Reasons for Judgment

Court File No.: CR-24-862
Date: 2025-03-04
Ontario Superior Court of Justice
Between:
His Majesty the King – and – Mustafa Elawad

Appearances:
V. Fedorchuck, for the Crown
E. Ghebrai and S. Lee, for the Defendant/Applicant

Heard: February 3, 4, 5, and 7, 2025
Released: March 4, 2025
Judge: M. Bordin

Table of Contents

• Overview
• Credibility and reliability of Mr. Elawad and the officers
• Mr. Elawad’s background
• The events leading up to Mr. Elawad being stopped by the police
• The interaction between the police and Mr. Elawad
• The encounter between the police cruiser and the VW
• The initial interaction with the police
• Questioning Mr. Elawad
• Demand for the keys
• The search of the VW
• Section 9 of the Charter
• The HTA traffic stop
• The plates, windows and observations of Mr. Elawad
• Conclusion on the plates and observation of the driver
• Racial profiling: The legal authorities
• The officers engaged in racial profiling
• The investigation into whether the VW was stolen
• Mr. Elawad’s s. 9 rights were violated
• Section 8 of the Charter
• Seizure: The unlawful demand for the keys
• The VW was not abandoned
• Breaches of ss. 10 (a) and (b) of the Charter
• Evidence excluded pursuant to s. 24 of the Charter
• Disposition

Overview

[1] Mr. Elawad is charged with:

1. Possession of a substance included in Schedule I, a Benzimidazole for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19;
2. Possession of a firearm (a handgun) without being the holder of a licence under which he may possess it, contrary to s. 91(3) of the Criminal Code (the “Code”);
3. Possession of a firearm (a handgun) knowing that he was not the holder of a licence under which he may possess it, contrary to s. 92(1) of the Code;
4. Without lawful excuse, transporting a firearm in a careless manner contrary to s. 86(3) of the Code;
5. Being an occupant of a motor vehicle (a black 2022 Volkswagen Taos (the “VW”)) in which he knew that there was at the time a firearm (a handgun) contrary to s. 94(2) of the Code;
6. Possessing a loaded prohibited or restricted firearm without being the holder of an authorization or licence under which he may possess that firearm in that place and the registration certificate for the firearm contrary to s. 95(2) of the Code.

[2] The Crown did not proceed with counts 2 and 3. Mr. Elawad pled not guilty to the remaining counts.

[3] The police assert that on July 5, 2022, they engaged in a traffic stop of Mr. Elawad because the licence plates on the vehicle he was driving were obscured contrary to s. 13(2) of the Highway Traffic Act (the “HTA”). After some interaction between the officers and Mr. Elawad, the officers demanded Mr. Elawad’s keys. When the demand was made, Mr. Elawad fled on foot. The police assert that the vehicle was abandoned and that they were entitled to remove the vehicle and conduct an inventory search. They had the vehicle towed to an authorized tow facility where they conducted an inventory search and found a handgun under a blanket or sweater on the floor behind the driver’s seat and drugs in the glove compartment. The police stopped the search, had the car towed to a police facility, sealed the vehicle, obtained a warrant, and then conducted a further search of the vehicle.

[4] Mr. Elawad has brought an application asserting breaches of ss. 8, 9, and 10(a) and (b) of the Canadian Charter of Rights and Freedoms and seeks the exclusion of the evidence seized during the searches pursuant to s. 24(2) of the Charter. The Charter application proceeded as a blended voir dire with the trial.

[5] Mr. Elawad asserts that the traffic stop was a pretext. He submits that the officers engaged in racial profiling and that he was stopped because he is a young black man. He submits that, during the traffic stop, the police began investigating what they believed, without any basis, might be a stolen vehicle, and that he was not advised of the reason for the stop or investigation and was not provided with his right to counsel. Mr. Elawad submits that the demand for his keys was an unlawful seizure. He asserts that racial profiling played a role in all of these decisions by the officers. Mr. Elawad submits that the vehicle was not abandoned and there was no lawful basis for the inventory search or the subsequent warrant.

[6] Mr. Elawad seeks to have the evidence of the drugs and gun excluded. If the evidence is not excluded, Mr. Elawad asserts that he had no knowledge of the drugs and gun and raises a third-party defence.

Credibility and Reliability of Mr. Elawad and the Officers

[7] Three witnesses testified. As agreed between the parties, Mr. Elawad testified first, both with respect to the Charter issues and the trial. The Crown then called Police Constables Rennie ("PC Rennie") and Raza (“PC Raza”). At the conclusion of the viva voce evidence, the parties filed an Agreed Statement of Facts pursuant to s. 655 of the Code (the “ASF”).

