



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Le, 2018 ONCA 56

DATE: 20180125

DOCKET: C61115

Doherty, Lauwers and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tom Le

Appellant

Shannon McDunnough, for the appellant

J. Sandy Tse, for the respondent

Heard: June 8, 2017

On appeal from the convictions entered by Justice Kenneth
    L. Campbell of the Superior Court of Justice on April 1, 2014, with reasons reported
    at 2014 ONSC 2033.

Doherty J.A.:


I



[1]

The appellant, a cocaine dealer, was arrested in possession of a fully-
    loaded, operable, semi-automatic Ruger pistol, a quantity of cocaine, and
    considerable cash. He was charged with, and eventually convicted after a trial
    by judge alone of several firearm and drug-related offences. The trial judge
    imposed sentences totalling five years. The appellant appeals conviction only.

[2]

The appellants factual guilt was never in issue. He argued, however,
    that the police violated his constitutional rights to be free from arbitrary
    detention and unreasonable search in the events immediately preceding his
    arrest and the seizure of the gun, cocaine, and cash. The appellant argued that
    all of the evidence should be excluded under s. 24(2) of the
Charter
.

[3]

The trial judge found that the police had not violated the
    appellants
Charter
rights and that if there was any
Charter
violation, the appellant had not made out a case for
    excluding the evidence seized under s. 24(2).

[4]

On appeal, the appellant
    advances the
Charter
arguments rejected at trial.

[5]

I would dismiss the
    appeal.


II



[6]

The central events
    occurred in the backyard of the townhouse unit where Leraldo Dixon lived with
    his mother. Mr. Dixon and four of his friends, one of whom was the appellant,
    were sitting in the backyard talking when three police officers arrived. Less
    than a minute later, the appellant bolted from the backyard with the officers
    in pursuit. He was apprehended a short distance away. At the time of his
    arrest, he was carrying a loaded handgun, cocaine, and a considerable amount of
    cash.

[7]

The trial judge heard
    evidence over several days from the three police officers involved in the
    relevant events, a private security guard who spoke with the officers, the
    appellant, and his four friends who were present with him in the backyard. There
    were some significant differences in the versions of events described by the various
    witnesses. To make the necessary factual findings, the trial judge had to
    evaluate the witnesses credibility. He found that the police officers were
    credible, the appellant was a liar, and some parts of the evidence of the other
    four young men were inaccurate. The trial judge gave reasons for his
    credibility findings, all of which are grounded in the evidence. Having made those
    assessments, the trial judge moved to his factual findings. As is inevitably
    the case, those factual findings played a crucial role in the trial judges evaluation
    of the appellants
Charter
claims.

[8]

This court approaches a
    trial judges credibility assessments and findings of fact with deference. It
    is incumbent upon the appellant to demonstrate that the findings are tainted by
    some legal error, flow from a material misapprehension of the evidence, or fall
    outside of the range of reasonableness available on the evidence: see
R.
    v. Mann
, 2004 SCC 52, [2004] 3 S.C.R.
    59, at para. 49.

[9]

In her factum, counsel for the appellant does not challenge the trial judge's credibility assessments. She does take issue with two or three specific factual findings. I will not detail those arguments. On my review of the evidence, the appellant's arguments go no further than to suggest another interpretation of certain features of the evidence. Even if that interpretation was available, it does not demonstrate the unreasonableness of the different interpretation made by the trial judge. I approach the appellant's arguments on the basis that the trial judge's credibility assessments and findings of fact
    stand.


III



[10]

I
    do not propose to review the evidence at length. The trial judges reasons are
    lucid, detailed, and include an accurate and comprehensive review of the
    evidence. For a thorough review and analysis of the evidence, especially as it
    relates to the police officers actions, one should read the trial judges reasons.
    For convenience, the trial judges reasons are reproduced as
'Schedule
    A'
to these reasons. I will summarize the evidence only to the extent
    necessary to address the grounds of appeal.

[11]

Constable
    Teatero was on duty on the evening of May 25, 2012. He was at the Atkinson
    Housing Co-operative, a complex of townhouses located in the west part of
    Toronto. Constable Teatero was speaking with two security guards who were
    responsible for overall security at the housing complex, and general crime
    prevention in the area. Constable Teatero was joined by Constables Reid and
    OToole who were on duty together that night.

[12]

The
    residents of the Atkinson Housing Co-operative were plagued by a very high
    level of violent crime, most of which was associated with gangs, guns, and
    drugs. The officers were aware of this history.

[13]

The
    officers were looking for two people wanted by the police and known to be
    involved in violent crimes in the area of the housing complex. The security
    officers indicated that they had not seen one of the two, but that the other hung
    around an area of the complex behind the townhouse located at 84 Vanauley Walk.
    The security guards described that area as a problem area associated with
    drugs and other criminal activities.

[14]

After
    speaking to the security officers, the police decided to walk through the
    townhouse complex to the area that the security guards had identified. The three
    officers walked along a paved footpath that travelled through the complex. The
    footpath stopped at a walkway that led into the backyard at 84 Vanauley Walk. The
    backyard was surrounded by a waist-high wooden fence. There was an opening in
    the fence where the walkway was. There was no gate.

[15]

The
    officers saw five young men, one of whom was the appellant, sitting in the
    backyard talking. According to the police, the young men were simply talking
    and not doing anything wrong. The officers did not recognize any of the young
    men.

[16]

Constables
    Teatero and Reid walked through the gateway into the backyard. Neither officer
    asked permission to enter the backyard or said anything to the young men before
    entering. Constable Teatero addressed the group cordially, asking, How are you
    guys doing? He asked if any of them lived in the townhouse at 84 Vanauley
    Walk. On the trial judges factual findings, the appellant said he did not live
    in the townhouse and there was no audible response from Mr. Dixon, who lived in
    the townhouse with his mother. Also, on the trial judges factual findings, no
    one objected to the police presence in the backyard.

[17]

Constable
    Reid then spoke directly to Mr. Dixon who was seated on a couch in the
    backyard. Mr. Dixon told Constable Reid that he lived in the townhouse with his
    mother. Mr. Dixon produced identification. On the trial judges finding, Mr.
    Dixon did not suggest to the officer that he should not be in the backyard or
    that he should leave. Constable Teatero spoke with another young man sitting on
    the couch.

[18]

Constable
    OToole entered the backyard shortly after the other two officers. At one
    point, he saw one of the men on the couch put his hands behind his back, and he
    told the man to keep his hands in front of him. Constable OToole approached
    the appellant and a second young man who were standing on the patio of the
    backyard. The patio was closer to the back door of the townhouse than the couch
    on which Mr. Dixon was seated. Constable OToole asked the person with the
    appellant for identification. That person produced his identification.

[19]

As
    Constable OToole was holding the young mans identification, he turned to the
    appellant and asked him for identification. The appellant responded that he did
    not have any on him. The appellant looked nervous to Constable OToole. Constable
    OToole noticed that the appellant had a bag slung over his shoulder sitting on
    his hip. The appellant appeared to be blading his body. Blading is a term
    used by the police to describe a body movement whereby a person attempts to
    position himself so that an officer cannot see an object sitting on the
    persons hip. The police are trained to associate this manoeuver with
    possession of a firearm. Constable Teatero also noticed the appellant
    blading.

[20]

Constable
    OToole became concerned that the appellant might have a weapon. He asked, Whats
    in the bag? The appellant immediately fled. Constable OToole, quickly joined
    by the other two officers, gave chase. The three officers had been in the Dixon
    backyard for less than a minute when the appellant fled.

[21]

Constable
    OToole caught up to the appellant a short distance away and tackled him. An
    all-out fight followed. During the struggle, Constable OToole became aware
    that the appellant had a pistol in his bag and was trying to reach for it. The
    fight intensified. The other two officers arrived at the struggle and together
    they subdued the appellant.

[22]

A
    search at the scene of the arrest and a subsequent search at the police station
    yielded the loaded handgun, 13 grams of cocaine, and cash.


IV



[23]

The
Charter
arguments boil down to three:

·

the police unlawfully entered the Dixon backyard and in doing so
    breached the appellants right under s. 8 of the
Charter
to be free
    from unreasonable search;

·

the police arbitrarily detained the appellant when they walked
    into the Dixon backyard and questioned the appellant and the other four persons
    in the backyard; and

·

together or individually, the breaches of ss. 8 and 9 of the
Charter
warrant the exclusion of
    all of the evidence seized from the appellant.

A: The Section 8 Argument

[24]

The
    appellant argues that the police were unlawfully in the Dixon backyard when
    they spoke with the appellant and that their unlawful entry into, and presence
    in, the backyard constitutes interference with his reasonable expectation of
    privacy. The appellant completes the argument with the contention that because
    the police presence was unlawful, it cannot be said to be a reasonable
    intrusion upon his reasonable expectation of privacy.
[1]


[25]

To
    succeed on this ground, the appellant must demonstrate, both that the police
    unlawfully entered the backyard and that their unlawful entry interfered with his
    reasonable expectation of privacy. The appellant was in the backyard at the
    invitation of his friend, Mr. Dixon, when the police entered. He contends that
    his status as an invited guest present on the property gave him a reasonable
    expectation of privacy in respect of entry onto the property by the police.

(i)

Was the police entry lawful?

[26]

The
    trial judge addressed the lawfulness of the police entry onto the Dixon
    property at some length (paras. 66-80). He concluded that the police were
    entitled to enter the backyard and speak to the persons in the backyard under
    the common law implied licence doctrine: see
Robson v. Hallett
,
    [1967] 2 All E.R. 407 (C.A.), at 412;
R. v. Tricker
(1995), 21 O.R.
    (3d) 575 (C.A.), at 579-81, leave to appeal refused: [1995] S.C.C.A. No. 87;
R.
    v. Evans
, [1996] 1 S.C.R. 8, at paras. 6-14;
R. v. MacDonald
, 2014
    SCC 3, [2014] 1 S.C.R. 37, at paras. 26-27;
R. v. Parr
, 2016 BCCA 99, 334
    C.C.C. (3d) 131, at paras. 1-3;
R. v. Rogers
, 2016 SKCA 105, 341
    C.C.C. (3d) 502, at paras. 27-54, leave to appeal refused: [2016] S.C.C.A. No.
    438.

[27]

The
    trial judge said, at para. 70:

In the circumstances of the present case, the police officers
    clearly had a lawful reason to enter the backyard property and speak to the
    occupier. They were pursuing an investigation of a wanted man who, they had
    been told, frequented that backyard area and had been seen hanging out there. Further,
    the police had been told that the 84 Vanauley Walk address was a problem in
    relation to suspected drug trafficking. In fulfilling their professional
    duties, the police were lawfully entitled to enter this backyard area in an
    effort to ascertain if any of the young men was an occupier of the residential
    premises there, and to pursue their investigations in relation to [the wanted
    man] and potential drug trafficking

[28]

I
    have no quarrel with the trial judges description of the implied licence
    doctrine and the principles underlying that doctrine. I question, however,
    whether the doctrine could have application on the facts before the trial judge.

[29]

The
    implied licence doctrine, like most common law solutions, provides a fact-sensitive
    answer to a practical problem. The common law has always jealously guarded real
    property rights, especially as they relate to state intrusions into persons homes:
    see
R. v. Tessling
, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 14, 22.
    At the same time, the common law, and later statutory law, impose duties on the
    police that could, in certain circumstances, require the police to go onto a
    persons property to speak to that person. The implied licence doctrine is the
    common law solution to the clash between police duties and the property rights
    of the individual. Under that doctrine, property rights or, in constitutional
    terms, the privacy of the owner/occupier, must yield, but only to the extent
    needed to allow the police, in the execution of their duties, to go onto the property
    to make contact with the owner or occupant.

[30]

The
    difficulty I have with the application of the implied licence doctrine in this
    case, is that the problem, which the doctrine addresses, had not arisen when
    the officers entered the backyard. There does not appear to have been any need
    for the police to enter the property to make contact with the occupier. As
    counsel for the appellant argued, the police could very easily have
    communicated with the five young men in the backyard while standing on the other
    side of the short fence. In doing so, the police would, in all likelihood, have
    been able to identify the occupant of the townhouse and requested permission to
    enter the property. Inquiries from the other side of the fence of the young men
    sitting in the backyard was an obvious first step toward identifying the
    occupant of the townhouse. I am inclined to the view that it was a prerequisite
    to any lawful uninvited entry onto the property for the purpose of
    communicating with the occupant.

[31]

I
    need not come to any firm conclusion on the question of whether the police
    unlawfully entered the property. I will assume that they did for the purposes
    of considering the s. 8 claim.

(ii)

Assuming the police were unlawfully in the backyard, did they breach the
    appellants s. 8 rights?

[32]

Section
    8 of the
Charter
protects an individuals reasonable expectation of
    privacy from unreasonable state intrusion:
Tessling
, at para. 18;
R.
    v. Orlandis-Habsburgo
, 2017 ONCA 649, 352 C.C.C. (3d) 525, at para. 37.
    State conduct that infringes on an individuals reasonable expectation of
    privacy will be treated as a search for the purposes of s. 8:
R. v. Buhay
,
    2003 SCC 30, [2003] 1 S.C.R. 631, at para. 18;
R. v. Spencer
, 2014 SCC
    43, [2014] 2 S.C.R. 212, at paras. 16-17.

[33]

In
    considering a reasonable expectation of privacy claim, the court begins by
    identifying the subject matter of the claim. It then asks first, did the
    claimant have a subjective expectation of privacy in the subject matter, and
    second, if so, was that expectation objectively reasonable? The second of these
    two inquiries is almost inevitably the determinative consideration:
Spencer
,
    at para. 18;
Tessling
, at para. 32.

[34]

It
    is unclear to me whether there was any evidence accepted by the trial judge
    that would warrant the conclusion that the appellant had a subjective
    expectation of privacy in respect of the backyard. I will, however, focus on
    the objective component of the inquiry. That exercise begins by identifying the
    subject matter of the claim.

[35]

A
    reasonable expectation of privacy does not exist in the air or in the abstract.
    One has or does not have a reasonable expectation of privacy in respect of a
    specified subject matter in specified circumstances:
Spencer
, at
    paras. 22-33;
R. v.
Marakah
, 2017 SCC 59, 142 W.C.B. (2d) 490, at
    paras. 14-15.

[36]

The
    subject matter of a privacy claim may be the person of the claimant, a place,
    information, or a combination of the three:
Tessling
, at paras. 20-23;
R. v. Ward
, 2012 ONCA 660, 112 O.R. (3d) 321, at para. 60. The factors
    that will be relevant to the determination of whether a reasonable expectation
    of privacy exists and the weight to be assigned to any particular factor will depend
    in large measure on the subject matter of the privacy claim. For example, if
    the privacy claim is informational, the potential capacity of the information
    to reveal core biographical data relating to the claimant will be crucial in
    assessing the privacy claim. However, if the subject matter of the privacy
    claim is a place, control over that place will play a central role in assessing
    the validity of a reasonable expectation of privacy claim. If the privacy claim
    has both a territorial and informational component, then all of the relevant
    factors will be considered: see
Tessling
, at para. 22;
Spencer
,
    at paras. 34-40;
Marakah
, at paras. 38-44;
R. v. Jones
, 2017
    SCC 60, 142 W.C.B. (2d) 343, at paras. 39-45.

[37]

The
    appellant advances an exclusively territorial privacy claim. He maintains that
    the moment the police entered the Dixon backyard they violated his s. 8 right.
    The appellant does not assert a privacy claim that depends on what the
    appellant was doing or what he was saying while in the Dixon backyard. There is
    no informational component to this privacy claim.

[38]

The
    subject matter of the appellants privacy claim, that is the police entry into
    the Dixon backyard, renders cases like
R. v. Wong
, [1990] 3 S.C.R. 36,
    unhelpful in resolving the appellants claim. In
Wong
, the police,
    without any judicial authorization, installed a video camera in a hotel room and
    videotaped all of the activities of anyone who happened to be in the room.

[39]

The
    issue for the Court was not the reasonable expectation of privacy in respect of
    the physical space occupied by the hotel room, but the reasonable expectation
    of privacy in respect of what people in the room were doing and saying to each
    other. The Court had to decide whether a person in a hotel room, as a renter or
    a guest, had a reasonable expectation that the state would not surreptitiously
    record his every move and every word. LaForest J., for the majority, said at p.
    51:

It is safe to presume that a multitude of functions open to
    invited persons are held every week in hotel rooms across the country. These
    meetings will attract persons who share a common interest but who will often be
    strangers to each other. Clearly, persons who attend such meetings cannot
    expect their presence to go unnoticed by those in attendance.
But, by the
    same token, it is no part of the reasonable expectation of those who hold or
    attend such gatherings that as a price of doing so they must tacitly consent to
    allowing agents of the state unfettered discretion to make a permanent
    electronic recording of the proceedings.
[Emphasis added.]

[40]

Wong
would have relevance to this case, had the police purported to surreptitiously
    record or otherwise memorialize what the appellant was doing or saying when he
    was in the Dixon backyard. The appellants status as an invited guest in the
    backyard may be an important consideration in determining whether he had a
    reasonable expectation of privacy as it related to what he said and did while in
    the backyard.

[41]

The
    trial judge (at para. 82) correctly identified
R. v. Edwards
, [1996] 1
    S.C.R. 128, as the pertinent authority.
Edwards
dealt with a
    territorial privacy claim. The trial judge referred to the criteria listed in
Edwards
as helpful in assessing a privacy claim in respect of property. He correctly
    noted that apart from the appellants physical presence in the backyard when
    the police entered, none of the criteria identified in
Edwards
existed
    in this case. The appellant had no possession or control of any kind over the
    backyard. There was no evidence of the appellants historical use of, or
    connection with, the property. The appellant had no means by which to regulate
    access to the property. He was, as the trial judge indicated, a mere transient
    guest in the Dixon backyard (para. 81).

[42]

The
    weakness of the appellants privacy claim in respect of the Dixon backyard is
    best demonstrated by comparing it to the claim
unsuccessfully
advanced
    in
Edwards
.

[43]

In
Edwards
, the apartment, which was the subject of the search, was
    rented by the accuseds girlfriend. They had been dating for three years. The
    accused stayed at the apartment from time to time and had left there
    immediately before his arrest shortly prior to the search. The accused kept
    personal belongings in the apartment and he had a key to the apartment.

[44]

This
    court split on whether the accused had a reasonable expectation of privacy in
    relation to his girlfriends apartment. The majority held that he did not: see
R.
    v. Edwards
(1994), 19 O.R. (3d) 239 (C.A.). In the Supreme Court of
    Canada, Cory J., speaking for the majority, held that the accused had no
    reasonable expectation of privacy. Adopting the language of McKinlay J.A. in
    this court, Cory J., at para. 47, referred to the accused as no more than an
    especially privileged guest. Cory J. observed that the accused had no authority
    to regulate access to the apartment, no ability to exclude others from the
    apartment, and had made no contribution to the maintenance of the apartment. All
    of those observations could be made of the appellants connection to the Dixon
    backyard.

