In R. v. Poole, 2015 BCCA 464 two police officers saw the accused walk across a downtown street (a possible jaywalking bylaw infraction) at 3 am. They made a U-turn and pulled up alongside Poole. Rolling down the windows, they asked for his name, where he was going and where he was coming from.
Poole provided his name and identification, which was run through CPIC and an outstanding arrest warrant was discovered. He was arrested and a cursory search was conducted. Police found a loaded, fully cocked handgun concealed in his pants.
In BC Supreme Court Poole argued that he was arbitrary detained under s. 9 of the Charter when he was initially stopped. He further submitted that he was not immediately informed of the reasons for his detention or of his right to counsel, contrary to ss. 10(a) and (b). Since the detention was arbitrary, searching him and seizing the gun breached s. 8.
The trial judge disagreed, finding that Poole was not detained when he was initially stopped and prior to the arrest warrant being discovered and executed. The judge accepted the evidence of the officers over that of the accused. The officers testified that their conversation began spontaneously when the cruiser window was rolled down, without any verbal cues from either officer.
A casual chat followed in which the accused was cooperative and forthcoming. He offered up identification and eventually his criminal past. The encounter was brief, friendly and would not lead the casual observer to conclude that the accused was being detained. The accused was 46 years old, large in stature and had extensive dealings with police over the past 20 years or more.
Here, the actions of the police were not in the nature of a focussed investigation as the term is understood in Grant, nor was there anything in the actions of the police which can be considered either oppressive, either in language or deed, such as to cause a reasonable person in the situation of the accused to conclude that he had no option but to remain.
The encounter was short, approximately five minutes from the initial contact to his arrest. In that brief period, there was no command by the officers which could have reasonably led the accused to conclude he was not able to keep walking or that he was obliged to answer the posed questions.
To conclude otherwise would be to invite the conclusion that every encounter, regardless of how benign and non-intrusive, gives rise to an obligation on the part of the state to advise that person they are free to go or alternatively provide them with the mandated warning of the right to counsel. Such, in my view, is not the law [paras. 70-71, 2014 BCSC 1308].
There was no detention and the evidence was admissible. Poole was convicted of possessing a firearm dangerous to the public peace, carrying a concealed weapon and possessing a restricted firearm without a licence or authorization.
Poole appealed his convictions to the BC Court of Appeal arguing, among other things, that the trial judge erred in concluding that a detention did not occur before the arrest warrant was executed. In Poole's view, a pedestrian has an expectation of complete freedom of movement unless a crime is occurring or police are conducting an investigation. If a pedestrian is stopped by police as part of general policing duties, he contended that it will always amount to a detention.
Justice Fenlon, writing the appeal court's judgment disagreed. "A brief encounter involving police questioning and a request for identification do not necessarily amount to a detention," she said, adding:
In my view this proposition is not supported by the case law. A random stop of a pedestrian absent an investigation or crime may more readily lead to an inference of psychological compulsion, but that does not mean that every such stop amounts to a detention [para. 56].
As for the facts in this case, the trial judge applied the correct test in determining whether a detention had occurred. Justice Fenlon held:
In the present case, based on the trial judge's findings, there was no physical restraint or legal obligation on Mr. Poole to comply with the police officer's request for his name. The officer was making general inquiries, not singling Mr. Poole out for focused interrogation.
The officers did not initially get out of their vehicle or impede Mr. Poole's travel, and the encounter was brief. Mr. Poole was 45 years old at the time, much larger in stature than either police officer, and had considerable past experience with police [para. 62].
Poole's appeal was dismissed and his convictions were upheld.