Court of Queen’s Bench of Alberta Citation: R. v. Steele, 2010 ABQB 191 Date: 20100326 Docket: 081026999Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Kirk Steele Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I. Introduction [1] Kirk Steele is 37 years old. Until April 13, 2006, he was serving a seven year jail term at the Edmonton Max. On July 27, 2006, Mr. Steele was in breach of his statutory release conditions and was therefore unlawfully at large. [2] Plainclothes officers were investigating the activities at a particular residence located at [...] - 99th Street (“the target residence”) when they noted four males seemingly surveilling the same residence. One of the four individuals was carrying a collapsable baton and another was walking with a pit bull. Uniformed police officers were then dispatched to the area, including Cst. Edwards and police service dog Wizzard. Two of the four individuals were apprehended.





[3] Police entered the target residence. Mr. Steele was in the bathroom and exited out the bathroom window. A chase of Mr. Steele by a number of officers ensued. Cst. Edwards sent Wizzard to apprehend Mr. Steele. Mr. Steele stabbed Wizzard. Cst. Edwards shot Mr. Steele. Mr. Steele fell to the ground and was handcuffed until paramedics arrived. [4] Mr. Steele was charged under s. 88(1) of the Criminal Code (possession of a weapon for a purpose dangerous to the public peace or for the purpose of committing an offence), s. 145(1)(b) (being unlawfully at large), and s. 129(a) (wilfully obstructing a peace officer in the execution of his duty). [5] He applies for Charter relief in the form of a stay of these charges, primarily on the grounds that the police unlawfully arrested him, used excessive force during his arrest, and were subsequently negligent in the investigation of the circumstances of the arrest. [6] I will outline the evidence in detail in addressing the various Charter arguments of Mr. Steele. II. Alleged Charter Breaches A. Police Entry Into and Search of the House 1. Evidence [7] On July 27, 2006, the South Side Project Team, a police investigation team wearing civilian clothing and driving unmarked vehicles, was in the area of 69th Avenue and 99th Street in Edmonton, Alberta. The Project Team noted four black males in the area seemingly surveilling a residence located at [...] - 99th Street (“the target residence”). One of the four individuals was carrying a collapsable baton and another was walking with a pit bull. The Project Team contacted Police Headquarters. [8] Uniformed police officers were then dispatched to a Dairy Queen parking lot located in the area of 70th Avenue and 99th Street. Constables Claus Penno, Shelby Cech, Albert Evers (acting Sergeant at the time), Richard Evans and Chad Lowry all arrived at around 1:40 a.m. Cst. (now Sgt.) Bruce Edwards and Wizzard arrived shortly thereafter. [9] Two of the four individuals seen by the Project Team were apprehended. The other two took off and were not located. [10] Cst. Evans was advised by one of the two apprehended (Rajesh Juman) that the four individuals were there to seek retribution against one of the occupants of the target residence as that person had assaulted his niece.





[11] S.Sgt. Fedechko told Constables Evans, Cech, Penno, and Evers to do a “knock and talk” at the target residence. He wanted to ensure the safety of the occupants and also identify them. Neither he nor the Constables knew whether either or both of the individuals who had run away had gone into the house. No one told them that they had. [12] The four Constables walked to the residence. Located in the driveway beside the house was a white van. The individual in the van stated that he had permission to stay in the van and that he was waiting for a female who was in the house visiting. [13] Constables Cech, Penno and Evers went to the front of the house located on its north side. Cst. Evans went to the east side of the house to make sure that no one escaped. [14] Cst. Penno knocked and two individuals came to the door. One of them was a youth, G.W., who was known by Cst. Evers to have been involved in prior break-and-enters and numerous car thefts. The other individual was known as “Lee” who was the individual identified as the one who allegedly assaulted Juman’s niece. The three Constables all went into the house. They knew that G.W. lived in that house with his grandmother who either rented or owned it. [15] Constables Penno, Cech and Evers entered the house without a warrant. They testified they had consent to enter from G.W., who was 16 years old, and that the entry was for the purposes of ensuring the safety of the occupants. S. Sgt. Fedechko also wanted to know the identification of each occupant. They denied conducting a search of the house for any reason other than ensuring the safety of the individual occupants, one of whom was known to be the target of the four suspicious individuals seen earlier in the neighbourhood by the Project Team. [16] Cst. Evers told G.W. that they were going to search the house to ensure police safety. Cst. Evers felt that G.W. was “high” though G.W. indicated that he had just woken up. There was no objection raised to a search of the house. [17] While Cst. Penno remained in the living room with G.W. and Lee, Constables Cech and Evers began searching the house. [18] Mr. Steele testified that he went to the target residence on July 27 as he was invited there by Lee. He did not know the owner of the house and did not know G.W. before going to the house. He and his friend, Vivian Redcrow, got a ride to the house with the driver of the white van. [19] Mr. Steele stated that he had consumed some marijuana with Lee when he arrived at the house and probably used crack cocaine some time earlier in the day, perhaps between 2:00 p.m. and 3:00 p.m. He had some marijuana with him. He acknowledged that he had gaps in his memory from that day and some parts of the day were “foggy”.





[20] Mr. Steele testified that he and Ms. Redcrow were engaged in conversation in the living room of the house where he was also cutting and rolling marijuana. When Ms. Redcrow had to go to the bathroom, he simply followed her there to continue the conversation. While in the bathroom, he continued cutting and rolling marijuana on a magazine on the floor in front of Ms. Redcrow who was sitting on the toilet urinating. 2. Analysis [21] Mr. Steele says that there was never an attempt to obtain permission from the owner or renter of the home to enter and search. Further, no actual permission was either requested from G.W. nor given by him. Finally, the only person known to be a target of the four individuals seen in the area was Lee who was apparently fine and safe when seen by the three officers. Therefore, the search of the house was unlawful and in violation of Mr. Steele’s right to be secure against unreasonable search as guaranteed by s. 8 of the Charter. As a consequence, he contends that every action taken by the police against him thereafter was similarly unlawful. [22] The Crown submits that Mr. Steele has no standing to raise the lawfulness of the entry into the house and the search thereof, but even if he does have standing, the police were entitled to enter the house to ensure the safety of the occupants. [23] The Supreme Court of Canada in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, identified two questions that must be answered when considering a challenge under s. 8 of the Charter. The first is whether Mr. Steele had a reasonable expectation of privacy. The second is whether the search was an unreasonable intrusion on that right to privacy (at para. 33). Accordingly, in order to challenge the lawfulness of the police search of the house, Mr. Steele must first establish that he had a reasonable expectation of privacy in the residence. [24] The Supreme Court held that Edwards, being no more than a privileged guest, had no expectation of privacy, and therefore could make no claim for relief under s. 24(2). The Court emphasized that the Charter protects people, not places. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances including presence at the time of the search, possession or control of the property or place searched, ownership of the property or place, historical use of the property, the ability to regulate access, including the right to admit or exclude others from the place, the existence of a subjective expectation or privacy and the objective reasonableness of the expectation. [25] Mr. Steele has failed to overcome the first hurdle. He had no reasonable expectation of privacy at the house owned or rented by G.W.’s grandmother.





[26] Mr. Steele was nothing more than a temporary guest. Though he was present when the search occurred (unlike the accused in Edwards), he was not there as a guest of the owner or renter or that person’s grandson, G.W. He was no more than an invitee of another guest, Lee. It was not his right to privacy that may have been infringed. He had no reasonable expectation of privacy while at the house and has no standing to argue that his right to be secure against unreasonable search was breached. [27] Mr. Steele further argued that when he was confronted by the police, he was in the bathroom, a room in the house in which even a guest can expect a degree of privacy. He is right. However, the privacy one expects in a bathroom is out of courtesy and good manners. The expectation of privacy one has in any bathroom is not equivalent to the broader privacy interest that one has in the sanctity and security of one’s home and personal possessions. The customary ability to temporarily regulate access to a bathroom while one uses the facilities, in and of itself, does not create a reasonable expectation of privacy sufficient to ground a s. 8 Charter argument. In any event, Mr. Steele’s own evidence was that he was not using the facilities, but was preparing drugs in the bathroom. [28] Mr. Steele has failed to establish standing to claim that his s. 8 Charter right be secure against unreasonable search was violated when the police entered either the house or the bathroom. B. The Detention of Mr. Steele 1. Evidence [29] As indicated above, Mr. Steele said that he went into the bathroom with Ms. Redcrow to continue a conversation while she was urinating. He used the opportunity to “chop up another spliff”, or cut and roll some marijuana, on the bathroom floor. [30] Mr. Steele testified that while Vivian was still on the toilet, they heard voices. He was concerned so he closed the door. He was using a steak knife he had taken from the kitchen to chop up the marijuana. When he finished rolling and Vivian was off the toilet, he put the marijuana on the back of the toilet. [31] Mr. Steele then said he heard voices asking, “Is there anybody else in the house?”. He believed that there were police in the house. Vivian then walked out the bathroom door and Mr. Steele closed the door in a way to make it look like Vivian closed it. When asked, Vivian told the police that no one else was there. The door then swung open a little, Mr. Steele pushed it back closed and heard “somebody is in there, who is in there, show yourself”. [32] At this point, I must say that Mr. Steele’s explanation for being in the bathroom is ridiculous and beyond belief. He is asking the Court to believe that his conversation with Ms. Redcrow was so engaging that for the short time it would take her to go to the bathroom and urinate, he felt compelled to go with her to continue their conversation while also cutting and rolling marijuana on the hygienically challenged bathroom floor. I do not believe his evidence. I believe he moved from the living room to the bathroom to hide when he heard the police at the door. He simply grabbed the knife and marijuana and took them with him.





