2003 MBCA 38, 2003 MBCA 38

IN THE COURT OF APPEAL OF MANITOBA Coram: Huband, Steel and Freedman JJ.A. B E T W E E N : HER MAJESTY THE QUEEN ) D. Dzydz ) for the Appellant (Appellant) Respondent ) ) E. Szach and ) C. A. Vanderhooft - and - ) for the Respondent ) ) Appeal heard: H. (C. R.) ) December 10, 2002 ) (Young Offender, Accused) ) Judgment delivered: (Respondent) Appellant ) March 24, 2003 STEEL J.A. 1 This appeal raises the difficult question of when and in what circumstances a police encounter with a citizen can become a psychological detention within the context of ss. 8 , 9 and 10(

b) of the Canadian Charter of Rights and Freedoms (the Charter ). FACTS 2 In the course of conducting a routine neighbourhood patrol at 1:20 a.m. on a week-end morning, the police encountered the accused walking with two other individuals. One of the individuals, not the accused, was carrying a beer. The police pulled their cruiser car to a stop on the road near the sidewalk where the young men were walking, and one of the officers, through the open window of the car, said words to the effect of “Hi, how’s it going?

Where are you guys headed?” The three young men came over to the police cruiser and then responded to several questions that the police put to them, including their names, dates of birth, addresses and phone numbers. One of the officers testified that they did not tell the youths to come over to the cruiser car and the officers never exited their vehicle during this conversation. 3 At the time of the conversation, the police officers did not suspect the accused and his companions of having committed any offences.

Instead, they testified that whenever they patrolled the neighbourhood, they always stop to talk to people. They want to know who is in their area. 4 As well, one of the police officers indicated that as a matter of habit, if the person who is being “spot-checked” has their hands in their pockets, she will ask them to take them out. This is done for reasons of officer safety.

She could not remember her actions on this particular occasion. 5 While one officer continued to engage the youths in “casual chat” from within the car, the other ran the three names through CPIC, thereby learning that the accused was breaching the curfew provision of a probation order. As a result of obtaining that information, the accused was arrested and charged with breaching his probation order. 6 At trial, the Crown called the two police officers on the voir dire and the accused called no evidence. Both officers testified that they would have done nothing if the youths had not complied with their requests.

The officers would have let the accused and his friends go on their way, even as they were checking their names on CPIC. One of the officers also testified that if people ask why their names and dates of birth are being requested, she would tell them, but the accused did not ask that question. REASONS OF THE TRIAL JUDGE

7 The trial judge held that the accused had been arbitrarily detained and excluded the evidence. Relying heavily on R. v. Mellenthin , 1992 CanLII 50 (SCC) , [1992] 3 S.C.R. 615, and particularly on R. v. Powell (2000), 2000 CanLII 50760 (ON CJ) , 35 C.R. (5 th ) 89 (Ont. C.J.), he held that a compulsion to respond to police questions should be presumed unless the Crown can show evidence of informed consent and that a pedestrian on a public street stopped for a computer identity check would be presumed to be subjected to an atmosphere of some oppression. The Crown appealed the acquittal to the

summary conviction appeal court. REASONS OF THE

SUMMARY CONVICTION APPEAL JUDGE 8 The

summary conviction appeal court judge overturned the acquittal, holding that it was still the law that in order to amount to a psychological detention, the onus was on the accused to provide evidence of a demand or direction and to prove that the accused reasonably believed he was under a compulsion to comply with the demand. 9 In addition, she held that there was no s. 8 violation.

The information contained in the police computers could not be characterized as personal information nor could the accused assert a privacy interest in his probation order which was in the police database that would exclude the right of access by the police. 10 The accused successfully applied for leave to appeal the decision of the

summary conviction appeal court judge to this court. DECISION 11 In her factum, counsel for the accused argued that the

summary conviction appeal court judge exceeded her jurisdiction under s. 686(1) (

a) of the Criminal Code . However, at the hearing, both counsel agreed that the issue in dispute was properly a question of law since it dealt with a legal standard and the proper application of the facts to that standard. Therefore, the appeal court judge acted within her jurisdiction. 12 The accused argues that his right to be free of arbitrary detention under s. 9 of the Charter and his right to be informed of his right to counsel upon detention under s. 10(

b) of the Charter were violated. As well, it is submitted that the request for identification and its subsequent use in a computer search constitute an unreasonable search within s. 8 of the Charter . 13 The Crown concedes that if the accused was detained at any point before the moment of his arrest, that detention was arbitrary for purposes of s. 9 . The crucial issue then is whether the accused was detained at any point during his encounter with the police, but before the arrest.

