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DOC-X VOLUME II: APPLICATION RECORD FOR APPLICATION FOR CONSTITUTIONAL QUESTION 2.) EVIDENCE
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Information Nos.: C51190
court of appeal for ontario
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and -
WAYNE FERRON Applicant
DOC-X
VOLUME II
APPLICATION RECORD FOR APPLICATION
FOR CONSTITUTIONAL QUESTION
2.) EVIDENCE
2.) EVIDENCE:
GIVEN: 1.) The complainant made a Highway Traffic complaint.
2.) Officers were investigating a highway traffic complaint.
EVIDENCE PREMISE:
CASE 1: The Complainant made an allege Highway traffic violation complaint.
CASE 2: The Complainant did not inform the Applicant of any alleged unlawful Actions.
CASE 3: The Complainant did not inform the Applicant of any Police involvement.
CASE 4: The Complainant did not inform the Applicant of his intention or objective.
CASE 5: The Complainant did not assure the Applicant or guarantee the safety and well-being of his family or valuable equipment he had in his possession.
CASE 6: The Complainant did not inform the Applicant of is identity or the capacity he was acting in.
CASE 7: Their was no high speed chase from the Applicant’s perspective.
CASE 8: The Officers were not investigating the complainant’s Complaint.
CASE 9: The initial investigation, was a narcotic investigation.
CASE 10: The was no clear purpose or objective for the investigative stop.
CASE 11: Their was a heavy reliance on POST OFFENCE CONDUCT EVIDENCE evidence by Officers and the Prosecution.
CASE 12: Post Offence Conduct doesnot constitute reliable evidence.
CASE 13: The Applicant was not considered to be violent, to be a crack cocaine addict or alien to the Georgian community before his physical description?
CASE 14: The Applicant was considered to be violent, to be a crack cocaine addict, and to be alien to the Georgian community after his physical description?
CASE 15: Officers attempt to colour the complainant.
CASE 16: There was an infringement of the Applicant’s rights and freedom.
CASE 17: The Applicant was discriminated against.
CASE 18: There is evidence to support a finding of systemic racism.
CASE 19: There is evidence to support a finding of racial profiling.
HIGHWAY TRAFFIC COMPLAINT:
CASE 1:
[265] Did the Complainant make an allege Highway traffic violation or violations complaint?
[266] Pursuant to the Complainant;
“
• At approximately 11:30 pm on March, 27th, 2007 I was driving north bound on Woodbine Avenue after exiting the HWY 404.
• The roads were fairly dry and visibility was very good.
• Somewhere just north of Green Lane Road I noticed I was following a red, Rogers cable mini van, the van was a typical service vehicle with ladders on the roof and corporate decals on the vehicle.
• We were traveling between 80 and 90 kms per hour when I noticed that the vehicle was not staying within the north bound lane and was periodically entering into south bound lanes and making rapid corrections to bring the vehicle back into the northbound lane.
• {...}
• It is at this time that I called 911 to report a suspicious driver. The time would have been roughly 11:40 pm.
• As I spoke to the 911 dispatcher, the red Rogers vehicle made a left turn onto Wexford road and preceded westbound to Natanya Blvd road were the van turned northbound.
• The vehicle pulled over to the side of Natanya immediately after turning onto the road with the correct indicator on. It is at this point that I said to the dispatcher that I might wasted your time, it look like the van is looking for an address. I pulled off to the side of the road at Doon Cres. And continued to watch the van.
• At this time the dispatcher asked if I could stay a little longer and watch the van until the police cruiser got there. I agreed and continued to watch.”
(Mr. Geoffrey Fardy, unsigned--Statement or Summary of Witness Account)
[267] Thus CASE 1: has been proved.
Therefore, the Complainant made an allege Highway traffic violation or violations complaint?
CASE 2:
[268] Did the Complainant inform the Applicant of any alleged unlawful Actions?
“Q. Mr. Fardy the last time we were here, you
made a statement that I was flying actually Your Honour asked
you a question if I was speeding and you said I was flying so I
would like to ask you - how do you define the word flying? What
does it mean?
A. I recall actually we were discussing that
and we were discussing the latter part of the event when I was
following you and if I had to define not being able to describe
what your speed was but in excess I guess - the safest thing
would be to say in excess of the speed limit.
Q. Okay. While you were following me, did you
activate an emergency - red emergency mobile watch light?
A. Pardon?
Q. Activate a red emergency mobile watch light,
activate an emergency light?
A. Emergency light like a flashlight?
Q. Emergency like police, ambulance?
THE COURT: You are asking if he activated an ...
Q. Yes.
A. No I don't have one.
Q. Okay did you at any time identify yourself as the police?
A. No I did not.
Q. Okay did you at any time reveal to me that
you were following me as per instructed by police?
A. No I did not.
Q. Did you do anything to indicate to me that
you were making a citizen's arrest?
A. No I did not.
Q. Did you at any time indicate to me that I
may have done something wrong or unlawful?
A. I asked you when we pulled onto Dune if you
were lost or if I could help you when I pulled up beside you but
did not indicate anything other than I wanted to assist you.
Q. Being lost is not unlawful is it?
A. Not that I know of.
Q. Did you blow your horn to alert me?
A. No I did not.
Q. Did you flash your high beams to alert me?
A. No I did not.
Q. SO how am I supposed to know if you are a
predator, a thief or if you are there to help me?
A. I cannot answer that.”
(Mr. Geoffrey Fardy Cr-ex, May 9, 2008 Trial Transcript for 07-02559, page 9-10)
[269] Pursuant to Mr. Geoffrey Fardy May 9, 2008, cross examination; the Applicant was not informed of any illegal action or act of omissions.
[270] Thus CASE 2: has been proven.
Therefore, the Complainant did not inform the Applicant of any alleged unlawful Actions.
CASE 3:
[271] Did the Complainant inform the Applicant of any Police involvement?
[272] Pursuant to Mr. Geoffrey Fardy May 9, 2008, cross examination; the Applicant was not informed of any Police involvement.
[273] Thus CASE 3: has been proven.
Therefore, the Complainant did not inform the Applicant of any Police involvement.
CASE 4:
[274] Did the Complainant inform the Applicant of his intention or objective?
[275] Pursuant to Mr. Geoffrey Fardy May 9, 2008, cross examination; the Applicant was not informed of the Complainant’s intentions or objective.
[276] Thus CASE 4: has been proven.
Therefore, the Complainant did not inform the Applicant of his intention or objective.
CASE 5:
[277] Did the Complainant assure the Applicant or guarantee the safety and well-being of his family or valuable equipment he had in his possession.
[278] Pursuant to Mr. Geoffrey Fardy May 9, 2008, cross examination; the Complainant did not assure the Applicant or guarantee the safety and well-being of his family or valuable equipment he had in his possession.
Thus CASE 5: has been proven.
[279] Therefore, the Complainant did not assure the Applicant or guarantee the safety and well-being of his family or valuable equipment he had in his possession.
CASE 6:
[280] Did the Complainant inform the Applicant of is identity or what capacity he was acting in.
[281] Pursuant to Mr. Geoffrey Fardy May 9, 2008, cross examination; the Complainant did not inform the Applicant of is identity or what capacity he was acting in.
[282] Thus CASE 6: has been proven.
Therefore, the Complainant did not inform the Applicant of is identity or the capacity he was acting in.
PROFESSIONAL INVESTIGATION:
CASE 7:
[283] There was no high speed chase from the Applicant’s perspective.
[284] Pursuant to Officer Broughton, their was a high-speed chase which moved into the country side, this was the reason for the presence of a large amount of officers or massive amount of available force for an allege Highway traffic violation.
[285] Pursuant to Officer Burd;
“Q. Okay so you initiated the traffic stop at 23:51?
A. Correct.
Q. And the beacon is on in the windshield does the Rogers van pull over right away?
A. I had no indication it didn’t pull over right away so it would have bee within an ordinary amount of time. I do recall that it wasn’t immediately but it wasn’t anything that caused great concern at the time.”
(Sgt Burd, May 9, 2008, TRIAL TRANSCRIPT, page 84-85 starting at line 30)
[286] Pursuant to the Applicant, their was no high-speed chase from his perspective or in accordance with his memory of the GO 2007-70285. At the first instance of of what appear to be a police vehicle indicating a Highway traffic stop, the Applicant complied in accordance with the York Regional Police Services protocol.
[287] Thus CASE 7: is proven
Their was no high speed chase from the Applicant’s perspective.
CASE 8:
[288] Was the Officers investigating the Complainant’s Complaint?
[289] The following citation’s will illustrate in a practical way the Officers interest in the Complainant’s Complaint and using it as a bases and foundation for their professional investigation.
“Q. Yes of alcohol in your blood to be impaired
legally right? 80 or above - you didn't?
A. You don't need an over 80 milligrams to be
impaired but I don't understand the question you are asking.
Q. You said you detected no alcohol.
THE COURT: Do you have - so maybe if you could show it to the
witness. It says somewhere on a form - appears
to be computer generated it says I can't
understand - at least in my view, the accused is
asking about the reference to over 80 milligrams
when nobody smells alcohol. Ask him about that.
A. Probably what that is is part of the
computer generated system and I can't tell you - I would have to
confer with one of the record supervisors they may not have an
indicator for impaired by drugs, they have a general impaired
over 80 category they punch in a code number and it
automatically spits it out. The impaired by drug is a
relatively new process for us and our computer system may not
accommodate it so that's why the title on the occurrence is an
impaired over 80.
Q. And the evidence to support it?
A. To support what?
Q. The impairment?
A. The original call came in as an impaired
driver so that's how the call was generated and that's how the -
I can't answer for our records department the reason why it
says as impaired operation over 80 that is a general cue so at for their statistics, for the government, for our own files they have generated numbers so I tell them it is an impaired whether it says impaired drug or impaired by alcohol that maybe
just the category that they generate the occurrence under.
Q. Okay so you don’t check this before it goes to the Court?
A. I don't write the software so I had to go
with what they said. “
(DCst Broughton Cr-ex, May 9, 2008 Trial Transcript, on page 51-52)
[290] A computer is just a tool! It does what the user wants or instruct it to do. Furthermore, programmers program a computer or “data base system” asper instructed by the institution using it, so it still comes back to the users desires and objectives. The Applicant fail to see the benefit of labeling a member of Canadian society with 0% alcohol/drugs as having 80 milligrams of blood intoxication and then send it to the Government for the purpose of collecting statistics with absolutely no proof.
[291] Pursuant to Officer Burd’s cross examination in the May 9, 2008 Trial Transcript, on page 95&96, line 15-32, line 5-31;
“Q. Okay. What did you speak to the complainant about?
A. Within relation to your driving.
Q. Did you take a statement?
A. No I did not.
Q. Did you record what he was saying?
A. No I did not.
Q. Why not?
A. Because I was attempting to gain initial information from the individual so I had sufficient information for an arrest.
Q. Would that not be a good reason to write it down?
A. At that point, no.
Q. Why not?
A. Because I am attempting to gain initial information to effect an arrest.
Q. Okay let me ask you - there was at least five officers present - that was - was that sufficient force - five officers that one officer to go and take a statement from the complainant, from Mr. Fardy while everything was fresh in his mind?
A. In my opinion at that point we needed every officer we had to control you.
Q. To control me?
A. Correct.
Q. When did Mr. Fardy leave?
A. I don’t recall.
Q. Before or after the arrest?
A. I believe before.
Q. Before the arrest?
A. Correct.
Q. So you had some problems with me before the arrest?
A. Cooperative, you were not cooperative before the arrest.
Q. You needed every officer, all five, to make me cooperate?
A. It appears that way.
Q. When you randomly stop a vehicle, what is the requirement of the driver?
A. To produce his drivers’ licence, ownership and insurance.
Q. Did I do that?
A. Yes you did.”
(DC Burd’s Cr-ex, May 9, 2008 Trial Transcript, on page 95&96, line 15-32, line 5-31)
[292] Asper Officer Burd’s cross examination in the May 9, 2008 Trial Transcript, on page 17&18, line 7-32, line 5-14;
“Q. Three times. How long did you speak to the complainant for?
A. Approximately a couple of minutes.
Q. A couple of minutes. Did you take a statement, sir?
A. I did not.
Q. Why not?
A. ‘Cause I didn’t need to.
Q. Okay.
A. Someone else had taken a statement from him later on.
Q. Okay, Okay. You didn’t need to. Okay. Why was I pulled over?
A. We were investigating an impaired driver.
Q. You’re - who filed the impaired driving?
A. Who - sorry?
Q. Who - who complained about impaired driving?
A. Mr. Fardy.
Q. Okay. So you spoke to Mr. Fardy. So why didn’t you take a statement?
A. At that time?
Q. Well you said you didn’t need to.
A. At that time.
Q. But if you’re investigating a complaint from Mr. Fardy, he’s the source of the information so why didn’t you take a statement when....
A. At that time?
Q. Yes, while the things are fresh...
A. ‘Cause we...
Q. ...in your mind?
A. ...were investigating it.
Q. But how can you - investigating - it if you don’t....
A. I spoke to Mr. Fardy and received information from Mr. Fardy.
Q. Did you write any of it down?
A. I did?
Q. So you took a statement?
A. No, I Wrote down partially what he said to me. I paraphrased it in my notebook. It’s not word-for-word.”
(DC Burd’s Cr-ex, May 9, 2008 Trial Transcript, on page 17&18, line 7-32, line 5-14)
[293] Asper Officer Monk’s cross examination in the May 9, 2008 Trial Transcript, on page 84, line 7-21;
“Q. Did you speak to the complainant, sir?
