HER MAJESTY THE QUEEN v. LIIBAAN ABDI YUSUF, RASHID AHMED, and OSAGIE JEFFREY ISAAC

COURT FILE NO.: CR – 0254/18 DATE: 2019-10-22

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

LIIBAAN ABDI YUSUF, RASHID AHMED, and OSAGIE JEFFREY ISAAC

COUNSEL:

Patricia Garcia, for the Crown/Respondent

R. Craig Bottomley, for the Accused/Applicant Liibaan Abdi Yusuf Jeffrey Reisman, for the Accused/Applicant Rashid Ahmed Adele Monaco, for the Accused/Applicant Osagie Jeffrey Isaac

HEARD: August 19, 21, 26–29, 2019

BEFORE: P.J. Monahan J.

REASONS FOR JUDGMENT

[1] Liibaan Abdi Yusuf, Rashid Ahmed and Osagie Jeffrey Isaac stand charged with various firearms-related offenses arising from the seizure of a firearm from an automobile in which they were occupants on the evening of March 23, 2017. They applied to have the firearm excluded from evidence on the basis that it had been obtained in violation of their rights as guaranteed by ss. 8, 9, 10 (a), 10 (b) and 24 (2) of the Canadian Charter of Rights and Freedoms. They also argued that the breaches of their constitutional rights were sufficiently egregious that the proceedings against them should be stayed pursuant to s. 24 (1) of the Charter. They further maintained that, even if the firearm was admitted as evidence at trial, the Crown has failed to establish their guilt beyond a reasonable doubt of the offenses charged.

[2] The Crown indicated that the officer who located the firearm in the vehicle occupied by the three accused was unable to testify at trial. Accordingly, the Crown brought an application, pursuant to s. 715 of the Criminal Code,[^1] to have the officer’s evidence at the preliminary inquiry admitted at trial. After hearing evidence and argument on the Crown’s application, I dismissed the application and indicated that written reasons would follow. Those reasons are set out below.

[3] The accuseds’ Charter applications and the trial proper proceeded as a blended hearing. Accordingly, these reasons set out my findings both on the Charter issues as well as the substantive charges before the court.

[4] Part I provides an overview of the case.

[5] Part II sets out the charges before the court.

[6] Part III identifies the issues that arise in this proceeding.

[7] Part IV sets out my findings and conclusions with respect to the Crown’s s. 715 application.

[8] Part V sets out my findings and conclusions with respect to the Charter applications brought by the three accused.

[9] Part VI sets out my findings and conclusions with respect to the issues arising in the trial proper.

[10] Part VII sets out my disposition of the charges before the court.

I: Overview of the Case

[11] At approximately 8:16 PM on March 23, 2017, the superintendent of an apartment building at 3001 Finch Ave. West in Toronto called 911 to report the sounds of four gunshots coming from just south of his address. The superintendent stated that shortly after hearing these gunshots he had observed a vehicle travelling westbound on Finch Avenue at a high rate of speed. He noted that the vehicle was possibly a dark blue or black four-door vehicle. He told the 911 operator that he had heard the gunshots about five minutes earlier.

[12] A few moments later a second individual called 911 to report that he had heard three or four gunshots coming from south of 3001 Finch Ave. W., on Ardwick Boulevard.[^2] The second caller said he had observed a dark coloured car, possibly a Charger, speed off and go into a plaza on the north side of Finch Avenue. The second caller also reported having seen a blue van take off from the scene, as well as a third car parked on Ardwick Boulevard with its hazard lights flashing.

[13] Numerous police scout cars were dispatched to the area. The first officers to arrive were PC Dohyuang Maing (“Maing”) and PC Wayel Allawneh “(Allawneh”), at approximately 8:24 PM. Upon arriving, Maing and Allawneh observed a Toyota parked on Ardwick Boulevard with its four-way flashers on. This car sped off southbound on Ardwick Boulevard before the officers were able to determine whether any of the occupants had been involved in the alleged shooting. The two officers followed and stopped the Toyota. After briefly questioning the driver they accepted his explanation that he was delivering pizzas in the area and allowed him to leave without further incident.

[14] Maing and Allawneh then returned to the apartment building at 3001 Finch Avenue West at approximately 8:28 PM. Video from a surveillance camera on the apartment building, as well as from the in-car cameras in the responding police vehicles, clearly show the interaction between the police officers and the three accused that occurred over the next few minutes.

[15] Maing’s and Allawneh’s scout car can be seen parking at the curb immediately in front of 3001 Finch Avenue West at approximately 8:28:30 PM. Just at that moment, a black Dodge Charger travelling south on Ardwick Boulevard from Finch Avenue West pulled into the driveway of 3001 Finch Ave. W. and parked in front of the building. The driver of the vehicle, Rashid Ahmed, got out of the Charger and walked toward the front door of the apartment building. He appeared to be talking on his cell phone.

[16] Allawneh can be observed exiting the scout car and calling out to Mr. Ahmed, who walked back toward Allawneh. Allawneh and Ahmed then engaged in conversation. After a few moments, Maing exited the scout car and walked towards Allawneh and Ahmed.

[17] At 8:29:13 PM a second scout car arrived containing PC AB[^3] and PC Greg Mangiardi (“Mangiardi”). AB exited his scout car and, at 8:29:35 PM, he and Allawneh approached the passenger side of the Charger, while Maing stood beside Mr. Ahmed.

[18] There were two other occupants of the Charger, Mr. Isaac, who was seated in the front passenger seat, and Mr. Yusuf, who was seated in the right rear passenger seat. AB and Allawneh can be seen standing on the passenger side of the Charger; they appear to be engaging in conversation with Mr. Yusuf and Mr. Isaac, who at this point were still seated in the vehicle. At 8:30:44 PM, Mr. Yusuf and Mr. Isaac exited the vehicle and are each subjected to a patdown search.

[19] When Mr. Yusuf exited the Charger he left the right rear passenger door open. At approximately 8:31:25 PM, AB walked back toward the Charger and can be observed sticking his head through the open rear door and into the rear portion of the vehicle. After approximately seven seconds he stood back up, called out that he has seen a firearm, and ordered the arrest of the three occupants.[^4]

[20] Following this arrest, police sealed the Charger. A search warrant was subsequently obtained and the resultant search led to the seizure of a loaded restricted firearm with an extended magazine, located on the floor of the vehicle immediately in front of the rear passenger seat where Mr. Yusuf had been sitting.

II. Charges

[21] All three accused have been charged with the following nine Criminal Code offenses:

1. careless use of a firearm, contrary to s. 86 (1);

2. possession of a weapon for a dangerous purpose, contrary to s. 88 (1);

3. possession of a prohibited device for a dangerous purpose, contrary to s. 88 (1);

4. unauthorized possession of a restricted firearm, contrary to s. 91 (1);

5. possession of a restricted weapon knowing its possession is unauthorized, contrary to s. 92 (2);

6. possession of a prohibited device knowing its possession is unauthorized, contrary to s. 92 (2);

7. occupying a motor vehicle knowing that there was in that vehicle a restricted firearm, contrary to s. 94 (2);

8. occupying a motor vehicle knowing that there was in that vehicle a prohibited device, contrary to s. 94 (1); and

9. unauthorized possession of a loaded restricted firearm, contrary to s. 95 (1);

[22] In addition, Mr. Isaac is charged with possession of a firearm while subject to a s. 109 (1) Prohibition order, contrary to s. 117.01 (1).

[23] The Crown’s theory of the case is that Mr. Yusuf was in possession of the firearm in the Dodge Charger, and that he placed it under the passenger seat immediately in front of him in order to conceal it from police. Accordingly, Crown counsel indicated that she wished to proceed with counts 1 to 6 and count 9 (the firearm possession counts) against Mr. Yusuf only. Further, in the event that Mr. Yusuf is found to be in the possession of the firearm, the Crown will not pursue counts 7 and 8 against Mr. Yusuf.

