Court File and Parties

Court File No.: CR-18-4-090 Date: 2019-05-31 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: Jaleel Williams

Counsel

Andrew Weafer, for the Crown Michael Hayworth, for the accused

Heard

May 6, 7, 13, 15, 16 & 17, 2019

Ruling on Voir Dire

P.J. Monahan J.

[1] Jaleel Williams was charged with robbery, use of an imitation firearm, and various other offenses arising out of a robbery that took place on January 21, 2017 at the Melody Spa in Toronto. Mr. Williams sought to exclude certain items of evidence that were seized as the result of a search conducted when he was stopped and detained by the police, approximately 40 minutes after the robbery had taken place. He argued that his detention and search violated his rights under ss. 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms, and that the evidence should therefore be excluded under s. 24(2) of the Charter.

[2] The Crown argued that there was no Charter violation and, even if there was, the evidence should not be excluded pursuant to s. 24(2) of the Charter. The Crown also sought the admission of certain utterances that Mr. Williams made to the police in the booking hall at the police station following his arrest, on grounds that the utterances were voluntarily made.

[3] At the conclusion of the voir dire, I found that Mr. Williams’ detention and search violated his rights under ss. 8 and 9 of the Charter, and that admission of the evidence would tend to bring the administration of justice into disrepute. Accordingly, I ruled that the evidence seized as a result of the search should be excluded, under s. 24(2) of the Charter. I further found: (i) there was no violation of Mr. Williams’ right to counsel pursuant to s. 10(b); and (ii) that Mr. Williams’ utterances in the booking hall at the police station were voluntary and should be admitted as evidence at trial.

[4] As a result of these rulings, the Crown did not tender any evidence and I found Mr. Williams not guilty of the offences with which he was charged.

[5] I indicated that I would provide written reasons at a later date for my rulings on the voir dire. These are my reasons.

Detention, Search and Arrest

[6] Shortly after 7:00 p.m. on January 21, 2017, three suspects robbed the Melody Spa at the corner of Sheppard Avenue East and Willowdale Avenue in Toronto. The suspects had fled east along Sheppard Avenue, running on foot toward Bayview Avenue. One of the victims of the robbery briefly gave chase, but lost sight of the suspects as they ran away.

[7] At 7:24 p.m., information about the robbery and a description of the suspects was broadcast over police radio. The first suspect was described as a young black male, six feet tall, wearing dark clothes and a black winter coat, possibly armed with a firearm. The other two suspects were described as black males, possibly in their teens, wearing dark clothing and hoodies covering their heads. The second and third suspects were described as being approximately five feet five or five foot six inches tall.

[8] Officers Daniel Kim and Jeff Jamieson responded to the robbery call at 7:28 p.m. Given that the suspects had last been seen running toward Bayview Avenue, Officers Kim and Jamieson attended at the subway station located at the corner of Bayview and Sheppard Avenue. They spoke with a TTC employee at the station, who indicated that he had not seen anyone matching the description of the suspects.

[9] Officers Kim and Jamieson then drove to the corner of Willowdale and Church Avenue, approximately 1.5 kilometres north of the Melody Spa, to establish a northern perimeter and to maintain a lookout for persons matching the descriptions of the robbery suspects.

[10] By approximately 8:00 p.m., Officers Kim and Jamieson had not observed anyone matching the description of the robbery suspects. They decided to “go mobile”, driving east one block along Church Avenue, and then turning south onto Longmore Street.

[11] At approximately 8:02 p.m., they observed a black male (who turned out to be the accused, Jaleel Williams) walking north on Longmore Street, wearing baggy black clothing. Williams appeared to the officers to be under 30 years old. Officers Kim and Jamieson, believing that Williams matched the description of one or more of the robbery suspects, drove past him and then did a U-turn to follow behind him.

[12] The officers observed Mr. Williams turning right (eastbound) onto Waring Court, which is a dead-end street running east off Longmore Street. Officers Kim and Jamieson turned right onto Waring to follow, and drove past him in their scout car. The officers then noticed that Mr. Williams crossed the street and began walking westbound on Waring Court, back toward Longmore Street. They spun their vehicle around and drove up beside him, just as he was crossing a lawn at the corner of Waring Court and Longmore Street.

[13] Initially, Officers Kim and Jamieson engaged Mr. Williams in conversation from their vehicle. However, after a few moments they exited the vehicle and approached him. The officers informed Mr. Williams that they were investigating a robbery and that he matched the description of a suspect in the robbery. They wanted to know where he was coming from and where he was going.

[14] Mr. Williams was initially vague and evasive in his answers. He indicated that he had been visiting a family member in the Yonge and Sheppard area, but he did not know the specific address. He indicated that he was attempting to get to Finch Avenue so that he could return home, which he said was in the Leslie and Finch area. He appeared to the officers to be lost.

[15] At some point in this conversation, Mr. Williams provided the officers with his name and date of birth. Officer Jamieson returned to the scout car to run some computer checks on Mr. Williams. Officer Kim informed him that he was being detained for investigative purposes and informed him of his right to counsel.

[16] Officer Kim decided that he didn’t want to conduct a pat-down search for weapons at that point, because Officer Jamieson was back in the scout car and he was concerned about Mr. Williams possibly being armed.

