



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Williams, 2013 ONCA 772

DATE: 20131220

DOCKET: C56001

Cronk, Watt and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Geran Williams

Appellant

Michael Dineen, for the appellant

Michael Medeiros, for the respondent

Heard:  December 6, 2013

On appeal from the decision of Justice E. Eva Frank of
    the Superior Court of Justice, sitting without a jury, on March 23, 2012.

ENDORSEMENT

[1]

The appellant appeals several convictions arising out of his possession
    of a fully-loaded .45 calibre semi-automatic handgun and a small quantity of
    marihuana.

[2]

The appellant reinvigorates an argument made at trial that the police
    conduct in obtaining the evidence against him  the handgun and marihuana 
    infringed his rights under sections 8 and 9 of the
Charter of Rights and
    Freedoms
.  To be more specific, the appellant says that he was arbitrarily
    detained when first approached by police, then subjected to an unreasonable
    search, which resulted in the unreasonable seizure of the handgun and
    marihuana.  The seized items, the appellant contends, should have been excluded
    as evidence at his trial.

[3]

The trial judge disagreed.  So do we.  The conduct of the police
    offended neither s. 8 nor s. 9 of the
Charter
.  The gun and marihuana
    were properly admitted as evidence at trial.  The appeal is dismissed and the
    several convictions affirmed.

THE BACKGROUND FACTS

[4]

The appellants trial proceeded as a blended
voir dire
and
    trial before a judge of the Superior Court of Justice sitting without a jury. 
    The evidence on the
voir dire
consisted of the testimony of the
    several police officers involved in the investigation of the appellant and of
    two witnesses called on the appellants behalf.  The appellant did not testify
    on the
voir dire
or at trial.

[5]

The interaction between the appellant and the police quickly followed
    receipt of an anonymous tip about a man with a gun in an area not far from the
    police station where crimes involving drugs and guns are frequent.  The
    evidence about what happened during the police response was not entirely
    consistent, as among the several police witnesses, or between their testimony
    and the accounts provided by the two civilians called on behalf of the
    appellant.

[6]

The trial judge made several critical findings of fact from the evidence
    adduced at trial.  The appellant does not suggest that those findings are
    unreasonable or tainted by misapprehensions of the relevant evidence.  The nub
    of the appellants complaint is that the legal conclusions the trial judge drew
    from her findings of fact are wrong.

The Anonymous Tip

[7]

Shortly after 7:25 p.m. on July 10, 2008 a police officer answered the
    telephone in the Major Crime Unit of 23 Division police station in Toronto. 
    The caller told the officer that a person was walking south at 1800 Martingrove
    with a gun.  The person was described as a black man wearing a black t-shirt
    and jeans.  The man was five feet eight inches tall, had a baby face, and wore
    his hair in dreadlocks.  The officer asked the callers name.  The caller hung
    up.

[8]

The housing complex at 1800 Martingrove is a short distance from 23
    Division and well-known to the officers who work at that station.  Police are
    frequently called to this complex about ongoing problems with drugs and guns,
    including shootings.  Police refer to the area as a stovetop, a place where
    crack cocaine is often cooked on the top of a stove.

[9]

Police knowledge about the illicit activities at 1800 Martingrove means
    that there is frequent police activity in and around the complex.  Plainclothes
    officers are routinely recognized for what they are  the police.

The Police Response

[10]

The
    information received during the anonymous call was passed on immediately to
    other members of the Major Crime Unit.  Within minutes, six officers in
    plainclothes responded, taking up various positions in the area described by
    the caller.

[11]

The
    first officers there noticed, within a group of people, one individual who fit
    the callers description about the man with the gun.  The mans face was not
    visible so that the officers could not confirm, initially at least, that the
    man they saw at the south entrance to 1800 Martingrove  the appellant  had a
    baby face.  Two of the officers stayed out of sight of the appellant.

The Approach

[12]

Two
    police officers approached the appellant, identified themselves as police
    officers, and said they were investigating a weapons offence.  One of the
    officers asked Are you armed?.  The appellant did not answer the officers
    question.  Instead, the appellant bladed  turned to his side  in a manner
    the officer considered evasive.  The others who were with him did not react in
    the same way.  One of the officers noticed that the appellant also made a
    movement towards the area of his waist.

[13]

An
    officer told the appellant to put his hands up and to turn around.  The
    appellant did neither.

