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| John L. Hill |
The appellant was a suspect in a fatal shooting and was considered armed and dangerous. Police devised a tactical arrest plan, which involved boxing in the vehicle he was in and using flashbangs. During the arrest, the appellant followed instructions to crawl toward Cst. Davie and told police he had a gun, which was not regarded as a threat.
While Cst. Davie was overseeing the arrest with a non-lethal weapon trained on the appellant, Cst. Pagnucco, unaware of ongoing instructions, approached and directed the appellant to lie down. When the appellant did not respond — not hearing the instruction — Cst. Pagnucco kicked him and then jumped on his back. In reaction to the pain, the appellant moved his hands toward his body.
Cst. Davie, losing sight of the appellant’s hands and aware of the risk of the gun, deployed a CEW (Taser), first for nine
Kostiantyn Filichkin: ISTOCKPHOTO.COM
The appellant questioned the admissibility of the gun evidence, asserting that his s. 7 Charter rights were violated due to the use of excessive force. Nonetheless, the trial judge determined that Cst. Davie’s actions were justified given the circumstances, highlighting the risk posed by the suspect and the importance of maintaining visual control over his hands. The force used was considered reasonable, and the Charter application was dismissed.
The trial judge, with the Crown’s agreement, found that Cst. Pagnucco’s use of force during the arrest was unreasonable and violated the appellant’s s. 7 Charter rights. However, by applying the three-part test from R. v. Grant, 2009 SCC 32, the court determined whether the gun should be excluded as evidence; the judge ultimately decided not to exclude it.
In applying the Grant test, the first step was to assess the seriousness of the breach of the Charter. The judge determined that although Cst. Pagnucco misjudged the situation and overreacted, his actions were not reckless and were on the less serious end of the spectrum, especially considering the high-risk nature of the arrest.
The second step assessed its effect on Blyan. The substantial physical and psychological harm to the appellant justified excluding the evidence.
The third step is to consider the societal interest in adjudication. The gun was real and reliable evidence, and the public interest in addressing serious firearms offences supported admitting it, particularly since the police already had grounds to arrest the appellant and he had disclosed possession of the gun.
Although the gun was admitted, the judge cited s. 24(1) of the Charter to consider the Charter breach as a partial remedy during sentencing.
The court affirmed the trial judge’s decision that Cst. Davie’s use of the Taser was justified and reasonable, despite conflicting witness accounts and the appellant’s argument to the contrary.
In upholding the trial judge’s assessment, the Court of Appeal found no need to reconcile conflicting evidence. The judge was entitled to accept that Cst. Davie lost sight of the appellant’s hands while also accepting that Cst. Pagnucco believed he had control of them.
The court also held that the use of force was objectively reasonable under s. 25(1) of the Criminal Code. Blyan was suspected of being armed, linked to a violent offence, and was now struggling on the ground. Cst. Davie didn’t know about Cst. Pagnucco’s unnecessary force, and he had to respond based on what he perceived — a potentially armed suspect resisting arrest, whose hands were no longer visible.
The appeal court also concluded that the continued use of the Taser was reasonable. The court rejected the argument that repeatedly deploying the CEW was excessive once it was clear it would not cause a neuromuscular lockout. It stressed that officers are not required to be perfect and must be allowed discretion in quickly changing, high-risk situations. The trial judge agreed that Cst. Davie aimed to facilitate the safe handcuffing of an armed suspect, which was considered reasonable at the time.
Despite correcting the trial judge’s mischaracterization of good faith, the court conducted a new Grant analysis and reached the same conclusion.
In dismissing the appeal, the court determined that the trial judge made no error in finding that Cst. Davie’s use and continued use of the CEW were lawful and justified under the circumstances. They upheld the trial judge’s decision that the gun should not be excluded from evidence, despite a Charter breach by the police.
The court emphasized that although there’s no “firearms exception” in Charter law, illegal handguns have distinct public safety implications that must be recognized in real-world Charter applications. Blyan was ordered to surrender into custody.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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