Court of Appeal for Ontario

Date: 2018-01-25

Docket: C61115

Judges: Doherty, Lauwers and Brown JJ.A.

Between

Her Majesty the Queen

Respondent

and

Tom Le

Appellant

Counsel:

Shannon McDunnough, for the appellant

J. Sandy Tse, for the respondent

Heard: June 8, 2017

On appeal from the convictions entered by Justice Kenneth L. Campbell of the Superior Court of Justice on April 1, 2014, with reasons reported at 2014 ONSC 2033.

Doherty J.A.:

I

1The appellant, a cocaine dealer, was arrested in possession of a fully-loaded, operable, semi-automatic Ruger pistol, a quantity of cocaine, and considerable cash. He was charged with, and eventually convicted after a trial by judge alone of several firearm and drug-related offences. The trial judge imposed sentences totalling five years. The appellant appeals conviction only.

2The appellant's factual guilt was never in issue. He argued, however, that the police violated his constitutional rights to be free from arbitrary detention and unreasonable search in the events immediately preceding his arrest and the seizure of the gun, cocaine, and cash. The appellant argued that all of the evidence should be excluded under s. 24(2) of the Charter.

3The trial judge found that the police had not violated the appellant's Charter rights and that if there was any Charter violation, the appellant had not made out a case for excluding the evidence seized under s. 24(2).

4On appeal, the appellant advances the Charter arguments rejected at trial.

5I would dismiss the appeal.

II

6The central events occurred in the backyard of the townhouse unit where Leraldo Dixon lived with his mother. Mr. Dixon and four of his friends, one of whom was the appellant, were sitting in the backyard talking when three police officers arrived. Less than a minute later, the appellant bolted from the backyard with the officers in pursuit. He was apprehended a short distance away. At the time of his arrest, he was carrying a loaded handgun, cocaine, and a considerable amount of cash.

7The trial judge heard evidence over several days from the three police officers involved in the relevant events, a private security guard who spoke with the officers, the appellant, and his four friends who were present with him in the backyard. There were some significant differences in the versions of events described by the various witnesses. To make the necessary factual findings, the trial judge had to evaluate the witnesses' credibility. He found that the police officers were credible, the appellant was a liar, and some parts of the evidence of the other four young men were inaccurate. The trial judge gave reasons for his credibility findings, all of which are grounded in the evidence. Having made those assessments, the trial judge moved to his factual findings. As is inevitably the case, those factual findings played a crucial role in the trial judge's evaluation of the appellant's Charter claims.

8This court approaches a trial judge's credibility assessments and findings of fact with deference. It is incumbent upon the appellant to demonstrate that the findings are tainted by some legal error, flow from a material misapprehension of the evidence, or fall outside of the range of reasonableness available on the evidence: see R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 49.

9In his factum, counsel for the appellant does not challenge the trial judge's credibility assessments. He does take issue with two or three specific factual findings. I will not detail those arguments. On my review of the evidence, the appellant's arguments go no further than to suggest another interpretation of certain features of the evidence. Even if that interpretation was available, it does not demonstrate the unreasonableness of the different interpretation made by the trial judge. I approach the appellant's arguments on the basis that the trial judge's credibility assessments and findings of fact stand.

III

10I do not propose to review the evidence at length. The trial judge's reasons are lucid, detailed, and include an accurate and comprehensive review of the evidence. For a thorough review and analysis of the evidence, especially as it relates to the police officers' actions, one should read the trial judge's reasons. For convenience, the trial judge's reasons are reproduced as 'Schedule A' to these reasons. I will summarize the evidence only to the extent necessary to address the grounds of appeal.

11Constable Teatero was on duty on the evening of May 25, 2012. He was at the Atkinson Housing Co-operative, a complex of townhouses located in the west part of Toronto. Constable Teatero was speaking with two security guards who were responsible for overall security at the housing complex, and general crime prevention in the area. Constable Teatero was joined by Constables Reid and O'Toole who were on duty together that night.

12The residents of the Atkinson Housing Co-operative were plagued by a very high level of violent crime, most of which was associated with gangs, guns, and drugs. The officers were aware of this history.

13The officers were looking for two people wanted by the police and known to be involved in violent crimes in the area of the housing complex. The security officers indicated that they had not seen one of the two, but that the other hung around an area of the complex behind the townhouse located at 84 Vanauley Walk. The security guards described that area as a "problem area" associated with drugs and other criminal activities.

14After speaking to the security officers, the police decided to walk through the townhouse complex to the area that the security guards had identified. The three officers walked along a paved footpath that travelled through the complex. The footpath stopped at a walkway that led into the backyard at 84 Vanauley Walk. The backyard was surrounded by a waist-high wooden fence. There was an opening in the fence where the walkway was. There was no gate.

15The officers saw five young men, one of whom was the appellant, sitting in the backyard talking. According to the police, the young men were simply talking and not doing anything wrong. The officers did not recognize any of the young men.

16Constables Teatero and Reid walked through the gateway into the backyard. Neither officer asked permission to enter the backyard or said anything to the young men before entering. Constable Teatero addressed the group cordially, asking, "How are you guys doing?" He asked if any of them lived in the townhouse at 84 Vanauley Walk. On the trial judge's factual findings, the appellant said he did not live in the townhouse and there was no audible response from Mr. Dixon, who lived in the townhouse with his mother. Also, on the trial judge's factual findings, no one objected to the police presence in the backyard.

17Constable Reid then spoke directly to Mr. Dixon who was seated on a couch in the backyard. Mr. Dixon told Constable Reid that he lived in the townhouse with his mother. Mr. Dixon produced identification. On the trial judge's finding, Mr. Dixon did not suggest to the officer that he should not be in the backyard or that he should leave. Constable Teatero spoke with another young man sitting on the couch.

18Constable O'Toole entered the backyard shortly after the other two officers. At one point, he saw one of the men on the couch put his hands behind his back, and he told the man to keep his hands in front of him. Constable O'Toole approached the appellant and a second young man who were standing on the patio of the backyard. The patio was closer to the back door of the townhouse than the couch on which Mr. Dixon was seated. Constable O'Toole asked the person with the appellant for identification. That person produced his identification.

19As Constable O'Toole was holding the young man's identification, he turned to the appellant and asked him for identification. The appellant responded that he did not have any on him. The appellant looked nervous to Constable O'Toole. Constable O'Toole noticed that the appellant had a bag slung over his shoulder sitting on his hip. The appellant appeared to be "blading" his body. Blading is a term used by the police to describe a body movement whereby a person attempts to position himself so that an officer cannot see an object sitting on the person's hip. The police are trained to associate this manoeuver with possession of a firearm. Constable Teatero also noticed the appellant "blading".

20Constable O'Toole became concerned that the appellant might have a weapon. He asked, "What's in the bag?" The appellant immediately fled. Constable O'Toole, quickly joined by the other two officers, gave chase. The three officers had been in the Dixon backyard for less than a minute when the appellant fled.

21Constable O'Toole caught up to the appellant a short distance away and tackled him. An "all-out fight" followed. During the struggle, Constable O'Toole became aware that the appellant had a pistol in his bag and was trying to reach for it. The fight intensified. The other two officers arrived at the struggle and together they subdued the appellant.

22A search at the scene of the arrest and a subsequent search at the police station yielded the loaded handgun, 13 grams of cocaine, and cash.

IV

23The Charter arguments boil down to three:

• the police unlawfully entered the Dixon backyard and in doing so breached the appellant's right under s. 8 of the Charter to be free from unreasonable search;

• the police arbitrarily detained the appellant when they walked into the Dixon backyard and questioned the appellant and the other four persons in the backyard; and

• together or individually, the breaches of ss. 8 and 9 of the Charter warrant the exclusion of all of the evidence seized from the appellant.

A: The Section 8 Argument

24The appellant argues that the police were unlawfully in the Dixon backyard when they spoke with the appellant and that their unlawful entry into, and presence in, the backyard constitutes interference with his reasonable expectation of privacy. The appellant completes the argument with the contention that because the police presence was unlawful, it cannot be said to be a reasonable intrusion upon his reasonable expectation of privacy.

25To succeed on this ground, the appellant must demonstrate, both that the police unlawfully entered the backyard and that their unlawful entry interfered with his reasonable expectation of privacy. The appellant was in the backyard at the invitation of his friend, Mr. Dixon, when the police entered. He contends that his status as an invited guest present on the property gave him a reasonable expectation of privacy in respect of entry onto the property by the police.

(i) Was the police entry lawful?

26The trial judge addressed the lawfulness of the police entry onto the Dixon property at some length (paras. 66-80). He concluded that the police were entitled to enter the backyard and speak to the persons in the backyard under the common law "implied licence" doctrine: see Robson v. Hallett, [1967] 2 All E.R. 407 (C.A.), at 412; R. v. Tricker (1995), 1995 CanLII 1268 (ON CA), 21 O.R. (3d) 575 (C.A.), at 579-81, leave to appeal refused: [1995] S.C.C.A. No. 87; R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8, at paras. 6-14; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at paras. 26-27; R. v. Parr, 2016 BCCA 99, 334 C.C.C. (3d) 131, at paras. 1-3; R. v. Rogers, 2016 SKCA 105, 341 C.C.C. (3d) 502, at paras. 27-54, leave to appeal refused: [2016] S.C.C.A. No. 438.

27The trial judge said, at para. 70:

In the circumstances of the present case, the police officers clearly had a lawful reason to enter the backyard property and speak to the occupier. They were pursuing an investigation of a wanted man who, they had been told, frequented that backyard area and had been seen hanging out there. Further, the police had been told that the 84 Vanauley Walk address was a "problem" in relation to suspected drug trafficking. In fulfilling their professional duties, the police were lawfully entitled to enter this backyard area in an effort to ascertain if any of the young men was an occupier of the residential premises there, and to pursue their investigations in relation to [the wanted man] and potential drug trafficking…

28I have no quarrel with the trial judge's description of the implied licence doctrine and the principles underlying that doctrine. I question, however, whether the doctrine could have application on the facts before the trial judge.

29The implied licence doctrine, like most common law solutions, provides a fact-sensitive answer to a practical problem. The common law has always jealously guarded real property rights, especially as they relate to state intrusions into persons' homes: see R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 14, 22. At the same time, the common law, and later statutory law, impose duties on the police that could, in certain circumstances, require the police to go onto a person's property to speak to that person. The implied licence doctrine is the common law solution to the clash between police duties and the property rights of the individual. Under that doctrine, property rights or, in constitutional terms, the privacy of the owner/occupier, must yield, but only to the extent needed to allow the police, in the execution of their duties, to go onto the property to make contact with the owner or occupant.

30The difficulty I have with the application of the implied licence doctrine in this case, is that the problem, which the doctrine addresses, had not arisen when the officers entered the backyard. There does not appear to have been any need for the police to enter the property to make contact with the occupier. As counsel for the appellant argued, the police could very easily have communicated with the five young men in the backyard while standing on the other side of the short fence. In doing so, the police would, in all likelihood, have been able to identify the occupant of the townhouse and requested permission to enter the property. Inquiries from the other side of the fence of the young men sitting in the backyard was an obvious first step toward identifying the occupant of the townhouse. I am inclined to the view that it was a prerequisite to any lawful uninvited entry onto the property for the purpose of communicating with the occupant.

31I need not come to any firm conclusion on the question of whether the police unlawfully entered the property. I will assume that they did for the purposes of considering the s. 8 claim.

(ii) Assuming the police were unlawfully in the backyard, did they breach the appellant's s. 8 rights?

32Section 8 of the Charter protects an individual's reasonable expectation of privacy from unreasonable state intrusion: Tessling, at para. 18; R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at para. 37. State conduct that infringes on an individual's reasonable expectation of privacy will be treated as a search for the purposes of s. 8: R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 18; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at paras. 16-17.

33In considering a reasonable expectation of privacy claim, the court begins by identifying the subject matter of the claim. It then asks first, did the claimant have a subjective expectation of privacy in the subject matter, and second, if so, was that expectation objectively reasonable? The second of these two inquiries is almost inevitably the determinative consideration: Spencer, at para. 18; Tessling, at para. 32.

34It is unclear to me whether there was any evidence accepted by the trial judge that would warrant the conclusion that the appellant had a subjective expectation of privacy in respect of the backyard. I will, however, focus on the objective component of the inquiry. That exercise begins by identifying the subject matter of the claim.

35A reasonable expectation of privacy does not exist in the air or in the abstract. One has or does not have a reasonable expectation of privacy in respect of a specified subject matter in specified circumstances: Spencer, at paras. 22-33; R. v. Marakah, 2017 SCC 59, 142 W.C.B. (2d) 490, at paras. 14-15.

36The subject matter of a privacy claim may be the person of the claimant, a place, information, or a combination of the three: Tessling, at paras. 20-23; R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321, at para. 60. The factors that will be relevant to the determination of whether a reasonable expectation of privacy exists and the weight to be assigned to any particular factor will depend in large measure on the subject matter of the privacy claim. For example, if the privacy claim is informational, the potential capacity of the information to reveal core biographical data relating to the claimant will be crucial in assessing the privacy claim. However, if the subject matter of the privacy claim is a place, control over that place will play a central role in assessing the validity of a reasonable expectation of privacy claim. If the privacy claim has both a territorial and informational component, then all of the relevant factors will be considered: see Tessling, at para. 22; Spencer, at paras. 34-40; Marakah, at paras. 38-44; R. v. Jones, 2017 SCC 60, 142 W.C.B. (2d) 343, at paras. 39-45.

37The appellant advances an exclusively territorial privacy claim. He maintains that the moment the police entered the Dixon backyard they violated his s. 8 right. The appellant does not assert a privacy claim that depends on what the appellant was doing or what he was saying while in the Dixon backyard. There is no informational component to this privacy claim.

38The subject matter of the appellant's privacy claim, that is the police entry into the Dixon backyard, renders cases like R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36, unhelpful in resolving the appellant's claim. In Wong, the police, without any judicial authorization, installed a video camera in a hotel room and videotaped all of the activities of anyone who happened to be in the room.

39The issue for the Court was not the reasonable expectation of privacy in respect of the physical space occupied by the hotel room, but the reasonable expectation of privacy in respect of what people in the room were doing and saying to each other. The Court had to decide whether a person in a hotel room, as a renter or a guest, had a reasonable expectation that the state would not surreptitiously record his every move and every word. LaForest J., for the majority, said at p. 51:

It is safe to presume that a multitude of functions open to invited persons are held every week in hotel rooms across the country. These meetings will attract persons who share a common interest but who will often be strangers to each other. Clearly, persons who attend such meetings cannot expect their presence to go unnoticed by those in attendance. But, by the same token, it is no part of the reasonable expectation of those who hold or attend such gatherings that as a price of doing so they must tacitly consent to allowing agents of the state unfettered discretion to make a permanent electronic recording of the proceedings. [Emphasis added.]

40Wong would have relevance to this case, had the police purported to surreptitiously record or otherwise memorialize what the appellant was doing or saying when he was in the Dixon backyard. The appellant's status as an invited guest in the backyard may be an important consideration in determining whether he had a reasonable expectation of privacy as it related to what he said and did while in the backyard.

41The trial judge (at para. 82) correctly identified R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, as the pertinent authority. Edwards dealt with a territorial privacy claim. The trial judge referred to the criteria listed in Edwards as helpful in assessing a privacy claim in respect of property. He correctly noted that apart from the appellant's physical presence in the backyard when the police entered, none of the criteria identified in Edwards existed in this case. The appellant had no possession or control of any kind over the backyard. There was no evidence of the appellant's historical use of, or connection with, the property. The appellant had no means by which to regulate access to the property. He was, as the trial judge indicated, "a mere transient guest in the Dixon backyard" (para. 81).

42The weakness of the appellant's privacy claim in respect of the Dixon backyard is best demonstrated by comparing it to the claim unsuccessfully advanced in Edwards.

43In Edwards, the apartment, which was the subject of the search, was rented by the accused's girlfriend. They had been dating for three years. The accused stayed at the apartment from time to time and had left there immediately before his arrest shortly prior to the search. The accused kept personal belongings in the apartment and he had a key to the apartment.

