D.P. COLE J.:—

ISSUE

¶ 1      The accused young person stands charged that he breached the terms of a bail recognizance by being away from his residence unaccompanied by his parents or sister. Most of the evidence against him arises from questions put to him by a police officer during a chance street encounter. By way of motion brought under s. 9 of the Charter, the accused seeks to exclude that evidence.

FACTS

¶ 2      For purposes of adjudicating on this motion it is an agreed fact that on April 18, 2005, the accused was subject to a "house arrest" bail condition, which prohibited him, inter alia, from being away from his residence unless accompanied by one of his parents or his adult sister. Sometime earlier that afternoon, his friends G.M. and D.V. came to his house and the three of them watched television together. Because it was a nice warm spring day, at about 5:00 p.m. they decided to go to play basketball at Mercer Park, located "around the corner" from the accused's home. They set out unaccompanied by either of the accused's parents or his sister.

¶ 3      Upon arriving at the park, the three young men realized that the basketball nets were missing, so they set off to another nearby basketball court located on the playground at St. Matthew's elementary school. As they walked, they "were talking about normal things, girls, playing basketball." Both the two civilians and the police officers who testified on this motion were in agreement that one of the three young persons - likely G.M. - had a basketball in his hands when they encountered P.C.'s Gregoris and Bopara on or very close to the school playground where the basketball court was located.

a. The Defence Evidence:

¶ 4      The accused and his friend D.V. testified on this motion. (I did not have the benefit of hearing from G.M., as I was told that he was not available as a witness on the date the motion was heard). Both testified that the three young men were walking together to the basketball court when the two plainclothes police officers got out of an unmarked police car, intercepted them and "flashed" their police identification. The officer now known to them as P.C. Bopara stood in front of the three young men (perhaps 2 feet away), while P.C. Gregoris stood some 3-4 feet behind them.

¶ 5      P.C. Gregoris spoke first. According to both civilians, he did not tell the three young men why they had been stopped. He first asked if any of them had drugs or weapons in their possession, and told them to turn their pockets inside out, which they did. P.C. Gregoris suggested that, from their dress, the three of them looked like "gang bangers" (gang members), which all three denied. After this initial interaction P.C. Bopara took D.V. off to one side, while P.C. Gregoris dealt with the accused and G.M. Each of the officers then asked the civilians for their names, addresses, telephone numbers and the names of persons they lived with. As none of them had any form of written identification on them, they provided that information verbally. Although P.C. Gregoris was initially suspicious whether G.M. was the person he said he was, he was eventually satisfied with that identification.

¶ 6      As consideration of this motion deals with whether the accused was detained at the time he was being questioned by P.C. Gregoris, much of the examination of the accused and the officers dealt with this issue. The accused testified that he felt he had no choice but to remain and answer the questions put by the police. He testified in chief:

Q. Now, when these officers approach you what were the thoughts going through your head at this time?
A.Well, first I was thinking why am I being stopped, like, I didn't think I had a choice to walk away or anything.
Q. Why not?
A. Because if I -- they could have done anything if I would have got arrested and it would probably hurt. I don't know.
Q. You believe the officers would have hurt you if you would ...
A. Yeah, if I walked away and didn't just listen to them probably.
Q. What did you think would happen if you gave your name to them?
A. Like if I gave my name to them?
Q. Right?

A. I would get arrested anyway.

Q. So you knew you'd be arrested no matter what you said?

A. Sure.

Q. Didn't you?

A. Sure.

Q. Did you think you didn't have to tell your name at all?
A. No, I didn't know I didn't have that choice.
Q. Did you think you could walk away?
A. No.
 

In cross-examination he testified:
Q. Okay. And what's the next thing he said to you after you emptied out your pockets? What did the officer say to you?
A. He asked me for my name.
Q. How did he ask you for your name?
A. He said do you have any identification. He said do you have any identification and I said no and then he asked me for my name.
Q. Did you give them your proper name?
A. Yes.
Q. Did you feel you had to give them your proper name?
A. Yeah.
Q. You've been charged with obstruct before for not giving your proper name?
A. Exactly.
Q. Why didn't you just walk away from the officers?
A. Because if I -- I would have got arrested anyway. They won't just let me walk away.
Q. What would you have been arrested for?
A. I'm not sure. Not doing what they wanted. I'm not sure.
Q. So you think you would have been arrested for not doing what the officers wanted?
A. Yeah.
Q. Have you ever been arrested for that before?
A. No.
Q. Ever heard of anyone being arrested for that?
A. Not that I know.

