Court Information
Ontario Court of Justice
Date: August 6, 2013
Court File No.: Toronto 4817 998 12 70003705 00
Parties
Between:
Her Majesty the Queen
— and —
Alexander Owen Fountain
Before the Court
Justice: William B. Horkins
Heard: June 24, 2013
Reasons for Judgment on an Application to Exclude Evidence
Released: August 6, 2013
Counsel
Erin Pancer — counsel for the Crown
Reid Rusonik and Rafik Kodsy — counsel for the accused Fountain
Decision
W. B. HORKINS J.:
Introduction
[1] This is the matter of Alexander Fountain. He is charged with a variety of offences related to being in possession of an illegal handgun. This trial was conducted entirely on the basis of an application to exclude evidence and the only issue joined was, expressly, the admissibility of the gun in question.
[2] I delivered oral reasons for dismissing the application and advised that these more formal, written reasons would follow.
The Issue
[3] There are three weapons offences and two fail to comply probation charges, all relating to the handgun Mr. Fountain was carrying on October 3, 2012. The accused and another young, black male were simply walking past a police car when the accused was singled out and called over for questioning. What followed was initially some legitimate clarification about his identity, primarily focused on whether he had any outstanding warrants. Once it became clear who the accused was and that he had in fact no outstanding warrants, the officer turned to filling out a field investigative report, a card, also known as a "F.I.R." or a "2-0-8."
[4] As the carding was being completed, a third person interjected himself into this encounter. The arrival of this third individual surprised and startled everyone involved and at that point the police reacted strongly to the third person's arrival and more significantly, so did the accused.
[5] The accused turned sideways, blading his body and pinning his left arm to his side. The officer instinctively perceived this as a threat, consistent with a gun being concealed, and so he reached out and patted the accused. This pat-down search struck upon a hard object, a gun in the accused's jacket. The officer yelled, "Gun"; the accused turned and fled. As he bolted, he jumped a fence and in the process dropped this gun but managed to get away. He was subsequently found hiding nearby and arrested.
[6] The accused has brought an application to have the gun excluded from evidence. He submits that the police conduct leading to the discovery of the gun violated his rights under the Canadian Charter of Rights and Freedoms. If successful there will remain no substance to the Crown's case against him and an acquittal will result.
[7] The facts of the entire encounter are fairly straightforward and easily determined because this encounter was almost entirely captured by a multi-track audio/video recording. There is not much in the video because it is a fixed-position camera, pointed out the front of the police car. The various audio tracks do, however, capture pretty much the entirety of the encounter.
[8] A fairly broad-strokes overview of the facts provides sufficient context to isolate some of the important issues here. The officers who engaged Mr. Fountain are part of a community policing program with the Toronto Police Service, which has been dubbed "TAVIS" - standing for the Toronto Anti-Violence Intervention Strategy. TAVIS expressly engages in pro-active policing. One of the strategies that TAVIS promotes is the random, or arbitrary, approach to individuals for the purposes of simply engaging them in conversation, which may reveal information of a general or investigative interest. These encounters generally lead to the filling out of a contact card, a FIR card, containing identification and association information. These cards are then used to build and maintain a database of individuals and their associates, primarily in high-crime or so-called "priority" areas of the city.
[9] These pro-active policing programs have been considered by the Courts and generally, have passed Charter scrutiny. Having said that, each of these street-level encounters has to be assessed on their own merits. There is no doubt that these carding programs tread a very fine line depending on the particular circumstance of any given situation.
[10] On this particular occasion, these officers had just completed an unrelated, minor traffic investigation. Officer Fardell then sighted these two young men walking down the sidewalk. He thought that one of them, the accused, was one of two Fountain brothers. The significance of this to Officer Fardell is that the brothers, as they say in the trade, are "known to the police." P.C. Fardell explained that he had had prior dealings with one of the brothers and had been briefed in the course of his work to the effect that both have criminal histories. He knew that one of the brothers had been shot last year and he knew that one of them had recently been on a wanted poster back at the station. He specifically believed that they both had some involvement with illegal guns.
[11] On the basis of these station briefings, posted notices and other information, Officer Fardell believed that there might actually be a warrant out for one of the brothers. For all of these reasons he decided to stop the accused and clarify which brother this was and whether he was currently wanted. At the outset Officer Fardell had no basis for arresting the accused or suspecting that he was involved in any particular criminal activity, but neither was this a random stop. This encounter commenced as a focused, investigative engagement and led to a dynamic stream of conduct, leading to the discovery of this gun.
