R. v. Grant

R. v. Grant Collection Decisions of the Court of Appeal Date 2006-06-02 Docket numbers C43132 Judges McMurtry, Roy; Laskin, John Ivan; Lang, Susan Elizabeth Subject Criminal Decision Content DATE: 20060602 DOCKET: C43132 COURT OF APPEAL FOR ONTARIO MCMURTRY C.J.O., LASKIN AND LANG JJ.A. B E T W E E N : HER MAJESTY THE QUEEN Respondent John Corelli for the respondent - and - DONNOHUE GRANT Appellant Jonathan Dawe for the appellant Heard: October 21, 2005 On appeal from conviction entered on December 1, 2004 and sentence dated December 22, 2004, by Justice Monte H. Harris of the Ontario Court of Justice, made at Toronto, Ontario. LASKIN J.A.: A. OVERVIEW [1] The principal issue on this appeal is whether an encounter between three police officers and an eighteen-year-old youth on the streets of Toronto in broad daylight amounted to a detention and a search contrary to ss. 9 and 8 of the Charter. [2] Two plainclothes officers patrolling the Greenwood and Danforth area of Toronto noticed the appellant walk past them in a manner they considered “suspicious.” They asked a uniformed officer in the area to have a “chat” with him. The uniformed officer stood in the appellant’s path, told him to keep his hands in front of him, and began questioning him. The two plainclothes officers arrived and stood behind the other officer. Initially, the appellant was asked only for identification, but then the questioning turned to whether he had ever been arrested and whether “he had anything on him that he shouldn’t.” In response to the latter question, the appellant said that he had a small amount of marijuana and then, after being asked if he had anything else, he admitted that he also had a loaded revolver. The police arrested the appellant, seized the revolver from his waist pouch, and charged him with five firearms offences. The Crown acknowledged that the police had neither reasonable grounds to detain the appellant, nor reasonable grounds to search him. [3] The appellant brought a motion to exclude the revolver from the evidence at trial, claiming a violation of his Charter rights not to be arbitrarily detained (s. 9) or subjected to an unreasonable search (s. 8) and his right to counsel (s. 10(b)). The trial judge found neither a detention nor a search. He dismissed the motion. [4] The appellant was convicted of all five offences,[1] and sentenced as a youthful first offender to eighteen months’ imprisonment, reduced to twelve months on account of his pre-trial custody. [5] The appellant appeals both his convictions and his sentence. His conviction appeal raises these four issues: (i) Did the trial judge err in concluding that the appellant was not detained? And if the appellant was detained, was he detained before or after admitting to carrying marijuana? (ii) Did the trial judge err in concluding that the police’s questioning did not amount to a search? (iii) If the appellant’s constitutional rights were violated, should the revolver have been excluded from evidence under s. 24(2) of the Charter? (iv) Even if the revolver was properly admitted, did the trial judge err in convicting the appellant of possession of a firearm for the purpose of transferring it contrary to s. 100(1) of the Criminal Code, in the absence of any evidence that he intended to transfer it to another person? [6] If the appellant succeeds on his fourth submission, he asks that his sentence be reduced. B. THE LEGAL CONTEXT: THE MEANING OF “DETENTION” [7] The appellant submits that the police breached his s. 9 Charter right. Section 9 of the Charter guarantees everyone the right “not to be arbitrarily detained.” A detention for investigative purposes will not be arbitrary if the police have reasonable grounds to detain a person: see R. v. Mann (2004), 185 C.C.C. (3d) 308 (S.C.C.). Here, however, as I have said, the Crown accepts that when the police initially questioned the appellant, they did not have reasonable grounds to detain him. If he was detained at that time, his detention was unlawful and arbitrary. Thus, whether the police breached the appellant’s constitutional right under s. 9 of the Charter turns on whether he was “detained” when he was being questioned. [8] Detentions that trigger Charter rights are of two kinds: physical and “psychological.” The appellant was not physically detained. As is the case with most street encounters between a citizen and the police, the issue here is whether the appellant’s liberty was “psychologically” restrained. In Canada, the classic statement of a psychological detention comes from the judgment of Le Dain J. in R. v. Therens (1985), 18 C.C.C. (3d) 481 at 505 (S.C.C.): In my opinion, it is not realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact a lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist. [9] In his later judgment in R. v. Thomsen (1988), 40 C.C.C. (3d) 411 at 412, Le Dain J. reaffirmed that “the necessary element of compulsion or coercion to constitute a detention may arise from criminal liability for refusal to comply with a demand or direction, or from a reasonable belief that one does not have a choice as to whether or not to comply” [emphasis added]. [10] The definition of “psychological detention” reflects a judicial balance between competing values. On the one hand, the police have the duty and the authority to investigate and prevent crime in order to keep our community safe. In carrying out their duty, they must interact daily with ordinary citizens. Not every such encounter between the police and a citizen amounts to a constitutional “detention.” This court and other courts have recognized that police must be able to speak to a citizen without triggering that citizen’s Charter rights. [11] The main decision in this province affirming the police’s right to question citizens is the judgment of Krever J.A. in R. v. Grafe (1987), 36 C.C.C. (3d) 267 at 271: The law has long recognized that although there is no legal duty there is a moral or social duty on the part of every citizen to answer questions put to him or her by the police and, in that way to assist the police: see, for example, Rice v. Connolly [citation omitted]. Implicit in that moral or social duty is the right of a police officer to ask questions even, in my opinion, when he or she has no belief that an offence has been committed. See also the judgment of Osborne J.A. in R. v. Hall (1995), 22 O.R. (3d) 289 (C.A.). [12] On the other hand, ordinary citizens must have the right to move freely about their community. Thus, the police cannot detain a citizen