REASONS FOR JUDGMENT

A. OVERVIEW

[1] The three accused, Byfield, Turner and Curry, are jointly charged in a seventeen count Indictment with a number of different criminal offences. All of the charges arise out of their arrest on the night of November 19, 2010, as they exited an apartment building and were about to enter a taxi. All three of them were separately in possession of three loaded handguns. As a result, the most serious of the charges that they face are three separate counts of possession of a loaded restricted firearm, contrary to s. 95 of the Criminal Code. In addition, Byfield and Turner are charged with breaches of Court Orders, prohibiting them from possessing firearms.

[2] The merits of the Crown’s case are not in any serious dispute. The only live issue is whether the police violated various provisions of the Charter of Rights, when they found and seized the three firearms, and whether the real evidence of the firearms ought to be excluded pursuant to s. 24(2) of the Charter.

[3] Given the above focus of the case, all counsel sensibly agreed to conduct the trial without a jury and to blend the calling of the Crown’s case on the merits with the calling of the defence case on the Charter issues. The Crown called the relevant police officers, both on the trial and on the Charter Motion, and the defence called the accused Byfield and Curry, but only on the Charter Motion. No defence evidence was called on the trial itself. Counsel are to be commended for negotiating a number of admissions, on points that were not seriously in dispute, thus shortening the trial.

[4] It can be seen from the above summary that the results of the Charter Motion will determine the results of the trial. If the Charter Motion is dismissed and the three guns are admitted into evidence, the three accused are guilty as charged. If the Charter Motion is allowed and the three guns are excluded from evidence, the three accused are not guilty.

[5] At the conclusion of the blended trial and Charter Motion, I reserved judgment. These are my reasons for judgment on both the trial and on the Charter Motion.

B. FACTS

(i) Introduction

[6] The apartment building that the three accused were visiting on the night of November 19, 2010 is 200 Chalkfarm Drive. It is located in north west Toronto, near Jane Street. It is not disputed that there are high crime rates in and around this building. The area is known for criminal gangs and for violence. In particular, nine days prior to the night in question, on November 10, 2010, there had been a shooting at the building. The suspect in the shooting was described as a male black, with a slim build, wearing a black hoody and a grey hat with ear flaps, and he was carrying a silver revolver. One of the witnesses also described the suspect as wearing his hair in dreadlocks.

[7] The officers who eventually searched and arrested the three accused on the night of November 19, 2010 were all members of a Toronto police unit known as TAVIS (which stands for Toronto Anti-Violence Initiative Strategy). TAVIS is not attached to any particular police division. Its officers are detailed to different parts of the city that have been plagued by gang violence. There are sixteen members in each TAVIS team. The TAVIS officers are generally briefed at the start of their shift as to major incidents that have occurred in a particular area, including intelligence reports, and they will then conduct a “walkthrough” of the area. This involves simply making their presence known, as well as talking to residents and filling out contact cards concerning some of the individuals they talk to (known as Field Information Reports).

[8] On November 19, 2010, a TAVIS team was in 31 Division. They had been briefed at the start of their shift, at 5:00 p.m., concerning the shooting at 200 Chalkfarm Drive. At 10:30 p.m., the members of the team who were still available met at Sheridan Mall, discussed the shooting incident, and decided to attend at 200 Chalkfarm Drive for a “walkthrough”. One of their purposes was to look for suspects who matched the description of the gunman. The officers were all in uniform. They were also driving marked police cars, with one exception. The one exception was an unmarked police van that was driven by P.C. Katimarie Metzger.

[9] At least six TAVIS officers arrived at 200 Chalkfarm Drive, between 10:46 and 10:48 p.m. on the night in question. The three accused exited from the front doors of the building at 10:48 p.m. and were searched and arrested, shortly afterwards, by the TAVIS officers. These times, and some of the relevant events, can be reliably reconstructed as there were two surveillance cameras at the front doors to the Chalkfarm apartment building. One camera pointed inwards, towards the lobby, and one camera pointed outwards, towards the entrance area and driveway at the front of the building. The surveillance videos were seized by the police and were entered as exhibits at trial. I have reviewed them repeatedly, including freezing the frames at all significant points.

(ii) The police accounts of their initial observations of the three accused

[10] Six of the TAVIS officers who arrived at 200 Chalkfarm Drive on the night in question testified. They all made somewhat differing observations, which is not surprising, given that they all had different vantage points as the events unfolded, and given that their focus was on different members of the group of three accused.

[11] Byfield, Turner and Curry can be seen on the surveillance video, coming from the elevators and into the interior lobby of the apartment building and then exiting the front doors at a few seconds after 10:48 p.m. Turner and Curry are in the lead and Byfield is following behind them. They are all young black males and their heads are covered. Byfield has a black hood covering his head, Turner is wearing a black toque, and Curry is wearing a grey hat with ear flaps. Turner is carrying a white plastic shopping bag and Byfield is carrying a red pouch or purse in his left hand.

[12] As the three accused exited, two of the TAVIS officers were approaching the front doors of the building from the north. This was P.C. Sarbjit Chakal and P.C. Jay Shin. The two officers stopped near the front doors and watched as the three accused walked past. It is apparent that the two officers’ attention was drawn to the three accused, as they watched them and then slowly turned and followed them. A third officer, P.C. Candice Poole, arrived behind the first two officers and followed them.

[13] P.C. Shin, who had been an officer for eleven years and had the most experience of any of the TAVIS officers, testified that his interest and suspicion was aroused by three things. First, he noticed Curry’s grey hat with ear flaps which was similar to the description of the suspect in the earlier shooting at 200 Chalkfarm Drive. He had made a note of the description in his memo book at the start of the shift. Second, the accused avoided eye contact and looked away when he tried to engage them in conversation as they walked past. He said, “how are things, can I ask you a question”, and they turned their heads away. Third, he thought that they quickened their pace as they walked away. P.C. Shin did not suggest that these three observations gave him grounds to detain the accused. They simply aroused his interest and his suspicion and caused him to want to investigate further. He wanted to have a discussion with the accused but he agreed that they were free to leave and not talk to him.

[14] P.C. Chakal was standing somewhat closer to the three men than P.C. Shin, as they walked past. He had been a police officer for about three years, at the relevant time, and had only been with TAVIS for three weeks. P.C. Chakal’s attention was focused almost exclusively on the last man in the group, who was Byfield. He thought that this man had a surprised, stunned or shocked look on his face, for a split second, as he emerged from the apartment building and saw the police officers approaching. Byfield passed within a few feet of where P.C. Chakal was standing and avoided eye contact. P.C. Chakal also thought that Byfield shifted the right side of his body away by pulling his right shoulder back, known as “blading” in police parlance, and he also quickened his pace. Finally, P.C. Chakal saw Byfield move his right hand to his waist area and adjust something on the right side of his groin area. All of these circumstances led P.C. Chakal to want to initiate contact with Byfield as they caused him to be suspicious that Byfield was armed. In addition, the accused were in a high crime area where there had been a shooting in the previous week. Like P.C. Shin, P.C. Chakal did not suggest that he had grounds to detain, at this early stage, but he was suspicious and he wanted to speak to Byfield.

[15] Although P.C. Shin and P.C. Chakal were closest to the three accused, their vantage point was only briefly from the front and then was mainly from the side and from behind, as the three men walked past them. P.C. Metzger was in the unmarked police van which was parked on the driveway, about seventy feet from the entrance. Her vantage point was of the front of the three accused, as they emerged from the front doors of the building. She had been a police officer for about three and a half years, at the relevant time, and had been with TAVIS for almost a year. She was the team leader that night. Her partner, P.C. Tremblay, was in the parked van with her. They had arrived and parked to the south east of the front entrance at about 10:47 p.m. P.C. Metzger sat in the unmarked van and watched to see any reaction to the arrival of the uniformed TAVIS officers at the apartment building. She described it as a “high risk” area.

[16] P.C. Metzger had a generally unobstructed view of the area in front of the entrance to the building. Although it was dark outside, the entrance area was well lit. The surveillance video confirms this, as there are six large overhead lights that illuminate a canopied area that extends for about fifteen feet in front of the doors. The three accused walked through this area, heading straight out towards the driveway. The edge of the driveway is a distance of thirty-six feet from the front doors.

[17] P.C. Metzger observed the three accused exit the apartment building at 10:48 p.m., at the same time that P.C. Shin and P.C. Chakal arrived at the front doors. The three men walked past the two officers. P.C. Metzger’s attention was drawn to the last man in the group, Byfield. He was a small, skinny black male. She observed him pick up his pace, to walk past the officers and catch up to the other two in his group, and she saw him look back to see where the officers were going. She described his reaction to the officers as fear or heightened vigilance. She also observed him grab the right front of his waist band with his right hand. He was not pulling up his pants but seemed to be grabbing something. As he continued to walk towards the driveway, he briefly touched this area again, at his waist, this time with the inside of his right wrist as if he was checking something to see if it had moved. Finally, she noticed that he walked with a slight limp, favouring his right side. P.C. Metzger described all of these observations as “characteristics of an armed man”, based on her training. She was sure that Byfield was armed.

