ONTARIO COURT OF JUSTICE
DATE: 2025 06 11
COURT FILE No.: Toronto
4810 998 24 48107273-00
4810 998 24 48107272-00
BETWEEN:
HIS MAJESTY THE KING
— AND —
ROOBLE OSMAN MOHAMED
Before Justice Seth Weinstein
Heard on May 6, 7 and 8
Reasons for Judgment released on June 11, 2025
Laura Petryshen — counsel for the Crown
Magdalena Wyszomierska — counsel for Rooble Osman Mohamed
Reasons for Judgment
WEINSTEIN J.:
[1] On February 22, 2024, Mr. Mohamed was driving erratically northbound on the Don Valley Parkway (“DVP”). He was pulled over by PC Clarke who detected an odour of alcohol on Mr. Mohamed’s breath. As a result of the odour and the erratic driving, PC Clarke made an ASD demand.
[2] Mr. Mohamed registered a FAIL on the ASD and was placed under arrest. As PC Clarke attempted to effect the arrest, Mr. Mohamed pulled away and ran northbound along the shoulder of the highway. PC Clarke gave chase and saw Mr. Mohamed throw a dark object over the guardrail. He was arrested a short time later. When searched incident to arrest, PC Clarke located several items in Mr. Mohamed’s pocket, including a bag containing white powder that he suspected to be cocaine.
[3] Shortly after the arrest, the canine unit was called to search the area where Mr. Mohamed was seen to throw the dark object. Within a few minutes police located a loaded semi-automatic Glock handgun partially covered in debris underneath a tree shrub.
[4] Mr. Mohamed was eventually transported to the station where he provided two breath samples registering 130 mg of alcohol per 100 ml of blood.
[5] As a result, Mr. Mohamed has been charged with the following offences:
a) Impaired driving.
b) Over 80.
c) Careless use of a firearm.
d) Possession of concealed prohibited handgun.
e) Possession of concealed ammunition.
f) Possession of a restricted firearm.
g) Resisting arrest.
h) Escape lawful custody; and
i) Possession of cocaine.
[6] Mr. Mohamed elected to be tried before me and pleaded not guilty on all counts. He filed a Charter application seeking to exclude the firearms, ammunition as well as the breath samples from evidence because the police delayed the implementation of his 10(b) rights to counsel for approximately 95 minutes. The matter proceeded as a blended voir dire on the Charter application and a trial on the merits.
[7] At the conclusion of the evidence, the Crown acknowledged that it had insufficient evidence in support of the possession of cocaine count and invited an acquittal with respect to that charge. Moreover, counsel for Mr. Mohamed acknowledged that the Crown had met his onus with respect to the resist arrest and escape lawful custody charges and invited me to find Mr. Mohamed guilty of those two counts.
[8] In light of these positions, I am left to determine the following issues:
a) Whether Mr. Mohamed’s s. 10(b) rights were violated and, if so, whether the evidence of the firearm, ammunition and the breath samples should be excluded pursuant to s. 24(2) of the Charter.
If the evidence is excluded, the parties agree that the Charter application is dispositive of all the firearms related charges and the over-80 count.
b) However, if the evidence is admissible, I must then go on to consider whether the Crown has proven Mr. Mohamed’s guilt beyond a reasonable doubt. To that end, counsel for Mr. Mohamed has acknowledged that if the breath samples are admitted, there would be sufficient evidence to establish Mr. Mohamed’s guilt on the over 80 count.
[9] It is the position of the defence that having regard to the 10(b) violation, the reputation of the administration of justice would be brought into disrepute if the firearm, ammunition, and breath samples were admitted into evidence. Alternatively, if the evidence is admissible, counsel submits that the Crown has failed to prove Mr. Mohamed’s guilt beyond a reasonable doubt. With respect to the firearms and ammunition counts, it is submitted that the Crown has failed to prove that the only reasonable inference to be drawn from the circumstantial evidence is that Mr. Mohamed was the person who discarded the loaded Glock. Finally, it is submitted that the Crown has failed to prove that Mr. Mohamed was impaired by alcohol while driving along the DVP.
