Her Majesty the Queen v. L.B. [Indexed as: R. v. B. (L.)]

86 O.R. (3d) 730

Court of Appeal for Ontario,

Moldaver, MacPherson and Cronk JJ.A.

September 5, 2007

Charter of Rights and Freedoms -- Arbitrary detention or imprisonment -- Detention -- Trial judge erring in inferring psychological detention in encounter between accused and police officers and in effectively shifting onus to Crown to show that accused knew that he could refuse to respond to questions and could walk away -- Onus remaining on accused to establish psychological detention -- Accused not testifying on voir dire -- Accused's conduct during encounter being inconsistent with that of person who felt himself to be subject to psychological compulsion -- No presumption that pedestrian would assume under compulsion to answer when police ask for identification -- Trial judge erring in concluding that accused was detained prior to being questioned by police about ownership of bag containing firearm -- Canadian Charter of Rights and Freedoms, s. 9.

The accused youth was charged with possession of a loaded restricted firearm and other offences. He and another young man aroused the suspicion of two police officers. The two young men, F and LB, were seated apart, yet appeared to be "together" as they looked at each other and LB spoke to F. F was seated partly on the railing at the bottom of stairs leading to the school and LB was near the top of the stairway, within school grounds. The accused could see each other but not the area in which the other was seated. It reminded the officers of how police officers would set up to find someone, giving each a view of a different area but still able to see each other. When the police officers approached the youths, LB, who police had noted was carrying a knapsack, stood up and, taking the initiative, walked directly up to one of the officers. The officers had planned for each of them to talk to one of the accused and to prevent them from talking to each other. The officer asked for his name and date of birth with the intention of running a CPIC check. Meanwhile, the other officer noticed that LB was no longer carrying the knapsack. The officer went to the area where LB had been sitting and started to look around. He noted that LB now appeared fidgety and was looking around, although he had appeared confident when he initially approached the officers. The officer found the bag and asked whose it was. LB said"I don't know", and the other youth did not respond. The officer treated the bag as abandoned property and opened it. Inside, he found school work with LB's name on it and a loaded .22 calibre handgun. Neither accused testified on the Charter voir dire. The trial judge found that the accused was detained when he was asked for identification, that the detention was arbitrary and violated s. 9 of the Canadian Charter of Rights and Freedoms, [page731] that the police violated the accused's s. 10(b) Charter rights by not informing him of his right to counsel before asking him about ownership of the bag, and that the search of the bag violated the accused's rights under s. 8 of the Charter. The evidence of the gun and LB's statement that the bag wasn't his was excluded under s. 24(2) of the Charter and the accused was acquitted. The Crown appealed.

Held, the appeal should be allowed.

In deciding the issue of psychological detention, the trial judge erred in presuming that the accused felt compelled to answer the questions put to him by the police, without the need for testimony from him as to his subjective perception of a sense of compulsion. The trial judge effectively shifted the onus to the Crown to show that the accused knew that he could refuse to respond to the questions put to him by the police and that he could walk away with impunity. In an encounter between a police officer and a pedestrian (as opposed to a motorist), a compulsion to comply will not be inferred simply because a request for identification came from a police officer, and there is no presumption that the pedestrian felt a compulsion to respond unless the Crown can show evidence of informed consent. The accused bore the onus of establishing, on a balance of probabilities, that he was psychologically detained. The accused's conduct, until the officer started looking for the bag, was confident and assertive. This was not a case of psychological compulsion exerted by the police; it was a case of psychological control attempted by the accused. Once LB realized that his ploy of approaching the police and engaging them in conversation hadn't distracted them from his bag, he began to panic. The evidence on the voir dire was consistent with LB fearing discovery of the gun rather than feeling psychologically detained. His failure to testify did not help his case. As the accused was not detained at that point, the police were not required to inform him of his right to counsel before asking him who owned the bag. Given the accused's response to that question and the non-response of the other youth, the officers were entitled to treat the bag as abandoned and to search it. The youth's rights under ss. 9, 10(b) and 8 of the Charter were not violated.

The trial judge erred in excluding the evidence of the gun under s. 24(2) of the Charter. The police officers acted in good faith. Possession by a student of a loaded firearm on school property is very serious. Absent egregious conduct by the police, most Canadians would find it unconscionable for the accused to be set free without a trial on the merits.

APPEAL by the Crown from the judgment of Grossman J. of the Ontario Court of Justice, dated April 22, 2004, acquitting the respondent on eight counts of firearm and firearm-related offences.

