R. v. Rumbaki, 2024 ONCJ 49

CITATION: R. v. Rumbaki , 2024 ONCJ 49 DATE: January 25, 2024 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HIS MAJESTY THE KING -and- TREVELL RUMBAKI REASONS FOR JUDGMENT Duncan J. 1 . The defendant is charged with several gun offences related to two loaded handguns alleged to have been in his possession when he had an encounter with police. 2 . On March 1 2018 around 2 pm Peel police officers O’Conner and Pileggi were driving separate police cars on Harwick Drive a residential street in Mississauga. They had just finished responding to an earlier call in the area.

As they travelled along Harwick they passed a car properly parked at the curb facing towards them. O’C noted that it was a rental car and that it was occupied by a male diver (the defendant) and a female passenger. It had no connection to the earlier call. The defendant was looking down towards his lap and O’C said he thought he might be rolling a joint, though he conceded that he could equally be doing any number of things such as looking at his phone. 3 . OC drove past the defendant’s car, made a U turn and pulled up behind it.

Pileggi had taken no notice of the defendant’s car but followed OC, made a U turn and parked behind him. 4 . As O’C was pulling up behind the defendant both the defendant and the female got out and started walking up the driveway to the adjacent house at 7147 Harwick. O’C shouted at them, demanding that they return to the car. The defendant asked “Why?” and “No. Why?” but the officer did not answer the question. This exchange was repeated a number of times with the officer adding f -bomb expletives to his demand – “Get back in the fucking car” – while he advanced onto the property at that address.

The female stopped but the defendant kept moving up the driveway towards the house. 5 . The defendant then broke into a run – going along the side of the house, across the back yard, over the fence and into the rear neighbour’s yard. O’C was in pursuit only about 4 feet behind. He saw the defendant drop an object into the neighbour’s green compost bin, though he couldn’t see what the object was at that point. He fired his taser, striking the defendant in the back. It apparently had no effect probably due to the coat and sweater the defendant was wearing. 6 .

O’C gave up the chase and decided to return to the car in case the defendant made his way back there. On the way, he looked in the bin and found a handgun with a full magazine. The defence concedes that this was the item discarded by the defendant. 7 . On returning to the car that the defendant had been driving, he found the doors unlocked. He entered for the purpose of finding evidence identifying the driver who had run away. He noted that the keys were in the cupholder in the console. He found a woman’s purse that contained ID in the name of Fernanda Martinez-Argueta with an address of 7147 Harwick. 8 .

O’C went to the door of 7147. A woman answered and soon Ms Martinez-Argueta appeared. O’C arrested her for being the occupant of a motor vehicle in which she knew there was an illegal gun (the one the defendant had tossed). There was some dispute in the evidence as to whether O’C stepped into the foyer and took her by the arm to arrest her or whether she stepped out onto the front step. I find it was the latter. 9 . O’C directed Pileggi to search the car again. The authority relied upon was search incident to arrest (of M-A) . Pileggi found another loaded handgun in a canvas bag on the rear passenger side seat.

In the trunk there were two items of luggage – one with female clothing and make-up and one containing male clothing and the defendant’s passport. 10 . While the car was being searched a man identified as Devante Pryce appeared on scene. He was a relative and friend of the defendant. He told police that he had rented the car the day before and lent it to the defendant who kept it overnight. Pryce had no belongings in the car except the rental agreement which was in his name. Pryce said that at about 2:40 pm he received a text from the

defendant telling him that the police were searching the car and he should pick it up at 7147 Harwick in Malton. He tried to call the defendant back but there was no answer. He took an Uber to the address. 11 . Ms. M-A was charged but the charges were eventually withdrawn. She testified as a Crown witness. She said that she had met the defendant in person for the first time the day before (Feb 28) though they had communicated on social media for some time before that. They went on a first date to Niagara Falls and stayed overnight. It was her birthday.

When they returned, they went to 7147 Harwick, her mother’s house. She didn’t notice the police until they were out of the car and walking to the house when the police started yelling at them to “get back in the fucking car.” The defendant refused and then ran. Shortly thereafter the police came to the door. She said the officer entered and grabbed her harm hard, arrested her and pulled her out of the house. She said she knew nothing about any gun and did not know there had been a gun in the car or on the defendant’s person. 12 . The defendant was not arrested until 2022. Detention: 13 .

