COURT OF APPEAL FOR ONTARIO

DATE: 20200311 DOCKET: C65183

Feldman, Gillese and Miller JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Isaac Bejarano-Flores Appellant

Counsel: Michael Dineen, for the appellant Kerry Benzakein, for the respondent

Heard: November 19, 2019

On appeal from the convictions entered on December 13, 2017, by Justice Kelly P. Byrne of the Superior Court of Justice, with reasons reported at 2017 ONSC 7480.

Gillese J.A.:

A. OVERVIEW

1The appellant was convicted by a judge, sitting without a jury, of possessing MDMA for the purpose of trafficking and possessing the proceeds of crime. He was sentenced to 14 months in jail. He appeals against conviction.

2The convictions stem from a police stop of a taxi van made in response to a 911 “gun call”, which is a telephone call reporting that a person has been seen with a gun. A customer at a York University food court reported the sighting to an employee, who reported it to York University security officers (York Security). York Security made the 911 gun call. DC Rand and his partner were in the area and immediately dispatched on the gun call.

3York Security were in constant communication with the police. Through surveillance cameras, York Security saw the gun suspect enter an orange and green taxi van. They described the route that the taxi van was taking, which they observed through the cameras, and dispatch broadcast that information. Using that information, DC Rand and his partner located the taxi van and stopped it to investigate.

4The appellant was the lone male passenger in the taxi van. When he stepped out of it, DC Rand saw that he matched four key aspects of the physical description of the gun suspect: male, medium build, early 20’s, 5’ 6”. However, he appeared to be Hispanic, not Black, as the gun suspect had been described.

5Despite the non-matching descriptor, DC Rand believed that the appellant was the gun suspect because, in addition to matching certain key aspects of the physical description of the gun suspect, he was sure that the taxi van was the one that York Security had seen the gun suspect enter only minutes earlier.

6DC Rand told the appellant that he was investigating an allegation that a person with a gun had boarded an orange and green taxi van. He then conducted a brief pat down search of the appellant that lasted less than a minute. He found no gun.

7A different police officer who had arrived on the scene searched the appellant’s knapsack – which was in the taxi van – for a gun. It did not contain a gun but it did have packages of what appeared to be controlled substances. Based on the drugs in his knapsack, DC Rand arrested the appellant. At that point, the appellant told DC Rand that he also had drugs in his jacket pocket and turned them over.

8About two minutes elapsed between the police stop of the taxi van and the appellant’s arrest.

9At trial, the appellant asserted that his ss. 8 and 9 rights under the Canadian Charter of Rights and Freedoms had been violated. He took no issue with the initial traffic stop of the taxi van but maintained that there were no grounds to continue to detain him once it was apparent to the police that he did not match the description of the gun suspect.

10The trial judge held that the appellant’s brief continued detention was constitutionally sound and that the pat down search was lawful. She concluded that the search of the knapsack was not lawful but admitted the evidence pursuant to s. 24(2) of the Charter.

11On appeal, the appellant submits that the trial judge erred in finding that his continued detention was lawful. He asks this court to exclude the evidence under s. 24(2), set aside the convictions, and enter acquittals.

12For the reasons that follow, I would dismiss the appeal.

B. BACKGROUND IN BRIEF

13Late on November 19, 2014, a customer in the York University food court told a Shopsy’s employee that he had seen someone with a gun. The employee reported the gun sighting to York Security who, in turn, called 911. At that time, the Shopsy’s employee did not have a description of the gun suspect.

14At 23:36:12, DC Rand and his partner were dispatched to respond to the gun call. They responded immediately. A gun call is the highest priority for police response because of the safety risks that accompany a firearm, especially in a busy place like a university campus.

15DCs Wenzel and Rodriguez were in a separate police car and also nearby. They, too, were dispatched and responded immediately.

