



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fountain, 2015 ONCA 354

DATE: 20150519

DOCKET: C57877

Laskin, LaForme and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alexander Fountain

Appellant

Breana Vandebeek, for the appellant

Greg Skerkowski, for the respondent

Heard: January 15, 2015

On appeal from the conviction entered by Justice William
    B. Horkins of the Ontario Court of Justice, dated June 24, 2013, with reasons
    reported at 2013 ONCJ 434.

H.S. LaForme J.A.:

OVERVIEW

[1]

The Toronto Anti-Violence
    Intervention Strategy (TAVIS) is a community policing program within the
    Toronto Police Service. TAVIS police officers engage in what is referred to as pro-active
    policing.

[2]

Among other practices, TAVIS
    police officers randomly approach people and engage them in conversation, which
    may reveal information of a general or investigative interest. The police in
    these encounters usually fill out a Field Investigative Report (an FIR or
    208 card) with identification and association information. The police use 208
    cards to build and maintain a database of individuals and their associates,
    primarily in high-crime or so-called priority areas of the city.

[3]

The issues in this appeal arise
    out of an engagement between a TAVIS police officer and the appellant and the
    circumstances under which the officer filled out a 208 card. During the
    engagement, exigent circumstances were said to have arisen that justified a
    warrantless search for public and/or officer safety. The appellant argues the
    circumstances did not justify the warrantless search, and that this court
    should therefore exclude the evidentiary products of the search.

BACKGROUND

[4]

The appellant and another young
    black male were walking past a police car when Constable Ryan Fardell singled
    out the appellant and called him over for questioning. Constable Fardell first
    clarified the appellants identity and asked whether he had any outstanding
    warrants. Once Constable Fardell established the appellants identity and
    realized he had no outstanding warrants, Constable Fardell turned to filling
    out a 208 card.

[5]

As Constable Fardell wrote up the
    card, a third man, apparently unknown to either the appellant or the officer,
    walked up behind Constable Fardell and his partner and began interrogating the
    officers about what he perceived to be harassment of the appellant and the
    appellants companion. The appellant abruptly turned sideways, blading
[1]
his body. Constable Fardell commanded the appellant to show his hands, but the
    appellant failed to do so. Constable Fardell then reached out and patted the
    appellants side. The officer felt a hard object and yelled gun. The
    appellant fled, and a gun fell out of his jacket as he mounted a fence.

[6]

The police apprehended the
    appellant shortly thereafter. He was ultimately convicted of possession of a
    firearm and sentenced to four years imprisonment.

The Trial Judges Decision

[7]

The appellants trial was heard as
    an application to exclude the firearm for breaches of the appellants
Charter
rights:
R. v. Fountain
, 2013 ONCJ 434, 291 C.R.R. (2d) 299. The trial judge
    held that, while the appellant had been arbitrarily detained, the subsequent
    pat-down search was reasonable because it flowed from exigent circumstances.
    The trial judge then concluded that even if the guns discovery stemmed from
    the arbitrary detention such that the gun was obtained in a manner that
    infringed the appellants
Charter
rights, he would not exclude the gun as evidence under s. 24(2) of the
Charter
.

[8]

As the trial judge observed, while
    pro-active policing programs have generally passed
Charter
scrutiny, the courts must assess each street-level
    encounter on its own merits. There is no doubt, he cautioned, that these
    carding programs tread a very fine line depending on the particular
    circumstance of any given situation:
Fountain
, at para. 9.

[9]

The appellant asserts that in this
    case, the line was crossed.

THE ISSUES

[10]

The appellant raises two issues on
    appeal. First, he submits that the trial judge erred in applying the doctrine
    of exigent circumstances to justify the pat-down search. Second, he argues that
    the trial judge failed to assess material inconsistencies in the evidence that
    damaged Constable Fardells credibility.

[11]

The appellant submits that if Constable
    Fardell unlawfully searched the appellant, the court should conduct a fresh s.
    24(2) analysis and exclude the gun. If the trial judge erred in his assessment
    of Constable Fardells credibility, the court should order a new trial.

[12]

I conclude that the appellant was
    unlawfully detained throughout his involvement with the police and that exigent
    circumstances justified the pat-down search of the appellant. The trial judge
    was right to proceed to a s. 24(2) analysis in the circumstances of this case.
    I would dismiss the appeal.