[8] Although I address credibility and reliability at the outset, my summary of the credibility and reliability of the witnesses is based on all the evidence.

[9] I found Mr. Elawad to be credible. With few exceptions, he gave his evidence in a straightforward, frank, open, sincere, and forthright manner. He was responsive to questions, not evasive. He gave evidence that did not put him in a good light and which potentially put him at risk. He gave evidence which was consistent with the subsequently filed ASF. Mr. Elawad’s evidence was consistent in cross-examination. For the most part and on key points, his evidence made sense and was corroborated in many respects by the evidence of PC Raza. Standing alone, Mr. Elawad’s evidence could seem convenient or, as the Crown suggested, difficult to believe, but considered with the totality of the evidence, it is credible.

[10] PC Rennie was not credible. She gave evidence that was contrary to her notes and her evidence at the preliminary inquiry. She gave implausible and at times incredulous answers. She testified to matters of which she did not have direct knowledge. Her evidence was at times internally inconsistent. Examples of some, but not all such evidence from PC Rennie is discussed in my review of the evidence and analysis below.

[11] PC Rennie was evasive, argumentative and combative. She repeatedly refused to answer questions directly. She had to be asked the same questions multiple times to elicit a direct answer. She repeatedly answered questions by giving the ambiguous answer “ok” and had to be asked repeatedly to give the actual answer, which was “yes”. PC Rennie’s evidence was contrary to both the evidence of PC Raza and Mr. Elawad with respect to the important initial interaction between the police in their cruiser and Mr. Elawad in his vehicle.

[12] PC Raza’s evidence was at times not credible, evasive, and internally inconsistent. In certain respects, it was inconsistent with the evidence he gave at the preliminary inquiry. At times he adopted his evidence from the preliminary inquiry. At other times he sought to distinguish it or asserted he did not understand the question at the preliminary inquiry. PC Raza has a troubling lack of notes for important aspects of the interaction with Mr. Elawad. All of this undermined the reliability of his evidence. Examples of some, but not all such issues with PC Raza’s evidence are discussed below.

[13] I turn now to a review of the evidence of the witnesses. I consider first the evidence with respect to Mr. Elawad’s background and the events leading up to his encounter with the police. I then consider his interaction with the police and the actions of the police after that encounter and make findings of fact. Some of the specific, more detailed, evidence relating to the encounter between the police and Mr. Elawad is discussed in the analysis of the issues raised in his Charter application and I make additional findings of fact in that analysis. I have considered the totality of the evidence even if the findings of fact are found under various headings in this decision.

Mr. Elawad’s Background

[14] On July 5, 2022, Mr. Elawad was 27 years old and addicted to drugs. He had just come off a two to three day drug binge in London, Ontario at the house of H.N., his dealer. He had taken a cocktail of hydrocodone, Percocet and MDMA mixed in a two litre bottle of soda. Mr. Elawad also admits to being a user of psilocybin and marijuana. His family was not aware of his drug addiction.

[15] Mr. Elawad had a history with H.N. that dated back a few years. He regularly stayed at what he referred to as H.N.’s “stash houses”, where a specific group of men were regularly in attendance and where he witnessed H.N. engaged in drug transactions and in possession of firearms. He denies knowing where H.N. kept the drugs.

[16] In exchange for money to buy drugs, Mr. Elawad would look after H.N.’s dogs. He also supplied H.N. with a vehicle for his use. The VW was rented by Mr. Elawad’s sister on his behalf. He told his sister he needed it to go to London to look after the dogs. H.N. would give Mr. Elawad cash to pay for the rental and he would give the cash to his sister to reimburse her.

[17] Mr. Elawad knew he was a suspended driver on July 5, 2022. He had been suspended on May 17, 2022, for nonpayment of fines.

The Events Leading Up to Mr. Elawad Being Stopped by the Police

[18] Mr. Elawad testified that he woke up in the late afternoon on July 5, 2022. He wanted to go back to Toronto see his family. When he left, he observed H.N. asleep in his room. Mr. Elawad retrieved his keys which were kept in the house and got in the VW. The vehicle had been moved from where he had left it. On the way to Toronto, he was hungry and wanted to eat to feel better and decided to stop in Hamilton at Wingporium, his favourite place to eat chicken wings. He was familiar with the location of the Hamilton Wingporium but did not know the area that well.