[17] At 8:10 p.m., Officers Jason Contant and Matthew Corsetti, who had heard over the police radio that a possible suspect had been located, arrived in a second scout car. They were briefed by Officer Kim as to his interactions with Mr. Williams.

[18] The in-car camera on Officers Kim and Jamieson’s scout car was not activated until 8:20 p.m. At that point, it showed Officers Contant and Corsetti standing beside Mr. Williams and engaging him in conversation. It is not possible to hear what is being said, [1] but Mr. Williams appeared calm and cooperative. In his testimony, Officer Contant indicated that he noticed that the drawstrings on Mr. Williams’ hoodie were drawn very tight and that he appeared nervous.

[19] After a few moments, Officers Contant and Corsetti began to search Mr. Williams. Mr. Williams handed over a black balaclava which had been stuffed into the front pocket of the hoodie he was wearing. Officer Contant feels around Mr. Williams’ waist, then unzips and lifts up his hoodie, and locates an iPad wedged into the waistband of Mr. Williams’ pants. The iPad was handed over to Officer Jamieson and Mr. Williams was handcuffed.

[20] Officers Contant and Corsetti then continued their search of Mr. Williams, lifting up his hoodie and reaching around and inside the back of his waistband, and searching through his clothing and pockets. The Officers located three bank cards, some cash and a pocket knife, but no firearm.

[21] As the search continued, Officer Jamieson was informed that the iPad and the bank cards matched those taken from the victims of the robbery. At approximately 8:26 p.m., Officer Contant retrieved his notepad and informed Mr. Williams of his rights incident to arrest.

[22] Mr. Williams was transported to 32 Division, arriving at approximately 8:53 p.m. The booking was captured on video. In the course of his booking, Mr. Williams stated that it was his “lucky day”, and he asked, “do you know what it feels like to walk down the street and find three debit cards and an iPad?”

[23] During the voir dire proceedings, Officers Kim, Jamieson, Contant and Corsetti testified with respect to the circumstances surrounding the detention, search, arrest, transport and booking of Mr. Williams. The video of the search of Mr. Williams was also played a number of times, as was a video of Mr. Williams’ booking at the police station. Mr. Williams did not testify on the voir dire.

Issues

[24] The following issues arise on this voir dire:

a. Did Officers Kim and Jamieson violate Mr. Williams’ s. 9 rights when they placed him in investigative detention? b. Did the search that was conducted violate Mr. Williams’s s. 8 rights? c. Did the officers violate Mr. Williams’s rights to counsel under s. 10(b)? d. If the officers did violate one or more of Mr. Williams’s Charter rights, should the evidence obtained through the search be excluded pursuant to s. 24(2)? e. Should Mr. Williams’ utterances at the booking hall be admitted on the basis that they were made voluntarily?

Did the Investigative Detention Violate Mr. Williams’ s. 9 Rights?

A. Commencement of the Investigative Detention

[25] It is sometimes unclear whether or when an investigative detention has commenced. No such difficulty arises in the present case.

[26] The Crown acknowledges that Mr. Williams was detained for investigative purposes at approximately 8:04 p.m., when Officers Kim and Jamieson stopped him at the corner of Longmore Street and Waring Court and got out of their scout car to question him. This conclusion follows from Officer Kim’s evidence that he intended to investigate Mr. Williams’ possible involvement in the robbery and that, from this point forward, Mr. Williams was not free to simply walk away. The Crown conceded that the investigative detention commenced from the point at which the officers exited their scout car, prior to the actual questioning of Mr. Williams.

[27] Although Mr. Williams did not testify, it is evident that a person in his position would have concluded that he was not free to simply walk away once the officers got out of the scout car. The police officers had turned their scout car around twice in order to follow him. After engaging him in conversation from within the scout car, both officers, who were armed and in uniform, had gotten out of the scout car in order to question him. There is no doubt, therefore, that the investigative detention commenced at this point, even though Officer Kim did not inform him of his detention until a few moments later.

[28] The issue that arises is whether the officers had sufficient grounds to place Mr. Williams under investigative detention at this point in time.

B. Governing Principles

[29] Individuals in Canada have the right to walk the streets free from state interference. While the police have an obligation to investigate crime, they have no generalized power to detain individuals who are going about their business, in an effort to investigate whether they may have been involved in criminal activity. [2]

[30] That said, in R. v. Mann, [3] the Supreme Court of Canada recognized a limited power to detain a person for investigative purposes, subject to two conditions. First, the detention must be premised upon reasonable grounds. This means that the detention “must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offense.” [4]

[31] Second, the detention must be carried out in a reasonable manner. Investigative detentions should generally be of brief duration, and the detained individual is under no obligation to answer questions posed by the police. [5] The reasonableness of an investigative detention must be assessed in light of all the circumstances, notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty that is being interfered with, and the nature and extent of that interference.

[32] In recognizing this limited power to detain for investigative purposes, Justice Iacobucci, who wrote the majority judgment in Mann, noted that there was potential for abuse inherent in such low-visibility exercises of discretionary power. The police duty to investigate crime does not empower them to undertake any and all action in exercise of that duty. Rather, a delicate balance must be maintained between legitimate police functions and the protection of individual liberties:

Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest. [6]

[33] Consistent with these principles, the burden is on the Crown to demonstrate that there are sufficient grounds to justify the warrantless interference with an individual’s liberty.