for questioning unless they are authorized by law to do so. And whether questioning gives rise to a detention must be assessed in the light of the concern expressed by Le Dain J. in Therens: that most citizens are unaware of the limits of the police’s authority and the concern expressed by Iacobucci J. in Mann at para. 18 about “the potential for abuse inherent in such low-visibility exercises of discretionary power”. [13] Perhaps because of these concerns, the appellant urged us to draw some “bright- line” rules to govern encounters between police and citizens on city streets: questions merely asking for identification would not give rise to a detention; but questions about a person’s personal possessions or inviting incriminating responses would amount to a psychological detention. [14] Bright-line rules in these situations have the advantage of certainty. But they are ill-suited to address the myriad of circumstances and contexts in which these encounters occur. My colleague Doherty J.A. made this point in Brown v. Durham Regional Police Force (1998), 131 C.C.C. (3d) 1 at para. 62: Obviously, clear and readily discernible rules governing the extent to which the police can interfere with individual liberties are most desirable. The infinite variety of situations in which the police and individuals interact and the need to carefully balance important but competing interests in each of those situations make it difficult, if not impossible, to provide preformulated bright-line rules which appropriately maintain the balance between police powers and individual liberties. [15] Thus, whether a police-citizen encounter gives rise to a detention must be a fact-specific and context-sensitive inquiry: see R. v. Moran (1987), 36 C.C.C. (3d) 225 (Ont. C.A.); and also the reasons of Steel J.A. in R. v. H. (C.R.) (2003), 174 C.C.C. (3d) 67 at paras. 27-30 (Man. C.A.), which make the same point. C.THE ENCOUNTER: WAS THE APPELLANT DETAINED? [16] Because the question whether the appellant was detained or searched turns so crucially on the facts and the factual context, I will set out what occurred during the encounter in some detail. These details are drawn from the police’s evidence on the Charter motion. The appellant did not testify. The details of the encounter are not disputed. [17] The encounter took place on November 17, 2003, about mid-day on Greenwood Avenue, south of Danforth Avenue in Toronto. The area has four schools and a history of assaults, robberies, and drug offences occurring over lunch hour and involving students. The appellant, however, was not a student at any of these schools. The record indicates that he was in the area visiting friends. [18] The two plainclothes officers in the encounter were P.C. Worrell and P.C. Forde. The uniformed officer was P.C. Gomes. None of the three officers knew the appellant. [19] The following is a chronology of what occurred: Time Event 12:25 p.m. ¨ Worrell and Forde were patrolling the Greenwood-Danforth area in an unmarked police car. Their assignment was to "keep an eye out trying to see what was going on, with the hopes of keeping the environment for students safe." 12:27 p.m. ¨ Gomes was on a "directed patrol," in a marked police cruiser at the corner of Danforth Avenue and Greenwood Avenue. He had been told to "maintain high visibility" to deter crime during the high school lunch period. 12:31-12:32 ¨ The appellant was walking north on Greenwood Avenue, toward Danforth Avenue ¨ Worrell and Forde drove past the appellant. As they did so, he "stared" at them in an unusual manner, and "fidgeted" with his coat and pants in a way that Worrell found "just kind of a little bit, I guess, suspicious." ¨ Worrell suggested to Forde that they have a "chat" with the appellant ¨ Coincidentally, Worrell and Forde saw Gomes, who had pulled over on Greenwood Avenue. They decided it would be "more prudent if the uniformed officer would have a chat with this individual." ¨ Forde said to Gomes: "There's a guy coming up northbound on Greenwood on your side, have a chat with him." 12:32 p.m. ¨ Gomes saw the appellant walking on the sidewalk towards him. He got out of his car, approached the appellant, and then stood on the sidewalk directly in the appellant's path. ¨ The appellant put his head down and did not look at Gomes. Gomes "asked him what was going on" and then asked him for his name and address. The appellant produced an OHIP card. ¨ According to Gomes, the appellant was "acting a bit nervous". At one point, the appellant adjusted his jacket, which prompted Gomes to ask the appellant "if he could keep his hands in front of him” where Gomes could see them. 12:34 p.m. ¨ Worrell and Forde pulled up behind Gomes' cruiser. They got out of their car, showed their police badges, and stood on the sidewalk behind Gomes. They stood four or five feet away from the appellant, in the direction he had been walking ¨ Forde explained that he and Worrell joined Gomes on the sidewalk because the appellant was "fidgeting" and looking around in a way he found "suspicious". Worrell said he joined Gomes because he had a "funny feeling" he could not explain ¨ The appellant is 5'9" or 5'10" tall; Worrell and Forde are 6 feet tall; Gomes is about 6'1" tall with a "muscular build." All three officers stood in the appellant's pathway. 12:34-12:38 p.m. ¨ After Worrell and Forde arrived, Gomes continued to question the appellant. He stood about three feet away, in his "interview stance". Whenever the appellant moved, Gomes also moved, to maintain their relative positions. When Gomes asked a question, the appellant "paced nervously before answering." ¨ Gomes asked the appellant whether he had ever been arrested. The appellant replied that "he had gotten into some trouble three years ago". ¨ Gomes then asked the appellant "if he had anything that he shouldn't." At first the appellant replied "No". But then he admitted that he had a "small bag of weed." ¨ Gomes did not immediately arrest the appellant, but agreed that from this point on, the appellant was no longer free to leave. ¨ In response to the appellant's admitting he had some marijuana, Gomes asked "Is that it?" The appellant hung his head and said, "Well, no." Gomes questioned him further and the appellant finally said "I have a firearm." When the appellant made this admission, he had been questioned for about 7 minutes. 