Darteh was hanging out in front of his residence. Police had received a complaint from the property manager that there had been a lot of trespassers especially after 8pm. Police spotted Darteh; it was after 8pm. Darteh spotted the police and quickly walked away; he stopped at the first apartment, knocked on the door and tried the handle to get in.

Police found this all to be quite suspicious and approached Darteh. Darteh was carrying a partially consumed bottle of liquor and he reeked of booze. He had blood shot eyes- the officers felt this was a strong indication that Darteh had been drinking in the courtyard where they had first spotted him.

The officers asked Darteh for ID and he handed it over with a trembling hand; this officers found his level of nervousness suspicious. As Darteh was speaking with the officer he stood with his knapsack, which he wore on his back, pressed firmly against the wall; the officers suspected there was something in the bag that Darteh didn’t want them to see.

When the officers inquired about the backpack, Darteh shoved and kicked one of the officers and ducked into his apartment. The officers entered the apartment the scuffle continued as they tried to arrest Darteh. Police then searched the backpack and discovered a handgun. Darteh was charged with numerous firearms related offences and assaulting a police officer.

At his trial Darteh argued that his section 8 and 9 Charter rights had been violated and as such the firearm should be excluded and that the assault against the police officer was lawful. Justice Code dismissed the Charter motion and convicted Darteh of the offences: 2014 ONSC 895.

Darteh appealed. He argued that the police arbitrarily detained him and that the trial judge erred in finding otherwise.

The Ontario Court of Appeal dismissed the appeal: 2016 ONCA 141. The Court held that when considered cumulatively the following set of factors provided the officers with the requisite subjective suspicion grounded in objectively discernible facts:

The manner in which the appellant had turned to the first available doorway and urgently tried to gain entry by turning the door handle and knocking.
The appellant did not have a key to the unit that he was trying to enter.
The appellant was carrying a partially consumed bottle of liquor, smelled of alcohol, and had blood shot eyes such that it could be inferred that he had been drinking in the courtyard.
The appellant’s very nervous demeanour, including a trembling hand when he produced his health card and his manner of standing with his backpack up against the wall.
The complaint from the property manager that there were trespassers in the courtyard area, particularly during the evenings after 8:00 p.m., and that someone appeared to be letting them in. [para 6]

Of note is that the constellation of factors related to a lawful detention under the Trespass to Property Act and the Liquor License Act, and not in relation to the officers believing that Darteh was committing any Criminal Code offence. This is so notwithstanding the fact that the officers were suspicious of how Darteh was angling his backpack away from the officers. In contrast in R v Grant, 2009 SCC 32 and R v Le, 2014 ONSC 4288 the accused’s body language (fidgeting and blading) led the officers to believe that they might be concealing a weapon.

The distinction about the basis for the detention, that is the Criminal Code or a provincial act, matters little. What does matter however is how the officers articulate the basis for the detention and the “constellation of discernible facts” that lead them to detaining someone.

Although Darteh was not licensed to possess that firearm under any circumstances, he should have heeded Johnny Cash and left his gun at home, where the test for a lawful search requires far more than what the officers had in this case.