Court of Appeal for Ontario

Date: 20211112 Docket: C67886

Simmons, Lauwers and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

Nana Tutu Appellant

Counsel: Erin Dann and Sarah Weinberger, for the appellant Andrew Cappell, for the respondent

Heard: October 22, 2021 by video conference

On appeal from the convictions entered by Justice Gregory M. Mulligan of the Superior Court of Justice on September 4, 2018.

Reasons for Decision

[1] The appellant was convicted of one count of wilfully obstructing a peace officer; six counts stemming from the illegal possession or storage of a firearm; five counts stemming from breach of recognizance; and four counts stemming from the possession of Schedule I substances. He received a four-year sentence that he has served.

[2] At trial, the appellant argued that the arresting officer, Police Constable Mark Hankin, violated several of his rights under the Canadian Charter of Rights and Freedoms: his s. 9 rights (by arbitrarily detaining him), his s. 10(b) rights (by failing to provide him with the right to counsel immediately after detaining him), and his s. 8 rights (by searching his vehicle incident to an unlawful arrest). The appellant also claimed that PC Hankin racially profiled him.

[3] On the appeal, the appellant argues that the trial judge erred in failing to exclude the material evidence under s. 24(2) of the Charter on the basis that his Charter rights were breached. We allow the appeal and enter an acquittal on all counts, for the following reasons.

The Factual Context

[4] PC Hankin was driving through the parking lot of a Barrie hotel on a general patrol. He testified that he noticed a black Chrysler with fresh yellow paint markings on the front quarter panel, indicating possible damage. He pulled in behind the car, ran a computer check of the licence plate, and learned that it was a rental. Curious, PC Hankin got out of his cruiser and approached the car. He initially thought the car was unoccupied.

[5] Seeing the occupants, PC Hankin knocked on the driver’s side window, and the appellant rolled it down. He is a Black man and was wearing a black hoodie. He had a set of gold teeth known as what the officer called a “grill”. The appellant and the car’s other occupant, Aaliyah Henry, were sharing a marijuana joint and he passed it to her. PC Hankin asked them to put the joint out and to turn down the music, and then he asked for their names.

[6] Ms. Henry gave PC Hankin her real name, but the appellant falsely identified himself as “Marcus Anthony”. PC Hankin asked them to wait, returned to his cruiser, and ran the names through his computer. There was no driver’s licence connected to the name, nor any outstanding warrants or criminal convictions. PC Hankin suspected that the appellant had provided a fake name. He returned to the car and asked the appellant to spell his name, which he was unable to do. The appellant then provided a second fake name, “Ben Dan”.

[7] By this time another officer, PC Ronald Hunt, had arrived at the scene. The two officers took the appellant out of the car. PC Hankin arrested him for obstructing police, but he did not immediately advise the appellant of his right to counsel. PC Hunt arrested Ms. Henry for marijuana possession. He then searched the vehicle incident to the arrests and found a Glock handgun as well as pouches of drugs in a Gucci bag located on the floor. PC Hankin inspected the Glock, and arrested the appellant again for possession of a firearm, and read him his rights. PC Hankin next took the appellant to the police station where his right to speak to counsel was implemented.

The Issues

[8] This appeal turns on whether the trial judge erred in finding that the appellant’s detention, for Charter purposes, occurred at the moment of his arrest and not before. In our view, the detention occurred when PC Hankin discovered that the car was occupied after he had blocked it from moving.

The Analysis

[9] Detention engages s. 9 of the Charter, which provides: “Everyone has the right not to be arbitrarily detained or imprisoned.” The principles governing s. 9 have recently been laid out in a sequence of decisions from the Supreme Court and this court.

[10] Arbitrary detention is prohibited in order to “protect individual liberty against unjustified state interference”: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 25. It protects “an individual’s right to make an informed choice about whether to interact with the police or to simply walk away”: R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, at para. 30. Upon detention, an individual must be informed of the additional rights afforded by the Charter, such as the right to be informed of the reasons for the detention (s. 10(a)), and the right to retain and instruct counsel without delay and to be informed of that right (s. 10(b)): Thompson, at para. 31.

[11] The court must make two inquiries in assessing whether s. 9 applies: (1) Was the claimant detained? (2) If so, was the detention arbitrary?: Le, at para. 29.

[12] A detention arises only where the police suspend an individual’s liberty through “a significant physical or psychological restraint”: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44. Not every interference with an individual’s liberty attracts Charter scrutiny.

[13] Physical detention is usually obvious. More difficult is psychological detention, which the court in Grant noted “is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply”: at para. 44. The Grant court set out three factors to be assessed, at para. 44:

a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation. b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. [Emphasis added.]