The Confrontation and Search

[14]

The
    failure of the appellant to respond to the police inquiry and subsequent
    instruction prompted the two officers closest to him to approach the appellant
    and take control of his arms.  The appellant resisted.  All of the officers
    testified that they considered their safety, as well as that of the public, to
    be at risk.  During the brief struggle that followed, one officer lifted up the
    appellants t-shirt and saw the butt end of a handgun protruding from the waistband
    at the back of the appellants pants.  The officer yelled gun, gun, gun.

[15]

Other
    officers assisted in subduing the appellant on the ground and handcuffing him
    behind his back.  The handgun was fully loaded, including a cartridge in the
    firing chamber, and was ready to fire.  The appellant was arrested.  The
    marihuana was recovered during a search incident to the appellants arrest.

The Ruling of the Trial Judge

[16]

The
    trial judge considered, first, the argument that the appellant was arbitrarily
    detained from the outset because neither the anonymous tip nor anything that
    occurred thereafter amounted to the reasonable suspicion required to justify an
    investigative detention.

[17]

The
    trial judge was satisfied that the information provided in the anonymous tip was
    insufficient to found a reasonable suspicion that the appellant committed an
    offence and thus could not, on its own, justify an investigative detention. 
    But the tip combined with what occurred as the officers spoke to the appellant
    furnished the grounds necessary to justify the investigative detention that
    followed.  Once the gun was seen, the officers had reasonable and probable
    grounds to arrest the appellant.

[18]

The
    trial judge was also satisfied that the search of the appellant was not
    unreasonable.  She acknowledged that what occurred was not a pat-down permitted
    out of concern for officer or public safety, as part of an investigative
    detention.  But what happened, the lifting of a t-shirt, was less invasive than
    a pat-down search would have been and thus was not unreasonable.

[19]

Despite
    the finding that none of the evidence proposed for admission by Crown counsel
    had been obtained in a way that infringed the appellants
Charter
rights,
    the trial judge considered the application of s. 24(2) of the
Charter
on
    the assumption that she had erred in her findings about a
Charter
infringement.  She concluded that she would have admitted the evidence about
    finding the gun and marihuana even if she had found either or both the alleged
    infringements.

Ground #1:  Arbitrary Detention

[20]

The
    appellant says that although the trial judge was correct in deciding that the
    anonymous tip, on its own, was insufficient to authorize the investigative
    detention of the appellant, she erred in finding that the subsequent events
    established the necessary conditions precedent for such a detention.  The
    appellants conduct when confronted by the police included responses that were
    at once ambiguous and consistent with the exercise of his right to silence. 
    Besides, what happened here was not an investigative detention, but rather a
de
    facto
arrest unsupported by any reasonably-grounded belief that the
    appellant committed an offence.

[21]

We
    do not agree.

[22]

Police
    may detain a person for investigative purposes if they have reasonable grounds
    to suspect that the person is connected to particular criminal activity and
    that such a detention is reasonably necessary in the circumstances:
R. v.
    Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45;
R. v. MacKenzie
,
    2013 SCC 50, at para. 35.  The standard  reasonable grounds to suspect 
    involves possibilities, not probabilities:
MacKenzie
, at para. 38;
R.
    v. Chehil
, 2013 SCC 49, at para. 27;
R. v. Kang-Brown
, 2008 SCC
    18, [2008] 1 S.C.R. 456, at para. 75.   We must take care not to conflate the
    test for reasonable suspicion with the more exacting standard of reasonable
    belief:
MacKenzie
, at para. 84;
Chehil
, at para. 27.

[23]

A
    reasonable suspicion entails more than a sincerely held subjective belief, for
    that is mere suspicion:
MacKenzie
, at para. 41;
Kang-Brown
,
    at para. 75.  A reasonable suspicion is a suspicion grounded in objectively
    discernible facts, which could then be subjected to independent judicial
    scrutiny:
Chehil
, at para. 26;
MacKenzie
, at para. 41.

[24]

To
    determine whether the reasonable suspicion standard has been met, a reviewing
    court must examine the totality of the relevant circumstances.  This
    examination is not some scientific or metaphysical exercise.  Common sense,
    flexibility, and practical everyday experience are to be applied through the
    eyes of a reasonable person equipped with the knowledge, training, and
    experience of the investigating officer:
MacKenzie
, at para. 73.  The
    standard of reasonable suspicion is not frustrated simply because the factors
    urged in support may also give rise to an innocent explanation.  In the end, if
    the facts objectively indicate the
possibility
of criminal behaviour
    in light of the totality of the circumstances, the objective component of the
    reasonable suspicion standard has been satisfied:
MacKenzie
, at para.
    72;
Chehil
, at para. 31.