¶ 7      D.V. testified that much the same happened when P.C. Bopara separated him from the others. Although P.C. Bopara was "being pretty nice" to him throughout, this officer also did not tell him why the three young men had been stopped. The officer asked if he had drugs or weapons in his possession, patted him down, told him to empty his pockets, searched through his package of cigarettes and inside his hat, and asked him his name and whether he had ever previously been charged. D.V. agreed with the accused that P.C. Gregoris told him he "look[ed] like a gang banger with his pants rolled up like that." He testified in chief that until the very end he was never told that he could leave by either officer, and that he was hesitant to do so because "they probably think we have something on us so we just stayed to prove we had nothing on us." In cross-examination he thought that he "probably would have been arrested for walking away."

¶ 8      After all three names were run through the police computer databases, D.V. and G.M. were permitted to leave, but the accused was detained and arrested after his bail restrictions came to light.

¶ 9      The two civilian witnesses estimated that the period from when the police first approached them until the accused was arrested was 25-30 minutes. According to the officers' notes the interaction started at 17:15, and the accused was arrested at 17:25. While the length of time is not crucial to my determination of this motion, I may say that I accept the evidence of the police officers on this issue, in part because, unlike some of their other evidence, they recorded the times in their notebooks quite soon after the events concluded.

¶10      It was obvious from the evidence of the two young men that they - and G.M. - have all had previously dealings with the police (though not with these officers). Indeed, both witnesses testified that they have previously been stopped and arrested "on the street." Interestingly, D.V. said that when they first saw these officers, he was quick to remove a bandanna he had been wearing; he explained that he had experienced police officers "bothering [me] because of that." (The accused said he was wearing a white bandanna "to prevent sweat. It was a hot day ... like 25," and neither civilian remembered G.M. wearing any kind of headgear).

b. The Police Evidence:

¶ 11      P.C. Gregoris testified that he knows the area where the three young people were stopped to be "a high crime area with a lot of gangs hanging out, a lot of graffiti, street robberies." His attention was drawn to the young men because:

* D.V. had one of his pant legs rolled halfway up, which the officer considered to be indicative of gang paraphernalia. It emerged in cross-examination that this was not in the officer's notes.

* All three were "wearing bandannas on their heads," similarly indicative of gang paraphernalia. At one point in his evidence P.C. Gregoris modified his position to suggest that one or more bandannas could be seen sticking out of a pants pocket. He was certain that whatever bandannas were being worn, they were all blue, signifying membership in a particular gang. It similarly emerged in cross-examination that none of this was in the officer's notes.

* As they walked to the school, all three accused were using obscenities frequently and loudly. Although he did not intend to investigate or arrest them for causing a disturbance, P.C. Gregoris testified that, as a parent of young children himself, he did not wish the young children playing on the schoolyard to be exposed to such profanities, and he wanted "to speak to them why, in regards to being on school grounds around young kids speaking the way they were." Once again, none of this was contained in the officer's notes, nor was anything recorded about any member of the public being disturbed by this behaviour, a likely condition precedent to any successful prosecution for that offence (see R. v. Lohnes, [1992] 1 S.C.R. 167, 69 C.C.C. (3d) 289 (S.C.C.))

* P.C. Gregoris testified that he considered investigating the accused under the Trespass to Property Act. However, in cross-examination the officer conceded that he did not know whether he had any express authority to enforce the provisions of that statute. Yet again, none of this was recorded in his notes.
 

¶ 12      While P.C. Gregoris "did not recall" asking the young men whether they were in possession of drugs or weapons, nor did he recall asking the accused and G.M. to empty out their pockets, he concurred with the evidence of the accused and D.V. that he did ask all three "for their identity," so that he could "run them ... through CPIC." He testified that his reason for so doing was

"with them being on school grounds and using this type of language and possibly causing a disturbance around kids and basically if they were okay, if they should be around kids or on school grounds, or what."
 

The officer was entirely forthright in stating that at that time he had no reason to believe that any of the young men were under any form of restriction against being in the presence of children. (For his part P.C. Bopara was similarly candid that apart from their use of profane language, for which he did not intend to charge them, he had no reason to believe that any of the three young men was directly involved in criminal activity at the time they were stopped).

¶ 13      P.C. Gregoris disagreed that the accused was detained prior to being arrested:

Q. All right. What would have happened if they wouldn't have given you their identity?
A. They could have walked away. It was their prerogative to walk away.
THE COURT: Did you tell them that?
THE WITNESS: No, I didn't tell them that they could walk away if they want.
MR. ZAMBONINI: Q. Why was it their prerogative if they wanted to walk away?
A. They weren't committing any crimes.
Q. What would you have done if they would have walked away?
A. Let them walk away.
 

