CITATION: R. v. Nesbeth, 2008 ONCA 579
DATE: 20080811
DOCKET: C46865
COURT OF APPEAL FOR ONTARIO
ROSENBERG and SIMMONS JJ.A. and SPEYER J. (AD HOC)
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
And
PETER NESBETH
Respondent
Nick Devlin and Bari Crackower for the appellant
Apple Newton-Smith for the respondent
Heard: June 24, 2008
On appeal from the acquittal entered by Justice Patrick A. Sheppard of the Ontario Court of Justice dated February 22, 2007.
ROSENBERG J.A.:
[1] This Crown appeal from the respondent’s acquittal on drug and related charges by Sheppard J. raises issues concerning the use of the investigative detention power. In this case, rather than staying to answer questions from the police officer, the respondent ran away and took other evasive actions in an attempt to avoid questioning. The police gave chase and the respondent threw his knapsack away during the chase. The trial judge found that since the officers had no grounds to detain the respondent when he fled, all of their subsequent actions in chasing the respondent, apprehending him and retrieving and opening the knapsack, which contained contraband, violated his rights under the Canadian Charter of Rights and Freedoms. The trial judge accordingly excluded all of the evidence found by the police and the respondent was acquitted.
[2] For the following reasons, it is my view that the trial judge erred in law in finding that the respondent’s rights were violated. While I agree with the trial judge that the police did not have grounds to detain the respondent when they initially encountered him, at that point he was not detained. The respondent’s subsequent actions gave the officers grounds to detain, if not arrest, him. Finally, by throwing his knapsack away, the respondent abandoned any reasonable expectation of privacy in the knapsack and its contents. The police therefore did not violate the respondent’s rights by opening the bag and discovering the contraband inside it.
[3] Accordingly, I would allow the appeal, set aside the acquittals and order a new trial.
THE FACTS
[4] Around 11:00 p.m. on January 28, 2006, six police officers working on a strategy referred to as the Toronto Anti-Violence Intervention Strategy (TAVIS) went to an apartment complex in Scarborough. The officers described the complex as one plagued by drug use, drug sales, robberies, guns and gang violence. The purpose of TAVIS is to reduce violence and increase safety. The officers understood that they had the consent of the landlord to attend at the complex to enforce the Trespass to Property Act, R.S.O. 1990, c. T.21.
[5] When they arrived, the officers split into three teams with each team walking up one of the three stairwells. The incident involved in this case began on the north stairwell. The two officers in that stairwell testified that they immediately detected a strong odour of freshly smoked marijuana. When the officers reached the 9th floor landing, the landing door opened and the respondent entered. The respondent seemed surprised when he saw the officers and immediately very tightly clenched the knapsack that he was carrying. One of the officers asked the respondent, “Hey buddy, what are you doing?” The respondent replied, “Oh shit”, turned around, opened the door and began to run. The officers ran after him across the 9th floor. On the way, the respondent grabbed a shopping cart and attempted to knock it over in front of one of the pursuing officers. The pursuing officers were repeatedly yelling: “Stop, police.”
[6] The respondent ran to the west stairwell and proceeded downstairs. As he ran down the stairs the respondent threw the knapsack to the ground where it was retrieved by one of the two other officers who had been patrolling the west stairwell. His partner chased the respondent on to the 7th floor, eventually caught up to him and tackled him to the ground. One of the original pursuing officers then took the knapsack and opened it. Inside, the officer found a quantity of cocaine (680 grams), two digital scales and three cell phones. The officer detaining the respondent thereupon put the respondent under arrest for possession of cocaine for the purpose of trafficking. The officer searched the respondent and found $1,720 in cash.
[7] The respondent was charged with possession of cocaine for the purpose of trafficking, possession of the proceeds of crime and failing to comply with the terms of a recognizance.
THE TRIAL JUDGE’S RULING
[8] The trial judge made two sets of findings that were critical to his holding that the respondent’s rights were violated.
