R v Tetreault, 2016 ABQB 373

Court of Queen ’ s Bench of Alberta Citation: R v Tetreault, 2016 ABQB 373 Date: 20160629 Docket: 140796327Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Brent Michael Tetreault Accused _______________________________________________________ Reasons for Judgment on a Voir Dire of the Honourable Mr. Justice W.N. Renke _______________________________________________________ Table of Contents Introduction . 2 1. When was Mr. Tetreault “detained”? . 4 2. Was Mr. Tetreault properly the subject of an “investigative detention” or was he arbitrarily detained? 6 (

a) subjective suspicion . 7 (

b) specificity of suspected criminal activity . 8 (

c) reasonable suspicion . 11 (

i) the approach to “reasonable suspicion” . 11 (ii) assessment of the reasonableness of Constables Rauf and Howell’s suspicions . 17 3. Was Cst. Howell’s “safety search” of Mr. Tetreault legally authorized? . 25 (

a) rules governing safety searches . 25 (

i) belief vs suspicion . 27 (ii) threat to safety . 27

(iii) totality of the circumstances . 28 (iv) real world perspective . 28 (

b) application of the reasonable belief in a threat to public or police safety test 29 (

i) subjective belief . 29 (ii) reasonableness of belief in threat to police or public safety . 30 4. Was Mr. Tetreault properly advised of the reasons for his detention under s. 10(

a) of the Charter ? 31 (

a) the conversation at the door 31 (

b) Were the police entitled to “hold off” on advising Mr. Tetreault of the reasons for his detention? 32 5. Were any statements made by Mr. Tetreault in the course of his interaction with the police inadmissible under the common law voluntariness rules? . 34 (

a) what was allegedly said by Mr. Tetreault 34 (

b) voluntariness . 35 6. If any Charter violations occurred in the course of Mr. Tetreault’s detention, must evidence gathered as a result be excluded under s. 24(2) of the Charter ? . 36 (

a) society’s interest in the adjudication of the case on its merits . 38 (

b) the seriousness of the Charter -infringing conduct 38 (

c) impact of the breach on the Charter -protected rights of the accused . 39 (

d) the balance . 40 This is an edited version of a Judgment delivered orally. Introduction [ 1 ] Mr. Tetreault found himself in the wrong place at the wrong time. The members of the Edmonton Police Service involved in his detention found themselves in the right place for the wrong reasons. In the result, Mr. Tetreault faces a 15-count indictment, respecting production, possession, and possession for the purposes trafficking of illegal drugs, firearms-related offences, breach of a probation order, and some additional offences.

Upon the matter coming on for trial a voir dire was held to determine whether certain evidence seized following Mr. Tetreault’s detention should be excluded. Mr. Tetreault did not testify in the voir dire . Mr. Tetreault’s detention, subsequent arrest, and the seizure of the evidence arose from the following general circumstances. [ 2 ] On November 10, 2013, the Edmonton Police Service received a firearms complaint from a cab driver (Ogbay Gaim) about a fare, described as a blond young Caucasian woman with a pony-tail and black purse containing a handgun.

A group of EPS members were dispatched to interview the cab driver and investigate. Based on an online search of police records, it was determined that the fare could have been an older Caucasian female “SC” who had some criminal involvement and lived (or might have lived) in a suite in an apartment building close to where the fare was dropped off. The members therefore attended at this apartment building. As the members reached the third floor where the target suite was located, they heard a raised male voice use the word “shoot.” The members approached the suite. Mr.

Tetreault walked out of the suite with a dog. He apparently saw the members advancing and retreated back inside the suite. Two members were close enough to prevent him from completely closing the door. Following discussions between Mr. Tetreault and one of the officers through the partially opened door, Mr. Tetreault came out. He was placed under “investigative detention” and searched. A substantial amount of cocaine was found in his pants pocket. Another occupant of the suite allowed the members to enter the suite. Drugs and drug paraphernalia were observed.

Subsequently a warrant was obtained and items were seized. [SC, it turned out, no longer had any connection to the suite and had no connection to Mr. Tetreault. I have therefore used her initials only.] [ 3 ] Mr. Tetreault’s application to exclude evidence proceeded on narrow grounds.

He did not challenge • the constitutionality of any legislation or common law rules supporting the search and seizure; • the reasonableness of the manner of the search and seizure; • the search warrant under which the items in the suite were seized; or • the holding and securing of the premises by members pending the arrival of the warrant. No argument under 10(

b) of the Charter was advanced in connection with Mr. Tetreault’s detention. Mr. Tetreault did not argue that under s. 10(

a) of the Charter the police were required to advise him of the reasons for searching him, as opposed to advising him of the

reasons for his detention. Mr. Tetreault did not seek the exclusion of evidence based on a reasonable expectation of privacy in the suite orrespecting its contents under s. 8 of the Charter. [4] Mr. Tetreault did rely on • s. 9 of the Charter, contending that he was arbitrarily detained; • s. 8 of the Charter, contending that the search of his pockets was not legally authorized; • s. 10(

a) of the Charter, contending that he was not advised of the reasons for his detention; • the common law voluntariness rules, contending that anything he said to police was involuntary and must be excluded; and • s. 24(2) of the Charter, contending that the cocaine found in his pants pocket and the evidence seized in the suite must beexcluded. I will consider the following questions: 1. When was Mr. Tetreault “detained”? 2. Was Mr. Tetreault properly the subject of an “investigative detention” or was he arbitrarily detained? 3. Was Cst. Howell’s “safety search” of Mr. Tetreault legally authorized? 4. Was Mr. Tetreault properly advised of the reasons for his detention under s. 10(

a) of the Charter? 5. Were any statements made by Mr. Tetreault in the course of his interaction with the police inadmissible under the common lawvoluntariness rules? 6. If any Charter violations occurred in the course of Mr. Tetreault’s detention, must evidence gathered as a result be excluded unders. 24(2) of the Charter? 1. When was Mr. Tetreault “detained”? [5] The timing of Mr. Tetreault’s detention is important for Charter analysis purposes, since the grounds for detention musthave crystalized before he was detained.

Events occurring after the detention could not be taken into account in the assessment of thegrounds for the detention. [6] According to Chief Justice McLachlin and Justice Charron in R v Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para 28, [28] The general principle that determines detention for Charter purposes was set out in Therens: a person is detained where he or she“submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist” (per Le DainJ., at p. 644).

This principle is consistent with the notion of choice that underlies our conception of liberty and, as such, shapes ourinterpretation of ss. 9 and 10 of the Charter. When detention removes the “choice to do otherwise” but comply with a police direction, s.10(

b) serves an indispensable purpose. It protects, among other interests, the detainee’s ability to choose whether to cooperate with theinvestigation by giving a statement. The ambit of detention for constitutional purposes is informed by the need to safeguard this choicewithout impairing effective law enforcement.

This explains why the extremes of formally asserted control on the one hand and a passingencounter on the other have been rejected; the former restricts detention in a way that denies the accused rights he or she needs andshould have, while the latter would confer rights where they are neither necessary or appropriate.

In R v Therens, (SCC), [1985] 1 S.C.R. 613, Justice Le Dain J wrote as follows at 641-2: In addition to the case of deprivation of liberty by physical constraint, there is in my opinion a detention within s. 10 of the Charter whena police officer or other agent of the state assumes control over the movement of a person by a demand or direction which may havesignificant legal consequence and which prevents or impedes access to counsel. In Chromiak this Court held that detention connotes "some form of compulsory constraint".

There can be no doubt that there must besome form of compulsion or coercion to constitute an interference with liberty or freedom of action that amounts to a detention within themeaning of s. 10 of the Charter. The issue, as I see it, is whether that compulsion need be of a physical character, or whether it may alsobe a compulsion of a psychological or mental nature which inhibits the will as effectively as the application, or threat of application, ofphysical force.