A. No, I had no interaction with the complainant.
Q. So you didn’t take a statement from the complainant.
A. Not that I recall.
Q. What were you investigating?
A. As I said, I was investigating a complaint of an impaired driver.
Q. And why didn’t you speak to the complainant before the arrest?
A. Because Detective Countable Bird had already spoken to the complainant.
Q. Were you the arresting officer?
A. Yes, I was.”
(P.C. Monk Cr-ex, May 9, 2008 Trial Transcript, on page 84, line 7-21)
[294] Asper Officer Broughton’s cross examination in the May 9, 2008 Trial Transcript, on page 39&40, line 30-32, line 5-9,line 24-30;
“Q. Okay. Did you take a statement?
A. No I did not.
Q. Why not?
A. The priority was dealing with you.
Q. But he was there for fifteen to twenty minutes?
A. That’s fine, the priority was dealing with you.
Q. ...why was the complainant instructed to go home?
A. Because I had received enough information from him so I could continue my investigation with you.
Q. Did you record and of it in your notes?
A. No.
Q. Why not?
A. My priority was not writing notes, but observing you and paying attention to you as long as my partner was up there.”
(DCst Broughton Cr-ex, May 9, 2008 Trial Transcript, on page 39&40, line 30-32, line 5-9,line 24-30)
[295] Pursuant to the Complainant;
“
• I waited and communicated with officers for approximately 15 minutes and then was instructed to go home and that the police would contact me.
• I got back into my car and drove west past the red van where I noted the driver sitting in the drivers seat and not displaying any signs of getting out of his vehicle and still looking unresponsive and spaced out.
• At 2:10 am on March, 28th and officer called me at home and asked me to be available to provide a statement and recall what took place.”
(Mr. Geoffrey Fardy, unsigned--Statement or Summary of Witness Account)
[296] Recall that the Complainant was complaining about contravention of the Highway Traffic Act. Furthermore, he was not entirely sure about his complaint and he re-lade his concerns to the dispatch in which he stated; “The vehicle pulled over to the side of Natanya immediately after turning onto the road with the correct indicator on. It is at this point that I said to the dispatcher that I might wasted your time, it looks like the van is looking for an address. I pulled off to the side of the road at Doon Cres. And continued to watch the van.” The said complaint may have been used to justify the investigative stop, but the Officers did not seem overly concerned or interested in the initial complaint.
[297] The Officer became interested after the Applicant was arrested for D.W.I/DRUGS, they proceed to phone the Complainant at an ungodly hour of 2:10 am in the morning; even though he was at their disposal on location of the stop. They chose to send him home without taking a statement.
[298] Another spike in the Officers interest in the initial complaint was after the filing of the Information 07-02500, their was about five task for the purpose of investigation to obtain a statement from the complainant. The officer eventual got their unsworn and unsigned STATEMENT OF WITNESS ACCOUNT.
[299] Thus CASE 8: has been proven.
Therefore, the Officers were not investigating the Complainant’s Complaint.
CASE 9:
[300] The initial investigation, was a narcotic investigation.
[301] The following citation indicate that the initial investigation was a narcotics investigation, which exceeds the scope of a traffic violation investigation or the given investigative stop. This would also explain why a Warrantless arrest was initiated. A warrantless arrest is permitted for an indictable offence, however a warrantless arrest is rendered unlawful by Section 495 of the C.C. unlawful for a summary conviction offence.
[302] Asper the Typed OFFICER’S NOTES, at about 12:45 PM on 28th of March 2007, by Staff Sergeant Bruce Ringler (193);
“He was --- at scene but not talking.
They suspect impaired by drugs
- cocaine or crack cocaine.
Struggle at scene, non - cooperative.
Cuffed & put into cell 3DM5.
--- pulled shirt over his face.”
(Staff Sergeant Bruce Ringler (193), Typed OFFICER’S NOTES, page 32 at 12:45 PM)
[303]
“A. In particular drugs. You - you had been
arrested for impaired by way of impaired by way of drug. We - we....
Q. Did you ....
A. I searched your vehicle incident to arrest to -
to gather any possible evidence that was - was there to support
that.
{...}
Q. Those are your notes, okay. Did - the vehicle
was at Elliot's Towing for almost a day. Why did you not wait
for a warrant?
A. 'Cause I didn't need a warrant. “
(J. Monk - Cr. ex, July 23, 2008 Trial Transcript; page 99-100)
Thus CASE 9: has been proven.
Therefore, the initial investigation, was a narcotic investigation.
CASE 10:
[304] Did their exit a clear purpose or objective for the investigative stop?
[305] The following citations will illustrate the lack of proper direction and objective for the investigation in the investigative stop.
[306] Asper Officer Monk’s examination in chief, in the July 23, 2008 Trial Transcript, on page 66, line 25-30;
“I overheard Detective Constable Bird ask Mr. Ferron what he was doing in that area tonight. At that point the response was given by Mr. Ferron that he felt threatened, that he - he wouldn’t elabourate on that and from there on continued to stare straight ahead.”
(Officer Monk, July 23, 2008 Trial Transcript, on page 66, line 25-30)
[307] Asper Officer Williamson cross examination in July 23, 2008 Trial Transcript, on page 34, line 1-23;
“A. ‘Cause we believe you were driving under the influence of a drug.
Q. Wait - wait a sec’. You said You’re going to take me in anyway and you’re going to charge me for the other slew of things.
A. Such as...
Q. Other....
A. ...resist arrest...
Q. Okay.
A. ...which you just did.
Q. And what else?
A. I - I don’t know exactly what we charged you with in the end ‘cause it wasn’t my - I’m not...
Q. You don’t know what....
A. ...the officer in charge.
Q. Okay. Well I’m charged with resisting arrest, dangerous driving, and I was charged for D.W.I. but it’s been dropped. But you said you were going to take me - take me in and I was going to be charged with the other things - right - meaning - well as far as I see it meaning not including driving with influence. Isn’t that what you read other as?
A. That would be your interpretation of what I said, yes.”
(Sgt Williamson Cr-ex, July 23, 2008 Trial Transcript, on page 34, line 1-23)
[308] Thus CASE 10: has been proven.
Therefore, their was no clear purpose or objective for the investigative stop.
OFFICERS RELIANCE ON POST OFFENCE CONDUCT:
CASE 11:
[309] Was their a heavy reliance on POST OFFENCE CONDUCT EVIDENCE, by Officers and the Prosecution. According to the Officer in charge given evidence;
“A. The Delta 303 is an unmarked - looks like a civilian vehicle. It’s not the typical police car.
Q. Okay.
A. It was a copper coloured Grand Prix. There is no markings on it that indicate police, but we do carry a red emergency light that we put in the dash if we need to be involved in anything where we have to stop a vehicle.
Q. Okay.
{...}
A. We continued northbound. We quickly stopped at each intersection looking down the roads to see if we could see any taillights or any lights or vehicles in the area. We didn’t see anything. We got as far as Boyer Sideroad which is now out of town. It’s a dark area. There’s no streetlights out there so we looked down each sideroad.”
(DCst S. Broughton -Ex-in-Ch, January 18, 2008 TRIAL TRANSCRIPT, page 34-35 starting at line 22)
[310] Officer Burd (#1075) made the following statements in regards to gathering subjective evidence;
“because we hadn’t been able to get able to get him to cooperate with any demands or request except for passing the documents at the time. We were unable to get him to look at us, look into his eyes or attempt to detect any odour of alcohol from his mouth, unable to gain an access to do any of that. {...} Not gain access but to speak with him, communicate with him is when you can detect the odour coming from the area of his mouth, attempting to look into the eyes, the pupils, could not. “
(Officer Burd, May 9th, 2008 Trial Hearing Transcript, on page 81, line 10-18)
[311] It is readily apparent that the Officers have establish the physical background and the environment that they gathered their POST OFFENCE CONDUCT EVIDENCE byway of subjective observation in darkness. Giving detailed subjective observation on level of moister content on Applicants body, moister content in Applicant’s eyes, rate of applicant’s breaths, and description of Applicant’s fine motor coordination. This was all done while rejecting the use of scientific instruments and professionally trained and qualified technicians. It is within this context which the Officers did their professional investigation while transforming silence and doing nothing into a crime.
[312] Asper May 9, 2008 Trial Transcript on page 82. Officer Burd (1075) states during the Prosecutor’s examination in chief;
“Q. So after you learned that the individual had
to voluntarily take the drug recognition test, what happened?
A. At that point we all collaboratively spoke and
decided the male would be arrested for impaired, further
investigations would continue after that.
Q. Now who arrested him?
A. Uniformed officers I believe it was P.C. Monk
that initiated the arrest.
Q. Okay. What happened after it was decided that
Mr. Ferron would be arrested for impaired, now when you say
impaired, what do you mean by that?
A. Impaired by drug and/or alcohol.
Q. What happened at that point?
A. At that point uniformed officers, led by P.C.
Monk advised the male he would be under arrest and asked him to
step out of the vehicle.
Q. Where were you when this was going on?
A. Directly beside the officers, approximately
three feet from the driver's door.
Q. Okay who at that point was at the driver's door?
A. P.C. Monk, I believe there was three of them
were there, P.C. Monk is that one that was initiating the arrest I believe.
Q. What happened once Mr. Ferron was asked to
step out of his vehicle?
A. The driver refused to step out of the vehicle,
P.C. Monk then unlocked the door of the van and lifted the male out of the driver's seat.”
(Officer Burd Cr-ex-ch, May 9, 2008 Trial Transcript on page 82)
[313] It should be self evident that the actions of P.C. Monk in the previous citation is an impossible action. The Applicant fail to see how the Crown’s Attorney and the Courts could have possible excepted this as fact when it is fiction.
[314] Officer Monk, the arresting officer was asked a series of questions by the
defense;
“A. Sorry - I’m not qualified field sobriety test officer, so no. I don’t have those qualifications. I wouldn’t make that request.
Q. You - you did say my eyes were glazed.”
A. Yes, I made the observation that your eyes were glazed over, yes.”
Q. And did you extrapolate - mean that this is part of the evidence?”
A. Yeah, I - I - yeah, I use that as part of - part of my grounds that I believed that you were under the influence of narcotics.”
(Officer Monk, 23rd of July, 2008 Trial Transcript continuation, page# 85-86, line 17-32 & line 1-19)
[315] Asper the Typed Officers Notes, on 28th of March 2007, page 10, line 13-15, at 00:13. Officers Monk states;
“ In speaking with sgt. Williamson, D/C Burd, PC Brown, Det. Broughton collectively formed grounds that male was impaired by way of drug.”
(Officer Monk (#1399), Typed Officers Notes, on 28th of March 2007, page 10, line 13-15 at 00:13.)
[316] Asper the Typed Officers Notes, on 28th of March 2007, page 21, line 7-14 at 00:13. Officer Williamson states;
“...spoke to all officers o/s ...gave phone to P/C Broughton - all officers feel male is impaired by drug, glaze over eyes, paranoid, non-compl, fidgety. P/C Monk making the arrest - told male he is under arrest for impairment .”
(Officer Williamson (#1108), Typed Officers Notes, on 28th of March 2007, page 21, line 7-43 at 00:13)
[317] Asper the Typed Officers Notes, on 28th of March 2007, page 2, line 9-13 at 00:13, Officer Brown states;
“...meeting with other officers on scene. D/C Broughton, Burd, sgt. Williamson #1108, P.C. Monk #1399. Grounds for arrest formed due to male’s actions and officers and witnesses observations of driving.”
(Officer Brown (#1666), Typed Officers Notes, on 28th of March 2007, page 2, line 9-13 at 00:13)
[318] Asper the Typed Officers Notes, on 28th of March 2007, page 29 & 30, line 9-22, & line 1-5-14. Officer Broughton states in his notes after the completion of the arrest;
“...advised by officers that he was trying to take clothes off. PC Corey Brown #1666 to transport male to 3 DIST. Spoke to PS35 PC Williamson officers discussed all observations, including informative. ...
Appeared paranoid, blank stare, avoidance, and when officers saw his eyes appeared glazed over body sweat fidgety Officers collectively formed RPG that male was impaired by drugs.”
(Officer Broughton, 28th of March 2007 TRIAL TRANSCRIPT, page 29 & 30, line 9-22, & line 1-5-14)
[319] Pursuant to the Officer in charge examination in chief;
“A. ...usually we’ll hear somebody cry out that, you know, stop hurting me or, what or, or what are you doing or, you know, there is - there’s is - there's some verbalization there. The only thing that I remember was that he was growling and grunting.
Q. And what happened after that?
A. Once he was put into the - into the back of
the police car he - the male started kicking at the back window in the vehicle. He had - he was in his sock feet and then I was told by some of the other other officers that he was physically trying to take his clothes off in the back of the police car.
Q. How is that possible with handcuffs on?
A. If your are flexible enough, I’ve seen people
actually get their - get the cuffs right up to the front. We
cuff from behind to secure the person and I've physically seen
people bring their legs up and move around. So you can ...
Q. I see.
A. ...can tear clothes, you can reach the back of your pants and pull them down, but he - the other officers were telling me that he was physically trying to take his clothes off, but I witnessed him trying to kick the back windows.
Q. What about the effects of the pepper spray?
I mean, what - what usually happens after someone is pepper
sprayed?
A. Usually what happens is that it interferes
with their - their sight temporarily. It causes some discomfort
for breathing and it's more of a distractionary tool.”
(Officer Broughton Ex-in-Ch, 18th of January 2008 TRIAL TRANSCRIPT, page 42 -30, starting at line 25)
[320] Their is a large psychological force pushing to label the Applicant as an impaired person, however not one single test test is implemented to test or confirm the officers drug impairment theory. Officer Broughton is being allowed to give evidence under oath he swore to be his personal evidence, which he admits in is own statement to being hearsay, he says “then I was told by some of the other other officers....”
[321] All the POST OFFENCE CONDUCT EVIDENCE was gleamed or determined under the cover of darkness on a lonely country road. This is the evidence vetted by the Crown’s Attorneys and excepted by the Courts along with the Applicant exercising is right to silence and not to give uninformed answers while in custody to a person in authority.
