New & Notable: Substance over Form, Safety Searches need that Respect

Geran Williams was walking down the street with a loaded handgun in his waist band. Not only loaded, the gun had a round in the chamber ready to fire. Williams happened to match the description of a person the police had received an anonymous tip about. The police approached him and ultimately found the gun. Williams sought, unsuccessfully, to exclude the gun at trial arguing there had been violations of his rights under sections 8 and 9 of the Charter. He appealed. The Court of Appeal dismissed his appeal: 2013 ONCA 772.

The call cam in shortly after 7 pm on July 10, 2008. The caller indicated that there was a black man wearing a black t-shirt and jeans, about 5'8" tall, with a baby face and hair in dreadlocks walking south at 1800 Martingrove. The caller then hung up. The police knew this area well - there was a history of gun and drug issues at this location.

Officers responded to the area within a few minutes. Some officers, first on scene, identified a male matching the description - although they could not see his face to confirm he had a baby face. Two officers approached that male - he was the appellant, Williams; he was in the group of other males. Officers asked Williams if he was armed, he did not respond. Instead, Williams bladed his body - others in the group did not react in this way. One of the officers then noted Williams make a movement toward his waist. The officers told him to put his hands up and turn around. He did neither. 

The officers then took control of Williams, grabbing his arm and lifting his shirt - the butt end of a handgun was seen and officers arrested Williams. Williams was convicted at trial and appealed.

On appeal two issues were raised. First, the detention. Williams argued that the officers did not have a reasonable suspicion justifying an investigative detention. The Court of Appeal rejected this argument. The standard for investigative detention was "reasonable suspicion" - a standard which the court noted should not be conflated with the more "exacting standard of reasonable belief" [para 22]. To determine this issue the court should look at the totality of the circumstances [para 24]; the mere fact an innocent explanation may be another reasonable interpretation is not fatal [para 24]. In this case the Court of Appeal held the detention was lawful:

The parties agreed at trial and in this court that, on its own, the anonymous tip was not sufficient to satisfy the reasonable suspicion standard.  That said, the tip remained a part, and an important part, of the circumstances that were relevant to a determination of the reasonable suspicion issue.  The tip was current, described the nature of the offence being committed, and contained sufficient particulars of the suspect to enable police to immediately focus on the appellant when they arrived minutes later. 

In our view, the combination of the anonymous tip and what occurred when the appellant encountered the police was capable of supporting a reasonable belief that the appellant might be connected to a gun crime as reported by the anonymous caller.  Nothing more was required [paras 26-27].

Second, Williams argued that the search was unreasonable. This argument was based on the position that lifting his shirt was more than was permissible for an investigative detention safety search. The Court of Appeal rejected that argument as well.  

The police were investigating a possible gun offence.  They apprised the appellant of their purpose.  They asked whether he was armed.  He did not answer their question, but “bladed”, turned away from them.  An officer told the appellant to put his hands up and turn around.  He refused.  The officers approached and took hold of both arms.  The appellant resisted.

One officer lifted the appellant’s baggy t-shirt.  A gun butt protruded from the waistband of the appellant’s pants.  The officer saw it and yelled “gun, gun, gun”.  The appellant was subdued, handcuffed, and placed under arrest. 

Strictly speaking, what occurred was not a pat-down search.  But what occurred was no more, and arguably less, intrusive than a pat-down search.  To characterize what occurred here as unreasonable is to sacrifice substance for form.  In no sense could this search be characterized as the functional equivalent of a strip search [paras 31-33].