Court File and Parties

Ontario Court of Justice

Date: April 26, 2016

Court File No.: Toronto

Between:

Her Majesty the Queen

— and —

Michael Campbell

Before: Justice Nakatsuru

Heard on: March 4, 16, 18, 2016

Reasons for Judgment released on: April 26, 2016

Counsel:

• M. Newhouse, counsel for the Crown
• C. Sheppard, counsel for the accused, Michael Campbell

NAKATSURU J.:

A. INTRODUCTION

[1] On the streets of Toronto, late at night, police officers on patrol are called upon to investigate all manner of things. I can guess that some are routine and mundane. But all of that can change very quickly. Police officers can face highly dynamic situations with unknown and quickly evolving risks. How they respond must respect the constitutional rights of the people they interact with. How they respond though should not be minutely parsed by a judge acting like a Monday morning quarterback. In this case, what started off as a routine traffic investigation rapidly became something else.

[2] Around 4:20 a.m. in the early morning of July 17, 2015, two experienced constables, P.C. Doyle and P.C. Speakman, while patrolling in a marked cruiser allegedly happened upon Mr. Campbell who was speeding in a black Malibu sedan with a female passenger. I say "allegedly" because I have a feeling that the identity of the driver will be a major issue at trial. This excessive speed caught the officers' attention. The police followed and saw the Malibu commit a few traffic infractions. Within a few short blocks, the police turned on their roof lights. But the Malibu did not stop. It allegedly accelerated, quickly turned, and ended up on a dead end street. Once cornered, the driver got out of the car. He was detained by the police. But, not for long. The driver pivoted, swung, and ran away. Despite a foot chase, he got away. While the driver was detained, he had been given a pat down search. His hands had been splayed out over the roof of the Malibu leaving palm and fingerprints.

[3] Mr. Campbell now stands before me faced with one count of assault peace officer, one count of escape lawful custody, and three counts of failing to comply with his recognizance. Before we can get to the merits of the trial, I must decide an application to exclude evidence that the Crown wishes to introduce at his trial. That evidence is the fingerprints alleged to be Mr. Campbell's left on the roof of the Malibu. The defence argues that Mr. Campbell's rights under ss. 9, 10(a) and 10(b) of the Charter were violated by the police. The applicant submits that the police arbitrarily detained him, did not tell him why he was being detained, and did not tell him he had a right to counsel.

[4] I have heard from both police officers on this application. But there is more. Much more. I have seen the video that was in the police cruiser that captured what was happening out the front windshield of the cruiser. I have seen nearly all of what happened that night. The video and audio has taken me, minute by minute, back in time to the incident as it happened. I will say more about this in my reasons. For the moment, I will just say this case has strengthened my view of the importance of such police video. Unlike many other cases where there are contested facts, I can safely say here I know what happened.

B. OUTLINE OF THE EVIDENCE AND FINDINGS

[5] The following is the evidence about what happened in the approximate 2 minutes in which this whole event took place. From the time the officers first saw the Malibu until the time the applicant broke free of the police. I have considered the testimony of the police officers in this narrative. More importantly, I have considered the video. That video watches like a police reality television show. While it is not high-definition, is shot from a distance, and the audio does not capture all that is said, the video is the best evidence of what happened. It tells the story without bias and is not affected by the passage of time.

[6] This is then what happened. At 4:21 a.m. at an intersection just north of Dundas Street West and Keele Street in the west end of Toronto, P.C. Doyle was at the wheel of a police cruiser with his partner, P.C. Speakman seated beside him. Both are veteran officers. They had just finished their "lunch" and were about to check out a low priority call when they saw, passing south of their position, a black Malibu going at a high rate of speed. This caught their attention. The police cruiser turned onto Keele Street to catch and pace the Malibu in order to measure its speed.

[7] Let me pause for a moment to make the following observation. The video begins to capture the event as the cruiser turns onto Keele Street. Initially, there is no audio. As explained by P.C. Doyle, when he activated the camera on Dundas Street West, the twenty or thirty seconds before the camera is switched on is recorded by the cruiser camera. However, the audio does not kick in until the time the on button is actually pushed. Therefore, as the cruiser tries to catch up to the Malibu on Keele Street, there is no audio on the recording.

[8] Returning to the narrative, the Malibu was at some distance from the cruiser when the police turned onto Keele Street. The cruiser sped up in order to gain ground. At the intersection of Keele Street and Dundas Street West, the southbound traffic had a red light as the cruiser approached. The Malibu turned right heading west just in front of the cruiser. Clearly marked on a sign at the intersection was a "no right turn on a red light". Despite that sign, the Malibu made the turn committing a traffic infraction. Both officers testified that at this point they were following the car in order to investigate this Highway Traffic Act (HTA) infraction.

[9] Once the police made the turn onto Dundas Street West, the audio to the recording comes on. The cruiser sounds as if it is accelerating towards the Malibu which has managed to get a distance away. As I relate the action from here on, I will quote the conversation as heard on the video recording. There are caveats. I do not intend this to be an absolute verbatim account. While the audio is pretty good, it is by no means perfect. This account is what I can hear given my own listening abilities. I have also taken into account what the officers have testified that they heard on the recording. In setting out the narrative in this way, I hope this can best illustrate in written form, the compelling nature of the video.

[10] As they try to catch up to the Malibu, P.C. Doyle said, "Yup. We got him. No right on red." The Malibu headed west bound for a city block. It then signaled to go north. At this point, the Malibu rolled through a red light in making the turn. It did not come to a complete stop.

[11] P.C. Doyle said, "Gonna run him. He's turning again. 073… Just a sec." Both officers testified that the licence plate of the vehicle was run through the police computer. "073" was the last numbers of the plate of the Malibu.

[12] As the police cruiser followed the Malibu north on Pacific Avenue, P.C. Doyle was perplexed because the car was heading back in the direction that it had just come down, "Why is he doing a circle? Why wouldn't he just gone down Vine?"

[13] The Malibu travelled about a block north. It then signalled to go westbound along Vine Avenue as Pacific Avenue ended. The car accelerated on Vine Avenue, a short residential street. There were parked cars along the street. P.C. Doyle uttered, "It just doesn't make any sense."

[14] Westbound on Vine Avenue, the onboard police computer "chirped" indicating that information from the license plate search was ready to be retrieved. P.C. Doyle told his partner, "Get that return." The computer revealed the result of the license plate search. P.C. Doyle muttered, "It's a rental." The Ministry of Transportation (MTO) check revealed that the Malibu was a rental car from Enterprise Rent a Car. The only information obtained from the check was the make and model of the car and the location of the rental company.

[15] Seconds after, the police cruiser's rooftop lights were switched on to pull over the Malibu. The lights came on at 4:22:10 a.m. They were bright. They lit up the surrounding houses, cars, and trees. Although there were no cars on Vine Avenue parked on the side of the road the Malibu was travelling, the car did not pull over. It also did not stop when there was a slight bend in the road. It kept going. Seeing what the driver was doing, P.C. Doyle braced himself and said, "Yeah. Here we go."

[16] The Malibu came to the end of Vine Avenue. The driver of the Malibu had two choices: he could go north or he could go south on McMurray Avenue. He decided to go north. The Malibu slowed but did not come to a stop at the stop sign at the corner. As the car turned north, P.C. Doyle cried, "He's going to bail! He's going to bail!"

[17] P.C. Doyle testified that given the speed with which the Malibu took the corner he knew something was up. He made these comments so that his partner would know what was going through his mind.

[18] P.C. Doyle wanted to confirm what the location was because he felt whoever was in the car was going to run and he wanted to know where they were so that if that occurred, the police would know their exact location. "McMurray," replied P.C. Speakman.

[19] "Get another car," ordered P.C. Doyle. P.C. Doyle testified that he thought this could become a foot pursuit or something else. He wanted another car. He had seen another police cruiser back on Keele Street in front of a bar.

[20] "Hold on. Hold on," replied P.C. Speakman.

[21] The Malibu had driven for some distance before it came to a stop in the middle of the road. It could not go any further. It was a dead end. P.C. Doyle knew that the street would end. P.C. Doyle knew the options for the driver would be limited. Just beyond was a fence and then railway tracks. Coincidentally, a train with numerous cars attached was just passing by.

[22] Immediately as the Malibu stopped and its rear lights went off, the driver stepped out of the car. He was a thin built, tall, young black man. The applicant just stood at the door of the car. His arms were splayed out by the side of his torso. He was lit up by the headlights of the police cruiser. The time was 4:22:30 a.m. A minute and a half from the point the officers first saw the speeding Malibu.

[23] As immediate was P.C. Doyle's response. He had already taken off his seatbelt and had opened his driver's side door before the Malibu had stopped. The officer was ready to spring into action. P.C. Doyle got out and approached the applicant at a brisk pace. He pointed at the applicant, his other hand at the ready on the butt of his firearm, and he loudly ordered, "You get in the car! Get in the car! You don't jump out on us! Get in the car! Get in the car!"