12:38 p.m. ¨ The police arrested the appellant and searched him. They seized the marijuana and a loaded revolver. They then advised the appellant of his right to counsel 12:45 p.m. ¨ The appellant was taken to the police station [20] The appellant argues that he was detained from the time of the police’s questioning of him, or, in the alternative, at least after he admitted to carrying some marijuana. I will focus on his main submission: that he was detained when the police began to question him, even before he admitted to the marijuana. [21] The trial judge concluded that the appellant was not detained. Alternatively, he concluded that the appellant had waived his constitutional rights by being forthcoming and co-operative with the police. [22] The trial judge gave lengthy and thorough reasons for his conclusion that the appellant was not detained. Ordinarily, that conclusion would be entitled to deference from an appellate court. However, it seems to me that deference is not warranted because in reaching his conclusion, the trial judge mischaracterized what occurred in at least three important ways. [23] First, he characterized the conversation between Gomes and the appellant as “chit chat.” Respectfully, questioning about whether a person has a criminal record or is carrying something illegal goes well beyond mere “chit chat.” [24] Second, the trial judge characterized Gomes’ advice to keep his hands in front of him where Gomes could see them as a “request,” not a “direction or demand.” In my view, any reasonable person hearing these words from a uniformed officer three feet away would treat them not as a request that might be ignored, but as a command that must be obeyed. [25] Third, the trial judge characterized the encounter as one in which the appellant could simply have walked around three police officers, said “Excuse me” and kept going. This characterization belies the reality of the dynamics of the encounter. That an eighteen-year old could reasonably think that by using polite manners he could walk around three police officers in his path, to me, seems unrealistic. [26] These mischaracterizations undermine the trial judge’s conclusion that there was no detention. I think that this court is entitled to revisit that issue on the undisputed record before it, and I propose to do so. Although I do not have the benefit of the “tone” of the conversation between the appellant and the officers, I think it is preferable for the court to assess the appellant’s claim rather than order a new trial. Neither counsel sought a new trial, and Crown counsel did not strongly argue that the trial judge’s findings should be given deference. [27] Before considering whether the appellant was “detained,” I note that the trial judge’s alternative reason for dismissing the appellant’s motion – waiver – is not supportable. In his able and candid argument before this court, Mr. Corelli acknowledged that the appellant did not give an informed waiver and that the Crown was not relying on the trial judge’s finding of waiver. [28] Therens establishes that a “psychological” detention includes three elements: a police direction or demand to an individual; the individual’s voluntary compliance with the direction or demand, resulting in a deprivation of liberty or other serious legal consequences; and the individual’s reasonable belief that there is no choice but to comply. [29] I have found this appeal to be a difficult case and a close case. Each side has put forward meritorious arguments. In the end I have decided that the appellant has made out the three elements necessary to establish a psychological detention, including the necessary degree of compulsion. I have therefore concluded that the appellant was detained contrary to s. 9 of the Charter during the police’s questioning of him, even before he admitted to possession of marijuana. I rely on the following considerations for my conclusion. · Gomes’ initial demand: Early in the encounter, Gomes stood in front of the appellant, blocked his path on the sidewalk, and told him to keep his hands in front of him where Gomes could see them. As I have already said, these words coming from a uniformed officer standing three feet away, amounted to a demand, which the appellant was not free to ignore. From the outset, then, Gomes effectively took control of the appellant’s physical movements. Equally important, the demand, coming at the beginning of the encounter, established the atmosphere for the remainder of it. · The actions of Worrell and Forde: These two plainclothes officers did not stay in their car, which would have mitigated the intimidating nature of the encounter. Instead they got out of their car, showed the appellant their police badges, and stood behind Gomes. · The positions of the three officers: Gomes stood in his interview stance, three feet away from the appellant. Every time the appellant moved, Gomes moved, in order to maintain their relative positions. Worrell and Forde stood behind Gomes, four to five feet away from the appellant. These three officers – each bigger then the appellant – effectively formed a small phalanx blocking the path in which the appellant was walking. In doing so, the officers exerted control over the appellant’s movements throughout the encounter. · Gomes’ questions: Gomes’ questions went well beyond a mere request for identification or other non-incriminating information. Questions about whether the appellant had ever been arrested or was carry something illegal invited inculpatory answers. The officers frankly acknowledged that they were looking for answers that would give them grounds to arrest or search the appellant. These questions, coming after Gomes’ initial demand, amounted to further “demands”. · The appellant’s answers: The appellant acquiesced to all the officers’ demands. He put his hands in front of him, and then he gave incriminating answers, leading to his arrest, the police’s search, and the ultimate deprivation of his liberty. · The appellant’s manner of answering the police’s questions: Although the appellant did not testify on the motion, his failure to do so is not fatal to his claim because the standard for establishing compulsion is objective. The question the court must decide is whether the appellant reasonably believed that he was detained: see Moran at 258-59. In my view the court can reasonably infer compulsion from the appellant’s manner of answering the police’s questions and from the answers themselves. The appellant paced nervously and hesitated before answering Gomes’ questions. Although he did not testify, I infer from his manner of responding to the police’s questions that he did not believe he had the right to walk away and end the