44This court split on whether the accused had a reasonable expectation of privacy in relation to his girlfriend's apartment. The majority held that he did not: see R. v. Edwards (1994), 1994 CanLII 1461 (ON CA), 19 O.R. (3d) 239 (C.A.). In the Supreme Court of Canada, Cory J., speaking for the majority, held that the accused had no reasonable expectation of privacy. Adopting the language of McKinlay J.A. in this court, Cory J., at para. 47, referred to the accused as "no more than an especially privileged guest". Cory J. observed that the accused had no authority to regulate access to the apartment, no ability to exclude others from the apartment, and had made no contribution to the maintenance of the apartment. All of those observations could be made of the appellant's connection to the Dixon backyard.

45Edwards identifies control as a key factor in the assessment of a territorial privacy claim. The Supreme Court recently reaffirmed that holding in Jones, at para. 40:

The control and access factors have also been particularly salient in territorial privacy cases. As suggested above, land owners and tenants have a practical ability to exclude visitors from their territory and maintain a choice to be left alone by controlling access to their domicile… [Emphasis added.]

46Nor can the result in Edwards be explained by the purported consent of the girlfriend to the search of her apartment. The police used lies and tricks to obtain that consent. Cory J. expressly held that in concluding that the accused had no reasonable expectation of privacy in the apartment, he found it unnecessary to decide whether the girlfriend had consented to the search: Edwards, at paras. 6, 51.

47Edwards has been applied many times. For example, in R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341, the court considered whether a passenger in a motor vehicle had a reasonable expectation of privacy in respect of the inside of the motor vehicle. After acknowledging that the claim had to be evaluated on the totality of the circumstances, Cory J., in rejecting the privacy claim, said, at para. 22:

In this case, although Lawrence [the passenger] was present at the time of the search, there are few other factors which would suggest she had an expectation of privacy in the vehicle. First, her connection to the vehicle was extremely tenuous. She did not own the vehicle, she was merely a passenger in a car driven by a friend of the owner of the vehicle. There was no evidence that she had any control over the vehicle, nor that she used it in the past or had any relationship with the owner or driver which would establish some special access to or privilege in regard to the vehicle. Lawrence did not demonstrate any ability to regulate access to the vehicle. [Emphasis added.]

48Just as with the passenger in Belnavis, there was no evidence that the appellant had any control over the property, had used it in the past, had any relationship with the owner or occupant that would establish some special access, or had any ability to regulate access to the property.

49Edwards and Belnavis, and the bevy of cases that have applied them, emphasize that the reasonable expectation of privacy inquiry is fact-specific and must also reflect a normative evaluation of societal expectations and aspirations as they relate to personal privacy: see Orlandis-Habsburgo, at paras. 41-43. The assessment of whether a person has a reasonable expectation of privacy is not limited by, or dependent upon, property law concepts even if the subject matter of the claim is real property. Those concepts can, however, inform the inquiry into issues like control and access that are central to the reasonable expectation of privacy inquiry when real property is the subject matter of that inquiry: see Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at 158; R. v. Pugliese (1992), 1992 CanLII 2781 (ON CA), 71 C.C.C. (3d) 295 (Ont. C.A.), at 302-303; R. v. Felger, 2014 BCCA 34, 306 C.C.C. (3d) 143, at para. 47, leave to appeal refused: [2014] S.C.C.A. No. 120.

50My review of the controlling authorities, especially Edwards, leads me to conclude that the appellant has no claim to a reasonable expectation of privacy in the Dixon backyard. On the facts of Edwards, the accused's privacy claim in his girlfriend's apartment was far superior to the appellant's claim in respect of the Dixon backyard and yet it failed. Similarly, the passenger in Belnavis, who could be described as an invited guest in the car, had at least as strong a privacy claim as does the appellant. Her claim failed.

51Apart from the controlling case law, a normative assessment of the appellant's privacy claim leads to the same conclusion.

52Personal privacy equates with a person's right to require that the state leave him or her alone, absent reasonable grounds to justify interfering with that person's privacy. The right to be left alone, when exercised in relation to real property, must, in my view, include some ability, either as a matter of law, or in the circumstances as they existed, to control who can access and/or stay on the property. One cannot realistically talk about a reasonable expectation of privacy in respect of real property without talking about an ability to control, in some way, those who can enter upon, or remain on, the property.

53We were referred to no authority to suggest that as an invited guest, the appellant had any legal power to prevent the police or anyone else from coming onto the property or remaining on the property. There may well be circumstances in which an invited guest has the de facto power to control who can access or stay on a property. In those situations, the visitor may well have a reasonable expectation of privacy in the property. There is no such evidence in this case.

54The only factor offering any support for the appellant's privacy claim in the Dixon backyard is his physical presence in the backyard. Presence is relevant to a reasonable expectation of privacy inquiry. However, its relevance, when the claim is purely territorial, lies in its potential, depending on the circumstances, to support a finding that the individual claiming the privacy interest has some kind of control over who could access or remain on the property. Physical presence may be evidence of control. However, on the facts of this case, the appellant's presence in the backyard offers no support for finding that he had any element of control over the property.

55I would test the appellant's claim to a reasonable expectation of privacy this way. Assume that the appellant was the only person in the backyard. Mr. Dixon was in the house. The police arrive with a legitimate reason to speak to the occupant of the house. The appellant tells the police that he is an invited guest at the Dixon home and he orders the police to remain off the property. The police ignore the appellant's order, enter the property, go to the door and knock, intending to speak to the occupant.

56Applying the implied licence doctrine, the police were lawfully entitled to go onto the property in the hypothetical described above and knock on the door in an effort to speak with the occupant. The wishes of an invited guest could not detract from the authority of the police to enter the property to speak to the occupant.

57If I am correct in the hypothetical set out above, the invited guest's inability to legally prevent the police from accessing the property to speak to the occupant is irreconcilable with a claim that the invited guest has an objective reasonable expectation of privacy in respect of access to the property.

58I agree with the trial judge that the police entry into the Dixon backyard did not breach the appellant's right under s. 8 of the Charter.

B: Section 9 of the Charter

59The appellant submits he was arbitrarily detained from the moment the police entered the backyard. He does not suggest that he was physically detained, but argues that the entirety of the circumstances warranted a finding of psychological detention as described in cases like R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 25, and R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44.

60The trial judge rejected this submission. He concluded that the appellant was not detained when the officers entered onto the property, but was detained when Constable O'Toole asked him what he had in the bag slung over his shoulder (para. 88). At that point, the interaction between the police and the appellant changed. The appellant became the target of Constable O'Toole's focussed investigation. The appellant immediately fled the scene.

61There can be no quarrel with the trial judge's description of the relevant legal principles governing detention under s. 9 of the Charter (see para. 85). In applying those principles to the case before him, the trial judge said, at paras. 89-90:

In reaching this conclusion I have tried to take a realistic appraisal of the entire transaction and, in so doing, have considered: (1) how the conduct of the police might reasonably have been perceived by the accused, especially given that one of the investigations they were pursuing concerned activities and/or individuals potentially in the Dixon backyard; (2) the nature and duration of the police interaction with the accused and his friends, including how the police addressed the accused and the other young men in the Dixon backyard, and telling one of the other young men to keep his hands in front of his body; and (3) the young age and visible minority status of the accused and his friends, and the comparatively slight physical stature of the accused.

The accused and the police officers describe the key events at this critical juncture differently, but I am satisfied that, even on the testimony of the police officers, which I accept, the accused was detained at that point in time, namely, when Cst. O'Toole asked the accused about the contents of his bag. The police were not able to effect a physical detention of the accused at that point in time, however, because as soon as the inquiry was made by Cst. O'Toole, the accused fled from the backyard. But, in my opinion, it was at that point that, as a matter of law, the accused was detained.

62I see no error in the trial judge's analysis. Nor can his findings be characterized as unreasonable. In assessing the reasonableness of the trial judge's findings, the appellant's own evidence is significant. The appellant testified that he believed he was free to leave the backyard after the police had entered and began questioning the young men. In other words, he did not think he was detained. The trial judge accurately summarized the appellant's evidence, at para. 87:

More particularly, the accused explained that he went to go inside the townhouse through the back door because he did not think he needed to remain in the backyard, as no police officer was talking directly to him. According to the accused, it was only when Cst. O'Toole physically prevented him from going into the townhouse that "things changed" and he did not think he could leave.

63The test for psychological detention is an objective one: see Grant, at paras. 31, 44. The court must determine whether a reasonable person, in the appellant's circumstances, would conclude that he or she was not free to go and had to comply with the police direction. Although the test is objective, the appellant's perception that he was in fact free to leave and was not being detained by the police when they entered the backyard must be an important consideration in determining how the encounter between the officer and the appellant would be reasonably perceived. The appellant's perception is particularly significant as he is no stranger to street-level encounters with the police.

64The appellant's perception of the ongoing dynamic between himself and Constable O'Toole could reasonably be taken by the trial judge as a strong indication of how that dynamic would be reasonably perceived. More to the point, I cannot characterize as unreasonable, the trial judge's conclusion as to the timing of the detention when that conclusion reflects the appellant's own testimony about his perception of when his detention began.

65Having found that the appellant was detained when Constable O'Toole asked him what was in the bag, the trial judge went on, at paras. 91-93, to determine that the appellant's detention was lawful. He found that Constable O'Toole had reasonable grounds to suspect that the appellant was armed. That reasonable suspicion justified an investigative detention: see Mann, at para. 45; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 35. The appellant fled before Constable O'Toole could physically detain him.

66I see no basis upon which to interfere with the trial judge's factual findings underlying his conclusion that Constable O'Toole had reasonable grounds to suspect that the appellant was armed. This court must make its own assessment of whether those facts meet the "reasonable suspicion" standard: MacKenzie, at para. 54. I think they do. The appellant's movements simultaneously aroused the suspicions of two police officers who, based on their training and experience, connected the appellant's movements to the possession of a weapon.

67As indicated in MacKenzie, at para. 63:

[I]n assessing whether a case for reasonable suspicion has been made out, the analysis of objective reasonableness should be conducted through the lens of a reasonable person "standing in the shoes of the police officer".

68This test described takes into account officer training and experience: MacKenzie, at paras. 60-65.

69I am satisfied that, on the facts as found by the trial judge, there was a basis upon which Constable O'Toole could reasonably suspect that the appellant was armed. That suspicion justified an investigative detention.

70In concluding that the appellant's detention was lawful, the trial judge proceeded on the basis that the police were lawfully in the backyard when the appellant's detention occurred. As outlined above, there is reason to doubt the correctness of that conclusion. Assuming the officers were trespassers, does that change the lawfulness of the appellant's detention? I do not think so.

71First of all, the determination of the point in time at which the police detained the appellant had no connection to the status of the police officers on the property. Whatever their status, on the trial judge's findings, a reasonable person would not have considered himself detained until Constable O'Toole queried the contents of the bag.

72Turning from the timing of the detention to its lawfulness, I do not think that the status of the officers as trespassers would affect the lawfulness of the appellant's detention. Section 9 is intended to protect individuals from unlawful state intrusion upon the liberty of the individual. On the trial judge's finding, there was no intrusion upon the appellant's liberty until Constable O'Toole asked him what was in the bag. Even if the police were trespassers on the Dixon property, that trespass had no impact on any facet of the appellant's liberty. His liberty was limited only after Constable O'Toole had reasonable grounds to suspect that the appellant was armed and committing a criminal offence.

73One might well come to a different conclusion as to the lawfulness and, hence, arbitrariness of the detention if the police had unlawfully entered the property for the purposes of detaining the appellant and the other young men in the backyard. The situation may also have been different if the appellant could demonstrate that the improper entry into the backyard by the police somehow interfered with his personal rights or individual liberty.

74On the trial judge's findings, the police did not enter the property intending to detain anyone. Nor did their entry in any way infringe upon any of the appellant's rights.

75In my view, in the circumstances of this case, the lawfulness of the police entry into the backyard had no impact on either the determination of the point in time at which the appellant was detained, or the arbitrariness of that detention. There was no breach of the appellant's s. 9 right, even if the police were trespassing.

C: Section 24(2) of the Charter

76Assuming the police improperly entered the Dixon backyard and that this somehow resulted in a breach of the appellant's rights under ss. 8 or 9 of the Charter, I agree with the trial judge's s. 24(2) analysis. As the trial judge observes at para. 106, any breach was "technical, inadvertent, and made in good faith". The impact of any breach on the appellant's Charter-protected liberty interest was momentary and minimal. The evidence was highly reliable and the crimes very serious.

77In the end, s. 24(2) requires a weighing and balancing of sometimes competing interests. The trial judge engaged in that exercise and I see no reason to come to a different conclusion.

"Doherty J.A."

"I agree David M. Brown J.A."

Lauwers J.A. (Dissenting):

78I have had the benefit of reading the reasons of my colleague, Doherty J.A. I respectfully disagree with his analysis and his disposition, for the reasons that follow. I would exclude the evidence that was unlawfully obtained, allow the appeal, quash the appellant's convictions and enter acquittals on all counts.

A. Overview

79The following propositions, which I will develop further, explain my reasoning. First, although my colleague is prepared to assume that the police entry into the fenced backyard was illegal, he does not allow that assumption to affect his subsequent reasoning. This is where I part company with him. The police entry was an unlawful trespass and this tainted everything that followed. The police did not have the occupant's consent or an implied licence to enter the backyard. It is worth noting that had Leraldo Dixon, the occupant, expressly refused the police permission to enter, they would have had no grounds for a search warrant.

80Second, the appellant had a reasonable expectation of privacy in the backyard comparable to that of the occupant whose guest he was. In my view, the unlawful police entry on a pleasant spring evening was the equivalent of entering a home through a door that happened to be open without first knocking. The appellant has standing to make the argument that the entry breached his s. 8 Charter right. Any other approach would undermine the purposive application of the section.

81Third, from the unlawful entry flow the arbitrary detention, the flight, the arrest, the search and the finding of the evidence - the gun, the drugs and the money. The intimidating and oppressive police entry operated to arbitrarily detain those present in the backyard including the appellant.

82Fourth, the kind of casually intimidating and oppressive police entry into the backyard must be condemned by the court. The gun, the drugs and the money should have been excluded from the trial evidence under s. 24 of the Charter.

83Nothing in my reasons is intended to discourage ordinary police practices like the proverbial constable on patrol, or the beat cop patrolling the neighbourhood. In particular, until the officers entered the backyard without seeking or getting permission, I would have found nothing in what they did to be questionable. But they crossed a bright and important line when they entered the backyard without permission or a warrant.

84I will describe the facts in more detail before returning to explain these propositions.

B. Facts

85On the evening of May 25, 2012 the 20-year-old appellant was socializing with four friends in the backyard of a townhouse in a housing co-operative in Toronto. One of his friends, 17-year-old Leraldo Dixon, whose mother rented the townhouse, had invited the appellant and the other young men to the backyard. The appellant is Asian and his friends were Black.

86The backyard was contiguous to a public walkway from which it was separated by a low wooden fence. There was an opening in the fence (which once held a gate now long gone) that served as an entryway into the backyard. There was conflicting evidence, on which nothing turns, about whether or not some cushions were propped up in the opening to form a make-shift gate.

87Three members of the Toronto Police Service were on duty in the area that evening. One of them, Cst. Teatero, broadcasted on the police radio that he was conducting an investigation in the area of the housing co-operative. Two other officers, Cst. Reid and Cst. O'Toole, decided to assist Cst. Teatero because he was working on his own. When they arrived, they saw Cst. Teatero talking to two security guards. He was asking the guards whether they knew the location of an individual wanted by police.

88The security guards told the police that the wanted individual did not hang out in the housing co-operative, but mentioned another person who was of interest to the police. The police said that the security guard informed them that this other person hung out in the area behind Mr. Dixon's townhouse. There was contradictory evidence about whether the security guards told the police that the townhouse was "problem address" and that they suspected drug trafficking occurred in the backyard.

89The police decided to do a "walk-through" of the common area of the co-operative to the edge of Mr. Dixon's backyard. They arrived at the backyard opening and saw the five young men in the backyard. At trial, the police acknowledged that the men appeared to be doing nothing wrong and there was no indication of criminal activity. They had no reason to believe that anyone there was trespassing. The men were just talking.

90Without asking for permission, two of the officers, Cst. Teatero and Cst. Reid, strode into the backyard. Cst. O'Toole stood outside the entry.