[45]

Edwards
identifies control as a key factor in the assessment of a territorial privacy
    claim. The Supreme Court recently reaffirmed that holding in
Jones
, at
    para. 40:

The control and access factors have also been particularly
    salient in territorial privacy cases.
As suggested above, land owners and
    tenants have a practical ability to exclude visitors from their territory and
    maintain a choice to be left alone by controlling access to their domicile [Emphasis
    added.]

[46]

Nor
    can the result in
Edwards
be explained by the purported consent of the
    girlfriend to the search of her apartment. The police used lies and tricks to
    obtain that consent. Cory J. expressly held that in concluding that the accused
    had no reasonable expectation of privacy in the apartment, he found it
    unnecessary to decide whether the girlfriend had consented to the search:
Edwards
,
    at paras. 6, 51.

[47]

Edwards
has
    been applied many times. For example, in
R. v. Belnavis,
[1997] 3 S.C.R. 341, the court considered whether a
    passenger in a motor vehicle had a reasonable expectation of privacy in respect
    of the inside of the motor vehicle. After acknowledging that the claim had to
    be evaluated on the totality of the circumstances, Cory J., in rejecting the
    privacy claim, said, at para. 22:

In this case, although Lawrence [the passenger] was present at
    the time of the search, there are few other factors which would suggest she had
    an expectation of privacy in the vehicle. First, her connection to the vehicle
    was extremely tenuous. She did not own the vehicle, she was merely a passenger
    in a car driven by a friend of the owner of the vehicle.
There was no
    evidence that she had any control over the vehicle, nor that she used it in the
    past or had any relationship with the owner or driver which would establish
    some special access to or privilege in regard to the vehicle. Lawrence did not
    demonstrate any ability to regulate access to the vehicle
. [Emphasis
    added.]

[48]

Just
    as with the passenger in
Belnavis
, there was no evidence that the
    appellant had any control over the property, had used it in the past, had any
    relationship with the owner or occupant that would establish some special
    access, or had any ability to regulate access to the property.

[49]

Edwards
and
Belnavis
, and the bevy of cases that have applied them, emphasize
    that the reasonable expectation of privacy inquiry is fact-specific and must
    also reflect a normative evaluation of societal expectations and aspirations as
    they relate to personal privacy: see
Orlandis-Habsburgo
, at paras. 41-43. The assessment of whether a person
    has a reasonable expectation of privacy is not limited by, or dependent upon,
    property law concepts even if the subject matter of the claim is real property.
    Those concepts can, however, inform the inquiry into issues like control and
    access that are central to the reasonable expectation of privacy inquiry when
    real property is the subject matter of that inquiry: see
Hunter
    v. Southam
, [1984] 2 S.C.R. 145, at 158;
R. v. Puglies
e (1992),
    71 C.C.C. (3d) 295 (Ont. C.A.), at 302-303;
R. v. Felger
, 2014 BCCA 34, 306 C.C.C. (3d) 143, at para. 47,
    leave to appeal refused: [2014] S.C.C.A. No. 120.

[50]

My review of the controlling authorities, especially
Edwards
,
    leads me to conclude that the appellant has no claim to a reasonable
    expectation of privacy in the Dixon backyard. On the facts of
Edwards
, the accuseds privacy claim in his girlfriends
    apartment was far superior to the appellants claim in respect of the Dixon
    backyard and yet it failed. Similarly, the passenger in
Belnavis
, who could be described as an invited guest in the
    car, had at least as strong a privacy claim as does the appellant. Her claim
    failed.

[51]

Apart from the
    controlling case law, a normative assessment of the appellants privacy claim leads
    to the same conclusion.

[52]

Personal privacy equates
    with a persons right to require that the state leave him or her alone, absent
    reasonable grounds to justify interfering with that persons privacy. The right
    to be left alone, when exercised in relation to real property, must, in my
    view, include some ability, either as a matter of law, or in the circumstances
    as they existed, to control who can access and/or stay on the property. One
    cannot realistically talk about a reasonable expectation of privacy in respect
    of real property without talking about an ability to control, in some way, those
    who can enter upon, or remain on, the property.

[53]

We were referred to no
    authority to suggest that as an invited guest, the appellant had any legal
    power to prevent the police or anyone else from coming onto the property or
    remaining on the property. There may well be circumstances in which an invited
    guest has the
de facto
power to control who can access or stay on a property. In those situations, the
    visitor may well have a reasonable expectation of privacy in the property. There
    is no such evidence in this case.

[54]

The
    only factor offering any support for the appellants privacy claim in the Dixon
    backyard is his physical presence in the backyard. Presence is relevant to a
    reasonable expectation of privacy inquiry. However, its relevance, when the
    claim is purely territorial, lies in its potential, depending on the
    circumstances, to support a finding that the individual claiming the privacy
    interest has some kind of control over who could access or remain on the
    property. Physical presence may be evidence of control. However, on the facts
    of this case, the appellants presence in the backyard offers no support for
    finding that he had any element of control over the property.

[55]

I
    would test the appellants claim to a reasonable expectation of privacy this
    way. Assume that the appellant was the only person in the backyard. Mr. Dixon
    was in the house. The police arrive with a legitimate reason to speak to the
    occupant of the house. The appellant tells the police that he is an invited
    guest at the Dixon home and he orders the police to remain off the property.
    The police ignore the appellants order, enter the property, go to the door and
    knock, intending to speak to the occupant.

[56]

Applying
    the implied licence doctrine, the police were lawfully entitled to go onto the
    property in the hypothetical described above and knock on the door in an effort
    to speak with the occupant. The wishes of an invited guest could not detract
    from the authority of the police to enter the property to speak to the
    occupant.

[57]

If
    I am correct in the hypothetical set out above, the invited guests inability
    to legally prevent the police from accessing the property to speak to the
    occupant is irreconcilable with a claim that the invited guest has an objective
    reasonable expectation of privacy in respect of access to the property.

[58]

I
    agree with the trial judge that the police entry into the Dixon backyard did
    not breach the appellants right under s. 8 of the
Charter
.

B: Section 9 of the
Charter

[59]

The
    appellant submits he was arbitrarily detained from the moment the police
    entered the backyard. He does not suggest that he was physically detained, but
    argues that the entirety of the circumstances warranted a finding of
    psychological detention as described in cases like
R. v. Suberu
, 2009
    SCC 33, [2009] 2 S.C.R. 460, at para. 25, and

R. v. Grant
, 2009
    SCC 32, [2009] 2 S.C.R. 353, at para. 44.

[60]

The
    trial judge rejected this submission. He concluded that the appellant was not
    detained when the officers entered onto the property, but was detained when
    Constable OToole asked him what he had in the bag slung over his shoulder
    (para. 88). At that point, the interaction between the police and the appellant
    changed. The appellant became the target of Constable OTooles focussed
    investigation. The appellant immediately fled the scene.

[61]

There
    can be no quarrel with the trial judges description of the relevant legal
    principles governing detention under s. 9 of the
Charter
(see para.
    85). In applying those principles to the case before him, the trial judge said,
    at paras. 89-90:

In reaching this conclusion I have tried to take a realistic
    appraisal of the entire transaction and, in so doing, have considered: (1) how
    the conduct of the police might reasonably have been perceived by the accused,
    especially given that one of the investigations they were pursuing concerned
    activities and/or individuals potentially in the Dixon backyard; (2) the nature
    and duration of the police interaction with the accused and his friends,
    including how the police addressed the accused and the other young men in the
    Dixon backyard, and telling one of the other young men to keep his hands in
    front of his body; and (3) the young age and visible minority status of the
    accused and his friends, and the comparatively slight physical stature of the
    accused.

The accused and the police officers describe the key events at
    this critical juncture differently, but I am satisfied that, even on the
    testimony of the police officers, which I accept, the accused was detained at
    that point in time, namely, when Cst. OToole asked the accused about the
    contents of his bag. The police were not able to effect a physical detention of
    the accused at that point in time, however, because as soon as the inquiry was
    made by Cst. OToole, the accused fled from the backyard. But, in my opinion,
    it was at that point that, as a matter of law, the accused was detained.

[62]

I
    see no error in the trial judges analysis. Nor can his findings be
    characterized as unreasonable. In assessing the reasonableness of the trial
    judges findings, the appellants own evidence is significant. The appellant
    testified that he believed he was free to leave the backyard after the police
    had entered and began questioning the young men. In other words, he did not
    think he was detained. The trial judge accurately summarized the appellants evidence,
    at para. 87:

More particularly, the accused explained that he went to go
    inside the townhouse through the back door because he did not think he needed
    to remain in the backyard, as no police officer was talking directly to him. According
    to the accused, it was only when Cst. OToole physically prevented him from
    going into the townhouse that things changed and he did not think he could
    leave.
[2]

[63]

The
    test for psychological detention is an objective one: see
Grant
, at
    paras. 31, 44. The court must determine whether a reasonable person, in the
    appellants circumstances, would conclude that he or she was not free to go and
    had to comply with the police direction. Although the test is objective, the
    appellants perception that he was in fact free to leave and was not being detained
    by the police when they entered the backyard must be an important consideration
    in determining how the encounter between the officer and the appellant would be
    reasonably perceived. The appellants perception is particularly significant as
    he is no stranger to street-level encounters with the police.

[64]

The
    appellants perception of the ongoing dynamic between himself and Constable
    OToole could reasonably be taken by the trial judge as a strong indication of
    how that dynamic would be reasonably perceived. More to the point, I cannot
    characterize as unreasonable, the trial judges conclusion as to the timing of
    the detention when that conclusion reflects the appellants own testimony about
    his perception of when his detention began.

[65]

Having
    found that the appellant was detained when Constable OToole asked him what was
    in the bag, the trial judge went on, at paras. 91-93, to determine that the
    appellants detention was lawful. He found that Constable OToole had
    reasonable grounds to suspect that the appellant was armed. That reasonable
    suspicion justified an investigative detention: see
Mann
, at para. 45;
R. v. MacKenzie
, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 35. The
    appellant fled before Constable OToole could physically detain him.

[66]

I
    see no basis upon which to interfere with the trial judges factual findings
    underlying his conclusion that Constable OToole had reasonable grounds to
    suspect that the appellant was armed. This court must make its own assessment
    of whether those facts meet the reasonable suspicion standard:
MacKenzie
,
    at para. 54. I think they do. The appellants movements simultaneously aroused
    the suspicions of two police officers who, based on their training and
    experience, connected the appellants movements to the possession of a weapon.

[67]

As
    indicated in
MacKenzie
, at para. 63:

[I]n assessing whether a case for reasonable suspicion has been
    made out, the analysis of objective reasonableness should be conducted through
    the lens of a reasonable person standing in the shoes of the police officer.

[68]

This
    test described takes into account officer training and experience:
MacKenzie
,
    at paras. 60-65.

[69]

I
    am satisfied that, on the facts as found by the trial judge, there was a basis upon
    which Constable OToole could reasonably suspect that the appellant was armed.
    That suspicion justified an investigative detention.

[70]

In
    concluding that the appellants detention was lawful, the trial judge proceeded
    on the basis that the police were lawfully in the backyard when the appellants
    detention occurred. As outlined above, there is reason to doubt the correctness
    of that conclusion. Assuming the officers were trespassers, does that change
    the lawfulness of the appellants detention? I do not think so.

[71]

First
    of all, the determination of the point in time at which the police detained the
    appellant had no connection to the status of the police officers on the
    property. Whatever their status, on the trial judges findings, a reasonable
    person would not have considered himself detained until Constable OToole
    queried the contents of the bag.

[72]

Turning
    from the timing of the detention to its lawfulness, I do not think that the
    status of the officers as trespassers would affect the lawfulness of the
    appellants detention. Section 9 is intended to protect individuals from
    unlawful state intrusion upon the liberty of the individual. On the trial
    judges finding, there was no intrusion upon the appellants liberty until Constable
    OToole asked him what was in the bag. Even if the police were trespassers on the
    Dixon property, that trespass had no impact on any facet of the appellants
    liberty. His liberty was limited only after Constable OToole had reasonable
    grounds to suspect that the appellant was armed and committing a criminal
    offence.

[73]

One
    might well come to a different conclusion as to the lawfulness and, hence,
    arbitrariness of the detention if the police had unlawfully entered the
    property for the purposes of detaining the appellant and the other young men in
    the backyard. The situation may also have been different if the appellant could
    demonstrate that the improper entry into the backyard by the police somehow
    interfered with his personal rights or individual liberty.

[74]

On
    the trial judges findings, the police did not enter the property intending to
    detain anyone. Nor did their entry in any way infringe upon any of the
    appellants rights.

[75]

In
    my view, in the circumstances of this case, the lawfulness of the police entry into
    the backyard had no impact on either the determination of the point in time at
    which the appellant was detained, or the arbitrariness of that detention. There
    was no breach of the appellants s. 9 right, even if the police were
    trespassing.

C: Section 24(2) of the
Charter

[76]

Assuming the police improperly entered the Dixon backyard
    and that this somehow resulted in a breach of the appellants rights under ss.
    8 or 9 of the
Charter
, I agree with the trial judges s. 24(2)
    analysis. As the trial judge observes at para. 106, any breach was technical,
    inadvertent, and made in good faith. The impact of any breach on the
    appellants
Charter
-protected
    liberty interest was momentary and minimal. The evidence was highly reliable
    and the crimes very serious.

[77]

In the end, s. 24(2)
    requires a weighing and balancing of sometimes competing interests. The trial
    judge engaged in that exercise and I see no reason to come to a different
    conclusion.

Doherty J.A.

I agree David M. Brown J.A.





Lauwers J.A. (Dissenting):

[78]

I have had the benefit of reading the reasons of my colleague,
    Doherty J.A. I respectfully disagree with his analysis and his disposition, for
    the reasons that follow.

I would exclude the evidence that
    was unlawfully obtained, allow the appeal, quash the appellants convictions
    and enter acquittals on all counts.

A.

Overview

[79]

The
    following propositions, which I will develop further, explain my reasoning.
    First, although my colleague is prepared to assume that the police entry into
    the fenced backyard was illegal, he does not allow that assumption to affect
    his subsequent reasoning. This is where I part company with him. The police
    entry was an unlawful trespass and this tainted everything that followed. The
    police did not have the occupants consent or an implied licence to enter the
    backyard. It is worth noting that had Leraldo Dixon, the occupant, expressly
    refused the police permission to enter, they would have had no grounds for a
    search warrant.

[80]

Second,
    the appellant had a reasonable expectation of privacy in the backyard
    comparable to that of the occupant whose guest he was. In my view, the unlawful
    police entry on a pleasant spring evening was the equivalent of entering a home
    through a door that happened to be open without first knocking. The appellant
    has standing to make the argument that the entry breached his s. 8
Charter
right. Any other approach would undermine the purposive application of the
    section.

[81]

Third,
    from the unlawful entry flow the arbitrary detention, the flight, the arrest,
    the search and the finding of the evidence - the gun, the drugs and the money.
    The intimidating and oppressive police entry operated to arbitrarily detain
    those present in the backyard including the appellant.

[82]

Fourth,
    the kind of casually intimidating and oppressive misconduct involved in the
    unlawful police entry into the backyard must be condemned by the court. The
    gun, the drugs and the money should have been excluded from the trial evidence
    under s. 24 of the
Charter
.

[83]

Nothing
    in my reasons is intended to discourage ordinary police practices like the
    proverbial constable on patrol, or the beat cop patrolling the neighbourhood.
    In particular, until the officers entered the backyard without seeking or
    getting permission, I would have found nothing in what they did to be
    questionable. But they crossed a bright and important line when they entered
    the backyard without permission or a warrant.

[84]

I
    will describe the facts in more detail before returning to explain these
    propositions.

B.

Facts

[85]

On
    the evening of May 25, 2012 the 20-year-old appellant was socializing with four
    friends in the backyard of a townhouse in a housing co-operative in Toronto.
    One of his friends, 17-year-old Leraldo Dixon, whose mother rented the
    townhouse, had invited the appellant and the other young men to the backyard.
    The appellant is Asian and his friends were Black.

[86]

The
    backyard was contiguous to a public walkway from which it was separated by a
    low wooden fence. There was an opening in the fence (which once held a gate now
    long gone) that served as an entryway into the backyard. There was conflicting
    evidence, on which nothing turns, about whether or not some cushions were
    propped up in the opening to form a make-shift gate.

[87]

Three
    members of the Toronto Police Service were on duty in the area that evening.
    One of them, Cst. Teatero, broadcasted on the police radio that he was
    conducting an investigation in the area of the housing co-operative. Two other
    officers, Cst. Reid and Cst. OToole, decided to assist Cst. Teatero because he
    was working on his own. When they arrived, they saw Cst. Teatero talking to two
    security guards. He was asking the guards whether they knew the location of an
    individual wanted by police.

[88]

The security guards told the police that the wanted individual did not
    hang out in the housing co-operative, but mentioned another person who was of
    interest to the police. The police said that the security guard informed them
    that this other person hung out in the area behind Mr. Dixons townhouse. There
    was contradictory evidence about whether the security guards told the police
    that the townhouse was problem address and that they suspected drug
    trafficking occurred in the backyard.

[89]

The
    police decided to do a walk-through of the common area of the co-operative to
    the edge of Mr. Dixons backyard. They arrived at the backyard opening and saw
    the five young men in the backyard. At trial, the police acknowledged that the
    men appeared to be doing nothing wrong and there was no indication of criminal
    activity. They had no reason to believe that anyone there was trespassing. The
    men were just talking.

[90]

Without
    asking for permission, two of the officers, Cst. Teatero and Cst. Reid,
    strode into the backyard. Cst. OToole stood outside the entry.

[91]

Once
    inside the backyard, Cst. Teatero immediately started questioning the young men
    in the backyard, asking who they were and if they lived there. Cst. Reid did
    the same and testified at trial that the purpose of asking those questions was
    to investigate whether they were trespassing under the
Trespass to Property
    Act
, R.S.O. 1990, c. T.21. However, there was no trespass complaint to
    which the police were responding. Cst. OToole testified that he believed the
    officers were required to enter onto private property in order to continue the
    investigation as the men were not being cooperative or answering the officers
    questions.

[92]

The
    officers demanded identification from the young men. While he was taking an
    I.D. card from one of the other young men, Cst. OToole testified that he saw
    the appellant blading himself, shielding a shoulder bag that he was carrying
    away from the officers. This is a sign that he might be carrying a weapon.
    Cst. OToole asked him whether he had anything on him, which the appellant
    denied. Cst. OToole then asked what the appellant had in the bag, and the
    appellant immediately bolted, running away from the police. The appellant
    testified that he ran because he did not think he could walk away, that the
    officer was going to take his bag, and that he did not think the officer was
    right in trying to search him.

