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Appellant ‘psychologically detained from the outset of his interaction’ with police, court rules

Friday, November 19, 2021 @ 9:17 AM | By Amanda Jerome

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The Ontario Court of Appeal has ruled a man charged with multiple criminal offences was “psychologically detained from the outset of his interaction” with police “well before his initial arrest.” The court allowed the appeal, finding the appellant’s detention occurred when the police “discovered” the car the appellant was in “was occupied” after the police had “blocked it from moving.”

In R. v. Tutu, 2021 ONCA 805 the court heard that the appellant, Nana Tutu, was convicted of “one count of wilfully obstructing a peace officer; six counts stemming from the illegal possession or storage of a firearm; five counts stemming from breach of recognizance; and four counts stemming from the possession of Schedule I substances.” He served a four-year sentence.

According to court documents, Tutu argued at trial that his arresting officer, Police Constable Mark Hankin, “violated several of his rights under the Canadian Charter of Rights and Freedoms: his s. 9 rights (by arbitrarily detaining him), his s. 10(b) rights (by failing to provide him with the right to counsel immediately after detaining him), and his s. 8 rights (by searching his vehicle incident to an unlawful arrest).”

Tutu also “claimed that PC Hankin racially profiled him.”

According to court documents, Hankin was doing a general patrol in Barrie when he “noticed a black Chrysler with fresh yellow paint markings on the front quarter panel, indicating possible damage.”

Hankin “pulled in behind the car, ran a computer check of the licence plate, and learned that it was a rental.” The officer exited his cruiser and approached the vehicle, which, according to court documents, he initially thought unoccupied.

When Hankin noticed people in the car he “knocked on the driver’s side window, and the appellant rolled it down.” The court noted that Tutu is “a Black man and was wearing a black hoodie.” Tutu also had “a set of gold teeth known as what the officer called a ‘grill.’”

According to court documents, Tutu and Aaliyah Henry, the other person in the car, were “sharing a marijuana joint…” Hankin requested the joint be put out, the music turned down, and asked for their names.

Henry gave the officer her real name, but, the court noted, Tutu “falsely identified himself as ‘Marcus Anthony.’” When Hankin ran the names through the computer in his cruiser, he found there was “no driver’s licence connected to the name, nor any outstanding warrants or criminal convictions.”

The officer “suspected” that Tutu had given him a fake name, so he went back to the car and asked Tutu to spell his name, which the appellant was unable to do. Tutu “then provided a second fake name, ‘Ben Dan.’”

At this time, the court noted, “another officer, PC Ronald Hunt, had arrived at the scene.” The officers took Tutu out of the car and Hankin “arrested him for obstructing police.” However, Hankin “did not immediately advise the appellant of his right to counsel.”

According to court documents, Hunt arrested Henry for “marijuana possession” and then he searched the car and found “a Glock handgun as well as pouches of drugs in a Gucci bag located on the floor.” Hankin then arrested Tutu again for “possession of a firearm, and read him his rights.”

Tutu was taken to the police station “where his right to speak to counsel was implemented.”

Tutu appealed, arguing that the trial judge, Justice Gregory Mulligan of the Superior Court of Justice, “erred in failing to exclude the material evidence under s. 24(2) of the Charter on the basis that” Tutu’s Charter rights were breached.

Justices Janet Simmons, Peter Lauwers and Gladys Pardu, writing for the Court of Appeal, explained that the appeal turned on “whether the trial judge erred in finding that the appellant’s detention, for Charter purposes, occurred at the moment of his arrest and not before.”

“In our view,” the court explained, “the detention occurred when PC Hankin discovered that the car was occupied after he had blocked it from moving.”

In its analysis, the court explained that “[A] detention arises only where the police suspend an individual’s liberty through ‘a significant physical or psychological restraint’: see R. v. Grant, 2009 SCC 32.”

“Not every interference with an individual’s liberty attracts Charter scrutiny,” the judges noted.

The court noted that while “[P]hysical detention is usually obvious,” the more “difficult” aspect is “psychological detention, which the court in Grant noted ‘is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.’”