[18] The video tape from the building’s surveillance camera was played to P.C. Metzger a number of times and, in cross-examination, she testified that it is at the point where Byfield is about seven or eight feet from the front door that she saw him grab something at the right front of his waist area. This is at 10:48:21 p.m., according to the time clock on the video tape, just after Byfield had passed P.C. Chakal.

[19] Although the surveillance video camera is directly behind Byfield and does not show his front, as he exited from the apartment building, it does appear to confirm the evidence of P.C. Chakal and P.C. Metzger to the effect that Byfield’s right hand moved towards his waist area and that he was favouring his right side. As already noted, I have reviewed the video tape many times. It shows that Byfield emerged from the front door at 10:48:20 p.m. At this point his right hand was swinging freely at his side. After taking two steps from the door, and approaching P.C. Shin and P.C. Chakal, Byfield’s right hand moved to his front waist area, at 10:48:21 p.m. When you freeze the video at this point, while Byfield was directly opposite P.C. Chakal, his right leg looks like it is bent inwards in a slightly awkward way, as if he was favouring it. After taking another step, and moving past P.C. Chakal, Byfield’s right hand moved away from his waist area and moved to his right pocket, still at 10:48:21 p.m. After taking another step, and freezing the video at 10:48:22 p.m., Byfield’s right leg again seems to be placed awkwardly, as if he was favouring it.

[20] The firearm that Byfield was, in fact, carrying in his waistband that night was entered as an exhibit. Detective Scott Purches, the officer in charge of the case, testified that it is a heavy gun. It is a Colt super 38 semi-automatic and it is made almost entirely of steel, except for some plastic on the outside of the handle. It is heavier than the police Glock handgun, which is made predominantly of plastic. Det. Purches estimated that the gun weighs about two pounds, without the magazine and bullets. I handled the gun and this strikes me as a conservative estimate. The gun is seven and a half inches long, five and a half inches deep at the handle, and one and a half inches wide at the handle. I am satisfied that it is a large heavy gun.

(iii) The police accounts of events at the taxi, relating to Byfield

[21] The surveillance video shows that a taxi had arrived at the front of the apartment building at 10:40 p.m. It waited there, with the lights on. When the three accused emerged from the apartment building, they walked straight to the curb of the driveway where the taxi was parked. Turner and Curry walked to the passenger side. Byfield walked around the front of the taxi to the driver’s side.

[22] The three police officers followed the three accused to the taxi. P.C. Shin and P.C. Poole went to the passenger side, following Turner and Curry. P.C. Chakal went to the driver’s side, following Byfield. Once these six parties reached the taxi, they were in the driveway. There is much less lighting at this location and they are essentially in the dark. Some movements on the near passenger side of the taxi can still be made out on the surveillance video but the images are unclear, given the darkness and given the distance from the camera mounted on the apartment building.

[23] P.C. Chakal testified that he followed Byfield to the rear passenger door on the driver’s side of the taxi. None of the events on this far side of the taxi can be seen on the surveillance video. According to P.C. Chakal’s account, Byfield opened the rear passenger door and was about to get into the taxi. As Byfield made this movement, P.C. Chakal saw a bulge at his waist. It was a square or triangular shaped object under Byfield’s baggy outer shirt. Byfield’s black hooded jacket was unzipped and open.

[24] P.C. Chakal asked Byfield if he lived in the building and got no response or got an evasive response. The officer then asked Byfield if he had any identification and Byfield produced an identification card. Byfield was very nervous. He was stuttering and his hands were shaking and he was “blading” the right side of his body away from P.C. Chakal. The open taxi door was between P.C. Chakal and Byfield, throughout this exchange. P.C. Chakal is 6’1” tall and was looking over the open taxi door while Byfield faced the back seat area of the taxi.

[25] As Byfield handed his identification to P.C. Chakal, over the top of the open passenger door, P.C. Metzger was approaching and she called out “check his waistband, check his waistband”. At this point, P.C. Chakal believed that he had sufficient grounds to detain and search Byfield for a weapon. He did not tell Byfield that he was being detained and searched, as he wanted the element of surprise. He quickly stepped around the open passenger door to Byfield’s right side and lifted up his outer shirt. P.C. Chakal saw the butt or handle of a silver handgun, tucked into Byfield’s waistband. Byfield was wearing a baggy outer shirt and an undershirt. P.C. Chakal lifted only the outer shirt. Once he saw the butt of the handgun, P.C. Chakal yelled “gun”. His grounds for taking these steps were his initial observations of Byfield, as he walked out of the apartment building, his further observations of Byfield at the taxi, and whatever observations P.C. Metzger made which caused her to shout “check his waistband”. By this point, P.C. Chakal believed Byfield was armed with a gun.

[26] P.C. Metzger confirmed much of P.C. Chakal’s account. After making her initial observations of Byfield, exiting the building and walking to the taxi, she made some comment to her partner in the van, P.C. Tremblay, that Byfield exhibited the characteristics of an armed man. She got out of the van and walked quickly towards P.C. Chakal and Byfield. When she was about ten feet away, she yelled to P.C. Chakal “check his waistband”. She did not know what observations P.C. Chakal had made and she was concerned for his safety and for the safety of the public, given her belief that Byfield was armed. As she reached the taxi, P.C. Chakal was on Byfield’s right side. She went to his left side. Byfield was facing the taxi and she told him to keep his hands on the roof of the taxi. She grabbed his hands or arms and held them up on the roof while P.C. Chakal lifted up Byfield’s outer shirt. She saw a flash of something silvery at Byfield’s right front waist area, as she looked down through his arms. P.C. Chakal had a better view than her of Byfield’s right front and he called out “gun”.

[27] P.C. Chakal was not asked whether he believed he was exercising common law powers of detention or statutory powers of arrest, when he detained and searched Byfield and found the gun. He was simply asked to set out his grounds. P.C. Metzger, who assisted P.C. Chakal in detaining and searching Byfield, was questioned somewhat more closely on this point. She appeared to understand the distinction between common law powers of detention and statutory powers of arrest, although there was some uncertainty on the point. She did not believe Byfield was detained, when she first approached him and P.C. Chakal at the taxi. She testified that her observations of Byfield gave her grounds to investigate him further but she also testified that she was “certain” he had a gun at his waist and that she had more than “reasonable suspicion” and believed that she had grounds to arrest him.

[28] The time clock on the video surveillance camera indicates that P.C. Shin and P.C. Poole arrived at the rear passenger side door of the taxi at about 10:48:40 p.m. P.C. Chakal proceeded to the far driver’s side of the taxi, slightly behind the other two officers. It can be inferred that he would have arrived at the rear passenger door, where Byfield was standing, somewhere around 10:48:43 p.m. About ten seconds later, at approximately 10:48:53 p.m., two or three other persons can be seen arriving from the south east at the driver’s side of the taxi. These images are not clear but it is reasonable to infer that the first of these three figures was P.C. Metzger. The other two figures, one of whom was likely P.C. Tremblay, are behind her. If P.C. Chakal arrived at the far side of the taxi at about 10:48:43 p.m. and P.C. Metzger arrived at about 10:48:53 p.m., as the surveillance video suggests, then the ten second interval is reasonably consistent with P.C. Chakal’s account of asking Byfield a couple of questions and of Byfield then producing his identification, all prior to P.C. Metzger’s arrival.

(iv) The police accounts of events at the taxi, relating to Turner and Curry

[29] P.C. Shin testified that he followed Turner to the rear passenger side of the taxi. They were standing near the trunk area of the taxi when P.C. Shin engaged Turner and they had a conversation. P.C. Shin introduced himself and asked Turner if he was a local resident and asked him where he lived. Turner replied that he was from Hamilton, that he did not reside in the Chalkfarm apartment building, and that he was leaving in the taxi. P.C. Shin described this brief conversation as “small talk”. He was interested in the three accused and was suspicious, based on his prior observations, but he had not detained Turner and he was of the view that Turner was free to leave.

[30] At this point, P.C. Shin heard P.C. Chakal scream “gun” from the other side of the taxi. P.C. Shin immediately grabbed Turner, pulled him to the ground, and drew his gun. He had pulled Turner to the ground towards the back of the taxi, where he had a better view of P.C. Chakal. A “gun” call is the highest threat level and P.C. Shin took cover and pulled Turner to the ground for safety reasons. He drew his gun in order to assist P.C. Chakal. Turner was compliant in going to the ground and was not struggling. P.C. Shin could see that officers were engaged in a struggle with Byfield. He believed that Byfield had a gun and he was focused on Byfield, in order to provide cover for P.C. Chakal.

[31] P.C. Shin kneeled on Turner’s back. He believed that the three accused were associates who were all proceeding to the same taxi. With the assistance of another officer, P.C. Keveza, they handcuffed and searched Turner on the ground. P.C. Keveza found a loaded handgun in Turner’s jacket pocket and found a sock containing seventeen rounds of ammunition in his pants pocket. The officers did not immediately advise Turner of the reasons for arrest or of the right to counsel. P.C. Keveza rendered the seized firearm safe, P.C. Shin went to assist P.C. Kara with the arrest and search of Curry, and a third officer, P.C. Inglis, took custody of Turner and read him his rights.

