Investigative detention for provincial offences not arbitrary

Mike Novakowski
February 29, 2016
By Mike Novakowski
A detention to investigate provincial offences was lawful as it was based on a reasonable suspicion, Ontario's highest court has ruled. In R. v. Darteh, 2016 ONCA 141 a property manager complained to police about trespassers in the apartment complex's courtyard area after 8 pm. Police on bikes checked the area and saw 24 year old Darteh carrying a partially consumed bottle of alcohol and wearing a backpack. He saw the officers and tried to open the door of the nearest residential unit, which appeared to be locked. He was unusually nervous and the officers inferred that he have been drinking in the courtyard. Darteh was detained in front of the residence for the investigation of provincial trespass and liquor-related offences. His hand trembled as he produced a health card for identification and he leaned back against the wall. An altercation ensued in which he shoved and kicked the officers and ran into the residence. He was arrested in the front hallway of his home.

A detention to investigate provincial offences was lawful as it was based on a reasonable suspicion, Ontario's highest court has ruled.

In R. v. Darteh, 2016 ONCA 141 a property manager complained to police about trespassers in the apartment complex's courtyard area after 8 pm. Police on bikes checked the area and saw 24 year old Darteh carrying a partially consumed bottle of alcohol and wearing a backpack. He saw the officers and tried to open the door of the nearest residential unit, which appeared to be locked. He was unusually nervous and the officers inferred that he have been drinking in the courtyard.

Darteh was detained in front of the residence for the investigation of provincial trespass and liquor-related offences. His hand trembled as he produced a health card for identification and he leaned back against the wall. An altercation ensued in which he shoved and kicked the officers and ran into the residence. He was arrested in the front hallway of his home.

Police searched his backpack, found a 9mm Intratec semi-automatic pistol, and charged Darteh with assaulting police and firearms offences.

In the Ontario Superior Court of Justice Darteh alleged numerous Charter breaches, including arbitrary detention (s. 9) and unreasonable search (s. 8). He wanted the evidence excluded under s. 24(2) or a stay of proceedings. The judge rejected the application, finding Darteh had been lawfully detained for a brief investigation for offences under Ontario's Trespass to Property and Liquor License acts. His arrest was lawful and the backpack search reasonable as an incident to lawful arrest. Darteh was convicted of assaulting police and various firearms and weapons offences.

Darteh appealed to Ontario's top court arguing that his detention was arbitrary and breached s. 9. He suggested that acting nervously, walking away quickly from police and stopping at the first available apartment could not ground a reasonable suspicion that he was engaged in a liquor-related or trespass offence. In his view, the handgun should have been excluded from evidence and the convictions for assaulting police should be overturned. He wanted either acquittals or a new trial.

The Ontario Court of Appeal upheld the trial judge's ruling that the detention was lawful.

"The police may detain a person for investigative purposes if they have reasonable grounds to suspect that the person is connected to particular criminal activity and that such a detention is reasonably necessary in the circumstances," the court said in a short endorsement.

"The standard ‘reasonable grounds to suspect' requires that the police have a ‘reasonable suspicion' or a suspicion that is grounded in objectively discernible facts, which could then be subjected to independent judicial scrutiny."

In the appeal court's opinion, the trial judge properly assessed the evidence in finding that police had a reasonable basis to suspect Darteh was a trespasser committing a provincial offence. The information and facts available at the time of the detention, when considered in their totality, were objectively capable of supporting reasonable suspicion. These included:

  • The manner in which Darteh had turned to the first available doorway and urgently tried to gain entry by turning the door handle and knocking.

  • He did not have a key to the unit that he was trying to enter, carried a partially consumed bottle of liquor, smelled of alcohol and had blood shot eyes such that it could be inferred he had been drinking in the courtyard.

  • His very nervous demeanour, including a trembling hand and his manner of standing with his backpack up against the wall.

  • The complaint from the property manager that there were trespassers in the courtyard area, particularly during the evenings after 8 pm, and that someone appeared to be letting them in.

Although each of the facts considered in isolation may have been insufficient to support a reasonable suspicion that Darteh may be engaged in trespass or liquor-related offences, when viewed together they were capable of doing so.

"Reasonable suspicion may be grounded in a constellation of factors, even if any one of those factors on its own would not have been sufficient," said the court. Darteh's s. 9 Charter rights were not infringed and his appeal was dismissed. (Additional facts taken from 2014 ONSC 895).

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