[93]

The
    officers chased the appellant and tackled him a short distance away. They found
    a loaded handgun inside the shoulder bag and 13 grams of crack cocaine as well
    as some currency on the appellants person.

[94]

On
    the facts, I observe that the police officers did not have a warrant. They did
    not ask for permission to enter the backyard before doing so, nor did they
    intend to proceed to the door and knock in order to speak to the occupant. The
    officers were not in active pursuit of a live investigation or a suspect. They
    were not responding to an emergent situation or to a complaint. The men in the
    backyard were doing nothing to provoke a police entry, such as engaging in
    obviously illegal activity or causing any form of disturbance. None of them
    were suspects. As noted, had the police been refused entry, they could not have
    obtained a warrant.

C.

Analysis

[95]

I
    now turn to the propositions I set out in the overview.

(1)

The Police Officers Were Trespassing

(a)

The Governing Principles

[96]

The
    cases treat police entrances onto private property, of the sort undertaken
    here, under the rubric of a search within the meaning of s. 8 of the
Charter
.
    See
R. v. Evans
, [1996] 1 S.C.R. 8, [1996] S.C.J. No. 1.

[97]

The
    Canadian and English common law have long recognized that the occupier of a
    dwelling gives an implied licence to any member of the public, including police
    officers, on legitimate business to come to the door of the dwelling and knock:
R. v. Tricker
(1995), 21 O.R. (3d) 575 (C.A.), leave to appeal to
    S.C.C. refused (1996), 103 C.C.C. (3d) vi (note);
Robson v. Hallett
,
    [1967] 2 Q.B. 939 (D.C.);
R. v. Clarke
(2005), 196 C.C.C. (3d) 426
    (Ont. C.A.), leave to appeal to S.C.C. refused (2005), 214 O.A.C. 398 (note).
    The implied licence can be revoked by, for example, putting up signs
    prohibiting entry or by locking an entry gate:
Robson
, at pp. 953-54.

[98]

However,
    even in the absence of such an impediment to entry, the implied licence
    doctrine is not without limits. In
Evans
, Sopinka J., speaking for a
    plurality of the Supreme Court of Canada, recognized that an implied licence
    does not mean that all persons are welcome to approach a home regardless of the
    purpose of their visit. When members of the public (including police) exceed
    the terms of the implied licence, they approach the property as intruders:
Evans
,
    at paras. 15-16.

[99]

As
    Sharpe J.A. observed in
R. v. Mulligan
, [2000] O.J. No. 59, at
    para. 27:

As with all police investigative powers, this licence must be
    strictly curtailed to avoid the risk of abuse. The officer must have a
bona
    fide
belief that gives rise to a reasonable suspicion of criminal activity
    being perpetrated against the owner or occupant or the property. The police
    officer must be able to demonstrate an objective basis in fact that gives rise
    to his suspicion. To borrow the language of Doherty J.A. in
R. v. Simpson
(1993), 79 C.C.C. (3d) 482 at 500-501, discussing the common law power to
    detain a suspect for questioning, there must be some "articulable
    cause" above the level of a mere "hunch", "a constellation
    of objectively discernible facts which give the detaining officer reasonable
    cause to suspect that the detainee is criminally implicated in the activity
    under investigation."

[100]

What disturbed
    Sopinka J. in
Evans
was that the police were using the implied licence
    doctrine for an ulterior purpose. In that case, the police knocked on the door
    hoping to get a whiff of marijuana. Because their approach was not
    legitimately intended as an attempt to lawfully communicate with the occupants
    of the home, it was unlawful.

[101]

In the context
    of a police approach to a home for the purpose of gathering evidence against
    the occupant, Sopinka J. reached the following conclusions, at paras. 16 and
    18:

Clearly, occupiers of a dwelling
    cannot be presumed to invite the police (or anyone else) to approach their home
    for the purpose of substantiating a criminal charge against them. Any
    "waiver" of privacy rights that can be implied through the "invitation
    to knock" simply fails to extend that far.
As
    a result, where the agents of the state approach a dwelling with the intention
    of gathering evidence against the occupant, the police have exceeded any
    authority that is implied by the invitation to knock.



[
W]here the police, as here,
    purport to rely on the invitation to knock and approach a dwelling for the
    purpose, inter alia, of securing evidence against the occupant, they have
    exceeded the bounds of any implied invitation and are engaging in a
search
of the occupant's home.
Since the implied
    invitation is for a specific purpose, the invitee's purpose is all-important in
    determining whether his or her activity is authorized by the invitation.
    [Emphasis added.]

See also
R. v. MacDonald
, 2014 SCC 3, [2014]
    1 S.C.R. 37, at paras.
26-27;
R. v. Lotozky
(2006),
    81 O.R. (3d) 335 (C.A.), at paras. 30-31;
Mulligan
.

[102]

Justice Sopinka
    explained the policy reasons for this conclusion, at para. 20:

In my view, there are sound policy reasons for holding that the
    intention of the police in approaching an individual's dwelling is relevant in
    determining whether or not the activity in question is a "search"
    within the meaning of s. 8. If the position of my colleague is accepted and
    intention is
not
a relevant factor, the police would then be
    authorized to rely on the "implied licence to knock" for the purpose
    of randomly checking homes for evidence of criminal activity. The police could
    enter a neighbourhood with a high incidence of crime and conduct surprise
    "spot-checks" of the private homes of unsuspecting citizens,
    surreptitiously relying on the implied licence to approach the door and knock. Clearly,
    this Orwellian vision of police authority is beyond the pale of any
    "implied invitation". As a result, I would hold that in cases such as
    this one, where evidence clearly establishes that the police have specifically
    adverted to the possibility of securing evidence against the accused through
    "knocking on the door", the police have exceeded the authority
    conferred by the implied licence to knock.

[103]

The respondent
    contends, rightly in my view, that the expansive language used in
Evans
should not be read as a general prohibition against police approaching a
    dwelling in order to question its occupants for the purposes of furthering a
    lawful investigation. In support of this proposition, the respondent points to
R.
    v. Bushman
, [1968] 4 C.C.C. 17 (B.C.C.A.), and
Tricker
. Both were
    cases where the police approached a residence to seek to question its
    occupants. Both were cited by Sopinka J. in
Evans
.

[104]

I do not believe
    the cases proffered by the Crown about whether police can enter a property to
    confront a drunk driving suspect have any relevance by analogy. An example is
Lotozky
.

[105]

I will now apply
    Sopinka J.s reasoning in
Evans
to this case.

(b)

The Principles Applied

[106]

The
    trial judge found that the police entry into the backyard was lawfully
    justified by operation of the implied licence doctrine. He summarized his
    conclusions, at para. 70:

In the circumstances of the
    present case, the police officers clearly had a lawful reason to enter the
    backyard property and speak to the occupier. They were pursuing an
    investigation of a wanted man who, they had been told, frequented that backyard
    area and had been seen hanging out there. Further, the police had been
    told that the  address was a problem in relation to suspected drug
    trafficking. In fulfilling their professional duties, the police were
    lawfully entitled to enter this backyard area in an effort to ascertain if any
    of the young men was an occupier of the residential premises there, and to
    pursue their investigations in relation to Mr. Jackson and potential drug
    trafficking. There was no signage in the area that suggested the police
    were prohibited from entering the backyard, and no occupier of the premises
    ever expressly revoked their implied licence to enter the backyard
    area. In short, the police officers were never trespassers in the backyard
    area of this address. They entered lawfully pursuant to the implied
    licence doctrine, and remained there lawfully as they were never asked to leave
    by an occupier of the dwelling.

[107]

I disagree. In
    my view, the police entry was no better than a speculative criminal
    investigation, or a fishing expedition. This is the kind of police conduct
    Sopinka J. deplored in
Evans
, at para. 20. There is not even a
    scintilla of a hunch, as Doherty J.A. noted in
Simpson
, at para. 61.

[108]

I would find
    that the police entry into the backyard of the townhouse exceeded the bounds of
    the implied licence doctrine and was, as a result, unlawful.

[109]

There are
    several reasons for this conclusion. First, I read
Evans
as precluding
    reliance on the implied licence doctrine where the police approach a home
    without a
bona fide
intention to communicate with its occupants about
    an investigation. Police cannot use the implied licence doctrine to embark on a
    fishing expedition. The police officers did not approach the front door, the
    back entry into the backyard, or the back door of the townhouse in order to
    communicate with the occupants. They walked into the backyard of the private
    residence without seeking or obtaining permission of an occupant and
    immediately began questioning the persons they found there. The police conduct
    here was not consistent with the purpose of the implied licence doctrine.

[110]

Second, the
    police did not intend to speak to the propertys occupant, but to conduct a
    random investigation of the backyards occupants, whose identity was unknown to
    them, who were not specifically identified as suspects in any crimes, and who
    were not engaged in criminal conduct. The trial judges conclusion that the
    police lawfully entered the backyard to determine the occupants identities or
    if they were trespassing, at para. 70, is unreasonable. At most, the police had
    information that a wanted man had been seen around the premises in the past and
    that the backyard was a problem in relation to suspected drug trafficking.
    Cst. Reid testified that the purpose was to investigate trespassing, but there
    was no trespassing complaint, and no indication to the officers that any of the
    young men might be trespassing. Even if it was accepted that the officers had a
bona fide

belief, they did not have an objective basis in
    fact that any criminal activity was being perpetrated:
Mulligan
, at
    para. 27. As soon as the police arrived at the backyard, they immediately
    started investigating the identity of the backyards occupants. In acting in
    this manner, the police exceeded their licence to enter private property for
    the purpose of dealing with a suspected crime:
Mulligan
, at para. 26.

[111]

Third, although
    a visitor to a property can reasonably attempt to make contact with an occupant
    by means other than the front door as an incident of the implied licence
    doctrine, that logic does not apply here.
Robson
acknowledges that a
    visitor might approach the back door of a residence through the garden. The
    doctrine authorizes members of the public (including police), in the words of
    Diplock L.J., to proceed from the gate to the front door or the back door, and
    to inquire whether he may be admitted and to conduct his lawful business:
Robson
,
    at p. 954. I have noted that the officers did not intend to approach the door,
    so
Robson
does not apply. Moreover, if an occupant appears to be present
    in the backyard, then the logical underpinnings of the implied licence doctrine
    disappear. If the police can freely communicate with the occupant of a property
    without entering onto it, as was the case here, then the implied licence
    doctrine has no application since the communication can be accomplished without
    the entry. Entry onto the property is simply not necessary for the police to
    conduct their lawful business.

[112]

Fourth, I draw
    no substantial distinction between the backyard area and the front hall of a
    house. Most people would be utterly shocked and appalled by the sudden
    appearance of police officers in their backyard or the front hall of the house
    in the absence of emergent circumstances. It is not unusual, on a pleasant
    spring evening, to find an occupant lounging with guests in the backyard or in
    a house in which the front door has been left ajar to catch the breeze. In
    these circumstances, the fact that private space may be publicly visible does
    not reduce an occupants reasonable expectation of privacy.

[113]

I am of the view
    that the police entry in this case was similar to the unacceptable police
    conduct in
Evans,
and not to the conduct in
Bushman
or
Tricker
.
    The implied licence doctrine had no application here. The police unlawfully
    entered the backyard as trespassers.

[114]

The trial
    judges erroneous finding that the implied licence doctrine permitted the
    police entry underpinned his
Charter
rulings. It is therefore
    necessary to consider several
Charter
issues afresh on appeal. Before
    doing so I must consider the appellants standing to challenge the rulings.

(2)

The Appellant has Standing to Challenge the Misconduct of Police

[115]

The complaint
    about the unlawful police entry into the backyard was framed at trial as a
    breach of s. 8 of the
Charter
. However, based on
R. v. Edwards
,
    [1996] 1 S.C.R. 128, the trial judge concluded, at para. 82, that: the accused
    has no standing to advance a claim under s. 8 of the
Charter
on the
    basis of any alleged trespass to the Dixon backyard.

(a)

The Governing Principles

[116]

In any s. 8
Charter
challenge to police entry, there are two distinct questions that must be
    answered. First, the court must determine that the accused had a reasonable
    expectation of privacy
in the
    totality of the circumstances
. If not, the accused does not have
    standing to raise the challenge. The second question is whether the alleged
    search was an unreasonable intrusion on that privacy. This flows from
Edwards
,
    at para. 45, where Cory J. summarized the law, following
Hunter v. Southam
,
    [1984]
2
    S.C.R. 145
, at pp.
    158-59
, where the Supreme Court of Canada recognized that privacy, as a
    constitutional concept, should be distanced from privacy interests defined by
    ownership or proprietary interests.

[117]

In
Edwards
, Cory J. noted, at para. 45, that s. 8
    protects people and not places. This no longer seems to be a complete
    statement of the law, as the Supreme Court and lower courts have continued to
    wrestle with privacy as
a protean concept,
    which now includes personal privacy, territorial privacy and informational
    privacy:
R. v. Tessling
,

[2004] 3 S.C.R. 432, at paras.
    20, 25
.

[118]

It is well
    recognized that individuals enjoy a strong reasonable expectation of privacy in
    their homes:
MacDonald
, at para. 26;
R. v. Godoy
, [1999] 1
    S.C.R. 311, at para. 19;
R. v. Feeney
, [1997] 2 S.C.R. 13. However,
    this strong expectation of privacy has not generally been held to extend to
    guests who are invited into the private residences of other people. This is a
    consequence of both the application of the factors articulated by Cory J. in
Edwards
,
and the result, in which Mr. Edwards was found not to have had a reasonable
    expectation of privacy even as a privileged guest in his girlfriends
    apartment.

[119]

However, the
    jurisprudence has recognized that individuals do have reasonable expectations
    of privacy even in respect of the property they occupy but do not own. Some
    examples follow. In
R. v. Belnavis
, [1997] 3 S.C.R. 341, the driver of
    a vehicle she did not own was found to have a reasonable expectation of privacy
    in the vehicle, though the passenger of the same vehicle did not. In that case,
    Cory J. noted that there may well be other situations in which a passenger
    could establish a reasonable expectation of privacy in a vehicle. He added
    that in many cases, depending on the circumstances, there would be little
    difference in the expectation of privacy of the different occupants of a
    vehicle, at para. 23. In
R. v. Wong
, [1990] 3 S.C.R. 36, the accused
    was found to have a reasonable expectation of privacy in a hotel room he
    occupied. In
Feeney
, the accused had a reasonable expectation of
    privacy in a trailer he resided in but did not own (at para. 23). Further,
    there is generally an expectation of privacy in an automobile on a public
    roadway, albeit diminished:
R. v. Harflett
, 2016 ONCA 248, 336 C.C.C. (3d)
    102, at para. 47.

[120]

The
protean concept is evolving as circumstances raise
    new perspectives.

(b)

The Principles Applied

[121]

As noted, based
    on
Edwards
, the trial judge found, at para. 82, that the accused had
    no standing to advance a claim under s. 8 of the
Charter
on the basis
    of any alleged trespass to the Dixon backyard. I disagree.

[122]

In my view, the
    Supreme Courts decision in
Edwards
does not justify the denial of
    standing to the appellant to challenge the lawfulness of the police entry onto
    the property where he was present as a guest, for two reasons. First, there is
    a critical distinction to be noted. Mr. Edwards girlfriend was the occupant
    who was entitled to give the police permission to enter and search the
    apartment. The appellant was not present when the police were given permission
    by the occupant, and they found the appellants drug stash. The Supreme Court
    noted that Mr. Edwards was no more than a privileged guest who did not
    have a reasonable expectation of privacy in his girlfriends residence.

[123]

By parity of
    reasoning, had the police in this case sought and obtained the occupants
    permission to enter the backyard, the appellant would have had no complaint
    about the police entry, but that did not happen. The same logic applies to
    render unpersuasive my colleagues hypothetical about the appellants lack of
    control over the premises.

[124]

The second
    reason
Edwards

does not decide the issue is in the application
    of the
Edwards

factors. Justice Cory listed them at para. 45 of
Edwards
, for courts to consider in assessing the totality of the
    circumstances. These include the accuseds presence at the time of the
    search; his degree of possession or control of the property or place
    searched; the ownership of the property or place; the historical use of the
    property or item; the ability to regulate access, including the right to
    admit or exclude others from the place. Justice Cory held that the accused was
    obliged to show both the existence of a subjective expectation of privacy and
    the objective reasonableness of the expectation. It is worth noting that the
    assessment is not limited to these factors.

[125]

The trial judge
    considered these factors, at para. 82:

While the accused certainly was present in the backyard at the
    time of the police entry, and claimed to have a subjective expectation of
    privacy with respect to the Dixon backyard equal to the privacy he expected in
    his own backyard, in my view there was no objective reasonableness in that
    claimed expectation. Moreover, none of the remaining
Edwards
criteria
    are met in the present case, in that: (1) the accused did not have possession
    or control of the backyard property; (2) the accused had no ownership of the
    backyard property; (3) the accused established no historical use of the
    backyard property; and (4) the accused had no ability to regulate access to the
    backyard property by admitting or excluding others.

[126]

In my view, the
    trial judges application of the
Edwards
factors was not reasonable in
    significant measure because it was not purposive.

[127]

The accuseds
    presence at the time looms large in the contextual reasonable expectation of
    privacy analysis required in this case. The remainder of the
Edwards

factors, as my colleague points out, do not arise in these circumstances or
    in circumstances when the accuseds status is as a guest. (I note in passing
    that in
R. v. Marakah
, 2017 SCC 59, at para. 38, the majority noted that
    control is not an absolute indicator of a reasonable expectation of privacy,
    nor is lack of control fatal to a privacy interest, albeit in relation to text
    messages.) I am of the view that the appellants invited presence alone is
    sufficient to give rise to a reasonable expectation of privacy. The result
    might very well have been different in
Edwards
had the accused been
    present. In
Wong
, at para. 22, it was held that members of the public
    who attend a meeting in a hotel room have a reasonable expectation of privacy.
    While there are circumstances in which a guest would not have the same privacy
    rights as his host, these are not found here.

[128]

In this case,
    the appellant was an invited guest at the home of Mr. Dixon. As an invited
    guest, the appellant had a reasonable expectation of privacy in his friends
    home while he was there.

I have no hesitation in saying that the
    appellant has shown both the existence of a subjective expectation of privacy
    and the objective reasonableness of the expectation. The logic of the implicit
    contrary assertion must be rejected as utterly inconsistent with ordinary life
    in our free and democratic society. There are two elements to that implicit
    contrary assertion: the first is that while his host Mr. Dixon would have full
    Charter protection, as his guest, the appellant had none; the second is that
    the appellant left his personal
Charter
protections at home and could
    not resume them until he returned there. It would be hard to imagine that any
    citizen would accede to these propositions.

