Court of Appeal for Ontario

Date: September 11, 2019 Docket: C64722

Judges: Pardu, Brown and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Ayobami Owusu Appellant

Counsel

Andrew Furgiuele, appearing as duty counsel Benita Wassenaar, for the respondent

Heard: September 5, 2019

On appeal from: The conviction entered on July 28, 2017 and the sentence imposed on November 1, 2017 by Justice Bonnie Croll of the Superior Court of Justice.

Reasons for Decision

[1] The appellant appeals from conviction and sentence for various firearms offences. He was arrested on an outstanding warrant, and during the search incident to that arrest, a loaded handgun was found tucked into his waistband. At trial, the appellant argued that when the vehicle in which he was a passenger was stopped, immediately before the arrest, his rights under the Canadian Charter of Rights and Freedoms to be secure from arbitrary detention were violated, and that the evidence of the gun and ammunition should be excluded.

[2] The appellant conceded that the handgun was a restricted firearm and that the magazine on the firearm was a prohibited device. He further conceded that he was not authorized under the Firearms Act, S.C. 1995, c. 39, to carry a concealed handgun, and that he was not authorized, licensed or in possession of a registration certificate to possess such a firearm.

[3] The appellant argued that the police did not have reasonable grounds for an investigative detention when they stopped the vehicle, and that the stop was a ruse intended to effect the arrest of the appellant and others.

[4] The trial judge correctly identified the circumstances in which investigative detention is permissible. Applying the principles from R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, the trial judge stated:

Did the police have reasonable grounds to suspect that the individual is connected to a recent criminal activity and was the detention objectively necessary in the circumstances? Framed for this court case, did the police have reasonable grounds to suspect that Mr. Aarons [a suspect in a robbery] was in the car and was the detention objectively necessary in the circumstances?

[5] She elaborated on the definition of "reasonable suspicion", citing R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 75:

"Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. As observed by P. Sankoff and S. Perrault, "Suspicious Searches: What's so Reasonable About Them?":

… the suspicion must be supported by factual elements which can be adduced in evidence and permit an independent judicial assessment [citations omitted].

[6] According to the evidence, two robberies involving the use of a firearm occurred on April 22, 2016. The two identified robbers, Aarons and Kolo, lived in or near the Chester Le area. The next day, police saw Aarons in the Chester Le area, with the appellant and others. Police knew that the appellant was wanted on outstanding warrants.

[7] On April 24, 2016, police arrested Kolo but found no firearms. Later that day, police observed Aarons in a parking lot, talking to the driver of a grey Mitsubishi Lancer. Aarons was wearing a red top and was the only person in the parking lot wearing red clothing. As the Mitsubishi left the parking lot, police thought Aarons was no longer in the parking lot. Police followed the Mitsubishi. One officer confirmed that the front seat passenger was wearing red clothing; another officer saw someone in the vehicle was wearing red clothing. Police stopped the vehicle and immediately arrested the appellant on the warrant. As it happens, Aarons was not in the vehicle.

[8] The trial judge rejected the argument that the vehicle stop was a ruse to arrest the appellant and others. Police did not need a ruse to arrest the appellant and there were also grounds to arrest two of the other passengers.

[9] The trial judge found that the officers had reasonable grounds to suspect that Aarons was in the Mitsubishi, and that their suspicions were founded on objectively discernable facts. All of the officers who looked in the vehicle saw the red clothing in it. The police had not seen anyone else wearing red in the parking lot that afternoon. Police did not stop the vehicle until they had confirmed that the front passenger was wearing red, in the context of information that Aarons had been seen talking to the driver. The trial judge found that the police faced a dynamic situation and had to respond quickly, effectively and flexibly to that situation. She dismissed the Charter application, finding no violation of s. 9.

[10] We see no error in the trial judge's conclusions. Aarons had been identified as a participant in a robbery committed with firearms. There were reasonable grounds to believe that he was in the stopped vehicle.

[11] There were some gaps in the information available to police. At one point, Aarons was seen riding away on a bicycle, but was shortly seen again, wearing a red top and red pants, and again talking to a group of others. Police did not have information as to the bicycle's location.

[12] The appellant argues further that since he is dark skinned and Aarons was light skinned, the police could not have thought the front seat passenger wearing red clothing was Aarons. The officer who drove by the vehicle to see if the passenger was wearing red clothing testified that she could not see the face of the passenger as she drove by, and the trial judge accepted this explanation.

[13] These issues do not detract from the reasonableness of the trial judge's conclusions.

[14] The trial judge dealt with the same arguments now advanced on appeal and we see no error in her finding that the police had objectively based, reasonable grounds to believe Aarons was in the vehicle.

[15] In so far as the appellant was concerned, the investigative detention lasted only seconds. As soon as he was found in the vehicle, he was arrested on the outstanding warrant.

Sentencing

[16] The appellant also seeks leave to appeal his sentence.

[17] The appellant received a six-year global sentence less 18 months pre-sentence custody credited at 1.5:1, leaving three years and nine months remaining to be served. The Crown sought seven years, while the defence sought five years. The appellant was only 19 years old at the time of the offence and had made efforts to further his education while in custody.

[18] Most notably, however, the appellant had been found guilty under the Youth Criminal Justice Act, S.C. 2002, c. 1, for possession of a loaded firearm just ten months before the date of the offences for which he was to be sentenced. The trial judge noted that the appellant endangered himself, the other occupants of the car, the police, and the public by carrying the concealed handgun.

[19] The appellant has not identified any error on the part of the sentencing judge and the sentence was fit.

[20] Leave to appeal sentence is granted, but the appeal from sentence is dismissed. The appeal from conviction is also dismissed for the reasons given above.

G. Pardu J.A. David Brown J.A. Gary Trotter J.A.