Cases referred to R. v. H. (C.R.), [2003] M.J. No. 90,173 Man. R. (2d) 113, 293 W.A.C. 113, [2003] 6 W.W.R. 481, 174 C.C.C. (3d) 67, 2003 MBCA 38, 11 C.R. (6th) 152 (C.A.), apld R. v. Mann, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49, 187 Man. R. (2d) 1, 241 D.L.R. (4th) 214, 330 W.A.C. 1, [2004] 11 W.W.R. 601, 122 C.R.R. (2d) 189, 185 C.C.C. (3d) 308, 2004 SCC 52, 21 C.R. (6th) 1; R. v. Mellenthin, 1992 50 (SCC), [1992] 3 S.C.R. 615, [1992] S.C.J. No. 100, 5 Alta. L.R. (3d) 232, 144 N.R. 50, [1993] 1 W.W.R. 193, 12 C.R.R. (2d) 65, 76 C.C.C. (3d) 481, 16 C.R. (4th) 273, 40 M.V.R. (2d) 204, consd R. v. Powell, 2000 50760 (ON CJ), [2000] O.J. No. 2229, 35 C.R. (5th) 89, 78 C.R.R. (2d) 324, 46 W.C.B. (2d) 442 (C.J.), not folld Other cases referred to R. v. Grafe, 1987 170 (ON CA), [1987] O.J. No. 796, 22 O.A.C. 280, 36 C.C.C. (3d) 267, 60 C.R. (3d) 242 (C.A.); R. v. Grant (2006), 2006 18347 (ON CA), 81 O.R. (3d) 1, [2006] O.J. No. 2179, 213 O.A.C. 127, 209 C.C.C. (3d) 250, 38 C.R. (6th) 58 (C.A.) [Leave to appeal to S.C.C. granted [2007] S.C.C.A. No. 99]; R. v. Hall (1995), 1995 647 (ON CA), 22 O.R. (3d) 289, [1995] O.J. No. 544, 39 C.R. (4th) 66 (C.A.); [page732] R. v. Moran, 1987 124 (ON CA), [1987] O.J. No. 794, 21 O.A.C. 257, 36 C.C.C. (3d) 225 (C.A.); R. v. Orellana, [1999] O.J. No. 5746 (C.J.); R. v. Rajaratnam, [2006] A.J. No. 1373, 397 A.R. 126, 384 W.A.C. 126, [2007] 3 W.W.R. 222, 148 C.R.R. (2d) 172, 214 C.C.C. (3d) 547, 2006 ABCA 333, 43 C.R. (6th) 280, 67 Alta. L.R. (4th) 22, (C.A.); R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, [1985] S.C.J. No. 30, 38 Alta. L.R. (2d) 99n, 40 Sask. R. 122, 18 D.L.R. (4th) 655, 59 N.R. 122, [1985] 4 W.W.R. 286, 13 C.R.R. 193, 18 C.C.C. (3d) 481, 45 C.R. (3d) 97, 32 M.V.R. 153

Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 8, 9, 10(b), 11(b), 24(2)

Christopher Webb, for appellant. Daniel A. Stein, for respondent.

The judgment of the court was delivered by

MOLDAVER J.A.: --

Introduction

[1] The respondent L.B. was tried by Grossman J. of the Ontario Court of Justice on one count of possession of a loaded restricted firearm and seven other gun and gun-related counts. He was acquitted on all counts, without a trial on the merits, as a result of a pre-trial ruling in which the trial judge excluded the gun from evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms.

[2] The Crown appeals from the respondent's acquittals and if successful, seeks a new trial on all counts.

[3] The seminal issue at trial, and now on appeal, is whether the respondent was detained when, in response to a question from a police officer, he denied ownership of a knapsack in which his school work was found, along with a loaded .22 calibre handgun.

[4] Applying the law, as he perceived it, to the uncontradicted evidence of two police officers who testified on a voir dire about their involvement with the respondent and the circumstances leading to the discovery of the gun, the trial judge found that the respondent was detained prior to being questioned about the ownership of the knapsack.

[5] That finding was central to the outcome of the case. It took the trial judge down an analytical path that required him to consider how, if at all, the police had breached the respondent's [page733] Charter rights from the point at which he was detained to the discovery of the gun. That analysis proved fatal to the Crown's case. The trial judge found that from the point of detention to the finding of the gun, the police violated the respondent's Charter rights in three separate ways.

[6] First, he found that the police had no legal justification to detain the respondent and his detention was therefore arbitrary in contravention of s. 9 of the Charter. Second, he found that the police failed to inform the respondent of his right to counsel under s. 10(b) of the Charter before questioning him about the ownership of the knapsack. Third, he found that the police had no lawful authority to search the knapsack and in doing so, they breached the respondent's privacy rights under s. 8 of the Charter.

[7] The trial judge next turned to s. 24(2) of the Charter and made two pertinent findings.

[8] First, he found that the gun would not have been discovered had the police not violated the respondent's privacy rights. Second, he found that the administration of justice would be brought into disrepute if the court were to turn a blind eye to police conduct "that breaches fundamental constitutional rights" and threatens "the very fabric of our society". Accordingly, the trial judge excluded the gun from evidence under s. 24(2).

[9] For reasons that follow, I am respectfully of the view that the learned trial judge came to the wrong conclusion on the issue of detention. Regrettably, that error skewed his entire analysis. Had the trial judge applied the correct legal principles to the uncontradicted facts, he would have found that the respondent was not detained when he was questioned about the ownership of the knapsack, nor indeed, at any time prior to arrest; likewise, he would have found no Charter breaches. It follows that the gun should have been admitted into evidence. Accordingly, I would allow the appeal and set aside the acquittals.

The Facts Leading to the Respondent's Arrest

[10] The facts leading to the respondent's arrest are straightforward and uncontradicted.

[11] On September 11, 2002, at approximately 2:35 p.m., Detective Constables Reimer and Purches were driving in an unmarked police car westbound on Firgrove Crescent in the City of Toronto. Both officers were in plainclothes. From their car, they noticed a young male (later identified as F) partially seated on the railing of a walkway leading up to the school grounds of Westview Collegiate High School. As the officers drew closer, they saw F turn his head and look up towards the top of the stairs. At that point, they noticed a second young male (later [page734] identified as the respondent L.B.), seated on the school grounds, just inside a fence at the upper end of the walkway.