WAS THE ACCUSED DETAINED? 14 There is a plethora of jurisprudence in the area of “detention,” some of them dealing with a violation under s. 9 and some alleging a violation under s. 10 (b). Indeed, the leading case in this area, R. v. Therens et al. , 1985 CanLII 29 (SCC) , [1985] 1 S.C.R. 613, was argued on the basis of a violation under s. 10 (b). Despite the fact that some cases see this as a point of distinction [1] , for the purposes of this case there is no distinction to be drawn between the term “detention” in s. 10 and “detained” in s. 9 . See R. v.

Hufsky , 1988 CanLII 72 (SCC) , [1988] 1 S.C.R. 621 at 632. There must be a finding of detention before a right to counsel is engaged [2] , and there must be a finding of detention before the question of arbitrariness is determined in s. 9 . 15 The mere fact of conversation between a citizen and a police officer does not raise a presumption of detention. See United States of America v. Alfaro (1992), 1992 CanLII 3117 (QC CA) , 75 C.C.C. (3d) 211 at 236 (Que. C.A.), per LeBel J.A. Police officers may enter into conversations with individuals and ask questions. See, for example, R. v.

Esposito (1985), 1985 CanLII 118 (ON CA) , 24 C.C.C. (3d) 88 at 94-95 (Ont. C.A.). 16 Police officers may question people on the street, in the back of police cars or in police stations: According to the case law, the police can contact a person by telephone ( Moran ) [ (1987), 1987 CanLII 124 (ON CA) , 36 C.C.C. (3d) 225 (Ont. C.A.) ], by speaking to him as he walks down the street ( Grafe ) [ (1987), 1987 CanLII 170 (ON CA) , 36 C.C.C. (3d) 267 (Ont. C.A.) ], by going to his door ( Bazinet ) [ (1986), 1986 CanLII 108 (ON CA) , 25 C.C.C. (3d) 273 (Ont.

C.A.) ], or by following him until he pulls his car over and then talking to him ( Clement ) [ 1996 CanLII 206 (SCC) , [1996] 2 S.C.R. 289 ], all without there being a detention. [ R. v. Swidnicki (E.S.) et al. (1999), 1999 CanLII 14141 (MB KB) , 136 Man.R. (2d) 161 at para. 38 (Q.B.) , per Beard J.] 17 As was stated in R. v. Grafe (1987), 1987 CanLII 170 (ON CA) , 36 C.C.C. (3d) 267 (Ont.

C.A.), per Krever J.A. (at p. 274): The Charter does not seek to insulate all members of society from all contact with constituted authority, no matter how trivial the contact may be. 18 The use of the word “detention” necessarily connotes some form of compulsory restraint. It involves the act of holding or

keeping someone against his will for a period of indeterminate length. Conversation does not necessarily result in a detention within the meaning of the Charter . There must be something more. There must be a deprivation of liberty. 19 The Therens case set out the test for determining whether a detention had occurred. A detention under the Charter can arise in one of three situations. Most obviously, someone is detained when they are deprived of their liberty by physical constraint.

Second, there is a detention when a police officer or other agent of the state assumes control over the movement of a person by a demand or direction which prevents or impedes access to counsel and failure to comply with the demand may have significant legal consequences. 20 The third situation described in Therens has come to be referred to as psychological detention and is described by Le Dain J. (at p. 644): Although it is not strictly necessary for purposes of this case, I would go further.

In my opinion, it is not realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact a lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority.

Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary.

Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist. 21 The elements of a police demand or direction, coupled with a voluntary compliance that results in a deprivation of liberty, are essential to the existence of a psychological detention. These elements assure that a common thread – control over the movements of the individual – runs through all three types of detention identified in the Therens test.

Without some control over an individual’s movements, there is no detention – not even psychological detention. The only distinction is one of degree.

