Lifting t-shirt less intrusive than pat down
By Mike Novakowski
Lifting a detainee's t-shirt during an investigative detention to expose a gun butt wasn't akin to a strip search.
In R. v. Williams, 2013 ONCA 772 an anonymous called phoned a major crime unit officer at around 7:25 PM to say a person was walking near a housing complex with a gun. He was described as a black man, 5' 8," baby faced, with dreadlocks and wearing a black t-shirt and jeans. When the officer asked the caller's name, the caller hung up.
The housing complex was well-known to police and a short distance from the station. The area was referred to as a "stovetop" – a place where crack cocaine is often cooked – and police had been frequently called about ongoing problems with drugs and guns, including shootings. The information was immediately passed on to other major crime unit members. They responded within minutes and noticed an individual (Williams) who fit the caller's description, although his face wasn't initially visible.
By Mike Novakowski
Lifting a detainee’s t-shirt during an investigative detention to expose a gun butt wasn’t akin to a strip search.
In R. v. Williams, 2013 ONCA 772 an anonymous called phoned a major crime unit officer at around 7:25 PM to say a person was walking near a housing complex with a gun. He was described as a black man, 5′ 8,” baby faced, with dreadlocks and wearing a black t-shirt and jeans. When the officer asked the caller’s name, the caller hung up.
The housing complex was well-known to police and a short distance from the station. The area was referred to as a “stovetop” – a place where crack cocaine is often cooked – and police had been frequently called about ongoing problems with drugs and guns, including shootings. The information was immediately passed on to other major crime unit members. They responded within minutes and noticed an individual (Williams) who fit the caller’s description, although his face wasn’t initially visible.
Two officers approached Williams, identified themselves and said they were investigating a weapons offence. One asked, “Are you armed?” Williams did not answer; instead he “bladed” – turned to his side – in a manner the officer considered evasive. The other people with him did not react in the same way.
One of the officers also noticed Williams make a movement toward an area of his waist. He was told to put his hands up and turn around but did neither. The two closest officers took control of Williams’ arms but he resisted, causing police to consider their safety and that of the public to be at risk. One officer lifted Williams’ baggy t-shirt and saw a gun butt protruding from the waistband of his pants. The officer yelled “gun, gun, gun”. Williams was subdued, handcuffed and arrested. The handgun was a fully loaded .45 calibre semi-automatic. A search incident to his arrest also resulted in the recovery of a small amount of marijuana.
Williams argued before the Ontario Superior Court that he was arbitrarily detained under s. 9 of the Charter because neither the anonymous tip nor anything that occurred during the police encounter amounted to the reasonable suspicion required to justify an investigative detention. The judge agreed, in part, finding that it could not be justified by the tip information on its own.
However, the tip along with what occurred as the officers spoke to Williams, was sufficient to provide a reasonable suspicion that he had committed an offence. Thus, the investigative detention that followed was justified. Then, once the gun was seen, the officers had reasonable grounds for the arrest.
The search wasn’t unreasonable. Although lifting the t-shirt wasn’t a pat-down, it was less invasive than one and conducted out of concern for officer or public safety. Finally, even if there were Charter breaches, the judge would have admitted the gun and marijuana under s. 24 (2).
Williams was convicted of several offences related to possessing the handgun and marijuana but reargued in the Ontario Court of Appeal that he had been arbitrarily detained when approached by police. In his view, the tip did not amount to a reasonable suspicion, nor did the subsequent events since his responses were ambiguous and consistent with exercising his right to silence.
Williams also submitted that he wasn’t merely detained for investigation but subjected to a de facto arrest without the necessary reasonably-grounded belief that he committed an offence – and that the search exceeded a pat-down and was more akin to a strip search. Thus, he suggested he was subject to an unreasonable search.
Ontario’s top court first explained the police authority of investigative detention:
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 standard – “reasonable grounds to suspect” – involves possibilities, not probabilities. We must take care not to conflate the test for reasonable suspicion with the more exacting standard of reasonable belief.
A reasonable suspicion entails more than a sincerely held subjective belief, for that is mere suspicion. A reasonable suspicion is a suspicion grounded in “objectively discernible facts, which could then be subjected to independent judicial scrutiny”.
To determine whether the reasonable suspicion standard has been met, a reviewing court must examine the totality of the relevant circumstances. This examination is not some scientific or metaphysical exercise. Common sense, flexibility and practical everyday experience are to be applied through the eyes of a reasonable person equipped with the knowledge, training and experience of the investigating officer.
The standard of reasonable suspicion is not frustrated simply because the factors urged in support may also give rise to an innocent explanation. In the end, if the facts objectively indicate the possibility of criminal behaviour in light of the totality of the circumstances, the objective component of the reasonable suspicion standard has been satisfied.
Any elements or factors considered as part of a “reasonable suspicion” analysis must respect Charter principles. Nor should the exercise of Charter rights, such as the right to remain silent or to walk away from questioning made outside the context of a detention, provide grounds for reasonable suspicion. Yet some factors, including flight from the police, may give rise to reasonable suspicion on their own.
Even if a factor cannot on its own support reasonable suspicion, reasonable suspicion may be established when the same factor is simply one of a constellation of factors. The actions of a person after an initial encounter with the police are part of the circumstances to be considered in deciding whether the reasonable suspicion threshold has been crossed (references omitted, paras. 22-25).
In this case, the tip was an important part of the reasonable suspicion analysis.
“The tip was current, described the nature of the offence being committed and contained sufficient particulars of the suspect to enable police to immediately focus on the (accused) when they arrived minutes later,” the court noted.
In our view, the combination of the anonymous tip and what occurred when the (accused) encountered the police was capable of supporting a reasonable belief that the (accused) might be connected to a gun crime as reported by the anonymous caller. Nothing more was required.
During an investigative detention, police may sometimes conduct a pat-down search of the detainee. Although, strictly speaking, lifting William’s baggy t-shirt wasn’t a pat-down search, it was arguably less intrusive than a pat-down.
“To characterize what occurred here as unreasonable is to sacrifice substance for form,” the court held. “In no sense could this search be characterized as the functional equivalent of a strip search.” The search was reasonable.
Admissibility of evidence
Since Williams failed to demonstrate that the evidence – the gun and marijuana – was obtained in a manner that breached his rights under either ss. 8 or 9, s. 24(2) did not apply. In any event, the trial judge properly considered admissibility if she was wrong in finding no Charter infringements.
Williams’ appeal was dismissed.