) ) HER MAJESTY THE QUEEN Respondent – v. –, 2013 ONSC 1885

CITATION : R. v. Warsame, 2013 ONSC 1885 COURT FILE NO.: 10-8584 DATE: 2013/03/28 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN Respondent – and – HABIL WARSAME Appellant ) ) ) ) ) ) ) ) )) ) ) )) Delinda Hayton, for the Respondent Leonardo Russomanno, for the Appellant ) ) HEARD: February 27, 2013

Summary Conviction Appeal Decision Justice L. ratushny [ 1 ] The appellant appeals his conviction of one count of obstructing a police officer in the execution of his duty contrary to s. 129 (

a) of the Criminal Code and of two counts of failure to comply with an undertaking contrary to s. 145 of the Criminal Code . [ 2 ] The sole issue on this appeal is whether the trial judge erred in his analysis of when the appellant was detained by police, thereby triggering his Charter rights under sections 7, 8, 9, 10(

a) and 10(b). [ 3 ] The appellant brought a Charter application at trial, alleging he had been detained from the outset of his interaction with police on the charge date. The trial judge found, as the Crown had submitted, that detention did not occur until the appellant gave the police a false name and that there was no Charter breach and therefore no exclusion of evidence as a consequence of a breach.

THE FACTS [ 4 ] The facts are not in dispute and come from Officers Crapigna and Diraddo, the two police officers who testified on the Charter application at trial. [ 5 ] In October 2010, Officers Crapigna and Diraddo together with four other officers were on general foot patrol at 10:50 p.m. in an Ottawa park known to them to be frequented by individuals involved in street gangs and drug trafficking activities. The police characterized their attendance in the park as proactive policing. It was dark. Officer Diraddo was using his flashlight.

The police were in full uniform. [ 6 ] Officers Crapigna and Diraddo were walking southbound when they observed three males standing on the bleachers near the baseball diamond in the park and talking to each other. These two officers approached the three males and the four other officers approached from the opposite direction. Officers Crapigna and Diraddo engaged all three in general conversation with questions such as “Hey, what’s going on? What are you doing in the park?” The appellant answered that he had just finished a class at the University of Ottawa and was chilling with his friends.

[7] Officer Crapigna then turned his attention to the appellant who had answered his initial question and who happened to be theclosest to him on his right side and asked the appellant for his name. He said he focused on the appellant as he recognized himimmediately as having been arrested by Officer Dirrado a few months earlier on charges of trafficking and he knew the appellant was onrelease conditions.

Officer Crapigna agreed that after the first general question to all three males and upon recognizing the appellant, hewas investigating a possible breach by the appellant of his bail conditions. [8] The four other officers were speaking to the other two males and were about six to fifteen feet away.

Officer Dirradoremained the closest to Officer Crapigna, about six to fifteen feet from his left side. [9] The appellant identified himself to Officer Crapigna with a false name and false date of birth and said he had never had anynegative dealings with police and the police were wasting their time talking to him. [10] Officer Crapigna told the appellant he recognized him from when Officer Diraddo had arrested him months before on chargesof trafficking and he said, “Aren’t you on charges for trafficking?” [11] The appellant denied this and Officer Crapigna called to Officer Dirrado who was nearby and asked him if he remembered theappellant from having arrested him. [12] Officer Dirrado replied that he remembered the appellant and asked Officer Crapigna for the name the appellant had providedand his date of birth.

Officer Dirrado responded that the surname the appellant had provided was correct but the other particulars wereincorrect and called for a police cruiser to attend the scene so he could use its mobile computer to refresh his memory and correctlyidentify the appellant. The cruiser appeared on scene in about five minutes. [13] Throughout Officer Crapigna’s interaction with the appellant he told the appellant to keep his hands out of his pockets. Hetestified he said this for his own personal safety and had to say it a number of times as the appellant continued to start to put his handsinside his pant pockets.

He didn’t yell this request or even state it firmly but rather said, “Keep your hands out of your pockets, man.” [14] Officer Crapigna was ambiguous as to whether the appellant would have been able to leave and walk away once OfficerCrapigna had recognized him and suspected he was breaching his bail conditions.

Officer Dirrado said that after he had recognized theappellant as having been arrested by him for trafficking he would not have allowed the appellant to walk away. [15] Immediately after Officer Dirrado confirmed with the police cruiser’s computer and advised Officer Crapigna that theappellant was in breach of conditions of his undertaking in respect of his arrest for trafficking in May 2010, Officer Crapigna arrestedand searched the appellant and advised him of his Charter rights. He agreed that he had not advised the appellant of his Charter rightsearlier. DETENTION UNDER THE CHARTER: R. v.