The issue is whether a person who is the subject of a demand or direction by a police officer or other agent of the statemay reasonably regard himself or herself as free to refuse to comply. and at 644: The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to makethe restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if theperson concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does notexist.

See also R v Mann, 2004 SCC 52 at para 19 and R v Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 at para 21. [7] In my opinion, Mr. Tetreault was not detained until he opened the apartment unit door and came into the physical custody of

Cst. Rauf, who immediately turned Mr. Tetreault over to the custody of Cst. Howell who placed Mr. Tetreault under investigative detention and searched him. [ 8 ] Mr. Tetreault was not detained when he retreated into the apartment unit as the police officers approached. As contemplated by Grant at para 21 , when confronted by State authority, he had the option to run away, and he did. [ 9 ] A police “challenge” was yelled by Cst. Howell as the officers approached and as Mr. Tetreault was re-entering the suite.

The terms of the challenge were not definitively established on the evidence, but I find (on the basis of Cst. Rauf’s evidence) that Cst. Howell at least said “stop”. Mr. Tetreault was not legally required to obey the challenge: see Grant at para 30 (respecting a roadside breath sample demand). Had Mr. Tetreault obeyed the challenge and stopped, he would have been detained. However, he did not stop but continued to try to evade the officers. He did not submit or acquiesce and was acting in a physically voluntary fashion. Mr. Tetreault was not detained at the time the police challenge was made.

This type of circumstance was considered by Justice Doherty in R v Nesbeth , 2008 ONCA 579 , at para 16 : [16] In this case, while there was a demand: “Stop, police”, the element of compliance with the demand was missing. Far from complying, the respondent made it abundantly clear that he had no intention of being detained ....Thus, there was no detention at the start of the pursuit. In R v Atkins , 2013 ONCA 586 , we read the following at para 10: “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.” See also Atkins at para 12 and Suberu at paras 24 - 28 . [ 10 ] Mr. Tetreault was not detained during the period that he was trying to force the door of the suite shut as Cst. Rauf and Cst. Howell sought to keep it ajar. He was resisting, not submitting or acquiescing. He was continuing to act voluntarily in opposition to police efforts. [ 11 ] Only upon leaving the suite following his discussion with Cst. Rauf did Mr. Tetreault submit or acquiesce.

He was physically detained. At this point, Mr. Tetreault was placed almost immediately in express investigative detention by Cst. Howell. [ 12 ] Therefore, all conduct preceding Mr. Tetreault’s detention upon leaving the suite may be considered in relation to the grounds and justification for his detention. 2. Was Mr. Tetreault properly the subject of an “investigative detention” or was he arbitrarily detained? [ 13 ] Under s. 9 of the Charter , “[e]veryone has the right not to be arbitrarily detained or imprisoned.” An individual is not arbitrarily detained if he or she is arrested on proper grounds.

Neither is an individual arbitrarily detained if he or she is detained for investigative purposes on proper grounds. According to Justice Iacobucci in Mann at para 34 , 34 The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds.

The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on- going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation.

The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test [emphasis added]. and at para 45, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary [emphasis added]. [ 14 ] Justice Moldaver confirmed the Mann approach to the grounds for investigative detention in R v MacKenzie , 2013 SCC 50 , [2013] 3 S.C.R. 250 at para 38 : [38] Parenthetically, I note that the reference in Mann to “reasonable grounds to detain” has led to some confusion for the bench and bar alike.

In the context of detention, “reasonable grounds” means reasonable grounds to suspect that an individual is involved in particular criminal activity, which is synonymous with reasonable suspicion. However, in other contexts, such as an arrest, “reasonable grounds” means reasonable grounds to believe that an individual is or has been involved in a particular offence, which is synonymous with reasonable and probable grounds. The former concept is a matter of possibilities, while the latter is one of probabilities .... [ 15 ] Obviously enough, Mr. Tetreault did not match Mr. Gaim’s (the cab-driver’

s) description of the gun-carrying young female with a pony-tail. Neither did Mr. Tetreault resemble the older female SC who was associated with the target suite. And in fact SC, the person of interest to the police, no longer had (if she ever had) any link to the target suite. The determination of whether Mr. Tetreault’s detention was arbitrary and violated s. 9 of the Charter requires answers to four component questions: (

a) Did Cst. Rauf or Cst. Howell or both of them, as the officers who detained Mr. Tetreault, subjectively (or actually or honestly) suspect that “there was a clear nexus between Mr. Tetreault and a recent or on-going criminal offence” or a particular crime? (

b) What was the “recent or on-going criminal offence” or “particular crime”? (

c) Was the inferential link between that “particular crime” and suspicion reasonable? (

d) Was the

decision to detain Mr. Tetreault reasonable? (

a) subjective suspicion [ 16 ] Constables Rauf and Howell were at the front of the train of officers who approached the target suite from the north stairwell of the apartment building. The details will be discussed below. On reaching the third floor where the target suite was located, they both heard the raised male voice, both heard the term “shoot”, both were of the opinion that the raised voice came from the target suite, both saw Mr.

Tetreault come out of the target suite with a dog, both saw him retreat into the suite upon perceiving advancing police officers, and both were involved in the brief standoff at the door of the suite. Cst. Howell had made the police challenge before Mr. Tetreault re- entered the suite. [ 17 ] As events unfolded, the two Constables did not discuss events and jointly formulate an opinion and course of action respecting Mr. Tetreault. While their actions were coordinated, there was no verbalization of views respecting Mr. Tetreault.

They acted independently and quickly in circumstances that were evolving quickly. [ 18 ] Constable Rauf freely conceded that “he had no clue” about what Mr. Tetreault had been doing before contact with the police. His testimony was that Mr. Tetreault was in “about to commit” circumstances. In the context of a response to a gun complaint, Cst. Rauf was concerned about the screaming and yelling, which, according to Cst.

Rauf’s observations, was (at least) communicated to some other person or persons unseen within the suite; the other person or persons could include the woman of interest to the police; what was developing appeared to him to be a possible “domestic” altercation. That is, he believed, subjectively and honestly, that Mr. Tetreault was involved in a domestic violence situation in which a gun may have been involved. The circumstantial evidence supported Cst. Rauf’s reports of his suspicions. Cst. Rauf formed these views, on his testimony, before the events at the door of the suite, although Cst.

Rauf’s views were reinforced by Mr. Tetreault’s retreat into the suite. After Mr. Tetreault came out of the suite, Cst. Rauf immediately “passed him off” to the constable behind him, Cst. Howell. [ 19 ] Constable Howell determined that Mr. Tetreault would be placed under investigative detention and told Mr. Tetreault that he was being placed under investigative detention. I find that Cst. Howell subjectively and honestly believed that Mr. Tetreault was involved in criminal activity warranting investigative detention.

In the context of responding to the gun complaint, he heard the yelling about shooting and was directly involved in the brief standoff. Again, the circumstantial evidence supports Cst. Howell’s reports of his suspicions. (

b) specificity of suspected criminal activity [ 20 ] While Constables Rauf and Howell intended to do the right thing in the circumstances, a crucial question is whether, even as understood by the Constables, Mr. Tetreault’s conduct had a sufficient link to specific criminal conduct so that that the interference with his liberty was justified. [ 21 ] On the one hand, the police cannot detain a person just because they suspect that he might have done “something” wrong.

The police do not have the authority to detain just because they believe that he or she might be “up to no good,” without knowing just what that “no good” might be. In R v Yeh , 2009 SKCA 112 , Justice Richards wrote as follows at paras 91 and 75: [91] ... a generalized feeling on the part of the police that an individual is doing something wrong cannot serve as the basis for a lawful detention.

