CITATION: R. v. Amofa, 2011 ONCA 368
DATE: 20110510
DOCKET: C50159
COURT OF APPEAL FOR ONTARIO
MacPherson, Blair and Epstein JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Randy Amofa
Appellant
Phil Downes, for the appellant
Michael Bernstein, for the respondent
Heard: April 27, 2011
On appeal from the conviction entered by Justice J.P. Kerr of the Ontario Court of Justice on February 8, 2007.
R.A. Blair J.A.:
[1] Mr. Amofa appeals his conviction for possession of a loaded, unauthorized and restricted firearm, contrary to s. 95(1) of the Criminal Code.
[2] He submits that his Charter rights were violated in the course of an investigative detention and subsequent arrest in the Warden subway station in Scarborough, and that the trial judge erred in failing to exclude the evidence of the firearm pursuant to s. 24(2) of the Charter as a result. In essence, he argues that the police conducted an arrest incidental to a search and did so in order to justify the search, whereas they are only entitled to conduct a search incidental to arrest, and then only in appropriate circumstances.
[3] I do not see it that way.
Facts
[4] On November 27, 2006, P.C. Damien Kachur and his supervisor, Sgt. Janice Blakeley, were on plain clothes duty at the Warden TTC station in Scarborough, accompanied by two other uniformed officers. Their purpose was to observe and investigate people loitering in the subway station as part of a broader police initiative called the Robbery Reduction Program – “to show police presence (and) hopefully reduce the risk to the public of robberies ... and other such crimes” during the holiday season. The Program was in response to a number of recent “swarming” incidents in subway stations, involving groups of youths surrounding and threatening and/or assaulting victims to force the victims to give up their possessions. The Warden station was identified by the police as a high risk area for crime as there had been robberies and shootings there in the past.
[5] The police were present at the request of TTC officials and were interested in investigating youths who appeared to be loitering in the station in violation of the Trespass to Property Act, R.S.O. 1990 c. T.21, which forbids loitering on TTC property.
[6] On the day in question, officers Kuchar and Blakeley observed the appellant and another young man positioned at the top of the stairs leading down to the #9 Bellamy bus bay at the station. They were blocking the flow of passengers attempting to walk from the mezzanine to the bus platform. At the same time, they appeared to be making no effort to board a bus, although two buses came and went during the period of observation. The officers formed the opinion that the two men were loitering.
[7] After about 20 minutes the two young men left the stairs and entered a small “to go” bakery on the mezzanine level. P.C. Kachur testified that for the next 10 to 12 minute period he watched them – one at a time, taking turns – leave the bakery, look around outside of it and then return. He thought that the two men were looking for particular people and was concerned that this conduct might be leading towards something serious such as a robbery or a mugging or something of that nature.
[8] Following these observations the two police officers approached the appellant and the other man in the bakery, identified themselves as police officers, and told the men they were being investigated under the Trespass to Property Act for loitering on TTC property. The two men cooperated by identifying themselves and producing valid drivers’ licences. P.C. Kachur told the appellant he was being investigated for an arrestable offence; he was not at that time under arrest, but the officer would like to search him. P.C. Kachur’s intention was to conduct a “pat down” search for officer safety reasons.
[9] The appellant responded by saying, “No, I’ll search myself.” He pulled some harmless objects out of his pockets, then returned his hands to his pockets and refused to put his hands out where they could be seen. He said he did not want to be searched because he had not done anything. As he was speaking, the appellant did not face P.C. Kachur directly but “bladed his body” in a way that placed it in a profile that obscured the right side of his body where ultimately the loaded handgun was found. In police jargon, “blading” is a synonym for hiding or obscuring something.
[10] At that point, P.C. Kachur advised the appellant he was under arrest for trespassing. The appellant resisted and attempted to escape, but was prevented from doing so. A “violent struggle” ensued involving the appellant and both officers Kachur and Blakeley. Two uniformed police officers who were also on duty in the station as part of the surveillance program were called in for backup assistance. The appellant was ultimately subdued.