[24] As P.C. Doyle made these commands, the applicant just stood there. He made no move for the few seconds these orders were hurled his way. P.C. Doyle testified that he made these commands to try and narrow the gap with the driver. He also wanted to see if the driver would listen to his commands.

[25] Only when P.C. Doyle closed the distance between himself and the applicant, did the latter slowly crouch back down into the driver's seat. The applicant said something that could not be made out. P.C. Doyle testified it was something to the effect of "what did I do?" To P.C. Doyle, it seemed the applicant was scanning the street when he was standing out of his car. To P.C. Speakman, it seemed like he was looking past them, his eyes wide open and without focus.

[26] "Get me another car Speakman," said P.C. Doyle. P.C. Speakman also approached the Malibu but from the passenger side a few steps behind his partner. He was providing cover.

[27] As P.C. Doyle walked up beside the driver's side, he took his hand from his gun. He said to the applicant, brusquely, "Yeah. You were trying to get away from me. You hit a dead end. Get out of the car."

[28] P.C. Doyle did not see anything in the applicant's hands. This dropped his anxiety a little bit. He made a quick scan of the car to see who else was in the car. Although the applicant was back in the driver's seat, now P.C. Doyle wanted him out of the car so he would not be able to drive the car. The applicant got out of the car.

[29] "Keep it up. Put your hands on top," said P.C. Doyle as he pointed towards the roof of the Malibu. At this time, P.C. Speakman shined his flashlight into the passenger side of the car. P.C. Speakman saw a female passenger in the car in the front seat. He was not certain about her situation. He made sure he kept his eye on her as well.

[30] As the applicant got out of the car he asked, "What's goin' on?" P.C. Doyle maneuvered him so that the applicant stood facing his car. They were at the open driver's side door. P.C. Doyle then reached down and lifted the applicant's arms up and on top of the car. There was no resistance by the applicant. P.C. Doyle himself did not act aggressively but there was no doubt, he was in command. He said, "Put your hands up top" as he lifted the applicant's arms up. P.C. Doyle testified that he did this to conduct a pat-down search to ensure the applicant had nothing in his waistband.

[31] The applicant protested, "I'm putting my hands up." His voice trailed away. But he continued to say something to the officer behind him. To P.C. Doyle the applicant was saying something to the effect of "what did I do?" The two men then talked quickly to each other. P.C. Doyle was right behind the applicant holding his arms up.

[32] "Stop," said P.C. Doyle.

[33] "I'm not doin' nothing," protested the applicant.

[34] "Ok. Just stop." P.C. Doyle kept the applicant's arms up on the roof as the applicant continued to protest. The applicant would sometimes lift his palms up as if in exasperation. P.C. Doyle testified he was saying stop so that the applicant would stop arguing and calm down. To the officer, the applicant seemed tense. He testified that the applicant was fidgeting but he could not recall how he was fidgeting.

[35] "I'm not doin' nothing. I'm not doin' nothing."

[36] "Ok. Ok. You tried to get away," accused P.C. Doyle. P.C. Doyle's voice was not harsh or loud. But it was firm. P.C. Doyle testified he was trying to explain what the applicant had done.

[37] "I didn't try to get away!" denied the applicant.

[38] "You did."

[39] "No I didn't."

[40] "Right now you are being detained. Do you understand?" asked P.C. Doyle. The officer lowered the applicant's arms and placed them behind his back. There was no real resistance to this as the officer essentially used one hand to do this. To P.C. Speakman, it appeared that this was now a less threatening situation so he approached the passenger. He saw the passenger, a female, fidgeting with her hands.

[41] "I'm not doin' nothing," the applicant continued.

[42] "Shake. You are being detained. Do you understand?"

[43] "Yeah."

[44] "You are not free to leave right now."

[45] "I know. I know that already."

[46] P.C. Doyle had the applicant's arms back together behind his back. The applicant seemed to know what was expected of him as he left his arms there. P.C. Doyle held them together with one of his hands. With the other, he looked for his handcuffs. There was no urgency in his actions or tone. P.C. Speakman backed up and shone his light at the rear plate. Then he started to head back towards the passenger door again.

[47] "We are just going to figure out what is going on. For some reason you were trying to scoot down here," said P.C. Doyle looking downwards to the cuffs he was just pulling out. P.C. Doyle meant by "scoot" that the applicant was trying to get away.

[48] "I'm not trying to scoot".

[49] "You were."

[50] Immediately after this was said, at 4:23:13 a.m., there was an explosion. An explosion of limbs and body as the applicant broke free. Like a college half-back, he semi-crouched, twirled completely around, threw his arms about, and bolted. P.C. Doyle gasped an expletive. He then gave chase. His partner too.

[51] P.C. Doyle repeatedly told the applicant to stop and that he was under arrest. As they passed the trunk area of the cruiser, P.C. Doyle grabbed the applicant's shirt. The applicant's arm came back and hit the officer somewhere between the shoulder and chin, breaking his grip. The chase was back on. The applicant went into the back yard of a home. He confronted the officers and then quickly jumped a fence. He could not be caught. A canine unit was called and a perimeter set up but the police had no success in finding him.

C. SECTION 9: ARBITRARY DETENTION

[52] The applicant raises three different points under s. 9 of the Charter:

a) The police stopped his car under the pretext that it was for a HTA violation and in reality had no grounds to detain him;

b) Even if there were grounds to detain him in order to investigate a HTA offence, the police went further and they conducted an illegal investigative detention for a criminal offence, and;

c) The manner in which the detention occurred became arbitrary when P.C. Doyle attempted to handcuff the applicant.

[53] As I deal with each constitutional issue, I will address additional relevant evidence I have heard on the application.

I. ARBITRARY DETENTION: WAS THIS A PRETEXT STOP ALLEGEDLY UNDER THE HIGHWAY TRAFFIC ACT?

[54] The applicant submits that the only reason the police detained him was to investigate him for a criminal offence. They used the pretext or ruse of a valid HTA stop to engage in an otherwise unlawful criminal detention and investigation. The applicant argues that although the applicant may have committed some minor traffic offences, the real purpose of the detention had nothing to do with those offences. The applicant submits that P.C. Doyle and P.C. Speakman should not be believed when they testified otherwise. The fact that they did not immediately pull the Malibu over when they observed the infractions speaks against their testimony they were still going to investigate the HTA offences. He argues that when P.C. Doyle received information that the Malibu was a rental car, he decided to stop the car on a hunch and to pursue a criminal investigation without any reasonable suspicion.

[55] The Crown responds that I should believe the police officers on this point. This was a dual purpose detention. She argues that this was a fluid motor vehicle stop with the police making additional observations that eventually led them to conclude that there was something more going on. However, she submits that the officers did not simply abandon the HTA investigation. The fact they did not immediately stop the Malibu is explained by their testimony that they were waiting for the results of the police check of the licence plate before affecting the stop. This was never a pretext detention in order to pursue a criminal investigation.

[56] For me to resolve this issue, I must make some findings with respect to the officers' credibility. To do so, I will consider the whole of the evidence on the application. A significant piece of that evidence is the video.

[57] First of all, based upon the video I find as a fact that the applicant did commit infractions of the HTA. It is clear he turned right on to Dundas Street West when there is unobstructed signage posted at the intersection that this is prohibited. In addition, before the roof lights of the cruiser were activated on Vine Avenue, the Malibu did not come to complete stops at two intersections when he was supposed to. I hasten to add with respect to these two latter infractions, this is probably not an uncommon occurrence in this city.

[58] The fact the applicant did break the law is an important distinguishing feature from some of the case law relied upon by the applicant where it was found that no actual traffic violations were observed by the police during a pretext stop: see R. v. Gonzalez, [2012] O.J. No. 5773 (C.A.) affirming (2010), 2011 ONSC 543, 275 C.C.C. (3d) 101 (Ont. S.C.J.); R. v. Nartey, [2013] O.J. No. 1550 (C.A.); R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494.

[59] Of course, this fact is not conclusive. Even if the applicant committed these infractions, this does not amount to the officers truly detaining him for these purposes. Rather it could be that the police were simply referring to the HTA offences as an after-the-fact justification. This then requires me to assess the credibility of the police officers.

[60] The applicant points out that at no time did the police officers ever advise the applicant he was being detained or being investigated for any HTA offences. It is argued that this fact should diminish the credibility of the officers. While this is true, I am not persuaded much can be read into this. As I will further explain, P.C. Doyle had very little opportunity to do so given how quickly the events occurred.