GRANT, 2009 SCC 32 [16] I turn to Grant for assistance in determining when the appellant was detained by police, both for the Supreme Court ofCanada’s clear enunciation of the purpose of the Charter rights linked to detention as well as for the Court’s guidance on the issue ofdetermining when detention of the appellant occurred, which is a question of law. [17] In Grant, the Supreme Court of Canada revisited the definition of “detention” under ss. 9 and 10 of the Charter and noted thatto interpret “detention” in those sections generously, yet purposively (R. v.

Big M Drug Mart Ltd., (SCC), [1985] 1S.C.R. 295, (SCC), at p. 344), the Court must consider the context in which it is embedded, namely the purpose of the rights linked todetention (Grant, at para. 18). [18] The Court noted that under s. 9, “[e]veryone has the right not to be arbitrarily detained or imprisoned” and s. 10 “accordscertain rights to people who are arrested or detained, including the right to retain and instruct counsel” (Grant, at para. 19). It reviewedthe broad purpose of s. 9, being to protect an individual’s physical and mental liberty from unjustified state interference.

It returned tofirst principles referred to by Martin J.A. in the Ontario Court of Appeal as cited in Dedman v. The Queen, (SCC), [19852 S.C.R. 2, at p.1, that an individual confronted by state authority ordinarily has the option to choose simply to walk away (Grant, atpara. 21). [19] The Court then stated that when the choice to walk away has been removed whether by physical or psychological compulsion,the individual is detained.

Once detained, s. 9 guarantees that the state’s ability to interfere with personal autonomy will not be exercisedarbitrarily, the individual’s choice whether to speak to the authorities remains and is protected by the s. 10 informational requirementsand right to counsel as well as by the s. 7 right to silence (Grant, at paras. 21 and 22). [20] The Court also reviewed the general purpose of the Charter rights triggered by detention, as being rights that are engaged bythe vulnerable position of the person who has been taken into the effective control of the state authorities and that are principallyconcerned with addressing the imbalance of power between the state and the person under its control.

More specifically, the Courtexplained, the rights are designed to ensure that the person whose liberty has been curtailed retains an informed and effective choicewhether to speak to state authorities, consistent with the overarching principle against self-incrimination (Grant, at para. 22). [21] The Court next turned to defining “detention” under s. 9 and 10 of the Charter. It reviewed its earlier decisions in R. v.Therens, (SCC), [1985] 1 S.C.R. 613 and R. v.

Mann, 2004 SCC 52. [22] The Court confirmed that detention occurs when a state agent, by way of physical or psychological restraint, takes away anindividual’s choice simply to walk away (Therens, at p. 644 as referred to in Grant, at para. 25). [23] At the other end of the spectrum of when there is detention, however, it rejected the

interpretation that detention should bereduced to a situation of any interference, however slight. The Court concluded that while the forms of interference s. 9 guards againstare broadly defined to include interferences with both physical and mental liberty, not every trivial or insignificant interference with this

liberty attracts Charter scrutiny ( Grant , at para. 26 , referring to Mann , at para. 19 per Iacobucci J.): …the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter , every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”.

But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. [ 24 ] The Court then reviewed the situation that had faced the police in Grant , where there had been no legal compulsion requiring Grant to comply with a police direction or demand but instead, it had been a situation that arose in the context of neighbourhood policing.

The Court observed that the non-coercive police role of assisting in meeting needs or maintaining basic order can subtly merge with the potentially coercive police role of investigating crime and arresting suspects so that they may be brought to justice ( Grant , at para. 40 ). [ 25 ] This is also the situation that arises in the present case. [ 26 ] The Court in Grant reiterated that general inquiries by a patrolling officer present no threat to freedom of choice but that such inquiries can escalate into situations where the focus shifts from general community-oriented concern to suspicion of a particular individual.

It said that focused suspicion, in and of itself, does not turn the encounter into a detention. What matters is how the police, based on that suspicion, interacted with the subject ( Grant , at para. 41 ). [ 27 ] This is entirely applicable to the consideration in the present case of whether there was a detention from the outset of the appellant’s interaction with police. ANALYSIS [ 28 ] Officers Crapigna and Diraddo began their park patrol by asking the three males why they were in the park.

This was part of their non-coercive police role of maintaining basic order in a park known for its illegal activities and community complaints. Almost immediately after their first engagement with the males and asking them what they were doing in the park, the appellant answered and Officer Crapigna recognized him as a person on bail conditions who was possibly in breach of those conditions by being in the park. It is at this point that Officer Crapigna’s general community oriented concern became one of focused suspicion regarding the appellant’s bail conditions and he asked him his name. [ 29 ] As stated in the

summary in Grant , at para. 44 (2), this is one of those situations where it is not clear whether the appellant was detained at that moment of focused suspicion of a possible breach of release conditions. The test is “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”.