[32] P.C. Shin explained his reasons for searching Turner on the basis that when one gun is found, his training was to assume that there are likely to be more and to keep searching. He was not asked as to whether he believed he was exercising common law powers of detention or statutory powers of arrest. Detective Purches confirmed that the “one plus one” rule of police training is to the effect that if you find one gun, keep searching until satisfied that there is no more than one. He agreed, in cross-examination, that this rule of training applies most obviously in the context of searches of a single individual but, in certain circumstances, it can apply to searches of a number of individuals. He also confirmed that when officers hear “gun”, the response is to get everyone down for reasons of control and safety, until you know what the situation is.

[33] P.C. Poole had been a police officer for about three years, at the relevant time, and had only been with TAVIS for about one month. She followed P.C. Shin and P.C. Chakal to the taxi, behind the three men who had come out of the apartment building. She approached Curry, who had opened the rear passenger door on the rear side of the taxi. She was joined by P.C. Sameer Kara, who had been somewhat behind the other three officers. P.C. Kara had been a police officer for less than two years, at the relevant time, and had been with TAVIS for a month.

[34] Neither P.C. Poole nor P.C. Kara suggested that they had any grounds to detain or arrest Curry at this early stage, nor did they recall any particular conversation with Curry at the taxi. However, P.C. Poole agreed that she has a number of “lines” that she regularly uses, to try to open up a conversation, such as asking whether the person lives in the area. She was interested in the shooting that had taken place at the Chalkfarm building and she agreed that she may have momentarily prevented Curry from getting into the taxi. As already noted above, the surveillance video time clock shows that some thirteen seconds passed between P.C. Poole’s arrival at the rear passenger door, where Curry was located, and P.C. Metzger’s arrival on the other side of the taxi, where Byfield was located. It can be inferred, in all these circumstances, that the officers must have engaged Curry in some brief conversation.

[35] P.C. Poole and P.C. Kara both testified that they heard P.C. Chakal yell “gun” from the other side of the taxi, almost immediately after they approached Curry. They grabbed Curry, took him to the ground, and handcuffed him. He was lying on his front. They asked Curry “where’s the gun” and he made a reply which was not adduced in evidence. They turned him over, lifted up his shirt, and found a gun down the front of his pants. P.C. Kara pulled the gun out and handed it to P.C. Poole. Curry did not struggle or resist.

[36] P.C. Poole explained that they took these actions because they were not sure where the gun was located when P.C. Chakal yelled “gun”. She thought that the gun might have been seen on Curry and so they asked him “where’s the gun”, rolled him over and found a gun in his waistband. He was taken to the ground and handcuffed for everyone’s safety, until they found the gun. She described it as an arrest, and a search incident to arrest, based on her belief that Curry may have the gun that was seen by P.C. Chakal. P.C. Kara elaborated somewhat on this explanation, adding that it was a high crime area, they had information about a shooting at the Chalkfarm building during the previous week, and he did not know whether Curry had a gun when P.C. Chakal yelled “gun”. He took Curry to the ground and searched him, for officer safety, to see if he had a gun. P.C. Kara was not asked whether he conceived of this detention and search as being based on statutory arrest powers or common law powers short of arrest. P.C. Kara did not immediately advise Curry of the reasons for this arrest or detention.

[37] P.C. Kara walked Curry to a police car and then advised him of his right to counsel. It was 10:57 p.m. Assuming Curry was arrested at about 10:49 or 10:50 p.m., there was a seven or eight minute delay between Curry’s arrest and advising him of his right to counsel. He was lying handcuffed on the ground for some of this time. The surveillance video shows figures beginning to move at the passenger side of the taxi at 10:49:27 p.m. and then some of them begin to go to the ground near where Curry was located at 10:49:32 p.m. By 10:49:38 p.m., everyone appears to be on the ground. It can be inferred that Curry was detained and arrested by 10:50 p.m., at the latest. P.C. Poole explained that the situation was volatile, and they were concerned for everyone’s safety, so they did not immediately advise Curry of his right to counsel. She was present at the station when Curry was paraded before the Staff Sergeant at 11:12 p.m. He was advised again of his right to counsel at 11:17 p.m., during the booking process. Turner was also advised again of his right to counsel when he was booked at 11:35 p.m.

(v) The police account of Byfield’s arrest and the issue of the lost red purse

[38] At the point when P.C. Chakal lifted up Byfield’s outer shirt, saw the butt of a handgun, and then yelled “gun”, Byfield pushed P.C. Chakal and turned and ran to the east. He only took two or three steps away from the taxi because P.C. Chakal caught a piece of Byfield’s clothing and tackled him to the ground. Byfield fell face down on the driveway with the much larger P.C. Chakal on top of him.

[39] P.C. Chakal testified that a struggle ensued in which he tried to get control of Byfield’s right hand, which was underneath Byfield’s body. P.C. Chakal believed that Byfield was either holding onto the handgun or was trying to get it. P.C. Chakal eventually succeeded in pulling Byfield’s right hand out from underneath his body. P.C. Chakal reached back in, retrieved Byfield’s gun, and handed it to another officer. Byfield continued to resist and struggle and P.C. Chakal yelled repeatedly to “stop resisting”. He struck Byfield in the head, Byfield then complied, and the officers handcuffed him and arrested him. P.C. Chakal testified that he was winded from the struggle.

[40] P.C. Metzger confirmed much of P.C. Chakal’s account about the struggle to arrest Byfield and seize his gun. She testified that Byfield only got away from the taxi for a short distance before P.C. Chakal “grounded him”. P.C. Chakal was on top of Byfield and was yelling “he has the gun”. Byfield’s right hand was in front. P.C. Metzger got control of Byfield’s left arm and called for back-up over her police radio. She felt that her life was in danger. P.C. Chakal was trying to get Byfield’s right arm out. He eventually succeeded, seized the handgun and handed it to another officer. There were at least two other officers assisting them in subduing Byfield. P.C. Metzger described the scene as “mayhem”.

[41] P.C. Juin Pinto is a veteran officer with twenty-two years experience. He was not a member of the TAVIS unit. He happened to be on general uniform patrol, in a marked police car, in the area of 200 Chalkfarm Drive on the night in question. He heard the call for emergency back-up, involving a male with a firearm, and so he immediately drove into the driveway of the building. P.C. Keveza was with him.

[42] P.C. Pinto got out of his car and went to assist the officers who were still struggling with Byfield on the ground. P. C. Pinto testified that Byfield was resisting and refusing to give up his arms. One of the arresting officers was tiring and P.C. Pinto helped to get control of Byfield’s arms. One of the arresting officers then seized Byfield’s gun.

[43] P.C. Tremblay also confirmed the other officers’ accounts of the struggle to arrest Byfield and seize his handgun. P.C. Tremblay exited the unmarked van, where he had been seated with P.C. Metzger, and he approached the rear passenger side of the taxi while P.C. Metzger went to the driver’s side. P.C. Tremblay heard P.C. Chakal yell “gun” and he then briefly assisted P.C. Kara and P.C. Poole in the arrest of Curry. He next heard P.C. Chakal yell “stop resisting” and “he’s trying to reach the gun” and so P.C. Tremblay went to assist. He saw P.C. Chakal punch Byfield in the head, which dazed Byfield, and then P.C. Chakal got the gun away from Byfield. Even after the gun had been seized, Byfield continued to struggle until he was handcuffed. Aside from these observations, P.C. Tremblay appeared to have little recollection of any of the events, unless it was written in his notes.

[44] All of the officers were questioned about Byfield’s small red purse or pouch. As noted previously, it can be seen in his left hand in the surveillance video, as he walked out of 200 Chalkfarm Drive. P.C. Metzger gave the only police evidence as to what became of the red pouch. She recalled last seeing it in Byfield’s right hand, on the roof of the taxi, as she stood at his left side and held his arms while P.C. Chakal was at his right side. P.C. Chakal lifted up Byfield’s outer shirt and then yelled “gun”. P.C. Metzger never saw the red pouch again, after this point. She simply lost track of it as her focus was on getting control of Byfield’s gun.

[45] All of the officers agreed that the taxi pulled away and drove towards the south, while the officers were struggling with Byfield on the driveway. Indeed, this can be seen on the surveillance video at about 10:49:56 p.m. It appeared from the video that the taxi then parked or stopped, somewhere near the roundabout in the driveway, and was still there when the surveillance video ended at 10:55 p.m.

[46] None of the TAVIS officers questioned the taxi driver or searched for the red pouch. They agreed that it could have concealed a gun or drugs and they implicitly agreed that it could or should have been seized and searched. P.C. Metzger, the team leader, walked around the scene after Byfield had been arrested and handcuffed. She made sure that no one was hurt, that the guns had all been made safe, and that there were no crowd control issues. She then called her sergeant to report and at 11:14 p.m. she drove back to 31 Division station. She agreed that she and P.C. Chakal had a discussion at the scene about what had just happened. She explained that they had just been involved in a fight for their life and it is only human to talk about it.

[47] None of the other officers, aside from P.C. Metzger, saw the red pouch at the taxi. In particular, P.C. Chakal did not see it except when Byfield was carrying it as he exited the building. P.C. Chakal did not recall any discussion with P.C. Metzger at the scene and they did not discuss the red pouch. He testified that the young officers were all somewhat “in awe” of the fact that they had just seized three loaded handguns. This was not an everyday occurrence for them. None of the other officers heard anyone say anything about the red pouch at the scene.