[12] The officers continued westbound for a short distance and then turned around and took up surveillance of F, whom they could see at the bottom of the staircase. While parked, they observed F glancing around and looking up in the general direction of L.B. He appeared to be speaking to L.B. This led the officers to believe that although the two young men were physically separated, they were in fact "together". As Officer Reimer explained, their conduct aroused suspicion:

A: When we first drive by we see Mr. F seated at the lower level, which isn't suspicious or any, anything. But then as we drive by I recognize him slightly, I don't know where I can place him from, and he looks up to Mr. B. Now Mr. B is sort of -- I believe he was seated. And the way it's laid out is that Mr. F is on the lower level and Mr. B is on the upper level. They can't see each other's area where they're looking but they can see each other. And then after watching them for a minute it appeared that they were together.

Q: Okay.

A: And it was even more suspicious of why they weren't together if they were together. They were some distance apart and it was very suspicious to me that they would place themselves in that sort of position. Like that's something that I would do as a police officer if I was looking for somebody in that area with my partner. My partner would take the upper level, I'd take the lower level, and we'd always be able to see each other. It's a police tactic.

[13] Officer Purches confirmed his partner's uneasy feeling:

I remember thinking why were they not in school and what were they doing set up -- perhaps set up isn't the right word, but why were they positioned that way, connected, however physically separated, and was there a reason for that.

[14] After several minutes, the officers decided to speak to the two youths to find out what they were doing. Officer Reimer drove eastbound on Firgrove, crossed lanes and stopped in the northbound lane opposite to the natural flow of traffic. He parked the car in front of where F was seated on the railing.

[15] Both officers then got out of the car. Officer Purches, who was on the passenger side, looked over the roof of the car at F and L.B., displayed his police badge and warrant card and called out "Toronto Police".

[16] At that point, Officer Purches got a better look at L.B., who was seated at the top of the slope on school property. L.B. was crouched with his knees in the air, and he had a black bag or satchel in his right hand. L.B. stood up immediately and held the bag low behind his right thigh. He then crossed the top of the walkway, [page735] from east to west, and passed a pole attached to a chain-link fence, before proceeding down the stairs towards the two officers.

[17] L.B.'s actions caught the officers somewhat off-guard. While it was their intention to speak to both youths, L.B. walked directly up to Officer Reimer without being summoned or directed to do so. Officer Reimer testified in cross- examination about the event as follows:

Q: Okay. Neither you nor Officer Purches, that's your evidence, motioned for Mr. B to come and speak to you?

A: No, we didn't.

Q: He just came on his own?

A: Like I said, he caught me off guard when he came up to me. I didn't expect to speak with him. I expected to speak with Mr. F. And Mr. B walked right up to me. Or he walked down the stairs right up to me.

Q: He walked down the stairs?

A: Um hmm.

Q: Perhaps it was his intention, Officer, to just keep walking.

A: He could have. . . . . .

Q: And it's your testimony that L.B. just comes right up to you and starts chatting with you, is that right?

A: That's the way it appeared to me.

Q: But you're the one that asks him a question initially, isn't that right?

A: Yeah, but it's -- like it's a casual"Hey, how's it goin'?" And he, had walked up to me and stopped. He didn't motion to try and get by me. He could have very well easily. Like there was room between us, like between myself and my partner. And he walked up to me and stopped. I asked him"Hey, how's it goin'?"

Q: So he would have had to move around you to keep going?

A: Well, he was walking straight at me when he was walking at me. He wasn't walking between us. He was walking straight at me.

Q: So he would have had to move around you?

A: Absolutely. . . . . .

Yeah, Mr. B came right down the steps to where I was. I never got the chance to go up to talk to Mr. F. He came down to me.

Q: And you know what Officer Purches was doing at this time? Officer Purches . . .

A: At which time? [page736]

Q: . . . never motioned to L.B. is what you're saying . . .

A: No.

Q: . . . to come down those stairs?

A: No. I was in front of him. I got out before him though we did come together. But I was ahead of him. And my initial intention was to go to Mr. F., but Mr. B came up to me and, very easy to deal with, I just deal with Mr. B and Mr. Purches -- Constable Purches went to Mr. F.

Q: And it's your evidence that neither of you ever asked Mr. B. to come to you even though it was your plan to speak to both of these people?

A: Yes, we were going to speak with both of them but L.B. walked up to me.

[18] According to Officer Reimer, when he got out of the car, he intended to speak to F. That changed when L.B. approached him. As a result of L.B.'s actions, Officer Reimer struck up a casual conversation with L.B. and Officer Purches began a casual conversation with F.

[19] According to Officer Reimer, he initially asked L.B. "how it was going" and L.B. responded "good". Officer Reimer then asked what L.B. and F "were doing there" and L.B. replied "just hanging out". L.B. was then asked if he and F "went to the school" and L.B. replied "yes", it was his first day. When asked why he was not in school, L.B. replied that he "had a spare".

[20] Officer Reimer then asked L.B. for his name and date of birth. He intended to do a check on L.B. through the Canadian Police Information Centre ("CPIC"). L.B. complied. Meanwhile, Officer Purches, who had been speaking with F, obtained F's name and date of birth and passed that information along to Officer Reimer.

[21] Both officers agreed that they had no cause to detain L.B. or F and that if either youth had chosen to walk away or stop answering questions, he could have done so with impunity. They also confirmed that prior to arresting L.B. and F, no physical contact occurred.