The mostly undisputed factual scenario describes a police officer targeting and confronting a racialized individual with absolutely no grounds to do so. The confrontation by police was aggressive, profane and highly confrontational. His unconstitutional frolic set off a chain reaction that soon included an unlawful arrest of another individual and at least one if not two unlawful searches. 14 . It is ironic that in this scenario, the pivotal issue centres on what in my view is the most insignificant fact – whether the defendant was “detained” before he ran away. 15 .

Counsel for the defendant submits that, before he ran, the defendant was detained within the meaning of

section 9 and 10 of the Charter . He submits that the detention violated

section 9 because it was groundless and therefore arbitrary. He submits that 10a was violated because the defendant was not told the reason for the detention – even though he asked. 16 . The Crown argues that the defendant was not detained though concedes that if he was, that the two sections were infringed. The Crown contends that by fleeing the defendant avoided detention in that he did not submit or acquiesce in the deprivation of his liberty. 17 . Detention within the meaning of the Charter is not the same as that word is used in common parlance: R v Reid 2019 ONCA 32 .

Under the Charter, detention refers to some significant level of physical or psychological restraint imposed upon the individual by police. 18 . Cases of physical detention are usually simple and self evident. Psychological detention is considerably more difficult. Put as simply as possible, it requires some conduct on the part of police that in all the circumstances would cause a reasonable person to conclude that he was not free to leave or refuse to comply.

In dispute in this case is whether there is a second requirement – that the targeted individual actually complies, acquiesces or submits in response to the police conduct – and, if so, whether such compliance occurred here. 19 . As for the police conduct, it can include words, demands, commands, actions, gestures, movements or bodily positioning. The SCC in Grant 2009 SCC 32 at para 44 suggested a non-exhaustive list of factors for trial courts to consider: 1.

Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. 2.In cases where there is no physical restraint or legal obligation, it may not be clear whether [page385] a person has been detained.

To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors: (a)The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation. (b)The nature of the police conduct, including the language used ; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. (c)The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status ; level of sophistication. 20 .

There can be no dispute that the officer’s orders were more than sufficient to constitute police conduct capable of creating psychological detention of a reasonable person, including the defendant. The defendant is a young black man who was clearly targeted for investigation and was subjected to very forceful commands that lacked any apparent justifying grounds. It was a highly aggressive and adversarial confrontation.

21. What is the effect of the defendant rebuking the order and running away? The Crown contends that by saying “No” and “Why?” thedefendant did not submit or comply with the demand and by fleeing the defendant avoided detention and the deprivation of his liberty. 22. There have been several cases of high and binding authority dealing with factual situations where the suspect has run away when heis confronted by police. 23.

In the leading Ontario case of R v Nesbeth 2008 ONCA 579 police were patrolling the stairwell of an apartment building said to bethe location of high incidence of drug, gang and other criminal activity. They encountered a young man carrying a knapsack and directeda question to him “Hey Buddy; what are ya doing?” The young man said “Oh shit” and bolted, clutching the pack. The police yelled“Stop police” during the foot chase that ensued. While in flight, he discarded the knapsack before he was tackled and held.

Thebackpack was retrieved and searched, revealing the presence of a large amount of cocaine, a scale and three cell phones. The trial judgefound that on initial interaction with the defendant, the police intended to detain him but had no grounds to lawfully do so. He found thatintention plus the words used to amount to a breach of

section 9 and that everything thereafter flowed from this Charter offending policeconduct. The trial judge excluded the drugs and acquitted. 24. The Crown appealed. In allowing the appeal, the Court addressed a number of points that have application to this case. On thequestion of detention the Court held that, although there was a demand, there was no compliance and therefore no detention: 16 In this case, while there was a demand: "Stop, police", the element of compliance with the demand was missing. Far fromcomplying, the respondent made it abundantly clear that he had no intention of being detained.