conversation, but rather believed that he had no choice but to answer their questions. Moreover it seems to me that the appellant’s belief was objectively reasonable. In the light of his answers, the suggestion that the appellant knew he had the right not to incriminate himself seems unreasonable. I note that at no time during the encounter did the officers tell the appellant that he was free to go or free not to respond to their questions. · The appellant’s age: The appellant was not a sophisticated adult. The appellant was an 18-year-old youth, facing three police officers standing a few feet away from him in his path on the sidewalk. · The duration of the encounter: The entire encounter, from the time Gomes stopped the appellant until his arrest, lasted about seven minutes. This was not a long encounter, but it was not so short that it could not give rise to a detention. [30] The cumulative effect of these considerations underlies my conclusion that the appellant was detained. As the police did not have reasonable grounds to detain him, the detention was arbitrary. Therefore the appellant’s constitutional right under s. 9 of the Charter was violated. [31] I do not propose to consider the appellant’s additional argument that on detention he was denied the right to counsel contrary to s. 10(b) of the Charter. He did not press this argument orally. Moreover, to me it seems odd to suggest that the police were obliged to inform the appellant of his right to counsel when they did not even think they had detained him. And whether even an investigative detention triggers s. 10(b) rights is an open question: see Mann at para. 22. D. DID THE POLICE’S QUESTIONING AMOUNT TO A SEARCH? [32] The appellant contends that the police’s questioning amounted to a search, and that the search began when the police asked him whether he was carrying anything illegal. He relies on the judgment of this court in R. v. Young (1997), 116 C.C.C. (3d) 350. There, at paras. 16-17, Carthy J.A. concluded that the police’s request that the accused empty his pockets began an unreasonable search, and “presupposed” a detention: Once it is concluded that the search begins with the questioning and that there was no reasonable basis for a search then, on the facts of this case, the officer put into motion what became an illegal search by simply inviting the appellant to permit an intrusion on his person in the form of emptying his pockets. It was the same as if the officer had reached out and physically emptied the pockets. As to the specific moment when there was a detention, the Crown conceded in its factum that it commenced with the questioning, and in oral argument switched to reliance on Lawrence, supra, as pointing to the time when the appellant was put in the cruiser. The appellant did not press illegal detention in his argument, relying rather on unreasonable search and seizure, and to the extent detention may have any bearing on this analysis it seems sensible to conclude that a search presupposes detention. [33] The divide between questions that begin a search and questions that do not is sometimes not easy to draw. In this case, I am not persuaded that the police’s question to the appellant “if he had anything that he shouldn’t” began a search. In my view, the search began, at the earliest, after the appellant admitted to possession of marijuana. At that point, however, the police had reasonable and probable grounds to arrest the appellant. Then, when in answer to Gomes’ follow-up question “is that it”, the appellant admitted to carrying the revolver, the police had the right to search the appellant, incident to arresting him. Indeed they had that right even if they did not arrest him: see R. v. Polashek (1999), 134 C.C.C. (3d) 187 at para. 21 (Ont. C.A.). [34] The appellant argues that by analogy to the questions at issue in Young, and in R. v. Mellenthin (1992), 76 C.C.C. (3d) 481 (S.C.C.), and R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.), the two cases on which Carthy J.A. relied, the question at issue in this case amounted to a search. However, here, the police’s question “if he had anything that he shouldn’t” differs from the questions in the three cases cited above, both in terms of the context in which it was asked, and in the nature of the question itself. [35] As to context, in Young, Mellenthin, and Simpson, when the police asked the crucial questions, they had already formed the intention to conduct a search, as evidenced by the specificity of the questions they asked. In contrast, when Gomes questioned the appellant in this case, he did not do so with an already formed intention to conduct a search. This is evident from the generality of the question that he asked. [36] As to the nature of the question, in Young, the accused was asked to empty his pockets; in Mellenthin, the accused was asked what was in his open gym bag; in Simpson, after the police had touched the accused’s pocket and felt a “hard lump”, the accused was asked what was in his pocket. In all these cases, the court held that these questions began a search. In effect, as Carthy J.A. said, these questions amounted to the police’s searching and physically emptying the accused’s pocket or gym bag. In the present case, the nature of the police’s question did not go that far and, as I have said, was asked in quite a different context. [37] I therefore conclude that the police did not conduct an unreasonable search of the appellant. I would not give effect to his contention that his s. 8 Charter right was violated. E. SHOULD THE REVOLVER HAVE BEEN EXCLUDED FROM EVIDENCE UNDER SECTION 24(2) OF THE CHARTER? [38] Although the trial judge found no detention or search, he also went on to consider whether on the assumption the appellant’s Charter rights had been breached, the revolver should be excluded from evidence under s. 24(2). He held that it should not be excluded. [39] The trial judge gave a single reason for his holding: the revolver was real, not conscriptive evidence, and it was evidence that existed independently of any Charter violation. Thus, though he did not say so expressly, the trial judge obviously concluded that admitting the revolver into evidence would not affect the fairness of the appellant’s trial. [40] This court need not defer to the trial judge’s s. 24(2) holding for two separate reasons. First, as he found no Charter violation, the “usual deference owed to a trial judge’s s. 24(2) analysis has no application,” see R. v. Clayton, [2005] O.J. No. 1078 at para. 69 (C.A.), leave to appeal to