[48] P.C. Chakal and P.C. Kara drove Byfield to the police station. They arrived at the sally port at 11:07 p.m. There was a long wait due to a line-up of police cars ahead of them with other prisoners to book. The booking video shows Byfield had a cut to his left eye and he reported welts and marks on his right side. The booking sergeant requested an injury report and sent Byfield to the hospital where his cut was treated, without any stitches. When Byfield’s personal property was being itemized, as he was booked, he reported that he had “ten grand” in his “red pouch”. He stated on the booking video, “I was stopped with my red pouch, it’s not here”. The booking sergeant counted out $1,010 that was seized from Byfield.

[49] As a result of Byfield’s report of his missing red pouch and money, P.C. Chakal informed his two TAVIS supervisors, Sgt. White and Sgt. Philipson. The two sergeants conducted a de-briefing of the TAVIS officers and then returned to the scene and searched for the red pouch. They looked under parked cars, spoke to security and walked around the area, without success. They also tried to find the taxi, without success.

[50] Det. Purches, who was not a TAVIS officer, was made officer-in-charge of the case. The three accused arrived at the station at 11:20 p.m., 11:40 p.m. and 11:59 p.m. At 12:15 a.m., Det. Purches conducted a de-briefing with the TAVIS officers. They did not discuss the evidence. Det. Purches simply wanted to know who did what. There was no discussion about the missing red pouch. Det. Purches later learned about it and was satisfied that the two TAVIS supervisors were looking into it. Det. Purches agreed that the red pouch should have been searched, although he also agreed that it would not have been the main focus in the struggle for Byfield’s gun.

[51] After the de-briefing at the station, the TAVIS officers all separated and wrote up their notes independently. P.C. Chakal quickly reviewed the surveillance video, before preparing his notes, but the other officers did not. P.C. Metzger had reviewed the video before she testified at trial.

(vi) Ronald Byfield’s account of his arrest

[52] Byfield was twenty-one years old at the time of trial. He has not yet finished high school. At the relevant time, he was living in Malton with his mother and five siblings. His girlfriend lived in the building at 200 Chalkfarm Drive and he was visiting her on the night in question. He had a Youth Court record for robbery that resulted in a ten year firearms prohibition order made in 2004, when he was young.

[53] Byfield candidly admitted that he was a drug trafficker and that he was carrying the loaded handgun on the night in question. He had been selling cocaine in Cambridge during the previous one and a half to two years. He would stay in Cambridge for a couple of nights and then return to Toronto to purchase more drugs. Curry was also involved in drug trafficking in Cambridge and the two of them took a taxi back to Toronto on the night in question, arriving at Byfield’s girlfriend’s apartment at about 9:00 p.m. Byfield had $10,000 in drug sale proceeds in the red pouch that he was carrying. He planned to use this money to buy more cocaine from his supplier the next day. He had another $1,010 in his pants pocket. He agreed that he had to take some caution with all this money.

[54] Byfield had “stashed” his gun in a vent at his girlfriend’s apartment, while he was away in Cambridge. He picked the gun up during his visit on the night of November 19, 2010 and put it inside the waist of his jeans. He was planning to take it home with him. He knew it was illegal to carry the gun. He and Curry met Turner at the apartment. Turner is a friend and they had arranged to meet that night. Byfield knew that both Turner and Curry were carrying guns as they both produced their guns upstairs in the apartment at 200 Chalkfarm Drive. Byfield had owned his gun for about five months but he did not always carry it.

[55] The three accused called one taxi to take them to Malton and to Brampton, as they all lived in the same area. The taxi driver called them back, once he arrived at 200 Chalkfarm Drive, and the three young men left the apartment. Byfield wore the same clothes in court that he wore on the night in question, namely, a black hooded jacket, jeans, a loose black over-shirt, and a tight white under-shirt. He demonstrated how he placed the gun in his waistband, between a fold in his under-shirt, and with the over-shirt covering it. He testified that this is the best place to hide a gun as it is not very visible. It was to the right of his groin area, with the barrel shoved down in his crotch and the handle remaining slightly above his waistband. The gun was loaded and the barrel was close to his genitals. Byfield agreed that the gun had some weight to it but it was not that heavy.

[56] When demonstrating how he carried the gun, Byfield was asked to pull back his jacket, which was open and unzipped on the night in question. As he pulled it back, an impression or bulge from the gun underneath his over-shirt was briefly visible. When the over-shirt fell loosely over Byfield’s waist area, no impression or bulge from the gun was visible. It can be inferred that the ability to observe an impression or bulge under the black over-shirt would depend on Byfield’s movements and on how tightly or loosely the over-shirt was pulled back against his waist during those movements.

[57] Byfield testified that there was nothing unusual or abnormal about the way that he walked out of the apartment building on the night in question. He had noticed the officers and one of them said, “hey, let me talk to you”. Byfield replied, “no thanks”, and kept walking. He did not quicken his pace, he did not make a face at the officer, and he did not put his hand to his waist area. He only put his hand in his right jacket pocket. The officer kept saying, “hey, hey”, but Byfield continued walking to the taxi. Byfield understood that he was entitled to walk away from the police and that he did not have to talk to the police.

[58] Byfield agreed, in cross-examination, that he had not carried the gun for two weeks, that he had just picked it up, and that he was not used to carrying it. However, he was not uncomfortable with it, there was no need to touch it or check it, and he was not walking in an unusual manner. He just walked by the police calmly as he was neither surprised nor nervous. He has done this before when he encountered the police.

[59] Byfield went to the back passenger door of the taxi, on the far driver’s side, and went to open the door. P.C. Chakal was immediately behind him and said, “no, you don’t want to do that”. Byfield felt that he could not get in the taxi and he asked, “what is the problem officer, what did I do?” Byfield believed that if he pushed past the officer and got in the taxi he would be physically stopped. He had been stopped and questioned by the police on two prior occasions. They had asked him questions, like where he lived and where he was going, on these prior occasions and he would feel compelled to answer. On one of these two prior occasions the officers also did a pat search and went through his pockets.

[60] At this point, feeling he had been stopped at the taxi, Byfield voluntarily produced some identification from his wallet. P.C. Chakal had not asked him for identification but Byfield produced it on his own because the police always ask for it. P.C. Chakal gave the piece of identification to P.C. Metzger, who had arrived by this point. P.C. Metzger had not said, “check his waistband,” as she approached. She said nothing.

[61] As he felt that the officers were now trying to talk to him, Byfield put his red pouch containing $10,000 on the roof of the taxi. When asked to explain why he did this, he testified that it was “just a motion” or a “reflex” because he knew the police had stopped him from getting in the taxi. Byfield denied being nervous. He testified, somewhat inconsistently, that the police always search you and that he knew the officers would search him but, on the other hand, he did not fear a search and the police do not always search you. In any event, he was not nervous because of being in possession of a loaded firearm and being in the presence of police.

[62] After Byfield put his red pouch on the roof of the taxi, P.C. Chakal took it and opened the zipper. He looked inside and said, “that’s a lot of money, I’m going to search you for drugs”. This was the only point where Byfield became nervous and when he began to worry as he knew now that P.C. Chakal would search him and find the gun.

[63] P.C. Chakal handed the red pouch to P.C. Metzger. He then conducted a pat search of Byfield and lifted up the black over-shirt. At this point, P.C. Chakal said “gun”. Byfield took a few steps, trying to flee, but P.C. Chakal grabbed the hood of his jacket and threw him to the ground. Byfield fell on his face. He is skinny, about six feet tall and one hundred and twenty pounds. P.C. Chakal is much bigger and landed on top of him. Almost immediately, P.C. Chakal pulled both of Byfield’s arms behind his back and handcuffed him. Byfield was not resisting or struggling and P.C. Chakal was quickly able to restrain him and handcuff him, on his own and without help. Byfield denied trying to reach for his gun. P.C. Chakal, nevertheless, called out, “he’s got the gun, he’s going for the gun”. Other officers came to assist and pounded Byfield’s head. He kept saying, “officer, I’m not resisting”.

[64] Byfield blacked out and when he awoke he was taken to a police car. He heard P.C. Chakal say, “hey, hey, we’re going to party tonight”. Byfield immediately thought of his money and reported it missing to the booking sergeant. Byfield had heard from friends that police officers take money and he realized this had happened when only $1,010 was put in his property at the time of his booking.

(vii) Tristan Curry’s account of his arrest

[65] Curry was twenty-two years old at the time of trial. He had a Youth Court record, beginning in 2005 when he was fifteen. He was convicted of theft over, possession of stolen goods, break and enter, assault, fail to comply, possession of crack cocaine, carry a concealed weapon, possession of marijuana, and obstruct police. His only adult conviction was for fail to comply.

[66] Curry, like Byfield, candidly admitted that he was a drug trafficker and that he carried a loaded handgun. He and Byfield would buy cocaine together in Toronto and then sell it separately to purchasers in Cambridge. He carried the gun in order to protect himself from any danger. He had been traumatized by the shooting of a friend in September, 2008 and thought that he too could be shot. Curry was arrested for robbery in October, 2008 and spent time in custody awaiting trial. He was eventually acquitted and was released from custody in December, 2009. Byfield introduced Curry to selling drugs in Cambridge in early 2010, as winter was ending. It was at this point in 2010 that Curry purchased the gun and began carrying it. He denied obtaining and carrying the gun in order to assist him in the drug trade and insisted it was because of the trauma caused by the shooting of his friend in 2008.

