CITATION: R. v. Williams, 2009 ONCA 35

DATE: 20090115

DOCKET: C47445

COURT OF APPEAL FOR ONTARIO

Doherty, MacPherson and Lang JJ.A.

BETWEEN:

Her Majesty the Queen

Appellant

and

Orlando Williams

Respondent

Bradley Reitz and Sarah Shaikh, for the appellant

David E. Harris, for the respondent

Heard and released orally: January 14, 2009

On appeal from the acquittal entered by Harriet E. Sachs of the Superior Court of Justice dated June 13, 2007.

ENDORSEMENT

[1] The Crown appeals from the acquittal of the respondent by Sachs J. for possession of cocaine for the purpose of trafficking.

[2] Sergeant Steven Tedford was patrolling on the afternoon of December 30, 2004 when he received a radio call. According to a 911 caller, there was a robbery in progress at a gas station. The scene of the crime was just around the corner. Tedford rushed there with his lights and siren on. In the few seconds Tedford needed to get to the scene, the radio dispatcher gave him a description of the robber. When Tedford arrived at the gas station, he saw a man who shared most of the robber’s distinguishing traits. That man – the respondent – was running away from the scene of the robbery. With nobody else on the street, Tedford was sure he had found the robber. After a very short pursuit, Tedford arrested the respondent, searched him and found 34 grams of crack cocaine in his pocket.

[3] At the respondent’s trial, blended with a Charter voir dire, Sergeant Tedford was the only witness. The admissibility of the crack cocaine was the only issue. In her ruling, the trial judge excluded the crack. She concluded that the respondent’s section 8 and 9 Charter rights were breached by Tedford and that the admission of the drugs would bring the administration of justice into disrepute. Without that crucial evidence of the respondent’s guilt, he was acquitted.

[4] The appellant contends that the appeal should be allowed because the trial judge erred in her analysis of the respondent’s section 8 and 9 Charter rights. In particular, she erred by concluding that Tedford’s grounds to arrest the respondent were not objectively reasonable. The appellant’s position is that there were ample grounds to justify the respondent’s arrest and the search incidental to the arrest.

[5] We agree. In R. v. Lawes, 2007 ONCA 10 at para. 4, this court said that “[t]he totality of the circumstances relied upon by the arresting officer will form the basis for the objective assessment.” In this case, the totality of the circumstances strongly supports the officer’s decision to detain and arrest the respondent. The officer was told that there was a robbery in progress at the gas station. Within about a minute, he was at the site and saw a person, running away from the station. When the officer first observed the runner, he was about 20-25 metres from the station. The description he had been given was: male, black, wearing a blue hat and blue jeans, 39-40 years old, 5’ 7” tall and 240 pounds. The person he spotted running away from the gas station was: male, black, wearing a black baseball cap, blue jeans and a black leather jacket, 38 years old, 5’ 9” tall and 160 pounds. Of these six factors, five are either identical or very similar and one (weight) is spectacularly different. In our view, in “the totality of the circumstances”, including a robbery scenario, a man running from the scene, and elapsed time of about a minute, the single significant difference between the radioed description of the potential robber and the description of the man Tedford saw running from the scene is not enough to render the detention and arrest objectively unreasonable.

[6] The trial judge stated two main reasons for finding the detention and arrest objectively unreasonable: (1) the five identical or similar factors are generic and apply to thousands of people; and (2) in light of the weight discrepancy, Tedford should have entered the gas station to confirm that the robber was no longer there.

[7] With respect, we do not regard these points as controlling. It is true that the five identical or similar factors are generic in the sense that they apply to many people. However, in this case the potential application of these factors is hugely reduced – to be precise, to one – by the singular fact that there was only one person the officer saw when he arrived at the scene and that person was running away from an alleged robbery site.

[8] Nor do we think that the weight discrepancy required Tedford to stop his chase and enter the gas station to ascertain if the robber was still there. In light of the timing (about a minute) and the situation (a man running from the scene), the officer was entitled to continue the chase of the suspect he saw in front of him. The determination of whether the officer had reasonable grounds must be made in the context of the circumstances presented to the officer. In this case, the circumstances included a fleeing suspect.

[9] The appeal is allowed and a new trial is ordered.

“Doherty J.A.”

“J.C. MacPherson J.A.”

“S. Lang J.A.”