S.C.J.) at paragraphs 21-26)

6:     The Case At Bar

[71]                  In my view, the applicant has met his onus in establishing that he was assaulted without justification by Police Constable Monahar. No other officer at the scene who testified before me, including Constables Hanlon, Boyko and Parmar felt compelled to assault a person during the arrests that day, nor did they testify that the objective circumstances gave rise to the need for such use of force.

[72]                  I find as a fact that, on all the evidence, that there was no objective reason, in Mr. Tang’s behaviour or conduct to justify what Constable Monahar did to the applicant.

[73]                  In addition, Constable Monahar significantly damaged the Crown’s position in this proceeding by his conduct both as the central note taker for the investigation and as a witness in court in this trial.

[74]                  I find that he did not carry out his duties as a trained police officer or as a central note taker and he misled this court as a witness.

[75]                  I also reject the Crown’s submission herein that the non-disclosure of the Injury Report did not substantiate an attempt to suppress evidence unfavourable to the Crown regarding the central issue raised in the defence pre-trial discussions with the Crown, namely, excessive use of force by Police Constable Monahar. Although there is nothing in the trial record to suggest that Crown counsel was attempting to suppress information, or offend fair trial principles, as was found by the trial judge in Tran, supra, to be the case, and referred to in the judgment of Justice Epstein in the Court of Appeal, the testimony of Constable Boyko, and the lack of either completion, or production of the Injury Report, suggests police negligence in the sense of “wilful blindness”, lack of due diligence in carrying out their duties and bad faith in providing meaningful disclosure and testimony on this point.

The Granting of a Stay – Post Grant & Harrison

[76]                  In R. v. Grant [2009] S.C.J. No. 32, at paragraph 71, Chief Justice McLachlin and Justice Louise Charron enumerate the principles that must be applied when considering exclusion under s. 24(2) of the Charter:

(1)   the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

[77]                  In my view, these same principles must now be applied in considering the appropriateness of a stay under 24(1), subject to the other considerations that arise in the earlier case law under this subsection of the Charter.

[78]                  It is also clear from the application of these principles by the Supreme Court of Canada in Grant and Harrison that in the weighing of these factors, the trial court must be forward-looking and attempt to evaluate the impact on future trials, if the Charter-protected interests are not upheld in the final result of the matter before the court.

 

The Severity of the Breach

[79]                  As stated by the Supreme Court in R. v. Regan, citing R. v. Tobiass:

 “only in ‘exceptional,’ ‘relatively very rare’ cases will the past misconduct be ‘so egregious that the mere fact of going forward in the light of it will be offensive’ [citation omitted.]” 

[80]                  The cases of Regan and Gladue serve to illustrate that the question of the egregiousness of the breach is not simply a question of the quantum of force used, but the quantum of force used in relation to the circumstances of the arrest.  It is the degree to which the force exceeds what was necessary and justified, given the particular situation. (R. v. Regan, supra, at paragraph. 55 and R. v. Gladue, [1993] A.J. No. 1045 (Prov. Ct.), at paragraph 17)

[81]                  As noted by the Supreme Court of Canada in R. v. Asante-Mensah, an assessment of the reasonableness of an officer’s use of force should begin with regard to whether a forcible arrest was “in all the circumstances a reasonable course of action in the first place.”  Other factors that have been recognized as relevant to whether the force used by the police exceeded that which was authorized include the following, as listed in R. v. Magiskan, supra:

(a)   the nature and seriousness of the offence for which the arrest is being made (one does not engage a bulldozer when a flyswatter is sufficient).

(b)   the certitude of the fact of the offence which is the basis of the arrest having taken place (Persons are presumed to be innocent until proven guilty. The more that is known about the circumstances that establish guilt, the more thorough the inquiry, the more complete the objective evidence and the more reasonable the grounds upon which the arrest is made are important considerations which govern necessity and reasonableness).

(c)   the need for detention as an aspect of intervention;

(d)   the protection of the officers and other persons from violence;

(e)   the prospect of flight/escape;

(f)     the likelihood of continuation/resumption of offending conduct;

(g)   the apparent physical condition of the person being arrested and/or alleged victims;

(h)   police modules and training affecting the use of force;

(i)      the prospect of escalation and retaliation;

(j)      knowledge of the identity and access to the person to be arrested; (A person who is to be arrested does not, of necessity, have to be arrested at that time and place if use of force is contemplated when it is reasonable that this can be accomplished on another occasion without violence or with less violence.);

(k)   the nature and extent of the force reasonably contemplated as likely to be necessary;

(l)      other exigent circumstances.”