91Once inside the backyard, Cst. Teatero immediately started questioning the young men in the backyard, asking who they were and if they lived there. Cst. Reid did the same and testified at trial that the purpose of asking those questions was to investigate whether they were trespassing under the Trespass to Property Act, R.S.O. 1990, c. T.21. However, there was no trespass complaint to which the police were responding. Cst. O'Toole testified that he believed the officers were required to enter onto private property in order to continue the investigation as the men were not being cooperative or answering the officers' questions.

92The officers demanded identification from the young men. While he was taking an I.D. card from one of the other young men, Cst. O'Toole testified that he saw the appellant "blading himself", shielding a shoulder bag that he was carrying away from the officers. This is a sign that he might be carrying a weapon. Cst. O'Toole asked him whether he had anything on him, which the appellant denied. Cst. O'Toole then asked what the appellant had in the bag, and the appellant immediately bolted, running away from the police. The appellant testified that he ran because he did not think he could walk away, that the officer was going to take his bag, and that he did not think the officer was right in trying to search him.

93The officers chased the appellant and tackled him a short distance away. They found a loaded handgun inside the shoulder bag and 13 grams of crack cocaine as well as some currency on the appellant's person.

94On the facts, I observe that the police officers did not have a warrant. They did not ask for permission to enter the backyard before doing so, nor did they intend to proceed to the door and knock in order to speak to the occupant. The officers were not in active pursuit of a live investigation or a suspect. They were not responding to an emergent situation or to a complaint. The men in the backyard were doing nothing to provoke a police entry, such as engaging in obviously illegal activity or causing any form of disturbance. None of them were suspects. As noted, had the police been refused entry, they could not have obtained a warrant.

C. Analysis

95I now turn to the propositions I set out in the overview.

(1) The Police Officers Were Trespassing

(a) The Governing Principles

96The cases treat police entrances onto private property, of the sort undertaken here, under the rubric of a search within the meaning of s. 8 of the Charter. See R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8, [1996] S.C.J. No. 1.

97The Canadian and English common law have long recognized that the occupier of a dwelling gives an implied licence to any member of the public, including police officers, on legitimate business to come to the door of the dwelling and knock: R. v. Tricker (1995), 1995 CanLII 1268 (ON CA), 21 O.R. (3d) 575 (C.A.), leave to appeal to S.C.C. refused (1996), 103 C.C.C. (3d) vi (note); Robson v. Hallett, [1967] 2 Q.B. 939 (D.C.); R. v. Clarke (2005), 2005 CanLII 15452 (ON CA), 196 C.C.C. (3d) 426 (Ont. C.A.), leave to appeal to S.C.C. refused (2005), 214 O.A.C. 398 (note). The implied licence can be revoked by, for example, putting up signs prohibiting entry or by locking an entry gate: Robson, at pp. 953-54.

98However, even in the absence of such an impediment to entry, the implied licence doctrine is not without limits. In Evans, Sopinka J., speaking for a plurality of the Supreme Court of Canada, recognized that an implied licence does not mean that all persons are welcome to approach a home regardless of the purpose of their visit. When members of the public (including police) exceed the terms of the implied licence, they approach the property as intruders: Evans, at paras. 15-16.

99As Sharpe J.A. observed in R. v. Mulligan, 2000 CanLII 5625 (ON CA), [2000] O.J. No. 59, at para. 27:

As with all police investigative powers, this licence must be strictly curtailed to avoid the risk of abuse. The officer must have a bona fide belief that gives rise to a reasonable suspicion of criminal activity being perpetrated against the owner or occupant or the property. The police officer must be able to demonstrate an objective basis in fact that gives rise to his suspicion. To borrow the language of Doherty J.A. in R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 at 500-501, discussing the common law power to detain a suspect for questioning, there must be some "articulable cause" above the level of a mere "hunch", "a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation."

100What disturbed Sopinka J. in Evans was that the police were using the implied licence doctrine for an ulterior purpose. In that case, the police knocked on the door hoping to get a "whiff" of marijuana. Because their approach was not legitimately intended as an attempt to lawfully communicate with the occupants of the home, it was unlawful.

101In the context of a police approach to a home for the purpose of gathering evidence against the occupant, Sopinka J. reached the following conclusions, at paras. 16 and 18:

Clearly, occupiers of a dwelling cannot be presumed to invite the police (or anyone else) to approach their home for the purpose of substantiating a criminal charge against them. Any "waiver" of privacy rights that can be implied through the "invitation to knock" simply fails to extend that far. As a result, where the agents of the state approach a dwelling with the intention of gathering evidence against the occupant, the police have exceeded any authority that is implied by the invitation to knock.

[ W]here the police, as here, purport to rely on the invitation to knock and approach a dwelling for the purpose, inter alia, of securing evidence against the occupant, they have exceeded the bounds of any implied invitation and are engaging in a search of the occupant's home. Since the implied invitation is for a specific purpose, the invitee's purpose is all-important in determining whether his or her activity is authorized by the invitation. [Emphasis added.]

See also R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at paras. 26-27; R. v. Lotozky (2006), 2006 CanLII 21041 (ON CA), 81 O.R. (3d) 335 (C.A.), at paras. 30-31; Mulligan.

102Justice Sopinka explained the policy reasons for this conclusion, at para. 20:

In my view, there are sound policy reasons for holding that the intention of the police in approaching an individual's dwelling is relevant in determining whether or not the activity in question is a "search" within the meaning of s. 8. If the position of my colleague is accepted and intention is not a relevant factor, the police would then be authorized to rely on the "implied licence to knock" for the purpose of randomly checking homes for evidence of criminal activity. The police could enter a neighbourhood with a high incidence of crime and conduct surprise "spot-checks" of the private homes of unsuspecting citizens, surreptitiously relying on the implied licence to approach the door and knock. Clearly, this Orwellian vision of police authority is beyond the pale of any "implied invitation". As a result, I would hold that in cases such as this one, where evidence clearly establishes that the police have specifically adverted to the possibility of securing evidence against the accused through "knocking on the door", the police have exceeded the authority conferred by the implied licence to knock.

103The respondent contends, rightly in my view, that the expansive language used in Evans should not be read as a general prohibition against police approaching a dwelling in order to question its occupants for the purposes of furthering a lawful investigation. In support of this proposition, the respondent points to R. v. Bushman, 1968 CanLII 802 (BC CA), [1968] 4 C.C.C. 17 (B.C.C.A.), and Tricker. Both were cases where the police approached a residence to seek to question its occupants. Both were cited by Sopinka J. in Evans.

104I do not believe the cases proffered by the Crown about whether police can enter a property to confront a drunk driving suspect have any relevance by analogy. An example is Lotozky.

105I will now apply Sopinka J.'s reasoning in Evans to this case.

(b) The Principles Applied

106The trial judge found that the police entry into the backyard was lawfully justified by operation of the implied licence doctrine. He summarized his conclusions, at para. 70:

In the circumstances of the present case, the police officers clearly had a lawful reason to enter the backyard property and speak to the occupier. They were pursuing an investigation of a wanted man who, they had been told, frequented that backyard area and had been seen hanging out there. Further, the police had been told that the … address was a "problem" in relation to suspected drug trafficking. In fulfilling their professional duties, the police were lawfully entitled to enter this backyard area in an effort to ascertain if any of the young men was an occupier of the residential premises there, and to pursue their investigations in relation to Mr. Jackson and potential drug trafficking. There was no signage in the area that suggested the police were prohibited from entering the backyard, and no occupier of the premises ever expressly revoked their implied licence to enter the backyard area. In short, the police officers were never trespassers in the backyard area of this address. They entered lawfully pursuant to the implied licence doctrine, and remained there lawfully as they were never asked to leave by an occupier of the dwelling.

107I disagree. In my view, the police entry was no better than a speculative criminal investigation, or a "fishing expedition." This is the kind of police conduct Sopinka J. deplored in Evans, at para. 20. There is not even a scintilla of a "hunch", as Doherty J.A. noted in Simpson, at para. 61.

108I would find that the police entry into the backyard of the townhouse exceeded the bounds of the implied licence doctrine and was, as a result, unlawful.

109There are several reasons for this conclusion. First, I read Evans as precluding reliance on the implied licence doctrine where the police approach a home without a bona fide intention to communicate with its occupants about an investigation. Police cannot use the implied licence doctrine to embark on a "fishing expedition". The police officers did not approach the front door, the back entry into the backyard, or the back door of the townhouse in order to communicate with the occupants. They walked into the backyard of the private residence without seeking or obtaining permission of an occupant and immediately began questioning the persons they found there. The police conduct here was not consistent with the purpose of the implied licence doctrine.

110Second, the police did not intend to speak to the property's occupant, but to conduct a random investigation of the backyard's occupants, whose identity was unknown to them, who were not specifically identified as suspects in any crimes, and who were not engaged in criminal conduct. The trial judge's conclusion that the police lawfully entered the backyard to determine the occupants' identities or if they were trespassing, at para. 70, is unreasonable. At most, the police had information that a wanted man had been seen around the premises in the past and that the backyard was a "problem" in relation to suspected drug trafficking. Cst. Reid testified that the purpose was to investigate trespassing, but there was no trespassing complaint, and no indication to the officers that any of the young men might be trespassing. Even if it was accepted that the officers had a bona fide belief, they did not have "an objective basis in fact" that any criminal activity was being perpetrated: Mulligan, at para. 27. As soon as the police arrived at the backyard, they immediately started investigating the identity of the backyard's occupants. In acting in this manner, the police exceeded their licence to enter private property "for the purpose of dealing with a suspected crime": Mulligan, at para. 26.

111Third, although a visitor to a property can reasonably attempt to make contact with an occupant by means other than the front door as an incident of the implied licence doctrine, that logic does not apply here. Robson acknowledges that a visitor might approach the back door of a residence through the garden. The doctrine authorizes members of the public (including police), in the words of Diplock L.J., "to proceed from the gate to the front door or the back door, and to inquire whether he may be admitted and to conduct his lawful business": Robson, at p. 954. I have noted that the officers did not intend to approach the door, so Robson does not apply. Moreover, if an occupant appears to be present in the backyard, then the logical underpinnings of the implied licence doctrine disappear. If the police can freely communicate with the occupant of a property without entering onto it, as was the case here, then the implied licence doctrine has no application since the communication can be accomplished without the entry. Entry onto the property is simply not necessary for the police to conduct their "lawful business".

112Fourth, I draw no substantial distinction between the backyard area and the front hall of a house. Most people would be utterly shocked and appalled by the sudden appearance of police officers in their backyard or the front hall of the house in the absence of emergent circumstances. It is not unusual, on a pleasant spring evening, to find an occupant lounging with guests in the backyard or in a house in which the front door has been left ajar to catch the breeze. In these circumstances, the fact that private space may be publicly visible does not reduce an occupant's reasonable expectation of privacy.

113I am of the view that the police entry in this case was similar to the unacceptable police conduct in Evans, and not to the conduct in Bushman or Tricker. The implied licence doctrine had no application here. The police unlawfully entered the backyard as trespassers.

114The trial judge's erroneous finding that the implied licence doctrine permitted the police entry underpinned his Charter rulings. It is therefore necessary to consider several Charter issues afresh on appeal. Before doing so I must consider the appellant's standing to challenge the misconduct of police.

(2) The Appellant has Standing to Challenge the Misconduct of Police

115The complaint about the unlawful police entry into the backyard was framed at trial as a breach of s. 8 of the Charter. However, based on R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, the trial judge concluded, at para. 82, that: "the accused has no standing to advance a claim under s. 8 of the Charter on the basis of any alleged trespass to the Dixon backyard."

(a) The Governing Principles

116In any s. 8 Charter challenge to police entry, there are two distinct questions that must be answered. First, the court must determine that the accused had a reasonable expectation of privacy in the totality of the circumstances. If not, the accused does not have standing to raise the challenge. The second question is whether the alleged search was an unreasonable intrusion on that privacy. This flows from Edwards, at para. 45, where Cory J. summarized the law, following Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 158-59, where the Supreme Court of Canada recognized that privacy, as a constitutional concept, should be distanced from privacy interests defined by ownership or proprietary interests.

117In Edwards, Cory J. noted, at para. 45, that s. 8 "protects people and not places". This no longer seems to be a complete statement of the law, as the Supreme Court and lower courts have continued to wrestle with privacy as "a protean concept", which now includes "personal privacy, territorial privacy and informational privacy": R. v. Tessling, 2004 SCC 67 (CanLII), [2004] 3 S.C.R. 432, at paras. 20, 25.

118It is well recognized that individuals enjoy a strong reasonable expectation of privacy in their homes: MacDonald, at para. 26; R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, at para. 19; R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13. However, this strong expectation of privacy has not generally been held to extend to guests who are invited into the private residences of other people. This is a consequence of both the application of the factors articulated by Cory J. in Edwards, and the result, in which Mr. Edwards was found not to have had a reasonable expectation of privacy even as a "privileged guest" in his girlfriend's apartment.

119However, the jurisprudence has recognized that individuals do have reasonable expectations of privacy even in respect of the property they occupy but do not own. Some examples follow. In R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341, the driver of a vehicle she did not own was found to have a reasonable expectation of privacy in the vehicle, though the passenger of the same vehicle did not. In that case, Cory J. noted that "there may well be other situations in which a passenger could establish a reasonable expectation of privacy in a vehicle". He added that in many cases, depending on the circumstances, there would be little difference in the expectation of privacy of the different occupants of a vehicle, at para. 23. In R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36, the accused was found to have a reasonable expectation of privacy in a hotel room he occupied. In Feeney, the accused had a reasonable expectation of privacy in a trailer he resided in but did not own (at para. 23). Further, there is generally an expectation of privacy in an automobile on a public roadway, albeit diminished: R. v. Harflett, 2016 ONCA 248, 336 C.C.C. (3d) 102, at para. 47.

120The "protean concept" is evolving as circumstances raise new perspectives.

(b) The Principles Applied

121As noted, based on Edwards, the trial judge found, at para. 82, that the accused had no standing to advance a claim under s. 8 of the Charter "on the basis of any alleged trespass to the Dixon backyard." I disagree.

122In my view, the Supreme Court's decision in Edwards does not justify the denial of standing to the appellant to challenge the lawfulness of the police entry onto the property where he was present as a guest, for two reasons. First, there is a critical distinction to be noted. Mr. Edward's girlfriend was the occupant who was entitled to give the police permission to enter and search the apartment. The appellant was not present when the police were given permission by the occupant, and they found the appellant's drug stash. The Supreme Court noted that Mr. Edwards was no more than a "privileged guest" who did not have a reasonable expectation of privacy in his girlfriend's residence.

123By parity of reasoning, had the police in this case sought and obtained the occupant's permission to enter the backyard, the appellant would have had no complaint about the police entry, but that did not happen. The same logic applies to render unpersuasive my colleague's hypothetical about the appellant's lack of control over the premises.

124The second reason Edwards does not decide the issue is in the application of the Edwards factors. Justice Cory listed them at para. 45 of Edwards, for courts to consider in assessing "the totality of the circumstances." These include the accused's "presence at the time of the search"; his degree of "possession or control of the property or place searched"; the "ownership of the property or place"; the "historical use of the property or item"; "the ability to regulate access, including the right to admit or exclude others from the place". Justice Cory held that the accused was obliged to show both "the existence of a subjective expectation of privacy" and "the objective reasonableness of the expectation." It is worth noting that the assessment is not limited to these factors.

125The trial judge considered these factors, at para. 82:

While the accused certainly was present in the backyard at the time of the police entry, and claimed to have a subjective expectation of privacy with respect to the Dixon backyard equal to the privacy he expected in his own backyard, in my view there was no objective reasonableness in that claimed expectation. Moreover, none of the remaining Edwards criteria are met in the present case, in that: (1) the accused did not have possession or control of the backyard property; (2) the accused had no ownership of the backyard property; (3) the accused established no historical use of the backyard property; and (4) the accused had no ability to regulate access to the backyard property by admitting or excluding others.

126In my view, the trial judge's application of the Edwards factors was not reasonable in significant measure because it was not purposive.

127The accused's presence at the time looms large in the contextual reasonable expectation of privacy analysis required in this case. The remainder of the Edwards factors, as my colleague points out, do not arise in these circumstances or in circumstances when the accused's status is as a guest. (I note in passing that in R. v. Marakah, 2017 SCC 59, at para. 38, the majority noted that "control is not an absolute indicator of a reasonable expectation of privacy, nor is lack of control fatal to a privacy interest," albeit in relation to text messages.) I am of the view that the appellant's invited presence alone is sufficient to give rise to a reasonable expectation of privacy. The result might very well have been different in Edwards had the accused been present. In Wong, at para. 22, it was held that members of the public who attend a meeting in a hotel room have a reasonable expectation of privacy. While there are circumstances in which a guest would not have the same privacy rights as his host, these are not found here.