In the third category of detention, the control emanates from the accused, who submits to a police demand or direction by restraining their own freedom of movement in the reasonable belief that they have no other choice. 22 Although the Therens test has evolved over the years [3] , those two fundamental elements, a demand coupled with a reasonable belief that there is no other option but to comply with that demand, still form the basic skeleton of the concept. 23 When investigating an offence or investigating whether one has been committed, police are entitled to question anyone whom they believe may have some useful information, although they have no power to compel an answer.

See R. v. Moran (1987), 1987 CanLII 124 (ON CA) , 36 C.C.C. (3d) 225 at 258 (Ont. C.A.). Thus, questioning in a police station was not a detention when the accused voluntarily went to the police station as a result of a request, not a demand, and there was no evidence that the accused felt deprived of his liberty. See, for example, R. v. Bazinet (1986), 1986 CanLII 108 (ON CA) , 25 C.C.C. (3d) 273 (Ont. C.A.), and R. v. Hawkins , 1993 CanLII 140 (SCC) , [1993] 2 S.C.R. 157, rev’g (1992), 1992 CanLII 7125 (NL CA) , 72 C.C.C. (3d) 524 (Nfld. C.A.).

In Manitoba, attendance at a police station was held not to include a detention in R. v. Beaulieu (S.F.) (1996), 1996 CanLII 18225 (MB KB) , 114 Man.R. (2d) 269 (Q.B.), R. v. Ilina (L.) (1997), 1997 CanLII 22800 (MB KB) , 122 Man.R. (2d) 175 (Q.B.), and R. v. D.E.M. (2001), 156 Man.R. (2d) 231, 2001 MBCA 110 , wherein Helper J.A. wrote that “[t]here is ample authority for the proposition that the attendance of an individual at a police station does not necessarily result in a detention” (at para. 17). 24 Nor is an individual necessarily detained if questioned in a hospital emergency room ( R. v.

Hysop (D.E.) (2000), 139 B.C.A.C. 39, 2000 BCCA 314 ), in his own home ( R. v. Samuels , [2001] O.J. No. 3966 (QL) (S.C.J.) ) or on the street ( R. v. Lawrence (1990), 1990 CanLII 11016 (ON CA) , 59 C.C.C. (3d) 55 (Ont.

C.A.)). 25 In the above cases, police officers had been investigating the commission of a specific offence, but even if the encounter between the police officer and the individual is completely random, no psychological detention will arise without the presence of the two elements of the Therens test: … [I]f a police officer who questions a person who might appear suspicious must always provide s. 10(

b) warnings, there would be far more detentions and arrests than our society would tolerate. [ Lawrence , at p. 61, per Tarnopolsky J.A.] 26 As was stated in R. v. Lewicki (L.G.) (1994), 1994 CanLII 16848 (MB KB) , 96 Man.R. (2d) 67 (Q.B.), per Duval J. (at para. 11): A police officer has a right to ask questions of the citizenry, but citizens also have the right to cooperate or to refuse to do so. The duties and powers of police officers in the enforcement of the law remain to a large extent undetermined and imprecise. In Rice v. Connolly , [1966] 2 All E.R. 649 (Q.B.D. Div.

Ct.) , (Lord Parker, C.J., Marshall and James, JJ.), Lord Parker, C.J., states with respect to police powers at p. 651: “... It is also in my judgment clear that it is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice.” And at p. 652:

“... It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is that right of the individual to refuse to answer questions put to him by persons in authority, and a refusal to accompany those in authority to any particular place, short, of course, of arrest.” 27 A review of the cases reveals that there is no easy test or single determining factor that will lead to a conclusion that a psychological detention took place.

Rather, there are a number of factors that must be weighed: Whether it can be said that a person has been detained on any given occasion depends on the circumstances at that time. There is no simple test. The criteria to which courts have referred include demand or direction as opposed to request, language used and tone of voice, compulsion including psychological compulsion and, it seems to me, place of contact. [ Grafe , at p. 272, per Krever J.A.] 28 To the above factors must be added the subjective belief of the accused.

The personal circumstances of the accused, such as age, intelligence and level of sophistication, may be considered in determining whether an accused had a subjective belief that he was detained. However, a subjective belief is not determinative. The test has an objective component. The belief must be a reasonable one. 29 In certain circumstances, the presence or absence of a statement by the police that the suspect was not compelled to attend or accompany them or produce identification may be a factor to consider. See R. v.

