COURT OF APPEAL FOR ONTARIO
Laskin, LaForme and Rouleau JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Alexander Fountain
Appellant
Breana Vandebeek, for the appellant
Greg Skerkowski, for the respondent
Heard: January 15, 2015
On appeal from the conviction entered by Justice William B. Horkins of the Ontario Court of Justice, dated June 24, 2013, with reasons reported at 2013 ONCJ 434.
OVERVIEW
1The Toronto Anti-Violence Intervention Strategy (“TAVIS”) is a community policing program within the Toronto Police Service. TAVIS police officers engage in what is referred to as pro-active policing.
2Among other practices, TAVIS police officers randomly approach people and engage them in conversation, which may reveal information of a general or investigative interest. The police in these encounters usually fill out a Field Investigative Report (an “FIR” or “208 card”) with identification and association information. The police use 208 cards to build and maintain a database of individuals and their associates, primarily in high-crime or so-called “priority” areas of the city.
3The issues in this appeal arise out of an engagement between a TAVIS police officer and the appellant and the circumstances under which the officer filled out a 208 card. During the engagement, exigent circumstances were said to have arisen that justified a warrantless search for public and/or officer safety. The appellant argues the circumstances did not justify the warrantless search, and that this court should therefore exclude the evidentiary products of the search.
BACKGROUND
4The appellant and another young black male were walking past a police car when Constable Ryan Fardell singled out the appellant and called him over for questioning. Constable Fardell first clarified the appellant’s identity and asked whether he had any outstanding warrants. Once Constable Fardell established the appellant’s identity and realized he had no outstanding warrants, Constable Fardell turned to filling out a 208 card.
5As Constable Fardell wrote up the card, a third man, apparently unknown to either the appellant or the officer, walked up behind Constable Fardell and his partner and began interrogating the officers about what he perceived to be harassment of the appellant and the appellant’s companion. The appellant abruptly turned sideways, “blading”1 his body. Constable Fardell commanded the appellant to show his hands, but the appellant failed to do so. Constable Fardell then reached out and patted the appellant’s side. The officer felt a hard object and yelled “gun”. The appellant fled, and a gun fell out of his jacket as he mounted a fence.
6The police apprehended the appellant shortly thereafter. He was ultimately convicted of possession of a firearm and sentenced to four years’ imprisonment.
The Trial Judge’s Decision
7The appellant’s trial was heard as an application to exclude the firearm for breaches of the appellant’s Charter rights: R. v. Fountain, 2013 ONCJ 434, 291 C.R.R. (2d) 299. The trial judge held that, while the appellant had been arbitrarily detained, the subsequent pat-down search was reasonable because it flowed from exigent circumstances. The trial judge then concluded that even if the gun’s discovery stemmed from the arbitrary detention such that the gun was “obtained in a manner” that infringed the appellant’s Charter rights, he would not exclude the gun as evidence under s. 24(2) of the Charter.
8As the trial judge observed, while pro-active policing programs have generally passed Charter scrutiny, the courts must assess each street-level encounter on its own merits. There is no doubt, he cautioned, “that these carding programs tread a very fine line depending on the particular circumstance of any given situation”: Fountain, at para. 9.
9The appellant asserts that in this case, the line was crossed.
THE ISSUES
10The appellant raises two issues on appeal. First, he submits that the trial judge erred in applying the doctrine of exigent circumstances to justify the pat-down search. Second, he argues that the trial judge failed to assess material inconsistencies in the evidence that damaged Constable Fardell’s credibility.
11The appellant submits that if Constable Fardell unlawfully searched the appellant, the court should conduct a fresh s. 24(2) analysis and exclude the gun. If the trial judge erred in his assessment of Constable Fardell’s credibility, the court should order a new trial.
12I conclude that the appellant was unlawfully detained throughout his involvement with the police and that exigent circumstances justified the pat-down search of the appellant. The trial judge was right to proceed to a s. 24(2) analysis in the circumstances of this case. I would dismiss the appeal.
ANALYSIS
13On the first issue, the appellant argues that exigent circumstances cannot justify the search of the appellant because the police were not in the lawful execution of their duties at the time. He also contends that where, as here, the police created the exigent circumstances, they cannot rely on those circumstances to justify a search.
14On the second issue, the appellant submits the trial judge erred in failing to reconcile material inconsistencies in the evidence. Had the trial judge properly assessed the inconsistencies, he might have come to a different conclusion on Constable Fardell’s credibility and so on the lawfulness of the pat-down search.
15I will address each of these issues in order.
Issue 1: Exigent Circumstances
16The appellant asserts that from the moment Constable Fardell began speaking to him until the search, the police were arbitrarily detaining him and not engaged in the lawful execution of their duties.