128In this case, the appellant was an invited guest at the home of Mr. Dixon. As an invited guest, the appellant had a reasonable expectation of privacy in his friend's home while he was there. I have no hesitation in saying that the appellant has shown both the existence of a subjective expectation of privacy and the objective reasonableness of the expectation. The logic of the implicit contrary assertion must be rejected as utterly inconsistent with ordinary life in our free and democratic society. There are two elements to that implicit contrary assertion: the first is that while his host Mr. Dixon would have full Charter protection, as his guest, the appellant had none; the second is that the appellant left his personal Charter protections at home and could not resume them until he returned there. It would be hard to imagine that any citizen would accede to these propositions.

129Factors other than those listed in Edwards also establish a reasonable expectation of privacy. The appellant was involved in a discussion with Mr. Dixon, who had a reasonable expectation of privacy.

130The result, in my view, is that the appellant has standing to assert an infringement of his s. 8 Charter right. The police entry, as I have found, was unlawful and unreasonably infringed that right. As a result, the question of whether the evidence obtained by the police should be excluded arises. Before addressing that question I turn to the issue of the detention, for two reasons. First, although it is possible to distinguish conceptually the entry from the detention, in reality they occurred simultaneously. Second, the unacceptability of the police conduct is amply shown by the profoundly oppressive circumstances of the reality of the detention, to which I now turn.

(3) The Unlawful Police Entry Resulted in the Appellant's Arbitrary Detention

131At trial, the appellant argued that as soon as the police unlawfully entered the backyard area of the townhouse, he was arbitrarily detained in violation of s. 9 of the Charter. The trial judge rejected his argument, finding that he was not detained until Cst. O'Toole asked him what was in his bag.

(a) The Governing Principles

132Section 9 of the Charter provides that "Everyone has the right not to be arbitrarily detained or imprisoned." As Watt J.A. noted in R. v. Donnelly, 2016 ONCA 988, 135 O.R. (3d) 336, at para. 67:

[Section] 9 is a manifestation of the general principle, articulated in s. 7, that a person's liberty is not to be curtailed except in accordance with the principles of fundamental justice. This is one of the most fundamental norms of the rule of law. The state may not detain arbitrarily, but only in accordance with the law: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 54; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, at para. 88.

133The purpose of s. 9 is to "protect individual liberty from unjustified state interference": Grant, at para. 20. While individuals are free to do as they please absent a valid law to the contrary, the police are only entitled to act to the extent that the law empowers them to do so: R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at para. 51; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 15.

134Our law recognizes that the police have a common law power to briefly detain individuals for the purposes of an investigation in certain prescribed circumstances. The Supreme Court explained in Mann and Grant, that brief investigative detentions will be lawful where they are based on "reasonable suspicion": Grant, at para. 55; Mann, at paras. 23-35.

135A "detention" may arise in a number of ways. It can arise as a consequence of a suspension of an individual's liberty interest by significant physical means, for example, by being handcuffed or placed in the back of a police car. An individual can be psychologically detained when he is lawfully required to comply with a police direction or demand, or where a reasonable person in his position would conclude he had no choice but to comply: Grant, at paras. 20, 44. In this case the appellant's psychological detention is at issue.

136A contextual analysis is required to determine if an individual is psychologically detained. In Grant, the Supreme Court referred to the following factors, at para. 44:

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

137With those factors in mind, I turn to the analysis under s. 9 of the Charter.

(b) The Principles Applied

138I conclude that the detention of the appellant was not authorized by law. It was arbitrary and it breached his s. 9 Charter right. Properly considered, in my view the Grant factors cannot reasonably support the trial judge's finding, at para. 88, that the appellant was only psychologically detained once Cst. O'Toole inquired about the contents of the appellant's bag.

139First, I am satisfied that the appellant was psychologically detained by the police within the meaning of s. 9 when they suddenly and without seeking permission barged into the backyard of the townhouse property.

140When the police arrived at the backyard, two officers entered through the only gate through the fence into the backyard. The third officer remained outside the fence for a time before entering. The police were physically between the young men and the exit from the backyard.

141Second, the atmosphere the police created by their questioning would lead a reasonable person in the appellant's position to believe that he had no choice but to comply with their demands. At one point in the interaction, one of the young men put his hands behind his back. Two of the officers told or yelled at him to keep his hands where they could see them. The police were asking pointed questions. It was not a casual conversation. This was not an atmosphere where the young men had any freedom of movement. The appellant says this created an atmosphere of detention. I agree. The suggestion that the appellant was free to leave simply has no reality to it.

142Third, the appellant's young age, minority status, and his comparatively small physical stature also favour a finding of psychological detention by police upon their entry in the backyard. In summary, all three factors of the Grant analysis show that the appellant was detained at that moment, contrary to the trial judge's conclusion.

143Fourth, when police enter a property as trespassers, they act outside the bounds of their lawful authority. In my view, the detention of the appellant occasioned by the police while they were acting outside their lawful authority was, on its face, an arbitrary detention. It was not authorized by law because the police were not entitled to exercise any of their investigative powers, including the common law power to detain for investigative purposes, while they were trespassers on the property. What I see here, to be blunt, is casually intimidating and oppressive police misconduct.

144Accordingly, I would find that the appellant was arbitrarily detained within the meaning of s. 9 of the Charter.

(4) The Evidence Should Have Been Excluded

145Section 24(2) of the Charter provides that where evidence is obtained in a manner that infringed or denied an accused's Charter rights or freedoms, 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."

146Here, the evidence – the gun, the drugs and the money - was obtained in a manner that infringed the appellant's Charter rights. The evidence would never have been discovered if the police had not unlawfully entered the backyard, arbitrarily detained the appellant and thereby provoked his flight. The evidence was causally and temporally connected to the Charter-infringing conduct of the police: R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72.

147There is no doubt that the evidence obtained in this case – in particular, a handgun and drugs – was significant. However, despite its gravity, I would exclude the evidence from admission at the appellant's trial, for the following reasons.

(a) The Governing Principles

148The framework for the application of s. 24(2) of the Charter is set out in Grant, at para. 71. The court must consider three lines of inquiry: (i) the seriousness of the Charter-infringing state conduct; (ii) the impact on the Charter-protected interests of the accused; and (iii) society's interest in adjudication on the merits.

149My colleague Doherty J.A. explained the dimensions of this exercise in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 62-63:

The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case.

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [Citations omitted.]

150There is a standing temptation to place security concerns over legality concerns. The dilemma is a difficult one. However, as Brown J. observed in R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 55, there is a "public interest in maintaining a justice system ʹabove reproach.ʹ" Drawing on the observations of Doherty J.A. in McGuffie, Brown J. added, at para. 56:

It is therefore important not to allow the third Grant 2009 factor of society's interest in adjudicating a case on its merits to trump all other considerations, particularly where (as here) the impugned conduct was serious and worked a substantial impact on the appellant's Charter right. In this case, I find that the importance of ensuring that such conduct is not condoned by the court favours exclusion. As Doherty J.A. also said in McGuffie, at para. 83, "[t]he court can only adequately disassociate the justice system from the police misconduct and reinforce the community's commitment to individual rights protected by the Charter by excluding the evidence. … This unpalatable result is the direct product of the manner in which the police chose to conduct themselves."

151What the jurisprudence under s. 24(2) of the Charter recognizes is the problematic nature of the Grant calculus. The relevant age-old philosophical question is this: Do the ends justify the means? The usual answer is that bad means undermine good ends. The answer often yielded by the Grant calculus is this: Sometimes the achievement of a good end can retrospectively justify bad means. This tension is particularly pronounced in the case of guns obtained as a result of Charter-infringing police conduct. For instance, in Grant, the Supreme Court of Canada admitted a firearm. In Paterson, the majority excluded one. As it excluded the conversations in Marakah.

152In R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, a case in which a large quantity of drugs was excluded based on a police breach of the accused's s. 8 Charter right, the Supreme Court, at para. 40, endorsed the words of Cronk J.A. in her dissent:

[A]llowing the seriousness of the offence and the reliability of the evidence to overwhelm the s. 24(2) analysis "would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law 'the ends justify the means.'"

153Justice Cronk's words bear repeating in this case. If the Charter is to have a meaningful presence in daily interactions between the police and citizens, the police must understand that if they trample the rights of citizen in their pursuit of a "good end", the court will not sanction their misconduct.

(b) The Principles Applied

154Although he found no breaches of the Charter, the trial judge conducted the s. 24(2) Charter analysis using the three Grant factors, at paras. 106-108: He concluded that all three of the factors favoured admission of the impugned evidence, and that on balance he would have admitted the evidence if the police had committed Charter breaches.

(iii) The seriousness of the Charter-infringing state conduct

155In relation to the seriousness of the of the Charter-infringing state conduct, the trial judge suggested that any potential breach of the accused's Charter rights in the circumstances of this case was trivial, inadvertent and made in good faith. This conclusion is unreasonable and cannot stand.

156The Charter-infringing state conduct in this case was serious. I will not repeat the observations I made earlier. The police, on information about possible criminality that was at best speculative, unlawfully entered onto private property, someone's home, as trespassers. This was serious police misconduct, in the context.

(iv) The impact of the breach on the appellant's Charter-protected interests

157The trial judge concluded that any breach of the appellant's Charter rights did not have a significant impact on his interests. He noted that he did not make inculpatory statements or provide the police with incriminating evidence that they would not have otherwise discovered.

158To the contrary, the breach did provide the police with incriminating evidence that they would not have otherwise discovered.

159The impact on the appellant's Charter-protected interests was significant. The right to be free from arbitrary detention is a manifestation of one of the most fundamental norms of the rule of law. Individual liberty can only be curtailed in accordance with the principles of fundamental justice. Here, the appellant's liberty interest was unlawfully suspended. It cannot be said that an unlawful deprivation of liberty is an insignificant impact on the appellant's constitutionally protected interests.

(v) Societal interest in adjudication on the merits

160I do not take issue with the trial judge's conclusion that the evidence in this case was reliable. I also agree that the evidence was of paramount importance to the Crown's case against the appellant. Society unquestionably has a significant interest in the prosecution of firearm and drug offences on their merits.

(vi) Conclusion

161In the final balancing of the three inquiries under Grant, I take instruction from my colleague's decision in McGuffie. I have found that the first two inquiries both pull toward the exclusion of the evidence. The seriousness of the state-infringing conduct and the impact on the appellant's Charter-protected interests were both significant. In such a case, the third inquiry, the societal interest in the adjudication of the case on its merits, will "seldom, if ever, tip the balance in favour of admissibility": McGuffie, at para. 63. See also Paterson, at paras. 55-56. The court cannot be seen to condone the kind of police misconduct at issue here. I conclude, as Brown J. did in Paterson, at para. 53, that the police conduct "represented a serious departure from well-established constitutional norms".

162Perhaps the officers were emboldened by the sense they were doing the right thing in trying to root out criminality in the community. They seem to have assumed the young men in the backyard were up to no good and decided to confront them suddenly. I doubt that the police would have brazenly entered a private backyard and demanded to know what its occupants were up to in a more affluent and less racialized community. The occupant of a residence might tolerate sudden police intrusion into private space if there were an emergency or the police were in hot pursuit of a suspect or fugitive, however shocking they might find it. There is no such pretext in this case.

163As I stated as the outset, the kind of casually intimidating and oppressive misconduct involved in the unlawful police entry into a private backyard must be condemned by the court.

164I would exclude the items seized from the appellant from evidence at his trial. Their admission would bring the administration of justice into disrepute.

D. Disposition

165I would allow the appeal, exclude the evidence obtained from the appellant in contravention of his Charter rights, quash the convictions and direct that verdicts of acquittal be entered.

Released: January 25, 2018

"P. Lauwers J.A."

Schedule A

COURT FILE NO.: CR-730/12

DATE: 2014-04-01

ONTARIO

SUPERIOR COURT OF JUSTICE

Between:

HER MAJESTY THE QUEEN - and - TOM LE

Cara Sweeny, for the Crown Laurie A. Galway, for the Accused

HEARD: January 6-10, 13-14, 2014

K.L. Campbell J.:

Ruling on Charter Application

I. Overview

1On the evening of May 25, 2012, 20 year-old Tom Le, the accused, was in the company of four friends in the backyard of a townhouse in the Atkinson Housing Co-operative. This is a 14-acre housing complex located north-west of Spadina Avenue and Queen Street West in Toronto. Like the other young men in attendance that night, the accused had been invited to this residence by his friend, Leraldo Dixon, whose mother rented the premises.

2That evening, the accused carried with him a small satchel or purse. It was on a strap that went across his body from his shoulder to his hip area. Inside the satchel was a fully-loaded restricted firearm – a .45 calibre semi-automatic Ruger pistol. Elsewhere on his person the accused had 13 grams of crack cocaine. He hoped to be able to sell the drugs later in the evening.

3At approximately 10:40 p.m. three members of the Toronto Police Service (TPS) were specifically directed to the backyard area of the Dixon townhouse by the security guards working in the housing complex. The police were looking for a third party who was wanted by the police for some violent crimes and who, they were told, frequents the area and may have been hanging out in this area of the townhouse complex. The police had also been told that this was a problem address and that there were concerns about drug trafficking in the backyard. This area of the city is plagued by a high incidence of violent crimes associated with guns and drugs.

4The police followed the paved footpath that took them to the backyard area of the Dixon townhouse. When the police came upon the young men in the fenced backyard of the Dixon townhouse unit, they began to investigate. As they walked through the open gate into the backyard, the officers asked the young men who they were and whether they lived in the residence.

5As the police officers were speaking to some of the young men, the accused, who had told the police he did not live in the residence, began behaving nervously, and was "blading" his body to the officer speaking to him so as to keep the satchel away from the officer. The accused denied having any identification on his person and, when asked about his satchel, quickly fled from the area. Two of the police officers quickly gave chase and were, eventually, able to tackle the running accused to the ground on a nearby street. As they wrestled on the ground, with the two officers trying to subdue the accused, the police discovered the firearm in the satchel. Subsequently, they discovered his illicit drugs.

6Ultimately, the accused was charged with ten criminal offences. More particularly, the accused was charged with: (1) possession of a firearm without holding a licence; (2) possession of a firearm knowing he was not the holder of a licence; (3) possession of a loaded firearm without having an authorization, licence, or registration certificate; (4) careless storage of ammunition; (5) carrying a firearm in a careless manner; (6) two counts of breaching orders prohibiting him from possessing a firearm; (7) possession of cocaine for the purpose of trafficking; (8) possession of cocaine; and (9) possession of the proceeds of crime (Canadian currency) not exceeding $5,000. The accused has pled not guilty to all of these alleged offences.

7The trial of this matter, on the agreement of the parties, unfolded essentially as a blended proceeding. The accused sought the exclusion of the evidence of his possession of the firearm and the cocaine under s. 24(2) of the Canadian Charter of Rights and Freedoms, claiming that it had been obtained by the police in violation of his constitutional rights to be free from unreasonable search and seizure and arbitrary detention, contrary to ss. 8 and 9 of the Charter. The Crown sought the admission of this evidence, contending that there was no violation of any of the accused's Charter rights by any of the investigative conduct of the police, and that, in any event, there was no basis to exclude the evidence under s. 24(2) of the Charter. The parties essentially agreed that, if this evidence was admissible, it established the guilt of the accused beyond a reasonable doubt with respect to the firearms and drug-related offences.

II. The Factual Background

A. Introduction

8The evidence on the application consisted, essentially, of the viva voce testimony of two TPS officers (Cst. Reid and Cst. O'Toole), the preliminary inquiry transcript of a third TPS officer (Cst. Teatero) and an Intelliguard security guard (Fred Lalley), and the affidavit and viva voce evidence of four civilian witnesses (Leraldo Dixon, Ibsa Abdulatif, Sheldon Lewis and Ramadan Aden), who were the four young men in the backyard on the night in question. The accused also testified on the voir dire. After carefully considering all of this evidence, I make the following findings of fact.