Fash (D.M.) (1999), 244 A.R. 146, 1999 ABCA 267 , at para. 128 , per Berger J.A., application for leave to appeal dismissed [2000] S.C.C.A. No. 604 (QL), and R. v. Dickins (2001), 91 Alta. L.R. (3d) 46, 2001 ABCA 51 , at para. 45 , per McFadyen J.A. 30 In

summary, it is a contextual analysis. All of the words and conduct of all the participants, as well as the environment in which the questioning took place, should be examined. The court should look at the entire relationship between the questioner and the person being questioned. See R. v. Johns (M.) (1998), 1998 CanLII 2667 (ON CA) , 106 O.A.C. 291 at para. 28 . 31 Considering those factors in the case at hand, there can be no question that there was no detention in the first half of the encounter, before the police asked for identification.

Other than the fact that the questioning took place in the early hours of the morning, there is nothing else that would lead one to conclude a demand was being made. The police did not block their path with their car or even get out of the car. They did not impede the youths’ progress at all. The location of the questioning was not, aside from the time of night, oppressive. It did not take place in a back alley, back of a police car or a police station. According to the evidence, the language and tone of questioning were casual.

They asked for no incriminating information (e.g., do you have any outstanding criminal charges, do you have any drugs on you?) and the youths voluntarily came over to the police car. Up until then, it is clear there is no detention. 32 At that point, the police officer asked them for identification and proceeded to check that information in the police computer. It is not clear from the evidence whether they supplied their names and addresses because they had no identification or whether that is what they were asked for.

The police officer indicated that it was a request, not a demand, that they would have let the accused move on had he refused and that the “casual chat” continued through this process. 33 The accused argues that the request for identification from police officers creates an inference that the accused reasonably believed he had no other choice but to comply. At that point, it is submitted, the onus shifts onto the Crown to prove informed consent. I do not agree. There must be more than the request itself, even if it is from police officers and even if it is a request for identifying information.

Krindle J. makes this clear in the case of R. v. Pangman (W.G.) et al. (2000), 146 Man.R. (2d) 191, 2000 MBQB 15 . That case concerned a “spot-check” made by a member of the police Street Gang Unit. One of the officers testified that he was not investigating any specific offence, but was simply gathering information regarding street gang members “in accordance with the mandate of the Street Gang Unit” (at para. 13). 34 In holding there was no detention, Krindle J. began by observing the lack of evidence as to how the accused Kirton perceived the situation.

She wrote (at para. 16): I note, firstly, that Kirton did not testify on this voir dire. Furthermore, no evidence was adduced from anyone on the voir dire that might have shed any light on how Kirton perceived his situation. 35 Later, after discussing the decisions in Therens and Bazinet , she continued (at paras. 19-20 ): On the facts before me, there is no evidence of any demand or direction made by Leone which he was legally unable to enforce. There was simply a brief, casual conversation on a city street.

Furthermore, the perception of suspension of freedom of choice which is required by the dicta of Le Dain, J., in Therens , supra, is prefaced by the requirement that the perception be “reasonable”.

On the facts before me, there is absolutely no evidence as to what Kirton may have subjectively perceived and there is nothing in the factual circumstances surrounding Leone’s conversation with Kirton which would render “reasonable” a perception by Kirton that he had no choice to do other than respond. 36 We have not yet reached a situation where a compulsion to comply will be inferred simply because the request comes from a police officer or that a compulsion to respond should be presumed unless the Crown can show evidence of informed consent. It is true

that the very nature of the police function and the circumstances which often bring the police into contact with individuals introduce an element of authority into a request made by a police officer. [4] Certainly, there is a power imbalance between police and citizens, but that cannot mean that police can never ask questions.

Instead, the power imbalance should be one of the factors to be considered in an analysis of the interaction and a consequent determination of whether there was a compulsion to comply. 37 For example, in Grafe , the police were on routine patrol and noted the accused and another person walking on the sidewalk. After passing them in the cruiser, the police thought the accused was acting suspiciously by staring after the cruiser car. The police officer got out of the car, walked over to the accused and asked him for his identification.

The Ontario Court of Appeal held that asking the accused for his identification was not a detention in circumstances where the request was polite and the conversation was brief and was made in daylight on the sidewalk of a downtown city street. The officers testified they would have done nothing if the accused had refused. The accused, who testified on the Charter application, did not suggest that, in his discussion with the police officer, he felt under restraint or compulsion or that he was being detained.

