“Evidence of weapon excluded from evidence and case dismissed after Judge agreed with argument that client’s rights were breached when he was stopped by police and detained for no reason.”  [COMMENTS BY RICHARD NEARY]

R. v. T______

[2012] B.C.J. No. 1135

2012 BCPC 174

File No. 153282-2-C

Registry: Victoria

British Columbia Provincial Court
Victoria, British Columbia

R.A. Higinbotham Prov. Ct. J.

Heard: May 1, 2012.
Judgment: May 30, 2012.

(59 paras.)

Criminal law — Constitutional issues — Canadian Charter of Rights and Freedoms — Legal rights — Protection against arbitrary detention or imprisonment — Remedies for denial of rights — Specific remedies — Exclusion of evidence — Voire dire to determine whether T______'s section 9 Charter rights were infringed and whether evidence should be excluded — While walking down the street, T______ was stopped by a police officer and questioned — When the officer learned of an outstanding warrant, he arrested and searched T______, finding a knife — The length of the encounter, the questions asked and the significant power imbalance led to a finding that T______ was arbitrarily detained — The evidence of the knife was highly reliable but the Charter breach was significant — The knife was excluded from evidence — Canadian Charter of Rights and Freedoms, 1982, ss. 9, 24(2).

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982, R.S.C. 1985, App. II, No. 44, Schedule B, s. 8, s. 9, s. 10(b), s. 24(2)

Counsel:

Counsel for the Crown: R. Carot.

Counsel for the Defendant: R. Neary.

 


RULING ON VOIR DIRE

1     R.A. HIGINBOTHAM PROV. CT. J.:— A voir dire was held to determine whether Mr. T______ was arbitrarily detained prior to the discovery in his possession of what is alleged to be a prohibited weapon. Counsel for Mr. T______ also alleges his client's rights under both sections 8 and 10(b) were violated, but the determination of those issues is governed by the disposition of the section 9 allegation.

2     In the course of the voir dire I heard from Constables Swanson and McKay as to the circumstances leading to the arrest of Mr. T______. I also heard testimony from Mr. T______ himself as well as from his foster brother C W____.

The Evidence on the Voir Dire

3     The evidence led by the Crown was that Cst. Swanson was involved in what was referred to as "pro-active" policing in connection with high risk youth within high crime areas of Saanich. Cst. Swanson described this in part as stopping and checking young people, particularly those known to him, in order to ensure compliance with probation or bail conditions and to see if they have any outstanding warrants. Cst. Swanson describe it as engaging in "consensual conversations with youth in those areas to see what they're doing, what they're up to, if they're going to school, abiding by curfews, what their home life is like in foster homes, things like that".

4     On the day in question at about 10:40 on a rainy evening Cst. Swanson was patrolling in plain clothes when he saw two young men dressed in what he described as "hip-hop" clothing and noticed they were "looking around a fair bit" as they walked southward along the Quadra St. sidewalk. He thought he recognized one of the young men by the way he was walking and the way he was dressed as a person, B L_______, who was associated with a local gang. His knew that B L_______ is usually bound either by a court order with curfew conditions or is the subject of an arrest warrant so he decided to check him. He said that he almost always stops B L_______ and other known young persons whenever he sees them.

5     Cst. Swanson pulled his unmarked police cruiser into a driveway ahead of the young men, got out, and waited at the rear corner of his vehicle as they approached. He said he was not blocking the sidewalk as he waited. The police vehicle was equipped with a light bar in the rear window and it was flashing red and blue. He said that as the two men approached he identified himself and held out his police badge which was attached to a lanyard strung around his neck. He could see when they got near that the person he thought was B L_______ was not B L_______. In fact, both young men were unfamiliar to him. He said he acknowledged to Mr. T______ and Mr. K_____ that he had mistaken one of their identities.

