Court of Appeal for Ontario

Date: 2024-04-02 Docket: COA-23-CR-0477

Before: Fairburn A.C.J.O., Rouleau and Trotter JJ.A.

Between: His Majesty the King, Respondent and Mustafa Izzeddin, Appellant

Counsel: Mustafa Izzeddin, acting in person Nathan Gorham, acting as duty counsel Erica Whitford, for the respondent

Heard: February 8, 2024

On appeal from the convictions entered by Justice Jonathan Brunet of the Ontario Court of Justice, dated December 14, 2022.

Reasons for Decision

[1] The appellant was convicted of firearms offences under ss. 86, 88, 90, 94, and 95 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] The appellant was a passenger in a stolen car that was stopped by the police. The police discovered a loaded handgun in a satchel that the appellant wore over his shoulder.

[3] At trial, and on appeal, the appellant submits that the police infringed his rights under ss. 8, 9 and 10(b) of the Charter. The trial judge found there was a minor breach of s. 10(b), but found ss. 8 and 9 had not been violated. He declined to exclude the evidence relating to the discovery of the handgun under s. 24(2) of the Charter. The appellant challenges various aspects of the Charter ruling and submits that the handgun evidence be excluded.

[4] The following reasons explain why the appeal is dismissed.

Background

[5] On January 13, 2022, P.C. Montgomery of the Ottawa Police Service was on patrol in an unmarked police vehicle. He received information over the police radio concerning a robbery and a theft of a vehicle. The robbery was said to have involved a Middle Eastern man wearing a red jacket. The man was in the lobby of a building and gestured with his hand, as if he had a gun. Around the same time, P.C. Montgomery also learned of a theft of a vehicle used for Uber Eats deliveries that had been left with its engine running. This occurred at the building next to the building where the robbery had taken place. The buildings share a parking lot.

[6] Five to six hours later, P.C. Montgomery saw the stolen vehicle at a gas station. As he approached the vehicle, he saw a man with a red puffy jacket in the driver’s seat. He was surprised to see three other men in the vehicle, all of whom wore masks. The appellant was in the back passenger seat, wearing a satchel over his shoulder.

[7] Feeling outnumbered, P.C. Montgomery called for back-up, which arrived very quickly. He initially detained the occupants of the vehicle for investigative purposes, but when backup arrived, they were all arrested for possession of the stolen vehicle.

[8] Another officer, P.C. Wheaton, removed the appellant from the stolen car. As P.C. Wheaton conducted a pat-down search for officer safety, the appellant’s satchel was placed on the trunk area of the car. Another officer searched the satchel and found a loaded handgun. The appellant was taken to a nearby police cruiser. He was not advised of his right to counsel under s. 10(b) of the Charter for approximately six minutes. He subsequently exercised his right to counsel when he was at the police station. He said nothing in the meantime.

The Charter Ruling

[9] The trial judge found that the police violated the appellant’s right to counsel by failing to advise him of his rights under s. 10(b) without delay.

[10] The appellant was detained and arrested for possession of the stolen car. He was later charged with the weapons offences. The appellant challenged the reasonableness of the basis for his initial arrest and the subsequent search under ss. 8 and 9 of the Charter.

[11] The trial judge accepted P.C. Montgomery’s evidence that, based on his experience, it was “likely” that more than one person was involved in the commission of the theft and the robbery. He found that the arrest of the appellant for possession of stolen property was reasonable, even though the appellant was merely a passenger in the car. The trial judge referred to the doctrine of constructive possession in s. 4(3) of the Criminal Code and noted that all the police required was probable grounds to arrest for this offence: “Police do not have to establish a prima facie case for conviction before proceeding to an arrest.”

[12] Applying R. v. Storrey, [1990] 1 S.C.R. 241, the trial judge was satisfied that P.C. Montgomery subjectively believed that he had grounds to arrest the appellant for possession of stolen property. He accepted the reasonableness of the officer’s belief that more than one person was involved in the offences broadcast over the police radio. In reaching this conclusion, the trial judge relied on R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), in which this court noted, at p. 750:

The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.

[13] The trial judge found that the search of the appellant did not violate s. 8 of the Charter. The searching officer, P.C. Wheaton, was advised by P.C. Montgomery that the appellant was arrestable and that the car was stolen. The trial judge found that the subsequent pat-down search of the appellant was for weapons and for public safety purposes and was “entirely reasonable”. Again, he referred to the dynamic nature of the situation faced by the officers at the time.

[14] In applying s. 24(2) of the Charter in relation to the breach of s. 10(b) of the Charter, the trial judge found that the breach was not serious, given that it involved a six-minute delay. The impact on the appellant’s Charter-protected interests was minimal because the appellant did not make a statement and he was provided with access to counsel at the police station. The trial judge found that the third factor in R. v. Grant, [2009] 2 S.C.R. 353 favoured inclusion. Ultimately, he found that the handgun evidence should not be excluded.