[12] On the scout-car video two young, black males can be seen walking down the sidewalk approaching the officers' position. The engagement with the accused is recorded and has been transcribed and filed as Exhibit-One on the application. The engagement begins with the officer calling out to Mr. Fountain.
THE OFFICER: Fountain, come here, Guy? What's going on, man? Which one are you? Come here, I have got to talk to you. Not you, you're fine.
THE ACCUSED: What do you want?
THE OFFICER: Which one are you?
THE ACCUSED: Fountain.
THE OFFICER: I know. Are you -- there are two brothers. Keep your hands down. Which one are you? What's your first name?
[13] Clearly the officer's initial concern was simply to determine which brother this was and then determine if he was currently wanted or not. The officer agreed with the suggestion put to him that there was, in his mind, merely a possibility that this man was the brother that might possibly be wanted. The exchange continues. Fountain responds.
THE ACCUSED: Alexander.
THE OFFICER: Alexander, what's your brother's name, Louis?
THE ACCUSED: No, my brother's name? That's my dad.
THE OFFICER: What's your brother?
THE ACCUSED: My dad.
THE OFFICER: No. What's your brother's name?
THE ACCUSED: My brother is Anthony.
THE OFFICER: Anthony, that's it. You're wanted, right now?
THE ACCUSED: No, I'm good.
THE OFFICER: Are you sure?
THE ACCUSED: Sir, I swear.
THE OFFICER: Do you have your license on you right now, or a piece of I-D?
THE ACCUSED: All of my shit is off me.
THE OFFICER: What do you mean, off of you?
THE ACCUSED: All of my charges.
THE OFFICER: Okay. Do you have any identification on you?"
THE ACCUSED: I have no I-D on me.
THE OFFICER: Okay. We have talked before, right? You know me.
THE ACCUSED: Yeah.
THE OFFICER: Are you the one that got shot in the foot, a little while ago, last winter, or was that your brother?
THE ACCUSED: Inaudible.
THE OFFICER: No worries. I just want to make sure you are not wanted
THE ACCUSED: Alexander Fountain.
THE OFFICER: Okay.
THE ACCUSED: I live at 6-1-3…
THE OFFICER: Yeah, Parma. Okay. No worries. Alexander, right. Yeah.
[14] Fountain then spells out his name and gives his date of birth.
[15] At this point, people can be heard speaking in the background and the officer speaking to someone.
THE OFFICER: He knows why I am stopping him.
THE ACCUSED: Why are you stopping us?
THE OFFICER: Yeah, your brother was wanted for a while there, so I just want to check.
THE ACCUSED: My brother?
THE OFFICER: Yeah, I think you might be wanted, right now.
THE ACCUSED: No, no. I am Alexander.
THE OFFICER: Okay. Well, I will double-check that. You are not wanted, though, right now, so you have nothing to worry about, man. Tell your boys that I know your brother, so that's why you were stopped. I thought you were him. There is no reason to fucking cause a stir here. Right.
[16] At that point the audio cuts off.
[17] Although he had clarified the identity of whom he was dealing with and that there were no outstanding charges or warrants, the evidence is that at this point in the events the officer had already started to fill out the F.I.R. card and question Fountain.
[18] Prior to the interjection of the unknown third man, the officer's partner was standing to the side of the second male, who had been walking with Mr. Fountain. It would seem that at this point, and up to this point, everyone was very calm, cool, collected and cooperative.
[19] The interjection of the third man into the gathering triggered a much heightened alertness all around. The atmosphere of the engagement changed significantly as this third man came into the area. The arrival of the third man was somewhat aggressive. He can be heard questioning the police about what he perceived to be the harassment of the other two males. It is clear from the evidence of the officer and from the audio recording that this sudden blindside approach startled the officers. It may well have startled Mr. Fountain as well because at this same point in time, Mr. Fountain's demeanor and stance seemed to change just as suddenly. The officer observed Mr. Fountain blading his body, angling it away, pinning his left arm to his side and looking as if he might be poised to react. The officer explained that based on his experience and training, this posturing signaled danger and it triggered a very real and sudden concern that Fountain was blading to conceal a weapon on his left side.