6     Cst. Swanson decided he would enter into what he referred to as a "consensual conversation with two people that I've stopped on the sidewalk". He proceeded to enquire as to what they were doing that night, where they were going, what they'd been up to, etc. and he received the answer that they had been at home playing video games and were on the way to the store. Cst. Swanson said they were a "little bit hesitant" with their answers. He focussed his attention first on the young man he thought earlier was L_______ and asked him for identification "and he provided that to me willingly". Upon being prompted by Mr. Carot as to whether his intention was to detain the two young men, Cst. Swanson replied as follows:

  • "No, I'm not detaining them at all at that time; I'm just having a conversation. Whenever I do a street check of anybody, have a conversation with them or whatnot, I document it. I'll write their names in my notebook. I'll say what the reason for the conversation was or what the conversation was about. If necessary I'll document it on PRIME, the computer database we use within the municipality, and document it that way. I'll also query the people because I don't know who the individuals are that I'm dealing with. I don't know what their history is, I don't know anything about them whatsoever, what they're capable of."

7     The "query" process was explained further by Cst. Swanson as follows:

  • "... it's part of a line of questioning that I would ask anybody in that situation is if they have any involvement with the police, if they've got any criminal background sometimes, and so again it goes to officer safety. I'm there by myself. I'm in an unmarked vehicle. I'm in street clothing. Somebody driving by might not necessarily know that I'm a police officer at that time. So if somebody wanted to do something bad to me, I'm in a very vulnerable position at that point, so in my mind officer safety is paramount, and so I'm going to ask if they have any police history, anything you know, any criminal background, that sort of thing, and its for officer safety, not because I'm conducting an investigation of sorts or anything like that. It's to see how honest and truthful they're going to be with me so that when I do get their history back, I know."

8     Cst. Swanson testified that he followed this procedure with both Mr. T______ and his companion Mr. K_____. When asked by the prosecutor to describe his (Cst. Swanson's) voice and demeanour he responded that he was not being at all assertive with the two young men and used a normal tone of voice. He added, somewhat gratuitously, that "it wasn't anything that was oppressive or anything like this where I'm forcing them to stand there and talk with me. At anytime they could've walked away and there's nothing I could have done about that".

9     Cst. Swanson testified that things would have been different if he had encountered B L_______ as expected. His questioning would have been harsher, and he would have detained him for investigative purposes. He would have expected to find grounds for arrest.

10     B L_______ was not present, but Cst. Swanson nonetheless used his radio to contact his dispatcher and asked that an enquiry be made to determine if there were any outstanding warrants or conditions in effect for either Mr. K_____ or Mr. T______. He was then advised that Mr. K_____ was clean but that there was an unendorsed warrant outstanding for Mr. T______. He advised Mr. T______ that he was under arrest for the outstanding warrant, and called for a transport vehicle. According to his testimony he told Mr. K_____ "he could keep going on his way and that there are no further issues with him or questions or anything like that ..." Cst. McKay quickly arrived and handcuffed and searched Mr. T______. A knife was found in the left inside pocket of Mr. T______'s jacket.

11     Cst. Swanson testified that right up until the arrest both Mr. T______ and Mr. K_____ were free to go, and free to refuse to stop and talk to him.

12     In cross-examination Cst. Swanson agreed that neither young man was doing anything wrong prior to being stopped. His sole reason for stopping them was that he thought Mr. K_____ was Mr. L_______, and was pretty much convinced that there would be a sound reason to arrest Mr. L_______, either by reason of a warrant or a curfew breach. At no time did Cst. Swanson have in mind that he was investigating a specific crime.

13     Cst. Swanson also confirmed that in his notes he had made a notation that upon Mr. T______'s arrest, he advised Mr. K_____ he was "now free to go", but refused to confirm that those were the words he actually spoke to Mr. K_____. He did concede that at the time of initial contact he directed both of them to stop, but at first couldn't recall whether Mr. T______ first tried to walk around him, or whether he put his arm out to stop him. Eventually he denied that suggestion, but confirmed that he may have put his arm out in front, palm forward, to signal them to stop.

