FEB-20-2018 15:07 From:MCCOOEYE/MCCOOEYE 7059459051 To:1B55B677301 P,1/49 McCOOEYE & McCOOEYE Barristers & Solicitors 348 Albert Street East Sault Ste. Marie, Ontario P6A 2J6 Tel: 705-945-8868 Fax: 705-945-905 I Shadrach R. McCooeye Eric D. McCooeye February 20, 2018 Davin Charney Barrister and Solicitor 209-3050 Yonge Street Toronto, Ontario VIA FAX 1-855-867-730 I M4N2K4 Dear Mr. Davin Charney: Re: Timothy Mitchell - Agency This letter will confinn that I attended at Court for the Decision of the Honourable Justice J.P. Condon on February 20'", 2018. I enclose herewith a copy of that Decision. Yours very truly, /7t_fl/~. Shadrach R. McCooeye SRM/tt Enclosure FEB-20-2018 15:07 From:MCCOOEYE,MCCOOEYE 7059459051 To:18558677301 ONTARIO COURT OF JUSTICE COURT FILE No.: Sault Ste. Marie 16-0768 BETWEEN: HER MAJESTY THE QUEEN -AND TIMOTHY GUY MITCHELL Before Justice J. P. Condon Heard on September 18, 19, 20 and 22, 2017 and October 16 and 17, 2017 Along with written submissions of Counsel Reasons for Judgment released on February 20, 2018 D. Didiodato ..................... ., ................................................................ counsel for the Crown D. Charney ............................................................... counsel for the accused T. Mitchell CONDON J.: Part One: Introduction [1] Timothy Guy Mitchell is charged as follows: Count #1 That TIMOTHY GUY MITCHELL on or about the 26 day of March 2016, at the city of Sault Ste. Marie in the said Region, did being at large on his Recognizance given to a Justice and being bound to comply with a condition of that Recognizance directed by the said Justice fail without lawful excuse to comply with that condition to wit: Do not consume alcohol or other intoxicating substances, contrary to s. 145(3) of the Criminal Code. Count #2 - That TIMOTHY GUY MITCHELL on or about the 26 day of March 2016, at the city of Sault Ste. Marie in the said Region, did resist MATIHEW KEATING a peace officer to wit: a Police Officer engaged in the execution of his duty by placing his arms and hands under his body and FEB-20-2018 15:07 From:MCCOOEYE,MCCOOEYE 7059459051 To:18558677301 -2thereby preventing Matthew Keating from effectively arresting and placing handcuffs on Timothy Guy Mitchell contrary to s. 129(a) of the Criminal Gode. ' [2] An Application was brought on behalf of Mr. Mitchell, alleging that his rights under Section 7 of the Canadian Charter of Rights and Freedoms (the Charter) were breached. It has been asserted that police used excessive and unnecessary force when arresting the Applicant. In addition, it was asserted that the Applicant was subjected to further threats and demeaning comments along with further excessive force once he was in the custody of th.e police. [3] Alternate remedies were sought for the breach of this Charter right. Under Section 24(1) of the Charter, the Applicant has sought a stay of the proceedings, namely the charges, against Mr. Mitchell. In the alternative, under Section 24(2) of the Charter, the Applicant has requested that all evidence against him obtained beginning from the time that the police entered his home be excluded. [4] Almost all of the trial of these charges, has proceeded by way of a Charter voir dire During the course of the voir dire, the Applicant sought to add to the application an assertion of a breach of his Section 1O(b) Charter rights. Crown counsel consented to the addition of this ground of the Charter application. The Applicant seeks the same alternate relief under s. 24(1) and s. 24(2) of the Charter arising out of this breach of the s. 1O(b) right. It is noted that the issue of a breach of the s. 1O(b) right is addressed, in part, in the written submissions of Crown counsel as follows (page 18): [5] Section 1O(b) The Crown concedes that Mr. Mitchell's section 1O(b) rights were violated in this case as he was not given his right to counsel until the following morning, at approximately 8:56 am. Following the hearing of oral evidence of various witnesses, evidence provided by agreed statements of fact and the presentation of multiple exhibits, counsel provided written submissions and the decision on the Charter application was reserved until after the receipt of those written submissions. [6] [7] This is the decision on the Charier application. Part Two: Summary of The Evidence [8] The Crown called the following witnesses: (a) Constable Matthew Keating of the Sault Ste. Marie Police Service; FEB-20-2018 15:07 From:MCCOOEYE,MCCOOEYE 7059459051 To:18558677301 -3(b)Constable Frank Carchidi of the Sault Ste. Marie Police Service; (c) Constable Nicholas Pino of the Sault Ste. Marie Police Service; and (d) Dr. Rishi Ghosh, an intensivist with the Sault Area Hospital (SAH). (9] In addition, the evidence of two other witnesses for the Crown was provided by way of agreed statements of evidence. Those two witnesses were: (a) Constable Steven Potter (Exhibit #20) of the Sault Ste_ Marie Police Service; and (b) Staff Sgt. Ken Hruska (Exhibit #21) retired member of the Sault Ste. Marie Police Service_ [10] All of the officers involved were employed by the Sault Ste. Marie Police Service (SSM PS) at the time of the events in question. [11] The Applicant, Mr. Mitchell, testified. He also called, Mr. Steven Summerville as an expert witness in relation to the various areas of police training, including but not only the use of force by police, both in relation to the arrest of a suspect and the use of force in relation to the subject in custody. [12] A voirdire was held in relation to Mr. Summerville's expertise and the areas of evidence in which he would be permitted to express his expert opinions. The decision pertaining to the expert evidence was released on October 16, 2017. In that decision, Mr. Summerville was permitted to provide expert evidence in certain areas and prohibited from doing so in relation to other potential areas of evidence. That written decision was provided to counsel. [13] The following is a summary of the evidence of each witness. Constable Matthew Keating [14] When he testified, Constable Keating was in his ninth year as a member of the SSM PS_ He was also in his fifth year as a member of the Service's Emergency Service Unit (ESU). As a member of the ESU, he and his fellow officers receive use of force training two times per year_ This includes training regarding SSM PS Policy Order Number 1.16, which is entitled Use of Force (Exhibit #3). [15] The use of force training includes a spectrum of techniques to be used, ranging from the use of verbal communication to attempt to resolve the situations without the use of physical force and continues to the use of various weapons, including firearms. Constable Keating testified that he was familiar with this SSM PS policy. [16] The officer was also familiar with the National Use of Force Framework (Exhibit #9) that is used in police training. FEB-20-2018 15:08 From:MCCOOEYE,MCCOOEYE 7059459051 To:1B55B677301 4 [17] Constable Keating also testified that he was familiar with SSM PS Policy Order Number 1.02, entitled Prisoner Care And Control (Exhibit #4). [18] He estimated his weight at the time of this incident to be approximately 265 to 270 pounds, which included the full police gear that he was wearing. [19] As part of the ESU training in preparation, the officer is permitted to work out regularly and he does so approximately 4 times per week. These workouts include the use of weights and a treadmill. While the officer was testifying, approximately 18 months after the incident in question, I noted that he appeared to be in very good physical condition and likely to be much stronger than the average male of his age and size. [20] On March 26, 2016, Constable Keating was working with Constable Nicholas Pino. [21] At approximately 9:50 p.m., the officers were advised by SSM PS dispatch of an incident at the residence of the Applicant involving him and his son, Nick. The information provided by dispatch included the following: (a) Mr. Mitchell was intoxicated and was smashing things in the house with a hockey stick; (b) he had threatened his son, Nick; (c) he was on release conditions, which included a requirement that he not consume alcohol; and (d)there was violence in his past and he was known to have a dislike for police. [22] Constable Pino was driving the police vehicle. The police vehicle was driven to Mr. Mitchell's residence without using either emergency lights or sirens. [23] When the two officers arrived at the residence, they walked from the driveway to the house. Constable Keating noted the house to be dark, both at the front outside and inside. [24] As they arrived at the door, the officers were met by Nick Mitchell, the complainant, who was approximately 13 or 14 years old. Nick Mitchell repeated to the officers the concerns that he had provided to the SSM PS dispatch operator. He asked that the officers to deal with his father, but that his father not be charged with anything. [25] Constable Keating noted Nick Mitchell to be upset and crying. His head was down. He reported that his brother had already left the house. He also reported that he had been threatened by his father. FEB-20-2018 15:08 From:MCCOOEYE,MCCOOEYE 7059459051 To:1B55B677301 P,6,49 -5 [26] Constable Keating and Constable Pino then entered the residence. Constable Keating was aware that a second police cruiser had attended as back-up and so Constables Boilleau and Neveau were at the scene. [27] Constable Keating entered the residence first. When he did so, to his right he saw Mr. Mitchell with his arms raised and draped on the couch that was behind him Mr. Mitchell was wearing pants, but no shirt. The officer also noted various broken items on the floor. [28] Constable Keating then went towards the back of the inside of the house. I note from the photographs of the residence and the diagrams of the floor plans entered as exhibits that this is not a large residence. As he went towards the back of the house, the officer noted a hockey stick on the floor and broken balusters from the railing leading to the second floor were also nearby. There was also broken glass in the kitchen. Blood was observed on the stairs and on the floor of the hallway. [29] In the living room area where the Applicant was seated, there was a coffee table in front of him. Constable Keating estimated that there were five crushed beer cans on the coffee table. He also observed blood on the back of one of Mr. Mitchell's hands. In Constable Keating's opinion, it was possible that Mr. Mitchell had bloodied his hand by punching something. [30] Constable Keating regarded the broken balusters from the stairwell to be "weapons of opportunity" It also indicated to the officer that Mr. Mitchell had been violent. [31] When the officer next saw Mr. Mitchell, he was seated on the couch. [32] The officer approached Mr. Mitchell and informed him that he was under arrest for bre<1ching the condition th<1t required him not to consume alcohol. Mr. Mitchell's response was described as angry, vulgar and belligerent. He told the police to get out of the house. The officer regarded the tone of Mr. Mitchell's voice to indicate that he was potentially violent. [33] Constable Keating directed Mr. Mitchell to stand and he did so. He then began berating and swearing at the police. [34) The officer reached out to take physical control of Mr. Mitchell as part of the arrest. He grabbed the left wrist of the Applicant. Mr. Mitchell stepped back with his right foot by moving it back about the shoulder's width. He took the stance that Constable Keating construed to mean that Mr. Mitchell was ready to fight. [35] The officer again told Mr. Mitchell that he was under arrest. Mr. Mitchell, then reached for the officer, which the officer perceived to be an act of aggression on the part of Mr. Mitchell. The officer responded by pushing Mr. Mitchell on his left shoulder, thereby causing him to fall on the second couch. Constable Keating FEB-20-2018 15:08 From:MCCOOEYE,MCCOOEYE 7059459051 To:1B55B677301 P,7,49 -6testified that he took this action in order to avoid a fight. When ask.ed about the amount of force used, the officer said, "Not a lot." It appeared to the officer that Mr. Mitchell did not expect this action by the officer. [36] Mr. Mitchell landed on his right side with his right arm underneath. Constable Keating still had hold of Mr. Mitchell's left wrist. The officer positioned himself over top of Mr. Mitchell with one foot on the floor and his second knee or shin on the upper thigh or lower torso of Mr. Mitchell. The officer estimated that he had about 50% of his weight on the Applicant. [37] Mr. Mitchell was instructed several times to put his hand behind his back. Mr. Mitchell struggled, squirmed and did not put his hand behind his back. [38] Constable Keating was still holding Mr. Mitchell's left wrist, which he had managed to tuck into his chest, but it was still visible. Mr. Mitchell's right hand, which was tucked under his body, was not visible. [39] Cono;;table Keating testified that he did not know what was in the couch. He needed to get Mr. Mitchell's hands behind him to prevent anything else from happening and to prevent anyone from getting hurt [40] Constable Keating was maintaining control of Mr. Mitchell's left arm and trying to pull it out from under his body. Constable Pino joined in an attempted to assist in pulling out the left arm from under the body. However, in the opinion of Constable Keating, Constable Pino was having difficulty assisting because of the very limited space between the couch upon which Mr. Mitchell was laying and the coffee table, which was very nearby. In response to a question from the court, Constable Pino said that he estimated the table to be 6 feet 2 inches long and at least 3 feet, 2 inches wide. [41] Constable Keating commanded Mr. Mitchell five to seven times to put his hands behind his back. Mr. Mitchell continued to resist and tried to pull his left hand away from the officer. [42] Constable Keating then told Mr. Mitchell two or three times to put his hand behind his back or else he would be hit. Mr. Mitchell did not comply. [43] The officer then struck Mr. Mitchell with one blow to the left upper abdomen Mid-section part of his body. In doing so, Constable Keating said that he used a closed fist. He did not use his full strength, but used enough force to gain compliance. The punch involved the officer moving his fist in a straight downward motion extending his arm as he did so. The officer demonstrated this blow in the courtroom. I noted him fully extend his arm from a 'cocked position' as he demonstrated the blow. During cross-examination, the officer was asked to provide a description of the blow, particularly as it related to the demonstration he had provided during examination in-chief. More will be said about this later in these Reasons. FEB-20-2018 15:09 From:MCCOOEYE,MCCOOEYE 7059459051 To:18558677301 P,8,49 7[44] Constable Pino was just off to the side of Mr. Mitchell and Constable Keating as the strike was delivered. [45] Following the strike, Mr. Mitchell rolled over onto his chest, his arms were pulled behind his back and Constable Neveau stepped forward and placed handcuffs on the Applicant. Constable Keating testified that, as Mr. Mitchell was on his chest, he began kicking his legs in a 'donkey kick' manner. I understand a 'donkey kick' to be a backwards extension of at least one leg with the kick being either a full