[14] This court explained in Thompson that psychological detention or restraint can arise in two ways, when: (1) “an individual is legally required to comply with a police direction or demand”; or (2) absent legal compulsion, when “the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand”: see Thompson, at para. 36; Grant, at paras. 30-31; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 22, and Le, at paras. 25-26.

[15] The s. 9 inquiry engages all the circumstances of the encounter. It requires an objective assessment of what a reasonable person in the shoes of the accused would perceive about his or her freedom to leave: Le, at para. 106. The focus is on how the police behaved and, considering the totality of the circumstances, how their behaviour would reasonably be perceived: Le, at para. 116. The focus is not on what was actually in the accused’s mind at the particular moment. Nor is it on the police officer’s intention.

[16] As noted, the trial judge found that the appellant’s detention arose when he was arrested by PC Hankin for obstructing police after the appellant gave a second false name. The appellant submits that he was psychologically detained when the officer boxed his car into the parking spot.

[17] This case is remarkably similar to Thompson. (In fairness to the trial judge, Thompson was released well after he made his decision.) In that case, the appellant was sitting in a parked car when two police cruisers arrived and boxed him in so that he could not leave. He was arrested for possession of the butt of a marijuana joint. His car was searched incident to arrest and the police found other drug paraphernalia and cocaine. The appellant was charged with and convicted for possession of cocaine for the purpose of trafficking.

[18] This court allowed the appeal on the basis that the evidence should have been excluded under s. 24(2) of the Charter because the police had arbitrarily detained the appellant by boxing in his vehicle and had failed to immediately inform him of his right to counsel. The moment of detention, according to Jamal J.A. (as he then was), was when the appellant’s car was boxed in. The appellant submits that this court should reach the same conclusion.

[19] The Crown submits that, unlike Thompson, in which the police intentionally boxed in the appellant’s car, PC Hankin was unaware that the vehicle was even occupied when he parked behind it; there is no evidence that the appellant was aware of police presence at that moment.

[20] However, this reasoning was expressly rejected in Thompson. Jamal J.A. explained: “Whether the appellant was detained, triggering the police’s Charter obligations, should not turn on whether the appellant saw the police in his rear-view mirror as they boxed him in (a subjective approach), but on whether a reasonable person in his circumstances would conclude that this police conduct effected a detention (an objective approach)”: at para. 48.

[21] In our view, the circumstances giving rise to the encounter in this case support a finding that a reasonable person, in the appellant’s position, would believe he was detained when the police, having obstructed his car, approached it or knocked on the window. A reasonable person would see this as a directed personal inquiry: see Thompson, at paras. 53-54; Grant, at para. 41; Le, at para. 42.

[22] The appellant was psychologically detained from the outset of his interaction with PC Hankin, well before his initial arrest. As in Thompson, the police conduct was “authoritative from the outset”: at para. 55. PC Hankin blocked the movement of the appellant’s car with his marked police cruiser. He was in a police uniform. Nothing about the officer’s initial interaction with the appellant would have diminished the perception of a reasonable person in the appellant’s circumstances that he was detained. PC Hankin told the occupants to put out the joint, to turn the music down, to produce identification, and to wait while he did a computer check of their names. He also asked whether they possessed a marijuana licence.

[23] The trial judge stated that “nothing prevented Mr. Tutu or Ms. Henry from exiting the vehicle” and impliedly, their ability to leave on foot. He pointed out that video surveillance showed that the appellant and Ms. Henry had earlier left the vehicle to return to the hotel.

[24] But the view that these factors meant there was no detention is completely unrealistic. First, PC Hankin testified that he told the appellant to “just wait here” and that he was going to run their names through the system and he would “be right back.” He added that he possibly even told them to “stay in [their] car.” Such language would lead a reasonable person to conclude that he or she was not free to leave. The officer’s testimony that if they exited the vehicle, he would not have stopped them does not bear up to scrutiny.

[25] Second, the trial judge noted that the appellant in this case was deprived of the ability to drive away. Jamal J.A.’s conclusion in Thompson, at para. 57, applies equally here: “[T]he police effectively took control of the appellant’s car and its occupants, first by obstructing the appellant’s car, and then by approaching the car and seeking information from the appellant and the passenger.” He added, at para. 61: “In my view, a reasonable person in the appellant’s position, whose car was deliberately obstructed by a police cruiser, would conclude that they were not free to leave, on foot or otherwise.” The appellant was detained because he had lost his “freedom of movement [which] includes the freedom to leave by driving away”: Thompson, at para. 62.