ANALYSIS

[13]

On the first issue, the appellant
    argues that exigent circumstances cannot justify the search of the appellant
    because the police were not in the lawful execution of their duties at the
    time. He also contends that where, as here, the police created the exigent
    circumstances, they cannot rely on those circumstances to justify a search.

[14]

On the second issue, the appellant
    submits the trial judge erred in failing to reconcile material inconsistencies
    in the evidence. Had the trial judge properly assessed the inconsistencies, he
    might have come to a different conclusion on Constable Fardells credibility
    and so on the lawfulness of the pat-down search.

[15]

I will address each of these
    issues in order.

Issue 1: Exigent Circumstances

[16]

The appellant asserts that from
    the moment Constable Fardell began speaking to him until the search, the police
    were arbitrarily detaining him and not engaged in the lawful execution of their
    duties.

[17]

It is unclear to me from the trial
    judges reasons when he finds the unlawful detention began. In my view,
    Constable Fardell unlawfully detained the appellant from the moment he called
    out to him.

[18]

Constable Fardell had dealt with
    the appellant or his brother before. The officer knew they both had criminal
    histories and believed that a warrant was out for one of them. The trial judge
    found that, although Constable Fardell was acting within the general scope of
    his duties as a police officer, this was not a random stop. Rather, it was a
    focused, investigative engagement to determine if the appellant was the
    wanted brother.

[19]

Constable Fardell admitted that he
    had no basis to detain the appellant when he began speaking to him. The officer
    only thought the appellant might be the brother who might be wanted. He did not
    suspect that the appellant was involved in any particular criminal activity.

[20]

The trial judge found that
    Constable Fardell had psychologically detained the appellant. Constable
    Fardell, as a uniformed officer, ordered the appellant, a young, black man, to
    come over and talk to him. The officer asked the appellant if he had any open
    warrants, and planned to arrest the appellant if he did. He told the appellant
    to keep his hands down. He did not tell the appellant that he was free to
    leave. The trial judge inferred that, in all these circumstances, a reasonable
    person would have felt compelled to obey the officer and felt that he could not
    walk away: see
R. v. Grant
, 2009
    SCC 32, [2009] 2 S.C.R. 353, at para. 31.

[21]

I agree with the trial judges
    inference. Therefore, I conclude that Constable Fardell unlawfully detained the
    appellant from the outset of their conversation.

[22]

In any case, the Crown accepts
    that, at some point before the third-party intervention, Constable Fardell
    unlawfully detained the appellant. Therefore, I will focus my analysis on two
    issues: (a) the lawfulness of the pat-down search, and (b) the exclusion of the
    gun.

Lawfulness of the Search

[23]

Warrantless searches are
    presumptively unreasonable:
R. v. Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 36. But a warrantless safety
    search may be reasonable in appropriate circumstances: see
R. v.
    MacDonald
, 2014 SCC 3, [2014] 1 S.C.R. 37,
    at para. 31. A safety search is generally a reactionary measure, often
    driven by exigent circumstances:
MacDonald
, at para. 32. For a safety search to be lawful, an
    officer must have reasonable grounds to believe that there is an imminent
    threat to police or public safety:
MacDonald
, at para. 43. As
MacDonald
described, at para. 41:

Given the high privacy interests at stake in such searches, [a
    safety search] will be authorized by law only if the police officer believes on
    reasonable grounds that his or her safety is at stake and that, as a result, it
    is necessary to conduct a search. The legality of the search therefore turns on
    its reasonable, objectively verifiable necessity in the circumstances of the
    matter. [Citations omitted.]

[24]

A safety search must also be carried
    out reasonably:
MacDonald
, at
    para. 47. Finally, even if a safety search takes place in the context of an
    unlawful detention, exigent circumstances can still justify the search: see
R.
    v. Blackwood
, [2009] O.J. No. 5393 (S.C.),
    affd 2013 ONCA 219, [2013] O.J. No. 1548.

[25]

Often, police officers conduct safety
    searches incident to investigative detentions. However,
MacDonald
demonstrates that an officer may conduct a safety
    search outside of an investigative detention.