extension of the leg or a bending of the knee to strike something behind or above the kicker. [46] [47] Constable Keating grabbed Mr. Mitchell, who was now handcuffed, and moved him to the floor in order to prevent further kicking and to prevent the officer from being kicked. The officer carried out this move by grabbing Mr. Mitchell, by the elbows and dragging him to the floor. Once he was on the floor, the officer put one knee near Mr. Mitchell's neck and one knee on his lower back. He informed Mr. Mitchell that, once he calmed down, they could leave the house. Mr. Mitchell stopped kicking. The officer asked him if he had "calmed down", to which Mr. Mitchell replied, "Yes". With that, Constable Keating raised Mr. Mitchell off the floor and he was escorted out of the house by both Constable Keating and Constable Pino. [48] The movement between the residence and the police vehicle, a Suburban, was uneventful. Mr. Mitchell was placed in the rear passenger side of the vehicle. The transportation to the SSM PS headquarters was also uneventful. Constable Pino was the driver of the police vehicle. Constable Keating recalled that there was some conversation in the vehicle during the transportation but did not recall any particulars of the conversation. [49] [50] Once the vehicle arrived at the station, it entered the sally port. There was nothing about the movement from vehicle to the booking area inside the police building that was of note to Constable Keating. [51] Once the officers and Mr. Mitchell were in the booking area of the SSM PS station, there was an audio and video recording of the interaction between all the parties. At about 10:01 p.m., Constable Keating removed the handcuffs from Mr. Mitchell. He has heard telling the officers that he was "a good guy", that he was "not that bad" and that he was "just messed up" He can also be heard to ask about his sons. [52] [53] Mr. Mitchell was told that he could attend at a nearby sink in order to wash his hands and he proceeded to do so. He was holding his left side as he made his way to the sink. FEB-20-2018 15:09 From:MCCOOEYE,MCCOOEYE 7059459051 To:18558677301 -8[54] Mr. Mitchell then asked what officer struck him and Constable Keating replied that he had done so. The officer also said, in response to a question from Mr. Mitchell, that he had been struck because he was resisting arrest. Mr. Mitchell said that he was "not like that" and that he was "wondering what was going on". Constable Keating replied that he told Mr. Mitchell what was going on. The officer also said that Mr. Mitchell was "like that" and that is why the officer struck him. [55] Mr. Mitchell asked why he was under arrest. Constable Keating replied, "Breach of your recognizance. You're not supposed to be drinking." Mr. Mitchell responded, "So, what does that mean?" He was told that once he sobered up the Staff Sergeant would explain to him what would happen. [56] Mr. Mitchell again asked about his children. He was told of the arrangements that were being made and, when told that the children would be with someone named "Causley'', he expressed his strong objection. [57] At about 10:03:30 on the timestamp of the video, Mr. Mitchell can be heard to say that he was sore and he stated "broke my fuckin ribs". He then said that he had played hockey for 40 years with an individual who had never broken his ribs. He said to the police, "You guys are fuckin brutal". He then made some sounds towards the police. One of the officers reminded Mr. Mitchell, that he promised to be "good". Constable Keating said to Mr. Mitchell, "Tim, if you don't smarten up ... if you don't smarten up we're gonna go again and I don't wanna do that" [58] Mr. Mitchell then reply, "Why ... You think I'm scared?" to which Constable Keating responded, "Yeah ... You oughta be." [59] The exchange between Mr. Mitchell and Constable Keating continued with Mr. Mitchell asserting, "I'm a fighter from Goulais and I've fought guys like you a.II my life." Ta this, Constable Keating replied, "Yeah, you're also an old man." Earlier, during the booking process, Mr. Mitchell had advised the police that he was 54 years old, [60] Mr. Mitchell took exception to being called an "old man" and then said, "Yeah, you're right, when I was your age I'd fuckin pound you ... " As he spoke, Constable Keating replied, "Yeah, guess what (inaudible), you're not my age old man so fuckin smarten up. This gentleman here is gonna ask you some questions and then you're going to the cells." It was during this exchange that Staff Sgt. Hruska came into view in the booking area and this was the "gentleman" to whom Constable Keating was referring. [61] The Staff Sergeant then asked Constable Keating if he needed Mr. Mitchell for anything else. When Constable Keating said "no", he walked briskly towards Mr. Mitchell and said "Get in the cells" and "Get up" as he did so. The officer took four steps to get to Mr. Mitchell, who was seated on a bench. [62] When Constable Keating arrived at Mr. Mitchell, he reached for the FEB-20-2018 15:10 From:MCCOOEYE,MCCOOEYE 7059459051 To:18558677301 p. 10/49 -9 Applicant. Mr. Mitchell moved forward. At this point, from the camera angle of the booking area, he was behind Constable Keating and Mr. Mitchell's body is blocked from view. However, he can be heard to say, "I'll get in the cells, you don't have to (unclear) me up." The verb used by Mr. Mitchell is difficult to hear. I will say more about this later in these Reasons. [63] Constable Keating had a physical hold on Mr. Mitchell as they walked quickly to the end of the hallway in the video. Two other officers, who were in uniform, but not in ESU attire, followed Constable Keating and Mr. Mitchell down the hallway, but were not physically involved with either person. This portion of the recording (from the booking room camera angle) in the Exhibit #2 ended at 10:04:55. [64] The next portion of video recording of Exhibit #2 is of one of the cells, which begins at 10:04:52, and shows an empty cell. This recording does not have an audio component to it [65] By 10:04:54 Mr. Mitchell can be seen entering the left side of the video. He is immediately followed by Constable Keating, who had Mr. Mitchell's left arm locked behind his back. The officer brought Mr. Mitchell to the cell door and then gave him a slight push into the cell. The officer then proceeded immediately to close the cell door. [66] As Constable Keating walked away from the door of the cell, he can be seen, with his gloved right hand raised, moving the fingers oft11at right hand towards his thumb in a squeezing or "chirping" manner. The officer was looking directly at the Applicant as he made this hand gesture. [67] By 10:05:04 of the time-stamp on the video recording Mr. Mitchell was alone in the cell and Constable Keating had left the recorded screen. Another officer, who was not in ESU attire, remained behind and continued to speak to Mr. Mitchell through the bars of the cell. Mr. Mitchell was seated on the bench in the cell for most of this conversation. When he laid down on the bench, this appeared to bring the conversation to a conclusion and the officer left the screen of the recording at 10:05:27. Mr. Mitchell continued to be shirtless and shoeless while wearing black pants, which looked like a pair of track pants. [68] After Constable Keating had placed Mr. Mitchell in the cell, he completed an SSM PS Use of Force Report (Exhibit #6). In that report, the officer recorded the following: Type of Force Used: Empty Hand Techniques Reason For Use of Force: Effect Arrest; Alternative Strategies Used: Verbal Interaction; Hard - 1; FEB-20-2018 15:10 From:MCCOOEYE,MCCOOEYE To:18558677301 7059459051 - P.11,49 10 Distance: Less than 2 metres; Weapons Carried By Subject: None; Location Of Incident: Private Property~ House; Person Injured: Subject; Medical Attention Required: Yes; Nature of Injuries: Unknown. [69] The officer also noted on the Use of Force Report the following: (a) Time Incident Commenced (24 hr.): 2151; and (b) Time Incident Terminated (24 hr.): 2154; [70] When asked about the separation of time between when Mr. Mitchell was told that he was under arrest and the time of the strike upon the accused, Constable Keating testified "maybe a minute" and "45 seconds to a minute." [71] As for the amount of force used, the officer testified that the force used was in compliance with the Use of Force Policy of SSM PS. [72] In cross-examination, Constable Keating testified that before he arrived the Applicant's house, Mr. Mitchell had been flagged as "violent" and "hates police". [73] Upon arrival at the house, neither Constable Keating nor Constable Pino sprinted to the house. Instead, they walked. When Constable Keating arrived at the door of the house, he spoke with Nick Mitchell for approximately 20 seconds. [74] Once Constable Keating was in the house, he looked around for approximately 30 seconds before telling Mr. Mitchell, that he was under arrest The total time between the arrival at the house and when Mr. Mitchell was informed that he was under arrest was "in the neighborhood of one minute... [75] Even before the officers had arrived at the house, they had information that Mr. Mitchell had been drinking and so Constable Keating was contemplating arresting the accused. The officer had no notebook entry indicating that Nick Mitchell informed the officerthat the accused had been drinking. Nor did Constable Keating asked Nick Mitchell whether anyone had been drinking. [76] SSM PS dispatch had also informed Constable Keating and Constable Pino that Mr. Mitchell had threatened to hit his son, Nick, with a hockey stick. Constable Keating agreed that he had made no notebook entry of that information. The officer testified that, when he spoke with Nick Mitchell at the door to the residence, Nick informed the officer about the threat mad.e that he would be hit in the head with a FEB-20-2018 15:11 From:MCCOOEYE,MCCOOEYE 7059459051 To:18558677301 p. 12/49 -11hockey stick. When asked, Nick Mitchell said that he did not want to pursue charges against his father. Instead, he just wanted out of the house and wanted the police ta "deal with him''. [77] Constable Keating formed the opinion that Mr. Mitchell needed to be removed from the house for his son's safety. Constable Keating acknowledged that Mt. Mitchell was not charged with threatening his son_ The officer agreed that the SSM PS CAS Fax Report and Cover form (Exhibit #7), which was sent ta the Children's Aid Society of Algoma that night, did not make specific mention of the threat to hit Nick Mitchell in the head with a hockey stick_ Page 2 of the Report ends with the following entries: SYNOPSIS OF INCIDENT. -Attended at 121 Weldon Ave for family dispute - father Tim was intoxicated and smashing items in the house. - Nick also stated he was threatened by Tim but did not pursue charges - Tim arrested for breach of recognizance. [78] When asked about the breach of recognizance charge, in view of Nick Mitchell's request no charge laid against his father, Constable Keating testified he did not require the participation of Nick Mitchell in order to pursue this charge. As for the further participation of Nick Mitchell, the officer acknowledged that the young person neither gave nor was asked to provide a statement. [79] Constable Keating did not recall speaking to Mr. Mitchell from the time he entered the house until he informed Mr_ Mitchell that he was under arrest. Immediately before announcing the arrest, the officer had consulted with Sgt. Bolduc, who had also entered the residence, as to whether the police were still in a lawful position to be in a home since Nick Mitchell, who had given them permission to enter, had left When Sgt. Bolduc indicated "Yes" to this question, Constable Keating proceed with the arrest. [80] Regarding his training in the use of force, Constable Keating acknowledged that the training involved instruction in the use of communication. Tactical communication, which involves getting a subject to do something that police want him to do, was part of the officer's training. Constable Keating received bi-annual training in use of force, but that training did not specifically address communication. On the other hand, communication was part of general police training. Developing a rapport with a subject was not part of the officer's specific training_ Nor was communication for the purpose of de-escalation part of the training provided by SSM PS. [81] Constable Keating testified that he only told Mr_ Mitchell to put his hands FEB-20-2018 15:11 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 12 behind his back in order to avoid a further incident He wanted the arrest to occur without incident [82] Regarding Mr. Mitchell's state, the officer acknowledged that he had not detected an odour of alcohol from the accused before the arrest. The officer's notes indicated that the accused was intoxicated, but there were no notes regarding the specific indicia of intoxication. SSM PS had informed the officer that Nick Mitchell reported that his father had been drinking. Constable Keating had noted Mr. Mitchell to show some unsteadiness. He was also belligerent, had slurred speech and had crushed beer cans in front him. (83] When asked to estimate Mr. Mitchell's level of intoxication on a O-to-1 o scale, Constable Keating gave Mr. Mitchell a score of 7 or 8. In response to the question of whether Mr. Mitchell was confused about whether he was being arrested, the officer said that he did not consider Mr. Mitchell to have been confused. The officer cited the fact that Mr. Mitchell had stood when asked to do so as evidence that he understood what was being said to him. [84] Constable Keating used his own left hand to grab Mr. Mitchell's left arm. As he did so, Mr. Mitchell pulled away. Then, within two or three seconds, he also stepped back and bladed himself towards the officer as he did so. It is noted that, later in his testimony, the officer acknowledged that when he was interviewed by the Ontario Special Investigations Unit (SIU) regarding this incident, he made no mention of Mr. Mitchell blading himself. [85] Mr. Mitchell then reached for Constable Keating, using his right hand. The officer saw this to be an act of aggression on the part of the accused and the officer responded by immediately pushing the accused to the couch. He did so because it was easier and safer to deal with the subject who was off his feet as opposed to standing. [86] Once Mr. Mitchell was on the couch, Constable Keating had his left foot on the ground and his right knee on the Applicant's back or side. The officer continued to hold Mr. Mitchell's left wrist. The officer attempted to control Mr. Mitchell's arm but was having difficulty doing so, Mr. Mitchell's right hand was free. [87] The right hand was tucked under Mr. Mitchell's side that was against the couch. Mr. Mitchell was able to draw his left hand into his chest and tuck it there without it actually being against the couch. As that happened, Constable Keating was behind the subject and attempting to pull the left arm behind his back. The couch is not interfering with the movement of the left arm. [88] Constable Keating estimated 30 to 45 seconds passed between the time that Mr. Mitchell landed on the couch and the delivery of the strike by the officer. When the strike was delivered other officers were nearby. However, Constable Keating's recollection was that Constable Pino had