[26] Finally, there was some inconsistency in PC Hankin’s testimony as to whether, on parking his cruiser behind the Chrysler, he intended to prevent the appellant from leaving. He testified that he thought the car was unoccupied and that he parked as he did because he did not want to block traffic. The officer’s subjective intention not to block the car is irrelevant. Regardless of that intent, a reasonable person boxed in by a police cruiser would conclude that he or she was not free to leave (see also Q. v. Phillips, 2021 ONSC 5343, at paras. 6, 11).

[27] In our view, when the officer came to the driver’s side window, after blocking the car and preventing it from leaving, he effectively detained the appellant. This situation would lead a reasonable person in the appellant’s position to conclude that he was not free to go. This detention was arbitrary and therefore a breach of s. 9 of the Charter because at that point, there was no reasonable suspicion of criminal conduct: Thompson, at para. 65; Grant, at para. 55. The detention was reinforced when PC Hankin knocked on the window. On the officer’s own evidence, the appellant’s use of marijuana did not justify his detention or his arrest.

[28] As in Thompson, the officer did not immediately advise the appellant of his right to retain and instruct counsel, contrary to s. 10(b) of the Charter. This failure tainted everything that followed. The officer continued to elicit evidence from the appellant, who had no obligation to speak to him. Their verbal encounter led to the obstruction charge. That charge led to the arrest, which led to the search, which led to the discovery of the drugs and the gun, and to the upgraded charges. This is a similar dynamic as in Thompson with the same linking causal connection between the detention and the charges in play: at para. 80.

[29] PC Hankin detained the appellant but instead of telling the appellant that he was detained and advising him of his rights, including his rights to counsel and to not speak, the officer questioned the appellant. This led to the discovery of the evidence.

[30] The question is whether the evidence should be excluded under s. 24(2) of the Charter, considering the application of the Grant factors, based on the combined breaches of ss. 9 and 10(b). As in Thompson, this court must consider the matter afresh because the trial judge erred in assessing the nature and extent of the Charter breaches: Thompson, at para. 73.

[31] The first Grant factor is the seriousness of the Charter-infringing police conduct that led to the discovery of the evidence. Our finding with respect to the timing of the arbitrary detention significantly increases the seriousness of the s. 10(b) breach.

[32] The trial judge stated with respect to the appellant’s s. 10(b) rights: “I am satisfied that this was a breach of Mr. Tutu’s Charter protected rights; the right to be informed of his right to counsel without delay. PC Hankin showed a lack of knowledge that “without delay” meant “immediate”: see: Suberu at para. 42.” He added: “I am satisfied that the breach of Mr. Tutu’s 10(b) rights was serious, but it was not prolonged.” In his view, the officer breached his s. 10(b) informational duties but complied reasonably quickly with his implementational duties.

[33] We agree that the s. 10(b) breach was serious in the absence of exigent circumstances. As Jamal J.A. observed in Thompson, at para. 89: “[Police] cannot go about their undeniably important duties to enforce the law by obstructing ordinary Canadians in their cars until they are satisfied that they have answered their questions.”

[34] The second line of inquiry under Grant concerns the impact of the breach on the appellant’s Charter-protected rights. The police continued to question the appellant after the point of detention, which led to the obstruction charge and so on. This breach impacted the appellant’s rights greatly because it provided the police with the incriminating evidence.

[35] The seriousness of the combined breaches and their significant impact on the appellant’s Charter-protected rights leads us to conclude that permitting the admission of the evidence in the appellant’s prosecution would bring the administration of justice into disrepute.

[36] Turning to the third Grant inquiry – society’s interest in the adjudication of the case on the merits – there is no doubt that society has a significant interest in the prosecution of firearm and drug offences on their merits. That said, once the first two lines of inquiry make a case for the exclusion of the evidence, the third inquiry “will seldom if ever tip the balance in favour of admissibility”: Le, at para. 142, and see R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 56. As Doherty J.A. noted in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 83: “This unpalatable result is a direct product of the manner in which the police chose to conduct themselves.” Even though the evidence here, the drugs and the gun, is highly reliable and critical to the Crown’s case, in our view it must be excluded.

[37] As was the case in Thompson, because we conclude that the evidence ought to be excluded under s. 24(2) based on the combined breaches of ss. 9 and 10(b), it is unnecessary for this court to address the alleged breach of s. 8.

[38] We also decline to address the appellant’s claim that PC Hankin racially profiled him, contrary to Le. In fairness to the trial judge and to trial counsel, Le was not available when the case was heard and decided to assist in framing the issue in terms of evidence or argument. In our view, a claim of racial profiling demands both proper framing and evidence, as detailed in Le, and in later cases such as R. v. Dudhi, 2019 ONCA 665 and R. v. Sitladeen, 2021 ONCA 303.

[39] To repeat, we allow the appeal and enter an acquittal on all counts.

Janet Simmons J.A.

P. Lauwers J.A.

G. Pardu J.A.