Court File and Parties
Court of Appeal for Ontario Date: 2022-09-12 Docket: C68112 & C68113
Before: Lauwers, Huscroft and Coroza JJ.A.
Docket: C68112 Between: His Majesty the King, Respondent and Rashid Ahmed, Appellant
Docket: C68113 And Between: His Majesty the King, Respondent and Liibaan Abdi Yusuf, Appellant
Counsel: Alan D. Gold and Ellen C. Williams, for the appellant Rashid Ahmed Mark C. Halfyard and Lindsay Board, for the appellant Liibaan Abdi Yusuf Andrew Hotke, for the respondent
Heard: January 26, 2022 by video conference
On appeal from: The convictions entered by Justice Patrick J. Monahan of the Superior Court of Justice on October 22, 2019, with reasons reported at 2019 ONSC 6121 (C68112 & C68113). The sentence imposed by Justice Patrick J. Monahan of the Superior Court of Justice on September 15, 2020, with reasons reported at 2020 ONSC 5524 (C68113).
I. Overview
1On the evening of March 23, 2017, police responded to two 911 calls that reported gunshots and speeding cars around 3001 Finch Avenue West, an apartment building in the city of Toronto. One of the callers said he had seen a dark-coloured car speed off, possibly a Dodge Charger. Approximately 12 minutes later, two police officers parked outside of the apartment building. At the same time, a black Dodge Charger, driven by Rashid Ahmed, pulled into the front driveway of the building. Osagie Jeffrey Isaac was seated in the front passenger seat and Liibaan Abdi Yusuf was seated in the right rear passenger seat. 1 The officers detained the occupants and patted them down outside of the Charger. Eventually, one of the officers stuck his head through the open rear passenger door of the Charger and, using his flashlight, illuminated the floor area. After about seven seconds, he called out that he had seen a gun and ordered the arrest of the occupants. A gun with an extended magazine was located underneath the front passenger seat directly in front of where Yusuf had been seated. The magazine of the gun had protruded into the rear passenger footwell. The entire interaction – from the initial detention of the occupants of the Charger to the discovery of the gun was brief – about three minutes.
2Ahmed and Yusuf were each charged with the same nine firearm offences regarding unauthorized possession of a loaded and restricted firearm and of a prohibited device, including while in a motor vehicle and for a dangerous purpose, pursuant to ss. 86(1), 88(1), 91(1), 92(2), 94(1), 94(2), and 95(1) of the Criminal Code, R.S.C. 1985, c. C-46. At trial, the Crown proceeded on all counts against Yusuf, but only proceeded against Ahmed on Counts 7 and 8 (occupying a motor vehicle knowing that there was in that vehicle a restricted firearm, contrary to s. 94(2); and occupying a motor vehicle knowing that there was in that vehicle a prohibited device, contrary to s. 94(1)). Further, if Yusuf was found to be in possession of the firearm, the Crown advised the trial judge that it did not intend to pursue Counts 7 and 8 against him.
3At trial, the appellants argued that the gun should be excluded from evidence on the basis that it was seized in violation of their ss. 8, 9, and 10(b) rights as guaranteed by the Canadian Charter of Rights and Freedoms. The trial judge disagreed – despite finding a s. 8 Charter infringement, he admitted the gun into evidence following a s. 24(2) analysis. Consequently, the appellants argued that the Crown had failed to establish their guilt beyond a reasonable doubt. Again, the trial judge disagreed.
4Neither appellant testified. The trial judge found that Ahmed had been driving the Charger when it was involved in an exchange of gunfire with another vehicle. He further found that this was the gunfire reported by the 911 callers. He also found that Yusuf was in the Charger when the exchange of gunfire took place and either used the gun or made Ahmed aware that he had the gun. The trial judge found that Yusuf had placed the gun under the passenger seat immediately in front of him to conceal it from the police.
5The appellants ask this court to quash their convictions. They submit that the trial judge erred in admitting the gun into evidence. Alternatively, the appellants argue that the trial judge’s reasons for conviction are flawed, and this court should quash their convictions on that basis.
6Ahmed specifically argues that the trial judge’s findings that the Charger had been involved in an exchange of gunfire, and that he was aware that there was a gun in the car, are unsupported by the evidence. For his part, Yusuf adopts Ahmed’s submission regarding the exchange of gunfire. Yusuf also argues that the trial judge erred by relying on evidence that his cellphone, which was located close to where he was seated, contained photographs of a gun; and that the trial judge’s finding that Yusuf would have seen the gun because of his location in the Charger is unreasonable. If his conviction appeal fails, Yusuf alternatively seeks leave to appeal his sentence and argues that his sentence should be reduced.
7For the reasons that follow, I agree with the trial judge’s decision to admit the gun into evidence because in my view, there was no breach of the appellants’ Charter rights. Nevertheless, I would allow both conviction appeals. In my view, the trial judge’s finding that Ahmed was aware that there was a gun in the car because it was involved in an exchange of gunfire rests on a fundamental misapprehension of evidence. Consequently, Ahmed’s convictions are unsupported by the evidence. I would allow his appeal, quash his convictions on Counts 7 and 8, and enter acquittals on those counts.
8Turning to Yusuf, I agree that the trial judge’s conclusion – that the only reasonable inference from the evidence was that Yusuf was in possession of the gun – cannot stand. Respectfully, that conclusion appears to be based on the trial judge’s finding about the exchange of gunfire and the photographs on Yusuf’s cellphone. As I will explain, those findings are problematic. Therefore, I would also allow Yusuf’s appeal and quash his convictions on Counts 2, 3, 4, 5, 6, and 9. However, I would not enter acquittals but instead order a new trial because a properly instructed jury, acting judicially, could arrive at guilty verdicts on those counts based on the properly admissible evidence. Given my proposed disposition of Yusuf’s conviction appeal, it is not necessary to deal with his sentence appeal.
II. Background Facts
9At approximately 8:16 p.m. on March 23, 2017, the superintendent of an apartment building at 3001 Finch Avenue West, in the city of Toronto, called 911 reporting that he heard the sound of four gunshots coming from south of his location. He stated that he observed a dark blue or black four-door vehicle travelling westbound on Finch Avenue West at a high speed approximately five minutes after he heard the gunshots.
10Shortly thereafter, another individual called 911, also reporting that he heard the sound of four gunshots coming from south of Finch Avenue West. This caller told the police that he observed a dark-coloured vehicle, possibly a Dodge Charger, entering a plaza on Finch Avenue West. He also reported having seen a blue van leaving the scene, as well as a third car with its hazard lights flashing.