[33] Constables Evers and Cech had been told by S.Sgt. Fedechko that two out of four suspicious black males had left the area where they were first observed by the Project Team. They were also told that the four had intended to seek vengeance against one of the occupants of the house. They were told by S.Sgt. Fedechko to go to the house and ensure the safety of its occupants and to identify them. [34] Constables Evers, Cech and Penno all entered the house. The lawfulness of their entry into the house is not relevant due to my finding on Mr. Steele’s standing in this respect. I find on the evidence that once inside, they advised G.W. (the only person known to have a relationship with the owner or renter) that they were going to conduct a search. He did not object. [35] Cst. Evers said he checked the bathroom and saw a black male (later identified as Mr. Steele) partially hidden behind the bathroom door. Cst. Evers was holding a flashlight and he noticed a bulge underneath the shirt in the waist area of Mr. Steele. [36] Cst. Evers told Mr. Steele to show him his hands. Mr. Steele did not do so. He believed that Mr. Steele was “high or mentally unstable”. He repeated his demand for Mr. Steele to show his hands and again Mr. Steele did not do so. In those circumstances, Cst. Evers quite understandably became concerned for his own safety. He unholstered his gun and pointed it at Mr. Steele. Again he demanded that Mr. Steele show him his hands and again, Mr. Steele did not respond. [37] Cst. Evers did then see Mr. Steele’s right hand and it did not appear that he was carrying a weapon. Cst. Evers put away his handgun and pulled out a taser, pointing it at Mr. Steele. Mr. Steele was then seen bending down towards the toilet and when he appeared again, it seemed to Cst. Evers that he was again hiding something in his right hand. [38] Cst. Evers shoved Mr. Steele with his left hand as he was still holding the taser in his right hand. Mr. Steele pushed back with his body. Mr. Steele’s right hand came up and showed that he was carrying a steak knife about four to six inches long. Cst. Evers retreated from the bathroom and yelled “knife”. The door to the bathroom was closed by Mr. Steele and Cst. Evers then put away the taser and again pulled out his gun. [39] Cst. Cech had been standing behind Cst. Evers and testified that he also saw the knife. When he saw the knife, it was pointing in front of Mr. Steele around his belly. He yelled “knife, knife, knife”. Cst. Cech then took a half step back and pulled out his gun. He testified that he yelled “drop the knife”.





2. Analysis [40] Mr. Steele argues that the pointing of a firearm and a taser at him by Cst. Evers or Cst. Cech, constituted a violation of his right not to be arbitrarily detained contrary to s. 9 of the Charter. [41] The Crown argues that Mr. Steele was in the bathroom hiding from the police and took the knife with him in the event that he needed it should he be confronted. Mr. Steele’s actions raised the suspicions of the officers, and his refusal to exit or show his hands gave rise to a reasonable concern for the safety of the officers and other occupants of the house. [42] There is no doubt that during the period of time when Cst. Evers and Cst. Cech were holding either or both a gun and a taser aimed at Mr. Steele that Mr. Steele was being held in investigative detention. Mr. Steele was not free to leave. [43] In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, the majority held that although there is no general power of detention for investigative purposes, police officers may detain an individual if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that the detention is reasonably necessary on an objective view of the circumstances. These circumstances include the extent to which the interference with individual liberty is necessary to the performance of the officer's duty, the liberty interfered with, and the nature and extent of the interference. [44] It is important to remember that in attempting to detain Mr. Steele and aiming a weapon at him, Cst. Evers was acting on information he had received that two black individuals had earlier escaped apprehension and were two of four individuals known to be interested in exacting revenge against one of the occupants of the house. He knew that there had been weapons in the possession of some, if not all, of the four individuals. Neither Cst. Evers nor Cst. Cech would have known whether Mr. Steele, also black, was one of the two individuals who had escaped, but Mr. Steele’s actions did nothing to suggest otherwise and, in fact, reasonably raised their suspicions. They knew that a woman was in the house with the other occupants but did not previously know that anyone else was there. Finally, Mr. Steele had hidden his hands from Cst. Cech and was later seen holding a knife. [45] In all of the circumstances, Constables Evers and Cech were justified in taking out their weapons and attempting to hold Mr. Steele pending further investigation as to his connection to the matter being investigated, the reasonableness of his actions and any potential safety risk to either themselves or the other occupants of the residence. [46] There was no breach of Mr. Steele’s s. 9 Charter right not to be arbitrarily detained when Constables Evers and Cech attempted to hold him in investigative detention.





C. The Release of Police Service Dog Wizzard 1. Evidence [47] The three Constables all believed that Mr. Steele was exiting out of the bathroom window. Cst. Cech or another individual radioed that Mr. Steele had a knife and was “coming out the east side” of the house. [48] Cst. Evans, who had remained outside and on the east side of the house, saw the screen window on the east side being removed and Mr. Steele trying to get out. He had heard Cst. Cech on the radio stating that he had a knife. Cst. Evans pulled out his gun and demanded that Mr. Steele stop and show his hands. He did not do so. Cst. Evans gave chase. He did not shoot as he did not feel any immediate threat from Mr. Steele. Cst. Lowry, who had remained at the Dairy Queen parking lot, also heard Cst. Cech broadcast that someone had gone out the back window of the house and was carrying a knife. Cst. Lowry drew his pistol. He then heard Cst. Evans tell someone to drop the knife. [49] Unidentified individuals on the radio broadcast transcript also announced: ...we got about a zillion members in the yard south of Dairy Queen...he's running westbound across 99 Street. We got members in quick pursuit, two members. and He's got a knife, everybody. [50] These announcements were broadcast over each individual officers' radio attached to his or her uniform in the upper chest area. [51] Cst. Evans saw Mr. Steele running south in the back yard of the house and then cut west where he jumped over a fence located on the east side of 99th Street. Cst. Evans followed, jumped the fence and continued the chase. He noted two other officers also chasing Mr. Steele. [52] Cst. Lowry walked to the alleyway behind the Dairy Queen and saw police officers running in a westerly direction down the alley towards 99th Street. Cst. Lowry put his pistol away because, as he said, it is dangerous to run with a gun. He then ran to the east edge of 99th Street and saw Wizzard engage Mr. Steele on 69th Avenue west of 99th Street. He estimated his distance to be about 50 metres away from Mr. Steele at that time. He saw Wizzard engage Mr. Steele and saw Mr. Steele and Wizzard spin and twist.





[53] Cst. Edwards heard a radio broadcast that an individual had broken out of the target residence and away from the police officers who were there. He ran to a location on 69th Avenue east of 99th Street from where he could see a quick flash of someone running towards him in the yard of the house located at that corner (the northeast corner of 99th Street and 69th Avenue). He heard someone yelling “police....stop”. He said he did not hear anything about the individual holding a knife. He testified that he thought that the individual was one of the original subjects that he had been looking for, though no one told him this. [54] Cst. Edwards said that he saw a flash of someone in the yard of the house at the northeast corner of 69th Avenue and 99th Street and further heard police officers yelling "police, stop". He said that he heard Mr. Steele hiding in the bushes bordering the south end of that property and yelled a warning to come out or he would send in the police dog he had with him. He said that he also encouraged Wizzard to bark. His evidence was corroborated by Sgt. Koshowski who was running close to but slightly behind Cst. Edwards. This evidence from Cst. Edwards and Sgt. Koshowski was not corroborated by any of the other police witnesses who observed Mr. Steele running from the house. I do not believe anything turns on this evidence though it does raise questions as to the credibility of Sgt. Koshowski and Cst. Edwards, questions that are raised more vividly in their later testimony. [55] Cst. Edwards said that he repeatedly yelled challenges and warnings to everyone, including Mr. Steele and the approaching police officers. He yelled something like “stop, police dog out, stop running”. He testified that the two police officers kept running and did not acknowledge having heard his warning. Given that he did not think they heard his warning, he must have also had a concern that it was not heard by Mr. Steele. [56] Cst. Edwards testified that he was waiting for Wizzard to "target lock" on Mr. Steele before releasing him as he wanted to ensure that Wizzard did not attack either Cst. Evers or Cst. Ly who were approaching Mr. Steele from the northeast and southeast respectively at 45 degree angles. Once he felt that Wizzard was target locked on Mr. Steele, Cst. Edwards said that he issued a final warning and then sent Wizzard. [57] Cst. Edwards testified that he was 25 to 30 metres from Mr. Steele when he released Wizzard. At that point, Cst. Evers and Cst. Ly were within five to ten metres of Mr. Steele and still running. Cst. Ly testified that he was about 20 to 30 feet from Mr. Steele when Wizzard went by him at which point Cst. Ly stopped. When Wizzard caught Mr. Steele, Cst. Ly was about 25 to 35 feet from them. Cst. Evers testified that he was about 30 feet from Mr. Steele when Wizzard engaged Mr. Steele. [58] Cst. Edwards said that Wizzard closed in on Mr. Steele and got ready to leap on him, at which time Mr. Steele turned and faced Wizzard. Mr. Steele tried to dodge Wizzard while Wizzard was trying to get at Mr. Steele’s arm.