not assisted in subduing Mr. FEB-20-2018 15:12 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 p. 14/49 13 --·~--------------------------- Mitchell before the strike was delivered. [89] Constable Keating rejected the suggestion was that he punched Mr. Mitchell before giving any other officer present an opportunity to assist in restraining Mr. Mitchell. The officer also rejected the proposition that his time estimate of 30 to 45 seconds between when Mr. Mitchell landed on the couch and when the strike was delivered was an exaggeration. Later in the cross-examination it was brought to the officer's attention that he had provided an audio-recorded statement (Exhibit #11A) to the SIU, during which he was asked about the time between the landing on the couch and the delivery of the blow In that statement, the officer provided the following answer regarding this time "again ... maybe 15 seconds if I had to guess ... again, things, things progressed very quickly". The officer acknowledged this to have been the answer given to the SIU investigators. Constable Keating then said that the time between when he grabbed Mr. Mitchell's wrist and when the two men ended up on the couch could have been anywhere between 2 and 10 seconds. Then, the time on the couch before the blow could have been another 15 seconds Adding the original 1O seconds and the subsequent 15 seconds brought time to approximately 25 seconds, which was close to the 30 seconds a.bout which the officer testified earlier. [90] Constable Keating acknowledged that he had spoken with SSM PS Deputy Chief Sparling about the Charter application for approximately 5 to 10 minutes during which the officer was told that excessive use of force by him would be alleged. The officer made no notes about the conversation. He also said that he had no concerns about the conversation because he knew that he had not used excessive force. [91] Regarding the strike itself, the officer described it as a three-quarter extension of his arm and added that he was too close to Mr. Mitchell to fully extend his arm. The technique used was the hard technique of one strike with a closed hand, as opposed to an empty handed strike, which would be regarded as a soft technique. No knee strike was ever used on Mr. Mitchell. [92] Constable Keating acknowledged that his training taught him other techniques including "pain compliance", which could be accomplished by the bending of the suspect's wrist or a strike to the nerves in the thigh. [93] When asked about whether a punch was by its own nature dangerous, Constable Keating testified that not all punches are necessarily dangerous. He cited the example of a strike to the back of the leg of the subject as an example of a means by which to cause pain without causing injury. However, in this particular case, the positions that both he and Mr. Mitchell were in did not allow such a strike to be delivered. The choices that the officer had were to punch Mr. Mitchell in his head or in his torso and the latter option was chosen. [94] Constable Keating asserted that he could not turn to other officers to seek FEB-20-2018 15:14 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 p. 15/49 14 help without running the risk of giving up physical control of Mr. Mitchell. He continued to squirm and resist while he was pinned on the couch. Then he began to donkey kick. It did not occur to the officer to orally ask for the help of other officers. [95] As for the donkey kicking, Constable Keating believed that Mr. Mitchell was doing so in order to try to take out the officer's legs. The officer agreed that no donkey kicking occurred before the strike was delivered. [96] When the officers and the Applicant had arrived at the station, the handcuffs were removed from him. Constable Keating explained that this occurred because Mr. Mitchell had calmed down from his previous behaviour. There was no longer a concern that Mr. Mitchell would become violent again. [97] The officer was questioned about certain words that he addressed to Mr Mitchell and he offered these responses: [98] "... we're gonna go again." - These words referred to the force used at the house and were intended to remind Mr. Mitchell of that force, thereby de-escalating the situation in the booking area. [99] "You should be scared." - These words were intended to remind Mr. Mitchell that there were four officers present in the booking area, and that if Mr. Mitchell became aggressive, he would have to deal with the four officers as opposed to just Constable Keating. [100] "old man" These words were a put down of Mr. Mitchell and they were not consistent with the training that Constable Keating had received. At the same time, the words were intended to remind Mr. Mitchell of his age so that he would remain calm and not engage in further aggressive behaviour. [101] When asked about his use of force to move Mr. Mitchell from the bench in the booking area to a cell, Constable Keating provided the following explanations for what happened: (a) He did not direct Mr. Mitchell to stand up because Mr. Mitchell would have already know that going to the cells required him to stand; (b) He did not drag Mr. Mitchell, but only helped him stand up; (c) He brought Mr. Mitchell to the cell as quickly as possible because he was "getting ramped up again". This action by the officer involved less force than might otherwise be required if Mr. Mitchell had not been moved quickly. (d) As for Mr. Mitchell's awkward movement as he headed down the hallway towards the cell area, the officer said that the slip by Mr. Mitchell was due more to the wet socks being worn by as opposed to the push by FEB-20-2018 15:14 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 p. 16/49 15 the officer. Once Mr. Mitchell was in the cell, the officer did make a "chirping" hand gesture towards him. Constable Keating was the only officer to do so. He acknowledged that the gesture was belittling. [102] Regarding the issue of providing the accused with rights to counsel, Constable Keating considered this action to be part of the arrest process. He was the arresting officer. He had no note indicating that he had provided Mr. Mitchell with the right to counsel. When asked about any conversation that occurred with Mr. Mitchell between the time he was removed from his residence and the arrival at the SSM PS building, Consta.ble Keating said that he had no recollection of the particulars of this conversation. [103] [104] The officer was asked whether Mr. Mitchell's utterances in the booking area demonstrated that he was confused or unclear about why he had been arrested Constable Keating rejected these propositions. He said that Mr. Mitchell's denial that he resisted arrest was confirmation that he knew for what he had been arrested. As for Mr. Mitchell's questioning about what 'breach of recognizance' meant, the officer responded that the accused understood perfectly why he had been arrested. Constable Keating gave evidence that he never heard any officer provide to Mr. Mitchell his right to counsel. After the Applicant was placed in the cell, Constable Keating never went back to see if Mr. Mitchell wanted to speak to a lawyer. After the officer left the cell area, he had no further dealings with Mr. Mitchell. [105] Constable Frank Carchidi On March 26, 2016, Constable Carchidi was working with Constable Carpinelli. At approximately 8:45 p.m., the two officers were dispatched to Mr. Mitchell's home regarding a threat alleged to have been made against Mr. Mitchell. Constable Carchidi understood that Mr. Mitchell had made the call to SSM PS alleging the threat. [106] When the officers attended at the Mitchell residence, Mr. Mitchell came to the door. Mr. Mitchell told Constable Carchidi that he had not called the police, that the police were not required and, in a vulgar manner, that the police should leave. [107] [108] Constable Carchidi noted Mr. Mitchell to be loud, belligerent and intoxicated. No further action was taken by police then. Constable Carchidi had further involvement with Mr. Mitchell at about 11 :50 p.m. that same night when he was asked by Staff Sgt. Hruska to accompany Mr. Mitchell to the SAH. [109] [11 O] At the SAH, the officer rema.ined a few feet away from the Applicant as he spoke to a nurse. The officer was also close at hand when he heard Dr. Beduhn tell FEB-20-2018 15:14 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 P.17,49 16 - Mr. Mitchell that he had only bruising of his left ribs. The officer also saw the nurse provide a pill to Mr. Mitchell, which the officer thought was a pain killer. [111] At 1:40 a. m.. Constable Carchidi and Mr. Mitchell left the SAH. They returned to the SSM PS building. [112] The officer recalled that Mr. Mitchell was complaining of soreness in his left ribs and was visibly in pain. [113] In cross-examination, the officer agreed that he made no notebook entry about Mr. Mitchell being intoxicated and the officer had no specific recollection of any indicia that caused him to form the opinion that Mr. Mitchell was intoxicated. Constable Nicholas Pino [114] Constable Pino has been a member of the SSM PS since early 2008. He has also been a member of the ESU since September 2013. [115] On March 26, 2016, he was partnered with Constable Keating and also dressed in ESU attire. [116] At shortly before 9:45 p. m., the call came from SSM PS dispatch to attend at 121 Weldon Avenue, which is the Mitchell residence, indicating that Mr. Mitchell was intoxicated and smashing things in the house. The officers were also told that Mr. Mitchell was violent, mentally unstable and on a recognizance that required him not to consume alcohol. [117] Constables Pino and Keating arrived at the residence at 9:45 p.m. Constable Boilleau and Neveau and Sgt Bolduc arrived at about the same time. [118] As Constables Pino and Keating approached the house, Nick. Mitchell ran out of the house and met them. Constables Pino and Keating went around Nick and left him to speak with Constable Boilleau. Constable Pino noted that Nick appeared to be scared and frantic. [119] As he entered the house, Constable Pino noted some broken glass in the entry way. In the living room, he saw Mr. Mitchell sitting on the floor, leaning against a couch. In front of him, on a coffee table, were three beer cans. The house was in disarray. [120] Constable Pino went no further than the living room He looked around from there. He noted that Mr. Mitchell's left knuckle was bleeding with some skin torn off it. It looked like this injury had been caused by Mr. Mitchell punching something. [121] Mr. Mitchell told the officers to "Fuck off' and asked them what they were doing there. Constable Pino asked Mr. Mitchell if he had been drinking and the FEB-20-2018 15:15 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 p. 18/49 17 - response was, "Yeah, so?" [122] Constable Pino believed that he was the first officer to speak to Mr. Mitchell. However, both he and Constable Keating were speaking to Mr. Mitchell. Constable Pino recalled that each time Nick Mitchell's name was mentioned, Mr. Mitchell screamed for his son. Constable Pino informed Mr. Mitchell that his son did not want to talk to him. As the investigating officer, Constable Pino believed that he did most of the talking. [123] Constable Pino then left the residence to speak with Constable Boilleau and to find out what Nick Mitchell had reported. This left Constable Keating and Sgt. Bolduc in the residence. [124] Constable Boilleau advised that Nick Mitchell had stated that his father was intoxicated but that he did not want his father charged. [125] The officer estimated that he was inside the residence for two or three minutes before leaving. He was then outside speaking with Constable Boilleau for about 35 seconds. [126] Constable Pino returned to the residence and by now Mr. Mitchell was seated on one of the couches. The officer observed Mr. Mitchell to be belligerent, he was not listening to the officers and he had slurred speech. [127] Constables Pino and Keating spoke with Sgt. Bolduc for "a very few seconds" during which time it was agreed that Mr. Mitchell would be arrested. [128] Constable Keating told Mr. Mitchell that he was under arrest for breach of recognizance. This officer did so because he was the closest officer to Mr. Mitchell. [129] Constable Keating instructed Mr. Mitchell to stand up and put his hands behind his back. Constable Pino estimated that it took about 30 seconds for Mr. Mitchell to stand. As he did so, he said, "I'm not doing anything wrong." Once he was standing Mr. Mitchell bladed himself with his left side being forward and closer to Constable Keating. As for the blading, Constable Pino attributed this stance to the limited space between the couch and the coffee table. He did not interpret the bladed position as a precursor to Mr. Mitchell, throwing a punch. [130] Mr. Mitchell was asked maybe three or four times to turn around and put his hands behind his back. He did not do so. Instead, he became angry and said, "Fuck you." Constable Keating then grabbed Mr. Mitchell's left wrist and moved forward. Mr. Mitchell moved back and pulled away as soon as his wrist was grabbed. In Constable Pino's opinion, the momentum of Mr. Mitchell's movement caused him and Constable Keating to fall onto the couch. [131] Constable Pino ran to the area of Mr. Mitchell's face and head ta try to control his hands. However, they were buried under his stomach. FEB-20-2018 15:15 From:MCCOOEYE,MCCOOEYE 7059459051 To:18558677301 P.19,49 18 [132] Consta.ble Pino instructed Mr. Mitchell by saying, "Give us your hands!" Mr. Mitchell did not comply. Instead, he noted to be kicking. Constable Keating was straddled over Mr. Mitchell. The officer had his left leg on the floor and his right knee on Mr. Mitchell. [133] Mr. Mitchell's hands were not visible to Constable Pino. The officer grabbed Mr. Mitchell's left arm and eventually noted that his left fist was clinched under him. [134] Constable Pino partially saw Constable Keating deliver a blow to Mr. Mitchell. Constable Pino could not say whether Constable Keating's hand was opened or closed. This oral evidence contrasts with the Arrest Report prepared by Constable Pino, wherein he noted "Cst. Keating delivered a closed hand strike to Tim's body to gain compliance." Constable Pino recalled that Mr. Mitchell was told five or six times to stop resisting and to put his hands behind his back before the blow was delivered. This officer also estimated that the time between when the two men were on the couch and when the strike was delivered was "maybe 1O seconds". [135] After the strike, Mr. Mitchell released his hand from under himself. This allowed Constable Pino to grab Mr. Mitchell's left hand and put it behind his back. Constable Neveau then put handcuffs on Mr Mitchell. [136] Mr. Mitchell was still kicking and Constable Keating took him to the ground. Both Constable Pino and Constable Keating told Mr. Mitchell to calm down. He was on the floor for three or four seconds before he said, "Okay, okay." With that, he calmed down. Constable Pino and Constable Keating each took one of Mr. Mitchell's arms and raised him off the floor. The two officers then walked him out to the cruiser. [137] Once Mr. Mitchell was outside, he was noted to be belligerent, but not resistant. [138] At the SSM PS building, they entered the sally port. In this area. Mr. Mitchell was calm and apologizing for his