[10] The Crown submits that the police complied with s. 10(b) of the Charter. The Crown argues that the first possible and safe opportunity to connect Mr. Mohamed with counsel was at the police station and that the delay to accomplish that was reasonable in the circumstances. Alternatively, if there was a breach, it should not result in the exclusion of evidence as the breach was not serious and had little impact. Finally, the Crown submits that it has proven all offences beyond a reasonable doubt. The only reasonable inference to draw from the totality of the evidence is that Mr. Mohamed threw the loaded Glock as he attempted to evade arrest by the police.
Overview of the Relevant Facts
[11] The following is a summary the salient evidence as it relates to the relevant issues.
The Initial Stop
[12] At approximately 2:44 a.m. PC Michael Clarke was on general patrol northbound on the DVP when he saw a grey Honda Fit weaving in its lane. He followed the car and observed it continuing to weave with its speed fluctuating. He eventually turned on his in-car camera which captured this driving conduct.
[13] Suspecting that the driver might be impaired, PC Clarke activated his emergency lights. At 2:46 a.m., the Honda Fit pulled over on the shoulder just north of the Lawrence Avenue on ramp. PC Clarke then approached the car to speak to the driver. The entirety of PC Clarke’s interactions with the driver were captured on his body worn camera.
[14] PC Clarke approached the driver’s side window and observed four people in the car, all of whom he described as being incredibly nervous. PC Clarke testified that when the driver rolled down the window, he was immediately met with a strong odour of cannabis. He also said that the driver had watery eyes and a blank stare.
[15] Mr. Mohamed was identified as being the driver and provided his licence and insurance. When Mr. Mohamed exited the car, PC Clarke immediately noted a strong odour of alcohol. At that point he formed a reasonable suspicion that Mr. Mohamed had alcohol in his system and made an ASD demand.
The Arrest and Flight from Police
[16] Mr. Mohamed registered a FAIL on the ASD and was arrested for over-80. However, when PC Clarke took out his handcuffs, Mr. Mohamed pulled away and ran northbound.
[17] As PC Clarke gave chase, Mr. Mohamed reached towards his front and threw an object over the guardrail. Although the throwing motion is captured on PC Clarke’s body cam, the object is not visible. Moreover, PC Clarke could not describe the shape or size of what was thrown. However, he recalled that the object was black.
[18] As PC Clarke continued the chase, he unholstered his taser and told Mr. Mohamed to stop. Mr. Mohamed slowed down and PC Clarke was able to pull him to the ground. He was arrested at approximately 2:51 a.m.
[19] When Mr. Mohamed was searched incident to arrest PC Clarke seized a dime bag with a white substance as well as a paper with black substance which he believed to be heroin. He also found keys, a mask, and a scale.
[20] At some point during the chase and arrest of Mr. Mohamed, the Honda Fit with the other three passengers fled the scene.
Rights to Counsel
[21] Mr. Mohamed was provided with rights to counsel at 2:55 a.m. and indicated that he wanted to speak to duty counsel. At 2:56, PC Clarke provided a caution and made the breath demand. Mr. Mohamed was then placed in the back of PC Clarke’s cruiser. At this point, two other officers, Sergeant McQueen and Police Constable Tran, arrived on scene.
[22] After placing Mr. Mohamed in his cruiser, PC Clarke called for the canine unit to search for the discarded item. As PC Clarke waited on scene to assist the canine unit, he spoke with Sergeant McQueen and PC Tran. He also spent time in his cruiser inputting information on the computer that he said was necessary before he could transport Mr. Mohamed to the station.
[23] The canine unit, led by officer Scott Aikman, arrived at approximate 3:02 a.m. PC Clarke spoke to officer Aikman and pointed out the general area to search. As PC Aikman conducted the search, PC Clarke spent a few more minutes in his cruiser inputting information on his computer before speaking again with officers Tran and McQueen.
