R. v. Amofa (R.), 2011 ONCA 368

• Judge: MacPherson, Blair and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 27, 2011
• Jurisdiction: Ontario
• Citations: 2011 ONCA 368;(2011), 282 O.A.C. 114 (CA)

R. v. Amofa (R.) (2011), 282 O.A.C. 114 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. MY.018

Her Majesty the Queen (respondent) v. Randy Amofa (appellant)

(C50159; 2011 ONCA 368)

Indexed As: R. v. Amofa (R.)

Ontario Court of Appeal

MacPherson, Blair and Epstein, JJ.A.

May 10, 2011.

Summary:

The accused appealed his conviction for possession of a loaded, unauthorized and restricted firearm (Criminal Code, s. 95(1)). He argued that his s. 8 Charter rights were violated in the course of an investigative detention and subsequent arrest in a subway station and that the trial judge erred in failing to exclude the evidence of the firearm pursuant to s. 24(2).

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Plain clothes police officers were patrolling a subway station investigating loiterers as part of a broader robbery reduction program - The officers observed two suspicious young men for a period of time - They approached the men, identified themselves and advised them that they were being investigated under the Trespass to Property Act for loitering, an arrestable offence - An officer told one man (the accused) that he was not under arrest at that time but that he would like to search him (a pat down search for officer safety reasons) - The accused said he did not want to be searched because he had done nothing wrong - The officer advised the accused that he was under arrest for trespassing - The accused resisted and tried to escape - He was subdued and a loaded handgun was found in the waistband of his pants - He was charged with a firearms offence - He argued that his s. 8 Charter rights were violated - He alleged that the police were invoking the power to investigate and arrest under provincial trespass legislation as a pretext to search suspicious-looking people - The searches were not truly incidental to the arrest or the investigative detention - The Ontario Court of Appeal rejected the arguments - There was nothing arbitrary or improper respecting the police surveillance of the subway station or in the arrest - The power to investigate and arrest under provincial trespass legislation was not being abused, or used as a pretext, where the police had the necessary grounds in the circumstances to resort to them - The officers had more than ample grounds to investigate, detain and arrest the accused for loitering - The flow of the investigative detention, the arrest and the search was a dynamic process - Section 8 analyses ought not to be reduced to an over-analytical parsing of events into static moments without practical regard for the overall picture - The officers were properly safety-cautious - Alternatively, if there was a s. 8 breach, it was "slight" or "trifling" and the evidence should not be excluded under s. 24(2) - See paragraphs 13 to 30.

Civil Rights - Topic 1655.1

Property - Search and seizure - Warrantless search and seizure - Clothing - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Plain clothes police officers were patrolling a subway station investigating loiterers as part of a broader robbery reduction program - There had been robberies and shootings there in the past - The officers observed two suspicious young men for a period of time - They approached the men, identified themselves and advised them that they were being investigated under the Trespass to Property Act for loitering, an arrestable offence - An officer told one man (the accused) that he was not under arrest at that time but that he would like to search him (a pat down search for officer safety reasons) - The accused said he did not want to be searched because he had done nothing wrong - The officer advised the accused that he was under arrest for trespassing - The accused resisted and tried to escape - He was subdued and a loaded handgun was found in the waistband of his pants - He was charged with a firearms offence - The Ontario Court of Appeal agreed with the trial judge that, although the men were undoubtedly detained while being questioned, the detention was not arbitrary, contrary to s. 9 of the Charter, because the police had a reasonable belief that the men were loitering and they were entitled to question them - See paragraphs 4 to 12.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1646 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 1646 ].

Cases Noticed:

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 13].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1, refd to. [para. 21].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 29, footnote 1].

Counsel:

Phil Downes, for the appellant;

Michael Bernstein, for the respondent.

This appeal was heard on April 27, 2011, before MacPherson, Blair and Epstein, JJ.A., of the Ontario Court of Appeal. Blair, J.A., released the following decision for the court on May 10, 2011.