actions. [139] When the two officers and Mr. Mitchell were in the booking area, Constable Keating removed the handcuffs and Constable Pino began to prepare the Arrest Report (Exhibit #14 ). On that Report, the officer noted Mr. Mitchell to be intoxicated. The officer also recalled that Mr. Mitchell had the smell of alcohol on his breath, his eyes were bloodshot, his words were slurred and he was unable to keep his balance. It is noted that there is check box next to the words 'HAD BEEN DRINKING' in which no mark has been made. Constable Pino testified that he may have forgotten to do this. [140] As Mr. Mitchell was being taken to a cell, he was complaining about sore ribs. He had also complained about sore ribs earlier when he washed his hands in FEB-20-2018 15:15 From:MCCOOEYE,MCCOOEYE 7059459051 To:18558677301 19 the booking area. [141] After Mr. Mitchell was taken to the cell area, Constable Pino had no further dealings with him. [142] As for the right to counsel, Constable Pino did not provide this to the accused. Nor did he recall any other officer doing so. [143] In cross-examination, Constable Pino testified that he had no meeting with SSM PS Deputy Chief Sparling regarding this case. He had never had a meeting with the Deputy Chief regarding one of his cases. Nor had any ever heard of the Deputy Chief meeting with an officer regarding a specific case. [144] Constable Pino completed the Arrest Report and put himself down as the arresting officer and the investigating officer because he started the Report. He also believed that he was the officer who took the lead at the Mitchell residence. He was the first officer to engage Mr. Mitchell. [145] Constable Pino's training taught him to attempt to develop a rapport with the subject because the number one goal was to diffuse a situation and obtain a peaceful resolution. This officer considered de-escalation to be part of all officers' training, particularly when dealing with those who are mentally disturbed. [146] Constable Pino attempted to develop a rapport with Mr. Mitchell and tried to explain to him what was going on. He found Mr. Mitchell to be belligerent, but not aggressive. [147] When Constable Pino was 4 or 5 feet away from Mr. Mitchell, they could not smell alcohol on the accused's breath. He did observe Mr. Mitchell's speech to be slurred and he was spitting as he spoke. [148] When Constable Pino came back into the house, he tried to enter into a dialogue with Mr. Mitchell. He did not want to arrest him right away in order to avoid a violent outcome. [149] After Constables Pino and Keating spoke with Sgt. Bolduc, Constable Keating turned to Mr. Mitchell, told him he was under arrest and asked him to stand up. Constable Pino recalled that Sgt. Bolduc said something to Mr. Mitchell about being arrested for drinking alcohol. Constable Pino did not recall hearing Constable Keating tell Mr. Mitchell about the reason for his arrest. [150] When Mr. Mitchell stood, he was in a bladed position, which was caused by the proximity of the couch and the coffee table. He did not recall Mr. Mitchell stepping back into that bladed position. This bladed stance allowed Constable Keating to grab only Mr. Mitchell's left wrist. Once the wrist was grabbed, the two men were on the couch within one to one and oneuhalf seconds. FEB-20-2018 15:16 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 P.21,49 20 - [151] As for the time between the fall onto the couch and the strike by Constable Keating, Constable Pino testified that 1Oseconds was too short an estimate of the time. Instead, he thought the time was perhaps 30 seconds to one minute or maybe longer. When pressed later, Constable Pino testified that he did not believe that he had said "10 seconds" earlier in his evidence. Eventually, he testified that 10 seconds was "absolutely impossible". Instead, this time could have been 30 seconds to one minute or even as long as three minutes. [152] As Mr. Mitchell, lay on the couch, Constable Pino was using both of his hands in an attempt to gain control of Mr. Mitchell. Constable Pino commanded Mr. Mitchell to cooperate by saying either, "Give me your arm!" or "Give us your arm!" The purpose was to gain control of Mr. Mitchell without the need for a punch or strike to be delivered. Constable Pino was not thinking about delivering the strike to Mr. Mitchell. The officer did not want to let go of Mr. Mitchell in order to deliver a strike. [153] Mr. Mitchell continued to tuck his arms under his body in a manner that Constable Pino referred to as a "death grip". Eventually, Mr. Mitchell's arms were freed up after the strike by Constable Keating. [154] Regarding the communication between Constable Keating and Mr. Mitchell. In the booking area, Constable Pino rejected the proposition that Constable Keating was baiting Mr. Mitchell. Instead, the words spoken by Constable Keating were intended to control Mr. Mitchell [155] Constable Pino acknowledged that he did not act like Constable Keating by referring to Mr. Mitchell as "old man", As for the impact of those words, Constable Pino testified that he did not find those words to be either escalating or de-escalating of the situation. On the other hand, his approach with Mr. Mitchell would have been to ignore his comments, such as his history as a fighter. [156] Constable Pino did not provide Mr. Mitchell's rights to counsel Nor did he see any other officer do so. [157] In relation to Constable Pino's ability to recall times accurately, he estimated that he and Constable Keating were at the Mitchell residence for approximately 15 to 20 minutes. The officer's notebook entries recorded his arrival at 21 :45 hours. The SSM PS Communication Log (Exhibit #16) was brought to the officer's attention, and it contained the following details that were not contested by the officer: .,. 21 :51 :26 hours - arrival at the Mitchell residence; and .,. 21 :54:51 - male [Mr. Mitchell] in custody. [158] Constable Pino was also a.sked about the absence of any reference to a 'resist arrest' charge on the form that was faxed to the CAS. It was put to the officer FEB-20-2018 15:16 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 P.22,49 21 that the decision to lay this charge was made only after he and Constable Keating became aware that Mr. Mitchell had been taken to the hospital. The officer rejected this proposition. He said that it was almost automatic with SSM PS to lay this charge when an officer must use force with the subject It was also noted that the Arrest Report contains the entry of this charge, and that Constable Pino completed the Arrest Report shortly after he and other officers had left the cell area. Doctor Rishi Ghosh Dr. Ghosh holds the position of Medical Director of Critical Care and Cardiology at SAH. His resume was entered as Exhibit #19. In the latter part of March 2016, Dr. Ghosh dealt with Mr. Mitchell at SAH. He became the 'most responsible physician' (MRP) in relation to the Applicant's medical care. A CT scan was used twice on Mr. Mitchell. It disclosed that he had rib fractures. Dr. Fratesi of SAH diagnosed Mr. Mitchell's having a collapsed long, with air filling into his chest cavity. It became necessary for a tube to be inserted in two Mr. Mitchell's chest cavity in order to remove the air from there and to allow the lung to re-inflate. [159] Exhibit #19 contains SAH medical records pertaining to Mr. Mitchell from March 28, 2016 until April 7, 2016. [160] Constable Steven Potter As noted earlier, Constable Potter's evidence was presented by way of an agreed statement (Exhibit #20). This officer was on duty on March 27, 2016 from 5:00 a.m. until 5:00 p.m. At 8:56 a.rn,, he attended at the cell area and talked to Mr. Mitchell about speaking with duty counsel prior to his appearance in the Weekend and Statutory Holiday (W.A.S.H,) court. Constable Potter assumed that Mr. Mitchell had been given his right to counsel. When Mr. Mitchell indicated that he wished to speak with duty counsel, "Mr. Mitchell got up by himself, and walked slowly the ten steps or so to the room where the duty counsel was available by telephone." Mr. Mitchell, then spoke in private with duty counsel. [161] Staff Sergeant Ken Hruska This officer was the staff sergeant when Mr. Mitchell was brought in at approximately 10:00 p.m. by Constables Keating and Pino. [162] [163] The Staff Sergeant believed Mr. Mitchell to be intoxicated. The officer's agreed statement (Exhibit #21) continues as follows: 4. He observed Mr. Mitchell and believed him to be intoxicated. While in the booking in area he observed Mr. Mitchell to be argumentative and uncooperative, As per his understanding of SSMPS policy, he therefore directed that Mr. Mitchell be taken to cells immediately and that the booking in process be completed after Mr. Mitchell was in his cell. However, S/Sgt Hruska does not recall attending to Mr. Mitchell's cell to complete the FEB-20-2018 15:16 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 P.23,49 22 - booking in process. 5. S/Sgt Hruska believed that Cst Keating and/or Cst. Pino had provided rights to counsel to Mr. Mitchell, as they were the arresting officers, and it is typically the duty of the arresting officer to do so. S/Sgt Hruska did not himself provide Mr. Mitchell with rights to counsel. S/Sgt Hruska does not know if Mr. Mitchell contacted counsel prior to be taken into cells. Timothy Mitchell [164] On March 26, 2016, Mr. Mitchell was working at a construction job in Sault Ste. Marie. His recollection is that he picked up his children at St. Paul's School before going home. It is noted that March 26, 2016, was a Saturday. [165] After his arrival at home, Mr. Mitchell and his son, Nicholas, argued over money. Nick wanted $20.00 from his father and Mr. Mitchell refused to give it to him. During the argument, Mr Mitchell chased him into the upstairs portion of the house and, while doing so, knocked a picture off of the stairwell wall, causing the glass cover to break. [166] Nick called the police and ran out of the house as the police ran in [167] One of the officers who entered the house told Mr. Mitchell that his son had called the police and that Mr. Mitchell was drinking when he was not supposed to be. [168] Mr. Mitchell was sitting on the couch when this exchange occurred. He asked to speak to his son. [169] One of the police officers moved quickly, shoving Mr. Mitchell to the couch where he was face down and lying on his belly with his arm underneath him. At this point, there was somewhere between five and seven officers in the house. [170] As Mr. Mitchell laid on the couch, Constable Keating was holding his left arm and someone was kneeing him in the left side. He could not see who was kneeing him, but knows that it was Constable Keating who came at him [171] Mr. Mitchell must have passed out from the pain because when he came to he was handcuffed. Mr. Mitchell neither tried to break away from nor escape the officer. The whole thing happened so quickly that he did not have time to do so. [172] When he regained consciousness, Mr. Mitchell asked, "What the fuck did you do that for?" Constable Keating replied, "Mr. Mitchell, when I get you to the station, I'm going to do that again." [173] Mr. Mitchell thought that at some point Constable Pino said to him, "You've been drinking and you have to come with us." FEB-20-2018 15:17 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 P.24,49 23 - [174] Mr. Mitchell was not sure how much he weighed on the date of this incident. His weight, when he testified, was approximately 160 to 170 pounds. He believes that he was about the same weight on the date of the incident. Prior to the arrival of the police, he had consumed three 'tall boys' cans of Budweiser beer. He described himself as having a buzz. He was neither drunk nor sober. [175] Mr. Mitchell rejected the evidence that he stood up when the police came in. He also rejected the proposition that he was told to stand up and put his hands behind his back He was seated on the couch and was still in that position when Constable Keating got on top of him. [176] Mr. Mitchell did not recall being moved from the couch. His next recollection was waking up at the SSM PS station. There, he was in a cell, and there were two puddles of "black stuff' near him. One of those puddles was inside the cell and the second was outside of the cell. [177] Mr. Mitchell's next memory was being at the Algoma Treatment and Remand Centre (ATRC) and feeling pain in his left ribs. He had felt this same pain at both his home and the SSM PS station. [178] Mr. Mitchell's memories of his initial time at theATRC are very limited. He recalled being given Tylenol for the pain. He recalled very little else. [179] The next memory for Mr. Mitchell was that of being at the SAH where Dr. Fratesi told him that he had to operate on Mr. Mitchell. At the SAH, Mr. Mitchell did have surgery. He was in a coma for multiple weeks. [180] In cross"examination, Mr. Mitchell was asked about evidence given by police officers. [181] Regarding the evidence of Constable Carchidi, Mr. Mitchell had no recollection of the officer being at his residence or of making a 911 call. [182] It was Mr. Mitchell's recollection that he did not arrive home before 3:30 p.m. He had nothing to drink before then. Alcohol was not the cause of any compromise of his memory. When Constable Keating entered the Mitchell residence, he testified that he observed broken balusters from the stairwell, leading to the second floor. Mr. Mitchell rejected this evidence. He testified that the balusters had been broken, perhaps as long as two years earlier, by his sons going up and down the stairs. Those balusters were probably in a woodpile outside of the house. [183] The cut on Mr. Mitchell's left hand was not unusual. His hands were always cut because he did not wear gloves when he worked construction or when he worked on cars. However, he did not recall how his left hand was injured on this day. [184] FEB-20-2018 15:18 From:MCCOOEYE,MCCOOEYE 7059459051 - To:1B55B677301 P.25,49 24 - Mr. Mitchell recalled that Constable Pino said something about Mr. Mitchell drinking when he should not have been. Beyond that, he did not think that the officers said anything else to him_ He did not believe that he was told he was under arrest before he was grabbed_ [185] [186] He recalled that one of Constable Keating's hand was holding Mr_ Mitchell's left hand. His left arm was extended back at about a 45° angle. His right hand was underneath. While he was in this position, someone kneed him more than three times, but he could not say how often. He could say that, having been raised with multiple brothers, he knew the difference between being punched and being kneed_ He had no recollection of being punched. [187] The last recollection at his home, after he regained consciousness on the floor, was being told that he would be punched out again at the police station_ Mr. Mitchell attributed his loss of consciousness to the pain in his ribs. [188] Regarding his right to counsel, Mr. Mitchell did not recall any officer telling him that he could speak to a lawyer. While he knew about this right, he was not informed of it on the night of the incident Steven Summerville [189] Mr_ Summerville was presented as an expert regarding the use of force by police officers and other security personnel and the training of police officers in this area_ In the decision released on October 16, 2017, I made the following