11. Any person charged with an offence has the right
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence
[322] Furthermore, pursuant to Quévillon c. R;
“[25] Also in Jones, supra,
the principle against self-incrimination is defined as “a general organizing principle of criminal law”. It is an assertion of the fundamental importance of individual freedom:
...the individual is sovereign and ... proper rules of battle
between government and individual require that the individual
... not be conscripted by his opponent to defeat himself. 2
[26] In R. v. White,3 Iacobucci J. sets out the criteria for the principle against self- incrimination. In paragraph 42, he also provides the best definition of the principle formulated in Jones:
Any state action that coerces an individual to furnish evidence against him- or herself in a proceeding in which the individual and the state are adversaries violates the principle against self-incrimination. Coercion, it should be
noted, means the denial of free and informed consent.
(Emphasis added.)
(Quévillon c. R. 2007 QCCQ 9246, page 5 and 6)
JUDICIAL DEPENDENCE ON POST OFFENCE CONDUCT:
[323] Pursuant to the heavy reliance on POST OFFENCE CONDUCT, It is in the Applicant’s view their seems to be no presumption of innocence or adherence to Section 11(d) is the judicial process. It seem to be more accurate to claim or it appears that the Appellant was also convicted within the collective mind of the judicial process, contrary to section 11.(d) of the Charter.
[324] In-fact, their seems to be a massive overkill in the prosecution or convincing of the Applicant’s guilt in the following citations;
“THE COURT: Okay. All right. With respect to - you can stand up just for a moment, Mr. Ferron, with respect to the impaired driving count I’m going to fine you in the amount of $600.00. {...}
MS. GOODIER: I’, sorry. I think Your Honour said the impaired count. I think you probably meant the dangerous driving.
THE COURT: I meant - I meant the dangerous. If I said impaired it’s - I misspoke...”
(R. V. Wayne FERRON, REASONS for JUDGMENT/SENTENCING, September 26, 2008, page 19)
“The Officers discussed the information received regarding the accused’s driving, as well as their observations at the roadside, and determined that they would arrest the accused for driving while impaired by drug.”
(Honourable Justice Kenkel, September 26, 2008, REASONS FOR JUDGEMENT, page 4, line 25-32, line 10)
[325] The impaired charge was supposed to be withdrawn and it not be taken into consideration. It does not exist as far as the matter before the court is concerned.
[326]
“I’ve considered all of the evidence at the trial as a whole and make the following findings in that context.”
(Honourable Justice Kenkel, September 26, 2008, REASONS FOR JUDGEMENT, page 9, line 24-26)
[327]
“The Officers were witnesses who were acting in a professional capacity at the time of their observations. They made detailed observations and were able to recall those details with the aid of contemporaneous notes. The officers involved in the arrest did appear to confuse who was on what side of Mr. Ferron, but beyond that the evidence of all the officers was consistent on the central points. I accept the evidence of the police witnesses ”
(Honourable Justice Kenkel, September 26, 2008, REASONS FOR JUDGEMENT, page 10-11, line 25-32, line 1-2)
[328]
“The officers involved in the arrest had reasonable grounds to make that arrest and their uncontradicted evidence shows that Mr. Ferron chose to resist that arrest forcefully. Their evidence shows that Mr. ferron chose to resist that arrest forcefully. Their evidence as to Mr. Ferron’s resistance is consistent with his odd refusal to speak or even acknowledge the officers from the time he was stopped and his attempt to walk away when he first exited the van. ... Considering all o f the evidence as a whole I find that the Crown has proved this count beyond a reasonable doubt .”
(Honourable Justice Kenkel, September 26, 2008, REASONS FOR JUDGEMENT, page 14-15, line 27-30, line 1-24)
[329]
“[5] The appellant lists "unlawful arrest" as the second grounds of appeal. The uncontradicted evidence of the arresting officers was that the information regarding the erratic driving, coupled with the appellant's unresponsiveness, glazed eyes, and 'jittery" behaviour gave them grounds for believing that the appellant was driving while impaired by a drug, and arrested him accordingly. I can find no error in Justice Kenkel's decision or on the evidence that suggests that the arrest was not lawful. This ground of appeal is dismissed.”
(Honourable Justice Healey, SUPERIOR COURT OF JUSTICE , RULING for Information No.: 07-02559)
[330] Again, The impaired charge was supposed to be withdrawn and it not be taken into consideration. It does not exist as far as the matter before the court is concerned.
“The accused, Mr. Ferron, was identified by both officers as the driver of the vehicle. The officers noted he was breathing heavily and there was a fair amount of perspiration on his forehead. {...}
When Constable Byrd leaned into the vehicle, as he is trained to do in order to determine if there was an odour of alcohol, the accused looked down and to the right, away from the officer. Detective Broughton leaned inside the vehicle, but did not detect any odour of alcohol. Again, though, the driver leaned down and appear to be avoiding the officer.
P.C. Byrd directed the driver to produce his licence, registration, insurance. Mr. Ferron fumbled and seemed to have trouble removing documents from his wallet, but did finally take out his driver’s licence.”
(Honourable Justice Kenkel, September 26, 2008, REASONS FOR JUDGEMENT, page 3)
[331] Pursuant to the Honoured Justice Kenkel;
“Constable Williamson observed the accused’s eyes were glazed over.”
(Honourable Justice Kenkel, September 26, 2008, REASONS FOR JUDGEMENT, page 4, line 10)
[332] Pursuant to the Honoured Justice Kenkel;
“Constable Williamson noted that Mr. Ferron was looking around, was jittery and fidgety in a manner that the constable described as paranoid.”
(Honourable Justice Kenkel, September 26, 2008, REASONS FOR JUDGEMENT, page 4, line 29)
[333] Pursuant to the Honoured Justice Healey;
“[2] The evidence took four days of trial time to complete. The appellant was self-represented during the trial. Justice Kenkel found that the independent civilian witness to Mr. Ferron's erratic driving on the night of his arrest was a credible witness who gave his evidence in a forthright manner and who was responsive in cross-examination. He found the evidence of the officers who attended at the scene on the night Mr. Ferron was arrested to be consistent on all of the central points. In contrast Justice Kenkel noted that Mr. Ferron could give no credible explanation for the erratic driving observed by the witness, had no memory of his physical struggle with the police, and gave no credible explanation for his lack of memory. Justice Kenkel found that the appellant's lack of memory on the central points detracted substantially from the credibility and reliability of all of his evidence. With respect to the other events connected to the night of his arrest, Justice Kenkel found the appellant's recollection to be "very faulty". Justice Kenkel's assessment of the Appellant's testimony was summed up in the following paragraph of his Reasons for Judgment: "Concerning Mr. Ferron's lack of recollection of the central events and his flawed perception and irrational behaviour at other times I find he is neither a credible nor a reliable witness. His evidence is illogical and contradicted by external credible evidence. Considering all of the evidence at trial as a whole I find I must reject Mr. Ferron's testimony completely."
(Honourable Justice Healey, SUPERIOR COURT OF JUSTICE , RULING for Information No.: 07-02559)
[334] The impaired charge was supposed to be withdrawn and it not be taken into consideration. It does not exist as far as the matter before the court is concerned. But in reality, this was not the case.
“THE COURT: It’s pretty clear to me, from reading all of the evidence, all of it, sir, of the officers that were involve in investigating you that night, that they felt, at the scene, that you were impaired because you were responding, or not responding more to the point, in a very bizarre way. That’s uncontroverted evidence before Justice Kenkel. You were not able to explain the behaviours that you were exhibiting that night.”
(Honourable Justice Healey, October 14, 2009 Application Transcript for 07-02559, page 35, line 20-30)
[335] Pursuant to Ms. Joanne stuart;
“(1) Videotape of the Courthouse Cells;
(2) Personnel log of the officers on duty at the courthouse on March 28,
2007; and
(3) Courthouse records identifying the person you spoke to in the cells
about getting a drug test
It appears that you sought the videotape of the courthouse cells for the purpose of using it to identify the police officer who you asked for a drug test. It appears that your intention was to call this officer as a witness to confirm that you had indeed asked her for a drug test and were told it was not possible. It appears that you believe that evidence corroborating your account of this conversation would somehow bolster your credibility at trial and prove there were no drugs in your system. The video evidence, as you know, no longer exists. It appears that you did not request the personnel logs or courthouse records identifying the person working in the cells that day at any point during the trial or on the summary conviction appeal below. I do note, however, that there was no evidence contradicting your account of this conversation. Indeed, you got yourself tested for drug use that same day on your release and no drugs were detected in your system. It appears that lack of evidence (and evidence to the contrary, i.e. your drug test) was the basis for the Crown’s request that the impaired charge be withdrawn at the outset of the trial. Given that the impaired driving charge was withdrawn, this evidence, even if it existed, is not relevant to your trial on the other two counts.”
(Joanne Stuart, Crown’s Response to the Applicant’s Motion for Direction(M 38387) on 27th of January 2010, page 18)
[336] Pursuant to the Honourable Justice Kenkel;
“I should mention that all of these observations
regarding the accused's odd and irrational
behaviour stand in contrast to the thoughtful and
gentle man who in a very thorough way presented his
own case during this trial.
Considering all of the evidence as a whole I find
that the Crown has proved this count beyond a
reasonable doubt. “
(Honourable Justice Kenkel, September 26, 2008, REASONS FOR JUDGEMENT, page 9-15)
THE CROWNS POSITION:
[337] The Crown’s mind and position seems to be closed and fixed. Their seems to be a lack of desire or effort to expunge falsehoods in the truth seeking process while assuming that the Applicant was innocent.
[338] Pursuant to Crown counsel at the lower courts;
“MR. TAIT: ...I know Justice Kenkel, the Trier in Ontario Court, dealt with a Section 9 Charter Application and invited submissions from the Crown on that issue because I guess he felt it had somewhat of a - an air or reality or threshold relevancy to it. ”
(Mr. Tait for the Crown, October 5, 2009 Application Transcript for 07-02559, page 4, line 10-30)
[339] Pursuant to Jeffrey Costain, Author for the Respondent Factum At the lower Courts;
“Turning to the charge of resisting the officers, considering all the evidence the Appellant was properly convicted. While the evidence of the officers varied in some details, on the whole it showed the Appellant to be actively resisting a lawful arrest. His passivity came later-his active resistance at the time of the arrest was not something of which the Appellant had a recollection.
{...}
There is no air of reality to the various allegations of Charter Breaches by the police
{...}
The Appellant now alleges breaches of his Charter rights under section 7, 15, 8, 10, and 11. While the arrest, conducted in a proper fashion considering the Appellant’s own actions. While the charge upon which the Appellant was arrested was later withdrawn, that does not affect the initial validity of the arrested. There was ample grounds for the arrest, and considering the Appellant’s resistance, the force used to effect the arrest was reasonable.
{..}
There is no air of reality to the various allegations of Crown misconduct or Charter breaches
There appear to be an issue with the Crown not withdrawing an impaired driving by drug count until the day of trial. The trial did not however proceed on that count, and there was no prejudice to the Appellant also appears to allege a defective information. However no defects are apparent: He also alleges he was denied an opportunity to cross-examine the officer who swore the information. Such a cross-examine the officer who swore to the information. Such a cross-examination would not appear to have any relevance or meaning.
”
(Jeffrey Costain for the Crown, RESPONDENT’S FACTUM, SUPERIOR COURT OF JUSTE APPELLATE COURT)
[340] Pursuant to Mr. Tait, Crown’s council at Appellate Court;
“MR. TAIT: Yes. Having not raised them at trial, and I think my colleague addresses that in the factum, that there is no air of reality to the constitutional issues raised on appeal.”
(Mr. Tait for the Crown, October 14, 2009 Application Transcript for 07-02559, page 49-50, line 10-30)
[341] The Matter before the Court took more that 9 months to go to trial, and over 12 months to go Appeal in the Appellate courts and more that 12 month to have a Leave to Appeal hearing before the COURT OF APPEAL FOR ONTARIO. Maybe if their was presumption of innocence present, the unreasonable time in completing the prosecution of a summary conviction matter could have been avoided, in the Applicant’s personal opinion.
11. Any person charged with an offence has the right
(b) to be tried within a reasonable time;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
[342] The reality is;
• the York Regional Police Services has branded the Applicant as a violent crack cocaine addict;
• Justice Kenkel has branded the Applicant has having absolutely no credibility;
• Justice Healey has affirmed Justice Kenkel branding of the Applicant has having no credibility;
• The assistant Crown Attorney, P. Tait has declare or inferred the Applicant to be a lair and the Applicant’s allegations and arguments to be fantasies;
[343] Hence, the only logical method absent of defeat, available to the Applicant to scale this colossal wall and bring his arguments forward is real evidence in the form of all the Court Transcripts. Why is every one afraid of the Truth. Change is painful, but it is for the betterment of our society. This is the public interest and not personal missions of protectionism.
“Recommendation 13:
The State party should review the Canada Evidence Act so as to guarantee the right of all persons to a fair trial, and in particular, to ensure that individuals cannot be condemned on the basis of evidence to which they, or those representing them, do not have full access. The State party, bearing in mind the Committee’s general comment No. 29 (2001) on states of emergency, should in no case invoke exceptional circumstances as justification for deviating from fundamental principles of fair trial.”
(The International Covenant on Civil and Political Rights: Interim Report in follow-up to the review of Canada’s Fifth Report, November 2006)
[344] If the dynamics of the events surrounding the prosecution and process of the case cannot be understood. If the foundation of the facts are questionable and the Crown is allowed to sanitized the matter before the Court. How is it possible for the panel to understand the matter and render a fair and equitable judgement? How is it possible, when the process issued against the Applicant for reasonableness cannot be assessed or reviewed?
[345] Thus CASE 11: is proven.
Therefore, their was a heavy reliance on POST OFFENCE CONDUCT by Officers and the Prosecution.