[129]

Factors other
    than those listed in
Edwards

also establish a reasonable
    expectation of privacy. The appellant was involved in a discussion with Mr.
    Dixon, who had a reasonable expectation of privacy.

[130]

The result, in
    my view, is that the appellant has standing to assert an infringement of his s.
    8
Charter

right. The police entry, as I have found, was
    unlawful and unreasonably infringed that right. As a result, the question of
    whether the evidence obtained by the police should be excluded arises. Before
    addressing that question I turn to the issue of the detention, for two reasons.
    First, although it is possible to distinguish conceptually the entry from the
    detention, in reality they occurred simultaneously. Second, the unacceptability
    of the police conduct is amply shown by the profoundly oppressive circumstances
    of the reality of the detention, to which I now turn.

(3)

The Unlawful Police Entry Resulted in the Appellants Arbitrary
    Detention

[131]

At trial, the
    appellant argued that as soon as the police unlawfully entered the backyard
    area of the townhouse, he was arbitrarily detained in violation of s. 9 of the
Charter
.
    The trial judge rejected his argument, finding that he was not detained until
    Cst. OToole asked him what was in his bag.

(a)

The Governing Principles

[132]

Section
    9 of the
Charter
provides that Everyone has the right not to be
    arbitrarily detained or imprisoned. As Watt J.A. noted in
R. v. Donnelly
,
    2016 ONCA 988, 135 O.R. (3d) 336, at para. 67:

[Section] 9 is a manifestation of the general principle,
    articulated in s. 7, that a persons liberty is not to be curtailed except in
    accordance with the principles of fundamental justice. This is one of the most
    fundamental norms of the rule of law. The state may not detain arbitrarily, but
    only in accordance with the law:
R. v. Grant
, 2009 SCC
    32, [2009] 2 S.C.R. 353, at para. 54;
Charkaoui v. Canada
    (Citizenship and Immigration)
,
2007 SCC 9
, [2007]
    1 S.C.R. 350, at para. 88.

[133]

The purpose of
    s. 9 is to protect individual liberty from unjustified state interference:
Grant
,
    at para. 20. While individuals are free to do as they please absent a valid law
    to the contrary, the police are only entitled to act to the extent that the law
    empowers them to do so:
R. v. Gonzales
, 2017 ONCA 543, 136 O.R. (3d)
    225, at para. 51;
R. v. Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59, at
    para. 15.

[134]

Our law
    recognizes that the police have a common law power to briefly detain
    individuals for the purposes of an investigation in certain prescribed
    circumstances. The Supreme Court explained in
Mann
and
Grant
,
that brief investigative detentions
    will be lawful where they are based on reasonable suspicion:
Grant
,
    at para. 55;
Mann
, at paras. 23-35.

[135]

A detention
    may arise in a number of ways. It can arise as a consequence of a suspension of
    an individuals liberty interest by significant physical means, for example, by
    being handcuffed or placed in the back of a police car. An individual can be
    psychologically detained when he is lawfully required to comply with a police
    direction or demand,
or where a
    reasonable person in his position would conclude he had no choice but to
    comply:
Grant
, at
    paras. 20, 44. In this case the appellants psychological detention is at
    issue.

[136]

A contextual
    analysis is required to determine if an individual is psychologically detained.
    In
Grant
, the Supreme Court referred to the following factors, at
    para. 44:

(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 focussed 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.

[137]

With those
    factors in mind, I turn to the analysis under s. 9 of the
Charter
.

(b)

The Principles Applied

[138]

I conclude that
    the detention of the appellant was not authorized by law. It was arbitrary and
    it breached his s. 9
Charter
right
.
    Properly considered, in my view the
Grant
factors cannot reasonably
    support the trial judges finding, at para. 88, that the appellant was only
    psychologically detained once Cst. OToole inquired about the contents of the
    appellants bag.

[139]

First, I am
    satisfied that the appellant was psychologically detained by the police within
    the meaning of s. 9 when they suddenly and without seeking permission barged
    into the backyard of the townhouse property.

[140]

When the police
    arrived at the backyard, two officers entered through the only gate through the
    fence into the backyard. The third officer remained outside the fence for a
    time before entering. The police were physically between the young men and the
    exit from the backyard.

[141]

Second, the
    atmosphere the police created by their questioning would lead a reasonable
    person in the appellants position to believe that he had no choice but to
    comply with their demands. At one point in the interaction, one of the young
    men put his hands behind his back. Two of the officers told or yelled at him to
    keep his hands where they could see them. The police were asking pointed
    questions. It was not a casual conversation. This was not an atmosphere where
    the young men had any freedom of movement. The appellant says this created an
    atmosphere of detention. I agree. The suggestion that the appellant was free to
    leave simply has no reality to it.

[142]

Third, the
    appellants young age, minority status, and his comparatively small physical
    stature also favour a finding of psychological detention by police upon their
    entry in the backyard. In summary, all three factors of the
Grant

analysis
    show that the appellant was detained at that moment, contrary to the trial
    judges conclusion.

[143]

Fourth, when
    police enter a property as trespassers, they act outside the bounds of their
    lawful authority. In my view, the detention of the appellant occasioned by the
    police while they were acting outside their lawful authority was, on its face,
    an arbitrary detention. It was not authorized by law because the police were
    not entitled to exercise any of their investigative powers, including the
    common law power to detain for investigative purposes, while they were
    trespassers on the property. What I see here, to be blunt, is casually
    intimidating and oppressive police misconduct.

[144]

Accordingly, I
    would find that the appellant was arbitrarily detained within the meaning of s.
    9 of the
Charter
.

(4)

The Evidence Should Have Been Excluded

[145]

Section 24(2) of
    the
Charter
provides that where evidence is obtained in a manner that
infringed or denied an accuseds
Charter
rights or freedoms, 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.

[146]

Here, the
    evidence  the gun, the drugs and the money - was obtained in a manner that
    infringed the appellants
Charter
rights. The evidence would never
    have been discovered if the police had not unlawfully entered the backyard,
    arbitrarily detained the appellant and thereby provoked his flight. The
    evidence was causally and temporally connected to the
Charter
-infringing
    conduct of the police:
R. v. Pino
, 2016 ONCA 389, 130 O.R. (3d) 561,
    at para. 72.

[147]

There is no
    doubt that the evidence obtained in this case  in particular, a handgun and
    drugs  was significant. However, despite its gravity, I would exclude the
    evidence from admission at the appellants trial, for the following reasons.

(a)

The Governing Principles

[148]

The framework
    for the application of s. 24(2) of the
Charter
is set out in

Grant
,
    at para. 71. The court must consider three lines of inquiry: (i) the
    seriousness of the
Charter
-infringing state conduct; (ii) the impact
    on the
Charte
r
-protected interests of the accused; and (iii)
    society's interest in adjudication on the merits.

[149]

My colleague Doherty
    J.A. explained the dimensions of this exercise in
R. v. McGuffie
, 2016
    ONCA 365, 131 O.R. (3d) 643, at paras. 62-63:

The first two inquiries work in tandem in the sense that both
    pull toward exclusion of the evidence. The more serious the state-infringing
    conduct and the greater the impact on the
Charter
-protected interests,
    the stronger the pull for exclusion. The strength of the claim for exclusion
    under s. 24(2) equals the sum of the first two inquiries identified in
Grant
.
    The third inquiry, societys interests in an adjudication on the merits, pulls
    in the opposite direction toward the inclusion of evidence. That pull is
    particularly strong where the evidence is reliable and critical to the Crowns
    case.

In practical terms, the third inquiry becomes important when
    one, but not both, of the first two inquiries pushes strongly toward the
    exclusion of the evidence. If the first and second inquiries make a strong case
    for exclusion, the third inquiry will seldom, if ever, tip the balance in
    favour of admissibility. Similarly, if both of the first two inquiries provide
    weaker support for exclusion of the evidence, the third inquiry will almost
    certainly confirm the admissibility of the evidence. [Citations omitted.]

[150]

There is a
    standing temptation to place security concerns over legality concerns. The
    dilemma is a difficult one. However, as Brown J. observed in
R. v. Paterson
,
    2017 SCC 15, [2017] 1 S.C.R. 202, at para. 55, there is a public interest in
    maintaining a justice system ʹabove reproach.ʹ" Drawing on the
    observations of Doherty J.A. in
McGuffie
, Brown J. added, at para. 56:

It is therefore important not to allow the third
Grant

2009
factor of society's interest in adjudicating a case on its merits
    to trump all other considerations, particularly where (as here) the impugned
    conduct was serious and worked a substantial impact on the appellant's
Charter
right. In this case, I find that the importance of ensuring that such conduct
    is not condoned by the court favours exclusion. As Doherty J.A. also said in
McGuffie
,
    at para. 83, "[t]he court can only adequately disassociate the justice
    system from the police misconduct and reinforce the community's commitment to
    individual rights protected by the
Charter
by excluding the evidence.
     This unpalatable result is the direct product of the manner in which the
    police chose to conduct themselves.

[151]

What the
    jurisprudence under s. 24(2) of the
Charter
recognizes is the
    problematic nature of the
Grant
calculus. The relevant age-old
    philosophical question is this: Do the ends justify the means? The usual answer
    is that bad means undermine good ends. The answer often yielded by the
Grant
calculus is this: Sometimes the achievement of a good end can
    retrospectively justify bad means. This tension is particularly pronounced in
    the case of guns obtained as a result of
Charter
-infringing police
    conduct. For instance, in
Grant
, the Supreme Court of Canada admitted
    a firearm. In
Paterson
, the majority excluded one. As it excluded the
    conversations in
Marakah.

[152]

In
R. v.
    Harrison
, 2009 SCC 34, [2009] 2 S.C.R. 494, a case in which a large
    quantity of drugs was excluded based on a police breach of the accuseds
    s. 8
Charter
right, the Supreme Court, at para. 40, endorsed the
    words of Cronk J.A. in her dissent:

[A]llowing the seriousness of the offence and the reliability
    of the evidence to overwhelm the s. 24(2) analysis "would deprive those
    charged with serious crimes of the protection of the individual freedoms
    afforded to all Canadians under the
Charter
and, in effect, declare
    that in the administration of the criminal law 'the ends justify the
    means.'"

[153]

Justice Cronks
    words bear repeating in this case. If the
Charter
is to have a
    meaningful presence in daily interactions between the police and citizens, the
    police must understand that if they trample the rights of citizen in their
    pursuit of a good end, the court will not sanction their misconduct.

(b)

The Principles Applied

[154]

Although
    he found no breaches of the
Charter
, the trial judge conducted the s.
    24(2)
Charter
analysis using the three
Grant
factors, at
    paras. 106-108: He concluded that all three of the factors favoured
    admission of the impugned evidence, and that on balance he would have admitted
    the evidence if the police had committed
Charter
breaches.

(iii)

The seriousness of the
Charter
-infringing state conduct

[155]

In
    relation to the seriousness of the of the
Charter
-infringing state
    conduct, the trial judge suggested that
any
potential breach of the
    accuseds
Charter
rights in the circumstances of this case was
    trivial, inadvertent and made in good faith. This conclusion is unreasonable
    and cannot stand.

[156]

The
Charter
-infringing
    state conduct in this case was serious. I will not repeat the observations I
    made earlier. The police, on information about possible criminality that was at
    best speculative, unlawfully entered onto private property, someones home, as
    trespassers. This was serious police misconduct, in the context.

(iv)

The impact of the breach on the appellants
Charter
-protected
    interests

[157]

The
    trial judge concluded that any breach of the appellants
Charter
rights did not have a significant impact on his interests. He noted that he did
    not make inculpatory statements or provide the police with incriminating
    evidence that they would not have otherwise discovered.

[158]

To the contrary,
    the breach did provide the police with incriminating evidence that they would
    not have otherwise discovered.

[159]

The impact on
    the appellants
Charter
-protected interests was significant. The right
    to be free from arbitrary detention is a manifestation of one of the most
    fundamental norms of the rule of law. Individual liberty can only be curtailed
    in accordance with the principles of fundamental justice. Here, the appellants
    liberty interest was unlawfully suspended. It cannot be said that an unlawful
    deprivation of liberty is an insignificant impact on the appellants
    constitutionally protected interests.

(v)

Societal interest in adjudication on the merits

[160]

I do not take
    issue with the trial judges conclusion that the evidence in this case was
    reliable. I also agree that the evidence was of paramount importance to the
    Crowns case against the appellant. Society unquestionably has a significant
    interest in the prosecution of firearm and drug offences on their merits.

(vi)

Conclusion

[161]

In the final
    balancing of the three inquiries under
Grant
, I take instruction from
    my colleagues decision in
McGuffie
. I have found that the first two
    inquiries both pull toward the exclusion of the evidence. The seriousness of
    the state-infringing conduct and the impact on the appellants
Charter
-protected
    interests were both significant. In such a case, the third inquiry, the
    societal interest in the adjudication of the case on its merits, will seldom,
    if ever, tip the balance in favour of admissibility:
McGuffie
, at
    para. 63. See also
Paterson
, at paras. 55-56. The court cannot be seen
    to condone the kind of police misconduct at issue here. I conclude, as Brown J.
    did in
Paterson
,

at para. 53, that the police conduct
    represented a serious departure from well-established constitutional norms.

[162]

Perhaps the
    officers were emboldened by the sense they were doing the right thing in trying
    to root out criminality in the community. They seem to have assumed the young
    men in the backyard were up to no good and decided to confront them suddenly. I
    doubt that the police would have brazenly entered a private backyard and
    demanded to know what its occupants were up to in a more affluent and less
    racialized community. The occupant of a residence might tolerate sudden police
    intrusion into private space if there were an emergency or the police were in
    hot pursuit of a suspect or fugitive, however shocking they might find it.
    There is no such pretext in this case.

[163]

As I stated as
    the outset, the kind of casually intimidating and oppressive misconduct
    involved in the unlawful police entry into a private backyard must be condemned
    by the court.

[164]

I would exclude
    the items seized from the appellant from evidence at his trial. Their admission
    would bring the administration of justice into disrepute.

D.

Disposition

[165]

I would allow
    the appeal, exclude the evidence obtained from the appellant in contravention
    of his
Charter
rights, quash the convictions and direct that verdicts
    of acquittal be entered.

Released: DD JAN 25 2018

P. Lauwers J.A.


Schedule A

CITATION:
R. v. Le, 2014 ONSC 2033

COURT FILE NO.:
CR-730/12

DATE:
20140401

ONTARIO

SUPERIOR
    COURT OF JUSTICE



B E T W E E
          N:

)







)





HER MAJESTY
          THE QUEEN

- and -

TOM LE

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

Cara Sweeny
, for the Crown

Laurie A.
          Galway
, for the Accused





)







)

HEARD:
January 6-10, 13-14, 2014



K.L. Campbell J.:

Ruling on
Charter
Application

I

Overview

[
1
]

On the evening of May 25, 2012, 20 year-old Tom Le, the accused,
    was in the company of four friends in the backyard of a townhouse in the
    Atkinson Housing Co-operative.  This is a 14-acre housing complex located
    north-west of Spadina Avenue and Queen Street West in Toronto.  Like the
    other young men in attendance that night, the accused had been invited to this
    residence by his friend, Leraldo Dixon, whose mother rented the premises.

[
2
]

That evening, the accused carried with him a small satchel or
    purse.  It was on a strap that went across his body from his shoulder to
    his hip area.  Inside the satchel was a fully-loaded restricted firearm 
    a .45 calibre semi-automatic Ruger pistol.  Elsewhere on his person the
    accused had 13 grams of crack cocaine.  He hoped to be able to sell the
    drugs later in the evening.

[
3
]

At approximately 10:40 p.m. three members of the Toronto Police
    Service (TPS) were specifically directed to the backyard area of the Dixon
    townhouse by the security guards working in the housing complex. The police
    were looking for a third party who was wanted by the police for some violent
    crimes and who, they were told, frequents the area and may have been hanging
    out in this area of the townhouse complex.  The police had also been told
    that this was a problem address and that there were concerns about drug
    trafficking in the backyard.  This area of the city is plagued by a high
    incidence of violent crimes associated with guns and drugs.

[
4
]

The police followed the paved footpath that took them to the
    backyard area of the Dixon townhouse.  When the police came upon the young
    men in the fenced backyard of the Dixon townhouse unit, they began to
    investigate.  As they walked through the open gate into the backyard, the
    officers asked the young men who they were and whether they lived in the
    residence.

[
5
]

As the police officers were speaking to some of the young men, the
    accused, who had told the police he did not live in the residence, began
    behaving nervously, and was blading his body to the officer speaking to him
    so as to keep the satchel away from the officer.  The accused denied
    having any identification on his person and, when asked about his satchel,
    quickly fled from the area.  Two of the police officers quickly gave chase
    and were, eventually, able to tackle the running accused to the ground on a
    nearby street.  As they wrestled on the ground, with the two officers
    trying to subdue the accused, the police discovered the firearm in the
    satchel.  Subsequently, they discovered his illicit drugs.

[
6
]

Ultimately, the accused was charged with ten criminal
    offences.  More particularly, the accused was charged with: (1) possession
    of a firearm without holding a licence; (2) possession of a firearm knowing he
    was not the holder of a licence; (3) possession of a loaded firearm without
    having an authorization, licence, or registration certificate; (4) careless
    storage of ammunition; (5) carrying a firearm in a careless manner; (6) two
    counts of breaching orders prohibiting him from possessing a firearm; (7)
    possession of cocaine for the purpose of trafficking; (8) possession of
    cocaine; and (9) possession of the proceeds of crime (Canadian currency) not
    exceeding $5,000.  The accused has pled not guilty to all of these alleged
    offences.

[
7
]

The trial of this matter, on the agreement of the parties,
    unfolded essentially as a blended proceeding.  The accused sought the
    exclusion of the evidence of his possession of the firearm and the cocaine
    under
s. 24(2)
of the
Canadian
    Charter of Rights and Freedoms
, claiming that it had been obtained by the police in
    violation of his constitutional rights to be free from unreasonable search and
    seizure and arbitrary detention, contrary to
ss. 8
and
9
of the
Charter
.  The Crown sought the
    admission of this evidence, contending that there was no violation of any of
    the accuseds
Charter
rights by any of the
    investigative conduct of the police, and that, in any event, there was no basis
    to exclude the evidence under
s. 24(2)
of the
Charter
.  The parties essentially
    agreed that, if this evidence was admissible, it established the guilt of the
    accused beyond a reasonable doubt with respect to the firearms and drug-related
    offences.

II

The Factual Background

A.