[20] In response to Mr. Fountain's sudden blading posture, the officer commanded Mr. Fountain to show his hands. Mr. Fountain did not comply but continued to blade his left side away. The officer reached out to pat-down Fountain's side to check for weapons and, in doing so, he felt what he suspected to be the handle of a gun and in fact shouted, "Gun." At that point Mr. Fountain took flight, jumped the fence and fled. As he went over the fence, the handgun fell from his jacket.
The Law
The Meaning of "Detention" Under the Charter
[21] Absent "detention" the police enjoy a considerable freedom when interacting with and questioning individuals. Having a clear understanding of what qualifies as a "detention" is crucial in understanding the potential Charter implications of street-level encounters between the police and members of the public.
[22] The threshold issue on this application requires a consideration of the meaning of "detention" and the constitutional implications of crossing that threshold under sections 9, 10(a) and 10(b) of the Charter and, ultimately, section 24(2) of the Canadian Charter of Rights and Freedoms.
[23] The early Charter case of R. v. Therens made it clear that detention under the Charter goes beyond physical constraint and will also arise where police assume control over the movement of a person by any demand or by direction, which may have significant legal consequence and which prevents or impedes access to counsel.
[24] The Court went further, holding that a detention may sometimes arise even where there is neither physical restraint nor any legal obligation to comply.
"…It is not realistic, as a general rule, to regard compliance with a demand, or direction, by a police officer, as truly voluntary, in the sense that the citizen feels that he, or she, has the choice to obey, or not. …Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force, or prosecution for willful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority, and comply with the demand. The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty, involuntary. Detention may be effected without the application, or threat, of the application of physical restraint, if the person concerned submits, or acquiesces in the deprivation of liberty, and reasonably believes that the choice to do otherwise does not exist."
[25] More recently in R. v. Grant, the Supreme Court re-affirmed this concept of psychological restraint not involving legal compulsion. In Grant the question was framed as: "…Whether 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…" Recognizing that this form of detention had "proven difficult to define consistently," the Court also set out to provide some further guidance. Emphasizing a point absent from Therens, the Court stated that: "…Not every trivial or insignificant interference with liberty, attracts Charter scrutiny..." Rather, only the person "whose liberty is meaningfully constrained, has genuine need of the additional rights accorded by the Charter, to people in that situation."
[26] The coupling of "detention" with "imprisonment" in section 9 the Court explained, suggests that detention arises: "Where the deprivation of liberty may have legal consequences."
[27] The Court in Grant also stressed that the Therens' test is objective, meaning that a police officer's subjective intentions are not relevant in deciding if there was a detention. The suspect's "particular circumstances and perceptions," however, may be relevant "in assessing the reasonableness of any perceived power imbalance, between the individual and the police, and thus the reasonableness of any perception that he, or she, had no choice but to comply with the police directive."
[28] In an application to exclude evidence flowing from an alleged breach of Charter rights, the claimant's testimony will usually be the best source of such evidence. The Court in Grant acknowledged this but also clarified that since the test is objective, the claimant's failure to testify is not fatal to finding a detention.
[29] The Court in Grant identified a number of factors to consider when deciding whether a psychological detention had occurred. The Court emphasized the importance of determining a police officer's purpose in approaching or questioning the claimant. If this purpose was non-adversarial, a finding of "detention" is unlikely. As an example, the Court stated that:
"No detention would arise where police respond to an emergency call, even if they then assume control over the situation, or interfere with the person's freedom of movement. Similarly, there is no detention when police approach by-standers in the wake of an accident, or crime, to obtain preliminary information for their investigation. The deprivation of liberty that may result from such encounters, are not significant enough to attract Charter scrutiny, because they do not attract legal consequences, for the concerned individuals."
[30] According to the Court, neighborhood policing initiatives will generally fall in this non-adversarial category. The Court did acknowledge, however, that this sort of pro-active policing can "suddenly merge with the potentially coercive police role of investigating crime and arresting suspects so that they might be brought to justice."
[31] The Court contrasted these kinds of non-adversarial encounters with situations where police have a focused suspicion: "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 that he, or she, is not free to choose to walk away, or decline to answer questions."
[32] The second factor the Court identified was the duration of the encounter. The shorter the interaction the less likely it is to be labeled a "detention." The longer the encounter, in contrast, the more likely a reasonable person would feel unable to walk away.
[33] Thirdly, the Court noted that physical contact between the police officer and the individual is a relevant consideration but, as with the other variables, its significance hinges on the context.
[34] Finally, the Court recognized that in some situations a single forceful act or word may be enough to cause a reasonable person to conclude that his right to choose to respond has been removed. No reasonable person, for example, would feel free to walk away after a police officer points at him and issues an authoritative command such as: "Get out of your car."
