R. v. Fountain (A.), 2015 ONCA 354

JudgeLaskin, LaForme and Rouleau, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateJanuary 15, 2015
JurisdictionOntario
Citations2015 ONCA 354;(2015), 335 O.A.C. 151 (CA)

R. v. Fountain (A.) (2015), 335 O.A.C. 151 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. MY.026

Her Majesty the Queen (respondent) v. Alexander Fountain (appellant)

(C57877; 2015 ONCA 354)

Indexed As: R. v. Fountain (A.)

Ontario Court of Appeal

Laskin, LaForme and Rouleau, JJ.A.

May 19, 2015.

Summary:

The accused and another young black male were walking past a police car when Constable Fardell singled out the accused and called him over for questioning. Fardell first clarified the accused's identity and asked whether he had any outstanding warrants. Once Fardell had established the accused's identity and realized that he had no outstanding warrants, Fardell began a Field Investigative Report ("carding"). As Fardell wrote up the card, a third man, apparently unknown to either the accused or the officer, walked up behind Fardell and his partner and began interrogating the officers about what he perceived to be harassment of the accused and his companion. The accused abruptly turned sideways, "blading" his body (i.e., turned sideways to his counterpart). A person might blade his body to protect a firearm held on one side. Fardell commanded the accused to show his hands, but he failed to do so. Fardell then reached out and patted the accused's side, felt a hard object and yelled "gun". The accused fled and a gun fell out of his jacket. The accused was convicted of possession of a firearm and sentenced to four years' imprisonment. His trial was heard as an application to exclude the firearm for breaches of his Charter rights.

The Ontario Court of Justice, in a decision reported at 291 C.R.R.(2d) 299; 2013 ONCJ 434, held that, while the accused had been arbitrarily detained (Charter, s. 9), the subsequent pat-down search was reasonable because it flowed from exigent circumstances and not the earlier unlawful detention. Further, even if the gun's discovery stemmed from the arbitrary detention such that it was "obtained in a manner" that infringed his rights, the court would not have excluded the gun as evidence under s. 24(2) of the Charter. The accused appealed.

The Ontario Court of Appeal agreed that the accused was unlawfully detained throughout his involvement with the police and that exigent circumstances justified the pat-down search of the accused. Further, the trial judge was right to proceed to a s. 24(2) analysis. The court dismissed the appeal.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - [See Civil Rights - Topic 1217 ].

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - The accused and another young black male were walking past a police car when Constable Fardell singled out the accused and called him over for questioning - Fardell first clarified the accused's identity and asked whether he had any outstanding warrants - Once Fardell had established the accused's identity and realized that he had no outstanding warrants, Fardell began to fill out a Field Investigative Report ("carding") - As Fardell wrote up the card, a third man, apparently unknown to either the accused or the officer, walked up behind Fardell and his partner and began interrogating the officers about what he perceived to be harassment of the accused and his companion - The accused abruptly turned sideways, "blading" his body (i.e., turned sideways to his counterpart) - A person might blade his body to protect a firearm held on one side - Fardell commanded the accused to show his hands, but he failed to do so - Fardell then reached out and patted the accused's side, felt a hard object and yelled "gun" - The accused fled and a gun fell out of his jacket - The accused was convicted of possession of a firearm and sentenced to four years' imprisonment - The trial judge held that while the accused had been arbitrarily detained (Charter, s. 9), the subsequent pat-down search was reasonable because it flowed from exigent circumstances and not the earlier unlawful detention - Further, even if the gun's discovery stemmed from the arbitrary detention such that it was "obtained in a manner" that infringed his rights, he would not have excluded the gun as evidence under s. 24(2) of the Charter - The accused appealed - The Ontario Court of Appeal agreed that exigent circumstances existed - However, the court held that the search was sufficiently temporally connected to the arbitrary detention to make it "evidence that was obtained in a manner that infringed" the accused's Charter rights, even though the exigent circumstances gave rise to the gun's discovery - The court found no reason to interfere with the trial judge's decision to admit the evidence under s. 24(2) - See paragraphs 23 to 56.

Civil Rights - Topic 1234

Security of the person - Unlawful search - What constitutes - [See Civil Rights - Topic 1217 ].

Civil Rights - Topic 1404.3

Security of the person - Law enforcement - Warrantless search for weapons - [See Civil Rights - Topic 1217 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The accused and another young black male (his brother) were walking past a police car when Constable Fardell singled out the accused and called him over for questioning - As a result of what transpired, the accused was convicted of possession of a firearm and sentenced to four years' imprisonment - The trial judge held that the accused had been arbitrarily detained (Charter, s. 9), but he did not specify at what point the unlawful detention began - On appeal, the Ontario Court of Appeal held that Fardell had unlawfully detained the accused from the moment he called out to him - Fardell had dealt with the accused or his brother before - The officer knew they both had criminal histories and believed that a warrant was out for one of them - The trial judge found that, although Fardell was acting within the general scope of his duties as a police officer, this was not a "random stop" - Rather, it was a "focused, investigative engagement" to determine if the accused was the wanted brother - Fardell admitted that he had no basis to detain the accused when he began speaking to him - The officer only thought the accused might be the brother who might be wanted - He did not suspect that the accused was involved in any particular criminal activity - The trial judge found that Fardell had psychologically detained the accused - Fardell told the accused to keep his hands down - He did not tell him that he was free to leave - As the trial judge inferred, in all these circumstances, a reasonable person would have felt compelled to obey the officer and that he could not walk away - See paragraphs 16 to 21.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1217 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 1217 ].

Police - Topic 3188

Powers - Search - Weapons search of persons - [See Civil Rights - Topic 1217 ].

Cases Noticed:

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. 20].

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; 2004 SCC 52, refd to. [para. 23].

R. v. MacDonald (E.), [2014] 1 S.C.R. 37; 453 N.R. 1; 341 N.S.R.(2d) 353; 1081 A.P.R. 353; 2014 SCC 3, refd to. [para. 23].

R. v. Blackwood (M.), [2009] O.T.C. Uned. U92 (Sup. Ct.), affd. [2013] O.A.C. Uned. 160; 2013 ONCA 219, refd to. [para. 24].

R. v. Silveira (A.), [1995] 2 S.C.R. 297; 181 N.R. 161; 81 O.A.C. 161, refd to. [para. 29].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273; 46 C.C.C.(3d) 479, refd to. [para. 38].

R. v. Plaha (B.) (2004), 189 O.A.C. 376; 188 C.C.C.(3d) 289 (C.A.), refd to. [para. 39].

R. v. Stevenson (A.) (2014), 328 O.A.C. 132; 317 C.C.C. (3d) 385; 2014 ONCA 842, refd to. [para. 44].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 49].

R. v. Peterkin (M.) (2015), 328 O.A.C. 321; 2015 ONCA 8, refd to. [para. 51].

R. v. L.B. (2007), 227 O.A.C. 132; 227 C.C.C.(3d) 70; 2007 ONCA 596, consd. [para. 53].

R. v. Newton (N.), [2006] O.A.C. Uned. 145 (C.A.), refd to. [para. 54].

Counsel:

Breana Vandebeek, for the appellant;

Greg Skerkowski, for the respondent.

This appeal was heard on January 15, 2015, by Laskin, LaForme and Rouleau, JJ.A., of the Ontario Court of Appeal. LaForme, J.A., delivered the following decision for the court on May 19, 2015.

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