¶ 14      P.C. Bopara's recollection was that, at the beginning of this interaction between the officers and the young men, he was the one who stood approximately two feet in front of them and asked for their identities. He testified:

Q. ... And what did you say to them when you got up to them?
A. I identified myself and asked for them to identify themselves.
Q. ... [W]hy did you ask them to identify themselves?
A. Well, as I say, their behaviour, given their - the area they were in, the experiences they had before, as far as youths drinking on school premises, graffiti on school premises, their boisterous demeanour, the fact that they were swearing and I cautioned them.
Q. What would have happened if they would have refused to give you their names?
A. ... I would have let them go on their way. It wasn't my intention to charge them at that point. As I say they were bordering on being - on causing a disturbance but I wouldn't personally charge them but ...
 

¶ 15      Once again, none of this was recorded in P.C. Bopara's notes. Nor were any seizures made of spray paint cans or bottles of liquor.

¶ 16      After thoroughly considering a transcript of the evidence given on the motion, and hearing the submissions of counsel, I have regrettably come to the conclusion that the evidence of the officers on this motion - most particularly the lack of recording of salient details in their notes - leaves much to be desired. While I do not accept everything the civilian witnesses said, overall I was quite impressed with their evidence. I thought that both their quite self-deprecating demeanour on the stand, and - more important - the internal logic of their evidence afforded a more complete and realistic picture as to the way this street encounter "went down." I find that the supposed justifications for stopping these young men were both unconvincing in fact and, as will be seen, unjustifiable in law.

ANALYSIS

Was the Accused detained?

¶ 17      Despite the assertions of the police officers to the contrary, I am entirely satisfied that the young men were detained at the initial point where the police approached them, produced their police identification and asked them to identify themselves. The accused and D.V. both testified that at this point P.C. Bopara was standing in front of them while P.C. Gregoris stood behind them. P.C. Bopara agreed with this description of where the parties were located, while P.C. Gregoris was not questioned as to where he was at this initial point of contact. I accept the evidence of the civilians and P.C. Bopara on this issue, which leads me ineluctably to the conclusion that if the police did not intend to detain the accused (and his friends) for some sort of investigation, there would have been no reason for them to position themselves in front of and behind the three young men.

¶ 18      Furthermore, even if the initial detention somehow lessened a few seconds or minutes later when P.C. Bopara took D.V. to one aside and P.C. Gregoris came round the front of the accused and G.M. (as he said he did), in my judgment the 10 minute period from the start of the interaction until the accused was arrested bolsters my conclusion that this amounted to much more than the kind of casual and transitory interaction not characterized as detention in some of the voluminous case law on this contentious issue.

¶ 19      Finally, applying both branches of the "subjective test" of detention initially articulated in R. v. Therens, [1985] 1 S.C.R. 613, 18 C.C.C. (3d) 481 at pp. 503-5, I am entirely satisfied that, despite the accused's familiarity with police procedures, the manner and process by which he (and his friends) were detained, including the demands made by P.C. Gregoris, the language and tone of that officer's voice, and place of contact, all contributed to psychological compulsion as that term has been as expanded by the Supreme Court of Canada in R. v. Hufsky, [1988] 1 S.C.R. 621, 40 C.C.C. (3d) 398 at p. 406 and R. v. Thomsen, [1988] 1 S.C.R. 640. Much as Crown counsel has urged me to do so, I am unable to characterize the contact here as benign as that found by the Ontario Court of Appeal to have existed in R. v. Grafe (1987) 36 C.C.C. (3d) 267 and subsequent cases.

¶ 20      Reference was made in argument to R. v. C.R.H. [2003] M.J. No. 90 (Man. C.A.) a case in which the issue of the vulnerability of a youth responding to police questioning during a street encounter was discussed. While I have considered this case, I wish to be clear that, in coming to the conclusion that the accused was detained by the officers, ultimately I have rejected the fact that the case at bar is being prosecuted under the provisions of the YCJA. The accused testified that he is 17 years of age; while neither counsel asked D.V. his age, he looks about the same age as the accused. Although in his evidence P.C. Gregoris referred to the young men as "boys", in my judgment it would certainly not have been obvious to the police that they were dealing with persons apparently under the age of 18. At least until the time the names were run through the police databases they could only have ascertained the ages of the three young persons by making some inquiries of them. There was nothing about the appearance of the young men which might or should have triggered the kind of inquiry mandated by [now] s. 3(1)(b)(iii) of the YCJA.

Was the Detention Arbitrary?

¶ 21      Both in his factum and in oral argument Crown counsel made much of the fact that numerous appellate courts have considered that not all police-citizen interactions amount to detentions, and that not all detentions are arbitrary. With this I concur entirely; by its very wording the Charter differentiates between lawful and unlawful detentions. Society could not function otherwise. With respect, none of the voluminous case law he cited was decided since the release of the important Supreme Court of Canada decision in R. v. Mann [2004] 3 S.C.R. 59, 185 C.C.C. (3d) 308. Crown counsel attempted to distinguish R. v. Mann on the basis that, strictly speaking, that case began to delineate rules which should henceforth guide police officers' powers of search in situations of "investigative detention". He thus argued that this case did not alter the definition of "detention". In my judgment the post-Mann decision of Laforme J. (as he then was) in R. v. Ferdinand (2004) 21 C.R. (6th) 65 has clarified that the thrust of that decision extends far beyond restrictions mandated by s.8 of the Charter, and must be considered in interpreting limitations on police powers under s.9 (see similarly R. v. K.W., [2004] O.J. No. 5327, 2004 ONCJ 351 per M. Cohen J.).