11Several police officers were dispatched and attended the scene. En route to 3001 Finch Avenue West, at about 8:24 p.m., Police Constable Do Hyung Maing (“PC Maing”) and Detective Constable Wayel Allawneh (“DC Allawneh”) investigated a Toyota that was stopped in the area with its hazard lights flashing. After satisfying themselves that this was not the car which was involved with the gunshots, the officers proceeded to the building at 3001 Finch Avenue West. They were the first police officers to arrive. Just as these officers were parking outside of the apartment building, at about 8:28 p.m., a black Charger driven by Ahmed pulled into the driveway and parked in front of the apartment building. 2
12After he parked the car on the driveway, Ahmed got out of the Charger and walked toward the apartment building. He was on his cellphone. DC Allawneh exited the police cruiser and called out to Ahmed, who walked back toward DC Allawneh. DC Allawneh began to tell Ahmed that the police were investigating reports of gunfire in the area and that the vehicle he was driving matched the description of a vehicle that may have been involved. A few moments later, PC Maing exited the police cruiser and approached the two men. DC Allawneh then left Ahmed with PC Maing and walked to the Charger.
13Isaac was seated in the front passenger seat and Yusuf was seated directly behind him in the right rear passenger seat of the car. When he reached the vehicle, DC Allawneh explained to the two men that the police were investigating the possible involvement of a Charger in a recently reported shooting in the area. According to DC Allawneh, both men responded by being argumentative; they questioned the basis on which the vehicle had been stopped and interrupted his responses to their questions. In his view, the two men seemed nervous.
14At 8:29 p.m., two more police officers arrived at the scene: Detective Constable AB (“DC AB”) 3 and Police Constable Greg Mangiardi (“PC Mangiardi”). While DC Allawneh was engaging with the passengers in the vehicle, DC AB joined him at the passenger side of the Charger. DC AB then took the lead in the interaction and explained to Yusuf and Isaac that they were investigating reports of gunfire and the possible involvement of a Charger.
15At 8:30 p.m., Yusuf and Isaac exited the Charger at the instruction of DC AB and DC Allawneh. They left both passenger doors open and walked away from the vehicle. All occupants were then subjected to pat-down searches. DC Allawneh conducted a pat-down search of Isaac while DC AB conducted a pat-down search of Yusuf. The police did not identify any weapons or contraband through these pat-down searches.
16At 8:31 p.m., DC AB left Yusuf and walked back toward the Charger. He put his head through the open rear passenger door and examined this portion of the inside of the vehicle using his flashlight. Within seven seconds, he alerted the other officers that he had seen a firearm in the vehicle. DC AB ordered the arrest of all three occupants.
17Following the arrest of the three occupants, the police sealed the Charger and obtained a search warrant for the vehicle. The resulting search led to the seizure of a loaded restricted firearm with an extended magazine, which was found on the floor of the vehicle in front of where Yusuf had been sitting. A photograph of the gun which had been taken by the police was tendered into evidence. It shows the gun under the front passenger seat, with the magazine protruding out to the rear passenger footwell. The police also seized a cellphone that was on the rear passenger seat where Yusuf had been sitting. This cellphone contained a dozen photographs of a firearm with an extended magazine. Somebody was holding the firearm in two of the photographs, but it was not possible to identify this individual. The phone included 22 other videos and dozens of other photographs depicting Yusuf, but he was not holding a firearm in any of those photographs or videos.
III. The Trial
18The matter proceeded as a blended Charter voir dire and trial. DC AB, the officer who located the gun in the car, was unable to testify at trial. The trial judge dismissed an application by the Crown to have the officer’s evidence at the preliminary inquiry admitted at trial. The Crown tendered the evidence of the other three officers, along with several exhibits and an agreed statement of facts. The appellants did not testify.
19The Crown’s theory at trial was that Yusuf was in possession of the gun in the back seat, that he had placed it under the front passenger seat immediately in front of him in order to conceal it from the police, and that Ahmed, as the driver of the car, knew that Yusuf was in possession of a gun in the car because it had been involved in the gunfire which was reported to 911.
20The trial judge gave comprehensive reasons on all the issues raised. I will consider his reasons in more detail, as necessary, when I deal with the issues raised in this appeal.
IV. Analysis
(1) The Charter Appeal
21The trial judge dismissed the appellants’ pre-trial application to have the gun excluded on the basis that it was obtained in a manner that infringed their Charter rights. In doing so, he made four rulings that are relevant to this appeal. First, the trial judge held that the investigative detention and the protective pat-down search of the appellants complied with s. 9 of the Charter. Second, he held that the brief delay in advising the appellants of their right to counsel upon detention did not offend s. 10(b) the Charter. Third, he found that the discovery and seizure of the gun in the rear passenger footwell violated the appellants’ right to be secure against unreasonable search and seizure, contrary to s. 8 of the Charter. Fourth, notwithstanding the s. 8 breach, he held that the firearm evidence obtained from the search should not be excluded pursuant to s. 24(2) of the Charter, after balancing the factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
22Therefore, the following issues are raised in the Charter appeal:
a. Did the police detain and pat down the occupants of the Charger without having requisite grounds, contrary to s. 9 of the Charter?
b. Did the police fail to inform the appellants of their right to counsel “without delay”, contrary to s. 10(b) of the Charter?
c. Did the seizure of the gun from the rear passenger footwell violate the appellants’ right to be secure against unreasonable search and seizure as guaranteed by s. 8 of the Charter?
d. Did the trial judge err in admitting the gun under s. 24(2) of the Charter?
23I will now address each issue in turn.
a. Did the police detain and pat down the occupants of the Charger without having requisite grounds, contrary to s. 9 of the Charter?
24The appellants argue that the trial judge erred in finding that the police had the requisite grounds to detain the occupants of the Charger, which infringed their s. 9 Charter rights. I disagree.
25The requirements for a justifiable investigative detention are twofold: (1) police officers must have reasonable grounds to suspect that the specific person is implicated in the criminal activity under investigation; and (2) the decision to detain must be reasonable on an overall assessment of all circumstances: see R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 34.
26The trial judge was required to take a common sense and practical approach to the issue. The trial judge determined that the police officers carried out a Charter-compliant investigative detention and protective pat-down search of the occupants. He found that the police had reasonable grounds to detain the three males to investigate their potential involvement in the reported gunfire. Although the police did not know whether the gunshots originated from the Charger, the trial judge was satisfied that the fact that the Charger matched the descriptions of the vehicle that was seen speeding away from the approximate location of the gunshots supported a reasonable suspicion that the occupants had knowledge of what occurred.
27In the end, the trial judge had little difficulty in concluding that the detention of the occupants was lawful. I agree with and adopt the following passages of the trial judge’s ruling:
First, while the detention occurred approximately 18 minutes after the gunshots had been heard by the 911 caller, it was only 13 minutes after the initial call had been received by the police. Moreover, Maing and Allawneh were not assigned to the call until 8:18 PM, and they arrived on scene at 8:24 PM. It took them approximately four minutes to investigate the Toyota with the flashing lights, with the result that they arrived back at 3001 Finch Avenue West just prior to 8:29 PM.
