COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Williams, 2013 ONCA 772

DATE: 20131220

DOCKET: C56001

Cronk, Watt and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Geran Williams

Appellant

Michael Dineen, for the appellant

Michael Medeiros, for the respondent

Heard: December 6, 2013

On appeal from the decision of Justice E. Eva Frank of the Superior Court of Justice, sitting without a jury, on March 23, 2012.

ENDORSEMENT

[1] The appellant appeals several convictions arising out of his possession of a fully-loaded .45 calibre semi-automatic handgun and a small quantity of marihuana.

[2] The appellant reinvigorates an argument made at trial that the police conduct in obtaining the evidence against him – the handgun and marihuana – infringed his rights under sections 8 and 9 of the Charter of Rights and Freedoms. To be more specific, the appellant says that he was arbitrarily detained when first approached by police, then subjected to an unreasonable search, which resulted in the unreasonable seizure of the handgun and marihuana. The seized items, the appellant contends, should have been excluded as evidence at his trial.

[3] The trial judge disagreed. So do we. The conduct of the police offended neither s. 8 nor s. 9 of the Charter. The gun and marihuana were properly admitted as evidence at trial. The appeal is dismissed and the several convictions affirmed.

THE BACKGROUND FACTS

[4] The appellant’s trial proceeded as a blended voir dire and trial before a judge of the Superior Court of Justice sitting without a jury. The evidence on the voir dire consisted of the testimony of the several police officers involved in the investigation of the appellant and of two witnesses called on the appellant’s behalf. The appellant did not testify on the voir dire or at trial.

[5] The interaction between the appellant and the police quickly followed receipt of an anonymous tip about a man with a gun in an area not far from the police station where crimes involving drugs and guns are frequent. The evidence about what happened during the police response was not entirely consistent, as among the several police witnesses, or between their testimony and the accounts provided by the two civilians called on behalf of the appellant.

[6] The trial judge made several critical findings of fact from the evidence adduced at trial. The appellant does not suggest that those findings are unreasonable or tainted by misapprehensions of the relevant evidence. The nub of the appellant’s complaint is that the legal conclusions the trial judge drew from her findings of fact are wrong.

The Anonymous Tip

[7] Shortly after 7:25 p.m. on July 10, 2008 a police officer answered the telephone in the Major Crime Unit of 23 Division police station in Toronto. The caller told the officer that a person was walking south at 1800 Martingrove with a gun. The person was described as a black man wearing a black t-shirt and jeans. The man was five feet eight inches tall, had a baby face, and wore his hair in dreadlocks. The officer asked the caller’s name. The caller hung up.

[8] The housing complex at 1800 Martingrove is a short distance from 23 Division and well-known to the officers who work at that station. Police are frequently called to this complex about ongoing problems with drugs and guns, including shootings. Police refer to the area as a “stovetop”, a place where crack cocaine is often cooked on the top of a stove.

[9] Police knowledge about the illicit activities at 1800 Martingrove means that there is frequent police activity in and around the complex. Plainclothes officers are routinely recognized for what they are – the police.

The Police Response

[10] The information received during the anonymous call was passed on immediately to other members of the Major Crime Unit. Within minutes, six officers in plainclothes responded, taking up various positions in the area described by the caller.

[11] The first officers there noticed, within a group of people, one individual who fit the caller’s description about the man with the gun. The man’s face was not visible so that the officers could not confirm, initially at least, that the man they saw at the south entrance to 1800 Martingrove – the appellant – had a “baby face”. Two of the officers stayed out of sight of the appellant.

The Approach

[12] Two police officers approached the appellant, identified themselves as police officers, and said they were investigating a weapons offence. One of the officers asked “Are you armed?”. The appellant did not answer the officer’s question. Instead, the appellant “bladed” – turned to his side – in a manner the officer considered evasive. The others who were with him did not react in the same way. One of the officers noticed that the appellant also made a movement towards the area of his waist.

