Court of Appeal for Ontario

Date: 2024-12-31 Docket: COA-23-CR-0791

Before: Pepall, Harvison Young and Sossin JJ.A.

Between: His Majesty the King Respondent

And: Mohamed Ismail Appellant

Counsel: Marianne Salih, for the appellant James Clark, for the respondent

Heard: December 3, 2024

On appeal from the conviction entered on February 2, 2023, by Justice Jennifer L. Myers of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals from his convictions for various firearm offences.

[2] Police observed a car with tinted windows that violated the provisions of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”); neither of the police officers could see the driver. One of the officers decided to stop the vehicle. Pending the stop, the other police officer ran the plate and noted that there was a warrant for the arrest of the registered owner of the car out of Alberta. They initiated a road safety stop at 9:03 p.m. and arrested the appellant at 9:07 p.m. when Officer Sekhon confirmed he was the registered owner, which he testified he did on the “strength of the warrant”.

[3] One police officer walked the appellant to the police car and conducted a pat down search for safety reasons. This took time because the appellant was bigger than him and was wearing layers of clothing. The other officer searched his car incident to arrest and saw a gun protruding from under the driver’s seat. On being told of this discovery, the appellant took flight but was quickly captured and returned to the police cruiser. The police read the appellant his right to counsel at 9:15 p.m. and the appellant was placed in the cruiser. The police then discovered that the radius for the warrant was limited to Alberta.

[4] The trial judge accepted the evidence of the police officers finding them to be forthright and straightforward, but inexperienced.

[5] At trial, the Crown conceded that in light of the Alberta warrant, the arrest was unlawful and breached the appellant’s s. 9 rights under the Canadian Charter of Rights and Freedoms. However, the trial judge found that the detention was not unlawful as the police had the power to stop the vehicle under the HTA given the state of the windows and due to the limited information they had on the warrant. In addition to the s. 9 breach resulting from the unlawful arrest, the trial judge found that the appellant’s s. 8 rights were breached as there were no reasonable grounds to search the vehicle.

[6] In addition to the s. 8 and s. 9 breaches, the appellant claimed that his s. 10(b) rights were breached. His informational rights under s. 10(b) were provided at 9:15 p.m. He argued that they should have been given at 9:07 p.m. when he was arrested.

[7] The trial judge found no s. 10(b) breach. She determined that the 8-minute delay between 9:07 p.m. and 9:15 p.m. involved walking the appellant to the cruiser, a frisk search for officer safety, locating the firearm, and the appellant’s attempt to escape. Quoting R. v. Fisk, 2020 ONCJ 88, she noted that the right to counsel is to be provided immediately, not instantaneously. As in Fisk, the police did not attempt to elicit any information from the appellant during this period.

[8] In the course of oral submissions, the appellant abandoned the ground of appeal pertaining to s. 10(b).

[9] The trial judge ultimately decided that the loaded firearm, magazine, and ammunition should not be excluded under s. 24(2) of the Charter. She reasoned that the state conduct underlying the arrest and search was inadvertent. She recognized that this did not amount to good faith but also that there was no bad faith. The car was pulled over for valid HTA reasons and neither officer realized the warrants were only returnable in Alberta. She recognized that one officer’s testimony that he searched the driver’s seat area in every arrest was problematic as each case should be considered individually, but also recognized that it is justified in most individual cases. Given her finding of inadvertence and their inexperience, she situated the state conduct on the less serious end of the scale.

[10] She went on to find that the arrest had a significant impact on the appellant and the breach was moderately intrusive. The search of the vehicle was minimally intrusive as vehicles have a reduced expectation of privacy. Overall, there was a moderate impact due to these breaches.

[11] Lastly, excluding the evidence would put an end to the Crown’s case on extremely serious charges. Society has a high interest in the prosecution of cases involving firearms and this weighed in favour of inclusion. On balance, she reasoned that the evidence should be admitted. Such admission would not bring the administration of justice into disrepute.