14     Cst. McKay was the police officer who arrived to transport Mr. T______ to the police station. Upon arrival he cuffed Mr. T______ and commenced a search incident to arrest. Upon being asked by Cst. McKay if he had any knives or other sharp objects, Mr. T______ told him he had a knife in his pocket. This was retrieved by the police officer.

15     Mr. T______ is a 22 year old aboriginal young man who was taken from his biological family and into care at an early age. His biological parents had significant problems with alcohol and drug addiction and Mr. T______ has been diagnosed as suffering from foetal alcohol spectrum disorder. He continues to live with his foster family with whom he was placed after removal. His foster family has been very supportive of Mr. T______ and have raised him as a son. C W____ is a biological son within the foster family and testified briefly as to some of the challenges faced by Mr. T______ as a result of the FASD. He described Mr. T______ as a very smart person, but one who has difficulty in processing information. As Mr. W____ said "sometimes I'll start explaining (things) to him and he won't understand. I have to think of a different way of explaining it to him, and once he gets it he's got it ..."

16     Both Mr. T______ and Mr. W____ confirmed that Mr. T______ has some problems with memory. Mr. W____ described it as sometimes fragmented and confused in areas such as the sequence of events.

17     Mr. T______ described the interaction with Cst. Swanson in his own testimony. He said he and his friend Mr. K_____ had been at his friend's house and they had left to buy a bag of chips. As they walked along the sidewalk they suddenly encountered a man in plain clothes with his arm stretched out in a "stop" motion. At first Mr. T______ said he stopped, but went on to say that he and his friend first tried to go around the man on either side. At that point he said Cst. Swanson grabbed his arm and said something about Mr. T______ matching the description of some suspects in a reported crime. He said Cst. Swanson also made a reference to "gangs".

18     With his admittedly vague memory of the events Mr. T______ went on to describe Cst. Swanson, still holding his arm, patting him down and asking if he had any weapons. He said when he told Cst. Swanson he had a knife in his pocket he was placed under arrest. He was not sure whether or not he was handcuffed at that point but he said Cst. Swanson had hold of his arm the whole time. He was sure that at no time during the interaction did he feel free to leave if he so chose.

19     Mr. T______ did recall one other interesting facet to this case. He said that after Cst. McKay arrived and placed him in the rear of his police car the two officers were outside with the knife and appeared to be having difficulty closing the blade. He said he tried to explain to them how to close the blade but they apparently didn't understand his instructions, because they took him from the car, removed his handcuffs and had Mr. T______ close the blade before recuffing him and returning him to the car. Neither police officer could recall this, but did not deny it.

20     In cross-examination Mr. Carot attempted to establish that Cst. Swanson used a conversational voice during the interaction, but Mr. T______ insisted that he was being spoken to as if he had done something wrong, or was being interrogated.

Analysis

21     It is common ground between counsel that Cst. Swanson was not investigating a specific offence, and that no grounds existed for what is euphemistically referred to as an investigative detention. If a detention is found to have occurred in this case it was unlawful and thus arbitrary.

22     The law is quite clear as to what will constitute a detention, but the application of the law by various courts appears to be quite subjective. Little is to be gained by a detailed analysis of conflicting cases with differing factual contexts.

23     A detention takes place when a person is physically restrained by the police but may also occur without physical restraint when a person reasonably feels he has no choice but to submit. It is this latter form of restraint that I will focus on, because while much of his evidence is entirely believable I am not persuaded by the testimony of Mr. T______ that he was physically restrained prior to being arrested on the warrant.

24     According to Regina v. Grant [2009] 2 S.C.R. 353 (S.C.C.) a detention occurs when a person "submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist" (para. 25). This is an objective test and must be determined having regard to all the circumstances.

25     To determine whether the reasonable person would conclude that he had no choice but to comply with the police, the court may consider the following factors found in Grant at paragraph 44:

  • a)

The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; 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.

