Court File and Parties

Court File No.: CR-21-0728 Date: 2022-03-01 Ontario Superior Court of Justice

Between: Her Majesty the Queen Tina Kim, for the Crown, Respondent

– and –

Jahvar Green Jeffrey Fisher, for the Applicant

Heard: February 7, 8, 11, 2022

Pre-trial Ruling on Charter Application

Restriction on Publication

Pursuant to s. 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

J.M. Woollcombe J.

Overview

[1] The applicant, Jahvar Green, is charged with multiple firearms offences. He brings a pre-trial application to exclude from evidence, pursuant to s. 24(2) of the Charter, the firearm located in a car he was driving on March 31, 2019.

[2] It is the defence position that the applicant was arbitrarily detained by the police, in violation of s. 9 of the Charter. Mr. Green is a young Black male who had parked a Mazda in a live lane of traffic with the hazard lights on. The defence says that he was racially profiled. More specifically, the defence says that Peel Regional Police Officer Shaw’s decision to pull behind the stopped Mazda driven by Mr. Green, and to detain him, was motivated by racial stereotyping and influenced by the fact that Mr. Green was a Black male in an area known for lawless behaviour who was speaking to a young black woman. The defence says that having racially profiled him, the officer then detained Mr. Green by pulling his cruiser behind him and activating the emergency lights. This position is advanced notwithstanding the fact that Mr. Green immediately drove away and had no interaction at all with the officer at this point. The defence position is that this detention continued with the officer’s pursuit of Mr. Green and was without legal authority and so constituted an arbitrary detention.

[3] The Crown submits that the officer’s evidence that he did not see the driver of the Mazda, and did not know that he was Black, should be accepted. If I accept this evidence, the Crown says it follows that defence’s allegation that the officer’s actions were motivated by racial stereotyping must be rejected. The Crown submits that Mr. Green was not detained when Officer Shaw pulled behind the Mazda because Mr. Green immediately fled. Instead, the Crown submits that Mr. Green was first detained, lawfully, when the officer located the Mazda shortly after in a nearby plaza, proceeding in the wrong direction in a Starbucks drive-thru.

[4] Mr. Green’s ss. 7 and 8 Charter arguments relate to his interaction with Officer Shaw at the time of his arrest near the Starbucks, shortly after the initial pursuit. The defence says that while the Officer Shaw subjectively believed that Mr. Green had a firearm concealed in a satchel in the vehicle, warranting him asking Mr. Green to show him what was in the satchel and justifying an arrest at gunpoint, this decision was not objectively reasonable and so violated ss. 7 and 8 of the Charter.

[5] The Crown submits that Officer Shaw’s belief that Mr. Green had a firearm in the satchel was objectively reasonable, that it was reasonable for the officer to ask what was in the satchel that had been concealed by Mr. Green and that the gunpoint arrest was not, in these circumstances, an objectively unreasonable use of force.

[6] The applicant’s trial is scheduled to begin with a jury on March 21, 2022. I heard this application as the designated case management judge.

[7] For the reasons that follow, the application is dismissed.

Uncontested Facts

[8] The only witness on the application was Peel Regional Police Officer Shaw. While I shall address the aspects of his evidence that are challenged when I consider the racial profiling argument, the following facts are uncontested.

[9] On March 31, 2019, Officer Shaw drove his marked cruiser eastbound on Argentia Road in Mississauga towards the Motel 6, a location he frequently attended because the area was known to have “lawless behaviour”. Argentia Road has four lanes, two eastbound and two westbound. The officer was in the left lane as he went east.

[10] Officer Shaw saw a car stopped, facing westbound with its hazard lights (or “4-ways”) on, in the curb lane of Argentia Road. This is the Mazda that was driven by Mr. Green. The officer made a U-turn, so as to pull up behind the stopped Mazda, and activated his emergency lights. As he did this, the Mazda took off going west.

[11] Officer Shaw followed the Mazda, which made a right turn, entering a plaza less than 100 metres west of where it had been. The officer said that he lost sight of the Mazda briefly, and then located it in a Starbucks drive-thru. It was facing the wrong direction and still had its hazard lights on. The officer drove towards the Mazda and it started to reverse. Officer Shaw rolled down his window and spoke to the driver, Mr. Green, for the first time. Mr. Green said something to the effect that he had just been having a fight with his girlfriend, if that is why the officer had been called. Officer Shaw told Mr. Green to pull over so he could speak to him.