[9] The first findings related to the initiation of the pursuit. The trial judge found that none of the officers were able to provide an articulable cause for the “attempt to detain the accused” by uttering the words, “stop, police”. This utterance was clearly a command with which the officer expected the respondent to comply. The fact that it was a high crime area, that the officers smelled marijuana, and that the respondent appeared startled, swore and then ran, while suspicious, did not constitute “articulable cause to believe any crime had occurred or was just in the process of [occurring]”. The trial judge held there was no justification for the chase and the ultimate tackle of the respondent. Since the attempt to detain the respondent was based on suspicion and hunch and not articulable cause, the respondent’s right under s. 9 of the Charter of Rights and Freedoms to protection against arbitrary detention was violated. The trial judge also held that there were no grounds to arrest the respondent.
[10] The second set of findings relate to the knapsack. The trial judge held that “there were no extrinsic circumstances to warrant the opening of the knapsack”. He also stated that the officers “knew they were not dealing with lost property or abandoned property in the classic sense that someone puts something out curbside for the garbage”. The search of the backpack was therefore a violation of the respondent’s right to protection against unreasonable search and seizure under s. 8 of the Charter.
[11] Having found violations of the respondent’s rights under ss. 8 and 9, the trial judge turned to s. 24(2) of the Charter. He held that the violations were “so fundamental that they leave this court with concerns that the extraordinary measures of an Anti-Violence Task Force somehow [were] allowed to supersede normal constitutional and Charter protections”. He also had doubt as to the good faith of the officers. In his view, the administration of justice would be brought into disrepute if the evidence was not excluded.
[12] Without the evidence of the cocaine and the cash, the Crown’s case collapsed and the respondent was acquitted of all charges.
ANALYSIS
(1) The Detention
[13] In R. v. Mann (2004), 2004 SCC 52, 185 C.C.C. (3d) 308 at para. 16, the Supreme Court of Canada noted that “police officers must be empowered to respond quickly, effectively, and flexibly to the diversity of encounters experienced daily on the front lines of policing”. This is a classic case of police officers faced with a rapidly evolving situation to which they attempted to respond quickly and effectively. In Mann, the court recognized a limited power of investigative detention to assist police in carrying out their duties in circumstances such as this. A police officer may briefly 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 that such a detention is necessary”: at para. 45. Such a detention will not violate s. 9. In this case, the trial judge found that when the police initiated the chase and gave the respondent the command to stop, they did not have the requisite reasonable grounds to detain and therefore violated his rights.
[14] In my view, the trial judge erred in failing to consider whether the respondent was detained when the chase began. As I read his reasons, the trial judge never found that the respondent was detained until he was tackled by one of the officers. Prior to that, the trial judge spoke in terms of an attempt to detain. Until the respondent was detained, his s. 9 rights were not triggered. The courts have recognized that an individual can be detained within the meaning of s. 9 either because the person has been physically detained or subject to psychological detention. When the police chase began, the respondent was not physically detained. Nor, in my view, was he psychologically detained.
[15] In R. v. Grant (2006), 2006 CanLII 18347 (ON CA), 209 C.C.C. (3d) 250 (Ont. C.A.) at para. 28, Laskin J.A. explained that psychological detention includes three elements:
a police direction or demand to an individual; the individual's voluntary compliance with the direction or demand, resulting in a deprivation of liberty or other serious legal consequences; and the individual’s reasonable belief that there is no choice but to comply. [Emphasis added.]
[16] In this case, while there was a demand: “Stop, police”, the element of compliance with the demand was missing. Far from complying, the respondent made it abundantly clear that he had no intention of being detained. While the police obviously intended to detain the respondent after he began to flee, as the court said in R. v. Clayton (2007), 2007 SCC 32, 220 C.C.C. (3d) 449 (S.C.C.) at para. 48: “Intention alone does not attract a finding of unconstitutionality.” Thus, there was no detention at the start of the pursuit.
[17] In my view, the respondent was not detained until he was tackled at the end of the chase. The validity of that detention had to be measured by the facts known to the police at that time. Those facts included the following:
• The respondent had immediately bolted when he saw the uniformed officers.
• He used some force in an attempt to impede the officers’ progress by throwing a shopping cart in their way.
• He threw away a knapsack that he had been tightly holding up until then.
• It was late at night, and the respondent was in the stairwell of a building known to be a high-crime area.
[18] This constellation of factors was sufficient to give the police officers reasonable grounds to suspect that the respondent was involved in criminal conduct. These were not the actions of a mere trespasser. While the court in Mann speaks of reasonable grounds to suspect that the individual is connected to “a particular crime”, in my view, it is not necessary that the officers be able to pinpoint the crime with absolute precision. Given the respondent’s behaviour in relation to the knapsack and the desperation with which he fled the police, the police could reasonably suspect that he was in possession of contraband: either drugs or weapons or both. They were therefore entitled to detain him for investigation in accordance with Mann.