[61] One fact that supports the officers' testimony that they were truly pursuing in part an HTA investigation is the narrative and the comments made as the events unfolded on the video. As the Malibu goes southbound, the cruiser follows it. It appears to have been going very quickly as the officers testified. It is reasonable that this would have caught their attention. At that time and indeed, until the applicant got out of the car, the police had no information as to who was in the car. Thus, no extraneous factors, for example the appearance of the driver, could have been taken into account by the police in deciding to pursue this car. Further, the camera was activated shortly after the car turned right onto Dundas Street West when it was not supposed to. This too supports the officer's testimony that it was this HTA violation that started their investigation. Finally, the police video has P.C. Doyle saying "We got him. No right on red." This is strong support about what was going through his mind at the time. In other words, this all began as an investigation of a traffic infraction.

[62] The applicant argues that the fact the officers did not immediately stop the Malibu when these infractions occurred are persuasive indicators that the police were up to something else. I disagree. I accept the police officers' testimony on this point. This is what they testified to. P.C. Doyle testified that in nearly all of the vehicle stops he did he would check the license plate through the on board police work station. He wanted information about the vehicle and the driver such as: whether the car was stolen; whether the registered owner was a licenced driver; where the owner lived to determine why he could potentially be in the neighbourhood; whether the driver was on release conditions; whether there was an outstanding arrest warrant; to see if the plate had been run by other police officers earlier in the evening or to gain further information such as if the vehicle was wanted in an armed robbery. P.C. Doyle could further explore more detailed information about a police event through interlinking databases if he had time. All this information was important to him in terms of when to stop the vehicle and the manner in which the stop would take place especially if there were some officer safety concerns raised by the information.

[63] P.C. Speakman also confirmed that it was his practice to check a plate with the MTO. Like his partner, he testified he did this to ensure the ownership of the car and to see whether it was stolen. When a check of the plates is done, the owner of the vehicle is automatically run through the police data bank which would show warrants, breaches, or police information such as prior weapons convictions, that is relevant to public, police officer, and occupant safety. An example of potential occupant safety concerns would be if an occupant of the car was a suspect or victim of domestic violence or abduction or a missing person. If so, then the driver could be either a risk to that occupant or in danger from that occupant. Information like this would affect how he would handle the motor vehicle stop.

[64] P.C. Doyle disagreed with the suggestion made in cross-examination that if it was a true HTA investigation that he would have immediately stopped the car. For him, every traffic stop was different. He testified that in this case as in others, he waited for the return on the licence plate. Given what he had seen of the driving and the traffic conditions at that time of night, it was his view that waiting to stop the car would not put the public in danger. He testified that he would wait for the return in order to ensure public and officer safety.

[65] In terms of stopping the Malibu, P.C. Speakman testified that this decision was up to his partner. However, he confirmed that he too would not immediately pull over a car that he found breaching a traffic law. When that was done would depend on a number of factors including whether the car was posing a risk to the public by its driving and the flow of traffic. He testified that if he was the driver of the police cruiser that night, he would not have stopped the car. It was his practise as well to wait for the police check of the licence plate against the MTO database before he would pull over a car.

[66] I accept the evidence of both officers on this point. They were not impeached in cross-examination on this. It makes eminent sense to me that police officers would wait for such information for the reasons they gave. If there was no urgency or potential danger to the public posed by the vehicle, it seems prudent to wait. On the video, as soon as the return on the on board computer is checked the roof lights to stop the Malibu are turned on. This supports the officers' testimony that this was the reason for the delay in stopping the car.

[67] The applicant also argues that the true reason for the stop was P.C. Doyle's attitude towards rental cars. With respect to this argument, I must say that on first impression, I did find the evidence unsettling. P.C. Doyle testified about his approach to rental cars. P.C. Doyle agreed that rental cars do draw his attention. Throughout his career, many of his motor vehicle stops have involved drug offences, robberies, weapons, and numerous other criminal offences. He testified that he has detected a lot of criminal activity associated with rental cars. Surprisingly as well, P.C. Doyle testified that he stops about 75% of all the rental cars he comes across if the situation permitted it. P.C. Doyle referred to rental cars as "a dime a dozen". In his experience, they are often rented by one person and then handed out to others. The number one reason he pulls over rentals is that often the driver is not the person who is supposed to be driving the car according to the rental agreement. If the driver is not on the rental agreement, in the officer's opinion, this is a breach of contract and car should not be on the road. As a result, P.C. Doyle would call the rental company and have the car is towed. Sometimes the stops are routine. The rental paperwork is checked and the car is free to go. In cross-examination, he specifically disagreed with the suggestion that he stopped rental cars solely for investigating criminal activity. In a question posed by the Crown, P.C. Doyle insisted 100% that he would have pulled the Malibu over even if he had no information that it was a rental.

[68] On the other hand, that a car was a rental did not mean much to P.C Speakman. He acknowledged that rental cars were not commonly involved in crime. Further, if the driver of the Malibu was just a visitor to the area, it could explain the odd route being taken. To P.C. Speakman, the return from the computer was more a void of information. It did eliminate the potential that the car was stolen but that was about all. P.C Speakman does not pull over rental cars to ensure that the driver is on the lease.

[69] In my view, if this case pivoted around P.C. Doyle's practice of stopping rental cars, I believe more analysis of his practice and his purported police power to do so would have been required. One issue would be under what common law or statutory power was he acting under to essentially enforce a contractual agreement between the rental car company and the lessee. The other issue involves his subjective view that somehow the fact the car was a rental one added further to a suspicion that the car may have been involved in criminal activity.

[70] However, I find that it is not necessary in this case. This case is not about an officer stopping a car based largely on information that the car is a rental. I accept the officer's testimony that he did not do so in this case. I conclude this because as already noted, there were verifiable HTA infractions and I accept that this was the primary reason for the initial attempt by the police to stop the Malibu. Further, as I will explore later in my decision, events quickly took a turn whereby any significance the fact the car was a rental car may have had to P.C. Doyle paled in comparison to other factors he soon took into account for the detention.

[71] I recognize the fact that he stopped the Malibu proximate to the time of the return from the computer does coincide with the fact that he learned that the car was a rental. However, P.C. Doyle testified that when he learned it was a rental, he realized he would not get any further information about the driver unless he stopped him. I find that this is a reasonable explanation.

[72] A final evidentiary consideration is that P.C. Doyle expressly disagreed that it was a pretext stop. The officer testified that for him, this was essentially an HTA stop until the applicant jumped out of the car. At that point it became an investigative detention. He further testified that the HTA infractions would continue to have been investigated. The officer testified that he would not have left it behind even though he began an investigative detention for a suspected criminal offence. P.C. Doyle was adamant that he was still going to follow through with it when the moment was right.

[73] P.C. Doyle was a candid witness. He was forthright. He expressed himself clearly and thoughtfully. He was knowledgeable about what he did. He was also an experienced officer. I was also impressed with P.C. Speakman. He was honest and was doing his best to try and help me understand what was going on. His memory also appeared to be reliable even apart from having it refreshed from the video. It seemed to me that it was more accurate at times than his partner's. I find that cross-examination did not undermine the substance of their evidence. Lastly, the video supports their testimony. In short, I accept their testimony on these points.

[74] I will say one additional matter on the issue of their general credibility. I fully appreciate that these officers are being asked to recall what was going through their minds as the events unfolded. I must be sensitive that this recollection must obviously be colored by the fact that they know now during the stop the applicant actually did flee. Thus, the significance of the risk of flight they have testified to is likely more prominent in their testimony due to this fact. Nevertheless, I am still willing to accept their testimony that they had this concern. I find this to be so given that some of their comments and actions on the video support that this belief was an active consideration in their mind at the time. Just for example is P.C. Doyle's comment to the applicant that he believed he was trying to "scoot" and his comment "He is going to bail!"

[75] In conclusion, I find that this was a dual purpose stop. It was not a pretext stop. At the time the Malibu came to a stop at the dead end road, the police officers were detaining the applicant for a dual purpose. One was an investigative detention for the purpose of investigating a suspected criminal offence. This was the primary purpose of the detention by this time. The other was for the purpose of an HTA investigation. Pursuant to s. 216 of the HTA, the officer had the statutory authority to do so. So what started off initially as a detention pursuant to the HTA when the officers turned on their lights became an investigative detention of a suspected criminal offence as well when the car did not stop and the driver quickly exited the vehicle: see R. v. Humphrey (2011), 2011 ONSC 3024, 237 C.R.R. (2d) 109 (Ont. S.C.J.); R. v. Amofa (2011), 2011 ONCA 368, 85 C.R. (6th) 265 (Ont. C.A.) at para. 15.

[76] Of course, this conclusion does not entirely end the matter. The officers at this time were now conducting powers pursuant to an investigative detention including a power to physically control and search the applicant: see for examples R. v. McFarlane (2009), 200 C.R.R. (2d) 158 (O.C.J.); R. v. Chronopoulos, [2009] O.J. No. 1619 (S.C.J.). The issue remains did they have the legal grounds to do so.