[26]

In this case, the trial judge determined
    that Constable Fardells pat-down search of the appellant was lawful, even
    though it took place during an unlawful detention. According to the trial
    judge, the discovery of the gun flowed from a lawful search conducted in
    exigent circumstances. It did not flow from the earlier unlawful detention:
Fountain
, at para. 70. At para. 69, he found:

In all the circumstances it was absolutely necessary for the
    officer to conduct this safety pat-down to protect himself. The conduct of the
    officer was entirely reasonable, lawful, and understandable, and justified on
    officer-safety grounds.

[27]

Although the trial judge did not
    use the precise language employed in
MacDonald
, his use of the words absolutely necessary 
    combined with his focus on officer safety  indicates he was alive to the
    correct legal principles and the factors constraining the safety search power.

[28]

The appellant submits the trial
    judge erred in relying on exigent circumstances to justify the search because
    [t]he police cannot justify a warrantless search on the basis of a volatile
    situation that they created by their own unlawful conduct. According to the
    appellant, the third party only interjected because Constable Fardell
    unlawfully detained the appellant.

[29]

I cannot agree with this argument.
    In my view, the police in this case cannot be said to have created their own
    exigent circumstances, to use the language of La Forest J.s dissent in
R.
    v. Silveira
, [1995] 2 S.C.R. 297, at para. 53.

[30]

A third party bystander could not
    easily tell, in all the circumstances of this case, whether Constable Fardell
    had detained the appellant or, if he had detained the appellant, whether the
    detention was lawful. I cannot say with any degree of certainty that Constable
    Fardells unlawful detention of the appellant caused the third party to
    intervene. The third party would likely still have intervened even if Constable
    Fardell had not detained the appellant or if he had lawfully detained the
    appellant.

[31]

Moreover, the trial judge did not
    rely on the third party interjection alone to find exigent circumstances The
    appellants reaction to the appearance of the third party was equally if not
    more important to Constable Fardells decision to search the appellant. Constable
    Fardell said that once the third party arrived, the appellant became nervous,
    bladed his body, placed his left arm on his left hip, and took two paces
    backwards.

[32]

While the exigent circumstances in
    this case may not have been as extreme as those in
Blackwood
,
where the accused aggressively pushed a police
    officer, I am satisfied that Constable Fardell had reasonable grounds to
    conduct the pat-down search. Because the third party may have interjected even
    if the police had not unlawfully detained the appellant and because the
    appellants reaction played a central role in producing the exigent
    circumstances, I do not think it accurate to say the police created their own
    exigent circumstances.

[33]

To conclude on the legality of the
    search, I see no basis to interfere with the trial judges decision. He did not
    err in applying the doctrine of exigent circumstances to justify the search of
    the appellant. The trial judge was entitled to conclude that Constable Fardell
    had reasonable grounds to believe the appellant presented an imminent threat to
    his safety. Furthermore, Constable Fardell carried out the pat-down search of
    the appellants left hip in a reasonable manner. The officer merely patted the
    appellants hip.

[34]

I would reject this ground of
    appeal.

Application of s. 24(2)

[35]

The appellant asked this court to revisit the s. 24(2) analysis
    only if the court concluded Constable Fardell unlawfully searched the
    appellant. As I will explain, although I have concluded that the pat-down
    search was lawful, I believe the temporal connection between it and the
    unlawful detention is sufficient to have warranted the application judges s.
    24(2) analysis
.

[36]

Section 24(2) of the
Charter
provides the following:

Where, in proceedings under subsection (1), a court concludes
    that evidence
was obtained in a manner
that
    infringed or denied any rights or freedoms guaranteed by this Charter, the
    evidence shall be excluded if it is established that, having regard to all the
    circumstances, the admission of it in the proceedings would
bring the administration of justice into disrepute
.
    [Emphasis added.]

[37]

The jurisprudence on s. 24(2)
    focuses on clarifying what circumstances would bring the administration of
    justice into disrepute. The Supreme Court laid out the governing test on this
    question in
Grant
, at para. 71.

[38]

But s. 24(2) also contains a
    threshold question. In
R. v. Strachan
, [1988] 2 S.C.R. 980, at p. 1005, the court noted that the first
    inquiry under s. 24(2) would be to
determine
    whether a
Charter
violation occurred in the course of obtaining the evidence
 (emphasis added).