[34] In Mann, Justice Iacobucci found that the police officers in that case had reasonable grounds to detain the accused. He closely matched the description of the suspect given by radio dispatch and was only two or three blocks from the scene of the reported crime. Therefore, the initial decision to detain the accused was legally justified. [7]

[35] The police power to detain for investigative purposes was further considered by the Supreme Court of Canada in R. v. MacKenzie. [8] Justice Moldaver noted that in the context of detention, “reasonable grounds” means reasonable grounds to suspect that an individual is involved in particular criminal activity. Justice Moldaver emphasized that this “reasonable suspicion” standard, which involves a matter of possibilities, must be distinguished from reasonable grounds to believe that an individual is or has been involved in a particular offense, which involves a matter of probabilities. [9]

[36] Justice Moldaver further observed that the mere fact that a police officer may have a sincerely held subjective belief that an individual has been involved in particular criminal activity is insufficient to satisfy the “reasonable suspicion” standard. Rather, reasonable suspicion must be grounded in “objectively discernible facts which can then be subjected to independent judicial scrutiny.” [10]

[37] Justice Moldaver cautioned against courts “upping the ante for reasonable suspicion to the point that it virtually mirrors the test for reasonable and probable grounds.” [11] Moreover, reasonable suspicion must be assessed against the totality of the circumstances. Nevertheless, while “reasonable suspicion” is a lower standard than “reasonable and probable grounds”, both concepts must be grounded in objective facts that stand up to independent scrutiny. [12]

[38] Applying this standard, Moldaver J. held that the police in that particular case had an objective basis to support their suspicion that the accused might be involved in a drug-related offense. The relevant considerations included the accused’s erratic driving; his extreme nervousness upon being approached by police (which the officer described as “some of the highest nervousness” he had ever seen); physical signs consistent with the use of marijuana; and travel on a known drug pipeline. On this basis, Moldaver J. held that the police officers had sufficient grounds to “reasonably suspect” that the accused might be involved in drug-related activity, and his investigative detention was justified.

C. Application of the Principles

[39] The Crown argues that Officers Kim and Jamieson had a reasonable basis to detain Mr. Williams when they stopped him at the corner of Longmore Street and Waring Court. In particular, the Crown points to the following three grounds as the basis for their reasonable suspicion that he was involved in the Melody Spa robbery:

a. Mr. Williams matched the description of the suspects involved in the robbery, as he was a young black male, wearing dark clothing and a hoodie; b. his location, and the time at which he was observed, was proximate to the robbery at the Melody Spa; c. when the officers followed him in their scout car, Mr. Williams walked down a dead-end street and then turned around and walked the opposite way, in an apparent effort to avoid them.

[40] In assessing whether these three grounds collectively provided a reasonable basis to detain Mr. Williams, it is important to bear in mind that it is not sufficient for the police to detain someone on the basis of a generalized suspicion, or what is sometimes termed a “hunch”. Rather, as Justice Iacobucci pointed out in Mann, there must be a “clear nexus between the individual to be detained and a recent or on-going criminal offense.” The police must have a reasonable suspicion that this particular individual is implicated in the criminal activity under investigation. [13]

[41] The fundamental problem with the investigative detention that occurred in this case is that none of the factors relied upon by the Crown established a clear nexus between Mr. Williams and the robbery at the Melody Spa.

[42] Considering, first, the degree to which Mr. Williams fit the descriptions of the three robbery suspects, it is true that Mr. Williams was a young black male wearing dark clothing. However, both Officers Kim and Jamieson acknowledged that these were general or generic descriptors common to a large percentage of the population resident in this highly multicultural neighbourhood.

[43] In fact, Mr. Williams was not a particularly close fit with the description of the robbery suspects, for a number of reasons. These included the following:

a. Mr. Williams is five foot eight inches tall, whereas the first suspect was described as being six-feet tall, and the remaining two suspects were described as being either five foot five, or five foot six inches tall; b. The first suspect (who was thought to be in possession of a firearm) had been wearing a winter coat, while Mr. Williams was wearing a hoodie rather than a coat; c. Officer Kim observed that Mr. Williams was wearing light coloured shoes that appeared “kind of glossy”, with a black stripe pattern across the top. No such distinctive footwear was noted on the description of any of the robbery suspects.

[44] In short, while there were certainly similarities between the descriptions of the suspects and Mr. Williams, the similarities were general or generic, and the officers did not account for certain differences between Mr. Williams’ appearance and that of the suspects.

[45] Turning to the second ground supporting the detention, namely, Mr. Williams’ proximity to the robbery, when Mr. Williams was first observed by Officers Kim and Jamieson he was approximately 1.5 kilometres, or 14 blocks, north of the Melody Spa. It was also 40 minutes after the robbery.

[46] In his evidence, Officer Kim indicated that his practice was to establish a perimeter that was a considerable distance from the incident location, as much as two kilometres away. He had observed that other officers tended to establish a much tighter perimeter, perhaps no more than 150 metres from the incident location. In his experience, suspects typically will evade such a tighter perimeter within minutes.

[47] While casting a wider net in this fashion may well make sense from a law-enforcement perspective, it also weakens the connection or nexus between individuals caught within that net and a crime under investigation. This nexus grows even weaker the longer the time that elapses following the criminal incident under investigation. In fact, Officer Kim indicated that he decided to leave the Willowdale and Church location at 8:00 p.m. because he had concluded that no effective perimeter had been established.