III. Issues

[24] The following pre-trial issues arise in this proceeding:

1. Should the preliminary inquiry testimony of AB be admitted at trial, pursuant to s. 715 (1)?

2. Were the three accused unlawfully detained and searched, contrary to s. 9 of the Charter?

3. With respect to AB’s warrantless search of the Dodge Charger;

(i) do Mr. Isaac and Mr. Yusuf, as passengers in Mr. Ahmed’s vehicle, have standing to challenge the search of the vehicle under s. 8 of the Charter?

(ii) was AB’s search of the motor vehicle contrary to s. 8 of the Charter?

4. Did the police officers fail to promptly inform the three accused of the reasons for their detention and arrest, contrary to s. 10 (a) of the Charter?

5. Did the police officers fail to properly advise the accused of their rights to counsel, contrary to s. 10 (b) of the Charter?

6. In the event that any of the Charter-protected rights of the accused were violated, should the firearm that was seized as a result of the search by AB be excluded at trial, pursuant to s. 24 (2) of the Charter?

7. Should the proceedings be stayed on the basis of s. 24 (1) of the Charter?

[25] With respect to the trial proper, the following matters were agreed pursuant to an Agreed Statement of Facts: (i) Rashid Ahmed, Osagie Isaac and Liibaan Yusuf occupied a black Dodge Charger on the evening of March 23, 2017; (ii) the firearm located in the Dodge Charger on March 23, 2017 was a Restricted Firearm pursuant to the Criminal Code; (iii) the firearm was loaded with a magazine holding 26 cartridges of 9 mm centrefire ammunition, and these cartridges are ammunition pursuant to the Criminal Code; (iv) the detachable box magazine that was loaded into the firearm is capable of holding more than 10 rounds of 9 mm ammunition, and is a Prohibited Device pursuant to the Criminal Code; (v) on March 23, 2017, Liibaan Yusuf was not the holder of a valid Firearms Registration Certificate or Firearms Acquisition Certificate or License;[^5] (vi) there was no valid Registration Certificate in place for the firearm seized in the Dodge Charger; and (vii) on March 23, 2017, Osagie Isaac was bound by a weapons prohibition pursuant to s. 109 of the Criminal Code.

[26] The Crown tendered three witnesses, Officers Allawneh, Maing and Mangiardi, along with a number of exhibits. No evidence was tendered by the defence.

IV. Should the Preliminary Inquiry testimony of AB be admitted at Trial Pursuant to [s. 715](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec715_smooth) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)?

[27] Prior to the commencement of the trial, the Crown brought an application pursuant to s. 715 (1) of the Criminal Code to have the preliminary inquiry evidence of AB admitted at trial. The Crown indicated that AB was too ill to testify on account of the fact that he was currently suffering from PTSD, arising from certain shooting incidents. AB had testified at the preliminary inquiry in the presence of the three accused and each of them had had a full opportunity to cross-examine him. Accordingly, the Crown maintained that it had satisfied the requirements of s. 715 and his preliminary inquiry evidence should be admitted.[^6]

[28] Section 715 (1) provides in relevant part as follows:

Where, at the trial of an accused, a person whose evidence was given… on the preliminary inquiry into the charge,… if facts are proved on oath from which it can be inferred reasonably that the person… (c) is so ill that he is unable to… testify… and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness.

[29] In this case, AB testified at the preliminary inquiry on June 20, 2018 in the presence of the three accused and each of them had a full opportunity to cross-examine him. Thus, the principal remaining issue for purposes of the s. 715 application is whether “facts [have been] proven on oath from which it can be inferred reasonably that [AB] is so ill that he is unable to testify.”[^7]

[30] I note that s. 715 requires proof, on oath, of facts from which it can be “inferred reasonably” that AB is unable to testify on account of illness. No doubt this standard was chosen by Parliament since it would not be appropriate, given the nature of the application, to examine the prospective witness and determine directly whether he or she is actually able to testify at trial. Rather, what must be proven are facts from which a reasonable inference can be drawn to the effect that the witness is unable to testify at the trial.

[31] Nevertheless, in my view where it is claimed that a witness is unable to testify on account of illness, the existence of that illness must be proven on a balance of probabilities. Otherwise the necessary factual foundation upon which the s. 715 application is advanced would be lacking.

[32] In this case, the Crown takes the position that AB is suffering from PTSD as a result of two separate shooting incidents involving AB, the first on June 20, 2017 and the second on November 21, 2018. (Neither of these shooting incidents involved any of the accused before the court in this proceeding.) The Crown filed various materials to substantiate that the shooting incidents took place, including a transcript setting out the Reasons for Sentence arising from the June 20, 2017 incident, as well as the Information and a Synopsis for a Guilty Plea in relation to the November 21, 2018 incident.

[33] The Crown also tendered an August 6, 2019 letter from a Case Manager in the Mental Stress Injuries Program of the Workplace Safety & Insurance Board (the “WSIB”). This letter stated that AB has had a “recurrence of his PTSD claim” and that he has been receiving healthcare benefits and participating in active treatment since February 27, 2019. The letter also stated that AB “remains symptomatic to a degree, which precludes a return to work at this time” and that he should not be exposed to high stress situations, including testifying in court, “per the last progress report received to the claim file”.

[34] The Crown further filed an affidavit from George H. Cowley, General Counsel for the Toronto Police Association (“TPA”). In this affidavit, Mr. Cowley affirmed that he is aware that AB is off work for health reasons and that his situation is being managed by the WSIB. Mr. Cowley further affirmed that AB is unfit for duties of any kind, including testimony at trial, and there is no date upon which it can be said he will be fit to resume his duties.

[35] In my view, none of these materials provides the necessary factual foundation for the Crown’s s. 715 application.

[36] The materials relating to the 2017 and 2018 shooting incidents involving AB are of assistance in terms of explaining how it is that AB came to experience PTSD. As such, they provide useful background information. However, these materials do not themselves speak to whether AB is currently suffering from PTSD.

[37] Although the letter from the Case Manager at the WSIB stated that AB is suffering from PTSD and that he is unable to testify, it is not evidence on oath, which is an express requirement of s. 715. Nor was the author of the WSIB letter made available for cross-examination.[^8] Moreover, the letter is not from a medical professional qualified to give an opinion as to AB’s mental condition. Rather it merely reports on information in the claim file, including a “progress report” of an unknown date. The claim file itself, including the progress report referred to, was not provided. As such, the letter is merely hearsay evidence regarding the contents of AB’s WSIB claim file, which in my view is insufficient to prove that AB is currently suffering from PTSD.

[38] Mr. Cowley provided sworn testimony and was cross-examined as to the basis for his statement that AB is unable to testify for health reasons. He indicated that he had spoken with a consultant employed by the TPA who had advised him of AB’s current medical condition. However, Mr. Cowley had not spoken to any of the medical professionals currently involved in AB’s treatment, nor was he aware as to whether the TPA consultant had done so. Neither had Mr. Cowley reviewed AB’s medical file. As such, he had no direct knowledge of AB’s current medical condition.

[39] After hearing this evidence as well as submissions from counsel, I indicated my preliminary view that the Crown had failed to satisfy the requirements of s. 715. I then adjourned the application for a day to permit the Crown to adduce additional evidence in support of its application.

[40] After this adjournment, the Crown called a further witness, Ms. Jolene Heida, a Registered Social Worker who has been providing treatment to AB since December 2018. Ms. Heida received an MSW degree in 2004 and has 12 years of experience as a clinical social worker. She currently works for York Region Psychological Services, under the supervision of a psychologist, Dr. Hannah Rockman.

[41] Ms. Heida testified that she has been providing therapy on a weekly basis to AB since December 2018 in relation to symptoms of PTSD he has been experiencing. She indicated that in her opinion AB should not participate in high stress situations, including testifying in court. In her view this would likely exacerbate his traumatic stress symptoms and set his treatment back.

