It was unusually warm on New Year’s Eve 2010. This added to the celebratory air around Spadina and Queen Streets in Toronto as revellers walked in light jackets or no jackets at all. Not so, Rowan Atkins. Three officers driving down Spadina in an unmarked van noticed him walking because he was wearing a heavy, baggy winter coat over a hoodie and he was withdrawn, hiding in the crowd and skirting the walls of buildings as he walked. The officers were suspicious and stopped to talk to him. After being called over by the officers, Mr. Atkins took a couple of steps towards them but then started running. After a brief foot pursuit the police discovered the likely reason for Mr. Atkins change of heart; the loaded handgun he was carrying. The trial judge ruled that Mr. Atkins’ s. 8 and 9 Charter rights were not infringed. The Ontario Court of Appeal agreed: 2013 ONCA 586.

One officer initiated contact with Mr. Atkins by calling “hey” to him out of the window of the unmarked van. Mr. Atkins glanced back but kept walking. The van moved further along the street and the officer called “hey buddy” a little louder. Mr. Atkins then turned towards the officer and she waved for him to come over. She then got out of the van with another officer, both in full uniform. Mr. Atkins took steps towards them as though he was going to speak with them but then ran.

The Court of Appeal endorsed the trial judge’s finding that at the time Mr. Atkins decided to run; he knew full well that it was the police who had summoned him.

In holding that the trial judge was correct in determining that there was no psychological detention, the Court noted that while flight may be some evidence that Mr. Atkins felt that he had no choice but to comply with the officer’s request to speak with him, the fact remained that he did not submit to any deprivation of liberty; there could therefore be no detention.

The Court pointed to the fact that Mr. Atkins did not testify on the voir dire “leaving no evidence on which the trial judge could conclude, even based on the appellant’s subjective perception of his choices at the moment that he was summoned, that he was psychologically detained” [para. 11]

It is interesting to note that the Court also comments that it was open to the trial judge to find that, in all of the circumstances, the police had the requisite reasonable suspicion to detain Mr. Atkins.

Lastly, the Court held that the pat-down search which unearthed the gun was justified on officer safety grounds and there was therefore no violation of s. 8.