DATE: 20060602

DOCKET: C39828

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JASON BURKE (Appellant)

BEFORE:

WEILER, GOUDGE and ROULEAU JJ.A.

COUNSEL:

Michael Dineen

for the appellant

Daniel Guttman

for the respondent

HEARD:

May 29, 2006

On appeal from the conviction entered and the sentence imposed on February 6, 2003 by Justice Bruce C. Hawkins of the Superior Court of Justice, sitting alone.

E N D O R S E M E N T

[1] The appellant appeals the trial judge’s decision to admit evidence discovered in a search following his arrest. The central issues are the constitutionality of the appellant’s detention and arrest.

FACTS

[2] Two officers, while on patrol, saw Burke riding an inappropriately sized bicycle on the sidewalk. They decided to follow him to see what he was up to. They observed him speaking to two other individuals in the Jane Finch Corridor. Burke and the other two men fled when they saw the police. He rode across an intersection against a red light. The police followed Burke into the lobby of an apartment complex. They questioned him there and the interaction between them was captured on videotape although there was no sound. A police officer was on each side, and quite close to, the appellant. As part of their questioning, the police asked Burke if he had any outstanding charges. He admitted that he was before the court on cocaine charges. The officer then spotted what was confirmed to be a cell phone. When asked if it was a cell phone, Burke replied that it was a cell phone, but it wasn’t his coat. The police officers arrested Burke for failing to comply with the terms of his recognizance. One of the officers, Officer Cecile, believed that the appellant’s answer was evasive and an attempt to distance himself from the cell phone. It was his experience that a condition of bail in narcotics cases is that possession of cell phones is prohibited.

[3] The pat down search following his arrest revealed a loaded .45-calibre handgun, a magazine with bullets, bullets, a small amount of crack cocaine and a “tear-away business card”.

[4] At trial, the defence turned exclusively on a voir dire concerning the admissibility of the evidence found from the search incidental to the arrest. The trial judge found that the questioning by police did not constitute an unlawful detention and, while the arrest was executed without a warrant, the possession of a cell phone with a possible ban, and the appellant’s answer to the police officers’ questions, provided a reasonable basis for the arrest.

[5] Therefore, the search and seizure were pursuant to the common law right incidental to arrest and he held there was no Charter breach.

[6] On the question of whether to exclude the evidence under s. 24 if there had been a Charter breach, the trial judge found that the officers were acting in good faith in the honest belief that they had grounds for arrest. The evidence was non‑conscriptive. He concluded that its exclusion, rather than its inclusion, would bring the administration into disrepute. He came to this conclusion by: living in Toronto, reading the newspapers, by watching televised community meetings of residents in the very neighbourhood where Burke was arrested and watching the pleas of the mothers who lost their sons in gun fire. Thus, if there was a Charter breach, he would have only excluded the tear away business card.

[7] Burke has served his sentence and appeals against his conviction alone.

ANALYSIS

[8] The appellant submits the trial judge erred by finding that Burke was not detained until arrested. Objectively, the appellant submits that he was stopped in part for violating the Highway Traffic Act because he was riding his bike on the sidewalk and crossed the street diagonally on a red light. The appellant says that he was required under the Highway Traffic Act to answer the initial questions about identity. In addition the appellant submits that he was restricted in movement by the positioning of the officers. He was never told that he was free to leave.

[9] The appellant acknowledges that there was no physical detention. The issue is whether there was a psychological detention. The appellant did not testify at his trial that he felt subjectively detained or compelled to answer. The appellant’s counsel submits that, notwithstanding this, the trial judge erred in not drawing the inference that the appellant was detained. He submits that the reasonable conclusion would be that the appellant is being required by a police officer to remain. The appellant relies on R. v. Ferdinand 2004 ONSC 5854, [2004], O.J. No. 3209 at para 43 in support of his position. Ferdinand is distinguishable because, unlike the present case the appellant and two of his friends testified that they felt detained.

[10] We appreciate, as did the trial judge, that the fact an accused does not testify is not definitive of whether there has been a detention and that the surrounding circumstances must be considered. The trial judge chose not to draw the inference submitted and we cannot say that he erred in principle in not doing so. The detention was not arbitrary.

[11] On the issue of whether the trial judge erred in concluding the appellant’s arrest was lawful, the Crown concedes that the trial judge stated the legal test incorrectly but says that his findings are nevertheless entitled to deference.

[12] The question of whether there were reasonable and probable grounds to arrest is a close one. The appellant concedes that the police subjectively believed that they had grounds to arrest him. The issue is the objective grounds.

[13] Whether or not the police had grounds to lawfully arrest the appellant, we are of the opinion that the evidence was admissible pursuant to s. 24(2). The officers acted in good faith. The arrest was not arbitrary. The gun could have been found pursuant to a patdown officer safety search pursuant to a lawful detention and therefore the fairness of the trial was not affected. The search was minimally intrusive and, although some force was used in effecting the arrest, it was after the gun was discovered and it appears that the amount of force involved was inadvertent. There is no evidence that the appellant was injured. The offences in question are serious.

[14] We would not interfere with the trial judge’s exercise of discretion in admitting the evidence under s. 24(2) in the event that there were no reasonable probable grounds to arrest.

[15] Accordingly the appeal is dismissed.

“Karen M. Weiler J.A.”

“S. T. Goudge J.A.”

“Paul Rouleau J.A.”