Uncooperative, vulgar and belligerent does not equal reasonable grounds to arrest

Gentles v. Intelligarde International Incorporated, 2010 ONCA 797 released today is a good reminder that citizens are not, generally, obliged to answer questioning by police or security guards and the failure to answer does not amount to grounds for arrest.

Especially in light of the Stacey Bonds situation in Ottawa it is worth remembering that citizens have a moral (but not legal) duty to cooperate with security forces and those security forces have a legal (and moral) duty to act lawfully.

The Court writes:

[59]          The security guards took the initiative to approach the two appellants.  As the trial judge states in para. 3, "The security guards were in the courtyard and spoke to the [appellants] as they passed."  It is uncontested that Gentles and Francis were merely walking towards Gentles' apartment building, a building with a locked front door.  As the trial judge puts it in the passage above, the appellants were "questioned".  The jury's answer to question 2 indicates that Collins and Barnes asked Gentles and Francis if they "live here".  Gentles and Francis' response to being questioned was, as the trial judge put it, "a vulgar and totally uninformative refusal to answer."  Collins testified that Gentles responded by saying "FU, we do not have to tell you f'ing anything."

[60]          Vulgarity aside, the statement that Collins attributed to Gentles is an accurate statement of the law.  Gentles and Francis were not required by the TPA or any other legal principle to respond to the question whether they lived there.  The Intelligarde respondents' counsel concedes, as he must, that while security guards have the right to ask questions, tenants have the right to refuse to answer them.  Since that is so, the refusal of an individual not recognized by security guards to identify himself as a resident provides no reason to think that he is on the premises in contravention of s. 2 of the TPA.

[61]          Moreover, that a person's refusal to answer is expressed in a belligerent and vulgar manner does not provide a basis for reasonably believing he is not a resident.  The use of vulgarity adds nothing to the analysis.  Collins and Barnes had no reasonable basis to believe that a trespasser was more likely to use vulgar language than a resident.  Gentles and Francis' vulgar and belligerent manner does not provide any reason to believe they were not residents.

[62]          The next circumstance is that, rather than respecting the young men's right to refuse to answer their questions, the security guards, as the trial judge put it, "pressed" them to respond.  The further response they received was more vulgarity and the adoption of an aggressive stance.

[63]          It is difficult to appreciate the logic that there is reason to believe an individual is likely to be a trespasser because, after initially refusing to answer questions, he maintains that position when "pressed" to answer.  The tacit assumption seems to be that residents who stand on their rights and refuse to answer will eventually relent when "pressed" to do so.  Such an assumption is not grounded in reason.  Additional rounds of questions and refusals add nothing to the legal principle that individuals can stand on their rights and refuse to answer the questions of security guards.

[64]          Nor can the escalation of vulgarity and aggressiveness attributed to Gentles and Francis contribute to the required reasonable grounds.  It seems to me that the one thing the security guards did have a reasonable basis to believe, having encountered vulgarity and belligerence upon first "questioning" the appellants, was that they would encounter more vulgarity and belligerence if they persisted in pressing for answers.

[65]          Gentles and Francis may have been uncooperative, vulgar and belligerent. However, the security guards required some objective basis to believe that Gentles and Francis were uncooperative, vulgar and belligerent trespassers rather than uncooperative, vulgar and belligerent residents.