[24] At approximately 3:22 a.m., PC Clarke was told that a firearm was found in the ravine. At 3:25 a.m., he told Mr. Mohamed that he was under arrest for possession of firearm and again advised him of his rights to counsel. Mr. Mohamed repeated that he wished to speak to duty counsel. They left the scene at 3:26 a.m. and headed to traffic services where the closest breath technician was working.
Implementation of Rights to Counsel
[25] PC Clarke arrived at the station at 3:46 a.m. However, there was a delay in parading Mr. Mohamed because there was a computer problem. As a result, PC Clarke did not implement rights to counsel until 4:27 a.m. Mr. Mohamed eventually spoke to duty counsel and then complied with the breathalyzer demand, registering two truncated readings of 130 mg of alcohol per 100 ml of blood.
[26] PC Clarke testified that rights to counsel should be read immediately and that if counsel is requested, it should be implemented “as soon as is practicable.” He acknowledged that he had a work issued phone that he could have provided to Mr. Mohamed at the scene. However, he stated that Toronto Police Service policy mandated that rights to counsel be implemented at the station. He explained there are concerns about privacy in the cruiser and so unless the accused is being released from the scene, he always implements rights to counsel at the station where the accused can be placed in a private room.
[27] Although he knew that he would need to remain on scene to assist the canine unit, PC Clarke stated that he never turned his mind to having another officer take Mr. Mohamed to the station so that rights to counsel could be implemented sooner.
Discovery of the Firearm
[28] Officer Aikman testified that he received a call at 2:51 a.m. to attend the northbound DVP just north of Lawrence Avenue. He was met by PC Clarke who advised of the circumstances surrounding Mr. Mohamed’s arrest and the location of where he believed items had been thrown.
[29] Officer Aikman retrieved his dog, Lokie, and commenced the search of the area which he described as being approximately twenty feet in width. The area was also filled with what Officer Aikman described as being tightly knitted shrubbery and thorny bushes.
[30] Officer Aikman began the search by walking Lokie around the edge of the roadway before going down into the more intimate area of the bush. Officer Aikman said that the thick bushes made it challenging to navigate. As they made their way northbound through the thick bushes, Officer Aikman said that he noticed a black item on the ground, partially covered with leaves. He looked closer and saw that it was a firearm with a magazine housed in the butt of the gun. There was also a laser point or flashlight under the barrel.
[31] Officer Aikman estimated that the firearm was down the lower incline, eight to ten feet east of the guardrail. His immediate reaction when he found the firearm, was “how did it get there?” Officer Aikman explained that given the thickness of the bushes, he could not figure out how the firearm could have landed in that area.
[32] After locating the firearm, Officer Aikman instructed officers to continue searching. He explained that the thickness of the bushes made it a challenging area to search and that it was possible Lokie might have missed something. To his knowledge, no other search was ever completed.
[33] The firearm was seized and found to have one round in the chamber and six rounds of ammunition in the magazine. A certificate of analysis was filed confirming that the firearm was a Glock, 43, 9mm Luger caliber semi-automatic handgun with seven cartridges of 9mm Luger caliber ammunition.
The Charter Application
Was there a Breach of Mr. Mohamed’s 10(b) Rights?
[34] Section 10(b) of the Charter requires that the police inform a detained person of their right to counsel immediately upon detention. There is also a constitutional obligation to facilitate the requested access to a lawyer at the first reasonable opportunity: R. v. Suberu, 2009 SCC 33 at para 38; R. v. Willier, 2010 SCC 37 at paras. 29-33.
[35] It is well established that the right to consult counsel without delay exists because those who are arrested or detained require immediate legal advice that cannot otherwise be accessed because of the detention: R. v. Noel, 2019 ONCA 860, at para. 23; R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 34.
[36] When access to counsel is not immediately provided, the burden is on the Crown to demonstrate that the delay was reasonable: R. v. Samuels, 2024 ONCA 786, at para. 24. Although there are circumstances that might justify delay, concerns of a general non-specific nature are not justified. The police must turn their minds to the specifics of the situation they face and conclude, on a reasonable basis, that the circumstances justify some delay in granting access to counsel. Even then, they must take reasonable steps to minimize the delay: R. v. Rover at para 27.
