Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2021·05·12 COURT FILE No.: Toronto 4817 998 20-75001676

BETWEEN: HER MAJESTY THE QUEEN

— AND —

MCAIUM CHAD AARONS

Before: Justice Richard Blouin

Heard on: January 18, 19, 20, 21, 22 and 25, 2021 Submissions made: April 9, 2021 Reasons for Judgment released on: May 12, 2021

Counsel: Alexander Merenda, for the Crown Tom Shoniker, for the defendant McAium Chad Aarons

BLOUIN, J.:

[1] Just before 10 p.m. on April 7, 2020, a young man entered a convenience store, produced a handgun, and demanded money from the female complainant. He was unsuccessful, as her husband chased him out of the store. The complainant called 911 to report a robbery with a firearm at 9:59 p.m. The suspect description given, and then broadcasted over police dispatch, was as follows:

• male, white;
• 25 – 28 years of age;
• 175 cm tall;
• skinny build;
• wearing black hat, black pants, blue shirt, brown sunglasses.

[2] Many police officers attended the area of the attempted robbery. Constable Akgul and Constable Mehmoud were two of those officers. Both were inexperienced, having less than one year on the street. Together they investigated the poorly lit trail through Dentonia Park to the Victoria Park subway and back. They spoke to numerous people in the 20 minutes before they came upon the defendant just west of the subway station.

[3] Around 10:20 p.m., the defendant, wearing dark clothing and a blue surgical mask, walked along the trail eastward toward the Victoria Park station. The two uniformed officers were on the same path approaching from the opposite direction. As they converged, both officers physically engaged the young man and took him to the ground. During the struggle to handcuff, a loaded, semi-automatic firearm fell from the young man’s waistband. Once again, this Court must consider the limits of police authority to detain a young man of colour on the street.

[4] The primary question both counsel agreed that this Court must consider is that which must be answered in all cases of citizen detention by police: did the police have a reasonable suspicion the citizen was involved in a recent or ongoing criminal offense? If not, the detention was arbitrary and in contravention of section 9 of the Charter. In addition, upon detention, if one is found, did the police comply with section 10 informational rights regarding counsel. And finally, was the defendant subject of an unlawful search under section 8. If Charter rights were violated, the Court must then engage in a section 24(2) analysis to determine whether the evidence should be excluded. The defendant made application to exclude the firearm evidence based upon violations of the three mentioned sections.

[5] The Crown called five police officers to testify. An agreed statement of facts was made Exhibit 1. There is no issue that the gun seized was a loaded firearm with a barrel length of 130 mm and the serial number removed. Six bullets were in the magazine. Mr. Aarons did not have a licence or a firearm acquisition certificate. The defendant did not testify, but it was also agreed that police later determined that he did not match the description of the robbery suspect and that he was not involved in the robbery.

The Evidence of Constable Mustafa Akgul

[6] At a distance of 40 - 50 metres, Akgul observed the defendant, as he and Mehmoud were walking westbound. The defendant was wearing a black, puffy jacket with the hood up, black pants, a blue medical mask and white shoes. Akgul observed him to be a “male, white, light skin”.

[7] Importantly, Akgul was able to observe a noticeable bulge on the left side of the male, where his hands entered his pockets. The defendant was favouring the left side as he walked towards police. The defendant’s right hand came out of his pocket with a cell phone, which then allowed Akgul to observe the bulge on his left side more prominently. All of the observations were made during a 5- to 10-second span, as each party walked towards the other. At this point, Akgul maintains that he thought of the defendant as a potential witness. Then, he asked his partner if he saw what Akgul just saw (which was “some characteristics of a person carrying a firearm”). Mehmoud said, “yes”.

[8] As the police and the defendant approached, Akgul decided to engage. From a distance of 3 to 5 feet, he spoke to the defendant. He testified that the following conversation took place:

Accused: Mom, I’m getting stopped by the police. Akgul: Can you take your hand out of your pocket for me? Accused: Am I being detained? Akgul: Yes, we are looking for someone. Accused: Do I match the description? Akgul: Yes, you do.

[9] Akgul was asked by Mr. Merenda why he believed the defendant matched the description of the robbery suspect. He maintained that he perceived the defendant to be a “white, fair-skinned male” with dark clothes and a similar height and build to himself (5’ 9” and slim).

[10] At the point of the discussion above, Akgul then noticed that the defendant was “blading” his body. When both officers asked the defendant to remove his hand from his pocket, Akgul observed the defendant to be touching and moving something inside his left pocket. He thought the defendant was “confrontational” and non-compliant. Akgul became concerned for officer safety and safety of the public so he grounded the defendant. A handgun then fell from the defendant’s clothes when he was turned over, in an attempt to secure him with handcuffs.

