





CITATION:
R. v.
Amofa
, 2011 ONCA 368



DATE: 20110510



DOCKET: C50159



COURT OF APPEAL FOR ONTARIO



MacPherson, Blair and Epstein JJ.A.



BETWEEN:



Her Majesty the Queen



Respondent



and



Randy Amofa



Appellant



Phil Downes, for the appellant



Michael Bernstein, for the respondent



Heard: April 27, 2011



On appeal from the conviction entered by Justice J.P. Kerr of
          the Ontario Court of Justice on February 8, 2007.



R.A. Blair J.A.:



[1]

Mr. Amofa appeals his conviction for possession of a
    loaded, unauthorized and restricted firearm, contrary to s. 95(1) of the
Criminal Code
.

[2]

He submits that his
Charter
rights were violated in the course of an investigative detention and subsequent
    arrest in the Warden
subway
station in Scarborough,
    and that the trial judge erred in failing to exclude the evidence of the
    firearm pursuant to s. 24(2) of the
Charter
as a result.  In essence, he argues that
    the police conducted an arrest incidental to a search and did so in order to
    justify the search, whereas they are only entitled to conduct a search
    incidental to arrest, and then only in appropriate circumstances.

[3]

I do not see it that way.

Facts

[4]

On November 27, 2006, P.C. Damien Kachur and his
    supervisor, Sgt. Janice Blakeley, were on plain clothes duty at the Warden TTC
    station in Scarborough, accompanied by two other uniformed officers.  Their purpose was to observe and investigate
    people loitering in the subway station as part of a broader police initiative
    called the Robbery Reduction Program  to show police presence (and) hopefully
    reduce the risk to the public of robberies ... and other such crimes during
    the holiday season.  The Program was in
    response to a number of recent swarming incidents in subway stations,
    involving groups of youths surrounding and threatening and/or assaulting
    victims to force the victims to give up their possessions.  The Warden station was identified by the
    police as a high risk area for crime as there had been robberies and shootings
    there in the past.

[5]

The police were present at the request of TTC officials
    and were interested in investigating youths who appeared to be loitering in the
    station in violation of the
Trespass to
    Property Act
, R.S.O. 1990 c. T.21, which forbids loitering on TTC property.

[6]

On the day in question, officers Kuchar and Blakeley observed
    the appellant and another young man positioned at the top of the stairs leading
    down to the #9 Bellamy bus bay at the station.  They were blocking the flow of passengers attempting to walk from the
    mezzanine to the bus platform.  At the
    same time, they appeared to be making no effort to board a bus, although two
    buses came and went during the period of observation. The officers formed the
    opinion that the two men were loitering.

[7]

After about 20 minutes the two young men left the
    stairs and entered a small to go bakery on the mezzanine level.  P.C. Kachur testified that for the next 10 to
    12 minute period he watched them  one at a time, taking turns  leave the
    bakery, look around outside of it and then return.  He thought that the two men were looking for
    particular people and was concerned that this conduct might be leading towards
    something serious such as a robbery or a mugging or something of that nature.

[8]

Following these observations the two police officers
    approached the appellant and the other man in the bakery, identified themselves
    as police officers, and told the men they were being investigated under the
Trespass to Property Act
for loitering
    on TTC property.  The two men cooperated
    by identifying themselves and producing valid drivers licences.  P.C. Kachur told the appellant he was being
    investigated for an arrestable offence; he was not at that time under arrest,
    but the officer would like to search him.  P.C. Kachurs intention was to conduct a pat down search for officer
    safety reasons.

[9]

The appellant responded by saying, No, Ill search
    myself.  He pulled some harmless objects
    out of his pockets, then returned his hands to his pockets and refused to put his
    hands out where they could be seen. He said he did not want to be searched
    because he had not done anything.  As he
    was speaking, the appellant did not face P.C. Kachur directly but bladed his
    body in a way that placed it in a profile that obscured the right side of his
    body where ultimately the loaded handgun was found.  In police jargon, 
blading

    is a synonym for hiding or obscuring something.

[10]

At that point, P.C. Kachur advised the appellant he was
    under arrest for trespassing.  The
    appellant resisted and attempted to escape, but was prevented from doing
    so.  A violent struggle ensued
    involving the appellant and both officers Kachur and Blakeley.  Two uniformed police officers who were also
    on duty in the station as part of the surveillance program were called in for
    backup assistance.  The appellant was
    ultimately subdued.

[11]

He was then searched and a loaded .45 calibre
    semi-automatic handgun  a restricted weapon  was found in the waistband of
    his pants.  The gun had five live bullets
    in it.