[37] I accept that it was impracticable for PC Clarke to implement rights to counsel at the roadside following his arrest. PC Clarke was faced with a dynamic and evolving situation. He had completed what turned out to be a high-risk arrest with an uncooperative detainee. He had also just observed Mr. Mohamed discard something during the chase. It was entirely appropriate for Mr. Clarke to prioritize waiting and assisting the canine unit in its search for the discarded item.
[38] PC Clarke provided two other reasons for not providing rights to counsel at the scene: (1) TPS policy requires that he take a detainee to the station before implementing rights to counsel and (2) because he was concerned that Mr. Mohamed would not have adequate privacy to consult with counsel.
[39] I am not prepared to find that this was an instance where the arresting officer should have figured out a way to permit Mr. Mohamed to consult with counsel at the roadside. Firstly, the police are not obligated to provide a detainee with the use of a cell phone at the roadside: R. v. Taylor, 2014 SCC 50. Moreover, the circumstances were too dynamic. The arrest was tense and involved Mr. Mohamed fleeing from the police. There existed a reasonable belief that Mr. Mohamed had discarded something of value. It was reasonable for PC Clarke to prioritize looking for that item.
[40] With that said, knowing the TPS policy would require Mr. Mohamed to be taken to the station for access to counsel and that he would be delayed by having to stay at the scene to assist in the search, it was incumbent on PC Clarke to take reasonable steps to minimize the delay. He had two officers on scene, Sergeant McQueen and PC Tran, either of whom could have transported Mr. Mohamed to Traffic Services to implement rights to counsel and administer the breathalyzer. PC Clarke should have acted with more urgency in providing access to counsel. The failure to do so resulted in Mr. Mohamed having to wait 95 minutes to speak to a lawyer. This violated his 10(b) rights.
Should the Evidence be Excluded under Section 24(2)?
[41] There are two components to determining whether evidence must be excluded under section 24(2) of the Charter. The threshold requirement asks whether the evidence was “obtained in a manner” that infringed or denied a Charter right. If this threshold requirement is met, the second component, the evaluative component, asks whether, having regard to all the circumstances, admitting the evidence would bring the administration of justice into disrepute: R. v. Beaver, 2022 SCC 54 at para 94.
[42] The crux of the analysis is whether the admission of the evidence would bring the administration of justice into disrepute. In R. v. Grant, 2009 SCC 32, the Supreme Court of Canada set out the test for whether the evidence obtained in a manner which infringes Charter rights should be admitted or excluded under s. 24(2) of the Charter. A trial judge’s role is to “assess and balance the effect of admitting the evidence on society’s confidence in the justice system” having regard to: (1) the seriousness of the Charter-infringing state conduct; (2) the impact on the Charter-protected rights of the Applicant; and (3) society’s interest in the adjudication of the case on its merits. I must balance these factors to determine whether the evidence should be admitted.
[43] Section 24(2) is not an automatic exclusionary rule that requires the exclusion of evidence when police act in an unconstitutional manner. The question is whether the admission of the evidence would bring the administration of justice into disrepute: R. v. Beaver, supra at para 117 and R. v. Whittaker, 2024 ONCA 182.
[44] The objective is “not to assign blame, punish the police, or deter future Charter breaches. Rather, it is to “preserve public confidence in the rule of law and its processes.” The s. 24(2) analysis must focus on the “broad impact [the] admission of the evidence [would have] on the long-term repute of the justice system”: R. v. Whittaker, supra at paras 28 and 29.
Obtained in a Manner
[45] In R. v. Tim, 2022 SCC 12, the Supreme Court of Canada explains that trial judges should take a “purposive and generous approach” in determining whether evidence was “obtained in a manner” that violates an accused’s rights.
[46] The “entire chain of events” must be examined. The connection between the breach and the impugned evidence can be “temporal, contextual, causal or a combination of the three”. However, a remote or tenuous connection between the Charter breach and the impugned evidence will not suffice to trigger s. 24(2): R. v. Mack, 2014 SCC 58; R. v. Wittwer, 2008 SCC 33; R. v. Pino, 2016 ONCA 389; and R. v. Davis, 2023 ONCA 227.
