



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tutu, 2021 ONCA 805

DATE: 20211112

DOCKET: C67886

Simmons, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nana Tutu

Appellant

Erin Dann and Sarah Weinberger, for the
    appellant

Andrew Cappell, for the respondent

Heard: October 22, 2021 by
    video conference

On appeal from the convictions entered
    by Justice Gregory M. Mulligan of the Superior Court of Justice on September 4,
    2018.

REASONS
    FOR DECISION

[1]

The appellant was convicted of one count of
    wilfully obstructing a peace officer; six counts stemming from the illegal
    possession or storage of a firearm; five counts stemming from breach of
    recognizance; and four counts stemming from the possession of Schedule I
    substances. He received a four-year sentence that he has served.

[2]

At trial, the appellant argued that the arresting
    officer, Police Constable Mark Hankin, violated several of his rights under the
Canadian Charter of Rights and Freedoms
: his s. 9 rights (by
    arbitrarily detaining him), his s. 10(b) rights (by failing to provide him with
    the right to counsel immediately after detaining him), and his s. 8 rights
    (by searching his vehicle incident to an unlawful arrest). The appellant also claimed
    that PC Hankin racially profiled him.

[3]

On the appeal, the appellant argues that the
    trial judge erred in failing to exclude the material evidence under s. 24(2) of
    the
Charter
on the basis that his
Charter
rights were
    breached. We allow the appeal and enter an acquittal on all counts, for the
    following reasons.

The Factual Context

[4]

PC Hankin was driving through the parking lot of
    a Barrie hotel on a general patrol. He testified that he noticed a black Chrysler
    with fresh yellow paint markings on the front quarter panel, indicating possible
    damage. He pulled in behind the car, ran a computer check of the licence plate,
    and learned that it was a rental. Curious, PC Hankin got out of his cruiser and
    approached the car. He initially thought the car was unoccupied.

[5]

Seeing the occupants, PC Hankin knocked on the
    drivers side window, and the appellant rolled it down. He is a Black man and was
    wearing a black hoodie. He had a set of gold teeth known as what the officer
    called a grill. The appellant and the cars other occupant, Aaliyah Henry, were
    sharing a marijuana joint and he passed it to her. PC Hankin asked them to put
    the joint out and to turn down the music, and then he asked for their names.

[6]

Ms. Henry gave PC Hankin her real name, but the
    appellant falsely identified himself as Marcus Anthony. PC Hankin asked them
    to wait, returned to his cruiser, and ran the names through his computer. There
    was no drivers licence connected to the name, nor any outstanding warrants or
    criminal convictions. PC Hankin suspected that the appellant had provided a
    fake name. He returned to the car and asked the appellant to spell his name,
    which he was unable to do. The appellant then provided a second fake name, Ben
    Dan.

[7]

By this time another officer, PC Ronald Hunt,
    had arrived at the scene. The two officers took the appellant out of the car.
    PC Hankin arrested him for obstructing police, but he did not immediately
    advise the appellant of his right to counsel. PC Hunt arrested Ms. Henry for
    marijuana possession. He then searched the vehicle incident to the arrests and
    found a Glock handgun as well as pouches of drugs in a Gucci bag located on the
    floor. PC Hankin inspected the Glock, and arrested the appellant again for
    possession of a firearm, and read him his rights. PC Hankin next took the
    appellant to the police station where his right to speak to counsel was
    implemented.

The Issues

[8]

This appeal turns on whether the trial judge
    erred in finding that the appellants detention, for
Charter
purposes,
    occurred at the moment of his arrest and not before. In our view, the detention
    occurred when PC Hankin discovered that the car was occupied after he had
    blocked it from moving.

The Analysis

[9]

Detention engages s. 9 of the
Charter
,
    which provides: Everyone has the right not to be arbitrarily detained or
    imprisoned. The principles governing s. 9 have recently been laid out in a
    sequence of decisions from the Supreme Court and this court.

[10]

Arbitrary detention is prohibited in order to
    protect individual liberty against unjustified state interference:
R. v.
    Le
, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 25. It protects an
    individuals right to make an informed choice about whether to interact with
    the police or to simply walk away:
R. v. Thompson
, 2020 ONCA
    264, 62 C.R. (7th) 286, at para. 30. Upon detention, an individual must be
    informed of the additional rights afforded by the
Charter
, such as the
    right to be informed of the reasons for the detention (s. 10(a)), and the right
    to retain and instruct counsel without delay and to be informed of that right
    (s. 10(b)):
Thompson
,
at para. 31.

[11]

The court must make two inquiries in assessing
    whether s. 9 applies: (1) Was the claimant detained? (2) If so, was the
    detention arbitrary?:
Le
, at para. 29.

[12]

A detention arises only where the police suspend
    an individuals liberty through a significant physical or psychological
    restraint: see
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353
,
at para. 44. Not every interference with
    an individuals liberty attracts
Charter
scrutiny.

[13]

Physical detention is usually obvious. More
    difficult is psychological detention, which the court in
Grant
noted is
    established either where the individual has a legal obligation to comply with
    the restrictive request or demand, or a reasonable person would conclude by
    reason of the state conduct that he or she had no choice but to comply: at para.
    44. The
Grant
court set out three factors to be assessed, at para. 44:

a) The
circumstances
    giving rise to the encounter
as 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. [Emphasis
    added.]

[14]

This court explained in
Thompson
that
    psychological detention or restraint can arise in two ways, when: (1) an
    individual is legally required to comply with a police direction or demand; or
    (2) absent legal compulsion, when the police conduct would cause a reasonable
    person to conclude that he or she was not free to go and had to comply with the
    police direction or demand: see
Thompson
, at para. 36;
Grant
,
    at paras. 30-31;
R. v. Suberu
, 2009 SCC 33, [2009] 2 S.C.R. 460, at
    para. 22, and
Le
, at paras. 25-26.

[15]

The s. 9 inquiry engages all the circumstances
    of the encounter. It requires an objective assessment of what a reasonable
    person in the shoes of the accused would perceive about his or her freedom to leave:
Le
,
at para. 106. The
    focus is on how the police behaved and, considering the totality of the
    circumstances, how their behaviour would reasonably be perceived:
Le
, at
    para. 116. The focus is not on what was actually in the accuseds mind at the
    particular moment. Nor is it on the police officers intention.

[16]

As noted, the trial judge found that the
    appellants detention arose when he was arrested by PC Hankin for obstructing
    police after the appellant gave a second false name. The appellant submits that
    he was psychologically detained when the officer boxed his car into the parking
    spot.

[17]

This case is remarkably similar to
Thompson
.
    (In fairness to the trial judge,
Thompson
was released well after he
    made his decision.) In that case, the appellant was sitting in a parked car
    when two police cruisers arrived and boxed him in so that he could not leave. He
    was arrested for possession of the butt of a marijuana joint. His car was
    searched incident to arrest and the police found other drug paraphernalia and cocaine.
    The appellant was charged with and convicted for possession of cocaine for the
    purpose of trafficking.

[18]

This court allowed the appeal on the basis that
    the evidence should have been excluded under s. 24(2) of the
Charter
because
    the police had arbitrarily detained the appellant by boxing in his vehicle and
    had failed to immediately inform him of his right to counsel. The moment of
    detention, according to Jamal J.A. (as he then was), was when the appellants
    car was boxed in. The appellant submits that this court should reach the same
    conclusion.

[19]

The Crown submits that, unlike
Thompson
,
    in which the police intentionally boxed in the appellants car, PC Hankin was
    unaware that the vehicle was even occupied when he parked behind it; there is
    no evidence that the appellant was aware of police presence at that moment.

[20]

However, this reasoning was expressly rejected
    in
Thompson
. Jamal J.A. explained: Whether the appellant was
    detained, triggering the polices
Charter
obligations, should not turn
    on whether the appellant saw the police in his rear-view mirror as they boxed
    him in (a subjective approach), but on whether a reasonable person in his
    circumstances would conclude that this police conduct effected a detention (an
    objective approach): at para. 48.

[21]

In our view, the circumstances giving rise to
    the encounter in this case support a finding that a reasonable person, in the
    appellants position, would believe he was detained when the police, having
    obstructed his car, approached it or knocked on the window. A reasonable person
    would see this as a directed personal inquiry: see
Thompson
, at paras.
    53-54;
Grant
, at para. 41;
Le
, at para. 42.

[22]

The appellant was psychologically detained from
    the outset of his interaction with PC Hankin, well before his initial arrest.
    As in
Thompson
, the police conduct was authoritative from the outset:
    at para. 55. PC Hankin blocked the movement of the appellants car with his
    marked police cruiser. He was in a police uniform. Nothing about the officers
    initial interaction with the appellant would have diminished the perception of
    a reasonable person in the appellants circumstances that he was detained. PC
    Hankin told the occupants to put out the joint, to turn the music down, to produce
    identification, and to wait while he did a computer check of their names. He
    also asked whether they possessed a marijuana licence.

[23]

The trial judge stated that nothing prevented
    Mr. Tutu or Ms. Henry from exiting the vehicle and impliedly, their ability to
    leave on foot. He pointed out that video surveillance showed that the appellant
    and Ms. Henry had earlier left the vehicle to return to the hotel.

[24]

But the view that these factors meant there was
    no detention is completely unrealistic. First, PC Hankin testified that he told
    the appellant to just wait here and that he was going to run their names
    through the system and he would be right back. He added that he possibly even
    told them to stay in [their] car. Such language would lead a reasonable person
    to conclude that he or she was not free to leave. The officers testimony that if
    they exited the vehicle, he would not have stopped them does not bear up to scrutiny.

[25]

Second, t
he trial judge
    noted that the appellant in this case was deprived of the ability to drive
    away.
Jamal J.A.s
conclusion
    in
Thompson
, at para. 57, applies equally here: [T]he police
    effectively took control of the appellants car and its occupants, first by
    obstructing the appellants car, and then by approaching the car and seeking
    information from the appellant and the passenger. He added, at para. 61:
    In my view, a reasonable person in the appellants position, whose car was
    deliberately obstructed by a police cruiser, would conclude that they were not
    free to leave, on foot or otherwise. The appellant was detained because he had
    lost his freedom of movement [which] includes the freedom to leave by driving
    away:
Thompson
, at para. 62.

[26]

Finally, there was some inconsistency in PC
    Hankins testimony as to whether, on parking his cruiser behind the Chrysler,
    he intended to prevent the appellant from leaving. He testified that he thought
    the car was unoccupied and that he parked as he did because he did not want to
    block traffic. The officers subjective intention not to block the car is
    irrelevant. Regardless of that intent, a reasonable person boxed in by a police
    cruiser would conclude that he or she was not free to leave (see also
Q. v.
    Phillips
, 2021 ONSC 5343, at paras. 6, 11).

[27]

In our view, when the officer came to the
    drivers side window, after blocking the car and preventing it from leaving, he
    effectively detained the appellant. This situation would lead a reasonable
    person in the appellants position to conclude that he was not free to go. This
    detention was arbitrary and therefore a breach of s. 9 of the
Charter
because at that point, there was no reasonable suspicion of criminal conduct:
Thompson
,
    at para. 65;
Grant
, at para. 55. The detention was reinforced when PC
    Hankin knocked on the window. On the officers own evidence, the appellants use
    of marijuana did not justify his detention or his arrest.

[28]

As in
Thompson
, the officer did not
    immediately advise the appellant of his right to retain and instruct counsel,
    contrary to s. 10(b) of the
Charter
. This failure tainted everything
    that followed. The officer continued to elicit evidence from the appellant, who
    had no obligation to speak to him. Their verbal encounter led to the
    obstruction charge. That charge led to the arrest, which led to the search,
    which led to the discovery of the drugs and the gun, and to the upgraded
    charges. This is a similar dynamic as in
Thompson
with the same linking
    causal connection between the detention and the charges in play: at para. 80.

[29]

PC Hankin detained the appellant but instead of
    telling the appellant that he was detained and advising him of his rights,
    including his rights to counsel and to not speak, the officer questioned the
    appellant. This led to the discovery of the evidence.

[30]

The question is whether the evidence should be excluded
    under s. 24(2) of the
Charter
, considering the application of the
Grant
factors, based on the combined breaches of ss. 9 and 10(b). As in
Thompson
,
    this court must consider the matter afresh because the trial judge erred in
    assessing the nature and extent of the
Charter
breaches:
Thompson
,
    at para. 73.

[31]

The first
Grant
factor is the
    seriousness of the
Charter
-infringing police conduct that led to the
    discovery of the evidence. Our finding with respect to the timing of the
    arbitrary detention significantly increases the seriousness of the s. 10(b)
    breach.

[32]

The trial judge stated with respect to the
    appellants s. 10(b) rights: I am satisfied that this was a breach of Mr. Tutus
Charter
protected rights; the right to be informed of his right to counsel
    without delay. PC Hankin showed a lack of knowledge that without delay meant immediate:
    see:
Suberu
at para. 42. He added: I am satisfied that the breach of
    Mr. Tutus 10(b) rights was serious, but it was not prolonged. In his view,
    the officer breached his s. 10(b) informational duties but complied reasonably quickly
    with his implementational duties.

[33]

We agree that the s. 10(b) breach was serious in
    the absence of exigent circumstances. As Jamal J.A. observed in
Thompson
,
    at para. 89: [Police] cannot go about their undeniably important duties to
    enforce the law by obstructing ordinary Canadians in their cars until they are
    satisfied that they have answered their questions.

[34]

The second line of inquiry under
Grant
concerns the impact of the breach on the appellants
Charter
-protected
    rights. The police continued to question the appellant after the point of
    detention, which led to the obstruction charge and so on. This breach impacted
    the appellants rights greatly because it provided the police with the
    incriminating evidence.

[35]

The seriousness of the combined breaches and
    their significant impact on the appellants
Charter
-protected rights
    leads us to conclude that permitting the admission of the evidence in the appellants
    prosecution would bring the administration of justice into disrepute.

[36]

Turning to the third
Grant
inquiry 
    societys interest in the adjudication of the case on the merits  there is no
    doubt that society has a significant interest in the prosecution of firearm and
    drug offences on their merits. That said, once the first two lines of inquiry make
    a case for the exclusion of the evidence, the third inquiry will seldom if
    ever tip the balance in favour of admissibility:
Le
, at para. 142,
    and see
R. v. Paterson
, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 56.
    As Doherty J.A. noted in
R. v. McGuffie
, 2016 ONCA 365, 131 O.R. (3d)
    643, at para. 83: This unpalatable result is a direct product of the manner in
    which the police chose to conduct themselves. Even though the evidence here,
    the drugs and the gun, is highly reliable and critical to the Crowns case, in
    our view it must be excluded.

[37]

As was the case in
Thompson
, because we
    conclude that the evidence ought to be excluded under s. 24(2) based on the
    combined breaches of ss. 9 and 10(b), it is unnecessary for this court to
    address the alleged breach of s. 8.

[38]

We also decline to address the appellants claim
    that PC Hankin racially profiled him, contrary to
Le
. In fairness to
    the trial judge and to trial counsel,
Le
was not available when the
    case was heard and decided to assist in framing the issue in terms of evidence
    or argument. In our view, a claim of racial profiling demands both proper framing
    and evidence, as detailed in
Le
, and in later cases such as
R. v.
    Dudhi
, 2019 ONCA 665, 147 O.R. (3d) 546 and
R. v. Sitladeen
, 2021 ONCA
    303, 155 O.R. (3d) 241.

[39]

To repeat,
we allow the appeal and enter an acquittal on all counts
.

Janet
    Simmons J.A.

P. Lauwers
    J.A.

G.
    Pardu J.A.


