Court File and Parties

Court File No.: Central East - Newmarket 4911-998-11-06047

Date: 2012-05-18

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Nicholas Glasgow

Before: Justice Richard Blouin

Heard on: December 5, 6, 2011 and March 27, 2012

Ruling on Charter Application released on: May 18, 2012

Counsel:

R. DeChellis, for the Crown

T. Smith, for the defendant Nicholas Glasgow

BLOUIN J.:

Charges

[1] Nicholas Glasgow stands charged that he committed the following seven offences on November 20, 2010:

• Possess Firearm (.357 Magnum Revolver) without a licence or registration, contrary to s. 91(3) of the Criminal Code;

• Carry a Firearm in a Careless Manner, contrary to s. 86(3) of the Criminal Code;

• Possess loaded restricted Firearm, contrary to s. 95(2) of the Criminal Code;

• Possess Firearm without licence or registration, contrary to s. 92(3) of the Criminal Code;

• Carry Concealed Weapon, contrary to s. 90(2) of the Criminal Code;

• Possess Firearm while Prohibited by s. 109(3) Order, contrary to s. 117.01(3) of the Criminal Code; and

• Possess Marihuana

Issue

[2] At issue was the admissibility of evidence seized by the police. According to police, a gun and a bag of marihuana were discarded by the defendant. The defendant testified that he threw only marihuana. Counsel agreed that the four police witnesses would testify for the Crown on a blended trial and Charter voir dire, and that the defendant would testify with respect to the voir dire only. Constable Lidstone was called to confirm that the backpack carried by the defendant that evening was not seized by the police, but instead was picked up from the correctional facility. Constables Freeze and Mahoney were called to give evidence regarding the events after P.C. Ly chased and arrested the defendant. Constable Ly's evidence spanned the questioning and arrest of the defendant.

[3] The defendant submits that the evidence seized by police should be excluded, pursuant to s. 24(2) of the Charter, since it was obtained in a manner that infringed the defendant's right to be free from arbitrary detention. Since the defendant was detained during the police investigation at the cruiser, he should have been informed of the reason (s. 10(a)), and given right to counsel (s. 10(b)). Even when the defendant was arrested at the conclusion of the chase (around 5:16 p.m.), he was not provided with his right to counsel until 5:36 p.m. The defendant also submits that the questioning of the defendant while he was detained, and therefore compelled to answer, amounts to an unreasonable search, pursuant to s. 8, and the information obtained from those questions should be excluded.

Crown Evidence

Constable Thang Ly

[4] November 20, 2010 was the first time Constable Ly had arrested anyone for a firearm offence in his six and a half years of police work. Late in the afternoon, around 4:45 p.m., he was on general patrol in his cruiser when he pulled into a parking lot of a park within a residential area of Markham. This park has a tennis court and a pond and is used by families and young people. Ly observed a male (later identified as the defendant) from the rear wearing a black hoodie, ball cap, black jacket, black pants and black knapsack with red lining, about 20 metres away, on a walkway. He could not, at that time, see the person's face. He did not know his skin colour. His attention was drawn to an "oddly shaped" item inside the backpack that he believed to be a "bong". That item leaned towards the right side of the backpack, making it appear unbalanced. Although Ly had an "interest" in the defendant, since he was not doing anything wrong, Ly pulled out of the parking lot.

[5] Ly continued "looking for suspicious activities". He had made a few arrests for drugs and weapons, and was aware of drug dealing in this park. Ly later observed the defendant walking southbound, still in the park, when the defendant looked up at the cruiser. Ly noticed the defendant hesitate and make a slight turn towards the west. When asked, Ly indicated that, at that time, he noticed the defendant to have "dark skin". Ly activated his emergency lights, rolled down his passenger window and said, "Hey bud, come over here, I want to talk to you". The defendant walked over. The police officer interacted with the defendant in a normal voice:

• Ly asked if the defendant lived around the area: No reply.

• Ly asked where the defendant was coming from. Answer: "The barber".

• Ly asked, "From the plaza or residential"? Answer: "The house down there". The defendant then took his hat off to show a fresh haircut.

• Ly told the defendant of the ongoing drug infractions in the park.

• Ly asked if the defendant had any identification on him. Answer: "Why do I have to show you my ID"?

• Ly told the defendant, "You don't have to show ID if you don't want but I like to know who I'm talking to and what you are about".

Ly felt the defendant was being evasive.