[47] Using a purposive and generous approach, I am satisfied that the temporal and contextual connections for the breath samples, the firearm and ammunition meet the “obtained in a manner” threshold. There was a temporal and contextual link between the 10(b) informational breach and Mr. Mohamed providing samples of his breath. There is also a temporal connection between the breach and the discovery of the firearm. Although the contextual connection is weak, it is not too remote or tenuous.
Seriousness of the Charter Infringing Conduct
[48] Police misconduct exists on a spectrum from technical or inadvertent errors committed in good faith to deliberate breaches. I must situate the police conduct here on that spectrum. The more willful, reckless or deliberate the misconduct, the more the court will need to dissociate itself from that conduct: R. v. Beaver, supra at para 121.
[49] Good faith efforts by the police to comply with the Charter will reduce the need to dissociate from the conduct. A conclusion of good faith must consider all the circumstances surrounding the police conduct. However, as the Court noted in Grant, ignorance of Charter standards will not be rewarded or encouraged, and good faith will not be found where police conduct is negligent or willfully blind.
[50] I do not see a problem in PC Clarke’s testimony that the right to counsel must be implemented “as soon as practicable” instead of “immediately”. He explained that it means as soon as privacy can be afforded. His language and understanding are consistent with the authorities: R. v. Keshavarz, 2022 ONCA 312, at para. 71, and R. v. Samuels 2024 ONCA 786, at para. 37. Moreover, there is ample case law holding that it is reasonable for the police to withhold access to counsel until arrival at the police station. In these circumstances, PC Clarke had no ability to provide privacy on scene for a phone call to a lawyer at the roadside. PC Clarke was clear and unequivocal in his evidence that he was not confident that he could provide the privacy that was needed, and which Mr. Mohamed was entitled.
[51] That, however, does not end the inquiry. PC Clarke’s delayed transport of Mr. Mohamed is a real concern. Although it was entirely reasonable for him to remain on scene to assist in the search, he was under an obligation to confront the reality of the situation that this would delay his ability to implement rights to counsel. This is especially so considering the TPS policy he was purportedly following. He failed to do so.
[52] PC Clarke’s failure to recognize the importance of implementing rights to counsel led to a 95-minute delay. This is not an insignificant breach. Some of this delay was justified as PC Clarke needed to remain on scene to assist in the search. He was the only person to see where the item was thrown and the only person who could guide the canine unit about where to search. However, PC Clarke could have minimized the delay by arranging to have PC Tran or Sergeant McQueen, two officers on scene who don’t appear to be playing any role in the search, to transport Mr. Mohamed back to the station.
[53] In my view, PC Clarke’s failure to make alternative arrangements to transport Mr. Mohamed reflects a casual indifference to the importance of Mr. Mohamed’s 10(b) rights. Even if unintentional, what happened here reflected an unacceptably negligent approach to safeguarding Mr. Mohamed’s 10(b) rights. The police conduct violated an established constitutional obligation. As the Court of Appeal noted in R. v. Noel, at para 34: “the law around s. 10(b) is clear and long settled. It is not difficult for the police to understand their obligations and carry them out.” PC Clarke’s negligence in failing to uphold Mr. Mohamed’s 10(b) rights, precludes a finding of good faith. It is a serious breach of an established constitutional right and supports exclusion.
Impact of the Charter Violation on the Protected Interests of the Accused
[54] The second line of inquiry deals with the seriousness of the impact of the violation on the Charter-protected interests of the accused. This line of inquiry considers the impact of the breach on the accused's Charter-protected interests and asks whether the breach undermined the interests protected by the right infringed: R. v. Tim, supra at para 90.
[55] I must identify the interests protected by the relevant Charter rights and evaluate how seriously the breaches affected those interests. As with the first line of inquiry, I must then “situate the impact on the accused's Charter-protected interests on a spectrum, ranging from impacts that are fleeting, technical, transient, or trivial, to those that are profoundly intrusive or that seriously compromise the interests underlying the rights infringed.” The greater the impact on the Charter protected interests, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute: R. v. Tim, supra.