[48] It should also be noted that the robbery suspects had last been seen running east on Sheppard Avenue towards the Bayview subway station, which was even further away from the location where Mr. Williams was observed at 8:02 p.m. Officer Kim did indicate that he had received an update at 7:42 p.m. indicating that the suspects had been seen heading north on Willowdale Avenue, one block away from the Melody Spa. Nevertheless, by the time the officers encountered Mr. Williams, it was almost 40 minutes after the robbery had taken place. The location where he was observed was approximately a 20-minute walk from the Melody Spa. In short, there was no particular reason to suspect that an individual walking along a street 1.5 kilometres north of the Melody Spa, after 8:00 p.m. on the evening in question, would had been involved in the robbery under investigation.

[49] The Crown argues that there was limited foot traffic on Longmore Street at this time of the evening. However, when the in-car camera in the police scout car was activated at 8:20 p.m., it almost immediately captured two individuals walking south on Longmore Street. The four police officers at the scene did not appear to pay any particular attention to these pedestrians, as their attention was focused exclusively on Mr. Williams.

[50] The testimony of Officer Jamieson is also telling. Officer Jamieson stated that if Mr. Williams had walked into a residence on Waring Court, they would simply have noted the address but not taken any further action at that time. This confirms that neither Mr. Williams’ description, nor his supposed proximity to the offense location, provided a “clear nexus” with the robbery at the Melody Spa.

[51] What of the fact that Mr. Williams walked down a dead-end street and then reversed direction after the police scout car began following him? Mr. Williams provided an explanation for his behavior, by indicating that he was lost and did not know how to get to Finch Avenue. I note that Officer Kim indicated to Officer Contant that Mr. Williams appeared to be lost. On this assumption, it would not have been unreasonable for him to have mistakenly walked down Waring Court, which was a dead-end street, and then reversed direction.

[52] In any event, even assuming that Mr. Williams was not lost, and he was merely trying to avoid the police, individuals are entitled to walk away from police who approach them on the street. This liberty must also include the right to walk in a different direction from a police car which begins following someone merely because they are walking down the street. Otherwise the “right to walk away” would be illusory if, upon exercising that right, the individual becomes subject to investigative detention.

[53] It is helpful to contrast the factors relied on to justify the detention in this case, with comparable circumstances in cases where an investigative detention was found to be justified:

a. In Mann, police had a distinctive as opposed to a generic description of the suspect, and the individual they observed matched the description “to the tee”. Moreover, the suspect was observed only two to three blocks from the reported crime shortly after it was reported. These factors were considered sufficient to justify the investigative detention in that case; b. In R. v. Clayton, [14] police responded to a 911 call reporting that four black males in the parking lot in front of a strip club were openly displaying guns. The 911 call identified four vehicles. The call was received at 1:22 a.m., and the police arrived on scene four minutes later. The police positioned their vehicle at the rear exit of the club’s parking lot. Almost immediately a car left the area and drove toward the exit. The police stopped the vehicle and proceeded to question the occupants. The Supreme Court included that the initial detention was justified because it took place within minutes of the 911 call, only those leaving the parking area were restricted in their movement, and the exits from the parking area were the principal escape routes for those seen with guns; c. In R. v. Peterkin, [15] police received a 911 call early in the morning on August 14, 2011, from a particular townhouse in Toronto. No one spoke and, when the operator called back, the line was busy. The neighbourhood where the call originated is one where police respond to a higher than usual number of violent radio calls, including reports of domestic abuse, gunshots, and shootings. Two police officers who arrived at the scene noticed an individual entering the fenced backyard of the townhouse where the 911 call had originated, and making a call on his cell phone. When they questioned him, he explained that he did not live in the townhouse and he was waiting for a ride. This explanation did not make sense to the officers since why would anyone walk into a backyard to make a telephone call to get a ride, rather than stand on the street to be more visible to the driver? They placed him under investigative detention which, on appeal, was conceded to be lawful.

[54] The bottom line is that in each of these cases, there was a clear nexus or connection between the individual placed under investigative detention and the particular incident that was under investigation. There were thus objectively identifiable facts providing a basis for the reasonable suspicion which gave rise to, and justified, the investigative detention.

[55] In contrast, no such nexus was present in this case. Mr. Williams was not a particularly close match to the descriptions of any of the robbery suspects. When he was first observed by police he was 1.5 kilometres away from the robbery location, and it was almost 40 minutes after the robbery had taken place. While he may have attempted to avoid the police by walking in a different direction, this did not in and of itself establish any connection with the robbery at the Melody Spa.

[56] I accept that the officers acted in good faith in detaining Mr. Williams, and that they subjectively believed they had reasonable grounds to suspect that he had been involved in the robbery. However, viewing the totality of the circumstances, I find that there was no objectively reasonable basis for the initial decision to detain Mr. Williams. Accordingly, the detention violated his right not to be arbitrarily detained, protected by s. 9 of the Charter.

[57] Not only was the initial detention not justified, I also find that it was not carried out in a reasonable manner. As Iacobucci J. noted in Mann, investigative detentions should be brief and should not become a de facto arrest. The reasonableness of the investigative detention must be assessed in light of a number of factors, including the extent to which the interference with individual liberty is necessary in order to perform the officer’s duty.