[59] Cst. Edwards testified that among the things he considered before releasing Wizzard was the fact that a rail yard was approximately 100 yards away and he wanted to ensure that Mr. Steele was apprehended before he got to that rail yard. He relayed an incident involving another police dog in Vancouver who had been killed while running in a rail yard and offered that example as one of his considerations for trying to apprehend Mr. Steele before the rail yard. He later acknowledged that the incident in Vancouver occurred after this particular incident. He further gave evidence of a belief at the time that the target residence was a “drug house” though there was absolutely no evidence of such nor did anyone provide such information to him. [60] Cst. Edwards displayed a cavalier attitude towards the sanctity of the Oath when he admitted that evidence he gave at the preliminary inquiry was exaggerated for effect. In general, I found him defensive, unnecessarily aggressive and inexplicably arrogant. I did not find him to be a credible witness. [61] Cst. Hao Ly had parked his marked police vehicle on the east side of the intersection of 99th Street and 69th Avenue facing north. He heard the broadcast of a person with a knife coming out of the window of the target residence. Cst. Ly saw Mr. Steele jump over the fence and when he came down, Cst. Ly yelled "stop, police". Mr. Steele continued westbound across 99th Street and along 69th Avenue. Cst. Ly then saw that the man had a knife so he pulled out his taser. [62] Mr. Steele did not react to Cst. Ly's statement and continued running west down 69th Avenue. Cst. Ly gave chase while Cst. Edwards and Sgt. Koshowski were behind him. He yelled "stop, police" twice more but to no avail. He kept his taser in the "low ready" position and noted that Cst. Evers, who was to the right of him, had either his gun or his taser out as well. [63] Wizzard then ran past Cst. Ly on his right side and Cst. Ly stopped. At that time, Cst. Ly said he was about 20 to 30 feet from Mr. Steele. Mr. Steele continued running for another five to ten feet. As the dog approached Mr. Steele, he turned to face Wizzard. He turned and the dog latched onto his arm, at which point Mr. Steele began making stabbing motions and Wizzard went down. He then moved again towards Mr. Steele to attack and Mr. Steele made a motion again to stab Wizzard. [64] Mr. Steele testified that after the door to the bathroom was closed, he cut the bathroom window screen open with the knife, and took the window out. He jumped out the window, leaving one shoe behind. (He thought he had both shoes on but he was clearly wrong as one of the shoes had been left by him in the bathroom.) [65] He did not know how many police officers were in the vicinity and thought that there were only the ones in the house. He was holding the handle of the knife in his fist such that the blade ran up along his forearm. [66] Mr. Steele began running when he got out. He jumped over the fence separating the yard from 99th Street. He heard somebody say, “There he is, he’s gone that way”. [67] Mr. Steele heard the dog behind him and began to turn to face the dog. Just as he turned, he looked up and saw the dog in mid air.





[68] Mr. Steele’s evidence that Cst. Edwards gave no warning that a police dog would be released was confirmed by Cst. Evers and Cst. Ly, the two officers closest to Cst. Edwards. I accept the evidence that no such warning was ever given by Cst. Edwards. [69] There was no evidence of Mr. Steele having suffered serious injury as a result of Wizzard’s actions. 2. Analysis [70] Mr. Steele alleges that the release of police service dog Wizzard, in the circumstances existing at the time, constituted a breach of his s. 7 and s. 12 Charter rights not to be subjected to cruel and unusual treatment. Police officers are authorized to use force (s. 25 of the Code), but only such force as is necessary. Under s. 25(3), an officer is only justified in using force that is intended or is likely to cause death or grievous bodily harm if he believes on reasonable grounds that it is necessary for his self-preservation or for the preservation of any one under his protection from death or grievous bodily harm. [71] The Crown submits that in sending the police dog to apprehend Mr. Steele, Cst. Edwards acted reasonably and appropriately. The failure of Mr. Steele to comply with police demands to stop and give himself up constituted a wilful obstruction of the police officers, including Cst. Edwards, in the execution of their duty. The obstruction continued when Mr. Steele fled from the police across 99th Street and onto 69th Avenue. Mr. Steele showed no signs of stopping, and was approaching the rail yard, which would have presented dangers to both Mr. Steele and the pursuing police officers. Further, in sending the police dog, Cst. Edwards did not need to comply with all of the requirements of s.25(4) of the Code because in doing so, he did not intend, nor was it likely to cause, death or grievous bodily harm. The Crown argues that it is clear on the evidence that there is no likelihood of grievous bodily harm when a police dog is sent in apprehension of a fleeing suspect. [72] The question to address here is whether Cst. Edwards had reasonable and probable grounds to release Wizzard for the purpose of apprehending Mr. Steele for an investigative detention or arresting him. Section 494(1)(b)(ii) of the Code provides that any one may arrest without warrant a person who, on reasonable grounds, he believes is escaping from and freshly pursued by persons who have lawful authority to arrest that person. Further, in some circumstances, courts have found that a suspect’s flight is a factor which may contribute along with other facts to reasonable grounds to support detention or arrest: see for example R. v. Linton, 2007 ONCJ 255; R. v. L.B., 2007 BCPC 456.





[73] At the time he released Wizzard, Cst. Edwards knew that two of four black males, possibly armed, intent on exacting revenge on an occupant of the residence, had escaped earlier apprehension. He was further aware that an individual had escaped from the residence and had refused to stop when directed to do so by other officers. He saw Mr. Steele, who is also black, running to avoid being apprehended by a number of police officers, thus providing reasonable grounds to conclude that Mr. Steele was escaping from and freshly pursued by persons who had lawful authority to arrest him. He was entitled to assume that those officers were acting within their lawful authority in trying to apprehend Mr. Steele. Finally, he knew that AIR‑1 was above, also searching for the two individuals. [74] With all of this information, it is my view that Cst. Edwards had reasonable grounds to arrest Mr. Steele. He did not have time to initiate radio contact with other officers to determine whether the individual being chased was one of the two individuals he was initially looking for, nor did he have time to seek out any other details as to why he was being pursued. However, the inferences he drew were not unreasonable in the circumstances. [75] On the issue of grievous bodily harm, s. 2 of the Code defines "bodily harm" as any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature. "Grievous bodily harm" is not defined in the Code. The B.C. Court of Appeal in R. v. Bottrell (1981), 1981 CanLII 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.), defined "grievous bodily harm" as "serious hurt or pain", not "any hurt or pain". The Alberta Court of Appeal in R. v. Martineau (1988), 1988 ABCA 274 (CanLII), 89 A.R. 162, 43 C.C.C. (3d) 417 (C.A.) defined it in similar terms. In R. v. Leeson, 2008 ONCJ 720, the Court adopted the definition of "grievous bodily harm" found in the Oxford Dictionary, being "serious mental or physical injury inflicted intentionally on a person". [76] While Cst. Edwards knew that the dog was capable of causing serious injury, he also knew that the dog was trained not do so but only to apprehend a suspect by the arm. That is what he expected to happen when he released Wizzard, and others familiar with police service dogs confirmed that expectation. While it was acknowledged that a police service dog may cause greater injury, and even grievous bodily injury in certain situations, this risk will generally only arise (and increase) as the suspect uses greater resistance and aggression against capture. [77] Therefore, the release of Wizzard was not an abuse of Cst. Edwards' authority as a police officer and he did not knowingly use excessive force by doing so. On the evidence before me, I find that in releasing Wizzard, Cst. Edwards did not use force that was intended or was likely to cause death or grievous bodily harm. I conclude that releasing Wizzard to apprehend Mr. Steele did not result in a breach of Mr. Steele's s. 12 Charter right not to be subjected to cruel and unusual treatment. D. The Shooting and Arrest of Mr. Steele 1. Evidence [78] There were almost as many versions of what occurred up to and including the time of the shooting as there were witnesses to the events. After considering the testimony of all of the witnesses, I have concluded that the events occurred as follows.