In those circumstances, the trial judge was not entitled to infer that “the respondent had ‘perceived there was a compulsion to answer the question that was put to him’” (at p. 274). 38 There are a number of other more recent cases also dealing with police encounters with pedestrians and requests for identification. In R. v. Hall (1995), 1995 CanLII 647 (ON CA) , 22 O.R. (3d) 289 (C.A.), there had been a report of a break-in and that the suspect was hitchhiking. The police saw the accused, who was hitchhiking, and who matched some, but not all, of the description of the suspect.

The police stopped their car near the hitchhiker and asked the accused for his name and identification. In commenting on whether there was a detention, Osborne J.A. stated (at p. 295): When Constable Clarida approached the appellant and asked him for some identification, he did not detain the appellant, nor was his request for identification in any way unlawful.

I note that the analysis in this case did not depend on whether there was reasonable suspicion to detain, i.e., whether the detention was arbitrary, but rather whether any detention had occurred at all. 39 The use of identifying information to conduct a CPIC check does not necessarily change an encounter into a detention. In R. v. Tammie , [2001] B.C.J.

No. 1948 (QL), 2001 BCSC 366 , a policeman stopped the accused, who was walking down the street late at night, because of the “rash of ‘B. and E.’s’ in the area” and the fact the policeman “just wanted to ‘verify him’.” The accused was asked his name, date of birth, address and phone number. The encounter lasted two minutes. The accused left the encounter and a CPIC search was then conducted which showed that the accused was breaching a curfew order. 40 In holding that the accused was not detained at the initial encounter, MacKenzie J. wrote (at para. 15): I find the failure to provide a s. 10(

b) Charter warning to Aaron Bradley Tammie before asking him the above simple questions did not violate his s. 10(

b) rights. The police are entitled to ask questions of a person and that person is free not to answer: R. v. Grafe (1988), 1987 CanLII 170 (ON CA) , 36 C.C.C. (3d) 267 (Ont. C.A.) . Aaron Bradley Tammie was not at this time “detained” within the meaning of s. 10(

b) of the Charter : R. v. Moran (1988), 1987 CanLII 124 (ON CA) , 36 C.C.C. (3d) 225 (Ont. C.A.) . 41 Other decisions include R. v. R.G.H.H. , [1994] B.C.J. No. 2423 (QL) (S.C.) . In that case, there had been an armed robbery in the Town of Chase, and the next day, the accused was seen with another person hitchhiking on the Trans-Canada Highway outside of town. The accused and his friend were asked to identify themselves and provided their names and birthdates to the officer who conducted a CPIC check. The court held that no detention had taken place. 42 Again, in the case of R. v. Orellana , [1999] O.J.

No. 5746 (QL) (C.J.) , the court dealt with the argument that the accused felt compelled to respond to the questions because they came from a police officer. MacDonnell J. decided that the accused was not detained prior to his arrest and commented (at paras. 28-29): …. … Mr. Tanovich states that “the applicant testified that since the demand came from a police officer, he felt that he had no choice but to submit to his authority.” That is simply incorrect. The only evidence with respect to the applicant’s state of mind in relation to Spratt’s request is contained in the following question and answer: Q. Okay.

Why did you walk towards him when he called you? A. Because he is a police officer. I am unable to read that exchange as an indication that the applicant felt that he had no choice but to submit to the officer’s request. It would, of course, have been open to the applicant to testify to such a belief, if indeed he had one, or for his counsel to explore the matter with him when he testified. That did not happen.

The applicant did testify that when he was dealing with Constable Spratt, he was “scared inside”, but reading his cross-examination as a whole, it seems to me that the source of his fear was not anything that the officer did or said but rather the fact that he was in possession of crack cocaine. 43 On the other hand, in the case of R. v. Ramdeen , [2000] O.J. No. 5350 (QL) (C.J.) , also a random pedestrian-stopping case, a detention was found. No offence was being investigated.

The police had targeted a high-crime area and were routinely asking pedestrians why they were in the area and to provide identifying information. The accused had apparently been stopped before and one of the officers knew who he was from a previous encounter. 44 In finding that the stopping of the accused amounted to a detention, Knazan J. identified the following significant factors (at

para. 17): When I consider the parking of the car ahead of him and the quick exit from the vehicle, the motion with the hand to come over, the questioning about his name when both officer and citizen knew that this was known, ignoring Mr. Ramdeen’s answer that they knew his name, and the length and invasiveness of the questioning I find a detention as a fact. What Mr. Ramdeen described as his subjective belief is supported by Justice LeDain’s statement in Therens . 45 In most of the cases where a detention has been found, evidence of compulsion arises from the testimony of the accused on the voir dire .

