ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-50000251-0000
DATE: 2014/04/22

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RAPHAEL KOFI ODURO

Accused

Stephanie Henderson, for the Crown

James Miglin, for the Accused

HEARD: April 15 and 16, 2014

DECISION ON A RULING

(under s. 8 and s. 9 of the Charter of Rights)

B.A. ALLEN J. (Orally)

BACKGROUND

The Radio Call and the Scene

[1] Raphael Kofi Oduro is charged with seven offences, possession of a loaded hand gun, weapons dangerous, unauthorized firearm, assault police/resist arrest and possession of cocaine.

[2] On May 11, 2012, P. C. John Darnell and P.C. Rolf Smith of Toronto Police Services, 12 Division, received a radio call at 12:50 a.m. to attend at Kapsoo Kim’s Taekwondo training facility located at 606 Trethewey Dr. Mr. Kim had called the police about being assaulted by one of five men who were hanging around outside the windows of his business premises located at the northwest corner of Trethewey Dr. and Brookhaven in a plaza. When they arrived at the scene at 12:55 a.m., the officers were on uniform duty in a marked patrol car with P.C. Darnell driving and P.C. Smith as the passenger.

[3] P.C. Darnell testified that the radio gave only the gender of the five people and no further descriptors. Neither officer noted any other descriptors in their memo books. Despite not noting the race of the five men as black in his memo book, P.C. Smith testified the radio call did indicate the males were black. He indicated that sometime before trial he asked to see (or hear) the radio call and he testified at trial that it indicated the five men were black males.

[4] The radio call was not evidence before the court. Nor did the Crown take the position I should accept this evidence. The evidence I accept therefore is that the radio call provided only the gender of the men. So the officers did not know the men’s race before they arrived at the plaza.

[5] The plaza also housed a number of other businesses including a convenience store and a bar called Marcus Garvey which was located to the west of Mr. Kim’s business. Above the plaza were residential apartments. The Marcus Garvey bar appeared to be the only business open when the police were called. By the officers’ accounts there were only a few people present outside the plaza when they arrived. There were a few people standing outside Marcus Garvey. The plaza parking lot was nearly full of vehicles. P.C. Darnell pulled up to the public sidewalk on Trethewey in front of Mr. Kim’s business. When the officers arrived, they saw five black males standing together outside the windows on the east side of Mr. Kim’s premises.

The Accused’s Encounter with the Police

[6] Mr. Oduro was one of the five men. Both officers testified that when they saw the police car pull up, they looked over at the police and all began walking away. The officers testified that when they first observed the five males, P.C. Darnell got out of the patrol car and shouted out a command ordering them to stop. There is some variance in the evidence as to P.C. Darnell’s exact words. He thought his first command was something along the lines of “Stop, police!” Video surveillance recorded at the time the police arrived on scene was shown in court and made an exhibit. A voice is heard shouting “Come here!” P.C. Darnell acknowledged that it was him uttering those words. The officers testified however that other commands of “Stop, police!” were shouted when they were subsequently pursuing the accused.

[7] I am not convinced that much turns on the exact words the police used to get the five men’s attention. There is no issue of a problem with hearing distance that would suggest the police cruiser was not in close enough proximity to the five men. Moreover, it would have been obvious in view of the police uniforms and marked cruiser that it was the police who were calling the men’s attention and asking them to stop.

[8] There is what I regard as a slight variance in the officers’ evidence as to the location of the five men when the cruiser pulled up outside Mr. Kim’s premises. The officers agree they were on the eastern Brookhaven side of the premises outside the windows. P.C. Darnell testified he first saw them walking southward on that side of the premises. P.C. Smith testified when he first observed them, they were standing outside of the windows on that side of the premises. I do not find that evidence is necessarily contradictory. The officers likely made their observations an instant apart. P.C. Darnell as the patrol car driver and P.C. Smith as the passenger had different functions and different vantage points. It makes sense that P.C. Smith saw the men before they started to walk and P.C. Darnell, his attention taken up with driving and parking the vehicle, would reasonably have seen them a bit later after they started to walk.

[9] The officers both testified that the five men then walked westward on the sidewalk immediately in front of the plaza businesses towards the Marcus Garvey bar, with one man walking more quickly than the others. That man, who as it turned out was Mr. Oduro, then walked southward cutting between the cars in the parking lot to the public sidewalk on Trethewey in front of the plaza. The officers testified that Mr. Oduro was walking faster than the other four men and maintained some distance between him and the others. When Mr. Oduro reached the public sidewalk, he began to run quickly along Trethewey in a westward direction. The officers took chase after Mr. Oduro with P.C. Darnell in the lead.