I find that the officers responded expeditiously and promptly to the 911 call. I further find that by 8:29 PM, it was entirely reasonable that they continue their investigation into the reports of gunshots in the area. This conclusion is reinforced by the seriousness of the incident under investigation. The surveillance footage indicates that at the time the gunshots were heard, numerous individuals (including a number of children) were walking nearby. Any of these innocent bystanders could have been seriously injured or killed by random gunfire. Given the serious risk to public safety, it was entirely appropriate for the officers to continue to investigate the incident by 8:29 PM, the point at which they detained the accused.
It is true that neither 911 caller provided a definitive description of the vehicles involved in the incident. However, the second caller had stated that one of the vehicles was “possibly” a Charger. This was the very vehicle observed by the officers when they arrived on scene. In this sense, the officers in this case had much stronger grounds to detain the occupants of the Charger then did the police officers in R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725], where the vehicle that was detained did not match the description of any of the vehicles that had been reported by a 911 caller. The fact that the Charger matched the description provided by the second 911 caller provided what Iacobucci J. in Mann described as the “clear nexus” between the vehicle’s occupants and the incident under investigation.
I further find that the fact that the Charger was parked directly in front of 3001 Finch Avenue West reinforced the reasonableness of the officers’ decision to detain the vehicle’s occupants. The Charger was parked outside the very building where the 911 call had originated. The fact that one of the 911 callers had observed the Charger speeding away from the scene 18 minutes earlier did not preclude the possibility that the vehicle might have returned to that location.
It is true that the officers did not know whether any gunshots had originated from the Charger. But the fact that a vehicle resembling a Dodge Charger was seen speeding away from the location where the gunshots were fired gave rise to a reasonable suspicion that the occupants had knowledge of what had occurred. Given the significant threat to public safety, I find that it was reasonable to detain the occupants of the Charger for further investigation.
28Having found that the detention of the occupants in the Charger was lawful, the trial judge then assessed whether the police officers had reasonable grounds to conduct a protective pat-down search of those occupants. He found that the police did have reasonable grounds to believe that one of the occupants had a firearm on him, because a vehicle matching its description was reportedly seen driving away from the scene of the gunfire.
29The appellants argue that the trial judge’s reasons regarding the legality of the pat-down search was tainted by legal error. I disagree. The law is clear that the police have the power to briefly detain individuals for investigative purposes and to conduct a limited pat-down or safety search incident to that detention: Mann, at para. 45. When an officer has reasonable grounds to believe that their safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. The trial judge clearly found that the circumstances established reasonable grounds to believe that a potential imminent threat to safety existed and that a pat-down search was reasonably necessary.
30The trial judge recognized that there is no automatic right to conduct a search upon a detention. However, he found that, given that a car matching the Charger was seen speeding away from the scene of the gunfire, the occupants of this Charger might have a firearm. The trial judge found that, in the totality of the circumstances, it was objectively reasonable for the officers to conduct a protective pat-down search of the occupants who were found in a Charger, and in the vicinity of the reported gunfire. The trial judge also found that the pat-down search that was conducted was brief, non-intrusive, and did not go beyond what was appropriate in the circumstances.
31Further, I would not accept Yusuf’s argument that there was no evidence that DC AB, the officer who patted him down, subjectively believed that a pat-down was necessary for officer safety. While it is true that DC AB did not testify and there was no direct evidence that this pat-down was necessary, this was not fatal to the trial judge’s conclusions, as the trial judge was entitled to draw inferences from the other evidence.
32The trial judge noted that the reasonableness of the decision to conduct a protective pat-down search was supported by the evidence of DC Allawneh, who testified that he immediately recognized Yusuf as an individual who had been mentioned in recent police bulletins involving shootings in the area. Although DC Allawneh was not sure whether Yusuf had been mentioned as a suspected perpetrator or a victim, the trial judge was satisfied that Yusuf’s potential involvement in recent shootings in either capacity supported the reasonableness of the pat-down search.
33The trial judge’s reasons demonstrate that he was alive to the totality of the evidence. That evidence supports the inference that DC AB had the requisite grounds: see e.g., R. v. Chow, 2022 ONCA 555, at para. 52; R. v. Nesbeth, 2008 ONCA 579, 238 C.C.C. (3d) 567, at paras. 19-20, leave to appeal refused, [2009] S.C.C.A. No. 10.
34Accordingly, I would dismiss this ground of appeal.
b. Did the police fail to inform the appellants of their right to counsel “without delay”, contrary to s. 10(b) of the Charter?
35The appellants argue that there was no justification for any delay in providing their right to counsel immediately upon detention. The trial judge rejected this argument and held that there was no infringement of s. 10(b) of the Charter because the delay between detention and arrest – about three minutes – was fully justified in light of the investigative detention being a fluid and dynamic situation in which the officers were attempting to establish control of the occupants. The trial judge described this delay as “fleeting and de minimis”.
36Read in isolation, the use of the words “fleeting and de minimis” is problematic for two reasons. First, s. 10(b) of the Charter guarantees “the right to retain and instruct counsel without delay, and the right to be informed of that right without delay”: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 41 (emphasis added). Even a three-minute delay is contrary to the language of “without delay”, read strictly. Second, the trial judge’s characterization of the delay as “fleeting and de minimis” has the potential to conflate the s. 10(b) analysis, which inquires into whether the s. 10(b) right was infringed in the first place, with the s. 24(2) analysis, which inquires, in part, into the impact of any infringement on the accused, ranging from an infringement that is “fleeting and technical” to one that is “profoundly intrusive”: Grant, at para. 76.
37However, when the trial judge’s reasons are read as a whole, I see no error in his analysis. The trial judge understood that s. 10(b) of the Charter places a time-sensitive obligation on the police to inform the occupants of the right to counsel “immediately … subject to concerns for officer or public safety”: see e.g., R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para 2.; R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at paras. 60-62.
38The trial judge cannot be understood to have meant that the delay, in the abstract, was “fleeting and de minimis”. Rather, in my view, it is clear that he found that the delay of three minutes was justified in the specific circumstances of the case. The trial judge reviewed the following evidence, which was telling of the circumstances in which the police found themselves, and which justified the three-minute delay in this case:
- Given the reports of gunshots, there were serious concerns about the possibility that one of the occupants of the vehicle was armed with a firearm.
- It took some time for the officers to persuade Yusuf and Isaac to exit the car so that pat-down searches could be conducted.
- DC Allawneh was not even able to complete his pat-down search of Isaac before DC AB called for the arrest of the occupants.
- Not only were the officers concerned with the possibility that the suspects were carrying a firearm, but they were also aware that another firearm could have been hidden in the Charger. The passenger doors to the Charger had been left open while the pat-down searches were being conducted and the interior of the vehicle was therefore accessible to the three suspects.
