ONTARIO COURT OF JUSTICE

DATE: 2024·12·17 NEWMARKET

BETWEEN:

HIS MAJESTY THE KING

— AND —

ANSON KEUNG

JUDGMENT

Evidence and Submissions Heard: December 4,5, 2024. Delivered: December 17, 2024.

Counsel: Mr. Javier ARVIZU.................................................................................. counsel for the Crown Mr. Joseph GIULIANA...................................................................... counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Keung was arrested just after he stepped out of a car. The officers addressed him as Tony Zhang. Mr. Keung told the officers that Zhang was the front passenger. Two officers went to the front of the vehicle and removed the front passenger and placed him under arrest. Mr. Keung’s status was revised to an investigative detention until DC Boogard could confirm the identity of both parties. PC Willis conducted a pat-down search of Mr. Keung and found a loaded handgun in Mr. Keung’s pocket.

[2] The Crown proceeded on amended counts 2,5 and 6 on this information charging Mr. Keung with carrying a concealed firearm s 90(2), occupying a motor vehicle knowing a prohibited weapon was present s 94(2), and possession of a loaded restricted firearm without authorization s 95(2).

[3] The Crown has proved all three counts alleged. The dispute in this case centres around the detention and pat-down search of Mr. Keung after a second person was identified as the suspect the police were seeking. The defence submits that the police powers to detain and investigate Mr. Keung ended there. His subsequent detention was arbitrary and contrary to s 9 of the Charter. The pat-down search was unlawful and contrary to s 8 of the Charter. The defence applies for exclusion of the handgun and ammunition evidence pursuant to ss 24(1) and 24(2).

[4] The Crown submits that the defence position draws artificially neat lines in what was a fast-changing situation. The detention of Mr. Keung continued briefly after a second party was also identified as Mr. Zhang so that the officers could confirm the identification of both parties. The officers properly revised Mr. Keung’s status to an investigative detention. A limited pat-down search for officer safety consistent with that detention immediately revealed the loaded gun. In the alternative, if the officers missed the mark, it was not by much. The firearm should not be excluded.

Section 9 – Arbitrary Detention

[5] Detective Constable Boogard was investigating a person named Tony Zhang. Mr. Zhang was on release for firearms charges. There were reasonable grounds to arrest him for two further charges of theft and one charge of breaching the conditions of his house arrest bail.

[6] DC Boogard saw two females and one male exit a house and board a BMW with Maryland plates that was known to be used by Mr. Zhang. The BMW stopped in a residential area and the male exited the right rear passenger side. DC Boogard was travelling ahead of the BMW. When the male exited, he turned his vehicle to the left and blocked the roadway. He was still several car lengths away.

[7] PC Willis was in uniform in a marked vehicle. He pulled up just as the male walked behind the BMW towards a residence. He told the male to stop, and the male complied. Within 5 seconds DC Boogard arrived at the back of the car as did DC Anderson. They placed the male under arrest believing he was Tony Zhang. The video does not record the conversation at the time of arrest, but DC Anderson testified that the male said his name was Anton and not Tony. Tony was in the front passenger seat of the car.

[8] DC Anderson went to check the passenger side of the car along with PC Willis. He saw that the person in the blanket wrapped like a shawl with long hair was not a woman but a male who looked like Mr. Zhang. He directed Mr. Zhang out of the car and placed him under arrest.

[9] DC Boogard was on the driver’s side of the vehicle for officer safety watching the driver and the interaction with the front passenger. He testified that he wasn’t sure of the identify of the other arrested party. He went back to Mr. Keung and advised PC Willis that the arrest was now continuing as an investigative detention. He directed Constable Willis to conduct a pat-down search for officer safety. PC Willis reached towards Mr. Keung’s coat pocket and immediately felt the solid angular outline of a handgun. A careful search removed the handgun and Mr. Keung was arrested.

[10] The defence submits that once DC Anderson arrested Zhang, the other officers had no authority to detain Mr. Keung. DC Boogard’s evidence should be rejected as incredible and a post-hoc rationalization of a detention he now realizes was illegal. The Crown points to the speed of the interaction and the uncertainty which led to two arrests in rapid succession. It was reasonable for DC Boogard to continue his arrest as an investigative detention until the identify of both parties was confirmed.

[11] If DC Boogard had been on the same side of the BMW as DC Anderson in close face-to-face contact with the front passenger, he too may have formed reasonable grounds to believe that the passenger was Mr. Zhang. But DC Boogard was on the other side of the vehicle looking at the driver and DC Anderson while he was still responsible for Mr. Keung who was under arrest. He testified that he was not certain as to the identify of either party.

[12] Up to that point he’d thought the front passenger was a woman. That’s credible given the shawl/blanket that obscured Mr. Zhang’s features. Mr. Zhang was also wearing pajamas or loose style black pants with a pattern that appeared identical to the loose patterned pants worn by the female driver.

[13] All of this happened in a short time. From the moment DC Boogard first arrived by Mr. Keung to the pat-down search by PC Willis was just over 30 seconds. It was 10 seconds from the arrest of Mr. Keung to the point in the conversation where the officers redirected their attention to the passenger. It was 15 seconds from the time Mr. Zhang was removed from the car and arrested to the point where PC Willis conducted the pat-down search. In the context of this fast-changing situation, I find DC Boogard’s explanation that he was uncertain as to the identity of both parties to be credible. He properly revised his arrest to an investigative detention based on new information, but he was entitled to confirm the identity of both parties and to take steps necessary for officer safety in the interim.