[56] Rights to counsel is very important for any person under investigation. The right to counsel is geared towards assisting detainees with regaining their liberty and protecting them against the risk of involuntary self-incrimination. However, the delay in accessing counsel in this case had minimal impact on Mr. Mohamed. He did not incriminate himself and his liberty was not jeopardized. The police made no attempt to obtain a statement from Mr. Mohamed and he did not volunteer anything. Although there was unacceptable delay in providing Mr. Mohamed with a lifeline by speaking with counsel, he ultimately did have the opportunity to do so.
[57] In my view, the actual impact on Mr. Mohamed’s Charter protected rights was not particular serious. Moreover, there was no causal connection between any 10(b) breach and the discovery of the evidence. The firearm, ammunition and breath samples would have inevitably been discovered even if there was no 10(b) breach: R. v. Keshavarz, at para 115. Accordingly, this factor does not support the exclusion of evidence.
Society’s Interest in Adjudicating a Case on its Merits
[58] The third Grant factor, society’s interest in adjudication on the merits, will typically pull towards inclusion of the evidence.
[59] The third line of inquiry is concerned with society’s interest in an adjudication on the merits. It asks whether the truth-seeking function of the criminal process would be better served by the admission or exclusion of the evidence. The reliability of the evidence and its importance to the prosecution’s case are key factors. Admitting unreliable evidence will not serve the accused’s fair trial interests nor the public’s desire to uncover the truth. On the other hand, excluding reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public’s perspective.
[60] The importance of the evidence to the Crown’s case is corollary to the inquiry into reliability. Admitting evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the whole of the prosecution’s case, but excluding reliable evidence may more negatively affect the truth-seeking function of the criminal law process where the effect is to “gut” the prosecution’s case.
[61] The evidence sought to be excluded, the firearm, ammunition and the breath results are highly reliable. Moreover, there is a strong public interest in determining cases of this nature on its merits. A loaded firearm thrown away during a police chase at the side of the highway is an enormous threat to public safety. Further, exclusion of the evidence will result in the Crown being unable to prove its case. Exclusion of the evidence, therefore, will more negatively affect the truth-seeking function of the trial process than inclusion. This factor favours admission of the evidence.
Final Balancing
[62] There is no automatic exclusion rule for a breach of the right to counsel as the inquiry is specific to the circumstances of the case: R. v. Omar, 2019 SCC 32; R. v. Hobeika, 2020 ONCA 750.
[63] The final steps in the s. 24(2) analysis involves balancing the factors under the three lines of inquiry. The balancing is a qualitative one, not capable of mathematical precision. The cumulative weight of the first two lines of inquiry must be balanced against the third line of inquiry. Where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldomly tip the balance in favour of admissibility. Conversely, if the first two inquiries together reveal weaker support for exclusion of the evidence, the third inquiry will most often confirm that the administration of justice would not be brought into disrepute by admitting the evidence: R. v. Lafrance, 2022 SCC 32, at para. 90; R. v. Beaver, at para. 134; R. v. Tim, at para 98; R. v. Le, 2019 SCC 34 at para. 142; R. v. McColman, 2023 SCC 8 at para. 74.
[64] There is nothing about the police conduct in this case that cries out for the court to distance itself for fear of being taken as condoning it. Mistakes were made. The police could have done a better job. However, given the minor impact on Mr. Mohamed’s Charter rights and the strong public interest in a trial on the merits, the balancing of the Grant factors is strongly weighted towards admitting the evidence. I am confident that admitting the evidence in these circumstances is in the interests of justice and would not cause an informed member of the public to lose respect for the justice system.
[65] The application to exclude the firearm, ammunition and the breath results is dismissed. The evidence is admissible at trial.
The Substantive Charges
[66] Having dismissed the Charter application, the remaining issue for me to decide is whether the Crown has proven the charges beyond a reasonable doubt.