Thus, in this way, the prerequisites for investigative detentions help to ensure they will not be based on the sorts of hunches and intuitions which can serve as a cover for arbitrary conduct and either deliberate or unconscious profiling based on factors such as race, ethnic origin or socioeconomic status. [75] It is, of course, well established that the police do not enjoy a general power to detain individuals for the purpose of ferreting out possible criminal activity.

More particularly, they may not conduct an investigative detention to determine whether an individual is, in some broad way, “up to no good.” Furthermore, Justice Karakatsanis confirmed in R v Chehil , 2013 SCC 49 , [2013] 3 SCR 220 at para 28 that “the suspicion held by the police cannot be so broad that it descends to the level of generalized suspicion, which was described by Bastarache J .... as suspicion ‘that attaches to a particular activity or location rather than to a specific person’.” [ 22 ] On the other hand, while investigative detention may relate to an offence which has been reported or which the police otherwise know has taken place ( Yeh at para 77 ), this degree of specificity is not necessary.

Investigative detention may relate to an offence which the police suspect but do not know has taken place or is taking place: Yeh at paras 78, 83, 85, 94 . [ 23 ] This case deals with an issue not addressed in Yeh – the degree of specificity of the “specific criminal wrongdoing:” see Yeh at para 75 (“In order to justify an investigative detention, the police suspicion must be particularized, i.e. it must relate to specific criminal wrongdoing.

Just how specific it must be is not an issue in this appeal.”) [ 24 ] The officers were not responding to a “recent or on-going criminal offence” or “particular crime.” The fare was not alleged to have committed an offence. There was, for example, no allegation that the fare threatened Mr. Gaim with the gun. There was no express allegation that the firearm was possessed illegally. There was, for example, no claim that whoever had the firearm possessed it without having a proper authorization. Was Mr. Tetreault implicated in sufficiently specific potential criminal wrongdoing? [ 25 ] In my view, he was.

The analysis has two levels. [ 26 ] First, the presence or alleged presence of a handgun in a young woman’s purse supports reasonable inferences of risks of criminal activity. Typically in Alberta, individuals do not carry concealed handguns. Neither are individuals in Alberta typically authorized to carry concealed handguns. The possession of a handgun in a purse is a significant event and certainly would engage

appropriate police concern. Handguns, if misused, can cause serious injury or death. Handguns may be used in personal injury offencesor robberies or may be used in connection with drug trafficking. No specific offence was implicated by Mr. Gaim’s complaint to thepolice. The gun complaint, though, implicated an array of criminal offences committed through the instrumentality of a handgun. Byfollowing up on Mr.

Gaim’s complaint, the police were not engaging in some form of random virtue check but were investigating apotential threat to public safety. [27] Justice Cory provided useful reflections on the criminogenic features of firearms, considered in themselves and by themselves,in R v Felawka, (SCC), [1993] 4 S.C.R. 199 at 211: A firearm is expressly designed to kill or wound. It operates with deadly efficiency in carrying out the object of its design. It followsthat such a deadly weapon can, of course, be used for purposes of threatening and intimidating.

Indeed, it is hard to imagine anythingmore intimidating or dangerous than a brandished firearm. A person waving a gun and calling “hands up” can be reasonably certain thatthe suggestion will be obeyed. A firearm is quite different from an object such as a carving knife or an ice pick which will normally beused for legitimate purposes. A firearm, however, is always a weapon.

No matter what the intention may be of the person carrying agun, the firearm itself presents the ultimate threat of death to those in its presence. and at 214: There is something extremely menacing and intimidating about the presence of a naked weapon. There is something even more sinisterin the presence of a concealed weapon ....

All Canadians have the right to feel protected from the sinister menace of a concealed weapon. [28] I also look to Justice Abella’s decision in R v Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32 at para 36: 36 Doherty J.A. acknowledged that the purpose of stopping the car was “to apprehend individuals in possession of dangerousweapons and seize those weapons before they could be used in criminal activity to harm others” (para. 41).

Significantly, he alsoaccepted that the information received by the police represented “a significant and undeniable danger”: Criminal conduct involving the use of firearms, especially handguns, is a serious and growing societal danger. The law abiding segmentof the community expects the police to react swiftly and decisively to seize illegal firearms and arrest those in possession of them.

Therisk posed to the community by those in possession of handguns gives an added significance to police efforts to seize those weapons andapprehend those in possession of them beyond the always important police duty to investigate and prevent criminal activity. [para. 41] (See also Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31 at para. 45; R v Felawka ... at p. 211.) [29] I understand that people kill and guns don’t kill, that guns are only tools, and that plenty of other tools are used to kill.Handguns in particular, however, are uniquely designed to harm persons.

The potential of that harm, when a handgun is reported to be onthe street in a young lady’s purse, cannot be ignored by the police. [30] Mr. Tetreault, though, was not detained because he displayed a handgun. None was found on his person. He had the triplemisfortune, however, of being an occupant of the very suite where the person of interest respecting the gun complaint had been located;of having made angry remarks, heard by the police, that involved the term “shoot;” and of having retreated back into the suite uponencountering the police. Constable Rauf linked Mr.

Tetreault not only to the firearm possession but to a potential domestic violencesituation. Constable Howell linked Mr. Tetreault to the firearm possession. Mr. Tetreault’s conduct suggested wrongdoing within thefirearms or firearms and domestic violence contexts. [31] The police were responding to a specific complaint, involving a specific type of criminally-related conduct – the unexplainedand inappropriate possession of a handgun; Mr. Tetreault was linked to the very location to which the person of interest had been linked;Mr.

Tetreault had made aggressive noises and, to the hearing of the police, used the term “shoot;” and Mr. Tetreault engaged in evasiveconduct that raised an inference of consciousness of wrongdoing. No precise offence was manifest in the circumstances. However, theofficers’ suspicions were not “general.” Their suspicions attached to Mr.

Tetreault specifically, not merely to his presence in theneighborhood of the apartment building, not merely to his presence in the apartment building itself, and not merely to his presence in thetarget suite itself. [32] Finally, I confirm that the police were acting within the scope of their duties in responding to the firearms complaint, just asthe police were acting within their duties in responding to the 911 call firearms complaint as described in Clayton at para 23: 23 Doherty J.A. accepted that the first prong of the analysis was met in this case.

In his view, which I share, the police “were clearlyacting in the course of their duty to investigate and prevent crime” when they stopped the car and detained its occupants (para. 38). It istrue that the police had no specific statutory authority for the initial stop but, as Doherty J.A. pointed out, and as s. 42(3) of the PoliceServices Act, R.S.O. 1990, c. P.15, confirms, “[i]t is . . . well established that the police power to interfere with individual libertiesreaches beyond those powers specifically enumerated in statutes” (para. 34). (

c) reasonable suspicion [33] Were the suspicions of Constables Rauf and Howell that Mr. Tetreault was engaged in criminal conduct reasonable? Theanswer to this question requires (

i) that the principles governing the assessment of reasonableness be settled before (ii) conducting thatassessment. (

i) the approach to “reasonable suspicion” [34] “Reasonable suspicion” as a standard for assessing the legitimacy of investigative detentions has three main features: (

A) the distinction between reasonable suspicion and reasonable belief;

(

B) the requirement that reasonable suspicion be based on objective grounds; and (

C) the requirement that reasonable suspicion be assessed in the totality of the circumstances. (

A) reasonable suspicion vs reasonable belief [35] The weight of the inference of reasonable suspicion falls in the mid-range between a mere hunch or intuition not based onobjective facts and reasonable grounds that support a probable conclusion or a probable inference based on objective facts. A reasonablesuspicion is not merely one that a particular individual would have, but one that any reasonable person would have given the objectivefacts: any reasonable person would recognize or concede or draw the conclusion or inference that it is possible that the individual inquestion was involved in a criminal activity.