CASE 12:
[346] Does Post Offence Conduct constitute reliable evidence?
PROBATIVE EVIDENCE:
[347] Pursuant to the THE LAW OF EVIDENCE IN CANADA, post-offence conduct is highly suspect;
[348] Post Offence Conduct Evidence:
Ҥ1.77 As for post-offence conduct, the Supreme Court and the Ontario Court of Appeal have stated repeatedly that evidence of the accused's demeanour upon being questioned or confronted by an allegation of crime, such as calm reaction or lack of emotion or conversely, perspiring profusely or appearing nervous is highly suspect 63 in that perceptions of guilt based on demeanour depend on highly subjective impressions and such conduct is often equivocal. This evidence should not even be put to the jury unless it is sufficiently unambiguous and demonstrative of a relevant state of mind and only if its probative value outweighs its potential prejudice. It is noteworthy that the accused's demeanour was found to have played a part in the wrongful conviction of Guy Paul Morin .
Evidence of the accused's refusal to answer police questions is not admissible as post-offence conduct unless silence is relevant to a fact in issue such as the failure of the accused to disclose an alibi in a timely manner. Otherwise the right to silence would be illusory. 64 Other post-offence conduct, though admissible, should be subject to cautions about misinterpretation when it is put to a jury. “
(Sopinka, Lederman and Bryant THE LAW OF EVIDENCE IN CANADA, 3d page 22-23),
[349] Officer Williams (#1108) was asked a series of question with respect to the accused allege fighting with officers;
“Q. ... you said you were fighting with me?
A. Fighting with him now, yes.
Q. Yes, okay. So did I strike anyone?
A. No.
Q. okay. Did I kick anyone?
A. No.
Q. Did I use any foul language?
A. No, you never spoke.
Q. Ok. So I wasn’t verbally abusive then?
A. No. The first time I heard your voice was here today.”
(Sgt Williamson Cr-ex, 23rd of July 2008 Trial Transcript continuation, page# 32, line 17-32 & line 1-19 )
[350] Pursuant to R. v. Hebert, silence alone is not evidence against an accused. Silence is the major “crime” which the Officers witness the Applicant committing and for which they condemn, brutalized, dehumanized and defamed him;
CHRISTIE RULE
“Second, the inadmissibility of an accused's silence goes well beyond the ordinary civil rule of evidence concerning adoptive admissions: the silence of a civil party in the face of statements that cry out for an explanation gives rise to an inference of adoption: Bessela v. Stern (1877), 2
C.P.D. 265 (C.A.), at pp. 271-72; MacKenzie v. Commer (1973), 44 D.L.R. (3d) 473 (N.S.C.A.)
As the cases referred to earlier indicate, the mere silence of a criminal accused in the presence of a person in authority is not capable in law of supporting an inference of consciousness of guilt. The essence of the Christie rule is that even if the circumstances of an accusation cry out for an explanation or denial, the accused's silence, without more, is not evidence against him: “
(R. v. Hebert, [1990] 2 S.C.R. 151, page 51)
[351] Thus CASE 12: is proven.
Therefore, Post Offence Conduct does not constitute reliable evidence?
SYSTEMIC RACISM/RACIAL PROFILING
[352] The Crown’s position is that their was no racial profiling while constraining their analysis to the period of time before the Applicant’s Identity was determined. The Applicant contends that their was racial profiling and systemic racism when the attitudes, preconceptions and actions or compared before the Applicants identity was determined and after the Applicant’s identity was determined.
[353] Furthermore, even though a reckless disregard for the truth has been demonstrated in materials before the court, the collective mind of the judicial system seem to turn a blind eye to it. How else or with in what context can the matter before the court be described, but systemic racism? How else! The following citation will serve to demonstrate that their was no great concern concerning the Applicant’s intentions, motive or criminal intent. He was even given the benefit of the doubt, and maybe even presumed innocent until proven guilty in accordance with the dialogue?
BEFORE THE APPLICANT WAS DESCRIBED:
CASE 13:
[354] Was the Applicant considered to be violent, to be a crack cocaine addict or to be alien to the Georgian community before his physical description?
[355] Asper Mr. Fardy Summery of Witness Account on page 2, bullet 1. The complainant states;
“... I called 911 to report a suspicious driver. The time would have been 11:40 pm.”
(unsigned - Statement or Summary of Witness Account; page 2, bullet 1)
[356] Asper 18th of January 2008, page 12, line 24-27, Trial Hearing Transcript. The complaint states;
“I actually said to the dispatcher, you know what, I might have wasted your time. It looks like it’s a service person looking at maps or something, but I’ll pull over and wait. Actually, the dispatcher asked me to wait.”
(18th of January 2008, page 12, line 24-27, Trial Hearing Transcript)
[357] Furthermore on the page 2, bullet 3. The complainant states;
“The vehicle pulled over to the side of Natanya immediately after turning onto the road with the correct indicator on. It is at this point that I said to the dispatcher that I might wasted your time, it looks like the van is looking for an address. I pulled off to the side of the road at Doon Cres. And continued to watch the van.”
(unsigned - Statement or Summary of Witness Account; page 2, bullet 3)
[358] Asper a dispatcher on page 3, at time 23:40 of the 911 dispatch log, states;
“COMP NOW BELIEVES DRIVER MAY HAVE BEEN TRYING TO READ A MAP OR SOMETHING ON WOODBINE”
(911 Dispatch Log; page 3, 07Mar27, time 23:40)
[359] Asper officer 5086 on the second page 1, at time 23:41 York Regional Police Officer Radio Log for position 587 states;
“HES LOST”
(York Regional Police Officer Radio Log for position 587; second page 1, officer 5086, 07Mar27, time 23:41)
[360] Asper officer 5086 on the second page 1, at time 23:41 York Regional Police Officer Radio Log for position 587. The officer states;
“SOUNDS LIKE HES LOST”
(York Regional Police Officer Radio Log for position 587; second page 1, officer 5086, 07Mar27, time 23:41)
[361] Asper officer 5086 on the second page 1, at time 23:41 York Regional Police Officer Radio Log for position 587. The officer states;
“THE GUY IS PROB JUST LOST BY THE SOUNDS OF IT”
(York Regional Police Officer Radio Log for position 587; second page 1, officer 1399, 07Mar27, time 23:41)
[362] Asper officer Monk (#1399) on the second page 1, at time 23:41 York Regional Police Officer Radio Log for position 587. The officer states;
“HES LOST”
(York Regional Police Officer Radio Log for position 587; second page 1, officer 5086, 07Mar27, time 23:41)
[363] It seem like the worse though or the overriding theme in the different contributing opinions, is that the yet unknown Applicant was more than likely, just lost. Even Officer Monk (arresting Officer), concurred with the others that the Applicant was lost.
[364] Thus CASE 13: is proven.
Therefore, the Applicant was not considered to be violent, was not considered to be a crack cocaine addict and was not considered o be alien to the Georgian community before his physical description?
AFTER THE APPLICANT WAS DESCRIBED:
[365] Pursuant to Officer Monk (#1399), July 23, 2008 Trial Continuation Transcript on page 77, line 2-33;
“Yourself, yes. One of the comments in the - in the call history I believe was that the - the complainant believed that you possible might be lost. I responded based on everything I had read in the call at that point that may be lost in a unique way based on the - the way you had been driving. It didn’t indicate to me that you were lost at all, that you were just trying to get away.”
(July 23, 2008 Trial Continuation Transcript on page 77, line 2-33)
CASE 14:
[366] Was the Applicant considered to be violent, to be a crack cocaine addict, and to be alien to the Georgian community after his physical description?
[367] Recall that Officer Monk (arresting Officer), stated at 23:41 on March 27, 2007 that the Applicant was lost. But after the Applicant was described as mail black, in his thirties, wearing glasses and look clean cut, was now stating that the Applicant was just trying to get away.
[368] The Complainant was saying that the Applicant was a service person who was probable lost, but after he was identified he was now up to no good. It is the change in attitude, the change in priority of the 9-1-1 call, and the collective psychological force put into convicting the Applicant at all cost. The following citation under the sub heading AFTER THE APPLICANT WAS DESCRIBED when compared to citation under the sub heading BEFORE THE APPLICANT WAS DESCRIBED, will illustrate the aforementioned issues of systemic racism.
[369] Pursuant to the complainant on page 3, at time 23:42 of the 911 Dispatch Log;
“DRIVER IN VAN IS A M/B”
[370] Pursuant to Mr. Fardy Summery of Witness Account on page 2, bullet 1; “...The driver was in my view and I describe him as a Black, Male in his 30’s, he was wearing glasses and looked clean cut.”
[371] Pursuant to complainant on page 3, line 21&22 of the Transcription of Recording of 911 call of Geoffrey Fardy; “Yeah, just gone past me. I can tell you that it was a black male driver.”
[372] Pursuant to complaint on page 3, line 24&25 of the Transcription of Recording of 911 call of Geoffrey Fardy; “And now he’s sped by. I guess he knows I’m following him. Sorry.”
[373] Pursuant to the complaint on page 4, line 5-8 of the Transcription of Recording of 911 call of Geoffrey Fardy; “Now he’s backing up out of the driveway. I would suspect that he knows I’ve been following him.”
[374] Pursuant to Complainant on page 3, line 24&25 of the Transcription of Recording of 911 call of Geoffrey Fardy; “And now he’s sped by. I guess he knows I’m following him. Sorry.”
[375]
“Harassment
There is no conventional or clear distinction between stalking and harassment and the terms are often used interchangeably. The dichotomy draw here is between harassing conduct that causes a person to fear for her safety (stalking) and harassing conduct that is seriously annoying, distressing, pestering, and vexatious (harassment).”
(Philip H. Osborne, THE LAW OF TORTS)
[376] Pursuant to the Complainant on page 4, line 5-8 of the Transcription of Recording of 911 call of Geoffrey Fardy; “Now he’s backing up out of the driveway. I would suspect that he knows I’ve been following him.”
[377] Pursuant to the Complainant on page 5, line 9-11 of the Transcription of Recording of 911 call of Geoffrey Fardy; “I hate doing this, like, now he’s flashing his high beams at me.”
[378] Pursuant to the Complainant on page 5, line 9-11 of t the Transcription of Recording of 911 call of Geoffrey Fardy; “Are you lost? Do you need help? No he’s - he’s up to no good. Sorry, I hate to say that, but he just drove away on me.”
[379] Pursuant to Officer Monk (#1399) on the 1st page 1, at time 23:41 York Regional Police Officer Radio Log for position 587; “...I’LL TAKE THE IMPAIRED THEN GO BACK ON LUNCH... HOPEFULLY”
[380] Pursuant to Officer Monk (#1399) on the 1st page 1, at time 00:26 York Regional Police Officer Radio Log for position 587; “SO MUCH FOR LUNCH EH”
[381] Pursuant to Officer Monk (#1399) just after the arrest, on the 1st page 1, at time 00:27 York Regional Police Officer Radio Log for position 587. The officer states; “OH HE,S LOST ALL RIGHT....JUST IN A VERY UNIQUE WAY”
[382] Pursuant to Officer Monk’s (#1399) notes; page 110, line 25-28; “ I overheard Detective Constable Bird ask Mr. Ferron what he was doing in that area tonight. At that point the response was given by Mr. Ferron that he felt threatened, that he - he wouldn’t elabourate on that and from there on continued to stare straight ahead”
[383] Pursuant to Officer Broughton;
“At approximately 00:13 hrs officers formed reasonable grounds that the Accused Mr. Wayne FERRON was impaired by drugs. He was asked to step out of the vehicle and he refused. Officers removed the accused and noticed that he was holding papers and a cell phone in his hand. The accused was passively resisting but when attempted to handcuff the male he became combative. The officers attempted to use distractive methods and the male became enraged. The officers noticed the incredible strength of the male and that he was not responding to distractive strikes.”
(DCst S. Broughton(1079), NARRATIVE: INITIAL OFFICER REPORT, IMPAIRED, 2007-March-28)
[384] Pursuant to Officer Broughton;
“Q. Okay. Did you see - did you see the
defendant trying to resist arrest?
A. What I saw is you getting out of the vehicle
with the officers there ...
Q. Urn hmm.
A. . ..and I saw the - the officers have to
forcibly put you against the van and then it - it looked like you
were resisting. With that many officers there, there looked like
there was a struggle ensuing and that's when the officers
grounded you.
{...}
Q. Okay. When did the arrest start then?
A. I don't have a time, sir.
Q. No, I don't - I don't mean in time - in terms
of time, I can give you the time. It was....
A. When officers were taking you out of the vehicle, the resistance started at that time.
Q. SO you saw the officers take me out of the vehicle?
A. You were getting out o the vehicle. I don’t know if they had their hands on you or not. I couldn’t see that far, but when they got you out of the vehicle, the actions...
Q. Okay, what I....
A. . ..the actions of the other officers, it
appeared that you were resisting. They pushed you up against the
Van.
{...}
Q. What I ....
A. . ..officers grounded you.
Q. What I want to know is did you see the
officers take me out of the van or did you see me get out of the van?
A. There was a number of officers there. It was all one action.
Q. So you don't know?
A. It was all one action.
Q. So you - you’re not sure? You don’t know? You didn’t see?
A. I saw all the actions of you getting out of
the vehicle and the officers attempting to take control. It's
all one action.
Q. Okay. So I got out of the van. What did I do?
A. The actions that I saw is that the officers
were attempting to take control of you. You were pushed against
the van and then the resistance continued and that's when the
officers attempted to ground you.
Q. Okay. So they pushed me against the van.
Okay. When I was against the van where were - where were my
hands?