Although not conclusive, the testimony of the accused is often crucial to the question of whether there was a reasonable belief that a compulsion to reply was present: The appellant was represented by counsel but did not testify on the voir dire , although he was entitled to do so [on] the issue of the voluntariness of the statement without being subject to cross-examination on the issue of guilt. There is no evidence on the record that the appellant actually believed that his freedom was restrained and, in my view, the circumstances would not lead him reasonably to believe that his freedom had been restrained.

There was no evidence that the appellant was subject to a demand or direction with which he might reasonably believe he was required to comply. Unless all questioning of a suspect by a police officer, in the absence of a warning that the suspect is free to leave and is entitled to refuse to answer, constitutes a detention under s. 10(

b) of the Charter , the questioning of the appellant in his home by Constable O’Grady, in the circumstances, did not constitute such a detention. [ Esposito , at p. 101, per Martin J.A.] 46 I am not suggesting that there can never be a finding of detention in the absence of testimony from the accused, but such a determination would require stronger facts than exist in this case. The court must still have some evidence from which it can infer that the circumstances were such that the accused could reasonably have concluded that his freedom had been restrained. 47 For example, in the case of R. v.

Dolynchuk , [2002] M.J. No. 386 (QL), 2002 MBQB 252 , the court inferred psychological restraint from the circumstances, including the fact that the police testified they would have restrained the accused had he attempted to leave. 48 There are other factors that could support an inference that the accused could reasonably have concluded that his freedom had been restrained. To some extent, the belief that one is detained depends on one’s expectations and the purpose of the questioning.

So, if a person had been a witness to a barroom brawl or a motor vehicle accident, they would probably not be surprised or consider their liberty restrained if the police wanted to ask them a number of questions. A crime had been committed or there was an ongoing investigation. 49 However, in this case, there was no crime committed and no investigation taking place. In such a situation, a pedestrian has the expectation of complete freedom of movement.

To be stopped randomly in those circumstances without explanation by a figure of authority is contrary to one’s expectations and an inference of compulsion may be easier to establish than in other situations. As well, evidence of improper motive might reinforce an atmosphere of harassment or oppression and lead to a conclusion that the accused reasonably believed he had no other choice but to comply. While the police serve the community and perform vital law enforcement and peacekeeping functions, these objectives can be open to abuse in the form of racial profiling, harassment or other improper motives.

So, for example, the court in R. v. Peck , [2001] O.J. No. 4581 (QL) (S.C.J.) , held that there was a detention when one officer consciously relied on the race of the defendant as an important factor in deciding to question him. 50 However, in this case, there is no evidence for such an inference. It is argued that the police officer demanded that the accused keep his hands out of his pockets and near his sides and therefore an element of compulsion can be inferred.

However, the police officer could not remember whether this particular accused had his hands in his pockets or whether she made this demand in this case. All she could remember was that as a matter of police practice, if individuals had their hands in their pockets, they would be asked to keep them at their sides.

Indeed, the only evidence related to compulsion was that of the police officers, who both testified that had the accused refused to provide identification, they would have let him and his friends proceed on their way. 51 In addition, it should be noted that the duration of the interaction prior to the arrest was brief and the degree of intrusiveness minimal.

Even while the identifying information was run through the computer, the evidence was that the accused was not asked to wait, but rather that one of the police officers engaged the youths in “casual chat.” 52 In her argument, counsel for the accused places heavy reliance on the case of Powell . In making a finding of detention in this case, the trial judge also accepted and adopted the reasoning of the court in Powell .

In Powell , Lane J. concluded that Mellenthin and other Supreme Court vehicle-stop cases signalled a dramatic shift in the constitutional implications of voluntary responses made by individuals to questioning by police. 53 The case of Powell involved a situation when the police were investigating break-ins to cars and apartments in the neighbourhood. They were also concerned with drug activity and were authorized by local landlords to enforce the Trespass to Property Act , R.S.O. 1990, c. T.21 , in their buildings.