A reasonable possibility, though, is a conclusion that is less confident or that has lessinferential weight than a conclusion that it is reasonably likely or probable that the individual is involved in criminal activity. Accordingto Justice Binnie in R v Kang-Brown, [2008] 1 S.C.R. 456, 2008 SCC 18 at para 75, “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion meanssomething more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.

According to Justice Karakatsanis in Chehil at para 27, [27] Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must begrounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, ofcrime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the moredemanding reasonable and probable grounds standard. (

B) objective grounds [36] Objective grounds are the facts or evidence of facts that support the suspicion or support the drawing of the inference that isthe suspicion. The function and the nature of objective grounds are important. [37] The function of objective grounds is to provide a foundation for judicial review of police action. Investigative detention is notsupported by prior authorization. Determination of the legitimacy of the detention follows the detention. Objective grounds are necessaryto provide a foundation for a reviewing judge to determine whether the detention that occurred was legitimate.

That is, the objective orreasonable grounds have an important post-facto procedural role. As stated by Justice Karakatsanis in Chehil at para 45, [45] The requirement for objective and ascertainable facts as the basis for reasonable suspicion permits an independent after-the-factreview by the court and protects against arbitrary state action.

See Chehil at para 3 (“As Doherty J.A. said in R v Simpson (1993), (ON CA), 12 O.R. (3d) 182 (C.A.), at p. 202, thestandard prevents the indiscriminate and discriminatory exercise of police power”); and para 25 (“The reasonable suspicion thresholdrespects the balance struck under s. 8 by permitting law enforcement to employ legitimate but limited investigative techniques.

Thisbalance is maintained by subsequent judicial oversight that prevents indiscriminate and discriminatory breaches of privacy interests byensuring that the police have an objective and reasonable basis for interfering with an individual’s reasonable expectation of privacy.”) [38] In their nature, reasonable grounds have two aspects.

First, reasonable grounds are properly “external” to the persons formingthe suspicions and are not merely “hunches” or “intuitions.” Second, and at the same time, the special experience and expertise of thepolice should be taken into account in assessing the significance of grounds police officers rely on – when such experience and expertiseis relevant. [39] It is clear that a hunch or intuition does not constitute a reasonable suspicion. There must be objective grounds which supportthe opinion of the police officer: Yeh at para 44.

In Justice Karakatsanis’ words in Chehil at para 47, [47] An officer’s training and experience may provide an objective experiential, as opposed to empirical, basis for groundingreasonable suspicion. However, this is not to say that hunches or intuition grounded in an officer’s experience will suffice, or thatdeference is owed to a police officer’s view of the circumstances based on her training or experience in the field: see Payette, at para.25. A police officer’s educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicionstandard.

Evidence as to the specific nature and extent of such experience and training is required so that the court may make anobjective assessment of the probative link between the constellation of factors relied on by the police and criminality. The more generalthe constellation relied on by the police, the more there will be a need for specific evidence regarding police experience and training.

Tothe extent that specific evidence of the investigating officer’s experience and training supports the link the Crown asks the court to draw,the more compelling that link will be. [40] As Justice Hughes put this point in R v Navales, 2011 ABQB 404 at para 12, [12] A hunch based on intuition or “feelings” gained by experience or a well-educated guess does not constitute a reasonablesuspicion.

There must be objective grounds that support the subjective belief of the police officer: “‘reasonable suspicion’ requires thepolice officer’s subjective belief to be backed by objectively verifiable indications ...:” A.M at para. 80. As Doherty J.A. writing for theCourt of Appeal for Ontario stated in ... Simpson at 202 ...: These cases require a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that thedetainee is criminally implicated in the activity under investigation.

The requirement that the facts must meet an objectively discerniblestandard is recognized in connection with the arrest power ... and serves to avoid indiscriminate and discriminatory exercises of thepolice power. A “hunch” based entirely on intuition gained by experience cannot suffice, no matter how accurate that “hunch” mightprove to be. Such subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the

detainee’s sex, colour, age, ethnic origin or sexual orientation. Equally, without objective criteria detentions could be based on merespeculation. A guess which proves accurate becomes in hindsight a “hunch”. In this regard, I must disagree with R. v Nelson (1987), (MB CA), 35 C.C.C. (3d) 347, 29 C.R.R. 80 (Man.

C.A.), at p. 355 C.C.C., p. 87 C.R.R. where it is said that detentionmay be justified if the officer “intuitively senses that his intervention may be required in the public interest”. [41] Nonetheless, the Supreme Court has stated that the assessment of reasonable grounds must be from the perspective of policeofficers. According to Justice Karakatsanis in Chehil at para 45, [45] The requirement for objective and ascertainable facts as the basis for reasonable suspicion permits an independent after-the-factreview by the court and protects against arbitrary state action.

Under the Collins framework, the onus is on the Crown to show that theobjective facts rise to the level of reasonable suspicion, such that a reasonable person, standing in the shoes of the police officer, wouldhave held a reasonable suspicion of criminal activity. According to Justice Moldaver in MacKenzie at para 63 and 73, [63] Thus, in assessing whether a case for reasonable suspicion has been made out, the analysis of objective reasonableness should beconducted through the lens of a reasonable person “standing in the shoes of the police officer” (R. v.

Tran, 2007 BCCA 491, 247B.C.A.C. 109, at para. 12; see also R. v. Whyte, 2011 ONCA 24, 272 O.A.C. 317, at para. 31) [emphasis added]. [73] Assessing whether a particular constellation of facts gives rise to a reasonable suspicion should not — indeed must not —devolve into a scientific or metaphysical exercise.

Common sense, flexibility, and practical everyday experience are the bywords, andthey are to be applied through the eyes of a reasonable person armed with the knowledge, training and experience of the investigatingofficer [emphasis added]. [42] The point is that training and experience may permit an appreciation of the significance of facts that persons without thetraining and experience would miss. If training and experience are relevant to the appreciation of the significance of the facts, that mustbe demonstrated on the evidence.

See MacKenzie at para 62: [62] Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met. Police officers are trained to detect criminal activity. That is their job. They do it every day. And because of that, “a fact orconsideration which might have no significance to a lay person can sometimes be quite consequential in the hands of the police” (Yeh, atpara. 53).

Sights, sounds, movement, body language, patterns of behaviour, and the like are part of an officer’s stock in trade and courtsshould consider this when assessing whether their evidence, in any given case, passes the reasonable suspicion threshold. But again, a hunch does not get a value greater than a hunch, just because it is a police officer’s hunch. (

C) assessment based on the totality of circumstances [43] The general approach to the body of evidence relied on to support a finding of reasonable suspicion is described by JusticeKarakatsanis in Chehil at para 29: [29] Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation ofobjectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in thetype of criminal activity under investigation.

This inquiry must be fact-based, flexible, and grounded in common sense and practical,everyday experience: see R. v Bramley, 2009 SKCA 49, 324 Sask. R. 286, at para. 60. A police officer’s grounds for reasonablesuspicion cannot be assessed in isolation: see Monney, at para. 50. [44] The requirement to address the totality of circumstances, that is, to address the “constellation of objectively discernable facts,”has five aspects. [45] First, the assessment should not proceed in a “piecemeal” fashion. The factual elements must be considered together, in the“constellation” relied on by police.

This “precludes a divide and conquer approach that finds each factor individually equivocal:” Chehilat para 62; see para 69; and see Navales at para 16: [16] Considering the recent case law from appellate courts, it appears that Kang-Brown has been interpreted as meaning that trialjudges need to look at the totality of the circumstances and review all the relevant factors collectively when assessing whetherreasonable suspicion is supported by objective grounds: see R. v Payette, 2010 BCCA 392 , 259 C.C.C. (3d) 178 at para. 25; R. vBramley, 2009 SKCA 49, 324 Sask.