[22] After receiving their names and dates of birth (L.B. and F were both age 15) Officer Reimer used his hand-held radio and "ran" their names through CPIC. While awaiting the results, he realized that F, who looked familiar, was someone he had dealt with three weeks earlier on robbery charges.

[23] As Officer Reimer waited for the CPIC results, Officer Purches noticed that L.B. was not carrying the black bag that he had been holding at the top of the walkway. Accordingly, Officer Purches walked up the stairs to the area where L.B. had been seated and started to look around. [page737]

[24] Officer Reimer testified that at this point, L.B. began showing signs of nervousness: "He was fidgety, he was pacing, he was looking around." In view of L.B.'s behaviour, Officer Reimer had safety concerns and he wanted to prevent L.B. and F from communicating with each other. He did so by interrupting their conversations verbally "with more [of his own] casual conversation".

[25] At the top of the stairs, Officer Purches quickly located the black bag. He found it "on the grass with some litter". As he did so, he called down to L.B. and F, who were "at the bottom with Detective Constable Reimer", and asked "whose bag is this". F did not respond; L.B. replied "I don't know". In view of L.B.'s response and the fact that he had distanced himself physically from the bag, Officer Purches treated the bag as abandoned property and he opened it. Inside, he located school work with L.B.'s name on it; he also discovered a loaded .22 calibre handgun. At that point he shouted "gun, gun, gun" and he and his partner arrested L.B. and F at gunpoint.

[26] Both officers testified that their encounter with L.B. and F was brief. Officer Reimer estimated that his conversation with L.B. lasted approximately three minutes; Officer Purches thought it was about a minute to a minute and a half from the time he and Officer Reimer got out of the car until the time he located the black bag with the gun.

[27] No further evidence was called on the voir dire. Neither L.B. nor F testified.

[28] Against that factual backdrop, L.B. moved under s. 24(2) of the Charter to have the gun excluded from evidence on the basis that it had been obtained in a manner that violated his rights under ss. 8, 9 and 10(b) of the Charter and that its admission into evidence would bring the administration of justice into disrepute. [^1]

[29] As I indicated at the outset, the various Charter issues raised by the respondent hinge, at least initially, on whether he was detained by the police prior to being questioned about the ownership of the knapsack. The trial judge answered that question in the affirmative. I now turn to that issue. [page738]

The Trial Judge's Reasons on the Issue of Detention

[30] The trial judge provided comprehensive reasons for concluding that the respondent was detained by the police "when he was asked for identification and waited for the results of the CPIC search". He arrived at that conclusion after reviewing the existing authorities and applying the law, as he perceived it, to situations like the present one, where the police, acting on "simple suspicious curiosity", approach and question persons whom they have no right to detain, even temporarily.

[31] As part of his analysis, the trial judge listed the three situations, identified in R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, [1985] S.C.J. No. 30, 18 C.C.C. (3d) 481, upon which a finding of detention could be based: (1) physical constraint; (2) control over the movement of a person by a demand or direction which may have significant legal consequences and which prevents or impedes access to counsel; and (3) situations where the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist (hereafter referred to as psychological detention).

[32] On the evidence before him, the trial judge found that Officers Reimer and Purches did not physically restrain the respondent, nor did they assume control over his movement by demand or direction. Hence, if detention were to be found, it would have to be on the basis that the respondent was psychologically detained.

[33] In resolving the issue of psychological detention in favour of the respondent, the trial judge adopted the analysis and legal principles enunciated by Lane J. in R. v. Powell, 2000 50760 (ON CJ), [2000] O.J. No. 2229, 35 C.R. (5th) 89 (C.J.).

(a) The Powell decision

[34] In Powell, several undercover police officers saw Powell and another person walking in the parking lot of a building that was under surveillance. The officers approached Powell and his companion and asked for their names, addresses and birthdates. Because Powell's address was out of the area, he was asked to explain his presence. At that juncture, a marked cruiser arrived and a CPIC check was conducted on Powell. The check revealed an outstanding warrant and Powell was arrested. Upon being searched, the police found marijuana on him.

[35] At trial, Powell moved under s. 24(2) of the Charter to have the marijuana excluded from evidence on the basis that the police had violated his rights under s. 9 (arbitrary detention) and s. 8 (unlawful search and seizure) of the Charter. [page739]

[36] Powell did not testify on the pre-trial voir dire. Nonetheless, the trial judge found that he had been detained in the circumstances and that his detention was arbitrary. She further found that the police had no right to search Powell and in the end, she excluded the marijuana from evidence under s. 24(2).

[37] In arriving at her decision in Powell, the trial judge undertook a comprehensive analysis of the leading authorities on the subject of detention and reached the following conclusions at para. 42:

[I]n the context of s. 8 and s. 9 [of the Charter] at least, there has been a movement away from a strict application of the Moran test [R. v. Moran, [1987] O.J. No. 764, 36 C.C.C. (3d) 225 (C.A.)] in the determination of whether or not a detention has occurred. [^2] Post-Mellenthin [R. v. Mellenthin, 1992 50 (SCC), [1992] 3 S.C.R. 615, [1992] S.C.J. No. 100, 76 C.C.C. (3d) 481], the cases appear to indicate: 1) that there can be a range of detentions including a "brief detention" for the purpose of identification, 2) that compulsion to respond to questions posed by a police officer can be presumed, unless there is evidence indicating informed consent, and 3) that consideration of whether the police had "articulable cause" or other authority to stop someone in the first place is fundamental to the legality of the entire encounter. Where there is no "articulable cause" the court can find that there was a detention and an illegal search without the need for any testimony by the accused as to his subjective perception of a sense of compulsion, and without considering the specific factors set out in the Moran test.