II. ARBITRARY DETENTION: WAS THERE A REASONABLE SUSPICION TO CONDUCT AN INVESTIGATIVE DETENTION FOR A CRIME?

[77] The applicant argues alternatively that even if I do not conclude that this was a pretext detention, the police did not have reasonable grounds to suspect that the applicant was involved in a recent or ongoing criminal offence. It is submitted that when looked at objectively, this could be no more than an HTA investigation. The police did not have any information about any potential criminal offence having taken place. This was not a high crime area. The licence plate check revealed nothing about the driver. While the driving may have been suspicious to the officers, the applicant argues that there were innocent explanations for it other than the applicant was trying to flee in his car.

[78] The Crown responds that when the totality of the circumstances is taken into account, there were more than justifiable grounds for an investigative detention. The police stop was a volatile and dynamic situation. It quickly evolved from an HTA stop to one that posed potential danger to the police officers. There were a number of factors that supported this investigative detention including the traffic infractions, the route taken by the Malibu, the erratic driving, and the applicant's behaviour when the police approached.

[79] Before starting the analysis, I must be attentive about what happened this night. As the video so amply shows, things developed very quickly. The police officers had to mentally process this in a short period of time. For me to now assess what transpired, I believe some of the comments made by the Supreme Court of Canada in R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851 at para. 4 (see also para. 23) have direct application:

[R]oadside stops sometimes develop in unpredictable ways. It is necessary for a court to proceed step-by-step through the interactions of the police and the appellants from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry.

[80] An additional point is worth making. I have found here valid grounds for a detention under the HTA. As it was held in Nolet, albeit in the context of a regulatory search, the fact that the police were also going to investigate a criminal matter did not render that regulatory detention unlawful. Even if the predominant purpose of the ongoing detention was criminal rather than regulatory. In other words, the expectations of P.C. Doyle and P.C. Speakman that their detention could uncover a criminal offence being committed by the applicant, did not by itself convert a valid Charter-compliant regulatory detention under the HTA into a Charter violation: see Nolet at paras. 36 to 43.

[81] However, this is not a complete answer to the s. 9 analysis for two reasons. First of all, P.C. Doyle in his own mind was acting pursuant to a criminal investigative detention. He was no longer acting under the HTA powers alone. Secondly, the manner in which he detained the applicant was beyond what would normally be permitted under a regulatory investigation. Under an HTA detention, P.C. Doyle testified that he would usually permit the driver to remain in his vehicle, would advise the driver of the recording of their interaction, the reasons for the stop, and would request appropriate documentation. In this case, P.C. Doyle made forceful demands of the applicant, physically restrained and controlled him, searched him and was about the handcuff him to the rear. In this case, the intrusion into the liberty interest of the applicant had by these actions moved far beyond what was reasonably necessary for an HTA detention.

[82] The legal test I must apply comes from the leading case of R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. Under the common law, the police have a limited power to detain a person for investigative purposes. This is a two prong test. First of all, the police conduct must fall within the scope of their duties. In most cases, this test is met. I find it has been met here. P.C. Doyle and P.C. Speakman were engaged in enforcing traffic laws, ensuring public safety, and investigating suspicious behaviour. The second part of the test is the one that attracts the most litigation. The police conduct in question must involve a justifiable use of the powers associated with that police duty. In the context of an investigative detention, that second prong is met where the police have a reasonable suspicion. It must be more than a mere hunch or intuition even one based upon experience. Objectively, on the totality of the circumstances, there must be a clear nexus between the detainee and recent or ongoing illegal conduct. The reasonableness of the detention is assessed taking into account:

i. The importance of the performance of the duty to the public good;

ii. The extent to which the interference with individual liberty is necessary to perform the officer's duty and;

iii. The nature and extent of the interference.

Finally, the investigative detention must be brief, executed in a reasonable manner, and does not impose an obligation on the individual to answer any questions: see also R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37 at paras. 36-37.

[83] Having set out in summary the legal test, in addition to the video, I will refer to the additional relevant evidence that I have heard on this issue. First of all, P.C. Doyle testified that to him, he had not decided to detain the applicant for a criminal investigation until the applicant "jumped" out of his car. Up until then, he felt something suspicious or funny was going on. P.C. Doyle found the route taken by the Malibu was a round-about route unless the driver was lost. The route taken raised a suspicion that the car was trying to find a way out of the area. P.C. Doyle was suspicious there was something going on in the car that occupants did not want the police to be aware of. Perhaps it was drugs. Perhaps they were going to try to dump property or to hide items.

[84] When the police roof lights were turned on to commence an HTA investigation, the car did not stop and it appeared to P.C. Doyle that car was trying to get away. He agreed that some people pretend not to see the lights. To him, this driver seemed to be attempting to elude them given the route taken and the quick turns.

[85] When P.C. Doyle approached, the applicant "jumped" out of the car. In most vehicle stops, people stay in the car. It was uncommon in a regular traffic stop for a driver to exit without being told to do so. P.C. Doyle said this was "huge" in his state of mind. His officer safety instincts went through the roof when this happened. This type of exit by the applicant rang a lot of different things for him. Does the driver have a weapon? Does the driver just want to argue the stop? P.C. Doyle acknowledged that some people were just anxious with the police.

[86] P.C. Doyle testified he had a reasonable suspicion something was happening and he needed to investigate it. To him there was a reasonable suspicion that a crime was being committed or was about to happen. P.C. Doyle admitted he had no idea what crime. He came to this view based upon his experience. Factors he considered were: the driving habits, the route the Malibu took, the hour of the night, the applicant exiting the car in the manner he did, and his scanning the immediate area. He agreed that the fact the car was a rental heightened his suspicion even more.

[87] At this point, P.C. Doyle felt that this had gone beyond an HTA investigation and although he was not sure what, he believed there was a criminal element to it. In his thinking, it could have been a breach of some court order or something illicit on the person or in the car.

[88] P.C. Doyle testified he lifted the applicant's hands upon the roof to check out his waist area to ensure there were no weapons like a knife there. He was concerned about weapons given the driving and how the applicant exited. He further testified that although he was not sure when, he had once been stabbed with a knife. He had also found numerous weapons in the waist band area of people prior to this occasion. P.C. Doyle testified that he believed he was able to briefly check the applicant's waist area. He found nothing. However, he had not yet completed a search below the applicant's waist. He then pulled the applicant's hands back, placed one hand on him and was trying to take his cuffs out of the pouch of his vest.

[89] P.C. Doyle testified that after searching for weapons, he would have tried to confirm the driver's identity and see if there were any breaches of a court order. If all was okay, he intended to dial back to the HTA offences, serve the driver with the appropriate papers and then send them on their way. He testified that he might have also discussed with the applicant that it was not a good idea to "jump" out of the car. P.C. Doyle admitted that given human nature, people react differently to the police but he thought the driver should be educated not to "jump" out on the police. P.C. Doyle testified with hindsight that he would not have done anything differently that night.

[90] In my view, since P.C. Doyle made the decision to detain and was the officer who interacted with the applicant, his evidence is of the most importance. P.C. Speakman's evidence is secondary. However, P.C. Speakman did give material evidence on this application when it came to the investigative detention. P.C. Speakman testified that most people pull over once the police lights go on as they are bright and it would be obvious if there were no other distractions or other vehicles around. He testified that when they turned the lights on, the Malibu increased speed. In his mind, this was the beginning of a police pursuit. In his mind, it would have become one except for the fact the Malibu went into a dead end.

[91] While on Pacific Avenue, he too became increasingly suspicious of the car as it was taking an illogical route. It seemed like to him that they were being avoided by the vehicle. As the vehicle continued, while he was still concerned with the HTA infractions, his focus shifted to a potential criminal offence and officer safety. He based this belief on the fact there were a number of HTA infractions committed by the driver, the route taken by the car did not make sense, and when they activated the roof lights, the Malibu did not stop but accelerated away. In his opinion, the car went three times further than in an average car stop. P.C. Speakman believed that the driver was trying to escape from the police.

[92] P.C. Speakman also believed the applicant was going to run given how he had quickly gotten out of the car, the previous speed of the car, and the fact he did not stop when he could have. It looked like to him the driver was looking for an escape route.

[93] Having outlined this evidence, the fundamental question for me to answer is whether given the totality of the circumstances known to the police that night was it reasonably necessary to detain the applicant in carrying out their police duties? Did the officers have a reasonable suspicion that the applicant was connected to a criminal offence? In answering this question, I am guided by this comment in R. v. Clayton and Farmer, 2007 SCC 32, [2007] 2 S.C.R. 725 at para. 31:

The determination will focus on the nature of the situation, including the seriousness of the offence, as well as on the information known to the police about the suspect or the crime, and the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope. This means balancing the seriousness of the risk to public or individual safety with the liberty interests of members of the public to determine whether, given the extent of the risk, the nature of the stop is no more intrusive of liberty interests than is reasonably necessary to address the risk.