A. I can’t tell you. I don’t know.
Q. You don’t know where my hands were. Okay. Which direction was I facing?
A. Facing into the van. Facing to the right
side of the road and if west is straight ahead then you would
been facing, I believe, north. “
(DCst S. Broughton(1079), January 18, 2008 TRIAL TRANSCRIPT, page 52-54)
[385] Pursuant to Officer Broughton (1079) in the January 18th, 2008 Trial Hearing Transcript, on page 57, line 15-22; “I didn’t use the spray so it wasn’t a consideration for me.”
[386] Pursuant to the Typed OFFICER’S NOTES, at about 12:45 PM on 28th of March 2007, by Staff Sergeant Bruce Ringler (193);
“He was --- at scene but not talking.
They suspect impaired by drugs
- cocaine or crack cocaine.
Struggle at scene, non - cooperative.
Cuffed & put into cell 3DM5.
--- pulled shirt over his face.”
(Staff Sergeant Bruce Ringler (193), Typed OFFICER’S NOTES, page 32 at 12:45 PM)
[387] Thus CASE 14: has been proven.
Therefore, the Applicant was considered to be violent, to be a crack cocaine addict, and to be alien to the Georgian community after his physical description?
COLOURING OF THE COMPLAINANT:
CASE 15:
[388] Officers attempt to colour the complainant.
[389] Pursuant to the Officer in charge;
“Q. No - why was the complainant instructed to go home?
A. Because I had received enough information from him so I could continue my investigation with you.
Q. Did you record any of it in your notes?
A. No.
Q. Why not?
A. My priority was not writing notes, but observing you and paying attention to you as long as my partner was up there.
Q. so it is safe to say that the complainant didn’t witness the arrest?
A. No he wasn’t there prior to - he had left prior to the arrest.”
(Officer Briughton’s Cr-ex, May 9, 2008 Trial Transcript; page 43-44, starting at line 30)
[390] Asper January 18, 2008 Trial Transcript; page 22, line 3-8. The complainant declares;
“Q. Okay. Let me just jump to the end. Okay? Okay. While you - while you and the police officers were talking in the police car, did you discuss anything?
A. I never actually got into a police car. I stayed in my car and they...
Q. Okay.
A. ...walked back and....
Q. Okay. Did they discuss anything?
A. No. Not much. They told me that - they asked - they thank me for my assistance. They ask me for my general information. I passed the officer my driver’s licence. He detailed down the information. I asked, is everything okay? They said, we don’t know yet, the driver won’t come out of his vehicle and they asked me to stay and wait. I waited another ten to fifteen minutes. It was late in the evening and they said, would you like to go home and we’ll get your statement later from you.”
(Complainant’s Cr-ex, January 18, 2008 Trial Transcript; page 21-22, starting at line 20)
[391] Asper May 9, 2008 Trial Transcript; page 15, line 9 -16. The complainant declared;
“Q. When you were at Metro Road and Deer Park drive and you sat in your vehicle for about twenty minutes, you - did you give them a statement?
A. At that time no.
Q. No they didn’t take a statement, do you know why they didn’t take a statement?
A. They were waiting to conduct business with yourself and they were focused on that at the time and said for me to go home and they would follow up with me which they did.
Q. Okay what did the three officers speak to you about do you remember?
A. The officer came up and told me - thanked me for my help said if you could wait here, we were just having some difficulty getting the individual out of the car, I will come back and speak to you. I said okay.
”
(Complainant’s Cr-ex, May 9, 2008 Trial Transcript; page 15-16, starting at line 9)
[392] Asper the Summary of Witness Account; page 3, bullet 3-6. The complainant states;
“As I got to the intersection of Deer Park road and The Queens Way, the dispatcher told me to turn west on Deer Park and meet the police. I was instructed to keep a safe distance back from where the police had the red van pulled over and to wait until the police approached me for information.
As I sat a waited for the officers to speak to me, I noted that the driver of the vehicle would not or refused to get out of his car for the police.
I waited and communicated with the officers for approximately 15 minutes and then was instructed to go home and the police would contact me.
I got back into my car and drove west past the red van where I noted the driver sitting in the drivers seat and not displaying any signs of getting out of his vehicle and still looking unresponsive or spaced out.”
(unsigned - Summary of Witness Account; page 3, bullet 3-6)
[393] Pursuant to Officer Burd their was no request or direction for the Applicant to exit his vehicle before the arrest on March 27, 2007.
[394] Likewise, these similar question was directed at the other officers and they responded with a similar response to Officer Burds’s answers. Officer Bur was chosen as an example because he was the Officer of first contact with the Applicant and he also spoke to the Complainant.
[395] Given this fact which is corroborated by all the other relevant Officers is true and accurate; why are the Officers (Officer Burd, Officer Williamson and Officer Broughton) informing the Complainant that “ we were just having some difficulty getting the individual out of the car” or “ the driver won’t come out of his vehicle” even though this never happen as per their given testimony. Furthermore, the complainant determined that the Applicant refused to exit his vehicle or in his words “ As I sat a waited for the officers to speak to me, I noted that the driver of the vehicle would not or refused to get out of his car for the police” or “I noted the driver sitting in the drivers seat and not displaying any signs of getting out of his vehicle and still looking unresponsive or spaced out”
[396] How is is it possible for the Complainant to arrive at these determination or conclusion in his given evidence, which is past of as facts.
[397] Pursuant to Officer Burd concerning the Applicant remaining in his vehicle;
“Q. Did you ask me to exit the vehicle before the arrest?
A. No I did not.
Q. Did you ask me to enter it - that if you could enter the vehicle before the arrest?
A. No I did not.
Q. Did you ask me if I was willing to take a drug test?
A. No I did not.
Q. Did you ask me if I was willing to take a breathalyzer test?
A. No I did not.”
(Officer Burd, Cr-ex, May 9, 2008 Trial Transcript; page 102)
[398] In a traffic stop, the York Regional Police Service publicly release policy advise the public not to exit their vehicle unless directed by and officers. If the Applicant had done what is being suggested, it would have been cause for the use of deadly force to which the Applicant would have no legal recourse. policy
“POLICE PROTOCOL
...Things To Do When Stopped
{...}
* When you see the red lights and/or hear the siren, remain calm and safely pull over to the right side of the road (or nearest edge of the roadway on one way streets).
* Remain seated in your vehicle unless the officer advises otherwise. It may take the officer some time to approach your vehicle for safety reasons.
* Ontario law requires drivers to produce their licence, vehicle registration, and insurance card upon demand of a police officer. If your documents are out of reach, tell the officer where they are before you reach for them.
* It is imperative that you identify yourself correctly.
* If the stop occurs during darkness, turn on your dome or interior lights so the officer can easily see the interior of your car.
* If there are passengers in your vehicle, encourage them to stay seated in the vehicle, remain quiet and cooperate with instructions.
* The officer may issue you a ticket. If you feel the reason is vague or unclear, ask the officer for details.
* Avoid getting in an argument. If you wish to contest the ticket, you will have an opportunity to address the matter in court.
* If you receive a ticket, accept it calmly. Accepting the ticket is not an admission of guilt.”
(POLICE POLICY, YORK REGION POLICE SERVICES WEB PAGE)
[399] Thus CASE 15: is proven.
Therefore, Officers was attempting to colour the complainant.
DENIAL OF RIGHTS AND FREEDOM:
CASE 16:
Was there, an infringement of the Applicant’s rights and freedom?
[400] This Application is in essence concerning the blatant disregard for the rights and freedom of the Applicant. The APPLICATION FOR CONSTITUTIONAL QUESTION(C51190) and APPLICATION RECORD FOR CONSTITUTIONAL QUESTION(C51190) are in essence concerned with the denial or infringements of the Applicant’s rights and freedoms.
CRIMINAL CONTAINER:
[401] From the moment the Complainant stated that the Applicant was up to no good without taking his fear inducing action of harassment in to consideration. He revealed the contents of his heart and show a coloured perspective to the Applicants actions.
[402] From the moment Officer Burd willfully applied racial prejudgement without material or objective evidence; calling the accused “CRACK HEAD” and “ASSHOLE”, at the first instance of contact, without observing any contravention of the Criminal Code or violation of the Highway Traffic Act or haven't even heard the voice of the Applicant. At this said instants, the officers lost their credibility to investigate the Applicant and their motivation and purpose were in question. Since the contents of DC Burd’s(1075), heart was revealed. Not only does this Indicate that the officers attitudes were at the minimum, coloured and the investigation would be prejudice against the accused contrary to section 7 and section 15(1) of the Charter of Rights. But the Appellant was also convicted within the minds of the officers contrary to section 11.(d) of the Charter. A reasonable person would not have prejudgement as a main element in the process and would be giving equal services by law enforcement agents, instead of contravening Section 1. of the Human Rights Act. It is contrary to the logic used in objective reasoning.
[403] This is in essence systemic racism and is the improper purpose perforating the investigation, the unlawful arrest, the unlawful search and the prosecution of a pitiful black suspect who has not even been determined to be “the accuse” in accordance with the Criminal Code., and in violation of the relevant jurisdictional authority.
[404] The complainant had arrived at the conclusion that the Applicant was “up to no good” in his 98% caucasian neighborhood , after identifying the Applicant as a Black male in his thirties and look clean cut. Officer Monk had come to the conclusion that the Applicant was trying to flee. and Officer Burd had established that the Applicant was a “CRACK HEAD”, inferring a drug addict.
[405] Within the confines of the present issue being discussed, their is a want of presumption of innocence and a pervasive presence of a psychological force pushing forward the criminalization of the Applicant to transforming him into a preconceived image of what a pitiful black person should be. Serve to define and establish the necessary desired constraints for an expected social mode of behavior for the purpose of placing of the Applicant in a criminal container to justify unjust prejudgement and actionable wrongs against a member of Canadian society at large.
[406] This is a preparation for diminishing the Applicant’s personage to legal refuge, to place him on an unethical assemble line, prepackaged and predetermined for the unholy fringes of society. After more than three year the Applicant is still being prosecuted without jurisdictional authority and a valid Information before the Courts. This violates the notion of common decency, social morality and the public good. It is a purposeful sickness being injected into to our social fibers which binds the collective and guarantee the overall well being of Canadian society at large. This is driven forward by a racially spawned psychological force to prove prejudgement notion rooted in dehumanizing slavery.
[407] Pursuant to DCst Broughton’s(1079) own notes, the legal rights of the Applicant was suspended until the Applicant was no longer under an illusive phantom drug which the Officers conjured up. A manufactured fictional narcotic used by the Officers to justify a denial of legal rights and Civil and Political Rights of the Applicant. Furthermore, impaired driving byway of drugs was entered into the York Regional Police Services data base for the purpose of governmental statistical, and use without their ever being any scientifically or legal proof of drug use. It still resides in the said system of records!
[408] Asper Typed Officers Notes, page 30, at 00:24, line 13-19. Officer Broughton states;
“male continued to be uncooperative male carried into cell advised PC Brown read Rights to Counsel/Caution and was unresponsive - one in cells male began taking clothes off and acting irrationally and was moved to bullpen. Opportunity for lawyer/D.C. suspended until male no longer under influence - re his personal safety.”
(Officer Broughton, Typed Officers Notes, page 30, at 00:24, line 13-19. Or Officer Broughton (#1079) Notes, page 84)
[409] Pursuant to the ( Evolution of Penal Policies and the Debate on Imprisonment in Canada and Quebec: 1969 to 1999, Pierre Lalande, page 12); ” Finally, the principle of justice. Here again reality falls short of aspirations. In theory crimes are crimes and punished equally no matter who commits them . In practice the penalty often depends, not on the nature of the crime, but on the person who commits it.”
“POLICE PROTOCOL
What to expect when stopped by Police
Traffic Stops | Person Stops | Police At Your Home
If You Are Arrested | Duties of Police Officers
It is the policy of the York Regional Police that its members shall not discriminate, or attempt to persuade others to discriminate, against any person because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, record of offences, age, marital status, family status, handicap or political or religious affiliation.
This Web page is designed to provide information about the rights and responsibilities of both community members and the police. It will also provide some information as to why police make stops and what you can expect if you are stopped by police. {..}
What To Expect When Stopped
Each situation is unique and the police officer will alter his or her approach to fit the circumstances. At all times, police officers must work within the Code of Conduct under the regulations of the Police Services Act, the Ontario Human Rights Code, the Regulations and Procedures of the York Regional Police, and other legislation.
A York Regional Police Officer:
* will provide his or her name and badge number upon request.
* who is not in uniform will present proper identification; you may ask to examine the badge and photo identification so that you are satisfied the person is a police officer.
* will tell you why you are being stopped.
* will only use the force allowed by law (for example, to stop an offence, effect the arrest of a suspect or maintain custody of a prisoner).
* will generally arrest a person for a crime committed in the officer's presence, or when the officer has reasonable grounds to believe the person has already committed or is about to commit a crime....”
(POLICE POLICY, YORK REGION POLICE SERVICES WEB)
[410] The treatment of the Applicant at the Hands York Regional Police Services Officers runs contrary to their own POLICE PROTOCOL, and infers that the Applicant was not receiving equal treatment from this law Enforcement agency. Hence, Section 1. of the Human Rights Act, Section 15, and Section 7 of the Charter was being infringe upon while the Applicant life, liberty and pursuit of happiness was in jeopardy.
[411] Thus CASE 16: has been proven.
Therefore, there was an infringement of the Applicant’s Rights and Freedom.
DISCRIMINATION:
CASE 17:
[412] Was the Applicant discriminated against?
[413] It would be prudent to establish at this point that DC D. Burd’s (#1075) with 9 years experience of 3D; was the first officer who made contact with the plaintiff and DCst Broughton was his partner. He occupied the passenger seat of D303. This is the officer which testified under oath in a court of law that officer Monk lifted the plaintiff out of his vehicle; which is physically impossible. This is the officer who improperly, dangerously and unnecessarily used OC-spray even-though he’s deficient in his Health and Safety knowledge, and ill trained in its safe use and application; is one of the joint tortfeasors responsible for the negligent tortious acts of engaging in assault and the use and application of a dangerous weaponized chemical to the Applicant’s person, when he was not qualified nor certified nor had the legal authority to do so.