16DC Rand and his partner drove toward York University, listening closely as dispatch continued to broadcast information about the unfolding events. DC Rand understood that someone had seen a person with a gun in the York University food court and reported it to a Shopsy’s employee, who had reported it to York Security. He also heard the following broadcast information:

• 23:37:31 – the gun suspect was described as male, Black, early 20’s, 5’ 6’’
• 23:37:58 – the gun suspect was further described as having a medium build and wearing a dark blue or black baseball hat, a black hoodie with the hood pulled over the cap, grey sweatpants, and a black jacket
• 23:39:05 –York Security saw a male matching the gun suspect description on Vanier Lane
• 23:39:17 – York Security saw the male outside Chimneystack Road, getting into a cab
• 23:39:32 – York Security was advised not to approach the male
• 23:39:40 – the cab was identified as an orange and green taxi van
• 23:39:50 – the taxi van was driving north onto Ian MacDonald Boulevard
• 23:40:14 – the taxi van proceeded north on Founders Road towards Steeles Avenue
• 23:41:41 – York Security lost their “visual” of the taxi van, having last seen it travelling westbound on Steeles Avenue, at the rear of the track and field center

17As DC Rand and his partner heard this information, they followed the same route as the taxi van. They drove onto the York University grounds, along Ian Macdonald Boulevard, up to Founders Road, and then westbound on Steeles Avenue.

18At 23:43:19, DC Rand saw an orange and green Beck taxi van headed westbound on Steeles Avenue, almost at Jane Street, in the curb lane. There were few other vehicles on the road. DC Rand was sure that the taxi van he saw was the same one that York Security reported seeing the gun suspect enter approximately four minutes earlier. As they got closer to the taxi van, he saw a single passenger inside. He decided to stop the taxi van and investigate.

19At 23:44:55, DC Rand and his partner stopped the taxi van just north of Steeles Avenue on Jane Street. DC Rand went to the rear passenger door and his partner went to the driver. As soon as he got to the taxi van, DC Rand opened the passenger door and saw that the appellant was the lone passenger. He was seated in the middle row of the van on the passenger side.

20DC Rand asked the appellant to step out of the taxi van. When he complied, DC Rand saw that he was the same gender, age, height, and build as the suspected gunman. However, he immediately noticed that the appellant appeared to be Hispanic, not Black. At trial, DC Rand testified that he identifies as Hispanic; he described the appellant’s skin tone as “medium” and “a little darker” than his own.

21DC Rand took the appellant to a grassy boulevard by the side of the road, told him he was investigating an allegation that a person with a gun had boarded an orange and green taxi van, and conducted a brief pat down search of the appellant’s person, looking for a weapon. He found none. No force was used and no weapons were drawn. The search was over in less than a minute.

22DC Wenzel and his partner arrived on the scene just after the taxi van was pulled over. Safety was their primary concern as they suspected a firearm was in the taxi van. DC Wenzel looked inside the taxi van’s open door and saw a knapsack between the bucket seats in the middle of the van. When he picked it up, he thought its weight was consistent with it containing a firearm so he opened the knapsack and looked inside. He did not find a gun but he did see several packages of what appeared to be controlled substances. He told DC Rand of his discovery. DC Wenzel then did a further visual search of the interior of the passenger area of the taxi van. He found no gun. His search of the knapsack and interior of the passenger area of the taxi van took about one minute.

23DC Rand arrested the appellant based on the drugs in his knapsack. At that point, the appellant produced a further bag of MDMA from the left vest pocket of his jacket. DC Rand lodged the appellant in his scout car. It was 23:49.

24The entire period the appellant was detained, from the initial stop of the taxi van to when he was arrested, was approximately two minutes.

The Trial

25At trial, the appellant asserted that his ss. 8 and 9 Charter rights had been violated and sought exclusion of the evidence on that basis. He otherwise conceded his guilt.

26He took no issue with the initial vehicle stop. He agreed that, based on the information the police had available, it was objectively reasonable for the officers to conclude that the Beck taxi van was connected to the gun call. However, he maintained that his continued detention after he exited the taxi van was not justified. He argued that, once it was apparent to the police that he did not match the broadcasted description of the gun suspect, they had no grounds to detain him and they had to stop their search efforts.