[35] In conclusion, the Court in Grant set out the following useful summary:
"…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:
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 focused investigation.
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. The particular characteristics, or circumstances, of the individual are relevant, including age, physical stature, minority status, and level of sophistication. In considering these factors, trial judges must keep in mind, all the circumstances of the case, and engage in a realistic appraisal of the entire interaction, as it developed, not on minute parsing of words, and movements…"
[36] This cautionary note, against an unnecessary descent into the minutiae of the situation is repeated by Justice Blair in the case of R. v. Amofa at paragraph 19:
"…The flow of the investigative detention, arrest, and the search, was a dynamic process. Section-8 analyses ought not to be reduced to an over-analytical parsing of events, and the static moments, without practical regard to the overall picture…"
[37] I instruct myself that the same observation is appropriate in approaching the analysis in this case.
[38] In Grant, the Supreme Court applied these various factors and concluded that there was a detention.
[39] Mr. Grant, a young, black man, was walking down the sidewalk of a Toronto street at mid-day when his manner and clothing attracted the attention of two plainclothes police officers. The officers requested that nearby uniformed officers have a chat with Mr. Grant. The uniformed officers approached Mr. Grant and stopped directly in his path and asked Mr. Grant what was going on, then requested his name and address. Mr. Grant produced identification. Mr. Grant seemed to be behaving nervously and was adjusting his jacket when the officer told him to keep his hands in front of him. At this time the two plainclothes officers also approached, flashed their badges and stood behind the uniformed officers. Pointed questions followed. Mr. Grant was asked if he was carrying anything that he shouldn't. An exchange culminated in Mr. Grant admitting that he was in possession of marijuana and a firearm. He was arrested.
[40] The Court found that the preliminary approach and general questioning of Mr. Grant was not enough to trigger a detention because a reasonable person would not have concluded that he was being deprived of the right to choose how to act.
[41] The Court however ruled that a detention did arise when the officer told Grant to keep his hands in front of him; and noted that while in some cases such a statement might be viewed merely as "precautionary directive," in this case, and in the context of those facts, it was deemed to be "inherently intimidating."
[42] The conclusion that a detention arose was also buttressed by the arrival of two additional police officers taking up tactical positions, the posing of probing questions, as well as Mr. Grant's youth and inexperience.
[43] In the companion case of R. v. Suberu, a police officer was dispatched to investigate at a liquor store in response to reports that two suspects were attempting to use a stolen credit card. On entering the store the officer saw another police officer speaking with a store employee and another man. Mr. Suberu walked past the officer, towards the exit and told the officer: "He did this, not me. So, I guess, I can go." The officer followed Suberu outside and directed him to, "Wait a minute. I need to talk to you before you go anywhere." While Mr. Suberu sat in the driver's seat of his van the officer asked him about the man inside, where they had come from and who owned the van. At this point the officer received further information over his radio linking the van and Mr. Suberu to a prior, similar occurrence earlier in the day, at which point the officer asked Mr. Suberu for identification. As that was happening the officer saw shopping bags inside the van that linked Suberu to the occurrences and this was sufficient to lead to Mr. Suberu's arrest.
[44] Applying the Grant factors, the Court up-held the trial judge's conclusion that Suberu was not detained prior to his arrest. The Court began by noting that when police believe a crime has recently been committed, they can engage in preliminary questioning of by-standers without giving rise to a detention and without triggering Charter rights under section 10.
[45] The Court did note that there is a fine line between general questioning and a focused interrogation amounting to a detention, which may be difficult to determine in particular cases. The Court deferred to the trial judge's findings of fact and concluded that the officer's questions were merely exploratory. The Court also noted that because Mr. Suberu did not testify, there was no evidence as to whether he subjectively believed that he could not choose to leave.
Application of These Principles to the Facts Before Me
[46] Turning then to an application of these principles to the facts before me, the series of events in this case were a dynamic stream which, as it unfolded, clearly leads, eventually, to some form of detention and, subsequently, the discovery of the gun.
[47] Borrowing the adversarial non-adversarial break-down, this was clearly an adversarial contact at the outset. This was not a community policing: Hi. How are you? This officer was hunting from the outset. He had his uncertain suspicions about this man; he was going to follow-up on them. His purpose was clearly to determine whether the accused was arrestable or not; but if he was, to arrest him.