Introduction

[
8
]

The evidence on the application consisted, essentially, of the
viva
    voce
testimony of two TPS officers (Cst. Reid and Cst. OToole), the
    preliminary inquiry transcript of a third TPS officer (Cst. Teatero) and an
    Intelliguard security guard (Fred Lalley), and the affidavit and
viva voce
evidence of four civilian witnesses (Leraldo Dixon, Ibsa Abdulatif, Sheldon
    Lewis and Ramadan Aden), who were the four young men in the backyard on the
    night in question.  The accused also testified on the
voir dire
. 
    After carefully considering all of this evidence, I make the following findings
    of fact.

B.

The Arrival of the Police at the
    Housing Complex

[
9
]

On the evening of May 25, 2012, Csts. Jonathan Reid and Edward
    OToole of the TPS were working together, on uniformed patrol, in a scout car
    in the area of 14 Division in Toronto.  They were primarily responding to
    radio calls.  After dealing with an unrelated noise complaint, they heard
    a radio communication from Cst. Fred Teatero indicating that he was
    investigating parties in the area of Vanauley Walk.  This is an area of
    townhouses inside the Atkinson Housing Co-operative.  Knowing that Cst.
    Teatero was working alone that night, the two other officers decided to drive
    to his location and provide him with backup assistance.

[
10
]

Csts.
    OToole and Reid arrived in the area at approximately 10:40 p.m.  At that
    point, Cst. Teatero was outside his vehicle talking to two Intelliguard
    security guards working in the area.  These guards were responsible for
    the overall security of the property, preventing vandalism and property damage,
    and general crime prevention in the area.  Fred Lalley was one of these
    two security guards.  Their discussion focused upon the whereabouts of two
    individuals who were associated with violent crimes, namely, Nicholas Dillon-Jack
    (also known as Buck) and Jermaine Jackson.

[
11
]

Cst.
    Teatero had arrived on the scene being primarily interested in Mr. Dillon-Jack,
    and he showed the security guards a picture of Mr. Dillon-Jack.  The
    security guards told the officer that they thought Mr. Dillon-Jack hung out
    at another location.  They had not seen him at the Atkinson Housing
    Co-operative.  However, during their discussion, one of the security
    guards advised Cst. Teatero that Jermaine Jackson had been observed in the area
    and, more particularly, had been hanging out behind the townhouse located at 84
    Vanauley Walk.  Cst. Teatero was told that this was a problem address
    for them, and there were concerns of drug trafficking in the rear yard. 
    Mr. Lalley explained that there were some couches outside in this dingy
    backyard area, and Mr. Johnson frequents that address as he liked to hang out
    there with the P.O Boys, or the Project Original Boys, which was a gang in
    the area.  Cst. Teatero knew of Mr. Jackson, and what he was wanted for
    by the police, but he did not know what he looked like.

[
12
]

In the
    result, the three police officers decided to do a walk through of the complex
    to that area.  While there was no specific documentary evidence tendered
    to prove it, the police officers testified uniformly that the TPS had been
    expressly authorized, in writing, by the management of the Atkinson Housing
    Co-operative, to enforce the provincial
Trespass to
    Property Act
, R.S.O. 1990, chap. T.21
, in the townhouse complex.

C.

The Police Arrival at the Backyard
    of the Townhouse Unit

[
13
]

The
    three police officers proceeded, on foot, south into the neighbourhood
    indicated by Mr. Lalley.  They followed a paved footpath that went behind
    the townhouses that faced onto Vanauley Walk.  When they got to the
    townhouse at 84 Vanauley Walk, the police saw several young black males sitting
    on couches in the backyard.  A young Asian male was standing nearby, close
    to the rear door of the townhouse unit.

[
14
]

The
    backyard was fenced-in by a short, waist-high wooden fence.  There was an
    opening in the fence, providing a walkway from the paved footpath into the
    backyard.  There were patio stones on this walkway leading to the back
    door of the townhouse unit.  While there may once have been a gate on this
    opening, there was clearly no gate there on the evening of May 25, 2012. 
    The photographs of the scene show only a wide opening in the fence, with no
    gate, opening onto the patio-stone walkway to the back door.

[
15
]

The
    defence witnesses testified that, in the absence of an actual gate, couch
    cushions had been placed upright in the opening, supported by gas cans, in
    order to prevent entry into the backyard of the premises.  I find that not
    to be the case.  I reject that evidence.  The police officers
    testified that there was no such make-shift, couch-cushion gate, and I accept
    their evidence in this regard.  The photographs taken of the scene support
    that testimony.  The photographs show only one couch cushion on the grass
    in the backyard near the opening, but this cushion was clearly from one of the
    two couches further into the backyard by the house, and there are no gas cans
    anywhere.  In any event, I find as a fact that there was no gate of any
    kind on the fence opening on the evening in question.

[
16
]

When the
    police arrived at the rear of the premises located at 84 Vanauley Walk, there
    were a total of five young men in the backyard.  There were four young
    black males, namely, Leraldo Dixon, Ibsa Abdulatif, Sheldon Lewis, and Ramadan
    Aden.  There was also one young Asian male, the accused, Tom Le. 
    These five young men appeared to be doing nothing wrong.  They were just
    talking.

D.

Entering the Backyard and Making
    Inquiries

[
17
]

As Cst.
    Teatero entered the backyard through the open gateway in the fence, followed by
    Cst. Reid, Cst. Teatero started talking to the young men in the back
    yard.  He asked them what was going on, who they were, and whether any of
    them lived there in the townhouse unit.  Cst. Reid also asked if any of
    the young men lived there.  Some of the young men simply said No, and
    the others did not respond.  The accused was one of the individuals who
    replied No.  Csts. Teatero and Reid then started speaking more directly
    to two of the individuals seated on the couch closest to them.

[
18
]

Cst.
    OToole did not initially follow the other two officers into the
    backyard.  When he first saw the five men in the backyard, and they saw
    the police officers, he noticed that a couple of the young men turned away and
    looked nervous.  Cst. OToole moved further down the fence line to get a
    better angle to view the young men.  From this vantage point, he could see
    all of the young men.  Shortly thereafter, when the other two officers
    started talking more directly to some of the individuals in the backyard, Cst.
    OToole also walked inside the fenced area of the back yard, and simply stood
    in the grassy area observing.  He entered the backyard area as his two
    police colleagues were outnumbered by the five young men in the backyard.

[
19
]

Cst.
    OToole described how, at one point, he saw one of the men sitting on the couch
    put his hands behind his back, so he told him to put his hands in front of him,
    and this individual immediately complied with this request, putting his hands
    in his lap.

[
20
]

The five
    young men in the backyard provided a different version of this initial exchange
    with the police officers.  Their testimony on this point is similar, but
    not identical.  More particularly, on this issue they testified as
    follows:



Ramadan Aden testified that after the police officers came into
    the backyard, one of them said, How are you guys doing? and asked whether
    anyone lived there in the townhouse.  According to Mr. Aden, Mr. Lewis
    told them that they were not allowed to be there, but the police just ignored
    him.  Mr. Aden testified that Mr. Dixon told the police that he lived
    there.



Leraldo Dixon testified that when the police officers came in the
    backyard, Mr. Lewis said, What are you guys doing?  You guys cant come
    in here.  Mr. Dixon testified that he then told the officers that he
    lived in the townhouse, and that you guys cant come in here.  But the
    officers did not leave.  Rather, they expressed doubt as to whether Mr.
    Dixon, in fact, lived there and asked him to produce some identification.



Sheldon Lewis testified that when the officers came in the
    backyard, he told them that they cant just enter someones backyard like that
    without permission.  According to Mr. Lewis, one of the police officers
    said, We can do anything we want, were the police; were not here to hassle
    you guys, were just here to show you a picture of someone that were looking
    for in the neighbourhood.  At that point, Mr. Lewis made some smart remark
    that he could not recall, and the officers indicated that they wanted to see
    some identification.



Ibsa Abdulatif testified that when the officers came into the
    backyard, he heard Mr. Lewis say something like you guys cant come in here,
    but the police just ignored him.  He did not hear anyone say anything
    else.  One of officers then asked if anyone lived there in the townhouse,
    and Mr. Dixon raised his hand and said that he lived there.  The police
    then asked them to produce some identification.



Finally, the accused testified that after the police officers
    entered the backyard, one of them asked, Who lives here? and Mr. Dixon put up
    his arm and said, I do.  According to the accused, Mr. Lewis then said
    words to the effect of, You guys are not allowed to do that, and one of the
    officers responded, Of course I can.  The accused denied that he said
    No when the police inquired whether anyone lived in the townhouse.

[
21
]

It is
    apparent that all five of the young men recalled some comment being made by Mr.
    Lewis suggesting that the police were not entitled to come into the
    backyard.  Some of them thought the police just ignored this comment, but
    others recalled the police responding to the effect that they were entitled to
    enter the backyard.  Further, all of the young men recalled Mr. Dixon
    telling the police that he lived there in the townhouse.  Two of them
    thought he had raised his arm or hand in so doing.  Significantly, only
    Mr. Dixon testified that he also told the officers, You guys cant come in
    here.  None of the others, including the accused, heard Mr. Dixon
    register any objection to the presence of the police.

[
22
]

Based
    upon this evidence, I make the following findings of fact regarding this
    initial exchange between the police officers and the young men in the
    backyard.

[
23
]

First,
    when Csts. Teatero and Reid entered the backyard through the open gate their
    purpose was twofold  to investigate whether any of the young men were Jermaine
    Jackson (or knew the whereabouts of Nicholas Dillon-Jack), and to investigate
    whether the young men were entitled to be in the backyard or were trespassing
    on the property.  That was, in effect, the evidence of the police
    officers, and I accept it, especially given their initial purpose in attending
    at the housing complex and the information they had been provided by the
    security guards about the problems associated with the backyard area of this
    particular townhouse unit.

[
24
]

Second,
    Cst. Teatero greeted the young men by saying, How are you guys doing? 
    He then asked whether any of them lived there in the townhouse.  It seems
    likely that Mr. Dixon would have tried to identify himself as a resident of the
    unit when this initial inquiry was made by the police.  He had no reason
    not to.  But, the police officers did not, in fact, hear his initial
    positive response to their question.  In the witness box, Mr. Dixon
    presented as a very quiet and soft-spoken young man.  He was often
    difficult to hear, even from close range, and even after being told to speak
    up.  He did not testify that, in identifying himself, he raised his arm or
    hand, and he likely would have given such evidence had he made any such
    accompanying physical gesture.  In my view, in his testimony generally,
    Mr. Dixon did what he could to help the accused.  In any event, I accept
    the evidence of the police officers that, initially, they did not see or hear
    any positive response to their question about whether any of the young men
    lived in the townhouse.  They simply heard the accused say, No.

[
25
]

Third, I
    find that Mr. Lewis may well have made some comment to his friends to the
    effect that the police were not entitled to just come into the backyard, but I
    am convinced that he made no such comment directly to any of the police
    officers.  None of the officers heard any such objection to their presence
    in the backyard, and I accept their evidence in this regard.

[
26
]

Finally,
    I reject the evidence of Mr. Dixon that, in addition to trying to verbally
    identify himself to the police as a tenant of the townhouse, he told them, You
    guys cant come in here.  I find that Mr. Dixon simply manufactured this
    aspect of his evidence in order to try to help his friend, Mr. Le.  I
    conclude that, in fact, Mr. Dixon never raised any objection to the presence of
    the police in his backyard, or suggested to them in any way that they should
    leave.

E.

Trying to Confirm the
    Identification of the Young Men in the Backyard

[
27
]

After
    this initial exchange between Csts. Teatero and Reid and the five young men in
    the backyard, Cst. Teatero began speaking more directly to Mr. Aden, and Cst.
    Reid began speaking more directly to Mr. Dixon, both of whom were seated on one
    of the couches in the backyard.  Cst. Reid also noticed the accused
    standing by the rear door of the townhouse.

[
28
]

Cst.
    Reid testified that Mr. Dixon identified himself verbally and also presented
    the officer with a student card to confirm his identity.  Mr. Dixon also
    advised Cst. Reid that he lived in the townhouse with his mother.  There
    was no other conversation between them.  Cst. Reid testified that Mr.
    Dixon did not tell the police officers they could not come into his backyard,
    nor did he make any complaint about the police officers being in his backyard.

[
29
]

Cst.
    OToole walked from the grassy area of the backyard over to the patio in front
    of the back door of the townhouse, and began talking to the accused and another
    young man.  Cst. OToole asked to see some identification from the unknown
    black male, and it was immediately provided to the officer.  Cst. OToole
    did not examine the identification he had received because, at that point, the
    accused was turning away from [him] and acting very nervous.  The
    accused had a bag on a strap over his shoulder  the strap was on his left
    shoulder, with the bag on his right hip  and the accused was blading
    himself, by turning his body to the right to keep the bag away from the
    officer.  According to Cst. OToole, the accused was acting very nervous,
    fidgeting and moving.

[
30
]

At that
    point, Cst. OToole asked the accused for his identification.  The officer
    still had the other piece of identification from the unknown black male in his
    hand.  The accused said that he did not have any ID on him, and did not
    verbally identify himself to the officer.  Cst. OToole then pointed at
    the bag and asked, Whats in the bag?  At that point the accused ran
    away.  Cst. OToole ran after him.

[
31
]

According
    to Cst. Reid, as he was writing some information into his police memo book, he
    saw another man run through the grassy area of the backyard, followed by Cst.
    OToole, giving chase.  Thinking that it was unsafe for Cst. OToole to be
    on his own, Cst. Reid also began the pursuit.  Cst. Reid estimated that the
    police officers had been in the backyard less than a minute before the accused
    started running away.

[
32
]

Like
    Cst. OToole, Cst. Teatero was also able to make observations of the accuseds
    behaviour prior to his flight from the backyard.  Cst. Teatero testified
    that he heard Cst. OToole asking the accused for some identification, and he
    looked over his shoulder in their direction, to see the accused blading his
    body away from both Cst. OToole and himself.  The accused had been facing
    the officers when they came into the backyard, but at this point, he was
    turning his right side toward the building.  He was not trying to enter
    the townhouse through the back door.  The accused appeared to be trying to
    conceal the bag that was on a large strap slung over his shoulder, as he had
    his elbow pressed up against the bag and was pulling it toward his body. 
    The officer described this movement as a security feel.  Cst. Teatero
    testified that, in light of his police training, he thought the accused was
    exhibiting the characteristics of an armed gunman.  He thought that, in
    these circumstances, there was reason to believe that there was a gun in the
    accuseds bag.  It was at this point that Cst. Teatero heard Cst. OToole
    ask the accused, Whats in the bag?  According to Cst. Teatero, at that
    point, the accused immediately began running, followed by Cst. OToole,
    followed by Cst. Reid.  Cst. Teatero also gave chase.

F.

The Chase  The Struggle 
    Discovering the Firearm

[
33
]

The
    accused ran across the grassy area of the backyard, hurdled the small fence,
    and ran east down the laneway.  Cst. OToole did likewise, as did Cst.
    Reid immediately thereafter.  The narrow laneway was approximately three
    or four feet wide and about 80 to 90 feet long.  As he chased the accused,
    Cst. OToole yelled for him to stop, but the accused did not stop.

[
34
]

Cst.
    OToole testified that, as he was running, the accused was reaching to the bag
    on his right side, using his left hand.  The officer was not sure what the
    accused was reaching for, but Cst. OToole had worked in that neighbourhood for
    a long time and knew that guns and drugs were frequently discovered
    there.  Cst. Teatero testified that, as the accused was running, the bag
    was still under his arm on his right side, and he saw the accused pinching
    the bag with his right elbow, holding it against his body.  Cst. Teatero
    did not, however, see the accused reaching for the bag with his left hand,
    explaining that there were two other police officers in front of him chasing
    the accused.

[
35
]

According
    to Cst. OToole, when the accused got to the end of the laneway, there were a
    couple of steps leading down to the dead-end area of a roadway, and the accused
    stumbled when he got to those steps.  At that point, Cst. OToole was
    pretty close to the accused and started to stumble on the steps too.  As
    he began to stumble, Cst. OToole leapt forward and grabbed the accused around
    the waist with both arms, managing to tackle the accused to the ground. 
    The accused landed face-first onto the ground, and Cst. OToole landed on top
    of him, with his arms still around him.

[
36
]

When
    they fell to the ground together, the accused tried to get up to continue to flee,
    and they became involved in a big struggle on the ground.  Cst. OToole
    was trying to control the accused and keep him on the ground, but he was having
    a difficult time doing so.  It became an all out fight between the two
    men, with Cst. OToole administering forearm strikes to the accuseds upper
    body, and yelling at him to stay down  stay down.  Cst. Teatero heard
    him yelling at the accused to stop resisting as he was under arrest.

[
37
]

According
    to Cst. OToole, during this struggle, the accused started turning onto his
    right side, with his left side in the air trying to get up.  The officer
    then saw the accused moving his left hand onto the bag that was on the right
    side of his body.  Cst. OToole could see that the bag, at this point, was
    approximately half-way open (i.e. a couple of inches), and the accused was
    trying to get into the bag.  Cst. OToole could see that there was
    something in the bag and, when the accused put his hand on the bag, so did the
    officer.  That is when Cst. OToole realized it was a gun that was inside
    the bag.  At that point, both men, the accused and Cst. OToole, had their
    left hands on the bag.  Cst. OToole could see an extended magazine in the
    butt of the gun almost sticking out of the bag.  With his hand on the
    outside of the bag, the officer could feel the handle of the gun.

[
38
]

Cst.
    OToole testified that as soon as he realized there was a gun in the bag he
    yelled out, Gun.  He also used his right hand to reach up to his radio
    button, located in the area of his left chest, to try to summon more units to
    the scene through the police dispatcher.  At the same time, Cst. OToole
    continued to use periodic forearm strikes to the accused with his right hand to
    try to control the accused and keep him on the ground.  The officer saw
    that when he would try to use his radio, the accused would continue his efforts
    to get up, and he had to use this force to keep him on the ground.

[
39
]

At some
    point in this continuing struggle with the accused, Cst. OToole noticed that
    Cst. Reid had arrived on the scene, and that he was trying to grab the accused
    by his right arm and handcuff him on his right wrist.  At that point,
    according to Cst. OToole, the accused still had his left hand on the bag, and
    he started trying to reach inside the bag for the gun.  Cst. OToole, who
    still had his own left hand on the bag at the time, then tried to prevent the
    accused from grabbing the gun.  As Cst. OToole described, at that point,
    it seemed like he and the accused were fighting over the gun.

[
40
]

Cst.
    OToole testified that, after a few more forearm strikes to the accused with
    his right hand, and continued struggling with the accused, the officer was
    finally able to get the accuseds left hand off the bag and behind his back,
    where he was able to handcuff his left wrist together with the right wrist that
    Cst. Reid had managed to handcuff.