27The trial proper and the Charter voir dire proceeded as a blended hearing. An agreed statement of facts was entered. It stated that 29.28 grams of MDMA were found in a clear ziplock bag in the appellant’s knapsack and that he turned over to the police a further 27.89 grams of MDMA from his left vest pocket.

28Three police officers testified: DC Rand, DC Wenzel and DC Rodriguez. All three police witnesses testified that their focus that evening was on determining whether there was a gun and neutralizing the risk to public safety.

29As DC Rand’s testimony played a crucial role in the trial judge’s Charter ruling, key elements of it are now summarized.

30DC Rand testified that there was “no doubt in his mind” that the taxi van he stopped was the one that the gun suspect had boarded. He spotted it within a couple of minutes of the last reported observation of the van that York Security had identified as carrying the gun suspect. It was the same type of vehicle that York Security had described and was unusual for the area. The timing of the events, information he had received about the route taken by the taxi van, distinctive characteristics of the green and orange Beck taxi vans and their scarcity in the vicinity, and the appellant’s resemblance to the suspect on four key descriptors gave him a reasonable suspicion that the appellant was in possession of a firearm.

31He testified that it was only when the appellant stepped out of the Beck taxi van that he observed that the appellant did not appear to be Black. DC Rand identifies as Hispanic and he recognized that the appellant also appeared to be Hispanic. He described the appellant as male, Hispanic, 5’ 6”, in his 20’s, and of medium build.

32DC Rand also testified that the appellant’s clothing, while similar to the description of the gun suspect’s clothing, did not match. DC Rand was less sure when he noticed the differences in the appellant’s clothing from the description given of the clothing worn by the gun suspect but thought it was likely during the pat down search. He said he was less concerned about the non-matching clothing because it is not uncommon for suspects to change or discard pieces of clothing to avoid police detection.

33DC Rand testified that, despite the non-matching physical descriptor, everything else that had happened up to that point had been “so bang on” that he believed that the appellant was the gun suspect. His belief was based on the physical descriptors that the appellant did match and the following information, which he believed to be accurate:

• the vehicle was a taxi van, which was rare for that area, and no other Beck taxi vans had been observed in that area that night;
• the last known location of the Beck taxi van, as observed by York Security, was very specific and consistent with DC Rand’s initial observations of the vehicle and the location of the vehicle stop;
• the traffic stop took place within just a couple of minutes of the last reported observation of the Beck taxi van by York Security; and
• there was a single male passenger inside the Beck taxi van.

34DC Rand testified that, after 18 years of policing experience, he was familiar with the frailties attached to eyewitness identification evidence. He said that stress and a host of other factors can impair an individual’s ability to accurately observe and retain information and so he did not place much weight on the non-matching physical descriptor, especially when considered in combination with the other information he had, which he found to be reliable, such as the nature of the vehicle in question.

C. THE CHARTER RULING

35The trial judge began by addressing the defence submission that the police violated the appellant’s s. 9 Charter rights because they lacked sufficient grounds to detain him once they saw that he did not match the gun suspect’s description.

36After setting out the legal principles that govern investigative detentions, the trial judge noted that the defence took no issue with the initial traffic stop. The defence accepted that on the information the police had, it was objectively reasonable for the officers to conclude that the taxi van was connected to the 911 gun call. The trial judge then considered whether the appellant’s continued detention, after the initial stop, was justified. She observed that to justify the continued detention, the Crown had to show that the police had reasonable grounds to suspect, based on the totality of the circumstances, that the appellant was the individual connected to the gun call they were investigating.

37The trial judge rejected the defence submission that DC Rand failed to turn his mind to the non-matching physical descriptors. She found, on the contrary, that DC Rand had taken them into consideration. In making this finding, the trial judge relied on DC Rand’s testimony that: (1) immediately on removing the appellant from the taxi van, he was aware that the appellant appeared to be Hispanic, rather than Black, as the gun suspect had been described; and (2) while less sure of when he noticed the differences in clothing, he thought it was likely during the pat down search. DC Rand testified that he was less concerned about the non-matching clothing because it is not uncommon for suspects to change or discard pieces of clothing to avoid police detection.