[42] On cross-examination, Ms. Heida explained that Dr. Rockman is responsible for diagnosing AB and determining his course of treatment. Ms. Heida did not diagnose AB with PTSD, nor is she able to determine whether AB is currently suffering from PTSD. Neither is she in a position to determine whether AB’s clinical condition has improved since December 2018. Any notes that Ms. Heida has made regarding AB are in AB’s medical file, which is in Dr. Rockman’s possession and control. Ms. Heida’s role is to provide therapy to AB under Dr. Rockman’s supervision.

[43] Upon the conclusion of Ms. Heida’s testimony, the Crown indicated its intention to bring a third-party records application to obtain AB’s medical file from Dr. Rockman, as well as to provide sworn testimony from Dr. Rockman. The Crown further advised that Dr. Rockman was currently out of the country but would be returning within a few days. Accordingly, I granted the Crown a further 2-day adjournment in order to make the necessary arrangements associated with the third-party records application.

[44] Upon reconvening, the Crown indicated that it was not proceeding with the third-party records application and that it was not tendering any further evidence on the s. 715 application.

[45] After hearing argument from counsel, I indicated that in my opinion the Crown had failed to satisfy the requirements of s. 715 and, accordingly, the application to admit AB’s preliminary inquiry testimony at trial was dismissed.

[46] I have already explained the reasons why the original evidence filed by the Crown (i.e. the WSIB letter and the evidence of Mr. Cowley) was insufficient to establish that AB is currently suffering from PTSD. With respect to the evidence of Ms. Heida, she testified in an entirely straightforward, genuine and direct manner. However, as she herself acknowledged candidly, she is not responsible for diagnosing AB with PTSD. Ms. Heida works under the supervision of Dr. Rockman, the medical professional responsible for his diagnosis and treatment plan. Nor does Ms. Heida have control over AB’s medical file, the contents of which have not been disclosed to the accused. Most importantly, Ms. Heida was unable to confirm that AB is currently suffering from PTSD.

[47] Dr. Rockman, as a Registered Psychologist, is licensed to (amongst other things) diagnose neuropsychological disorders and dysfunctions, and to treat such conditions.[^9] She has diagnosed AB with PTSD and is responsible for his treatment plan. However, the Crown was not able to provide any evidence from her with respect to AB’s current condition, nor did the Crown produce any medical documentation from AB’s file to establish his current condition.

[48] I have no doubt that the Crown’s application was brought and pursued in good faith. Moreover, as counsel for the Crown herself indicated, the testimony of AB is important for the Crown’s case. That said, it is similarly important for the defence to be provided the opportunity to cross-examine AB at trial, since AB was the officer who located the firearm. It is precisely because of the important interests at stake that Parliament has specifically mandated, through s. 715 of the Criminal Code, a series of conditions that must be satisfied before out of court testimony can be admitted at trial.

[49] Where it is alleged that a witness is unable to testify on account of a specific medical condition, the existence of that medical condition, and its impact on the ability of the witness to testify, must be established on a balance of probabilities. I find that the Crown has failed to meet this requirement in this case. While the evidence provided tends to support the conclusion that AB is suffering from PTSD, there is no direct evidence from a qualified medical professional that he is currently suffering from that condition. Nor do we have any evidence from a qualified medical professional indicating the impacts on AB from a requirement that he testify.

[50] I conclude that the Crown has failed to provide the necessary evidentiary foundation to support the s. 715 application. Accordingly, the application is hereby dismissed.

V. Charter Issues

A. Were the Three Accused Arbitrarily Detained and Searched, Contrary to [s. 9](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec9_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

1. Relevant Evidence

[51] As noted above, at approximately 8:28 PM on March 23, 2017, Allawneh observed Mr. Ahmed walking away from the parked Dodge Charger and towards the front door of 3001 Finch Avenue West. Allawneh called out to Mr. Ahmed, who turned around and walked back towards the officer. Allawneh explained to Mr. Ahmed that they were investigating reports of gunfire in the area and that his vehicle matched the description of a vehicle that may have been involved.

[52] Allawneh testified that while he was speaking to Mr. Ahmed, he noticed that there were two other occupants in the Charger. He left Mr. Ahmed in the custody of his colleague Maing and walked over to the passenger side of the Charger. Allawneh attempted to explain to the passengers the reasons for the police investigation and the possible involvement of a Dodge Charger in a reported shooting incident. However, the passengers were extremely argumentative and constantly interrupted him, with the result that he was not able to communicate his explanation to them. In Allawneh’s opinion, the argumentative and aggressive response of the passengers indicated to him that they were nervous.

[53] Allawneh also indicated that while he was speaking with the passengers, he recognized the occupant of the rear passenger seat as Liibaan Yusuf, an individual who had been mentioned in recent police bulletins regarding shooting incidents in the area. Allawneh could not recall the details of these bulletins, although the bulletins did indicate that Mr. Yusuf had been involved in prior firearms-related investigations.

[54] While Allawneh was attempting to engage the passengers in conversation, he was joined by AB, whose scout car had arrived on scene. AB took the lead in the interaction and explained to Mr. Yusuf and Mr. Isaac the fact that they were investigating reports of gunfire and the possible involvement of a Dodge Charger. Allawneh testified that eventually Mr. Yusuf and Mr. Isaac complied with their instructions to exit the vehicle, leaving both passenger doors open as they walked away from the vehicle.

[55] Allawneh conducted a patdown search of Mr. Isaac while AB conducted a patdown search of Mr. Yusuf. While AB was searching Mr. Yusuf, Mr. Yusuf provided the officer with his name. AB then left Mr. Yusuf in the custody of Mangiardi and walked back towards the Charger.

[56] AB stuck his head through the rear passenger door and looked into the area of the vehicle that had been occupied by Mr. Yusuf. At 8:31:32 PM, AB stands up, calls out to the other officers that he has discovered a firearm, and orders the arrest of the three occupants of the vehicle.

2. Warrantless Detention and Search

[57] It is conceded by the Crown that Mr. Ahmed was detained by Allawneh when the latter called out to Mr. Ahmed and began speaking with him at approximately 8:28 PM on March 23, 2017. It is further conceded that Mr. Yusuf and Mr. Isaac were detained by Allawneh when he began questioning them while they were still seated in the Dodge Charger. Allawneh testified that at this point he had formed the intention that it was necessary to investigate the possible involvement of the occupants of the Dodge Charger in the alleged shooting incident and, thus, they were not free to leave.

[58] The three accused/applicants argue that their warrantless detention and search was arbitrary and a violation of their rights under s. 9 of the Charter. They advance the following arguments in support of this position:

1. while the initial 911 call was made at 8:16 PM, the first caller indicated that he had heard gunshots five minutes earlier, namely, at approximately 8:11 PM. The three accused were not detained until approximately 8:29 PM, which is 18 minutes after the shots were heard by the caller. The accused contrast the facts here with those in R. v. Clayton, where police attended at the relevant scene within four minutes of a 911 call.[^10] They argue that by the time the officers in this case arrived on scene and detained them, the information provided by the 911 callers was stale;

2. neither 911 caller was able to provide a definitive description of the vehicle(s) involved in the incident. The first caller provided a generic description of a “dark coloured, four-door car”, while the second caller reported that the vehicle was “possibly” a Charger;

3. the 911 callers did not provide any description of the occupants of the vehicle; and

4. both 911 callers indicated that they had observed the vehicles involved to be speeding away from the scene. When observed by the officers, the Charger was parked in front of 3001 Finch Avenue West. The accused argue that the Charger’s geographic location was not consistent with that described by the 911 callers.

[59] The accused argue that, based on these considerations, there was an insufficient basis for them to be detained by the officers.

3. Governing Principles

[60] The relevant governing principles applicable to investigative detentions are not in dispute. As the Supreme Court of Canada affirmed in R. v. Mann,[^11] even in the absence of a warrant, police have a limited power to detain individuals in order to investigate their involvement in criminal activity. However, the burden is on the Crown to demonstrate that there are sufficient grounds to justify any such warrantless interference with an individual’s liberty.

