Court of Appeal for Ontario

Date: 2017-03-03 Docket: C58932 Judges: MacFarland, Pardu and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Shikar Rafiq Appellant

Counsel

I. Grant and R. Silverstein, for the appellant

Gillian Roberts, for the respondent

Heard

March 1, 2017

Appeal Information

On appeal from the conviction entered on April 25, 2014 by Justice Joseph Fragomeni of the Superior Court of Justice, sitting without a jury.

Endorsement

[1] The appellant submits that the trial judge erred in admitting evidence of a gun found in a vehicle operated by him. The appellant argued at trial that he was arbitrarily detained when police stopped their vehicle two feet behind his vehicle which was parked at a gas station, and when an officer went to each side of the vehicle to speak to the occupants. He says further that police violated his s. 10(a) and s. 10(b) Charter rights when they failed at that time to advise him of the reason for detention and his rights to counsel.

[2] The trial judge agreed that the appellant was then detained but found that it was not arbitrary. He found that the police had a reasonable basis to suspect that the occupants of the car were engaged in criminal activity. He found that there were violations of s. 10(a) and s. 10(b) of the Charter because police did not, immediately upon this detention, advise the appellant of the reason for detention and his rights to counsel.

[3] The trial judge applied the test in R. v. Grant 2009 SCC 32, and refused to exclude the evidence, concluding that the short delay occurred because of concerns for officer safety, and because the police, acting in good faith, did not think they had detained the appellant until they asked him to step out of the car.

[4] The appellant argues that the bases advanced by the police for a reasonable suspicion were insufficient. However, the appellant and each of his two companions all acknowledged in statements made by them that an onlooker observing their behavior at the time would have found it suspicious. While each of the factors in isolation relied upon by the police would not be sufficient, the cumulative effect of the appellant's and his companions' behavior, was, as found by the trial judge, sufficient to support the investigative detention.

[5] The appellant has not established that the trial judge erred in admitting the evidence, despite the violations he found. No challenge is made to the trial judge's underlying factual findings which are entitled to deference. Assuming the correctness of the trial judge's decision that the appellant was detained when police pulled in a car behind him, and went to speak to the occupants, here the police made no efforts to elicit inculpatory evidence after pulling behind the appellant's vehicle but asked only very general questions. This case is nothing like R. v. Wong 2015 ONCA 657. The appellant made no inculpatory statements to police before being advised of his rights and the reason for detention. The police did advise of the reason for detention and gave the appellant his Charter rights as soon as it was safe to do so. The presence of a loaded gun in the glove-box of the car was a significant finding. It was not uncovered as a result of evidence police compelled the appellant to produce. There was a substantial public interest in determination of this case on the merits.

[6] Accordingly, the appeal is dismissed.

J. MacFarland J.A. G. Pardu J.A. G. T. Trotter J.A.