B. The Arrival of the Police at the Housing Complex

9On the evening of May 25, 2012, Csts. Jonathan Reid and Edward O'Toole of the TPS were working together, on uniformed patrol, in a scout car in the area of 14 Division in Toronto. They were primarily responding to radio calls. After dealing with an unrelated noise complaint, they heard a radio communication from Cst. Fred Teatero indicating that he was investigating parties in the area of "Vanauley Walk." This is an area of townhouses inside the Atkinson Housing Co-operative. Knowing that Cst. Teatero was working alone that night, the two other officers decided to drive to his location and provide him with backup assistance.

10Csts. O'Toole and Reid arrived in the area at approximately 10:40 p.m. At that point, Cst. Teatero was outside his vehicle talking to two Intelliguard security guards working in the area. These guards were responsible for the overall security of the property, preventing vandalism and property damage, and general crime prevention in the area. Fred Lalley was one of these two security guards. Their discussion focused upon the whereabouts of two individuals who were associated with violent crimes, namely, Nicholas Dillon-Jack (also known as Buck) and Jermaine Jackson.

11Cst. Teatero had arrived on the scene being primarily interested in Mr. Dillon-Jack, and he showed the security guards a picture of Mr. Dillon-Jack. The security guards told the officer that they thought Mr. Dillon-Jack "hung out" at another location. They had not seen him at the Atkinson Housing Co-operative. However, during their discussion, one of the security guards advised Cst. Teatero that Jermaine Jackson had been observed in the area and, more particularly, had been hanging out behind the townhouse located at 84 Vanauley Walk. Cst. Teatero was told that this was a "problem address" for them, and there were concerns of drug trafficking in the rear yard. Mr. Lalley explained that there were some couches outside in this dingy backyard area, and Mr. Johnson "frequents that address" as he liked to hang out there with the "P.O Boys," or the "Project Original Boys," which was a gang in the area. Cst. Teatero knew of Mr. Jackson, and what he was "wanted for" by the police, but he did not know what he looked like.

12In the result, the three police officers decided to do a "walk through" of the complex to that area. While there was no specific documentary evidence tendered to prove it, the police officers testified uniformly that the TPS had been expressly authorized, in writing, by the management of the Atkinson Housing Co-operative, to enforce the provincial Trespass to Property Act, R.S.O. 1990, chap. T.21, in the townhouse complex.

C. The Police Arrival at the Backyard of the Townhouse Unit

13The three police officers proceeded, on foot, south into the neighbourhood indicated by Mr. Lalley. They followed a paved footpath that went behind the townhouses that faced onto Vanauley Walk. When they got to the townhouse at 84 Vanauley Walk, the police saw several young black males sitting on couches in the backyard. A young Asian male was standing nearby, close to the rear door of the townhouse unit.

14The backyard was fenced-in by a short, waist-high wooden fence. There was an opening in the fence, providing a walkway from the paved footpath into the backyard. There were patio stones on this walkway leading to the back door of the townhouse unit. While there may once have been a gate on this opening, there was clearly no gate there on the evening of May 25, 2012. The photographs of the scene show only a wide opening in the fence, with no gate, opening onto the patio-stone walkway to the back door.

15The defence witnesses testified that, in the absence of an actual gate, couch cushions had been placed upright in the opening, supported by gas cans, in order to prevent entry into the backyard of the premises. I find that not to be the case. I reject that evidence. The police officers testified that there was no such make-shift, couch-cushion "gate," and I accept their evidence in this regard. The photographs taken of the scene support that testimony. The photographs show only one couch cushion on the grass in the backyard near the opening, but this cushion was clearly from one of the two couches further into the backyard by the house, and there are no gas cans anywhere. In any event, I find as a fact that there was no gate of any kind on the fence opening on the evening in question.

16When the police arrived at the rear of the premises located at 84 Vanauley Walk, there were a total of five young men in the backyard. There were four young black males, namely, Leraldo Dixon, Ibsa Abdulatif, Sheldon Lewis, and Ramadan Aden. There was also one young Asian male, the accused, Tom Le. These five young men appeared to be doing nothing wrong. They were just talking.

D. Entering the Backyard and Making Inquiries

17As Cst. Teatero entered the backyard through the open gateway in the fence, followed by Cst. Reid, Cst. Teatero started talking to the young men in the back yard. He asked them what was going on, who they were, and whether any of them lived there in the townhouse unit. Cst. Reid also asked if any of the young men lived there. Some of the young men simply said "No," and the others did not respond. The accused was one of the individuals who replied "No." Csts. Teatero and Reid then started speaking more directly to two of the individuals seated on the couch closest to them.

18Cst. O'Toole did not initially follow the other two officers into the backyard. When he first saw the five men in the backyard, and they saw the police officers, he noticed that a couple of the young men turned away and looked nervous. Cst. O'Toole moved further down the fence line to get a better angle to view the young men. From this vantage point, he could see all of the young men. Shortly thereafter, when the other two officers started talking more directly to some of the individuals in the backyard, Cst. O'Toole also walked inside the fenced area of the back yard, and simply stood in the grassy area observing. He entered the backyard area as his two police colleagues were outnumbered by the five young men in the backyard.

19Cst. O'Toole described how, at one point, he saw one of the men sitting on the couch put his hands behind his back, so he told him to put his hands in front of him, and this individual immediately complied with this request, putting his hands in his lap.

20The five young men in the backyard provided a different version of this initial exchange with the police officers. Their testimony on this point is similar, but not identical. More particularly, on this issue they testified as follows:

• Ramadan Aden testified that after the police officers came into the backyard, one of them said, "How are you guys doing?" and asked whether anyone lived there in the townhouse. According to Mr. Aden, Mr. Lewis told them that they were "not allowed to be there," but the police just ignored him. Mr. Aden testified that Mr. Dixon told the police that he lived there.

• Leraldo Dixon testified that when the police officers came in the backyard, Mr. Lewis said, "What are you guys doing? You guys can't come in here." Mr. Dixon testified that he then told the officers that he lived in the townhouse, and that "you guys can't come in here." But the officers did not leave. Rather, they expressed doubt as to whether Mr. Dixon, in fact, lived there and asked him to produce some identification.

• Sheldon Lewis testified that when the officers came in the backyard, he told them that they "can't just enter someone's backyard like that without permission." According to Mr. Lewis, one of the police officers said, "We can do anything we want, we're the police; we're not here to hassle you guys, we're just here to show you a picture of someone that we're looking for in the neighbourhood." At that point, Mr. Lewis made some "smart remark" that he could not recall, and the officers indicated that they wanted to see some identification.

• Ibsa Abdulatif testified that when the officers came into the backyard, he heard Mr. Lewis say something like "you guys can't come in here," but the police just ignored him. He did not hear anyone say anything else. One of officers then asked if anyone lived there in the townhouse, and Mr. Dixon raised his hand and said that he lived there. The police then asked them to produce some identification.

• Finally, the accused testified that after the police officers entered the backyard, one of them asked, "Who lives here?" and Mr. Dixon put up his arm and said, "I do." According to the accused, Mr. Lewis then said words to the effect of, "You guys are not allowed to do that," and one of the officers responded, "Of course I can." The accused denied that he said "No" when the police inquired whether anyone lived in the townhouse.

21It is apparent that all five of the young men recalled some comment being made by Mr. Lewis suggesting that the police were not entitled to come into the backyard. Some of them thought the police just ignored this comment, but others recalled the police responding to the effect that they were entitled to enter the backyard. Further, all of the young men recalled Mr. Dixon telling the police that he lived there in the townhouse. Two of them thought he had raised his arm or hand in so doing. Significantly, only Mr. Dixon testified that he also told the officers, "You guys can't come in here." None of the others, including the accused, heard Mr. Dixon register any objection to the presence of the police.

22Based upon this evidence, I make the following findings of fact regarding this initial exchange between the police officers and the young men in the backyard.

23First, when Csts. Teatero and Reid entered the backyard through the open gate their purpose was twofold – to investigate whether any of the young men were Jermaine Jackson (or knew the whereabouts of Nicholas Dillon-Jack), and to investigate whether the young men were entitled to be in the backyard or were trespassing on the property. That was, in effect, the evidence of the police officers, and I accept it, especially given their initial purpose in attending at the housing complex and the information they had been provided by the security guards about the problems associated with the backyard area of this particular townhouse unit.

24Second, Cst. Teatero greeted the young men by saying, "How are you guys doing?" He then asked whether any of them lived there in the townhouse. It seems likely that Mr. Dixon would have tried to identify himself as a resident of the unit when this initial inquiry was made by the police. He had no reason not to. But, the police officers did not, in fact, hear his initial positive response to their question. In the witness box, Mr. Dixon presented as a very quiet and soft-spoken young man. He was often difficult to hear, even from close range, and even after being told to speak up. He did not testify that, in identifying himself, he raised his arm or hand, and he likely would have given such evidence had he made any such accompanying physical gesture. In my view, in his testimony generally, Mr. Dixon did what he could to help the accused. In any event, I accept the evidence of the police officers that, initially, they did not see or hear any positive response to their question about whether any of the young men lived in the townhouse. They simply heard the accused say, "No."

25Third, I find that Mr. Lewis may well have made some comment to his friends to the effect that the police were not entitled to just come into the backyard, but I am convinced that he made no such comment directly to any of the police officers. None of the officers heard any such objection to their presence in the backyard, and I accept their evidence in this regard.

26Finally, I reject the evidence of Mr. Dixon that, in addition to trying to verbally identify himself to the police as a tenant of the townhouse, he told them, "You guys can't come in here." I find that Mr. Dixon simply manufactured this aspect of his evidence in order to try to help his friend, Mr. Le. I conclude that, in fact, Mr. Dixon never raised any objection to the presence of the police in his backyard, or suggested to them in any way that they should leave.

E. Trying to Confirm the Identification of the Young Men in the Backyard

27After this initial exchange between Csts. Teatero and Reid and the five young men in the backyard, Cst. Teatero began speaking more directly to Mr. Aden, and Cst. Reid began speaking more directly to Mr. Dixon, both of whom were seated on one of the couches in the backyard. Cst. Reid also noticed the accused standing by the rear door of the townhouse.

28Cst. Reid testified that Mr. Dixon identified himself verbally and also presented the officer with a student card to confirm his identity. Mr. Dixon also advised Cst. Reid that he lived in the townhouse with his mother. There was no other conversation between them. Cst. Reid testified that Mr. Dixon did not tell the police officers they could not come into his backyard, nor did he make any complaint about the police officers being in his backyard.

29Cst. O'Toole walked from the grassy area of the backyard over to the patio in front of the back door of the townhouse, and began talking to the accused and another young man. Cst. O'Toole asked to see some identification from the unknown black male, and it was immediately provided to the officer. Cst. O'Toole did not examine the identification he had received because, at that point, the accused was "turning away from [him] and acting very nervous." The accused had a bag on a strap over his shoulder – the strap was on his left shoulder, with the bag on his right hip – and the accused was "blading" himself, by turning his body to the right to keep the bag away from the officer. According to Cst. O'Toole, the accused was acting very nervous, fidgeting and moving.

30At that point, Cst. O'Toole asked the accused for his identification. The officer still had the other piece of identification from the unknown black male in his hand. The accused said that he did "not have any ID on him," and did not verbally identify himself to the officer. Cst. O'Toole then pointed at the bag and asked, "What's in the bag?" At that point the accused ran away. Cst. O'Toole ran after him.

31According to Cst. Reid, as he was writing some information into his police memo book, he saw another man run through the grassy area of the backyard, followed by Cst. O'Toole, giving chase. Thinking that it was unsafe for Cst. O'Toole to be on his own, Cst. Reid also began the pursuit. Cst. Reid estimated that the police officers had been in the backyard less than a minute before the accused started running away.

32Like Cst. O'Toole, Cst. Teatero was also able to make observations of the accused's behaviour prior to his flight from the backyard. Cst. Teatero testified that he heard Cst. O'Toole asking the accused for some identification, and he looked over his shoulder in their direction, to see the accused "blading" his body away from both Cst. O'Toole and himself. The accused had been facing the officers when they came into the backyard, but at this point, he was turning his right side toward the building. He was not trying to enter the townhouse through the back door. The accused appeared to be trying to conceal the bag that was on a large strap slung over his shoulder, as he had his elbow pressed up against the bag and was pulling it toward his body. The officer described this movement as a "security feel." Cst. Teatero testified that, in light of his police training, he thought the accused was exhibiting the characteristics of "an armed gunman." He thought that, in these circumstances, there was reason to believe that there was a gun in the accused's bag. It was at this point that Cst. Teatero heard Cst. O'Toole ask the accused, "What's in the bag?" According to Cst. Teatero, at that point, the accused immediately began running, followed by Cst. O'Toole, followed by Cst. Reid. Cst. Teatero also gave chase.

F. The Chase – The Struggle – Discovering the Firearm

33The accused ran across the grassy area of the backyard, hurdled the small fence, and ran east down the laneway. Cst. O'Toole did likewise, as did Cst. Reid immediately thereafter. The narrow laneway was approximately three or four feet wide and about 80 to 90 feet long. As he chased the accused, Cst. O'Toole yelled for him to "stop," but the accused did not stop.

34Cst. O'Toole testified that, as he was running, the accused was reaching to the bag on his right side, using his left hand. The officer was not sure what the accused was reaching for, but Cst. O'Toole had worked in that neighbourhood for a long time and knew that guns and drugs were frequently discovered there. Cst. Teatero testified that, as the accused was running, the bag was still under his arm on his right side, and he saw the accused "pinching" the bag with his right elbow, holding it against his body. Cst. Teatero did not, however, see the accused reaching for the bag with his left hand, explaining that there were two other police officers in front of him chasing the accused.

35According to Cst. O'Toole, when the accused got to the end of the laneway, there were a couple of steps leading down to the dead-end area of a roadway, and the accused stumbled when he got to those steps. At that point, Cst. O'Toole was pretty close to the accused and started to stumble on the steps too. As he began to stumble, Cst. O'Toole leapt forward and grabbed the accused around the waist with both arms, managing to tackle the accused to the ground. The accused landed face-first onto the ground, and Cst. O'Toole landed on top of him, with his arms still around him.

36When they fell to the ground together, the accused tried to get up to continue to flee, and they became involved in a big struggle on the ground. Cst. O'Toole was trying to control the accused and keep him on the ground, but he was having a difficult time doing so. It became an "all out" fight between the two men, with Cst. O'Toole administering "forearm strikes" to the accused's upper body, and yelling at him to "stay down – stay down." Cst. Teatero heard him yelling at the accused to "stop resisting" as he was "under arrest."

37According to Cst. O'Toole, during this struggle, the accused started turning onto his right side, with his left side in the air trying to get up. The officer then saw the accused moving his left hand onto the bag that was on the right side of his body. Cst. O'Toole could see that the bag, at this point, was approximately half-way open (i.e. a couple of inches), and the accused was trying to get into the bag. Cst. O'Toole could see that there was something in the bag and, when the accused put his hand on the bag, so did the officer. That is when Cst. O'Toole realized it was a gun that was inside the bag. At that point, both men, the accused and Cst. O'Toole, had their left hands on the bag. Cst. O'Toole could see an extended magazine in the butt of the gun almost sticking out of the bag. With his hand on the outside of the bag, the officer could feel the handle of the gun.

38Cst. O'Toole testified that as soon as he realized there was a gun in the bag he yelled out, "Gun." He also used his right hand to reach up to his radio button, located in the area of his left chest, to try to summon more units to the scene through the police dispatcher. At the same time, Cst. O'Toole continued to use periodic forearm strikes to the accused with his right hand to try to control the accused and keep him on the ground. The officer saw that when he would try to use his radio, the accused would continue his efforts to get up, and he had to use this force to keep him on the ground.

39At some point in this continuing struggle with the accused, Cst. O'Toole noticed that Cst. Reid had arrived on the scene, and that he was trying to grab the accused by his right arm and handcuff him on his right wrist. At that point, according to Cst. O'Toole, the accused still had his left hand on the bag, and he started trying to reach inside the bag for the gun. Cst. O'Toole, who still had his own left hand on the bag at the time, then tried to prevent the accused from grabbing the gun. As Cst. O'Toole described, at that point, it seemed like he and the accused were fighting over the gun.

40Cst. O'Toole testified that, after a few more forearm strikes to the accused with his right hand, and continued struggling with the accused, the officer was finally able to get the accused's left hand off the bag and behind his back, where he was able to handcuff his left wrist together with the right wrist that Cst. Reid had managed to handcuff.