[48] This officer was honest and forthright in his evidence, perhaps many times to the advantage of the position of the accused. For instance, he readily conceded that in his opinion he had no basis to detain Mr. Fountain and certainly not on the mere possibility that he was the brother that might be wanted.
[49] Mr. Fountain was never physically restrained, or actually under any legal obligation to stop and answer the officer's questions. Therefore the only detention that could arise on the facts of this case would be a psychological detention, such as in Grant.
[50] Mr. Fountain did not give evidence on this application and so I have no direct evidence as to what was going on in his mind that would have made him believe that he had no choice. But I do have a clear picture of the surrounding circumstances and the behavior of all those involved.
[51] I take into account that Fountain clearly felt unusually comfortable in walking casually by the police, who were in plain sight, all the while having an illegal gun in his pocket. From that alone you might infer that he is either extremely foolish or that he is sufficiently confident to ignore the invitation from one of the officers to "come over."
[52] On the totality of the circumstances, however, I feel quite safe in inferring that, on a balance of probabilities, Mr. Fountain must have felt compelled to obey the direction of the officer to come over and answer his questions, and that he did in fact feel that he did not have the choice to simply walk away. I remind myself again of the quote that I earlier referred to from Therens that "…It is not realistic, as a general rule, to regard compliance with a demand from a police officer as truly voluntary…"
[53] I am also prepared to re-enforce that conclusion with an assumption that this might be particularly true for young, black males in some of the more heavily policed areas of the city. They seem to find themselves the target of pro-active community policing on very frequent occasions.
[54] Considering the officer's express purpose in stopping and questioning the accused, I find that this engagement was anticipated to lead to an arrest if certain facts became evident. Once it was clear that there was no lawful basis to detain Mr. Fountain, the intentional decision to continue his detention and "card him" without first advising him that he was free to choose to leave, created a detention.
[55] Again, a single forceful word or command can, in certain circumstances, precipitate a detention in the mind of the target. When Mr. Fountain was directed to "come here," he complied. His companion was told: "Not you, you're fine."
[56] The clear message to Mr. Fountain would be that he, Mr. Fountain, wasn't fine. Mr. Fountain asked the officer what he wanted, and never did get an answer. He was told from the beginning: "Keep your hands down."
[57] It's very similar to what Mr. Grant was told. He was asked whether he was wanted; and he was asked for identification. The totality of those circumstances, viewed objectively, compel the conclusion that Mr. Fountain was detained at this point. The question then becomes: Was the detention lawful?
[58] In R. v. Mann, the Supreme Court used the ancillary powers doctrine to recognize common law police power to conduct investigative detentions. A lawful, investigative detention that is carried out in accordance with this common law power is not "arbitrary," and thus does not infringe section 9 of the Charter.
[59] The Court held that an individual may be briefly detained where the police have reasonable grounds to suspect a clear nexus between the subject and a recently-committed or still-unfolding criminal offence. This ancillary power is not limited to crimes actually known to the police, but extends to crimes that are reasonably suspected.
[60] "Police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect that the individual is connected to a particular crime and that such detention is necessary." So there are four important prerequisites in that statement.
[61] The first being a "reasonable suspicion." This requires the officer's subjective belief to be backed by objectively verifiable indications. In other words, the test has both a subjective and objective component. To my understanding this places the standard along a spectrum with absolute certainty and proof beyond reasonable doubt at one end and a barren suspicion, or a hunch, at the other end. On this approach a reasonable suspicion means something more than a mere suspicion and something less than a belief based on reasonable and probable grounds. But clearly the power to detain can never be exercised on the basis of a hunch.
[62] In deciding whether or not the standard is met, the Court in Mann instructed us that a court must consider the totality of the circumstances. This means that the collective significance of all of the circumstances confronting the police must be considered in light of common sense and practical experience.
[63] The only particular crime referenced in this case was that there might be a warrant out for one of two brothers and that this individual might, possibly, be the one that the warrant was out for. In my view that does not amount to qualifying for what the Court meant by a "particular crime."
[64] In addition to the above, you have to ask whether it was really necessary to detain Mr. Fountain to determine if he was in fact wanted. It's hard to believe that that would really be necessary. The officers of the Toronto Police Service have access to that sort of information through on-board computers, radios and cellphones. Even if one were to argue that it was necessary to clarify which Fountain brother this was, the initial conversation with the accused seemed to clear that up fairly quickly in the officer's mind. Once that was done it was no longer necessary to detain Mr. Fountain and he probably should have been told that, and told that he was free to go. Instead, things moved very quickly into a focused question and answer exercise and to the filling out of the F.I.R. card.