[67] On the night in question, Curry and Byfield had been down in Cambridge selling drugs during the previous days. They took a taxi together to Byfield’s girlfriend’s apartment at 200 Chalkfarm Drive. They arrived around 9:00 or 10:00 p.m. and met up with Turner, who was already at the ninth floor apartment. Curry did not see Byfield’s gun or Turner’s gun that evening. He did see Byfield count a lot of money at the apartment and put it in his red pouch. Curry did not have much money on his person that night. He and Byfield planned to buy more cocaine the next day. Curry had about $5,000 at his home in Peel. They called a taxi to drive the three of them to Curry’s home and then to Byfield’s home. Curry intended to put his money together with Byfield’s money, buy more cocaine, and then return to Cambridge.

[68] Curry carried his handgun in the front of his pants, pushed down between his jeans and his underwear, with the handle leveraged over the top of his belt in order to hold it in place. He carried it loaded, and slept with it at home, but without a bullet in the chamber. He had no training in firearms safety. Curry was also carrying oxycontin on his person on the night in question.

[69] Curry exited the apartment building and saw the police officers as he walked towards the taxi. He was not worried by the police and assumed they were going to go in the apartment building. The officers said nothing to him. He was walking with Turner and they said nothing to each other. As they reached the taxi, Turner went to the trunk and asked the driver to open it. Turner was carrying a white plastic bag with some food in it and he wanted to put it in the trunk of the taxi. P.C. Shin was with Turner at the trunk.

[70] Curry went to the rear passenger side door of the taxi and opened the door. P.C. Kara was “pretty much in [Curry’s] face”, at the point when Curry was about to get into the taxi. Curry was still not worried or concerned about getting searched. PC. Kara then told Curry that it would be a “problem” if he got into the taxi. It was only at this point that Curry became worried about the police finding his firearm and going to jail. He glimpsed Byfield talking to another officer on the other side of the taxi.

[71] A conversation ensued between Curry and P.C. Kara. It lasted for one or two minutes. Curry asked the officer “what’s the problem”? P.C. Kara replied, “I smell marijuana” and then asked Curry where he was coming from. Curry replied “from my boy’s girl’s house”, meaning that he was coming from his friend Byfield’s girlfriend’s apartment. P.C. Kara then asked where Curry was “headed” and Curry replied, “I’m going home”. This was the extent of the conversation.

[72] Curry testified that he does not feel comfortable when the police come to his community. He believes that they will hassle and harass him, asking him questions, and he does not want to be around. He has been stopped many times by the police, without charges being laid. They would ask him questions and when he tried to walk away it did not work as they would tell him that he would be charged. Once he was stopped when he was out at night, well after a curfew imposed as a term of bail. The police asked where he was going and searched him and found marijuana. He gave them an alias.

[73] The conversation at the taxi, between Curry and P.C. Kara, came to an abrupt end when someone at the other side of the taxi said “gun”. Curry was immediately thrown to the ground. An officer grabbed Curry and handcuffed him and asked three separate times, “where’s the gun”. Curry did not reply and just lay there on the ground. The officer turned Curry over, lifted up his shirt, and found the handgun in his waistband.

C. ANALYSIS

(i) Introduction

[74] The main issue on the Charter Motion is whether the police violated the three accused’s s. 9 and s. 8 rights, when detaining and searching them. However, there are different factual and legal issues that arise in relation to the Charter of Rights violations alleged by the three accused. There is some over-lap, as between Curry and Turner, but Byfield’s circumstances are quite distinct. It was the detention and search of Byfield that precipitated the subsequent detention and search of Curry and Turner. In addition, Byfield alleges that the police stole $10,000 from his red pouch. He submits that this serious state misconduct implicates the integrity of the justice system, that it renders the proceedings an abuse of process and that it violates s. 7 of the Charter and ought to result in a stay of the proceedings. Finally, Curry and Turner allege further violations of their s. 10 Charter rights, after their unlawful detentions.

[75] Accordingly, the Charter Motion is not amenable to a single global resolution. I will deal with each accused separately, beginning with Byfield, because the discovery of Byfield’s gun played a crucial role in providing the grounds for detaining and searching Curry and Turner.

(ii) The detention and search of Byfield

[76] Counsel for the Crown and for the defence both agree that P.C. Chakal detained Byfield when he took physical control of him and lifted his over-shirt, at the taxi, and discovered the gun. They also agree that P.C. Chakal did not arrest Byfield at this stage but was exercising common law powers of detention. Accordingly, the central issue on Byfield’s Charter Motion is relatively straightforward, namely, whether P.C. Chakal had reasonable grounds for suspicion as that term is understood in the s. 9 case law. See: R. v. Mann (2004), 2004 SCC 52, 185 C.C.C. (3d) 308 (S.C.C.); R. v Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.); R. v. Byfield (2004), 2005 CanLII 1486 (ON CA), 193 C.C.C. (3d) 139 (Ont. C.A.).

[77] Mr. Abbey, counsel for Byfield, submits that there was a “detention” at an earlier stage, arguing that P.C. Chakal prevented Byfield from entering the taxi and then searched his red pouch. This issue depends on Byfield’s credibility, that is, on his account of what happened at the taxi, which the police officers deny. It is also closely tied up with the s. 7 Charter issue concerning the alleged theft of Byfield’s $10,000 from the red pouch. I will deal with the credibility of this account later, when addressing the s. 7 issue. For purposes of deciding the s. 9 issue, I am satisfied that on the police version of events there was no “detention” until P.C. Chakal took physical control of Byfield and lifted up his over-shirt. Prior to this point, the kinds of questions described by P.C. Chakal, including a request for identification, were well within the scope of “preliminary investigative questioning falling short of detention”, described in the s. 9 authorities. Byfield was “delayed” for little more than ten seconds by these “exploratory” questions, but he was not “detained” in law. See: R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 at paras. 6-7 and 37-52 (S.C.C.); R. v. Suberu (2009), 2009 SCC 33, 245 C.C.C. (3d) 112 at paras. 23-35 (S.C.C.); R. v. Jackson 2011 ONSC 5516 at paras. 47-54.

[78] Assuming that the “detention” occurred at the point where the police and the Crown concede it occurred, that is, when P.C. Chakal lifted up Byfield’s over-shirt, the sufficiency of P.C. Chakal’s grounds at this stage must be assessed. According to P.C. Chakal’s testimony, he relied on the following eight circumstances:

• Byfield had a surprised or shocked look on his face when he first saw the police;

• Byfield then avoided eye contact with the police, when he walked past;

• Byfield shifted the right side of his body away from the police, pulling his right shoulder back and quickening his pace;

• Byfield moved his right hand to his waist area and adjusted something near the right side of his groin;

• Byfield was coming out of a building where there had been a shooting in the previous week and it was in a high crime area;

• After they reached the taxi, Byfield was very nervous and continued to keep the right side of his body away from P.C. Chakal;

• As Byfield opened the taxi door and went to get in, P.C. Chakal saw a bulge at his waist, underneath his baggy over-shirt;

• P.C. Metzger approached and told P.C. Chakal to “check his waistband”.

[79] The s. 9 issue is whether these eight circumstances objectively rise to the level of a “reasonable suspicion” that Byfield was carrying a concealed weapon in his waistband, as P.C. Chakal subjectively believed. P.C. Chakal made it clear that, in addition to his own observations, he relied on whatever it was that P.C. Metzger had seen which caused her to tell P.C. Chakal to “check his waistband”. P.C. Metzger’s observations, in summary, were as follows:

• Byfield quickened his pace and looked back at the officers, as he walked past;

• Byfield seemed to grab something in his front waistband, with his right hand, and then he touched the area again with his right wrist;

• Byfield walked with a slight limp, favouring his right side.

[80] Some of the above circumstances relied on by the police, had they stood alone, would be neutral. For example, the fact that Byfield avoided eye contact, walked away, and was nervous cannot carry much incriminating weight. However, the other circumstances provided “objective grounds” and a “demonstrable rationale” for belief that the accused was “possibly” armed with a concealed weapon. Furthermore, the officers’ impressions or conclusions were supported by objective facts and by their training. It is the “totality” or the “whole” of the facts relied on by the officers that must be assessed, rather than dissecting each observation in isolation. See: R. v. Byfield, supra at para. 20; R. v. Polaschek (1999), 1999 CanLII 3714 (ON CA), 134 C.C.C. (3d) 187 at paras. 13-19 (Ont. C.A.); R. v. Plummer, 2011 ONCA 350, [2011] O.J. No. 2034 at para. 23 (C.A.); R. v. Dene, 2010 ONCA 796 at para. 4; R. v. Kang-Brown (2008), 2008 SCC 18, 230 C.C.C. (3d) 289 at paras. 75-79, 87 and 96 (S.C.C.); R. v. Jacques and Mitchell (1996), 1996 CanLII 174 (SCC), 110 C.C.C. (3d) 1 at paras. 14, 23-25, 50 and 52 (S.C.C.).