(Emphasis added)

[38] As can be seen, the trial judge in Powell placed considerable emphasis on R. v. Mellenthin, 1992 50 (SCC), [1992] 3 S.C.R. 615, [1992] S.C.J. No. 100. In her view, that decision reshaped the law of detention [at para. 42] "in the context of s. 8 and s. 9 [of the Charter]".

[39] More will be said about Mellenthin in due course. For now, it will be recalled that in that case, a police officer directed Mellenthin to pull his vehicle over as part of a random spot check. In response to various questions posed by the officer, Mellenthin opened his gym bag and eventually produced a plastic bag that contained glass vials. The officer then searched the bag from which the vials were produced and found cannabis resin.

[40] In the context of determining whether the police had violated Mellenthin's privacy rights under s. 8 of the Charter, Cory J. at p. 624 S.C.R., p. 487 C.C.C. made the following observation which the trial judge in Powell interpreted as representing a [page740] shift in the law of detention insofar as s. 8 and s. 9 of the Charter were concerned:

It has been seen that as a result of the check stop the appellant was detained. The arbitrary detention was imposed as soon as he was pulled over. As a result of that detention, it can reasonably be inferred that the appellant felt compelled to respond to questions put to him by the police officer. In those circumstances it is incumbent upon the Crown to adduce evidence that the person detained had indeed made an informed consent to the search based on his awareness of his rights to refuse to respond to questions or to consent to the search.

(Emphasis added)

(b) Application of Powell to the instant case

[41] The trial judge in the instant case agreed with the reasoning in Powell and found that Cory J.'s analysis in Mellenthin applied to the random stopping of pedestrians. In short, if motorists who were pulled over randomly could be presumed to feel compelled to respond to questions put to them by the police, so too could pedestrians.

[42] Likewise, the trial judge adopted the reasoning in Powell as to the importance of "articulable cause" and the implications flowing from its absence for detention purposes. On the evidence before him, the trial judge quite properly found that Officers Reimer and Purches had no authority to detain the respondent, even temporarily.

[43] According to the trial judge, the fact that the police had no authority to detain the respondent was of "fundamental importance" in determining the issue of psychological detention. In that regard, he quoted with approval the proposition from Powell that absent lawful authority to detain, the court could [at para. 42] "find that there was a detention and an illegal search without the need for any testimony by the accused as to his subjective perception of a sense of compulsion, and without considering the specific factors set out in the Moran test".

[44] In sum, as indicated, the trial judge adopted and applied the legal framework formulated by the trial judge in Powell in determining whether L.B. was psychologically detained. L.B. was a pedestrian whom the police questioned in circumstances where they had no right to detain him, even temporarily. Hence, in deciding the issue of psychological detention, L.B. could be presumed to feel compelled to answer the questions put to him by the police, without the need for testimony from him as to his subjective perception of a sense of compulsion. In other words, the trial judge effectively shifted the onus to the Crown to show that L.B. knew that he could refuse to respond to the questions [page741] put to him by the police and that he could walk away at any time with impunity.

[45] The results of the trial judge's analysis are found in the following three paragraphs of his decision:

I take into account all of the circumstances arising from the evidence before me. The officers did not drive up and stop, rather they drove by and returned to question the accused which, together with the effort to prevent both males from speaking with each other, the running of C.P.I.C. checks, the awareness that they were police officers, one of whom testified he had had dealings with one of the males only weeks earlier, created, in my view, an atmosphere of some oppression and not just a casual cordial exchange of greetings.

There is no evidence that Mr. B was advised of his right to remain silent or of his right to leave the area.

Having reviewed the law, I conclude Mr. B was detained and such detention began when he was asked for identification and waited for the results of the C.P.I.C. search.

Analysis

[46] With respect, I am of the view that the trial judge used the wrong legal framework in assessing the issue of detention. Regrettably, that error skewed his entire analysis.

[47] The correct principles of law are found in the Manitoba Court of Appeal's decision in R. v. H. (C.R.), 2003 MBCA 38, [2003] M.J. No. 90, 174 C.C.C. (3d) 67 (C.A.). That decision was brought to the trial judge's attention. Unfortunately, he declined to follow it, choosing instead to follow Powell. With respect, the legal analysis in Powell is flawed and it should not be followed.

[48] The facts in H. (C.R.) are reminiscent of the facts in the present case. At 1:20 a.m., two officers in a police car observed H walking on the sidewalk with his friends, one of whom was carrying a bottle of beer. Through the open window, one of the officers said words to the effect of: "Hi, how's it going? Where are you guys headed?" At that point, H and his friends came over to the car, without being asked to do so, and spoke to the officers. They responded to various questions, including their names, dates of birth, and phone numbers. One of the officers testified that this type of procedure was done as a matter of routine. He further stated that he and his partner had no reason to suspect that H or his friends had committed an offence.

[49] While the conversation with H and his friends continued, one of the officers conducted a CPIC check and learned that H was on probation and that he was breaching his curfew provision. H was subsequently arrested and charged with breach of probation.

[50] At trial, the central issue was whether H was psychologically detained when he was being questioned by the police. The [page742] trial judge found that he was. That finding was overturned on summary conviction appeal, and on further appeal to the Manitoba Court of Appeal, Steel J.A. for the court affirmed the decision of the summary conviction appeal judge.