[10] The officers testified they became especially suspicious of Mr. Oduro because he walked quickly ahead of the others when the police arrived and then began to run. They thought he was possibly the person who assaulted Mr. Kim since he appeared to have the greatest interest in leaving the scene quickly.

[11] Both officers observed that as Mr. Oduro ran, his right arm was swinging in the usual manner as occurs when a person is running. But from behind they could see that his left arm was not moving. It appeared his left forearm was being held to the front of his body since all they could see was the back of his upper arm. The officers testified that their experience as police officers taught them that this behaviour with his left arm meant Mr. Oduro could possibly be securing a firearm or other weapon as he ran.

[12] It was dark in the area of the pursuit. Mr. Oduro ran over to a residential area situated in a crescent-shaped section on the north side of Trethewey, and ran onto the shared driveway between the houses at 638 and 640. P.C. Darnell continued to follow Mr. Oduro and lost sight of him at this point. P.C. Smith remained in front of 638. P.C. Darnell looked into the back yard of 638 and saw movement and then saw Mr. Oduro running southward between 638 and 640. P.C. Darnell then yelled to P.C. Smith that Mr. Oduro was running back around to the front of 638. Immediately, upon looking to the front of 638, P.C. Darnell saw P.C. Smith on top of Mr. Oduro in a struggle on the ground.

[13] P.C. Smith described the struggle. He testified that when Mr. Oduro came around to the front of 638, he had a silver hand gun in his right hand and was holding it in front of him at shoulder level. They were running toward each other. P.C. Smith testified he did not have time to draw his firearm, so he grabbed Mr. Oduro’s right hand. Mr. Oduro attempted to hit the officer who then did a hip toss, a judo manoeuvre that resulted in Mr. Oduro falling to the ground. Mr. Oduro let go of the firearm and it flew some yards away and landed on the ground. P.C. Smith shouted to P.C. Darnell that Mr. Oduro had thrown a firearm.

[14] P.C. Smith and Mr. Oduro were wrestling on the ground with Mr. Oduro face down and P.C. Smith on top of him when P.C. Darnell arrived to assist. P.C. Darnell testified Mr. Oduro also hit him several times when he was helping his partner. Mr. Oduro was lying with his arms underneath his chest and refused to release them. P.C. Smith said he feared Mr. Oduro might have had another weapon and testified he had to strike Mr. Oduro on the arms and possibly on the side of the face to make him release his arms so he could be cuffed to the back. This was a fast moving dynamic encounter. Mr. Oduro was arrested at 12:57 a.m. for the firearm offences and transported to 12 Division. The entire encounter lasted only two minutes.

[15] At the police station, Mr. Oduro underwent a level three strip search in accordance with accepted police protocol. The police retrieved 1.04 grams of crack cocaine from Mr. Oduro’s buttocks cheeks. He was further charged with possession of crack cocaine.

ANALYSIS

[16] The basic principles governing police authority to detain are well-established. Section 9 of the Charter provides everyone has the right not to be arbitrarily detained or imprisoned. It is the defence’s burden to prove on a balance of probabilities that a detention was arbitrary.

[17] Courts have considered the concept of “arbitrary detention”. The Supreme Court of Canada in R. v. Grant held for a detention to be non-arbitrary it must be authorized by law and the law itself must be non-arbitrary. The authority to detain can arise at common law [R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C)].

[18] The law permits a police officer to briefly detain a subject for investigative purposes where, in the totality of the circumstances, the officer has reasonable grounds to suspect a clear connection between the individual to be detained and a recently committed or unfolding criminal offence. This type of detention is not considered a breach of s. 9 Charter. The law stipulates police are authorized to detain to preserve the peace, to prevent crime and to protect life and property [R. v. Dedman, 1985 41 (SCC), [1985] 2 S.C.R. 2 (S.C.C.)].

[19] A reasonable detention requires there be a constellation of discernible facts that give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation [R. v. Simpson (1993), 1993 3379 (ON CA), 79 C. C. C. (3d) 482 (Ont. C. A.)]. The court must assess the reasonableness of the decision to detain in the context of all the circumstances [R. v. Mann, [2004] 2 S.C.R. 59, para. 20, (S.C.C.)].

[20] The Supreme Court of Canada has defined detention as that point when the state has taken explicit control over a person or when the control can be said to be exercised on a psychological level. It is that point when the person does not feel they have a choice as to whether to stay and speak to the police or to leave [R. v. Grant, supra, at paras. 22, 30 and 31]. Detention can only occur where there is a suspension of the individual’s liberty interest by a significant physical or psychological restraint [R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33, at para.25, (Ont. S.C.J.)]