38The trial judge accepted DC Rand’s explanation for why he reasonably suspected that the appellant was the gun suspect despite the non-matching descriptors. She referred to his evidence on the frailties attached to identification evidence: stress and a host of other factors can impair an individual’s ability to accurately observe and retain information so he did not place much weight on it, especially when considered in combination with the information he had that he deemed accurate, such as the nature of the vehicle in question.

39The trial judge found that DC Rand was entitled to rely on his 18 years of policing experience in assessing how much weight to attach to the physical descriptors. She also found that DC Rand’s conclusion that witness descriptions can often be wrong was reasonable, in the circumstances, when he knew nothing of the perspective or ability of the witness, or witnesses, who gave the description of the gun suspect.

40The trial judge distinguished the case before her from R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, relied on by the defence. She explained that in Clayton, the police had only two physical descriptors available to them: skin colour and gender. In the case before her, there were multiple physical descriptors and the appellant matched several of them; the vehicle description was distinctive and a match; and, the geographical and temporal connections were relevant and accurate. She found that, when combined with the other factors, they provided “ample and reasonable grounds” for the appellant’s continued detention. She concluded that, even after taking into consideration the non-matching descriptors, the appellant’s initial and continued detention were objectively reasonable.

41The trial judge then addressed whether the pat down search and/or the search of the appellant’s knapsack violated his s. 8 Charter rights.

42In holding that the pat down search was justified, the trial judge relied on her findings that justified the appellant’s continued detention and added that the police were responding to a 911 gun call; they had ample grounds to suspect the appellant was the individual that had been seen with a gun; and, the immediate concern for officer safety and the safety of others was “self-evident”. She found that the timing of the continued detention and the pat down search were responsive to the circumstances. Given how quickly the police located and stopped the orange and green taxi van, she found it reasonable to conclude that the appellant would still have had access to the firearm when the police detained and searched him. She concluded that the danger to safety was immediate and that the brief, non-intrusive and reasonable pat down search was lawful.

43However, the trial judge held that DC Wenzel’s search of the appellant’s knapsack was unlawful. She noted that a search incident to investigative detention is anchored in preserving safety from immediate danger. In this case, the immediate danger was directly attached to the suspect, who was being detained by DC Rand. She said that a simple instruction removing the driver from the taxi van or seizing the knapsack, without searching it, would have alleviated all immediate safety concerns.

44In light of the unlawful search of the knapsack, the trial judge conducted a s. 24(2) analysis to determine whether to exclude the evidence. In her view, all three steps in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, favoured admitting the evidence.

45On the first step, the trial judge found that the breach was on the less serious end of the spectrum, since the police had acted reasonably and in good faith. On the second step, she found that, given the brief and circumscribed nature of the search of the knapsack, the breach had a minimal impact on the appellant’s privacy interest in its contents. On the third step, she viewed society as having a strong interest in the trial being resolved on its merits because of the serious nature of the drugs, and that the drugs were reliable evidence and essential to proving the Crown’s case.

46Accordingly, the trial judge admitted the evidence.

D. THE ISSUES

47The appellant submits that the trial judge erred in:

1. finding that his continued detention was lawful; and
2. failing to exclude the evidence pursuant to s. 24(2).

E. ANALYSIS

(1) Did the trial judge err in finding that the appellant’s continued detention was lawful?

48As soon as the appellant emerged from the taxi van, DC Rand saw that he did not match one key aspect of the description of the gun suspect: the appellant appeared to be Hispanic, not Black. The appellant submits that, at that point, the police had no grounds to continue to detain him and the trial judge erred in ruling otherwise. He argues that the trial judge erred in accepting DC Rand’s explanation for discounting his non-resemblance to the description of the gun suspect, placed undue weight on DC Rand’s belief that the taxi van was the same one that York Security saw the gun suspect enter, and failed to persuasively distinguish Clayton from the present case.

49I do not accept this submission or the arguments made in support of it. In my view, in that dangerous and dynamic situation where public safety concerns were paramount, these experienced police officers had reasonable grounds to suspect that the appellant was the gun suspect.