[79] Immediately before Wizzard jumped up to engage Mr. Steele, Mr. Steele turned counterclockwise and was either facing Wizzard or almost facing him. The momentum caused by a combination of Wizzard’s speed and Mr. Steele’s motion caused the two of them to spin together in a counterclockwise direction and move slightly westward. While Wizzard was attempting to bite Mr. Steele’s left arm, Mr. Steele began making stabbing motions with his right hand towards Wizzard. He was able to stab Wizzard at least once. [80] While running towards Mr. Steele, Cst. Edwards had his Glock pistol unholstered in his fully extended right hand and a flashlight in his left hand. He began shooting at Mr. Steele, aiming for his chest or, as he described it, the “centre mass”. He knew this could cause death. One bullet struck each of Mr. Steele’s arms. Cst. Edwards continued firing, without pause. Mr. Steele continued spinning, and with part of his back facing Cst. Edwards, one shot penetrated Mr. Steele’s lower spine area and another penetrated his left buttock. It was the movement of Mr. Steele after contact with Wizzard that caused him to spin and twist and bend at the waist. I find this is how each of the four bullets struck Mr. Steele. [81] It must be emphasized here that Cst. Edwards did not just fire the four shots that struck Mr. Steele. He fired seven. Three of his shots, from 20 feet or less, missed their target completely, to the good fortune of Mr. Steele. (Given Cst. Edwards’ stated target of the centre mass, it might be said that all of the shots missed their target.) [82] Cst. Edwards, Cst. Ly, Cst. Evers, Cst. Pennie, Cpl. Baker and Cst. Maynes all gave estimates of the distance between Cst. Edwards and Mr. Steele when Cst. Edwards started and finished shooting. Cst. Pennie and Cpl. Baker were in AIR-1 and based their estimates on viewing the FLIR (Forward Looking Infrared) as events transpired. It is impossible to reconcile these estimates. Given the trauma of the event and the speed at which it all happened, it is not surprising that the witnesses do not agree on the precise distances from which Cst. Edwards fired the shots at Mr. Steele. Indeed, they are not even consistent in their evidence as to the number of shots they heard though they all stated that the shots were fired in rapid succession without pause. I accept this evidence as being accurate. In terms of distances, I do not accept the evidence of Cst. Edwards. On considering the whole of the evidence, I believe all shots were fired by Cst. Edwards from a distance of between 20 feet when the first shot was fired and about five feet when the last shot was fired. I further accept that he was moving very quickly, if not running, at the time. I also accept the evidence that no warning was ever given by Cst. Edwards that he was about to shoot nor did he tell Mr. Steele to stop or he would shoot. [83] It is important to outline Mr. Steele’s version of events. [84] Mr. Steele testified that after exiting the house, he was holding the handle of the knife in his fist such that the blade ran up along his forearm. Mr. Steele began running when he got out and he jumped over the fence separating the yard from 99th Street. When he was outside, he did hear somebody say, “There he is, he’s gone that way”.





[85] After a few seconds, he heard a dog panting and barking behind him. He glanced around and the dog was about 40 metres away. When he turned around again, the dog jumped. He did not want to get bit by the dog for fear of the injuries it could cause. He also said he did not think to stop at that time because he believed that the police would not call off the dog. [86] Just as Mr. Steele turned, he looked up and saw the dog in mid air. He twisted to evade Wizzard and put up his hands to defend himself. He said that Wizzard’s speed and their momentum caused him and the dog to spin and fall. He says he got up and heard someone say, “He’s got a knife” and “Shoot him”. He says he then turned to run. [87] As he was running, he heard a “popcorn” sound. He then said he fell and he was about half way up and ready to twist and run when he felt “hot pinches” on his body. He again heard the popcorn sound and felt more hot pinches. He went down. He said that the first officer who reached him kicked him in the mouth and called him a “fucking Nigger”. He has a scar on his upper lip and discoloured upper gums which he says were caused by the kick. [88] He said he was then kicked in the leg and in the ribs, called a “piece of shit” and told to “turn the fuck over”. Somebody said this was their city and they were going to send him back to where he came from. He said he then heard two more shots and saw a bright flash. He later woke up in the hospital. [89] I have serious concerns regarding Mr. Steele’s credibility. He gave false testimony regarding a concern over blood test results as the reason he did not report to the halfway house on May 10, 2006. He explained his failure to turn himself in later by saying he was arranging to meet his daughter in Calgary. However, in the two and one half months he was unlawfully at large, little was done to make the necessary arrangements and he never did go to meet her (though he said arrangements had been made for the morning after the shooting). He said he did not have the money necessary to make the arrangements earlier, but then acknowledged he had sufficient funds from the time he left the halfway house. His story about why he was in the bathroom with Ms. Redcrow was nonsense, bordering on ridiculous. He left a shoe in the bathroom when he climbed out the window, but believed he was wearing both shoes while on the run. He had smoked marijuana earlier in the evening and done crack cocaine earlier in the day. He acknowledged gaps in his memory of the day and other parts of his memory were foggy. In short, I do not find Mr. Steele to be credible. I do not believe his evidence of the way in which the shooting occurred and I do not believe his uncorroborated evidence as to what was said or done by the police after the shooting. There is no denying, however, that Mr. Steele both suffered, and continues to suffer, from grievous bodily injury as a result of the shots that hit him. [90] As a result of his gunshot wounds, Mr. Steele’s left kidney, left adrenal gland and a portion of his large intestine were all removed. He is left with bullet fragments from the shots to his lower spine area, his left buttock and his left arm. The bullet that struck his right forearm went right through and exited.





[91] I do not believe the injury to his lip and the discolouration of his gums were caused by a kick. They may have been caused by contact with Wizzard during their struggle or contact with the roadway pavement when he fell. I cannot say for sure what caused these injuries, but I am satisfied they did not occur in the manner described by Mr. Steele. Further, there was no medical evidence to support his allegations of also being kicked in the ribs and leg and, as indicated above, I have rejected his evidence in that regard. [92] Mr. Steele remained in the hospital until September or October of 2006 when he was returned to the Edmonton Max Prison where he served the balance of his term in the prison infirmary. He developed a back infection while there and was required to take intravenous medication three times a day for 24 weeks. When his sentence was finished, he remained in the prison infirmary for a further one or one and one‑half months. [93] Mr. Steele still suffers severe pain requiring him to take 20 milligrams of Oxycontin three times a day. He has a licence to carry medicinal marijuana which he uses for appetite control. Mr. Steele regularly suffers from bladder infections caused, in part, because of his requirement to catheterize himself every time he urinates. During those periods of infection, he takes Codeine for pain. [94] [Wizzard fared much better than Mr. Steele. He was back on all fours and working again within one and one-half months.] 2. Analysis [95] Mr. Steele argues that this was a clear case of excessive force and outside of the limits authorized by s. 25. He provides examples of cases where excessive force has been found, including: R. v. Crane, [2005] A.J. No. 292 (Prov.Ct.); Potts v. Huynh, 2005 ABQB 150, 375 A.R. 267; Breland v. Abbott, 2005 ABQB 903, 390 A.R. 51; R. v. Fryingpan, 2005 ABPC 28, 373 A.R. 187; R. v. Nasogaluak, 2010 SCC 6; R. v. Jara (October 31, 2006), Edmonton 04003381261Q1 (Alta.Q.B.); R. v. J.W., 2006 ABPC 216, 398 A.R. 374; R. v. Pugh (September 15, 2006), Ponoka 04020389P101001-003 (Alta.Prov.Ct.); R. v. Holt (April 15, 2009), Wetaskiwin 080976210P101001-005 (Alta.Prov.Ct.); R. v. Dianocky, 2009 ABPC 54; and R. v. J.D.C., 2009 ABPC 346. Mr. Steele submits that the excessive force amounted to cruel and unusual treatment, in breach of s. 12 of the Charter, and that the intentional infliction of pain and suffering on him constituted torture as it is defined in s. 269.1(2) of the Code.