S.C.C. granted, [2005] S.C.C.A. No. 244; and R. v. Grant (1993), 84 C.C.C. (3d) 173 (S.C.C.). [41] Second, the Supreme Court of Canada’s judgment in R. v. Stillman (1997), 113 C.C.C. (3d) 321 tells us that although “real evidence” – such as the revolver in this case – may exist independently of any Charter violation, it may have a conscriptive quality if it is obtained because of the participation of the accused. If it is so obtained, it becomes conscriptive real evidence, and if it is not otherwise discoverable, its admission will affect the fairness of an accused’s trial. The trial judge failed to undertake this analysis mandated by Stillman. [42] Therefore, as Doherty J.A. did in Clayton, I propose to do the s. 24(2) analysis afresh, relying on the undisputed evidence on the motion. [43] Section 24(2) provides that where “a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” The appellant has established the necessary causal and temporal link between the police’s seizure of the loaded revolver and the infringement of his Charter rights. The appellant’s incriminatory statements were a direct result of his arbitrary detention. [44] Thus, whether the revolver should have been admitted into or excluded from the evidence at trial, turns on the application of the three factors first set out in R. v. Collins (1987), 33 C.C.C. (3d) 1 (S.C.C.), and reaffirmed in Stillman at para. 69: the effect of admitting the evidence on the fairness of the trial; the seriousness of the Charter violation(s); and the effect of excluding the evidence on the administration of justice. All these factors are directed toward the repute of the justice system flowing from the admission or exclusion of the evidence. [45] The first Collins factor, trial fairness, principally concerns “the continued effects of unfair self-incrimination on the accused”, see R. v. Law (2002), 160 C.C.C. (3d) 449 at para. 34 (S.C.C.). The notion underlying this first factor is that an accused should not be “conscripted” to participate in creating or producing incriminatory evidence. The focus of the trial fairness inquiry, therefore, has been on whether the evidence in question is conscriptive. [46] In my view, contrary to the ruling of the trial judge, the revolver in this case is “conscriptive real evidence,” whose admission affected the fairness of the appellant’s trial. Conscriptive evidence will ordinarily affect the fairness of an accused’s trial, unless it is independently discoverable by non-conscriptive means. “Evidence will be conscriptive when an accused, in violation of his Charter rights, is compelled to incriminate himself at the behest of the state by means of a statement, the use of the body or the production of bodily samples,” see Stillman at para. 80. The word “compelled” has been interpreted broadly to include the participation of an accused in the obtaining or creating of the evidence: see, for example, R. v. Dolynchuk (2004), 184 C.C.C. (3d) 214 (Man. C.A.). As Cory J. explained in Stillman at para. 99, conscriptive real evidence, or as he termed it, derivative evidence, is a sub-set of conscriptive evidence: A subset of conscriptive evidence is “derivative evidence”. This is a term frequently used to describe what is essentially conscriptive “real” evidence. It involves a Charter violation whereby the accused is conscripted against himself (usually in the form of an inculpatory statement) which then leads to the discovery of an item of real evidence. In other words, the unlawfully conscripted statement of the accused is the necessary cause of the discovery of the real evidence. In other words “[e]vidence is derivative evidence if it would not have been obtained but for the conscriptive evidence,” see Sopinka J. in R. v. Feeney (1997), 115 C.C.C. (3d) 129 at para. 70 (S.C.C.). [47] In this case, the police searched the appellant and found the gun because of his inculpatory answer to Gomes’ questions. The appellant gave these answers during a detention that was arbitrary and thus in violation of his rights under s. 9 of the Charter. The officers testified that but for the appellant’s answers, they would not have arrested or physically searched him. The appellant’s answers were “conscriptive evidence” and the revolver is derivative evidence. As the officers were adamant that without the appellant’s inculpatory answers they would not have searched him, the Crown cannot establish that the police could have found the revolver by non-conscriptive means. [48] Violations of s. 9 of the Charter rarely yield conscriptive or derivative evidence affecting the fairness of a trial. The more typical case is a violation of s. 10(b) or even s. 8. However, where, as in this case, the arbitrary detention created the context in which the appellant admitted possession of the loaded revolver, the revolver should be classified as conscriptive real evidence. [49] The question then becomes whether this conclusion ends the s. 24(2) inquiry. I do not think that it should, or that it does in this case. I think it is fair to say that up until now, trial and provincial appellate courts have viewed the Supreme Court of Canada’s jurisprudence on s. 24(2), especially Stillman, as standing for the proposition that conscriptive or derivative evidence affecting the fairness of the trial will be excluded in all, or virtually all, cases without consideration of the other two Collins factors. [50] This so-called “automatic exclusionary rule”, or near automatic exclusionary rule, has been the subject of strong academic criticism and, respectfully, does not seem faithful to the language of s. 24(2) itself, which directs the court to consider “all the circumstances” bearing on the repute of the justice system. More germane to this case, some recent decisions seem to signal that the Supreme Court of Canada is willing to moderate the strictness with which it has applied the trial fairness factor to exclude evidence obtained in violation of a Charter guarantee. Some of the academic criticism and recent case law are admirably canvassed by Steel J.A. in Dolnychuk. I rely on, but will not repeat, her discussion in that case. See also, David M. Paciocco, “Stillman, Disproportion and the Fair Trial Dichotomy under Section 24(2)” (1997) 2 Can. Crim. L.R. 163. [51] The most pertinent recent case is R. v. Elias; R. v. Orbanski (2005), 196 C.C.C. (3d) 481 (S.C.C.) where, in concurring reasons, LeBel J., writing for himself and Fish J., cautioned at para. 93 that the Court had not established a pure exclusionary rule for conscriptive evidence: Our