



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Omar, 2018 ONCA 975

DATE: 20181204

DOCKET: C64063

Sharpe, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Omar Muhammad Omar

Appellant

Catriona Verner, for the appellant

Justin Reid, for the respondent

Heard: June 29, 2018

On appeal from the convictions entered on January 10,
    2017 by Justice P.L. Hebner of the Superior Court of Justice, sitting without a
    jury.

Sharpe J.A.:

[1]

The appellant was convicted of various firearms
    offences and possession of cocaine for the purpose of trafficking. He was found
    to be in possession of a loaded handgun, ammunition and cocaine when the police
    stopped him and another man as they walked along a street in Windsor, Ontario
    late at night. The trial judge found that the stop amounted to a breach of the
    appellants s. 9
Charter
right not to be arbitrarily detained, that
    the search violated his s. 8 right to be secure against unreasonable search and
    seizure, and that the appellant had been denied his s. 10(b) right to be
    informed of his right to counsel without delay. However, she refused to exclude
    the evidence pursuant to s. 24(2) of the
Charter.

[2]

On this appeal, the Crown does not contest that
    the appellant was detained and that his
Charter
rights were violated.
    The sole issue is whether the trial judge erred by refusing to exclude the
    evidence on the basis that the police acted in good faith and did not believe
    that they had detained the appellant.

[3]

The appellant challenges the finding of good
    faith police conduct. He submits that as the police acted in ignorance of or
    with disregard for well-established law limiting police powers, the finding of
    good faith cannot stand and the evidence should be excluded pursuant to s.
    24(2).

[4]

For the reasons that follow, I agree that the
    trial judge erred in assessing the seriousness of the polices
Charter
-infringing conduct. I am satisfied that on a fresh s. 24(2)
    analysis, the evidence obtained against the appellant should be excluded. I
    would therefore allow the appeal and enter acquittals on all counts.

FACTS

[5]

The appellant, at the time 20 years old, was walking
    down a street in Windsor, Ontario at around 1 a.m. with a recent acquaintance,
    Morpheu Smith [
sic
]. The appellant had arrived
    in Windsor a few hours earlier. He was wearing a light grey hooded sweatshirt
    with the hood pulled up. There was no one else on the street, located in an
    area of Windsor that is not highly populated. In the immediate vicinity was a
    Beer Store, an abandoned industrial building and a vacant fire station. There was
    a Macs Milk convenience store two or three blocks south.

[6]

Two Windsor police officers, Constables Ashton
    and Haidar, were on patrol in the neighbourhood. They had been advised of a be
    on the look-out (BOLO) notice for a white male, 57, 200 pounds, 25-30
    years old, who a week earlier had robbed two Macs Milk stores armed with a
    six-inch hunting knife and wearing a black hooded sweatshirt and a black ski
    mask.

[7]

The appellant identifies as a black male. He is 58
    tall and of slight build. There is no evidence that the police could see that
    the appellant is black before they stopped him and no suggestion that the stop
    was prompted by racial profiling.

[8]

When the officers saw the appellant and Smith
    walking along the street in the same direction they were driving, they pulled
    their marked patrol car over, shone a very bright alley light on the
    appellant and Smith and directed them to stop and come over to the patrol car. Constable
    Ashton said: Hey guys whats going on? The officers then got out of the
    patrol car, approached the two men, and asked them for their identification.
    The appellant handed over his wallet and informed the officers that he was
    headed to Macs Milk with Smith.

[9]

The appellants wallet had two health cards
    inside, one his own and a second belonging to someone else. Smith said he had
    no identification but told the officers who he was. Constable Haidar took the
    health cards to the patrol car to run the appellants and Smiths names through
    the Canadian Police Information Centre (CPIC).

[10]

Constable Ashton, 511 tall and wearing full
    uniform, remained with the appellant and Smith while Constable Haidar checked
    CPIC. Constable Ashton stood less than four feet from the appellant and asked a
    series of questions, such as:

·

What are you doing here?

·

What are you up to?

·

Where do you live?

·

You guys work?

·

You guys go to school?

·

How did you get to Windsor?

[11]

As he asked
these questions, Constable
    Ashton told the two men to remove their hands from their pockets. He testified
    that he did so for officer safety. The appellant removed his hands but then put
    them back in his pockets. Constable Ashton told him to remove them again. The
    appellant removed only his left hand and Constable Ashton said
both hands. The appellant complied and removed his right hand from his
    pocket.

[12]

At that point, Constable Ashton saw the barrel
    of a gun in the appellants pocket. Constable Ashton yelled gun and tackled
    the appellant, seized the .32 calibre loaded handgun and placed the appellant
    under arrest in handcuffs. The appellant was then searched. He had four .32
    calibre rounds of ammunition in his vest pocket. When Constable Ashton yelled
    gun, Constable Haidar left the patrol car, took control of Smith and arrested
    him for breach of the peace. Constable Haidars notes indicated that he heard Constable
    Ashton advise the appellant of his right to counsel immediately after he seized
    the gun and placed the appellant under arrest. The appellant answered that he
    was so stupid and that he had a lawyer in London. The appellant was
    subsequently searched at the police station and a clear plastic bag containing
    cocaine was found on his person.

[13]

Less than five minutes elapsed from the time the
    police stopped the appellant and Smith to when Constable Ashton yelled gun.

TRIAL JUDGES REASONS

[14]

The trial judge found that the appellant had
    been detained at least by the time he was asked for his identification. She observed
    a very close similarity between the appellants encounter with the police and
    the facts of
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, a case I
    will discuss in greater detail later in these reasons. To explain her finding
    that the appellant had been detained, the trial judge relied upon:

·

the fact that the officers had shone their spotlight
    on the  appellant;

·

the relative sizes of the appellant and
    Constable Ashton; and

·

the fact that Constable Ashton stood close to
    the appellant, asked him for identification, questioned him for a period of
    time while Constable Haidar checked CPIC, and repeatedly told him to remove his
    hands from his pockets.

[15]

The trial judge also noted that in his testimony
    on the
voir dire
, the appellant said that he was scared during his
    encounter with the police, was never told that he did not have to answer the
    officers questions, and had not known that he could leave at any point.

[16]

The trial judge found the detention of the
    appellant to be arbitrary. The only possible justification for the detention
    was reasonable suspicion that the appellant was connected to the Macs Milk
    robberies, based upon the BOLO notice:
R. v. Mann
, 2004 SCC 52, [2004]
    3 S.C.R. 59. The trial judge found that the reasonable suspicion test had not
    been met. The Macs Milk robberies, the trial judge noted, had occurred a week before
    the appellants encounter with the police. There was no clear nexus between the
    appellant and those robberies, and the appellants appearance did not
    correspond with the description of the perpetrator provided in the BOLO notice.
    Constable Ashton, moreover, testified that he did not consider the appellant
    and Smith to be suspects.

[17]

Based on her conclusion that the detention was
    arbitrary, the trial judge found that the search of the appellant was unlawful
    and contrary to s. 8 of the
Charter
:
R. v. McGuffie
, 2016
    ONCA 365, 131 O.R. (3d) 643, at paras. 54-55. Further, applying
R. v.
    Suberu
, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 42, the trial judge
    found that the appellant had not been informed of his right to counsel without
    delay. Although the appellant had been detained at least from the time he was
    asked for his identification, he had not been advised of his right to counsel
    until after he was handcuffed and arrested.

[18]

The trial judge then turned to the question of
    whether the evidence should be excluded under s. 24(2). She properly identified
    the three factors relevant to the s. 24(2) inquiry: (1) the seriousness of the
Charter
-infringing
    state conduct; (2) the impact of the breach on the
Charter
-protected interests of the accused; and (3) societys interest in
    an adjudication on the merits:
Grant
, at para. 71.

[19]

The trial judges finding as to the seriousness
    of the
Charter
-
infringing state conduct lies at the heart of this appeal. The trial judge
    found, at para 43, that:

Constable Ashton and Constable Haidar acted
    in good faith. They had a subjective belief that they were not detaining Mr.
    Omar. The police conduct was not abusive. Although the officers went too far in
    detaining Mr. Omar and asking him questions, the point at which an encounter
    becomes a detention is not always clear. Although I have concluded that
    Constable Ashton and Constable Haidar were in error in detaining Mr. Omar, the
    detention is understandable. The police conduct in committing the
Charter
breach was neither deliberate nor egregious and would not fall on
    the more serious end of the spectrum.

[20]

With respect to the impact of the breach on the
Charter
-protected
    interests of the appellant, the trial judge found, at para. 44, that the breach
    of the appellants s. 9 right was significant. She pointed out that the
    appellant, like every other person in this country [has] the right to walk
    down the street without fear of being arbitrarily detained, whether the time is
    1:00 in the morning or in the middle of the afternoon. The trial judge found
    that the s. 10(b) breach also had a significant impact on the appellant. He
    was scared and felt he could not walk away from the police. Had he been given
    an opportunity to consult counsel, he might have been advised differently.

[21]

With respect to the final factor, societys
    interest in the adjudication of the case on its merits, the trial judge
    observed that the evidence was crucial to the Crowns case and highly reliable.

[22]

Weighing and balancing the three
Grant
factors, the trial judge concluded that both the
    seriousness of the
Charter
-infringing state conduct and societys
    interest in an adjudication on the merits
favoured
admission, while the impact of the breach on the appellants
Charter
rights favoured exclusion. On balance, she concluded that the fact that the
    police subjectively believed that they were not detaining the appellant and
    acted in good faith, combined with the fact that the evidence was highly
    reliable and the charge very serious, outweighed the significant  albeit
    not an egregious impact on the appellants
Charter
rights.

ISSUES ON APPEAL

[23]

There is no dispute on this appeal that the
    appellants rights under ss. 8, 9 and 10(b) of the
Charter
were
    infringed when Constables Ashton and Haider stopped him as he walked along a
    Windsor street late at night. On the authority of
Grant
, the trial
    judge quite properly rejected the claim that the appellant had not been
    detained. The police offered no tenable legal justification for the detention.
    It followed that the searches that revealed the gun, ammunition and cocaine were
    unlawful, and that the police failed to inform the appellant of his right to
    counsel in a timely manner.

[24]

The central issues on appeal are whether the
    trial judge erred in principle in her assessment of the first
Grant
factor  the seriousness of the
Charter
-infringing state
    conduct  and, if she did, whether the evidence should be excluded. The
    appellant has abandoned his sentence appeal, having served his sentence of 40
    months in custody, less 29 months credit for pre-trial custody.

[25]

On the appeal from conviction, the appellant
    submits that the trial judges finding that the police acted in good faith
    cannot be supported in the face of evidence of a clear detention and complete
    lack of justification for that detention. The appellant contends that as this
    case was very close to the facts of
Grant,
the police should have
    known they unlawfully detained the appellant, making their
Charter
-infringing
    conduct more serious. On a proper analysis of the first
Grant
factor, the evidence should have been excluded.

[26]

In the respondents view, the trial judges
    finding that the officers acted in good faith was neither unreasonable nor
    based on an error in principle. This was a borderline case of detention and
    the officers acted under an honest and reasonable belief that their actions
    were
Charter
-compliant. Even after
Grant
, the issue of when a psychological detention crystalizes is
    nuanced, flexible and contextual, and one on which police officers, members of
    the public, lawyers and judges frequently disagree. The trial judge properly
    found that the officers judgment call, while ultimately incorrect, was
    understandable. This finding is entitled to deference, as is the trial
    judges ultimate balancing of the
Grant
factors.

ANALYSIS

[27]

One of the central features of the
Charter
    of Rights and Freedoms
is the explicit guarantee of effective remedies to
    redress violations of
Charter
rights. Section 24(2) provides a remedy
    for
Charter
breaches by allowing for the
    exclusion of evidence obtained in violation of a
Charter
right or
    freedom:
R. v. 974649 Ontario Inc.
, 2001 SCC
    81, [2001] 3 S.C.R. 575, at para. 21. This section provides that where

evidence was obtained in a manner that infringed
    or denied any rights or freedoms guaranteed by this
Charter
, 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.

[28]

The trial judge correctly identified the three
Grant
factors used to determine whether evidence obtained in
    violation of the
Charter
should be excluded.
    Absent error in principle, palpable and overriding factual error or an
    unreasonable determination, a trial judges weighing of those factors attracts
    deference on appeal:
McGuffie
, at para. 64;
Grant
, at para. 86;
R. v. Schulz
, 2018
    ONCA 598, at para. 23.

[29]

In my respectful view, the trial judge erred in
    principle in her assessment of the seriousness of the polices
Charter
-infringing conduct. Her ultimate balancing of the
Grant
factors is therefore owed no deference. On a fresh analysis, I would
    exclude the evidence obtained against the appellant.

Seriousness of the Charter-infringing
    state conduct

[30]

For the following reasons, I conclude, on the
    authority of
Grant
, that the trial judge committed reversible error in
    situating the polices conduct on the continuum of misconduct that guides the
    inquiry into the first
Grant
factor:
R.
    v. Blake
, 2010 ONCA 1, 251 C.C.C. (3d) 4, at para. 23;
R.
    v. Rocha
, 2012 ONCA 707, 112 O.R. (3d) 761, at para. 31. She
    gave unwarranted weight to the subjective good faith of the officers. The trial
    judges findings that the detention was understandable and that the police
    acted in good faith are also inconsistent with her finding that this case was
    on all fours with
Grant
.
Grant
was decided several years
    before Constables Ashton and Haidar detained the appellant. The Supreme Court
    made clear, at para. 133, that its decision would render similar conduct less
    justifiable going forward.  The trial judge erred by failing to take this guidance
    into account in determining the seriousness of the polices conduct, and by failing
    to assess whether there was a reasonable, case-specific basis for the police
    officers subjective belief that no detention had occurred. In my respectful
    view, following
Grant
, it should have been
    apparent to a properly trained and legally informed police officer that the
    appellant was detained without lawful justification.

[31]

I explain these conclusions in two related
    parts. First, I outline why this was a clear case of detention, partly because
    of the similarities it shared with the facts of
Grant.
Second, I explain why in light of the clear and arbitrary detention
    of the appellant, the trial judges finding that the police acted in good faith
    cannot withstand scrutiny.

The Detention

[32]

This was not a close case of detention. A
s the trial judge observed, [t]he facts in this case
    are very close to the facts in [
Grant
]. The respondents submission that there are
    significant distinctions between the two cases, such that this incident amounts
    to a borderline detention, must be rejected.

[33]

Grant
involved
    an encounter between Grant, a young black man, and three police officers
    monitoring an area near schools plagued by drugs, assaults, and robberies.
    Grant was walking along the street around mid-day. Two plain-clothed police
    officers drove past him in an unmarked car. Grant stared at the officers in an
    unusually intense manner and fidgeted with his coat and pants. The two officers
    became suspicious and suggested to a third officer, in uniform and driving a
    marked police car in the neighbourhood, that he have a chat with Grant. The
    uniformed officer got out of his car, stood on the sidewalk directly in Grants
    path, asked Grant what was going on and requested his name and address. Grant
    produced his health card. He appeared nervous and adjusted his jacket. The
    uniformed officer told Grant to keep his hands in front. The two plain-clothed
    officers came up behind the uniformed officer, flashed their badges and blocked
    the way forward. The uniformed officer asked Grant [d]o you have anything on
    you that you shouldnt? Grant responded that he had a small bag of weed and a
    firearm. At that point, the officers arrested Grant, searched him and found
    marijuana and a loaded revolver.

[34]

The majority of the Supreme Court reiterated the
    basic principle that while a police officer may approach a person on the street
    and ask him or her questions, the person has the right to refuse to answer and
    walk away. Detention occurs when that choice to walk away is removed, whether
    by physical or psychological compulsion (para. 21). Detention requires more
    than a fleeting interference or delay but less than where the police take
    explicit control over the person and command obedience (para. 24). The
    majority agreed, at para 28, with the holding in an early
Charter
case,
R. v. Therens
, [1985] 1 S.C.R. 613, at p. 644, that
    there is a detention when a person submits or acquiesces in the deprivation of
    liberty and reasonably believes that the choice to do otherwise does not exist.
    The test is an objective one, but the
Grant
majority
    noted at para. 32 that:

the individuals particular circumstances and perceptions at
    the time may be relevant in assessing the reasonableness of any perceived power
    imbalance between the individual and the police, and thus the reasonableness of
    any perception that he or she had no choice but to comply with the police
    directive.

[35]

In relation to neighbourhood policing, a distinction is made between
    general inquiries and focused suspicion which may lead the target of the
    suspicion to reasonably conclude that he or she has no choice but to comply
    with a police officers request (para. 41).

[36]

The majority summarized the proper approach to assessing a s. 9 claim
    at para. 44:

1.

Detention under ss.
    9 and 10 of the
Charter
refers to a suspension of the
    individuals liberty interest by a significant physical or psychological
    restraint. Psychological detention 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.

2.

In cases where
    there is no physical restraint or legal obligation, it may not be clear whether
    a person has been detained. To determine whether the reasonable person in the
    individuals circumstances would conclude that he or she had been deprived by
    the state of the liberty of choice, the court may consider,
inter alia
,
    the following factors:

(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. [Emphasis Added.]

[37]

Applying that test to Grants situation, the
    majority concluded that he had been detained, as did the two concurring judges
    (albeit for different reasons). The majority reasoned that Grant was not
    detained when the uniformed officer approached him and made general inquiries.
    However, what followed did amount to a detention. Grant was told to keep his
    hands in front. Two other officers flashed their badges and moved into position
    behind the first officer, who embarked upon a pointed line of questioning. At
    para. 50, the majority stated:

[i]n our view, the evidence supports Mr. Grants contention
    that a reasonable person in his position (18 years old, alone, faced by three
    physically larger policemen in adversarial positions) would conclude that his
    or her right to choose how to act had been removed by the police, given their
    conduct.

[38]

In the case at bar, the trial judge found that
    the appellants interactions with the police fell within the
Grant
definition of detention. In my view, there can be no doubt about that
    conclusion. This was not one of the close cases referred to in
Grant
. The circumstances giving rise to the encounter, the nature of the
    police conduct and the characteristics of the appellant strongly support a
    finding that he was detained in a similar manner to the appellant in
Grant
.

[39]

First, the circumstances giving rise to the
    encounter. As in
Grant
, the police were not providing
    general assistance, maintaining general order, or making general inquiries
    regarding a particular occurrence. The police were not simply engaging members
    of the public on the street in the course of their duties. They did not call
    out to the appellant and his associate for a talk. Rather, they trained their
    attention specifically on the appellant and Smith, in a remote part of Windsor
    late at night with no one else present after shining a bright spotlight on them
    and asking them to come over to their cruiser. These features of this case arguably
    make for an even clearer case of detention than in
Grant
.

[40]

Second, the nature of the police conduct. In this
    case, as in
Grant
, the appellant was stopped
    by police while walking down a street. The police, like in
Grant
, asked for identification, commenced questioning, and made multiple
    demands that the appellant make his hands clearly visible. While the officers did
    not go so far as to ask whether the appellant ha[d] anything  [he]
    shouldnt, it is relevant that the questioning occurred after the police took
    away the appellants identification for a period of time, leaving him standing
    in the street confronted by an officer standing four feet away to await its
    return:
R. v. Davidson
, 2010 ONSC 1508, 207
    C.R.R. (2d) 34, at para. 78;
R. v. Solomon
(2009),
    200 C.R.R. (2d) 323 (Ont. S.C.), at para. 28. During that questioning a
    uniformed peace officer was asking the young men to account for themselves 
    What are you doing here. What are you up to, Where do you live, You guys
    work?, You guys go to school?, How did you get to Windsor. It would strain
    belief to suggest that in these circumstances, the appellant felt he was not
    singled out and free to walk away from the encounter and/or refuse to answer
    the polices questions.

[41]

Third, the characteristics of the appellant. In
    both
Grant
and in this case, the appellants
    were young black men confronted by physically larger officers dressed in
    uniform.

[42]

I add that while
Grant
holds that the
    subjective views of the accused and the police are not decisive, they may be
    considered:
Grant
, at para. 32;
R.
    v. N.B.
, 2018 ONCA 556, at para. 117. Indeed, so that
    they can identify when a detention is apt to be occurring, police officers are
    required to consider whether the point has been reached where the subject of
    their attention may reasonably conclude that they are not free to walk away or
    decline to answer questions:
Grant,
at para.
    41. Yet there is no indication here that the officers did so. The appellant
    testified that he was scared and that, particularly as a racialized
    individual, he did not think he could simply walk away from the police and
    feared he would be shot if he did. He stated that its almost instilled in
    every coloured persons brain that if officers tell you to do something youd
    better do it or else. There is no evidence that the police informed the
    appellant that he could leave, refuse to provide identification, or decline to answer
    their questions. This option was open to the officers had they been uncertain
    about whether their actions were having a coercive effect on the appellant:
Grant
, at para. 32. It enables officers to avoid triggering detentions in
    close cases or where officers do not intend to detain where objectively a
    detention is apparent. When Constable Ashton was asked what he would have done
    if the appellant had walked away, he replied: I would have asked him to  you
    know, why  why are you leaving. I would have questioned him, maybefollow
    them, see where theyre going. This evidence of the subjective beliefs of both
    the appellant and the officer provides further support for the proposition that
    the appellant reasonably believed he was detained and that Constable Ashton did
    not intend to permit the appellant to simply walk away.

[43]

For these reasons, I do not accept the Crowns
    submission that this was a borderline incident of detention. The police
    conduct in this case bore strong similarities to the facts of
Grant
, resulted in a clear detention, and led to infringements of the
    appellants ss. 8, 9 and 10(b) rights.  Next, I explain how this conclusion impacts
    the assessment of the seriousness of the polices
Charter
-infringing conduct.

The Trial Judges Finding of Good
    Faith

[44]

While the trial judge was entitled to find that
    Constables Ashton and Haider subjectively and honestly believed that they had
    not detained the appellant, she erred in law by concluding that a subjective
    honest belief was sufficient to support a finding of good faith.  She found
    that the officers belief that they were not detaining Mr. Omar meant that they
    acted in good faith: the police subjectively believed they were not
    detaining Mr. Omar. They acted in good faith. A subjective belief that no
    detention is occurring is a necessary condition to a good faith detention, not
    a sufficient basis for finding good faith. Nor can a good faith finding prevail
    where an officers belief that no detention is occurring is unreasonable.

[45]

While the police may not have acted in bad faith
    in this case, an absence of bad faith does not amount to good faith:
R.
    v. Mandziak
, 2014 BCCA 41, 305 C.C.C. (3d) 497, at para.
    41, citing
R. v. Voong
, 2013 BCCA 527, 304
    C.C.C. (3d) 546, at para. 94; Steve Coughlan, Good Faith, Bad Faith and the
    Gulf Between: A Proposal for Consistent Terminology (2011) 15 Can. Crim L.
    Rev. 197, at pp. 205-207. A purely subjective approach would encourage police
    ignorance, fail to provide the necessary incentive for the police to be
    well-informed about
Charter
rights, and pay insufficient attention to
    the long-term repute of the justice system:
Grant
, at para. 61.

[46]

Accordingly, claims of good faith should be
    rejected if based upon ignorance or an unreasonable application of established
    legal standards. As the Supreme Court stated in
Grant
, at para. 74,
    ignorance of
Charter
standards must not be rewarded or encouraged and
    negligence or wilful blindness cannot be equated with good faith (see also
R.
    v. Poirier
, 2016 ONCA 582, 131 O.R. (3d) 433, at para.
    92). The Court has recently reaffirmed that good faith errors must be
    reasonable:
R. v. Paterson
, 2017 SCC 15,
    [2017] 1 S.C.R. 202, at para. 44;
R. v. Marakah
, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 65. See also,
R.
    v. Tsekouras
, 2017 ONCA 290, 353 C.C.C. (3d) 349, at
    para. 109, leave to appeal refused, [2017] S.C.C.A. No. 225;
R. v.
    Brown
, 2012 ONCA 225, 286 C.C.C. (3d) 481, at paras.
    22-26;
R. v. Buhay
, 2003 SCC 30, [2003] 1
    S.C.R. 631, at para. 59.

[47]

In this case, the police should have known that
    they were exceeding their powers in detaining the appellant.
Grant
clarified the law on what constitutes a detention. Its emphasis on
    consideration of contextual factors did not leave the officers without
    guidance.
Grant
gave the officers everything they
    needed to make a reasoned assessment. The Court explicitly warned, at para.
    133, that having done so: the Courts decision in this case will be to render
    similar conduct less justifiable going forward and that [w]hile police are
    not expected to engage in judicial refection on conflicting precedents, they
    are rightly expected to know what the law is. In my view, the trial judges
    failure to acknowledge these warnings, despite her recognition that this case
    was very close to
Grant
, led her to err in
    law in her characterization of seriousness of the
Charter
-infringing state
    conduct.

[48]

Of course, even after
Grant
, the point at which an encounter becomes a detention is not always
    clear: Trial Judges Reasons, at para. 43. By itself, however, that
    observation does not support the trial judges cursory conclusion that the detention
    of the appellant was understandable. There was no indication that the
    officers discharged their obligation to consider how things might appear to the
    two men they had stopped. Moreover, the trial judge was faced with the
    testimony of Constable Ashton that had the appellant walked away he would have
    asked him why he was leaving and followed him. The events unfolded in a way that,
    based on the
Grant
factors, should have made
    it obvious to the officers that the appellant was being detained. The trial
    judge was obliged to explain what specific features of
this
case caused the police to reasonably misunderstand their
    constitutional obligations. No such factors were identified, nor are any
    apparent to me. On the authority of
Grant
, and as explained above, this
    was a clear case of detention with strong similarities to the facts of
Grant
itself.
Grant
gave the police notice that as the
    law of detention was clarified, they were expected to act accordingly. While
    the police may not have acted maliciously or with the deliberate intention of
    violating the
Charter
, they did act in apparent ignorance of the
    appellants well-defined
Charter
rights. That makes the
    Charter-infringing state conduct serious:
R. v. Wong
, 2015 ONCA 657,
    127 O.R. (3d) 321, at para. 88;
R. v. Gonzales
,
    2017 ONCA 543, 136 O.R. (3d) 225, at paras. 168-169.

Should the evidence be excluded?

[49]

As the trial judge erred in law in assessing the
    seriousness of the
Charter
-infringing state
    conduct, her assessment of that factor and her ultimate conclusion on the
    admissibility of the evidence does not attract deference on appeal. It falls to
    this court to reconsider her assessment of the s. 24(2) issue:
Gonzales
, at paras. 162 and 166.

[50]

The first factor, the seriousness of the
Charter
-infringing
    state conduct, favours exclusion, for the reasons identified above.

[51]

The second factor, the impact of the breach on
    the appellant, also favours exclusion. As the trial judge found, the impact on
    the
Charter
-protected interests of the appellant was significant. He
    had every right to be walking down the street unimpeded by the police, and the
    police had no authority to detain him and search his person without
    justification and without informing him of his entitlements under s. 10(b).
    These are basic and fundamental rights that all individuals in this county
    enjoy and it is quite clear on the facts of this case that the police exceeded
    the established lawful limits of their powers in denying the appellant those
    rights. The trial judges assessment of this factor discloses no error.

[52]

The third
Grant
factor, societys
    interest in an adjudication on the merits, favours admission. The evidence
    obtained was entirely reliable, the offences are serious, and the Crowns case
    will collapse if the evidence is excluded.

[53]

In balancing the three
Grant
factors, I am mindful that both
Grant
and
R. v.
    Harrison
,
2009 SCC 34,
    [2009] 2 S.C.R. 494 make clear that admission of evidence obtained in violation
    of a
Charter
right cannot be supported solely on the ground that the
    offence is serious and the evidence reliable and central to the Crowns case.
    As Doherty J.A. held in
McGuffie
, at para. 63: [i]f 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. This approach,
    although not a binding formula, has been widely followed because a strong case
    for exclusion supported by the first two grounds is apt to require the
    exclusion of reliable, even crucial evidence if the repute of the
    administration of justice is to be protected: see, for example,
R.
    v. Mhlongo
, 2017 ONCA 562, 355 C.C.C. (3d) 1, at para.
    77;
R. v. Reeves
, 2017 ONCA 365, 350 C.C.C.
    (3d) 1, at paras. 99, 106, leave to appeal granted, [2017] S.C.C.A. No. 275,
    appeal heard and reserved May 17, 2018;
R. v. Davidson
, 2017 ONCA 257, 352 C.C.C. (3d) 420, at para. 53;
R. v.
    Dunkley
, 2016 ONCA 597, 131 O.R. (3d) 721, at para. 63;
Poirier
, at para. 90;
R. v. Villaroman
,
    2018 ABCA 220, at para. 30;
R. c. Stevens
,
    2016 QCCA 1707, 33 C.R. (7th) 1, at para. 89.  The guidance in
McGuffie
also accords with the Supreme Courts statements in
Grant,
at paras. 68-70,

and
R. v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253,
    at para. 108,
that to strike the right balance under s. 24(2),
    the courts 
are required  to bear in mind the long-term
    and prospective repute of the administration of justice, focusing less on the
    particular case than on the impact over time of admitting the evidence obtained
    by infringement of the constitutionally protected rights of the accused."
    The negative effects of the loss of reliable, important evidence must be
    considered, but cannot be allowed to overwhelm the other considerations.

[54]

I am, of course, aware of the grave problem
    caused by illegal guns and drugs in our society. Everyone in the criminal
    justice system appreciates fully that the public is understandably alarmed by
    the prevalence of gun violence that threatens public safety and the public looks
    to the police for protection.  I certainly do not suggest that a communitys
    desire to live free from the threat of illegal handguns is irrational or
    impulsive. The law must also recognize that the police have a very difficult
    and dangerous job to perform.

[55]

But it is also fundamental to our social order that
    the police, like all other state actors, perform their duties in accordance
    with the law and that they respect
Charter
rights. The
Charter
imposes clear limits on police authority, notwithstanding that those limits can
    inhibit the detection of gun crimes.
Grant
establishes
    that s. 24(2) analysis aims to protect the rule of law by ensuring that state
    authorities uphold
Charter
rights and respect
    the limits the
Charter
places on their
    authority: paras. 72-73. One of those limits is that the police cannot detain
    individuals without lawful justification. No doubt, being able to detain people
    at will would make the task of policing easier. However, our law provides that,
    in the absence of lawful grounds, individual liberty and the right to be able
    to walk down the street unimpeded prevails over law enforcement.
Charter
rights apply to everyone, even those alleged to have committed the most
    serious criminal offences:
Harrison
, at para. 40. Condoning random
    unauthorized stops by the police in the interests of public safety would impact
    all citizens, threaten civil liberties, and put racialized individuals at
    particular risk:
R. v. Simpson
(1993), 79
    C.C.C. (3d) 482 (Ont. C.A.), at pp. 501-502;
R. v. Brown
(2003), 64 O.R. (3d) 161 (C.A.), at para. 9; David M. Tanovich,
The
    Colour of Justice: Policing Race in Canada
(Toronto:
    Irwin Law, 2006), at pp. 1-3, 73-82, 138-141. Admitting evidence obtained in
    violation of the
Charter
always undermines
    public confidence in the rule of law to some degree, even if that effect may be
    minimal in cases where violations of the Charter are minor in nature:
Grant
, at paras. 72-74.

[56]

It is also worth recalling that there is no
    firearms exception requiring that guns obtained in breach of
Charter
rights be admitted into evidence, for the reasons I have intimated. In
Dunkley
,
    this court, citing
R. v. Fountain
, 2015 ONCA
    354, 324 C.C.C. (3d) 425, held that it is clear that there is not a different test
    for admission where the impugned evidence is a firearm (para. 53). Hourigan
    J.A. proceeded to exclude a handgun and Taser from evidence. Here, as in
Dunkley
,
    the police acted negligently albeit not wilfully and the impact on the
    accuseds rights was significant (para. 64). As the British Columbia Court of
    Appeal held in
R. v. Reddy
,
2010 BCCA 11, 251 C.C.C. (3d) 151, at para. 108, in the long-term, the repute
    of the administration of justice would be adversely affected by admitting the
    handguns found as a result of an unlawful detention and search conducted
    contrary to the law laid down by the Supreme Court.

[57]

As my colleague states, it is appropriate for
    appellate judges to reflect on the limits of their experience.
Judges
    should be encouraged to reflect on the experiences of those whose lives
    reflect different realities than their own:
Yukon Francophone School
    Board, Education Area #23 v. Yukon (Attorney General)
,
2015 SCC 25, [2015] 2 S.C.R. 282
,
    at para. 34. I agree with my colleague that appellate judges may well be
    personally insulated from the threat of illegal handguns.

[58]

However, the limited perspective of appellate
    judges ultimately cuts both ways in s. 24(2) cases.
As Binnie J.
    recognized in his concurring opinion in
Grant
, visible minorities and
    marginalized people disproportionately experience unjustified low visibility
    police interventions in their lives: at para. 154. Appellate judges may lack
    direct experience of such police interventions.
The limits of
    the judicial perspective also require judges to recognize that many unlawful
    police detentions and searches never come before the courts. As the Supreme
    Court explained in
Grant
, at para. 75:

It should also be kept in mind that for every
Charter
breach that comes before the courts, many others may go
    unidentified and unredressed because they did not turn up relevant evidence
    leading to a criminal charge.

Placing excessive weight on the fact
    that a firearm was found in a particular case before the court risks neglecting
    the reality that many cases of unlawful detentions and searches do not produce
    incriminating evidence.

[59]

These factors require that judges be conscious of how admitting
    evidence in cases of such unjustified police interventions could affect the
    long-term repute of the justice system from the perspective of long-term
    community values:
R. v. Collins
, [1987] 1 S.C.R. 265, at p. 283.

[60]

I recognize that the exclusion of a firearm from
    evidence may be seen from one perspective as producing an unpalatable result.
    But a difficult result in one case is sometimes an acceptable price to pay for
    ensuring respect for
Charter
rights:
Harrison
, at para. 42.

[61]

Ultimately, I am convinced that a proper balancing of the
Grant
factors favours exclusion of the evidence obtained in
    violation of the appellants
Charter
rights. The
    police had no lawful justification to detain the appellant. They have no excuse
    for not knowing that they violated his
Charter
rights when they did
    so. Having found that the facts of this case were very close to
Grant
,
    the trial judge erred by following the specific result in
Grant
to
    admit the evidence. The majority of the Supreme Court characterized
Grant
as a close case and upheld the decision to admit the
    evidence despite the
Charter
breach because the police were operating
    in circumstances of considerable legal uncertainty (para. 133). The same cannot
    be said about the police conduct in this case. Like in
Wong
, at para.
    88, the police conduct, while not deliberate, was unacceptable and [t]o
    admit the evidence would be to condone ignorance of
Charter
standards
    and a casual approach to the protection of
Charter
values.

DISPOSITION

[62]

Accordingly, I would allow the appeal, exclude
    the evidence and enter acquittals on all counts. The appellant has served his
    sentence and his sentence appeal is dismissed as abandoned.

Robert
    J. Sharpe J.A.

I
    agree David M. Paciocco J.A.

BROWN J.A. (dissenting):

I.

OVERVIEW

[63]

I
    respectfully disagree with my colleagues interference with the trial judges
    decision under s. 24(2) of the
Canadian Charter of Rights and Freedoms
to admit the handgun, ammunition, and cocaine into evidence. Unlike my
    colleague, I see no legal error in the trial judges assessment of the first
    factor in the s. 24(2) framework set out in
R. v. Grant,
2009 SCC 32, [2009]
    2 S.C.R. 353  the seriousness of the state conduct  that would justify
    appellate intervention.

[64]

In
    this dissent, I explain why I have reached that conclusion and why certain
    aspects of my colleagues s. 24(2) balancing exercise give me cause for
    concern.

II.

THE FACTS

[65]

To
    my colleagues summary of the facts, I would only add the following.

[66]

Mr.
    Omar was arrested for drug and firearms offences as a result of his encounter
    with two police officers on a street in Windsor in the early morning hours of
    November 19, 2015. Mr. Omar was carrying, in a concealed fashion, an
    operational, loaded Hopkins & Allen .32 calibre revolver, together with
    four loose rounds of ammunition. At the time, Mr. Omar was subject to a 2013
    order made pursuant to s. 109(2) of the
Criminal Code
that prohibited
    him from possessing any firearm for a period of ten years and from possessing a
    prohibited or restricted firearm or ammunition for life.

III.

SERIOUSNESS OF THE STATE CONDUCT

A.

The trial
    judges reasons

The findings of infringements of
Charter
rights

[67]

The
    trial judge found that Mr. Omar was detained at least by the time Constable
    Ashton told him to keep his hands out of his pockets, asked for his
    identification, and embarked on a line of questioning: at paras. 22 and 24. In
    her view, the BOLO, or be on the lookout, notice was insufficient to
    constitute reasonable suspicion to justify an investigative detention, even
    given the lateness of the hour, in light of the differences between the
    description of the suspect in the BOLO notice and Mr. Omar. There was no clear
    nexus between Mr. Omar and the two robberies that had occurred the week before.
    For those reasons, the trial judge found his detention to be arbitrary.

[68]

From
    that finding flowed the trial judges decision that the seizure of the handgun
    from Mr. Omar was unreasonable, even though the gun barrel was in plain sight:
    at paras. 30, 32 and 34. As well, the trial judge concluded the police breached
    Mr. Omars s. 10(b) right to retain and instruct counsel: at para. 38.

The trial judges s. 24(2) analysis of the seriousness of the state conduct

[69]

At
    the start of her s. 24(2) analysis, the trial judge recalled the governing
    principles articulated in
Grant
and
R. v. Harrison
, 2009 SCC
    34, [2009] 2 S.C.R. 494. Specifically, she referred to
Harrison
s
    adoption, at para. 23, of this courts reminder that [p]olice conduct can run
    the gamut from blameless conduct, through negligent conduct, to conduct
    demonstrating a blatant disregard for
Charter
rights  What is
    important is the proper placement of the police conduct along that fault line,
    not the legal label attached to the conduct.

[70]

The
    trial judge concluded that the conduct of the two officers would not fall on
    the more serious end of the spectrum. She explained why, at para. 43:

I find that Constable Ashton and Constable Haidar acted in good
    faith. They had a subjective belief that they were not detaining Mr. Omar. The
    police conduct was not abusive. Although the officers went too far in detaining
    Mr. Omar and asking him questions, the point at which an encounter becomes a
    detention is not always clear. Although I have concluded that Constable Ashton
    and Constable Haidar were in error in detaining Mr. Omar, the detention is
    understandable. The police conduct in committing the
Charter
breach
    was neither deliberate nor egregious and would not fall on the more serious end
    of the spectrum.

[71]

When
    she conducted the balancing required by
Grants
s. 24(2) framework,
    the trial judge characterized the state conduct factor as one favouring
    admission because the police subjectively believed they were not detaining Mr.
    Omar. They acted in good faith: at para. 49.

B.

The error
    committed by the trial judge identified by the majority

[72]

My
    colleague disagrees with where the trial judge placed the police conduct along
    the fault spectrum. He concludes the
Charter
-infringing state conduct
    was serious, which favoured the exclusion of the hand-gun, ammunition, and
    cocaine: at paras. 48 and 50.

[73]

As
    I read my colleagues reasons, he does not see error in the trial judges
    finding that the police officers subjectively and honestly believed that they
    had not detained the appellant: at para. 44. However, he concludes that such
    belief was not sufficient to support a finding of good faith because the
    officers conduct was based upon ignorance or an unreasonable application of established
    legal standards: at para. 46. In his view, since
Grant
clarified the
    law on what constitutes a detention, the police should have known they were
    exceeding their powers in their interaction with Mr. Omar. Even if
Grant
did
    not bring such clarity, my colleague takes the view that the trial judge failed
    to explain what specific features of this case caused the police to reasonably
    misunderstand their constitutional obligations: at para. 48. As a result, while
    the police may not have acted maliciously or with the deliberate intention of violating
    the
Charter
, the trial judge committed a legal error in finding they
    acted in good faith. That error permits appellate intervention, which leads my
    colleague to substitute his conclusion that the police conduct fell at the
    serious end of the fault spectrum because they acted in apparent ignorance of
    Mr. Omars well-defined
Charter
rights.

C.

Did
Grant
bring clarity to street interactions between the police and the public?

[74]

I
    do not share my colleagues view that
Grant
brought practical,
    on-the-street clarity to the issue of when a psychological detention occurs
    within the meaning of s. 9 of the
Charter
.

[75]

Grant
offered general guidance at the conceptual level about when a
    psychological detention occurs. However, the jurisprudence reveals that the
    application of
Grants
conceptual principles to the reality of
    street-level interactions stills leaves us in the situation described by the
    trial judge  the point at which an encounter becomes a detention is not
    always clear.

Grants
conceptual level generality

[76]

Uncertainty
    about when a detention occurs has existed throughout
Charter
jurisprudence, in large part because of the inclusion of the psychological
    element in the concept of detention. Going back to 1990, the Supreme Court in
R.
    v. Schmautz,
[1990] 1 S.C.R. 398, recognized, at p. 415, that when dealing
    with the concept of detention, it is not always easy to determine in given
    circumstances whether and when it legally occurs.

[77]

That
    difficulty could be mitigated, although not eliminated, if the law required
    police officers to remain in their cars or stations unless responding to the
    specific report of a criminal event or executing a judicially authorized
    warrant. But that is not our law. In
R. v. Suberu,
2009 SCC 33, [2009]
    2 S.C.R. 460, the Supreme Court stated, at para. 3, that [s]ection 9 of the
Charter
does not dictate that police abstain from interacting with members of the
    public until they have specific grounds to connect the individual to the
    commission of a crime.

[78]

Nevertheless,
    neighbourhood policing gives rise to a complex situation:
Grant
, at
    paras. 38 and 40. Part of that complexity lies in ascertaining when a police
    interaction with a member of the public crosses the line to create a
    psychological detention. The complexity inherent in that line-drawing exercise
    was described by the Supreme Court in
R. v. Mann,
2004 SCC 52, [2004]
    3 S.C.R. 59, at paras. 15-16 and 19:

As stated earlier, the issues in this case require the Court to
    balance individual liberty rights and privacy interests with a societal
    interest in effective policing

Nowhere do these interests collide more frequently than in the
    area of criminal investigation.
Charter
rights do not exist in a
    vacuum; they are animated at virtually every stage of police action. Given
    their mandate to investigate crime and keep the peace, police officers must be
    empowered to respond quickly, effectively, and flexibly to the diversity of
    encounters experienced daily on the front lines of policing.



"Detention" has been held to cover, in Canada, a
    broad range of encounters between police officers and members of the public.
    Even so, the police cannot be said to "detain", within the meaning of
    ss. 9 and 10 of the
Charter
, every suspect they stop for purposes of
    identification, or even interview. The person who is stopped will in all cases
    be "detained" in the sense of "delayed", or "kept
    waiting". But the constitutional rights recognized by ss. 9 and 10 of the
Charter
are not engaged by delays that involve no significant physical or psychological
    restraint.

See also:
Suberu
, at para. 23.

[79]

In
Grant
, the Supreme Court attempted to give guidance on how to conduct the
    line-drawing exercise. However, the court recognized that notwithstanding the
    guidance it gave, the difficulty inherent in the psychological detention
    line-drawing exercise would remain: where there is no physical restraint or
    legal obligation [to comply with a restrictive request or demand], it may not
    be clear whether a person has been detained: at para. 44. A state of affairs
    the court echoed contemporaneously in
Suberu
, at para. 29: The line
    between general questioning and focussed interrogation amounting to detention
    may be difficult to draw in particular cases.

[80]

Several
    years later, this court in
R. v. Atkins
, 2013 ONCA 586, 310 O.A.C. 397,
    at para. 10, acknowledged the persistence of uncertainty in the line-drawing
    exercise: The question of what qualifies as a psychological detainment is
    fraught with difficulty.

[81]

Given
    the opaqueness of the concept of psychological detention,
Grant
did
    not offer  and really could not offer - a bright-line solution for the problem
    of telling when a psychological detention begins. Instead,
Grant
provides a conceptual methodology. It identifies 13 discrete factors,
    aggregated into three categories, to guide the determination of whether the
    reasonable person in the individuals circumstances would conclude that he or
    she had been deprived by the state of the liberty of choice: at para. 44.
    Practical simplicity and predictability are not hallmarks of
Grants
conceptual framework for identifying a psychological detention; the uncertainty
    associated with multi-factor analysis is. As a result,
Grant
did not
    offer a conceptual bright-line to which police officers could look in order
    to guide their on-the-street actions.

Grants street-level uncertainty

[82]

The
    interaction between the officers and Mr. Omar took place in the early morning
    hours of November 19, 2015. What should the officers reasonably have known at
    that time about the established legal standards concerning street-level
    interactions, the benchmark against which my colleague measures their conduct?

[83]

My
    colleague points to a number of decisions, including
Grant
, to
    conclude that the officers should have known that they were exceeding their
    powers in detaining the appellant and that they were not involved in a
    borderline detention. There are other decisions, however, that suggest the
    waters of psychological detention are somewhat murkier than my colleague
    describes.

[84]

I
    start with
Grant
, the facts of which my colleague has recited. When
    did the point of detention occur? Not with the officer approaching Mr. Grant
    and making general inquiries: Such preliminary questioning is a legitimate
    exercise of police powers: at para. 47. What were the preliminary inquiries
    made in
Grant
? The officer asked the appellant what was going on,
    and requested his name and address. In response, the appellant provided a
    provincial health card: at para. 6.

[85]

The
    officer then told Mr. Grant to keep his hands in front of him. A psychological
    detention? Not necessarily. It depends on the context: This act, viewed in
    isolation, might be insufficient to indicate detention, on the ground that it
    was simply a precautionary directive: at para. 48. However, in
Grant
,
    consideration of the entire context of what transpired from this point forward
    leads to the conclusion that Mr. Grant was detained: at para. 48.

[86]

The
    message to police officers? Telling a person to keep his hands in front of him
    may, or may not, create a psychological detention. It depends on what you do
    next  the ensuing context.

[87]

When
    in
Grant
did the police cross the psychological detention line? Para.
    49 of the majoritys reasons appears to provide the answer:

Two other officers approached, flashing their badges and taking
    tactical adversarial positions behind Cst. Gomes. The encounter developed into
    one where Mr. Grant was singled out as the object of particularized suspicion,
    as evidenced by the conduct of the officers.
The nature
    of the questioning changed from ascertaining the appellants identity to
    determining whether he had anything that he should not
. At this point
    the encounter took on the character of an interrogation, going from general
    neighbourhood policing to a situation where the police had effectively taken
    control over the appellant and were attempting to elicit incriminating
    information. [Emphasis added.]

[88]

In
    her concurring reasons in
Grant
, at para. 191, Deschamps J. also pinpointed
    the police conduct that amounted to a detention as the point of time when the
    constable asked Mr. Grant if he had committed a crime.

[89]

A
    police officer could walk away from reading
Grant
thinking that engaging
    a person in conversation on the street, asking for identification, and telling
    the person to keep his hands in front of him does not necessarily create a
    state of psychological detention. In
Grant
, it was what happened after
    that point which crossed the line.

[90]

Such
    a reading of
Grant
may explain why the trial judge, having found the
    police were in error in detaining Mr. Omar, nonetheless commented that the
    detention is understandable. Such a reading certainly would support the trial
    judges ultimate conclusion that the police conduct would not fall on the more
    serious end of the spectrum.

[91]

Before
    leaving
Grant
, I would note that several of the factors relied upon by
    the court in
Grant
to conclude that a psychological detention had
    arisen are not found in the present case:

·

Additional officers did not take tactical adversarial positions
    behind Mr. Omar  Constable Haidar took the identification provided by Mr. Omar
    back to the cruiser while Constable Ashton continued to talk with the two men;

·

In that conversation, Constable Ashton did not single out Mr.
    Omar and ask him whether he had anything that he should not or if he had
    committed a crime;

·

It was in that context that Constable Ashton asked both men to
    remove their hands from their pockets.

[92]

Suberu
was a companion case to
Grant
. The analysis in
Suberu
illustrates the fluidity of the contextual psychological detention line-drawing
    exercise. There, one officer followed Mr. Suberu out of a retail store where
    the police were investigating the use of a stolen credit card. The officer said:
    Wait a minute. I need to talk to you before you go anywhere; at para. 9. The
    Supreme Court concluded that this constituted preliminary questioning in the
    circumstances, not a detention: at para. 33.

[93]

Two
    decisions of this court -
Atkins
and
R. v. Fountain
, 2015
    ONCA 354, 324 C.C.C. (3d) 425,  considered similar conduct by police officers
    that initiated interactions with young men walking along city streets. In
Atkins
,
    the officers were in a van when they called to the young man  hey, hey
    buddy  and waved at him to come over. In that case, the appellant argued that
    he was arbitrarily detained when the officer commanded him to come to the van
    with her verbal calls and when she waved. The trial judge rejected that
    submission. This court upheld the trial judge.

[94]

Fountain
,
    decided two years later, involved a young man who was walking past a police car
    when an officer called him over for questioning. The officer had dealt before
    with the young man or his brother and believed that a warrant was out for one
    of them. In
Fountain
, this court concluded that the officer had
    unlawfully detained the young man from the moment he called out to him, from
    the outset of their conversation: at paras. 17 and 21.

[95]

Atkins
and
Fountain
considered very similar initiating conduct by the police,
    yet they reached different conclusions about whether that conduct amounted to a
    psychological detention, no doubt driven by different contextual analyses.

[96]

More
    recently in
R. v. Le
, 2018 ONCA 56, 360 C.C.C. (3d) 324, leave to
    appeal granted, [2018] S.C.C.A. No. 34, appeal heard and reserved October 12,
    2018, this court considered circumstances where officers entered the backyard
    of a townhouse from a paved pathway running through the complex. They asked a
    group of young men in the backyard what they were doing and whether any of them
    lived there. During the course of the interaction one officer turned to the
    accused, who was standing, and asked him for identification. The accused
    replied that he did not have any. From the way the accused was standing, the
    officer thought he was blading his body to conceal something. The officer asked
    what the accused had in his bag. At that point, the accused fled. The accused
    argued that a psychological detention arose from the moment the police had entered
    the backyard. The majority of this court disagreed, finding that a detention
    did not arise until the police asked the accused what was in his bag: at paras.
    62-65.

[97]

I
    have reviewed these cases to illustrate that the conceptual certainty of
Grants
established legal standards, which underpins my colleagues critique of the
    trial judges approach to the first
Grant
factor, in reality becomes
    fuzzy when applied to the specifics of a particular case. The conflicting
    results of this court in
Atkins
and
Fountain
, decided only
    two years apart, exemplify the lack of certainty and practical on-the-street
    guidance offered by the s. 9 jurisprudence in the context of community policing
    interactions.

Application to the present case

[98]

My
    colleague finds legal error in the trial judges conclusion that the police
    officers acted in good faith. He writes that claims of good faith should be
    rejected if based upon ignorance or an unreasonable application of established
    legal standards. Respectfully, that puts the proposition too broadly.

[99]

True,
    in
R. v. Paterson
, 2017 SCC 15, [2017] 1 S.C.R. 202, the majority of
    the Supreme Court cautioned, at para. 44, that negligence in meeting
Charter
standards cannot be equated to good faith. Yet, five years earlier, in
R.
    v. Aucoin
, 2012 SCC 66, [2012] 3 S.C.R. 408, the Supreme Court concluded
    that notwithstanding an officer was manifestly mistaken about his authority to
    put a person in the rear of his cruiser, thereby erring in his understanding of
    the law, the court was satisfied that, having regard to all the trial judges
    findings of fact, the officer was acting in good faith: at paras. 46 and 49.
Aucoin
suggests that any review of a trial judges good faith conclusion must take
    into account all her findings of fact about the police conduct.

[100]

Therein lies my
    primary disagreement with my colleagues critique of the trial judges reasons
     its focus is too narrow. While the trial judge found that the officers acted
    in good faith, her key finding in regard to the first
Grant
factor was
    that the conduct of the police would not fall on the more serious end of the
    spectrum. I cannot agree that when the trial judges reasons are read as a
    whole, that key finding amounts to reversible legal error sufficient to set
    aside her s. 24(2) analysis.

[101]

As I read his
    reasons, my colleague does not take issue with several of the findings
    underpinning the trial judges decision:

·

The police had a subjective belief they were not detaining Mr.
    Omar;

·

Their conduct was not abusive; and

·

The
Charter
breach was not deliberate.

Those findings are not tainted by error. Accordingly,
    this court cannot disregard them and simply embark on its own assessment of
    the seriousness of the breach:
R. v. MacMillan
, 2013 ONCA 109, 114
    O.R. (3d) 506, at para. 44.

[102]

My colleague
    focuses on what he considers to be the officers ignorance of the law. As I
    attempted to show earlier in these reasons, although the after-the-fact 13-factor
    contextual analysis to determine whether a person is detained psychologically
    constitutes an established legal standard, it hardly offers certain, real-time
    guidance to police officers about where the line demarking a psychological
    detention begins. I would not characterize the inherent difficulty in applying
    a 13-factor analysis as ignorance of the law.

[103]

The portions of
Grant
to which I have referred in paras. 84 to 89 above make it debatable whether a
    psychological detention occurred in the present case, as submitted by the
    respondent Crown in its factum. Arguably, it could have gone either way. The
    trial judge made her call. It was a reasonable one, entitled to deference.

[104]

My colleague
    finds support for his conclusion in the trial judges failure to elaborate in
    her reasons about why the detention is understandable. In my view, when the
    paragraph in which that statement is found is read a whole, her meaning is
    apparent. I explained my understanding of what the trial judge meant in para. 90
    above. In any event, I do not think anything turns on that single phrase; the
    trial judges reasons must be read in their entirety.

[105]

In sum, the
    trial judge faced a situation where: she found the officers testimony to be
    credible  indeed, she preferred their evidence about what had transpired
    during the interaction over that of Mr. Omar; she accepted their evidence that
    they subjectively believed that they were not detaining Mr. Omar; she found
    that their conduct was not abusive; she found that they did not deliberately
    breach Mr. Omars
Charter
rights; and she quite accurately stated that
    the law is not always clear about the point at which an encounter becomes a
    detention. Moreover, as I pointed out in para. 91 above, material differences
    exist between the circumstances in
Grant
and those in the present case.
    Unlike in
Grant
, the police did not engage in tactical adversarial positioning
    and did not ask Mr. Omar whether he had committed a crime. In those
    circumstances, I see no legal error in the trial judges finding that the
    officers conduct would not fall on the more serious end of the spectrum.

[106]

Yet, my
    colleague not only concludes that Mr. Omar was detained in a similar manner to
    the appellant in
Grant
, but that certain features of this case
    arguably make for an even clearer case of detention than in
Grant
,
    specifically: the police engaging Mr. Omar and his companion late at night in a
    remote part of Windsor; shining a spotlight on them; and asking them to come
    over to their cruiser. With the utmost respect to my colleague, I have great
    difficulty reconciling that conclusion with the jurisprudence on the power of
    the police to engage members of the public on the street in the course of their
    duties that I set out earlier in these reasons.

D.

Conclusion

[107]

Consequently, I do
    not agree with my colleagues conclusion that the trial judge erred in law in
    assessing the seriousness of the
Charter
-infringing state conduct. I see
    no legal error in the trial judges treatment of the first
Grant
factor. My colleague does not point to any other legal error in the trial
    judges consideration and balancing of the s. 24(2) factors. Accordingly, I see
    no justification for appellate interference with her s. 24(2) analysis and
    admission of the handgun, ammunition, and cocaine into evidence. It follows
    that I would dismiss the appeal.

IV.

THE BALANCING OF THE
GRANT
FACTORS

[108]

Although my
    determination that the trial judge did not err in her application of the
Grant
factors is sufficient to deal with the appeal, I wish to comment on two aspects
    of my colleagues s. 24(2) balancing exercise: (i) the way in which he applies
    certain statements in this courts decision in
R. v. McGuffie
, 2016
    ONCA 365, 131 O.R. (3d) 643; and (ii) his treatment of the third
Grant
factor.

A.

Treatment
    of
McGuffie

[109]

One can read my
    colleagues s. 24(2) balancing analysis as promoting an approach that risks re-injecting
    into the s. 24(2) analysis a rigidity that
Grant
professed to reject. Specifically,
    my concern lies with para. 53 of my colleagues reasons where he writes:

In balancing the three
Grant
factors, I am mindful
    that both
Grant
and
R. v. Harrison,
2009 SCC 34, [2009] 2
    S.C.R. 494 make clear that admission of evidence obtained in violation of a
Charter
right cannot be supported solely on the ground that the offence is serious
    and the evidence reliable and central to the Crowns case. As Doherty J.A. held
    in
McGuffie
, at para. 63: [i]f 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. This approach has been widely followed [citations
    omitted]. The guidance in
McGuffie
also accords with the Supreme
    Courts statements in
Grant,
at paras. 68-70,

and
R. v.
    Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 108, that to strike the
    right balance under s. 24(2), the courts are 
are required  to
    bear in mind the long-term and prospective repute of the administration of
    justice, focusing less on the particular case than on the impact over time of
    admitting the evidence obtained by infringement of the constitutionally
    protected rights of the accused."

[110]

Recall that
Grants
s. 24(2) analysis was formulated in reaction to the perceived rigidity of the
    s. 24(2) framework that emerged from
R. v. Collins
, [1987] 1 S.C.R.
    265, and
R. v. Stillman
, [1997] 1 S.C.R. 607, as well as the
    inconsistency of that framework with the constitutional language of s. 24(2).
    The Supreme Court described the problem with the
Collins/Stillman
framework at paras. 64 and 65 of
Grant
:

Stillman
held that conscriptive evidence is generally
    inadmissible  because of its presumed impact on trial fairness  unless if it
    would have been independently discovered. Despite reminders that all the
    circumstances must always be considered under s. 24(2)
Stillman
has
    generally been read as creating an all-but-automatic exclusionary rule for
    non-discoverable conscriptive evidence, broadening the category of conscriptive
    evidence and increasing its importance to the ultimate decision on
    admissibility.

This general rule of inadmissibility of
    all non-discoverable conscriptive evidence, whether intended by Stillman or
    not, seems to go against the requirement of s. 24(2) that the court determining
    admissibility must consider all the circumstances
.
[Citations
    omitted; Emphasis added.]

[111]

In reaction
    against the all-but-automatic exclusionary rule for certain evidence under
    the
Collins/Stillman
framework, the Supreme Court in
Grant
articulated the three-category approach for any s. 24(2) analysis and stated,
    at para. 71, that [t]he courts role on a s. 24(2) application is to balance
    the assessments under each of these lines of inquiry to determine whether,
    considering all the circumstances, admission of the evidence would bring the
    administration of justice into disrepute.

[112]

That any s.
    24(2) analysis must be open to all the circumstances, as mandated by the constitutional
    text, was emphasized by the Supreme Court at para. 86 of
Grant
:

In all cases, it is the task of the trial judge to weigh the
    various indications.
No overarching rule
    governs how the balance is to be struck.
Mathematical precision is
    obviously not possible. However, the preceding analysis creates a decision
    tree, albeit more flexible than the
Stillman
self-incrimination
    test. We believe this to be required by the words of s. 24(2). [Emphasis
    added.]

[113]

I recognize that
    portions of
Grant
and, more recently,
Paterson
, could be read
    as placing constraints on just how open any subsequent s. 24(2) analysis really
    can be to all the circumstances:

·

In
Grant
, the court identified certain patterns with
    respect to particular types of evidence that serve as guides to judges faced
    with s. 24(2) applications in future cases:
Grant
, at paras. 86, 92,111
    and 127;

·

It went on to describe the balancing exercise as qualitative in
    nature and therefore not capable of mathematical precision:
Grant
, at
    para. 140. Presumably, it is not open to a court to place the three
Grant
factors
    on scales of one through ten and, having assigned a score for each factor,
    proceed to calculate the net result;

·

In respect of the third
Grant
factor, the court stated
    that while the seriousness of the alleged offence may be a valid
    consideration, it has the potential to cut both ways:
Grant
, at para.
    84; and

·

Finally, in
Paterson
, the majority stated that it is
    important not to allow the third
Grant
2009 factor of societys
    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 appellants
Charter
right: at
    para. 56.

[114]

Nonetheless, I
    read the Supreme Courts post-
Grant
jurisprudence as continuing to
    apply the in all the circumstances approach to a s. 24(2) analysis; it has
    not discarded the direction that [n]o overarching rule governs how the balance
    is to be struck:
Grant,
at para. 86.

[115]

The trial judge
    followed
Grants
direction to consider all the circumstances; she
    referred specifically to the summary of those directions contained in
Harrison
,
    at para. 36.

[116]

In contrast, my
    colleague starts his balancing of the
Grant
factors by stating that
    the admission of evidence obtained in violation of a
Charter
right cannot be supported solely
    on the ground that the offence is serious and the evidence reliable and central
    to the Crowns case. He then proceeds to rely on the statement made by Doherty
    J.A. in
McGuffie
, at para. 63,
    that [i]f 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.

[117]

McGuffie
involved findings of very serious
Charter
breaches: (i) a breach of s.
    9 rights, where an initial lawful investigative detention turned into a lengthy
    (90 minute)
de facto
arrest when no grounds to arrest existed; (ii) a
    lengthy denial of s. 10(b) rights; and (iii) several unlawful searches of the
    accused, including an unreasonably conducted strip search. It was in that
    context that Doherty J.A., stated, at para. 63:

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.]

[118]

A considerable
    distance exists between the nature of the police conduct in
McGuffie
and
    that in the present case. In
McGuffie
, Doherty J.A. held that: there
    was an overwhelming case for exclusion; the police misconduct fell at the
    very serious end of the continuum; the police breaches had a profound impact
    on the appellants
Charter
-protected interests; and, the search was
    highly intrusive: at paras. 75-76, 79, 82. Overall, the police demonstrated a
    blatant disregard for the appellants constitutional rights: at para. 83. By
    contrast, in the present case there was a brief detention before Mr. Omar
    revealed his handgun when he removed his hands from his pockets, no physical
    contact and, as the trial judge found, the officers conduct was not abusive.

[119]

I am concerned
    that if the statements in
McGuffie
are taken out of the context in
    which they were made - findings of very serious, intrusive breaches of
Charter
rights amounting to a blatant disregard of constitutional rights  and
    applied to police conduct that stands at the less serious end of the fault
    spectrum, courts risk turning those statements in
McGuffie
into a kind
    of two-strikes-and-the-evidence-is-out rule. That, in turn, would create
    three risks:

·

A return to the days of a kind of all-but-automatic exclusionary
    rule, which the Supreme Court rejected in
Grant
by directing that
    [n]o overarching rule governs how the balance is to be struck: at para. 86;

·

Ignoring
Patersons
recognition, at para. 54, that s.
    24(2) involves balancing mutually incommensurable factors, thereby
    necessitating the consideration of all three factors; and

·

Effectively subordinating the third
Grant
factor to a
    position where it would play no practical role in the balancing exercise; it
    would be neutered.

[120]

I would note
    that in
Paterson
the majority described the result of their s. 24(2)
    balancing as a close call: at para. 54. Although in that close call case
    the majority referred to the
McGuffie
decision, it did not refer to or
    comment on the statements from
McGuffie
relied upon by my colleague.

[121]

I think the s.
    24(2) balancing exercise must remain open to the Supreme Courts direction to
    follow the constitutional text  in all the circumstances  and eschew any
    overarching rule as to how the balance is to be struck.

B.

The
    treatment of
Grants
third factor in gun cases

[122]

In dealing with
    the third
Grant
factor in his s. 24(2) balancing exercise, my colleague
    states, at para. 56, that [i]t is also worth recalling that there is no
    firearms exception requiring that guns obtained in breach of
Charter
rights be admitted into evidence.

[123]

I do not quarrel
    with that proposition, put that way. However, I would respectfully submit that
    to fail to give some recognition to the distinctive feature of illegal handguns
     which are used to kill people or threaten them with physical harm, nothing
    else  and, instead, to treat them as fungible with any other piece of evidence
    risks distorting the
Charters
s. 24(2) analysis by wrenching it out
    of the real-world context in which it must operate.

[124]

As interpreted
    by the jurisprudence, the legal rights and freedoms enumerated in the
Charter
attach to an autonomous person. However, both the text of the
Charter
and the jurisprudence recognize that the legal (and philosophical) construct of
    the autonomous person must bend to the reality that we all depend upon and
    interact with others as we go about living our daily lives. Most of us live in
    community with others, many in dense urban environments. Few of us live in the
    splendid solitude of the notionally autonomous person.

[125]

In the
Charter
,
    the I of the autonomous rights-bearing person meets up with the We of the
    community in ss. 1 and 24(2). Under both sections, the
Charter
vests
    in the judiciary the job of striking some sort of balance between the construct
    of the autonomous person and the reality of living together in community.

[126]

In the case of
    s. 24(2), the judiciary must determine whether evidence obtained in a manner
    that infringed or denied any
Charter
right or freedom should be
    admitted or excluded from a criminal proceeding: more specifically, whether
    having regard to all the circumstances the admission of such evidence in the
    proceedings would bring the administration of justice into disrepute.

[127]

To do so, the
    case law instructs that a judge is required to view the matter through the
    eyes of the reasonable man, dispassionate and fully apprised of the
    circumstances of the case, grounding his or her discretion in the long term
    community values, and ensuring that he or she does not render a decision that
    would be unacceptable to the community when that community is not being wrought
    with passion or otherwise under passing stress due to current events:
Collins
, at pp. 283-84.

[128]

Although
Collins
puts judges into the position of acting as the reasonable person fostering
    long term community values when deciding under s. 24(2) whether to admit or
    exclude evidence, such as an illegal handgun, practical limits exist on the
    perspective judges bring to that task.

[129]

Why is that?

[130]

Because the
    lethal problem posed by illegal handguns often seems remote from our daily
    judicial lives: we tend to live in safe residential areas; and we work in
    highly secure courthouses. The problem may directly touch others in the
    community; but for most of us it is a problem only read about in the media. As
    a result, we judges can be tempted to conceptualize issues under 24(2) in a
    somewhat abstract fashion, making decisions in an environment some distance
    removed from that where their real-life impact will be felt.

[131]

The risk of
    remoteness is even greater for appellate judges. The distance that separates us
    from the community in which we live was pointedly described by Doherty J.A. in
R.
    v. R.R.
, 2008 ONCA 497, 90 O.R. (3d) 641, where he stated, at para. 16,
    that [d]ispositions in criminal matters made in the detached, rarefied climate
    of the appeal court, years after the relevant events, by a court with virtually
    no connection to the place or people affected by the allegation are not the
    ideal way to resolve criminal cases.

[132]

Accordingly,
    when we review decisions made under s. 24(2) by trial judges, appellate judges
    need to be alive to the limits of the perspective offered by the rarefied and
    detached environment in which we operate. The perspective we bring to a s.
    24(2) analysis is one formed in a lived environment quite different from that of
    most of our fellow citizens. Recalling the range of circumstances in which
    members of our community live and work is particularly important when the
    security of the larger community is one issue in play, as it always is when the
    s. 24(2) analysis considers the admission or exclusion of an illegal handgun.

[133]

My colleague,
    faithful to the jurisprudence, points to language from the Supreme Court directing
    that when judges conduct s. 24(2) exercises they must focus on the long-term
    repute of the justice system:
Grant
, at para. 84. Indeed, in
Grant
the majority used even more colourful language stating, at para. 84, that: The
    short-term public clamour for a conviction in a particular case must not deafen
    the s. 24(2) judge to the longer-term repute of the administration of justice.

[134]

In the present
    case, there was no evidence of any short-term public clamour for a conviction
    of Mr. Omar. I suspect that it was a media non-event: just another young drug-dealer
    carrying a concealed illegal handgun. A chronic, everyday event in most Ontario
    urban centres.

[135]

However, a
    communitys desire to live free from the lethal threat of illegal handguns is not
    the product of a community wrought with passion or otherwise under passing
    stress due to current events. It is a most rational desire for a necessary
    component of the rule of law - the existence of a safe and ordered community in
    which individuals have the ability to exercise their liberty rights free from
    fear and threat of harm to their persons. As
Grant
teaches, the term
    administration of justice in s. 24(2) is not limited to the processes by
    which those who break the law are investigated, charged and tried, but it more
    broadly embraces
maintaining the rule of law
and upholding
Charter
rights in the justice system as a whole: at para. 67 (emphasis added).

[136]

We judges must
    never forget the impact that our decisions have on the day-to-day reality in
    which most of our fellow Canadians live  and from which we are by and large insulated.

[137]

I completely agree
    with my colleague that it is fundamental to our social order that the police,
    like all other state actors, perform their duties in accordance with the law
    and that they respect
Charter
rights: at para. 55. At the same time, it
    is equally fundamental to our social order that Canadian citizens can walk
    their public streets and exercise their
Charter
liberty rights without
    finding themselves at the wrong end of an illegal handgun. In
R. v. Chan
,
    2013 ABCA 385, 561 A.R. 347, the Alberta Court of Appeal put the matter as
    follows, at para. 49: [W]e consider societys interest in the adjudication of
    the merits to be greater where the offence is one that so literally involves
    the safety of the community.

[138]

It is, of
    course, a matter of balance under s. 24(2). But the balance necessary to offer
    Canadians a peaceful community in which to live is not achieved by neutering
    the third
Grant
factor and treating illegal handguns as fungible with
    any other kind of evidence for the purposes of a s. 24(2) analysis.


V.

DISPOSITION

[139]

For the reasons
    set out above, I would dismiss the appeal.

Released: December 4, 2018

David Brown J.A.