R. 286 at paras. 43-48; R. v Schrenk, 2010 MBCA 38, 255 Man.R. (2d) 12 at para. 70 and 98; R. vSavage, 2011 SKCA 65. In other words, the principle that trial judges must not piecemeal evidence still prevails. See R. v.

Morin, (SCC), [1988] 2 S.C.R. 345 at p. 359. [46] Second, despite the prohibition against “piecemeal” consideration, elements of the factual matrix relied on by the police maybe excluded from the foundation for the suspicion if reliance on these elements would be improper – as, for example, when the policerelied on discriminatory or stereotypical grounds as purported support for an investigative detention. (One might observe that suchgrounds are actually no grounds at all, relating to irrelevant personal characteristics rather than evidence supporting inferences aboutpossible criminal activity.) See Chehil at paras 39 and 43: [39] In my view, it is unhelpful to speak of profiling as generating reasonable suspicion.

The term itself suggests an assessment basedon stereotyping and discriminatory factors, which have no place in the reasonable suspicion analysis. Rather, the analysis must remainfocused on one central question: Is the totality of the circumstances, including the specific characteristics of the suspect, the contextualfactors, and the offence suspected, sufficient to reach the threshold of reasonable suspicion? [43] Furthermore, the elements considered as part of the reasonable suspicion analysis must respect Charter principles.

The factorsconsidered under the reasonable suspicion analysis must relate to the actions of the subject of an investigation, and not his or her

immutable characteristics. [47] Third, the conclusion that elements of the factual matrix relied on by the police support both inculpatory and exculpatoryinferences or even that elements strongly support exculpatory inferences does not entail that those elements should be excluded from thefoundation for the suspicion. While such evidence would not on its own or by itself support a reasonable suspicion, its significance mustbe understood in the context of the other facts relied on by the police. Justice Karakatsanis wrote as follows in Chehil at paras 6, 31, and33: [6] ....

The reasonable suspicion standard requires that the entirety of the circumstances, inculpatory and exculpatory, be assessed todetermine whether there are objective ascertainable grounds to suspect that an individual is involved in criminal behaviour .... [31] While some factors, such as travelling under a false name, or flight from the police, may give rise to reasonable suspicion ontheir own (Kang-Brown, at para. 87, per Binnie J.), other elements of a constellation will not support reasonable suspicion, except incombination with other factors.

Generally, characteristics that apply broadly to innocent people are insufficient, as they are markers onlyof generalized suspicion. The same is true of factors that may “go both ways”, such as an individual’s making or failing to make eyecontact. On their own, such factors cannot support reasonable suspicion; however, this does not preclude reasonable suspicion arisingwhen the same factor is simply one part of a constellation of factors [emphasis added]. [33] Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors.

The totality ofthe circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regardingreasonable suspicion. As Doherty J.A. found in R. v Golub (1997), (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 751,“[t]he officer must take into account all information available to him and is entitled to disregard only information which he has goodreason to believe is unreliable”.

This is self-evident [emphasis added]. [48] Justice Moldaver came to the same conclusion in MacKenzie at paras 71 and 72: [71] Reasonable suspicion must be assessed against the totality of the circumstances.

Characteristics that apply broadly to innocentpeople and “no-win” behaviour — he looked at me, he did not look at me — cannot on their own, support a finding of reasonablesuspicion, although they may take on some value when they form part of a constellation of factors [emphasis added]. [72] Exculpatory, common, neutral, or equivocal information should not be discarded when assessing a constellation of factors. However, the test for reasonable suspicion will not be stymied when the factors which give rise to it are supportive of an innocentexplanation. We are looking here at possibilities, not probabilities.

Are the facts objectively indicative of the possibility of criminalbehaviour in light of the totality of the circumstances? If so, the objective component of the test will have been met. If not, the inquiryis at an end [emphasis added]. [49] A corollary is that there is no requirement that particular facts forming part of the foundation for the reasonable suspicionmust, individually, be evidence of unlawful behaviour or evidence of a specific criminal act. Justice Karakatsanis spoke to this in Chehilat para 35: [35] Finally, the objective facts must be indicative of the possibility of criminal behaviour.

While I agree with the appellant’ssubmission that police must point to particularized conduct or particularized evidence of criminal activity in order to ground reasonablesuspicion, I do not accept that the evidence must itself consist of unlawful behaviour, or must necessarily be evidence of a specificknown criminal act. [50] Fourth, the police do not have a duty “to investigate alternative explanations for constellations of factors giving rise toreasonable suspicion:” Chehil at para 67.

Justice Karakatsanis stated in Chehil at para 34 that [34] ... the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seekout exculpatory factors or rule out possible innocent explanations .... [51] Fifth, a finding that a conclusion or inference is a reasonable suspicion or reasonable possibility does not entail that that theconclusion or inference is the only inference supported by the facts. That is in the nature of possibilities.

To say that a conclusion ispossible does not exclude other conclusions as possible or render other conclusions impossible. Once again, Justice Karakatsanis madethis point in Chehil at para 32: [32] Further, reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Much asthe seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to areasonable suspicion may also support completely innocent explanations.

This is acceptable, as the reasonable suspicion standardaddresses the possibility of uncovering criminality, and not a probability of doing so. (ii) assessment of the reasonableness of Constables Rauf and Howell’s suspicions [52] The facts relied on by Constables Rauf and Howell must be assessed as a totality, in their context as part of a constellation offacts.

Nonetheless, all of the circumstances cannot be assessed simultaneously and a linear review is necessary to ensure that reliance onparticular circumstances, in context, would not be unreasonable or improper (e.g. if the grounds relied on were discriminatory). Thereasonableness of the police suspicion respecting Mr. Tetreault relied on four layers of circumstances: (

A) the 911 call, (

B) the identification of the person of interest, (

C) hearing the word “shoot”, and

(

D) Mr. Tetreault’s conduct. While my review is linear, the layers of evidence must ultimately be considered in conjunction, as the evidential elements must be understood in their totality. (

A) the 911 call [ 53 ] The series of events was initiated by a 911 call made by Mr. Gaim, the cabdriver, at about 11:30 p.m. on November 10, 2013. [ 54 ] Mr. Gaim was not called as a witness. He was listed as a witness on the Indictment and was subpoenaed by the Crown, but he failed to attend. In my opinion, his absence was not problematic. Exactly what he saw was not important. He was not, for example, a witness to any offence allegedly committed by Mr. Tetreault. What was important was what the police understood him to say.

His comments (or the versions of his comments) were not offered as proof of the truth of their contents but as the basis for police action. [ 55 ] Exhibit 61 (a print-out of a dispatch communication to Cst. Hurd’s terminal) set out the police dispatch understanding of Mr. Gaim’s concerns. Two different versions were provided. In one version, Mr. Gaim saw a gun in his fare’s possession. She showed it to him. In the other version, Mr. Gaim said that the fare said that she was a gangster and said she had a gun. [ 56 ] Mr. Gaim provided the location where he dropped off his fare. Again, there were two accounts given.

On one account, he saw the fare go into a specific apartment building. On the other account, he saw the fare go towards an apartment building but did not see her go in. He parked in “the back lane.” In any event, Mr. Gaim did indicate the location where he dropped off the fare (“back alley south west of 128 street;” “the drop off was at 111 ave/128 street – this is an apt”). [ 57 ] Mr. Gaim was sufficiently exercised by what he saw or heard or both to call the police.