[11] Akgul provided the Court three reasons for putting the defendant under investigative detention. Firstly, he matched the description of the suspect. Secondly, he displayed characteristics of an armed person. And then, in cross-examination, Akgul maintained that he stopped the defendant in order to speak to him as a potential witness.

The Evidence of Constable Noman Mehmoud

[12] Constable Noman Mehmoud’s evidence regarding the police interaction with the defendant differs in some material respects from that of Akgul. Mehmoud maintained that the police were in the area of Victoria Park subway station to investigate a “person with a gun” radio call regarding a recent convenience store robbery. That description was: male, white, 25-28 years of age, skinny build, 175 cm tall (5’ 9”), black hat, blue shirt, black pants, brown sunglasses.

[13] Mehmoud and Akgul talked to many people in the 20 minutes before they came upon the defendant. Mehmoud testified that the police investigation was focussed on three avenues:

1. the suspect, based upon the description broadcast;
2. witnesses to the suspect’s flight from the robbery scene;
3. persons matching the characteristics of one in possession of a firearm based upon training.

[14] From a distance of approximately 40 metres, Mehmoud first saw the defendant walking eastbound on a poorly lit path towards him. He and Akgul were walking westbound. This person was wearing dark clothing with something blue covering his face. His hands were in his pocket and he was walking with “a little bit of a limp”. He pulled out his cell phone and said, “Hey Mom”. Mehmoud still considered him to be another potential witness at this point.

[15] As the defendant and police moved closer to each other, Mehmoud made some further observations. At approximately 30 metres and closing, the lighting was slightly better, and he observed the defendant wearing a puffy, black jacket with the hood up; a bulge from inside the jacket where the left hand was. The bulge appeared to require some adjusting.

[16] At the 30 metres and closing point, the following was captured by audio recording:

Akgul: Hey, how are you doing? Hang on for a sec. Just take your hands out of your pocket for me. Accused: Mom, I’m getting stopped by the police. Akgul: Can you take your hands out of your pocket. Accused: Am I being detained? Akgul: Yeah, we’re looking for someone. Accused: Do I match the description? Akgul: You do; that’s why we’re talking to you.

[17] As the defendant and the police walked towards one another, the audio recording cut out. Mehmoud estimated that the defendant was 10 metres away when he asked police if he was being detained. At that point, Mehmoud further observed the defendant taking shorter strides on his left leg than his right, avoiding eye contact, doing “security taps and re-adjustments” with his left hand inside his jacket.

[18] Mehmoud told – and he heard Akgul telling – the defendant to take his hands out of his pocket “multiple times”. He observed the defendant to have a large build but could not discern the colour of his skin. As a result of the following additional observations of the defendant, Mehmood believed the defendant had a gun. The observations behind that belief were: not cooperating with multiple requests to remove his hands from his pockets; not making eye contact; becoming louder by yelling into the phone, “Mom, I am not going to make it home today, come here now”; taking a stutter stop; and moving his left hand down inside his jacket.

[19] Mehmoud became “really scared” at this point. He closed the gap and took the defendant to the ground. He testified that he had a reasonable suspicion that the defendant was carrying a firearm and had to detain him to investigate. He believed that the defendant was about to pull out that firearm and shoot either him or his partner. He was not sure whether it was he or Akgul that first made contact with the defendant. He conceded that the defendant did not match the description of the robbery suspect. He also did not recall Akgul asking him if he saw the defendant exhibiting suspicious behaviour as they approached.

[20] Mehmoud was aware that he was required to comply with section 10 of the Charter and provide the defendant, upon arrest or detention, his rights to counsel. It was only when the defendant was finally handcuffed (it took six police officers) and delivered to the police vehicle at 10:40 p.m., several hundred meters away, that he was able to read the right to counsel and caution.

Sections 9 and 10 of the Charter of Rights

[21] The law required regarding police detention of citizens was reworked in R. v. Grant, 2009 SCC 32, wherein the Supreme Court of Canada laid out the parameters of a police detention in paragraph 44.

[44] In summary, we conclude as follows:

1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

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

   (a) The circumstances giving rise to the encounter as they 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.

   (b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

   (c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[22] As determined in R. v. Suberu, 2009 SCC 33, (released concurrently with Grant), the section 10 right to counsel arises immediately upon detention whether or not the detention is solely for investigative purposes.

Findings

[23] In many cases, the line between police interaction with citizens which does not attract Charter scrutiny and investigative detention (which does) is not clear. However, in this case, when the defendant asked if he was being detained and was told that he was, that line is very clear. In my view, detention actually occurred seconds earlier in the conversation between the defendant and Akgul when he told the defendant to hang on and remove his hands from his pockets. Any young man stopped on a dark trail by police would not reasonably conclude that leaving was an option. At the point of detention, the police are obligated to provide the defendant section 10 rights. On their evidence, it is clear when the defendant was told he was being detained, they did not.

