Charter rights versus officer safety

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Officer safety trumped concerns over Charter rights, in a recent Ontario Court of Appeal decision.

In R. v. Johnson, 2013 ONCA 177, the court found that police may take reasonable steps to ensure their safety during traffic stops.

Officers with the Toronto Anti-violence Initiative Strategy (TAVIS) stopped a vehicle in July, 2008. It had stopped partly on a boulevard in the Regent Park area of Toronto. Johnson, a passenger, was ordered to keep his hands visible, on the back of the seat in front of him. An officer saw gun butt sticking out of a backpack lying next to him. The officer reached in, took the bag and found a loaded semi-automatic handgun. Johnson was arrested and charged with several offences.

At trial, Johnson’s argued that the evidence was inadmissible under s. 24(2) and that his rights under subsections 8, 9 and 10(b) of the Charter had been breached. The Ontario Superior Court of Justice did not accept that position and neither did the appeal court.

Johnson’s detention was not arbitrary, the appeal court found. “Officer safety is a valid reason to take reasonable steps to control the vehicle,” Justice Epstein wrote. Johnson’s s. 10(b) rights were not breached because, “It is well-established that lawful detention arising out of an HTA matter does not engage a person’s rights set out in s. 10(b) of the Charter.”

The trial judge relied on guidance provided by R. v. Grant, 2009 SCC 32 (CanLII), 2009 SCC 32, [2009] 2 S.C.R. 353, and R. v. Harrison, 2009 SCC 34 (CanLII), 2009 SCC 34, [2009] 2 S.C.R. 494, concluding that even though Johnson had been detained, the evidence should not be excluded.

Writing for the majority, Justice Epstein found that Johnson was in fact detained and “under psychological restraint.”

Justice Epstein applied a s. 24(2) analysis and concluded: “While the breach in this case was not trivial, it does not rise to the level required for exclusion. On balance, the repute of the administration of justice would suffer by excluding this evidence. In my view, the gun was properly admitted.”

At trial, Johnson was convicted of possessing a loaded prohibited or restricted firearm, possession of a loaded firearm knowing he wasn’t licensed, three counts of possession of a firearm while prohibited by three separate s. 109 orders and breach of a probation order term prohibiting him from possessing a firearm. He was sentenced to nine years in prison.

Johnson’s appeal against conviction was dismissed and his sentence upheld.

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