[94] In this case, the police had no specific information about a crime being connected to the Malibu or its driver. Indeed, they had no information at all about a crime having being committed. They were only suspicious of some criminal activity. In some cases, a critical factor justifying an investigative detention has been a connection to a particular criminal offence that was committed or was being committed. Sometimes, it is equally significant when this is lacking. On the other hand, the police need not specifically point to a particular crime being investigated in order to justify an investigative detention: see R. v. Peterkin (2013), 2013 ONSC 165, 295 C.C.C. (3d) 87 (Ont. S.C.J.) at paras. 89-90 affirmed on other grounds (2015), 2015 ONCA 8, 319 C.C.C. (3d) 191 (Ont. C.A.); R. v. Wilson (2011), 2011 ONSC 3046, 236 C.R.R. (2d) 90 (Ont. S.C.J.).

[95] In my view, a connection to a particular crime is simply one of the factors to be considered in determining whether it was reasonably necessary for the police to detain an individual in the execution of their duty. In some cases, the lack of such a connection can be a determinative factor. For instance, a random investigative detention based upon an officer's belief that individuals in a high crime area are potentially involved in criminal activity is really tantamount to a general power of investigative detention rejected in Mann. Still in other cases, other circumstances can compensate for the fact that the police are not investigating a particular crime or offence.

[96] I find this to be the case here. Important are the observations made by the police in following the Malibu. In this case, the potential crime that was being investigated by the officers was evinced by the behaviour of the car itself. In other words, while the driving following the activation of the police lights may not have been such as to constitute reasonable and probable grounds for the offence of flight from police in a motor vehicle contrary to s. 249.1 of the Criminal Code, it strongly supported a reasonable suspicion that the driver was about to flee. As well as a potential criminal offence, it was also an offence contrary to s. 216 of the HTA to not stop when directed to do so by a police officer. Furthermore, a logical inference can be drawn that if the driver was attempting to flee, a possible reason for doing so is to hide from the police some criminal activity. As the officers testified, there have been cases where cars have tried to flee police because there was illegal contraband such as drugs or weapons in the car or some occupant was in breach of a court order such as bail.

[97] Looking at the totality of the circumstances, I find the police did have a reasonable suspicion that the driver was connected to some criminal activity. If I place myself in the position of P.C. Doyle, which in this case I can nearly do given the in-car camera, I would have come to the same conclusion as he did. This was a regular HTA investigation that quickly took on a different complexion. I agree that the route taken was somewhat suspicious but this was at the time just intuition or a hunch. The fact that the car came back as a rental was neither here nor there. P.C. Doyle's testimony about rental cars being potentially involved in some kind of offence even if based on his own experience is a hunch at best and idle speculation at worst. However, all of this changed when the police lights were activated.

[98] The lights are clearly visible reflecting against parked cars and homes in a wide area captured by the camera. The surroundings were dark. There were no other cars around that the driver could mistakenly believe was the subject of the police attention. There were plenty of vacant areas of the roadway that the car could have readily and quickly pulled over into. However, the Malibu did not. The car continued for quite a distance and then made a fast right turn, slowing just enough to allow it to make the turn. Once making the turn, the applicant did not pull over within a reasonable distance from the corner. Rather he drove all the way down to the end of the street and stopped only when he had no alternative but to stop.

[99] The officers, especially P.C. Speakman, testified that the Malibu accelerated when the roof lights were turned on. The Crown submitted that the video captures this. The defence argues that it does not. In my view, I am not sure that the video shows the car accelerating more when the police lights came on. It certainly did accelerate when it first turned onto Vine Avenue. It certainly did not slow down when the roof lights came on. It certainly did not stop when it completed the right turn onto McMurray. But from this video, given its limitations, it is very difficult for me to conclude it accelerated appreciably when the lights were activated. It certainly did not have a long distance to speed up. But both officers believed it was accelerating. Certainly, the video does not show the Malibu decelerating except as it needed to make the turn on to McMurray.

[100] Looking at the video alone, I can conclude that the driver was behaving in such a fashion that the police could reasonably believe that despite seeing the lights, the driver did not intend to pull over unless he was forced to do so. Also, given my view about the general credibility of P.C. Doyle and P.C. Speakman, their superior position to observe the speed of the car on Vine Avenue that I do not have, and the fact that the comments they made at the time support their testimony the car was accelerating, I find that when the police roof lights were turned on, the Malibu did accelerate. It did not so accelerate so much that it can easily be seen on the video. However, it was sufficient enough that the police officers could reasonably conclude the vehicle did.

[101] I appreciate the applicant's argument that if he had intended to evade the police, it made no sense he would turn onto a dead end street. He points out that the train tracks were visible to the right of Vine Avenue as one drives down the street. He also points out there was a dead end sign at the corner of the intersection. I agree these are points worth considering but the argument is not persuasive to me. It was dark. The applicant could have easily missed these indicators as he was quickly driving away from the police.

[102] To me, the nature of the applicant's driving once signalled by the police to stop is a key factor supporting the propriety of the investigative detention. When one adds the contextual circumstances that the applicant took a circular route through a residential area with no ready explanation apparent and that it was very early in the morning, the suspicion of the officers that something was criminally amiss was not just a hunch or intuition but one reasonably based upon objectively ascertainable observations.

[103] There is then the further step in the interaction. When the Malibu finally stopped, the applicant quickly exited the car. Here I am sensitive to the wide variety of responses each individual may have to being stopped by the police. In particular, the video shows that the applicant believed he had done nothing wrong and seemed upset by the stop. It is reasonable that some individuals, perhaps unwisely as P.C. Doyle characterized it, may decide to get out and demand an explanation of the police. That in and of itself cannot be a deciding factor. However, again the totality of the circumstances must be considered. This driver had not done nothing. He had committed some traffic infractions and had not stopped when the cruiser turned on its lights. Further, the quickness with which the applicant got out of the car was remarkable. The moment the rear car brake lights turned off, the driver door opened, and the applicant stepped out. There was no hesitation.

[104] The applicant further argues that when he exited the car, it was clear he had nothing in his hands, weapon or otherwise. Also, when he was ordered back into the car, the applicant complied. When told to get out again, he again complied. The applicant submits that the evidence that the applicant was scanning the street as if looking for a place to run is highly subjective testimony and no doubt likely coloured by the fact that the applicant did eventually run. Indeed, when I looked at the video, to the extent I could make out the applicant moving his head or line of vision about, I find it could be as much a result of the objections he was making as looking for escape routes. The Crown counters with the fact that when ordered back into the car, P.C. Doyle had to command this a number of times before the applicant would move. All these submissions are worthy of serious consideration. However, compliance to police direction is a matter of degree. The defence submissions are important to me and I will return to them again. Nevertheless, at this point in time, given all the circumstances already noted, I find that the officers had in their interaction with the applicant, a reasonable basis to conduct an investigative detention beyond the HTA detention.

[105] I also find that the manner of the detention was also justified up until P.C. Doyle decided to handcuff the applicant. Up to this point in time, given what had transpired, how quickly events were proceeding, the existence of the unknown factors, and finally the fact that although compliant, the applicant was not calm in the face of what he seemed to feel was an unjustified interference with his liberty, it was reasonably necessary for P.C. Doyle to control and direct the applicant and to conduct a pat-down search. I conclude that it was a reasonable and prudent thing to do before continuing with the investigation. It was minimally intrusive to put the applicant's hands up on the roof of the car to frisk him for weapons for the purpose of officer safety and potentially the safety of the female passenger in the car.

[106] As a result of these findings, I am of the view that to this point, there was no violation of s. 9 of the Charter.

[107] There is one further matter that I need discuss. It is clear that s. 8 of the Charter is engaged by these facts. However, for some reason, the applicant has not raised s. 8 in his challenge. I agree that without appropriate notice, it is not right for him to raise it now. The Crown objects to the applicant raising section 8. I do not intend to take section 8 into account in the end result. Nevertheless, I would be remiss not to say something about such an obvious issue. What I will say is that these facts viewed through the lens of a s. 8 Charter analysis, would lead me to the same conclusion as the s. 9 analysis. In Mann Iacobucci J. accepted the need for a police power to conduct pat-down searches in appropriate circumstances. The officer must believe on reasonable grounds that his or her safety or the safety of others is at risk. Furthermore, the search cannot be justified on the basis of some vague concern for safety but must be based on reasonable and specific inferences drawn from the known facts of the situation.