[25]

Any
    elements or factors considered as part of a reasonable suspicion analysis
    must respect
Charter
principles.  Nor should the exercise of
Charter
rights, such
as the right
    to remain silent or to walk away from questioning made outside the context of a
    detention, provide grounds for reasonable suspicion:
Chehil
, at paras.
    43-44.  Yet some factors, including flight from the police, may give rise to
    reasonable suspicion on their own:
Chehil
, at para. 31.  Even if a
    factor cannot on its own support reasonable suspicion, reasonable suspicion may
    be established when the same factor is simply one of a constellation of
    factors:
Chehil
, at para. 31.  The actions of a person after an
    initial encounter with the police are part of the circumstances to be
    considered in deciding whether the reasonable suspicion threshold has been
    crossed:
R. v. Nesbeth
, 2008 ONCA 579, 238 C.C.C. (3d) 567, at paras.
    1-2 and 17-18.

[26]

The
    parties agreed at trial and in this court that, on its own, the anonymous tip
    was not sufficient to satisfy the reasonable suspicion standard.  That said,
    the tip remained a part, and an important part, of the circumstances that were
    relevant to a determination of the reasonable suspicion issue.  The tip was
    current, described the nature of the offence being committed, and contained sufficient
    particulars of the suspect to enable police to immediately focus on the
    appellant when they arrived minutes later.

[27]

In
    our view, the combination of the anonymous tip and what occurred when the
    appellant encountered the police was capable of supporting a reasonable belief
    that the appellant might be connected to a gun crime as reported by the
    anonymous caller.  Nothing more was required.

Ground #2:  Unreasonable Search

[28]

The
    appellant advances a second claim of constitutional infringement in connection
    with the recovery of the handgun and marihuana.  He says that even if we
    conclude that the standard for investigative detention has been met, and thus
    that the appellant was not arbitrarily detained, the seizure of the contraband
    infringed his rights under s. 8 of the
Charter
.

[29]

The
    appellant says that the search that may be conducted of a person in instances
    of investigative detention is a pat-down search.  What occurred here, the
    appellant says, exceeded a pat-down search and was more akin to a strip search,
    a procedure that well exceeded what the law permits.

[30]

Again,
    we do not agree.  This ground of appeal fails.

[31]

The
    police were investigating a possible gun offence.  They apprised the appellant
    of their purpose.  They asked whether he was armed.  He did not answer their
    question, but bladed, turned away from them.  An officer told the appellant
    to put his hands up and turn around.  He refused.  The officers approached and
    took hold of both arms.  The appellant resisted.

[32]

One
    officer lifted the appellants baggy t-shirt.  A gun butt protruded from the
    waistband of the appellants pants.  The officer saw it and yelled gun, gun,
    gun.  The appellant was subdued, handcuffed, and placed under arrest.

[33]

Strictly
    speaking, what occurred was not a pat-down search.  But what occurred was no
    more, and arguably less, intrusive than a pat-down search.  To characterize
    what occurred here as unreasonable is to sacrifice substance for form.  In no
    sense could this search be characterized as the functional equivalent of a
    strip search.

Ground #3:  The Admissibility of Evidence

[34]

This
    ground of appeal requires the appellant to show that the evidence admitted at
    trial  the gun and marihuana  was obtained in a manner that infringed his
    rights under either s. 8 or s. 9 of the
Charter
.  Since he has failed
    to demonstrate that the evidence was obtained in a constitutionally flawed way,
    we do not reach the application of s. 24(2) of the
Charter
.

[35]

The
    trial judge did consider the application of s. 24(2) in case a reviewing court
    concluded that she had erred in finding that no constitutional infringement had
    occurred.  Her analysis and conclusion are unblemished by any error in
    principle, a failure to consider any relevant factor, a consideration of any
    irrelevant factor, or a misapprehension of any of the evidence.  We agree with
    her analysis and the result she reached.

CONCLUSION

[36]

For
    these reasons, the appeal is dismissed.

E.A.
    Cronk J.A.

David
    Watt J.A.

K. van
    Rensburg J.A.