Analysis

Detention  s.
    9

[12]

The trial judge found that, although the two men were
    undoubtedly detained while being questioned, the detention was not arbitrary,
    contrary to s. 9 of the
Charter
,
    because the police had a reasonable belief that the men were loitering and they
    were entitled to question them.  On the
    facts as found by the trial judge and outlined above, I agree.

Search  s. 8

[13]

In his customarily adept fashion, Mr. Downes set the
    table for his principal argument by advancing a more general attack on the
    propriety of the police conduct in the context of the Robbery Reduction
    Program.  He submitted the exercise of
    police powers at issue in this case was illegal because it formed part of an
    overall strategy that amounted to monitoring sites such as the Warden station
    for suspicious-looking people and invoking the power to investigate and arrest
    under provincial trespass legislation as a pretext to search them.  In this respect, he says (moving to his
    principal argument)
,
the search here was not truly
    incidental to the appellants arrest  or, for that matter, to the
    investigative detention.  Rather, the
    arrest was incidental to the search.  Accordingly, since searches that derive their legal authority from the
    fact of an arrest must be truly incidental to the arrest in question, the
    search of the appellant was illegal: see
R.
    v. Caslake
, [1998] S.C.R. 51, at para. 17.

[14]

I reject these submissions.

[15]

First, there was nothing arbitrary or improper in the
    police surveillance of the subway station or in the arrest.  The Robbery Reduction Program was well within
    the scope of the duty of the police to protect the public.  I see nothing inherently objectionable in the
    police monitoring the subway station for suspicious-looking people  given the
    history of criminal incidents there, at any rate  and invoking the power to
    investigate and arrest under provincial trespass legislation were the factual
    circumstances existed to underpin such action, as they did here.  The power to investigate and arrest under
    provincial trespass legislation is not being abused, or used as a pretext,
    where the police have the necessary grounds in the circumstances to resort to
    them.

[16]

Secondly, as outlined below, the officers here had more
    than ample grounds to investigate, detain and arrest the appellant for
    loitering under the Act.

[17]

Mr. Downes argues, however, that the police did not
    have the right to search the appellant at the time of their initial contact
    with the appellant and the other man in the bakery.  The appellant was expressly told that he was
    not being arrested, although he was being investigated for an arrestable
    offence.  Since he was not under arrest,
    he remained in investigative detention.  There was nothing in the factual circumstances existing at that moment
    to justify a search incidental to investigative intention and P.C. Kuchar
    therefore had no right to tell the appellant that he was going to be searched.  This was the initiation of the search, Mr.
    Downes contends, and forms the pivotal time at which its legality must be
    measured.  Because the search was not
    justified at that time, all that followed was tainted by that illegality and
    the ultimate search conducted after the appellants arrest  and that discovered
    the loaded firearm  is illegal as well.

[18]

Again, I disagree.  I do not accept either the position that sufficient grounds did not
    exist at the outset to justify a search incidental to an investigative
    detention.  Nor do I accept the
    appellants point-in-time analysis freezing the picture frame at the moment
    where P.C. Kuchar indicates that he is going to search the appellant.  It follows that I would not give effect to
    the appellants argument that the search process was fatally tainted, and
    therefore violated the appellants s. 8
rights,
from
    the point in time the officer told him he was going to search him.

[19]

The flow of the investigative detention, the arrest and
    the search was a dynamic process.  Section 8 analyses ought not to be reduced to an over-analytical parsing
    of events into static moments without practical regard for the overall
    picture.

[20]

P.C. Kuchar had reasonable and probable grounds to
    arrest the appellant when he and Sgt. Blakeley first approached the two men,
    but exercised restraint instead and chose not to do so.  Although Mr. Downes submits that the power to
    search incidental to arrest is not automatically triggered by arrest, he
    conceded that if P.C. Kuchar
had
arrested the appellant at this time he could have performed a non-intrusive
    pat-down search of the appellant.  In my view,
    the fact that the appellant remained under investigative detention at that
    point in time did not alter this prerogative.

[21]

The right to detain for investigative purposes and to
    conduct a search incidental to that detention is summarized by Iacobucci J. in
R v. Mann
, [2004] 3 S.C.R. 59, at para.
    45:

To summarize ... police
    officers may detain an individual for investigative purposes if there are
    reasonable grounds to suspect in all the circumstances that the individual is
    connected to a particular crime and that such a detention is necessary.
In
    addition, where a police officer has reasonable grounds to believe that his or
    her safety or that of others is at risk, the officer may engage in a protective
    pat-down search of the detained individual.  Both the detention and the pat-down search must be conducted in a
    reasonable manner
.  In this
    connection, I note that the investigative detention should be brief in duration
    and does not impose an obligation on the detained individual to answer
    questions posed by the police.  The
    investigative detention and protective search power are to be distinguished
    from an arrest and the incidental power to search on arrest, which does not
    arise in this case. [Emphasis added]

[22]

Here, the appellant does not contest the propriety of
    the investigative detention.  P.C. Kuchar
    explained the desire to search in these words: [f]or our officer safety
    reasons we wanted to ensure that there were no weapons involved and that the
    two officers that were involved,
myself
and my
    partner, would be safe in continuing our discussions.  Sgt. Blakeley testified that searching is
    for the protection and safety of myself, the other officer, and the general
    public around us, so that when were dealing with this person if they have any
    types of weapons on them, that were not faced with a situation.