[19] Mr. Elawad testified that after eating, he got back into the VW to drive to Toronto. Shortly after getting in the car, he said he received a call from H.N., who advised him that he had to come back to London because H.N. had left something in the car. H.N. did not say what it was. Mr. Elawad suspected that H.N. had left a gun in the car because he had seen H.N. brandish guns in the past and H.N. had pointed a gun at him in the past. He told H.N. that H.N. would have to come to get what was in the car. Mr. Elawad looked in the back seat on the passenger side and in the front of the car while driving but did not see anything. He testified that he became nervous and panicky, which made him feel like he had to urinate. He testified that he needed to figure out what was in the car and was not sure what to do.

[20] Mr. Elawad drove around trying to decide what to do. He was unsure exactly where he was. Mr. Elawad’s evidence about what occurred on July 5, 2022, leading up to his interaction with the police was not significantly undermined.

The Interaction Between the Police and Mr. Elawad

The Encounter Between the Police Cruiser and the VW

[21] At the time of Mr. Elawad’s encounter with the police, it was about 8:22 p.m. and light out. PC Rennie does not know if it was sunny. Her notes indicate that a little over an hour earlier it was overcast but not raining. PC Raza testified it was sunny. He said the sun was setting. Mr. Elawad said it was bright out.

[22] Mr. Elawad testified that before parking he drove toward and past a cruiser and the two officers in the cruiser made eye contact with him as they passed.

[23] PC Raza was driving the cruiser and PC Rennie was in the passenger seat. Their evidence was at odds with respect to the location and direction of travel of the cruiser and the VW when the two vehicles first encountered each other.

[24] PC Raza’s evidence was consistent with Mr. Elawad’s evidence – the vehicles passed each other on Princess Street, east of Sherman Avenue, with Mr. Elawad heading east on Princess in the VW and the police heading west in the cruiser toward Sherman Avenue. PC Rennie’s evidence places the cruiser on Princess Street, heading east toward Sherman Avenue. She testified that the VW passed in front of the cruiser heading north on Sherman before it turned east on Princess Street. At the preliminary inquiry, PC Rennie testified that the officers were traveling westbound. She said this was an error and that they were traveling eastbound.

[25] There is no scenario in which both officers’ evidence on this crucial point is correct and true. They both situate the cruiser on Princess Street, but on opposite sides of Sherman Avenue and heading in opposite directions, with the VW on different streets when it passes the cruiser.

[26] Both officers deny making eye contact with Mr. Elawad when the vehicles passed.

[27] Both officers testified that they observed that the plates on the VW were obscured and that, as soon as they saw the obscured plates, they knew they were going to make a traffic stop.

[28] PC Rennie initially agreed that when she saw the obstructed front plate, the offence under the HTA of obscured plates was made out in her mind, and she knew at that point that the officers would be engaging with the VW and its driver to address the infraction. She then backed away from this evidence and said that she did not know when the plan was made to initiate the traffic stop. She said she saw both obstructed plates and she and PC Raza had a brief discussion about it that lasted about 20 to 30 seconds during which it was determined they would initiate a traffic stop.

[29] I address the officers’ observations of the plates in more detail when I consider s. 9 of the Charter.

[30] There is no dispute that after passing the cruiser, Mr. Elawad pulled into a parking area in front of an industrial building on Princess Street and backed into a parking spot. There were other vehicles parked there.

The Initial Interaction with the Police

[31] Everyone agrees that Mr. Elawad got out of the VW and locked the doors. There is some discrepancy about whether the cruiser was still approaching the VW or was in front of the VW when he got out.

[32] Mr. Elawad testified that he saw the cruiser make a U-turn when he stepped out of the vehicle. PC Raza testified that he made a U-turn with the intention of speaking to the driver about the plates. PC Rennie denies the officers made a U-turn.

[33] Mr. Elawad testified that the cruiser drove up and stopped in front of the VW, blocking it in after he was out of the vehicle. The officers agree that they pulled up in front of the VW.

[34] Both officers testified that they heard the “beep” of the doors locking. PC Rennie testified in chief that she saw Mr. Elawad get out of the VW after she got out of the cruiser. In cross-examination, she agreed that Mr. Elawad was already out of the VW when she approached him. In chief, PC Raza testified that he was still in his cruiser when he saw Mr. Elawad get out of the car.