17It is unclear to me from the trial judge’s reasons when he finds the unlawful detention began. In my view, Constable Fardell unlawfully detained the appellant from the moment he called out to him.
18Constable Fardell had dealt with the appellant or his brother before. The officer knew they both had criminal histories and believed that a warrant was out for one of them. The trial judge found that, although Constable Fardell was acting within the general scope of his duties as a police officer, this was not a “random stop”. Rather, it was a “focused, investigative engagement” to determine if the appellant was the wanted brother.
19Constable Fardell admitted that he had no basis to detain the appellant when he began speaking to him. The officer only thought the appellant might be the brother who might be wanted. He did not suspect that the appellant was involved in any particular criminal activity.
20The trial judge found that Constable Fardell had psychologically detained the appellant. Constable Fardell, as a uniformed officer, ordered the appellant, a young, black man, to come over and talk to him. The officer asked the appellant if he had any open warrants, and planned to arrest the appellant if he did. He told the appellant to keep his hands down. He did not tell the appellant that he was free to leave. The trial judge inferred that, in all these circumstances, a reasonable person would have felt compelled to obey the officer and felt that he could not walk away: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 31.
21I agree with the trial judge’s inference. Therefore, I conclude that Constable Fardell unlawfully detained the appellant from the outset of their conversation.
22In any case, the Crown accepts that, at some point before the third-party intervention, Constable Fardell unlawfully detained the appellant. Therefore, I will focus my analysis on two issues: (a) the lawfulness of the pat-down search, and (b) the exclusion of the gun.
Lawfulness of the Search
23Warrantless searches are presumptively unreasonable: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 36. But a warrantless safety search may be reasonable in appropriate circumstances: see R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 31. A safety search is generally “a reactionary measure”, often “driven by exigent circumstances”: MacDonald, at para. 32. For a safety search to be lawful, an officer must “have reasonable grounds to believe that there is an imminent threat” to police or public safety: MacDonald, at para. 43. As MacDonald described, at para. 41:
Given the high privacy interests at stake in such searches, [a safety search] will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search. The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter. [Citations omitted.]
24A safety search must also be carried out reasonably: MacDonald, at para. 47. Finally, even if a safety search takes place in the context of an unlawful detention, exigent circumstances can still justify the search: see R. v. Blackwood, [2009] O.J. No. 5393 (S.C.), aff’d 2013 ONCA 219, [2013] O.J. No. 1548.
25Often, police officers conduct safety searches incident to investigative detentions. However, MacDonald demonstrates that an officer may conduct a safety search outside of an investigative detention.
26In this case, the trial judge determined that Constable Fardell’s pat-down search of the appellant was lawful, even though it took place during an unlawful detention. According to the trial judge, “the discovery of the gun… flowed from a lawful search conducted in exigent circumstances. It did not flow from the earlier unlawful detention”: Fountain, at para. 70. At para. 69, he found:
In all the circumstances it was absolutely necessary for the officer to conduct this safety pat-down to protect himself. The conduct of the officer was entirely reasonable, lawful, and understandable, and justified on officer-safety grounds.
27Although the trial judge did not use the precise language employed in MacDonald, his use of the words “absolutely necessary” – combined with his focus on “officer safety” – indicates he was alive to the correct legal principles and the factors constraining the safety search power.
28The appellant submits the trial judge erred in relying on exigent circumstances to justify the search because “[t]he police cannot justify a warrantless search on the basis of a volatile situation that they created by their own unlawful conduct.” According to the appellant, the third party only interjected because Constable Fardell unlawfully detained the appellant.
29I cannot agree with this argument. In my view, the police in this case cannot be said to have “created their own exigent circumstances”, to use the language of La Forest J.’s dissent in R. v. Silveira, 1995 89 (SCC), [1995] 2 S.C.R. 297, at para. 53.
30A third party bystander could not easily tell, in all the circumstances of this case, whether Constable Fardell had detained the appellant or, if he had detained the appellant, whether the detention was lawful. I cannot say with any degree of certainty that Constable Fardell’s unlawful detention of the appellant caused the third party to intervene. The third party would likely still have intervened even if Constable Fardell had not detained the appellant or if he had lawfully detained the appellant.
31Moreover, the trial judge did not rely on the third party interjection alone to find exigent circumstances The appellant’s reaction to the appearance of the third party was equally if not more important to Constable Fardell’s decision to search the appellant. Constable Fardell said that once the third party arrived, the appellant became nervous, “bladed” his body, placed his left arm on his left hip, and took two paces backwards.