[12] Mr. Green reversed out of the drive-thru and they both stopped their vehicles just south of the Starbucks. At 8:51:20 a.m., the officer radioed from his cruiser that he was involved in a traffic stop and provided the license plate of the Mazda.

[13] Mr. Green approached Officer Shaw’s cruiser window. Surprised, the officer told him to return to his car, which Mr. Green did. The officer then approached the Mazda and had a conversation with Mr. Green. Officer Shaw said the first thing he asked was whether the car was his, and Mr. Green said it was.

[14] Officer Shaw made a demand for Mr. Green’s documents, including his driver’s license, ownership and proof of insurance. He said that Mr. Green then told him that it was his friend’s car and something to the effect that he was the secondary owner. Officer Shaw described Mr. Green as nervous and as fidgeting between the centre console and glove box as he retrieved his documents. The officer said that he could smell unburnt, fresh marijuana in the car. He described Mr. Green’s hands as shaking when he provided the documents. He also said that Mr. Green was shifting around in his seat.

[15] According to Officer Shaw, he told Mr. Green that he believed his behaviour was suspicious because his hazard lights had been on and he had then taken off on Argentia Road and gone the wrong way through the drive-thru. He said that he suspected impairment and could smell marijuana. Mr. Green told him that he was nervous because he was a G1 driver. While Mr. Green did not elaborate, the officer knew that this meant that he was only permitted to drive with a fully licensed driver in the car and so was in violation of his license.

[16] Officer Shaw said that as Mr. Green explained that he was nervous because of his G1 license, he looked down and could see that Mr. Green was sitting with his left leg up against the driver’s side door. The officer said that he could see a black bag of some sort under Mr. Green’s leg in a way that made him think that Mr. Green was trying to conceal it. The officer was concerned about the possibility of a firearm in the bag. He asked Mr. Green why he was trying to conceal the bag.

[17] At that point, Mr. Green retrieved the bag and told the officer that it was where he stored his marijuana. Officer Shaw testified that he was very suspicious about the way that Mr. Green handled the bag. He said it was clear that the bag had some weight to it and that Mr. Green held it in an unusual manner, from underneath with his two palms facing upwards. The bag had two zippers. According to the officer, Mr. Green opened one of them and pulled out a bag of marijuana. The officer saw a shift in the weight of the bag and said that he strongly felt that Mr. Green was concealing a firearm in the bag.

[18] The officer drew his firearm and pointed it at Mr. Green. Rather than reaching into the car to try to take the bag, he asked Mr. Green what else was in it and told him to move slowly. Mr. Green unzipped the larger part of the bag and the officer was able to see the tang and upper action portion of a black, semi-automatic pistol. By 8:55:51, after seeing the firearm, Officer Shaw can be heard on the radio telling Mr. Green to get on his knees and requesting another officer to attend at the scene. The applicant was arrested.

Analysis

Was Officer Shaw motivated by racial stereotypes?

[19] Racial profiling is about the motivation of the police and occurs when race about offending or dangerousness are used, to any degree, consciously or unconsciously, in suspect selection or treatment: R. v. Le, 2019 SCC 34 at para. 76; R. v. Dudhi, 2019 ONCA 665 at paras. 52, 59. There are two components to racial profiling. The first is an attitudinal component and involves an acceptance by the person in authority that race is relevant to the propensity to offend. The second is a causation component and requires that race-based thinking motivate the person in authority, in any way, in suspect selection or treatment: Dudhi, at para. 66.

[20] Racial profiling can rarely be proven through direct evidence. Instead, it must be inferred from the circumstances surrounding police conduct: Peart v. Peel (Regional Municipality) Police Services Board, [2006] O.J. No, 4457 at para. 95; Dudhi at para. 75.

[21] Before racial profiling can be considered in this case, a factual finding needs to be made respecting whether Officer Shaw was aware that Mr. Green was Black prior to deciding to pull behind his car and turn on his emergency lights.

[22] Officer Shaw was clear and unequivocal that he did not see the driver of the Mazda at all, let alone his skin colour, until he detained Mr. Green at the Starbucks drive-thru. The Crown submits that this is credible and should be accepted. The defence position is that it should be rejected.