[65] This was not a lawful, investigative detention and I am persuaded on a balance of probabilities that the accused felt compelled to remain and provide the information being asked of him.
The Search
Lawfulness of the Pat-Down Search
[66] The gun, which is the subject matter of these charges, and the discovery of it, had relatively nothing to do with the question and answer session or the carding of Mr. Fountain. It flowed, rather, directly from the pat-down search that occurred when the carding was interrupted by the sudden arrival of this third individual who surprised and startled the officers. That intervening act suddenly moved the dynamic flow of events in a different direction.
[67] It's my assessment that the atmosphere of the entire encounter was suddenly elevated. The officer's state of alertness was obviously spiked, as was that of the accused. As I have indicated previously, Mr. Fountain reacted by blading his body, pinning his arm to his side and setting himself for action. Observing this, the officer was instinctively and understandably concerned for his safety and made the command to "show me your hands." He then reached out and patted down the jacket of the accused. The hard object he felt was a gun, concealed in the accused's jacket.
[68] Does the fact that the pat-down revealing the gun occurred in the context of an unlawful detention make the search itself unlawful. In my opinion, no. There was a dramatic intervening act which re-set the circumstances. Until this dramatic turning point there was no indication that the officer had any intention, or interest, in actually arresting Mr. Fountain let alone in searching him.
Admissibility of the Gun
[69] In all the circumstances it was absolutely necessary for the officer to conduct this safety pat-down to protect himself. The conduct of the officer was entirely reasonable, lawful, and understandable, and justified on officer-safety grounds. In that sense it was in no way arbitrary and it was not a breach of any section 8 Charter rights.
[70] In my assessment the discovery of the gun therefore flowed from a lawful search conducted in exigent circumstances. It did not flow from the earlier unlawful detention. In my view it is this intervening exigent circumstance that distinguishes this case from many of those that were put forward in support of excluding the gun from evidence in this case.
[71] In R. v. Davidson there was a trespass investigation. The targets had some prior weapons charges, so a decision was made to search. A struggle ensued. The questioning of those targets was unlawful. The gun was excluded. In R. v. Nguyen there was a valid vehicle stop followed by a chain of escalating Charter violations. The detention became unlawful when it developed into an investigation as to whether the individuals were Asian gang members. There was a section 10(b) breach. Inculpatory information was drawn from the targets, which led to an illegal search and the gun was excluded. In R. v. Walters it was a speeding ticket, but something was seen thrown from the car. The car had deeply tinted windows, which led to a search, an unlawful search, and the gun was excluded. In R. v. Reeves, the accused resembled a wanted individual. Without anything more, the police commenced a search, which precipitated a struggle and a gun was found. In R. v. Mattison there was a valid H.T.A. stop, followed by a clearly unlawful vehicle search, which was compounded by perjury by the officers and the gun was excluded. In the case of R. v. J.K., a seventeen-year-old, black male was stopped by the police because he was wearing baggy clothes and low-slung pants. There was no other apparent reason for the stop or search and, not surprisingly, the gun was excluded. In R. v. Beepath there were multiple gross violations leading step-by-step to the discovery of a gun. There was an unlawful detention, which precipitated inculpatory statements. There was an illegal search and the gun was excluded. R. v. Solomon similarly involved rolling violations of rights leading to the discovery of a gun, which was then excluded from evidence.
[72] In contrast, in R. v. Atkins there was a street stop similar to the case at hand except that Atkins chose to run, was caught, hand-cuffed and searched. The pat-down search revealed a gun. The Court there found that there never was any detention and that no detention arose from the mere calling and waving to Atkins to come over, which sounds a lot more like this case than the others that I have referred to. Except, I find that Mr. Fountain did feel compelled to come over and engage in the question-and-answer, and that the police procedure here did lead ultimately to an unlawful detention.