[
41
]

Cst.
    OToole testified that, while this interaction with the accused felt like it
    took a long time, he estimated that, from the time he tackled the accused to
    the ground until he and Cst. Reid were successful in handcuffing the accuseds
    hands behind his back, it took perhaps 30 seconds in total.

[
42
]

Cst.
    Reid testified that when he caught up to Cst. OToole and the accused, they
    were struggling on the street as Cst. OToole tried to effect his arrest. 
    The accused was on his stomach.  Cst. Reid testified that he tried to
    secure the right hand of the accused in order to handcuff it behind his back,
    but the accused struggled to resist his efforts.  Cst. Reid started
    telling the accused to stop resisting and to put his hands behind his
    back.  He heard Cst. OToole yelling to a similar effect.  Cst. Reid
    testified that, at one point before the accused was finally subdued and
    handcuffed, he noticed that the accused had a black satchel or purse over his
    shoulder, but that, because of the struggle, it was on the ground beside his
    head area.  Cst. Reid testified that, during the struggle, he saw Cst.
    OToole try to secure that satchel and, after feeling it, Cst. OToole advised
    that there was a firearm in the satchel.  Cst. Reid described this as a
    pretty tense incident, which became even more tense when Cst. OToole
    announced the discovery of a gun in the satchel, given the danger inherent in
    dealing with firearms, the resistance of the accused, and being unsure whether
    he was reaching for the firearm or just trying to escape.

[
43
]

When
    Cst. Teatero arrived on the scene, he witnessed the two other officers
    struggling with the accused on the street.  Cst. OToole was on his left
    side, and Cst. Reid was on his right side.  The accused was actively
    fighting back against the efforts of the two officers.  It was an all-out
    street fight.  Cst. Teatero testified that the bag was still slung over
    the accuseds shoulder, and was in the vicinity of his mid-section.  Cst.
    Teatero testified that, as he observed the struggle, he saw the accused reach
    his hand toward the bag.  Cst. Teatero could not see what Cst. OToole was
    doing as he was facing his back, and so he did not see if Cst. OToole touched
    or grabbed the bag, but at that point he did hear Cst. OToole scream,
    Gun.

[
44
]

While
    the testimony of Csts. OToole, Reid and Teatero is not exactly the same as to
    all of the circumstances of the struggle and the discovery of the weapon, this
    is hardly surprising given the speed with which the events unfolded, the later
    arrivals of Cst. Reid and Cst. Teatero, and their different perspectives from
    their different physical locations in and around the struggle with the
    accused.  In any event, I accept the detailed factual account of Cst.
    OToole, and view the evidence of Cst. Reid and Cst. Teatero as largely
    confirming his evidence.

G.

The Arrest and the Aftermath

[
45
]

Once the
    accused was handcuffed with his hands behind his back and under the control of
    the police, Cst. OToole told him that he was under arrest.  As Cst.
    OToole got up from the street, he noticed that his forearms and knees were
    covered in blood, and he was not able to walk as there was something wrong with
    his right knee.  Cst. Reid maintained physical custody of the
    accused.

[
46
]

At that
    point, with the accused still on the ground, Cst. OToole saw that the bag was
    still strapped around the accuseds body, over his left shoulder, and he could
    see the butt end of the gun in the bag.  Cst. Teatero cut the strap of
    the bag in order to get the gun away from the accused.  While the gun
    remained in the bag, Cst. Teatero testified that he could see it inside the bag
    as, when he seized it from the accused, the zipper was halfway open.

[
47
]

Someone
    had called for backup and many more police officers started quickly arriving on
    the scene.  The accused complained of an injury and appeared to have
    suffered a cut to his lower lip.  An ambulance was summoned to the scene.

[
48
]

Cst.
    Reid testified that he advised the accused of his rights to counsel  several
    times, but it was apparent that the accused did not want to be spoken to, as he
    just kept saying no to each of the officers questions as to whether he
    understood his various rights, in an apparent effort to get the officer to stop
    talking.

[
49
]

Cst.
    Reid conducted a pat down physical search of the accused, during which he
    found two cell phones and a substantial amount of cash in the accuseds
    pockets.

[
50
]

The
    ambulance arrived quickly.  The accused expressed no interest in being
    taken to the hospital, but Cst. OToole was taken, by ambulance, to the St.
    Josephs Health Center for medical treatment.  At the hospital, Cst.
    OToole was treated for the cuts to his forearms and knees.  He had
    suffered a hard-impact bone bruise to his right knee cap, which was swollen.

H.

The Testimony of the Accused

[
51
]

The
    accused testified to a different series of events.  Mr. Le described how
    all three of the police officers entered the Dixon backyard on the night of May
    25, 2012, one after the other, and how, in response to their inquiry, Mr. Dixon
    immediately identified himself as someone who lived in the townhouse
    unit.  Mr. Le denied that he personally said No in response to this
    police inquiry.

[
52
]

The
    accused also testified that Mr. Lewis told the police that they were not
    allowed to just come into the backyard area.  The accused testified that,
    by virtue of the couch cushions propped up by propane gas tanks by the gate, he
    thought the backyard was private and not open to the public.  Moreover,
    the accused testified that he thought that he had the same level of privacy in
    the Dixon backyard that he would have had in his own backyard.  He
    explained his surprise that the police could just enter the backyard,
    testifying that he believed they could not do that.

[
53
]

The
    accused testified that, when the three police officers entered the backyard,
    they started herding him and his friends towards the corner of the backyard
    by the townhouse.  He described how the police officers were all on the
    grassy area of the backyard, while he and his friends were near the wall of the
    building.  The black officer (Cst. Reid) was in the middle, while the
    heavy set shorter white officer (Cst. OToole) was closest to him, also in
    the vicinity of the white chair, which was located close to the
    townhouse.  Mr. Le explained that he ended up near the back door of the
    townhouse as that was where he had been herded by the movements of the police.

[
54
]

The
    accused testified that the officers started asking people for identification,
    and he heard one officer ask his friends on the couch to stand up.  They
    had their flashlights out and were showing around a picture of some
    individual.  According to Mr. Le, as Mr. Lewis was being asked for his
    identification, he (Mr. Le) turned around to the door behind him and tried to
    step inside the house.  Mr. Le explained that he did not think he needed
    to stay around as no police officer was talking directly to him.  Since
    the officers were dealing with some of the others, he thought they did not seem
    too worried about him.  Further, he did not like the way he and his
    friends were being treated by the police.  He denied that he had been
    acting nervously (although admitting that he was, in fact, nervous), or
    blading his body to the police officers.  He also denied acting nervous
    because he had a loaded firearm and crack cocaine in his possession.

[
55
]

Mr. Le
    testified that before he was able to enter the residence, Cst. OToole grabbed
    him by his left shoulder, spun him around and asked him, Where are you
    going?  Why are you trying to go inside?  The accused testified
    that, at that point, he did not think he could leave.  The accused
    testified that, in response, he told the officer that he thought he had left
    his identification inside the house.  Mr. Le admitted that this was not
    true.  He knew he had not left any identification inside the residence.

[
56
]

According
    to the accused, at that point, Cst. OToole physically searched him by lifting
    up the bottom of his hoodie, and touching his pockets and his groin area with
    his hands.  The officer seemed upset that the accused had tried to go into
    the residence, and had become very suspicious.  The accused testified that
    Cst. OToole then asked him where he lived, and as he was in the process of
    providing his address, Cst. OToole did a double take, apparently realizing
    that the accused was carrying a shoulder bag on his right hip.

[
57
]

In his
    testimony, the accused admitted that, in this bag, he was carrying a loaded
    firearm, which he had purchased a couple of months earlier for approximately
    $2,000.  He had brought the firearm with him that night when he left
    home.  He explained, however, that the bag was fully zipped up, and the
    firearm was concealed inside.  The accused also admitted that he had 13
    grams of crack cocaine on his person that night, in the crotch area of his
    pants, for which he had paid around $700, and which he had purchased not for his
    own personal use, but to sell to others, potentially later that night.  He
    also admitted that he had $650 in cash in his pocket from a drug sale he had
    made the day before.  Mr. Le testified that he brought the gun with him
    that night as he knew that the Vanauley Walk area had lots of violence, with
    random people being shot in the neighbourhood, and the police were not doing
    anything about it, so he needed the gun for his own protection.  The gun
    was fully loaded with nine rounds in the magazine and one in the chamber and,
    as the firearm had no safety mechanism, it was ready to fire.  The
    accused needed only to pull the gun out of the bag and pull the trigger.

[
58
]

Mr. Le
    testified that Cst. OToole asked him what was in the bag and, at the same
    time, the officer reached out and grabbed the bag.  Mr. Le explained that,
    at that point, he slapped Cst. OTooles hand away, as he thought that the
    officer had no right to touch his bag.  Mr. Le explained that, when Cst.
    OToole asked him again what was in the bag, and motioned with his hand toward
    the bag, he did not respond, but instead ran away.  He explained that he
    thought the officer was going to take the bag, and he did not think he could
    have just walked away at that point  so he ran.  He did not think that it
    was right that he was being searched by the officer.

[
59
]

The
    accused explained that he jumped the fence and ran along the laneway, toward
    Vanauley Street.  He described how he pumped his arms while he was running
    away, and he denied that he ever reached toward his bag or held onto his bag as
    he was running in this fashion.  He denied ever trying to get rid of the
    gun as he was running away.  Mr. Le explained that he stumbled at the
    steps and was tackled from behind by one of the officers.  He fell forward
    and landed on his chest and then his face, with his arms crossed underneath
    him.  A police officer was on top of him, and he felt rapid strikes
    (punches) being landed around his head, shoulders, and upper back.  He
    could not tell if there was more than one person on top of him.  While he
    was told to show his hands, he simply could not as his arms were pinned under
    his chest, and he told the police: I cant.  Finally one of the officers
    pulled his right arm out straight, and another officer pulled his left arm out
    straight, and then he was handcuffed with his wrists behind his back.  The
    accused estimated that this struggle lasted approximately 30 seconds.

[
60
]

The
    accused denied that, during this struggle with the police, his hands were ever
    at his sides or by his bag.  Indeed, he did not recall the whereabouts of
    his bag at this point in time.

[
61
]

Mr. Le
    testified that, once he was handcuffed, Cst. OToole loudly demanded to know
    what was in the bag, and then he unzipped the bag, looked inside, discovered
    the gun, and then yelled, gun, gun, gun.  Later, someone produced knife
    and cut the bag off his body.  The accused testified that he suffered
    injuries to his knees, elbows, lip, nose and ear.  He explained that he
    told the black officer (Cst. Reid), who picked him up off the ground and
    frisk searched him, that he wanted to go to the hospital, but after he was
    examined by the ambulance personnel, he was told that he was fine and that he
    did not need to go to the hospital.  Mr. Le testified that he kept telling
    Cst. Reid No while the officer tried to advise him of his rights to counsel
    as he still wanted to go to the hospital.

[
62
]

The
    accused admitted that later that night, at the police station, when he was
    being searched by the police, he pulled out his bag of crack cocaine and
    provided it to the police.  Mr. Le also admitted that he had two cell
    phones with him that night that he used in his drug dealing business.

[
63
]

The
    accused was not an impressive or credible witness.  I watched him
    carefully as he gave his testimony and I found him to be cavalier and
    arrogant.  More importantly, I found the substance of his testimony to be
    largely manufactured and designed to support his
Charter
claims.  I did not believe
    much of his evidence.

[
64
]

The
    accused admitted that he had a criminal record that included convictions for
    robbery, being disguised with intent, assault with a weapon, trafficking in
    cocaine, and possession of the proceeds of crime.  This criminal record
    is, of course, only relevant to help me assess his credibility as a
    witness.  Needless to say, this record did not make his evidence more
    believable.

[
65
]

In the
    result, in relation to those factual matters on which the testimony of the
    accused conflicts with the evidence of the three police officers, I accept the
    testimony of the police officers and reject the testimony of the accused.
     For purposes of clarity:



I reject the testimony of the accused that, when the police
    officers first came into the Dixon backyard, and asked if anyone lived in the
    townhouse, he did not say No to the officers.  I find as a fact that Mr.
    Le did indeed respond negatively to this inquiry.  I accept the evidence
    of the police officers in this regard.



I reject the evidence of the accused that there were couch
    cushions, propped up by propane gas tanks, which formed a type of make-shift
    gate for the Dixon backyard area.  I find as a fact that there was no such
    make-shift gate.



I reject the evidence of the accused that the three police
    officers herded him and his friends toward the corner of the backyard by the
    dwelling.



I reject the testimony of the accused that he was not behaving
    nervously in the backyard and was not blading his body to keep his bag
    (containing his firearm) away from the officers, but rather was only turning to
    try to step inside the house.  I also reject his evidence that Cst.
    OToole frisk searched him and grabbed his shoulder bag.  Instead, I
    accept the evidence of Cst. OToole and Cst. Teatero as to the conduct of Mr.
    Le and his interactions with the police before the accused took flight from the
    Dixon backyard.



I reject the evidence of the accused that, during his struggle
    with the police on the ground at the conclusion of the chase, he did not reach
    for his bag.  Rather, I accept the evidence of Cst. OToole that, during
    this struggle, Mr. Le was trying to reach into the bag, and it was at that
    point that Cst. OToole saw the butt end of the gun in the accuseds partially
    open bag.

III

Analysis

A.

The Police Entry into the Backyard
    Area

1.

Introduction

[
66
]

The
    accused argued that the police unlawfully entered the private backyard of the
    Dixon townhouse, located at 84 Vanauley Walk, and were immediately trespassers
    in violation of the provincial
Trespass to
    Property Act
. 
    The accused contended that the police had no lawful right to enter this private
    backyard where he and his friends had gathered and the police were,
    accordingly, acting unlawfully.  The accused argued that, if the police
    wanted to make inquiries of any of the young men they had seen in the backyard
    of the premises, they were legally required to attend first at the front door
    of the townhouse.  I disagree.  In my view, the police were lawfully
    justified in entering the backyard area of this property by the implied licence
    doctrine.

[
67
]

The
    police had been specifically directed, by the housing cooperative security
    guards, to the backyard area of this specific address.  Moreover, the
    police had been told, essentially, that Jermaine Jackson, an individual who was
    wanted by the police, frequents that area, had been seen hanging out in
    that backyard area with the Project Original Boys gang, and that this was a
    problem address in relation to concerns about drug trafficking there. 
    In these circumstances, it is hardly surprising that the police proceeded to
    attend at the backyard area of 84 Vanauley Walk.  Indeed, given their
    professional obligations to preserve the peace, prevent the commission of
    crimes and other offences, assist potential victims of crimes, and generally
    protect the lives and property of the public, they likely were duty-bound to
    attend at this location.  See:
Police
    Services Act
, R.S.O. 1990, chap. P.15
,
s. 42
;
R. v. Dedman
,
1985 CanLII
    41 (SCC)
, [1985]
    2 S.C.R. 2, at pp. 11-12;
R. v. Godoy
,
1999 CanLII
    709 (SCC)
, [1999]
    1 S.C.R. 311, at paras. 11-12, 14-17.

[
68
]

When the
    police arrived at the address to which they had been directed by the security
    guards, they saw five young men talking together in the identified
    backyard.  As they entered the backyard through an open gateway, Cst.
    Teatero cordially greeted them, and inquired as to whether any of them lived in
    the townhouse at that address.  The police officers heard only a negative
    response to this question.  The officers then started speaking to some of
    the young men more individually.  The conduct of the police in this regard
    was lawfully justified.

2.

The Implied Licence to Enter the
    Premises

[
69
]

The law
    is clear that the occupier of a dwelling gives implied licence to any member of
    the public, including police officers, who are on legitimate business, to come
    onto the property, even through an unlocked gate, and attend at a door of the
    dwelling.  This implied licence applies to anyone who has a lawful reason
    to speak to the occupier of the dwelling.  This implied licence ends,
    however, at the door to the dwelling.  The purpose of this implied licence
    is to facilitate convenient communication between members of the public and the
    occupier of the dwelling.  This implied licence may be rebutted by some
    express notice on the property itself, or revoked explicitly by the occupier of
    the dwelling.  Once revoked by the occupier, the person who entered upon
    the property pursuant to this implied licence is obliged to leave with
    reasonable dispatch.  Anyone who does not so leave becomes a
    trespasser.  If a police officer enters property pursuant to this implied
    licence and, before the licence is withdrawn, develops the necessary grounds to
    detain or arrest a suspect, the police remain entitled to detain or arrest that
    person and use proportional and reasonable force to do so.  See:
Robson
    v. Hallett
, [1967] 2 All E.R. 407 (C.A.), at pp. 412, 414;
R. v. Bushman
[1968] 4 C.C.C. 17 (B.C.C.A.), at pp. 21-25;
R. v. Johnson
(1994),
1994 CanLII
    2108 (BC CA)
, 45
    B.C.A.C. 102, at para. 8;
R. v. Tricker
(1995),
1995 CanLII
    1268 (ON CA)
, 21
    O.R. (3d) 575 (C.A.), at pp. 579-581,
leave denied
: [1995] S.C.C.A. No.
    87;
R. v. Evans
,
1996 CanLII
    248 (SCC)
, [1996]
    1 S.C.R. 8, at paras. 13-15, 38-42, 49;
R. v. Mulligan
(2000),
2000 CanLII
    5625 (ON CA)
, 142
    C.C.C. (3d) 14 (Ont.C.A.), at paras. 23-36;
R. v. Maciel
(2003), 33
    M.V.R. (4th) 152, [2003] O.J. No. 126 (C.J.), at paras.15-18;
R. v. LeClaire
,
2005 NSCA 165
    (CanLII)
, 208
    C.C.C. (3d) 559, at paras. 10-16,
leave denied
: [2006] S.C.C.A. No. 63;
R.
    v. Lotozky
(2006),
2006 CanLII
    21041 (ON CA)
, 81
    O.R. (3d) 335, 210 C.C.C. (3d) 509 (C.A.), at paras. 18-42;
R. v. Desrochers
(2007), 47 M.V.R. (5th) 315, [2007] O.J. No. 1482 (S.C.J.),
affirmed
:
2008 ONCA 255
    (CanLII)
, 58
    M.V.R. (5th) 16;
R. v. MacDonald
,
2014 SCC 3
    (CanLII)
, 303
    C.C.C. (3d) 113, at paras. 25-28;
R. v. Zargar
,
2014 ONSC
    1415 (CanLII)
, at
    paras. 29-32.