[108] Here, as with the investigative detention, the constellation of objective facts made it reasonable for P.C. Doyle to conduct a pat-down search. The situation had escalated dramatically in a very short period of time. Although P.C. Doyle had no information as to who the driver was, this lack of information did not reasonably alleviate his safety concerns given the other factors at play. This included the route taken by the car and the fact it did not pull over within a reasonable time or distance. The officer was justified on an objective appreciation of the facts to conclude that the car was attempting to avoid the police. Then the individual quickly exited the car, would not immediately comply with police direction, and was taking objection to what was happening. In these circumstances, no s. 8 violation occurred by the pat-down search of the waistband area of the applicant.

[109] Noteworthy is the fact that in Clayton and Farmer a similar type of frisk search was sanctioned by the Supreme Court of Canada. In that case, the police stopped a vehicle after receiving some information about certain suspects who were displaying firearms. Farmer who was a passenger had protested twice before stepping out of the car and the officer became concerned about his safety. He asked Farmer to put his hands on top of the car. This was considered to be constitutional by the Supreme Court. The court approved of the following passage cited by the Ontario Court of Appeal in the appellate court below (at para. 43):

Doherty J.A. concluded that, had he found the initial stop to be constitutional, the subsequent removals and searches of the occupants would have been a justified exercise of police powers:

In my view, legitimate police safety concerns justify a "pat-down" search of occupants removed from vehicles at a roadblock where the police have information that provides reasonable grounds to believe that one or more of the individuals detained at the roadblock may be armed. I do not think the police can be put in a position where they may have to turn their back on the occupants of the vehicle without first conducting a "pat-down" search. While my conclusion that a "pat-down" search would be warranted extends the police power, it also significantly increases the interference with individual liberty occasioned by the roadblock stop. As that interference grows, arguments which are said to make the conduct justifiable must become all the more compelling. [para. 67]

[110] It is here that I move onto the final argument. It is the last sentence of this passage that I have in mind when I turn to P.C. Doyle's taking the applicant's hands behind his back in order to handcuff him. The interference with his individual liberty has taken a significant turn. Now the argument for this conduct must be "all the more compelling."

III. ARBITRARY DETENTION: WAS THE HANDCUFFING OF THE APPLICANT A VIOLATION OF S. 9?

[111] The final argument raised by the applicant is that this was a de facto arrest. He submits that to handcuff the applicant even assuming there were grounds for an investigative detention was a violation of his rights under s. 9.

[112] The Crown relies on similar arguments raised above. She submits that P.C. Doyle in attempting to handcuff the applicant was properly responding to the totality of circumstances. He had a legitimate concern that the applicant was going to flee or pose a risk to officer safety.

[113] This is about the manner of detention: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 24. While I have found that it was appropriate for P.C. Doyle to detain the applicant for investigative purposes and to physically control and conduct a pat-down search during the initial phase of this detention, the question now is whether P.C. Doyle's attempt to handcuff the applicant was reasonably necessary for him to perform his duty.

[114] There is some additional testimony about the handcuffing. P.C. Doyle testified that he felt handcuffing the applicant was necessary given the constellation of facts he had witnessed. He would not have done so if the applicant had remained in the car and the officer had a chance to speak to him. The officer's concerns were heightened enough that as a part of the detention, he wanted to handcuff the applicant until he could confirm the applicant had nothing on him that could hurt P.C. Doyle or his partner and he could confirm his identity.

[115] P.C. Doyle denied he was really about to arrest the accused. P.C. Doyle testified that he did not handcuff everyone for investigative detention but he does handcuff some. In this case, he had just done a cursory search of the applicant's waist but had not patted down his leg or shirt. Before P.C. Doyle checks the legs of detainees he first handcuffs because he does not want to be in a point of weakness with the detainee above him.

[116] P.C. Speakman testified that when the applicant went back into the car, in his view, the threat level went down. He therefore went to the passenger side to check the female passenger. Although fidgeting, she remained in the car and was compliant. P.C. Speakman did characterize the applicant as being somewhat aggressive in coming out of the car.

[117] On this issue, both parties have relied upon a number of authorities. I have reviewed the case law that has been provided to me. I must say that the jurisprudence is less than clear. There are cases that go either way. In the cases relied upon by the defence, the courts have concluded that the handcuffing of a detainee during an investigative detention amounted to a de facto arrest and resulted in a s. 9 violation. The cases of the Crown support the proposition that handcuffing a detainee is permissible during an investigative detention.

[118] Let me start with the Crown cases. A binding case on this issue is R. v. Byfield (2013), 285 C.R.R. (2d) 1 (Ont. C.A.) affirming (2012), 2012 ONSC 2781, 262 C.R.R. (2d) 251 (Ont. S.C.J.). While the facts of that case are more extreme than before me, the principle established is sound and authoritative. In Byfield three accused had exited an apartment building where there had been a shooting days earlier. Police officers who were approaching the building noticed one was dressed similar to the shooting suspect. Another thought Byfield was walking strangely, as if he had a gun in his pants, and was looking around suspiciously. Byfield was checked and when his shirt was lifted by the police, a metal object was revealed. The police supervisor yelled gun. All three men were taken to the ground. One of those men, Curry, was handcuffed and searched. All three men had guns on them. The trial judge, Code J., found that the police had reasonable suspicion to detain and search Curry given the great danger posed and how the events happened suddenly and rapidly. In response to Curry's argument that the handcuffing was a de facto arrest, Code J. rejected this argument (at paras. 114-115):

A quick pat search for weapons, as in the present case, is entirely compatible with a common law detention. Furthermore, briefly handcuffing a suspect to safely enable a pat search for weapons and/or to prevent flight has been held to be compatible with a common law detention. See: R. v. Ferris (1997), 126 C.C.C. (3d) 298 at paras. 10-17, 40 and 58 (B.C.C.A.); R. v. Cooper (2005), 2005 NSCA 47, 195 C.C.C. (3d) 162 at paras. 7-8, 44 and 51 (N.S.C.A.). Lengthier detentions while handcuffed, either in the back of a police cruiser or while the police search a house, have been held to amount to de facto arrests. See: R. v. Strilec (2008), 2010 BCCA 198, 256 C.C.C. (3d) 403 (B.C.C.A.); R. v. Orr (2011), 2010 BCCA 513, 297 B.C.A.C. 54 (B.C.C.A.).

In the case at bar, the handcuffing and the pat search for weapons of Curry and Turner lasted no more than a few seconds. They remained on the street and were not taken anywhere and confined. They were both compliant and their guns were immediately discovered. This all fits with the very definition of a common law investigative detention, pursuant to Mann.

[119] On an appeal by Curry, the Ontario Court of Appeal in an endorsement referred to these conclusions made by Code J. and found no error in them: see at paras. 7-8. The court dismissed the conviction appeal.

[120] The accused in R. v. Wilson (2011), 2011 ONSC 3046, 236 C.R.R. (2d) 90 (Ont. S.C.J.) was also handcuffed when the police detained him for investigative purposes. Unlike the more extreme facts of Byfield, here the facts are more akin to the facts in my case. Wilson attended an apartment known to the police as a crack house while the police officers were there. Although one of the occupants in the apartment had a crack pipe, the officers were not investigating any particular crime. Wilson came up to the apartment, was surprised when he saw the police answer the door, and then backed away. The officer saw the accused conceal something in his waistband. He was placed under investigative detention and then handcuffed before he was searched. Spies J. found that the constellation of objectively discernable factors provided reasonable suspicion for the police to detain the accused for investigative purposes. However, defence also argued that s. 9 was breached because of the manner of detention. The police officer had handcuffed Wilson, something Spies J. commented was not typically done before an arrest. Spies J. referred to some authority whereby handcuffs were placed upon an accused during an investigative detention and ultimately held that s. 9 was not breached by the handcuffing which was very brief in duration before the drugs were found on the search. Given the dynamic situation and the officer's concern for officer safety, Spies J. was not prepared to second guess the officer's decision. She was persuaded by these comments made by Doherty J.A. in R. v. Golub, [1997] O.J. No. 3097 (C.A.) at para. 45 in the context of an arrest:

... one cannot ask the police to place themselves in potentially dangerous situations in order to effect an arrest without, at the same time, acknowledging their authority to take reasonable steps to protect themselves from the dangers to which they are exposed. If the police cannot act to protect themselves and others when making an arrest, they will not make arrests where any danger exists and law enforcement will be significantly compromised. The frustration of the effective enforcement of the criminal law is the hallmark of the exceptional circumstances identified in Feeney. [citations omitted]

[121] The case law supplied by the applicant reach a different conclusion on their facts. Each case concluded that the handcuffing was a de facto arrest. Mann clearly holds that an investigative detention cannot become a de facto arrest. Some factors considered in these cases were the duration in which the detainee was handcuffed and the circumstances in which the accused remained while handcuffed; for instance if the accused was handcuffed for a significant period of time while the police conducted further investigation: see R. v. Tsang, [2014] B.C.J. No. 893 (Prov. Ct.) at para. 61; R. v. Whyte (2009), 2009 ONCJ 389, 196 C.R.R. (2d) 159 (Ont. C.J.) at paras 15-20.