[73] R. v. Blackwood has a number of similarities to this case. This case was not provided to me in the course of submissions. It concerned a passenger in a car stopped for a traffic offence. Mr. Blackwood had a gun. The police ran the names of the people in the car, got back advice from police dispatch to be careful because these individuals were "known to carry," meaning carry guns. Mr. Blackwood was told to keep his hands visible. There then commenced a focused question-and-answer. He was then told to "Get out of the car." If he wasn't detained up to that point, he certainly was when he was told to "Get out of the car" and keep his hands in sight; but Mr. Blackwood did not comply and the officer reached in, grabbed him and took him out of the car. He was then asked if he had any weapons and marched to the rear of the car. At that point he assaulted the officer, pushing him to the ground; a scuffle ensued at the conclusion of which it was discovered that Mr. Blackwood had a loaded handgun in his pants. On those facts the Court held that there was an unlawful detention, but that the conduct of the accused was out of proportion in terms of resisting the process and that his conduct in pushing the officer to the ground was offensive, as opposed to defensive conduct. The Court concluded that the search that resulted was conducted in exigent circumstances following the assault by the accused. Significantly, the Court found that the gun was not discovered by virtue of any Charter breach because it had nothing to do with the initial unlawful detention, or the questions and answers that were involved in that detention, but flowed from this intervening act that was precipitated by the accused himself. The Court did consider that if there was a breach, the evidence would survive the section 24(2) analysis in any event. The gun was admitted into evidence.
[74] It is my view that the facts in this case involving Mr. Fountain are somewhat more analogous to Blackwood than many of the other cases because there was initially an unlawful detention, but the search itself was precipitated by an intervening act, the third party's conduct, and by the conduct of the accused in reaction to that intervening act. The blading stance taken by the accused triggered a justifiable officer-safety concern and a justifiable pat-down search. There was a significant disconnect between the section 9 breach and the discovery of the gun.
Section 24(2) Charter Analysis
[75] It may be, as in Blackwood, that there is really no need to consider the 24(2) analysis.
[76] For the sake of completeness, and assuming for the moment that there is a sufficient nexus between the entirety of the transaction and the discovery of the gun to trigger a 24(2) analysis, I will engage in that exercise. The framework of analysis from Grant directs that in deciding whether to admit or exclude evidence, the Court should assess and balance the effect of admitting the evidence having regard to three factors:
The seriousness of the Charter-infringing state conduct, because admission may send the message that the justice system condones serious state misconduct.
The second factor is the impact of the breach on the Charter-protected interests of the accused, because admission may send the message that individual rights count for little.
And thirdly, society's interest in adjudication of the case on its merits, because of society's interest in the truth-seeking role of criminal proceedings.
The Seriousness of the Charter-Infringing Conduct
[77] The greater the level of state misconduct, the greater will be the need of the Courts to disassociate themselves from the conduct. Willful or reckless disregard for Charter rights will, therefore, tend to support exclusion.
[78] Good faith on the part of the police will reduce the need for the Court to disassociate itself from police conduct. Ignorance of Charter standards cannot be rewarded or encouraged, and negligence or willful blindness cannot be equated with good faith.
[79] I find that the conduct here infringed the accused's right to choose to walk away once it was determined that he was not arrestable. As I understand Grant I am then required to place the offending conduct on a spectrum of fault. By engaging in the carding inquiry, the officer was not deliberately violating the rights of the accused because he didn't honestly appreciate that he was doing anything wrong. He advised us that he received very little, if any, formal training in the issues and concerns coming out of the Grant and Suberu line of cases. I say this not to criticize this officer at all, but to add into the mix, and to explain why I make the inference, that he was not alert to the unlawfulness of his conduct. This failure was not the fault of the officer who had been mandated by the police service to engage in this process, and was insufficiently informed from above that it was potentially unlawful to do so. And so, although the situation isn't entirely in "good faith," I find that there was no intentional mala fides involved.
[80] This sort of detention has to be seen as a systemic, or institutional, issue rather than a failure on the part of the individual officer. As was observed in a number of these cases and in particular in the R. v. Reddy case, which was put before me in submissions, once the law on a particular area has been settled, the police are expected to exercise their powers in conformity with what the Courts have said.
[81] Taking all that into consideration, in my assessment, the seriousness of this breach would not tip the scales heavily toward the exclusion of the evidence.
[82] Referencing the pat-down search of the accused, if that were seen to be an unlawful search, which I don't find, but if it was, and if it is tainted by the context of the unlawful detention with which it connected, it would not tip heavily towards exclusion.
[83] The apparent lack of police training in the subtle dangers of exceeding the boundaries of legitimate street stops is a concern; but in the context of this case, not an overwhelming one. The initial engagement was, quite clearly, based on a legitimate concern with this particular accused and at the end of the dynamic unfolding of events the ultimate physical pat-down was a reaction to a sudden perceived risk or threat, and not the planned conclusion of the initial detention.