findings regarding Mr. Surnmerville's areas of expertise: (a)the education and training of police officers in Ontario, particularly in relation to the use of force by police officers when apprehending a person and the use of force by police officers against a person in custody; (b) the use of verbal communication by police officers to diffuse hostility between police officers and persons with whom they are dealing; (c) the understanding and interpretation of the National Use of Force Framework, which has been adopted by police forces in Ontario, and has been provided in training to the two officers involved in this matter, namely Constable Matthew Keating and Constable Nicholas Pino. [190] Mr. Summerville worked as a police officer for the Toronto Police Service from 1978 until 2001. He finished his policing career as a trainer of other police officers. After that, he also worked as a trainer of police officers at the Ontario Police College. Mr. Summerville has subsequently worked in the private sector providing training to security personnel, such as but not only hospital personnel. He has continued to make himself familiar with what is taught to police officers in Ontario regarding the use of force, particularly with that training, including the National Use of Force Framework (Exhibit #9). There is also an Ontario Use of Force model, FEB-20-2018 15:18 From:MCCOOEYE,MCCOOEYE 7059459051 - To:1B55B677301 25 - which became Exhibit #28 in this proceeding. [191] Prominent in each of these circular diagrams is the use of communication The Framework calls upon an officer to assess a situation, then plan and then act. It also calls upon an officer to assess the subject with whom he/she is dealing and to determine the profile model within which the subject fits. There is a range of five models that impact upon the actions to be taken by an officer. Those five models for the assessment of the subject are: (a) Cooperative; (b) Passive Resistant; (c) Active Resistant; (d) Assaultive; and (e) Grievous Bodily Harm or Death. [192] Police officers, including Constables Keating and Pino, have been taught to use different levels of force, depending upon what, if any, level force is required. That force could range from soft up to lethal or deadly force. Prior to the use of force, where it is possible, and officer is taught to use comm~inication as a means by which to obtain voluntary compliance. Even when voluntary compliance has not been achieved, communication remains a method by which an officer might be able to control the subject. [193) [194] What, if any communication is used, prior to the use offorce, depends upon the officer's perception of the circumstances and the subject. In assessing the circumstances, there are a number of factors for the officer to consider, including: (a)the size, condition and emotional state of the subject; (b) the knowledge of the subject; (c) any violence displayed by the subject; (d)the time and distance between the subject and the officer; (e) potential subjective attack signs; and (f) the presence of weapons. [195] The Framework is intended to encourage and facilitate the officer's ability to articulate what he/she perceived and why he/she acted in the manner that he/she did. FEB-20-2018 15:19 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 P.27,49 26 - Communication skills taught to police officers in Ontario involve the use of components including politeness, sympathy and lack of condescension in order to gain compliance from the subject and not to escalate the circumstances. [196] Mr. Summerville gave evidence about some of the physical actions of Mr. Mitchell. That evidence included the following· [197] (a) police officers are taught that blading by subject poses a potential risk to the officer; (b) Mr. Mitchell's refusal to give up his second hand to the police would be described as active resistance; (c) Mr. Mitchell's pulling away from the officer would be described as active resistance; (d) Mr. Mitchell's squirming on the couch would be described as an active resistance. [198] Regarding Mr. Mitchell's refusal to move in the manner directed by the officers, Mr. Summerville opined tt1at this would be considered at either the lowest threshold in the category of active resistance or at the highest threshold in the category of passive resistance. The assessment would depend, in part, on the officer's perception of the movements of the subject. [199] Another factor to be considered by police officers is the level of impairment of the subject This must be assessed because it is relevant to the subject's ability to perceive what is occurring and what is being said to him/her. In this particular case, Constable Keating testified that, on a 0 10 scale, Mr. Mitchell's level of impairment scored 7 or 8. Police officers are trained then to be attentive to the subject's ability to understand what is being said to him/her. [200] Police officers are trained to solicit compliance. They are trained not to "ramp up" a subject. The training of police officers never involves the use of derogatory comments. In the opinion of Mr. Summerville, to do so would be inconsistent with the objective of the de-escalation of a situation. Part Three - The Positions of the Parties [201] Mr. Mitchell seeks the following alternate remedies for breaches of his Sections 7 and 1O(b) Chatter rights either (a) a stay of the proceedings, or (b) the exclusion of the evidence subsequent to the arrival of the police at the Mitchell residence, or (c) findings of not guilty on each of the charges. [202] The positions advanced are briefly summarized as follows: FEB-20-2018 15:19 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 P.28,49 27 - (a) Constable Keating is not a credible witness. (b) His explanations for his conduct are either embellished, logically inconsistent or contradicted by the evidence of Constable Pino. (c) Constable Keating also provided inconsistent evidence during his testimony. (d) Constable Keating exaggerated the behaviours and level of the impact of alcohol upon Mr. Mitchell in order to provide an after-the-fact justification for his conduct. (e)The meeting of Deputy Chief Sparling and Constable Keating should be troublesome forthe court not only because of its irregularity, but also because it caused the officer to think further about the answers he would provide regarding his conduct, even though the officer said that the meeting caused no such further thought (f) Neutral evidence, such as the SSM PS Communications Log and SSM PS videos, contradict the evidence of Constable Keating. (g) Constable Keating's conduct was inconsistent with police training regarding the use of communication for the purpose of de-esca.lation prior to the use of any force. (h) Constable Keating's treatment of Mr. Mitchell involved the excessive use of force followed by further demeaning and abusive behaviour (i) The evidence does not clearly establish that Mr. Mitchell was informed and understood that he was under arrest before he was physically engaged by the officer and so, in the absence of this understanding, there is reasonable doubt as to whether Mr. Mitchell was willfully resisting the police officer in the execution of his duty. U) The evidence of Mr. Mitchell was never undermined by cross-examination. That includes evidence that he did not understand why the police officers had taken the actions that they did. (k) The force used by Constable Keating was excessive and had significant physical consequences for Mr. Mitchell. The force was used when there were less aggressive options available to the officer. The over-aggressive treatment of Mr. Mitchell continued at the police station, even in the presence of a supervising officer, who did not intervene. (I) No police officer provided Mr. Mitchell with his right to counsel, even though there were opportunities for this to be done. FEB-20-2018 15:20 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 P.29,49 28 - (m) Mr. Mitchell's security of the person, as set out in Section 7 of the Charter was breached and the conduct of the police amounted to one of the clearest of cases in which a stay of proceedings should be granted. (n) In the alternative, the exclusion of all evidence after the arrival of the police at the Mitchell residence would be an appropriate remedy in light of both breaches of Charter rights. The exclusion of this evidence would leave the court with the limited evidence and it would not substantiate a finding of guilt on either of the charges. [203] The Crown has submitted the following positions: (a) Prior to the arrival of the officers at the Mitchell residence, they had information indicating that Mr. Mitchell had consumed alcohol contrary to his recognizance, that the accused had been violent on this date, and that the accused was known both to be violent when drinking alcohol and for hating police. (b) The attendance of the officers at the Mitchell residence was necessary and within a short time of their arrival, there was evidence that Mr. Mitchell had consumed alcohol contrary to the terms of his recognizance. This provided the officers with reasonable and probable grounds to arrest Mr. Mitchell. (c) Mr. Mitchell was informed that he was under arrest and of the reasons for the arrest. He was directed to put his hands behind his back and he chose not to do so. Constable Keating was justified in grasping Mr. Mitchell's wrist in order to effect the arrest. Mr. Mitchell's conduct thereafter which was a willful resistance to the arrest, included pulling away from the officer, squirming, placing his arms and hands under his body and refusing to place them behind his back and donkey kicking at Constable Keating. (d) The force used by Constable Keating must be assessed in all of the circumstances of this incident. The officers were executing a lawful duty and the accused was preventing them from doing so. The force used involved only one punch to an area of the body that is consistent with use of force training provided to police officers in Ontario. In addition, the force used is consistent with the Sault Ste. Marie Police Service Use of Force Policy. (e) The force used was disclosed by Constable Keating to his superior officer. No effort was made to conceal the use of force. (f) None of the conduct in question amounted to a breach of Mr. Mitchell's Section 7 Charter right and so none of the remedies sought in this regard should be granted. (g) When it became known to police that Mr. Mitchell required medical attention, that medical attention was obtained for him. When he first attended FEB-20-2018 15:21 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 P.30,49 29 - at the SAH, there was no medical diagnosis of broken ribs or a collapsed lung. Mr. Mitchell was released by medical professionals back to the care and custody of the SSM PS. There might have been a failed diagnosis on the part of medical professionals at the SAH and, if so, the officers involved and the SSM PS cannot be held accountable for that. (h) The assessment by Constables Keating and Pino that Mr. Mitchell was intoxicated is confirmed by his behaviours, which included swaying while walking and having loud slurred speech, as seen on the SSM PS video. Mr. Mitchell's lack of recollection of the attendance of Constable Carchidi at the accused's residence earlier in the evening is also indicative of Mr. Mitchell's level of intoxication on the night of the incident. (i) Any assertion by Mr. Mitchell of the defence that he did not willfully resist the police officer because of his level of intoxication is precluded by the provisions of Section 33.1 (1) of the Criminal Code. U) Mr. Mitchell's s. 10(b) Charterright was breached. One of the purposes of that right is to provide an arrested person with the opportunity to speak to counsel in order to protect against the provision of self-incriminating evidence. No such evidence was provided in this case. No statement was provided by the a.ccused. No incriminating evidence was gathered from him. (k) There was no bad faith on the part of the officers in failing to provide Mr. Mitchell with the right to counsel or the opportunity to exercise that right. His conduct in the booking-in area led to his placement in a cell. Then, there was no absence of good faith that caused the failure to provide the right to counsel. (I) Mr. Mitchell was no stranger to the criminal justice system and knew of his right to counsel. (m) This breach of the right was technical and had no impact upon the accused. It does not support or justify any of the remedies sought by Mr. Mitchell. (n) The Charter application should be dismissed in relation to the remedies sought by it (o) The totality of the evidence proves the guilt of the accused in relation to each of the two charges before the court. Part Four - Analysis Issue #1 - Section 7 Charter Right FEB-20-2018 15:21 From:MCCOOEYE,MCCOOEYE 7059459051 - [204] To:18558677301 P.31,49 30 - The starting point of this analysis must be Sections 25 and 26 of the Criminal Code. [205] Subsection 25(1) states: Protection of persons acting under authority 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 rea_sonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose. [206] Section 26 states: E;xcessive force 26 Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess. [207] The next question to be answered is whether the force used by Constable Keating was "as much force as necessary for that purpose" or whether the force was excessive. What Force Was Used against Mr. Mitchell? [208] It is also necessary to determine what force was applied to Mr. Mitchell. [209] Constables Keating and Pino have testified that Constable Keating applied force to Mr. Mitchell. Constable Keating gave evidence that he did so by using one strike with a closed fist. Constable Pino was not in a position to see whether his partner's hand was opened or closed, but he agreed that only one strike was used_ [21 O] Mr. Mitchell has also given evidence_ He rejected both the assertion that he was struck only once and the evidence that he was struck with a fist Instead, he gave evidence that he was kneed in the side at least three times if not more_ FEB-20-2018 15:21 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 P.32,49 31 - [211] Given that Mr Mitchell's credibility has been challenged and that his credibility is in issue, it is necessary to assess Mr. Mitchell's evidence in accordance with the principles of R- v W (D-), [1991] S.C.J. No 26, 63 C.C.C. (3d) 397 (SCC). [212] There are three stages in the analytical framework provided by the R. v. W (D.) decision. Those are: 1) if the trier believes the evidence of the accused, then the accused must be acquitted; 2) if the trier does not believe the testimony of the accused, but is left in reasonable doubt by it, then the accused must be acquitted; 3) even if the trier is not left in doubt by the evidence of the accused, the trier must ask whether the trier is convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidence which is accepted by the trier. [213] In examining the evidence of Mr. Mitchell, like all other witnesses who have testified, it is necessary to evaluate his credibility. Credibility includes both the reliability and the honesty of the evidence. [214] I find that there is a concern regarding the reliability of Mr. Mitchell's evidence [215] There are a number of factors to consider in assessing this evidence, and they include: (a) Mr. Mitchell's consumption of alcohol; and (b) Mr. Mitchell's level of consciousness or lack of consciousness during these events. [216] Regarding the consumption of alcohol, Mr. Mitchell gave evidence that he did not begin to drink alcohol until he had arrived home after 3:30 p.m. He determined that time by reference to both his work and his attendance at the school of his sons. As noted above, March 26, 2016, was a Saturday. While it is possible that Mr. Mitchell's sons were at their school that day, it would not have been in the usual school routine with the usua.1 end of the school day. Thus, Mr. Mitchell's recollection of both attending the school and the earliest time at which he began to drink are suspect [217] Mr. Mitchell also gave evidence that he had consumed only 3 'tall boy' cans of beer. This is consistent with the three crushed beer cans seen on the coffee table by Constable Pino. It is inconsistent with Constable Keating's estimate that there were five such crushed cans on the coffee table. It is noted that 'tall boy' cans of beer are larger than the average 12-ounce can of beer. [218] At approximately 8:45 p.m., when Constable Carchidi attended at the Mitchell residence, he noted Mr. Mitchell to be intoxicated. Mr. Mitchell has no FEB-20-2018 15:22 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 32 - recollection of this officer attending earlier in the evening. [219] When Nick Mitchell communicated with the police, he reported that his father had been drinking. It is unclear whether he used the specific word "intoxicated". Even if he had done so, Nick Mitchell was not called upon to testify and to explain what he meant by whatever words he used. [220] The SSM PS booking area video discloses the following about Mr. Mitchell's condition: (a) His speech was slurred - I have had the opportunity to hear Mr. Mitchell speak in the courtroom and there was a noticeable improvement in his ability to enunciate when he testified, as opposed to how he spoke in the booking area. (b) His moods changed quickly- Early after his arrival in the booking area, Mr. Mitchell can be heard to move from pleading, to almost crying, to being loud, argumentative and asserted. Again, even under the test of crossexamination, those same changes in mood were not evident in Mr. Mitchell. (c) His physical movements involved staggering - I am mindful that Mr. Mitchell was in pain when he was in the booking area. This was visible as he walked at one point holding his left side. He also informed all officers present that he was in pain. Nevertheless, I find that the video shows that Mr. Mitchell swayed as he walked. [221] The totality of this evidence shows that Mr. Mitchell was under the influence of alcohol. It compromised his ability to perceive and recall. [222] Mr. Mitchell also lost consciousness from time to time. He specifically attributed that to the pain that he experienced as a result of the force applied to him and dismissed this lack of consciousness to be due to his alcohol consumption. It is not necessary for this analysis to determine what caused the periodic and significant lack of consciousness. It is clear, particularly from Mr. Mitchell's evidence, that it weakened his ability to recall all that happened to him. [223] Mr. Mitchell testified that, while he could not see any blow being delivered to him, he knew the difference between being kneed and being punched. He also knew that he was struck at least three times. Despite Mr. Mitchell's efforts to recount what had happened to him, I find this evidence to be unreliable. It is weakened by the influence of alcohol upon him, his periodic lack of consciousness and his inability to see how he was being struck (224] For these reasons, I do not accept his evidence that Mr Mitchell was kneed three or more times in the side by Constable Keating. [225] Next, not only I find Mr. Mitchell's assertion that he was kneed repeatedly FEB-20-2018 15:22 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 P.34,49 33 - by the officer is not reliable, I also find that any Mr. Mitchell's evidence on this point does not undermine the evidence of Constable Keating and Constable Pino. [226] In addition to assessing Constable Keating's oral evidence, I have also considered what was said in the booking area of SSM PS_ Mr. Mitchell can be heard to ask, "Who's the cop that hit me?" Constable Keating replied promptly, "That was me." There was no effort to conceal his use of force and this response was immediately followed by the explanation that Mr. Mitchell was resisting arrest. It is evident that the officer believed then that his conduct was justified. At no time was it asserted with the officer that he had kneed Mr_ Mitchell even once let alone repeatedly. [227] Furthermore, Constable Pino's evidence that he saw only one strike delivered to Mr_ Mitchell was not shaken. [228] Thus, I find that the force used against Mr. Mitchell at the time of his arrest was one strike by Constable Keating with a closed fist applied to the left rib area of Mr. Mitchell. This is not to say, at this stage in the analysis, that this is the only force used by the police that must be considered. Was This Force Used Necessary? [229] In order to determine this question, an assessment of the circumstances immediately before the application of force is required. [230] On the night in question, police officers attended twice at the Mitchell residence and dealt with Mr. Mitchell. [231] When Constables Keating and Pino attended later in the evening, they had no knowledge of the previous attendance by Constable Carchidi. Thus, that earlier attendance was not a factor in Constable Keating's decision to apply force_ [232] What was known to Constables Keating and Pino was the information provided by the SSM PS dispatch. That information was that Mr. Mitchell was intoxicated; had smashed items in his house using a hockey stick; had been in a dispute with his son, Nick; and, that he had been consuming alcohol, contrary to his bail conditions. It was also known that Mr. Mitchell had a history of being violent when consuming alcohol and that he hated police. [233] There is contradictory evidence from the officers as to what occurred when they first arrived at the residence_ Constable Keating testified that he spoke with Nick Mitchell at the door of the residence and received further information. Constable Pino testified that the officers went past Nick Mitchell and entered the house, leaving the young person to be spoken to by Constable Boilleau, who arrived almost concurrently with the first two officers. [234] On this point, I accept the evidence of Constable Pino_ I do so because FEB-20-2018 15:23 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 P.35,49 34 - Constable Pino testified that, at some point, he left the house in order to be apprised of the information that Constable Boilleau obtained from Nick Mitchell. If Constables Pino and Keating had spoken to Nick Mitchell, before they entered the residence, then there would have been no need for Constable Pino to leave the residence to obtain that information. [235] When Constables Keating and Pino entered the house, they saw Mr. Mitchell seated on the floor with his arms propped up on the couch behind him. Mr. Mitchell was verbally aggressive and abusive but was not physically aggressive towards either officer, even though he objected to them being in his residence. [236] Constable Keating then had the opportunity for some 30 seconds to examine the residence. He noted it to be in disarray and also noted at least three weapons of opportunity on the first floor of the residence, which were: {a) the hockey stick; (b) broken balusters from the stair railing; and (c) broken glass on the kitchen floor. [237] None of those weapons of opportunity, was identified as being within arm's length of where Mr. Mitchell was seated on the living room floor. [238] When both Constable Keating and Constable Pino saw Mr Mitchell next, he had moved from the floor to the couch. Neither officer saw this move occur Neither officer gave evidence that he regarded the move as aggressive or threatening. [239] Constable Pino testified that, as the first officer into the residence, he attempted to develop some rapport with Mr. Mitchell The purpose was to avoid a physical confrontation. [240] Constable Keating had the time, as Mr. Mitchell continued to be seated, to assess the situation further. In his assessment, Mr. Mitchell was intoxicated at a level of 7 or 8 on a 10-scale. Mr. Mitchell was loud, belligerent and verbally abusive of the police. [241] The police training that each officer had received called upon each officer to assess the situation, plan and then act. Each officer was trained and familiar with the National Use of Force Model, which calls upon him to consider whether the subject of interest to them, namely Mr. Mitchell, was somewhere between cooperative and presenting the risk of serious bodily harm or death. [242] The training of the officers also calls upon the use of communication techniques in order to avoid physical confrontation. As Constable Keating testified, tactical communication can be used to get a subject to do what the police want him/her to do. This is what Constable Keating did. He directed Mr. Mitchell to stand FEB-20-2018 15:23 From:MCCOOEYE,MCCOOEYE 7059459051 - 35 To:18558677301 P.36,49 ~ up and received compliance. When he did so, Mr. Mitchell was in a bladed stance. I accept that evidence because it is consistent not only with the evidence of Constables Keating and Pino, but it is also consistent with evidence that Constable Keating was able to grab only one of Mr. Mitchell's wrists, which would have been the one closest to the officer. [243] However, once Mr. Mitchell had stood, was it necessary for any force to be applied? Mr. Mitchell either ignored or did not understand the direction to put his hands behind his back. What was the situation at this point? Mr. Mitchell, weighed approximately 170 pounds (or 160 pounds as noted on the Arrest Report), was standing facing at least four officers - Constables Keating, Pino, Neveau and Sgt. Bolduc. The subject had no weapons of opportunity close at hand. It is unlikely that Mr. Mitchell had any concealed weapon. He was shirtless and wearing track pants. No officer testified that he had any concern about the possibility of a concealed weapon on Mr. Mitchell's person. The subject, while standing behind a coffee table, had nowhere to go in this small living room, as depicted in multiple photographs filed as exhibits. [244] What course of action did the police have available to them? The first course of action was to seek voluntary compliance from the subject This would have involved efforts, perhaps even repeated efforts, to ask Mr. Mitchell to step out from his location into a part of the room where the physical control of him that was necessary to effect the arrest could be taken. There was no urgency to the situation as Mr. Mitchell stood facing the officers. The person who had been threatened, Nick Mitchell, was not in the immediate area and was not at risk. Patient communication that would not have aggravated or accelerated the situation was the best technique available to the police. In saying this, I am mindful that the job of a police officer is and can be regularly dangerous. Despite even careful surveillance of the situation, there is always the risk of the unknown or the risk that is not immediately visible. [245] This was not the course of action taken by the police. In noting this, I am not ignoring the evidence that Mr. Mitchell was told more than once to turn around and put his hands behind his back, or that he responded by saying, "Fuck you." Nevertheless, time and numbers favoured the police if a conclusion without physical force was to be achieved. [246] When Constable Keating decided to arrest Mr. Mitchell, the officer was entitled to take some physical control of the subject He attempted to do so by grasping Mr. Mitchell's left wrist. [247] Constable Keating testified that Mr. Mitchell then began to attempt to pull away and he responded by pushing Mr. Mitchell on the couch. Constable Pino's evidence that Mr. Mitchell pulled back and thereby pulled Constable Keating with him onto the couch is rejected. It is contradicted by the evidence of Constable Keating. It is also inconsistent with the circumstances. Mr. Mitchell, who was 54 years old, weighed approximately 170 pounds. Constable Keating weighed FEB-20-2018 15:24 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 P.37,49 36 - approximately 265 pounds when all of his police gear was included. His employment with the ESU permitted him to work. out four days per week. I find it illogical that Mr. Mitchell would have been a.ble so easily to pull this much younger and fitter officer off of his feet and onto the couch. [248] Once Constable Keating was on top of Mr. Mitchell on the couch, it is clear that he was attempting to gain physical control of the accused. It is also accepted that he and Constable Pino were both directing Mr. Mitchell to put his hands behind his back. Having said that, it must be noted that all of the evidence indicates that Mr. Mitchell's right hand was pinned under his body. Could he have rolled over on to his stomach in order to give himself an opportunity to move his right hand behind his back, as was suggested by one of the officers? I reject that suggestion. Constable Keating was using his superior strength and greater weight to restrain Mr. Mitchell against the couch. At the same time, the evidence does indicate that Mr. Mitchell made no effort to release either hand. Both hands were clutched against his chest. [249] While Mr. Mitchell was being held on the couch, was there a valid concern that there might be a weapon in the couch about which Constable Keating needed to be concerned? I reject that possibility and do so for various reasons. First, Constable Keating had an opportunity to survey the room and provided no evidence about any weapon immediately available to Mr. Mitchell. Second, it is illogical that Constable Keating would have pushed Mr. Mitchell towards a location where he would have had potential access to a weapon. Third, Mr. Mitchell's hands were contained close to his body and, in that position, would not have given him access to anything inside the couch. Thus, there was no urgency to take further physical control of Mr. Mitchell because of the risk of a weapon concealed in the couch. [250] For how long did Constable Keating struggle with Mr. Mitchell on the couch before delivering the strike? There are different pieces of evidence on this point. In examination in-chief, Constable Keating estimated the time to be between 30 and 45 seconds. However, when the officer provided his statement to the SIU, he estimated the time as follows - " ... again ... maybe 15 seconds if I had to guess ... again, things, things progressed very quickly". It must be noted that this statement was given on April 6, 2016, being a date, substantially closer in time to the incident than September 18, 2017 when the officer provided his examination in-chief evidence. It is also noted that the interview by SIU personnel was conducted in a calm and paced manner and that Constable Keating was accompanied by both a member of the Police Association and his own counsel. [251] On this same issue, Constable Pino initially testified that time involved was "maybe 10 seconds". His