[58] When Officer Kim placed Mr. Williams under investigative detention, he intended to carry out a pat-down search for weapons. As is discussed below, where there are legitimate concerns for officer safety, a limited safety search is permissible in the context of an investigative detention.

[59] When the police officers first stopped Mr. Williams, he was not belligerent or aggressive. Assuming a pat-down search was appropriate, it could have been carried out by one of the officers with the second officer standing by to ensure officer safety. However, Officer Kim testified that Officer Jamieson had returned to the scout car to run computer checks on Mr. Williams. He thus wanted to delay the pat-down search until other officers arrived.

[60] I am prepared to accept that a short delay of a few minutes in conducting the pat-down search would have been appropriate. However, Officers Contant and Corsetti arrived on scene at 8:10 p.m. There were now four police officers present and no reason to delay the pat-down search any further. Yet, rather than proceed with the search at that point, the officers stood by and continued their detention of Mr. Williams, while Officer Jamieson spoke with the investigating officers at the scene of the robbery in an effort to obtain further information regarding items that had been stolen. When the in-car video was turned on at 8:20 p.m., three police officers can be observed standing around Mr. Williams and engaging him in conversation. Officer Jamieson was in the scout car speaking with other officers. The search was then commenced at approximately 8:21 p.m.

[61] Both Officers Jamieson and Kim were asked about the reasons for the delay in commencing the search. Officer Jamieson indicated that “there was no rush to conduct a search”. Officer Kim was unable to explain why the search was not commenced upon the arrival of Officers Contant and Corsetti on-site at 8:10 p.m.

[62] It must be remembered that at this point Mr. Williams had not yet been arrested for the robbery. He was merely being detained in order to permit the officers to investigate further. Even if, contrary to my earlier finding, the officers were justified in initially detaining Mr. Williams, that detention was permissible only to the extent necessary to permit the officers to perform their duty, but no more. While there may have been “no rush” to conduct a pat-down search, neither should the desire to conduct a pat-down search become an excuse for lengthening the period of detention.

[63] As Doherty J.A. noted in R. v. McGuffie, [16] a brief detention on the street to question an individual who is implicated in a criminal investigation may be justifiable under the Mann criteria. However, police cannot use the investigative detention as an excuse for holding suspects while the police search for evidence that might justify the arrest of the suspect. Similarly, as Iacobucci J. held in Mann, the police may not rely upon the need to comply with Charter provisions (in that case the right to counsel under s. 10(b)), as an excuse for prolonging, unduly and artificially, a detention that should be of brief duration. [17]

[64] The police power to detain individuals for investigative purposes is a limited one, which must be exercised with due regard for the important liberty interests that are at stake. Central to this liberty interest is the requirement that the detention should continue only for so long as is necessary to permit police officers to perform their duty. Given the absence of an explanation for the length of the detention in this case, I find that the Crown has failed to establish that the length of the investigative detention was necessary to permit the officers to carry out their necessary investigations.

[65] I therefore find that the initial decision to detain Mr. Williams, as well as the manner in which the detention was carried out, violated Mr. Williams’ right not to be arbitrarily detained.

Was the Search Unreasonable?

A. The Conduct of the Search

[66] At approximately 8:21 p.m., Officers Contant and Corsetti began the search of Mr. Williams. Although it is not possible to hear their conversation, Officer Contant can be observed on the in-car video pointing to the front pocket of Mr. Williams’ hoodie. Mr. Williams then pulled out a black balaclava, which he then handed over to Officer Contant.

[67] Officer Contant then patted down Mr. Williams’ waist area. After a few moments he unzipped Mr. Williams’ hoodie and lifted it up. He found an iPad wedged into Mr. Williams’ waistband. He removed the iPad and handed it to another officer nearby.

[68] Officer Corsetti then handcuffed Mr. Williams. The two officers continued their search of Mr. Williams, first lifting up his hoodie and T-shirt, and reaching inside the front and back of his pant waistband. The officers can be observed reaching into Mr. Williams’ pockets and pulling out whatever they found. Officer Corsetti located three bank or credit cards, which he examined and then handed over to another officer. A pocket knife, cash and some loose change were also removed from the pockets. Two other officers in plainclothes can also be observed on scene, one of whom shone a light on Mr. Williams. It is unclear who these police officers are, or what involvement they had in the investigation and detention.

[69] At approximately 8:26 p.m., Officer Contant can be observed pulling out his notebook. He appeared to inform Mr. Williams of his rights incident to arrest. Shortly thereafter, Mr. Williams was taken to the back of the scout car, and he was later transported to the police station for booking.

B. Governing Principles

[70] The power to detain for investigative purposes does not automatically entail a right to conduct a search of the suspect. However, where the officer believes on reasonable grounds that his or her own safety, or the safety of others, is at risk, the officer may conduct a pat-down search incident to an investigative detention. [18]

[71] It is important to distinguish between search incidental to arrest and search incidental to investigative detention. A protective search incidental to investigative detention should be brief and nonintrusive. In Cloutier v. Langlois, [19] L’Heureux-Dubé J. described a pat-down or safety searches in the following terms:

… [A] “frisk search” is a relatively non-intrusive procedure: outside clothing is patted down to determine whether there is anything on the person of the arrested individual. Pockets may be examined but the clothing is not removed and no physical force is applied. The duration of the search is only a few seconds.