Relevant Legal Principles
[67] Mr. Mohamed is presumed innocent. There is no obligation on him to do anything to establish his innocence. The presumption of innocence remains in place unless and until the Crown has proven each essential element of the offences beyond reasonable doubt.
[68] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence, or the lack of evidence. Reasonable doubt requires more than mere probability. Although it cannot be described with mathematical precision, reasonable doubt is a high standard consistent with its role as a safeguard against wrongful convictions. At the same time, reasonable doubt does not require proof beyond all doubt nor is it proved to an absolute certainty. Based on the totality of the evidence, I must be sure of guilt before I convict. Anything less must result in an acquittal.
[69] Support of the firearms and ammunition counts is grounded on the Crown proving that Mr. Mohamed was in possession of the loaded firearm found in the ravine. To that end, the case is entirely circumstantial. There is no forensic evidence linking Mr. Mohamed to the firearm. Accordingly, the principles enunciated by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33 apply.
[70] To return a guilty verdict, I must be satisfied that the only reasonable inference that can be drawn from the circumstantial evidence is that Mr. Mohamad is guilty. When assessing the circumstantial evidence, I must consider "other plausible theories" and "other reasonable possibilities" which are inconsistent with guilt. However, the Crown does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": Villaroman, at para. 37. As the Supreme Court of Canada noted"the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty": Villaroman, at para. 38 and R. v. Megill, 2021 ONCA 253, at para. 42.
[71] In R. v. Kruk, 2024 SCC 7, at para. 68, the Supreme Court held that it is an error of law for a trier of fact to fail to distinguish between a rational conclusion as to reasonable doubt based on evidence, and an unsupported conclusion based on conjecture. In determining whether the Crown has met that burden in a circumstantial evidence case, I must apply logic and common sense to the totality of the evidentiary picture, including gaps, and consider whether other reasonable possibilities not only exist, but preclude a finding that an inference of guilt is the only reasonable inference available: R. v. Ali, 2021 ONCA 362, at paras. 97.
Firearm and Ammunition Counts
[72] Both parties agree that the only live issue with respect to firearms and ammunition counts is whether the Crown has proved beyond a reasonable doubt that Mr. Mohamed possessed the firearm.
[73] The defence submits that there is another reasonable explanation for the firearm being found in the ravine – it was left there by someone else. It was submitted that the firearm was found in weathered condition, partially concealed under the leaves, suggesting that it had been exposed to the environment for some time. Moreover, the firearm was not located in the same general area where Mr. Mohamed was seen to be disposing something. The defence submits that when all the evidence is considered, the inference that Mr. Mohamed was disposing the firearm is not the only reasonable inference to draw from the evidence.
[74] The Crown submits that the only reasonable inference that can be drawn from the evidence is that Mr. Mohamed possessed the firearm. He was seen throwing a dark object that was removed from the front of his pants. Further, a firearm was in the same general area where Mr. Mohamed was seen to have discarded something. The Crown submits that, given its value, it does not make sense that someone else would have abandoned the firearm. Moreover, it is improbable that someone else happened to abandon a firearm in the same location where Mr. Mohamed was seen to be throwing away an item.
[75] It may seem improbable that another firearm would happen to be abandoned in the same general location where Mr. Mohamed is seen to dispose of a dark object. However, for the reasons that follow, the defence position is, in my view, plausible.
[76] Firstly, as the photograph below reveals, the firearm was weathered and found almost entirely buried under bushes and leaves. The muzzle, the top of the firearm and the handle are almost covered. The debris on top of it suggests that someone had previously attempted to conceal the firearm and that it had been there for some time.
[77] Moreover, a close examination of the body cam footage reveals that the firearm was found north of where Mr. Mohamed was seen to be making a throwing motion. The body cam video revealed Mr. Mohamed making a throwing motion at the 8th fence post north of the “no stopping” sign at the side of the DVP. However, the firearm was found approximately 5 or 6 fenceposts north of there. It would have had to travel a significant distance north from where it was seen to be thrown. Moreover, Mr. Mohamed is throwing something to his side (to the east) as he ran north. It is difficult see how, if thrown eastbound, the firearm could have then travelled 5-6 posts north to a final resting place buried beneath the leaves.