[81] I am satisfied that the totality of the eight circumstances relied on by P.C. Chakal amounted to “reasonable suspicion”, at common law, justifying a brief detention and a pat search for weapons. I did not understand Mr. Abbey to seriously question the sufficiency of the officer’s grounds, if they actually did make the observations to which they testified. His main submission was that P.C. Chakal and P.C. Metzger were not credible and that the accused Byfield was credible. Byfield, as noted above, denied any and all of the suspicious acts that the officers described. He testified that he was not nervous or surprised, he did not quicken his pace, he was walking normally, and he did not reach for his waistband.

[82] Turning to this issue of credibility, it is appropriate to begin with Byfield’s own credibility as the onus is on him, on the Charter Motion, to establish the s. 9 violation. He alleges that the officers did not have “reasonable suspicion”. There were numerous difficulties with Byfield’s account. Most importantly, his assertion that he was walking normally and his denial of ever reaching for his waist are contradicted by the surveillance video. As noted above, I have watched it carefully and repeatedly and I am satisfied that Byfield did bring his right hand to his front waist area, where the gun was located, and he was walking in a somewhat awkward manner, favouring his right side. Furthermore, Byfield’s repeated assertions that he was not uncomfortable with this large heavy gun stuffed into his groin, inside his jeans, and that he was not nervous in the presence of the police, are not credible. It is a common sense inference that this particular gun, being carried in the particular manner that Byfield was carrying it, would be awkward and uncomfortable. It is also common sense that he would be nervous in the presence of the police. There were other internal difficulties within Byfield’s account. In particular, he gave significantly inconsistent accounts as to whether he anticipated a police search. Finally, I am satisfied that he did vigorously struggle and resist P.C. Chakal’s efforts to seize the gun. There is overwhelming police evidence on this point, including from P.C. Pinto who I found to be independent and credible. The fact that Byfield falsely alleged that P.C. Chakal committed a violent and gratuitous assault, after Byfield claims to have been easily restrained and after he had given up the gun without any struggle, gives me little confidence in his credibility.

[83] For all the above reasons, I do not accept Byfield’s version of events. P.C. Chakal’s account, on the other hand, is substantially supported by both P.C. Metzger and by the surveillance video. In addition, the demonstration in court, when Byfield testified, confirmed that a bulge or impression from the gun would be visible in some circumstances. I agree with Mr. Abbey that there were some inconsistencies in P.C. Metzger’s account and that her account appeared to evolve somewhat over time. However, her two central observations, namely, that Byfield moved his right hand to the area of his waistband and walked with a slight limp on his right side, are generally consistent throughout her testimony and are supported by the surveillance video. They are also consistent with P.C. Chakal’s evidence. In addition, I was impressed by the fact that P.C. Chakal’s and P.C. Metzger’s two accounts were not slavishly aligned with one another in every detail. For example, P.C. Metzger did not see or corroborate the bulge that P.C. Chakal saw at Byfield’s waist, as Byfield attempted to enter the taxi. This was an important part of P.C. Chakal’s account but one would not expect P.C. Metzger to have seen it, as she approached the taxi from the south east while Byfield had his back towards her. Similarly, P.C. Metzger agreed with Byfield, that he did place his red pouch on the roof of the taxi as she attempted to control his arms and hands. But P.C. Chakal did not notice this important detail, as one would expect, since he was focused on the suspected weapon in Byfield’s waistband. I was satisfied that the two officers had not colluded and that they provided independent evidence to the Court which, on occasion, was helpful to Byfield.

[84] For all these reasons, I accept the accounts of P.C. Chakal and P.C. Metzger. Byfield has not established the s. 9 Charter violation to the requisite standard of proof on a balance of probabilities.

[85] If the common law detention was lawful, as I find that it was, Mr. Abbey properly concedes that the police could conduct a pat search for weapons in the particular circumstances of this case. See: R. v. Mann, supra. Although lifting up Byfield’s over-shirt is not technically a “pat search”, it is the functional equivalent and it is less intrusive in the circumstances of this case. The whole point of a “pat search”, pursuant to Mann, is that it is meant to be quick and non-intrusive. Given the reasonable police suspicion that Byfield had a weapon concealed down the front of his pants, at his waist area, a pat search of Byfield’s groin over top of his over-shirt and jeans would have been more embarrassing and invasive than simply lifting the shirt. I am satisfied that there was no breach of s. 8 of the Charter.

[86] If there was no violation of s. 9 or s. 8 of the Charter, as I have found, Mr. Abbey does not allege any breach of Byfield’s s. 10 rights. The violent struggle to arrest him and seize his gun inevitably resulted in some justifiable delays in not immediately informing him of his s. 10 rights. I will address this issue in more detail below, in relation to Turner’s and Curry’s Charter Motions.

[87] The remaining Charter issue raised by Byfield concerns the missing red pouch and the allegation that the police stole $10,000 from the pouch and thereby rendered the proceedings an abuse of process and violated s. 7 of the Charter. This issue depends entirely on Byfield’s credibility as he alleges that P.C. Chakal searched the red pouch, discovered the money, and then handed the red pouch to P.C. Metzger. Byfield also alleges that P.C. Chakal made an implied comment about “partying” with the money, after Byfield had been arrested. The police officers deny these allegations. I am not persuaded that there was any violation of s. 7 of the Charter. Byfield was not a credible witness, as already noted, and the police officers were generally credible. Furthermore, Byfield and P.C. Metzger both agree that the red pouch was on the roof of the taxi, shortly before P.C. Chakal lifted up Byfield’s over-shirt and discovered the gun. All of the witnesses agree, and the surveillance video confirms, that the taxi drove forward during the time period when the police were arresting the three accused and seizing and securing the three guns. There is a rational inference that the red pouch was either lost, or was taken by somebody, in the confusion following the three arrests.

[88] For all these reasons, there was no violation of s. 7 of the Charter. Accordingly, Byfield’s Charter Motion is dismissed. There is no need to address s. 24(2) of the Charter.

(iii) The detention and search of Curry and Turner

[89] Some of the Charter issues raised by Curry and Turner over-lap and so I will deal with them together. They both allege violations of ss. 9, 8 and 10 of the Charter on broadly similar bases, although there are some factual distinctions between their two cases.

[90] Beginning with the alleged breach of s. 9, there is no agreement between the Crown and the defence as to the point in time when Curry and Turner were “detained”. Defence counsel submit that there was a psychological detention at the point where the police officers engaged Curry and Turner at the taxi and effectively prevented them from entering it and leaving. The Crown submits there was no “detention” in law until the point where the officers heard P.C. Chakal shout “gun” and reacted by taking Turner and Curry to the ground, handcuffing them and searching them for weapons.

[91] I agree with the Crown’s position. The only evidence concerning Turner’s brief encounter with the police at the taxi came from P.C. Shin. Turner did not testify on the Charter Motion. P.C. Shin gave a reliable and detailed account of the questions that he asked Turner, as they stood near the trunk of the taxi. They were classically the kind of “preliminary investigative questioning falling short of detention” that is permitted, pursuant to the principles set out in Suberu and Grant, without engaging s. 9 and s. 10 Charter rights.

[92] In Curry’s case, P.C. Poole was a credible witness and she gave a similar account of the kinds of questions that she usually asks in these encounters. She also acknowledged, very fairly, that she may have briefly prevented Curry from entering the taxi. P.C. Kara had no recollection of the conversation with Curry at the taxi. Curry testified on the Charter Motion and described the few brief questions that he was asked, as to where he was coming from and where he was going. He also added that P.C. Kara told him that it would be a “problem” if Curry got into the taxi, prior to asking him the above questions. The surveillance video time clock establishes that the conversation between the officers and Curry, at the passenger side of the taxi, likely lasted for less than forty-five seconds, given that P.C. Poole arrived at the rear passenger door at about 10:48:40 p.m. and the commotion at that side of the taxi, signaling the start of the physical detention, began at 10:49:27 p.m.

[93] Curry was a better witness than Byfield. Nevertheless, I have concerns about his credibility. He has a substantial history of criminal convictions for a young man. More importantly, there were a number of improbabilities in his account. He would not agree that he obtained the handgun in 2010 in order to assist him in drug trafficking activities that he commenced at that time and, instead, insisted that he obtained it because of “trauma” from a shooting incident involving a friend some two years earlier. He also insisted that he was not worried about the police, even when they followed him to the taxi and “got in his face”, at a time when he was admittedly carrying a loaded handgun in his waistband. Most importantly, the kinds of innocuous questions that he attributed to P.C. Kara, and that P.C. Poole admitted she usually asked, are inconsistent with the coercive and threatening suggestion that it would be a “problem” if he got in the taxi.

[94] I am satisfied, in all these circumstances, that Curry was only asked the same kinds of “exploratory” questions as Turner and Byfield were asked and that he was “delayed” from entering the taxi for less than a minute, as permitted by Suberu and Grant and without engaging s. 9 and s. 10 Charter rights.

[95] Accordingly, the “detention” of Curry and Turner occurred at the point in time when P.C. Chakal yelled “gun”, at the driver’s side of the taxi, and the officers took Curry and Turner to the ground, handcuffing them and searched them.