[414] This is the officer who has tangibly confirmed he is tainted by racism or systemic racism or racial profiling, when he endeavor to call the plaintiff a “crack-head” and “asshole”; when having met the Claimant for the first time in his life without incident.
[415] Pursuant to Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22 on page 24 and 25 ” Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.”
In the Applicant’s humble opinion, the distinction based on personal characteristic was “black male in his 30’s...” and the association with a group the Applicant belongs to is “DRUG USE” or “CRACK COCANE” use. Thus, pursuant to Pursuant to Tétreault-Gadoury v. Canada (Employment and Immigration Commission, their is a stereotypical distinction(drugs) based on personal characteristics (young black male) attributed to an individual solely on the basis of association with a group (Afro Canadians) infers discrimination.
[416]
Discrimination Forbidden.
10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.
Discrimination defined.
Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.
1975, c. 6, s. 10; 1977, c. 6, s. 1; 1978, c. 7, s. 112; 1980, c. 11, s. 34; 1982, c. 61, s. 3.
(R.S.Q., chapter C-12 Charter of human rights and freedoms)
Given that the Applicant has full and equal recognition and exercise of his human rights and freedoms, without distinction. CASE 8: to CASE 16: show that a distinction (young black mail), had the effect of nullyfying or impairing Section 1. of the Human Rights Act, Section 15, and Section 7 of the Charter. Thus, pursuant to Section 10 of R.S.Q., chapter C-12 Charter of human rights and freedoms, is being discriminated against.
Human Rights Act:
“ 1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 1; 1999, c. 6, s. 28 (1); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (1).”
(Human Rights Act, S. 1)
Reprisals
8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing. R.S.O. 1990, c. H.19, s. 8.
Infringement prohibited
9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part. R.S.O. 1990, c. H.
[417] Thus CASE 17: is proven.
Therefore, the Applicant was discriminated against.
SYSTEMIC RACISM:
CASE 18:
[418] Is their evidence to support a finding of systemic racism.
Systemic Racism
“By systemic racism we mean the social production of racial inequality in decisions about people and in the treatment they receive. Racial inequality is neither natural nor inherent in humanity. On the contrary, it is the result of a society's arrangement of economic, cultural and political life. It is produced by the combination of:
• social constructions of races as real, different and unequal (racialization);
• the norms, processes and service delivery of a social system (structure), and
• the actions and decisions of people who work for social systems (personnel).
The discussion begins with radicalization, the driving force of racial inequality. Next we show how the elements of operating norms, decision-making processes and ways of delivering services may incorporate racialization in systemic practices and may support, transmit or tolerate it. We also examine the role of the personnel within this structure and how they affect its processes. Finally, we briefly describe some ways of recognizing systemic racism.”
(Report of the Commission on Systemic Racism in the Ontario Criminal justice System, page 39)
[419]
“...police officers who use racialized stereotypes consciously or unconsciously on a daily basis. Overt racism, the intent to treat individuals differently based on a belief in the superiority of one’s own racial group, has been largely overshadowed in Canada by a more subtle and yet equally pervasive form of racism known as systemic racism.39 Systemic racism is the “social production of racial inequality in decisions about people and the treatment they receive.”40 It occurs through a process called racialization:...”
(The Colour of Justice, David M. Tanovich, page 13-14)
To see that a reckless disregard for the truth has been demonstrated in materials before the court, please see APPLICANT’S FACTUM (DOC XI), 4.) BIAS OR REASONABLE APPREHENSION OF BIAS, 7.) CROWNS OBLIGATION TO MAKE TIMELY DISCLOSURE TO DEFENCE, 8.) DEFECTIVE INFORMATIONS, and 11.) FAIRNESS, EQUITY AND COMMON DECENCY in APPLICATION RECORD FOR APPLICATION FOR CONSTITUTIONAL QUESTION (DOC X). to see that a reckless disregard for the truth has been demonstrated in materials before the court.
WANT OF PROSECUTION:
[420] Her Worship, Madam Justice S. Healey who presides over the Appellate Court, error in failing to deal fully and completely with the matter before the SUMMARY CONVICTION APPELLATE COURT in a meaningful way. Even though there has been a failure to recognize, identify, acknowledge, except, or even investigate that a reckless disregard for the truth has been demonstrated in materials before the court. The York Regional Police or fringe elements of the said Crown Institution Acted in “bad-faith” with wanton disregard for the rights of the Applicant;
[421] The Officers can be shown to be lying on central points thy agree on. The possible that Officers could be lying on the same central point was not a permutation or possible case taken into consideration by the Honourable Justice Kenkel.
[422] The Applicant have filed and served all the material evidence necessary to show that Officers were lying on the same central points in the form of Officers notes, Officers investigative papers, well documented citations to relevant parts of the Transcripts. Her Worship, Madam Justice S. Healey error in her findings that there was no misapprehension of evidence.
[423] The Applicant have filed Affidavits with well documented citation of officers misleading the course of justice. Her Worship should have been seized by the said Affidavits or the applicant should have been charge with perjury. BUT THIS IS NOT THE CASE, AND NOT ONE SINGLE CROWN COUNSEL HAS CHALLENGE THE APPLICANT’S SAID ALLEGATIONS OR CROSS EXAMINED HIS MANY AFFIDAVITS.
THEREFORE, THEY ARE SILENTLY EXCEPTED AS UNOPPOSED AND UNCHALLENGED FACT OR TRUTH IN THE MATTER BEFORE THE COURT.
[424] Thus CASE 18: has been proven.
Therefore, their is evidence to support a finding of systemic racism.
RACIL PROFILING:
CASE 19:
[425] There is evidence to support a finding of racial profiling.
[426] Pursuant to R. V. Khan;
PROBATIVE EVIDENCE:
“The Ontario Court of Appeal has held that where the "circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why he or she singled out the accused person for attention, the record is then capable of supporting a finding that the stop was based on racial profiling": R. v. Brown at para. 45. Having concluded that the officers in this case fabricated their evidence in respect of the search of Mr. Khan's car, I cannot find their evidence to be at all reliable with respect to the events leading up to the stop.”
(R. V. KHAN {2004} O.J. No.: 3819 (S.C.))
[427] Pursuant to David Tanovich;
“Racial profiling operates as a system of surveillance and control. It “creates racial inequities by denying people of color privacy, identity, place, security, and control over [their] daily life.”32 It shares many similarity with previous systems of control such as slavery and segregation, both of which had a long history in Canada.33 As one scholar has pointed out, “[r]acial profiling is best understood as a current manifestation of the historical stigma of blackness as an indicator of criminal tendencies.”34
Define this way, racial profiling is both unlawful and unconstitutional. It violates our constitutional right to be free from arbitrary detention as guaranteed in section 9 of the Canadian Charter of Rights and Freedoms.35 It also violates our section 15(1) Charter right to equal protection of the law, a right that serves to protect against “the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice.”36 Finally, racial profiling is a violation of human rights.37” 99
[33] Racism and its effects are undeniably an affront to human dignity.
Whether overt, subconscious or systemic, racism undermines the self-image and respect of its victims, causes psychological stress and, of course, may cause tangible disadvantages of every manner and kind: see, Paying the Price: The Human Cost of Racial Profiling, Ontario Human Rights Commission, Toronto, 2003. “100
(The Colour of Justice, David M. Tanovich, page 13, starting at line 7)
[428] Pursuant to R. V. Smith;
“The Law in Relation to Racial Profiling
[14] In R. v. Richards (1999), 26 C.R. (5th) 286 (Ont. C.A.), at para. 24, the court set out the definition of racial profiling advanced by the African Canadian Legal Clinic, an intervener in that case:
Racial profiling is criminal profiling based on race. Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis or race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.”
(R. V. Smith, COURT FILE NO.: CRIMJ(F) 6474/02, DATE: 2004 1207; page 7&8, para[14])
[429] Thus CASE 19: is proven.
Therefore, their is evidence to support racial profiling.
EVIDENCE CONCLUSION:
CASE 1: The Complainant made an allege Highway traffic violation complaint.
CASE 2: The Complainant did not inform the Applicant of any alleged unlawful Actions.
CASE 3: The Complainant did not inform the Applicant of any Police involvement.
CASE 4: The Complainant did not inform the Applicant of his intention or objective.
CASE 5: The Complainant did not assure the Applicant or guarantee the safety and well-being of his family or valuable equipment he had in his possession.
CASE 6: The Complainant did not inform the Applicant of is identity or the capacity he was acting in.
CASE 7: Their was no high speed chase from the Applicant’s perspective.
CASE 8: The Officers were not investigating the complainant’s Complaint.
CASE 9: The initial investigation, was a narcotic investigation.
CASE 10: The was no clear purpose or objective for the investigative stop.
CASE 11: Their was a heavy reliance on POST OFFENCE CONDUCT EVIDENCE evidence by Officers and the Prosecution.
CASE 12: Post Offence Conduct doesnot constitute reliable evidence.
CASE 13: The Applicant was not considered to be violent, to be a crack cocaine addict or alien to the Georgian community before his physical description?
CASE 14: The Applicant was considered to be violent, to be a crack cocaine addict, and to be alien to the Georgian community after his physical description?
CASE 15: Officers attempt to colour the complainant.
CASE 16: There was an infringement of the Applicant’s rights and freedom.
CASE 17: The Applicant was discriminated against.
CASE 18: There is evidence to support a finding of systemic racism.
CASE 19: There is evidence to support a finding of racial profiling.
[430] It is clear that there was no great concern or urgency concerning the Complaint’s complaint to 911. Moreover, the Complaint though the Applicant was just a service person who was lost, the dispatcher also though that the Applicant was someone who was lost, even Officer Monk the arresting Officer initially though the Applicant was someone who was lost.
[431] Notwithstanding the initial relaxed mood of the main participants and the non urgent atmosphere. This all radically changed after the Complainant reported that the Applicant was “male black, in his thirties, wearing glasses and look clean cut”. Now the Complainant was saying, the Applicant was up to no good. Officer Monk was now saying, that the Applicant was just trying to get away. Officer Burd, the non-uniformed Officer’s first word to the Applicant was to call him CRACK HEAD and ASSHOLE at the first instants of contact without witnessing any unlawful actions.
[432] Officer’s were asking what the Applicant was doing in the Georgian area. At about the same time they were colouring the Complaint about the Applicant refusing to exit the vehicle; which was a lie and against protocol the Applicant to exit his vehicle without the Officers permission or direction. Which was not given. While doing all this when the Complainant was on site for about 20 minutes; the Officers did-not think it would be reasonable and prudent to take a statement from the complainant.
[433] Even-though the Applicant was being accused of being a CRACK COCAINE DRUG ADDICT, the Officers decided it was a wast of there time to perform a DRUG TEST byway of the D.R.E. to prove there allegations and drug theories. Since the Applicant would probably be uncooperative and my spit in an Officer’s face, (the Applicant has never spit in any ones face in the past , nor does he intend to in the future). Even when the applicant asked an Officer at the Newmarket Courthouse holding cell for a drug test, he was refused. Yet a subjective DRUGS/ALCOHOL assessment is preformed byway of the Probation Officer. The test is based solely on the personal opinion of the T.A. Patterson counselor (Marguerite Campbell B.S.W.). How scientific is this test? What merits does it have?
[434] Officer Monk, dared to make the statement to a dispatcher immediately after the arrest. OH HE LOST ALRIGHT...JUST IN A VERY UNIQUE WAY. Similarly the Officer dared to lie about the Applicant resisting arrest, trying to take his close off and about being transported in the prone position.
[435] Similarly they lied about The Applicant taking off his close at the Police station; but , there is a security video tape which shows evidence to the contrary.
[436] After the matter was placed before the court. The material evidence and Officers notes, were not reviewed prudently or vetted by the prosecutor before placing it before the court. Even when it was shown that a particular Officer was lying in a Court of law and perverted the course of justice; he was not sanctioned, in an attempt to purify the courtroom, so it may retain it sanctity.
[437] In-particular this constitute improper purpose. Racism, discrimination or systemic Racism has no role to play in the Application of Law.
[438] Improper purpose in the investigative process, renders the arrest unlawful. Even if the traffic stop was lawful or there was reasonable cause to arrest . Racism qualifies as an improper purpose and is in direct conflict with the integrity of the justice system and the good of the public, according to R. V. Khan.
[439] Acting outside one Authority in establishing a judgement before the investigation is exhausted is an improper action. Arresting for an allege summary conviction offence without reasonable objective cause first; then investigating to try and find evidence for ones self appointed prejudicial determination void of presumption of innocence is improper.
Pursuant to R. v. Storrey;
“It is important to note that the neighbour did not state and did not know that the three men committed the robbery. The only information the neighbour possessed was that of the identity of the three men the victim had seen drinking beer the night before. There was absolutely no evidence connecting the three accused with the crime. It came as no surprise that the trial judge found that there was no basis for the police statement that they had reasonable and probable grounds to believe the accused had committed the crime. Indeed, one of the officers testified that:
"We arrested them to determine whether they actually did it or not".
Thus the arrest in the Duguay case could not and did not comply with the requirements of s. 450(1) of the Code and the arrest was unlawful. Against this background of an unlawful arrest, the Court of Appeal then considered whether the detention of the accused violated s. 9 of the Charter. It was in this context that MacKinnon A.C.J.O. stated that an arrest which had been made solely to assist in an investigation was an arrest made for an "improper purpose".
The statement goes no further than confirming that an otherwise unlawful arrest cannot be justified on the grounds that it was necessary in order to further the investigation of the crime. It should not be taken as establishing a principle that whenever a lawful arrest is made, in circumstances where the police intend to do further investigation, that the arrest should then be considered to have been made for an improper purpose.”