Court has remained mindful of the principle that the Charter did not establish a pure exclusionary rule. It attaches considerable importance to the nature of the evidence. It is constantly concerned about the potential impact on the fairness of a criminal trial of the admission of conscriptive evidence obtained in breach of a Charter right. Nevertheless, while this part of the analysis is often determinative of the outcome, our Court has not suggested that the presence of conscriptive evidence that has been obtained illegally is always the end of the matter and that the other stages and factors of the process become irrelevant. [52] It seems to me that this passage reflects three important propositions. First, the admission of all conscriptive evidence, including derivative evidence, will have some impact on trial fairness. Second, if we do not have an automatic exclusionary rule for conscriptive evidence, then we must recognize that even though the admission of conscriptive evidence compromises trial fairness, its admission will not always bring the administration of justice into disrepute. And third, whether conscriptive evidence should be admitted will depend both on the resulting degree of trial unfairness and on the strength of the other two Collins factors. [53] Thus, before considering the other two Collins factors, I will focus on the criteria that might be used to assess the impact on trial fairness resulting from the admission of conscriptive evidence. Although there may be others, two criteria that immediately come to mind are the potential effect of the state’s misconduct on the reliability of the evidence, and the nature of the police’s conduct that led to the accused’s participation in the production or obtaining of the evidence. [54] In this case, there can be no question about the reliability of the derivative evidence. The revolver is reliable evidence. Its admission would not adversely affect the truth-seeking function of the trial. Thus, this case differs from a case where an accused’s statement obtained in violation of the right to counsel under s.10(b) of the Charter raises concerns about the reliability of that statement. Here, reliability concerns are absent. [55] The nature of the police’s conduct that yielded the conscriptive evidence is relevant because it is directed to the extent of the state’s interference with the accused’s autonomy and with the accused’s freedom of choice whether to participate in the creation of self-incriminatory evidence. The more invasive the interference, the more serious the impact on trial fairness; the less invasive the interference, the less serious the impact on trial fairness. R. v. Burlingham (1995), 97 C.C.C. (3d) 385 (S.C.C.) is an example – a particularly egregious example – of the former; the present case is an example of the latter. [56] In Burlingham, over a prolonged period of time, the police continually questioned the accused despite his insistence on his right to counsel, denigrated his lawyer, and improperly pressured him into accepting a plea bargain without having the opportunity to consult with counsel. The effect was successive and severe breaches of the accused’s right to counsel under s. 10(b) of the Charter. Eventually, the police induced the accused to tell them where the murder weapon was located. The serious impact on trial fairness of admitting the conscriptive real evidence, the weapon, was obvious. [57] Indeed, where breaches of s. 10(b) yield conscriptive evidence, the admission of that evidence will often have a great impact on trial fairness. One of the main purposes of s. 10(b) is to protect an individual’s right against self-incrimination. Thus, the denial of the right to counsel strikes at the heart of an individual’s decision whether to provide incriminatory evidence. If that decision is made without the benefit of counsel, then the decision to incriminate oneself invariably will not be an informed or voluntary decision. [58] In contrast to a case such as Burlingham, the present case is not a flagrant case of police abuse. The police asked a fairly innocuous set of questions. They did not accompany these questions with any overt physical threat. They overstepped the bounds of legitimate questioning, but not grossly so. [59] Therefore, taken together, the reliability of the evidence and the nature of the police’s conduct that led to their obtaining the evidence, suggest that though the admission of this evidence would have had some impact on trial fairness, that impact would have been at the less serious end of the scale. Put differently, in my view, the impact would not have been so great that it precludes consideration of the other two Collins factors. [60] I therefore pass to the second Collins factor, the seriousness of the violation. Unquestionably, the appellant’s s. 9 right is an important Charter guarantee. But several considerations diminish the seriousness of the violation. [61] These mitigating considerations include the following. The appellant had a lesser expectation of privacy in a public area than he did, for example, in his home. The detention was quite brief. The questioning was minimally intrusive. The police did not physically restrain the appellant until they arrested him after he confessed to carrying the loaded revolver. [62] Perhaps most important, the trial judge made no finding that the police acted in bad faith, and the record does not support such a finding. Quite the opposite. The officers were engaged in proactive policing intending to deter or prevent crime in a school neighbourhood “hot spot.” The courts have accepted that this is a legitimate police function. The courts have also recognized that in carrying out this function, the police are entitled to question any citizen without triggering that citizen’s Charter rights. The line between police questioning that gives rise to a detention and questioning that does not is often not clear. The courts themselves have struggled with the dividing line, as I have in this case. As the Supreme Court recognized in Mann, at para. 19, a citizen who is asked for identification, or even interviewed, is not always detained under s. 9. [63] Thus, I do not think it can be said that, in this case, the police deliberately subverted the appellant’s constitutional rights. Perhaps understandably, they did not think that they had detained the appellant at all before he admitted to possession of marijuana. Moreover, unlike in Clayton, the appellant led no evidence to suggest that the police’s violation of the