[96] The totality of the grounds that gave rise to P.C. Shin’s suspicions concerning the three men, which caused him to initially follow them to the taxi and to question Turner, and then caused him to take Turner to the ground, handcuff him and search him for weapons, were the following six circumstances:

• The building at 200 Chalkfarm Drive had been the scene of a shooting nine days earlier. The TAVIS officers had been briefed on the shooting at the start of their shift and one of their purposes in conducting the “walkthrough” of the building was to look for suspects. P.C. Shin had noted that the black male suspect was described as wearing a grey hat with ear flaps;

• The building and the area around it were known to the police, including P.C. Shin, for having a high crime rate;

• As the three accused exited the building, P.C. Shin noticed that Curry was wearing a grey hat with ear flaps, similar to the description of the hat worn by the suspect in the prior shooting at the building. The surveillance video confirms this observation. It is a reasonably distinctive hat;

• P.C. Shin tried to engage the young men in conversation but they turned their heads away, avoided eye contact, and seemed to quicken their pace as they walked away;

• P.C. Shin inferred that the three men were associates. This was a reasonable conclusion as they exited the building together, they walked together, and they all proceeded to the same taxi that was waiting at the curb;

• P.C. Shin heard P.C. Chakal scream “gun”, from the driver’s side of the taxi, and he saw officers engaged in a struggle with Byfield. P.C. Shin believed, in the circumstances, that Byfield had a gun. P.C. Shin’s predominant concern was officer safety and public safety and he wanted to determine whether Turner also had a gun.

[97] The totality of the grounds relied on by P.C. Poole and P.C. Kara, for taking the same action in relation to Curry, were as follows:

• Their first two grounds were the same as P.C. Shin’s, namely, their interest in looking for suspects in the prior shooting at the building and the fact that it was a high crime area. However, neither of them noticed the resemblance between Curry’s hat and the suspect in the shooting, unlike P.C. Shin;

• P.C. Poole believed that the three men were proceeding as a group to the taxi. However, neither she nor P.C. Kara articulated a belief that the three men were associates, in quite the same manner as P.C. Shin, when explaining their grounds. In addition, P.C. Poole and P.C. Kara were not close to the three men when they exited the building and so they did not share the same detailed initial observations of the men as P.C. Shin or P.C. Chakal. I am satisfied that P.C. Poole and P.C. Kara, who both arrived at the entrance to the building after P.C. Chakal and P.C. Shin, followed the three men to the taxi primarily because P.C. Chakal and P.C. Shin had followed them. In other words, P.C. Poole and P.C. Kara were implicitly relying on whatever it was that their colleagues had observed and that had caused their colleagues to want to investigate the three young men;

• Finally, and most importantly, P.C. Poole and P.C. Kara both heard P.C. Chakal yell “gun” from the other side of the taxi. Curry agreed, in his testimony, that this was what precipitated his immediately ensuing physical detention. Unlike P.C. Shin, who was near the trunk at the back of the taxi and who could see P.C. Chakal struggling with Byfield for the gun, P.C. Poole was at the rear passenger side door and did not see these events on the other side of the taxi. She did not know what P.C. Chakal had seen or who had the gun. She believed that P.C. Chakal may have seen a gun on Curry. It is agreed, as between Curry, P.C. Kara, and P.C. Poole, that as soon as the two officers took Curry to the ground they asked him “where’s the gun”. This admitted fact tends to support P.C. Poole’s asserted belief that it may have been Curry who was seen to have a gun by P.C. Chakal. As already noted, I found P.C. Poole to be a fair and credible witness. Like P.C. Shin, the predominant concern of P.C. Poole and P.C. Kara was officer safety and public safety, once they heard P.C. Chakal yell “gun”.

[98] It can be seen that P.C. Shin, P.C. Poole and P.C. Kara all had some degree of belief that Curry and Turner might have a gun on their person, once P.C. Chakal yelled “gun”, and that they detained and searched these two accused for reasons of officer safety and public safety. The issue is whether that belief rose to the level of “reasonable suspicion” which is required at common law for a brief investigative detention and pat search for a weapon.

[99] I have already set out the leading authorities on this point, when discussing Byfield’s Charter Motion. The standard is whether the officers believed there was a reasonable “possibility” that Curry and Turner were armed with a gun, based on “objective grounds” and on a “demonstrable rationale”. I am satisfied that P.C. Shin’s belief, in relation to Turner, meets this standard. The six circumstances observed by P.C. Shin provided an objectively reasonable basis for suspecting Turner may have a gun. P.C. Shin believed that P.C. Chakal had seen a gun on Byfield, he believed that Curry’s reasonably distinctive hat matched the hat worn by a suspect in a recent shooting at the same building, and he believed that the three men were associates who were jointly proceeding to the same taxi in order to leave. The other circumstances relied on by P.C. Shin, such as the high crime neighbourhood and the accused’s less than cooperative response to the initial police inquiries, were of little probative value, standing alone. However, the totality of the circumstances, especially the three strong objective facts set out above, justified a common law detention of Turner and a quick pat search for guns.

[100] In all these circumstances, there was no violation of Turner’s s. 9 or s. 8 Charter rights. As to the delay in informing Turner of his s. 10 Charter rights, the evidence is that P.C. Keveza assisted P.C. Shin in searching and handcuffing Turner and that it was P.C. Keveza who actually found the gun in Turner’s jacket pocket. P.C. Shin then went to assist P.C. Kara with the arrest and search of Curry while P.C. Keveza rendered Turner’s gun safe. A third officer, P.C. Inglis, took custody of Turner and advised him of his s. 10 rights. There is no evidence as to the amount of time, if any, that elapsed between the finding of the gun on Turner and rendering it safe and then the reading of his s. 10 rights by P.C. Inglis. It is properly conceded by Mr. Bogle, counsel for Turner, that the police were entitled to seize and render Turner’s firearm safe, before advising him of his s. 10 rights. I am not persuaded that there was any violation of Turner’s. s 10 Charter rights. His Charter Motion is dismissed.

[101] It is a closer case as to whether P.C. Poole and P.C. Kara had “reasonable suspicion” in relation to the detention and search of Curry. However, I am also satisfied that they met the requisite standard. They did not see everything that P.C. Chakal and P.C. Shin saw, because they were behind these two lead officers. However, they were entitled to implicitly rely on their colleagues by following them and engaging Curry. Furthermore, it was a strong and obvious inference that the three men were associates, that at least one of them had a gun and that they were leaving a building where there had recently been a shooting. Although P.C. Poole was mistaken in believing it was possible that P.C. Chakal had seen the gun on Curry, I am not satisfied that the defence has established, to the requisite balance of probabilities standard, that this was an unreasonable possibility. It must be remembered that it was dark at the taxi, the events happened suddenly and rapidly, and there was great danger, given the known presence of a gun at the scene of a recent shooting. As Rosenberg J.A. put it is another “close case”, speaking for the Court in R. v. Polashek, supra at para. 19, “the test for finding reasonable grounds for arrest is not as exacting as it might be in other situations where reasonable grounds are required” because “the officer’s decision … must be made quickly in volatile and rapidly changing situations” while relying on “available information which is often less than exact or complete”, citing Doherty J.A.’s reasons for the Court in R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.). This was precisely the situation faced by P.C. Poole in the context of a common law detention. She had incomplete information and she was suddenly in a dangerous situation requiring an immediate decision. She had sufficient grounds, in my opinion, to briefly detain Curry and conduct a pat search for weapons. Also see: R. v. Clayton and Farmer (2007), 2007 SCC 32, 220 C.C.C. (3d) 449 at para. 124 per. Binnie J. (S.C.C.).

[102] It must be remembered, in this regard, that the common law standard is flexible. It balances “the seriousness of the risk to public or individual safety with the liberty interests” at stake. In the present case, as in Clayton and Farmer, the risk to the public was great and the actions of the officers must be measured in this context. See: R. v. Clayton and Farmer, supra at paras. 31-5, 38-41, and 45-7 per. Abella J.

[103] As in Byfield’s case, I am satisfied that a technically correct “pat search” of Curry’s groin area, without lifting his shirt, would have been more intrusive than simply lifting his shirt to reveal his waistband where the gun was plainly visible. Accordingly, there was no violation of Curry’s s. 9 or s. 8 Charter rights.

[104] In Curry’s case, unlike Byfield and Turner, counsel has succeeded in establishing a seven or eight minute delay between the detention, search and arrest of Curry, at about 10:49 or 10:50 p.m., and the reading of his s. 10 Charter rights at the police car at 10:57 p.m. Mr. Richardson, counsel for Curry, submits that this contravenes the duty to fulfill the informational components of s. 10 “without delay”, even if there was no opportunity to facilitate and exercise s. 10 rights during the period of delay at the crime scene and even though no evidence was tendered at trial, such as a statement, obtained during the period of delay. P.C. Poole explained the delay as being due to the volatile situation and the officers’ concern to ensure everyone’s safety.

[105] The governing law on this point is succinctly set out in R. v. Suberu, supra at para. 42:

To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words “without delay” mean “immediately” for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. [Emphasis added].

[106] It can be seen that the duty to “immediately” inform Curry of his s. 10 rights is subject to “concerns for officer or public safety”. I am not persuaded, on a balance of probabilities, that seven or eight minutes of delay, between Curry’s arrest and the officers’ compliance with s. 10, violated the principles set out in Suberu in the particular circumstances of this case. The officers had just arrested three men and had just seized three loaded handguns. One of the arrests involved a violent struggle and it required at least four police officers to subdue this one accused. The three guns had to be proved safe and had to be secured as exhibits for trial. It was dark outside and the officers were in a very public place with both cars and occupants of the apartment building coming and going It made sense to walk Curry away from all the commotion and read him his s. 10 rights in the more private, calm and quiet space of the parked police car.