[6] At that point, the defendant provided his driver's licence. Ly was still seated in his cruiser with the seat belt on as the defendant passed his licence through the open passenger window. Ly swiped it through the police scanner system in his cruiser and gave it back to the defendant.

[7] In less than five seconds, information came back that showed the defendant was prohibited for life from possessing, among other things, firearms. Also, apparent was the defendant's conviction for possessing a loaded firearm. At that point, the officer formed grounds to detain the defendant and believed that the item in the backpack was a weapon and became fearful for his, and the public's, safety. Ly suggested to the defendant that he must have been involved in a serious crime involving a firearm, to which the defendant nodded in the affirmative.

[8] Ly testified that up until he received the police computer information regarding the gun prohibition, the defendant was free to leave. Ly felt, at this point, he would have stopped the defendant if he tried to leave, since he had to confirm the defendant was complying with the weapons prohibition. He admitted, in cross-examination, that he felt he had the authority to search an individual to determine if he is complying with the prohibition, or any other conditions connected to bail or probation. That authority to search was, in his view, limited to a "pat-down". Ly told the defendant he was going to be detained and searched to confirm whether he was complying with the prohibition or not. The defendant looked southbound past the cruiser, and, as the officer was unbuckling his seatbelt, ran. Ly indicated his intention was to perform a "pat-down" search on the defendant's backpack and person. His intent at that point was not to open the backpack, nor to go inside the pockets of the defendant. Ly admitted the time from calling the defendant over to talk until the defendant ran as "five minutes or a little bit over".

[9] As Ly took up the chase, he radioed for assistance (later it was determined he made the radio call to dispatch at 5:14 p.m.). He never lost sight of the defendant as he followed him down a ravine toward a pond. Ly yelled, "Police, stop. Get down on the ground". While about eight feet behind, he observed the defendant throw a dark object, approximately eight to nine inches in length, with a handle, from his right hand into the pond. Because of the splash, the size of the object, and the way it looked, he concluded the object was heavy, and believed it to be a gun. When it appeared to Ly that the defendant was reaching to his waist for another gun, Ly un-holstered his gun. When he concluded there was no safety concern, he re-holstered his gun and handcuffed the defendant.

[10] Ly arrested the defendant as they walked back to the cruiser. Although Ly was "99 percent" certain that Glasgow threw a firearm into the pond, he said he did not know yet the offence connected to that arrest. Both arrived back at the officer's cruiser at approximately 5:17 p.m.

[11] Around the same time, P.C. Mahoney arrived. Ly told Mahoney that the defendant discarded a gun. The defendant was asked what he threw in the water. Glasgow told the police, "It was just weed", and was arrested for possession of marihuana. Ly returned to the area near the pond and located a zip-lock bag containing 31 grams of marihuana, about two to three feet away from a shoe Mr. Glasgow had been wearing, which had stuck in the mud near the edge of the pond. After returning to the cruiser with the marihuana (he left the shoe), the defendant was given right to counsel and caution. This was at 5:36 p.m. Glasgow understood and he indicated he wished to speak to a lawyer.

[12] At the cruiser, the defendant's backpack was searched. Found was $540 (in twenties), a small digital scale, and a bundle of small plastic vials.

[13] The next morning, P.C. Ly attended the pond with the police marine unit and found a fully loaded .357 Magnum firearm in the exact location that Ly saw the splash the night before. The crime scene had been secured overnight.

[14] In cross-examination it became clear that Ly only formed grounds to arrest for a particular offence later at the police cruiser when he asked Glasgow what he threw in the pond, and Glasgow answered marihuana. Although the defendant had been detained for several minutes without a charge, and was now under arrest for possession of marihuana, Ly failed to advise the defendant of his right to counsel until approximately 20 minutes had passed. The officer conceded this to be an oversight. The officer made other concessions regarding inaccuracies:

• Ly also conceded that his evidence that the only clothing in the defendant's backpack was a t-shirt was incorrect.

• Ly also conceded that he gave evidence earlier that he was 15 to 20 feet away from the defendant when he first observed him in the park, then testified it was 20 metres, then conceded he was wrong about 20 metres.

• Ly conceded he had made two arrests in the park for marihuana offences prior to November 20, 2010, and none for weapons offences, and not numerous arrests as indicated in his police notebook, and weapons arrests as indicated in his evidence in-chief.