(R. v. Storrey, [1990] 1 S.C.R. 241, page# 12)
[440] Arresting the Applicant for D.W.I/Drugs, when a senior Offer (Srgt Williamson), concurring with the D.R.E. (sp4) that it does not make sense to attend, so he was going to charge the Applicant for the “other slew of things”, which infers other charges except for D.W.I/Drugs is improper.
[441] Deny the Applicant a drug test which could prove is innocence, just because an Officer concludes byway if prejudicial determination that the Applicant will probable spit in his face; or denying the Applicant a drug test event after he has boldly requested one to prove his innocence for no reasons or justification articulated at the time, is an improper action.
[442] To not make available, the Officer who witnessed the accused strongly requesting a drug test even though he repeatedly requested the said witness for the purpose of giving evidence, induces prejudice into the process, impedes the ability of the Applicant to give full answer, and violates the fundamental rule of justice for an impending conviction.
[443] From the moment Officer Burd willfully applied racial prejudgement without material or objective evidence; calling the accused “c r a c k h e a d”, the officers lost there credibility to investigate the Applicant. Not only does this; Indicate that the officers attitudes were coloured and the investigation would be prejudice against the accused contrary to section 7 and section 15(1) of the Charter of Rights. But the Appellant was also convicted within the minds of the officers contrary to section 11.(d) of the Charter. A reasonable person would not have prejudgement as a main element in the process. It is contrary to the logic used in objective reasoning.
[444] This is in essence systemic racism and is the improper purpose perforating the investigation, the unlawful arrest, the unlawful search, and the prosecution of the Applicant without finding process; since the voidable Informations are incapable of imparting jurisdiction over the allege charges to the Trial Judge.
[445] The complainant had arrived at the conclusion that the Applicant was “up to no good” in the Applicant’s 98% caucasian neighborhood , after identifying the Applicant as a “Black male in his thirties and look clean cut.” Officer Monk had come to the conclusion that the Applicant did not belong in Keswick (3rd Districk), and was trying to flee. Officer Burd had established that the Applicant was a “CRACK HEAD” inferring a drug addict.
[446] Pursuant to the Applicant; “I would like to be informed. Moreover; I would liked to be asked to be kissed before I am kissed. Or-else, you would be invading my personal space without my permission and putting me in an awkward position to interpret your invasive actions.” Pursuant to an Officer in the YRP. “We are trained that less than six inches is considered an assault”. Given that this is true for the unwanted action of one person, imagine how it would be for five armed Officers, very aggressive/assaultive strangers whose racial integrity is in question.
[447] Five Officers:
• And not one of them has time to take a statement from the complainant, even though the accused was detained on location for twenty minutes.
• They have time to call the Applicant “CRACK HEAD” and “ASSHOLE”, They have time to assault the Applicant, and to inquire what the he was doing in the Georgina area, even though the Applicant has live in this area for four more years than the Complainant.
• They have time to talk and joke about there suits.
• They have time to call rogers in the hope of getting the Applicant fired.
• They have time to walk back and forth to the Applicant’s vehicle,
• for only God knows how many times.
• They have time to do a visual search of the cab of the Applicant’s vehicle.
• They have time to shine a bright flashlight into the Applicant’s eyes in total darkness, thereby causing him pain.
• They have time to assault the accuse by slapping his hat off his head without his permission.
• They have time to feed the Complainant false information.
• Three of the officer has time to taint and colour the Complainant’s testimony.
• All five police officer had time to detain and watch the accused doing “nothing” for twenty minutes.
• But not one Officer! Not one officer has time to take a statement from the accuse while the information is fresh in his mind.
• Not one Officer within the twenty minutes of detainment has time to inform the Applicant of is rights and to execute those rights without delay within the meaning of section 10 of the Charter of Rights, so that he is empowered to give informed answers and make informed decisions. Not one officer out of the five!
The officers official given reason for this, they did not need to, they were too busy with the Applicant (who was saying and doing nothing), and they need all five Officers to control the Applicant (who was passively resisting).
[448] Pursuant to R. V. Mellenthin;
“Appellant was detained and accordingly could reasonably be expected to
feel compelled to respond to questions from the police. A person who is detained can still consent to answer police questions. However, that consent must be one that is informed and given at a time when the individual is fully aware of his or her rights.”
(R. V. Mellenthin, page# 2, para 3)
[449] The Officers coloured by there systemic racism and personal or institutional prejudice were so busy in applying there active racism to inflict as much legal damage on the Applicant as possible, forgot or disregarded the original purpose in GO# 2007 - 70285; to investigate the complainant’s complaint of allege highway traffic violation or violations.
[450] It was only when they realized the great error in judgement they made and lack of material evidence. They scrambled to get a tainted none-independent statement from the Complainant which was coloured by the officers themselves. This resulted in the filing of a second Information 07-02559 one day after Information 07-02500 was filed. Which the prosecution did not officially notified the Applicant about (S. 11(a)), until the 3rd of August 2007. This induced confusion within the administration of justice of the same suspect being charged twice for two of the same crimes.
[451] The following citation sums up the reasons for the aforementioned in the Applicant’s humble opinion;
In 1976, the LRC published an important report entitled Our Criminal Law. More philosophical in nature and, therefore, broader, the report devotes a chapter to the objectives of criminal law and another to moderation in penal law.
In Canada, wrote the Commission, the penal law mainly aims at achieving an ideal of humanity, freedom and justice (p. 7), which must be its three objectives. But for the LRC, in 1976, reality was quite different, in particular with regard to the objective of humanity. The LRC referred directly to the practice of imprisonment in Canada, which shows once again the prison remained the norm during that period.
In theory the law aims to promote humanity. In practice it is frequently itself inhuman. Canada, it has been shown, is one of the harshest Western countries when it comes to use of prison sentences. Many of the terms imposed are far too long, half the people in prison should never be there (our underline), and so many are in gaol that those few needing real care and attention can not get it (LRC, 1976b: 11).
The Law Reform Commission also saw the principle of justice flouted by the reality of
the system:
Finally, the principle of justice. Here again reality falls short of aspirations. In theory crimes are crimes and punished equally no matter who commits them . In practice the penalty often depends, not on the nature of the crime, but on the person who commits it. Our prison population, for example, contains a quite unrepresentative proportion of poor, of disadvantaged and of native offenders. The richer you are, the better your chance of getting away with something (LRC, 1976b: 12)
The LRC thus judged criminal law practices very severely, and concluded as follows:
The fact is, criminal law is a blunt and costly instrument - blunt because it can not have the human sensitivity of institutions like the family, the school, the church or the community, and costly since it imposes suffering, loss of liberty and great expense. So criminal law must be an instrument of las resort (LRC, 19760: 27)
( Evolution of Penal Policies and the Debate on Imprisonment in Canada and Quebec: 1969 to 1999, Pierre Lalande, page 12)
HUMAN WORTH AND DIGNITY:
[452] On the 29th of March 2007 at 10:41 AM, the Applicant’s wife (Amanda Ferron) picked up the ,Applicant’s York Regional Police Vehicle Impound Form (YRP 150( 02/05)) from 3D HQ for vehicle 1D4GP21R77B138672, from officer Mapley (Badge# 687). The Appellant’s vehicle was released to his wife on the said date at 11:55 AM at 20440 Hwy 11, King Township, ON by Elliott’s Towing Services. A copy of the YRP Impound form was given upon request; On the other side of the copy was a copy of page 21 of 38 of a online C.C.; Inappropriate material mainly concerning bestiality. For example, “bestiality in presence of or by child”.
[453] There is a want of responsibility, due diligence and common decency to guard against distribute of material of this nature to the Applicant’s wife, a mother of four young girls.The following question must be asked, is the distribution of inappropriate and obscene material about bestiality and bestiality in the presence of or by a child is supported and excepted by the collective good of the public, when the context surrounding the event is considered?
[457] The Relationship of proximity of Elliott’s Towing Services with the York Regional Police Services, affords it a higher of the standard of care towards members of the collective, when dealing with the public byway of its contract with a Crown or public institution. This standard of care is inherited from the YRP and should be expected.
[458] The Applicant would go as far as saying there is a Relationship of Trust between Elliott’s Towing Services and the Crown. If this is true, then the defendant must deal with the Applicant with a similar standard of care with adjustments made for Crown or YRP subcontractors. Because of the Elliott’s Towing relationship with the YRP, the Crown should bear some of the responsibility of Eliott’s Towing actions.
[459] Elliott’s Towing cannot reap the rewards and benefits via there profitable subcontracting contract with the Crown and expect not to have any responsibility towards the Crown’s obligation to Canadians or the standard of care the Crown and the York Regional Police Services must maintain in catering to the consciousness of the public to the ends of having a livable just society. Moreover, Elliott’s Towing cannot expect to be immune to or absolve itself of all accountability and responsibility towards the standard of care the Crown and it’s Public Institutions must uphold.
[460] At the end of the day, whether Elliott’s Towing Services employee’s negligence is an actionable Wrong, is not the only issue or most important factor. The fact that Elliott’s Towing is a Trusted Subcontractor of York Regional Police Services (YRP), speaks volumes about whom YRP choose to be its friends, to do business with, to associate with and have a Relationship of Trust with. In short, it speaks in a tangible way about the prudent responsible operation of an important public institution. “You are who your friends are?”
BILL OF RIGHTS:
An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms.
Preamble
The Parliament of Canada, affirming that the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions;
Affirming also that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law;
And being desirous of enshrining these principles and the human rights and fundamental freedoms derived from them, in a Bill of Rights which shall reflect the respect of Parliament for its constitutional authority and which shall ensure the protection of these rights and freedoms in Canada:
Therefore Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
PART I
Recognition and declaration of rights and freedoms
1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law;
Construction of law
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
[461] Harming a member of the collective by diminishing the said member’s human worth or humanity in the Georgian area, diminishes the humanity of the collective and harms the health and well being of society at large.
WHAT DOES SYSTEMIC RACIS OR RACIAL PROFILING HAD TO DO WITH C51190:
[462] Pursuant to R. v. Smith, A finding of racial profiling profiling in selecting an individual for investigative detention will render that detention unlawful. Furthermore, it may lead to the conclusion that section 7, 8, 9 and 15(1) of the Charter have been breached.
“[24] On the basis of Brown v. Durham, a finding that racial profiling was involved in selection of an individual for investigative detention will render that detention unlawful even if there are also legitimate reasons for it.
Which Sections of the Charter Might Apply in this Case?
[25] I wish to comment on which of the four Charter sections relied upon by the accused might apply in the circumstances of this case. The accused submits that a finding of racial profiling should lead to a conclusion that sections 7, 8, 9 and 15(1) of the Charter have been breached. “
(R. V. Smith, COURT FILE NO.: CRIMJ(F) 6474/02, DATE: 2004 1207; page 11&12, para[23]-para[25])
[463] Pursuant to R. V. Smith, racism and its effects are an affront to human dignity and section 7. of the Charter would be breached since human dignity has been held to constitute a protected interest within the context of life, liberty and the security off a person.
“Section 7 of the Charter
[30] The Crown concedes that s. 7 of the Charter will have been breached if I find that racial profiling was a factor in the decision to refer the accused for secondary customs inspection. I am in full agreement with this concession.
[31] The interests which s. 7 of the Charter protects are “life, liberty and
security of the person”. Human dignity has been held to constitute a protected interest which falls within these concepts: R. v. Morgentaler, Smoling and Scott (1998), 37 C.C.C. (3d) 449 (S.C.C.), per Wilson J. at pp. 549-550; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, per Sopinka J. at para. 136-137. These cases also hold that freedom from improper stigma and undue psychological stress fall within the concept of security of the person.
[32] It is important to keep in mind that I am here speaking of human dignity as a protected interest under s. 7 of the Charter, and not as a principle of fundamental justice. The Supreme Court of Canada held in Rodriguez, that while human dignity is a protected interest, it is not a part of the rules of fundamental justice. In the words of Sopinka J. at para. 145:
While respect for human dignity is the genesis for many principles of fundamental justice, not every law that fails to accord such respect runs afoul of these principles. To state that “respect for human dignity and autonomy” is a principle of fundamental justice, then, is essentially to state that the deprivation of the appellant’s security of the person is contrary to principles of fundamental justice because it deprives her of security of the person. This interpretation would equate security of the person with a principle of fundamental justice and render the latter redundant.
[33] Racism and its effects are undeniably an affront to human dignity. Whether overt, subconscious or systemic, racism undermines the self-image and respect of its victims, causes psychological stress and, of course, may cause tangible disadvantages of every manner and kind: see, Paying the Price: The Human Cost of Racial Profiling, Ontario Human Rights Commission, Toronto, 2003. “
(R. V. Smith, COURT FILE NO.: CRIMJ(F) 6474/02, DATE: 2004 1207; page 14&15, para[30]-para[33])
[464] Pursuant to R. V. KHAN, an otherwise proper Highway Traffic stop would be nullified if their is a finding of racial profiling and every thing else that flows from the traffic stop. Since the stop would be rendered unlawful. The stop is unlawful because the suspect’s Charter rights has been infringed.
“[45] Doherty J.A. (who wrote the unanimous decision of the Court of Appeal) adopted the trial judge's reasoning, stating (at para. 31), "[a]s the trial judge pointed out, known criminals should not be more immune from s. 216(1) stops than law abiding citizens who are not known to the police". However, Doherty J.A. did so subject to two caveats:
1. the additional police purpose cannot be used to infringe the liberty and security of the detained person beyond that contemplated by the purpose underlying s. 216 of the Highway Traffic Act; and
2. the additional purpose must itself be a lawful one, even though not in and of itself justifying a detention. Highway traffic stops used as a ruse to effect an illegal purpose such as an unauthorized search are not protected. Likewise, if the additional police purpose is itself improper, the stop will not be lawful even if there are also valid highway safety concerns. Doherty J.A. provided as an example of such an improper purpose, one which is motivated by race. He held, at paras. 38 and 39:
While I can find no sound reason for invalidating an otherwise proper stop because the police use the opportunity afforded by the stop to further some other legitimate interest, I do see strong policy reasons for invalidating a stop where the police have an additional improper purpose. Highway safety concerns are important, but they should not provide the police with a means to pursue objects which are themselves an abuse of the police power or are otherwise improper. For example, it would be unacceptable to allow a police officer who has valid highway safety concerns to give effect to those concerns by stopping only vehicles driven by persons of colour. Section 216(1) of the HTA does not, in my view, authorize discriminatory stops even when there is a highway safety purpose behind those stops.