[
70
]

In the
    circumstances of the present case, the police officers clearly had a lawful
    reason to enter the backyard property and speak to the occupier.  They
    were pursuing an investigation of a wanted man who, they had been told,
    frequented that backyard area and had been seen hanging out there. 
    Further, the police had been told that the 84 Vanauley Walk address was a
    problem in relation to suspected drug trafficking.  In fulfilling their
    professional duties, the police were lawfully entitled to enter this backyard
    area in an effort to ascertain if any of the young men was an occupier of the
    residential premises there, and to pursue their investigations in relation to
    Mr. Jackson and potential drug trafficking.  There was no signage in the
    area that suggested the police were prohibited from entering the backyard, and
    no occupier of the premises ever expressly revoked their implied licence to
    enter the backyard area.  In short, the police officers were never
    trespassers in the backyard area of this address.  They entered lawfully
    pursuant to the implied licence doctrine, and remained there lawfully as they
    were never asked to leave by an occupier of the dwelling.

3.

Lawfully Justified in Entering the
    Backyard

[
71
]

Contrary
    to the argument advanced by defence counsel, the implied licence doctrine did
    not require the police officers to walk around to the front of the townhouse at
    84 Vanauley Walk and knock at the front door in order to try to talk to the
    young men in the backyard.

[
72
]

As a
    matter of law, the implied licence doctrine has never been interpreted or
    applied so restrictively.  Indeed, in the leading decision of the English
    Court of Appeal in
Robson v. Hallett
, which forms the foundational basis
    of this doctrine in Canada, Diplock L.J. expressly stated, at p. 414, that when
    a householder does not lock the gate of the front garden of his or her
    dwelling, it gives an implied licence to any member of the public who has a
    lawful reason for doing so to proceed from the gate to the
front door or
    back door
 to conduct his or her lawful business [emphasis added]. 
    While the front door typically may be where a member of the public (including a
    police officer) will attend to try to communicate with the occupier of a
    dwelling, the implied licence doctrine has been applied to permit the police,
    in appropriate circumstances, to lawfully enter the
backyard

patio
area of a residence to try to facilitate communications with the occupier of
    the dwelling.  See:
R. v. Tonner
,
2012 ONSC
    1044 (CanLII)
,
    [2012] O.J. No. 787, at para. 48-63.

[
73
]

Moreover,
    on a purely practical level, it would be an affront to common sense to suggest
    that the police, in the circumstances of the present case, were obliged by the
    implied licence doctrine to go to the
front
door of 84 Vanauley Walk in
    order to speak to the young men they had seen in the
backyard
.  The
    police had been directed specifically to the
backyard
of this
    address.  The police followed the paved footpath that took them to the
backyard
of this address.  Upon their arrival there, the police saw the young men
    in the
backyard
area of that townhouse.  In my view, the implied
    licence doctrine, construed sensibly, permitted the officers to enter the
backyard
area to pursue their investigations.  By sensibly entering the backyard
    and engaging the young men in conversation, the police officers seized their
    best and most obvious opportunity to ascertain whether any of the young men
    occupied the townhouse, and to pursue their investigations.  It would have
    been poor and ineffective policing for the officers to have walked around to
    the front door of the premises, in hopes that someone might answer their knocks
    on that door and perhaps permit them to speak with the young men that they had
    just seen in the backyard.

4.

Other Backyards  Mistake of Law

[
74
]

None of
    this is changed by the evidence led at trial, through the five defence
    witnesses, as to their subjective expectations of territorial privacy in the
    backyards of their own respective homes in the Atkinson Housing
    Cooperative.

[
75
]

In summary,
    these witnesses testified as follows: (1) Ramadan Aden testified that security
    guards never came into his backyard, visiting strangers would always come to
    the front door, and, accordingly, he thought that if anyone came into his
    backyard they would be trespassing and he would be inclined to call the police;
    (2) Sheldon Lewis testified that police officers or security guards never
    entered his backyard, and he believed that strangers could not come into his
    backyard; (3) Ibsa Abdulatif testified that when he lived in the housing
    complex, people were not allowed to come into his fenced backyard; (4) Leraldo
    Dixon testified that while people sometimes gathered in his backyard, he never
    complained about trespassers because strangers did not come into his backyard;
    and (5) the accused testified that, when he lived in the housing complex, his
    family had a corner property like the Dixon property, and it too had a backyard
    with a low fence, which they increased in height, and barely anyone ever went
    to the backyard, and strangers never went to the back door of the
    premises.

[
76
]

The
    manner in which
other
backyards in the Atkinson housing complex
    historically may have been entered (or not) by visitors, strangers, security
    guards or police officers, is simply not relevant in determining whether the
    three police officers in the present case were lawfully justified in entering
    the Dixon backyard on the night of May 25, 2012.  Individuals may use the
    backyards of their respective dwellings differently depending upon their own
    personal interests and matters of geographic convenience.  The police
    simply may never have had occasion, for a wide variety of potential reasons, to
    need to speak to any of the occupants of these other dwellings in their backyards. 
    Perhaps police officers were never directed to any of these other backyards for
    investigative purposes.  Perhaps these other backyards do not have an open
    gateway from a paved footpath, providing easy and convenient access.

[
77
]

Further,
    the fact that the five young males who were in the Dixon backyard that night,
    none of whom had any legal training, were mistaken about the existence and
    operation of the implied licence doctrine, which lawfully permitted the police
    officers to enter the backyard of the Dixon residence, is neither surprising
    nor especially helpful in assessing the lawfulness of the police conduct.

5.

The Occupier Never Revoked the
    Implied Licence

[
78
]

I have
    already concluded that, as a matter of fact,
none
of the young men in
    the backyard told the police to leave or suggested to the police that they were
    not allowed to be in the backyard of the townhouse property.  However,
    even if
Mr. Lewis
had spoken directly to the officers and unequivocally
    told them that they were not allowed to be there, or clearly said, You guys
    cant just come in to someones backyard without permission, as all of the
    young men essentially testified, this would not change the lawfulness of the
    police conduct.  This is so because the legally implied licence to enter
    upon property to facilitate communications with the occupier of the residence
    is an implied licence emanating from the lawful
occupier
of the
    dwelling, and can only be revoked or withdrawn by the lawful
occupier
of
    the dwelling.

[
79
]

Accordingly,
    unless and until the
occupier
of the dwelling expressly revokes the
    implied licence to enter the property, those persons lawfully entering the
    property pursuant to the implied licence doctrine (including police officers)
    may confidently ignore any opinions, comments and requests that may be
    expressed by guests and bystanders.  Others who may be present in the
    vicinity, but who have no legal interest in the property, have no right to
    control the lawful entry and continued presence of visitors to those
    premises.  That right belongs to the lawful occupier of the
    residence.

[
80
]

Accordingly,
    the only person in the backyard of 84 Vanauley Walk who could have revoked the
    implied licence of the police officers to come into the backyard area was
Mr.
    Dixon
, one of the lawful occupiers of the townhouse at that address. 
    As I have already concluded, Mr. Dixon simply did
not
, as a matter of
    fact, revoke the implied licence of the police officers to enter the backyard
    area of his townhouse unit to speak to the young men.

6.

No Violation of the Accuseds
    Section 8 Rights Under the
Charter


[
81
]

I note
    in passing that, even if, contrary to the conclusion I have reached, the police
    officers in the present case were trespassers in the backyard property of the
    Dixon townhouse residence, it would be very difficult for the accused, a mere
    transient guest in the Dixon backyard, to persuasively complain of any violation
    of
his
constitutional rights under
s. 8
of the
Charter
by virtue of this
    trespassing.

[
82
]

Undertaking
    even a cursory analysis of the criteria outlined in
R. v. Edwards
,
1996 CanLII
    255 (SCC)
, [1996]
    1 S.C.R. 128, at para. 45, it would appear that the accused has no standing to
    advance a claim under
s. 8
of the
Charter
on the basis of any alleged
    trespass to the Dixon backyard.  While the accused certainly was present
    in the backyard at the time of the police entry, and claimed to have a
    subjective expectation of privacy with respect to the Dixon backyard equal to
    the privacy he expected in his own backyard, in my view there was no objective
    reasonableness in that claimed expectation.  Moreover, none of the
    remaining
Edwards
criteria are met in the present case, in that: (1) the
    accused did not have possession or control of the backyard property; (2) the
    accused had no ownership of the backyard property; (3) the accused established
    no historical use of the backyard property; and (4) the accused had no ability
    to regulate access to the backyard property by admitting or excluding
    others.  See:
R. v. Pugliese
(1992),
1992 CanLII
    2781 (ON CA)
, 71
    C.C.C. (3d) 295 (Ont.C.A.), at pp. 301-302.

[
83
]

While I
    need not finally determine this issue given that I have concluded that the
    police officers were never trespassers in the Dixon backyard, I am inclined to
    the view that, even if the police were trespassers, as the accused contends,
    that allegation could
not
properly form the basis of any attack on the
    admissibility of the contraband in the present case, as there is no evidentiary
    foundation in support of any claim by the accused that
his
constitutional rights under
s. 8
of the
Charter
were breached by any potential
    trespassing on the part of the police.

B.

The Police Detention of the
    Accused

1.

Introduction

[
84
]

The
    accused argued that he was arbitrarily detained in violation of
s. 9
of the
Charter
as soon as the police unlawfully
    entered the backyard area of 84 Vanauley Walk.  The accused contended, in
    effect, that it was almost immediately apparent to him and his friends that
    they were not free to leave and were all subject to detention by the
    police.  I disagree.  In my view, the accused was not subject to any
    detention until just seconds before he fled from the backyard.

2.

Defining Detention 
Section 9
of the
Charter of Rights

[
85
]

Not
    every interaction between a police officer and a member of the public, for
    investigative purposes, amounts to a detention.  Indeed, not every police
    stop of a member of the public constitutes a detention.  As the Supreme
    Court of Canada has stated, a person is detained when he or she is subject to a
    significant physical or psychological restraint by the state.  A
    psychological restraint occurs when a person is legally required to comply with
    a demand or direction that interferes with his or her liberty, or when a
    reasonable person in the subjects position would conclude that he or she had
    been deprived of the freedom or liberty to choose whether or not to co-operate
    with the police.  When an encounter between a police officer and an
    individual effectively crystallizes into a detention will depend on the
    circumstances of each case, but is an objective determination and will be for
    the trial judge to determine, applying the proper legal principles.  The
    subjective intentions of the police are not determinative, and even a focused
    suspicion on the part of the police, by itself, will not turn an encounter into
    a detention.  It will be for the trial Judge to undertake a realistic
    appraisal of the entire transaction, including consideration of the following
    three factors: (1) the circumstances giving rise to the encounter as would be
    reasonably perceived by the subject individual, including whether the police
    were providing general assistance, maintaining general order, making general
    inquiries regarding an occurrence, or singling out the individual for focused
    investigation; (2) 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; and (3) the
    characteristics or circumstances of the citizen if relevant, including his or
    her age, physical stature, minority status, and level of sophistication. 
    See:
R. v. Suberu
,
2009 SCC 33
    (CanLII)
, [2009]
    2 S.C.R. 460, at paras. 3-5, 7, 21-25;
R. v. Grant
,
2009 SCC 32
    (CanLII)
, [2009]
    2 S.C.R. 353, at paras. 29-32, 41-44.

3.

The Timing of the Detention of the
    Accused

[
86
]

As I
    have indicated, in the factual circumstances of the present case, the accused
    was detained just seconds before he fled from the backyard.

[
87
]

While
    the arrival of the police into the backyard area of 84 Vanauley Walk
    temporarily interrupted the conversations of the five young men, none of the
    police physically restrained the accused or made any demand or direction to him
    that interfered with his liberty.  The accused was not on his way
    anywhere, so the accused was not even stopped by the police or momentarily
    delayed on any journey. The accused was not subjected to any physical or
    psychological restraint by the police.  No police officer told him to do anything. 
    He was asked only for some identification.  A reasonable person in the
    position of the accused, at that point, would not have concluded that he had
    been deprived of the freedom to choose whether or not to co-operate with the
    police.  Indeed, the accused himself testified that he thought that he was
    free to leave the backyard area.  More particularly, the accused explained
    that he went to go inside the townhouse through the back door because he did
    not think he needed to remain in the backyard, as no police officer was talking
    directly to him.  According to the accused, it was only when Cst. OToole
    physically prevented him from going into the townhouse that things changed
    and he did not think he could leave.

[
88
]

In my
    view, the accused was only detained by the police when Cst. OToole asked him
    about the contents of his bag.  Cst. OToole may only have been inquiring
    about the bag as a way of asking whether the accused had any identification
    documents in his bag, but a reasonable person in the position of the accused,
    in those circumstances, might well interpret that inquiry as a tactical demand
    or direction in relation to the bag, which meant that the accused was no longer
    free to leave and had lost the freedom to choose whether or not to continue to
    cooperate with the police.

[
89
]

In
    reaching this conclusion I have tried to take a realistic appraisal of the
    entire transaction and, in so doing, have considered: (1) how the conduct of
    the police might reasonably have been perceived by the accused, especially
    given that one of the investigations they were pursuing concerned activities
    and/or individuals potentially in the Dixon backyard; (2) the nature and
    duration of the police interaction with the accused and his friends, including
    how the police addressed the accused and the other young men in the Dixon
    backyard, and telling one of the other young men to keep his hands in front of
    his body; and (3) the young age and visible minority status of the accused and
    his friends, and the comparatively slight physical stature of the accused.

[
90
]

The
    accused and the police officers describe the key events at this critical
    juncture differently, but I am satisfied that, even on the testimony of the
    police officers, which I accept, the accused was detained at that point in
    time, namely, when Cst. OToole asked the accused about the contents of his
    bag.  The police were not able to effect a physical detention of the
    accused at that point in time, however, because as soon as the inquiry was made
    by Cst. OToole, the accused fled from the backyard.  But, in my opinion,
    it was at that point that, as a matter of law, the accused was detained. 
    See:
R. v. Grant
, at paras. 45, 47-52;
R. v. Nesbeth
,
2008 ONCA 579
    (CanLII)
, 238
    C.C.C. (3d) 567, at para. 18,
leave denied
: [2009] S.C.C.A. No. 10.

4.

Detention Based Upon Reasonable
    Grounds

[
91
]

This
    detention of the accused was not, however, an arbitrary one.  Rather, in
    my view, the detention of the accused was based upon a reasonable suspicion
    that the accused was armed with a gun.  Recall that Cst. OToole testified
    that, as he received some identification from one of the other young men in the
    backyard, he saw the accused turning away from [him] and acting very nervous,
    and blading himself in order to keep the bag on his right hip away from the
    officer.  It was at that point that Cst. OToole asked the accused for his
    identification.  Cst. Teatero also saw the accused blading his body away
    from Cst. OToole and himself, trying to conceal the bag, using his elbow to
    press the bag against his body.  Cst. Teatero thought these were the
    characteristics of an armed gunman, and he thought there was reason to
    believe the accused had a gun in his bag.  In these circumstances, the
    police officers were lawfully entitled to place the accused under investigative
    detention.

[
92
]

Investigative
    detention is a police power that is justified, in the totality of the
    circumstances, on the basis of articulable cause or reasonable grounds to
    detain and under the traditional two-part test articulated in
R. v.
    Waterfield
, [1963] 3 All E.R. 659.  This test requires: (1) that the
    police be acting in the course of their duty when they interfered with the
    liberty or property of the citizen; and (2) that the conduct of the police did
    not involve the unjustifiable use of powers in association with that duty in
    the circumstances of the case.  See:
R. v. Mann
,
2004 SCC 52
    (CanLII)
, [2004]
    3 S.C.R. 59, at paras. 23-35.

[
93
]

In the
    circumstances of the present case, I have no doubt that Cst. OToole was acting
    in the course of his police duties when he interfered with the liberty of the
    accused by detaining him, and that his conduct did not involve the
    unjustifiable use of powers in association with that duty.  Accordingly,
    the detention of the accused was not in violation of
s. 9
of the
Charter
.  Further, as the accused
    immediately fled from the police, in effect refusing to submit to any detention
    or possible arrest, the police simply were unable to comply with their
    informational obligations under
s. 10
of the
Charter
.  I conclude, therefore,
    that at the time the accused fled from the backyard, the lawful actions of the
    police officers had been in full compliance with the
Charter
.  The rights of the accused
    had not, in any way, been violated or breached.



5.

Officer Safety Justified a Pat
    Down Search of the Accused

[
94
]

In my
    view, in all of the circumstances of this case, the police officers were not
    only legally justified in detaining the accused, they would have been
    justified, for reasons of officer safety, in immediately performing a brief
    pat-down search of the accused and his bag.  They were prevented from
    immediately conducting such a search by the flight of the accused, but they
    would have been justified in conducting such a search.  In the
    circumstances of this case such a search was reasonably necessary to the
    investigative detention of the accused in order to address the clear risk that
    the accused was armed with a weapon.  Again, the evidence of Cst. OToole
    and Cst. Teatero about the nervous activities of the accused and his
    movements in blading his body to keep his bag concealed from the officers,
    led Cst. Teatero to believe that the accused was exhibiting the characteristics
    of an armed gunman, and caused him to have reason to believe there was a gun
    in the accuseds bag.  In these circumstances, the police officers were
    lawfully entitled, if not obliged by common sense and the compelling interests
    of public and personal safety, to briefly perform a pat down or frisk search
    of the accused and his bag to determine if he was indeed armed, and to remove
    any imminent threat caused by the presence of a weapon.  Again, the only
    reason no such search was conducted was because the accused immediately fled
    from the area.

[
95
]

In these
    circumstances, the police were lawfully entitled to use reasonable and
    proportional force to prevent the accuseds escape from their investigative
    detention, and to conduct the necessary weapons search in order to adequately
    protect themselves and the general public in the vicinity.  See:
R v.
    Mann
, at paras. 36-45;
R. v. Clayton and Farmer
,
2007 SCC 32
    (CanLII)
, [2007]
    2 S.C.R. 725, at paras. 40-49;
R. v. Dene
,
2010 ONCA 796
    (CanLII)
, at
    paras. 4-5;
R. v. Amofa
,
2011 ONCA 368
    (CanLII)
, (2011),
    85 C.R. (6th) 265, at paras. 8-10, 17-26;
R. v. Plummer
,
2011 ONCA 350
    (CanLII)
, (2011),
    272 C.C.C. (3d) 172, at paras. 44, 47-61;
R. v. Byfield
,
2012 ONSC
    2781 (CanLII)
,
    262 C.R.R. (2d) 251, at paras. 78-81, 110-114;
R. v. Peterkin
,
2013 ONSC 165
    (CanLII)
, 295
    C.C.C. (3d) 87, at paras. 91-95.  Indeed, having a reasonable belief that
    the accused was armed with a gun and, thus, possessing the necessary grounds to
    conduct an investigative detention of the accused and coincidental (in this
    case) physical pat-down safety search for weapons, it would have been
    irresponsible for the police to have allowed the accused to simply flee from
    the scene.  The danger to public safety that would have been caused by
    permitting the accused to run away is self-evident.  Police officers
    cannot responsibly permit detained suspects, who are reasonably believed to be
    armed gunman, to run through public streets and pathways in the City of
    Toronto.