• Ly conceded that he described in his police notebook a male in his twenties, when he did not see the defendant's face upon the first observation from the rear.

• Ly conceded that he put nothing in his police notes regarding the odd shape of the defendant's backpack, although that observation figured prominently in his investigation as it progressed.

• Ly conceded another oversight when he testified he did not put his emergency lights on when he first spoke to the defendant, and then agreed he did so, but for traffic safety reasons.

• Ly's notes indicated that he observed the defendant to reach into his backpack when chased, and he agreed in cross-examination that he did not see the defendant reach into the knapsack to get the gun.

[15] Also in cross-examination, Constable Ly was questioned about his understanding of grounds necessary to detain for an investigation whereupon Ly replied, "If he's committed a crime or has done something illegal". Ly attended C.O. Bick Police College in 2004 and was instructed in investigative detention. E-mail updates on investigative detention are provided to police officers, and Ly has read them, but was not familiar with R. v. Mann.

[16] Ly testified it is his practice, and a service-wide practice, when investigating individuals to ask for identification, and execute a computer search in order to determine if CPIC has any information regarding bail, probation or prohibition conditions. He then thought he was entitled to search the defendant to determine compliance.

Constables Freeze and Mahoney

[17] P.C. Jeremy Freeze arrived on scene at 5:17 p.m. Constable Ly had the defendant in custody and told him about the chase. Apparently, Ly told Freeze that he heard a splash but could not see what was thrown into the water. Ly wondered if it was a firearm, since he did not think marihuana would make a splash and he (Ly) was aware of past firearms convictions. Freeze thought it wise regarding safety issues that the police secure the scene, and search in the morning.

[18] Constable Ryan Mahoney was with Ly when the marihuana was discovered near the pond. Ly also told Mahoney that he saw the defendant throw a dark object, which made a big splash. P.C. Mahoney confirmed Ly's position regarding searches of citizens found to be on weapons prohibitions.

Defence Evidence

Nicholas Glasgow

[19] The defendant testified on the voir dire. He admitted his criminal record, which was entered into evidence as Exhibit 17. That record includes a conviction for possessing a loaded firearm.

[20] On March 20, 2010, he was 25 years old, a student at Fanshawe College in London, Ontario, and had come to Toronto to visit his father. He had returned to a house in his old neighbourhood in Markham to have his hair cut by the same barber he had used for three years.

[21] Upon the trip back to his father's house in Toronto, he decided to cut through the park to get to the bus stop at Bur Oak and McCowan.

[22] In his backpack he had clothes for the weekend, a book, marihuana, a scale, vials, and a toothbrush. While walking through the park he saw the police cruiser moving slowly, and then approaching on Bur Oak. The officer put on the emergency lights for about three seconds and pulled over to the side of the road.

[23] The police officer rolled down his window and said, "Hey you, come here". The defendant felt then that if he did not speak to the officer he would "take it as disrespect" and "escalate the situation". By that he meant he was concerned the officer might become more aggressive and might call for backup. As a result, the defendant complied because he did not want to make things worse for himself. He felt he had to stay there. The conversation, according to the defendant, started something like this:

Police Officer: What are you doing in this area?

Defendant: I did not answer right away, did not answer the question.

Police Officer: Where are you from? (The defendant changed the chronology by stating that he had mixed up the order of the questions; "The first question was where am I from and the second question what am I doing here in the area".)

He delayed an answer for the first question because he was from Markham until he moved to London to go to school, so he wasn't sure what to say, and he responded to the second question by answering that he was coming from the barber's.

[24] The officer, according to the defendant, indicated there was no barber shop around here. The defendant explained that the haircut was done in a house. He removed his cap to show the recently cut hair. This discussion occurred with the defendant speaking through the open passenger window of the cruiser with the officer in the driver's seat.

[25] A number of questions were asked of the defendant regarding why he was in Markham and his attendance at school in London. Right around that time the officer asked to see ID because he wanted to know to whom he was talking. The defendant asked what the problem was and why he wanted to see his ID, but complied when the officer told him it was a heavy drug area and he wanted to know whom he was dealing with. When asked why he gave his licence to the officer, the defendant said he did not want to arouse suspicion. During the computer check of the defendant's licence, he put his hands in his pockets to keep them warm. The officer told him to take his hands out of his pockets, and asked why he was "acting nervous".