[11] He was then searched and a loaded .45 calibre semi-automatic handgun – a restricted weapon – was found in the waistband of his pants. The gun had five live bullets in it.
Analysis
Detention – s. 9
[12] The trial judge found that, although the two men were undoubtedly detained while being questioned, the detention was not arbitrary, contrary to s. 9 of the Charter, because the police had a reasonable belief that the men were loitering and they were entitled to question them. On the facts as found by the trial judge and outlined above, I agree.
Search – s. 8
[13] In his customarily adept fashion, Mr. Downes set the table for his principal argument by advancing a more general attack on the propriety of the police conduct in the context of the Robbery Reduction Program. He submitted the exercise of police powers at issue in this case was illegal because it formed part of an overall strategy that amounted to monitoring sites such as the Warden station for suspicious-looking people and invoking the power to investigate and arrest under provincial trespass legislation as a pretext to search them. In this respect, he says (moving to his principal argument), the search here was not truly incidental to the appellant’s arrest – or, for that matter, to the investigative detention. Rather, the arrest was incidental to the search. Accordingly, since searches that derive their legal authority from the fact of an arrest must be truly incidental to the arrest in question, the search of the appellant was illegal: see R. v. Caslake, [1998] S.C.R. 51, at para. 17.
[14] I reject these submissions.
[15] First, there was nothing arbitrary or improper in the police surveillance of the subway station or in the arrest. The Robbery Reduction Program was well within the scope of the duty of the police to protect the public. I see nothing inherently objectionable in the police monitoring the subway station for suspicious-looking people – given the history of criminal incidents there, at any rate – and invoking the power to investigate and arrest under provincial trespass legislation were the factual circumstances existed to underpin such action, as they did here. The power to investigate and arrest under provincial trespass legislation is not being abused, or used as a pretext, where the police have the necessary grounds in the circumstances to resort to them.
[16] Secondly, as outlined below, the officers here had more than ample grounds to investigate, detain and arrest the appellant for loitering under the Act.
[17] Mr. Downes argues, however, that the police did not have the right to search the appellant at the time of their initial contact with the appellant and the other man in the bakery. The appellant was expressly told that he was not being arrested, although he was being investigated for an “arrestable” offence. Since he was not under arrest, he remained in investigative detention. There was nothing in the factual circumstances existing at that moment to justify a search incidental to investigative intention and P.C. Kuchar therefore had no right to tell the appellant that he was going to be searched. This was the initiation of the search, Mr. Downes contends, and forms the pivotal time at which its legality must be measured. Because the search was not justified at that time, all that followed was tainted by that illegality and the ultimate search conducted after the appellant’s arrest – and that discovered the loaded firearm – is illegal as well.
[18] Again, I disagree. I do not accept either the position that sufficient grounds did not exist at the outset to justify a search incidental to an investigative detention. Nor do I accept the appellant’s “point-in-time” analysis freezing the picture frame at the moment where P.C. Kuchar indicates that he is going to search the appellant. It follows that I would not give effect to the appellant’s argument that the search process was fatally “tainted,” and therefore violated the appellant’s s. 8 rights, from the point in time the officer told him he was going to search him.
[19] The flow of the investigative detention, the arrest and the search was a dynamic process. Section 8 analyses ought not to be reduced to an over-analytical parsing of events into static moments without practical regard for the overall picture.
[20] P.C. Kuchar had reasonable and probable grounds to arrest the appellant when he and Sgt. Blakeley first approached the two men, but exercised restraint instead and chose not to do so. Although Mr. Downes submits that the power to search incidental to arrest is not automatically triggered by arrest, he conceded that if P.C. Kuchar had arrested the appellant at this time he could have performed a non-intrusive pat-down search of the appellant. In my view, the fact that the appellant remained under investigative detention at that point in time did not alter this prerogative.