¶ 22      The decision in R. v. Mann was publicly released on July 23, 2004, some 8 1/2 months prior to the date these incidents arose. As the officers involved in this case have testified before me on prior occasions, I am aware that both have for some time been assigned to the "Street Crime Unit"; as such their duties involve ongoing and regular contact with members of the public who live in or are found in #12 Division. I was thus quite surprised to learn that neither had received any training about the implications of the Mann decision, neither at the time they came into contact with the accused, nor when they gave evidence on this motion on June 15, 2005. Perhaps this lack of training goes some considerable extent towards explaining why these officers felt that they could so readily interfere with the privacy of three young men - one of whom had a basketball in his hands - walking towards a local playground.

¶ 23      In my judgment it is entirely clear from the officers' evidence that they did not have "reasonable grounds to suspect in all the circumstances that [the three young men were] connected to a particular crime and that such a detention is necessary" (paraphrasing R. v. Mann at para. 45; emphasis added).

¶ 24   Nor can it be said that the officers had reasonably considered whether they had "... a constellation of objectively discernible facts which [gave them] reasonable cause to suspect that [the three young men were] criminally implicated in the activity under question" (paraphrasing R. v. Simpson (1993) 79 C.C.C. (3d) 482 (Ont. C.A.); emphasis added).

¶ 25   In my opinion it is patently obvious that the various justifications the officers proffered in evidence as the bases for this detention amounted to nothing more than ex post facto rationalizations for acting on a "hunch" that these young men might be up to no good. As noted recently by Weagant J. in R. v. A.A.F., [2005] O.J. No. 1210, 2005 ONCJ 102, and M. Cohen J. in R. v. K.W., supra, this may be the reality of some - perhaps much of - proactive street policing, but, following Mann, there can be no doubt that it is entirely unlawful. Clearly, police officers need to be trained to follow what the Ontario Court of Appeal indicated twelve years ago, and what the Supreme Court of Canada has forcefully confirmed. Police officers must understand that - absent some objective evidence that a particular crime was about to be or had been committed - neither outlandish dress nor loud and profane talk can provide any justification for detaining boisterous young men in a "high crime area" (R. v. Ferdinand, supra; Illinois v. Wardlaw, 528 U.S. 119 (2000)).

Should the Evidence Be Excluded under s. 24(2)?

¶ 26   From my experience in this court I have no doubt that this is a high crime neighbourhood, which these and other front line police officers are given the challenging task of attempting to control. Depressingly, I regularly hear evidence about the kinds of large and small-scale illegal activities about which both officers testified are a regular feature of the social topography of this area - weapons, drugs, graffiti, illegal drinking etc. I also have little doubt that the accused and his friends were mouthing the kinds of obscenities - even if they fall short of constituting an offence - that interfere with peoples' enjoyment of public spaces. And finally, I have little doubt that the quasi-gang dress or accoutrements of at least two of the young men was such as to potentially raise some legitimate concerns about whether they should be investigated by the police.

¶ 27   Nevertheless, particularly since R. v. Mann, in my judgment none of these various potential indicia of unlawful behaviour were such as to justify detaining them and requiring them to produce their names. Experienced police officers and others who work with youth know that teenagers sometimes behave provocatively and offensively. If, as both officers testified, they wanted to caution the young men about their use of bad language, they could have done so in a less intrusive fashion.

¶ 28      After considering all of the evidence and the submissions, and having due regard to the difficult task which these officers are expected to perform, what I cannot dismiss from my mind is the notion that they were not appropriately trained as to how to assess limitations on their extraordinary powers in dealing with three young men walking to a playground while carrying a basketball at 5:00 in the afternoon of a pleasant spring day. In my judgment, even given the "moral panic" which presently seems to afflict this city at the very mention of that emotive word "gangs", properly informed and dispassionate members of this society would be shocked if this evidence were to be admitted (see R. v. K.W., supra). As Doherty J.A. aptly put it in Brown v. Durham Regional Police Force (1999) 21 C.R. (5th) 1:

"The efficacy of laws controlling the relationship between the police and the individual is not ... measured only from the perspective of crime prevention and public safety. We want to be safe, but we need to be free." (para. 79)
 

¶ 29      The s. 9 motion is therefore allowed, and the evidence is excluded. I will now hear from counsel as to whether other evidence is to be called or submissions made on the trial proper.

D.P. COLE J.