[26] The officer's demeanour changed when he started to ask about the defendant's weapons prohibition and prior criminal record. The officer asked what the defendant was carrying in the bag. He asked if he was carrying a weapon. After a minute or two the officer then informed the defendant he was going to be searched to ensure compliance with his "probation order". The licence was returned to the defendant, then the officer told him he was going to be searched. Because the defendant was carrying marihuana and money, he ran, and the chase was on. While running, the defendant opened his backpack and threw out his marihuana. He did not throw anything in the pond and had no gun with him that day.

[27] As the defendant fell to the ground near the pond, he looked up and saw the officer with his gun drawn. Before handcuffing the defendant, the gun was re-holstered. The officer demanded the defendant tell him what he threw. The defendant maintained he did not tell the officer he threw marihuana.

[28] Nothing was said to the defendant regarding the reason for his arrest, or any rights that might flow from that arrest. When they returned to the police vehicle, the officer searched the defendant's backpack. The defendant was not told about his arrest for 15 to 20 minutes, when Ly told him he was under arrest for "Possession for the Purpose", and read him his rights to counsel.

[29] In cross-examination, the defendant made it clear that he engaged in conversation with the officer, instead of running as he eventually did, because he was hoping he could talk his way out of getting searched. If he knew that he was going to be searched right away, he would have run right away. The defendant was asked about the marihuana that he had in his backpack and what he did with it. The defendant explained that he was going to dump it in the grass, but he fell and just put it down.

The Law – Arbitrary Detention

[30] Police officers may approach any citizen on the street and ask him or her questions. Citizens may refuse to answer those questions and are entitled to walk away. It is when an arrest or detention occurs that sections 9 and 10 Charter rights are triggered.

[31] In R. v. Mann, 2004 SCC 52, paragraph 19, Justice A. Iacobucci held:

...the police cannot be said to "detain", within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be "detained" in the sense of "delayed", or "kept waiting". But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.

R. v. Grant

[32] The seminal case in the area of neighbourhood policing is the recent Supreme Court of Canada decision in R. v. Grant, 2009 SCC 32. In my view, this case, as it was in Grant, is a neighbourhood policing case.

[33] Paragraphs 40 to 44 are instructive:

40 A more complex situation may arise in the context of neighbourhood policing where the police are not responding to any specific occurrence, but where the non-coercive police role of assisting in meeting needs or maintaining basic order can subtly merge with the potentially coercive police role of investigating crime and arresting suspects so that they may be brought to justice. This is the situation that arises in this case.

41 As discussed earlier, general inquiries by a patrolling officer present no threat to freedom of choice. On the other hand, such inquiries can escalate into situations where the focus shifts from general community-oriented concern to suspicion of a particular individual. Focussed suspicion, in and of itself, does not turn the encounter in a detention. What matters is how the police, based on that suspicion, interacted with the subject. The language of the Charter does not confine detention to situations where a person is in potential jeopardy of arrest. However, this is a factor that may help to determine whether, in a particular circumstance, a reasonable person would conclude he or she had no choice but to comply with a police officer's request. The police must be mindful that, depending on how they act and what they say, the point may be reached where a reasonable person, in the position of that individual, would conclude he or she is not free to choose to walk away or decline to answer questions.

42 The length of the encounter said to give rise to the detention may be a relevant consideration. Consider the act of a police officer placing his or her hand on an individual's arm. If sustained, it might well lead a reasonable person to conclude that his or her freedom to choose whether to cooperate or not has been removed. On the other hand, a fleeting touch may not, depending on the circumstances, give rise to a reasonable conclusion that one's liberty has been curtailed. At the same time, it must be remembered that situations can move quickly, and a single forceful act or word may be enough to cause a reasonable person to conclude that his or her right to choose how to respond has been removed.

43 Whether the individual has been deprived of the right to choose simply to walk away will depend, to reiterate, on all the circumstances of the case. It will be for the trial judge to determine on all the evidence. Deference is owed to the trial judge's findings of fact, although application of the law to the facts is a question of law.

44 In summary, we conclude as follows:

1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention 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.

2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

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.

R. v. L.B.

[34] The decision of the Ontario Court of Appeal in R. v. L.B., 2007 ONCA 596, also dealt with a police-citizen interaction where the issue of detention was of prime importance. As in this case, the police decided to investigate based upon suspicions. Questions were asked of the suspect(s) regarding their presence in the area. The officer asked L.B. for his name and date of birth in order to do a CPIC check. The officer maintained that if L.B., and the other young man investigated, chose to walk away or stop answering questions, they could have done so with impunity. The same dynamic existed in Constable Ly's questioning of the defendant. Ly testified that Glasgow was free to walk away until Ly told him he was going to search him.