[51] In her reasons, at paras. 27 to 30, Steel J.A. observed that no simple test can be applied in determining whether a psychological detention has occurred and that the inquiry in each case must be fact-specific. At para. 33, however, she rejected the notion that in police-citizen encounters, a request for identification will necessarily create an inference that the citizen "reasonably believed that he had no other choice but to comply" and that "at that point . . . the onus shift[s] onto the Crown to prove informed consent". Rather, as she observed at para. 36:

We have not yet reached a situation where a compulsion to comply will be inferred simply because the request comes from a police officer or that a compulsion to respond should be presumed unless the Crown can show evidence of informed consent.

[52] That, in my view, is a correct statement of the law. Support for it is found in two decisions of this court -- R. v. Grafe, 1987 170 (ON CA), [1987] O.J. No. 796, 36 C.C.C. (3d) 267 (C.A.) and R. v. Hall (1995), 1995 647 (ON CA), 22 O.R. (3d) 289, [1995] O.J. No. 544 (C.A.) -- both of which remain good law. Further support is found in R. v. Rajaratnam, 2006 ABCA 333, [2006] A.J. No. 1373, 397 A.R. 126 (C.A.), a recent decision of the Alberta Court of Appeal in which the court, following H. (C.R.), stated at para. 13:

In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 at para. 19, the Supreme Court clarified that "the police cannot be said to 'detain', within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview." Accordingly, not every conversation with the police is a detention. There must be something more: a deprivation of liberty. The law has not yet reached a point that a compulsion to comply will be inferred whenever a police officer requests information, for that would mean police could never ask questions: R. v. C.R.H., 2003 MBCA 38, 173 Man. R. (2d) 113 at para. 36.

[53] Significantly, in H. (C.R.), Steel J.A. considered Lane J.'s analysis in Powell and rejected it. It will be recalled that in Powell, Lane J. considered Cory J.'s analysis in Mellenthin and concluded, at para. 31 of her decision, that "if motorists can be presumed to feel compelled to respond to questions from police, it can reasonably be assumed that pedestrians stopped by the police feel the same compulsion".

[54] Steel J.A. considered the Mellenthin analogy and found it to be misplaced. At paras. 56 to 59, she made the following observations, with which I completely agree: [page743]

I disagree [with Lane J.'s understanding of Mellenthin]. The same approach does not apply to the stopping of motor vehicles as it does to the questioning of pedestrians. In the cases involving the random stopping of motor vehicles, the courts have found a detention to exist, as the term was defined in Therens. The issue in the motor vehicle cases was whether the detention was arbitrary and, if so, whether the violation was justifiable under s. 1 or otherwise authorized by law. See R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257 at 1278, 56 C.C.C. (3d) 22. In particular, in Mellenthin, the compulsion to speak arose from the fact that a motorist was deemed to be detained as soon as he was stopped in a motor vehicle. It is at that point that the police assume control over the movements of the motorist under threat of criminal sanction:

It has been seen that as a result of the check stop the appellant was detained. The arbitrary detention was imposed as soon as he was pulled over. As a result of that detention, it can reasonably be inferred that the appellant felt compelled to respond to questions put to him by the police officer. [Mellenthin, at p. 624, per Cory J.] . . .

Consequently, Mellenthin and the other motor vehicle cases are not an appropriate analogy when determining whether a detention has occurred in a pedestrian-stopping case. In speaking to an individual on the sidewalk, a police officer does not obviously assume control over the movements of an individual in the same way as stopping the driver of a motor vehicle. More importantly, on the sidewalk, unless there is evidence to the contrary, as required by Therens, there is no compulsion to speak and one can walk away.

The case of R. v. Simpson (1993), 1993 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.), upon which the accused also relies, is distinguishable from this case. It is yet another motor vehicle case and the detention flowed from that initial fact. At p. 488:

The appellant was clearly detained when the motor vehicle in which he was riding was pulled over by constable [sic] Wilkin . . .

And at p. 489:

This detention was a direct result of the stopping of a motor vehicle.

Again, the issue in that case was not whether the accused was detained, but rather whether the detention was arbitrary. It is an important distinction. So long as police officers merely question citizens and do not interfere with individual liberties by detaining them, such proactive policing should not be prohibited.

[55] As discussed, the trial judge in the instant case also found, in line with Powell, that a lack of "articulable cause" is of fundamental importance in assessing the issue of psychological detention. In that regard, he agreed with Powell that absent lawful authority to detain, the court could "find that there was a detention and an illegal search without the need for any testimony by the accused as to his subjective perception of a sense of compulsion, and without considering the specific factors set out in the Moran test". With respect, that too is an incorrect statement of law.

[56] Post-Mann, the term "articulable cause" is no longer used; it is now referred to as "reasonable grounds to detain". Mann [page744] teaches that where reasonable grounds to detain exist, the police may lawfully detain a person for a brief period of time. In other words, limited detention is lawful. But Mann and its progeny do not assist in determining the threshold issue, namely, whether a person has been detained in the first place. The fact that the police may have reasonable grounds to detain someone does not mean that detention will automatically occur when the police approach and start talking to that person; the same holds true when the police do not have reasonable grounds to detain. To repeat, we have not yet reached the point that compulsion to comply will be inferred whenever a police officer requests information. That was made clear by Iacobucci J. in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49, at para. 19:

"Detention" has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to "detain", within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be "'detained" in the sense of "delayed", or "kept waiting". But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.

