Court File and Parties
DATE: April 22, 2021 Information No.: 18-45000258 ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
v.
SUHAIL ALSENDI
Reasons for Judgment
GIVEN ORALLY BY THE HONOURABLE JUSTICE H. L. FRASER
On April 22, 2021, at TORONTO, Ontario
APPEARANCES:
I. Shaikh Counsel for the Crown M. Simrod Counsel for Suhail Alsendi
[1] The accused, Suhail Alsendi is charged with possession of a weapon for a dangerous purpose contrary to s. 88(1) of the Criminal Code, and carrying a concealed weapon contrary to s. 90(1) of the Code. The trial in this matter commenced on March 21, 2019 and submissions concluded on March 18, 2021.
The Facts
[2] On January 20, 2018, Officers Lecki and Mooney, part of the Community Safety Response Unit of the Toronto Police Service, were on duty in the Jane Street and Wilson Avenue area of Toronto. They were working in a plain clothes capacity, in an unmarked police car and were keeping an eye out for a male named Shane Barnes who was known to frequent the area.
[3] Cst. Lecki testified that the Jane and Wilson intersection is well known to the officers of the Toronto Police Service due to a high volume of radio calls to deal with persons addicted to narcotics or persons who are dealing drugs. The Sheridan Mall is located at the northwest corner of that intersection. Cst. Lecki testified that this mall requires a great deal of police presence or assistance to deal with drug-dealing, loitering and public consumption of alcohol.
[4] At approximately, 11:35 p.m. on the night of January 20, 2018, Officer Lecki recognized an older model Ford Mustang, bright baby blue in colour, which he believed belonged to a Johnny Miwan, known to the officer as a low-level drug dealer with prior involvement with the Toronto Police Service. Officer Lecki testified that he had never seen anyone else drive the motor vehicle in question.
[5] Neither Cst. Mooney, nor Cst. Lecki had ever arrested Mr. Miwan but they were aware of Mr. Miwan’s reputation as a result of informal discussions that had taken place between other officers. Cst. Mooney and Cst. Lecki did not have a computer in their unmarked car and could not access specific information regarding Mr. Miwan that evening.
[6] While sitting in their parked vehicle, the officers observed a white male walking towards a creek under an overpass while looking over his shoulder and acting suspiciously. As they were making this observation and not knowing the purpose for which the male was walking toward the creek, the officers observed that the baby blue Ford Mustang was parked in a lot north of a Shell gas station in a window-to-window manner with a black motor vehicle. Officer Mooney wondered whether they were about to witness a drug transaction.
[7] Suddenly the Mustang sped off at a high rate of speed through the vacant Sheridan Mall parking lot headed in a northbound direction with engine revving and tires squealing. The officers decided to follow the Ford Mustang as it headed towards Exbury Drive. The Mustang drove to a high rise apartment building complex and stopped at 200 Exbury Drive, near a garage door leading to the complex.
[8] The officers caught up to the Mustang at the closed underground garage door of 200 Exbury. Officer Lecki who was driving the unmarked police car, pulled directly behind the Ford Mustang, a distance estimated by the two officers to be between 5 and 12 feet from where it had stopped. The officers observed a male standing beside the passenger door of the Mustang, who was later identified as the accused Suhail Alsendi. Neither officer knew Mr. Alsendi although they had previously seen him in the area.
[9] Both officers testified that almost immediately after they arrived at 200 Exbury, the driver of the Mustang who was later identified as Johnny Miwan, exited the car, and he and Mr. Alsendi began to walk towards the officers. Both officers testified that as Mr. Miwan and Mr. Alsendi were walking towards them, Mr. Miwan reached into the left side of his inside breast pocket with his right hand, while Mr. Alsendi also reached into his left side breast pocket with his right hand.
[10] Cst. Lecki yelled “Toronto police, show me your hands” believing that the officers were in a position of disadvantage or potential danger. Cst. Mooney testified that he yelled “police” when Mr. Alsendi was approximately seven feet away and that he immediately grounded the accused. He recalled that as he took Mr. Alsendi to the ground he noticed what he believed to be a gun and was terrified. He then asked Cst. Lecki to assist in arresting Mr. Alsendi due to his size, and then radioed for back up.
[11] Cst. Lecki who had been dealing with Mr. Miwan, pushed Miwan against the car after he heard Cst. Mooney yell “gun”. Cst. Lecki recalled Miwan saying, “I didn’t know that you guys are cops”. Mr. Miwan was searched and a large canister of mace was found in his left inside jacket pocket. Mr. Miwan was arrested for the offence of carry concealed weapon, was given his rights to counsel, and cautioned before being turned over to Cst. Phillips, another officer who had arrived on scene.
