R v Reid – 2019 ONCA 32 (Fairburn):

[32] By walking toward the officers, the appellant and his friend were not signalling that they did not wish to have contact with the police. The police and the men simply met up and started to chat. Importantly,the police did not order the appellant to approach them or tell him to stay where he was.

[33] The appellant showed no sign of wanting to leave in the following few minutes. Indeed, according to both Officers Stratton and Halagian, the appellant was extremely cooperative throughout their interaction with him. He was described as being “cool”. The conversation that ensued was pleasant and the officers described the appellant as extremely polite and forthcoming.According to Officer Halagian, the appellant appeared to be at ease throughout.In fact, given the environment that had preceded the radio transmission, both officers testified about their shock at what happened subsequently.

[34] The pattern of questioning employed by the officers made sense in the circumstances. Given that the police were on the TCHC property because of the landlord’s expressed concern over trespassers, asking the appellant whether he lived at that location was understandable. Although the appellant says that his answer that he had family in the “area” gave him a legitimate reason to be there, that answer did not foreclose further questions or discussion. First, it was unclear whether the “area” to which he was referring was even the TCHC property. Second, even if the appellant had family there, he did not say he was there to visit them or with their permission. Indeed, the reason he gave for being on the property had nothing to do with his family, but with music and helping children.

[35] In these circumstances, particularly with children close by, it is understandable why Officer Stratton decided to make further inquiries. In his cooperative state, the appellant decided to answer. In fact, he even volunteered information that he was not asked for, like his date of birth and home address. I see nothing in that interaction that would have caused a reasonable person in the appellant’s situation to feel like he had no choice but to comply.

[36] The appellant was never touched by the police or directed by them. The appellant points to the comment by Officer Stratton that he was going to run some “checks” and then the appellant would be “on his way”, arguing that any reasonable person would have understood that comment to mean that he had no choice but to stay until after the record check was completed. I disagree.

[37] While each case is unique and must be assessed on its own facts, I agree with the respondent’s observation that Suberu provides helpful insight into whether Officer Stratton’s comment would have triggered a psychological detention. In Suberu, an officer attended at a liquor store where someone was attempting to use fraudulently obtained gift certificates. Suberu was leaving the store as the officer was arriving. Suberu pointed to his accomplice and said, “he did this, not me, so I guess I can go”. The officer followed Suberu to his van, and instructed him to “Wait a minute. I need to talk to you before you goanywhere.”

[38] Suberu was then asked several questions, each answered in turn and each eliciting incriminating evidence in the context of an active criminal investigation focused upon Suberu and his cohort. Suberu was arrested after the officer looked through the vehicle window and saw some stolen items.

[39] Despite his expressed desire to leave (“he did this, not me, so I guess I can go”), and despite the specific direction that he “wait a minute” because the officer needed to talk to him “before” he went anywhere, and despite the fact that the police were investigating a specific crime, the majority concluded that Suberu was not detained within the meaning of s. 9 of the Charter. Against that factual backdrop, there was nothing to suggest that Suberu had been deprived of his liberty of choice: Suberu, at paras. 28, 32 – 35. The conclusion that Suberu was not detained underscores the care that mustbe taken when considering when a psychological detention starts – when a reasonable person in all of the circumstances would feel there is no choice but to comply.

[40] As the respondent points out, this case stands in stark contrast to Suberu. Unlike Suberu, until he ran from the police, the appellant never expressed a desire to leave ortried to walk away. This case is also different in that unlike in Suberu, the police were not investigating a recent crime and the appellantwas not being targeted for a specific investigation into a specific crime. Aswell, unlike Suberu, the appellant was not told that he had to “wait”. Although he was told that he would be “on his way” after the record check was run, that comment was not as forceful as the comment to Suberu to “wait” because, in that case, the police needed to ask him questions “before” he left. The conclusion that there was no detention in Suberu supports the trial judge’s conclusion that the appellant was not the subject of a significant psychological restraint in this case.

[43] In support of his position on detention, the appellant relies on the fact that Officer Stratton agreed in cross-examination that he had “detained” the appellant. I agree with the trial judge that little weight can be placed on Officer Stratton’s use of the term “detention”, particularly in light of the officer’s qualification about what he meant by detention: “I was talking to him. If that’s ‘detain’, then, yes, then I was”. Clearly the officer was not using the legal definition of detention. In any event, whether the circumstances were in law a detention was a legal question for the court to determine,not for the officer to dictate to the court: Hill v.Hamilton-Wentworth Regional Police Services Board, 2007SCC 41, [2007] 3 S.C.R. 129, at para. 50.

[46] There are myriad reasons why people speak to the police. Some may feel a sense of moral or civic duty: Grafe, at p. 271. Some may just want to interact with the police. Some may make a calculated, strategic choice to speak with the police, thinking that it may work to their benefit. There are endless possibilities, too many variables and too many unknowns. Whatever the reason, the fact that a person might come to regret having spoken to the police, does not turn a non-detention into a detention.

[47] Given that the appellant did not testify on the voir dire, we simply do not know from the voir dire evidence why he decided to stay and engage with the police. When the appellant testified during the trial proper, though, he said that he was not in possession of a gun when he spoke to the police and,therefore, was not “worried” about having “come around the police”.[1]