While the police obviouslyintended to detain the respondent after he began to flee, as the court said in R. v. Clayton (2007), 2007 SCC 32 , 220 C.C.C. (3d)449 (SCC) at para. 48: "Intention alone does not attract a finding of unconstitutionality." Thus, there was no detention at the start of thepursuit. (bolding added) 25. In R v Atkins 2013 ONCA 586 the Court dealt with a case where police officers in an unmarked van thought the suspect was dressedand acting suspiciously as he moved along with other pedestrian traffic on the street. An officer called out to him “Hey” and then “HeyBuddy” and then waved him over.

The defendant started walking towards the van but when the officers stepped out making theiruniforms visible, he ran. He was pursued, caught and found to be carrying a handgun. The Court of Appeal said: 10 The question of what qualifies as a psychological detainment is fraught with difficulty, as the Supreme Court pointed out in Grant atparas. 30-44. Would a young black man, being a "reasonable person" (para. 41 of Grant), and being a member of a minority (para. 44(2)(

c) of Grant), "conclude he or she had no choice but to comply with a police officer's request." The fact that the appellant ran may wellbe some evidence that he believed that he had no choice but to comply, and instead of complying, decided to escape. However, as thetrial judge recognized, if the appellant did not acquiesce or submit to any deprivation of liberty, there could be no detention.(bolding added) 26.

Counsel for the defendant submits that the compliance requirement is no longer a necessary component for psychological detention.Reliance is placed on the Supreme Court of Canada decision in R v Le 2019 SCC 34 , 2019 SCJ 34.[1] In Le police officersentered uninvited into a fenced backyard of a townhouse where several young men were hanging out, doing nothing apparently illegal.The police asked questions and gave directions such as to keep hands where they could be seen. One officer approached the defendant Leand asked to see some ID. He answered that he didn’t have any.

The officer then asked what was in the satchel that he was carrying atwhich point Le fled. He was caught and the satchel was found to contain a gun and drugs. 27. All levels of Court found that there had been a detention before Le ran. The trial judge found that Le had been detained when askedabout the satchel just seconds before he fled. [2] He cited Nesbeth in support of his conclusion. In the SCC detention itself was not inissue the only difference of opinion being as to when the detention began.

The majority in the SCC held that it began as soon as thepolice entered the yard uninvited; the minority found that it began when one of the youths (not Le) was ordered to place his hands wherethey could be seen. 28. The Supreme Court majority judgment clarified the Court’s position with respect to the objective vs subjective component ofdetention: 114 Before this Court, the Crown has argued that claimants' subjective perceptions about whether or not they were detained are "highlyrelevant". We do not accept this argument.

It remains, and should remain, that the detention analysis is principally objective in nature.Prior to Grant, the objective nature of the test may have been unclear. For example, in Therens, this Court held that a detention willarise when an individual "submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwisedoes not exist" (p. 644) -- a statement that may have suggested that the analysis focuses on the reasonableness of an individual'ssubjective perceptions.

But in Grant, this Court clarified that the analysis is objective. 115 Undue focus on subjective perceptions detracts from the underlying rationales for adopting an objective test, of which there are atleast three. First, as this Court held in Grant, the objective nature of the analysis enables the police "to know when a detention occurs[and, therefore,] allow[s] them to fulfill their attendant obligations under the Charter and afford the individual its added protections"(para. 32).

Second, the objective nature of the analysis ensures that the rule of law is maintained in the sense that the claims of allindividuals will be subjected to the same standard. That is, the objective standard ensures that all individuals will be treated equally andenjoy the same Charter protections regardless of their own subjective thresholds of psychological detention or their individualperceptions of police interactions. In other words, the objective nature of the analysis leads to some level of uniformity in applying theCharter to police conduct.

Third, and relatedly, the objective nature of the analysis accounts for the reality that some individuals will beincapable of forming subjective perceptions when interacting with the police. 116 The focus of the s. 9 analysis should not, therefore, be on what was in the accused's mind at a particular moment in time, butrather on how the police behaved and, considering the totality of the circumstances, how such behavior would be reasonablyperceived. To find otherwise puts the onus on the claimant to gauge correctly when they are detained and when they are not. This veryproblem arises in this case. Mr.

Le testified that he was not permitted by the police to go into the house and was physically prevented

from doing so. If one accepts Mr. Le's full account of events, then his subjective perception, howsoever fleeting, that he could go into the house was simply wrong. Further, if, as our colleague concludes, the detention occurred when the officer told the young man to keep his hands visible, Mr. Le's subjective perception would have arisen only after the detention had already begun. Even accepting that there may be cases in which the subjective perception of the accused is relevant, this case cannot be one of them. 29 . In my view the Court in Le did not abolish the acquiescence requirement.