[12] Cst. Mooney, after taking Mr. Alsendi to the ground, pulled out a black handgun which turned out to be a BB gun which had the appearance of a semi-automatic handgun, similar to the one used by police. Cst. Mooney also discovered a brown folding knife on Mr. Alsendi’s person. The officers testified that the incident took 35 seconds at most.
[13] Both Cst. Mooney and Cst. Lecki testified that they never saw a cellphone on Mr. Alsendi, and were not aware that he had one until they were at the police station and observed a mobile phone being placed with Mr. Alsendi’s property.
[14] In response to the call for backup, Constables Sutherland and McDermott, along with Sergeant Dominey arrived on scene. Mr. Alsendi requested and received medical assistance at the Humber River Hospital for a hip injury.
[15] After Cst. Mooney arrested Mr. Alsendi, he advised him of the reason for his arrest, but did not give him his right to counsel. The arrest took place at approximately 11:41 p.m. Mr. Alsendi was transferred to a duty counsel at approximately 2:01 a.m.
[16] Det. Cst. Kristine McLane of the Integrated Guns and Gang Taskforce, Firearms Investigation Analysis Unit, testified as an expert witness in the examination, classification, verification and functioning of a firearm.
[17] D.C. McLane testified that the seized gun was a Beretta PX4 Storm, C02 operated pellet gun. D.C. McLane had equipped the 12 gram TPS stock C02 cartridge and TPS stocked .177 sized pellets and test fired five shots into an MED chronograph yielding results with an average velocity of 304.82 feet per second.
[18] D.C. McLane further testified that the pellet gun was operational and functional and met the pig’s eye test of 246 feet per second, meaning that the pellet gun was capable of causing serious injury.
[19] The Beretta PX4 Storm pellet gun is exempted from the licensing regime; however it is a firearm under section 2 of the Criminal Code if it meets the pig’s eye test threshold. Such pellet guns are available for purchase at retail stores such as Canadian Tire and Walmart as long as the purchaser is at least 18 years of age.
Issues
[20] Did the accused use a weapon in a manner dangerous to the public peace?
[21] Did the accused conceal an object that he knew to be a weapon?
[22] Did the Toronto Police officers violate the accused’s Charter Rights and if so should all evidence relating to the pellet gun be excluded? At the commencement of the trial, counsel agreed that the Charter arguments could be considered as part of a blended voir dire.
Submissions
Defence Submissions
[23] The defence submits that Mr. Alsendi’s knowledge of the danger presented by the pellet gun is that it could pierce the side of an aluminum can and that it caused a scratch that did not pierce his skin when he accidentally shot himself.
[24] It is also submitted that the accused would not have the specific knowledge of the test results carried out by the Crown’s expert witness, nor the ability to duplicate such results. He maintains that the expert’s knowledge cannot be equated to the knowledge possessed by him regarding the use that he had made of the pellet gun.
[25] The accused submits that the only use that he had made of the pellet gun was to take it into the woods to shoot at beverage cans and that he used the gun as nothing more than a toy that he had purchased at Canadian Tire.
[26] Furthermore the defence submits that the Crown has failed to prove that Mr. Alsendi had knowledge that the gun was a firearm or a prohibited firearm.
[27] The defence submits that in order for the Crown to obtain a conviction they must prove that the accused was carrying a weapon, that the weapon was concealed, that he intended to conceal the weapon and that he did not have the appropriate authority under the Firearms Act to carry a concealed weapon.
[28] The defence argues that in accordance with the decision in R. v. Falawka, [1993] 85 CCC (3d) 248, the mens rea for the concealed weapon offence will be established only if the Crown can prove beyond a reasonable doubt that the accused concealed an object that he knew to be a weapon. The defence adds that in order to prove concealment, it would have to be established that the accused took steps to hide the weapon so that it would not be observed by others.
[29] Mr. Alsendi also submits that if the unlawful purpose is inferred from the attempt to conceal, the court must consider that where concealed items have a utilitarian purpose, the crown would have to prove that the item was intended to be used as a weapon and was concealed for that purpose.
[30] With regard to the weapons dangerous offence, the defence submits that the Crown must prove that the accused exercised physical control over the imitation weapon with full knowledge of its characteristics and intending to possess it. The defence adds that the Crown must also prove beyond a reasonable doubt that the weapon was possessed for a purpose dangerous to the public peace.
[31] In summary, Mr. Alsendi submits that the Crown has failed to prove all elements of the s.88 offence because it has not established beyond a reasonable doubt that he had the requisite knowledge required under the code.