[72] Thus a pat-down or protective search does not “give license to officers to reap the seeds of a warrantless search without the need to effect a lawful arrest based on reasonable and probable grounds.” [20] Moreover, such a search will be lawful only if the search is intended to serve a protective function, which means that “the authority for the search runs out at the point at which the search for weapons is finished.” [21]

[73] Consistent with this reasoning, in Mann, Iacobucci J. held that when a police officer reached inside the accused’s pocket to identify a soft object he had felt during the pat-down search, he went beyond the scope of a protective search. At that point, the purpose of the search shifted from safety to the detection and collection of evidence, absent reasonable and probable grounds. As Iacobucci J. concluded: [22]

Individuals have a reasonable expectation of privacy in their pockets. The search here went beyond what was required to mitigate concerns about officer safety and reflects a serious breach of the appellant’s protection against unreasonable search and seizure.

C. Application of the Principles

[74] In my view, the search that was conducted on Mr. Williams clearly exceeded the scope of any permissible pat-down search incidental to an investigative detention.

[75] Within a few seconds of the search commencing, Officer Contant unzipped Mr. Williams’ hoodie and reached inside the waistband of his pants to remove an iPad. He then instructed officer Corsetti to handcuff Mr. Williams. The two officers then commenced a highly intrusive search of Mr. Williams’ clothing and person that continued for a number of minutes, all of which was captured on the in-car camera. This included lifting up his shirt, looking inside the waistband of his pants, and reaching into his pockets. The officers removed whatever they found in his pockets, and handed the items over to other officers for further investigation. Apart from a pocket knife, none of the other items that were removed were weapons. Certainly, there was nothing found that resembled a firearm.

[76] Thus, far from being a safety or pat-down search, the search appears to be a warrantless search for evidence that can only be conducted incident to a lawful arrest. In fact, Officer Contant testified that after discovering the iPad, he ordered Officer Corsetti to handcuff Mr. Williams and arrest him, on the basis that the iPad had been stolen during the robbery. The problem with Officer Contant’s evidence on this point is that, at the point at which Officer Corsetti handcuffed Mr. Williams, the officers did not yet know whether the iPad was connected to the robbery. At the very moment when Officer Corsetti was handcuffing and apparently arresting Mr. Williams, Officer Jamieson can be heard on the police radio inside the scout car asking officers at the scene whether an iPad had been stolen. Thus, the officers did not yet have a lawful basis to arrest Mr. Williams, or to search him for evidence linking him to the robbery. Yet, this was clearly what they proceed to do once Mr. Williams was handcuffed.

[77] I therefore find that, once Officer Corsetti handcuffed Mr. Williams, the search effectively became a search for evidence as opposed to a protective or safety search. Such a search exceeded the officers’ legal authority, since they did not at that time have a lawful basis to arrest him or search him for evidence. This violated his right to be secure against unreasonable search and seizure, as protected by s 8 of the Charter.

Did the Officers Violate Mr. Williams’ Right to Counsel?

[78] Mr. Williams argues that his right to counsel was violated because Officer Kim did not immediately inform him that he was being detained and had a right to consult counsel, when he was stopped for questioning at 8:04 p.m.

[79] Officer Kim acknowledged that when he stopped Mr. Williams, he did not immediately advise him that he was under investigative detention. Officer Kim testified that initially, he did not want to escalate the situation involving a potential firearm. However, within a few minutes, and prior to 8:10 p.m., Officer Kim advised Mr. Williams that he was under investigative detention, advised him of his rights to counsel and cautioned him.

[80] In R. v. Suberu, [23] the Supreme Court of Canada held that the phrase “without delay” for the purposes of s. 10(b) of the Charter means “immediately”. However, this is subject to concerns for officer or public safety. Police officers cannot be expected to advise detained or arrested individuals about their constitutional rights at a time when they reasonably believe that to do so would place their safety, or the safety of members of the public, at risk.

[81] Consistent with Suberu, I find that Mr. Williams’ reason for arrest and rights to counsel were promptly or immediately provided. Any fleeting or temporary suspension of his rights was de minimis, and was prompted by Officer Kim’s concern not to immediately escalate the situation. Moreover, when informed of his right to counsel within a few minutes of being detained, Mr. Williams did not indicate any desire to do so.

[82] I therefore find that the minimal delay in providing information to Mr. Williams was for police and public safety purposes, and no s. 10(b) Charter breach occurred.

Should the Evidence Obtained through the Search be Excluded Under s. 24(2)?

[83] Having found a violation of Mr. Williams’ rights protected by s. 8 and 9 of the Charter, it is necessary to consider whether the evidence obtained through the search should be excluded through the operation of s. 24(2).

A. Governing Principles

[84] Section 24(2) of the Charter provides that, where evidence was obtained in a manner that infringes or denies any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, its admission in the proceedings would bring the administration of justice into disrepute.

[85] As the Supreme Court of Canada determined in Grant, the court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system, having regard to:

a. The seriousness of the Charter-infringing state conduct; b. The impact of the breach on the Charter-protected interests of the accused; and c. Society’s interest in the adjudication of the case on its merits.