Moreover, he met with the police in the parking lot of Westmount Mall parking lot, presumably taking some time from earning money or giving up some personal time. The meeting with the police commenced at about 11:39 p.m. [ 58 ] Seven officers were dispatched to deal with Mr. Gaim’s gun complaint – Constables Hunt and Hurd, Howell, Rauf and Antonio, Thompson, and Ottenbreit. [ 59 ] At the parking lot, Constables Hurd and Ottenbreit dealt directly with Mr. Gaim, relaying information between Mr.

Gaim and Constables Rauf and Antonio, who remained in their patrol car querying the onboard computer system to obtain information about Mr. Gaim’s fare. [ 60 ] Mr. Gaim gave a description of the fare, which was, one must concede, fairly generic. She was a white female, 16 – 19 years old, blond hair in pony-tail, 5’5’’ to 5’6”, 130 -140 lbs, wearing white jacket with black purse. That description would capture a lot of individuals in metropolitan Edmonton. [ 61 ] Constable Hurd confirmed that Mr. Gaim said that he did see the firearm in the fare’s purse when she was paying. Constable Ottenbreit confirmed that Mr.

Gaim said that he believed he saw the fare go into the apartment building at 11045 - 129 street. [ 62 ] The contributions of Mr. Gaim would definitely have had weaknesses if tendered to establish that a particular individual was in possession of a firearm. That, though, was not the context in which his claims were offered and in which his claims must be assessed. The question is whether the claims could contribute at all to the “totality of circumstances” considered in relation to the detention and search of Mr. Tetreault. In my opinion, Mr.

Gaim’s claims could properly fit into this factual matrix. [ 63 ] First, the officers had been specifically tasked with responding to the 911 call. While a 911 call may not provide admissible evidence of an offence, it does provide information that the police should rely on and react to in a prompt manner.

The following passage from para 34 of Justice Abella’s decision in Clayton is instructive: 34 Like Doherty J.A., I am of the view that, as he indicated at para. 56 of his reasons, the information conveyed by the 911 call provided reasonable grounds for the police to believe that “several individuals were committing serious firearms-related criminal offences in front of the club” and that “those individuals who had vehicles would leave the parking area through one of the two available exits”.

As Doherty J.A. pointed out, the 911 system assumes that the police will react in a timely fashion to the information provided and that the police should be entitled to rely on such information. [ 64 ] From the police perspective, an individual who had no manifest motive to fabricate was concerned that another person had a gun. The police had to engage in a risk analysis. The probability that the person had the gun may have been low. Mr. Gaim’s account was not definite. However, if the person had the gun the risk of harm was significant.

A handgun in the possession of a teenager who claimed to be a gangster could serve no benign purpose. Whether or not Mr. Gaim actually saw the gun, the police could not ignore the complaint. An investigation could come up dry. A failure to investigate could result in tragedy. It was necessary for the police to pursue the complaint. [ 65 ] Mr. Gaim’s descriptions were not exact. They were not provided, though, to identify a particular individual as the perpetrator. Inexact as the descriptions were, they were not valueless. The descriptions were of a female Caucasian of an estimated age at a location.

The descriptions therefore excluded persons and places not matching these criteria. The descriptions would not have satisfied forensic identification standards, but they did provide a starting point. Given the nature of the complaint, the investigation needed at least that starting point. [ 66 ] Having this starting point was important. It was the originating motivation, impetus, or cause for the investigation. It begins to answer the question, Why did the police end up at Mr. Tetreault’s apartment? This is not an idle question. One might think it highly convenient that Mr.

Tetreault wound up charged with drug offences when there was no basis whatsoever in evidence for the police to have had any prior indication that he was involved in this sort of activity. “Convenient” - or more accurately “coincidental” - it may have been, but the police were following up on a complaint, thin as it was. The complaint was not a fictional pretext for arresting Mr.

Tetreault. (

B) the identification of the person of interest [ 67 ] At the Westmount Mall parking lot, Cst. Antonio and Cst. Rauf, searched the “EPROS” (Edmonton Police Report Occurrence System) database onboard their patrol car to try to find an individual correlated with the information provided by Mr. Gaim. EPROS provides information about individuals, including criminal records and street check reports that may indicate criminal activity, and photographs. [ 68 ] As close as the officers could get to the description of the fare at the apartment building in question was SC.

The EPROS records indicated that SC had been associated with apartment unit 302 at the apartment building where (or near where) Mr. Gaim had dropped off the fare. SC was older than the individual described by Mr. Gaim. A cellphone photo of the onboard computer photo of SC was shown to Mr. Gaim by Cst. Ottenbreit. The cellphone photo was not in evidence. Mr. Gaim indicated that the photo might depict the fare. Mr. Gaim was not shown a “photo lineup,” just the single photo of a photo, of uncertain quality. The police had a potential name and a potential suite.

This was not much, but it was not nothing either. [ 69 ] There were some difficulties surrounding the linkage of SC to the fare. [ 70 ] SC did not match Mr. Gaim’s description of the fare, exactly. She was older. The linkage of SC to the fare was very suggestive since Mr. Gaim was shown only one photo. [ 71 ] EPROS did not determine when, precisely, SC was associated with the suite in the apartment building. It did not determine that she was ever a tenant of that suite. It certainly did not determine that she currently was a tenant in that suite.

The date associated with the photo of SC recovered from the onboard police system was not in evidence. Neither Cst. Antonio nor Cst. Rauf could provide the date. Because of the lack of a date, SC’s appearance may have changed since the time of the photo. Cst. Rauf did testify in cross- examination that if the photo had been “really old, [he] wouldn’t have followed up;” but he confirmed that he did not record and could not recall the date of the photo. [ 72 ] Of course, there remained the problem of whether the fare had actually gone into the apartment building associated with SC at all.

She might have gone into another building or only appeared to Mr. Gaim to have gone into that building. [ 73 ] Finally, Mr. Gaim had provided information about the pick-up location for the fare and her phone number was provided. The police did not follow up on this information. [ 74 ] Was the linkage of the fare to SC and a particular suite in the apartment building reasonable? [ 75 ] With respect to the pick-up location and phone number, it was reasonable to focus on where the fare went as opposed to where she came from. There was no evidence that she had returned to her initial location.

Not a lot of time had passed since the fare was dropped off and the police meeting with Mr. Gaim at the Westmount Mall parking lot. Given the late hour, as it was approaching midnight, it would not have been unreasonable to assume as a working hypothesis that the fare had remained at the place to which she had travelled and had not travelled to another location. The point of drop-off, as opposed to the point of pick-up, remained a reasonable focus of investigatory attention. [ 76 ] It would have been easy to call the phone number associated with the fare. But then what? – ask whether she had a gun?

There could have been, I suppose, a reverse directory search to try to identify the name associated with the number. In the days of landlines this may have been a more straightforward investigatory tactic than now. No evidence was provided on the ease by which a reverse directory search could have been accomplished. In particular, no evidence was provided on whether a reverse directory search would have entailed at least some discussions with a cell phone carrier, which would have expended valuable time given that the police were investigating a gun complaint.

Finally, even if the phone number could be linked to a name, that would not mean that the person with the phone was the person of that name. [ 77 ] As for the linkage to SC, the police had a building and they had a description. The 911 call could not be ignored. The police could not cordon off the building and do a unit by unit search. The police were trying to narrow down investigatory parameters. Information was obtained about a female who bore some similarities to the fare who had some connection with the apartment building; Mr.

Gaim did, in imperfect circumstances, provide some evidence of likeness (he did not say, for example, “No, that’s not her” or “She didn’t look like that at all”). The most concrete evidence the police had was that the individual (allegedly) with the gun was dropped off at the particular apartment building and the name of interest that came up in connection with that building was SC. It was reasonable to pursue the SC lead. The police had nothing else. In my opinion, it would have been irresponsible not to pursue this lead. (

C) hearing the word “shoot” [ 78 ] The tactical decisions that followed, were, put charitably, implicit and organic. The basic operational problem was that no one was in charge or took charge (until after the officers were within the suite, when Cst. Antonio stepped up into a leadership role). Operational deficits fall outside the scope of my review.