appellant’s rights was the result of systematic or institutional failure, or inadequate training. All these considerations seem to blunt the seriousness of the Charter breaches. [64] The third Collins factor addresses the question whether excluding the evidence would have a more serious impact on the repute of the administration of justice than admitting it: see R. v. Buhay (2003), 174 C.C.C. (3d) 97 at para. 67 (S.C.C.). Here, four considerations favoured admission of the evidence: possession of a loaded firearm in a public place is a very serious offence, as reflected in the mandatory minimum one-year sentence for a conviction under s. 95 or s. 100(1) of the Criminal Code; the appellant was carrying the gun in the vicinity of several schools, which aggravated the seriousness of the offence; the evidence was crucial to the Crown’s case; and the evidence was entirely reliable. As Doherty J.A. said in R. v. Belnavis (1996), 29 O.R. (3d) 321 at 349 (C.A.), and approved of in (1997), 118 C.C.C. (3d) 405 at para. 45: “The exclusion of reliable evidence essential to the prosecution of a significant criminal charge must, in the long term, have some adverse effect on the administration of justice.” [65] However, important and reliable evidence necessary to sustain a serious charge may nonetheless be excluded if its admission would exact too heavy a toll on the long- term integrity of the justice system. The kinds of considerations where this might be so are absent in this case. We have no evidence to suggest that the constitutional breaches were wilful or flagrant, or that they reflected institutional indifference to individual rights. [66] Section 24(2) reflects the interplay between the interests of the individual accused and the interests of the community. Although the right to be free from arbitrary detention touches an individual’s rights of autonomy and freedom, increasing levels of gun violence in our communities threaten everyone’s personal freedom. In this case, where the police did not grossly overstep the bounds of legitimate questioning, acted in good faith, used no force, and were patrolling one of Toronto’s high-crime areas, I think that the repute of the justice system would suffer if the evidence were excluded. [67] Overall, in my view, the second and third Collins factors outweigh the first. I conclude that admitting the evidence would not bring the administration of justice into disrepute. Therefore, for different reasons, I would uphold the trial judge’s s. 24(2) ruling and would affirm the convictions. F. THE MEANING OF “TRANSFER” IN SECTION 100(1) OF THE CRIMINAL CODE [68] The appellant was convicted of possession of a firearm for the purpose of transferring it, contrary to s. 100(1) of the Code, which states: Every person commits an offence who possesses a firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition for the purpose of (a) transferring it, whether or not for consideration, or (b) offering to transfer it, knowing that the person is not authorized to transfer it under the Firearms Act or any other Act of Parliament or any regulations made under any Act of Parliament. [69] The evidence supporting this conviction consisted of the appellant’s statement to Constable Worrell, when he was asked about what he was doing with the revolver. The appellant said that he was “dropping off” the gun somewhere “up the road.” [70] The trial judge did not find that the appellant intended to transfer the revolver to another person. However, the trial judge concluded that the appellant’s intent to transfer the revolver from one place to another was sufficient to make out the offence. [71] The appellant submits that “transfer” in s. 100(1) requires an intention to pass the firearm into another person’s possession and that therefore, his conviction on this count rests on an error of law. He makes two main arguments in support of this submission: the associated words rule of statutory interpretation; and the analogy to drug trafficking offences. I do not agree with either argument. [72] The word “transfer” is defined in s. 84 to mean “sell, provide, barter, give, lend, rent, send, transport, ship, distribute or deliver” [emphasis added]. The ordinary definition of “transport” means to “carry, convey or remove from one place or person to another, to convey across”: See Oxford English Dictionary, 2nd ed. (Oxford: Clarendon Press, 1989) [emphasis added]. On this ordinary definition of “transport”, the appellant was transferring the revolver because he was moving it from one place to another. In my view, this ordinary meaning prevails. I will, however, address the appellant’s counterarguments. [73] The appellant contends that the word “transport” in the definition of “transfer” must be given a more restricted meaning because of the associated words rule of statutory interpretation (in Latin, noscitur a sociis). This rule provides that the meaning of a word in a list is influenced by its association with the other words in the list. The common theme in a list of words helps to fix the meaning of each and the overall scope of the provision: see, for example, R. v. Goulis (1981), 33 O.R. (2d) 55 (C.A.). Here, the appellant points out that most of the words in the definition of transfer – sell, provide, barter, give, lend, rent, distribute – require the firearm to change hands. So, the appellant contends, the word “transport” should similarly be interpreted to mean conveying from one person to another and not just from one place to another. [74] The cardinal rule of statutory interpretation, affirmed many times by the Supreme Court of Canada, is that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament,” see, for example, Rizzo and Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 21. [75] The associated words rule looks at the meaning of words in their immediate context. At times, however, this rule must yield to looking at the meaning of individual words in a list in a broader context. Professor Coté makes this point in his text The Interpretation of Legislation in Canada, 3d ed. (Scarborough: Carswell, 2000) at 314: Noscitur a sociis helpfully draws attention to the fact that a statute’s context can indicate a meaning far more restrictive than that found in the dictionary. But its importance should not be exaggerated. The interpreter establishes the meaning of a text by considering numerous factors, and it may be necessary to ignore the restrictive view suggested by the immediate context if a more liberal approach is dictated by the legislation’s overall