But it did substantially shift the focus of the inquiry to the objective, that is, what effect the police conduct would have on a reasonable person (with similar characteristics as the accused). The subjective belief of the defendant and his reaction to the police conduct play a minor role, if any, in most cases. 30 .

I would attempt to reconcile the cases and state the principles as follows: • Where the police conduct or language used is likely to make a reasonable person believe that he must comply, the particular defendant’s belief and reaction is irrelevant: R v Le . • But where the conduct or the words used are not of that character, (“hey Buddy”) detention cannot be inferred without evidence of some measure of compliance or evidence from the defendant as to his subjective belief at the time: R v Nesbeth; R v Atkins . • Where the defendant takes flight in response to mere police presence without or before any demand or direction, there is no detention: see post- Le cases: R v Green 2022 ONSC 1259 ); R v Ratt 2020 SKCA 19 ; R v Thorpe (unreported July 11 2022 Caponecchia J) . • If a command is made during flight and pursuit, there is no detention if there is no compliance with the command: R v Nesbeth; R v Ratt 31 .

Applying these principles here I am driven to the conclusion that the very strong commands that were issued to the defendant constituted detention within the meaning of

section 9 and 10 of the Charter . 32 . I would add the comment that this

interpretation pretty much takes “detention” itself out of the equation and redefines

section 9 as a prohibition against “arbitrary treatment”. Maybe that is the way it should be. As I said above, the focus on detention seems to miss the true essence of what is objectionable about the type of high-handed arbitrary police conduct seen here. Arbitrary: 33 . There can be no doubt that the detention was completely groundless and therefore arbitrary. 34 . I would go further and say that it is difficult to avoid a suspicion and conclusion that the officer’s groundless targeting of the defendant for investigation was racially infected.

There is no other valid explanation for his actions – a telling clue to the presence of racial profiling: R v Ffrench [2022] OJ No 1452 at para 24 . However, as I understand it, the Applicant is not raising racial profiling as a distinct and discrete Charter violation but rather would use it as an aggravating circumstance that augments the case for exclusion under section 24(2). 10a – Reason for detention 35 . No reason for detention was given even though the defendant repeatedly asked why he should do what the officer demanded. Tasering: 36 .

Neither the Notice of Charter Application nor the Applicant’s factum raises the use of the taser as an independent Charter violation. It is relied upon as an aggravating circumstance increasing the seriousness of police conduct overall. Seizure of the gun from the bin: 37 . Having discarded the gun, the defendant had no reasonable expectation of privacy in the discarded item: R v Nesbeth supra paras 21-24 . Aside from that, it could hardly be expected that a police officer would leave a loaded gun in a location where it could be a serious danger to others.

See also power of police to search without warrant for and seize firearms involved in offences:

Section 117.02 Criminal Code: . 117.02

(1) Where a peace officer believes on reasonable grounds (

a) that a weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of an offence, or (

b) that an offence is being committed, or has been committed , under any provision of this Act that involves , or the subject-matter of which is, a firearm , an imitation firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance, and evidence of the offence is likely to be found on a person , in a vehicle or in any place or premises other than a dwelling-house, the peace officer may, where the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practicable to obtain a warrant, search, without warrant, the person, vehicle, place or premises, and seize any thing by means of or in relation to which that peace officer believes on reasonable grounds the offence is being committed or has been committed.

Section 8: First search of the car

38. The officer went back to the car to search for any documentation that might assist in finding the identity of the man with the gunwho had just run away. He looked in the console and saw the keys to the car. He looked in a woman’s purse and found the ID of thewoman with the address of 7147 Harwick. He did not apparently search the car thoroughly. 39. I think this warrantless search was justified by exigent circumstances and authorized by common law and

section 117.02 of theCode. The man who had just been driving had been in possession of a loaded handgun – a serious and dangerous offence. It wasimportant to search for evidence that might identify him (or the woman) or give clues as to his possible whereabouts and it was importantto get that evidence as quickly as possible. It was impractical to get a warrant. The Arrest of M-A 40. While not well articulated in the evidence, the arrest of M-A was apparently for the offence in

section 94 of the Code – occupant ofa motor vehicle in which she knows there is a weapon of a certain type, including a prohibited or restricted firearm. The arresting officermust have some evidence of every element of the offence. 41. In this case there was no evidence that M-A knew there was a firearm in the car or on the defendant’s person when he was in thecar. A crucial element of the offence was missing, and the arrest was therefore unlawful. But this was an infringement of M-A’s rights,not the defendant’s. The second search of the car: 42. The car was searched for a second time without warrant.