[35] L.B. approached the police officer in order to engage him, leaving the backpack (containing his homework and a gun) behind. Moldaver, J.A. characterized this as the actions of "a streetwise teenager who quickly sized up the situation and determined that his best defence in the circumstances was a strong offence". Although not identical, Mr. Glasgow testified on the voir dire that he responded to the police officer's questions because he thought it to be in his best interests to engage with the officer since he did not want to be found with marihuana.

[36] In L.B. there were two police officers outside of the police vehicle. Here there was one officer inside the cruiser. There was no detention found on a balance of probabilities in L.B., and therefore no Charter violation.

R. v. Nesbeth

[37] Another recent decision of the Ontario Court of Appeal, R. v. Nesbeth, 2008 ONCA 579, involves a police citizen interaction that also contains similarities to this case.

[38] Police working on the Toronto Anti-Violence Intervention Strategy (TAVIS) ascended the stairs of an apartment building plagued by drug-use, drug sales, robberies and guns. Two officers smelled burnt marihuana. They came upon the defendant on a landing, clutching a backpack. When the officer said, "Hey buddy, what are you doing", the defendant replied, "Oh shit" and began to run. Police yelled repeatedly, "Stop, police". As the defendant ran down the stairs, he discarded the backpack but was tackled by one of the officers. The other officer retrieved the backpack, opened it, found 680 grams of cocaine, two digital scales, and three cell phones. The defendant was placed under arrest for Possession of Cocaine for the Purpose of Trafficking.

[39] At paragraph 14, Justice Rosenberg concludes:

When the police chase began, the respondent was not physically detained. Nor, in my view, was he psychologically detained.

[40] And at paragraphs 18 and 20:

18 This constellation of factors was sufficient to give the police officers reasonable grounds to suspect that the respondent was involved in criminal conduct. These were not the actions of a mere trespasser. While the court in Mann speaks of reasonable grounds to suspect that the individual is connected to "a particular crime", in my view, it is not necessary that the officers be able to pinpoint the crime with absolute precision. Given the respondent's behaviour in relation to the knapsack and the desperation with which he fled the police, the police could reasonably suspect that he was in possession of contraband: either drugs or weapons or both. They were therefore entitled to detain him for investigation in accordance with Mann.

20 In this case, I have found that the officers objectively had reasonable grounds to detain the respondent, even though none of them articulated their subjective belief as to the grounds. While it would have been helpful had the officers expressly testified to their grounds for detaining the respondent, the court is entitled to draw reasonable inferences from the circumstances. In my view, it is apparent that the officers believed that they had grounds to detain the respondent by the time the chase ended.

R. v. Suberu

[41] In the companion case to Grant, R. v. Suberu, 2009 SCC 33, the Supreme Court of Canada dealt with the "difficult task of defining the constitutional line where police actions, in the context of dynamic encounters with members of the public, amount to a detention and effectively trigger the protections afforded to detainees under ss. 9 and 10 of the Canadian Charter of Rights and Freedoms. In turn, defining what constitutes a detention for Charter purposes requires courts to balance individual constitutional rights against the public interest in effective law enforcement".

[42] At paragraph 3:

However, as this Court held in Mann, not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter. Section 9 of the Charter does not dictate that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Likewise, not every police encounter, even with a suspect, will trigger an individual's right to counsel under s. 10(b). As Iacobucci J. aptly observed, "[t]he person who is stopped will in all cases be 'detained' in the sense of 'delayed', or 'kept waiting'. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint" (para. 19).

[43] In Suberu, the Court concluded that the evidence did not support Suberu's contention that his freedom to choose whether or not to cooperate with the police was removed during the period prior to his arrest.

[44] The police officer in Suberu was aware that two suspects, in a stolen credit card case, were in an LCBO store. Suberu walked past the officer and said, "He did this, not me, so I guess I can go", upon which the officer followed him outside and said, 'Wait a minute. I need to talk to you before you go anywhere" as the defendant was entering his van. The officer asked a number of questions involving the other man in the store; where Suberu was from and why he was in Cobourg, and who was the owner of the van.

[45] The officer received information by radio, and made observations inside the van, which gave him reasonable and probable grounds to arrest Suberu for fraud, which he did.