26     The initial factors to be considered are the circumstances giving rise to the encounter. Cst. Swanson's role was proactive policing within the youth environment of Saanich. His job, according to his testimony, was to engage young people in consensual conversations and see what they were up to, but consensual conversation was not on Cst. Swanson's mind when he pulled his car off the road and directed Mr. K_____ and Mr. T______ to stop. His intention was to detain one Mr. L_______ for investigation about current bail or probation conditions or warrants. He was, to use the vernacular, intending to pick the low hanging fruit. However, once he found that he was mistaken as to Mr. K_____'s identity, he nevertheless began making general inquiries about what these two unknown young men were up to.

27     In Grant, the majority acknowledges at paragraph 40 that pro-active, preventative neighbourhood policing situations are complex. The court held that, in trying to deter crime or keep the streets safe, "[g]eneral inquiries by a patrolling officer present no threat to freedom of choice" (para 41). However in the same paragraph the court also held that general police inquiries can "escalate into situations where the focus shifts from general community-oriented concern to suspicion of a particular individual". While general inquiries do not constitute detention, I am of the view that Cst. Swanson's questions would have reasonably seen by someone in Mr. T______'s position to be a focussed investigation. I do not think that Mr. T______ could reasonably have viewed that Cst. Swanson's reasons for asking questions were "to provide general assistance" or "maintain general order" as stated in the case law. No one was in need of assistance. There was no disorder. However, focussed suspicion does not, in and of itself, constitute a detention. According to Grant what matters is "how the police, based on that suspicion, interacted with the subject" (para 41).

28     This leads to a consideration of the actions of Cst. Swanson, including the language used, the use of physical contact, the place where the interaction occurred and the duration of the encounter. The police must be mindful in any encounter that depending on how they act and what they say, a reasonable person might conclude that he has no choice but to comply. Viewed in isolation, certain words and actions might indicate detention. However, the process of finding detention involves "a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements" (Grant, para 32).

29     The encounter began when Cst. Swanson directed Mr. K_____ and Mr. T______ to stop. Cst. Swanson admits that his original intention was to detain the man who turned out to be Mr. K_____. He turned on his cruiser lights, flashed his badge, put out his arm with his palm facing the men and gave them a verbal direction to stop moving. These are all factors that might lead a reasonable person to conclude that he must comply. Against that, based upon my assessment of the evidence, Cst. Swanson did not block Mr. T______'s path with his car or his body, and so there was an absence of the "adversarial" physical positioning by the police that helped persuade the court that a detention had occurred in Grant.

30     When Cst. Swanson realized he had mistaken Mr. K_____ for Mr. L_______, he admitted his mistake. While this admission might make it less reasonable for a person to assume that someone in Mr. T______'s position would feel he was detained, Cst. Swanson persisted in asking questions of Mr. T______ and Mr. K_____. He asked them (apparently for "officer safety" reasons) if they had a criminal background. In Grant, the line of questioning was found to have changed from "general inquiry" to "interrogation" when the officer asked if Mr. Grant "had any thing on him that he should not". The same is true here, despite the difference in the level of potential self-incrimination. A question about "having anything that one should not" requires someone in possession of anything illegal to either lie or incriminate himself. Asking about a criminal background does not. Cst. Swanson, by asking about criminal history, was not requiring Mr. T______ to admit to anything that had not already been discovered, or was discoverable, by the police. This is an important distinction between the line of questioning in Grant and the line of questioning in this case. However, even though Cst. Swanson's question did not have the self-incriminatory potential, it was still related to their involvement in crime, and should be considered focussed suspicion.

31     Cst. Swanson testified that the conversation was consensual, casual and there might have even been some laughter. He denied being assertive or demanding. However, as casual and as respectful as his tone may have been, Cst. Swanson testified that the language he used to obtain the identification and run the CPIC check did not signify any other choice but to await the outcome.