[23] In my view, the officer’s evidence was credible and believable. He testified that as he approached the Mazda, and noted that its hazard lights were on and that it was parked in the curb lane of Argentia Road, he decided to pull over to see if his assistance was needed and why it stopped. He made a U-turn across the westbound traffic so that he could pull behind the Mazda and turned on his emergency lights because he was going to get out of his cruiser and so the driver would know he was parked behind.

[24] For the following reasons, I accept that Officer Shaw did not know that Mr. Green was Black before deciding to pull behind the Mazda:

• Officer’s Shaw was on a general patrol. His opportunity to make observations of the Mazda was relatively limited. He had been going north on Winston Churchill before turning right, or east, onto Argentia Road. The road has a curve. He estimated that it was about 100 metres from the Mazda to the western side of the lights at Winston Churchill. He agreed that he would have had the opportunity to see the Mazda as he drove that distance approaching it, which the Crown estimates was a total time of 5 to 7 seconds before making the U-turn. That is not very long.
• During this short period, the officer was driving in his own lane. While he took note of the Mazda because its hazard lights were on and it was stopped in a live lane of traffic, at the same time, he had to focus on his own driving, his surroundings and on safely preparing to make a U-turn across the westbound lane of traffic that was between him and the Mazda. There can be no doubt that he could not and did not spend the entire time of his approach towards the Mazda focused on it;
• Officer Shaw made a number of observations in addition to the fact that the Mazda was stopped with hazard lights on in a live lane of traffic. First, he noted no damage to the vehicle and saw no smoke coming from it. Second, he saw a black female in her 20s or 30s, with long dark hair and gym bag, standing at the passenger window of the vehicle. He thought she had been talking to the driver and assumed that there was a driver seated in the Mazda. She did nothing to flag him down. It makes sense in this situation that the officer’s attention would have been drawn to this woman, who was easily visible and in an obvious position to indicate to him if there was any situation of urgency;
• When asked if the race of the driver affected his decision to do a U-turn and pull behind the Mazda, the officer said, “no”. He said that he was not able to see the driver or take note of him at that point. He elaborated that he did not know why he had not been able to see the driver. Under cross-examination, Officer Shaw acknowledged that he should have been able to see the driver and had no explanation for why he did not notice him at the time. He also agreed that, while he did not do so, it would have made sense for him to look to the driver to see if that person was signalling for assistance. I found the officer’s candour in acknowledging what he could and should have done, but failed to do, enhanced his credibility.
• The defence suggests that Officer Shaw was unreasonable and inconsistent about the reasons for having made the stop at all, facts that demonstrate that he is not a credible witness and support the defence position that his claim not to have seen the driver should be rejected. I do not accept this position:
  • The officer’s evidence is that he decided to pull in behind the Mazda because it was stopped with its hazard lights on and he wanted to see why it was there and if his assistance was needed. He put his emergency lights on because he intended to get out of his cruiser and wanted both the driver and other vehicles to know that his cruiser was there. While the defence suggests that this is not reasonable when the officer had not seen any indication from either the woman outside the car or the driver that assistance was needed, I disagree. In my view, the absence of a specific request of the officer for assistance does not displace what I find was a valid reason for his decision to pull in behind the Mazda. He wanted to ensure that no one needed police assistance;
  • The defence submits that the officer’s evidence evolved in that initially he said that he had pulled in to offer assistance and later he tried to justify his decision on the basis of the Highway Traffic Act (HTA) and the fact that the Mazda was in a live lane of traffic, a justification he had not provided in his notes or at the police briefing after the incident. The defence says that this was a concocted justification that was fabricated only afterwards when the basis for his detention was challenged. In my view, while Officer Shaw did not articulate his authority for pulling in initially as being under the HTA, it is clear that his concern from the beginning was that there was a car stopped in a live lane of traffic that had its hazard lights on. While his primary concern was in determining if the car needed assistance, there can be no doubt from his evidence as a whole that he always appreciated that the Mazda was stopped in a position where it was potentially blocking other vehicles and created a risk of danger. While Officer Shaw may not have spelled this potential danger out in detail in his notes or at the briefing, it was obviously the case. I do not accept that there was the significant inconsistency alleged by the defence in terms of the officer’s reason for him pulling behind the Mazda and do not find any basis from which to accept that the officer concocted his reason for making the U-turn and stopping behind the Mazda.
• The defence submits, further, that the officer was not credible because of the evidence he gave about the reasons he followed the Mazda after it pulled away, and that as a result I should question the veracity of his evidence about not seeing the driver. There was very detailed and extensive cross-examination of Officer Shaw about why he decided to follow the Mazda after it pulled away, what his intention and been and what his legal authority had been for whatever he planned to do. The officer was asked multiple times at the trial and the discovery to speculate about what he might have done had various things occurred while he pursued the Mazda and in the event that it had done certain things. There were some minor deviations between all of his answers to the many questions he was asked on this subject. But, having reviewed that evidence in its totality, I do not conclude that there is anything approaching the significant inconsistency alleged by the defence. Simply put, the officer consistently and persuasively testified that he planned to follow the Mazda in order speak with the driver about why it had been stopped and why it had left. How he would have done this would have depended on what happened. Setting aside the issue of whether such a detention would have been arbitrary, I am not persuaded that his evidence reveals any significant inconsistency. To the extent that there was any minor inconsistency, I am not persuaded that it justifies a finding that his evidence about seeing the driver is not credible.
• Finally, I do not accept the defence position that Officer Shaw’s evidence about not seeing the driver is not true on the basis that the officer had no reason not to look at the driver, that it would have made sense for him to do so, and so it follows that he must have. I reject the defence submission that it would not have been possible for the officer to have looked in the direction of the car and not seen the driver. Officer Shaw had a short window for making observations and explained clearly what he had and had not looked at. He acknowledged that he could and probably should have looked at the driver but did not do so. In my view, he provided an honest and reasonable explanation for not, in the circumstances, noticing the driver or his skin colour.