41Cst. O'Toole testified that, while this interaction with the accused felt like it took a "long time," he estimated that, from the time he tackled the accused to the ground until he and Cst. Reid were successful in handcuffing the accused's hands behind his back, it took perhaps 30 seconds in total.

42Cst. Reid testified that when he caught up to Cst. O'Toole and the accused, they were struggling on the street as Cst. O'Toole tried to effect his arrest. The accused was on his stomach. Cst. Reid testified that he tried to secure the right hand of the accused in order to handcuff it behind his back, but the accused struggled to resist his efforts. Cst. Reid started telling the accused to stop resisting and to put his hands behind his back. He heard Cst. O'Toole yelling to a similar effect. Cst. Reid testified that, at one point before the accused was finally subdued and handcuffed, he noticed that the accused had a black satchel or purse over his shoulder, but that, because of the struggle, it was on the ground beside his head area. Cst. Reid testified that, during the struggle, he saw Cst. O'Toole try to secure that satchel and, after feeling it, Cst. O'Toole advised that there was a firearm in the satchel. Cst. Reid described this as a "pretty tense" incident, which became even "more tense" when Cst. O'Toole announced the discovery of a gun in the satchel, given the danger inherent in dealing with firearms, the resistance of the accused, and being unsure whether he was reaching for the firearm or just trying to escape.

43When Cst. Teatero arrived on the scene, he witnessed the two other officers struggling with the accused on the street. Cst. O'Toole was on his left side, and Cst. Reid was on his right side. The accused was actively fighting back against the efforts of the two officers. It was an "all-out street fight." Cst. Teatero testified that the bag was still "slung over" the accused's shoulder, and was in the vicinity of his mid-section. Cst. Teatero testified that, as he observed the struggle, he saw the accused reach his hand toward the bag. Cst. Teatero could not see what Cst. O'Toole was doing as he was facing his back, and so he did not see if Cst. O'Toole touched or grabbed the bag, but at that point he did hear Cst. O'Toole scream, "Gun."

44While the testimony of Csts. O'Toole, Reid and Teatero is not exactly the same as to all of the circumstances of the struggle and the discovery of the weapon, this is hardly surprising given the speed with which the events unfolded, the later arrivals of Cst. Reid and Cst. Teatero, and their different perspectives from their different physical locations in and around the struggle with the accused. In any event, I accept the detailed factual account of Cst. O'Toole, and view the evidence of Cst. Reid and Cst. Teatero as largely confirming his evidence.

G. The Arrest and the Aftermath

45Once the accused was handcuffed with his hands behind his back and under the control of the police, Cst. O'Toole told him that he was under arrest. As Cst. O'Toole got up from the street, he noticed that his forearms and knees were covered in blood, and he was not able to walk as there was something wrong with his right knee. Cst. Reid maintained physical custody of the accused.

46At that point, with the accused still on the ground, Cst. O'Toole saw that the bag was still strapped around the accused's body, over his left shoulder, and he could see the "butt end" of the gun in the bag. Cst. Teatero cut the strap of the bag in order to get the gun away from the accused. While the gun remained in the bag, Cst. Teatero testified that he could see it inside the bag as, when he seized it from the accused, the zipper was halfway open.

47Someone had called for backup and many more police officers started quickly arriving on the scene. The accused complained of an injury and appeared to have suffered a cut to his lower lip. An ambulance was summoned to the scene.

48Cst. Reid testified that he advised the accused of his rights to counsel – several times, but it was apparent that the accused did not want to be spoken to, as he just kept saying "no" to each of the officer's questions as to whether he understood his various rights, in an apparent effort to get the officer to stop talking.

49Cst. Reid conducted a "pat down" physical search of the accused, during which he found two cell phones and a substantial amount of cash in the accused's pockets.

50The ambulance arrived quickly. The accused expressed no interest in being taken to the hospital, but Cst. O'Toole was taken, by ambulance, to the St. Joseph's Health Center for medical treatment. At the hospital, Cst. O'Toole was treated for the cuts to his forearms and knees. He had suffered a hard-impact bone bruise to his right knee cap, which was swollen.

H. The Testimony of the Accused

51The accused testified to a different series of events. Mr. Le described how all three of the police officers entered the Dixon backyard on the night of May 25, 2012, one after the other, and how, in response to their inquiry, Mr. Dixon immediately identified himself as someone who lived in the townhouse unit. Mr. Le denied that he personally said "No" in response to this police inquiry.

52The accused also testified that Mr. Lewis told the police that they were not allowed to just come into the backyard area. The accused testified that, by virtue of the couch cushions propped up by propane gas tanks by the gate, he thought the backyard was private and not open to the public. Moreover, the accused testified that he thought that he had the same level of privacy in the Dixon backyard that he would have had in his own backyard. He explained his surprise that the police could just enter the backyard, testifying that he believed they could not do that.

53The accused testified that, when the three police officers entered the backyard, they started "herding" him and his friends towards the corner of the backyard by the townhouse. He described how the police officers were all on the grassy area of the backyard, while he and his friends were near the wall of the building. The "black officer" (Cst. Reid) was in the middle, while the "heavy set shorter white officer" (Cst. O'Toole) was closest to him, also in the vicinity of the white chair, which was located close to the townhouse. Mr. Le explained that he ended up near the back door of the townhouse as that was where he had been herded by the movements of the police.

54The accused testified that the officers started asking people for identification, and he heard one officer ask his friends on the couch to "stand up." They had their flashlights out and were showing around a picture of some individual. According to Mr. Le, as Mr. Lewis was being asked for his identification, he (Mr. Le) turned around to the door behind him and tried to step inside the house. Mr. Le explained that he did not think he needed to stay around as no police officer was talking directly to him. Since the officers were dealing with some of the others, he thought they did not seem too worried about him. Further, he did not like the way he and his friends were being treated by the police. He denied that he had been acting nervously (although admitting that he was, in fact, nervous), or "blading" his body to the police officers. He also denied acting nervous because he had a loaded firearm and crack cocaine in his possession.

55Mr. Le testified that before he was able to enter the residence, Cst. O'Toole grabbed him by his left shoulder, spun him around and asked him, "Where are you going? Why are you trying to go inside?" The accused testified that, at that point, he did not think he could leave. The accused testified that, in response, he told the officer that he thought he had left his identification inside the house. Mr. Le admitted that this was not true. He knew he had not left any identification inside the residence.

56According to the accused, at that point, Cst. O'Toole physically searched him by lifting up the bottom of his "hoodie," and touching his pockets and his groin area with his hands. The officer seemed upset that the accused had tried to go into the residence, and had become very suspicious. The accused testified that Cst. O'Toole then asked him where he lived, and as he was in the process of providing his address, Cst. O'Toole did a "double take," apparently realizing that the accused was carrying a shoulder bag on his right hip.

57In his testimony, the accused admitted that, in this bag, he was carrying a loaded firearm, which he had purchased a couple of months earlier for approximately $2,000. He had brought the firearm with him that night when he left home. He explained, however, that the bag was fully zipped up, and the firearm was concealed inside. The accused also admitted that he had 13 grams of crack cocaine on his person that night, in the crotch area of his pants, for which he had paid around $700, and which he had purchased not for his own personal use, but to sell to others, potentially later that night. He also admitted that he had $650 in cash in his pocket from a drug sale he had made the day before. Mr. Le testified that he brought the gun with him that night as he knew that the Vanauley Walk area had "lots of violence," with random people being shot in the neighbourhood, and the police were not doing anything about it, so he needed the gun for his own protection. The gun was fully loaded with nine rounds in the magazine and one in the chamber and, as the firearm had no "safety" mechanism, it was ready to fire. The accused needed only to pull the gun out of the bag and pull the trigger.

58Mr. Le testified that Cst. O'Toole asked him what was in the bag and, at the same time, the officer reached out and grabbed the bag. Mr. Le explained that, at that point, he slapped Cst. O'Toole's hand away, as he thought that the officer had no right to touch his bag. Mr. Le explained that, when Cst. O'Toole asked him again what was in the bag, and motioned with his hand toward the bag, he did not respond, but instead ran away. He explained that he thought the officer was going to take the bag, and he did not think he could have just walked away at that point – so he ran. He did not think that it was right that he was being searched by the officer.

59The accused explained that he jumped the fence and ran along the laneway, toward Vanauley Street. He described how he pumped his arms while he was running away, and he denied that he ever reached toward his bag or held onto his bag as he was running in this fashion. He denied ever trying to get rid of the gun as he was running away. Mr. Le explained that he stumbled at the steps and was tackled from behind by one of the officers. He fell forward and landed on his chest and then his face, with his arms crossed underneath him. A police officer was on top of him, and he felt rapid strikes (punches) being landed around his head, shoulders, and upper back. He could not tell if there was more than one person on top of him. While he was told to show his hands, he simply could not as his arms were pinned under his chest, and he told the police: "I can't." Finally one of the officers pulled his right arm out straight, and another officer pulled his left arm out straight, and then he was handcuffed with his wrists behind his back. The accused estimated that this struggle lasted approximately 30 seconds.

60The accused denied that, during this struggle with the police, his hands were ever at his sides or by his bag. Indeed, he did not recall the whereabouts of his bag at this point in time.

61Mr. Le testified that, once he was handcuffed, Cst. O'Toole loudly demanded to know what was in the bag, and then he unzipped the bag, looked inside, discovered the gun, and then yelled, "gun, gun, gun." Later, someone produced knife and cut the bag off his body. The accused testified that he suffered injuries to his knees, elbows, lip, nose and ear. He explained that he told the "black officer" (Cst. Reid), who picked him up off the ground and frisk searched him, that he wanted to go to the hospital, but after he was examined by the ambulance personnel, he was told that he was "fine" and that he did not need to go to the hospital. Mr. Le testified that he kept telling Cst. Reid "No" while the officer tried to advise him of his rights to counsel as he still wanted to go to the hospital.

62The accused admitted that later that night, at the police station, when he was being searched by the police, he pulled out his bag of crack cocaine and provided it to the police. Mr. Le also admitted that he had two cell phones with him that night that he used in his drug dealing business.

63The accused was not an impressive or credible witness. I watched him carefully as he gave his testimony and I found him to be cavalier and arrogant. More importantly, I found the substance of his testimony to be largely manufactured and designed to support his Charter claims. I did not believe much of his evidence.

64The accused admitted that he had a criminal record that included convictions for robbery, being disguised with intent, assault with a weapon, trafficking in cocaine, and possession of the proceeds of crime. This criminal record is, of course, only relevant to help me assess his credibility as a witness. Needless to say, this record did not make his evidence more believable.

65In the result, in relation to those factual matters on which the testimony of the accused conflicts with the evidence of the three police officers, I accept the testimony of the police officers and reject the testimony of the accused. For purposes of clarity:

• I reject the testimony of the accused that, when the police officers first came into the Dixon backyard, and asked if anyone lived in the townhouse, he did not say "No" to the officers. I find as a fact that Mr. Le did indeed respond negatively to this inquiry. I accept the evidence of the police officers in this regard.

• I reject the evidence of the accused that there were couch cushions, propped up by propane gas tanks, which formed a type of make-shift gate for the Dixon backyard area. I find as a fact that there was no such make-shift gate.

• I reject the evidence of the accused that the three police officers "herded" him and his friends toward the corner of the backyard by the dwelling.

• I reject the testimony of the accused that he was not behaving nervously in the backyard and was not "blading" his body to keep his bag (containing his firearm) away from the officers, but rather was only turning to try to step inside the house. I also reject his evidence that Cst. O'Toole frisk searched him and grabbed his shoulder bag. Instead, I accept the evidence of Cst. O'Toole and Cst. Teatero as to the conduct of Mr. Le and his interactions with the police before the accused took flight from the Dixon backyard.

• I reject the evidence of the accused that, during his struggle with the police on the ground at the conclusion of the chase, he did not reach for his bag. Rather, I accept the evidence of Cst. O'Toole that, during this struggle, Mr. Le was trying to reach into the bag, and it was at that point that Cst. O'Toole saw the butt end of the gun in the accused's partially open bag.

III. Analysis

A. The Police Entry into the Backyard Area

1. Introduction

66The accused argued that the police unlawfully entered the private backyard of the Dixon townhouse, located at 84 Vanauley Walk, and were immediately trespassers in violation of the provincial Trespass to Property Act. The accused contended that the police had no lawful right to enter this private backyard where he and his friends had gathered and the police were, accordingly, acting unlawfully. The accused argued that, if the police wanted to make inquiries of any of the young men they had seen in the backyard of the premises, they were legally required to attend first at the front door of the townhouse. I disagree. In my view, the police were lawfully justified in entering the backyard area of this property by the implied licence doctrine.

67The police had been specifically directed, by the housing cooperative security guards, to the backyard area of this specific address. Moreover, the police had been told, essentially, that Jermaine Jackson, an individual who was "wanted" by the police, "frequents" that area, had been seen "hanging out" in that backyard area with the "Project Original Boys" gang, and that this was a "problem address" in relation to concerns about drug trafficking there. In these circumstances, it is hardly surprising that the police proceeded to attend at the backyard area of 84 Vanauley Walk. Indeed, given their professional obligations to preserve the peace, prevent the commission of crimes and other offences, assist potential victims of crimes, and generally protect the lives and property of the public, they likely were duty-bound to attend at this location. See: Police Services Act, R.S.O. 1990, chap. P.15, s. 42; R. v. Dedman, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, at pp. 11-12; R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, at paras. 11-12, 14-17.

68When the police arrived at the address to which they had been directed by the security guards, they saw five young men talking together in the identified backyard. As they entered the backyard through an open gateway, Cst. Teatero cordially greeted them, and inquired as to whether any of them lived in the townhouse at that address. The police officers heard only a negative response to this question. The officers then started speaking to some of the young men more individually. The conduct of the police in this regard was lawfully justified.

2. The Implied Licence to Enter the Premises

69The law is clear that the occupier of a dwelling gives implied licence to any member of the public, including police officers, who are on legitimate business, to come onto the property, even through an unlocked gate, and attend at a door of the dwelling. This implied licence applies to anyone who has a lawful reason to speak to the occupier of the dwelling. This implied licence ends, however, at the door to the dwelling. The purpose of this implied licence is to facilitate convenient communication between members of the public and the occupier of the dwelling. This implied licence may be rebutted by some express notice on the property itself, or revoked explicitly by the occupier of the dwelling. Once revoked by the occupier, the person who entered upon the property pursuant to this implied licence is obliged to leave with reasonable dispatch. Anyone who does not so leave becomes a trespasser. If a police officer enters property pursuant to this implied licence and, before the licence is withdrawn, develops the necessary grounds to detain or arrest a suspect, the police remain entitled to detain or arrest that person and use proportional and reasonable force to do so. See: Robson v. Hallett, [1967] 2 All E.R. 407 (C.A.), at pp. 412, 414; R. v. Bushman 1968 CanLII 802 (BC CA), [1968] 4 C.C.C. 17 (B.C.C.A.), at pp. 21-25; R. v. Johnson (1994), 1994 CanLII 2108 (BC CA), 45 B.C.A.C. 102, at para. 8; R. v. Tricker (1995), 1995 CanLII 1268 (ON CA), 21 O.R. (3d) 575 (C.A.), at pp. 579-581, leave denied: [1995] S.C.C.A. No. 87; R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8, at paras. 13-15, 38-42, 49; R. v. Mulligan (2000), 2000 CanLII 5625 (ON CA), 142 C.C.C. (3d) 14 (Ont.C.A.), at paras. 23-36; R. v. Maciel (2003), 33 M.V.R. (4th) 152, [2003] O.J. No. 126 (C.J.), at paras.15-18; R. v. LeClaire, 2005 NSCA 165 (CanLII), 208 C.C.C. (3d) 559, at paras. 10-16, leave denied: [2006] S.C.C.A. No. 63; R. v. Lotozky (2006), 2006 CanLII 21041 (ON CA), 81 O.R. (3d) 335, 210 C.C.C. (3d) 509 (C.A.), at paras. 18-42; R. v. Desrochers (2007), 47 M.V.R. (5th) 315, [2007] O.J. No. 1482 (S.C.J.), affirmed: 2008 ONCA 255 (CanLII), 58 M.V.R. (5th) 16; R. v. MacDonald, 2014 SCC 3 (CanLII), 303 C.C.C. (3d) 113, at paras. 25-28; R. v. Zargar, 2014 ONSC 1415 (CanLII), at paras. 29-32.

