Accused’s arrest and custody occurred during extenuating and exigent circumstances

Ontario criminal | Arrest

LEGALITY

Accused’s arrest and custody occurred during extenuating and exigent circumstances

Application by accused for stay of proceedings because he claimed that his rights under Canadian Charter of Rights and Freedoms were violated. During unrest that occurred during June 2010 Toronto G20 Economic Summit, accused, who was American citizen, was charged with wearing disguise with intent to commit indictable offence and with three counts of mischief, as result of his participation in that unrest. Crown claimed that accused was member of group that engaged in campaign to damage property at various locations in city. On June 26, 2010 accused was alleged to have smashed windows in bank, at commercial emporium and at police headquarters. He was, however, arrested for unrelated matter on June 27, 2010 and officer arrested him because he was ordered to do so by superior officer. Crown conceded that this arrest was unlawful. When he was arrested he was searched and his possessions were seized without articulable cause, contrary to s. 8 of Charter, and his arrest and subsequent detention were arbitrary and it constituted breach of s. 9 of Charter. Once in custody he was not informed of his right to counsel, he was denied opportunity to exercise right to counsel when he asked for it and he was held in custody in onerous conditions for 14 hours, during eight of which he remained in zip-tie hand restraints. He was released and he was not charged. Accused was charged several months later for June 26 incidents after investigator reviewed surveillance video evidence taken on that date and he compared it to pictures of accused that were in camera that police seized and to picture of accused that police took when he was arrested on June 27. Application dismissed. Charter-infringing state conduct was serious and impact of breaches on accused’s Charter-protected interests were significant. However, accused’s arrest and his custody occurred during extenuating and exigent circumstances. If stay was granted it would disregard fact that people who smashed windows at G20 also threatened community’s right to function in free and democratic way. Abuse that accused suffered would not be perpetuated or aggravated by permitting matter to proceed to trial. Accused failed to demonstrate that this was one of those clearest of cases in which stay was required.
R. v. McCormic (May. 21, 2014, Ont. S.C.J., Clark J., File No. CR-13-10000835-0000) 113 W.C.B. (2d) 630.

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