[24] Akgul’s contention that he detained the defendant because he matched the description of the robbery suspect was demonstrably unsupported by other police witnesses’ evidence, or by any obvious factual underpinning. The defendant is a black male who is not 5’ 9” and is not skinny. He was not wearing a blue shirt or black hat, nor did he have brown sunglasses on. I appreciate a suspect could alter their appearance in the minutes after the robbery, but not his skin colour and not his size. Other police witnesses, including Akgul’s partner Mehmoud, disagreed with Akgul that the defendant matched the description of the robber. I do not believe that Akgul detained the defendant based on a reasonable suspicion that he was connected to the robbery as he testified to doing.

[25] In addition, I have other concerns regarding Akgul’s evidence on the issue of reasonable suspicion. When asked by the Crown as to the reasons for detaining the defendant, he gave two. Firstly, the defendant matched the description of the robber, and secondly, the defendant was displaying characteristics of an armed person. Unfortunately, Akgul had also added a third reason earlier in his evidence in-chief and then later in cross examination. When he first saw the defendant, and even up to the position of a few metres away, Akgul maintained that he wanted to speak to the defendant as a witness. Even at the point, where the defendant was asked to take his hands out of his pocket, Akgul contends that he did that “so that we could have a reasonable conversation in regards to if he had witnessed anything”. He maintained in cross-examination that he engaged the male as a witness.

[26] In the final analysis, it is not clear to me what Akgul’s reasons to detain were. He eventually gave three. Two of those are impossible to reconcile. If the defendant matched the description of the robber, he would not be talking to him as a witness. There were other inconsistencies and incongruities in his evidence, but this problem strikes at the crucial determination I must make. As a result, I find Akgul to be an unreliable witness. I rely on his evidence on points that were confirmed by other reliable witnesses or other reliable evidence.

[27] Constable Mehmoud’s evidence differed from Akgul’s in many respects. Most significantly, he was of the view that the defendant did not match the description of the robbery suspect. That view was confirmed by other police observations, including Constable DeGuerra who estimated the defendant to be 6’0” tall and weighing 250 lbs. Mehmoud physically detained the defendant only when he had a reasonable suspicion that the defendant was carrying a gun. I accept Mehmoud’s evidence. His reasons to take the defendant to the ground were based upon his continued observation of the defendant displaying increasingly alarming signs of gun possession as he approached. He outlined many, but I find that the defendant’s adjusting of the inside of his pocket, the movement of his body to shield the bulge on his left side (a.k.a. blading), and the repeated ignoring of requests to remove his left hand from his pocket, as three substantial aspects of “reasonable suspicion”. However, at the point of earlier detention, when Akgul told the defendant he was being detained, I conclude that neither officer possessed a reasonable suspicion that the defendant was connected to any offence. That came seconds later after more observations were made. The detention was unlawful and both s. 9 and s.10 were violated.

[28] Since the defendant argued that a third constitutional right was violated (section 8 unreasonable search), I must avert to it, but I can do so quickly. I’m not sure that the discovery of the firearm was part of a search at all. The police were struggling with the defendant to gain control and handcuff. When he was turned over for that purpose, the gun fell out. Even if one concludes that to be a search, for the reasons I will speak of later in the judgment, there was no section 8 breach.

Section 24(2) of the Charter

[29] Having found violations of both section 9 and section 10 of the Charter, I must analyse the three factors outlined in Grant to determine admissibility of the gun evidence.

(a) Seriousness of the Charter-infringing state conduct. (b) Impact on the Charter-protected interests of the defendant. (c) Society’s interest in an adjudication on the merits.

(a) Seriousness of the Charter-infringing State Conduct

[30] This Court must assess, in this line of inquiry, whether disrepute of the administration of justice would occur if the evidence was admitted and thereby effectively condone state deviation from the rule of law. The more serious or deliberate the state conduct that led to the Charter violation, the greater the need for courts to dissociate themselves from that conduct. The seriousness of conduct may range from inadvertent or minor violations of the Charter, to a wilful or reckless disregard of Charter rights.

[31] In my view, the original detention of the defendant was a fiction. Constable Akgul told him he was being detained because he matched the description of the robbery suspect when all available evidence suggested that he looked nothing like him. That alone is a wilful disregard of Charter rights, which is obviously at the serious end of the range of police conduct.

[32] But Akgul made it worse when he testified. Perhaps because his ruse was captured on audio tape, he felt he needed to continue it in court. But to hedge his bets, he added two other reasons for detention. Not only was the defendant a suspect, but he was also detained because Akgul wanted to talk to him as a witness. According to Akgul, a third reason for detention was added: the defendant was displaying signs of firearm possession. This is a serious and deliberate violation of Charter rights, and to testify under oath and manufacture reasons for detention, militates strongly toward an exclusion of the evidence.