[96] The Crown submits that the evidence is overwhelming that at the time, or immediately prior to being shot, Mr. Steele was stabbing PSD Wizzard, and as such, presented an immediate and potentially lethal danger to Cst. Edwards and other pursuing police officers. The Crown submits that given the speed at which the situation developed, it is not surprising that memories differ as to which officers were closest to Mr. Steele at the time of the shooting. Whether Cst. Edwards was in fact correct in his estimation that Cst. Evers and Cst. Ly were closest is not determinative, rather his reasonable perception given the emergency situation which had developed is what should be assessed. Cst. Edwards was required to make a split second decision to use lethal force in order to protect himself and other police officers. Whether alternative actions were available must be judged in the context of the situation facing Cst. Edwards at the time, rather than with the luxury of hindsight. Cst. Edwards was acting lawfully and within his authority and common law duties, as well as ss.25 and 27 of the Code. [97] Mr. Steele’s version of the shooting is completely inconsistent with virtually all of the other eyewitnesses to the shooting. He claims that the shots consisted of rapid fire, followed by a significant pause and then two more shots when he was on the ground. This is contradicted by all other witnesses, for both Crown and Defense, who saw and heard the shooting. The following additional claims by Mr. Steele are either unsupported or contradicted by other evidence: that he fell when the dog engaged him (contradicted by the evidence of Cst. Evers, Edwards, Ly, Pennie, Baker, Lowry, Maynes and Sgt. Koshowski); that he no longer had the knife when he was shot (contradicted by the evidence of Cst. Evers, Edwards, Ly and Sgt. Koshowski); and that he was kicked and subjected to racial slurs after he was shot (contradicted on either or both claims by the evidence of Cst. Evers, Evans, Cech, Ly and Lowry.) [98] Cst. Edwards testified that he believed that Mr. Steele was a danger to him and the two officers who were running towards him. He said he thought that Mr. Steele would stab the two officers. I believe Cst. Edwards gave this evidence only to try and justify his actions. I do not believe him. In my view, he witnessed Mr. Steele stabbing his partner, his friend and his family's pet. So he shot him and he shot him in a potentially lethal manner. To borrow from an oft quoted phrase, Mr. Steele brought a knife to a gun fight. [99] As recently emphasized by the Supreme Court of Canada in Nasogaluak, supra at para. 35, police are often engaged in dangerous and demanding work and are called upon to react quickly to emergencies. Their actions should not be judged against a standard of perfection but rather, in light of the exigent circumstances existing at the time of their actions. The question is whether the force used by the officer was excessive given the circumstances he or she faced at the time the force was used, recognizing that the officer could not be expected to measure the force necessary with exactitude. [100] However, s. 25(4) of the Code limits the use of force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, to situations where the officer is proceeding lawfully to arrest the person; the offence for which the person is to be arrested is one for which that person may be arrested without warrant; the person to be arrested takes flight to avoid arrest; the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the officers or others from imminent or future death or grievous bodily harm; and the flight cannot be prevented by reasonable means in a less violent manner. Parliament has not chosen to extend the protection in this provision to police dogs.





[101] In my view, there were no reasonable grounds to believe in this case that the force used was necessary for the purpose of protecting the officers or others from imminent or future death or grievous bodily harm. While it is understandable for one to be upset and angry when witnessing the intentional infliction of injury to an animal, the law provides no justification for a response of potentially lethal retribution against the human perpetrator. [102] Even if Cst. Edwards was concerned for the safety of himself or the other officers, I am not satisfied that the flight could not be prevented by reasonable means in a less violent manner. The firing of four shots into the body of Mr. Steele was grossly in excess of the force necessary in the circumstances then facing Cst. Edwards. It must also be emphasized that he did not fire only four shots. He fired seven. He missed with three shots. [103] Firing a Glock pistol without warning seven times at a man armed with no more than a steak knife from distances of 20 feet or less is an unconscionable use of excessive and aggressive force in the circumstances. Firing the shots while on the run (said by Cst. Lowry to be dangerous), not knowing how many shots were being fired (Cst. Edwards thought he only fired three or four) and not pausing between shots to determine effect before unloading more shots (he did not know if his shots were missing their target) make the actions of Cst. Edwards even more egregious. [104] I would pause here to comment again on the evidence of Sgt. Koshowski. He testified that when Mr. Steele stopped, he took a “lunging step” towards Cst. Evers who was 15 to 20 feet from him. No other person, including Cst. Evers and Cst. Edwards, testified that Mr. Steele did so though there was evidence that Mr. Steele was trying to evade the dog, thrashing about and spinning. He also testified that Mr. Steele’s back was never facing Cst. Edwards while Cst. Edwards was firing his gun and that Cst. Edwards was not moving towards Mr. Steele when he was shooting. I accept none of this. If his evidence was not fabricated then it is difficult to understand how it could be so far at odds with all of the other evidence given how close he was to Cst. Edwards when the shooting occurred. [105] The excessive force used by Cst. Edwards is a clear example of cruel and unusual treatment imposed upon Mr. Steele. I conclude that in all of the circumstances, the use of force by Cst. Edwards in shooting Mr. Steele exceeded that which is authorized by s. 25 of the Code. Mr. Steele’s ss. 7 and 12 Charter rights were breached by Cst. Edwards. I will deal with remedy below.





E. The Investigation [106] Detective Mills was a Detective in Homicide on July 27, 2006. He was assigned as the file coordinator by Det. McGeady. It was his responsibility to organize and gather officers’ reports; obtain communications, records and tapes; and interview witnesses as the investigator. [107] Mr. Steele has criticized the police investigation of this matter as being grossly inadequate and unacceptably negligent. The effect of the deficient investigation is the lack of certain information Mr. Steele would have otherwise been entitled to receive by way of disclosure. Mr. Steele argues that regardless of motive or prejudice, the failure to disclose is a s. 7 breach. Mr. Steele submits that unacceptable negligence (or worse) in this case amounts to an abuse of process, and that it is not necessary to show prejudice in the face of unacceptable negligence in order for the Court to grant a stay. [108] The Crown submits that there is no breach if the police conduct is reasonable and, in this case, Mr. Steele must establish prejudice or conduct amounting to an abuse of process to ground a finding that his Charter rights have been breached. Further, not every loss or destruction of evidence will result in a finding that the right to a fair trial and to make full answer and defence has been breached. [109] At the outset, it must be emphasized that this was an extremely serious matter. A police service dog was released to apprehend a suspect. The dog was stabbed. A man was shot four times by a police officer on a city street. The officer discharged his pistol seven times. A number of officers drew their firearms or tasers during the course of the events. AIR-1 was overhead. A man eventually lay in a hospital bed close to death. That is, it was a hair’s breadth away from being a homicide investigation and, when the investigation began, a homicide was a very real possibility. The situation demanded a full, proper and objective investigation. [110] The first significant failure by the police relates to the seizure and retention of exhibits, particularly Mr. Steele’s shirt. Mr. Steele was wearing a T-shirt when he was shot by Cst. Edwards. When the ambulance arrived, he was placed in the ambulance; and his shirt was cut off so that he could receive some treatment immediately. Cst. Lowry travelled with Mr. Steele in the ambulance. Cst. Lowry was provided with Mr. Steele’s clothing at the hospital by hospital staff. He did not receive the shirt. [111] Mr. Watt was a paramedic with the Emergency Medical Services and the lead paramedic when Mr. Steele was picked up by the ambulance. Mr. Watt testified that scissors were used to remove Mr. Steele’s clothing. He had no recollection of what happened to Mr. Steele’s shirt though standard practice would have been to put it on the bench or on the floor or in a wheel well. [112] No attempts were made by the investigating police officers to locate the shirt nor to determine precisely what happened to it. In fact, it seems nobody even asked about it.





[113] Mr. Steele argues that the shirt would have provided evidence of the precise distance from which Cst. Edwards fired the last couple of shots. Dr. Bannach testified that gunshot residue would only provide useful evidence if the gun was fired within two to three feet. [114] While I do not believe that the last two shots were fired from within that range, it is also my view that all steps should have been taken to locate the shirt or determine what happened to it. It remained an important piece of evidence and there has been no adequate explanation as to why its whereabouts was not even questioned, let alone determined. [115] No gunshot residue testing was done on Mr. Steele’s pants and, as with the shirt, it is possible that gunshot residue would have disclosed something relevant. While I do not believe that any shots were fired from the range suggested by Mr. Steele, a proper and full investigation should have included gunshot residue testing on the pants. [116] Mr. Steele alleges that it was inappropriate to secure the scene following the shooting with officers who had been involved in the circumstances leading up to it. In the circumstances of this case, I do not feel it was improper or inappropriate to have the police officers who were present when events unfolded secure the scene. They were immediately available to perform a necessary task. There is no evidence to suggest that any of those who did do so had a vested personal interest in the outcome of the investigation nor, indeed, that they would have known how to favourably contaminate the scene. [117] Mr. Steele argues that a proper blood stain analysis should have been done to provide some evidence as to the movement of the bodies of Mr. Steele and Wizzard at the time of the shooting and afterward. Sgt. Topp is a qualified blood stain pattern analyst though he did not perform such an analysis here. He went to the scene at 7:15 a.m. While there were blood stains apparent at the scene, it was Sgt. Topp’s opinion that they would provide only limited disclosure. The locations of the blood samples alone, without knowing or having more information as to what allegedly happened, would not allow him to determine the body movements of the dog or Mr. Steele. All he could have done was opine on the nature of the stain. In short, he did not feel that a blood stain analysis would be helpful in this case because of the limited amount of staining and the only opinion he would have been able to give would have been on the nature of the stain. [118] In my view, a proper and full investigation should have included a blood stain pattern analysis. While it is not clear whether additional information relevant to the investigation or impacting on the findings would have been gleaned, it might have.