39I see no basis to interfere with the careful findings of fact made by the trial judge. Nor do I see any basis to interfere with his observation that the arrest scene was “fluid and dynamic”. Indeed, the video of the entire incident supports all of the trial judge’s findings. Accordingly, I would reject the submission that the three-minute delay, in these circumstances, amounted to an infringement of the appellants’ s. 10(b) Charter rights.
c. Did the seizure of the gun from the rear passenger footwell violate the appellants’ right to be secure against unreasonable search and seizure as guaranteed by s. 8 of the Charter?
40As a threshold issue, the trial judge was required to address the Crown’s argument that Yusuf, as a passenger, could not assert a s. 8 violation because he had no reasonable expectation of privacy to challenge the search of the Charger. The Crown argued at trial that there was an absence of any evidence establishing Yusuf’s connection to the car. The trial judge did not directly address this submission. However, he held that Yusuf could assert a s. 8 claim based on a reasonable expectation of privacy in the item that was seized by the police: R. v. Belnavis, [1997] 3 S.C.R. 341, at para. 24.
41The trial judge noted that Yusuf’s privacy claim was supported by the Crown’s theory that Yusuf was in unlawful possession of the gun. He found that, on this theory, Yusuf did not intend to relinquish control over the gun because he concealed it under the front passenger seat. He further reasoned that, once the police had departed, Yusuf could get back into the car, collect the gun, and maintain control over it. Therefore, Yusuf had a direct interest and a subjective expectation of privacy in the gun, and that this expectation was objectively reasonable in the totality of the circumstances.
42After concluding that Yusuf had standing, the trial judge went on to assess the actions of DC AB. Ultimately, he found that DC AB had violated the appellants’ s. 8 rights by sticking his head into the car in the area where Yusuf had been seated.
43After reviewing this court's decisions in R. v. Plummer, 2011 ONCA 350, 272 C.C.C. (3d) 172, and R. v. Lee, 2017 ONCA 654, 351 C.C.C. (3d) 187, the trial judge acknowledged that in certain circumstances it is permissible for the police to conduct a search incident to an investigative detention that is broader than a pat-down search. He noted that the reasonableness of any such broader search will depend on the nature of the safety concern at issue. The trial judge found that a broader search, limited to the area where Yusuf was sitting, was justified in this case. The fact that the 911 calls had been made and that Yusuf had been identified as having been involved in recent shootings provided an objectively reasonable basis to conduct a search of the rear seat of the car.
44The trial judge found that there were specific safety concerns regarding Yusuf that would justify a search that went beyond a pat-down:
This direct link between Mr. Yusuf and recent incidents of gun violence, combined with the initial information provided by the 911 calls, brought the facts here much closer to those in Plummer. In my view, the initial serious safety concern had become sufficiently credible and specific so as to provide an objectively reasonable basis for a search of the area of the Charger in which Mr. Yusuf had been sitting. If Mr. Yusuf had been carrying a firearm when the police arrived, he would have had the opportunity to hide the firearm in the vehicle before exiting. A police officer with such knowledge would have been justified in searching the area of the vehicle accessible to Mr. Yusuf, including the area under the passenger seat immediately in front of him, in order to ensure that this had not happened.
45Nevertheless, the trial judge noted that, although the police were justified in conducting a warrantless search of the area where Yusuf had been sitting, there was a significant gap in the evidence. The officer who found the gun, DC AB, did not testify, and the trial judge found that there was no evidence of the grounds that informed his decision to search the rear portion of the car. Absent this evidence, the trial judge held that he could not discern the basis of the search of the car from the other evidence.
46On appeal, all parties submit that the trial judge’s s. 8 analysis was flawed. The appellants argue that the trial judge was correct to find a s. 8 breach but for different reasons articulated by the trial judge. They submit that contrary to the trial judge’s finding, there was no basis to extend the pat-down search to the rear portion of the Charger and that this conclusion tainted his s. 24(2) analysis – an analysis they say should have resulted in exclusion.
47For its part, the Crown argues that the trial judge erred in his s. 8 analysis in two ways: (a) in finding that Yusuf had standing to challenge the seizure of the handgun from the Charger; and (b) in finding that the seizure of a gun in plain view was unlawful and a breach of the appellants’ s. 8 rights.
48Section 8 of the Charter protects a claimant’s reasonable expectation of privacy against unreasonable state action. Therefore, in this case, the appellants had to establish a reasonable expectation of privacy, in the Charger or the item seized (i.e., the gun). If they were successful, the onus would then shift to the Crown to show that the police conduct in this case was a reasonable interference with that expectation of privacy.
49There is no dispute that Ahmed had established a reasonable expectation of privacy in the car. The trial judge found that he was the driver and he had rented it. Ahmed did not, however, claim an expectation of privacy in the gun. Indeed, his defence was premised on the fact that he had no knowledge of the gun in the Charger.
50Yusuf, as the passenger in the car, was in a clearly different position than Ahmed. Although, depending on the circumstances, passengers in a car may have a reasonable expectation of privacy in a car, 4 Yusuf did not testify, and led no evidence establishing any connection to the Charger or the terms on which he came to be a passenger that could support a reasonable expectation of privacy in relation to the Charger. 5
51But Yusuf’s failure to establish an expectation of privacy in the Charger did not necessarily extinguish his s. 8 claim. That is because Yusuf’s claim rested on a reasonable expectation of privacy in the item seized on the basis that the Crown’s own theory established his privacy in that item. On appeal, the Crown acknowledges that Yusuf was permitted to rely on the Crown's theory to establish a direct interest and subjective expectation of privacy in the item seized (i.e., the gun), pursuant to R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 9.
52The Crown also properly concedes that the inquiry into Yusuf’s expectation of privacy is content neutral. That is, it does not matter that it was illegal for Yusuf to possess the gun. As explained by the court in R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 36, “[t]he analysis turns on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought”. Therefore, the fact that the gun is an illegal item is of no moment to the analysis.
53As I read his reasons, the trial judge viewed the gun, on the Crown’s own theory, as a personal belonging carried by Yusuf in a car rented and driven by Ahmed. The trial judge found that on the totality of circumstances, Yusuf had established standing based on a reasonable expectation of privacy in a personal item that was in his possession and control in a car in which he was a passenger. The Crown’s argument is that the trial judge erred in this assessment and even if Yusuf had a subjective expectation of privacy in the item seized from the car it was not objectively reasonable, because there is nothing inherently private in a firearm being brandished in a car that is driven on a public road.
54While Yusuf may assert a subjective expectation of privacy in the gun, that expectation must be objectively reasonable in the totality of circumstances: R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320. This entire ground of appeal, and the parties’ arguments advanced in support of their respective positions can be resolved on the basis that Yusuf’s expectation of privacy in the gun was not objectively reasonable.
55An examination of DC AB’s actions indicate that what the officer did in this case was justified and firmly grounded in the evidence before the trial judge. In my view, DC AB was lawfully positioned when he stuck his head into the interior of the Charger and shone his flashlight on the floor. That did not violate any Charter right. From his vantage point, he was permitted to, indeed duty bound, to seize the gun that was sticking out from under the front passenger seat pursuant to the common law plain view doctrine. Ahmed and Yusuf could have no reasonable expectation of privacy in an item that was in plain sight to police officers who had a right to be present and were carrying out their lawful duties: R. v. Gill, 2019 BCCA 260 at para. 32.