32     Furthermore, Cst. Swanson had the option to inform Mr. T______ that he was under no obligation to answer questions. Such transparency was suggested by the court in Grant to avoid a detention becoming crystallized (para 39). Cst. Swanson never expressly or impliedly communicated to Mr. K_____ and Mr. T______ that they were free to go until the CPIC check came back. If Cst. Swanson had told Mr. T______ that he was free to leave at anytime, Mr. T______ would likely have left, and in fact, he testified that he would have left. While there are strategic reasons why a police officer might withhold information about the nature of a stop the officer in so doing runs the risk of creating an environment of control even where unintended.

33     Cst. Swanson never told Mr. T______ he was free to leave. He did tell Mr. K_____ that he was "free to go" - but not until Mr. T______ had been arrested. I draw an inference from the choice of words and the timing of the statement that an environment of control had been established before that point. I do not accept the submission of Mr. Carot that "you're free to go", or words to that effect, might suggest that an environment of control had been established after Mr. T______ was arrested, and not before.

34     The duration of the encounter was seven or eight minutes. Detention was found in Grant in an encounter of approximately four minutes. What occurs during the encounter is more important than the length of the encounter, but eight minutes is a long time to be held up by a police officer for no particular reason. It is unlikely that a person would submit to a random series of personal questions, at night, on a dark street, in the rain, on the way to the store, for this period of time without feeling they were required to do so.

35     The third factor to be considered is the particular characteristics or circumstances of Mr. T______. Although the test for detention is objective, Mr. T______'s particular circumstances and perceptions at the time may be relevant in assessing any power imbalance between the individual and the police, to the extent it may be considered relevant. In Grant, the court provided a non-exhaustive list of relevant factors including age, physical stature, minority status and level of sophistication.

36     Mr. T______ is small (5'6", 130-140lbs), young and inexperienced with no criminal history. Mr. T______ is also aboriginal. In his concurring judgment in Grant, Binnie J. found that visible minorities, because of their background and experience, may feel particularly unable to disregard police directions, and that asserting their right to walk away will be taken as suspicious or evasive and thus provide sufficient grounds for a detention of the type considered in Regina v. Mann [2004] S.C.J. No. 49 (S.C.C.).

37     Mr. T______ also has FASD. According to Mr. W____, the disorder causes Mr. T______ to have difficulty processing information as well as in remembering things. Although the Supreme Court of Canada in Grant does not expressly mention "mental disorders" in the non-exhaustive list of relevant characteristics to be considered, the Court does refer to "level of sophistication". Mr. T______'s FASD affects his level of sophistication.

38     In Grant, the power imbalance between the police and Mr. Grant was found to be exacerbated by his youth and inexperience. In a similar fashion, Mr. T______'s size, age, minority status and reduced level of sophistication tends to exacerbate the already considerable power imbalance between a citizen and a police officer.

Conclusion

39     The process of determining whether a detention has taken place involves "a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements" (Grant, para 32).

40     Although there are many words and movements that do not, in isolation, trigger a detention, a reasonable person in Mr. T______'s relevant circumstances would believe that he had no choice but to comply with the Cst. Swanson's directions. Given the type of questions that were asked of Mr. T______, and the way in which the encounter began, a reasonable person would have determined that he was the subject of a focussed investigation. The direction to stop moving, the flashing lights, the questions about criminal history, the omission by Cst. Swanson to tell them that they were free to go until after Mr. T______ was arrested, and the length of the encounter in the particular circumstances suggest that an environment of authoritative control had been clearly established. The power imbalance between Mr. T______ and Cst. Swanson was significant considering his age, size, minority status, and level of sophistication. These factors, considered with respect to the entire interaction as it developed, suggest that a reasonable person, likely to "err on the side of caution" (see Grant, paragraph 30), would have felt he had no choice but to comply with Cst. Swanson's directions.