subsequent rejection of the evidence and effort to stretch the timeframe from somewhere between 30 seconds and even as long as three minutes is not credible. Nor is it consistent with the times recorded in the SSM PS Communications Log. That log indicates that the total time from the point that Constables Keating and Pino reported their arrival at the residence until one of the officers also reported that Mr_ Mitchell was in custody was three minutes and 25 FEB-20-2018 15:25 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 P.38,49 37 - seconds. [252] I find that the strike rendered by Constable Keating against Mr. Mitchell occurred within 15 seconds or less of the time that the two men went to the couch. During that time, while Mr. Mitchell was squirming and donkey kicking, he did not apply any harmful or dangerous force to the officer. It is also telling that, during this time, Constable Keating did not call for the physical assistance of any of the three other officers who were closed by in the living room. Constable Keating determined that he should deliver a strike to Mr. Mitchell in order to gain control of him, without seeking the assistance of other officers to do so. [253] The strike itself was forceful. It involved Constable Keating using the full extension of his arm. It also involved the use of a closed fist, when other softer techniques such as a blow with the palm of an open hand, or the assistance of other officers was available to Constable Keating. The force applied was strong enough to break Mr. Mitchell's ribs. In speaking of the assistElnce of other officers, I remain mindful of the close quarters of the living room, particularly because of the obstruction caused by the coffee table. At the same time, I am also mindful that, once Mr. Mitchell had rolled over following the strike to his side, Constable Neveau was able to get involved quickly placing handcuffs on Mr. Mitchell, while he was still on the couch. [254] I find that the brevity of time between when Mr. Mitchell and Constable Keating landed on the couch, the absence of any assistance sought by other officers, the force used in the strike and the use of a closed fist as opposed to a softer technique are cumulatively an excessive use of force. This force used was beyond what was necessary in the circumstances. The excess offorce violated Mr. Mitchell's s. 7 Chatter right to security of the person. The Applicant has proven this breach on the balance of probabilities. [255] The abruptness of Constable Keating's actions towards Mr. Mitchell are also evident in the booking room video. When it was decided that Mr. Mitchell was to be placed in a cell, he was removed forcibly from the booking room bench before being asked to stand. No opportunity was taken to see whether Mr. Mitchell would be compliant with any tactical communication. The assertion by Constable Keating that he was helping Mr. Mitchell to his feet is inconsistent with the speed at which Mr. Mitchell was removed from his seated position. There was no time or opportunity taken by the officer to assess whether Mr. Mitchell needed any assistance in getting to his feet. Thereafter, Mr. Mitchell was moved down the corridor to the cell area at a very brisk speed. As for the assertion that Mr. Mitchell was getting "ramped up again'', he was seated on the bench and, while he was verbally aggressive, he had not been physically aggressive at any time after he arrived in the booking room. issue #2 - The Appropriate Remedy FEB-20-2018 15:26 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 P.39,49 38 - The Stay of Proceedings. [256] The Applicant has sought alternative remedies in relation to the breach of the s. 7 Charter right. The first alternate remedy sought is a stay of proceedings. [257] Section 24(1) of the Charter provides the authority to address a Charter breach by way of a remedy that "the court considers appropriate and just". The remedy sought by the Applicant is a stay of proceedings. It is not the only remedy available under this subsection of the Charter. [258] Numerous judicial decisions have indicated that a stay of proceedings should be granted only in the clearest of cases. [259] In R. v. Tran, [201 OJ 0.J. No. 2785 (ONCA) the court said the following about the use of the remedy of the stay of proceedings: 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": para. 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. [260] In this particular case, the breach of the Charter right is significant The application of excessive force upon Mr. Mitchell resulted in broken ribs and eventually a punctured lung. There is no evidence of any intervening act between the broken ribs and the punctured lung to suggest that the two are not directly connected. FEB-20-2018 15:26 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 P.40,49 39 - [261] On the other hand, medical treatment was provided to Mr. Mitchell. He was not denied that treatment by SSM PS. Nor was the use of force by Constable Keating against the Applicant concealed from a supervising officer or this court Constable Keating readily admitted on March 26, 2016, that he struck Mr. Mitchell and has asserted since that date that he was authorized by law to do so. [262] While I have made adverse findings regarding some of the evidence of both Constable Keating and Constable Pino, the evidence does not support a finding that the Crown has rendered the proceedings unfair or acted in such a manner as to adversely affect the integrity of the administration of justice. [263] Nor do I find that this is a case where no other remedy is capable of removing the prejudice caused to the accused by the breach of his Charter right. [264] In paragraph 104 of the R. v. Tran, supra, the Court of Appeal went on to say the following: 104 In my view, this is one of those "clearest of cases", were the prosecution should be halted. This case involved horrendous police misconduct that breached Tran's ss. 7 and 12 Charter rights, jeopardized the perception of trial fairness and brought tile integrity of law enforcement into disrepute. [265] In that case, not only did two officers assault, Mr. Tran, breaking his jaw, but they also covered up evidence of the assault, tried to get Mr. Tran to provide a false statement explaining his injuries, failed to obtain any medical attention for him, and then at least one of the officers sat at Crown counsel's table during the trial until he was removed, after a defence motion, by the trial judge. [266] In the case at hand, while Constable Keating's use of excessive force is unacceptable, the conduct of the police after the use of force against Mr. Mitchell, bears no resemblance to the most disgraceful conduct of the police against Mr. Tran. I do not find that the conduct in the case at hand is so reprehensible to constitute one of the "clearest of cases" for which a stay of proceedings should be invoked. As noted in paragraph 90 of the R. v. Tran, supra, decision: 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 The Exclusion of Evidence. [267] The Applicant seeks to exclude all evidence acquired, beginning with the time of the arrival of the officers at the Mitchell residence and at all times thereafter. [268] Before determining whether this remedy should to be granted, the breach must be assessed in accordance with the analytical framework provided by the Supreme Court of Canada in R. v. Grant, [2009] 2 S.C.R. (SCC). [269] The first line of inquiry is the seriousness of the Charter-infringing state FEB-20-2018 15:27 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 P.41,49 40 - conduct. The focus here is on whether the admission of evidence would harm the reputation of the justice system. [270] In the case at hand, there was limited evidence acquired after the excessive use of force. Prior to the strike, there was some evidence regarding the Applicant's consumption of alcohol. The Recognizance of bail in issue was admitted as Exhibit #1 in the trial. There was also some evidence regarding Mr, Mitchell's resistance to commands from the police officers to present his hands as part of the arrest. [271] This first line of inquiry also calls for consideration of the "impact on the justice system of admitting evidence obtained through police misconduct". (R. v. Grant, supra - para 94) [272] In this case, some of the evidence regarding Mr. Mitchell's alleged resistance to Constable Keating arises after the strike upon the Applicant. In addition, some of the evidence regarding Mr. Mitchell's state relating to the consumption of alcohol also arises after the breach of the s. 7 CfJarter right [273] The admission of evidence obtained following the excessive use of force by police would have a negative impact upon the Justice system. I find that admitting this evidence would serve to undermine the public confidence in the justice system and its requirement that police adhere to the maintenance of CfJarter rights. [274] I find that this first line of inquiry weighs in favour of the exclusion of evidence. [275] The second line of inquiry calls for consideration of whether the breach "actually undermined the interests protected by the right infringed". (R. v. Grant, supra - para 95) [276] In the case at hand, the conduct clearly underlines the Applicant's right to security of the person. This conduct in issue involved the excessive use of force by a police officer against the Applicant. That excessive force significantly compromised Mr. Mitchell's personal health and well-being. As noted, he suffered broken ribs and then a punctured lung. These injuries caused Mr. Mitchell to undergo surgery. He also spent an amount of time in hospital, weeks of which were spent in a coma. The difficulty in assessing the overall impact upon Mr. Mitchell lies in considering the medical treatment that he received on the early morning of March 27, 2016. His broken ribs were not diagnosed then. While there is some medical evidence regarding Mr. Mitchell's physical condition after the first hospital attendance, that evidence does not assist this court in determining whether Mr. Mitchell's lengthy hospitalization and precarious health condition would have occurred if the broken ribs had been detected during that first hospital attendance. Thus, the seriousness of his medical condition cannot be assigned solely to the strike from constable Keating. FEB-20-2018 15:28 From:MCCOOEYE,MCCOOEYE 7059459051 - To:1B55B677301 P.42,49 41 - [277] Nevertheless, given the seriousness of the use of excessive force by a peace officer beyond the lawful execution of his duty weighs in favour of the exclusion of evidence. [278] The third line of inquiry is the societal interest in the adjudication of the case on its merits. The focus here is on the interest of having the charges tried fairly on their merits. [279] To exclude the evidence, as sought by the Applicant, would have the effect of preventing the charges from being tried on their merits. The Applicant has argued that these charges are not serious and that the societal interest in having less serious charges adjudicated is limited. I find that an allegation that the accused has breached a court order is a serious matter. So too is an allegation that a person has resisted a peace officer in the lawful execution of his duties. For these reasons, I find that this line of inquiry favours the admission of the evidence that the Applicant seeks to exclude. [280] Before proceeding further, I find that it is necessary to reconsider the first line of inquiry in light of the decision of the Ontario Court of Appeal in R. v: Pino, 2016 ONCA. In that decision, the Court of Appeal indicated that words "obtained in a manner that infringed or denied any rights" in subsection 24(2) of the Cf1arter needed to be interpreted in a "generous and increasingly broad approach" (para 48) the approach should consider more than the 'temporal' or 'causal' connection between the breach and the acquisition of the evidence. In paragraphs 72 to 74 of R. v. Pino, supra, the Court said: [281] 72 Based on the case law, the following considerations should guide a court's approach to the "obtained in a manner" requirement ins. 24(2):* • The approach should be generotis, c;onsistent with the purpose of s. 24(2) • The court should consider the entire "chain of events" between the accused and the police • The requirement may be met where the evidence and the Ch11rter breach are part of the same transaction or course of conduct • The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections. • But the connection cannot be either too tenuous or too remote. 13 Here, the two•· 10(b) breaches along with the s. 8 breach meet the "obtained in a manner" requirement. The marijuana seized from the trunk of Ms. Pino's car and all three Ch11rter breaches are part of the same tronsaction. That transaction or the common link between the evidence and the breaches is Ms. Pino's arrest. 74 The connection between the evidence and the breaches is both temporal and contextual, and is neither too tenuous nor too remote. The connection is temporal because the three breaches are relatively close in time and are part of a continuum straddling Ms. Pino's arrest. The connection is also "contextual". I take "contextual" -- a word often used by lawyers and judges -· to mean pertaining to the surroundings or FEB-20-2018 15:28 From:MCCOOEYE,MCCOOEYE 7059459051 - To:1B55B677301 42 - situation in which something happen~. In this case, the something that happened is Ms. Pino's arrest. And the twos. lO(b) breaches and the s. 8 breach surrounded her arrest or arose out of it. Indeed, the trial judge found that the s. lO(b) breaches form "part of the context" in which the s. 8 breach occurred. [282] In that case, the accused was stopped in her vehicle by police officers and at least one of the officers pointed a handgun at the accused. The trunk of the accused's vehicle was then searched disclosing the presence of marijuana plants. That search occurred before the accused was given her right to counsel. The trial judge found that the accused's rights under both s.8 ands. 10(b) of the Charterwere breached by the police conduct. The trial judge also found that the police officers provided this honest testimony during the trial. [283] In assessing the first line of inquiry in the R v. Grant analysis, the Court of Appeal said the following: 100 The trial judge found that the s. 8 breach, in context, was "of more than modest seriousness", but "far from at the extreme end of seriousness", That finding cannot stand for two reasons. 101 First, the s. lO(b) breaches now directly affect the overall seriousness of the police's conduct. Instead of looking at the seriousness of the s. 8 breach alone, as the trial judge did, all three breaches must be assessed. Even accepting the trial judge's finding that the firsts. lO(b) was "nothing more than a failure to recall", the seconds. 10(b) breach was itself far more serious. The trial judge found that the police's failure to facilitate Ms. Pino's right to counsel without delay was a "clear and serious breach" of s. 10(b), reflecting the police's disinterest in her rights. That finding alone elevates the overall seriousness of the Charter breaches. 