[
96
]

The
    flight by the accused was, of course, another factor that the police were
    entitled to consider, amongst the entire constellation of factors, in forming
    the reasonable belief that the accused was carrying a gun in his bag. 
    During the chase, Cst. OToole saw the accused reaching toward his bag with his
    left hand.  Cst. Teatero, on the other hand, saw the accused pinching
    the bag against his body with his right elbow as he was fleeing.  These
    observations provided further evidence in support of the objectively reasonable
    concerns over public safety generally, and police officer safety more
    particularly.  See:
R. v. Cooper
,
2005 NSCA 47
    (CanLII)
, 195
    C.C.C. (3d) 162, at para. 47;
R. v. Nesbeth
, at paras. 17-20;
R. v.
    Jackson
,
2011 ONSC
    5516 (CanLII)
, at
    paras. 62-65
R. v. Atkins
,
2013 ONCA 586
    (CanLII)
, 310
    O.A.C. 397, paras. 14-15.

[
97
]

Further,
    the police secured their safety and the public's safety in a reasonable
    manner.  Making further verbal inquiries of the accused was hardly an
    option.  When Cst. OToole orally inquired into the contents of the
    accuseds bag, the accused quickly fled from the scene.  The police were
    obliged to give chase and use reasonable force to effect the detention of the
    accused and conduct the necessary safety search for weapons.  They
    did.

[
98
]

The
    Supreme Court of Canada recently addressed the constitutional propriety of
    police safety searches in
R. v. MacDonald
, holding that, after the
    accused in that case refused to respond to police inquiries about the nature of
    the partially obscured black and shiny object in his hand, the police were
    justified in pushing open the accuseds apartment door in order to see whether
    the object was, as suspected, a weapon.  Importantly, expressly applying
R.
    v. Mann
, at para. 40, the court in
R. v. MacDonald
, at paras. 31,
    39-41, re-affirmed the common law police power to conduct a safety search
    when an officer believes on reasonable grounds that his or her safety, or the
    safety of others, is at risk.  Such unplanned, reactionary, warrantless
    searches may properly be conducted, as the court observed in
R. v. MacDonald
,
    at paras. 32, 36-38, 41, where they are reasonably necessary to eliminate
    imminent threats to the safety of the public or the police in response to
    dangerous situations.

[
99
]

There is
    some question whether the decision in
R. v. MacDonald
changes the legal
    threshold for lawful police safety searches from the traditional reasonable
    suspicion standard to a higher standard akin to the search warrant requirement
    of reasonable and probable grounds.  I do not read the
R. v.
    MacDonald
decision as having such an effect.  It is important to
    recall that, from its judicial inception in
Terry v. Ohio
, 392 U.S. 1,
    88 S.Ct. 1868 (1968), the courts in the United States and Canada have long applied,
    in somewhat different language, the standard of reasonable suspicion to
    measure the constitutional permissibility of such stop and frisk
    searches.  The significantly higher standard of reasonable and probable
    grounds has never been the required threshold, for the sound functional reason
    that it would render such searches legally redundant and practically
    useless.  If a police officer possessed reasonable and probable grounds to
    believe a suspect was armed and dangerous, the suspect would invariably be
    arrested, not merely detained, and would be physically searched as incident to
    that arrest.  There would be little point in the existence of the police
    safety search power, which has been clearly recognized in the appellate court
    jurisprudence, if it provided no search powers beyond those already recognized
    as being incident to an arrest.  Moreover, if police officers are to
    lawfully conduct investigations in relation to detained (but not arrested)
    suspects, it only stands to reason that they must be given the lawful means of
    taking the necessary steps to protect themselves and others during the course
    of such investigations.  Otherwise, the police would be needlessly placed
    at serious risk in the performance of their important public duties.  See:
R. v. Chehil
,
2013 SCC 49
    (CanLII)
, at
    para. 3, 20-24, 27;
R. v. MacKenzie
,
2013 SCC 50 (CanLII)
, at para. 74;
R. v. Clayton
    and Farmer
, at paras. 20, 28-30, 43-49, 81-84, 98, 103-104, 118, 123-126;
R.
    v. Simpson
(1993),
1993 CanLII
    3379 (ON CA)
, 12
    O.R. (3d) 182; 79 C.C.C. (3d) 482 (C.A.), at p. 202;
Arizona v. Johnson
,
    129 S.Ct. 781 (2009), at p. 784;
R. v. Crocker
,
2009 BCCA 388
    (CanLII)
, 275
    B.C.A.C. 190, at paras. 62-72,
leave denied
: [2010] 1 S.C.R. viii; W.R.
    LaFave,
Search and Seizure  A Treatise on the Fourth Amendment
(2005,
    4th ed.) at § 9.6(a); J.A. Fontana and D. Keeshan,
The Law of Search and
    Seizure in Canada
(2010, 8th ed.) at pp. 709-712.

[
100
]

In
R. v. Mann
and its
    progeny the courts have confirmed the existence of the police power to detain
    individuals for investigative purposes and, where the police have reasonable
    grounds to suspect the detainee is armed and dangerous, to conduct a brief
    frisk or pat-down search to ensure their own safety and the safety of the
    public as they conduct such investigations.  In my view,
R. v.
    MacDonald
is but an application of that well-established warrantless search
    power in a particular factual context, namely, where the search involves police
    entry of the confines of a private residence, where there is an increased
    expectation of privacy.  See:
R. v. Zargar
,
2014 ONSC 1415
    (CanLII)
, at
    paras. 29-32. Indeed, in
R. v. MacDonald
, the Supreme Court
    expressly purports to apply
R. v. Mann
in this factual context  not
    overrule it (or the many subsequent judgments that have clarified and applied
    it).  The confusion in relation to this legal threshold has arisen, it
    seems to me, from the use of the phrase reasonable grounds to describe the
    threshold of reasonable suspicion or articulable cause, as this same
    terminology is also used to describe the higher threshold of reasonable and
    probable grounds.  See:
R. v. Mann
, at paras. 33-35, 40-45,
    63-64.  Accordingly, it is important to recall that, in this particular
    context, the term reasonable grounds is used to describe a threshold of
    reasonable suspicion, not a threshold of reasonable probability.

[
101
]

In any event, in the circumstances
    of the present case, the facts justify the warrantless police frisk search of
    the accused and his bag based on either legal threshold  reasonable suspicion
    or reasonable and probable grounds.  See:
R. v. MacDonald
, at
    paras. 37-50, 66-91.

C.

The Arrest and Search of the Accused

[
102
]

Of course, after he was tackled by
    Cst. OToole and began wrestling on the ground with Cst. OToole and Cst. Reid,
    the accused began reaching for his partially open bag, at which point Cst.
    OToole also grabbed the bag and realized that it, in fact, contained a gun,
    and was able to see the extended magazine in the butt of the gun almost
    sticking out of the bag.

[
103
]

After the eventual arrest of the
    accused, the police were able to retrieve the fully-loaded restricted firearm,
    a .45 calibre semi-automatic Ruger pistol, from the accuseds bag.  As I
    have already indicated, the police officers were entitled to employ reasonable
    and proportional force to prevent the accused from escaping from their
    investigative detention, and to seize the firearm that, during the struggle,
    Cst. OToole discovered was in the accuseds bag.

[
104
]

The seizure of this firearm was
    justified as reasonable under
s. 8
of the
Charter
as both: (1) a search and seizure
    incident to the earlier investigative detention of the accused; and (2) a
    search and seizure incident to the later arrest of the accused when the gun was
    discovered.

D.

The Admissibility of the Evidence


1.

Introduction

[
105
]

In light of my conclusion that the
    conduct of the police in the present case did not breach any of the
    constitutional rights of the accused, it is not technically necessary to
    consider the admissibility of the evidence obtained by the police under
s. 24(2)
of the
Charter
.  Nevertheless, for the sake
    of completeness, and having heard the submissions of counsel on the issue, I
    will consider, at least briefly, the admissibility of the impugned evidence
    under the three prongs of the governing analysis under
s. 24(2)
of the
Charter
, as if there had been a violation
    of the accuseds
Charter
rights.  See:
R. v. Grant
,
    at para. 71;
R. v. Côté
,
2011 SCC 46
    (CanLII)
, [2011]
    3 S.C.R. 215, at paras. 45-48.

2.

The Seriousness of the State
    Conduct

[
106
]

As to the first prong of the test,
    namely, the seriousness of the state conduct, in my view any potential breach
    of the
Charter
rights of the accused was
    technical, inadvertent, and made in good faith.  In such circumstances,
    there is no need for the court to dissociate itself from the fruits of the
    unlawful conduct by the police as the admission of the evidence would not send
    the message to the public that the courts condone deviations from the rule of
    law.  Accordingly, as any violations of the
Charter
rights of the accused were not
    particularly serious, this first prong of the governing
s. 24(2)
analysis supports the admission
    of the evidence.  See:
R. v. Grant
, at paras. 74-75.

3.

The Impact of the
Charter
Violations

[
107
]

As to the impact of the
Charter
violations, the second prong of
    the applicable test, in the present case, any potential violations of the
Charter
by the police did not have an
    especially significant impact upon the
Charter
-protected interests of the
    accused.  The accused did not make any inculpatory statements or provide
    the police with any incriminating evidence that they would not have discovered
    otherwise.  Accordingly, the second prong of the
s. 24(2)
analysis also favours the
    admission of the evidence.  See:
R. v. Grant
, at paras.
    76-78.

4.

The Truth-Finding Function of the
    Trial

[
108
]

As to the third avenue of inquiry,
    the court must inquire whether the truth-seeking function of the trial is
    better served by admission of the evidence, or by its exclusion.  The
    reliability of the evidence is, of course, an important factor in this step of
    the analysis.  The importance of the evidence to the Crowns case is also
    a factor to be considered under this aspect of the inquiry.  The exclusion
    of highly reliable evidence may impact more negatively on the repute of the
    administration of justice when the remedy effectively terminates the
    prosecution.  See:
R. v. Grant
, at paras. 79-84.

[
109
]

In the present case there is no
    question that the loaded firearm and illegal drugs are inherently reliable and
    objective pieces of evidence that are essential to the determination of the
    merits of this case.  If this evidence were excluded, the Crowns case
    would necessarily fail.  On the other hand, if this evidence is admitted,
    the Crown would be able to establish that the accused was, indeed, in possession
    of this contraband.  Societys interest in the adjudication of criminal
    trials on their merits would be seriously undermined if this kind of highly
    reliable and essential evidence was excluded.  Accordingly, this third
    aspect of the governing s. 24(2) analysis clearly favours the admission of the
    evidence.  See:
R. v. Grant
, at para. 139;
R. v. Blake
,
2010 ONCA 1
    (CanLII)
, 251
    C.C.C. (3d) 4, at para. 31;
R. v. Jones
,
2011 ONSC
    4158 (CanLII)
, at
    para. 67;
R. v. Duhamel
,
2012 ONSC
    6448 (CanLII)
, at
    para. 85.

5.

Conclusion

[
110
]

There is no overarching rule that
    governs how these three factors should be weighed and balanced.  But, in
    the circumstances of the present case, all three of these factors support, to
    varying degrees, the admission of the impugned evidence.  The balancing of
    these three key considerations, in light of all of the circumstances of this
    case, leads me to the conclusion that the evidence should be admitted. 
    See:
R. v. Grant
, at para. 86;
R. v. Cole
,
2012 SCC 53
    (CanLII)
, at
    para. 80-98;
R. v. Aucoin
,
2012 SCC 66
    (CanLII)
, at
    para. 45-52.

E.

Other Unrelated Alleged Police
    Misconduct


[
111
]

The accused led evidence, through
    each of the five witnesses called by the defence, as to previous unrelated
    incidents of alleged misconduct by other police officers in the general
    vicinity of the Atkinson Housing Co-operative against each of these five witnesses. 
    This evidence was said to be relevant to the defence allegation that the
    accused and his friends were victims of racial profiling, to show the general
    operational disregard of constitutional rights by police in the area, and to
    support the defence argument that the evidence from the accused in the present
    case should be excluded under
s. 24(2)
of the
Charter
.

[
112
]

Generally speaking, the accuseds four
    friends testified about how they were regularly and frequently stopped by the
    police, for no reason, at all hours of the day or night, whenever they were
    walking through the housing complex, and harassed for their identification,
    asked about whether they had anything they should not have, and physically
    frisk-searched.  Sometimes the police would lift up their shirts as part
    of this search.  Sometimes this happened more than once a day. 
    Sometimes the stop would result in a radio call by the police to check up on
    the person stopped.  None of these witnesses were ever given any reason
    for these stops.  Sometimes the police would write down information on
    papers.  These witnesses testified, generally, that they did not walk away
    from these intimidating interactions with the police as they assumed the police
    would just detain them longer, or use force against them.  These witnesses
    testified that they were never charged with any offences as a result of these
    interactions, and they assumed these interactions took place just because they
    were young black males walking around in a high-crime area.

[
113
]

In May of 2012, the accused was no
    longer living in the Atkinson Housing Co-operative.  However, he testified
    that, years earlier, when he did live in that housing complex, he too was
    occasionally stopped by the police and questioned.  Indeed, the accused
    testified that every time he saw the police in that complex, they stopped
    him.  On these occasions, he would be asked where he lived, and sometimes
    he would be frisk searched.  According to the accused, he did not think
    that he could just walk away from the police as he had heard about people being
    beaten up by the police.  Mr. Le testified that, indeed, on one occasion
    he had been beaten up, along with two other young men, during a police
    raid.  The accused also testified that, more recently, when he returned
    to the Atkinson Housing Co-operative to visit a friend, he would be similarly
    stopped by the police and questioned.  On these occasions, the accused did
    not recall being searched, but he recalled that he was asked for his
    identification and the police took notes of their interactions.

[
114
]

I permitted defence counsel to
    lead this body of evidence, over the objection of the Crown, for the reasons
    advanced by defence counsel at the time the admissibility of this evidence was
    questioned.  In the final analysis, however, I found this body of evidence
    unhelpful in resolving the important issues in this case.

[
115
]

First, none of these defence
    witnesses, including the accused, suggested that the three police officers
    involved in the present case (i.e. Csts. OToole, Reid and Teatero) were in any
    way involved in any of these alleged earlier incidents.  Accordingly, even
    assuming that all of these alleged earlier incidents involved unconstitutional
    misconduct on the part of the officers involved, none of that alleged
    misconduct can be properly attributed to the three police officers who were
    involved in the circumstances of the present case.

[
116
]

Second, most of this evidence
    struck me as manufactured.  While the testimony of these defence witnesses
    was strikingly similar in content, as if they had practiced their evidence in
    this regard together, it was steeped in the generic description of non-specific
    historical events that allegedly took place with frequency and regularity over
    a period of years.  No specific dates were ever identified.  No
    specific police officers were ever mentioned.  Factual details that might identify
    a particular incident and distinguish it from another were entirely
    absent.  In short, I found this body of evidence quite unpersuasive.

[
117
]

Third, in the present case, at the
    end of the day, there is simply no evidentiary basis in support of any potential
    argument that these three police officers were engaged, consciously or
    unconsciously, in any exercise of racial profiling.  The three police
    officers who were involved in the investigative activities in the present case
    were not drawn into the Dixon backyard to communicate with the young men
    present in that location because there were four black males and one Asian male
    in that backyard.  The evidence is clear that the three police officers
    were directed to the Dixon backyard for perfectly justified and appropriate
    investigative purposes.  The racial composition of the young men in the
    Dixon backyard was no more relevant to the investigative aims of the three
    police officers than the racial composition of the three-man investigative team
    of police officers.

IV

Conclusion

[
118
]

In summary, on the
    evening of May 25, 2012, the three TPS officers were directed by security
    guards working in the Atkinson Housing Co-operative to the Dixon
    backyard.  The officers attended at that location for valid and proper
    investigative reasons.  When they arrived at that specific address, the
    officers found five young males talking in the backyard area.  The
    officers were lawfully entitled, pursuant to the implied licence doctrine, to
    enter this backyard through the open gateway in order to speak to any potential
    occupier of the townhouse.  The only occupier of the premises in the
    backyard, Mr. Dixon, never asked the police officers to leave.

[
119
]

While the police were talking to
    some of the young men, including Mr. Dixon, the accused began acting nervously
    and started blading his body in order to conceal from the police the bag on
    his hip area  a bag that contained a fully-loaded semi-automatic
    firearm.  At that point, the police had reasonable grounds to believe that
    the accused was armed and dangerous.

[
120
]

Shortly thereafter, the accused
    was effectively detained by the police when he was asked about the contents of
    that bag.  This was not an arbitrary detention, however, as the police had
    reasonable grounds to believe he was armed.  Yet, before the accused could
    be physically detained, subjected to a brief frisk search for weapons, and
    advised of his constitutional rights, he ran away.

[
121
]

The police gave chase, eventually
    tackled him to the ground and struggled to gain physical control over
    him.  During this frantic struggle, the accused reached for his partially
    opened bag, and a police officer observed the butt end of the handgun and felt
    the handle of the gun in the bag.  When the accused was eventually subdued
    and arrested, the search incident to that arrest revealed the loaded firearm in
    the accuseds bag and, later, revealed his secretive possession of 13 grams of
    crack cocaine.  These searches were reasonable and conducted in accordance
    with
s. 8
of the
Charter
.

[
122
]

In my opinion, throughout their
    interactions with the accused the police officers acted lawfully and in full
    compliance with the constitutional requirements of
ss. 8
,
9
, and
10
of the
Charter
.  The accused was not
    arbitrarily detained, nor was he subjected to any unreasonable search or
    seizure, nor was he deprived of the right to know the reasons for his detention
    and arrest or his rights to counsel.

[
123
]

Alternatively, and in any event,
    in all of the circumstances of the present case, even if the police had
    violated one or more of the accuseds rights under the
Charter
, in my view the evidence that was
    ultimately obtained by the police would be admissible under
s. 24(2)
of the
Charter
.

___________________________

Kenneth L. Campbell J.

Released:
April 1, 2014

CITATION:
R. v. Le, 2014 ONSC 2033

COURT FILE NO.:
CR-730/12

DATE:
20140401





[1]
At trial and in her factum in this court, counsel also alleged that the
    questioning of the appellant in the backyard and the search of his person when
    he was arrested violated his s. 8 rights. The trial judge considered and
    rejected these arguments. I agree with the trial judge and do not propose to
    address those arguments.



[2]

The trial judge rejected large parts of the appellants
    evidence. He found that Constable OToole did not touch the appellant before
    the appellant fled from the backyard.