[12] The appellant alleges that the trial judge erred in her s. 24(2) analysis and should have excluded the firearm evidence. Absent an error in principle, a material misapprehension of the evidence, or an unreasonable finding, a trial judge’s conclusion on s. 24(2) is entitled to a high degree of deference: R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 77; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44.

[13] The appellant focuses on the first Grant factor, the seriousness of the conduct, arguing that the trial judge mischaracterized the seriousness of the unlawful breaches as “inadvertent” and resulting from the inexperience of the officers. Rather, the appellant submits that the conduct of the officers was “flagrant” and demonstrated a pattern of disregard for the appellant’s rights.

[14] We disagree. First, as noted above, the trial judge’s conclusion that the Charter-infringing conduct was on the “less serious end of the scale” and that this factor only slightly favoured exclusion was open to her in these circumstances. This was a legitimate traffic stop. Nor do we accept the argument that the officers’ failure to notice or appreciate the restricted nature of the warrant until after the arrest was reckless and negligent police misconduct. The trial judge clearly considered this argument in the context of the circumstances of the police stop, the fact that there was a warrant for his arrest, along with the inexperience of the officers, and the fact that she considered them to have been forthright and credible witnesses. These are all factors that lie at the heart of the rationale for the deference accorded to a trial judge’s assessment of the seriousness of police conduct.

[15] As the court held in R. v. Buchanan, 2020 ONCA 245, 150 O.R. (3d) 209, at para. 50: “The placement of the police conduct on the spectrum requires an exercise of discretion that the trial judge is uniquely positioned to undertake from her or his chair in the courtroom.” Barring a “clear and determinative error”, this Court should not substitute its view of police conduct for that of the trial judge: R. v. White, 2015 ONCA 508, 127 O.R. (3d) 32, at para. 63; R. v. Hamouth, 2023 ONCA 518, 167 O.R. (3d) 682, at para. 37. Moreover, the trial judge’s reasons as to the seriousness of the breach, given the fact that it arose from inadvertence and was not made in bad faith, finds support in the recent decision of R. v. Zacharias, 2023 SCC 30, 431 C.C.C. (3d) 421, at paras. 51-54.

[16] Second, we do not agree that the nature of the conduct here should have been characterized as flagrant, particularly the officers’ failure to look more carefully and “scroll down” through the details about the Alberta warrant. There is no evidence in the record to support the appellant’s submission that the officers’ lack of knowledge about such warrants reflected a systemic problem. The trial judge found that this was simple inadvertence on the part of the officers. In addition, it was not inappropriate to take the relative inexperience of the officers into account in this extent. It was open to the trial judge to find that the Charter-infringing conduct was on the “less serious end of the scale” and only weakly favoured exclusion: R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234, at paras. 83-89.

[17] Lastly, the appellant submits that the trial judge erred in her analysis under the third Grant factor and unduly emphasized the seriousness of the charges favouring inclusion. The appellant argues that she should have also considered that the seriousness of the charges pulled in favour of exclusion. The trial judge found that excluding the firearm evidence would put an end to the Crown’s case on extremely serious charges, which weighed in favour of inclusion. We see no error in the trial judge’s characterization. The trial judge did not find the seriousness of the charge being related to a firearm as “determinative”, and she found that admission of the evidence would not bring the administration of justice into disrepute. She found admission to be important in this case and that this factor pulled in favour of inclusion: R. v. Mengesha, 2022 ONCA 654, 516 C.R.R. (2d) 31, at para. 15.

[18] In summary, we find no basis for interfering with the trial judge’s conclusion that the police conduct in issue here was located at the less serious end of the spectrum, and the seriousness of the charges weighed in favour of admitting the firearm evidence. The appeal is therefore dismissed.

“S.E. Pepall J.A.”

“A. Harvison Young J.A.”

“L. Sossin J.A.”