



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Atkins, 2013 ONCA 586

DATE: 20130927

DOCKET: C56642

Rosenberg, Lauwers and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rowan Atkins

Appellant

B. Vandebeek, for the appellant

Shawn Porter, for the respondent

Heard: September 17, 2013

On appeal from the conviction entered on January 25, 2013
    by Justice Faye E. McWatt of the Superior Court of Justice, sitting without a
    jury.

By the Court:

[1]

The appellant appeals from the judgment of McWatt J. convicting him of
    several gun-related offences. The appeal turns on the trial judges ruling that
    the appellants rights under ss. 8 and 9 of the
Canadian Charter of Rights
    and Freedoms
were not infringed. Notwithstanding Ms. Vandebeeks very
    helpful submissions, for the following reasons we are satisfied that the trial
    judge did not err in her conclusion that there was no violation of the
    appellants rights.

[2]

The appellant is a young black male.  On New Years Eve, in 2010, three
    police officers were in a van driving southbound on Spadina Avenue in Toronto
    in the curb lane approaching Queen Street.  The van was unmarked.

[3]

The officers noticed the appellant as he walked southbound on the west
    side of Spadina Avenue.  He was wearing a heavy, baggy winter coat, layered
    over a hooded sweatshirt.  The officers considered the appellant to be
    over-dressed for the weather, since it was seven degrees Celsius and many
    people wore light jackets and others no jackets at all.  They also testified
    that the appellant appeared noticeably withdrawn while others around him were
    in a sociable mood.  He seemed to be hiding in the crowd and skirting the
    building walls.  This attracted their suspicion. The trial judge found that
    there was no evidence that the police officers knew the appellant was a black
    male when they first noticed him.

[4]

The officers decided to speak with the appellant.  Officer Fabiszewska
    called hey to him out of the vans opened window.  The appellant glanced back
    but kept walking.  The van moved further south on Spadina Avenue and the
    officer called hey buddy a little louder to the appellant.  He turned towards
    Officer Fabiszewska.  She waved with her right hand for the appellant to come
    over.  She then got out of the van with Office McQueen. They were both in full
    uniform. The appellant took a couple of steps toward them as if he was going to
    speak with them, but then started running.

[5]

Officer Yurkiw, the third officer, pursued the appellant as he ran
    towards what the officer called a high crime district.  After about 300
    metres he caught, cuffed and searched the appellant.  The appellant was
    carrying a loaded nine millimetre handgun.  He was charged and convicted with
    possession of a restricted firearm and with two counts of possession of a
    firearm in contravention of a prohibition order.

[6]

The trial judge considered, on a
voir dire,
whether the
    appellant was arbitrarily detained under s. 9 of the
Canadian Charter of
    Rights and Freedoms
.

The applicant contends that he was arbitrarily detained when
    Officer Fabiszewska commanded him to come to them with her verbal calls and
    when she waved from the unmarked van.  This finding of fact would be premised
    on my accepting that Mr. Atkins knew that she and the others were police
    officers.  However, there is no evidence to support that Mr. Atkins knew, at
    the time Officer Fabiszewska beckoned to him, that she and the others were
    police.

First, there is no evidence from the applicant about what he
    saw or knew when the officer waved him over to the van.  There is no evidence
    from him that he saw they were police and it is easier to conclude on the
    evidence in this case that
he did not realize they were police until the two
    female officers began to alight from the vehicle.



I also cannot find that the officer directed or ordered Mr.
    Atkins to do anything.  There was no significant physical or psychological
    restraint.

I can only find on these facts that Mr. Atkins ran before he
    was stopped to be spoken to by police.  On the evidence, it cannot be said that
    this case even proceeded to one of the broad range of encounters between police
    and members of the public discussed by the Supreme Court of Canada in
R. v. Mann
, 2004 W.C.C. 52 (CanLII) at para. 19.

There was no physical detention.  There was no psychological
    detention as set out by the Ontario Court of Appeal in
R.
    v. Grant
which crystallized during a conversation with a police
    officer.

I cannot find, without more from the applicant, that Officer
    Fabiszewskas hey, hey buddy and waves to him to come talk to her was a
    police command.  Clearly Mr. Atkins would have to believe the officer was
    commanding him to come over.  There was no objective evidence to support that
    he did.

There is insufficient evidence to support that Mr. Atkins
    believed he was complying with any police command when he took a couple of
    steps towards the van. [Emphasis added.]

[7]

The context plainly shows, as the trial judge found, that when the
    appellant decided to run he knew full well that it was the police who had
    summoned him.