[119] Mr. Steele contends that tests should have been conducted and expert evidence sought with respect to ejection patterns of shell casings from shots fired from a Glock pistol. I am not satisfied from the evidence that such a field of expertise actually exists. Further, even if it does, I would be very sceptical of tests to determine ejection patterns as being either helpful or necessary given the many factors that would have to be considered when explaining their ultimate resting place. [120] Mr. Steele says that the investigators were negligent for failing to determine whether any of the objects at the scene were moved at any time before their final resting position was photographed or noted on scene diagrams. In my view, this information should have been determined though it is unclear whether, or how, it may have impacted on Mr. Steele’s ability to make full answer and defence. [121] Det. Mills was the file co-ordinator. He attended at the scene within two or three hours and did a walk through with Sgt. Koshowski, one of the eyewitnesses, for just over one hour. While he made some notes of what he did, he made no notes of what he was told by Sgt. Koshowski nor did he prepare a diagram of the location of various objects seen on the roadway around the vicinity of the shooting. He did not take any audio, video or camera equipment to further record what was observed at the scene. His explanation at trial that he expected others to do so is unsatisfactory. As the file co-ordinator and one of the lead detectives involved in the investigation, he should have either taken the steps himself or ensured that they were done forthwith. I would also note here that Det. Mills’ notes made at the scene indicate that he saw no shell casings. Curiously, and without having re-attended the scene, his police witness form completed later mentions his seeing numerous casings. Regardless of whether this clear contradiction was caused by sudden memory recall some time later or a review of photographs accurately depicting the scene, it is disturbing. [122] Mr. Steele further alleges improper techniques by the police in obtaining evidence from the police officers involved. One of the examples cited by Mr. Steele is the failure by the investigating team to conduct an interview of Cst. Edwards, ordinarily something required of all officers involved in such a serious matter. However, Cst. Edwards gave evidence that he obtained legal advice not to participate in an interview and to have any of his written statements first reviewed by his counsel. In my view, regardless of what obligations there may have been on Cst. Edwards pursuant to police policy, he is entitled to obtain and rely upon legal advice and no fault can be attributed to either him for refusing to submit to an interview or the investigating members for failing to interview him. [123] Mr. Steele also cites the failure by the investigators to conduct an interview of S.Sgt. Fedechko. He was clearly involved in the initial stages of the events of the evening and in my view should have been interviewed. [124] Interviews of most of the police witnesses by Det. Mills and the others involved in the investigation were audio video recorded. These included recordings of individual officers who were not at the scene but were involved in other aspects (for example, two of the officers interviewed only attended at the Veterinary Clinic where Wizzard was treated). However, the interviews of Cst. Cech and Cst. Penno were not audio video recorded.





[125] Det. Mills explained his failure to record those interviews on the basis that they were simply follow-up interviews to the written witness statements previously given by them. As such he felt it unnecessary to record them. This is a wholly unsatisfactory explanation. This was an extremely serious matter. At the time Det. Mills interviewed Cst. Cech and Cst. Penno, he did not know the extent to which their witness statements might be supplemented by new or additional information about to be given. Each interview was over 50 minutes long and Det. Mills’ notes of those interviews are relatively brief. All other interviews, excepting that of Cst. Maynes, were audio video recorded and his failure to do the same with Cst. Cech and Cst. Penno is inexplicable, inappropriate and suspect. [126] Det. Mills also failed to record an interview with Cst. Colleen Maynes who was part of the Project Team. He conducted an interview with her by telephone from his home. Cst. Maynes was an eyewitness and provided information as to what she observed when Wizzard was released by Cst. Edwards and where she observed the parties to be when Cst. Edwards fired the shots. Cst. Mills should have conducted a full and proper interview of Cst. Maynes in an interview room at Police Headquarters and audio video recorded it. [127] Det. Mills was unable to find the notes from Det. McGeady who was the lead investigator into this matter. Those notes have apparently been misplaced or lost. While it is always possible in any case for notes to be lost or misplaced, and the Crown properly points to the fact that this case involved the collection of voluminous documents and evidence, I am left wondering how it could possibly have happened to the lead investigator’s notes in a case as serious and important as this one. [128] Mr. Steele says that the investigating officers allowed the various officers involved opportunities to collaborate on their evidence and speak to each other before being interviewed or preparing their reports. The evidence has not satisfied me that there was collaboration and, while I believe that officers may have spoken to each other given the traumatic experience they had just witnessed and experienced, I am not satisfied that they spoke to each other about the substantive details of what they had seen nor do I believe there to have been any concerted effort for everyone to “get their facts straight”. [129] Finally, Mr. Steele is critical of the investigators for failing to determine the relationships between the various officers and, particularly, the relationship between Cst. Edwards and Sgt. Quast (Cst. Edwards’ uncle by marriage) and between Cst. Edwards and Sgt. Koshowski (good friends). I cannot be sure that these relationships were not already known to one or more of the investigators nor is it clear what Mr. Steele thinks the impact of those relationships might have been on the investigation. [130] On the whole, it is my view that the investigative techniques used in this case were very sloppy and negligent. The gravity and seriousness of the events demanded a full and proper investigation. Such was not done.





[131] In R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, the Supreme Court held that the Crown has a duty to preserve relevant evidence and if such evidence is lost, the Crown has a duty to explain. If the explanation satisfies the court that the loss of the evidence is not due to unacceptable negligence, then the duty to disclose has not been breached. [132] In my view, the explanation by the police for its delinquent investigation is unacceptable. I find that the shortcomings in the investigation amount to unacceptable negligence. I will address remedy below. III. The Offences A. Count 1 - Possession of a Weapon [133] Mr. Steele is charged under s. 88(1) of the Code for being in possession of a weapon for a purpose dangerous to the public peace or for the purpose of committing an offence. [134] Mr. Steele was in possession of a knife which, he says, was being used in the bathroom of the house to cut marijuana. He then used the knife to cut the screen from the bathroom window through which he escaped from the house. He testified that from that point on, he was not conscious of his possession of the knife though he clearly possessed it until the time he used it to stab Wizzard. He argues that he never formed the intention to use it for an unlawful purpose. [135] The Criminal Code defines “weapon” in s. 2 as anything used or intended for use in causing death or injury to any person or for the purpose of threatening or intimidating any person. To be convicted, an accused must have the intent to possess the weapon for a purpose dangerous to the public. While the possession of a weapon may have begun with an innocent intent, that may change. When the original innocent intent or purpose changes to a purpose dangerous to the public, an accused is guilty of an offence under s. 88(1): R. v. Calder (1984), 1984 ABCA 45 (CanLII), 51 A.R. 80, [1984] A.J. No. 979 (C.A.). [136] I do accept Mr. Steele’s evidence that he initially intended to use the knife to cut marijuana for the purpose of rolling a joint. He took it with him when he went to the bathroom to hide. However, after he cut the screen on the window, he deliberately retained the knife and his purpose for holding it changed. He held it in a fashion such that the handle was in his hand and the blade ran up his arm so as not to cause him injury. His claim that he was not consciously carrying the knife is belied by his precise recollection as to how he was carrying it.