[61] In particular, two conditions must be satisfied. First, the detention must be premised upon reasonable grounds. This means that the detention “must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offense.”[^12]

[62] Second, the detention must be carried out in a reasonable manner. Investigative detentions should generally be of brief duration, and the detained individual is under no obligation to answer questions posed by the police.[^13] The reasonableness of an investigative detention must be assessed in light of all the circumstances, notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty that is being interfered with, and the nature and extent of that interference.

[63] The power to detain for investigative purposes does not automatically entail a right to conduct a search of the detainee. However, in R. v. Mann, the Supreme Court of Canada determined that, in certain circumstances, a police officer has a common-law power to search a detainee incident to an investigative detention.[^14] Iacobucci J. held that where the officer believes on reasonable grounds that his or her own safety, or the safety of others, is at risk, the officer may conduct a pat-down search to ensure that the detainee does not have a weapon. However, this power to search cannot be justified on the basis of a vague or nonexistent concern for safety, nor can the search be premised upon hunches or mere intuition.[^15] Moreover, the search must be conducted in a reasonable manner.

[64] In Mann, Justice Iacobucci found that the police officers in that case had reasonable grounds to detain the accused. He closely matched the description of the suspect given by radio dispatch and was only two or three blocks from the scene of the reported crime. Therefore, the initial decision to detain the accused was legally justified.

[65] The police power to detain for investigative purposes was further considered by the Supreme Court of Canada in R. v. MacKenzie.[^16] Justice Moldaver noted that in the context of detention, “reasonable grounds” means reasonable grounds to suspect that an individual is involved in particular criminal activity. Justice Moldaver emphasized that this “reasonable suspicion” standard, which involves a matter of possibilities, must be distinguished from reasonable grounds to believe that an individual is or has been involved in a particular offense, which involves a matter of probabilities.[^17]

[66] Justice Moldaver further observed that the mere fact that a police officer may have a sincerely held subjective belief that an individual has been involved in particular criminal activity is insufficient to satisfy the “reasonable suspicion” standard. Rather, reasonable suspicion must be grounded in “objectively discernible facts which can then be subjected to independent judicial scrutiny.”[^18] That said, a police officer is entitled to draw upon his or her training and experience in assessing whether the reasonable suspicion standard has been met.[^19]

[67] Justice Moldaver cautioned against courts “upping the ante for reasonable suspicion to the point that it virtually mirrors the test for reasonable and probable grounds.”[^20] Moreover, reasonable suspicion must be assessed against the totality of the circumstances. Nevertheless, while “reasonable suspicion” is a lower standard than “reasonable and probable grounds”, both concepts must be grounded in objective facts that stand up to independent scrutiny.[^21]

4. Application of Governing Principles

[68] Officer Allawneh believed he had reasonable grounds to detain the occupants of the Dodge Charger to investigate their potential involvement in the gunshots that had been reported. He noted that reports of gunshots constitute one of their highest priority radio calls. The Dodge Charger matched the vehicle description that had been provided by the second caller, and it was observed at the very location where the 911 calls had originated. While Allawneh did not know whether the occupants of the Charger themselves had discharged a firearm, he believed he had an obligation to investigate to determine their possible involvement.

[69] The question that arises is whether Allawneh’s subjective belief that he had lawful grounds to detain the occupants of the Charger was objectively reasonable. I have little difficulty in concluding that it was reasonable in the circumstances.

[70] First, while the detention occurred approximately 18 minutes after the gunshots had been heard by the 911 caller, it was only 13 minutes after the initial call had been received by the police. Moreover, Maing and Allawneh were not assigned to the call until 8:18 PM, and they arrived on scene at 8:24 PM. It took them approximately four minutes to investigate the Toyota with the flashing lights, with the result that they arrived back at 3001 Finch Avenue West just prior to 8:29 PM.

[71] I find that the officers responded expeditiously and promptly to the 911 call. I further find that by 8:29 PM, it was entirely reasonable that they continue their investigation into the reports of gunshots in the area. This conclusion is reinforced by the seriousness of the incident under investigation. The surveillance footage indicates that at the time the gunshots were heard, numerous individuals (including a number of children) were walking nearby. Any of these innocent bystanders could have been seriously injured or killed by random gunfire. Given the serious risk to public safety, it was entirely appropriate for the officers to continue to investigate the incident by 8:29 PM, the point at which they detained the accused.

[72] It is true that neither 911 caller provided a definitive description of the vehicles involved in the incident. However, the second caller had stated that one of the vehicles was “possibly” a Dodge Charger. This was the very vehicle observed by the officers when they arrived on scene. In this sense, the officers in this case had much stronger grounds to detain the occupants of the Charger then did the police officers in Clayton, where the vehicle that was detained did not match the description of any of the vehicles that had been reported by a 911 caller. The fact that the Charger matched the description provided by the second 911 caller provided what Iacobucci J. in Mann described as the “clear nexus” between the vehicle’s occupants and the incident under investigation.

[73] I further find that the fact that the Charger was parked directly in front of 3001 Finch Avenue West reinforced the reasonableness of the officers’ decision to detain the vehicle’s occupants. The Charger was parked outside the very building where the 911 call had originated. The fact that one of the 911 callers had observed the Charger speeding away from the scene 18 minutes earlier did not preclude the possibility that the vehicle might have returned to that location.

[74] It is true that the officers did not know whether any gunshots had originated from the Charger. But the fact that a vehicle resembling a Dodge Charger was seen speeding away from the location where the gunshots were fired gave rise to a reasonable suspicion that the occupants had knowledge of what had occurred. Given the significant threat to public safety, I find that it was reasonable to detain the occupants of the Charger for further investigation.

[75] It remains to be determined whether the investigative detention was carried out in a reasonable manner. Investigative detentions must be brief in duration and cannot become a de facto arrest. In addition, there is no automatic right to conduct a search upon a detention. However, where a police officer believes on reasonable grounds that his or her own safety, or the safety of others, is at risk, a protective pat-down search is appropriate.

[76] In this case, the investigative detention was very brief, since AB discovered the firearm and ordered the arrest of the occupants within three minutes of their being detained. Moreover, it was entirely reasonable in the circumstances that the officers conduct a protective pat-down search for weapons. Given that a vehicle resembling a Dodge Charger was seen speeding away from the scene of the gunfire meant that the occupants might well have a firearm in the vehicle.

[77] I find that, in the totality of the circumstances, it was objectively reasonable for the officers to conduct a protective pat-down search of the occupants of the Charger. I also find that the search that was conducted of each of the three occupants was brief and non-intrusive and did not go beyond what was appropriate in the circumstances.

[78] These findings are sufficient in and of themselves to justify both the decision to detain the occupants and the manner in which the investigative detention, including the pat-down searches, was carried out. Nevertheless, Allawneh’s evidence regarding his initial interaction with Mr. Yusuf and Mr. Isaac provides additional support for the objective reasonableness of both the detention itself and the protective search that was undertaken.

[79] Allawneh testified that when he approached the vehicle, he immediately recognized Mr. Yusuf as an individual who had been mentioned in recent police bulletins involving shootings in the area. Allawneh was unclear as to whether Mr. Yusuf had been a suspected perpetrator or a victim in such prior incidents. Regardless, the fact that Mr. Yusuf may have been involved in previous shooting incidents in the recent past reinforced the reasonableness of the decision to conduct a protective pat-down search. As Allawneh testified, even if Mr. Yusuf had been a victim in these prior shooting incidents, this might have given him a reason to possess a weapon.

[80] Since we do not have the evidence of AB, it is not possible to determine whether AB was also aware of Mr. Yusuf having been mentioned in previous police bulletins involving firearms-related investigations. Nevertheless, I find that AB and Allawneh were jointly attempting to investigate the occupants of the Charger. Thus, Allawneh’s awareness of Mr. Yusuf’s involvement in these prior investigations is relevant in determining the objective reasonableness of the two officers’ conduct. It reinforces the fact that there were ample grounds for the officers to require Mr. Yusuf and Mr. Isaac to exit the vehicle and be subjected to a protective search for weapons.