[25] Having considered Officer Shaw’s credibility generally, and the specific concerns raised about the veracity of his evidence as to whether he saw the driver, I am persuaded that he did not see the driver of the Mazda on Argentia Road. He made no observation that Mr. Green was Black. Accordingly, the allegation of racial profiling in this case fails.

Was Mr. Green arbitrarily detained?

Positions of the Parties

[26] The defence position is that Mr. Green was detained from the time Officer Shaw pulled behind the Mazda on Argentia Road and turned on his emergency lights. The defence says that a reasonable person in Mr. Green’s position would have felt that he had no option but to stop for the officer, as is legally required under the HTA. Despite the fact that Mr. Green immediately left his stopped position, the defence says that his detention continued as the officer followed the Mazda into the plaza. It is argued that the detention was arbitrary up until the time the officer stopped Mr. Green in the Starbucks drive-thru because up until that point, the officer had no legal authority to detain him.

[27] The Crown submits that Mr. Green was not detained until he was directed by the officer to pull over from the Starbucks drive-thru, which he was going through in the wrong direction. At that point, the Crown says there was legal authority for the detention and so it was not arbitrary. The Crown argues that the fact that Mr. Green drove away immediately after Officer Shaw turned on his emergency lights and pulled behind him on Argentia Road means that there was no detention at that time. In the alternative, the Crown’s position is that if there was a detention at this point, it was justified under the HTA and was not arbitrary.

When was Mr. Green detained?

[28] There is no question that Mr. Green was, ultimately, detained by Officer Shaw. The first question is when that detention began.

[29] The constitutional rights recognized in ss. 9 and 10 of the Charter “are not engaged by delays that involve no significant physical or psychological restraint”: R. v. Mann, 2004 SCC 52 at para 19. Detention “refer[s] to a suspension of an individual’s liberty interest by a significant physical or psychological restraint”: R. v. Grant, 2009 SCC 32 at para. 44.

[30] As the Supreme Court of Canada explained in Grant, and affirmed in Le at para. 25, when there is no physical restraint, there may be psychological constraint, amounting to a detention. This occurs either when there is a legal requirement to comply with a direction or demand (such as a breath demand at the roadside), or where there is no legal obligation to comply with a coercive demand, but a reasonable person in the subject’s position would feel so obligated, and feel that he or she was not free to go. The justification for finding detention in these circumstances is that a reasonable person who submits or acquiesces to a deprivation of their liberty has effectively lost their freedom to choose to do otherwise.