[86] In considering the first prong of the test, namely, the seriousness of the Charter-infringing state conduct, the court must consider whether the admission of the evidence would send a message to the public that the courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct leading to the Charter violation, the greater the need for the courts to dissociate themselves from the conduct by excluding the evidence. The goal is not necessarily to punish the police or deter Charter breaches, but rather to preserve public confidence in the rule of law and its processes. [24]

[87] With respect to the second prong of the governing test, the impact of the Charter violations, the court must assess the extent to which the breach undermined the Charter-protected interests of the accused.

[88] Under the third prong of analysis, the court must consider whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. The court must consider not only the negative impact of the admission of the evidence, but also the impact of failing to admit it.

B. The Seriousness of the Charter Breaches

[89] In considering the seriousness of the Charter breaches in this case, it is appropriate to consider the cumulative significance of the breaches, as opposed to analyzing their significance in isolation. [25]

[90] I consider the Charter violations in this case to be relatively serious. Our Courts have consistently recognized the importance of individuals being free to walk the streets, without fear of being stopped by the police in the absence of lawful grounds. As Sharpe J.A. observed recently in R. v. Omar: [26]

No doubt, being able to detain people at will would make the task of policing easier. However, our law provides that, in the absence of lawful grounds, individual liberty and the right to walk down the street unimpeded prevails over law-enforcement. Charter rights “apply to everyone, even those alleged to have committed the most serious criminal offenses”… Condoning random unauthorized stops by the police in the interests of public safety would impact all citizens, threaten civil liberties, and put racialized individuals at particular risk.

[91] In Omar, a 20-year-old black male had been walking down the street in Windsor, Ontario at about 1:00 a.m. He was stopped by police officers who believed that he matched the description of an individual who was wanted in connection with two robberies which had occurred a week earlier. The police officers asked Mr. Omar for identification and questioned him about various matters. Within about five minutes, one of the officers saw the barrel of the gun in Mr. Omar’s pocket. The officer tackled Mr. Omar, seized the handgun and placed him under arrest.

[92] The trial judge found that there was no clear nexus between Mr. Omar and the robberies and that his description did not correspond with that of the perpetrator involved in the robberies. His detention was therefore arbitrary and a violation of s. 9 of the Charter. However, the trial judge went on to conclude that the violation of Mr. Omar’s Charter rights fell on the less serious end of the spectrum because the police officers had a subjective, good faith belief that they were not detaining Mr. Omar, and their conduct was neither deliberate nor egregious.

[93] The Court of Appeal found that the trial judge gave unwarranted weight to the subjective good faith of the officers. Sharpe J.A. held that an absence of bad faith does not amount to good faith. Claims of good faith should be rejected if they are based upon ignorance or an unreasonable application of established legal standards. Ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. [27]

[94] Unlike in Omar, the officers in this case were aware that they were detaining Mr. Williams. However, for the reasons described earlier, this detention was arbitrary since there was no clear nexus between Mr. Williams and the robbery under investigation. Moreover, having detained Mr. Williams, they then held him by the side of the road for 15 minutes before commencing a pat-down search for weapons. There was no justification offered for this delay, and it was clearly inconsistent with the Supreme Court’s holding in Mann that any investigative detention should be brief. Once the search was commenced, it almost immediately became a warrantless search for evidence, as opposed to a permissible search for weapons.

[95] I accept that the officers in this case acted in good faith. At the same time, however, their conduct amounted to a clear violation of the fundamental right of individuals to walk the streets without being subjected to arbitrary detention or warrantless searches by police. The officers in this case acted deliberately and in a manner which they ought to have known was in violation of established Charter standards applicable to investigative detentions. As such, I find the Charter violations fall on the more serious end of the spectrum, and tend to favour exclusion of the evidence obtained through the search.

C. Impact of the Charter Violations on the Accused

[96] In my view, the impact on the Charter-protected rights of Mr. Williams was significant. He was detained without lawful justification, and then forced to stand by the side of the road in full public view for approximately 15 minutes, surrounded by four or more police officers. (As discussed above, in addition to the four uniformed police officers, there were two unidentified plainclothes officers who participated in the detention and search of Mr. Williams.) The search that was undertaken was highly intrusive, with the police officers lifting up his clothing, looking inside the waistband of his pants, and reaching into his pockets. They also shone a light onto him as he stood by the side of the road, thereby drawing additional attention to the search.

[97] In Omar, the Court of Appeal found a similar detention and search to be a serious violation of Charter rights. I reach the same conclusion in this case, which tends to support the exclusion of the evidence.

D. Society’s Interest in an Adjudication on the Merits

[98] This factor favours admission of the evidence. The evidence obtained was reliable, the offenses are serious, and the Crown’s case will not proceed if the evidence is excluded.