[122] In other cases, where the purported reason for handcuffing a detainee was for officer safety reasons, the handcuffing was arbitrary if the foundation for that belief was lacking. Similarly, if the detainee remained handcuffed longer than reasonably necessary to alleviate concerns for officer safety, this again supported a finding that the detention was arbitrary: see R. v. Vulic (2012), 2012 SKQB 221, 397 Sask. R. 235 (Q.B.) at paras. 21-23; R. v. Wong (2009), 2009 BCPC 89, 191 C.R.R. (2d) 156 (B.C. Prov. Ct.) at paras. 42-43.

[123] In my opinion, the rationale in these cases is equally sound in principle as the authorities relied upon by the Crown. However, I would disagree with any suggestion implicit in these cases that it is necessary to find the handcuffing of a detainee to be a de facto arrest before the detention becomes arbitrary. To require the characterization of something as a de facto arrest adds nothing to the analysis. In my opinion, the issue of handcuffing an individual is not an either/or question to resolve. That is either a de facto arrest or not. The important question is whether on the totality of the circumstances, was the handcuffing reasonably necessary for the police to fulfill their duty? Furthermore, even if handcuffing was initially reasonable, if it continued for any duration (for example, after a pat-down search was completed), was the continued handcuffing justified. As the passage I cited from Nolet stated, the legal status of the detention must be continually re-assessed as the police gain further information.

[124] Handcuffing in and of itself does not mean the detention has become arbitrary. However, handcuffing is a serious interference with the liberty and dignity of the detainee and is normally reserved for the person who has been placed under arrest. The concern expressed in Mann that investigative detentions do not become de facto arrests is based upon the potential for the abuse of this power. Handcuffing a detainee is a red flag that the power of investigative detention may have exceeded its proper limits.

[125] From my scrutiny of the jurisprudence, I conclude that there is no general approval of handcuffing a detainee during an investigative detention. In my opinion, this is consistent with the measured and incremental common law approach to the granting of police powers that affect individual liberty. In R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, the Supreme Court of Canada approved of the police power to conduct a safety search in response to a 911 call. One of the significant factors, derived from Mann, in assessing whether the police power existed and the limits of that power was the extent of the police infringement on individual liberty. The Court said the following about that (at para. 47):

Second, the actions of the police in conducting the search must be scrutinized to determine whether the search was carried out reasonably. To a certain extent, this analysis relates to the second stage of the Waterfield test. If the extent of the infringement is greater than what is required to search for weapons, the search will not be authorized by law. At this point, however, the overall reasonableness of the search must be assessed in light of the totality of the circumstances (Mann, at para. 44). It is necessary to consider not only the extent of the interference, but how it was carried out. This inquiry turns on whether the search was minimally intrusive on the privacy interest at stake. In other words, the manner in which the search was carried out must have been reasonably necessary to eliminate any threat.

Likewise, in my opinion, if the circumstances of an investigative detention objectively give rise to concerns for safety or flight, the manner in which those concerns are addressed by the police must be minimally intrusive of the liberty interests underlying s. 9 of the Charter.

[126] In assessing each fact situation as they arise, there are countervailing interests that need to be balanced. As recognized in Byfield and Wilson, it is vital that judges appreciate the often dynamic and unpredictable situations faced by police officers. The men and women who become police officers are just doing their jobs. A very important job which puts their safety in peril for our own protection. These men and women have families. Families that want to make sure they come home safely each day their shift is over. I would be wrong to second-guess these brave men and women who make split decisions sometimes in volatile situations, decisions intended to protect their safety and the safety of those around them, simply because in the calm detachment of a courtroom or a judicial chambers I feel they perhaps acted too hastily.

[127] But… and this is an important "but"… because I have the luxury of that calm detachment, I must consider the perspective of the detainee in assessing these decisions. While the officers are entitled to be secure and safe, when their actions significantly interfere with the liberty and security of the person of the detainee, reasonable limits must be placed upon how far the officers can go despite the acknowledgment that the decisions may need to be made immediately and without full information. Otherwise, whatever the police do whenever they feel threatened, will result in judicial deference and approval. Otherwise, from the detainee's point of view, the actions may be high-handed, arbitrary and ill-motivated. When objectively they are, then the constitutional limits placed on the police have not been respected. If the practice of handcuffing detainees becomes routine and judicial supervision too lax, this can only have a corrosive effect upon the relationship between the police and the people they serve.

[128] Furthermore, the justification that handcuffing was necessary for officer safety, is easy to resort to, difficult to disprove, and can hide all manner of both conscious and subconscious discriminatory attitudes. Although said in the context of what constituted investigative detention, I find that these comments of Doherty J.A. in R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.) at para. 61 similarly instructive when it comes to the manner of that detention:

A "hunch" based entirely on intuition gained by experience cannot suffice, no matter how accurate that "hunch" might prove to be. Such subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee's sex, colour, age, ethnic origin or sexual orientation.

In my opinion, for the same compelling policy reasons, handcuffing a detainee should not be readily resorted to. It should not be done as a policy or a regular practice. It must be rigorously justified by the objective facts. Any subjective concern by the officer about safety even if based upon experience, will not on its own suffice.

[129] Just to demonstrate, let me relate this exchange that took place in court. During oral submissions, I asked the Crown whether assuming all the facts in this case were the same, if it was a middle-aged white woman rather than the applicant, a young black man, who "jumped" out of the Malibu that night, would P.C. Doyle have decided to handcuff the detainee? In concluding the way I do, I am not at all imputing any ill-motivation on the part of the officer. And despite the Crown's adamant response that the officer would have handcuffed the middle-aged woman as well, I am disposed to think not.

[130] Looking at all the circumstances, I find that P.C. Doyle's attempt to handcuff the applicant was a violation of s. 9. Clearly, he was entitled for his own safety to conduct a pat-down search of the accused. However, it was his view that he needed to handcuff the applicant to complete this pat-down search given his concern for officer safety and flight risk. I disagree. I find handcuffing was not warranted in this case.

[131] First of all, while a search for weapons was permissible, it still makes a difference to me that P.C. Doyle had no information that the driver was either armed or involved in a criminal offence that could raise the risk of him carrying a weapon. They had no information whatsoever about this. While the fact they did not know what they could be facing was worrisome, a pat-down search was an appropriate response to this.

[132] In addition, the surrounding circumstances do not support a resort to handcuffs to prevent flight or ensure officer safety. While the applicant did not stop and could reasonably be viewed as trying to avoid the police, the officers did not have reasonable and probable grounds that he was. They had a reasonable suspicion and that was all. There were other potential innocent explanations for the driving as recognized by the officers in their testimony. The fact the applicant exited the vehicle and that he did not immediately comply with commands to get back into the car were again worrying and provided additional grounds to detain and conduct a frisk search, but these facts cannot be considered in isolation. By the time P.C. Doyle attempted to handcuff the applicant, the applicant had complied with a number of demands made of him. P.C. Doyle was able to see he had nothing in his hands both while he was standing by the car and while he was in the car. The applicant was compliant and not hostile. It is true he objected that he did not do anything wrong, but this was not done in an aggressive fashion. Furthermore, P.C. Doyle admitted that the fact that the applicant "jumped" out could have been an individual response made without appreciation of the effect such action could have on police officers. In addition to all this, P.C. Doyle was not alone. His partner P.C. Speakman was also present and could back him up. P.C. Speakman did investigate the female passenger who was cooperative. P.C. Speakman's own view of the threat level was that it had diminished by the time P.C. Doyle decided to handcuff the applicant. There was also another police car on the way. Further, while the applicant's driving evinced a potential intention to flee, by the time P.C. Doyle had control of him, the applicant had done little or said nothing that could be viewed as him trying to flee the police. While P.C. Doyle believed the applicant was fidgeting and was scanning the area for potential escape, I find ultimately that not too much weight can be placed on this. I have seen the video and the conduct is ambiguous. Additionally, as I have already said, this testimony though honestly given is the officer's subjective interpretation of subtle behaviour recollected after having witnessed the applicant actually taken flight. Finally, the officer himself had testified that he had done a cursory search of the waistband and had found nothing. This should have gone a considerable distance in satisfying the officer of his safety concerns.

[133] While P.C. Doyle testified that he does not like to conduct a pat-down search of the legs with the detainee above him, this cannot constitute a reasonable explanation for the handcuffs. If it did, it will always constitute a valid reason to place a detainee in handcuffs before a pat-down search is conducted. The legal authorities do not countenance this kind of justification.