[31] In determining whether a reasonable person in the individual’s circumstances would conclude that he had been deprived of the liberty of choice, Grant, at para. 44, and Le, at para. 31, suggest the following factors may be relevant:

• (a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.
• (b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
• (c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[32] While he did not testify on the application, and was of course under no obligation to do so, it is Mr. Green who bears the onus of establishing on a balance of probabilities that he was psychologically detained: R. v. Reid, 2019 ONCA 32 at para. 23.

[33] While little turns on this, I am not persuaded that a reasonable person in Mr. Green’s position would have concluded, at the moment when Officer Shaw pulled behind the Mazda and turned on his emergency lights, that he was not permitted to leave. Despite the fact that the traffic was light and its hazard lights were on, the Mazda was dangerously stopped in a live lane of traffic where it had the potential to obstruct other vehicles. The driver might reasonably have perceived that the officer was there to offer general assistance, rather than to require him to stop. Or, a reasonable person might have interpreted the police officer’s action as a signal to leave this stopped position, in a live lane of traffic, and that he was being urged to move the Mazda along so as not to obstruct / block traffic.

[34] However, once the Mazda left the stopped position and was pursued by the police cruiser, which likely continued to have its emergency lights activated [1], a reasonable person driving the Mazda would have perceived that there was an obligation to stop, and that the freedom to choose other than to stop had been lost. I reach that view for the following reasons:

• First, s. 216 of the HTA provides that: (1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.” There was, therefore, a legal obligation for the Mazda driver to stop for the officer.
• Second, even if a reasonable person is unfamiliar with the relevant legislation, I think it is commonly understood by drivers that pursuit by a police cruiser with its emergency lights activated signals to the driver that he is not at liberty to continue on his way and, instead, must stop the vehicle.

[35] In this case, the fact that a reasonable person in Mr. Green’s position would have believed that there was no choice but to stop in response to the officer does not end the analysis. Often, in circumstances in which a court concludes that a reasonable person would have believed that he had no choice but to acquiesce to a deprivation of liberty, the evidence reveals that the person did, in fact, submit and stop. A conclusion follows that the person was legally detained. This case is different because Mr. Green chose not to stop. I recognize that the focus of s. 9 is not on what was in Mr. Green’s mind at the time he rapidly took off in response to Officer Shaw pulling in behind him with his emergency lights on. There is no evidence as to what he was thinking at the time. Even had he testified that he felt free to leave, that would not answer the question as to whether he was detained, a question that must be assessed objectively: Le at para 114.

[36] However, the fact that Mr. Green immediately drove off is not, as the defence suggests, irrelevant to the question of whether he was detained. That is because legal detention requires that there be some measure of submission or acquiescence to police by the person claiming to be detained. Contrary to the position of the defence, this conclusion flows directly and logically from the relevant legal principles and from the consistent and persuasive body of jurisprudence.

[37] A clear articulation of this principle was expressed by Laskin J.A. in the Court of Appeal decision in R. v. Grant, (2006), 209 C.C.C. (3d) 250 (Ont.C.A.) where he stated:

28 Therens establishes that a "psychological" detention includes three elements: a police direction or demand to an individual; the individual's voluntary compliance with the direction or demand, resulting in a deprivation of liberty or other serious legal consequences; and the individual's reasonable belief that there is no choice but to comply.[emphasis added]

[38] Prior to the Supreme Court of Canada releasing its decision on the Grant appeal, the Ontario Court of Appeal in R. v. Nesbeth, 2008 ONCA 579 at paras. 15-17 adopted and applied para. 28 of its decision in Grant. In Nesbeth, police officers attended a complex that they understood was plagued by drugs, robberies and gun violence. They ran into the accused, and asked him what he was doing. He turned around and began to run. The officers followed, telling at him to stop. Ultimately, he was tackled by the police. The Court of Appeal held that while the police had demanded the accused to stop, prior to tackling him, the element of compliance with the demand was missing because of his flight. As a result, his detention did not begin at the start of the pursuit.

[39] In its majority decision in Grant, the Supreme Court affirmed, at paras. 28 and 30, the Therens principle upon which Laskin J.A. had relied in the court below, which is that a person is detained when he or she “submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist”.