56In any event, Ahmed made no claim to the gun. Yusuf may very well have tried to conceal the gun under the seat but was not successful. Bennett J.A.’s observations in R. v. Grunwald, 2010 BCCA 257, 257 C.C.C. (3d) 53 leave to appeal refused [2010] S.C.C.A. No. 299 are apt in this case: “[a] wish for privacy is not the same as an expectation”: at para. 52.
57Put another way, if DC AB’s conduct in looking in the car was justified, his plain view seizure of the gun was not an infringement of s. 8. As this court held in R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at para. 58, “[b]oth the common law plain view doctrine and the statutory s. 489 provisions are exceptions to the general rule that a warrantless search is unreasonable and, therefore, a violation of s. 8”.
58Therefore, the crux of the issue is whether the actions of DC AB, sticking his head through the open rear passenger door and visually inspecting the area where Yusuf had just been sitting was an unlawful search. The trial judge found that it was. I respectfully disagree. 6
59As indicated above, the trial judge acknowledged that a search incident to investigative detention may be broader than a pat-down search. However, the trial judge found that a broader search, limited to the area where Yusuf was sitting, was not justified based on the 911 calls alone. The trial judge found that the fact that the 911 calls had been made and that Yusuf had been identified by DC Allawneh as having been involved in police bulletins regarding shootings in the area provided an objectively reasonable basis to conduct a search of the area where Yusuf was sitting. However, since it was DC AB who conducted the search, but did not testify, the trial judge found that he could not discern the basis of the search from the other evidence.
60Respectfully, the trial judge focused too narrowly on the absence of any evidence from DC AB’s awareness of Yusuf having been involved in police bulletins. The context of entire interaction was important. About three minutes had elapsed between the time the occupants of the Charger were detained and the discovery of the gun. In my view, based on the totality of the circumstances, DC AB’s actions flowed naturally as incident to the gun investigation and was a modest extension of the pat-down search in this case.
61As I see it, the trial judge’s findings that the officers could lawfully detain the occupants of the car and subject them to a pat-down search informs whether the officers could, in this case also look into the interior of the car because specific safety concerns called for it. A pat-down alone would be pointless if the occupants could simply return to the car and arm themselves with a gun left in easy reach.
62The 911 calls and the circumstances of how the occupants and the Charger came to be investigated provided specific, articulable, and reasonable justification for DC AB to look in the area where Yusuf had been sitting for safety. Those circumstances included the following:
- The trial judge noted the “extreme seriousness” of the 911 calls in this case. As he described it, “[r]eports of gunshots being fired out of a motor vehicle, in an area where significant number of unsuspecting members of the public are present (many of them children), raise a pressing and urgent threat to public safety”.
- The 911 calls identified a dark-coloured car, possibly a Charger, which was speeding away after gun shots had been heard from the area of 3001 Finch Avenue West. The Charger the occupants were in was a black one and it parked directly in front of 3001 Finch, the exact address where one of the callers had called from and reported hearing gun fire.
- When DC AB and DC Allawneh spoke to Isaac and Yusuf who were passengers in the car, both men were argumentative when asked to exit the car and it took some time for DC AB and DC Allawneh to persuade Yusuf and Isaac to exit the car for the pat-down search.
- Given the reports of gunshots, there were serious concerns about the possibility that one of the occupants of the vehicle was armed with a firearm.
- The passenger doors to the Charger had been left open while the pat-down searches were being conducted and the interior of the vehicle was therefore accessible to the three suspects.
63As the trial judge described it, the situation was “fluid and dynamic” and there was a pressing and urgent threat to public safety. Although the officers did not find anything from the pat-down search, given the nature of the call, the fact the call had been made only shortly before the occupants were detained, and the possibility that one of the occupants of the vehicle was armed with a firearm, the officers could not eliminate the possibility that there was a gun to be accounted for.
64All these findings were made by the trial judge in the context of his decision to find that a pat-down search incidental to a lawful investigative detention was justified and that the delay in informing the occupants of their right to counsel was justified. In my view, these findings apply with equal force to a determination of whether a modest extension of that pat-down search for safety reasons was justified.
65Curiously, as noted above, the trial judge was prepared to discern from the circumstances outlined above that DC AB was entitled to conduct a pat-down search even without that officer’s evidence because DC AB and DC Allawneh were jointly attempting to investigate the occupants of the Charger. However, when it came time to assess DC AB’s modest extension of that pat-down search he held that he could not discern the basis for the search because DC AB did not testify. Respectfully, this is somewhat inconsistent. As he did in assessing whether a pat-down was justified, he was entitled to draw reasonable inferences from the circumstances to assess whether an extension of that pat-down into the car was also justified: see Nesbeth, at paras. 19-20.
66Since DC AB was justified in sticking his head into the open car and searching the area where Yusuf had just been sitting, it follows that when he saw the gun, he could seize it because it was in plain view. A plain view seizure is a common law doctrine that permits the police to seize evidence of a crime or contraband without a warrant.
67There are four criteria to be applied: (i) The officer must be lawfully positioned relative to where the item is found; (ii) the nature of the evidence must be immediately apparent as constituting a criminal offence; (iii) the evidence must have been discovered inadvertently; and (iv) the item must be visible without any exploratory search: see R. v. Stairs, 2020 ONCA 678, 153 O.R. (3d) 32, at para. 62, aff’d 2022 SCC 11, 412 C.C.C. (3d) 283.
68The trial judge should have found that the seizure of the handgun was a justified lawful seizure under the plain view doctrine because the four criteria were met in this case.
69First, as I have already explained, DC AB did not violate s. 8 when he stuck his head through the open rear passenger door and shone his flashlight into the rear footwell of the Charger. He was lawfully positioned relative to where the gun was found. Again, the trial judge found that the occupants were lawfully detained and could be patted down. A modest extension of this pat-down search into the car was also permitted in the circumstances. From his vantage point, DC AB was entitled to conduct a visual inspection of the interior of the car for safety reasons.
70Second, the nature of the evidence was immediately apparent. The video shows DC AB calling out that he has discovered the firearm immediately. The trial judge found that the video from the in-car camera in DC AB's police car shows him sticking his head into the vehicle and shining his flashlight onto the floor area immediately in front of the seat that Yusuf had been occupying. After a few seconds, the officer calls out that he has seen a gun and orders that the occupants are to be arrested. On the trial judge’s findings, this was about seven seconds after he had peered into the open door of the Charger.