[13] An officer told the appellant to put his hands up and to turn around. The appellant did neither.

The Confrontation and Search

[14] The failure of the appellant to respond to the police inquiry and subsequent instruction prompted the two officers closest to him to approach the appellant and take control of his arms. The appellant resisted. All of the officers testified that they considered their safety, as well as that of the public, to be at risk. During the brief struggle that followed, one officer lifted up the appellant’s t-shirt and saw the butt end of a handgun protruding from the waistband at the back of the appellant’s pants. The officer yelled “gun, gun, gun”.

[15] Other officers assisted in subduing the appellant on the ground and handcuffing him behind his back. The handgun was fully loaded, including a cartridge in the firing chamber, and was ready to fire. The appellant was arrested. The marihuana was recovered during a search incident to the appellant’s arrest.

The Ruling of the Trial Judge

[16] The trial judge considered, first, the argument that the appellant was arbitrarily detained from the outset because neither the anonymous tip nor anything that occurred thereafter amounted to the reasonable suspicion required to justify an investigative detention.

[17] The trial judge was satisfied that the information provided in the anonymous tip was insufficient to found a reasonable suspicion that the appellant committed an offence and thus could not, on its own, justify an investigative detention. But the tip combined with what occurred as the officers spoke to the appellant furnished the grounds necessary to justify the investigative detention that followed. Once the gun was seen, the officers had reasonable and probable grounds to arrest the appellant.

[18] The trial judge was also satisfied that the search of the appellant was not unreasonable. She acknowledged that what occurred was not a pat-down permitted out of concern for officer or public safety, as part of an investigative detention. But what happened, the lifting of a t-shirt, was less invasive than a pat-down search would have been and thus was not unreasonable.

[19] Despite the finding that none of the evidence proposed for admission by Crown counsel had been obtained in a way that infringed the appellant’s Charter rights, the trial judge considered the application of s. 24(2) of the Charter on the assumption that she had erred in her findings about a Charter infringement. She concluded that she would have admitted the evidence about finding the gun and marihuana even if she had found either or both the alleged infringements.

Ground #1: Arbitrary Detention

[20] The appellant says that although the trial judge was correct in deciding that the anonymous tip, on its own, was insufficient to authorize the investigative detention of the appellant, she erred in finding that the subsequent events established the necessary conditions precedent for such a detention. The appellant’s conduct when confronted by the police included responses that were at once ambiguous and consistent with the exercise of his right to silence. Besides, what happened here was not an investigative detention, but rather a de facto arrest unsupported by any reasonably-grounded belief that the appellant committed an offence.

[21] We do not agree.

[22] Police may detain a person for investigative purposes if they have reasonable grounds to suspect that the person is connected to particular criminal activity and that such a detention is reasonably necessary in the circumstances: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45; R. v. MacKenzie, 2013 SCC 50, at para. 35. The standard – “reasonable grounds to suspect” – involves possibilities, not probabilities: MacKenzie, at para. 38; R. v. Chehil, 2013 SCC 49, at para. 27; R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 75. We must take care not to conflate the test for reasonable suspicion with the more exacting standard of reasonable belief: MacKenzie, at para. 84; Chehil, at para. 27.

[23] A reasonable suspicion entails more than a sincerely held subjective belief, for that is mere suspicion: MacKenzie, at para. 41; Kang-Brown, at para. 75. A reasonable suspicion is a suspicion grounded in “objectively discernible facts, which could then be subjected to independent judicial scrutiny”: Chehil, at para. 26; MacKenzie, at para. 41.

[24] To determine whether the reasonable suspicion standard has been met, a reviewing court must examine the totality of the relevant circumstances. This examination is not some scientific or metaphysical exercise. Common sense, flexibility, and practical everyday experience are to be applied through the eyes of a reasonable person equipped with the knowledge, training, and experience of the investigating officer: MacKenzie, at para. 73. The standard of reasonable suspicion is not frustrated simply because the factors urged in support may also give rise to an innocent explanation. In the end, if the facts objectively indicate the possibility of criminal behaviour in light of the totality of the circumstances, the objective component of the reasonable suspicion standard has been satisfied: MacKenzie, at para. 72; Chehil, at para. 31.