When I refer to improper police purposes I include purposes which are illegal, purposes which involve the infringement of a person's constitutional rights and purposes which have nothing to do with the execution of a police officer's public duty. Officers who stop persons intending to carry out unauthorized searches, or who select persons to be stopped based on their sex or colour, or who stop someone to vent their personal animosity toward that person, all act for an improper purpose. They cannot rely on s. 216(1) of the HTA even if they also have highway safety concerns when making the stop. [Emphasis added.]
[46] The police in this case rely, not only on the general power to stop in s. 216(1) of the Highway Traffic Act, but also on s. 130 of the Act, the careless driving provision. The police officers specifically deny that Mr. Khan's race was a factor in their decision to stop his car.
[47] In my opinion, if the officers are believed, their evidence affords proper grounds for them to stop Mr. Khan's vehicle. He was driving in a careless manner, without due care and attentions and they had valid highway safety concerns. Further, they had reasonable suspicions about whether his conduct was furtive. While these concerns might not have been sufficient in and of themselves, to warrant a detention, they were not improper purposes and were concerns properly within the execution of a police officer's duty. The presence of such suspicions would not invalidate an otherwise proper highway traffic stop:
Brown v. Durham Regional Police Force; R. v. Coates (2003), 176 C.C.C. (3d) 215 (Ont. C.A.).
(ii) Similar Fact Evidence and Racial Profiling
[48] On the other hand, if as Mr. Khan alleges, he was targeted by these officers because of racial profiling, this would constitute an improper purpose and would invalidate the stop, and everything that flowed from the stop. A finding that a police officer was motivated by racism, whether consciously or unconsciously, is a serious matter. It ought not to be made lightly.”
(R. V. KHAN {2004} O.J. No.: 3819 (S.C.); page 14&15, para[45]-para[48])
[465] Pursuant to R. v. Khan, a finding that a police officer was motivated by racism, wether consciously or unconsciously, is a serious matter. This is in essence the definition for systemic racism.
“[68] It follows from these conclusions that the officers involved in this case fabricated significant aspects of their evidence. Why did they single out Mr. Khan on Marlee Avenue at about noon on a Monday in October and decide to search his car? Because he was a young black male driving an expensive Mercedes. That is a reasonable inference based on all of the circumstances and the evidence before me. The Ontario Court of Appeal has held that where the "circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why he or she singled out the accused person for attention, the record is then capable of supporting a finding that the stop was based on racial profiling": R. v. Brown at para. 45. Having concluded that the officers in this case fabricated their evidence in respect of the search of Mr. Khan's car, I cannot find their evidence to be at all reliable with respect to the events leading up to the stop. Mr. Khan has proven to be a reliable and credible witness. I accept his evidence that he did nothing to cause the officers to stop him. In any event, even if there had been some minor thing about his driving, I do not believe that was the real reason he was stopped. The police stopped him for an improper purpose. Mr. Khan was targeted for this stop because of racial profiling, because he was a black man with an expensive car.
[69] Mr. Khan's rights under both ss. 8 and 9 of the Charter were violated. The Crown fairly conceded that if there was a finding of racial profiling, it would not be appropriate to admit the evidence of the cocaine under s. 24(2) of the Charter. I agree entirely. Conduct of this kind by the police is reprehensible. It cannot be condoned or excused. It is a most serious breach of Mr. Khan's human rights, as well as his rights under ss. 8 and 9 of the Charter. The evidence of the cocaine is excluded. In the absence of the drugs, the Crown has no case. The charge against Mr. Khan is dismissed. “
(R. V. KHAN {2004} O.J. No.: 3819 (S.C.); page 14&15, para[45]-para[48])
[466] Let use call the Monster by its name. Moreover, let use attempt to cure this social ill; summoning our social evolution to a higher plane of collective moral responsibility.
[467] Let us attempt to treat and heal the festering wounds of systemic racism; devouring the connective tissues of our society. Racism is a carry over from the days of slavery and past and present injustices. It is woven into the fabric of our society and propagates in unseen ways, through our institutions. It has given birth to a child, systemic racism. Which is an unseen entity; but it’s properties has a dramatic effect on our communities.
[468] The Applicant is perplexed and bewildered at why he is still standing before this honourable Court? Why his life was unnecessarily destroyed and he has been forced again to start from zero.
[469] Why after an highway traffic complaint; in which the complainant, dispatch and officers were unsure of the alleged inferences of the complainant. Allegations which none of the officers could personally confirm or tried to confirm scientifically.
[470] In the absence of scientific evidence, the officers chose to unlawfully arrest, brutalize, defame, slander, apply verbal racial assault, assault/battery, give false return to the process and pervert the course of justice.
[471] The only reasonable logical explanation within the context of improper motivation; is racism, racial profiling byway of systemic racism.
[472] The fact that the Crown chose not to reasonably, cautiously, and prudently vet it’s Officers theories and material evidence; it’s own material evidence which is incriminating against it’s clients. The fact that the Crown chose not to transcribe, file and serve it’s own material evidence which is self incriminating and forced the Applicant by this lack of reasonable action, to file all exhibits of both defence and Crown’s evidence.
[473] The fact that the Crown up to the day of writing this (September 24,2009) has not filed one single piece of document freely, in support of it’s position in this matter; in the form of affidavit of reasonable belief, material evidence or motioned to call evidence. Yet maintained at the initial outset of the Appeal, to have the Appeal dismissed. Shows a wanting of prosecution, lack of desire to seek the truth and a lack of effort to seek the ends of justice. This in my humbly opinion is a silent confirmation; an acknowledgment of the presents of systemic racism in the matter before the court.
[474] The fact that there is an account (history) of notoriously late disclosure, nondisclosure, a suppression of evidence, a denial of witnesses, mislabeled exhibit, missing exhibit, disappearance of the Crown’s copy of material evidence, without articulated reasons or justification. Moreover, there is a long history of the untimely destruction of material evidence resulting in nondisclosure in the Regional Municipality of York, byway of the York Regional Police Services.
[475] Furthermore, there has been many Justices on a number of occasions, warning of known problems which continue to exist and cause legal problems byway of prejudicing the process and risk violating the FUNDAMENTAL RULE OF JUSTICE.
[476] The fact that I was required to under go humiliating subjective Drugs/Alcohol assessment byway of the probation officer and T.A. Patterson, even though the Crown has repetitively stated that Information 02500 and count 1 of impaired driving byway of drugs has been withdrawn. It is as though there exist an Information and its virtual counter part. A virtual copy, if you will of the said Information. Which cause the same problems, renders the same social stigmatization, does similar damage and make the same demands as the real Information did, which is supposed to be de-solved. The only reasonable logical conclusion I can find in the context of improper motivation is; racism, racial profiling byway of systemic racism.
[477] All the years the Applicant have endeavor to live the most honourable life, in the most reasonable and honest way he could live as a valued member of society. To live good with himself self, to live good with his children and to live good with his neighbors; has cast him into the “lake of legal fire”. Which is the matter before the court. Where do we go from here? How do we shift from our present position? How do we stop the bleeding, healing the ethical wounds and prevent the rotting of our social flesh?
Information Nos.: C51190
court of appeal for ontario
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and -
WAYNE FERRON Applicant
CITATION - VOLUME II
APPLICATION RECORD FOR APPLICATION
FOR CONSTITUTIONAL QUESTION
2.) EVIDENCE
WORK CITED
1) Mr. Geoffrey Fardy, unsigned--Statement or Summary of Witness Account
2) Mr. Geoffrey Fardy Cr-ex, May 9, 2008 Trial Transcript for 07-02559
3) Sgt Burd, May 9, 2008, TRIAL TRANSCRIPT
4) DCst Broughton Cr-ex, May 9, 2008 Trial Transcript
5) DC Burd’s Cr-ex, May 9, 2008 Trial Transcript
6) P.C. Monk Cr-ex, May 9, 2008 Trial Transcript
7) DCst Broughton Cr-ex, May 9, 2008 Trial Transcript
8) Mr. Geoffrey Fardy, unsigned--Statement or Summary of Witness Account
9) Staff Sergeant Bruce Ringler (193), Typed OFFICER’S NOTES
10) J. Monk - Cr. ex, July 23, 2008 Trial Transcript
11) Officer Monk, July 23, 2008 Trial Transcript
12) Sgt Williamson Cr-ex, July 23, 2008 Trial Transcript
13) DCst S. Broughton -Ex-in-Ch, January 18, 2008 TRIAL TRANSCRIPT
14) Officer Monk (#1399), Typed Officers Notes, on 28th of March 2007
15) Officer Williamson (#1108), Typed Officers Notes, on 28th of March 2007
16) Officer Brown (#1666), Typed Officers Notes, on 28th of March 2007
17) Officer Broughton, 28th of March 2007 TRIAL TRANSCRIPT
18) Officer Broughton Ex-in-Ch, 18th of January 2008 TRIAL TRANSCRIPT
19) Quévillon c. R. 2007 QCCQ 9246
20) R. V. Wayne FERRON, REASONS for JUDGMENT/SENTENCING, September 26
21) Honourable Justice Kenkel, September 26, 2008, REASONS FOR JUDGEMENT
22) Honourable Justice Healey, SUPERIOR COURT OF JUSTICE , RULING for Information No.: 07-02559
23) Joanne Stuart, Crown’s Response to the Applicant’s Motion for Direction(M 38387) on 27th of January 2010
24) Mr. Tait for the Crown, October 5, 2009 Application Transcript for 07-02559
25) Jeffrey Costain for the Crown, RESPONDENT’S FACTUM, SUPERIOR COURT OF JUSTE APPELLATE COURT
26) Mr. Tait for the Crown, October 14, 2009 Application Transcript for 07-02559
27) The International Covenant on Civil and Political Rights: Interim Report in follow-up to the review of Canada’s Fifth Report, November 2006
28) Sopinka, Lederman and Bryant THE LAW OF EVIDENCE IN CANADA
29) Sgt Williamson Cr-ex, 23rd of July 2008 Trial Transcript continuation
30) R. v. Hebert, [1990] 2 S.C.R. 151
31) unsigned - Statement or Summary of Witness Account
32) 911 Dispatch Log; page 3, 07Mar27, time 23:40
33) York Regional Police Officer Radio Log for position 587
34) Philip H. Osborne, THE LAW OF TORTS
35) DCst S. Broughton(1079), NARRATIVE: INITIAL OFFICER REPORT, IMPAIRED, 2007-March-28
36) DCst S. Broughton(1079), January 18, 2008 TRIAL TRANSCRIPT
37) Staff Sergeant Bruce Ringler (193), Typed OFFICER’S NOTES
38) Officer Briughton’s Cr-ex, May 9, 2008 Trial Transcript
39) Complainant’s Cr-ex, January 18, 2008 Trial Transcript
40) POLICE POLICY, YORK REGION POLICE SERVICES WEB PAGE
41) Officer Broughton, Typed Officers Notes
42) The Colour of Justice, David M. Tanovich
43) R. V. KHAN {2004} O.J. No.: 3819 (S.C.)
44) R. V. Smith, COURT FILE NO.: CRIMJ(F) 6474/02
45) R. v. Storrey, [1990] 1 S.C.R. 241
46) R. V. Mellenthin
47) Evolution of Penal Policies and the Debate on Imprisonment in Canada and Quebec: 1969 to 1999, Pierre Lalande
48) R. V. KHAN {2004} O.J. No.: 3819 (S.C.)
All of which is respectfully submitted.
Date:..
_________________________
Wayne Ferron
Email: ferronwayne@gmail.com
TO: The Clerk of the Court--Registrar
Osgoode Hall
130 Queen Street West
Toronto, Ontario, M5H 2N5
Tel: 416 327 5020
Fax: 416 327 6032
AND TO
The Attorney General of Ontario
Constitutional Law Branch
4th floor
720 Bay Street
Toronto, Ontario M5G 2K1
fax: 416 326 4015
AND TO:
The Attorney General of Canada
Constitutional Law Branch
Suite 3400, Exchange Tower
Box 36, First Canadian Place
Toronto, Ontario M5X 1K6
fax: 416 973 3004
court of appeal for ontario
|
R -versus- Wayne Ferron |
Court file no.: C51190 |
|
|
COURT OF APPEAL FOR ONTARIO
PROCEEDING COMMENCED AT Osgoode Hall 130 Queen Street West Toronto, Ontario, M5H 2N5
DOC-X VOLUME II APPLICATION RECORD FOR APPLICATION FOR CONSTITUTIONAL QUESTION 2.) EVIDENCE
Wayne Ferron , Email: ferronwayne@gmail.com |
TO: The Clerk of the Court--Registrar
Osgoode Hall
130 Queen Street West
Toronto, Ontario, M5H 2N5
Tel: 416 327 5020
Fax: 416 327 6032
AND TO
The Attorney General of Ontario
Constitutional Law Branch
4th floor
720 Bay Street
Toronto, Ontario M5G 2K1
fax: 416 326 4015
AND TO:
The Attorney General of Canada
Constitutional Law Branch
Suite 3400, Exchange Tower
Box 36, First Canadian Place
Toronto, Ontario M5X 1K6
fax: 416 973 3004
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