[21] The right to detain for investigative purposes and to conduct a search incidental to that detention is summarized by Iacobucci J. in R v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45:
To summarize ... police officers 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 that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which does not arise in this case. [Emphasis added]
[22] Here, the appellant does not contest the propriety of the investigative detention. P.C. Kuchar explained the desire to search in these words: “[f]or our officer safety reasons we wanted to ensure that there were no weapons involved and that the two officers that were involved, myself and my partner, would be safe in continuing our discussions.” Sgt. Blakeley testified that “searching is for the protection and safety of myself, the other officer, and the general public around us, so that when we’re dealing with this person if they have any types of weapons on them, that we’re not faced with a situation.”
[23] The officers were properly safety-cautious in the circumstances. They were rightly concerned about the prospect of potential danger, given the underpinnings of the Robbery Reduction Program itself, the history of violence at that particular subway station, and their observations of the two men on the stairway and at the bakery. P.C. Kuchar therefore had “reasonable grounds to believe that his ... safety or that of others [was] at risk” in the circumstances and he would have been justified in conducting a pat-down search at the point of investigative detention.
[24] But he did not conduct a physical search at that time. Instead, the situation continued to evolve.
[25] There is a continuum of conduct to consider here. It started with the officer’s telling the appellant that the officer was going to search him. It then continued through the appellant’s efforts to avoid a search by the officer, the arrest, the attempted escape and the ultimate retrieval of the weapon – all as outlined in more detail above.
[26] In my opinion, P.C. Kuchar had reasonable grounds to arrest the appellant when he first told the appellant that he was being investigated for an arrestable offence but was not then being arrested, and the actual arrest that occurred a few moments later. Thus, the grounds to arrest for trespassing continued to exist. The arrest was lawful and the circumstances outlined above amply justified a search incidental to that arrest – even if one assumes (as I do not) that there were not sufficient grounds to conduct a search incidental to the original investigative detention. Whether the “search” consisted of the physical pat-down exercise itself, or whether it consisted of the continuum of conduct from the time P.C. Kuchar told the appellant he “was going to search him” until the physical search was completed, is of little significance. The search was justified on either interpretation in the circumstances.
Section 24(2)
[27] In light of the forgoing conclusions it is unnecessary to consider whether the gun ought to have been excluded pursuant to s. 24(2) of the Charter because of a breach of the appellant’s rights.
[28] The trial judge was somewhat troubled by the fact that the police had indicated an intention to search the appellant before placing him under arrest. He observed that it would have been preferable if the officers had made it clear to the appellant that they could only search him with his consent, absent an arrest, and, absent that consent, had only taken the initiative to search him after placing him under arrest for loitering. I agree with that observation, but, for the reasons outline above, do not accept that there was a s. 8 violation in the circumstances.
[29] However, I also agree with the trial judge’s observation that if there were a s. 8 violation, it was of a very minor nature – so “trifling” as to amount to virtually no breach at all, as he put it. As Mr. Bernstein submitted, if sufficient grounds to conduct a search incidental to investigative detention were missing at that time, they were not missing by much; and if the appellant’s Charter rights were infringed by being told that he was going to be searched, they were not infringed by much. Mr. Downes concedes that the police could have arrested the appellant at the time when he was merely being detained for investigative purposes and that, if they had, they could have searched him. In these circumstances, the first two criteria of the Grant test[^1] are considerably attenuated. The loaded firearm was real evidence and was essential to the proof of the Crown’s case. Balancing these factors with the societal interest in having the case adjudicated on the merits – the third Grant criterion – the circumstances as a whole here strongly favour inclusion.
[30] Accordingly, even if I had concluded that there was a slight s. 8 breach at the outset of the exchange between the police and the appellant, I would not have interfered with the trial judge’s decision not to exclude the loaded firearm as evidence under s. 24(2) of the Charter.
Disposition
[31] I would therefore dismiss the appeal.
“R.A. Blair J.A.”
“I agree J.C. MacPherson J.A.”
“I agree G.J. Epstein J.A.”
RELEASED: May 10, 2011
[^1]: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 67-71. The Grant test requires the court to consider (1) the seriousness of the Charter breach, (2) the impact of that breach on the accused’s Charter-protected rights, and (3) the societal interest in having criminal matters adjudicated on their merits.