32While the exigent circumstances in this case may not have been as extreme as those in Blackwood, where the accused aggressively pushed a police officer, I am satisfied that Constable Fardell had reasonable grounds to conduct the pat-down search. Because the third party may have interjected even if the police had not unlawfully detained the appellant and because the appellant’s reaction played a central role in producing the exigent circumstances, I do not think it accurate to say the police “created their own exigent circumstances”.
33To conclude on the legality of the search, I see no basis to interfere with the trial judge’s decision. He did not err in applying the doctrine of exigent circumstances to justify the search of the appellant. The trial judge was entitled to conclude that Constable Fardell had reasonable grounds to believe the appellant presented an imminent threat to his safety. Furthermore, Constable Fardell carried out the pat-down search of the appellant’s left hip in a reasonable manner. The officer merely patted the appellant’s hip.
34I would reject this ground of appeal.
Application of s. 24(2)
35The appellant asked this court to revisit the s. 24(2) analysis only if the court concluded Constable Fardell unlawfully searched the appellant. As I will explain, although I have concluded that the pat-down search was lawful, I believe the temporal connection between it and the unlawful detention is sufficient to have warranted the application judge’s s. 24(2) analysis.
36Section 24(2) of the Charter provides the following:
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [Emphasis added.]
37The jurisprudence on s. 24(2) focuses on clarifying what circumstances would “bring the administration of justice into disrepute”. The Supreme Court laid out the governing test on this question in Grant, at para. 71.
38But s. 24(2) also contains a threshold question. In R. v. Strachan, 1988 25 (SCC), [1988] 2 S.C.R. 980, at p. 1005, the court noted that “the first inquiry under s. 24(2) would be to determine whether a Charter violation occurred in the course of obtaining the evidence” (emphasis added).
39An accused seeking the exclusion of evidence under s. 24(2) must satisfy two components: first, the accused must show that the evidence was “obtained in a manner that infringed” a Charter right; and second, the accused must demonstrate that the admission of the evidence would bring the administration of justice into disrepute: see R. v. Plaha (2004), 2004 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 44.
40In this case, the trial judge, at para. 74, found that “[t]here was a significant disconnect between the section 9 breach and the discovery of the gun”. The connection between the unlawful detention and the gun’s discovery, therefore, did not appear strong enough to require a s. 24(2) analysis.
41The trial judge, however, conducted a s. 24(2) analysis for “completeness”, just in case the unlawful detention was sufficiently connected to the gun’s discovery. I believe this was a prudent approach and I am satisfied the unlawful detention stood close enough to the gun’s discovery to require further inquiry.
42In Plaha, at para. 45, Doherty J.A. helpfully summarized the approach to the threshold question:
The jurisprudence establishes a generous approach to the threshold issue. A causal relationship between the breach and the impugned evidence is not necessary. The evidence will be "obtained in a manner" that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous.
43In this case, the police unlawfully detained the appellant and discovered the gun as “part of the same transaction or course of conduct”. The most compelling factor is the temporal connection: in oral argument, the parties agreed that the entire transaction from Constable Fardell’s initial approach to eventual pat-down lasted only about three minutes.
44Doherty J.A. very recently authored a decision I find helpful here: R. v. Stevenson, 2014 ONCA 842, 317 C.C.C. (3d) 385, leave to appeal to S.C.C. requested. In Stevenson, the appellant had been convicted of shooting his estranged wife in the head. Doherty J.A. concluded the appellant was arbitrarily detained when the police arrested him without reasonable grounds. The police had put handcuffs on him and then wrapped his hands in plastic to preserve possible gunshot residue. Later the same evening, reasonable grounds to arrest the appellant arose, turning his unlawful arrest into a lawful arrest. After the arrest became lawful, the police searched (i.e. tested) the appellant’s hands and discovered gunshot residue.
45Doherty J.A. held that even though the eventual search of the appellant’s hands occurred after the appellant’s arrest had become lawful, the initial arbitrary detention was sufficiently connected to the discovery of the gunshot residue to require a s. 24(2) analysis. At para. 63, he explained:
The appellant seeks the exclusion of the results of the GSR test done on his clothing and hands. The GSR results are sufficiently temporally connected to the arbitrary detention to make the results of the test "evidence that was obtained in a manner that infringed" the appellant's Charter rights even though he was lawfully arrested by the time the samples were taken and the clothing seized. [Emphasis added; citations omitted.]
46Stevenson is helpful because the circumstances are similar to those in this case. In both cases, a lawful search was linked to an unlawful detention. That the facts in Stevenson required a s. 24(2) analysis leads me to the conclusion that this case’s facts also require such an analysis.