I will comment only that given the lack of express planning, leadership, and tactical assessment and execution, and given that the officers were responding to a gun complaint, it was indeed fortunate that no one was injured, including both the officers and the occupants of the suite. [ 79 ] Without any officer taking charge, it was determined that the group of officers would attend at the apartment building. So they went. [ 80 ] The officers gained entry to the apartment building by, on the evidence, simply walking in. I do not know whether the residents would find the lack of security distressing.

There was no evidence that, for example, the officers were let in by a manager or that they pressed the intercom buttons of random residents until someone buzzed them in.

[ 81 ] Five officers (Constables Howell, Rauf, Hurd, Antonio, and Thompson) went up the north stairs. Two officers, Constables Hunt and Ottenbreit, went up the south stairs. Again, there was no evidence that anyone was in charge. This distribution of officers somehow occurred. [ 82 ] The north stairs officers reached the third floor, where the target suite was located. On the evidence of all of the officers, the door from the stairwell to the third floor hallway was open.

I do not know whether this complied with fire code requirements. [ 83 ] Constables Howell, Rauf, Hurd, Antonio and Thompson heard a raised and apparently angry male voice coming from the direction of the target unit, suite 302. [ 84 ] None of the Constables could discern precisely what words were being articulated by that male voice, except that all of them heard the word “shoot” and Constables Antonio and Hurd heard the word “shoot” associated with “dog.” Constable Rauf heard a reference to “shoot it.” [ 85 ] All of the Constables denied that words they heard could have emanated from a television or a video game.

All of them denied that the word “shoot” could have been some other more innocuous term. [ 86 ] None of the Constables could describe how far the target suite was from the stairwell or how many other units there were between the stairwell and unit 302. Constable Howell testified that the yelling came from suite 302. Constable Rauf did as well, but he testified that he saw a male come out of suite 302 who yelled back into the suite that he was going to “shoot it.” [ 87 ] Mr. Tetreault was observed to walk out of suite 302 with a dog, identified as being a pit bull.

Of course, a young Caucasian male and a pit bull had not previously been associated with the investigation. Circumstances then rapidly accelerated. (I observe that the dog did not react aggressively in the accelerating circumstances, and indeed subsequently dropped from notice, which doubtless reflects well on its training.) [ 88 ] Before turning to those rapidly accelerating circumstances, was it reasonable for the police to take into account what they had heard upon ascending to the third floor stairwell? [ 89 ] A prior question: should I find that the Constables did hear someone say the word “shoot”?

The coincidence of testimony might seem odd, since none of the officers who heard this word could identify anything else that was said. Moreover, Cst. Hunt, who came up the south stairwell with Cst. Ottenbreit, did not hear this word uttered. Constable Ottenbreit testified that he did. [ 90 ] A particular concern respecting the officers’ stairwell evidence, save for that of Cst. Hunt, is that their reports were prepared about a week after the events in question. Constable Hunt’s narrative report was completed on November 11, 2013.

The delay in report preparation provided at least the opportunity for some discussion about what had occurred and for the tainting of memory by conversations with others about the events. I know that after-action reports are an important part of organizational learning and tactical improvement.

I do hope it is police policy, though, to require personal reports to be completed before any group discussion, preferably as soon following the events as possible, so that there could be at least a record of what each involved officer personally observed. [ 91 ] Again, the five north stairwell officers claimed to hear the word “shoot.” One explanation was that this was a group-induced memory. That would not exclude the reasonable probability that at least some of them did indeed hear that term – that would include at least Constables Rauf, Howell, and Hurd, who were at the front of the train.

Another explanation was that they each testified to hearing this term because that was what each of them heard. The sincerity of the officers was not undermined in cross-examination. An explanation for having heard the word “shoot” when other elements of the overheard monologue were not made out was that the officers were at the apartment to investigate a gun complaint. That particular word – or even a word that sounded to them like that word – would have been of particular significance to them. They would have cued to that word.

I find that they did hear that word. [ 92 ] I accept that the context of the use of that word (or a word that sounded like “shoot”) could not be attested to by the officers. What was added to the circumstances, though, was that word was uttered by what sounded like an angry male voice. [ 93 ] I accept that the officers could distinguish between a reproduction of a voice, as in a TV show, and a live voice. [ 94 ] The linkage of the male voice to the target suite was problematic. It is often difficult to place the origin of sounds precisely.

Given the lack of definite testimony about the hallway from which the sound emanated, it is difficult to credit any claimed ability to link the sound to a particular suite. However, I do note that Cst. Rauf provided a very precise connection between the sound and suite 302 since he saw the male yelling back into that apartment. Regardless, the raised voice that employed the term did come from down the hall towards the target unit. It was not a voice on, for example, another floor of the building. [ 95 ] At least Cst. Hurd – and Cst.

Antonio, to a lesser degree of certainty - heard the word “dog” associated with the word “shoot.” Mr. Tetreault then came out of the target apartment unit with a dog. That would be some circumstantial confirmation that the speaker was associated with the target apartment, whether or not that speaker was Mr. Tetreault. [ 96 ] Regardless, Mr. Tetreault came out of the target suite, which, by itself, would be significant to the investigating officers. It is true that he did not match the descriptions of the fare or SC. He was not a young blond woman. He was not seen with a gun.

However, he was coming out of the apartment to which the police had come to investigate a gun complaint. Critically, he came out in a context in which the officers had heard a male shouting about shooting. Someone (actually seen and heard by Cst. Rauf) had referred to shooting something. He became a person associated with the person associated with the gun complaint called in by Mr.

Gaim. [ 97 ] In terms of the factual matrix confronted by the officers, there was a gun complaint, a target suite, a male voice yelling about “shooting”, and a male coming out of that apartment, with it being unknown whether the female person of interest or anyone else were still within the suite. I find that it was reasonable to take into account the overhearing of the term “shoot” and Mr. Tetreault stepping out of the target apartment.

[ 98 ] It would not have been reasonable for the officers, for example, simply to have allowed Mr. Tetreault to walk out the building without some form of inquiry relating to the gun complaint. (

D) Mr. Tetreault’s conduct [ 99 ] The officers advanced toward suite 302. Mr Tetreault came out of that unit with the dog. On (apparently) seeing the officers (and he may have seen Cst. Hunt and Ottenbreit first), he quickly returned into the unit along with the dog and tried to shut the door. Constables Howell and Rauf were close enough so that Cst. Howell was able to shove his baton between the door and the frame on the hinge side and Cst. Rauf was able to get his boot inside the door, preventing it from closing. The door opened outward, into the hallway. Mr. Tetreault was pulling the door shut.

A standoff occurred. The door was partially open. Constable Rauf talked to Mr. Tetreault. Mr. Tetreault eventually relented and opened the door. Constable Rauf passed him back to Cst. Howell. Mr. Tetreault was placed in investigative detention by Cst. Howell. [ 100 ] Two aspects of Mr. Tetreault’s conduct at this stage were material – his retreat into the apartment and his attempt to get the door shut. [ 101 ] It is true that a completely innocent person might turn around and go back into his apartment on seeing a troop of police advancing down his apartment hallway.

But the quick retreat could also support an inference of consciousness of wrong-doing. The mere fact that multiple inferences were possible does not undermine the reasonableness of relying on this conduct in the formation of conclusions respecting the tactical situation. The officers were not required to sort out which inference was better in the seconds or fractions of seconds between seeing Mr. Tetreault and getting to his door. They were investigating a gun complaint. They approached the target unit. A male came out then ran back in.