[32] Mr. Alsendi also submits that his rights under s.9 of the Charter of Rights and Freedoms has been breached in that his arrest was unlawful. He argues that s.495(1) of the Code allows a peace officer to arrest without a warrant a person who has committed an indictable offence or who on reasonable grounds he believes is about to commit an indictable offence, but Cst Mooney did not articulate subjective reasonable grounds for an arrest or detention.
[33] The defendant maintains that he was simply going about his business when he was approached near his apartment building by two men driving an unmarked car who he did not recognize as police, and in a matter of a few seconds was violently taken to the ground by one of them.
[34] The defendant submits that the police knew Johnny Miwan’s car, they had no reason to believe that he was not the person driving the vehicle and at its highest could have investigated his driving, but they would have had no reason to detain or arrest Mr. Alsendi for Mr. Miwan’s driving behaviour.
[35] Mr. Alsendi submits that there must be a clear nexus to reasonable or ongoing criminal activity and notwithstanding the police suspicion of drug activity, there was no criminal activity involved other than bad driving by Mr. Miwan. On that basis the defendant argues that there was a warrantless search and seizure and the onus shifts to the crown.
[36] The defence therefore submits that the BB gun should be excluded from evidence in this trial pursuant to s. 24(2) of the Charter.
Crown Submissions
[37] The Crown submits that this case will turn on its facts. He points out that the police were looking for Shane Barnes and were not anticipating that Johnny Miwan or his blue Mustang would show up.
[38] The Crown submits that the officers had the right to investigate the driving behaviour that they had just witnessed and it wasn’t until Mr. Miwan and Mr. Alsendi began to approach their vehicle that they began to question what they were dealing with and felt threatened. The Crown maintains that the officers had not even left their car when the two men began to approach their vehicle.
[39] The Crown also takes the position that if Mr. Miwan had remained in the driver’s seat of his vehicle, Cst. Lecki would have conducted a traffic stop, requested vehicle and driver documentation, verified the information provided, determined driver sobriety, and pursued Highway Traffic Act charges.
[40] The Crown argues that the officers were responding to an investigation that had not yet commenced and that any search of the men was a safety search conducted as a reaction to a potential imminent threat to their safety.
[41] Furthermore, the Crown submits that when the officers saw the two men reaching into their pockets, what reasonable inferences could the officers have drawn except to be concerned that the men were reaching for weapons. The Crown maintains that the fact that a search may precede a formal arrest does not mean that it is not incidental to arrest.
[42] The Crown argues that searches incident to investigative detention are allowed when there are reasons to believe that an offence is about to be committed.
[43] The Crown submits that the officers were acting on the information available to them at the time in difficult and exigent circumstances and could not afford the luxury of judicial reflection that takes place well after the event.
[44] The Crown acknowledges that there is a 10(b) issue in that Mr. Alsendi was arrested at 11:41 p.m. and was not given his right to counsel until 1:25 a.m. when he was being paraded. There was also a delay in providing the informational component of his rights to Mr. Alsendi, as this did not take place until 2:01 a.m.
[45] However, the Crown submits that based on the decision of R. v. Peterkin, 2015 ONCA 8, [2015] O.J. 100, nothing of evidentiary value was yielded after the breach and therefore the gun should not be excluded.
[46] The Crown maintains that on the facts of the case, the court can find that the defendant was using the gun, that he had reached into his pocket, and that the weapon that he was reaching for was designed for use in a dangerous manner.
[47] The Crown goes on to say that there is no other reasonable inference to be drawn from the action of reaching into one’s pocket when one has a gun there.
[48] In addition, the Crown argues that if an accused engages in an intentional course of conduct associated with a weapon or firearm, while it is concealed, an inference can be drawn, that he was aware of the purpose for which it was designed and intended to use it for said purpose.
Analysis
[49] Section 2 of the Criminal Code defines a firearm as “a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm”.
[50] The definition of weapon found in section 2 of the Criminal Code states that: “weapon means any thing used, designed to be used or intended for use
(a) in causing death or injury to any person, or
(b) for the purpose of threatening or intimidating any person.”
[51] The first issue for consideration is whether the Crown has proven that the accused knew that the BB gun was a firearm and weapon, and that he used the weapon in a manner dangerous to the public.
[52] I agree with the Crown that this case will turn on its facts, and I will now turn to a consideration of some of the most relevant facts in arriving at my determination of this issue.
[53] On the night in question the accused had been standing at a parking garage door near his residence at 200 Exbury Road. He testified that he had been waiting for Johnny Miwan to pick him up in his car so that they could go target shooting and perhaps do some fishing. Shortly after Mr. Miwan arrived, a car quickly pulled up behind Mr. Miwan’s vehicle. Mr. Miwan got out of his car and he and Mr. Alsendi began to approach the vehicle that had parked behind the Mustang.