47The trial judge, at para. 68, found that prior to the third party’s arrival, “there was no indication that the officer had any intention, or interest, in actually arresting Mr. Fountain let alone in searching him”. Because of this, any causal connection between the unlawful detention in this case and the discovery of the gun appears weak. But, “[a] causal relationship between the breach and the impugned evidence is not necessary”: Plaha, at para. 45. And, as the Supreme Court observed in Strachan, at p. 1002:
A strict causal nexus would place the courts in the position of having to speculate whether the evidence would have been discovered had the Charter violation not occurred. Speculation on what might have happened is a highly artificial task.
48In the end, I believe the search of the appellant is sufficiently temporally connected to the arbitrary detention to make the search "evidence that was obtained in a manner that infringed" his Charter rights, even though exigent circumstances gave rise to the discovery of the gun.
49The Crown submits that while a weak causal connection may not always put evidence outside s. 24(2)’s purview, it does weigh in favour of admitting the evidence under the Grant analysis. The Crown relies on R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, where the court, at p. 209, wrote, “it should be borne in mind that the presence and strength of the causal connection between the evidence and the Charter breach may be a factor for consideration under the [administration of justice into disrepute] branch of s. 24(2)”.
50I do not think it necessary to address the Crown’s Bartle submission. The s. 24(2) analysis strongly favours inclusion of the gun whether one considers the strength of the causal connection or not.
51Turning to the three Grant factors, I emphasize the deference owed to the trial judge. In R. v. Peterkin, 2015 ONCA 8, [2015] O.J. No. 100, at para. 75, Watt J.A. wrote, “where a trial judge has considered the proper factors and has not made any unreasonable finding, his or her determination [under s. 24(2)] is owed considerable deference on appellate review” (citations omitted).
52In my view, the appellant has not established any error or unreasonable findings. There is no reason to interfere with the trial judge’s decision to admit the evidence.
53Before concluding my discussion of this issue I wish to make a few remarks about the trial judge’s statement at para. 93, where he concludes: “Absent truly egregious conduct on the part of the police most Canadians would find it unconscionable for an accused that was, in fact, carrying a loaded handgun be set free without a trial on the merits”. In reaching this conclusion, the trial judge relied, in part, on the strong comments of Moldaver J.A. (as he then was) in R. v. L.B., 2007 ONCA 596, 227 C.C.C. (3d) 70.
54Moldaver J.A. wrote his comments in the specific context of a high-school student carrying a loaded handgun onto school property. In his description of the circumstance underlying the case, Moldaver J.A. observed, at para. 80, that:
It conjures up images of horror and anguish the likes of which few could have imagined 25 years ago when the Charter first came to being. Sadly, in recent times, such images have become all too common – children left dead and dying; families overcome by grief and sorrow; communities left reeling in shock and disbelief.
55While no one could easily disagree with those comments within the specific circumstances of L.B., I do not think it proper for trial judges to rely on them as a general proposition in all cases involving handguns. That is, trial judges should not turn to such images in every case as part of the analysis under s. 24(2). Indeed, Moldaver J.A. made it clear that his comments were specific to the facts of his case. After making the comments set out above, he immediately went on to say, at paras. 81-82:
That is the backdrop of this case and in my view, it provides the context within which the conduct of the police should be measured, for purposes of s. 24(2), in deciding whether we should be excluding completely reliable evidence (here, the gun) and freeing potentially dangerous people without a trial on the merits.
Viewed that way, I believe that absent egregious conduct on the part of the police, most Canadians would find it unconscionable for L.B. to be set free without a trial on the merits.
56In spite of his invocation of Moldaver J.A.’s comments in L.B., I would still not interfere with the trial judge’s conclusion on s. 24(2).
Issue 2: Material Inconsistencies
57The appellant did not point to any material inconsistencies. I agree with the Crown that the issues at trial asked the trial judge to apply legal standards to facts either not in dispute or uncontradicted.
58A critical assessment of Constable Fardell’s credibility did not play a central role in this case. Although there were some discrepancies between his notes and the audio recording, it is mere speculation to suggest that those discrepancies indicate some unacceptable purpose.
59Finally, the trial judge was not required to refer to and reconcile every potential inconsistency in the evidence. The reasons given in this case provide for meaningful review and clearly inform the appellant why his Charter challenge failed: see R. v. Newton, [2006] O.J. No. 1008 (C.A.), at paras. 3-4.
60I would reject this ground of appeal.
DISPOSITION
61I would dismiss the appeal.
Released: “JL” MAY 19, 2015
“H.S. LaForme J.A.”
“I agree. John Laskin J.A.”
“I agree. Paul Rouleau J.A.”
