Police brutality and Excessive force in arresting an accused person through the use of a baton and pepper spray: Contact: J.S. Patel at 403-585-1960
Published On: Apr 23,2018
In Regina v. Hines, 2018 ONCJ 197, the Ontario Court of Justice held the police used excessive force where, in the context of a “chaotic” situation, they struck the accused in the face with a baton and pepper sprayed him while he was handcuffed.
The relevant facts were as follows:
Excessive Force
[18] As indicated at the outset, Mr. Brannagan conceded that Brewer’s use of pepper spray was excessive force and a Charter violation. Mr. Chu also alleged that, in addition to pepper spray, excessive force was used in striking Mr. Hines in the face with a baton during the arrest. Those blows opened up two significant lacerations on the defendant’s face, which was made additionally painful by the application of pepper spray. The Crown refused to call Brewer, submitting that the defendant had the burden to prove facts that supported the Charter violation. While I agree the burden lies with the defendant to establish Charter violations, I ruled that fairness required this Court to call Brewer as a witness, allowing both counsel the opportunity to conduct cross-examinations. I did so because Brewer was, by nature of his actions that night, and by nature of his position as a police officer, a witness adverse to the defendant’s interest.
Constable Brewer
[19] Brewer admitted striking Hines with his baton. He is unable to remember the number of strikes or the exact location of the strikes. Brewer was aware of facial injuries suffered by Hines but unaware if the cause was his baton strikes or when he was taken to the ground. He maintained he was frightened by the knife, and Hines assaultive behaviour, and not knowing if Hines still had a weapon. He also maintained the blows were done to effect an arrest, and not after Hines was handcuffed.
[20] Constable Brewer’s status as a police officer is somewhat unusual. In September of 2017, he was convicted of Common Nuisance and Unauthorized Possession of a Firearm in Durham region arising from an incident that occurred on December 1, 2016. Constable Brewer had brought a handgun into the bedroom in which his spouse was sleeping, then followed her to the main floor holding the gun, put the gun in his own mouth, and then fired it eight times into the night sky outside his house. At the time, Brewer agreed he was suffering from depression, alcoholism and PTSD.
[21] In addition to the criminal record resulting from the incident above, Brewer admitted drinking while on duty and being disciplined for it in November of 2016. Brewer denies alcohol was a factor in this case and does not think his mental health problems were either. Essentially he was of the view that Hines was “being actively resistant” and was attempting to get out of his scout car when he employed pepper spray.
[22] While I found Constable Brewer’s evidence to be for the most part candid (and quite heartbreaking regarding his present condition), this last contention is demonstrably false. Mr. Hines was handcuffed to the rear and splayed out horizontally in the back seat of the scout car. Brewer stopped the scout car as it starts to leave the scene, and Brewer opened the door. Hines was not resisting; he was not kicking; and he certainly was not trying to escape.
[23] In my view, to insist escape was the reason for employing pepper spray undermines what was otherwise credible evidence. That false contention makes his evidence, that he was unsure that his baton strikes connected with the defendant’s face, virtually impossible to accept.
At the Charter application, the Crown refused to call as a witness the police officer who struck and sprayed the accused, and so the court called the officer as a witness adverse in interest to the defence. The court declined to stay the charges (assault police, possession of a knife, possession of cocaine, and threatening), holding that a remedy could be fashioned on sentence. The Court stated that:
[34] A stay of proceedings is a drastic remedy, a remedy of last resort to be granted only in the clearest of cases (O’Connor 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411). The defendant submits that no remedy short of a stay of proceedings is appropriate. Alternative remedies, sentence reduction for example, would not send the necessary message that the justice system denounces police brutality.
[35] The defendant does not argue abuse of process in that the police conduct interfered with a fair trial. Rather, that it fell within the residual category referred to in paragraph 73 of O’Connor:
73 As I have already noted, the common law doctrine of abuse of process has found application in a variety of different circumstances involving state conduct touching upon the integrity of the judicial system and the fairness of the individual accused’s trial. For this reason, I do not think that it is helpful to speak of there being any one particular “right against abuse of process” within the Charter. Depending on the circumstances, different Charter guarantees may be engaged. For instance, where the accused claims that the Crown’s conduct has prejudiced his ability to have a trial within a reasonable time, abuses may be best addressed by reference to s. 11(b) of the Charter, to which the jurisprudence of this Court has now established fairly clear guidelines (Morin, supra). Alternatively, the circumstances may indicate an infringement of the accused’s right to a fair trial, embodied in ss. 7 and 11(d) of the Charter. In both of these situations, concern for the individual rights of the accused may be accompanied by concerns about the integrity of the judicial system. In addition, there is a residual category of conduct caught by s. 7 of the Charter. This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.
[36] When determining if a stay is the appropriate remedy for the “residual” category, the approach taken by the Supreme Court in R. v. Regan sets out the appropriate test to be considered. There are three factors to be considered by a court asked to order a stay of proceedings, as set out in Regan 2002 SCC 12 (CanLII), [2002] 1 S.C.R. 297, at paras. 54 – 57:
(1) Will the prejudice caused by the impugned behaviour be manifested, perpetuated or aggravated through the conduct of a trial, or by its outcome;
(2) Is any other remedy reasonably capable of removing the prejudice; and
(3) If there should be doubt as to the appropriateness of a stay, how do the interests that would be served by a stay weigh against society’s interest in having a final decision on the charges on the merits?
[37] Applying the above test, I conclude that there is a societal interest in having a judicial decision on the merits regarding the knife attack on Mr. Humphries. A remedy exists to reflect police brutality, which can be factored into the sentence. The assault police, possession of the knife, possession of cocaine, and uttering threats charges will be stayed as the only remedy capable of expressing this Court’s condemnation of Constable Brewer’s excessive use of force, as well as a recognition of the significant harm caused to Mr. Hines resulting from this brutality.
A different result was achieved in Reginav. Girbav, 2012 ABPC 219 wherein the Court, on similarly related facts, entered a stay of Proceedings by the Honourable Judge Brown of the Provincial Court of Alberta. In that decision, the Court, in directing the stay stated:
“While the beating meted out to Mr. Girbav was a far cry from the horrific assault in Tran, to allow the prosecution to continue, given the wantonness of the attack on Mr. Girbav and the attempt at burnishing the account after the fact, would cause irreparable harm to the justice system. As in Mohmedi, Gladue and Tran, this appears to be a case in which the officers succumbed to anger in their dealings with Mr. Girbav.”
Cleary, this is a fact-driven inquiry that is mixed with complex issues of law and jurisprudence. It is critical to seek legal advice as soon as possible to ensure that the relevant evidence (including injuries) are well documented and evidence is preserved.
The above noted information is not intended as legal advice nor does it puport to provide information on any civil claims against a police force. It is general information about specifically reported cases .
If you have been charged with a offence that involved the use of excessive police force and/or abuse, call Mr. J.S. Patel, Criminal Defence Lawyer at 403-585-1960 for a consultation during regular office hours.