102 Second, the police's dishonest testimony about the arrest, though not an element of the Charter breach itself, is relevant to the first Grant factor. In my view, the trial judge understated Its impact. The Supreme Court's decision in R. v. Harrison, 2009 sec 34, [2009] 2 S.C.R. 494 1 is directly on point. In that case, at para. 26, the Supreme Court endorsed the observation of my colleague Cronk J.A. in her dissenting reasons in this court: The integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority. 103 For these reasons, to adopt the trial judge's phrase, the three Charter breaches are close to "the extreme end of seriousness." This first Grant factor favours exclusion of the evidence. Admission of the evidence in the light of the seriousness of the breaches, and especially the officers' dishonest testimony, may send the message that the justice system condones this kind of conduct. [284] As noted above, the entire "chain of events" between the police and the accused should be considered. [285] In this case, following the excessive use of force, further unnecessary force FEB-20-2018 15:29 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 P.44,49 43 - was applied against Mr_ Mitchell. He was moved abruptly and forcibly from the bench in the booking area, then moved forcibly down the corridor to the cells area and then pushed from behind once he was in the cell. There was no evidence that Mr Mitchell was resisting or would have resisted going to the cell. As he was being escorted down the corridor, he can be heard saying, ''I'll get in the cells, you don't have to (unclear) me up." The verb used by Mr. Mitchell is difficult to hear. Counsel for the Applicant has asserted that the verb that is unclear is "rough"_ I have listened repeatedly to the recording and the verb that I hear is "round"_ One way or the other, Mr. Mitchell's utterances indicates his willingness to comply with the instruction that he attend the cell area without the need of being forced to do so. [286] In addition to these various applications of gratuitous force, the Applicant also had comments directed at him by Constable Keating, suggesting that the officer was prepared to apply again the physical force that had been applied against Mr_ Mitchell in his home. Utterances from the officer, such as "Tim, if you don't smarten up ___ if you don't smarten up we're gonna go again and I don't wanna do that", might have been intended to discourage Mr. Mitchell contemplating employing any physical force, but they had the opposite effect. Instead, Mr. Mitchell responded by telling the officer that he was not afraid of the officer. This did not de-escalate the situation or ensure that Mr. Mitchell that no further unnecessary physical force would be applied against him. As noted earlier, the supervising Staff Sergeant took no action to curtail the comments directed at Mr. Mitchell, nor did the Staff Sergeant express any disapproval of those comments made by Constable Keating [287] Constable Keating's references to Mr. Mitchell as an "old man" were intended to be demeaning. [288] This substandard treatment of Mr. Mitchell also occurred in relation to his right to counsel. The Crown has acknowledged fairly that this Charter right was breached. This occurred despite multiple opportunities when these rights could have been provided, including: (a) during the trip from the Mitchell residence to the SSM PS building when Constable Pino was operating the police vehicle and Constable Keating was a passenger; (b)when the officers and the Applicant were in the sally port of the police building and Mr. Mitchell was reported to be calm, cooperative and even apologetic; (c) when Mr. Mitchell was first brought into the SSM PS booking area and Constable Pino began to complete the Arrest Report as opposed to providing the right to counsel; (d) later, in the SSM PS booking area, when the Applicant was in the presence of five officers; FEB-20-2018 15:29 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 P.45,49 44 - (e)when the Applicant was placed in the secure cell and could not present a physical threat to any of the officers who accompanied him to the cell; and (f) once the Applicant had laid down in the secure cell and was calm and entirely passive. [289] In total, this chain of events contained repeated breaches of Mr. Mitchell's Charter rights by more than one officer of the SSM PS. Even the supervising Staff Sergeant failed to complete the booking in process, which would have given him another opportunity provide the Applicant with the right to counsel. [290] Efforts at trial by both Constable Keating and Constable Pino to overestimate the time between when Mr. Mitchell and Constable Keating landed on the couch until the time the officer delivered the strike to the Applicant is another factor to be considered by this court. [291] Given the cumulative and serious breaches by multiple officers, I find that it is appropriate and necessary that the justice system to state that it does not condone this type of conduct. The appropriate remedy is to exclude all evidence, beginning when the officers were directed by Mr. Mitchell to leave his home. This includes the exchange between Constable Pino and the Applicant as set out in paragraph 121 of these Reasons. At that point, there was no risk to the safety or well-being of Nick Mitchell or any officer. Constables Keating and Pino had been asked by Nick Mitchell, not to lay any charge against the applicant arising from whatever occurred between the father and son, and, in fact, the officers did not do so. Issue #3 - Section 1O(b) Charier Right [292] As noted earlier in these Reasons, Crown counsel has acknowledged that Mr. Mitchell's Charter right to counsel was breached. Issue #4 - The Appropriate Remedy [293] Pursuant to subsection 24(1) of the Charter, the Applicant seeks the remedy of a stay of the proceedings because of this breach It is noted that the breach did not result in any inculpatory evidence or statement being obtained from Mr. Mitchell. Nor did the breach prevent him from obtaining medical attention. In addition, prior to his appearance in the W.A.S.H. court the following morning, Constable Potter facilitated Mr. Mitchell's communication with duty counsel. It is worth noting the last paragraph of the agreed evidence of Constable Potter, which states: 9. Mr. Mitchell did not indicate any dissatisfaction with the advice he received from duty counsel. [294] While the right to counsel and the requirement that a person in custody be FEB-20-2018 15:30 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 45 - informed of that right are fundamental components of the Charter, and, in turn, persons in Canada, the consequences of the breach in this particular case are not so significant to allow this court to say that this is one of "the clearest of cases" wherein a stay of proceedings should be granted. [295] Should the Applicant receive the remedy, under subsection 24(2) of the Charter of the exclusion of evidence? Again, this requires analysis, in accordance with the R v. Grant framework. [296] The seriousness of the Charter-infringing state conduct must be considered first. Jn this case, the conduct mL1st be regarded as serious As set out above, multiple officers had multiple opportunities to provide Mr. Mitchell with his right to counsel. None of them did so. Even the supervising Staff Sergeant did not determine whether this right had been provided before Mr Mitchell was briskly physically moved to a cell. No evidence was obtained as a consequence of the breach. On the other hand, the seriousness of this breach, as part of a problematic chain of events, has been discussed earlier in these Reasons, and is equally applicable in this part of the analysis. [297] The evidence in relation to first line of inquiry waves in favour of the exclusion of evidence. · [298] Consideration must next be given to the extent to which the breach undermined the interests protected by the right infringed. Again, no evidence was obtained against Mr. Mitchell because of the failure to provide to him the right to counsel. Thus, the limited impact of this breach weighs against the exclusion of evidence. [299] What is the public interest in trying this case on its rnerits? While the alleged offences are not the most serious contained within the Criminal Code, breaches of court orders should not be taken lightly. The justice system depends upon and relies upon court orders, including bail orders, being complied with. An allegation of resisting the police officer in the execution of his lawful duty is also a charge for which there is a societal interest in having the case tried on its merits. If the evidence sougl1t to be excluded by the Applicant is excluded, it would have the consequence of stripping the core of the Crown's case. Accordingly, this factor weighs against the exclusion of the evidence. [300] Along with the analysis immediately above, the breach of the right to counsel as part of the larger chain of events involving the breach of Mr. Mitchell's s. 7 Charter right and subsequent substandard treatment, while in the custody of officers of the SSM PS must be considered. As set out earlier in these reasons, when the breach of the right to counsel is considered along with the breach of the s. 7 right, namely security of the person, the court should not be seen as condoning these actions by the various officers involved. For the grounds set out earlier in these Reasons regarding the s. 7 Charter right, I find that the appropriate remedy is FEB-20-2018 15:31 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 P.47,49 46 - to exclude all evidence, beginning with Mr. Mitchell's detention by police and then all evidence thereafter. Issue #5 - Has the Crown Proven the Charges against Mr. Mitchell beyond a Reasonable Doubt Based on the Remaining Evidence? Count #1 - Breach of Recognizance [301] The Recognizance in issue, which was dated as of August 2015, contain various conditions, including the following: 5. Do not consume alcohol or other intoxicating substances. [302] Earlier in the evening of March 26, 2016, Constable Carchidi had attended at Mr. Mitchell's residence. This officer formed the opinion that Mr. Mitchell was intoxicated. However, the officer made no note of this and provided no evidence as to the bases of his opinion. No reference was made to detecting alcohol. on Mr. Mitchell's breath, even though the officer engaged Mr. Mitchell in conversation at the residence door. Nor is there evidence that this officer had dealt previously with Mr. Mitchell to provide him with some comparative standard to be used in assessing the Applicant's condition. I find that this evidence, does not establish beyond a reasonable doubt that Constable Carchidi observed Mr. Mitchell condition contrary to the term of his recognizance. [303] When Constables Keating and Pino arrived at the residence, the information they had about Mr. Mitchell was provided by SSM PS dispatch. This is hearsay evidence. The source of that evidence was apparently Nick Mitchell. The Applicant's son was not called to testify in this trial. [304] Constables Keating and Pino entered the residence and each officer observed crushed beer cans on the coffee table in front of Mr. Mitchell. Neither officer saw Mr. Mitchell consume beer. Neither officer saw Mr. Mitchell consume any other intoxicating substance. Up until the point that each officer was asked to leave the Applicant's residence, neither officer smelled alcohol on Mr. Mitchell's breath, Even at the point when Constable Keating grasped Mr. Mitchell's wrist neither officer had smelled beer on Mr. Mitchell's breath. [305] Neither officer had a past experience with Mr. Mitchell, which provided to either officer some standard against which to assess the Applicant's condition on the night in question. [306] There was no evidence of any other intoxicating substance. [307] When the evidence that remains following the order for exclusion is considered, I find that the evidence does not establish beyond a reasonable doubt that Mr. Mitchell had consumed alcohol or any other intoxicating substance. Accordingly, he is found not guilty of this charge. FEB-20-2018 15:32 From:MCCOOEYE,MCCOOEYE 7059459051 - To:18558677301 P.48,49 47 Count #2 - Resisting a Peace Officer Engaged in the Execution of His Duty by Pulling His Arms and Hands under His Body and Thereby Preventing Constable Keating from Effectively Arresting and Placing Handcuffs on Mr. Mitchell. [308] Up until the time when Mr. Mitchell directed Constables Keating and Pino to leave his residence, no effort was made by Constable Keating to arrest Mr. Mitchell. Furthermore, up until that point, Mr. Mitchell had not resisted the officer, other than to direct the officer, in a loud and vulgar manner, to leave the residence. [309] Constable Keating had not informed Mr. Mitchell that he was under arrest. Nor had the officer made any announcement about or physical effort towards placing handcuffs on the Applicant. Mr. Mitchell had not resisted the officer until then, and so he did not resist Constable Keating in the particular manner alleged in Count #2 of the Information before the court. I find that, on the bases of the evidence rule to be admitted, the Crown has not proven that Mr. Mitchell resisted Constable Keating in the execution of his duty as alleged in that charge. Accordingly, Mr. Mitchell is found not guilty of that charge, and it is also dismissed. [31 O] Part Five - Conclusion [311] For the reasons set out above, I find that Mr. Mitchell's right to security of the person, as set out in Section 7 of the Canadian Charter Of Rights and Freedoms was breached by the application of excessive force against him. The application by Mr. Mitchell for a stay of proceedings, arising out of the breach of the s. 7 Charter right is not granted. [312] [313] The application by Mr. Mitchell for the exclusion of evidence, arising out of the breach of the s.7 Charter right is granted. All evidence that was obtained after Mr. Mitchell directed Constable Keating and Constable Pino to leave the Mitchell residence is excluded. [314] For the reasons set out above, I find that Mr. Mitchell's right to retain and instruct counsel, as set out in Section 1O(b) of the Canadian Charter of Rights and Freedoms was breached by the failure of several officers to inform Mr. Mitchell of this right and to provide to him an opportunity to exercise the right. The application by Mr. Mitchell for a stay of proceedings, arising out of the breach of the s.1 O(b) Charter right is not granted. [315] [316] The application by Mr. Mitchell for the exclusion of evidence, arising out of the breach of the s.1 O(b) Charter right is granted. All evidence that was obtained after Mr. Mitchell directed Constable Keating. and Constable Pino to leave tl1e FEB-20-2018 15:33 From:MCCOOEYE,MCCOOEYE 7059459051 To:18558677301 P.49,49 48 Mitchell residence is excluded. [317] Based on the evidence that has been admitted, I find that the Crown has not proven beyond a reasonable doubt that Mr. Mitchell breached the recognizance given to a Justice as alleged in Count #1 of the Information before the court. Accordingly, Mr. Mitchell is found not guilty of the charge, and it is dismissed. [318] Based on the evidence that has been admitted, I find that the Crown has not proven beyond a reasonable doubt that Mr. Mitchell resisted Constable Keating in the execution of his duty as alleged in Count #2 of the Information before the court. Accordingly, Mr. Mitchell is found not guilty of that charge, and it is also dismissed. Released: February 20, 2018 Justice J. Paul Condon, Ontario Court of Justice