[137] While carrying the knife in a manner intended to prevent personal injury, Mr. Steele climbed through a window, dropped to the ground, ran through a yard, jumped over a six-foot fence, and continued to run across 99th Street and west on 69th Avenue. At any point in time, the knife could have been discarded as the “innocent” use of it had been completed. However, it was not discarded because Mr. Steele fully intended to use it as a weapon if needed and, in particular, to facilitate his attempted escape from the officers chasing him. He then used it as a weapon when he stabbed Wizzard, in accord with his changed intent. I do not believe Mr. Steele’s evidence that he did not intend to stab Wizzard as he was seen making numerous stabbing motions towards the dog. [138] All of the elements of the offence under s. 88(1) have been proven by the Crown beyond a reasonable doubt. B. Count 2 - Being Unlawfully at Large [139] Mr. Steele is charged under s. 145(1) of the Code for being unlawfully at large. [140] On April 13, 2006, Mr. Steele was released on statutory release while serving a sentence in a Federal Penitentiary. As a condition of his release, he was required to reside at a halfway house and report there each evening at 8:00 o’clock. Mr. Steele failed to return to the halfway house on May 10, 2006. [141] Mr. Steele remained unlawfully at large on July 27, 2006. [142] The Crown has proven all of the elements of this charge beyond a reasonable doubt. C. Count 3 - Wilfully Obstructing a Peace Officer [143] Mr. Steele is charged under s. 129(a) of the Code for wilfully obstructing a peace officer in the execution of his duty. [144] I have already determined that Mr. Steele has no standing to contest the lawfulness of the search of the house by the police officers. The detention of Mr. Steele by the officers in the house, who were concerned about the safety of the occupants and themselves, was a proper investigative detention. Finally, with the information available to Cst. Edwards at the time he released Wizzard to apprehend Mr. Steele, he had reasonable grounds to believe that Mr. Steele was someone who should be detained for investigative purposes or arrested. [145] Mr. Steele knew that the police were chasing him. While he denied hearing commands for him to stop, I do not believe his evidence in that respect. Cst. Evans told him to stop as he jumped from the bathroom window in the house and Cst. Ly told him to stop when he saw Mr. Steele run across 99th Street. Mr. Steele was within hearing distance of the two Constables and I believe he heard them. Regardless, and in any event, Mr. Steele knew the police were chasing him and he did not stop because he knew that he was unlawfully at large and at risk of being sent back to jail. [146] Mr. Steele’s running away from the police, his failure to abide by their demands to stop and his ultimate stabbing of Wizzard were all acts done to obstruct the police in the execution of their duties. The Crown has satisfied each element of the offence beyond a reasonable doubt.





IV. Remedy [147] Mr. Steele argues that the Court must be cognizant of the long term consequences of the remedy it selects or does not select, and submits that only a stay will send the appropriate message in this case to both the general community and the correctional community that use of excessive force by the police will not be tolerated or condoned, and only a stay will serve the long term interests of justice. He cites the following cases in which stays or acquittals were granted, including: R. v. Rideout (January 15, 2003), Edmonton 020527339-P1 (Alta.Prov.Ct.); R. v. Crane, [2005] A.J. No. 292 (Prov.Ct.); R. v. Fryingpan, 2005 ABPC 28, 373 A.R. 187; R. v. J.W., 2006 ABPC 216, 398 A.R. 374; R. v. Holt (April 15, 2009), Wetaskiwin 080976210P101001-005 (Alta.Prov.Ct.); R. v. J.D.C., 2009 ABPC 346; and R. v. Pringle, 2003 ABPC 7, 324 A.R. 352. [148] In R. v. Weaver, 2005 ABCA 105, 363 A.R. 253, Berger J.A. stated: 25 Judicial stays should be exercised sparingly and only in the "clearest of cases". The trial judge, with respect, appears to have confused "clear breach" with "clearest of cases". I agree with the Appellant that both the trial judge and the summary conviction appeal judge failed to consider the guideline cases before granting a stay. In R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, the Supreme Court made it clear that a stay of proceedings was "a last resort, to be taken when all other acceptable avenues of protecting the accused's right to full answer and defence [have been] exhausted." (para. 77) (emphasis in original) or where "irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued." (para. 82) The Court acknowledged that there was a residual category of cases where a stay might be appropriate (at para. 73): "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." See also R. v. Regan, 2002 SCC 12 (CanLII), [2002] 1 S.C.R. 297. 26 In R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80 and Canada v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, the Supreme Court reaffirmed its stance that a stay of proceedings should only be applied in "the clearest of cases".





[149] While no two cases are ever identical, it bears mentioning that the cases relied on by Mr. Steele are distinguishable. In Rideout, Crane, and J.D.C., the excessive force occurred during otherwise unlawful detentions or arrests. Fryingpan, J.D.C., and J.W. involved excessive force in relation to young persons. In J.D.C. and Pringle, the comments regarding a stay were obiter. In Holt and other cases, the excessive force was used in response to relatively trivial acts by the suspects. [150] In considering whether the use of excessive force in this case makes it one of the “clearest of cases” warranting a stay, I am mindful that unlike some of the above cases and others like Nasogaluak, supra, there was no evidence here of gratuitous violence inflicted on a suspect who was already under control, nor of failing to facilitate appropriate medical attention for an injured suspect. Further, I do not accept the evidence of Mr. Steele that racial or discriminatory slurs were used by any of the police officers towards him. [151] However, the excessive force in this case was greater, in fact potentially lethal, and caused more serious lasting injuries than those in the cases cited above. [152] Defence counsel also refers to cases where sentence reductions or enhanced credit for pre-sentence custody were granted for circumstances involving excessive use of force, including: R. v. Nasogaluak, supra; R. v. Munoz, 2006 ABQB 901, 411 A.R. 257; R. v. Chan, 2005 ABQB 615. [153] The Supreme Court in Nasogaluak, supra, addressed available remedies for police use of excessive force in violation of the accused's rights under s. 7 in the context of an otherwise lawful arrest. In that case, the accused suffered significant unnecessary injuries during his arrest and subsequent detention. The excessive force was not reported by the officers and they failed to secure the accused medical attention. The Court emphasized that Charter breaches generally can be effectively remedied by courts without resorting to s. 24(1) of the Charter, as the Code allows judges to consider state actions relating to the circumstances of the offence or the accused. Further, sentence reductions outside statutory limits, while generally not available, are not totally forbidden, as in a case of some particularly egregious form of misconduct it may be the only appropriate remedy. Lebel J. stated: 49 A sentence that takes account of a Charter violation is therefore able to communicate respect for the shared set of values expressed in the Charter... Provided that the impugned conduct relates to the individual offender and the circumstances of his or her offence, the sentencing process includes consideration of society's collective interest in ensuring that law enforcement agents respect the rule of law and the shared values of our society.





[154] Lebel J. cited with approval R. v. Pigeon (1992), 1992 CanLII 869 (BC CA), 73 C.C.C. (3d) 337 (B.C.C.A.), in which an aboriginal man fled from police after committing a break and enter. After an officer fired a shot into the air, the man returned, unarmed and unaggressive, with the intent to surrender. The officer grabbed him by the hair and threw him onto the pavement. Rather than handcuff him, the officer lifted him back up and dragged him by the hair to where the other officer was stationed, threw him onto the ground again and, with the other officer's foot firmly placed on the accused's neck, handcuffed him. Pigeon did not resist arrest or attempt to escape at any time. He was convicted and sentenced to nine months' imprisonment. On appeal, Carrothers J.A. reduced the sentence to six months' imprisonment, in light of the trial judge’s finding of excessive force, which sentence was at the low end of the scale of sentences for similar offences. [155] Nasogaluak and Pigeon are examples of unnecessary and demeaning violence, and would suggest that a sentence reduction may provide a sufficient remedy in many cases of excessive force. [156] In R. v. Jara (October 31, 2006), Edmonton 04003381261Q1 (Alta.Q.B.), a suspect already under control was tasered. In discussing the availability of a stay as a remedy in that case, Sanderman J. opined (transcript, pp. 23 ff) that there is something fundamentally wrong with the notion that the public is wronged by a crime and then must suffer a further wrong on occasions by the failure of public servants to do their jobs properly. Accountability of an offender is central to our system of justice. He is accountable through an appropriate punishment and his record of a criminal conviction so that the public knows that he has offended and that he has put them at risk in the past. Granting a stay would compound the wrong to the public. Sanderman J. noted that there are other mechanisms to hold peace officers accountable for their transgressions, including civil remedies, criminal remedies and remedies under the Police Act. Sanderman J. held in that case that a reduction in sentence rather than a stay would be appropriate. [157] I find Sanderman J.’s reasoning to be compelling. However, I have found not only an excessive use of force resulting in serious, lasting injuries, but also unacceptable negligence in the investigation of the circumstances surrounding the use of excessive force. [158] In La, Sopinka J. stated: 22 ...An abuse of process ... is not limited to conduct of officers of the Crown which proceeds from an improper motive. See R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at paras. 78‑81, per Justice L'Heureux‑Dubé for the majority on this point. Accordingly, other serious departures from the Crown's duty to preserve material that is subject to production may also amount to an abuse of process notwithstanding that a deliberate destruction for the purpose of evading disclosure is not established. In some cases an unacceptable degree of negligent conduct may suffice.