(b) Impact on the Charter-protected Interest of the Defendant

[33] The framework for this analysis is laid out in paragraphs 76 - 78 of Grant. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. At the more profoundly intrusive end of the range of Charter breaches, Grant provides examples such as a statement to police obtained in violation of the right to silence or the right to counsel. Any unreasonable search may impact on privacy interests and human dignity.

[34] In my view, although I would not describe the section 9 and 10 breaches as technical, they were, without question, fleeting. Within seconds of the breaches, the police became possessed of a reasonable suspicion that the defendant was carrying a firearm. No evidence was obtained or uncovered as a result of the Charter breaches. Although there was a significant gap (approximately 15 minutes) before the defendant was provided with section 10 rights, this was a volatile arrest, that required six officers, of a young man that did not want to listen.

[35] This investigation began with observations of the young man approaching the police on a path resulting, as I have found, in an unlawful detention as he got closer. However, nothing resulted from that “detention”. The defendant continued to approach in the same way he did before the detention. He displayed further indicia of one carrying a firearm right up to the point the police officers, together, feared for their safety and took him down. I find Aaron’s repeated refusal to remove his hands from his pocket, as well as movement within the pocket, significantly added to both officers’ suspicion. In addition, I find the evidence that both officers acted essentially at the same moment in taking the defendant to the ground supports the inference that they both reasonably suspected, as they testified to, that the defendant possessed a firearm. And might possibly use it.

[36] Because I find that the unlawful detention itself provided no evidence and lasted only seconds, I characterize it as fleeting and having little to no impact upon the evolving interaction. At the time of the defendant’s grounding, both officers had acquired observations of numerous characteristics that their training taught them were connected to one in possession of a firearm. The search which uncovered the firearm, (if one concludes there was a search), occurred after the police possessed reasonable suspicion that the defendant was carrying a firearm, and it was reasonably necessary to effect public and officer safety. There was no section 8 breach. In other words, the gun would have been discovered pursuant to a lawful investigative detention mere seconds after the breaches. Discoverability retains a useful role in assessing the actual impact of the breach of the Charter-protected rights of the accused (Grant, paragraph 122). As a result, this second factor strongly favours admission of the evidence.

(c) Society’s Interest in an Adjudication on the Merits

[37] The evidence obtained here (a loaded, semi-automatic firearm) is reliable, and its discovery is not just part of the case for the Crown; it is the case for the Crown.

[38] As recently indicated in the dissent of Brown, J. in R. v. Omar, 2018 ONCA 975 – this dissent having been adopted on appeal in the Supreme Court of Canada – the concept in Grant that judges must focus on the “long-term repute of the justice system”, requires a balancing of factors. Paragraphs 134 through 138 of Omar are instructive regarding cases of possession of illegal handguns.

[134] In the present case, there was no evidence of any “short-term public clamour” for a conviction of Mr. Omar. I suspect that it was a media “non-event”: just another young drug-dealer carrying a concealed illegal handgun. A chronic, everyday event in most Ontario urban centres.

[135] However, a community’s desire to live free from the lethal threat of illegal handguns is not the product of a community “wrought with passion” or “otherwise under passing stress due to current events.” It is a most rational desire for a necessary component of the rule of law - the existence of a safe and ordered community in which individuals have the ability to exercise their liberty rights free from fear and threat of harm to their persons. As Grant teaches, the term “administration of justice” in s. 24(2) is not limited to “the processes by which those who break the law are investigated, charged and tried”, but it more broadly “embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole”: at para. 67 (emphasis added).

[136] We judges must never forget the impact that our decisions have on the day-to-day reality in which most of our fellow Canadians live – and from which we are by and large insulated.

[137] I completely agree with my colleague that it is “fundamental to our social order that the police, like all other state actors, perform their duties in accordance with the law and that they respect Charter rights”: at para. 55. At the same time, it is equally fundamental to our social order that Canadian citizens can walk their public streets and exercise their Charter liberty rights without finding themselves at the wrong end of an illegal handgun. In R. v. Chan, 2013 ABCA 385, 561 A.R. 347, the Alberta Court of Appeal put the matter as follows, at para. 49: “[W]e consider society’s interest in the adjudication of the merits to be greater where the offence is one that so literally involves the safety of the community.”

[138] It is, of course, a matter of balance under s. 24(2). But the balance necessary to offer Canadians a peaceful community in which to live is not achieved by neutering the third Grant factor and treating illegal handguns as fungible with any other kind of evidence for the purposes of a s. 24(2) analysis.

[39] Obviously, community safety is engaged by adjudicating firearm cases on their merits. This third factor overwhelmingly militates towards inclusion of the evidence.

Conclusion

[40] When all three factors are weighed, I conclude that admission of the firearm evidence would not bring the administration of justice into disrepute. It will be admitted.

Released: May 12, 2021 Signed: “Justice R. Blouin”