[81] I find, therefore, that both the investigative detention as well as the manner in which it was carried out, including the pat-down searches, was reasonable in the circumstances and did not violate any of the accuseds’ Charter rights.

B. Warrantless Search of the Dodge Charger

[82] The accused claim that AB’s warrantless search of the Dodge Charger violated their rights under s. 8 of the Charter.

[83] A preliminary issue raised by the Crown is whether Mr. Yusuf and Mr. Isaac, as passengers in the vehicle being driven by Mr. Ahmed, have standing to raise a s. 8 claim in relation to the search of the Dodge Charger.[^22]

1. Do Mr. Yusuf and/or Mr. Isaac have standing to raise a s. 8 claim in relation to the search of the Dodge Charger?

[84] The Crown argues that Mr. Yusuf and Mr. Isaac, as mere passengers in the Dodge Charger, have no reasonable expectation of privacy in relation to the motor vehicle. Therefore, they have no standing to raise a s. 8 Charter claim in relation to the search of the vehicle.

[85] The Crown relies upon R. v. Belnavis,[^23] where the police had seized three garbage bags in the back seat of a motor vehicle containing clothing with price tags still affixed. A passenger in the motor vehicle was charged with possession of stolen property.[^24] When asked about the garbage bags, the passenger stated only that each of the occupants of the vehicle owned one of the bags. She did not identify any particular bag as hers, nor was there anything on the exterior of any of the bags indicating a connection to the passenger. Therefore, there was nothing to indicate that the passenger had an expectation of privacy in relation to any particular bag.

[86] The Supreme Court of Canada held that the question as to whether a passenger has a reasonable expectation of privacy in a motor vehicle depends upon the totality of the circumstances. Cory J., who wrote the majority opinion of the Court, stated that all of the relevant facts surrounding a passenger’s presence in the vehicle must be considered.

[87] Cory J. found that the passenger had no reasonable expectation of privacy in the vehicle itself. Her connection to the vehicle was extremely tenuous. She had no control over the vehicle and did not demonstrate any relationship with the owner or driver which would establish some special access to or privilege in regard to the vehicle.

[88] Nor could she claim a reasonable expectation of privacy in relation to the items seized, namely, the garbage bags containing merchandise. The passenger did not identify any particular bag as hers, nor was there any other connection between the passenger and the bags of merchandise. In short, there was nothing to indicate that she had an expectation of privacy in relation to any particular bag.

[89] The Crown argues that Mr. Yusuf and Mr. Isaac are in essentially the same position as was the passenger in Belnavis. There was no evidence indicating that either had control over the vehicle, nor was there evidence of any special relationship with the owner or driver establishing some special access or privilege in regard to the vehicle. Therefore, neither has standing to advance a s. 8 Charter claim in relation to the search of the vehicle.

[90] The difficulty with the Crown’s position (at least in relation to Mr. Yusuf) is that it fails to take account of Cory J.’s holding in Belnavis that a passenger in a motor vehicle may establish a reasonable expectation of privacy in relation to either the vehicle itself or to the thing seized.[^25] Unlike the passenger in Belnavis, Mr. Yusuf is in a position to assert a reasonable expectation of privacy in the firearm that was seized in this case.

[91] Mr. Yusuf’s privacy claim arises from the fact that the Crown takes the position that Mr. Yusuf had possession of the firearm and placed it under the passenger seat in front of him in order to hide it from the police. In R. v. Jones, the Supreme Court of Canada held that an accused mounting a s. 8 claim may ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him, in lieu of tendering evidence probative of those same facts in the voir dire.[^26] Therefore, Mr. Yusuf is entitled to assume as true for s. 8 purposes that he had the firearm in his possession and that he placed it under the passenger seat so as to prevent the police from discovering it.

[92] In order to establish a reasonable expectation of privacy, an accused must show a subjective expectation of privacy that is also objectively reasonable. Here, on the facts assumed, Mr. Yusuf clearly intended to maintain control over the firearm despite the fact that he left it under the passenger seat of the car when he exited the vehicle. Indeed, he placed the firearm under the seat precisely in order to avoid its detection by the police. Therefore, he had a subjective expectation of privacy in relation to the firearm.

[93] The remaining question is whether Mr. Yusuf’s subjective expectation of privacy in the firearm is objectively reasonable in the totality of the circumstances. In considering the ‘totality of the circumstances’, courts have emphasized a s. 8 claimant’s direct control over the subject matter of the privacy claim, as well as his or her ability to directly regulate access to it.[^27]

[94] As noted above, I find that Mr. Yusuf did not intend to relinquish control over or abandon the firearm when he placed it under the seat in front of him. Rather, he was attempting to hide the firearm precisely so that the police would not discover and seize it. After the police had departed, he could then get back into the vehicle and pick the firearm up. I find that, on these assumed facts, he maintained sufficient control over the firearm to have possession of it. As such, the facts in this case are distinguishable from those in which an accused is held to have abandoned bags or knapsacks, thereby dissolving any privacy interests in the contents.[^28]

[95] What of the fact that the motor vehicle had been leased by Mr. Ahmed[^29] and was being driven by him? As lessee, Mr. Ahmed had the legal right to control access by others to the vehicle; moreover, Mr. Ahmed had the right to access any part of the vehicle himself, including the location where Mr. Yusuf had placed the firearm.[^30] Thus it is clear that Mr. Yusuf did not have exclusive control over the firearm.

[96] However, the Supreme Court of Canada has emphasized on a number of occasions that it is not necessary for an individual to have exclusive control over the subject matter of the search in order to maintain a reasonable expectation of privacy in that subject matter. For example, in R. v. Reeves, the accused was found to have a reasonable expectation of privacy in a computer he shared with his spouse.[^31] Moreover, his spouse’s consent to the police seizure of the shared computer could not defeat Reeves’ privacy interest in it, since one person cannot waive another’s Charter rights.[^32]

[97] As Chief Justice Wagner noted recently in R. v. Jarvis, the purpose of s. 8 of the Charter is to protect individuals’ privacy interests from state intrusion.[^33] While expectations of privacy vis-à-vis other individuals may, in certain circumstances, be relevant to this analysis, ultimately it is the individual’s reasonable expectation of privacy vis-à-vis the state that is decisive in the s. 8 context. Unlike in relation to the shared computer in Reeves, there was no suggestion that Mr. Ahmed had purported to waive any privacy interest that Mr. Yusuf might have had in the firearm. Thus, the fact that Mr. Ahmed may have controlled access to the motor vehicle cannot defeat Mr. Yusuf’s privacy claim as against the police.

[98] Chief Justice Wagner also emphasized in Jarvis that “reasonable expectation of privacy” is a normative rather than a descriptive standard.[^34] Whether a person reasonably expects privacy depends upon the norms of conduct in our society. What must be determined is whether the privacy claim should be “recognized as beyond state intrusion absent constitutional justification if Canadian society is to remain a free, democratic and open society.”[^35] Moreover, the analysis turns on the strength of the privacy claim in relation to the subject matter of the search, not the legal or illegal nature of the items sought.[^36]

[99] It is true that courts have consistently recognized that persons driving or occupying a motor vehicle have a reduced expectation of privacy.[^37] But privacy is not an “all or nothing” concept. Simply because a person is in circumstances where he or she does not expect complete privacy does not mean that they have waived all expectations of privacy.[^38]

[100] Persons driving motor vehicles on public highways cannot reasonably expect that they can keep information or documentation relevant to their entitlement to drive the motor vehicle confidential from the police. At the same time, the driver as well as the occupants of a motor vehicle have a reasonable expectation that the police cannot stop and conduct a general search of the contents of the vehicle, including personal property they are carrying with them, without lawful justification. Any such generalized search power would be inconsistent with established s. 8 jurisprudence dating back to Hunter v Southam,[^39] and would be inimical to the values of a free, democratic and open society. As La Forest J. observed in Belnavis:

… [I]t is perfectly legitimate for drivers and passengers to carry their possessions into a car and reasonably to expect that these items will be protected from unjustified government prying. Indeed, sitting in a car with one’s possessions should be considered no different from walking down the street while carrying the same items in a bag or cart. A person’s expectation of privacy in relation to those items is the same.[^40]

[101] I am to assume as true for purposes of this application that Mr. Yusuf was carrying a firearm and placed it under the passenger seat in front of him in order to avoid detection by the police. I find that he had a subjective expectation of privacy that was objectively reasonable in the circumstances. Accordingly, Mr. Yusuf has standing to assert a s. 8 claim.