The Relevant Legal Principles

50The legal principles governing investigative detention are well settled and neither party contends that the trial judge erred in her articulation of them. Before setting out those principles, I remind myself that, in reviewing the decision below, this court must engage in a de novo analysis. This is so because whether the facts as found by the trial judge meet the standard for a reasonable suspicion is a question of law and reviewed on a correctness standard: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 60.

51A police officer may detain an individual for investigative purposes if there are reasonable grounds to suspect, in all the circumstances, that the individual is connected to a particular crime and such a detention is necessary: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45.

52The following recitation of the legal principles governing the reasonable suspicion standard comes from paras. 25-35 and 45 of Chehil.

53The reasonable suspicion threshold respects the balance struck – in this case under s. 9 of the Charter – by permitting law enforcement to employ legitimate but limited investigative techniques (Chehil, at para. 25). Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts that can then be subjected to independent judicial scrutiny. This scrutiny is exacting and must account for the totality of the circumstances (Chehil, at para. 26).

54While reasonable grounds to suspect and reasonable and probable grounds to believe are similar, in that both must be grounded in objective facts, reasonable suspicion is a lower standard as it engages the reasonable possibility, rather than probability, of crime (Chehil, at para. 27). The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime. However, the suspicion cannot be so broad that it descends to the level of generalized suspicion (Chehil, at para. 28).

55Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience (Chehil, at para. 29). Reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors (Chehil, at para. 32). Exculpatory, neutral or equivocal information cannot be disregarded when assessing a constellation of factors (Chehil, at para. 33).

56The requirement for objective and ascertainable facts as the basis for reasonable suspicion permits an independent after-the-fact review by the court and protects against arbitrary state action. The onus is on the Crown to show that the objective facts rise to the level of reasonable suspicion, such that a reasonable person, standing in the shoes of the police officer, would have held a reasonable suspicion of criminal activity (Chehil, at para. 45).

Application to this Case

57To be constitutionally sound, the inference of reasonable suspicion must be grounded in objectively discernable facts known to the police and tied to both the individual being detained and the specific offence being investigated. In my view, assessed against the totality of the circumstances, a reasonable person standing in DC Rand’s shoes would have had a reasonable suspicion that the appellant was the gun suspect.

58A consideration of the totality of the circumstances begins by placing the events in context. It will be recalled that these events began late at night in a food court on the York University campus, when a customer saw a man with a gun. The customer told a Shopsy’s employee who called York Security. York Security immediately made a 911 gun call and two police vehicles in the vicinity were deployed: DC Rand and his partner were in one car, DC Wenzel and his partner were in the other. Through video surveillance cameras, York Security saw the gun suspect get into an orange and green Beck taxi van and they described, to the police dispatch, the route that the taxi van was taking.

59DC Rand and his partner knew that the suspected gunman was seen entering an orange and green Beck taxi van. They followed the same route as that of the taxi van and, within a very few minutes, they found and stopped an orange and green Beck taxi van carrying a lone male passenger, the appellant. At trial and before this court, the appellant accepts that the initial traffic stop was justified – that is, that it was objectively reasonable for the police officers to have concluded that the Beck taxi van was connected to the gun call.

60As soon as the appellant stepped out of the taxi van, DC Rand knew that he did not match the gun suspect description in all respects. He was the same gender, age, height and build as the gun suspect but he appeared to be Hispanic, not Black. Later, during the pat down search, DC Rand also realized that the clothing the appellant was wearing was also different from that given for the gun suspect, although he felt it was similar.

61However, DC Rand was certain that the taxi van he stopped was the one that the gun suspect had boarded. Its temporal and geographical proximity to the gun call, the information he had about the route the taxi van followed, the distinctive characteristics of the orange and green taxi van, the absence of other such vans in the area, and the presence of a single male passenger inside the taxi van all contributed to his certainty. This certainty, coupled with the appellant’s resemblance to the gun suspect on four key markers, gave DC Rand the reasonable suspicion that the appellant was in possession of a firearm.

62The appellant says that the trial judge erred in accepting DC Rand’s explanation for why, despite the non-matching descriptors, he believed he had reasonable grounds to suspect that the appellant was the gun suspect. I do not agree.