[134] The last thing I would like add is that after looking at the video, while I cannot see into the mind of P.C. Doyle, the way he interacted with the applicant at the time, his tone of voice, and the almost routine manner in which he was gripping the applicant and fishing for his handcuffs, do not support any purported heightened anxiety on P.C. Doyle's part that the applicant might flee or pose a risk to the safety of the officer.

[135] In conclusion, I find that at the point in time when P.C. Doyle physically drew back the arms of the applicant in order to handcuff him, the manner of the detention became arbitrary and a violation of s. 9 of the Charter.

[136] At this point, I will again briefly allude to the intersection of the s. 8 and s. 9 interests raised on the facts of this case. Although again s. 8 was not raised by the applicant, I find that the analysis tracks the s. 9 analysis. Was the manner of search unreasonable? Was it minimally intrusive of the privacy interest? I find that the manner of search was unreasonable in that a frisk or a pat-down search could have been conducted without handcuffs. The very nature of the frisk search is that it is brief and minimally intrusive. It is normally conducted with no restraint and with the cooperation of the detainee. To permit handcuffing a detainee in order to bring any potential risk down to zero is to tolerate a practise that is in its nature and intrusiveness inconsistent with what Mann permits. On the facts of this case, there was nothing objectively supporting P.C. Doyle's decision to handcuff the applicant.

D. SECTION 10: RIGHT TO BE ADVISED AND RIGHT TO COUNSEL

[137] The applicant submits that P.C. Doyle did not advise him of the reason for his detention and provide him with his right to counsel. With respect to the latter issue, there is a ready answer. There was simply no time. P.C. Doyle testified this was the case. I accept his testimony. It was mere seconds before the applicant bolted. There was no time.

[138] With respect to s. 10(a), I find that the applicant was told he was under detention and he was told in very plain language why. P.C. Doyle told the applicant that he was under detention for trying to "scoot". The applicant understood what was meant to the extent he denied doing so. This was all that was really required in the circumstances: see Mann at para. 21.

[139] The applicant argued that P.C. Doyle failed to advise him that he was also being detained under the HTA. This is true but P.C. Doyle testified that he was going to have that conversation after his concerns for officer safety was alleviated. He intended to do a search for weapons and when it became calmer, he would explain the HTA aspect of their investigation. I also note that at the time there was a freight train passing nearby. Before matters reached that point, again the applicant had dashed off and allegedly assaulted the officer.

[140] I have very little difficulty accepting the officer's testimony on this. Before anything further could be told to him, the applicant decided to quickly exit the scene. In any event, the main reason for the nature of the detention had already been explained to him.

[141] In these circumstances the applicant has not established any violation of s. 10(a).

E. SECTION 24(2): REMEDY

[142] The applicant submits that the prints left on the top of the Malibu should be excluded from evidence because its admission could bring the administration of justice into disrepute. To see if he has met his onus, I must assess the three lines of inquiry set out in Grant.

I. SERIOUSNESS OF THE CHARTER-INFRINGING CONDUCT

[143] I find the breach of s. 9 by P.C. Doyle to be minor. It was far from egregious. He did not wilfully disregard the applicant's rights nor was he reckless. The situation was very dynamic and his decision to attempt to handcuff the applicant must be assessed with this in mind. P.C. Doyle was facing unknowns and was legitimately concerned about his safety. There was little time for detached reflection. He made a mistake. But this error in judgment is most understandable given the situation he faced. That situation amounted to extenuating circumstances.

[144] Also, on these facts, the breach was effectively technical. I say this for two reasons. Firstly, the applicant was already properly detained pursuant to an HTA investigation and a criminal investigative detention. The officer was properly exercising his powers as he dealt with the applicant. It was only at the end of this interaction did the detention become arbitrary when P.C. Doyle drew back the applicant's arms in order to handcuff him. The arbitrary detention was fleeting in the few seconds before the applicant fled. Secondly, the applicant was not actually handcuffed at all. P.C. Doyle was still fumbling to get the handcuffs out. As a result, the most P.C. Doyle did was to momentarily move the applicant's arms behind his back.

[145] Of course I appreciate that P.C. Doyle did intend to handcuff him. He also did not elaborate how long the applicant was going to remain handcuffed although I was troubled by his testimony that he was going keep the applicant cuffed until his safety concerns were alleviated and he could determine the applicant's identity. I see no valid reason to keep an individual handcuffed under any circumstance once safety concerns are relieved. To keep the applicant handcuffed until his identity was ascertained is simply not justifiable. But the fact of the matter is P.C. Doyle never did handcuff the applicant. Charter applications must be assessed based upon what did happen and not what could have happened. I find applicable the comments made in Clayton and Farmer, where the same conclusion was reached with respect to an allegation of a s. 8 violation (at para. 48):

The officers' safety concerns also justified the searches incidental to the detention. The trial judge based his finding that Farmer's and Clayton's s. 8 rights were violated on his conclusion that the decision to search them was made before the officer had the objective grounds to do so. This, it seems to me, ignores the fact that the relevant time is the time of the actual search and seizure. By that time, the officers had the requisite subjective and objective grounds. Intention alone does not attract a finding of unconstitutionality. It is not until that subjective intent is accompanied by actual conduct that it becomes relevant. We would otherwise have the Orwellian result that Charter breaches are determined on the basis of what police officers intend to do, or think they can do, not on what they actually do. The Charter protects us from conduct, not imagination, and even a benign motive may not justify objectively unreasonable police conduct.

See also Amofa at para. 29.

[146] This line of inquiry favours the admission of the evidence. There is no need for me to disassociate the court from this police conduct.

II. THE IMPACT ON THE CHARTER-PROTECTED INTERESTS OF THE ACCUSED

[147] The second line of inquiry also favours the admission of the evidence. The interest at stake here is the liberty interest of the applicant. Here, the fact that the applicant was properly detained mitigates the effect of the violation. He was not free to go anywhere. Further, his liberty interest was properly limited by actions that the police were entitled to take to ensure their safety. Finally, again, the actual time he spent where his liberty was arbitrarily constrained was a matter of a few seconds.

[148] In addition to this, the causal connection between the violation and the evidence to be admitted is weak. It is sufficient enough given the temporal connection for the evidence to be considered for a s. 24(2) analysis. However, the print was left on the roof of the car before the applicant was arbitrarily detained. It was left at a time when P.C. Doyle properly was in the process of conducting a pat-down search. The print would have been discovered regardless of the s. 9 violation.

[149] In these circumstances, there was very little interference with the applicant's liberty interest caused by the violation.

III. SOCIETY'S INTEREST IN THE ADJUDICATION ON THE MERITS

[150] The final line of inquiry also favours admission. The print evidence is reliable evidence. Given the circumstances, it is probative evidence that the driver of the car left the print there. P.C. Speakman testified that there was dust already on the roof of the car. Therefore, even before the prints were lifted by fingerprint powder, the prints were already visible. As the photographs show, the prints were taken from the exact location where the applicant had his arms placed, palm flat, on the roof of the car during the pat-down search.

[151] Finally, the evidence is vital to the Crown's proof of its case. While the Crown did not concede that they would be unable to prove identity without it, it is obvious that their case would be significantly weakened. The driver of the Malibu was unknown to the police. The circumstances in which they had a chance to view him were difficult. The process whereby P.C. Doyle and P.C. Speakman came to determine the identity of the driver is flawed. There was no lineup. The officers essentially relied upon hearsay information from the passenger and then did a search of mug shots on their police computer. Their in-dock identification of the applicant is without value. Looking at the whole of the case, I am satisfied that exclusion of the evidence would significantly impair the truth-finding process of this trial.

IV. FINAL BALANCING AND CONCLUSION

[152] Given that all three lines of inquiry favour admission, it is not a surprise that when I balance these factors I conclude that the exclusion of this evidence would bring the administration of justice into disrepute. The police conduct amounted to an insignificant breach in extenuating circumstances. The breach had little impact on the liberty interests of the applicant and is unrelated to the obtaining of the evidence. Finally, it is reliable evidence that is indispensable to the truth-finding process of the trial.

[153] On a final note, had I considered a s. 8 violation in my s. 24(2) analysis, my conclusion would have been the same. The infringement would still be minor. The privacy interest of the applicant was not adversely affected. The print he left on the top of the car carried little expectation of privacy and the search and seizure of it was non-intrusive. Finally, society's interest in the adjudication on the merits would have remained the same.

[154] The Charter application is therefore dismissed.

Released: April 26, 2016

Signed: "Justice S. Nakatsuru"

[1] Interesting in the case is that Spies J. concluded on the section 8 challenge that officer violated this section by going beyond a pat-down search and reaching into the waistband of the accused where he found drugs. She reasoned in part that because the accused was handcuffed, officer safety concerns were minimized and that there was no reason to exceed a minimally intrusive frisk search. The evidence was ultimately excluded under s. 24(2).