41     According to Grant, "a detention not authorized by law is arbitrary and violates s. 9" (para 54). In this case both Crown and Defence have agreed that there were no legal grounds for a detention, and the only contest was whether or not a detention had taken place. Based upon my findings and analysis of the applicable principles of law, I rule that Mr. T______ was detained in a manner not authorized by law and that his right to be free from arbitrary detention was violated.

Disposition under s. 24(2)

42     The key question in a s. 24(2) analysis is "would a reasonable person, informed of all the relevant circumstances and the values underlying the Charter, conclude that the admission of the evidence would bring the administration of justice into disrepute?

43     The Supreme Court of Canada in Grant provided three lines of inquiry to consider. They are set out at paragraph 71 as follows:

  • a)

The seriousness of the Charter-infringing conduct;

  • b)

The impact on the breach on the Charter-protected interests of the accused;

  • c)

Society's interest in the adjudication of the case on its merits.

44     The first line of inquiry is concerned with sending the message that the justice system does not condone serious state misconduct. The more severe or deliberate the violating conduct was, the greater the need for the courts to dissociate themselves from the conduct.

45     In Grant, the court found that, although the police arbitrarily detained the accused, the conduct was not abusive. That is also the case here. Cst. Swanson was not abusive in the questioning process. Nor was he was acting in bad faith. However, Cst. Swanson was abusing his power, even if not abusing Mr. T______. His grounds for detention were completely arbitrary. The men were not engaged in any suspicious activity yet Cst. Swanson felt it legitimate to engage in "random virtue testing". There was no apparent reason for Cst. Swanson to believe that the men were connected to a crime, but he directed them to wait around for a CPIC check anyway.

46     In Grant, the police were involved in a similar type of conduct but the court noted that the police officers were "operating in circumstances of considerable legal uncertainty", as the jurisprudence on s. 9 was unclear. The court held that due to this legal uncertainty, the police officers' conduct was understandable and forgivable. The Court also added at paragraph 133 that its decision would "render similar conduct less justifiable going forward". At the time of this detention the court's ruling in Grant was well known, or ought to have been, and the state of the law is much clearer. For example, in Regina v. Reddy [2010] B.C.J. No. 49 (B.C.C.A.) the B.C. Court of Appeal found that eleven months was "ample time" for police officers to bring their practices into conformity with law, and excluded handguns as evidence in similar circumstances. Thus the actions of Cst. Swanson are not governed by the same degree of legal uncertainty as was the case in Grant.

47     The second line of inquiry is concerned with sending the message that individual rights count for something. The inquiry focuses on the seriousness of the impact of the breach on the Charter protected interests of the accused. The impact of a Charter breach may range from fleeting to profoundly intrusive (Grant, para 76).

48     The arbitrary detention in this case curtailed Mr. T______'s liberty. In Grant, the Court found that "notwithstanding the fact that the detention did not involve any physical coercion and was not carried out in an abusive manner ... the impact of the breach, while not severe, was more than minimal" (para 135). I reach the same conclusion with respect to the violation here. The breach of Mr. T______'s Charter protected interest to be left alone and not be subject to random detention and CPIC checks is significant but not severe.

49     Prior to Grant, s. 24(2) jurisprudence on derivative physical evidence had been dominated by the related concepts of conscription and discoverability. The "discoverability" of evidence refers to whether or not, but for the violation, the evidence would have been recovered. The conscription-discoverability doctrine has been justifiably criticized as speculative and difficult to apply. Since the Collins/Stillman approach to s. 24(2) has been rejected, discoverability is no longer determinative; but it may still be useful (Grant, paras 121-122).

50     Mr. Carot submits that the knife was discoverable because the police had the authority to ask for Mr. T______'s name. From the name, Cst. Swanson could have lawfully run a CPIC check. The CPIC check would have alerted Cst. Swanson to the outstanding warrant, and Mr. T______ would have been arrested and searched. The knife would have been found. This submission, however, assumes that Mr. T______ would have voluntarily complied with a police request to provide his name had he not been detained. As pointed out in Grant, the concept of discoverability can be speculative and difficult to apply. In my opinion, the potential discoverability of the knife in this case is not a persuasive factor.