[46] On the issue of when detention occurs, the Court repeated the summary in Grant (paragraph 44), and then conducted that analysis.

[47] Although no detention was found in Suberu, there are aspects of that police citizen interaction which point more towards a detention in that case than in this case. For example:

• "Wait a minute, I need to talk to you before you go anywhere" (Suberu) connotes a position that the person cannot leave without talking to the police. No such direction in this case.

• The officer was out of the cruiser and investigating at the door of the defendant's van (Suberu). Here, Constable Ly remained seated in his cruiser with his seatbelt on.

• The police officer would have likely pursued Suberu if he did not heed the direction not to leave the parking lot (Suberu, para. 50). Constable Ly testified that he would have allowed the defendant to leave if he ignored his request to speak.

Findings

[48] The evidence of P.C. Ly was problematic. The Crown conceded that Ly's view that he was entitled to search a citizen to ensure that person was in compliance with a court order was wrong. Other officers confirmed and employed that legal misapprehension.

[49] Ly admitted oversights and inaccuracies in his evidence (see paragraph 14). Considering this was Ly's first (and only) gun arrest, it is surprising his original notes lacked detail, so much so that he was asked three months later by a prosecutor to provide a more fulsome account.

[50] Although Ly testified that he was "99%" sure the defendant discarded a firearm into the pond, he did not arrest him for that offence, showing unfamiliarity with the concept of "reasonable grounds". Even then, he did not provide the defendant with his s. 10 rights to counsel, as he must even if it were a detention short of arrest.

[51] Ly estimated the period that he questioned the defendant before the chase to be around 5 minutes or maybe slightly longer, when the time periods he testified to suggest that the discussion must have been longer. Mr. Glasgow's evidence suggests a longer interaction, but not by much.

[52] Despite the reliability issues noted above, I found Constable Ly to be credible. He readily admitted ignorance of legal standards. He admitted mistakes and shortcomings. Most importantly, his account of the interaction between himself and the defendant, at the police vehicle, was not radically different than that of the defendant. There were differences in the discussion surrounding the request for identification, questions about whether the defendant had a weapon in his backpack and the length of the interrogation. In my view, even if the defendant's version regarding the questions asked and answered before Constable Ly told him he was to be searched was accepted, the finding regarding when, and if, a detention occurred, would not be different. In fact, as indicated below, I rely on the defendant's evidence as to the reason he engaged the officer at the police cruiser.

The circumstances giving rise to the encounter as would reasonably be perceived by the individual

[53] Since Mr. Glasgow testified, I have evidence as to how he perceived the encounter. More about that later. Although he did not say so directly, it is clear that Mr. Glasgow felt he had been singled out for a focussed investigation. Although not asked in those exact words, I am certain the officer would agree with that assessment. Ly made observations in the parking lot where he observed a bulge within the backpack that he initially thought could be a "bong". He sought to ask the defendant some questions at the other end of the park. Ly told Glasgow to "Come over here. I need to talk to you". I agree with Mr. Smith, this was clearly a focussed investigation. However, focussed suspicion, in and of itself, does not turn an encounter into a detention (Grant, para. 41).

The nature of the police conduct

[54] Ly activated his emergency lights for about three seconds. He then told the defendant to come over to the cruiser because he wanted to talk to him. Ly spoke in a normal voice and did not touch the defendant. Constable Ly stayed inside his vehicle with his seatbelt on while questioning the defendant. Ly described that interaction lasted around five minutes with the defendant indicating it was slightly longer.

[55] However, as indicated in Suberu, the fact that a person is delayed by the police is insufficient to ground a reasonable conclusion that the person is not free to walk away. A police officer on the street is entitled to ask questions, even of a suspect. Police can request identification (See: R. v. L.B.). The citizen is not obliged to answer questions or provide identification. It is only when what the police do or say causes a reasonable person to conclude they have no choice but to comply with a demand or direction that a psychological detention occurs. Here, I conclude that it was not the conduct of Constable Ly that removed choice, but the defendant's assessment of the situation, and his decision to engage the officer, that created the interaction.