The officers saw the accused and another person walking on a building parking lot and asked them for their names, addresses and birthdates. As the accused’s address was out of the area, he was asked what he was doing there. A marked police cruiser then came on the scene and a CPIC check was done. The check showed an outstanding warrant for the accused, and when he was arrested, marihuana was found on his person. The accused did not testify. 54 In lengthy reasons, the court held that the accused had been arbitrarily detained contrary to s. 9 and excluded the evidence. 55 Lane J. wrote (at para. 31):

Although the facts in Mellenthin referred to the stopping of vehicles, it is hard to see why the same approach would not apply to pedestrians. The “ordinary right of movement of the individual,” the right to move about in the community on foot without interference, is a fundamental right.

It is more significant than “the liberty” or “the qualified right” to drive a motor vehicle which is “a licensed activity that is subject to regulation and control for the protection of life and property:” Cory J. in Ladouceur , [ 1990 CanLII 108 (SCC) , [1990] 1 S.C.R. 1257 at 1274 ]; Doherty J.A. in Brown [ (1998), 1998 CanLII 7198 (ON CA) , 131 C.C.C. (3d) 1 (Ont. C.A.) ], para. 77. If motorists can be presumed to feel compelled to respond to questions from police, it can reasonably be assumed that pedestrians stopped by the police feel the same compulsion. 56 I disagree.

The same approach does not apply to the stopping of motor vehicles as it does to the questioning of pedestrians. In the cases involving the random stopping of motor vehicles, the courts have found a detention to exist, as the term was defined in Therens . The issue in the motor vehicle cases was whether the detention was arbitrary and, if so, whether the violation was justifiable under s. 1 or otherwise authorized by law. See R. v. Ladouceur , 1990 CanLII 108 (SCC) , [1990] 1 S.C.R. 1257 at 1278.

In particular, in Mellenthin , the compulsion to speak arose from the fact that a motorist was deemed to be detained as soon as he was stopped in a motor vehicle. It is at that point that the police assume control over the movements of the motorist under threat of criminal sanction: It has been seen that as a result of the check stop the appellant was detained. The arbitrary detention was imposed as soon as he was pulled over.

As a result of that detention , it can reasonably be inferred that the appellant felt compelled to respond to questions put to him by the police officer. [ Mellenthin , at p. 624, per Cory J.] [underlining mine] 57 Consequently, Mellenthin and the other motor vehicle cases are not an appropriate analogy when determining whether a detention has occurred in a pedestrian-stopping case. In speaking to an individual on the sidewalk, a police officer does not obviously assume control over the movements of an individual in the same way as stopping the driver of a motor vehicle.

More importantly, on the sidewalk, unless there is evidence to the contrary, as required by Therens , there is no compulsion to speak and one can walk away. 58 The case of R. v. Simpson (1993), 1993 CanLII 3379 (ON CA) , 79 C.C.C. (3d) 482 (Ont. C.A.), upon which the accused also relies, is distinguishable from this case. It is yet another motor vehicle case and the detention flowed from that initial fact. At p. 488: The appellant was clearly detained when the motor vehicle in which he was riding was pulled over by constable [ sic ] Wilkin: ….

And at p. 489: This detention was a direct result of the stopping of a motor vehicle. 59 Again, the issue in that case was not whether the accused was detained, but rather whether the detention was arbitrary. It is an important distinction. So long as police officers merely question citizens and do not interfere with individual liberties by detaining them, such proactive policing should not be prohibited. 60 Additionally, in Powell , Lane J. refers to the appellate decision in R. v. Young (1997), 1997 CanLII 1455 (ON CA) , 116 C.C.C. (3d) 350 (Ont. C.A.).

In that case, the police observed the accused about a block from a business premise which had been broken into. The accused appeared to be intoxicated. The police questioned him, asking for his name, address and where he had been. The police officer became suspicious because the accused was not taking the most direct route home. The police officer then noted that one of the pockets of the accused’s jeans appeared to bulge and asked the accused if he would empty his pockets. The accused complied and produced a large amount of cash.

When asked how much money he had, the accused gave three different and inaccurate answers. The police officer returned the money, told him there was a break and enter and asked him to accompany the officer to the scene. The accused was driven in the back seat of a locked police car. The police officer was unable to determine if money was missing from the crime scene, but then arrested the accused for public intoxication. 61 While Lane J. relies upon Young , Carthy J.A. simply did not have to determine at what point the detention began.