[21] There is a legal nexus between police detention and subsequent steps taken by the police. It stands to reason that any arrest or search that follows upon an unlawful detention is itself unlawful. Mr. Oduro was arrested but not searched at the scene. So if the police action amounted to a detention and the detention was not lawful, then his subsequent arrest and the search of Mr. Oduro at the police station would be unlawful.

[22] The courts have drawn some limits on when police interaction with civilians does or does not amount to detention. It is reasonable that not every stop by police for the purposes of identification or an interview can be said to be a detention. An interaction with police that simply results in a delay, but does not involve physical or psychological restraint, does not engage Charter considerations [R. v. Mann, at para. 19]. Police are entitled to approach subjects and ask questions to obtain information in furtherance of their investigation with the understanding that those approached do not have a legal duty to answer those questions. They may just walk away [R. v. Grant, at para. 37].

[23] Even a police encounter prompted by a “focussed suspicion”, rather than by general neighbourhood policing, is not necessarily a detention. A distinction arises with the nature of the police interaction with the subject [R. v. Grant, para. 41].

[24] The first step in the analysis then is to establish whether the police interaction with Mr. Oduro, when they first approached him among the other four men, actually amounted to a detention. If it was a detention the question then becomes whether the detention was unlawful. Again, it is the defence’s burden to prove there was a detention and that it was unlawful.

[25] The defence argues Mr. Oduro was detained when P.C. Darnell uttered the warning “Come here!” after he got out of the police car. The defence says the order was loud and coercive and amounted to psychological detention. According to this view the arrest, the retrieval of the firearm and the search resulting in discovery of the drugs were therefore unlawful.

[26] The Crown takes the position, with which I agree, that there was no detention − that the police’s interaction in saying “Come here!” or “Stop police” was not a command resulting in psychological detention. The officers testified they wanted to ask questions to get the five men’s information about the assault and the Crown asserts this was within their authority and is in fact an obligation when police are called to investigate a complaint. The Crown’s position is clearly in accord with the law developed in our courts.

[27] The police never got the opportunity to ask questions, questions which Mr. Oduro would have been entitled to refuse to answer. He instead ran away from the police. In an earlier decision, this court drew a distinction between those persons who when asked refuse to answer police questions and those who run from the police. The court in that case rejected the defence’s position that if an accused has a right to refuse to answer questions and walk away he has the right to run. The court disagreed, observing that common sense does not permit a conclusion that individuals who attempt to flee the police should be treated as equivalent to those who decline to answer police questions [R. v. Jackson, [2002] O.J. No. 4005, at para. 13, (Ont. S.C.J.)]. I agree that fleeing the police sets up a different dynamic and can in itself lead to a reasonable suspicion that the fugitive might be involved in criminal activity.

[28] The defence has failed to satisfy its burden. I find on the facts before me that there was no detention of Mr. Oduro before he ran from the police. The law provides that where there is no detention, that is, no physical or psychological restraint, a Charter violation cannot have occurred.

[29] When Mr. Oduro fled the police a new constellation of facts, giving rise to reasonable suspicions by the police, emerged.

[30] Some five minutes after the police received the complaint from Mr. Kim, Mr. Oduro was standing as one of five men outside Mr. Kim’s premises. As the police arrived, he immediately walked away leaving the other four walking behind him and then ran away from the police ignoring the police’s warnings to stop. This reasonably raised an initial suspicion in the officers’ minds that Mr. Oduro might have been the one among the five men who assaulted Mr. Kim.

[31] The police’s suspicions were further heightened as to the possible commission of another offence by Mr. Oduro’s positioning of his left arm when he was running. They suspected from their policing experience that this was a sign that Mr. Oduro was carrying a firearm. The officers’ suspicions unfortunately materialized. Mr. Oduro approached P.C. White pointing a loaded firearm which in the scuffle he threw some distance. A search of Mr. Oduro on the scene was therefore not required. Mr. Oduro’s arrest at the scene and subsequent strip search clearly followed upon a lawful detention and therefore resulted in no violation of Mr. Oduro’s Charter rights.

[32] Fortunately for Mr. Oduro, Officer Smith was able to safely disarm him. Fortunately for Mr. Oduro, he was alive to be arrested and charged and is alive to stand trial and assert his constitutional rights.

DISPOSITION

[33] There was no violation of Mr. Oduro’s s. 8 or s. 9 Charter rights. I therefore admit the firearm and cocaine in evidence at trial.

B.A. Allen J.

Released: April 22, 2014

COURT FILE NO.: 13-50000251-0000
DATE: 2014/04/22

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

RAPHAEL KOFI ODURO

Accused

REASONS FOR JUDGMENT

B.A. Allen J.

Released: April 22, 2014