The Impact on the Charter-Protected Interests of the Accused
[84] As stated in Grant, "The impact of a Charter breach may range from fleeting and technical, to profoundly intrusive. The more serious the impact is on the rights of the accused, the more likely it will be that exclusion is warranted." The interests at stake here related to section 9 and, ultimately, section 8. Firstly, the right to choose to simply walk away; secondly, the right not to be searched without cause.
[85] These are important rights. With respect to section 9, the stop here was minimally intrusive. It was very brief. There was no physical restraint and it consisted of a relatively benign question-and-answer session focused on recording the identity of the accused and other general biographical information.
[86] With respect to the search that was ultimately conducted, again it was triggered by a sudden intervening act. It was a simple pat-down search over the clothing. An overall assessment of the impact on this accused would, at worst, fall towards the middle of the spectrum and tip towards exclusion of the evidence.
Society's Interest in Adjudication on the Merits
[87] In considering the third factor, society's interest in adjudication on the merits, I would reference paragraph 94 of R. v. Reddy. This last factor, society's interest in a decision on the merits involves the question of "whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. The reliability of the evidence is an important consideration, as is the importance of the evidence to the truth-seeking function of the trial. Although the seriousness of the offence is a consideration, it has far less importance than it did under the Collins Stillman framework, because section 24(2) focuses on the long-term implication for the repute of the administration of justice, and not on the public's short-term desire for a conviction.
[88] The factoring in of the seriousness of the offence has caused great debate in this line of cases. There is, in one sense, a high societal interest in gun cases being decided on the merits. The inclusion of evidence seems to be very often driven by the seriousness of the allegations but this inclination is counterbalanced by the consideration that the honoring of Charter rights is important, especially where the stakes are high for the accused.
[89] The Court can not engage in hindsight-bias of being overly influenced by the de facto guilt of the accused. But what is of greatest significance in the Grant analysis is the reliability of the evidence. This is real evidence. It's a gun. The reliability of the evidence is unquestionable. That tips very strongly in favor of admission of the evidence.
Balancing the Grant Factors
[90] The balancing of those three factors addresses the question of whether the admission of the evidence would bring the administration of justice into disrepute.
[91] In R. v. Harrison, the Supreme Court of Canada made it clear that this balancing exercise is a "qualitative" one.
36 The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.
[92] In the final analysis I conclude that what breaches may have occurred here, on these particular facts, do not trump the truth-seeking interests of the administration of justice. I go back to the case of R. v. L.B., in our Court of Appeal, and the comments of Justice Moldaver, where he used this strong language:
80 This case involves a loaded handgun in the possession of a student on school property. Conduct of that nature is unacceptable without exception. It is something that Canadians will not tolerate. It conjures up images of horror and anguish the likes of which few could have imagined twenty-five years ago when the Charter first came to being. Sadly, in recent times, such images have become all too common - children left dead and dying; families overcome by grief and sorrow; communities left reeling in shock and disbelief.
81 That is the backdrop of this case and in my view, it provides the context within which the conduct of the police should be measured, for purposes of s. 24(2), in deciding whether we should be excluding completely reliable evidence (here, the gun) and freeing potentially dangerous people without a trial on the merits.
82 Viewed that way, I believe that absent egregious conduct on the part of the police, most Canadians would find it unconscionable for L.B. to be set free without a trial on the merits. By egregious conduct, I have in mind conduct that the community simply would not countenance, even if this meant allowing a potentially violent criminal to escape punishment. Without being specific, it would involve conduct that showed disdain for the rights and freedoms guaranteed by the Charter and that struck at the core values those rights and freedoms were meant to protect. No such conduct (or anything close to it) exists in this case. It follows, in my view, that the gun should have been admitted into evidence under s. 24(2).
[93] Absent truly egregious conduct on the part of the police most Canadians would find it unconscionable for an accused that was, in fact, carrying a loaded handgun be set free without a trial on the merits. In this case, although there was a minor breach of Mr. Fountain's Charter rights, there was no truly egregious conduct by the police, or anything close to it. It follows that in this case the gun survives the section 24(2) analysis and should be admitted into evidence.
[94] As I said at the outset, it was made expressly clear that the admissibility of the gun was the only issue on this trial and it follows that with its admission, the Crown's case is made out on each of the charges that Mr. Fountain is facing and that he is guilty as charged.
Released: August 6, 2013
Signed: Justice W. B. Horkins