E. Balancing the Grant Factors

[99] As the Supreme Court made plain in Grant, no overarching rule governs the balance to be struck between the three factors or considerations described above. Mathematical precision is not possible and a flexible, holistic approach must be undertaken. At the same time, Grant makes it clear that the admission of evidence obtained in violation of a Charter right cannot be supported solely on the ground that the offense is serious and the evidence is reliable and central to the Crown’s case. As Doherty J.A. observed in R. v. McGuffie, “[i]f the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility.” [28] In Omar, Sharpe J.A. cited McGuffie with approval, and observed that this approach, “although not a binding formula, has been widely followed because a strong case for exclusion supported by the first two grounds is apt to require the exclusion of reliable, even crucial evidence if the repute of the administration of justice is to be protected.” [29]

[100] In weighing the Grant factors, the courts are required to bear in mind the long-term and prospective repute of the administration of justice, “focusing less on the particular case then on the impact over time of admitting evidence obtained by infringement of the constitutionally protected rights of the accused.” [30] The seriousness of the Charter violations, combined with the significant impact on the accused, leads me to conclude that the admission of the evidence unlawfully obtained in this case would tend to bring the administration of justice into disrepute. Accordingly, I find that the evidence obtained through the search of Mr. Williams should be excluded.

Voluntariness of Mr. Williams’ Utterances

[101] A voluntary statement made by an accused person to a person in authority is admissible when certain preconditions are met. The onus is on the Crown to prove the statement is voluntary, beyond a reasonable doubt. To determine whether a statement is voluntary, a trial judge should consider all the relevant factors to understand whether the circumstances surrounding the statement give rise to a reasonable doubt as to its voluntariness. The relevant factors include the following: (a) oppression; (b) threats or promises; (c) police trickery; and (d) an operating mind (referring to the accused). [31]

[102] In this case, the Crown argues that the utterances made by Mr. Williams in the 32 Division booking hall following his arrest were voluntary and should be admitted into evidence at trial. In particular, the Crown seeks to admit the following statement made by Mr. Williams:

“Today was my lucky day, bro. Do you know what it feels like to walk down the street and find three debit cards and a fucking iPad?”

[103] There is no evidence to suggest that there was any police trickery, inducements, promises, threats or oppression involved in Mr. Williams’ utterances. However, Mr. Williams argues that he did not have an operating mind when he spoke to the police. He relies, in particular, on the fact that, when he was asked his name, he replied that he was “Jesus”. He also stated that he was born in the year 500 B.C.

[104] The comments by Mr. Williams in the booking hall must be viewed in context, including his prior interactions with the police officers while he was being transported to 32 Division. While being transported, Mr. Williams expressed concern about his property and indicated that he intends to hold the officers responsible for its loss or damage. The interactions captured on video make it quite clear that he was fully aware of what was happening and was, in fact, attempting to hold the officers accountable. With this context in mind, I find that his statement in the booking hall that he was “Jesus” reflected a simple refusal to cooperate with police. I am persuaded beyond a reasonable doubt that he had an operating mind when he made these statements.

[105] Accordingly, I find that the utterances by Mr. Williams in the booking hall are voluntary and are admissible.

Conclusion

[106] For the reasons described above: (i) the evidence obtained through the detention and search of Mr. Williams is excluded, pursuant to s. 24(2) of the Charter; and (ii) Mr. Williams’ statements in the booking hall were made voluntarily and are admissible at trial.

Footnotes

[1] The audio on the in-car camera recording only picked up what was being said within the scout car. For reasons that are not entirely clear, the microphones which the officers would have been wearing on their uniforms were not activated. Therefore, it was not possible to hear any of the conversations between Mr. Williams and the police officers.

[2] To be sure, a police officer may approach a person on the street and ask him or her questions. However the person has the right to refuse to answer and walk away. Detention occurs when the choice to walk away is removed, whether by physical or psychological compulsion. See R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (“Grant”), at para. 21.

[3] 2004 SCC 52, [2004] 3 S.C.R. 59 (“Mann”), at para. 34

[4] Mann, at para. 34.

[5] Mann, at para. 45.

[6] Mann, at para. 35.

[7] I note that in Mann, Justice Iacobucci went on to conclude that the search that was conducted incident to the detention was not justified. This aspect of his reasons is considered separately below in relation to the reasonableness of the search of Mr. Williams carried out by the police officers following his detention.

[8] 2013 SCC 50, [2013] 3 S.C.R. 250 (“MacKenzie”).

[9] MacKenzie, at para. 39.

[10] MacKenzie, at para. 41 (citing Karakatsanis J. in R. v. Chehil, 2013 SCC 49 (“Chehil”), at para. 26.)

[11] MacKenzie, at para. 84.

[12] McKenzie, at para. 74; Chehil, at para. 27.

[13] Mann, at para. 34.

[14] 2007 SCC 32, [2007] 2 S.C.R. 725.

[15] 2015 ONCA 8.

[16] 2016 ONCA 365 (“McGuffie”), at para. 38.

[17] Mann, at para. 22.

[18] Mann, at para. 40.

[19] , [1990] 1 S.C.R. 158, at p. 185

[20] Mann, at para. 37.

[21] R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 39.

[22] Mann, at para. 56.

[23] 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 2.

[24] See R. v. Boussoulas, 2014 ONSC 5542, at para. 157, affirmed, 2018 ONCA 222.

[25] R. v. Pino, 2016 ONCA 389, at para. 101.

[26] 2018 ONCA 975, at para. 55 (references omitted).

[27] Omar, at para. 46 (citing Grant, at para. 74).

[28] McGuffie, at para. 63.

[29] Omar, at para. 53.

[30] R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 108, cited by Omar, at para. 53.

[31] R. v. Oickle, 2000 SCC 38; R. v. Fernandes, 2016 ONCA 772.

P. J. Monahan J. Released: May 31, 2019