[25] Any elements or factors considered as part of a “reasonable suspicion” analysis must respect Charter principles. Nor should the exercise of Charter rights, such as the right to remain silent or to walk away from questioning made outside the context of a detention, provide grounds for reasonable suspicion: Chehil, at paras. 43-44. Yet some factors, including flight from the police, may give rise to reasonable suspicion on their own: Chehil, at para. 31. Even if a factor cannot on its own support reasonable suspicion, reasonable suspicion may be established when the same factor is simply one of a constellation of factors: Chehil, at para. 31. The actions of a person after an initial encounter with the police are part of the circumstances to be considered in deciding whether the reasonable suspicion threshold has been crossed: R. v. Nesbeth, 2008 ONCA 579, 238 C.C.C. (3d) 567, at paras. 1-2 and 17-18.

[26] The parties agreed at trial and in this court that, on its own, the anonymous tip was not sufficient to satisfy the reasonable suspicion standard. That said, the tip remained a part, and an important part, of the circumstances that were relevant to a determination of the reasonable suspicion issue. The tip was current, described the nature of the offence being committed, and contained sufficient particulars of the suspect to enable police to immediately focus on the appellant when they arrived minutes later.

[27] In our view, the combination of the anonymous tip and what occurred when the appellant encountered the police was capable of supporting a reasonable belief that the appellant might be connected to a gun crime as reported by the anonymous caller. Nothing more was required.

Ground #2: Unreasonable Search

[28] The appellant advances a second claim of constitutional infringement in connection with the recovery of the handgun and marihuana. He says that even if we conclude that the standard for investigative detention has been met, and thus that the appellant was not arbitrarily detained, the seizure of the contraband infringed his rights under s. 8 of the Charter.

[29] The appellant says that the search that may be conducted of a person in instances of investigative detention is a pat-down search. What occurred here, the appellant says, exceeded a pat-down search and was more akin to a strip search, a procedure that well exceeded what the law permits.

[30] Again, we do not agree. This ground of appeal fails.

[31] The police were investigating a possible gun offence. They apprised the appellant of their purpose. They asked whether he was armed. He did not answer their question, but “bladed”, turned away from them. An officer told the appellant to put his hands up and turn around. He refused. The officers approached and took hold of both arms. The appellant resisted.

[32] One officer lifted the appellant’s baggy t-shirt. A gun butt protruded from the waistband of the appellant’s pants. The officer saw it and yelled “gun, gun, gun”. The appellant was subdued, handcuffed, and placed under arrest.

[33] Strictly speaking, what occurred was not a pat-down search. But what occurred was no more, and arguably less, intrusive than a pat-down search. To characterize what occurred here as unreasonable is to sacrifice substance for form. In no sense could this search be characterized as the functional equivalent of a strip search.

Ground #3: The Admissibility of Evidence

[34] This ground of appeal requires the appellant to show that the evidence admitted at trial – the gun and marihuana – was obtained in a manner that infringed his rights under either s. 8 or s. 9 of the Charter. Since he has failed to demonstrate that the evidence was obtained in a constitutionally flawed way, we do not reach the application of s. 24(2) of the Charter.

[35] The trial judge did consider the application of s. 24(2) in case a reviewing court concluded that she had erred in finding that no constitutional infringement had occurred. Her analysis and conclusion are unblemished by any error in principle, a failure to consider any relevant factor, a consideration of any irrelevant factor, or a misapprehension of any of the evidence. We agree with her analysis and the result she reached.

CONCLUSION

[36] For these reasons, the appeal is dismissed.

“E.A. Cronk J.A.”

“David Watt J.A.”

“K. van Rensburg J.A.”