[159] The Court of Appeal in R. v. Antinello, 1995 ABCA 117 (CanLII), [1995] A.J. No. 214, 165 A.R. 122 (C.A.) at 566 held that before the remedy such as a judicial stay of proceedings can be granted in such cases, the accused must establish on a balance of probabilities that the failure to produce or disclose what he seeks has impaired his right to make a full answer and defence or was so oppressive as to amount to an abuse of process. [160] The Court in Grimes, 1998 ABCA 9, 209 A.R. 360, referring to La, supra and R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 stated: 25 We do not read these cases as suggesting that a stay of proceedings will be granted in a case where, without the evidence in question, it will be more difficult for the accused to make out his case or that a mere finding of materiality will suffice. To stay proceedings, the trial judge must be satisfied on a balance of probabilities that the lost evidence is of such major importance to the defence case that a fair trial cannot be had without it, or that the loss of that evidence deprived the accused of the opportunity to make a full answer and defence. Then, only as a last resort and in the "clearest of cases", should a stay be granted. ... 28 In this case, none of the missing evidence directly relates to the circumstances of the offence charged... [161] In R. v. Bradford (2001), 2001 CanLII 24101 (ON CA), 52 O.R. (3d) 257, [2001] O.J. No. 107 (C.A.), leave denied [2001] S.C.C.A. No. 131, the Court found that it was open to the trial judge to conclude that the loss of a signed statement was due to unacceptable negligence. However, the Court also found that while the task of the defence was made more difficult because of it, the respondent's trial was not fundamentally unfair, adding: 46 ...In a situation such as this, the administration of justice is better served by permitting the prosecution to continue in these circumstances rather than by staying the proceedings and thereby effectively acquitting the respondent. The present facts do not warrant the issuance of an order overriding the manifest societal interest in the effective prosecution of criminal charges. Simply, this is not one of those "clearest of cases" in which a stay of proceedings is necessary for the interests of justice... 47 I must also deal with the respondent's alternative claim of abuse of process. It is now well‑settled that abuse of process is a separate question from the breach of s. 7 Charter rights. (see R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, 116 C.C.C. (3d) 99, at pp. 690‑92 S.C.R., p. 107 C.C.C., paras. 20 and 22). Applying the authorities to the present case, I am of the opinion that the loss or destruction of the complainant's statement does not constitute abuse of process. There was no suggestion of prosecutorial misconduct or bad faith in the destruction of the statement. The facts do not establish that the respondent's trial was such as to violate the principles of justice underlying the community's sense of fair play and decency.





[162] In R. v. Bero (2001), 2000 CanLII 16956 (ON CA), 137 O.A.C. 336, [2000] O.J. No. 4199, the identity of the driver was the only issue at trial. The police did not conduct a forensic examination of the interior of the vehicle and Bero argued that such an examination would have produced evidence relevant to the identity issue. The Court held that there was a reasonable possibility that forensic examination could have produced relevant evidence, and failure to produce the vehicle amounted to breach of the Crown's disclosure obligations and resulted in a breach of Bero's right to full disclosure as an adjunct to his right to make full answer and defence. However, the Court determined that it was not a proper case for a stay, as there was no suggestion that the Crown acted with a malevolent motive, or that there was a systemic disregard by the Crown of its obligation to preserve relevant evidence. [163] In R. v. Buyck, 2007 YKCA 11, 245 B.C.A.C. 253, the Crown did not dispute the trial judge's findings that the failure to preserve and disclose a recording was unacceptably and inexcusably negligent, violating the respondent's right to disclosure under s. 7 of the Charter, nor that the police officer's response to the request for disclosure relating to recorded encounter was objectively misleading. The issue on appeal was whether the trial judge erred in law in finding that a stay of proceedings was the appropriate remedy for the Charter breach, and that there would be irreparable prejudice to the integrity of the judicial system if the prosecution were continued. [164] The Court cited Bradford wherein it was held that in the case of either a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy, only if it is one of those rare cases that meets the criteria set out in O'Connor. The Court considered L’Heureux-Dubé J.’s statement in O’Connor: 82 It must always be remembered that a stay of proceedings is only appropriate "in the clearest of cases", where the prejudice to the accused's right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued. [165] The Court noted that at para. 75 of O'Connor, the following two criteria for a stay are expressed by Professor Paciocco and adopted by L'Heureux‑Dubé J.: (1) 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 (2) no other remedy is reasonably capable of removing that prejudice.





[166] The Court in Buyck went on to consider whether the case before it was one of the "clearest of cases" where a stay of proceedings is appropriate, noting that the trial judge did not consider the individual and societal interests in the prosecution and resolution of criminal charges, that the conduct of the police officer and the Crown was not a deliberate attempt to frustrate the respondent's defence, nor that "a stay of proceedings is a prospective remedy", and is appropriate where it appears "that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice" (Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391 at paras. 91 and 96). [167] The Court concluded that when those principles were taken into account, it could not be said that a stay of proceedings was either appropriate or necessary to preserve public confidence in the administration of justice. While the police officer's conduct was negligent and "objectively misleading", there was no basis to conclude that such conduct would be perpetuated or aggravated by allowing the prosecution to continue, or that ending the prosecution because of that conduct outweighed the interest of society in a verdict on the merits. [168] The numerous problems with the investigation, a combination of failure to investigate and loss of evidence, raise concerns as to whether the failings were systemic in this case or, perhaps, systemic in cases of police investigations of police actions. Nevertheless, I have found that the unacceptable negligence in relation to the investigation in this case did not prevent Mr. Steele from making full answer and defence. A fulsome defence was aggressively advanced and I am not satisfied that Mr. Steele has been prejudiced in any way in that respect. However, it is only through happenstance that Mr. Steele has not been prejudiced by the unacceptable negligence in asserting a breach of his Charter rights. Importantly, the investigative deficiencies did not relate directly to the offences with which Mr. Steele is charged. Those offences have been made out. The deficiencies in the investigation, rather, go directly to the propriety of the police actions up to the time of Mr. Steele’s arrest, police actions that may have considerable impact on the remedies available to Mr. Steele. Of course, they also relate directly to the possibility of further investigations into the actions of Cst. Edwards. [169] Were the unacceptable negligence in the conduct of the investigation into this matter the only breach in this case, I would be hesitant to grant a stay, as in my view this is not one of the “clearest of cases” where a stay would be justified on that basis alone given the absence of prejudice to Mr. Steele. [170] However, the unacceptable negligence in the investigation greatly aggravates the seriousness of the already very serious breach resulting from use of excessive force. Great care in the investigation of such incidents is absolutely necessary to preserve the repute of the administration of justice. I am prepared to find that the particular combination of breaches in this case constitutes an abuse of process. Does it make this case one of the “clearest cases” warranting a stay? [171] The Court must ask whether irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued and whether no other remedy is reasonably capable of removing that prejudice.





[172] I am mindful of the persuasive reasoning of Sanderman J. in Jara and the need for offenders to be held accountable. I have noted those authorities considering the excessive use of force by persons in authority. Finally, I have also considered the need to rectify any evident systemic disregard for full and proper investigations in all cases and, particularly, those involving the police use of potentially lethal force against members of the public. The public expects and is entitled to a full and proper investigation by its policing agencies in such cases and the judicial system demands it. [173] I conclude that the combination of Charter breaches in this case makes it one of the “clearest of cases” meeting the very high threshold mandated by the Supreme Court in O’Connor and subsequent cases. I find that a stay of two of the three charges is warranted: wilful obstruction and possession of a weapon. The two charges in question are temporally and causally linked, as the evidence is that both offences commenced on Mr. Steele exiting the bathroom window, and culminated in the confrontation during which the excessive force was used. Such is not the case with respect to the unlawfully at large count. [174] I believe this result addresses the main concern of Sanderman J. as a conviction of Mr. Steele on the charge of being unlawfully at large ensures some accountability of Mr. Steele to society for his actions and his record will permanently evidence his criminal disregard for the judicial process and contempt for lawful authority. It also emphasizes the need for those individuals involved in police work to use only such force as is proportionate to the situational needs and risks. Finally, it underlines the need for police agencies to ensure full, proper, objective and honest investigations into those cases where potentially, or actual, lethal force has been used by its members purportedly in the course of carrying out their duties. [175] In my view, the affront to fair play and decency by allowing the prosecution to proceed on these two charges would be disproportionate to the societal interest in their effective prosecution. Irreparable prejudice would be caused to the integrity of the judicial system by the Court’s seeming condonation of both the use of excessive force by the police and the unacceptably negligent investigation by the same police into the use of that force. No other remedy other than a stay is reasonably capable of avoiding that result. It is one of the clearest of cases in which a stay is necessary in the interests of justice. [176] The Crown has established Mr. Steele’s guilt in relation to the offence of being unlawfully at large (s. 145(1)(b)) and a conviction will be entered on this charge. V. Conclusion [177] The Crown has proved beyond a reasonable doubt that Mr. Steele was guilty of the offences charged. Mr. Steele’s Charter rights under ss. 7 and 12 were breached by Cst. Edwards when he used excessive force against Mr. Steele. His rights were further breached by the unacceptably negligent investigation of the matter by the police. The only remedy reasonably capable of avoiding irreparable prejudice to the integrity of the judicial system is a stay of the obstruction and weapon charges, and entering a conviction against Mr. Steele on the offence of being unlawfully at large.