[39]

An accused seeking the exclusion
    of evidence under s. 24(2) must therefore satisfy two components: first, the
    accused must show that the evidence was obtained in a manner that infringed a
Charter
right; and second, the
    accused must demonstrate that the admission of the evidence would bring the
    administration of justice into disrepute: see
R. v. Plaha
(2004), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 44.

[40]

In this case, the trial judge, at
    para. 74, found that [t]here was a significant disconnect between the
section 9
breach and the discovery of the gun. The connection between
    the unlawful detention and the guns discovery, therefore, did not appear
    strong enough to require a s. 24(2) analysis.

[41]

The trial judge, however,
    conducted a s. 24(2) analysis for completeness, just in case the unlawful
    detention was sufficiently connected to the guns discovery. I believe this was
    a prudent approach and I am satisfied the unlawful detention stood close enough
    to the guns discovery to require further inquiry.

[42]

In
Plaha
, at para. 45, Doherty J.A. helpfully summarized the
    approach to the threshold question:

The jurisprudence establishes a generous approach to the
    threshold issue. A causal relationship between the breach and the impugned
    evidence is not necessary. The evidence will be "obtained in a
    manner" that infringed a
Charter
right if on a review of the
    entire course of events, the breach and the obtaining of the evidence can be
    said to be part of the same transaction or course of conduct. The connection
    between the breach and the obtaining of the evidence may be temporal,
    contextual, causal or a combination of the three. The connection must be more
    than tenuous.

[43]

In this case, the police
    unlawfully detained the appellant and discovered the gun as part of the same
    transaction or course of conduct. The most compelling factor is the temporal
    connection: in oral argument, the parties agreed that the entire transaction
    from Constable Fardells initial approach to eventual pat-down lasted only about
    three minutes.

[44]

Doherty J.A. very recently
    authored a decision I find helpful here:
R. v. Stevenson
, 2014 ONCA 842, 317 C.C.C. (3d) 385, leave to appeal
    to S.C.C. requested. In
Stevenson
,
    the appellant had been convicted of shooting his estranged wife in the head.
    Doherty J.A. concluded the appellant was arbitrarily detained when the police
    arrested him without reasonable grounds. The police had put handcuffs on him
    and then wrapped his hands in plastic to preserve possible gunshot residue. Later
    the same evening, reasonable grounds to arrest the appellant arose, turning his
    unlawful arrest into a lawful arrest. After the arrest became lawful, the
    police searched (i.e. tested) the appellants hands and discovered gunshot
    residue.

[45]

Doherty J.A. held that even though
    the eventual search of the appellants hands occurred
after
the appellants arrest had become lawful, the initial
    arbitrary detention was sufficiently connected to the discovery of the gunshot
    residue to require a s. 24(2) analysis. At para. 63, he explained:

The appellant seeks the exclusion of the results of the GSR
    test done on his clothing and hands. The GSR results are
sufficiently
    temporally connected
to the arbitrary detention to make the results of
    the test "evidence that was obtained in a manner that infringed" the
    appellant's
Charter
rights even though he was lawfully arrested by the
    time the samples were taken and the clothing seized. [Emphasis added; citations
    omitted.]

[46]

Stevenson
is helpful
    because the circumstances are similar to those in this case. In both cases, a lawful
    search was linked to an unlawful detention. That the facts in
Stevenson
required a s. 24(2) analysis leads me to the
    conclusion that this cases facts also require such an analysis.

[47]

The trial judge, at para. 68, found that prior to the third
    partys arrival, there was no indication that the officer had any intention,
    or interest, in actually arresting Mr. Fountain let alone in searching him. Because
    of this, any causal connection between the unlawful detention in this case and
    the discovery of the gun appears weak. But, [a] causal relationship between
    the breach and the impugned evidence is not necessary:
Plaha
, at
    para. 45. And, as the Supreme Court observed in
Strachan
, at p. 1002
:

A strict causal nexus would place the courts in the position of
    having to speculate whether the evidence would have been discovered had the
Charter
violation not occurred. Speculation on what might have happened is a highly
    artificial task.

[48]

In the end, I believe the search of the appellant is
sufficiently temporally
    connected
to the arbitrary detention to make the search
    "evidence that was obtained in a manner that infringed" his
Charter
rights, even though exigent circumstances gave rise to the discovery of the
    gun.