[102] In contrast, however, no such Charter claim can be raised by Mr. Isaac. The Crown does not assert that he had possession of the firearm or that he placed it under the seat in the Charger. Thus, he has no privacy interest in the firearm itself. Nor is there any basis for him to assert a privacy interest in the Dodge Charger. Accordingly, Mr. Isaac has no standing to bring a s. 8 claim in relation to the seizure of the firearm.

2. Was AB’s search of the Dodge Charger inconsistent with [s. 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec8_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

(i) Relevant Evidence

[103] As described above, AB and Allawneh had asked Mr. Yusuf and Mr. Isaac to step outside of the vehicle in order to do a pat-down search. Allawneh intended to search Mr. Isaac while AB was to search Mr. Yusuf.

[104] Allawneh testified that as he was searching Mr. Isaac, he noticed AB walking back towards the Charger and looking inside the rear passenger side of the vehicle. Before he could complete the pat-down search of Mr. Isaac, Allawneh heard AB call out that he had found a gun and that the three occupants should be arrested. Allawneh took Mr. Isaac down to the ground, put his knee on Mr. Isaac’s back to ensure he could not move, and handcuffed him. He then assisted Mr. Isaac back onto his feet and told him he was under arrest for unauthorized possession of a firearm.

[105] Although AB did not testify, his actions in relation to the search are visible on the video from the surveillance camera on the apartment building, as well as from the in-car camera in AB’s scout car parked a few feet behind and to the right of the Dodge Charger. The other officers who testified also made certain observations of AB.

[106] AB led Mr. Yusuf to a spot a few feet behind the Dodge Charger and conducted a pat-down search. Mangiardi walked over to assist AB. In the course of that search, Mangiardi heard Mr. Yusuf identify himself as Liibaan Yusuf. After completing a brief pat-down search of Mr. Yusuf’s exterior clothing, AB left Mr. Yusuf beside Mangiardi and walked back toward the Dodge Charger.

[107] AB was carrying a flashlight. He stuck his head into the rear door of the Charger. Although the video from the in-car camera in AB’s scout car is grainy, it appears to show AB using his flashlight to illuminate the floor area of the Charger immediately in front of the seat where Mr. Yusuf had been sitting. After approximately seven seconds, AB stood up, called out to the other officers that he has found a firearm, and directed the arrest of the three occupants.

(ii) Governing Principles

[108] To determine whether searches undertaken incident to an investigative detention are lawful, a court must consider the following: (i) whether the searches were authorized by a valid statute or valid rule of common law; and (ii) whether they were carried out in a reasonable manner.

[109] I have already determined that the pat-down searches of the three accused were lawful. The further issue that arises is whether AB’s search of the rear portion of the Dodge Charger where Mr. Yusuf had been seated was also in accordance with the Charter.

[110] In R. v. Plummer, the Court of Appeal held that the power to search incident to an investigative detention may extend beyond a pat-down search of the detainee.[^41] In Plummer, the police questioned the occupants of a car parked outside of a residence with known drug associations. The officers had seen the passenger in the vehicle bend down in a manner which they thought was consistent with concealing drugs. After learning the name of the passenger, one officer recalled a recent “officer safety alert” warning that an individual with this name was possibly armed with a handgun. A pat-down search revealed that the passenger was wearing a bulletproof vest but that he did not have a gun on his person. The officers subsequently searched a bag sitting on the floor of the vehicle, in front of the seat the passenger had occupied, where they found a gun.

[111] MacPherson J.A. would have dismissed the appeal on the basis that the passenger did not have standing to assert a s. 8 Charter claim. However, he also found that, in any event, the search of the bag in the vehicle incident to investigative detention did not infringe s. 8 of the Charter. In MacPherson J.A.’s view, the scope of the search power in such circumstances should be determined at the level of principle, as opposed to simply on the basis of the particular location of the search. He reasoned that, where there are continuing safety concerns after a pat-down search has been completed, it would be unrealistic and unreasonable to require the police to abandon their search, thereby exposing both the officers as well as the public to the risk of the detainee accessing a weapon.

[112] MacPherson J.A. noted that a similar logic has been followed by the U.S. Supreme Court. In particular, where police conducting a roadside stop have a reasonable belief that the detainee is dangerous and may have immediate access to a weapon, the U.S. Supreme Court has recognized a limited police power to search the passenger compartment of the motor vehicle. Any such search must be based on “specific and articulable facts” and can only extend to those areas of the passenger compartment of the vehicle in which a weapon may be placed or hidden.[^42]

[113] In Plummer, the detainee had been observed bending down in a manner suggesting that he had attempted to conceal something in the vehicle. Moreover, he was found to be wearing a bulletproof vest, and a recent safety alert had identified him as possibly having a firearm. In MacPherson J.A.’s view, these were “specific, articulable and reasonable safety concerns” justifying a further search for the gun in the immediate vicinity, including the passenger side of the car in which the detainee had been seated moments before. Accordingly, the search of the bag in the vehicle was consistent with s. 8 of the Charter.

[114] Sharpe J.A. (with whom Laskin J.A. concurred) agreed that the appeal should be dismissed on the standing issue and, in his view, the court should not deal with the “difficult and contentious issue of whether the limited power to conduct a pat-down search to ensure officer safety should be extended to permit the search of bags and vehicles.” However, Sharpe J.A. went on to observe that he would take “a somewhat different approach” than MacPherson J.A. on the s. 8 issue, although he agreed with MacPherson J.A. that, on the particular facts of the case, the search did not violate the passenger’s s. 8 Charter right.

[115] Sharpe J.A. emphasized the importance of maintaining a distinction between the narrowly focused and strictly limited protective search that may accompany an investigative detention, and the broader power to search consequent to a lawful arrest. In his view, the scope of a search incidental to an investigative detention should be confined within strict limits. Courts should resist the “understandable tendency to expand a narrow rule to endorse the police conduct being challenged, since the case before the court will always be one where the search actually yielded a weapon or some other valuable evidence.”[^43]

[116] Nevertheless, Sharpe J.A. agreed that, on the facts as found by the trial judge, there was a “legitimate serious concern that [Plummer] had immediate access to a weapon that he could use if the officers were to simply release him and return to their own vehicle.”[^44] He therefore agreed that the officers were entitled to search the bag in the car as an incident of the investigative detention to ensure their own immediate safety. However, he emphasized that this should not be read as giving the police “carte blanche power to permit searches of bags or vehicles incident to investigative detention” and that any such searches would require satisfactory proof of a “serious concern for officer safety that requires something more than the initial pat-down.”[^45]

[117] The reasoning in Plummer was confirmed and clarified in R. v. Lee.[^46] Here, police received a 911 call stating that there was a male of Asian descent, wearing a brown hat, possibly armed with a gun. The 911 caller said he had observed the individual sitting in a vehicle in a shopping centre parking lot, and police were provided with the make, model and license plate of the car. The caller also stated that he observed a large bag in the open trunk of the vehicle, and the caller suspected that this individual was dealing drugs out of the car.