[40] Moreover, the Court at para. 24 of Grant recognized that the concept of detention assumes that the state has taken some actual control over the person. As was explained, it is because there is effective control over the person that other rights, such as the right to counsel, must be given at this stage:

22 "Detention" also identifies the point at which rights subsidiary to detention, such as the right to counsel, are triggered. These rights are engaged by the vulnerable position of the person who has been taken into the effective control of the state authorities. They are principally concerned with addressing the imbalance of power between the state and the person under its control. More specifically, they are designed to ensure that the person whose liberty has been curtailed retains an informed and effective choice whether to speak to state authorities, consistent with the overarching principle against self-incrimination. They also ensure that the person who is under the control of the state be afforded the opportunity to seek legal advice in order to assist in regaining his or her liberty. As this Court observed in R. v. Hebert, [1990] 2 S.C.R. 151:

In a broad sense, the purpose of ss. 7 to 14 is two-fold to preserve the rights of the detained individual, and to maintain the repute and integrity of our system [page376] of justice. More particularly, it is to the control of the superior power of the state vis-à-vis the individual who has been detained by the state, and thus placed in its power, that s. 7 and the related provisions that follow are primarily directed. The state has the power to intrude on the individual's physical freedom by detaining him or her. The individual cannot walk away. This physical intrusion on the individual's mental liberty in turn may enable the state to infringe the individual's mental liberty by techniques made possible by its superior resources and power. [emphasis added]

[41] There have been numerous cases in which courts have grappled with the question of whether a person who fled from a police attempt at detention was legally detained. In some cases, even when a reasonable person would have perceived an obligation to stop, the person who immediately fled and relinquished no control to the police has been found not to have been detained. See, for example: R. v. Morris, 2017 ONSC 4298; R. v. Atkins, 2013 ONCA 586, in which the Court of Appeal affirmed, at para. 10, the trial judge’s finding that “if the appellant did not acquiesce or submit to any deprivation of liberty, there could be no detention”.

[42] In other cases, courts have concluded that a brief period of acquiescence or submission to police, followed by flight, resulted in a detention. See, for example: R. v. Dunkley, 2016 ONCA 597; R. v. Reddy, 2010 BCCA 11.

[43] It is the defence position that the Supreme Court of Canada decision in Le overruled the principle from Therens that had been cited in Grant by both the Supreme Court of Canada and Court of Appeal and in Nesbeth. More specifically, the defence says that Le stands for the proposition that detention does not require any submission or acquiescence to a deprivation of liberty and that the only question to be decided is whether a reasonable person would have felt that he or she had no choice but to comply. In support of this position, the defence highlights the fact that Mr. Le was found to be detained despite having fled and relies on para. 114 of Le, in which the majority observed:

114 Before this Court, the Crown has argued that claimants' subjective perceptions about whether or not they were detained are "highly relevant". We do not accept this argument. It remains, and should remain, that the detention analysis is principally objective in nature. Prior to Grant, the objective nature of the test may have been unclear. For example, in Therens, this Court held that a detention will arise when an individual "submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist" (p. 644) - a statement that may have suggested that the analysis focuses on the reasonableness of an individual's subjective perceptions. But in Grant, this Court clarified that the analysis is objective.

[44] With respect, I do not agree with Mr. Fisher as to what this passage means. In it, the majority affirmed the principle articulated in Grant that whether there has been detention is determined objectively, based on what a reasonable person would have perceived, and not what the particular person claiming to have been detained believed. To the extent that there was a correction of Therens or Grant, it was to the passage about whether the person who submits “reasonably believes that the choice to do otherwise does not exist”. The point of clarification was that the focus must be on the reasonable person in the subject’s position, not on what the subject reasonably believed.

[45] To be clear, I see nothing in para. 116 of Le, or anywhere else in Le, that overrules or modifies, directly or implicitly, the long-standing and sensible principle that detention requires some level of submission or acquiescence on the part of the subject claiming to have been detained. While I accept that Mr. Le, who tried to flee from police, was found to have been detained from the time the police arrived in the back yard, it is clear that he did, initially, submit to the authority of the police in circumstances in which a reasonable person would have felt there was no choice but to do so. The fact he was found to have been detained in these circumstances does not mean that those who flee from the outset, and never submit to any police control, are also detained, even if the reasonable person in both cases would have believed there was no choice but submission.