51     The third line of inquiry is concerned about the impact of failing to admit the evidence on the truth-seeking function of a criminal trial. The reliability of the evidence, the importance of the evidence to the Crown's case, and the seriousness of the offence are all relevant considerations under this line of inquiry.

52     Physical evidence, like the knife in this case, is highly reliable. Since the Crown's case against Mr. T______ concerns possession of the knife, the knife itself is critical to a determination of the case on its merits.

53     However, evidence that is essential to the Crown's case does not necessarily need to be admitted. Allowing the third line of inquiry to overwhelm the s. 24(2) analysis would send the message that "the ends justify the means" and that Charter protections are not afforded to those who commit crimes (Regina v. Harrison [2009] 2 S.C.R. 494 (S.C.C.) at paragraph 40).

54     The possession of a prohibited weapon is a serious crime. However, the court in Grant found at paragraph 84 that the seriousness of a crime can "cut both ways" in a s. 24(2) analysis. The court found that the seriousness of the crime was not a useful factor to consider in that case, as the interests of society in admitting the evidence were no greater than that of reinforcing the principle that rights must be respected.

55     That latter consideration of reinforcing the principle that rights must be respected is of real significance in the circumstances of this case. I have heard quite extensively from Cst. Swanson about an aspect of "proactive policing" that is quite troubling in a free and democratic society. I have heard that Cst. Swanson was going to stop and question one B L_______ because of the police officer's strong belief that Mr. L_______ would either be the subject of an outstanding warrant, or would be in breach of bail or probation curfew conditions. Why stop him before ascertaining through radio communications that in fact Mr. L_______ had a curfew or a warrant? I can't think of a good reason. Cst. Swanson's testimony was that this aspect of proactive policing involves engaging in "consensual conversation" to see what people are up to, but calling it a consensual conversation does not make it so. It is as if Cst. Swanson had engineered his vocabulary to accord with the principles set out in the case authorities.

56     I would add further that I have difficulty accepting Cst. Swanson's justification for the type of focussed questioning he engages in when he makes a stop such as he did in this case. He said, and I quoted him at paragraph seven of this decision, that he enquires of them as to criminal background for officer safety reasons, then goes on to say that it is a method by which he tests a subject's honesty; to see if the answer obtained from the subject accords with the information received back from the police computer programs CPIC and PRIME. In my opinion this has nothing to do with officer safety. What it does establish is that in each and every case where such a stop is made the police officer is going to focus an investigation into the criminal background of the person. All of this is done without any reasonable suspicion that the person stopped has doing anything wrong at all.

57     In my opinion this is questionable enough when done to a person such as B L_______ but it is to be strongly discouraged when carried out as a matter of routine practice. Mr. K_____, for example, was detained for a significant period of time and questioned about his background without any reasonable suspicion at all. I am certain there are many more Mr. K_____s out there who have had their freedom of movement restricted in an arbitrary fashion for no other reason than that they were young, wearing hip-hop clothes and walking along a major thoroughfare to get to the nearest store. They have no forum for redress as they were never charged with an offence.

58     Mr. K_____ has no standing before this court, nor do any others that have been arbitrarily stopped, detained and questioned where no reason to arrest was found. It is not their rights that I rule on, but I am of the opinion that in determining whether a remedy should be afforded to Mr. T______ in this case, I can consider the impact of a generalized "profiling" practice on the community at large, and the importance of ensuring that the right to be free from arbitrary detention is respected.

59     I have determined that this particular violation was significant to Mr. T______, and that the evidence shows that if not denounced by judicial decision it will become a routine aspect of normal police conduct, if it has not already. For these reasons the evidence of the finding of the knife will be excluded.

R.A. HIGINBOTHAM PROV. CT. J..

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