The only reasonably safe inference was that he was associated with the gun complaint. At this point, there was no other safe answer to the question, Why else would he run? Again, Mr. Tetreault’s movement was consistent with multiple inferences, some of which were of completely innocent behaviour. The police, though, were not triers of fact in the calm setting of trial determining whether the evidence contributed to a finding beyond a reasonable doubt or on a balance of probabilities.

They were reacting to the real-time situation rapidly unfolding before them. [ 102 ] Moreover, it was not known what other people were inside the suite. Constable Rauf, in particular, was concerned about whether the situation was a “domestic” – i.e., whether there was a possibility of violence toward a female person in the suite (the police had come looking for that female person) and Cst. Rauf was concerned that the situation was descending into a barricaded man situation. [ 103 ] Mr.

Tetreault’s sustained attempt to shut the door went beyond what an innocent but surprised citizen might have done in the circumstances. From the officers’ perspective, two concerns arose. First, Mr. Tetreault or whoever else was in the apartment might be taking steps to deal with the police presence. The response could range from seeking to destroy evidence, to seeking to escape, to preparing to repel the police with force.

It is significant that at this time Constables Antonio and Thompson ran back downstairs, outside, to the rear of the building, just in case any occupants of the suite tried to toss evidence out a window or tried to escape out a window. It appears that Constables Antonio and Thompson took these steps – which were proper steps – on their own, without any order from anyone on site. Again, to this point, no one was in charge. [ 104 ] The second concern was this. A gun complaint had been received. An individual ran back into the target apartment unit and was trying to close the door. It was unknown who was inside.

A barricade situation was developing, whether or not there were innocents inside. If Mr. Tetreault got the door closed and bought some time while the officers tried to get through it, the situation for the officers could easily be worse than the situation they would face before Mr. Tetreault and the occupants had some moments of preparation. [ 105 ] Stepping out of the target unit had made Mr. Tetreault relevant to the investigation. Running back into the unit and trying to close the door reasonably raised the suspicions of the police that he was engaged in a form of criminal conduct.

At this point, the police could only infer that Mr. Tetreault was connected with the gun complaint. The thin evidence of Mr. Gaim coupled with the thin evidence gleaned from EPROS, to their minds, had proven accurate. (

E) conclusion [ 106 ] I conclude, based on the circumstances leading to Mr. Tetreault submitting to investigative detention by Constables Rauf and Howell that these officers, and Cst. Howell in particular, had reasonable grounds for suspecting that Mr. Tetreault was involved with the gun complaint called in by Mr. Gaim. The officers could not simply ignore his conduct.

If they could not reasonably have allowed him to walk out of the building when they first saw him exit the target apartment unit, all the more could they not allow him to exit when he had run back into the suite and attempted to force the door closed. [ 107 ] Mann requires consideration of “[t]he overall reasonableness of the decision to detain ..l [in] all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference:” para 34.

In my opinion, the only reasonable thing for the officers to have done in the circumstances was to detain Mr. Tetreault until they could determine what was going on. It would have irresponsible and unreasonable to have done anything except detain him at this point. [ 108 ] I therefore conclude, based on the foregoing considerations, that Mr. Tetreault was not arbitrarily detained.

I might have adapted the words of Justice Abella at para 41 of Clayton : 41 In the totality of the circumstances, therefore, the initial detention in this case was reasonably necessary to respond to the seriousness of the offence and the threat to the police’s and public’s safety inherent in the presence of prohibited weapons in a public place, and was temporally, geographically and logistically responsive to the circumstances known by the police when it was set up.

The initial stop was consequently a justifiable use of police powers associated with the police duty to investigate the offences described by the 911 caller and did not represent an arbitrary detention contrary to s. 9 of the Charter . I also find some support in an analogy to the Nesbeth case, where Justice Doherty made the following observations at paras 17 and 18:

[17] In my view, the respondent was not detained until he was tackled at the end of the chase. The validity of that detention had to bemeasured by the facts known to the police at that time.

Those facts included the following: • The respondent had immediately bolted when he saw the uniformed officers. • He used some force in an attempt to impede the officers’ progress by throwing a shopping cart in their way. • He threw away a knapsack that he had been tightly holding up until then. • It was late at night, and the respondent was in the stairwell of a building known to be a high-crime area. [18] This constellation of factors was sufficient to give the police officers reasonable grounds to suspect that the respondent wasinvolved in criminal conduct. These were not the actions of a mere trespasser.

While the court in Mann speaks of reasonable grounds tosuspect that the individual is connected to “a particular crime”, in my view, it is not necessary that the officers be able to pinpoint thecrime with absolute precision. Given the respondent’s behaviour in relation to the knapsack and the desperation with which he fled thepolice, the police could reasonably suspect that he was in possession of contraband: either drugs or weapons or both. They weretherefore entitled to detain him for investigation in accordance with Mann. [109] The analysis does not close with this finding.

The detention raises three further issues: First, was Cst. Howell entitled to searchMr. Tetreault and, in particular, to seize material from his pants pocket that turned out to be cocaine? Second, did the police violate Mr.Tetreault’s rights under s. 10(

a) of the Charter? Third, was any statement obtained from Mr. Tetreault during his interaction with theofficers voluntary? 3. Was Cst. Howell’s “safety search” of Mr. Tetreaultlegally authorized? [110] The challenge to the safety search by which the cocaine was taken from Mr. Tetreault’s pants pocket is founded on s. 8 of theCharter.

Section 8 provides that “[e]veryone has the right to be secure against unreasonable search or seizure.” [111] In Mann, Justice Iacobucci confirmed at para 36 that 36 Any search incidental to the limited police power of investigative detention described above is necessarily a warrantless search. Such searches are presumed to be unreasonable unless they can be justified, and hence found reasonable, pursuant to the test establishedin R. v Collins, (SCC), [1987] 1 S.C.R. 265. Under Collins, warrantless searches are deemed reasonable if (

a) they areauthorized by law, (

b) the law itself is reasonable, and (

c) the manner in which the search was carried out was also reasonable (p. 278). The Crown bears the burden of demonstrating, on the balance of probabilities, that the warrantless search was authorized by a reasonablelaw and carried out in a reasonable manner: R. v Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30, at para. 32. See R v MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, LeBel J at para 29. In this case, the reasonableness of the rules governing investigative detention searches and the manner of the search are not at issue. Thequestion is whether Cst. Howell’s search of Mr. Tetreault was authorized by those rules. I will consider (

a) the rules governing safetysearches then (

b) whether Cst. Howell’s search of Mr. Tetreault complied with those rules. (

a) rules governing safety searches [112] In Mann, Justice Iacobucci described the rules governing safety searches following investigative detention at paras 40 and 45: 40 The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down searchincident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonablegrounds that his or her own safety, or the safety of others, is at risk.

I disagree with the suggestion that the power to detain forinvestigative searches endorses an incidental search in all circumstances: see S. Coughlan, “Search Based on Articulable Cause: Proceedwith Caution or Full Stop?” (2002), 2 C.R. (6th) 49, at p. 63. The officer’s decision to search must also be reasonably necessary in lightof the totality of the circumstances.

It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search bepremised upon hunches or mere intuition. 45 To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonablegrounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. Inaddition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engagein a protective pat-down search of the detained individual.

Both the detention and the pat-down search must be conducted in areasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose anobligation on the detained individual to answer questions posed by the police. The investigative detention and protective search powerare to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case. [113] In MacDonald, Justice LeBel wrote as follows at paras 40 and 41: [40] ...

I am convinced that the duty of police officers to protect life and safety may justify the power to conduct a safety search incertain circumstances. At the

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