[49]

The Crown submits that while a
    weak causal connection may not always put evidence outside s. 24(2)s purview,
    it does weigh in favour of admitting the evidence under the
Grant
analysis. The Crown relies on
R. v. Bartle
, [1994] 3 S.C.R. 173, where the court, at p. 209,
    wrote, it should be borne in mind that the presence and strength of the causal
    connection between the evidence and the
Charter
breach may be a factor for consideration under the
    [administration of justice into disrepute] branch of s. 24(2).

[50]

I do not think it necessary to
    address the Crowns
Bartle
submission.
    The s. 24(2) analysis strongly favours inclusion of the gun whether one
    considers the strength of the causal connection or not.

[51]

Turning to the three
Grant
factors, I emphasize the deference owed to
    the trial judge. In
R. v. Peterkin
, 2015 ONCA 8, [2015] O.J. No. 100, at para. 75, Watt J.A. wrote, where
    a trial judge has considered the proper factors and has not made any
    unreasonable finding, his or her determination [under s. 24(2)] is owed
    considerable deference on appellate review (citations omitted).

[52]

In my view, the appellant has not
    established any error or unreasonable findings. There is no reason to interfere
    with the trial judges decision to admit the evidence.

[53]

Before concluding my discussion of
    this issue I wish to make a few remarks about the trial judges statement at
    para. 93, where he concludes: 
Absent
    truly egregious conduct on the part of the police most Canadians would find it
    unconscionable for an accused that was, in fact, carrying a loaded handgun be
    set free without a trial on the merits. In reaching this conclusion, the trial
    judge relied, in part, on the strong comments of Moldaver J.A. (as he then was)
    in
R. v. L.B.
,
2007 ONCA 596, 227 C.C.C. (3d) 70.

[54]

Moldaver J.A. wrote his comments in
    the specific context of a high-school student carrying a loaded handgun onto
    school property. In his description of the circumstance underlying the case,
    Moldaver J.A. observed, at para. 80, that:

It conjures up images of horror and anguish the likes of which
    few could have imagined 25 years ago when the
Charter
first came
    to being. Sadly, in recent times, such images have become all too common 
    children left dead and dying; families overcome by grief and sorrow; communities
    left reeling in shock and disbelief.

[55]

While no one could easily disagree
    with those comments within the specific circumstances of
L.B.
, I do not think it proper for trial judges to rely on
    them as a general proposition in all cases involving handguns. That is, trial
    judges should not turn to such images in every case as part of the analysis
    under s. 24(2). Indeed, Moldaver J.A. made it clear that his comments were
    specific to the facts of his case. After making the comments set out above, he
    immediately went on to say, at paras. 81-82:

That is the backdrop of this case and in my view, it provides
    the context within which the conduct of the police should be measured, for
    purposes of
s. 24(2)
, in deciding
    whether we should be excluding completely reliable evidence (here, the gun) and
    freeing potentially dangerous people without a trial on the merits.

Viewed that way, I believe that absent egregious conduct on the
    part of the police, most Canadians would find it unconscionable for L.B. to be
    set free without a trial on the merits.

[56]

In spite of his invocation of
    Moldaver J.A.s comments in
L.B.
,
    I would still not interfere with the trial judges conclusion on s. 24(2).

Issue 2: Material Inconsistencies

[57]

The appellant did not point to any
    material inconsistencies. I agree with the Crown that the issues at trial asked
    the trial judge to apply legal standards to facts either not in dispute or
    uncontradicted.

[58]

A critical assessment of Constable
    Fardells credibility did not play a central role in this case. Although there
    were some discrepancies between his notes and the audio recording, it is mere
    speculation to suggest that those discrepancies indicate some unacceptable
    purpose.

[59]

Finally, the trial judge was not
    required to refer to and reconcile every potential inconsistency in the
    evidence. The reasons given in this case provide for meaningful review and
    clearly inform the appellant why his
Charter
challenge failed: see
R. v. Newton
, [2006] O.J. No. 1008 (C.A.), at paras. 3-4.

[60]

I would reject this ground of
    appeal.

DISPOSITION

[61]

I would dismiss the appeal.

Released: JL MAY 19, 2015

H.S. LaForme J.A.

I agree. John Laskin
    J.A.

I agree. Paul
    Rouleau J.A.





[1]
A person blades his body when he turns sideways to his counterpart. A person
    may blade his body to protect a firearm held on one side.