Factors to consider include how the police interacted with the individual based on their suspicion, the language used, the use of physical contact, the place where the interaction occurred, the presence of others, the duration of the encounter and the particular characteristics or circumstances of the individual where relevant, including level of suspicion. [ 30 ] In the present case, the choice facing the appellant, as for any individual including the other males in the park that evening, was to refuse to answer Officer Crapigna’s question about his identity and release status and to walk away.

He didn’t and instead, gave Officer Crapigna a false first name and date of birth.

Officer Crapigna then asked the appellant if he wasn’t out on charges of trafficking and when the appellant answered “no”, Officer Crapigna called to Officer Diraddo who informed him his memory had been correct, that he had arrested the appellant some months earlier for trafficking and that the first name and date of birth supplied by the appellant were incorrect, but Officer Dirrado had to check the correct name on the police computer and from that, the appellant’s bail conditions. [ 31 ] In the situation facing the appellant during his initial interaction with police when he could have refused to answer their questions as to his identity and outstanding charges, would “a reasonable person in his circumstances conclude that he had been deprived by the state of the liberty” of the choice to not answer and to walk away?

I think not. [ 32 ] There were six police in the near vicinity. They were asking the three males the same question of why they were in the park when it was dark. They were not surrounding the appellant, as they had been surrounding Grant in the Grant case. Officer Crapigna was speaking to the appellant because he happened to have been the male closest to him and who had answered his initial question. He immediately recognized the appellant from an earlier arrest so that his suspicion level rose.

After his initial question of the males, he had to keep telling the appellant to keep his hands out of his pockets as the appellant kept moving his hands back to his pockets. Officer Crapigna wasn’t yelling at the appellant to put his hands in the air but it was clearly a request from a uniformed police officer that had to be obeyed. There was no physical contact between the police and the appellant. No police firearms were drawn.

The period of time between the initial police contact with the three males and Officer Crapigna’s focused suspicion on the appellant resulting in a further question as to whether he was subject to bail conditions was very brief. [ 33 ] Before the appellant provided the false information, the police were not barring his exit either physically or psychologically and general preventative policing was occurring. Immediately after the appellant supplied the false information as confirmed as such by Officer Dirrado, the appellant’s encounter with Officer Crapigna turned into a detention.

From that point on, as Officer Dirrado stated, the appellant would not have been free to walk away. [ 34 ] I conclude that a reasonable person in the appellant’s circumstances in his initial encounter with police would not have believed he had been deprived by the state of his liberty to refuse to answer the police questions. [ 35 ] Of course the background to the appellant’s circumstances that evening as can be reasonably inferred from the false information he supplied to Officer Crapigna, was that the appellant knew he should not have been in the park and was at risk of being detained by police.

However, while that background contributed to Officer Crapigna’s focused suspicion, I cannot conclude the appellant could argue (if this is part of his argument) that because he knew he was breaching a court order during his initial encounter

with police, this should serve to contribute to a belief at that time that he was being immediately restrained by them and deprived of his liberty to refuse to answer police questions. The test for detention focuses on an objective assessment of the appellant’s circumstances at the time in question. As part of this objective assessment, I cannot understand the logic of allowing the appellant’s knowledge that he was committing an unlawful act by being in the park to amount to a situation of psychological restraint imposed by police when a police encounter happens to occur.

Instead, in the appellant’s personal circumstances that evening, any belief he may have held that he was restrained by the mere presence of police during his initial interaction with them was self-imposed by his own knowledge of his bail circumstances.

It was not a situation of psychological restraint imposed by the police or their interaction with him. [ 36 ] I accept as correct the Crown’s submissions that there were three different levels of interaction between the police and the appellant that evening, the first involving general questioning, the second an investigative detention after the appellant’s false answers and the third being his arrest. [ 37 ] I conclude by characterizing the appellant’s first interaction with police as being akin to the situation described by Iacobucci J. in Mann as referred to in Grant above, that he was a suspect the police stopped for purposes of identification and interview, that he was delayed or kept waiting, but that his constitutional rights recognized by sections 9 and 10 of the Charter were not engaged by his initial “delay” or encounter that involved no significant physical or psychological restraint or threat to his freedom of choice. [ 38 ] Although the trial judge expressed his reasons for his finding in different terms, I agree with his finding that the appellant’s encounter with police did not effectively crystallize into a detention until he provided Officer Crapigna with information that Officer Dirrado confirmed was false.

No error of law occurred. [ 39 ] It is for these reasons the appeal is dismissed. Justice L. Ratushny Released: March 28. 2013 CITATION : R. v. Warsame, 2013 ONSC 1885 COURT FILE NO.: 10-8584 DATE: 2013/03/28

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – HABIL WARSAME

Summary Conviction appeal decision Ratushny J. Released: March 28, 2013