[107] In the result, there was no violation of Curry’s s. 10 rights. The Charter Motion brought on behalf of Curry is dismissed.

[108] I should not leave Turner’s and Curry’s Charter Motions without addressing one further argument advanced by Mr. Bogle and Mr. Richardson. They submitted that the forceful throwing of their clients to the ground, followed by handcuffing, was not a common law detention but was an arrest. Accordingly, the higher statutory and constitutional standard of “reasonable and probable grounds” had to be met and not mere “reasonable suspicion”. They rely on the well-known meaning of “de facto arrest”, without the necessity of uttering “words of arrest”, namely, “the actual seizure or touching of a person’s body with a view to his detention”. See: R. v. Latimer (1997), 1997 CanLII 405 (SCC), 112 C.C.C. (3d) 193 at paras. 24-5 (S.C.C.), R. v. Whitfield, 1969 CanLII 4 (SCC), [1970] 1 C.C.C. 129 at 130 (S.C.C.).

[109] Of course, the Supreme Court of Canada was not attempting to distinguish an arrest from a common law investigative detention in either Latimer or Whitfield. Indeed, the Court did not clearly recognize the power of investigative detention until seven years after Latimer, in Mann. In many cases involving common law investigative detentions, the officer will touch the suspect with a view to briefly detaining him. In all these cases, the definition of a “de facto arrest” would technically be satisfied.

[110] The problem is further complicated, on the particular facts of the case at bar, by the public safety concerns that arose when P.C. Chakal yelled “gun” while everyone was standing in the middle of a busy public place. It is well established that the common law imposes a “general duty” on the police “to protect life”, that is, to assist anyone who is in danger or distress. The duty is not necessarily connected to “criminal activity” and it requires that the police take reasonable and necessary steps to “prevent death or serious injury”. See: R. v. Dedman (1985), 1985 CanLII 41 (SCC), 20 C.C.C. (3d) 97 at 103 and 119-122 (S.C.C.); R. v. Godoy (1999), 1999 CanLII 709 (SCC), 131 C.C.C. (3d) 129 (S.C.C.); Brown v. Durham Police Force (1998), 1998 CanLII 7198 (ON CA), 131 C.C.C. (3d) 1 at para. 63 (Ont. C.A.); R. v. Waugh (2010), 2010 ONCA 100, 251 C.C.C. (3d) 139 (Ont. C.A.); R. v. Hewitt (2009), 2009 CanLII 15657 (ON SC), 189 C.C.C. (2d) 290 (Ont. S.C.J.); R. v. Wesley (2005), 68 W.C.B. (2d) 228 (Ont. S.C.J.).

[111] On a fair reading of the evidence of P.C. Shin, P.C. Poole and P.C. Kara, they instinctively and immediately took themselves and the person closest to them to the ground, as soon as they heard the word “gun”, for reasons of public safety. Det. Purches, who is an experienced officer and who I found to be a reliable witness, confirmed that police training is to get everyone down on the ground for reasons of safety when an officer yells “gun”. If there is a risk of bullets flying about in a public place, it is reasonable and necessary to interfere with the liberty of any nearby member of the public, to this limited extent, in order to carry out the common law duty to “prevent death or serious injury”.

[112] Accordingly, on the particular facts of this case, taking Curry and Turner to the ground does not indicate a “de facto arrest” but indicates an exercise of the common law duty “to protect life”.

[113] The same analysis, however, cannot extend to handcuffing Turner and Curry, questioning Curry as to “where’s the gun”, and searching both Curry and Turner for weapons. These were exercises of criminal investigative duties and powers and they can only be explained or justified on the basis of statutory arrest powers or common law powers of investigative detention.

[114] 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), 1998 CanLII 5926 (BC CA), 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.).

[115] 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.

[116] For all these reasons, I was satisfied that the police were, in reality, exercising common law powers of investigative detention and not statutory powers of arrest.

(iv) Section 24(2) of the Charter and exclusion of evidence

[117] As I have not found any Charter violations, it is not strictly necessary to address s. 24(2) and the test for exclusion of evidence.

[118] Had I found any violations of the s. 10 rights of the accused, I would not have excluded the evidence. Any slight delay in informing the accused of their s. 10 rights, in the circumstances of this case, would not have been serious. The accused could not exercise their right to counsel at the roadside and the police could not facilitate it. Furthermore, there is no connection between any violation of s. 10 rights and the seizure of the guns. Had the Crown attempted to tender the utterance allegedly made by Curry, when asked “where’s the gun”, then the s. 24(2) balancing would have been different. See: R. v. Debot (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 at 200 and 221-2 (S.C.C.); R. v. Polaschek, supra at paras. 27-30.

[119] Similarly, had I found any violation of s. 9 and s. 8 rights, it would not have been serious. The officers had grounds to suspect the three accused were in possession of concealed weapons. The sufficiency of those grounds is a difficult judgment call, made in fast-moving and dangerous circumstances. If the officers’ grounds fell short of the “reasonable suspicion” standard, it was not by much. Furthermore, the evidence of the seized guns was reliable and essential to the Crown’s case. On a somewhat similar set of facts, in R. v. Dene, supra at para. 6, the Ontario Court of Appeal held that there was a valid investigative detention at common law. In any event, the Court held that they would not have excluded evidence of the handguns seized from the two accused:

Finally, even if, as the appellants submit, the searches exceeded what would be permitted in the context of an investigative detention, we would not interfere with the trial judge’s conclusion that the evidence should not be excluded under s. 24(2). Putting the appellants’ case at its highest, the searches barely exceeded the permissible limits. The Charter-infringing state conduct was not serious; the impact of the breach on the Charter-protected interests of the appellants was minor; and the state’s interest in adjudication of the case on the merits is high.

[120] In another case bearing some resemblance to the case at bar, R. v. Clayton and Farmer, supra at paras. 53 and 130-1, the Supreme Court of Canada unanimously approved of Durno J.’s reasons at trial relating to the s. 24(2) issue in that case. Durno J. admitted two loaded handguns into evidence in spite of finding violations of ss. 8 and 9 of the Charter. He stated:

… the evidence sought to be excluded is essential to the prosecution of serious charges. The officer had legitimate concerns for his safety. Given the fast-paced events over a short period of time, as noted above, the officers had to make quick decisions without time for reflection … To exclude the evidence of a loaded gun in these circumstances, would bring the administration of justice into greater disrepute than would occur if it was admitted.

[121] One further consideration that argues in favour of admission of the handguns, in this case, is that my assessment of the cumulative observations of all the officers is that they easily satisfied the standard of “reasonable suspicion” in relation to all three accused. Of course, I have had the great advantage of hearing all of the officers’ evidence at a trial as well as having the further luxury of judicial reflection. None of the officers at the scene had these advantages. It was only because of the exigent circumstances, that existed at the time, that the officers did not have time to confer and share and carefully assess the totality of all their observations, prior to detaining and searching the three accused. Absent the exigent circumstances, the officers could have conferred and then realized that their collective observations easily amounted to reasonable suspicion in relation to all three accused. In these circumstances, the three accused would have been lawfully detained and pat searched and the three guns would inevitably have been discovered. See: R. v. Grant, supra at paras. 122 and 137.

[122] For all these reasons, I would have admitted the guns and the ammunition pursuant to s. 24(2) of the Charter, even if I had found violations of ss. 9 and 8.

D. CONCLUSION

[123] The Charter Motions of the three accused are all dismissed. The evidence of the three seized handguns and the ammunition is admitted. In these circumstances, there is no dispute that the Crown has proved all essential elements of the remaining counts in the Indictment. The accused are guilty on Counts 1, 2, 3, 4, 5, 6, 7, 8, 14, 15 and 16. The other counts were dismissed, at the close of the Crown’s case, on consent. I will hear submissions at the time of sentencing as to which counts should be stayed pursuant to the Kienapple principle.

M.A. Code J.

Released: May 29, 2012

COURT FILE NO.: 11-40000402-0000

DATE: 20120529

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

RONALD BYFIELD, MARVIN TURNER AND TRISTAN CURRY

REASONS FOR JUDGMENT

M.A. Code J.

Released: May 29, 2012

Her Majesty the Queen v. Ronald Byfield, Marvin Turner and Tristan Curry, 2012 ONSC 2781

Case Summary

REASONS FOR JUDGMENT

A. OVERVIEW

B. FACTS

(i) Introduction

(ii) The police accounts of their initial observations of the three accused

(iii) The police accounts of events at the taxi, relating to Byfield

(iv) The police accounts of events at the taxi, relating to Turner and Curry

(v) The police account of Byfield’s arrest and the issue of the lost red purse

(vi) Ronald Byfield’s account of his arrest

(vii) Tristan Curry’s account of his arrest

C. ANALYSIS

(i) Introduction

(ii) The detention and search of Byfield

(iii) The detention and search of Curry and Turner

(iv) Section 24(2) of the Charter and exclusion of evidence

D. CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 6

Legal Tests 2

Legislation 7