



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Darteh, 2016 ONCA 141

DATE: 20160222

DOCKET: C59386

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ohene Sekeyere Darteh

Appellant

Janani Shanmuganathan, for the appellant

Michael Medeiros, for the respondent

Heard: February 19, 2016

On
    appeal from the convictions entered by Justice Michael Code of the Superior
    Court of Justice on February 7, 2014, with reasons reported at 2014 ONSC 895, 302
    C.R.R. (2d) 283.

ENDORSEMENT

[1]

The appellant was detained by the police in
    front of his residence for investigation of trespass and liquor-related
    provincial offences. An altercation ensued in which the appellant shoved and
    kicked the officers and ran into the residence. The police arrested the
    appellant and a subsequent search of his backpack revealed a handgun
.

[2]

At trial, the appellant alleged numerous
    infringements of his
Charter
rights. He brought an application to exclude
    from evidence the handgun and for a stay of proceedings. The trial judge
    dismissed the application. Among other things, he found that the appellant had
    been lawfully detained for a brief investigation for offences under the
Trespass to Property Act
,
    R.S.O. 1990, c. T-21,

and the
Liquor
    License Act
, R.S.O. 1990, c. L-19. The appellant was convicted of
    various firearms and weapons offences and of assaulting the police.

[3]

On appeal, appellants counsel clearly and
    concisely submits that his detention was arbitrary and contrary to s. 9 of the
Charter
. She argues that because
    the appellants detention was arbitrary, the convictions for assaulting the
    police should be overturned and the handgun should have been excluded from
    evidence. She requests that this court replace the appellants convictions with
    acquittals or order a new trial. The trial judges findings of fact and his
    conclusions regarding the credibility of witnesses are not challenged.

[4]

The police may detain a person for investigative
    purposes if they have reasonable grounds to suspect that the person is
    connected to particular criminal activity and that such a detention is
    reasonably necessary in the circumstances:
R.
    v. Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45. The standard
    reasonable grounds to suspect requires that the police have a reasonable
    suspicion or a suspicion that is grounded in objectively discernible facts,
    which could then be subjected to independent judicial scrutiny:
R. v. Williams
, 2013 ONCA
    772, 313 O.A.C. 195, at paras. 22-23.

[5]

Appellants counsel submits that the police
    relied on the following facts when detaining him: he was acting nervously, he
    walked away quickly when he saw the police, and he stopped at the first
    available apartment for which he did not have a key. Appellants counsel argues
    that these facts cannot ground a reasonable suspicion that he was engaged in
    either a liquor-related or trespass offence.

[6]

The trial judge agreed that the appellants
    decision to walk away from the police could not ground a reasonable suspicion
    that he was involved in an offence. Nevertheless, he concluded that the information
    and facts available to the police at the time of the detention, when considered
    in their totality, were objectively capable of supporting reasonable suspicion.
These included:

·

The
    manner in which the appellant had turned to the first available doorway and
    urgently tried to gain entry by turning the door handle and knocking.

·

The
    appellant did not have a key to the unit that he was trying to enter.

·

The
    appellant was carrying a partially consumed bottle of liquor, smelled of
    alcohol, and had blood shot eyes such that it could be inferred that he had
    been drinking in the courtyard.

·

The
    appellants very nervous demeanour, including a trembling hand when he produced
    his health card and his manner of standing with his backpack up against the
    wall.

·

The
    complaint from the property manager that there were trespassers in the
    courtyard area, particularly during the evenings after 8:00 p.m., and that
    someone appeared to be letting them in.

[7]

The actions noted above may have been lawful and
    each of the facts, if considered in isolation, may have been insufficient.
    However, when the totality of facts is viewed together, they are capable of
    grounding a reasonable suspicion that the appellant may be engaged in trespass
    or liquor-related offences. Reasonable suspicion may be grounded in a
    constellation of factors, even if any one of those factors on its own would not
    have been sufficient:
R. v.
    Nesbeth
, 2008 ONCA 579, 238 C.C.C. (3d) 567, at paras. 1-2 and
    17-18.

[8]

The trial judges assessment of the evidence
    supported his conclusion that the police had a reasonable basis to suspect that
    the appellant was a trespasser committing a provincial offence. His findings
    are entitled to deference from this court. As we have concluded that the
    appellants s. 9 rights were not infringed, there is no need to address the
    appellants s. 24(2)
Charter

arguments. The appeal is dismissed.

Doherty J.A.

E.A. Cronk J.A.

H.S. LaForme J.A.