Circumstances of the individual

[56] Mr. Glasgow is a young black man in his mid twenties with a criminal record. There was no evidence that suggested the defendant's minority status played a part in the events that occurred. I find the defendant was to some degree sophisticated in dealing with police. Not only does he have a criminal record, but it includes a jail sentence for possession of a loaded firearm, and two other convictions. The defendant's level of sophistication was evidenced in this case by the defendant's own assessment of the best approach to escape criminal detention. He was not deprived of his liberty to choose whether to engage in the requested conversation by police conduct, because he did choose. He chose, as articulated in L.B. by Moldaver, J.A., (in other words) to play defence by going on offence.

[57] He had a choice to walk away when the officer requested to speak to him, but he thought that choice would cause him to be searched, so he decided to engage. He had the option of running immediately, and would have immediately if he knew he was to be searched, but thought it would be to his advantage to engage. When you are carrying contraband, and the police arrive on scene, there are not many attractive options. In my view, it was the mere presence of the police asking questions, as any officer is entitled to do, that created the dilemma for Mr. Glasgow, not police conduct or actions.

[58] Accordingly, I find that defendant was not detained while speaking to Constable Ly at the police cruiser.

Section 8 Violation

[59] The defendant's submission that the police officer's questions and request for the defendant's driver's licence constitutes an unlawful search, as in R. v. Harris, 2007 ONCA 574, depends upon the interrogation occurring in the context of a detention. Asking for identification in the context of a general investigation, short of a detention, is permissible. Here, as I have concluded no detention, there was no unlawful search.

Conclusion

[60] I have concluded that, up to the point the officer told the defendant he would be searched, there was no detention. Constable Ly had, at that point, received the CPIC information that included the weapons prohibition and two weapons convictions, one of which was a loaded firearm. He also had seen the defendant's bulging backpack, which he initially thought might be a bong, but now thought might be a gun. He was of the view that the defendant appeared nervous, evasive, and was looking around. Ly also observed the defendant to change direction slightly when the defendant first observed the officer. Although Constable Ly was wrong to conclude that he had the right to search anyone who was on court order to ensure compliance, I am of the view that he had reasonable grounds to suspect this defendant was connected to a weapons offence, pursuant to R. v. Mann.

[61] He was entitled to conduct a brief investigative detention, and pat-down search for safety, given the obvious safety concerns attendant to firearms. At that point, he was obligated to tell the defendant the reason for his detention, and inform him of rights to counsel, and he intended to do so. However, even if Ly did not have reasonable grounds to detain, his intention to detain matters not in this case since the defendant ran, and no detention took place (see Nesbeth, para. 16).

[62] In R. v. Hamilton, 2010 ONSC 6828, and R. v. Nesbeth, supra, the court concluded detention following pursuit was lawful. In those cases, defendants were observed discarding items (a gun in Hamilton, drugs in Nesbeth) while running from the police. Although Mr. Glasgow was not arrested for any particular offence for a significant period of time after his capture (20 minutes), Constable Ly had, at the pond, the right to detain him even though he did not articulate a subjective belief as to those grounds (see Nesbeth, para. 18 and 20). In fact, since Ly was 99 percent sure the defendant discarded a gun, I am of the view that reasonable grounds existed to arrest for that offence. However, Ly took time to return to the pond after the defendant was secured in the police car. He located the bag of marihuana and the defendant was arrested for Possession for the Purpose and given his right to counsel. Those 10(b) rights should have been given to the defendant upon his arrest (or detention) 20 minutes earlier.

[63] Accordingly, since there was no detention at the police vehicle, the defendant's right to be free of arbitrary detention was not breached. Since the defendant ran, he exhibited no intention of being detained. Once the defendant discarded items while being chased, he expressed that he no longer maintained a privacy interest in those items. Those items (the Crown placed into evidence a bag of marihuana and a semi-automatic firearm) will be admitted into evidence at this trial. The breach of the defendant's s. 10 Charter rights, when arrested and/or detained at the pond, occurred after the defendant discarded the contraband and did not factor into its discovery.

[64] Although not nearly as important, I will also admit the contents of the backpack seized after the arrest of the defendant at the pond. In my view, it was a search incident to arrest. Alternatively, since the defendant was tossing items out of the backpack as he ran, he can hardly claim a privacy interest in its contents. The digital scale, $540 and the bundle of small vials are admitted into evidence at this trial. Their discovery, while after the officer breached the defendant's right to counsel, was not connected to the s. 10 breach.

Released: May 18, 2012

Signed: "Justice Richard Blouin"

NOTE: The official version of these reasons for judgments is the transcript in the court file. In the event that there is a question about the content, the original in the court file takes precedence. The reasons may have undergone editing changes.