[118] The responding police officers located a vehicle of the identified make and model and with identical license plates, in the vicinity of the shopping centre mentioned by the 911 caller. The car had a single male occupant who was of Asian descent and wearing a brown hat.

[119] After asking the driver to step outside of the car, the police performed a pat-down search for weapons and found none. One of the officers performed a search of the passenger cabin of the vehicle and did not find a gun. Another officer opened the trunk of the vehicle where he found a duffel bag. The officer lifted the bag and found it heavy. Thinking there could be guns inside, he unzipped it. No gun was located. However, the bag contained 23 kilograms of cocaine. The driver was arrested and charged with possession of cocaine for the purpose of trafficking.

[120] Weiler J.A., who wrote the majority opinion for the Court of Appeal, found that the search that was carried out was reasonably necessary to ensure the safety of the police and the public and, accordingly, did not violate s. 8 of the Charter. Weiler J.A. noted that while the 911 caller stated that he believed he saw the person sitting in the driver seat of the car with a gun, he also saw a large bag in the open trunk and suspected the person in the car was dealing drugs in a public area. When the officers approached the vehicle, the trunk was closed. The trial judge had found that the officers reasonably believed the person driving the car was probably the person who had closed the trunk. If the officers had allowed the driver to leave without searching the trunk, he would still have had access to any firearm located there. Weiler J.A. held that the only way for the officers to complete their duty to protect the public from the risk of harm was to search the trunk.

[121] Based on this developing jurisprudence, I conclude that in certain circumstances it will be objectively reasonable for the police to conduct a search incident to investigative detention that goes beyond a pat-down of the detainee’s person. However, the reasonableness of any such broader search will depend upon the nature of the safety concern at issue. The more specific, credible, and serious the safety concern, the greater the scope afforded to the police to extend their search beyond an initial pat-down of the detainee’s person. I would also note that this safety concern may arise either from the initial grounds that gave rise to the detention, or from facts uncovered during the course of the investigative detention.

(iii) Application of Governing Principles

[122] In my view, while the initial 911 calls were sufficiently serious to justify the investigative detention and associated pat-down search, standing on their own these calls were not sufficiently specific or credible to justify a further search of the vehicle.

[123] I have already noted the extreme seriousness of the 911 calls in this case. Reports of gunshots being fired out of a motor vehicle, in an area where significant number of unsuspecting members of the public are present (many of them children), raise a pressing and urgent threat to public safety.

[124] On the other hand, the 911 callers had not themselves witnessed a firearm being discharged but had merely heard what they believed to be the sound of gunfire. Moreover, the callers had seen a vehicle that was “possibly” a Dodge Charger speeding away from the scene. However, no information was provided as to the number, or descriptions, of the occupants, or which of them might have had a firearm.

[125] In these circumstances, while the police were certainly justified in detaining the occupants of the Charger for further investigation as well as conducting a protective pat-down search, the information provided in the 911 calls, in itself and standing on its own, would not have justified a further search of the vehicle.

[126] Significantly, however, the investigative detention resulted in the officers obtaining additional information that heightened the safety concerns regarding the occupants of the Charger. In particular, Allawneh recognized Mr. Yusuf as having been mentioned in recent police bulletins as being involved in shooting incidents. Further, Mr. Yusuf confirmed his identity while being patted down by AB. Although the bulletins in question were not entered as evidence, they were described as containing credible information about specific and recent incidents of gun violence.

[127] Allawneh did not recall whether the bulletins identified Mr. Yusuf as a suspect or as a victim in these recent incidents of gun violence. In Allawneh’s opinion, however, this should not matter, since victims in one incident might arm themselves in order to protect themselves in further confrontations, or to retaliate against those responsible.

[128] This direct link between Mr. Yusuf and recent incidents of gun violence, combined with the initial information provided by the 911 calls, brought the facts here much closer to those in Plummer. In my view, the initial serious safety concern had become sufficiently credible and specific so as to provide an objectively reasonable basis for a search of the area of the Charger in which Mr. Yusuf had been sitting. If Mr. Yusuf had been carrying a firearm when the police arrived, he would have had the opportunity to hide the firearm in the vehicle before exiting. A police officer with such knowledge would have been justified in searching the area of the vehicle accessible to Mr. Yusuf, including the area under the passenger seat immediately in front of him, in order to ensure that this had not happened.

[129] I would further observe that the search conducted by AB was in fact limited to this area of the vehicle. The video from the in-car camera in AB’s scout car shows him sticking his head into the vehicle and shining his flashlight onto the floor area immediately in front of the seat that Mr. Yusuf had been occupying. After a few seconds, he calls out that he has seen a firearm and the three occupants are arrested.

[130] Counsel for the accused argued that, based on their viewing of the video, AB had not just shone his flashlight on the floor of the vehicle, but had actually reached under the front passenger seat with his arm and pulled the firearm out so that it was partially visible. Having considered the submissions of counsel on this particular issue carefully, and having reviewed the video numerous times, I find that AB merely shone his flashlight on to the rear passenger floor area, and did not reach under the seat.[^47] Regardless, even if AB had gone further and reached under the seat, he would have been fully justified in doing so since this area of the vehicle was easily accessible to Mr. Yusuf and he could have attempted to hide a firearm there.

[131] I therefore conclude that, on the assumption that AB was aware of the fact that Mr. Yusuf had been mentioned in recent police bulletins as being involved in recent incidents of gun violence, he would have been justified in conducting a search of the area within the Dodge Charger that had been accessible to Mr. Yusuf. The difficulty, however, is that AB did not testify at the voir dire. Thus, it is not possible to make a finding as to the specific grounds relied upon by AB when he decided to search the Charger. In particular, it is not known whether AB had seen or recalled the police bulletins which identified Mr. Yusuf as having been involved in recent incidents of gun violence. Nor did Allawneh mention those police bulletins to AB. Thus, it is entirely possible that AB searched the vehicle solely on the basis of the information provided in the 911 calls, which I have found to be an insufficient foundation for the vehicle search.

[132] The seminal case of Mann makes it clear that a warrantless search incident to an investigative detention requires that the officer(s) conducting the search subjectively believe that it is justified on safety grounds. Where the officer who conducted the search does not explain the subjective grounds that prompted the search, and those grounds cannot be discerned from other evidence, it is simply not possible to satisfy this element of the Mann test.

[133] Ultimately, therefore, I find that the Crown is unable to justify AB’s warrantless search of the Dodge Charger. Accordingly, the search violated Mr. Yusuf’s and Mr. Ahmed’s right to be secure against unreasonable search and seizure as guaranteed by s. 8 of the Charter.

C. Did the Police Officers Fail to Promptly Inform the Three Accused of the Reasons for Their Detention, Contrary to [s. 10 (a)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec10paraa_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[134] Although this issue was raised by the accused in their pleadings and written argument, the uncontradicted evidence disclosed that the officers attempted to promptly inform the three accused of the reasons for their detention. In particular, Allawneh testified that when he first spoke to Mr. Ahmed, he told him that he was investigating reports of gunshots in the area and that Mr. Ahmed’s vehicle matched the description of one of the vehicles involved in the incident. Allawneh also testified that immediately upon approaching Mr. Yusuf and Mr. Isaac, he attempted to explain to them that they had been detained in connection with an investigation of a report of gunshots in the area. However, Mr. Yusuf and Mr. Isaac were talking over Allawneh and asking numerous questions, making it impossible for him to effectively communicate the reasons for the detention. Allawneh testified that when AB arrived, AB was able to advise Mr. Yusuf and Mr. Isaac of the reasons for the detention.

[135] I see no support in the evidence for the claim that the police failed to promptly inform the three accused of the reasons for their detention. Accordingly, I find that there was no violation of s. 10 (a) of the Charter.

D. Did the Police Officers Fail to Promptly Advise the Accused of their Right to Counsel, Contrary to [s. 10 (b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec10parab_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[136] Section 10 (b) of the Charter states that “[e]veryone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.”