[54] I accept the evidence from Mr. Miwan and Mr. Alsendi that they did not realize at first that the car that had pulled up behind them was being driven by police officers. The car was an unmarked vehicle, driven by two officers who were dressed in plain clothes. It was approximately 11:40 p.m. Cst. Lecki testified that he thought that he had his police vest in the car but was not sure if he was wearing it. Mr. Miwan testified that it wasn’t until the two men were very close that he saw the word “Police” across the chest of one of them.
[55] In any event, both officers were wearing dark clothing, driving an unmarked police vehicle, and neither Miwan nor Alsendi realized that they were dealing with the police until they heard the men yell that they were police, followed by the command to show their hands. Mr. Alsendi testified that he was confused, that it was like a scene out of the movies, and that he was quickly taken to the ground.
[56] Both Cst. Lecki and Cst. Mooney testified that they did not know what they were dealing with and they were terrified when they saw the men reaching inside their jackets. Their fear was heightened upon taking Mr. Alsendi to the ground and discovering that he had a gun on him.
[57] Cst. Lecki testified that if Mr. Miwan had remained in the driver seat and allowed the officers to approach his vehicle, the incident would have been processed as a Highway Traffic Act infraction. One has to ask how realistic a statement that is given the court’s finding that Mr. Miwan and Mr. Alsendi would have had no idea that the men in the car were police officers until they identified themselves. It must also be noted that the officers did not have a computer in their car, so the testimony about the steps that they would have taken to verify information in the course of processing a Highway Traffic Act infraction seems somewhat disingenuous.
[58] I accept Mr. Alsendi’s testimony that he purchased the BB gun at a Canadian Tire approximately three months before the incident for $250.00 and that he had always intended to use it as a toy, a recreational item that he used to shoot at cans and bottles in a forested area that he was familiar with.
[59] Mr. Alsendi was not contradicted in his testimony that he had asked Mr. Miwan to open the trunk of his car so that he could put the BB gun and his other items there, and that it was at that point that the car with the undercover officers pulled up behind him.
[60] I also accept Mr. Alsendi’s testimony that the pellets for the BB gun were found in a bag in his pocket.
[61] I am left in doubt as to whether Mr. Alsendi knew that the BB gun was a prohibited firearm. He bought it to use as a recreational toy and the Crown has not proven beyond a reasonable doubt that the accused knew that the BB gun was a weapon or an imitation weapon or that he was using it in a manner dangerous to the public peace. He is found not guilty of the charge under s. 88(1) of the code.
[62] In order to obtain a conviction on the count of carrying a concealed weapon, the Crown must prove that the accused was carrying a weapon, that the weapon was concealed, that the accused intended to conceal the weapon and that he did not have the appropriate authority under the Firearms Act to carry a weapon.
[63] In R. v. Felawka, [supra] the court said the following about the mens rea for this offence:
In summary then, the requisite mens rea or mental element of s. 89 will be established if the Crown proves beyond a reasonable doubt that the accused concealed an object that he knew to be a weapon. In order to prove concealment it would have to be established that the accused took steps to hide the weapon so that it would not be observed or come to the notice of others.
[64] As stated earlier, I accept Mr. Alsendi’s evidence that he was about to put the BB gun in the trunk of Mr. Miwan’s car when the police officers pulled up behind them. I also accept Mr. Alsendi’s evidence that he had a number of items in his jacket pockets as he approached the two men. According to his evidence, he had the BB gun in the left side of his jacket, a knife outside the left pocket, and a cell phone in the pocket on the right side of his jacket.
[65] Mr. Alsendi was insistent that he had a cell phone in his pocket on the night of January 20, 2018, and that one of the officers stepped on his phone and damaged it. Neither Cst. Leckie nor Cst. Mooney recalled finding a cell phone at the scene, yet the accused was clearly subject to a thorough search after the BB gun was discovered. Interestingly, when Mr. Alsendi was at the station being processed, it is noted that his cell phone was placed in his property.
[66] The Crown asks the court to draw the inference that the accused was reaching into his pocket because he was about to use the gun, after having concealed it, but on the evidence that I accept, that is not an inference that the court is prepared to draw. The Crown has not established beyond a reasonable doubt that the accused took steps to hide the gun.
[67] On the evidence that I accept, I am not satisfied that the accused intended to conceal the BB gun found in his jacket.
[68] The Crown has failed to prove all elements of this offence beyond a reasonable doubt, and Mr. Alsendi will be found not guilty of the charge under s. 90(1).
[69] The resulting acquittal on both charges renders moot any discussion on the appropriate remedy for the violation of Mr. Alsendi’s 10(b) Charter rights.
Conclusion
Dated at Toronto, this 22nd day of April, 2021.
Hon. Justice H. L. Fraser