63It will be recalled that, at trial, DC Rand explained why the discrepancies in skin colour and clothing did not undermine his suspicion that the appellant was the gun suspect. During his many years as a police officer, he had worked dozens of gun calls and learned that eye witnesses are often mistaken when they try to describe a person they have just seen. He explained that there are many factors that can impair a witness’s ability to accurately observe and retain information about eyewitness identifications. In this case, DC Rand knew almost nothing about the eyewitness’s capacity to observe the gun suspect. And, in his experience, it is not uncommon for a suspect to change clothes while police are in pursuit.

64The trial judge found that DC Rand was entitled to rely on his 18 years of police experience in assessing how much weight to attach to the physical descriptors. She also found his conclusion that such descriptions can often be wrong was reasonable in the circumstances where he knew nothing of the perspective or ability of the witness who had given the description of the gun suspect.

65I see no error in the trial judge’s findings on this matter. The known frailties of identification evidence have been identified both in social science literature and in Canadian jurisprudence: see, for example, R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694, at para. 40, R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 78-79. Further, the trial judge was obliged to determine whether a reasonable person “standing in DC Rand’s shoes” would have had a reasonable suspicion that the appellant was the gun suspect. In making that determination, it was open to the trial judge to consider DC Rand’s policing background and to find, as she did, that he was entitled to rely on his 18 years of policing experience when assessing how much weight to give to the non-matching physical descriptors.

66The appellant also complains that the trial judge placed undue weight on DC Rand’s belief that the taxi van was the same one that York Security saw the gun suspect enter. Again, I see no error in her finding on this matter. The initial traffic stop was objectively reasonable, as the appellant conceded. Only a few brief minutes elapsed between York Security advising it had seen the gun suspect enter the orange and green taxi van and the police stop of a vehicle of the same description. Further, the location of the taxi van was fully consistent with the route which York Security described the taxi van carrying the gun suspect to have followed.

67Finally, the appellant takes issue with the trial judge’s treatment of Clayton. Again, I do not agree. As the trial judge noted, in Clayton, the police had only two physical descriptors available to them. In this case, the appellant matched several of the physical descriptors; the vehicle description was distinctive and a match; and, the geographical and temporal connections were relevant and accurate.

68In conclusion, I remind myself that in determining whether there are objective facts that rise to the level of reasonable suspicion, the court must conduct an exacting scrutiny. However, while probing, the judicial inquiry must be fact-based, flexible, and grounded in common sense. As well, it is important to recall that reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors.

69In this case, the appellant matched four key characteristics of the gun suspect – gender, age, height and build. It is true that the appellant appeared to be Hispanic, rather than black, as the gun suspect had been described, and that his clothing was also different from that given for the gun suspect. But DC Rand did not disregard these non-matching physical descriptors. He explained why they did not detract from his certainty that the passenger in the Beck taxi van was the gun suspect and his explanation was found to be reasonable by the trial judge. The matching four physical characteristics, the distinctive features of the Beck taxi van, the absence of other such vehicles in the vicinity, and the temporal and geographical connections between the Beck taxi van and the gun sighting are objectively discernible facts to be understood within the context of a 911 gun call. The police were faced with a dangerous and dynamic situation in which public safety was the paramount concern. In my view, based on the totality of the circumstances, the appellant’s continued detention was objectively reasonable.

(2) Did the trial judge err in failing to exclude the evidence?

70The trial judge’s s. 24(2) analysis is based on her conclusion that the search of the appellant’s knapsack was the only breach of his Charter rights. The appellant’s submission is that his continued detention, following the initial stop of the taxi van, was unlawful and constituted a breach of s. 9. Accordingly, he says, this court owes no deference to the trial judge’s application of the Grant test.

71As I have found that the appellant’s continued detention was lawful, it is unnecessary to revisit the trial judge’s s. 24(2) determination.

F. DISPOSITION

72Accordingly, I would dismiss the conviction appeal. The Crown has conceded that the mandatory victim fine surcharge should be quashed and I would so order.