70In the circumstances of the present case, the police officers clearly had a lawful reason to enter the backyard property and speak to the occupier. They were pursuing an investigation of a wanted man who, they had been told, frequented that backyard area and had been seen hanging out there. Further, the police had been told that the 84 Vanauley Walk address was a "problem" in relation to suspected drug trafficking. In fulfilling their professional duties, the police were lawfully entitled to enter this backyard area in an effort to ascertain if any of the young men was an occupier of the residential premises there, and to pursue their investigations in relation to Mr. Jackson and potential drug trafficking. There was no signage in the area that suggested the police were prohibited from entering the backyard, and no occupier of the premises ever expressly revoked their implied licence to enter the backyard area. In short, the police officers were never trespassers in the backyard area of this address. They entered lawfully pursuant to the implied licence doctrine, and remained there lawfully as they were never asked to leave by an occupier of the dwelling.

3. Lawfully Justified in Entering the Backyard

71Contrary to the argument advanced by defence counsel, the implied licence doctrine did not require the police officers to walk around to the front of the townhouse at 84 Vanauley Walk and knock at the front door in order to try to talk to the young men in the backyard.

72As a matter of law, the implied licence doctrine has never been interpreted or applied so restrictively. Indeed, in the leading decision of the English Court of Appeal in Robson v. Hallett, which forms the foundational basis of this doctrine in Canada, Diplock L.J. expressly stated, at p. 414, that when a householder does not lock the gate of the front garden of his or her dwelling, "it gives an implied licence to any member of the public" who has a "lawful reason" for doing so "to proceed from the gate to the front door or back door" to conduct his or her lawful business [emphasis added]. While the front door typically may be where a member of the public (including a police officer) will attend to try to communicate with the occupier of a dwelling, the implied licence doctrine has been applied to permit the police, in appropriate circumstances, to lawfully enter the backyard patio area of a residence to try to facilitate communications with the occupier of the dwelling. See: R. v. Tonner, 2012 ONSC 1044 (CanLII), [2012] O.J. No. 787, at para. 48-63.

73Moreover, on a purely practical level, it would be an affront to common sense to suggest that the police, in the circumstances of the present case, were obliged by the implied licence doctrine to go to the front door of 84 Vanauley Walk in order to speak to the young men they had seen in the backyard. The police had been directed specifically to the backyard of this address. The police followed the paved footpath that took them to the backyard of this address. Upon their arrival there, the police saw the young men in the backyard area of that townhouse. In my view, the implied licence doctrine, construed sensibly, permitted the officers to enter the backyard area to pursue their investigations. By sensibly entering the backyard and engaging the young men in conversation, the police officers seized their best and most obvious opportunity to ascertain whether any of the young men occupied the townhouse, and to pursue their investigations. It would have been poor and ineffective policing for the officers to have walked around to the front door of the premises, in hopes that someone might answer their knocks on that door and perhaps permit them to speak with the young men that they had just seen in the backyard.

4. Other Backyards – Mistake of Law

74None of this is changed by the evidence led at trial, through the five defence witnesses, as to their subjective expectations of territorial privacy in the backyards of their own respective homes in the Atkinson Housing Cooperative.

75In summary, these witnesses testified as follows: (1) Ramadan Aden testified that security guards never came into his backyard, visiting strangers would always come to the front door, and, accordingly, he thought that if anyone came into his backyard they would be trespassing and he would be inclined to call the police; (2) Sheldon Lewis testified that police officers or security guards never entered his backyard, and he believed that strangers could not come into his backyard; (3) Ibsa Abdulatif testified that when he lived in the housing complex, people were not allowed to come into his fenced backyard; (4) Leraldo Dixon testified that while people sometimes gathered in his backyard, he never complained about trespassers because strangers did not come into his backyard; and (5) the accused testified that, when he lived in the housing complex, his family had a corner property like the Dixon property, and it too had a backyard with a low fence, which they increased in height, and barely anyone ever went to the backyard, and strangers never went to the back door of the premises.

76The manner in which other backyards in the Atkinson housing complex historically may have been entered (or not) by visitors, strangers, security guards or police officers, is simply not relevant in determining whether the three police officers in the present case were lawfully justified in entering the Dixon backyard on the night of May 25, 2012. Individuals may use the backyards of their respective dwellings differently depending upon their own personal interests and matters of geographic convenience. The police simply may never have had occasion, for a wide variety of potential reasons, to need to speak to any of the occupants of these other dwellings in their backyards. Perhaps police officers were never directed to any of these other backyards for investigative purposes. Perhaps these other backyards do not have an open gateway from a paved footpath, providing easy and convenient access.

77Further, the fact that the five young males who were in the Dixon backyard that night, none of whom had any legal training, were mistaken about the existence and operation of the implied licence doctrine, which lawfully permitted the police officers to enter the backyard of the Dixon residence, is neither surprising nor especially helpful in assessing the lawfulness of the police conduct.

5. The Occupier Never Revoked the Implied Licence

78I have already concluded that, as a matter of fact, none of the young men in the backyard told the police to leave or suggested to the police that they were not allowed to be in the backyard of the townhouse property. However, even if Mr. Lewis had spoken directly to the officers and unequivocally told them that they were "not allowed to be there," or clearly said, "You guys can't just come in to someone's backyard without permission," as all of the young men essentially testified, this would not change the lawfulness of the police conduct. This is so because the legally implied licence to enter upon property to facilitate communications with the occupier of the residence is an implied licence emanating from the lawful occupier of the dwelling, and can only be revoked or withdrawn by the lawful occupier of the dwelling.

79Accordingly, unless and until the occupier of the dwelling expressly revokes the implied licence to enter the property, those persons lawfully entering the property pursuant to the implied licence doctrine (including police officers) may confidently ignore any opinions, comments and requests that may be expressed by guests and bystanders. Others who may be present in the vicinity, but who have no legal interest in the property, have no right to control the lawful entry and continued presence of visitors to those premises. That right belongs to the lawful occupier of the residence.

80Accordingly, the only person in the backyard of 84 Vanauley Walk who could have revoked the implied licence of the police officers to come into the backyard area was Mr. Dixon, one of the lawful occupiers of the townhouse at that address. As I have already concluded, Mr. Dixon simply did not, as a matter of fact, revoke the implied licence of the police officers to enter the backyard area of his townhouse unit to speak to the young men.

6. No Violation of the Accused's Section 8 Rights Under the Charter

81I note in passing that, even if, contrary to the conclusion I have reached, the police officers in the present case were trespassers in the backyard property of the Dixon townhouse residence, it would be very difficult for the accused, a mere transient guest in the Dixon backyard, to persuasively complain of any violation of his constitutional rights under s. 8 of the Charter by virtue of this trespassing.

82Undertaking even a cursory analysis of the criteria outlined in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 45, it would appear that the accused has no standing to advance a claim under s. 8 of the Charter on the basis of any alleged trespass to the Dixon backyard. While the accused certainly was present in the backyard at the time of the police entry, and claimed to have a subjective expectation of privacy with respect to the Dixon backyard equal to the privacy he expected in his own backyard, in my view there was no objective reasonableness in that claimed expectation. Moreover, none of the remaining Edwards criteria are met in the present case, in that: (1) the accused did not have possession or control of the backyard property; (2) the accused had no ownership of the backyard property; (3) the accused established no historical use of the backyard property; and (4) the accused had no ability to regulate access to the backyard property by admitting or excluding others. See: R. v. Pugliese (1992), 1992 CanLII 2781 (ON CA), 71 C.C.C. (3d) 295 (Ont.C.A.), at pp. 301-302.

83While I need not finally determine this issue given that I have concluded that the police officers were never trespassers in the Dixon backyard, I am inclined to the view that, even if the police were trespassers, as the accused contends, that allegation could not properly form the basis of any attack on the admissibility of the contraband in the present case, as there is no evidentiary foundation in support of any claim by the accused that his constitutional rights under s. 8 of the Charter were breached by any potential trespassing on the part of the police.

B. The Police Detention of the Accused

1. Introduction

84The accused argued that he was arbitrarily detained in violation of s. 9 of the Charter as soon as the police unlawfully entered the backyard area of 84 Vanauley Walk. The accused contended, in effect, that it was almost immediately apparent to him and his friends that they were not free to leave and were all subject to detention by the police. I disagree. In my view, the accused was not subject to any detention until just seconds before he fled from the backyard.

2. Defining "Detention" – Section 9 of the Charter of Rights

85Not every interaction between a police officer and a member of the public, for investigative purposes, amounts to a detention. Indeed, not every police stop of a member of the public constitutes a detention. As the Supreme Court of Canada has stated, a person is detained when he or she is subject to a "significant physical or psychological restraint" by the state. A psychological restraint occurs when a person is legally required to comply with a demand or direction that interferes with his or her liberty, or when a "reasonable person" in the subject's position would conclude that he or she had been deprived of the freedom or liberty to choose whether or not to co-operate with the police. When an encounter between a police officer and an individual effectively "crystallizes" into a "detention" will depend on the circumstances of each case, but is an "objective" determination and will be for the trial judge to determine, applying the proper legal principles. The subjective intentions of the police are not determinative, and even a focused suspicion on the part of the police, by itself, will not turn an encounter into a detention. It will be for the trial Judge to undertake a "realistic appraisal of the entire transaction," including consideration of the following three factors: (1) the circumstances giving rise to the encounter as would be reasonably perceived by the subject individual, including whether the police were providing general assistance, maintaining general order, making general inquiries regarding an occurrence, or singling out the individual for focused investigation; (2) the nature of the police conduct, including the language used, the use of physical contact, the place where the interaction occurred, the presence of others, and the duration of the encounter; and (3) the characteristics or circumstances of the citizen if relevant, including his or her age, physical stature, minority status, and level of sophistication. See: R. v. Suberu, 2009 SCC 33 (CanLII), [2009] 2 S.C.R. 460, at paras. 3-5, 7, 21-25; R. v. Grant, 2009 SCC 32 (CanLII), [2009] 2 S.C.R. 353, at paras. 29-32, 41-44.

3. The Timing of the Detention of the Accused

86As I have indicated, in the factual circumstances of the present case, the accused was detained just seconds before he fled from the backyard.

87While the arrival of the police into the backyard area of 84 Vanauley Walk temporarily interrupted the conversations of the five young men, none of the police physically restrained the accused or made any demand or direction to him that interfered with his liberty. The accused was not on his way anywhere, so the accused was not even "stopped" by the police or momentarily delayed on any journey. The accused was not subjected to any physical or psychological restraint by the police. No police officer told him to do anything. He was asked only for some identification. A reasonable person in the position of the accused, at that point, would not have concluded that he had been deprived of the freedom to choose whether or not to co-operate with the police. Indeed, the accused himself testified that he thought that he was free to leave the backyard area. More particularly, the accused explained that he went to go inside the townhouse through the back door because he did not think he needed to remain in the backyard, as no police officer was talking directly to him. According to the accused, it was only when Cst. O'Toole physically prevented him from going into the townhouse that "things changed" and he did not think he could leave.

88In my view, the accused was only detained by the police when Cst. O'Toole asked him about the contents of his bag. Cst. O'Toole may only have been inquiring about the bag as a way of asking whether the accused had any identification documents in his bag, but a reasonable person in the position of the accused, in those circumstances, might well interpret that inquiry as a tactical demand or direction in relation to the bag, which meant that the accused was no longer free to leave and had lost the freedom to choose whether or not to continue to cooperate with the police.

89In reaching this conclusion I have tried to take a realistic appraisal of the entire transaction and, in so doing, have considered: (1) how the conduct of the police might reasonably have been perceived by the accused, especially given that one of the investigations they were pursuing concerned activities and/or individuals potentially in the Dixon backyard; (2) the nature and duration of the police interaction with the accused and his friends, including how the police addressed the accused and the other young men in the Dixon backyard, and telling one of the other young men to keep his hands in front of his body; and (3) the young age and visible minority status of the accused and his friends, and the comparatively slight physical stature of the accused.

The accused and the police officers describe the key events at this critical juncture differently, but I am satisfied that, even on the testimony of the police officers, which I accept, the accused was detained at that point in time, namely, when Cst. O'Toole asked the accused about the contents of his bag. The police were not able to effect a physical detention of the accused at that point in time, however, because as soon as the inquiry was made by Cst. O'Toole, the accused fled from the backyard. But, in my opinion, it was at that point that, as a matter of law, the accused was detained. See: R. v. Grant, at paras. 45, 47-52; R. v. Nesbeth, 2008 ONCA 579 (CanLII), 238 C.C.C. (3d) 567, at para. 18, leave denied: [2009] S.C.C.A. No. 10.

4. Detention Based Upon Reasonable Grounds

90This detention of the accused was not, however, an arbitrary one. Rather, in my view, the detention of the accused was based upon a reasonable suspicion that the accused was armed with a gun. Recall that Cst. O'Toole testified that, as he received some identification from one of the other young men in the backyard, he saw the accused "turning away from [him] and acting very nervous," and "blading" himself in order to keep the bag on his right hip away from the officer. It was at that point that Cst. O'Toole asked the accused for his identification. Cst. Teatero also saw the accused "blading" his body away from Cst. O'Toole and himself, trying to conceal the bag, using his elbow to press the bag against his body. Cst. Teatero thought these were the characteristics of "an armed gunman," and he thought there was reason to believe the accused had a gun in his bag. In these circumstances, the police officers were lawfully entitled to place the accused under investigative detention.

91Investigative detention is a police power that is justified, in the totality of the circumstances, on the basis of "articulable cause" or "reasonable grounds" to detain and under the traditional two-part test articulated in R. v. Waterfield, [1963] 3 All E.R. 659. This test requires: (1) that the police be acting in the course of their duty when they interfered with the liberty or property of the citizen; and (2) that the conduct of the police did not involve the unjustifiable use of powers in association with that duty in the circumstances of the case. See: R. v. Mann, 2004 SCC 52 (CanLII), [2004] 3 S.C.R. 59, at paras. 23-35.

92In the circumstances of the present case, I have no doubt that Cst. O'Toole was acting in the course of his police duties when he interfered with the liberty of the accused by detaining him, and that his conduct did not involve the unjustifiable use of powers in association with that duty. Accordingly, the detention of the accused was not in violation of s. 9 of the Charter. Further, as the accused immediately fled from the police, in effect refusing to submit to any detention or possible arrest, the police simply were unable to comply with their informational obligations under s. 10 of the Charter. I conclude, therefore, that at the time the accused fled from the backyard, the lawful actions of the police officers had been in full compliance with the Charter. The rights of the accused had not, in any way, been violated or breached.

5. Officer Safety Justified a "Pat Down" Search of the Accused

93In my view, in all of the circumstances of this case, the police officers were not only legally justified in detaining the accused, they would have been justified, for reasons of officer safety, in immediately performing a brief pat-down search of the accused and his bag. They were prevented from immediately conducting such a search by the flight of the accused, but they would have been justified in conducting such a search. In the circumstances of this case such a search was reasonably necessary to the investigative detention of the accused in order to address the clear risk that the accused was armed with a weapon. Again, the evidence of Cst. O'Toole and Cst. Teatero about the "nervous" activities of the accused and his movements in "blading" his body to keep his bag concealed from the officers, led Cst. Teatero to believe that the accused was exhibiting the characteristics of "an armed gunman," and caused him to have reason to believe there was a gun in the accused's bag. In these circumstances, the police officers were lawfully entitled, if not obliged by common sense and the compelling interests of public and personal safety, to briefly perform a "pat down" or frisk search of the accused and his bag to determine if he was indeed armed, and to remove any imminent threat caused by the presence of a weapon. Again, the only reason no such search was conducted was because the accused immediately fled from the area.