[8]

The appellant asks this court to find that the interaction between the
    officers and the appellant on the sidewalk amounted to a psychological
    detention.  Counsel argues: there is no question that the appellant knew he
    was dealing with the police (they were in full uniform), stopped as a result of
    a police demand, started to comply with their demand, and only then fled.  These
    circumstances amount to a detention as set out by Supreme Court of Canada in
R.
    v. Grant [[2009]2 SCR 353]
.

[9]

The appellant also puts into issue the role of flight, contrasting this
    courts decision in
Nesbeth,
[2008] O.J. No. 3086 with
R. v. Reddy
,
    [2010] B.C.J. No. 49 (C.A.).  In
Nesbeth
this court concluded that the
    appellant was not detained because he did not actually comply with the demand,
    as the court noted at paras. 14-16, picking up on the decision in
R. v.
    Grant
(2006), 209 C.C.C. (3d) 2 5
th
(C.A.) at para. 28. In
R.
    v. Reddy
, the discussion is found at paras. 57, 58 and 61.  At para. 62,
    Frankel J.A. said:

The only conclusion I can reach on an objective assessment of
    the facts in this case is that Mr. Reddy was detained.  A reasonable person
    directed by a police officer to get out of a vehicle would not question or
    challenge the officers authority, but would comply in the belief that he or
    she had no other option.  That Mr. Reddy did not remain at the curb for very
    long [because he ran] does not negate the fact that he was detained at the
    beginning of his encounter with Constable Todd.

[10]

The
    question of what qualifies as a psychological detainment is fraught with
    difficulty, as the Supreme Court pointed out in
Grant
at paras. 30-44.
    Would a young black man, being a reasonable person (para. 41 of
Grant
),
    and being a member of a minority (para. 44(2)(c) of
Grant
), conclude
    he or she had no choice but to comply with a police officers request.  The
    fact that the appellant ran may well be some evidence that he believed that he
    had no choice but to comply, and instead of complying, decided to escape. 
    However, as the trial judge recognized, if the appellant did not acquiesce or
    submit to any deprivation of liberty, there could be no detention.

[11]

The
    further difficulty with counsels argument that the appellant was
    psychologically detained is that the appellant did not testify on the
voir
    dire
, leaving no evidence on which the trial judge could conclude, even
    based on the appellants subjective perception of his choices at the moment
    that he was summoned, that he was psychologically detained.

[12]

The
    appellant attempts to circumvent the problem of lack of submission or
    acquiescence by arguing that the trial judge erred in failing to consider the
    evidence of Officer McQueen that showed that the appellant recognized the
    people in the van were police officers when he took two steps toward them.
    There was evidence upon which the trial judge could find that the appellant did
    not recognize that the people in the van were police officers and that
    accordingly he did not change his direction of travel in response to a demand
    from a person in authority. While some of the answers given by Officer McQueen
    in cross-examination support the appellants position, other parts of her
    evidence are less clear and the evidence from the other officers supports the
    trial judges conclusion. In any event, even if the appellant did recognize the
    people in the van as police officers, it was not shown that the words from
    Constable Fabiszewska created a detention. Moreover, even more directory
    comments from a police officer have been found not to create a detention, see
R.
    v. Suberu
,
2009 SCC 33 at paras. 24-8.

[13]

Accordingly,
    the trial judge did not err in finding that the appellants rights under s. 9
    of the
Charter
were not infringed.

[14]

We
    are also satisfied that it was open to the trial judge to find that, in all the
    circumstances, the officers had the requisite reasonable suspicion to detain
    the appellant. We should not be taken as holding that merely because a person
    flees from the police, there are grounds to detain the person. In this case,
    there was other information that the trial judge could rely upon to find the
    officers had a reasonable suspicion within the meaning of
R. v. Mann
,
    2004 SCC 52.  Accordingly, the trial judge did not err in finding that the
    appellants rights under s. 9 of the
Charter
were not infringed.

[15]

The
    pat-down search that followed the detention was justified on officer safety
    grounds. The officers reasonably suspected that the appellant was in possession
    of a weapon. While at the instance of the search, the appellant could not reach
    any weapon because he was handcuffed, once the investigative detention ended
    the officer would have to remove the handcuffs and he would have been in
    immediate danger. There was therefore no violation of the appellants rights
    under s. 8 of the
Charter
.

[16]

Accordingly,
    the appeal from conviction is dismissed.

Released: September 26, 2013 (P.D.L.)

M. Rosenberg J.A.

P. Lauwers J.A.

G.R. Strathy J.A.