Specifically, he found it unnecessary to determine “whether that detention commenced when the constable stopped [the appellant] on the street, when he requested him to empty his pockets, or when he put him in the rear of the cruiser” (at para. 9). The Ontario Court of Appeal did not say that merely stopping Mr. Young and questioning him about where he had been constituted a detention. 62 It should also be noted that in the Powell case, there was evidence that the accused felt his liberty was restrained.

As noted by the court (at para. 46): When the marked vehicle approached and they were delayed for a C.P.I.C. search, Mr. Powell’s actions and words clearly indicate that he felt he was in the control of the police, such that he sought Constable Thomas’ permission to light a cigarette. 63 Other decisions which appear to cite Young with approval are equally unpersuasive as supporting the blanket conclusion

that a detention necessarily occurs when the police approach a pedestrian. For example, in R. v. V. (T.A.) (2001), 48 C.R. (5 th ) 366, 2001 ABCA 316 , two young girls were intercepted getting off a bus. While McClung J.A. refers to both Powell and Young , when one reads that case, it is clear that he found there to be a psychological detention. He wrote (at para. 21): Arguably, a detention occurred in this case.

V.’s young age likely indicates that she would have felt at least psychologically compelled to remain with the officers and to comply with their demands. 64 Moreover, the decision in V. (T.A.) is not factually similar in any way to the case at bar. In V. (T.A.) , the police had wiretap evidence, reasonable and probable grounds to arrest and were actively investigating what they thought was a crime when they detained the accused. The real issue in V. (T.A.) was the scope of the investigative powers available to police consequent upon a valid investigative detention.

None of those things can be said about the detention issue in the case at bar. WAS THERE AN UNREASONABLE SEARCH AND SEIZURE? 65 I have already held that there was no detention and therefore the name, address and birthdate of the accused were not acquired by the police in an unlawful manner. However, the accused argues that, even if he was not detained at the time of the CPIC search, inputting that information into the computer violated his s. 8 rights. 66 The implications for law enforcement of a finding that access by the police to CPIC computer information engages Charter rights are significant.

I do not need to enter into that discussion. For the purposes of this case, I would dismiss this ground of appeal for substantially the same reasons as the

summary conviction appeal judge. The accused’s probation order was a public record, as was his criminal record information maintained by the police. The place where the information was obtained was a computer maintained by the obtaining party itself; namely, the police service. The police database is not an area in which the accused can assert a privacy interest that would exclude the right of access of the police.

CONCLUSION 67 I agree with the court in the Powell case that the relatively simple facts of this case raise “very sharply the conflicting values at stake between individual freedom of movement in the community and proactive policing for the prevention of crime” (at para. 2). The answer lies, however, not with inferring a presumption of compulsion into the relations between police and citizens, but rather, with taking police purpose and motive into account as a factor when determining whether there is sufficient evidence from which a court can infer compulsion.

Police purpose and motive can impact on an individual’s reasonable expectations. 68 Thus, while the legal standard set out in Therens for psychological detention remains good law, as can be seen from a review of the jurisprudence, the application of the facts to that law is a complex balancing exercise. There are no bright lines. As Gonthier J. expressed it in R. v. Schmautz , 1990 CanLII 134 (SCC) , [1990] 1 S.C.R. 398 (at p. 415): The concept of detention has evolved since the Charter came into force and it is not always easy to determine in given circumstances whether and when it legally occurs.

From the mere investigation to which a person wilfully collaborates to the custodial arrest of that person, there is a wide spectrum encompassing the varying degrees of legal jeopardies in which the state can put individuals; in some cases, the precise moment when detention arises is by no means easy to ascertain. 69 The overall situation must be evaluated having regard to what is said and done, in what manner, in what location and for what purpose. 70 There can be a range of circumstances in which a person is detained, and in certain circumstances, even a brief interference with a person’s liberty by asking someone to identify themselves or to produce identification may constitute a detention.

However, in the circumstances of this case, I have concluded that, on the balance of probabilities, a detention has not been established. In particular, the accused has not shown that he had a reasonable belief that he had no option but to comply. 71 The appeal is dismissed. ______________________________ J.A. I agree: ______________________________ J.A.

I agree: ______________________________ J.A.