[46] In its helpful analysis in R. v. Ratt, 2020 SKCA 19 the Saskatchewan Court of Appeal sought to reconcile the Supreme Court of Canada’s analysis in Le with the body of jurisprudence considering whether fleeing suspects have been detained. The court reviewed Nesbeth, noting that it followed the Court of Appeal decision in Grant, but found it was consistent with the majority decision of the Supreme Court of Canada in Grant. Accepting the Supreme Court of Canada’s decision that Mr. Le had been detained despite having fled, the Saskatchewan Court of Appeal summarized the effect of flight on a determination about detention in these terms:

36 It is clear from the foregoing jurisprudence that whether a person has been detained depends on the circumstances. Unless an individual is physically "seized", a detention requires submission or acquiescence to a police direction or demand, coupled with circumstances in which a reasonable person would understand that there was no choice but to comply. The submission or acquiescence can be extremely brief and immediately followed by flight.

[47] In Mr. Ratt’s case, the Court of Appeal found, at para. 36, that there was a police demand to stop and that a reasonable person in Mr. Ratt’s position would have concluded that he had no choice but to comply. However, it reasoned that because Mr. Ratt did not submit to that demand, even briefly, the trial judge had erred in finding a s. 9 breach because, in fact, there had been no detention.

[48] In this case, Mr. Green did absolutely nothing to submit to the police signal to stop. There was no acquiescence. He pulled away from the curb lane with some rapidity, demonstrating to Officer Shaw that he had no intention of stopping or speaking to him. In my view, it cannot be that he was, in these circumstances, detained as that term is properly understood. I find there was no detention as he was pursued by Officer Shaw into the plaza parking lot.

[49] There was significant cross-examination of Officer Shaw and lengthy submissions by both counsel respecting Officer Shaw’s authority to follow the Mazda into the plaza lot after Mr. Green fled. This was premised on a finding of detention during this period, and focused on the lawfulness of any such detention. Given my conclusion that Mr. Green was not detained during this period, there is no reason to comment on whether, had Mr. Green been detained, it would have been lawful or arbitrary. I decline to do so.

[50] I conclude that Mr. Green was first detained when Officer Shaw directed him, while he was in the Starbucks drive-thru, to stop. The Crown accepts that at this point, Mr. Green was detained.

Was the detention arbitrary?

[51] The defence concedes that in the absence of a finding of racial profiling, if I conclude that the detention began with the direction of Officer Shaw for Mr. Green to pull over, during their interaction at the Starbucks drive-thru, his s. 9 claim fails because the detention at that point was not arbitrary. Given my findings set out above, I dismiss the s. 9 argument and conclude that Mr. Green’s detention was not arbitrary.

Did the officer’s use of his firearm or the search of the satchel violate Mr. Green’s s. 7 or 8 Charter rights?

[52] The ss. 7 and 8 claims made by Mr. Green are intertwined and turn entirely on the reasonableness of Officer Shaw’s belief that the bag Mr. Green had in the Mazda contained a firearm. If this was reasonable, the defence agrees that any search of the satchel was a legitimate safety search and the decision to point a firearm when he did was a reasonable use of force. If, however, the officer’s belief was not objectively reasonable, the search was in violation of s. 8 and the use of his gun was excessive force.

[53] I find Officer Shaw’s belief that the satchel contained a gun was objectively reasonable in light of the combination of the following facts:

• Mr. Green immediately drove away when he realized that a police cruiser had pulled behind him on Argentia Road;
• Mr. Green’s speed suggested that he was trying to evade the officer;
• Mr. Green drove in the wrong direction through the Starbucks drive-thru and, on seeing the officer, began to reverse, demonstrating that he was aware he had gone the wrong way. It was, as I have said, at this point that the officer had reasonable grounds to conduct an investigative detention of Mr. Green;
• Mr. Green’s initial statement to Officer Shaw to the effect that he had had a fight with his girlfriend, if that is why the officer had been called, confirmed that Mr. Green was aware that the officer had been following him and further supports a conclusion that he had been trying to evade the officer;
• Rather than waiting for the officer to come to the Mazda and speak to him, Mr. Green got out of his car and approached the officer, atypical conduct in the circumstances;
• When he returned to the Mazda, Officer Shaw described Mr. Green as getting back into it in an unusual manner, like he was trying not to open his door too widely. He then slid into the vehicle. The officer described it as “strategic” and said that there were no objects near the car that would have made this unusual conduct necessary. This conduct reasonably caused the officer’s suspicion to increase;
• While Mr. Green initially told Officer Shaw that the car was his, he then claimed to be a secondary owner. He was not the actual owner of the vehicle;
• When asked for his documents, Mr. Green appeared to Officer Shaw to be nervous, a factor further raising suspicion about him. Evidence of this included:
  • That he fidgeted between the console and the glove box in obtaining his documents;
  • That his hands were shaking and that he fumbled with the documents;
  • That he was not making eye contact with the officer;
  • That he was moving around in his seat.
• When Officer Shaw told Mr. Green the reasons why he had pulled him over, and that he was finding his behaviour suspicious, Mr. Green explained that he was nervous because he was a G1 driver. It was at this point that Officer Shaw noted that Mr. Green appeared to be concealing a black bag or satchel under his left leg between the driver’s seat and door. There were good reasons for the officer to be on high alert when Mr. Green seemed to be intent on hiding the bag from him;
• While it is reasonable for officers to consider their training and experience in assessing the risk of the situation, I do not think Officer Shaw’s evidence that upon seeing Mr. Green’s attempt to hide the bag, he suspected there was a concealed firearm because of a conversation with Sgt. Oakes about a case he had been involved in where a firearm was concealed in a satchel, or the officer’s evidence about having heard at a course that firearms can be carried in satchels or small bags, adds anything to the objective reasonableness of the officer’s belief. I do not consider this of any assistance to my assessment of whether the officer’s belief was reasonable;
• In my view, it was objectively reasonable, in these circumstances, for the officer to have had safety concerns and to have asked Mr. Green why he was concealing the bag. It was at this point that Mr. Green pulled the bag out;
• The officer’s observations of Mr. Green and his handling of the bag, at that point, made it objectively reasonable for him to have had significant safety concerns and to have reasonably believed that there was a firearm concealed in the bag. I reach this view because:
  • While Mr. Green said that he used the bag for weed and pulled out a baggy of marijuana, the officer could see that the bag had considerably more weight to it than if it just contained marijuana;
  • Mr. Green handled the bag in a suspicious manner and with considerable care, more care than would have been expected had it only contained marijuana. More specifically, he held the bag from underneath with his palms facing up, which was unusual;
  • When Mr. Green pulled out the marijuana, the officer could see that the bag had two zippers and appeared to have two compartments. The marijuana came from one part. As it was removed, the officer saw a shift in the weight of the bag in Mr. Green’s hand, suggestive of something heavier being in the bag.

[54] Police interactions with citizens require quick-thinking and decision-making in what are often dangerous and demanding situations. Having seen Mr. Green’s evasiveness, his nervousness, and, most importantly, the manner in which he had tried to hide the bag and then, once he pulled it out, the way in which he handled it, revealing that it had more inside it than the marijuana, Officer Shaw strongly suspected that there was a gun in the satchel. In this fluid and quickly evolving situation in which Officer Shaw was alone, I find it was objectively reasonable for him to have serious safety concerns about the content of the satchel and to have reasonably believed that there was a firearm concealed therein. As a result, I find it was reasonable for him to draw his own firearm, rather than to reach into the car and to try to take the satchel from Mr. Green’s possession. It was reasonable for him, with his gun drawn, to have asked that Mr. Green show him what else was in the bag, effectively conducting a search of the satchel and leading to the discovery of the firearm. In all these circumstances, I conclude that there was no breach of either ss. 7 or 8 of the Charter.

Conclusion

[55] Mr. Green’s application to exclude the firearm is dismissed.

[56] I wish to thank Mr. Fisher and Ms. Kim for their assistance and for the professional manner in which they conducted this application.

J.W. Woollcombe J. Released: March 1, 2022

Footnote:

[1] Counsel did not address during their oral submissions whether Officer Shaw pursued the Mazda with his emergency lights on. After the hearing, counsel were asked for their written submissions respecting what they understood the evidence to be and the significance of the evidence of absence of evidence. Their written responses indicate that they agree that there was no evidence from Officer Shaw on this point and agree that it is likely that his lights remained on. I agree, and approach the analysis on that basis.