Analysis

[15] With the assistance of duty counsel, the appellant submits that the trial judge erred in dismissing his claims under ss. 8 and 9 of the Charter. He submits that P.C. Montgomery lacked reasonable grounds to detain or arrest the appellant for the offence of possession of the stolen vehicle because: (1) he merely assumed that more than one person was involved in committing the robbery and theft; and (2) there was no reasonable basis to believe that the appellant was in constructive possession of the stolen car. In making this latter submission, he relies on R. v. Terrence, [1983] 1 S.C.R. 357, for the proposition that being a passenger in a car alone does not establish constructive possession. We do not accept these submissions.

[16] On the record before him, it was open to the trial judge to conclude that P.C. Montgomery believed that the two events that were broadcast over the police radio were related, and that they involved more than one perpetrator. Moreover, the Crown was not required to establish a prima facie case for possession to justify the detention and subsequent search of the appellant; all that was required was reasonable grounds to believe. We would not disturb the trial judge’s conclusion on this issue.

[17] Even if the conduct of the police fell short of the mark based on the possession issue, the circumstances amply justified the detention of the appellant for investigative purposes. It was not contested that P.C. Montgomery located the vehicle that had been stolen hours earlier. When he approached the vehicle at the gas station, the driver of the vehicle matched the description of the person broadcast over the police radio. In these circumstances, the police were under a duty to investigate the role, if any, of the other occupants in the vehicle, all of whom were masked. [1] As the trial judge found, the subsequent search of the appellant was undertaken for public safety purposes. This search was justifiable as a search incident to arrest and as a search incident to an investigative detention. Therefore, even if there were a Charter breach in relation to the formal arrest, it would have been a minor one that would have had no appreciable impact on the s. 24(2) analysis.

[18] The appellant submits that the police should have obtained more information before searching him. Had they called dispatch, they may have learned more information that could have resulted in the release of the appellant without searching his satchel. Furthermore, facilitating the appellant’s access to counsel at the scene would have given the police more time to gather this information and/or re-evaluate their grounds for the arrest and search.

[19] We do not accept this submission. Although the police may have chosen to proceed in a different manner, they were not required to do so. The dynamic circumstances faced by the officers justified the search that was undertaken. Moreover, it is entirely speculative to conclude that further inquiries would have resulted in the release of the appellant from the gas station without having been searched. With respect to facilitating immediate access to counsel, it is doubtful that the police would have been able to facilitate the appellant’s private contact with counsel at the gas station. Again, it is speculative to conclude that consultation with counsel would have resulted in the police changing their minds about searching the appellant. In any event, the police would have been entitled to search the satchel while the appellant exercised his right to counsel (which did not involve “questioning or otherwise attempting to elicit evidence from the appellant”): R. v. McCrimmon, [2010] 2 S.C.R. 402, at para. 17.

[20] We also find no error in the trial judge’s s. 24(2) analysis. The appellant submits that the violation was more serious than the trial judge found it to be. He argues that there was a pattern of police misconduct here, beginning with the decision to arrest the passengers in the car, and exacerbated by the failure to provide the appellant with access to counsel which could have led to his release prior to searching his satchel.

[21] With respect to the decision to detain and then arrest the appellant and the other passengers, the appellant argues that the trial judge ought to have considered the spectre of racial profiling in the circumstances, based on the broadcast description of the initial suspect as a Middle Eastern man, and the racial background of the group of men who were in the car. In closing submissions on the Charter motion, defence counsel said the following about the seriousness of the breach: “It was a hunch that there’s a couple of guys and I don’t want to go into racial profiling, but they’re Arab looking guys, two of them has – have balaclavas on their head and he thinks they’re up to no good. But that’s not a reason to arrest someone” (emphasis added).

[22] As is clear from our reasons in relation to ss. 8 and 9 of the Charter, we reject the submission that there was a pattern of police misconduct. Furthermore, although the trial judge did not address the submission on racial profiling, there was no reason to do so. As noted above, it was not seriously advanced by trial counsel. Moreover, there was no basis in the record to assert racial profiling on the part of the officers. The record demonstrates that P.C. Montgomery acted in the manner that he did because he located the stolen vehicle and the man in the driver’s seat was wearing a red jacket, consistent with what was broadcast over the police radio. The detention, arrest, and search of the appellant naturally flowed from this situation.

Disposition

[23] The appeal is dismissed.

“Fairburn A.C.J.O.”

“Paul Rouleau J.A.”

“Gary Trotter J.A.”

[1] All four males were either wearing masks or balaclavas. The trial judge noted that this was in January 2022, when mask wearing “was recommended, if not mandatory”.