Court of Appeal for Ontario

Citation: R. v. Darteh, 2016 ONCA 141

Date: 2016-02-22

Docket: C59386

Before: Doherty, Cronk and LaForme JJ.A.

Between

Her Majesty the Queen

Respondent

and

Ohene Sekeyere Darteh

Appellant

Counsel:

Janani Shanmuganathan, for the appellant

Michael Medeiros, for the respondent

Heard: February 19, 2016

On appeal from the convictions entered by Justice Michael Code of the Superior Court of Justice on February 7, 2014, with reasons reported at 2014 ONSC 895, 302 C.R.R. (2d) 283.

Endorsement

[1] The appellant was detained by the police in front of his residence for investigation of trespass and liquor-related provincial offences. An altercation ensued in which the appellant shoved and kicked the officers and ran into the residence. The police arrested the appellant and a subsequent search of his backpack revealed a handgun.

[2] At trial, the appellant alleged numerous infringements of his Charter rights. He brought an application to exclude from evidence the handgun and for a stay of proceedings. The trial judge dismissed the application. Among other things, he found that the appellant had been lawfully detained for a brief investigation for offences under the Trespass to Property Act, R.S.O. 1990, c. T-21, and the Liquor License Act, R.S.O. 1990, c. L-19. The appellant was convicted of various firearms and weapons offences and of assaulting the police.

[3] On appeal, appellant’s counsel clearly and concisely submits that his detention was arbitrary and contrary to s. 9 of the Charter. She argues that because the appellant’s detention was arbitrary, the convictions for assaulting the police should be overturned and the handgun should have been excluded from evidence. She requests that this court replace the appellant’s convictions with acquittals or order a new trial. The trial judge’s findings of fact and his conclusions regarding the credibility of witnesses are not challenged.

[4] The 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. The standard “reasonable grounds to suspect” requires that the police have a “reasonable suspicion” or a suspicion that is grounded in objectively discernible facts, which could then be subjected to independent judicial scrutiny: R. v. Williams, 2013 ONCA 772, 313 O.A.C. 195, at paras. 22-23.

[5] Appellant’s counsel submits that the police relied on the following facts when detaining him: he was acting nervously, he walked away quickly when he saw the police, and he stopped at the first available apartment for which he did not have a key. Appellant’s counsel argues that these facts cannot ground a reasonable suspicion that he was engaged in either a liquor-related or trespass offence.

[6] The trial judge agreed that the appellant’s decision to walk away from the police could not ground a reasonable suspicion that he was involved in an offence. Nevertheless, he concluded that the information and facts available to the police at the time of the detention, when considered in their totality, were objectively capable of supporting reasonable suspicion. These included:

• The manner in which the appellant had turned to the first available doorway and urgently tried to gain entry by turning the door handle and knocking.

• The appellant did not have a key to the unit that he was trying to enter.

• The appellant was carrying a partially consumed bottle of liquor, smelled of alcohol, and had blood shot eyes such that it could be inferred that he had been drinking in the courtyard.

• The appellant’s very nervous demeanour, including a trembling hand when he produced his health card and his manner of standing with his backpack up against the wall.

• The complaint from the property manager that there were trespassers in the courtyard area, particularly during the evenings after 8:00 p.m., and that someone appeared to be letting them in.

[7] The actions noted above may have been lawful and each of the facts, if considered in isolation, may have been insufficient. However, when the totality of facts is viewed together, they are capable of grounding a reasonable suspicion that the appellant may be engaged in trespass or liquor-related offences. Reasonable suspicion may be grounded in a constellation of factors, even if any one of those factors on its own would not have been sufficient: R. v. Nesbeth, 2008 ONCA 579, 238 C.C.C. (3d) 567, at paras. 1-2 and 17-18.

[8] The trial judge’s assessment of the evidence supported his conclusion that the police had a reasonable basis to suspect that the appellant was a trespasser committing a provincial offence. His findings are entitled to deference from this court. As we have concluded that the appellant’s s. 9 rights were not infringed, there is no need to address the appellant’s s. 24(2) Charter arguments. The appeal is dismissed.

“Doherty J.A.”

“E.A. Cronk J.A.”

“H.S. LaForme J.A.”