(Emphasis added)

[57] Contrary to the view expressed by the trial judge, while reasonable grounds to detain may bear on the nature of the detention, their absence is not of "fundamental importance" in deciding whether detention has occurred in the first place.

[58] In so concluding, I do not wish to be taken as suggesting that the motivation of the police for approaching and speaking to citizens is irrelevant to the issue of psychological compulsion. In H. (C.R.) at paras. 49 and 67, Steel J.A. found that "purpose and motive" were relevant factors and she cites as examples situations of racial profiling, harassment and other improper purposes.

[59] As no such allegations of impropriety have been made here, I need not finally decide the matter. I am, however, inclined to the view that such impropriety could be relevant when psychological compulsion is alleged.

Application of the Correct Legal Principles to the Case at Hand

[60] The respondent bore the onus of establishing, on a balance of probabilities, that he was psychologically detained. His failure to testify did not help his cause. It left the issue to be decided solely on the uncontradicted evidence of Officers Reimer and Purches. Far from assisting him, their evidence belied his position. [page745]

[61] According to the officers, they did not demand anything of the respondent, nor did they direct him to do anything. On the contrary, it was the respondent who cast aside the black bag and, without prompting, walked down the stairs and approached the officers. He did so of his own volition. His conduct actually caught the officers off-guard, and in my view, it speaks volumes against his position that he was psychologically detained.

[62] The respondent's conduct in approaching the officers hardly fits the image of a frightened youth who felt psychologically compelled to submit to the police in deprivation of his liberty. On the contrary, it speaks to a street-wise teenager who quickly sized up the situation and determined that his best defence in the circumstances was a strong offence. Put simply, this was not a case of psychological compulsion exerted by the police; it was a case of psychological control attempted by the respondent.

[63] And when the respondent realized that his ploy was not working, he began to panic. That explains his nervous behaviour when Officer Purches walked up the stairs and began to search for the black knapsack. Here, the words of MacDonnell J. in R. v. Orellana, [1999] O.J. No. 5746 (C.J.), at para. 29 are apposite: ". . . the source of his [Orellana's] fear was not anything the officer did or said but rather the fact that he was in possession of crack cocaine". Substitute ".22 calibre unregistered handgun" for "crack cocaine" and the analogy is exact. At the very least, the evidence is as consistent with that scenario (fear of being caught) as it is with the scenario urged by the respondent (feeling compelled to respond to the police).

[64] I do not suggest that the respondent did not feel some stress in the situation. No doubt, he felt somewhat intimidated by the police given the obvious power imbalance that existed. He may also have felt some anxiety by reason of the positioning of the police car, the fact that both officers got out of the car and the manner in which Officer Reimer attempted to prevent him and F from communicating with each other. The trial judge quite properly took those factors into account in assessing the issue of detention. But respectfully, he went wrong on the legal test. In my view, had he applied the correct legal test to the uncontradicted evidence of the officers and placed the onus on the respondent, where it belonged, he would have found that psychological compulsion had not been made out, at least not on a balance of probabilities. In the circumstances, evidence from the respondent was a virtual must, and it was not forthcoming.

[65] In assessing whether the respondent was detained, the trial judge took into account other factors that in my respectful [page746] view, he should not have. Specifically, I do not consider it relevant that one of the officers "had had dealings with one of the males [F] only weeks earlier". F's detention was not in issue and nothing in the record indicates that L.B. was even aware of F's prior difficulties with the police.

[66] Nor do I consider it relevant that the police "drove by and returned to question the accused", rather than simply "driv[ing] up and stop[ping]". With respect, I am not at all sure that I understand the difference. Regardless, there is no evidence that L.B. saw the police drive by and no evidence that this had any impact on him if he did.

[67] Finally, I fail to see how "the running of CPIC checks" was significant in the circumstances of this case. L.B. did not testify and there is no evidence he knew that Officer Reimer was doing a CPIC check on him when he used his hand-held radio, or if he did, that it had any impact on him.

[68] In sum, when the proper legal principles are applied to the uncontradicted evidence of Officers Reimer and Purches, absent evidence from L.B. to the contrary, there is virtually nothing to substantiate a finding of psychological detention. With respect, the trial judge erred in concluding otherwise.

[69] Given that there was no detention, it was not incumbent on Officer Purches to advise the respondent of his s. 10(b) rights before asking "whose bag is this". [^3] Hence, L.B.'s response "I don't know" was admissible and Officer Purches was entitled to rely on it as a basis for searching the bag in the belief that it had been abandoned either by the respondent or someone else.

[70] On this point, the trial judge found that it was unreasonable for Officer Purches to "assume or conclude that the bag was abandoned having seen it in L.B.'s possession brief moments earlier". In so concluding, the trial judge referred to the basis of Officer Purches's belief, namely, L.B.'s denial of ownership, but he refused to consider L.B.'s response in assessing the officer's explanation because in his view, the response was inadmissible.

[71] With respect, as indicated, the trial judge erred in ruling that L.B.'s response was inadmissible. Had he considered it, I am satisfied that he would have accepted Officer Purches's evidence and found that the search of the bag was legally justified in the circumstances. Having disclaimed any privacy interest in the bag, the respondent effectively precluded himself from relying on s. 8 of the Charter to impugn the lawfulness of Officer Purches's search. [page747]

[72] In sum, I am satisfied that the respondent was not detained prior to the discovery of the gun and I am further of the view that the police did not breach any of his Charter rights in the process.