[35] Mr. Elawad testified that the cruiser was very close to his car, blocking a portion of the front end of the VW. PC Rennie testified there was a large gap between the front of the VW and the cruiser so that the VW could still drive away. PC Raza testified that he stopped the cruiser about six feet in front of the VW. He says the VW could still drive away and that he had no intention of blocking the VW.

[36] Mr. Elawad testified that the male officer asked him if he worked there and he responded “no”. PC Raza denies this.

[37] Mr. Elawad immediately told the police that he had to urinate. The officers agree this happened but testified that Mr. Elawad was “jumping around”.

[38] PC Raza testified that he was the one who told Mr. Elawad that he was being stopped because of obstructed plates. PC Raza testified he was still in the cruiser with the driver’s window down when he said this. In cross-examination, PC Raza agreed that he got out of the car and said this to Mr. Elawad. PC Raza has no notes of his conversations with Mr. Elawad that day. His will say statement does not record what he told Mr. Elawad about the reason for the stop. PC Raza acknowledged that this fell short of the kind of notes he should keep of such encounters.

[39] PC Rennie testified that she immediately told Mr. Elawad that it was a traffic stop because his plates were obscured. PC Rennie agreed that if PC Raza had told Mr. Elawad this, there would be no reason for her to tell him.

[40] Mr. Elawad denies that the police ever told him that he was being stopped for obstructed plates. I prefer the evidence of Mr. Elawad over the contradictory and inconsistent evidence of the officers. I find that Mr. Elawad was asked if he worked there and that he said “no” and the discussion turned to his need to urinate. I find he was not told that he was being stopped because of obstructed plates.

[41] Everyone agrees that Mr. Elawad was allowed to find a spot to urinate. He went around the corner of the building and said he was told to go where he could be seen. PC Raza agrees that the initial location chosen by Mr. Elawad was not appropriate as it was too public and that he told him to go where PC Raza could keep an eye on him. PC Raza agrees Mr. Elawad complied and moved to another location to try to urinate. PC Raza says that the spot Mr. Elawad chose was about 30 meters from the cruiser. Everyone agrees Mr. Elawad had his back to the officers.

[42] PC Rennie’s evidence again differs from PC Raza’s and Mr. Elawad’s evidence. She testified that she told Mr. Elawad that he could go and urinate. She denies telling him not to go around the corner or to stay in an area where the officers could see him. She says he chose to go around a corner and she maintained eyes on him from quite a distance away, perhaps 25 or 30 feet.

[43] Mr. Elawad testified that he was not able to urinate in those circumstances and that while he was trying to urinate, he looked over his shoulder to see where the police were. He saw them looking into back seat of the VW with a flashlight. PC Rennie denies doing this. PC Raza was not asked.

[44] PC Rennie “believes” that while Mr. Elawad had gone to urinate she walked up to the VW to get a closer look at the plates and called the plates in over the air. PC Raza says he is the one who queried the plates while Mr. Elawad was urinating. One of the officers is mistaken. They did not both not run the plates.

[45] PC Raza testified the plates came back as belonging to a company. PC Rennie testified that she was told that the plates were registered to Newport Leasing and a numbered company in Mississauga. She testified that this did not raise any issues for her. She just had to continue with the traffic stop and was waiting for Mr. Elawad to finish urinating.

[46] PC Rennie testified that she thought Mr. Elawad was taking a long time to urinate. He was looking over his shoulder and appeared nervous and fidgety. She interpreted that as Mr. Elawad looking for a way out.

[47] PC Raza said about a minute passed while Mr. Elawad was urinating. He admits he could not see if Mr. Elawad was urinating. PC Raza testified that he drove up a couple of meters to keep an eye on him. He said Mr. Elawad was looking left and right and fidgeting with his waistband. This made PC Raza suspicious. He thought Mr. Elawad was looking for a way to escape and was going to run, so he got out of the cruiser.

[48] PC Raza admitted that at the preliminary inquiry, he testified that Mr. Elawad was also looking over his shoulder at the officers. He agreed his memory would have been fresher at the preliminary inquiry.

[49] PC Raza’s evidence of driving forward a few meters is not in his notes and is inconsistent with his evidence at the preliminary inquiry, where he testified that when he got out of the cruiser he was in front of the hood of the VW. His explanation for this inconsistency did not make sense. He said that it is possible his evidence at the preliminary inquiry was true but that his evidence at trial is what he remembered “today”. He also acknowledged that the preliminary inquiry was closer to the events and his memory would have been better at that time.

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Released: March 4, 2025

M. Bordin