71Third, the item was found inadvertently because the extended magazine of the gun was protruding from under the front passenger seat into the rear passenger footwell when DC AB found it. There was ample evidence before the trial judge that this gun was not fully concealed. DC Allawneh testified that after DC AB’s discovery of the gun, he went to the Charger’s rear open door and could see the extended magazine that was loaded into the firearm, as well as the bottom part of the handle of the firearm sticking out from underneath the front passenger seat. Photographs tendered by the Crown showed the location of the gun. Indeed, later in his reasons, the trial judge accepted that the magazine would have been visible to Yusuf sitting in the rear seat, because as the trial judge noted, the photographs show what appears to be an extended magazine as well as the bottom portion of a firearm handle, sitting on the rear passenger footwell of the vehicle, beside a plastic bag containing several unidentified items.
72Finally, the item was visible without DC AB performing an exploratory search to look for incriminating evidence. A crucial piece of evidence tendered by the Crown, the video of DC AB discovering the gun, aligns with the Crown submission on appeal that what occurred was not an exploratory search. The video shows Yusuf had left the door of the vehicle open, thereby permitting DC AB to look inside the vehicle and observe the interior of the car from his vantage point.
73The trial judge specifically rejected the appellants claim that DC AB had reached under the front passenger seat to pull out items. He held as follows:
Counsel for the accused argued that, based on their viewing of the video, AB had not just shone his flashlight on the floor of the vehicle, but had actually reached under the front passenger seat with his arm and pulled the firearm out so that it was partially visible. Having considered the submissions of counsel on this particular issue carefully, and having reviewed the video numerous times, I find that AB merely shone his flashlight on to the rear passenger floor area, and did not reach under the seat. Regardless, even if AB had gone further and reached under the seat, he would have been fully justified in doing so since this area of the vehicle was easily accessible to Mr. Yusuf and he could have attempted to hide a firearm there. [emphasis added.]
74In sum, on this record, DC AB was entitled to, as a modest extension of the pat-down searches, stick his head into the open rear passenger door of the car and look into the interior. The gun was lawfully seized pursuant to the plain view doctrine. Therefore, even if the appellants claimed a subjective expectation of privacy in the car or the item seized, having regard to the totality of the circumstances, particularly that the gun seized was in plain view, their expectation of privacy was not objectively reasonable. Accordingly, DC AB’s actions did not violate s. 8.
75As this court stated in Plummer, at para. 79, I would emphasize that these reasons should not be read as giving the police carte blanche power to search vehicles incident to investigative detention. DC AB’s actions in this case were justified on the basis of the totality of these circumstances, especially the pressing and urgent threat to public safety and the modest extension of the pat-down search.
d. Did the trial judge err in admitting the gun under s. 24(2) of the Charter?
76In light of my rejection of the appellants’ arguments regarding the Charter, it follows that there was no breach that would warrant a remedy under s. 24(2). As I have already explained: (1) the officers had the requisite grounds to detain the appellants and conduct a pat-down search; (2) there was no s. 10(b) breach; and (3) the police did not violate the appellants’ s. 8 rights.
77The trial judge found a breach of the appellants’ s. 8 rights. Even if I agreed with the trial judge that there was a breach, I find no error in his decision to admit the gun pursuant to s. 24(2) of the Charter. The trial judge considered the proper factors, and ultimately held that each of the factors identified in Grant weighed in favour of admitting the evidence.
78In conclusion, the gun was properly admitted in evidence. I now turn to the grounds of appeal relating to the convictions.
(2) The Conviction Appeals
79As noted, neither appellant testified. The Crown’s case against the appellants was entirely circumstantial and the trial judge had to be satisfied that an inference of guilt was the only reasonable inference available on the evidence. The trial judge concluded that, given the circumstances as disclosed by the evidence, there was no reasonable inference other than guilt.
a. Ahmed’s conviction appeal (C68112)
80Of the nine counts with which Ahmed was charged, the Crown only proceeded on Counts 7 and 8: occupying a motor vehicle knowing that there was in that vehicle a restricted firearm, contrary to s. 94(2) of the Criminal Code; and occupying a motor vehicle knowing that there was in that vehicle a prohibited device, contrary to s. 94(1) of the Criminal Code. The trial judge found Ahmed guilty on both counts.
81On appeal, Ahmed argues that the trial judge erred in finding that he was aware that Yusuf was in possession of the gun in the car as a result of the gun having been involved in an “exchange of gunfire”. He submits that the evidence does not support this crucial finding, and that this misapprehension of the evidence renders the verdicts unreasonable. For the reasons that follow, I agree.
82An appellate court may allow an appeal from a conviction where it concludes that “a miscarriage of justice” has occurred: Criminal Code, s. 686(1)(a)(iii). A miscarriage of justice may have occurred where evidence has been misapprehended, thereby leading to an unreasonable verdict; however, not every misapprehension of evidence will render a verdict unreasonable: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at pp. 540-41. Rather, a miscarriage of justice often results where the misapprehension of the evidence does not constitute an error of law (as it typically does not) and “the error[] play[s] an essential part in the reasoning process resulting in a conviction”: R. v. Janeiro, 2022 ONCA 118, at para. 76, citing R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2, and Morrissey, at pp. 538, 541. The verdict would thus be unreasonable because no “trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55. In determining whether a misapprehension of the evidence resulted in a miscarriage of justice, appellate courts are to apply a “stringent standard”: Lohrer, at para. 2.
83At trial, the Crown relied heavily on the video from 3001 Finch Avenue West. The trial judge reviewed this video evidence and made the following findings, which led to his ultimate conclusion that Ahmed knew that Yusuf was in possession of a firearm in the vehicle:
- First, a Dodge Charger was seen briefly stopping beside an unidentified vehicle, and then speeding away at a high rate of speed, crossing Finch Avenue West as it did so.
- Second, the occupants were found in a Dodge Charger. Given the timing and geography, the only reasonable inference is that these two Dodge Chargers were one and the same.
- Third, throughout the relevant time, Ahmed was driving the Dodge Charger. He had leased the vehicle, he was driving the vehicle when he pulled into 3001 Finch Avenue West, and there is no suggestion that anyone else had been driving the vehicle.
- Fourth, as a consequence of the above, Ahmed must have been driving the Dodge Charger when it engaged in an exchange of some sort with the unidentified vehicle. While no finding of fact could be made as to the precise source of the gunfire, the only reasonable inference is that Yusuf, being in possession of a firearm, either used the firearm himself or made Ahmed aware of the fact that he had a firearm.
84As the trial judge’s findings make clear, although the trial judge could not determine precisely what happened that evening, he was satisfied on the totality of the evidence that there had been some “exchange of gunfire” involving the Charger and an unidentified car. On this basis, he inferred that Ahmed must have known that Yusuf was in unlawful possession of a firearm in the vehicle, either because Yusuf used the firearm himself during the exchange of gunfire or because, at the very least, he would have made Ahmed aware that he had a firearm in the vehicle. Accordingly, the trial judge convicted Ahmed of occupying a motor vehicle while knowing that there was a restricted firearm and a prohibited device in that vehicle, contrary to ss. 94(1)-(2) of the Criminal Code.