[73] It follows, in my view, that the gun should have been admitted into evidence.

Did the Trial Judge Err in Excluding the Gun Under s. 24(2) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[74] Given my conclusion that there were no Charter violations here, it is technically unnecessary to decide whether the trial judge erred in excluding the gun from evidence under s. 24(2) of the Charter. That said, for the sake of completeness, I propose to address the issue. The task is not a difficult one in light of this court's decision in R. v. Grant (2006), 2006 18347 (ON CA), 81 O.R. (3d) 1, [2006] O.J. No. 2179, 209 C.C.C. (3d) 250 (C.A.), leave to appeal to the Supreme Court of Canada granted [2007] S.C.C.A. No. 99. In fairness, the trial judge did not have the benefit of that decision.

[75] The factors that led my colleague Laskin J.A. to admit the handgun in Grant apply with equal force to the case at hand. I do not propose to repeat them. They are found at paras. 60-67. I would simply make several observations.

[76] First, unlike Grant, I am not at all certain that the gun should be classified as "conscriptive real evidence". However, assuming it warrants that classification, based on the record, I am satisfied that Officers Reimer and Purches acted in good faith throughout. If they crossed the "murky" line between legitimate questioning and arbitrary detention, in my view, they did so inadvertently. On this record, any Charter breaches that followed were likewise inadvertent and not a product of wilful or flagrant disregard of the respondent's rights.

[77] Equally, there is no evidence that the officers were motivated by an improper purpose, such as racial profiling or harassment, when they approached F and the respondent. Indeed, no such allegations have been made.

[78] In sum, as indicated, I am satisfied that the officers acted in good faith in their dealings with the respondent.

[79] Second, in considering whether excluding the gun would have a more serious impact on the repute of the administration of justice than admitting it, special note must be made of the very serious offence for which the respondent was charged.

[80] This case involves a loaded handgun in the possession of a student on school property. Conduct of that nature is unacceptable [page748] without exception. It is something that Canadians will not tolerate. It conjures up images of horror and anguish the likes of which few could have imagined 25 years ago when the Charter first came to being. Sadly, in recent times, such images have become all too common -- children left dead and dying; families overcome by grief and sorrow; communities left reeling in shock and disbelief.

[81] That is the backdrop of this case and in my view, it provides the context within which the conduct of the police should be measured, for purposes of s. 24(2), in deciding whether we should be excluding completely reliable evidence (here, the gun) and freeing potentially dangerous people without a trial on the merits.

[82] Viewed that way, I believe that absent egregious conduct on the part of the police, most Canadians would find it unconscionable for L.B. to be set free without a trial on the merits. By egregious conduct, I have in mind conduct that the community simply would not countenance, even if this meant allowing a potentially violent criminal to escape punishment. Without being specific, it would involve conduct that showed disdain for the rights and freedoms guaranteed by the Charter and that struck at the core values those rights and freedoms were meant to protect. No such conduct (or anything close to it) exists in this case. It follows, in my view, that the gun should have been admitted into evidence under s. 24(2).

Remedy

[83] The respondent has raised the issue of remedy should we allow the Crown's appeal on the merits.

[84] In a nutshell, the respondent submits that at this juncture, he should not have to face a new trial due to the delay of approximately two and a half years occasioned by the Crown in failing to perfect the appeal and have it brought on for hearing. In the circumstances, given that the charges against him were laid almost five years ago, that the Crown has offered no acceptable excuse for failing to prosecute the appeal in a timely fashion, and that as a youthful offender he is entitled to speedy justice, the respondent relies on s. 7 of the Charter and argues that it would constitute an abuse of process to order him to stand trial again. He therefore requests that we direct a stay of proceedings in respect of the new trial.

[85] In my view, while there is something to be said for the respondent's position, in the end, I am not persuaded that he has made out a case for the extreme remedy he seeks. [page749]

[86] As I have already explained, the charges against the respondent are very serious. Society has a strong interest in having him tried on the merits. Compelling mitigating factors would be required to prevent this. They simply do not exist here.

[87] Apart from his youth and the stress and anxiety that most people experience when charged with criminal offences, the respondent has adduced no evidence of specific prejudice. Given the strength of the Crown's case and the gravity of the charges, I believe that society's interest in having the respondent tried on the merits must, in the circumstances, prevail.

[88] That said, it will of course be open to the trial Crown, in the exercise of his or her discretion, to stay the proceedings. Failing that, the respondent can, if he so chooses, seek to have the proceedings in respect of the new trial stayed under s. 11(b) of the Charter. Manifestly, the merits of any such motion will be for the new trial judge.

[89] Accordingly, I would allow the appeal, set aside the acquittals and order a new trial on all counts.

Appeal allowed.

Notes

[^1]: At trial, the respondent also alleged that the police had breached his rights under s/ 7 of the Charter. The trial judge did not refer to s. 7 in his reasons, other than to mention at the outset that it formed one of the bases upon which the respondent was seeking to have the gun excluded from evidence. The respondent did not raise s. 7 before us, other than in the context of remedy.

[^2]: In Moran, at p. 258 C.C.C., Martin J.A. listed seven non-exhaustive factors that a court should consider in deciding "whether a person who subsequently is accused was detained at the time he or she was questioned at a police station by the police".

[^3]: I leave for another day whether it would have been incumbent on Officer Purches to advise L.B. of his s. 10(b) rights had L.B. been detained.