The judges noted that the Court of Appeal had explained in R. v. Thompson, 2020 ONCA that “psychological detention or restraint can arise in two ways, when: (1) ‘an individual is legally required to comply with a police direction or demand’; or (2) absent legal compulsion, when ‘the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand.’”

The court stressed that the s. 9 inquiry “engages all the circumstances of the encounter” and “requires an objective assessment of what a reasonable person in the shoes of the accused would perceive about his or her freedom to leave.”

“The focus is on how the police behaved and, considering the totality of the circumstances, how their behaviour would reasonably be perceived,” the court noted, clarifying that the focus “is not on what was actually in the accused’s mind at the particular moment. Nor is it on the police officer’s intention.”

The court noted that Justice Mulligan “found that the appellant’s detention arose when he was arrested by PC Hankin for obstructing police after the appellant gave a second false name.” However, Tutu submitted that “he was psychologically detained when the officer boxed his car into the parking spot.”

The judges explained that the case before them was remarkably similar to Thompson. In that case, the court allowed the appeal because the evidence at trial “should have been excluded under s. 24(2) of the Charter because the police had arbitrarily detained the appellant by boxing in his vehicle and had failed to immediately inform him of his right to counsel.”

In the case at bar, the Crown submitted that, “unlike Thompson, in which the police intentionally boxed in the appellant’s car, PC Hankin was unaware that the vehicle was even occupied when he parked behind it; there is no evidence that the appellant was aware of police presence at that moment.”

“However,” the court noted, the Crown’s reasoning was “expressly rejected in Thompson.”

They pointed to Justice Mahmud Jamal’s reasoning that “[W]hether the appellant was detained, triggering the police’s Charter obligations, should not turn on whether the appellant saw the police in his rear-view mirror as they boxed him in (a subjective approach), but on whether a reasonable person in his circumstances would conclude that this police conduct effected a detention (an objective approach).”

The court noted that in Tutu’s case, the “circumstances giving rise to the encounter” support “a finding that a reasonable person, in the appellant’s position, would believe he was detained when the police, having obstructed his car, approached it or knocked on the window.”

“A reasonable person would see this as a directed personal inquiry,” the judges added.

The court determined that Tutu was “psychologically detained from the outset of his interaction with PC Hankin, well before his initial arrest.”

“PC Hankin blocked the movement of the appellant’s car with his marked police cruiser. He was in a police uniform. Nothing about the officer’s initial interaction with the appellant would have diminished the perception of a reasonable person in the appellant’s circumstances that he was detained,” the judges stressed.

The court emphasized that when Hankin “came to the driver’s side window, after blocking the car and preventing it from leaving, he effectively detained the appellant.”

“This situation would lead a reasonable person in the appellant’s position to conclude that he was not free to go. This detention was arbitrary and therefore a breach of s. 9 of the Charter because at that point, there was no reasonable suspicion of criminal conduct,” they court explained, noting that the detention was “reinforced” when Hankin “knocked on the window.”

“On the officer’s own evidence, the appellant’s use of marijuana did not justify his detention or his arrest,” the court added.

The court noted that “[A]s in Thompson, the officer did not immediately advise the appellant of his right to retain and instruct counsel, contrary to s. 10(b) of the Charter.”

“This failure,” the judges stressed, “tainted everything that followed.”

Hankin, the court noted, detained Tutu “but instead of telling the appellant that he was detained and advising him of his rights, including his rights to counsel and to not speak, the officer questioned the appellant. This led to the discovery of the evidence.”

The court determined that the “seriousness of the combined breaches and their significant impact on the appellant’s Charter-protected rights” mean that “permitting the admission of the evidence in the appellant’s prosecution would bring the administration of justice into disrepute.”

In a decision released Nov. 12, the judges unanimously allowed the appeal and entered acquittals on all counts.

Counsel for the appellant didn’t respond to request for comment before press time.

The Ministry of the Attorney General, on behalf of the Crown, declined to comment on the decision.

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