[23]

The officers were properly safety-cautious in the
    circumstances.  They were rightly
    concerned about the prospect of potential danger, given the underpinnings of
    the Robbery Reduction Program itself, the history of violence at that
    particular subway station, and their observations of the two men on the
    stairway and at the bakery.  P.C. Kuchar
    therefore had reasonable grounds to believe that his ... safety or that of
    others [was] at risk in the circumstances and he would have been justified in
    conducting a pat-down search at the point of investigative detention.

[24]

But he did not conduct a physical search at that
    time.  Instead, the situation continued
    to evolve.

[25]

There is a continuum of conduct to consider here.  It started with the officers telling the
    appellant that the officer was going to search him.  It then continued through the appellants
    efforts to avoid a search by the officer, the arrest, the attempted escape and
    the ultimate retrieval of the weapon  all as outlined in more detail above.

[26]

In my opinion, P.C. Kuchar had reasonable grounds to
    arrest the appellant when he first told the appellant that he was being
    investigated for an arrestable offence but was not then being arrested, and the
    actual arrest that occurred a few moments later.  Thus, the grounds to arrest for trespassing
    continued to exist.  The arrest was
    lawful and the circumstances outlined above amply justified a search incidental
    to that arrest  even if one assumes (as I do not) that there were not
    sufficient grounds to conduct a search incidental to the original investigative
    detention.  Whether the search
    consisted of the physical pat-down exercise itself, or whether it consisted of
    the continuum of conduct from the time P.C. Kuchar told the appellant he was
    going to search him until the physical search was completed, is of little
    significance.  The search was justified
    on either interpretation in the circumstances.

Section 24(2)

[27]

In light of the forgoing conclusions it is unnecessary
    to consider whether the gun ought to have been excluded pursuant to s. 24(2) of
    the
Charter
because of a breach of
    the appellants rights.

[28]

The trial judge was somewhat troubled by the fact that
    the police had indicated an intention to search the appellant before placing
    him under arrest.  He observed that it
    would have been preferable if the officers had made it clear to the appellant
    that they could only search him with his consent, absent an arrest, and, absent
    that consent, had only taken the initiative to search him after placing him
    under arrest for loitering.  I agree with
    that observation, but, for the reasons outline above, do not accept that there
    was
a
s. 8 violation in the circumstances.

[29]

However, I also agree with the trial judges
    observation that if there were
a
s. 8 violation, it
    was of a very minor nature  so trifling as to amount to virtually no breach
    at all, as he put it.  As Mr. Bernstein
    submitted, if sufficient grounds to conduct a search incidental to
    investigative detention were missing at that time, they were not missing by
    much; and if the appellants
Charter
rights were infringed by being told that he was
going to be
searched, they were not infringed by much.  Mr. Downes concedes that the police could
    have arrested the appellant at the time when he was merely being detained for
    investigative purposes and that, if they had, they could have searched
    him.  In these circumstances, the first
    two criteria of the
Grant
test
[1]
are considerably attenuated.  The loaded
    firearm was real evidence and was essential to the proof of the Crowns
    case.  Balancing these factors with the
    societal interest in having the case adjudicated on the merits  the third
Grant
criterion  the circumstances as a
    whole here strongly favour inclusion.

[30]

Accordingly, even if I had concluded that there was a
    slight s. 8 breach at the outset of the exchange between the police and the
    appellant, I would not have interfered with the trial judges decision not to
    exclude the loaded firearm as evidence under s. 24(2) of the
Charter
.

Disposition

[31]

I would therefore dismiss the appeal.

R.A. Blair J.A.

I agree J.C.
    MacPherson J.A.

I agree G.J. Epstein
    J.A.

RELEASED:  May 10,
    2011





[1]

R. v. Grant
, [2009] 2
    S.C.R. 353, at paras.
67-71. The
Grant
test requires the court to consider (1) the seriousness of the
Charter
breach, (2) the impact of that
    breach on the accuseds
Charter
-protected
    rights, and (3) the societal interest in having criminal matters adjudicated on
    their merits.