94In these circumstances, the police were lawfully entitled to use reasonable and proportional force to prevent the accused's escape from their investigative detention, and to conduct the necessary weapons search in order to adequately protect themselves and the general public in the vicinity. See: R v. Mann, at paras. 36-45; R. v. Clayton and Farmer, 2007 SCC 32 (CanLII), [2007] 2 S.C.R. 725, at paras. 40-49; R. v. Dene, 2010 ONCA 796 (CanLII), at paras. 4-5; R. v. Amofa, 2011 ONCA 368 (CanLII), (2011), 85 C.R. (6th) 265, at paras. 8-10, 17-26; R. v. Plummer, 2011 ONCA 350 (CanLII), (2011), 272 C.C.C. (3d) 172, at paras. 44, 47-61; R. v. Byfield, 2012 ONSC 2781 (CanLII), 262 C.R.R. (2d) 251, at paras. 78-81, 110-114; R. v. Peterkin, 2013 ONSC 165 (CanLII), 295 C.C.C. (3d) 87, at paras. 91-95. Indeed, having a reasonable belief that the accused was armed with a gun and, thus, possessing the necessary grounds to conduct an investigative detention of the accused and coincidental (in this case) physical pat-down safety search for weapons, it would have been irresponsible for the police to have allowed the accused to simply flee from the scene. The danger to public safety that would have been caused by permitting the accused to run away is self-evident. Police officers cannot responsibly permit detained suspects, who are reasonably believed to be armed gunman, to run through public streets and pathways in the City of Toronto.

95The flight by the accused was, of course, another factor that the police were entitled to consider, amongst the entire constellation of factors, in forming the reasonable belief that the accused was carrying a gun in his bag. During the chase, Cst. O'Toole saw the accused reaching toward his bag with his left hand. Cst. Teatero, on the other hand, saw the accused "pinching" the bag against his body with his right elbow as he was fleeing. These observations provided further evidence in support of the objectively reasonable concerns over public safety generally, and police officer safety more particularly. See: R. v. Cooper, 2005 NSCA 47 (CanLII), 195 C.C.C. (3d) 162, at para. 47; R. v. Nesbeth, at paras. 17-20; R. v. Jackson, 2011 ONSC 5516 (CanLII), at paras. 62-65 R. v. Atkins, 2013 ONCA 586 (CanLII), 310 O.A.C. 397, paras. 14-15.

96Further, the police secured their safety and the public's safety in a reasonable manner. Making further verbal inquiries of the accused was hardly an option. When Cst. O'Toole orally inquired into the contents of the accused's bag, the accused quickly fled from the scene. The police were obliged to give chase and use reasonable force to effect the detention of the accused and conduct the necessary safety search for weapons. They did.

97The Supreme Court of Canada recently addressed the constitutional propriety of police "safety searches" in R. v. MacDonald, holding that, after the accused in that case refused to respond to police inquiries about the nature of the partially obscured "black and shiny" object in his hand, the police were justified in pushing open the accused's apartment door in order to see whether the object was, as suspected, a weapon. Importantly, expressly applying R. v. Mann, at para. 40, the court in R. v. MacDonald, at paras. 31, 39-41, re-affirmed the common law police power to conduct a "safety search" when an officer believes "on reasonable grounds that his or her safety, or the safety of others, is at risk." Such unplanned, reactionary, warrantless searches may properly be conducted, as the court observed in R. v. MacDonald, at paras. 32, 36-38, 41, where they are reasonably necessary to eliminate imminent threats to the safety of the public or the police in response to dangerous situations.

98There is some question whether the decision in R. v. MacDonald changes the legal threshold for lawful police "safety searches" from the traditional "reasonable suspicion" standard to a higher standard akin to the search warrant requirement of "reasonable and probable grounds." I do not read the R. v. MacDonald decision as having such an effect. It is important to recall that, from its judicial inception in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), the courts in the United States and Canada have long applied, in somewhat different language, the standard of "reasonable suspicion" to measure the constitutional permissibility of such "stop and frisk" searches. The significantly higher standard of "reasonable and probable grounds" has never been the required threshold, for the sound functional reason that it would render such searches legally redundant and practically useless. If a police officer possessed reasonable and probable grounds to believe a suspect was armed and dangerous, the suspect would invariably be arrested, not merely detained, and would be physically searched as incident to that arrest. There would be little point in the existence of the police "safety search" power, which has been clearly recognized in the appellate court jurisprudence, if it provided no search powers beyond those already recognized as being incident to an arrest. Moreover, if police officers are to lawfully conduct investigations in relation to detained (but not arrested) suspects, it only stands to reason that they must be given the lawful means of taking the necessary steps to protect themselves and others during the course of such investigations. Otherwise, the police would be needlessly placed at serious risk in the performance of their important public duties. See: R. v. Chehil, 2013 SCC 49 (CanLII), at para. 3, 20-24, 27; R. v. MacKenzie, 2013 SCC 50 (CanLII), at para. 74; R. v. Clayton and Farmer, at paras. 20, 28-30, 43-49, 81-84, 98, 103-104, 118, 123-126; R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182; 79 C.C.C. (3d) 482 (C.A.), at p. 202; Arizona v. Johnson, 129 S.Ct. 781 (2009), at p. 784; R. v. Crocker, 2009 BCCA 388 (CanLII), 275 B.C.A.C. 190, at paras. 62-72, leave denied: [2010] 1 S.C.R. viii; W.R. LaFave, Search and Seizure – A Treatise on the Fourth Amendment (2005, 4th ed.) at § 9.6(a); J.A. Fontana and D. Keeshan, The Law of Search and Seizure in Canada (2010, 8th ed.) at pp. 709-712.

99In R. v. Mann and its progeny the courts have confirmed the existence of the police power to detain individuals for investigative purposes and, where the police have "reasonable grounds" to suspect the detainee is armed and dangerous, to conduct a brief frisk or pat-down search to ensure their own safety and the safety of the public as they conduct such investigations. In my view, R. v. MacDonald is but an application of that well-established warrantless search power in a particular factual context, namely, where the search involves police entry of the confines of a private residence, where there is an increased expectation of privacy. See: R. v. Zargar, 2014 ONSC 1415 (CanLII), at paras. 29-32. Indeed, in R. v. MacDonald, the Supreme Court expressly purports to apply R. v. Mann in this factual context – not overrule it (or the many subsequent judgments that have clarified and applied it). The confusion in relation to this legal threshold has arisen, it seems to me, from the use of the phrase "reasonable grounds" to describe the threshold of "reasonable suspicion" or "articulable cause," as this same terminology is also used to describe the higher threshold of "reasonable and probable grounds." See: R. v. Mann, at paras. 33-35, 40-45, 63-64. Accordingly, it is important to recall that, in this particular context, the term "reasonable grounds" is used to describe a threshold of reasonable suspicion, not a threshold of reasonable probability.

100In any event, in the circumstances of the present case, the facts justify the warrantless police frisk search of the accused and his bag based on either legal threshold – reasonable suspicion or reasonable and probable grounds. See: R. v. MacDonald, at paras. 37-50, 66-91.

C. The Arrest and Search of the Accused

101Of course, after he was tackled by Cst. O'Toole and began wrestling on the ground with Cst. O'Toole and Cst. Reid, the accused began reaching for his partially open bag, at which point Cst. O'Toole also grabbed the bag and realized that it, in fact, contained a gun, and was able to see the extended magazine in the butt of the gun almost sticking out of the bag.

102After the eventual arrest of the accused, the police were able to retrieve the fully-loaded restricted firearm, a .45 calibre semi-automatic Ruger pistol, from the accused's bag. As I have already indicated, the police officers were entitled to employ reasonable and proportional force to prevent the accused from escaping from their investigative detention, and to seize the firearm that, during the struggle, Cst. O'Toole discovered was in the accused's bag.

103The seizure of this firearm was justified as reasonable under s. 8 of the Charter as both: (1) a search and seizure incident to the earlier investigative detention of the accused; and (2) a search and seizure incident to the later arrest of the accused when the gun was discovered.

D. The Admissibility of the Evidence

1. Introduction

104In light of my conclusion that the conduct of the police in the present case did not breach any of the constitutional rights of the accused, it is not technically necessary to consider the admissibility of the evidence obtained by the police under s. 24(2) of the Charter. Nevertheless, for the sake of completeness, and having heard the submissions of counsel on the issue, I will consider, at least briefly, the admissibility of the impugned evidence under the three prongs of the governing analysis under s. 24(2) of the Charter, as if there had been a violation of the accused's Charter rights. See: R. v. Grant, at para. 71; R. v. Côté, 2011 SCC 46 (CanLII), [2011] 3 S.C.R. 215, at paras. 45-48.

2. The Seriousness of the State Conduct

105As to the first prong of the test, namely, the seriousness of the state conduct, in my view any potential breach of the Charter rights of the accused was technical, inadvertent, and made in good faith. In such circumstances, there is no need for the court to dissociate itself from the fruits of the unlawful conduct by the police as the admission of the evidence would not send the message to the public that the courts condone deviations from the rule of law. Accordingly, as any violations of the Charter rights of the accused were not particularly serious, this first prong of the governing s. 24(2) analysis supports the admission of the evidence. See: R. v. Grant, at paras. 74-75.

3. The Impact of the Charter Violations

106As to the impact of the Charter violations, the second prong of the applicable test, in the present case, any potential violations of the Charter by the police did not have an especially significant impact upon the Charter-protected interests of the accused. The accused did not make any inculpatory statements or provide the police with any incriminating evidence that they would not have discovered otherwise. Accordingly, the second prong of the s. 24(2) analysis also favours the admission of the evidence. See: R. v. Grant, at paras. 76-78.

4. The Truth-Finding Function of the Trial

107As to the third avenue of inquiry, the court must inquire whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. The reliability of the evidence is, of course, an important factor in this step of the analysis. The importance of the evidence to the Crown's case is also a factor to be considered under this aspect of the inquiry. The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice when the remedy effectively terminates the prosecution. See: R. v. Grant, at paras. 79-84.

108In the present case there is no question that the loaded firearm and illegal drugs are inherently reliable and objective pieces of evidence that are essential to the determination of the merits of this case. If this evidence were excluded, the Crown's case would necessarily fail. On the other hand, if this evidence is admitted, the Crown would be able to establish that the accused was, indeed, in possession of this contraband. Society's interest in the adjudication of criminal trials on their merits would be seriously undermined if this kind of highly reliable and essential evidence was excluded. Accordingly, this third aspect of the governing s. 24(2) analysis clearly favours the admission of the evidence. See: R. v. Grant, at para. 139; R. v. Blake, 2010 ONCA 1 (CanLII), 251 C.C.C. (3d) 4, at para. 31; R. v. Jones, 2011 ONSC 4158 (CanLII), at para. 67; R. v. Duhamel, 2012 ONSC 6448 (CanLII), at para. 85.

5. Conclusion

109There is no overarching rule that governs how these three factors should be weighed and balanced. But, in the circumstances of the present case, all three of these factors support, to varying degrees, the admission of the impugned evidence. The balancing of these three key considerations, in light of all of the circumstances of this case, leads me to the conclusion that the evidence should be admitted. See: R. v. Grant, at para. 86; R. v. Cole, 2012 SCC 53 (CanLII), at para. 80-98; R. v. Aucoin, 2012 SCC 66 (CanLII), at para. 45-52.

E. Other Unrelated Alleged Police Misconduct

110The accused led evidence, through each of the five witnesses called by the defence, as to previous unrelated incidents of alleged misconduct by other police officers in the general vicinity of the Atkinson Housing Co-operative against each of these five witnesses. This evidence was said to be relevant to the defence allegation that the accused and his friends were victims of racial profiling, to show the general operational disregard of constitutional rights by police in the area, and to support the defence argument that the evidence from the accused in the present case should be excluded under s. 24(2) of the Charter.

111Generally speaking, the accused's four friends testified about how they were regularly and frequently stopped by the police, for no reason, at all hours of the day or night, whenever they were walking through the housing complex, and harassed for their identification, asked about whether they had anything they should not have, and physically frisk-searched. Sometimes the police would lift up their shirts as part of this search. Sometimes this happened more than once a day. Sometimes the stop would result in a radio call by the police to check up on the person stopped. None of these witnesses were ever given any reason for these stops. Sometimes the police would write down information on papers. These witnesses testified, generally, that they did not walk away from these intimidating interactions with the police as they assumed the police would just detain them longer, or use force against them. These witnesses testified that they were never charged with any offences as a result of these interactions, and they assumed these interactions took place just because they were young black males walking around in a high-crime area.

112In May of 2012, the accused was no longer living in the Atkinson Housing Co-operative. However, he testified that, years earlier, when he did live in that housing complex, he too was occasionally stopped by the police and questioned. Indeed, the accused testified that every time he saw the police in that complex, they stopped him. On these occasions, he would be asked where he lived, and sometimes he would be frisk searched. According to the accused, he did not think that he could just walk away from the police as he had heard about people being beaten up by the police. Mr. Le testified that, indeed, on one occasion he had been beaten up, along with two other young men, during a "police raid." The accused also testified that, more recently, when he returned to the Atkinson Housing Co-operative to visit a friend, he would be similarly stopped by the police and questioned. On these occasions, the accused did not recall being searched, but he recalled that he was asked for his identification and the police took notes of their interactions.

113I permitted defence counsel to lead this body of evidence, over the objection of the Crown, for the reasons advanced by defence counsel at the time the admissibility of this evidence was questioned. In the final analysis, however, I found this body of evidence unhelpful in resolving the important issues in this case.

114First, none of these defence witnesses, including the accused, suggested that the three police officers involved in the present case (i.e. Csts. O'Toole, Reid and Teatero) were in any way involved in any of these alleged earlier incidents. Accordingly, even assuming that all of these alleged earlier incidents involved unconstitutional misconduct on the part of the officers involved, none of that alleged misconduct can be properly attributed to the three police officers who were involved in the circumstances of the present case.

115Second, most of this evidence struck me as manufactured. While the testimony of these defence witnesses was strikingly similar in content, as if they had practiced their evidence in this regard together, it was steeped in the generic description of non-specific historical events that allegedly took place with frequency and regularity over a period of years. No specific dates were ever identified. No specific police officers were ever mentioned. Factual details that might identify a particular incident and distinguish it from another were entirely absent. In short, I found this body of evidence quite unpersuasive.

116Third, in the present case, at the end of the day, there is simply no evidentiary basis in support of any potential argument that these three police officers were engaged, consciously or unconsciously, in any exercise of racial profiling. The three police officers who were involved in the investigative activities in the present case were not drawn into the Dixon backyard to communicate with the young men present in that location because there were four black males and one Asian male in that backyard. The evidence is clear that the three police officers were directed to the Dixon backyard for perfectly justified and appropriate investigative purposes. The racial composition of the young men in the Dixon backyard was no more relevant to the investigative aims of the three police officers than the racial composition of the three-man investigative team of police officers.

IV. Conclusion

117In summary, on the evening of May 25, 2012, the three TPS officers were directed by security guards working in the Atkinson Housing Co-operative to the Dixon backyard. The officers attended at that location for valid and proper investigative reasons. When they arrived at that specific address, the officers found five young males talking in the backyard area. The officers were lawfully entitled, pursuant to the implied licence doctrine, to enter this backyard through the open gateway in order to speak to any potential occupier of the townhouse. The only occupier of the premises in the backyard, Mr. Dixon, never asked the police officers to leave.

118While the police were talking to some of the young men, including Mr. Dixon, the accused began acting nervously and started "blading" his body in order to conceal from the police the bag on his hip area – a bag that contained a fully-loaded semi-automatic firearm. At that point, the police had reasonable grounds to believe that the accused was armed and dangerous.

119Shortly thereafter, the accused was effectively detained by the police when he was asked about the contents of that bag. This was not an arbitrary detention, however, as the police had reasonable grounds to believe he was armed. Yet, before the accused could be physically detained, subjected to a brief frisk search for weapons, and advised of his constitutional rights, he ran away.

120The police gave chase, eventually tackled him to the ground and struggled to gain physical control over him. During this frantic struggle, the accused reached for his partially opened bag, and a police officer observed the butt end of the handgun and felt the handle of the gun in the bag. When the accused was eventually subdued and arrested, the search incident to that arrest revealed the loaded firearm in the accused's bag and, later, revealed his secretive possession of 13 grams of crack cocaine. These searches were reasonable and conducted in accordance with s. 8 of the Charter.

121In my opinion, throughout their interactions with the accused the police officers acted lawfully and in full compliance with the constitutional requirements of ss. 8, 9, and 10 of the Charter. The accused was not arbitrarily detained, nor was he subjected to any unreasonable search or seizure, nor was he deprived of the right to know the reasons for his detention and arrest or his rights to counsel.

122Alternatively, and in any event, in all of the circumstances of the present case, even if the police had violated one or more of the accused's rights under the Charter, in my view the evidence that was ultimately obtained by the police would be admissible under s. 24(2) of the Charter.

Kenneth L. Campbell J.