                        (R. v. Asante-Mensah, supra, at paragraph 74, R. v. Magiskan, supra, at paragraph. 27)

[82]                  Examples of the application of these principles can be found in such cases as R. v. Markowska, supra, where Justice Douglas Maund held that a stay of proceedings was the only adequate remedy for the Charter breaches that resulted when police officers entered a commercial establishment to arrest the accused, with weapons drawn and held at close range to her upper body.   The Court gave particular consideration to the fact that there was no evidence that the accused acted in a way that was hostile, or had a history of violence with the police.  This parallels the facts before me. (R. v. Markowska, [2004] O.J. No. 5153 at paragraph 27)

[83]                  Another example is R. v. Gladue, where a police officer pushed the accused’s face against a brick wall after she complained about her handcuffs, causing bruising to her face.  He then tightened one of her handcuffs, causing bruising to her wrist.  The Court found that the state conduct warranted a stay, despite the fact that the officer did not intend to harm the accused, considering the circumstances of the incident.  Crucial in the Court’s determination was the fact that the officer was not in any danger at the time he assaulted the accused, and indeed that the circumstances did not call for any use of force at all.  This case makes clear that even an act of violence that is relatively “minor” can be deemed egregiously excessive, in light of the surrounding facts.  (R. v. Gladue, [1993] A.J. No. 1045 (Prov. Ct. Crim. Div.) at paragraph 19)

[84]                  In my view, the use of force unnecessarily by a police officer is always serious, as the police, as state actors, must comply with the statutory and case law limits on their use of force.

[85]                  In this case, there was not only an excessive use of force. That excessive use of force was compounded by Constable Monahar’s failure to take notes about what happened in the course of the take down and arrest.

[86]                  This failure to take proper notes was compounded by the fact that he was the “central note taker” for his fellow officers that day.

[87]                  This failure to take proper notes was also exacerbated by Constable Monahar’s testimony as a witness at trial, where he prevaricated and misled the court about what had happened to the applicant at the time of his arrest.

[88]                  This prevarication and misleading of the court was further compounded by the fact that the “Injury Report” was not properly completed, signed, or disclosed in a timely fashion.

[89]                  Finally the injury report did not reflect what I found to have happened that day.

[90]                  These elements make the Charter breaches more serious.

The Impact of the breach of the Charter-Protected Interests of the Accused

[91]                  Mr. Tang was nineteen years old at the time of the take down and arrest. He was without any criminal antecedents.

[92]                  Mr. Tang testified again and again before me that he was unfamiliar with investigative procedures or his rights to make a complaint to the police when his Charter-protected rights were infringed.

[93]                  This makes the police conduct in disregarding his Charter–protected interests in this police investigation and trial contextually more serious.

Society’s Interest In the Adjudication of the Case on its Merits

[94]                  In Grant, supra, at paragraph 80, the Chief Justice points out that although society generally expects that a criminal allegation will be adjudicated on its merits, “The view that reliable evidence is admissible regardless of how it was obtained is inconsistent with the Charter’s affirmation of rights. More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into all the circumstances, not just the reliability of the evidence.”

[95]                  In my view, this analysis applies with equal force to the issue of granting a stay the result of which would be to end an otherwise likely-to-succeed prosecution.

[96]                  In the first example of the Supreme Court of Canada applying these principles to exclude evidence, in R. v. Harrison [2009] S.C.J. No. 34, released at the same time as R. v. Grant, supra, Chief Justice Beverley McLachlin was applying the principles in a case where the accused and his friend were driving a rented vehicle in Ontario, and were stopped by a police officer. The officer testified that he noticed that the vehicle had no front licence plate but it was only after activating his roof lights to pull it over, he realized that, because it was registered in Alberta, the vehicle did not require a front licence plate. Even though he had no grounds to believe that any offence was being committed, the officer testified that abandoning the detention might have affected the integrity of the police in the eyes of observers. He arrested the accused after discovering that his driver's licence had been suspended. The officer then proceeded to search the vehicle. He found two cardboard boxes containing 35 kilograms of cocaine. On a Voir dire, the trial judge held that the initial detention of the accused was premised on a mere suspicion rather than reasonable grounds and therefore constituted an arbitrary detention, contrary to s. 9 of the Canadian Charter of Rights and Freedoms, and that the warrantless search of the vehicle was unreasonable within the meaning of s. 8 of the Charter. The trial judge found that the violations were serious and that the officer's explanations for stopping the vehicle defied credibility. However, in view of the seriousness of the offence charged and the importance of the evidence to the Crown's case, he admitted the cocaine into evidence on the grounds that the repute of the administration of justice would suffer more from its exclusion than from its admission. The accused was convicted of trafficking. The Court of Appeal upheld the trial judge's decision.

[97]                  The Chief Justice excluded the evidence. She stated at paragraph 3 of her decision:

3         Applying the framework in Grant to these facts, I am satisfied that the balance mandated by s. 24(2) favours exclusion of the evidence. It is true that the public interest in having the case adjudicated on its merits favours the admission of the evidence, particularly in light of its reliability. On the other hand, the impact on the accused's rights, while not egregious, was significant. Bulking even larger, however, was the police misconduct involved in obtaining the evidence. This was far from a technical or trivial breach. Rather, it involved a "brazen and flagrant" disregard, to quote the trial judge, of the appellant's Charter rights against arbitrary detention and unreasonable search and seizure. These are protections that law-abiding Canadians take for granted and courts must play a role in safeguarding them even where the beneficiaries are involved in unlawful activity. In the circumstances of this case, it is my view that the admission of the evidence would bring the administration of justice into disrepute. I conclude that the evidence should have been excluded pursuant to s. 24(2) of the Charter. I would therefore allow the appeal and enter an acquittal.

[98]                  In my view, since the reasons of the Supreme Court of Canada in Grant and Harrison trial courts are now mandated by those decisions to look at the systemic implications of the police conduct if it were permitted without an appropriate remedy in the case before the court. In the case at bar, these are the factors which tip the scales in favour of entering a stay of the proceedings: