COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Atkins, 2013 ONCA 586

DATE: 20130927

DOCKET: C56642

Rosenberg, Lauwers and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rowan Atkins

Appellant

B. Vandebeek, for the appellant

Shawn Porter, for the respondent

Heard: September 17, 2013

On appeal from the conviction entered on January 25, 2013 by Justice Faye E. McWatt of the Superior Court of Justice, sitting without a jury.

By the Court:

[1]          The appellant appeals from the judgment of McWatt J. convicting him of several gun-related offences. The appeal turns on the trial judge’s ruling that the appellant’s rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms were not infringed. Notwithstanding Ms. Vandebeek’s very helpful submissions, for the following reasons we are satisfied that the trial judge did not err in her conclusion that there was no violation of the appellant’s rights.

[2]          The appellant is a young black male.  On New Year’s Eve, in 2010, three police officers were in a van driving southbound on Spadina Avenue in Toronto in the curb lane approaching Queen Street.  The van was unmarked.

[3]          The officers noticed the appellant as he walked southbound on the west side of Spadina Avenue.  He was wearing a heavy, baggy winter coat, layered over a hooded sweatshirt.  The officers considered the appellant to be over-dressed for the weather, since it was seven degrees Celsius and many people wore light jackets and others no jackets at all.  They also testified that the appellant appeared noticeably withdrawn while others around him were in a sociable mood.  He seemed to be hiding in the crowd and skirting the building walls.  This attracted their suspicion. The trial judge found that there was no evidence that the police officers knew the appellant was a black male when they first noticed him.

[4]          The officers decided to speak with the appellant.  Officer Fabiszewska called “hey” to him out of the van’s opened window.  The appellant glanced back but kept walking.  The van moved further south on Spadina Avenue and the officer called “hey buddy” a little louder to the appellant.  He turned towards Officer Fabiszewska.  She waved with her right hand for the appellant to come over.  She then got out of the van with Office McQueen. They were both in full uniform. The appellant took a couple of steps toward them as if he was going to speak with them, but then started running.

[5]          Officer Yurkiw, the third officer, pursued the appellant as he ran towards what the officer called “a high crime district.”  After about 300 metres he caught, cuffed and searched the appellant.  The appellant was carrying a loaded nine millimetre handgun.  He was charged and convicted with possession of a restricted firearm and with two counts of possession of a firearm in contravention of a prohibition order. 

[6]          The trial judge considered, on a voir dire, whether the appellant was arbitrarily detained under s. 9 of the Canadian Charter of Rights and Freedoms.

The applicant contends that he was arbitrarily detained when Officer Fabiszewska commanded him to come to them with her verbal calls and when she waved from the unmarked van.  This finding of fact would be premised on my accepting that Mr. Atkins knew that she and the others were police officers.  However, there is no evidence to support that Mr. Atkins knew, at the time Officer Fabiszewska beckoned to him, that she and the others were police.

First, there is no evidence from the applicant about what he saw or knew when the officer waved him over to the van.  There is no evidence from him that he saw they were police and it is easier to conclude on the evidence in this case that he did not realize they were police until the two female officers began to alight from the vehicle.

…

I also cannot find that the officer directed or ordered Mr. Atkins to do anything.  There was no significant physical or psychological restraint.

I can only find on these facts that Mr. Atkins ran before he was stopped to be spoken to by police.  On the evidence, it cannot be said that this case even proceeded to one of the broad range of encounters between police and members of the public discussed by the Supreme Court of Canada in R. v. Mann, 2004 W.C.C. 52 (CanLII) at para. 19.

There was no physical detention.  There was no psychological detention as set out by the Ontario Court of Appeal in R. v. Grant “which crystallized during a conversation with a police officer”.

I cannot find, without more from the applicant, that Officer Fabiszewska’s “hey”, “hey buddy” and waves to him to come talk to her was a police command.  Clearly Mr. Atkins would have to believe the officer was commanding him to come over.  There was no objective evidence to support that he did.

There is insufficient evidence to support that Mr. Atkins believed he was complying with any police command when he took a couple of steps towards the van. [Emphasis added.]

[7]          The context plainly shows, as the trial judge found, that when the appellant decided to run he knew full well that it was the police who had summoned him. 

[8]          The appellant asks this court to find that the interaction between the officers and the appellant on the sidewalk amounted to a psychological detention.  Counsel argues: “there is no question that the appellant knew he was dealing with the police (they were in full uniform), stopped as a result of a police demand, started to comply with their demand, and only then fled.  These circumstances amount to a detention as set out by Supreme Court of Canada in R. v. Grant [[2009]2 SCR 353].” 

[9]          The appellant also puts into issue the role of flight, contrasting this court’s decision in Nesbeth, [2008] O.J. No. 3086 with R. v. Reddy, [2010] B.C.J. No. 49 (C.A.).  In Nesbeth this court concluded that the appellant was not detained because he did not actually comply with the demand, as the court noted at paras. 14-16, picking up on the decision in R. v. Grant (2006), 209 C.C.C. (3d) 2 5^th (C.A.) at para. 28. In R. v. Reddy, the discussion is found at paras. 57, 58 and 61.  At para. 62, Frankel J.A. said:

The only conclusion I can reach on an objective assessment of the facts in this case is that Mr. Reddy was detained.  A reasonable person directed by a police officer to get out of a vehicle would not question or challenge the officer’s authority, but would comply in the belief that he or she had no other option.  That Mr. Reddy did not remain at the curb for very long [because he ran] does not negate the fact that he was detained at the beginning of his encounter with Constable Todd.

[10]       The question of what qualifies as a psychological detainment is fraught with difficulty, as the Supreme Court pointed out in Grant at paras. 30-44. Would a young black man, being a “reasonable person” (para. 41 of Grant), and being a member of a minority (para. 44(2)(c) of Grant), “conclude he or she had no choice but to comply with a police officer’s request.”  The fact that the appellant ran may well be some evidence that he believed that he had no choice but to comply, and instead of complying, decided to escape.  However, as the trial judge recognized, if the appellant did not acquiesce or submit to any deprivation of liberty, there could be no detention.

[11]       The further difficulty with counsel’s argument that the appellant was psychologically detained is that the appellant did not testify on the voir dire, leaving no evidence on which the trial judge could conclude, even based on the appellant’s subjective perception of his choices at the moment that he was summoned, that he was psychologically detained. 

[12]       The appellant attempts to circumvent the problem of lack of submission or acquiescence by arguing that the trial judge erred in failing to consider the evidence of Officer McQueen that showed that the appellant recognized the people in the van were police officers when he took two steps toward them. There was evidence upon which the trial judge could find that the appellant did not recognize that the people in the van were police officers and that accordingly he did not change his direction of travel in response to a demand from a person in authority. While some of the answers given by Officer McQueen in cross-examination support the appellant’s position, other parts of her evidence are less clear and the evidence from the other officers supports the trial judge’s conclusion. In any event, even if the appellant did recognize the people in the van as police officers, it was not shown that the words from Constable Fabiszewska created a detention. Moreover, even more directory comments from a police officer have been found not to create a detention, see R. v. Suberu, 2009 SCC 33 at paras. 24-8.

[13]       Accordingly, the trial judge did not err in finding that the appellant’s rights under s. 9 of the Charter were not infringed.

[14]       We are also satisfied that it was open to the trial judge to find that, in all the circumstances, the officers had the requisite reasonable suspicion to detain the appellant. We should not be taken as holding that merely because a person flees from the police, there are grounds to detain the person. In this case, there was other information that the trial judge could rely upon to find the officers had a reasonable suspicion within the meaning of R. v. Mann, 2004 SCC 52.  Accordingly, the trial judge did not err in finding that the appellant’s rights under s. 9 of the Charter were not infringed.

[15]       The pat-down search that followed the detention was justified on officer safety grounds. The officers reasonably suspected that the appellant was in possession of a weapon. While at the instance of the search, the appellant could not reach any weapon because he was handcuffed, once the investigative detention ended the officer would have to remove the handcuffs and he would have been in immediate danger. There was therefore no violation of the appellant’s rights under s. 8 of the Charter.

[16]       Accordingly, the appeal from conviction is dismissed.

Released: September 26, 2013 (“P.D.L.”)

“M. Rosenberg J.A.”

“P. Lauwers J.A.”

“G.R. Strathy J.A.”