[78] The condition of the firearm and the location where it was found may very well explain why Officer Aikman’s immediate reaction to finding it was “How the heck did it get there?” Although it is possible that the firearm could have travelled the distance it did, I cannot say that it is the only reasonable inference to draw. Officer Aikman estimated that the firearm was located eight to ten feet east of the guardrail, down the lower incline and in the ditch. It would have had to travel this distance through what he described as being tightly knitted shrubbery with thorny bushes. This would have been a difficult route for the firearm to travel to its final resting place partially buried under the leaves.
[79] The possibility that Mr. Mohamed was throwing something other than a firearm is enhanced by the fact that the object being thrown is not visible in the video. Moreover, PC Clarke never saw what Mr. Mohamed was discarding. He certainly could not say that it was a firearm. He could not describe the shape or size, only that the object was black. Indeed, his initial report to Officer Aikman at the scene was that Mr. Mohamed threw dark “stuff.”
[80] The Crown suggests that I can rely on Mr. Mohamed’s flight from police as circumstantial evidence supporting the fact it was his firearm. While there is no doubt his flight from police suggests that he was looking to get rid of incriminating evidence, I cannot say that the only reasonable inference is that it was gun he was looking to dispose. Mr. Mohamed could very well have been looking to discard other evidence such as drugs or drug paraphernalia. Given officer Aikman’s evidence that Lokie may have missed items, I cannot be sure that there was no other incriminating evidence in the area. Perhaps if the police followed the advice to conduct a more thorough search, I would be. However, their failure to do so leaves me in some doubt.
[81] In the absence of any forensic evidence linking Mr. Mohamed to the firearm and ammunition found, I cannot conclude that guilt is the only reasonable conclusion available on the totality of the evidence. The possibility of the firearm belonging to someone else is an inference that may be drawn from the whole of the evidence and that I cannot exclude beyond a reasonable doubt.
Impaired Driving and Over-80
[82] Given that the breath samples have been ruled admissible, the defence acknowledges, and I agree, that the Crown has proven the over-80 beyond a reasonable doubt.
[83] The remaining issue to decide is whether the Crown has proven that Mr. Mohamed was impaired while driving his car northbound on the DVP. In this regard the Crown need only prove any degree of impairment ranging from slight to great: R. v. Stellato (1993).
[84] In R. v. Bush, 2010 ONCA 554, Justice Durno, explained at paragraph 47 that “slight impairment” means a “reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road”. Moreover, as noted in R. v. Reeves, 2018 O.J. No. 4431 at para 76, “The test does not involve a scorecard noting which indicia are present and which are absent. It is the totality of the circumstances which much be considered”.
[85] I must also be mindful that evidence that a person’s functional ability is affected does not automatically mean that their ability to drive is also automatically impaired: R. v. Andrews, 1996 ABCA 23 at para 23. I must consider the totality of the evidence in determining if a person’s ability to operate a motor vehicle is impaired, and not look at every piece of evidence individually.
[86] When the evidence is viewed in its entirety, I am satisfied that Mr. Mohamed’s complex motor functions necessary to operate a motor vehicle were impaired by alcohol. He had a strong odour of alcohol and physical indica of impairment, including having glassy eyes and staring blankly when speaking with PC Clarke. Further, there is ample evidence that Mr. Mohamed’s fine motor skills were compromised that night as demonstrated by his weaving within the lanes of traffic for an extended period and his fluctuation of speed while driving northbound on the DVP.
[87] In my view the Crown has proven beyond a reasonable doubt that Mr. Mohamed’s ability to operate a motor vehicle was impaired by alcohol.
Conclusion
[88] In summary, on Information 24-48107272, Mr. Mohamed is found guilty of Counts 1, 2, 12 and 13. He is found not guilty on Counts 3, 4, 5, 6, 7, 8, 9, 10 and 11. He is also found not guilty on Count 1 on Information 24-48107273.
Released: June 11, 2025
Signed: Justice Seth Weinstein