The ostensible authority was search incident to arrest. However, if thearrest was not lawful the search incident to it could not be lawful. 43. The Crown has conceded that the defendant had retained some reasonable expectation of privacy in the car, even though he had leftthe keys in it and, at the time of this second search, had texted Pryce and effectively returned the car to him. He still had belongings inthe car. Accordingly, the unlawful search amounted to an infringement of the defendant’s rights under

section 8. [3] 24(2): Exclusion of evidence: 44. There can be no question that the threshold requirement that the evidence be “obtained in a manner that infringed” the defendant’srights is satisfied in this case, given the expanded

interpretation of that phrase: R v Pino ((2016) 2016 ONCA 389 , 337 CCC 3d402 (On CA). 45. On the question of whether the administration of justice would be brought into disrepute, one view might be that exclusion of twoloaded firearms in the circumstances here would require the Court to take a mock-ably inflated view of the seriousness of the policeconduct and its impact on the defendant. In reality, the main objectionable conduct was the officer speaking gruffly and rudely to thedefendant. There would be no complaint (or not much of one) if he had toned it down and used the “Hey Buddy” approach.

The impactwas a detention that lasted mere seconds – it was not physical but only psychological and, even at that, affected only the mind andfreedom of some other hypothetical reasonable person, not the defendant himself. On this view both the seriousness of the police conductand the impact on the defendant was low and near non-existent respectively. 46. But another view contends that by focusing on the particular facts of the case and casting the issue narrowly, the above approachtrivializes and ignores the larger interests at stake.

More broadly viewed, the true issue is an important one of freedom from arbitrarypolice interference, harassment and abuse of authority. 47. This case has many parallels to Le – unjustified targeting by police of racialized individuals, momentary psychological detention,flight and a gun. The SCC majority’s reasoning for its section 24(2) decision to exclude in my view is determinative of the exclusionissue in this case – see paras 143-166 particularly 152 and 153: 152 What interests, then, of Mr. Le are protected by s. 9 of the Charter?

This question was answered by this Court in Grant, at para. 20:"[t]he purpose of s. 9, broadly put, is to protect individual liberty from unjustified state interference" (emphasis added). Suchinterference extends not only to "unjustified state intrusions upon physical liberty, but also against incursions on mental liberty byprohibiting the coercive pressures of detention ... from being applied to people without adequate justification" (para. 20).

Underlyingthis purpose is an uncontroversial principle that is inherent to a free society founded upon the rule of law: "government cannot interferewith individual liberty absent lawful authority to the contrary" (J. Stribopoulos, "The Forgotten Right:

Section 9 of the Charter, ItsPurpose and Meaning" (2008), 40 S.C.L.R. (2d) 211, at p. 231). Absent compelling state justification that bears the imprimatur ofconstitutionality by conforming to the principles of fundamental justice (Grant, at para. 19), Mr. Le, like any other member ofCanadian society, is entitled to live his life free of police intrusion. 153 The stakes are, therefore, undeniably high when a court is presented with a breach of s. 9. The "interest" to which courts must beattuned is not merely in walking into a house, or down the street.

These activities are but manifestations of the interest in one's libertyto make decisions, including decisions of fundamental importance, free from state interference (Grant, at para. 20). These freedomsare to be equally enjoyed by everyone. 48. I am unable to find any significant distinction between this case and Le. Accordingly even if I am not strictly bound by what couldbe considered a mixed legal and factual issue, it is appropriate that I follow the highest Court’s decision. Conclusion: 49. The guns are excluded under 24(2).

January 25 2024 B Duncan J C Bottomley for the defendant C Coughlin for the Crown