[19] Before leaving the detention issue, I note that there is one possible gap in the evidence. None of the police officers actually articulated in their evidence why they detained the respondent. Perhaps they thought it was obvious given the rapid unfolding of events: the pursuit and the almost simultaneous discovery of the contraband in the knapsack. In R. v. Storrey (1990), 1990 CanLII 125 (SCC), 53 C.C.C. (3d) 316 (S.C.C.) at 324, the court held that for an arrest to be valid the officer must have both a subjective belief in reasonable and probable grounds to arrest and those grounds must be objectively established. It may be that the same form of analysis should apply to a Mann investigative detention: see R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.) at 501-502.
[20] In this case, I have found that the officers objectively had reasonable grounds to detain the respondent, even though none of them articulated their subjective belief as to the grounds. While it would have been helpful had the officers expressly testified to their grounds for detaining the respondent, the court is entitled to draw reasonable inferences from the circumstances. In my view, it is apparent that the officers believed that they had grounds to detain the respondent by the time the chase ended.
(2) The Search
[21] The trial judge held that the seizure and opening of the knapsack without a warrant was an unreasonable search and seizure contrary to s. 8 of the Charter. In my view, however, the trial judge erred in failing to consider whether the respondent had a reasonable expectation of privacy in the knapsack at the time the police seized and opened it. In R. v. Edwards (1996), 1996 CanLII 255 (SCC), 104 C.C.C. (3d) 136 (S.C.C.) at para. 45, Cory J. listed seven factors a court should consider in determining whether the accused has a reasonable expectation of privacy in the totality of the circumstances:
(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership of the property or place;
(iv) historical use of the property or item;
(v) the ability to regulate access, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy; and
(vii) the objective reasonableness of the expectation.
[22] Not all factors will be applicable in any particular case and some will be more important than others. Three factors stand out in this case to demonstrate that there was no reasonable expectation of privacy in the knapsack. Far from having possession or control of the knapsack, the respondent attempted to divest himself of possession and control. He gave up the ability to regulate access to the property when he threw it away. Finally, he offered no evidence of any subjective expectation of privacy; to the contrary, the trial judge accepted that the respondent intentionally threw the knapsack away, which suggests that he was no longer interested in exercising any privacy interest in the knapsack.
[23] The circumstances of this case bear some similarity to the decision of this court in R. v. B. (L.) (2007), 2007 ONCA 596, 227 C.C.C. (3d) 70. In that case, the accused was on school property and seen to be holding a bag when the police initially saw him. However, when the accused approached the officers, he was no longer carrying the bag. One of the officers retrieved the bag and asked the accused, “whose bag is this”. The accused responded that he did not know. The court held, at para. 71, that by this answer the accused had “disclaimed any privacy interest in the bag” and thus “effectively precluded himself from relying on s. 8 of the Charter”. The same may be said here. By his conduct in intentionally throwing away the knapsack, the respondent had precluded himself from relying on the s. 8 protection. In fairness, the trial judge did not have the benefit of the B. (L.) decision, which was decided several months after this trial.
[24] Since the respondent’s s. 8 rights were not engaged in this case, the seizure and search of the bag was not unlawful. Once the officers opened the bag and found the drugs, they had reasonable grounds to arrest the respondent. They were then entitled to search him as an incident to the arrest. In the course of that search they found the cash that was the subject of the possession of proceeds of crime charge.
(3) Summary
[25] When the police began the initial pursuit of the respondent, he was not detained and therefore his s. 9 rights were not engaged. By the time the officers did detain the respondent, they had reasonable grounds to detain within the meaning of Mann. Since the respondent had no reasonable expectation of privacy in the knapsack, the police did not violate his s. 8 rights by seizing and searching the bag. The results of that search gave the officers grounds to arrest the respondent. The personal search of the respondent was justified as a search incident to arrest.
DISPOSITION
[26] Accordingly, I would allow the appeal, set aside the acquittals and order a new trial.
Signed: “M. Rosenberg J.A.”
“I agree Janet Simmons J.A.”
“I agree Speyer J. (ad hoc)”