85The Crown concedes that the trial judge misstated the evidence when he found that the Charger “pull[ed] up beside another unidentified vehicle”. Yet the Crown argues that, at most, this was a minor mistake, and it was not material or essential to the trial judge’s reasoning process. What was important, the Crown argues, was the fact that the Charger was in the area, that it only stopped briefly, and that it proceeded at a high rate of speed after making a three-point turn in the presence of the second car, all of which occurred at the time that the gunshots were heard (around 8:11 p.m., according to the 911 callers).
86I reject the Crown’s position. The trial judge’s conclusion that Ahmed, as the driver of the Charger, must have known that Yusuf possessed a firearm because there was an “exchange of gunfire” with the unidentified vehicle is unreasonable.
87First, the fundamental problem with the trial judge’s reasoning is that it is based on a misapprehension of a significant piece of evidence. Contrary to the trial judge’s finding, the video does not show that the Charger “pull[ed] up beside” the unidentified car. Instead, what the video shows, at 8:11 p.m., is that the Charger briefly stops and then performs a three-point turn while an unidentified car that had approached in the opposite direction stops and waits for the Charger to finish its turn. The Charger then speeds off but the other car proceeds in a normal fashion. The trial judge’s conclusion about an exchange of gunfire cannot be divorced from his erroneous description of the Charger and the other car pulling up beside one other. This is not, as the Crown contends, a minor misstatement; rather, it is the linchpin for the finding that there was an exchange of gunfire.
88Second, the trial judge’s finding that an exchange of gunfire occurred cannot be reconciled with his later finding that “[i]t is not possible to make a finding as to the source or precise nature of any gunfire, including whether it originated from the Charger or from the other vehicle”. Assuming that there was indeed gunfire around 8:11 p.m., as reported by the 911 callers, it cannot be said that the source of those gunshots came from Yusuf “[h]aving been involved in some exchange of gunfire”. An “exchange” connotes reciprocal gunfire from two different sources. The 911 callers reported hearing gunshots but did not attribute those gunshots to any specific source or sources. On the evidence, a plausible alternative explanation is that the gunfire only came from the other car and that, as a result, there was no exchange. Absent any evidence of gunfire coming from the Charger, the basis for the trial judge’s finding that Ahmed possessed knowledge about the firearm in the back seat falls away.
89Third, and further to the second point, there was no evidence that any gunshots were fired from the Charger. No casings, ammunition, or gun residue evidence was found. Nor was there any evidence that the gun found under the passenger seat had been fired.
90In sum, Ahmed’s convictions rested on there having been an exchange of gunfire. That foundation consisted of a significant misapprehension of the evidence. With respect, the inference drawn by the trial judge regarding Ahmed’s knowledge about the gun in the car was not available to him, as it rested on speculation about facts that were not proven.
91In my view, Ahmed’s convictions amount to a miscarriage of justice; they reflect an unreasonable verdict, resting on a material misapprehension of the evidence. It follows that his convictions on Counts 7 and 8 should be set aside and that acquittals should be entered on those counts.
b. Yusuf’s conviction appeal (C68113)
92The trial judge found that Yusuf was in possession of the gun in the Charger and that he deliberately concealed it underneath the front passenger seat to avoid detection by the police. Yusuf submits that the trial judge erroneously reached that conclusion.
93First, Yusuf adopts Ahmed’s submission that the trial judge’s finding of an “exchange of gunfire” is unsupported by the evidence and is based on a significant misapprehension of the evidence. As I have already explained, I agree that the trial judge erred in this manner. The trial judge did not explicitly mention this fact in his reasons when dealing with Yusuf’s possession charges but, reading his reasons, I am satisfied that this finding may have tainted the trial judge’s reasoning process.
94Again, the trial judge concluded that “[i]t is not possible to make a finding as to … whether [any gunfire] originated from the Charger”. But, when assessing the case against Ahmed, he noted that Yusuf would have used the gun himself or made Ahmed aware of the fact that he had a gun. Implicit in that conclusion is that Yusuf possessed the gun. While the trial judge made no reference to Yusuf being involved in a gunfire exchange in his analysis relating to Yusuf’s possession, it is difficult to reconcile these findings and they cannot be divorced from his conclusion that Yusuf was guilty.
95Second, Yusuf submits that the trial judge improperly used the photographs that were seized from Yusuf’s cellphone in arriving at the finding of guilt. At trial, the Crown sought to tender into evidence several photographs seized from Yusuf’s cellphone. The Crown asserted that this evidence was probative on the issue of possession of the cellphone. Defence counsel for Yusuf did not object to some photographs being tendered for that purpose, but he did object to the volume of photographs that the Crown sought to admit into evidence, stating that many of these photographs would be “massively prejudicial”.
96Some time after defence counsel expressed his position on admitting a selection of the photographs into evidence as probative of the issue of cellphone possession, the trial Crown advised the trial judge that she would also argue that some of the photographs also supported an inference of firearm possession. The Crown admitted to having no expert evidence demonstrating that the depicted firearm in the photographs was the same as that which was seized, and the Crown acknowledged that there were no specific markings supporting such an inference. Nonetheless, the Crown argued that the inference could be drawn on the basis that the two were “so similar” – an inference to which defence counsel objected to as being prejudicial. The trial judge advised counsel to come prepared with this issue in mind as they made their closing submissions and the trial judge ruled that most of the photographs tendered by the Crown were admissible.
97In his closing submissions, defence counsel for Yusuf asserted that the photographs were “meaningless”, that they encouraged propensity reasoning, and that there was no expert evidence on the issue of similarity, that the Crown was encouraging the trial judge to play the role of expert witness, and that the Crown had merely asserted a theory of possession based on circumstantial evidence and the doctrine of constructive possession.
98As I read his reasons, the trial judge did embark upon an analysis of the probative value and prejudicial effect of admitting the photographs into evidence. He concluded that the photographs were highly probative of the fact that the cellphone belonged to Yusuf. However, the trial judge went further and concluded that the photographs were also probative of gun possession. The trial judge reasoned as follows:
Mr. Yusuf’s cell phone had a dozen photographs of a firearm with an extended magazine which appeared to be identical or very similar to the firearm found in the Dodge Charger. This supports the inference that the firearm belonged to Mr. Yusuf and that he had been in possession of it immediately prior to stepping out of the vehicle.
99Yusuf contends that this inference could not be properly drawn because the firearm in the cellphone photographs was not “identical or very similar” to the gun in the Charger. Rather, Yusuf points to numerous differences between the firearm found in the Charger and the firearm depicted in the photographs, including the serial number on the barrel, the shape of the trigger guard, the shape and texture of the handle, and the texture of the magazine.
100In response, the Crown points to this court’s decision in R. v. Brown, 2018 ONCA 481, 361 C.C.C. (3d) 510, where four photographs of a gun on the appellant’s cellphone were tendered before a jury as “highly probative” of the issue of whether the appellant possessed a gun that was found in the bedroom of his common-law spouse: at para. 35. In the Crown’s submission, the decision in Brown is dispositive of this issue.