[14] I find the detention of Mr. Keung from arrest to the pat-down search was not arbitrary.

Section 8 – Unlawful Search

[15] The defence submits that even if Mr. Keung was properly detained there was no reason for a pat-down search. The officers were investigating property offences and bail breaches. The Crown notes that Mr. Zhang had just been arrested less than two months earlier and was found to be in possession of a loaded firearm. That gave rise to a genuine safety issue on arrest.

[16] I agree that Mr. Zhang’s recent possession of a loaded firearm while committing offences and his apparent resumption of further offences reasonably gave rise to a concern for officer safety. DC Boogard directed a limited, pat-down search consistent with the revised status of Mr. Keung. Unlike Mr. Zhang, Mr. Keung was not placed prone against the vehicle. He held up his arms and DC Anderson patted his jacket pocket, almost immediately locating the handgun. The subsequent search was conducted slowly and carefully as the officer didn’t know the orientation of the gun and didn’t want to set it off. The officers were calm and professional throughout.

[17] Until DC Boogard confirmed the identity of Mr. Keung and Mr. Zhang, it was reasonable to continue Mr. Keung’s arrest as an investigative detention. In that context where there was a reasonable apprehension that one of them was Mr. Zhang and that person might be in possession of a firearm, the pat-down search of Mr. Keung pursuant to the investigative detention was authorized by law for officer safety. The search was conducted in a reasonable manner both before and after the discovery of the loaded gun.

Exclusion of Evidence

[18] In the alternative, if the continued detention and pat-down search of Mr. Keung was found to be unlawful, the defence applies under sections 24(1) and 24(2) for the exclusion of the handgun and ammunition from the evidence at trial.

[19] Where evidence was obtained in a manner that infringed a Charter right, the remedy sought by the defence is set out in s 24(2). The applicant must establish that the admission of the evidence would bring the administration of justice into disrepute. The analysis is guided by the test set out by the Supreme Court of Canada in R v Grant, 2009 SCC 32.

[20] The first step in the analysis asks whether the Charter infringing conduct was so serious that the court needs to dissociate itself from it – R v Beaver, 2022 SCC 54 at para 120. In this case the breach would have resulted from an error, a mistaken identification during a dynamic arrest situation followed by an investigative search after the point where a court found the identification of the two parties was certain. The fact that the officers adjusted their investigation from arrest to investigative detention and conducted a limited pat-down search would place the breach at the less serious end of the spectrum. There was no evidence of deliberate or wilful disregard for Charter rights.

[21] The second step calls for an evaluation of the extent to which the breach undermined the Charter-protected interests of the accused – Grant at para 76. The officers revised the accused’s status according to developing information. A pat-down search is a “relatively non-intrusive procedure” – Cloutier v Langlois, [1990] SCJ No 10 at para 58. However, Mr. Keung was entitled to be free arbitrary detention and unreasonable search.

[22] Assuming a breach, the detention in this case became arbitrary only moments before the search. The search was relatively non-intrusive and brief. However, the fact that the central evidence in this case was discovered only as a result of the breach is aggravating and moves the impact from minor to moderate.

[23] The third step in the Grant analysis considers society’s interest in an adjudication on the merits. The handgun is real evidence, essential to the Crown’s case. The alleged breach had no effect on the reliability of the evidence. The evidence is non-conscriptive. There is a strong societal interest in the determination of charges involving loaded handguns on the merits given the tragic impact firearms offences are having in this region. There is also a public interest in ensuring that Charter rights be respected, especially in serious cases.

[24] Balancing all three Grant factors, I would dismiss the application to exclude the evidence. I agree with the Crown’s submission that if the officers missed the mark in this case, it wasn’t by much. They were otherwise aware of Charter requirements and carried out their duties accordingly. Exclusion of the central evidence in this case would be disproportionate to the breach and its impact on the accused. The unusual circumstances of this case do not require denunciation or disassociation by this court.

[25] The defence submitted in the further alternative that even if the circumstances of this case don’t meet the test for exclusion of evidence under s 24(2), there remains a residual discretion under s 24(1) to exclude evidence where the integrity of the justice system would be impaired by its admission.

[26] It’s not plain that s 24(1) assists an applicant who has failed to make the case for exclusion under s 24(2) where every relevant circumstance was covered in that analysis. The defence submitted that a discrete power to exclude evidence remains under s 24(1), focused on the integrity of the justice system. That concern is the central feature of the s 24(2) remedy, “…would bring the administration of justice into disrepute.” I find that to exclude the gun and ammunition from the evidence in this trial under either section would erode public confidence in the justice system and bring the administration of justice into disrepute.

Conclusion

[27] The Charter application is dismissed.

[28] Considering the evidence at trial and the Agreed Statement of Fact marked as Exhibit 5, I find the Crown has proved all three charges beyond a reasonable doubt.

Delivered: December 17, 2024. Justice Joseph F. Kenkel