environment. Although a good servant, the noscitur a sociis principle may prove to be a poor master. It can be misleading and should be handled with care [emphasis added]. [76] In this case, it seems to me that the definition of transfer must be considered in a broader context than simply the list of words it encompasses. That broader context includes the Firearms Act, S.C. 1995, c. 39, s. 139. The definition of transfer in s. 84 and the offence in question in s. 100 of the Code were enacted as part of the Firearms Act. They must be interpreted in the context of that statute and consistently with it. If they are so interpreted, then there is no plausible basis to give the word “transfer” the restricted meaning argued for by the appellant. [77] Section 100(1) of the Code makes it an offence for a person to transfer a firearm except as authorized by the Firearms Act. Section 17 of the Firearms Act states that the holder of a registration certificate for a prohibited firearm may only possess the weapon in his or her dwelling house or at a place authorized by a chief firearms officer, unless otherwise authorized to transport it under s. 19. In turn, s. 19 of the Firearms Act provides that the certificate holder may be authorized to “transport a particular prohibited firearm … between two or more specified places for any good and sufficient reason,” including a number of reasons that do not involve a change of possession of the firearm. Consistent with the meaning of “transport” in the Firearms Act, “transport” in the definition of “transfer” under s. 84 of the Code should be given its ordinary meaning: carrying or moving from one place or person to another. As the Crown points out, to limit its meaning as the appellant suggests, would destroy the cohesion between the Criminal Code provisions on firearms and the Firearms Act. [78] The appellant’s other argument is that the word “transport” should be interpreted consistently with the meaning of that word in drug trafficking legislation. Several courts have decided that merely “transporting” drugs from one place to another, or “delivering” them to another place for personal use is not “trafficking,” see, for example, R. v. Harrington and Scosky, [1964] 1 C.C.C. 189 at 193-198 (B.C.C.A.). The marginal notes and headings to ss. 99 and 100 of the Criminal Code refer to “weapons trafficking” and “trafficking offences.” The appellant therefore submits that the meaning of “transport” in weapons trafficking offences should be interpreted in the same way as it is interpreted in drug trafficking legislation. [79] I agree with the Crown that the appellant’s attempt to analogize weapons trafficking offences to drug trafficking offences rests on a faulty assumption: that Parliament intended to treat the possession of firearms and the possession of drugs in the same way. There is no support for this assumption. The Firearms Act severely restricts the movement of prohibited firearms in ways not found in drug trafficking legislation. A person in lawful possession of a prohibited firearm can commit the offence of weapons trafficking by knowingly transporting the firearm in contravention of the authorization. No similar statutory regime exists for drug offences. Indeed, if Parliament had wanted to limit s. 100 to acts where a change of possession occurred, it could have made the offence “possession … for the purpose of transferring possession of it,” instead of the way it does read, “possession … for the purpose of transferring it.” [80] Therefore, in my view, the trial judge was correct in giving the word “transport” its ordinary meaning. Moving a prohibited firearm from one location to another without authorization was one of the acts Parliament intended to prohibit. I would not give effect to this ground of appeal. G. SENTENCE [81] The appellant was convicted on five counts, but one count was stayed under the principle in R. v. Kienapple (1974), 15 C.C.C. (2d) 524 (S.C.C.). He had served 92 days in pre-trial custody, for which the trial judge gave him six months’ credit. The trial judge then imposed concurrent sentences of twelve months’ imprisonment on each of the four counts, followed by three years’ probation. Two of the counts – possession of a loaded prohibited firearm (s. 95(1)) and possession of a firearm for the purpose of transferring it (s. 100(1)) – carry a mandatory minimum sentence of one year imprisonment. Thus, the trial judge effectively sentenced the appellant to six months above the statutory minimum. [82] The appellant acknowledged that if his conviction appeal failed in its entirety, then the sentence imposed by the trial judge was not demonstrably unfit. I agree. Although the appellant was a youthful first offender, at least two aggravating factors warranted increasing the sentence above the minimum: the time and location of the offence, and the possession of marijuana. The appellant was carrying a loaded weapon in the middle of the day on a public street near high schools that were experiencing problems with violence. And the trial judge reasonably characterized the possession of marijuana and a loaded firearm at the same time as a “deadly type of combination.” I would not interfere with the appellant’s sentence. H. CONCLUSION [83] I would dismiss the appellant’s appeal against his convictions. In my view, the police arbitrarily detained the appellant. Therefore, the appellant’s constitutional right under s. 9 of the Charter was violated. However, the admission of the seized evidence – the loaded revolver – would not bring the administration of justice into disrepute. The appellant was properly convicted of possession of a firearm for the purpose of transferring it under s. 100(1) of the Criminal Code because intentionally moving the firearm from one location to another is sufficient to found a conviction. [84] I would not alter the appellant’s sentence. Although the appellant is a youthful first offender, an effective sentence of eighteen months – six months over the statutory minimum – is not “demonstrably unfit” for these offences. RELEASED: June 2, 2006 Signed: “J.I. Laskin J.A.” “I agree: R. McMurtry C.J.O.” “I agree: S.E. Lang J.A.” [1] The appellant was convicted of possession of a loaded, prohibited firearm (s. 95(1) of the Code); unauthorized possession of a firearm (s. 92); possession of a firearm for the purpose of transferring it (s. 100(1)); carrying a concealed weapon (s. 90(1)); possession of a firearm knowing that the serial number had been removed (s. 108(1)). The conviction under s. 92 was stayed.