101Although I agree that the decision in Brown is dispositive of this issue, I do not agree that it disposes of the issue in favour of the Crown. Rather, this court’s decision in Brown supports the argument advanced by Yusuf.
102In some circumstances, a photograph of a gun can have probative value as circumstantial evidence, but this will depend on whether the photographed gun bears some resemblance to the seized gun: see Brown, at para. 35. If the photographs on Yusuf’s cellphone depicted the same gun as that which was found in the Charger, the photographs would have significant probative value on the issue of possession. However, the probative value of the photographs would be significantly reduced if they merely depicted a similar gun. In conjunction with this reduction in probative value, the prejudicial effect is amplified, because there is a serious risk of impermissible propensity reasoning: that, because Yusuf possessed photographs of a gun, he was more likely to have possessed the gun that was found in the Charger.
103In Brown, the photographs of the gun on the appellant’s cellphone resembled the gun that was retrieved from the appellant’s common-law spouse’s bedroom. It was properly left to the jury, in that case, to determine whether the photographed gun and the seized gun were one and the same. Indeed, in that case, the defence conceded that the photographed firearm “was ‘at least probably’ the same make or model of firearm as the one found in the bedroom”: at para. 27. At the end of the day, the jury had to decide the issue and the photographs were properly admitted into evidence. Nonetheless, this court in Brown concluded that the trial judge erred by failing to instruct the jury on the permissible and impermissible uses of the photograph evidence. Although the trial judge undertook to provide a limiting instruction to the jury, he failed to do so. This error resulted in an inability to know whether the jury had determined that the photographs were of the seized gun, thereby permitting an inference of firearm possession, or whether the jury had simply used the photograph evidence for propensity purposes: at paras. 45, 48.
104In this case, Yusuf has identified several differences between the photographed guns and the seized gun. The Crown fairly concedes there are differences. In my view, these differences rendered the probative value of the photographs entirely nugatory on the issue of possession of the firearm. The trial judge also acknowledged that, of the dozen photographs, only two of them depicted an individual pointing a firearm, but that “it is impossible to identify this individual.” Some of these photographs seem to have limited, if any, probative value on the issue of possession of the firearm seized.
105The fact is that the photographs did not depict the seized gun. Therefore, the use the trial judge could make of the photographs in this case, “of course, is none”: Brown, at para. 45.
106Furthermore, as in Brown, the trial judge in this case failed to give a limiting instruction about what use could be made of the photographs if he did not find that they depicted the seized gun. I recognize that self-instruction in a judge-alone trial is not always necessary. However, it does give the parties – and the reviewing court – confidence in the use that was made of the evidence. Although trial judges are certainly presumed to know the law and apply it correctly, there was a palpable risk of propensity reasoning in this case. When I consider the reasons, the cursory analysis of what inferences could be drawn from the photograph evidence, and the differences in the guns; the absence of a limiting instruction only heightens my concern about how the photographs were used on the issue of possession.
107Before leaving this issue, I will briefly deal with Yusuf’s further submission that the trial judge could not have admitted the photographs because there was no expert evidence about whether the photographed and seized guns were the same or different. In support of his position, Yusuf relies on R. v. Grizzle, [2013] O.J. No. 6184 (S.C.), in which Nordheimer J. (as he then was) quashed the applicant’s committal for trial on the basis that, without evidence that one gun is related to another, the fact that two guns are similar is not sufficient to commit an individual to trial for possession of both guns; “[t]o draw such an inference amounts to nothing more than speculation”: at para. 12.
108Taken at its highest, I do not read Grizzle as supporting the proposition that Yusuf advances. As I see it, Nordheimer J. was simply highlighting that it is not appropriate to assume that being associated with one gun opens the door to being associated with other guns that are possibly connected in some way to the first gun. While expert evidence may be beneficial to bolstering the probative value of the impugned evidence, I do not accept the argument that it is necessary in every case.
109Third, Yusuf challenges the trial judge’s finding that the extended magazine, along with the bottom of the firearm handle, would have been visible to Yusuf from the rear passenger seat of the car. He argues that the photograph of the gun taken by the police only shows where it was photographed and does not shed light on what Yusuf would have seen from where he was seated. I do not accept any of these arguments. In my view, it was open to the trial judge to accept DC Allawneh’s evidence that the photograph provided an accurate depiction of where the gun was located when he observed it. The trial judge could rely on this evidence to find that the gun would have been visible to Yusuf from where he was seated.
110The relative locations of Yusuf and the gun in the Charger, when considered in the context of the rest of the evidence, are important features of this case that could persuade a trier of fact that Yusuf was in possession of the gun. However, I cannot say that the problematic findings about the exchange of gunfire and the photographs were not material to the trial judge’s reasoning process. Cumulatively, I am satisfied that these errors necessitate a new trial. 7
V. Disposition
111For these reasons, I would allow Ahmed’s conviction appeal, quash his convictions on Counts 7 and 8, and enter acquittals on those counts. I would also allow Yusuf’s conviction appeal, quash his convictions on Counts 2, 3, 4, 5, 6, and 9, and order a new trial on those counts. 8 In light of my proposed disposition of Yusuf’s conviction appeal, I do not reach the sentence appeal.
Released: September 12, 2022 “P.D.L.” “S. Coroza J.A.” “I agree. P. Lauwers J.A.” “I agree. Grant Huscroft J.A.”
Footnotes
- Isaac was acquitted at trial and has no role on this appeal.
- Most of the event is captured by the audible videorecording devices in the police cruisers and the surveillance video from the apartment building.
- Pursuant to s. 486.5(1) of the Criminal Code, the trial judge ordered a publication ban on DC AB’s identity.
- As seen in Cory J.’s majority reasons in Belnavis, at paras. 22-23, the court accepted “that the question as to whether a passenger will have a reasonable expectation of privacy in a vehicle will depend upon the totality of the circumstances”, and that “there may well be other situations in which a passenger could establish a reasonable expectation of privacy in a vehicle.”
- The trial judge also rejected Isaac’s claim that he had a reasonable expectation of privacy for these reasons.
- While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law reviewed on a standard of correctness. The jurisprudence from the Supreme Court of Canada has repeatedly affirmed that the application of a legal standard to the facts of the case is a question of law: see R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 18; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 23.
- During oral argument, counsel for Yusuf acknowledged that a new trial would be warranted if this court agreed that the trial judge’s findings about the exchange of gunfire and photographs were problematic.
- As noted above, the Crown took the position that if Yusuf was found guilty of the possession offences, it would not proceed with the counts 7 and 8. Consequently, the trial judge found Yusuf not guilty of those counts. In the absence of a Crown appeal against acquittal or a specific request that a new trial be ordered on those counts in the “Order Requested” portion of its factum, it would not be appropriate to order new trials for those counts.