[137] In R. v. Suberu,[^48] the Supreme Court of Canada held that the phrase “without delay” for the purposes of s. 10(b) of the Charter means “immediately”. However, this is subject to concerns for officer or public safety. Police officers cannot be expected to advise detained or arrested individuals about their constitutional rights at a time when they reasonably believe that to do so would place their safety, or the safety of members of the public, at risk.

[138] In this case, it appears that none of the accused was advised of their right to counsel while they were being detained for investigation, a period of approximately three minutes. Once arrested, they were each advised of the right to counsel. As such, it is clear that the three accused were not advised of the right to counsel “immediately”. The question is whether this delay of approximately three minutes can be justified on the basis of concerns over officer or public safety.

[139] The investigative detention was a fluid and dynamic situation in which the officers were attempting to establish control over the three detainees. Given the reports of gunshots, there were serious concerns about the possibility that one of the occupants of the vehicle was armed with a firearm. It took some time for AB and Allawneh to persuade Mr. Yusuf and Mr. Isaac to exit the vehicle so that they could conduct a patdown search. Allawneh was not even able to complete his patdown search of Mr. Isaac before AB called for the arrest of the occupants. Not only were the officers concerned with the possibility that the suspects were carrying a firearm, they were also aware that a firearm could have been hidden in the Charger. The passenger doors to the Charger had been left open while the pat-down searches were being conducted and the interior of the vehicle was therefore accessible to the three suspects.

[140] In my view, this brief delay in informing the accused of their right to counsel was fleeting and de minimis. The officers were proceeding in good faith with their overriding concern being to ensure that none of the occupants of the vehicle was armed with a firearm. I also regard it as significant that there were three detainees, which complicated the situation and heightened concerns over officer and public safety. The accused were immediately informed of the right to counsel upon being arrested.

[141] I therefore find that there was no violation of the right to counsel guaranteed by s. 10 (b) of the Charter.

E. Should the Firearm be Excluded under [s. 24 (2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec24subsec2_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[142] Having found a violation of Mr. Yusuf’s and Mr. Ahmed’s Charter rights, it is necessary to consider whether the firearm seized as a result of the search should be excluded at trial through the operation of s. 24(2) of the Charter.

1. Governing Principles

[143] Section 24(2) of the Charter provides that, where evidence was obtained in a manner that infringes or denies any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, its admission in the proceedings would bring the administration of justice into disrepute.

[144] As the Supreme Court of Canada determined in Grant, the court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system, having regard to:

(i) The seriousness of the Charter-infringing state conduct;

(ii) The impact of the breach on the Charter-protected interests of the accused; and

(iii) Society’s interest in the adjudication of the case on its merits.

[145] In considering the first prong of the test, namely, the seriousness of the Charter-infringing state conduct, the court must consider whether the admission of the evidence would send a message to the public that the courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct leading to the Charter violation, the greater the need for the courts to dissociate themselves from the conduct by excluding the evidence. The goal is not necessarily to punish the police or deter Charter breaches, but rather to preserve public confidence in the rule of law and its processes.[^49]

[146] With respect to the second prong of the governing test, the impact of the Charter violations, the court must assess the extent to which the breach undermined the Charter-protected interests of the accused. As with the first prong of Grant, this requires a consideration of the degree of seriousness of the impact on protected Charter rights. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights are of little actual or practical significance.

[147] Under the third prong of analysis, the court must consider whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. Although this third line of inquiry typically pulls toward inclusion of the evidence, in order to further the societal interest in an adjudication on the merits, this will not always be so. As the Supreme Court of Canada observed recently in R. v. Le,[^50] “[a]n ‘adjudication on the merits’, in a rule of law state, presupposes an adjudication grounded in legality and respect for long-standing constitutional norms.”

[148] These three lines of inquiry cannot be applied with mathematical precision according to a fixed formula. Rather, what must be considered is the overall impact that admission of the evidence would have upon the reputation of the administration of justice. This necessarily requires a qualitative assessment of the totality of the circumstances.[^51]

2. Application of the Principles

(i) The seriousness of the Charter-infringing state conduct

[149] In my view, the Charter-infringing state conduct in this case tends to fall on the less serious end of the spectrum. It consisted of AB sticking his head into the rear portion of the vehicle for approximately seven seconds and shining a flashlight on the floor of the vehicle. The search was brief and transitory. AB did not open any of the vehicle’s compartments, or open or disturb other items of personal property.

[150] Additionally, Allawneh testified that he recognized Mr. Yusuf’s name from the police bulletins and as such he would have searched the vehicle if AB had not. I am confident therefore that the impugned evidence would have been discovered in the absence of the Charter breach. Although this finding is not determinative, it lessens the seriousness of the Charter-infringing state conduct and favours admissibility over exclusion.[^52]

(ii) The Impact on the Charter-protected interests of the accused

[151] The unlawful search had a minimal impact on the Charter-protected interests of the accused. I have already noted the fact that individuals have a diminished expectation of privacy in a motor vehicle. As the Supreme Court of Canada noted in Belnavis, vehicular traffic must be regulated, with opportunities for inspection to protect public safety. In this case, the Charter breach consisted of a police officer sticking his head into the rear compartment of the Charger and shining a flashlight on the floor.

[152] I find that the impact of the Charter breach on Mr. Yusuf was not significant. This factor favours inclusion of the evidence.

(iii) Society’s interest in Adjudication on the Merits

[153] The charges against the three accused are serious and the evidence is highly reliable. Moreover, if the evidence is excluded it will bring an end to the Crown’s case. This factor tends to support the admission of the evidence.

(iv) Balancing the Factors

[154] Police were responding to reports of gunfire in the area, which represented a serious and urgent threat to public safety. They had articulable cause to detain the vehicle and investigate the occupants. The Charter-infringing state conduct was on the less serious end of the spectrum and had a minimal impact on the Charter rights of the accused. I do not believe that admission of the firearm would send a message to the public that courts condone serious state misconduct. In fact, the exclusion of this reliable and highly probative evidence in a case involving reports of serious gun violence would, in my view, tend to undermine public confidence in the administration of justice.

[155] I find that a reasonable person, informed of all the relevant circumstances and the values underlying the Charter, would conclude that the admission of evidence would not bring the administration of justice into disrepute. The evidence is therefore admissible.

F. Should the Proceedings be Stayed Pursuant to [s.24(1)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec24subsec1_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[156] Although the point was not developed, at various points in argument counsel for the accused argued that the proceedings should be stayed pursuant to s. 24 (1) of the Charter.

[157] The basis for such a stay was not clearly articulated but it appears to have been based on the claim that the police used excessive force when they arrested the three accused. In particular, counsel for Mr. Isaac argued that when he was taken down to the ground by Allawneh, the officer unnecessarily placed his knee into Mr. Isaac’s back after Mr. Isaac had already been handcuffed.

[158] When Mr. Isaac was taken to the ground, the dashboard of the scout car blocked the angle of the in-car camera. Therefore, it was not possible to see whether in fact Allawneh placed his knee on Mr. Isaac’s back after already handcuffing him. However, in his evidence Allawneh explained that when he placed his knee into Mr. Isaac’s back, he had not yet secured the handcuffs.

[159] I accept Allawneh’s evidence on this point and find that no excessive force was used in arresting Mr. Isaac or the other accused. Accordingly, there is no basis for a stay of proceedings pursuant to s. 24 (1) of the Charter

VI: Trial Proper

[160] I note, as a preliminary matter, that the Crown’s case is entirely circumstantial. Therefore, in order to find any of the accused guilty of the counts before the court, it is necessary that an inference of guilt be the only reasonable inference that the evidence permits. Moreover, if 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, then the accused is entitled to an acquittal.[^53]

A. Count 1

[161] Count 1 alleges that on or about March 23, 2017, Mr. Yusuf, without lawful excuse, used a firearm in a careless manner without reasonable precautions for the safety of other persons, contrary to s. 86 (1) of the Criminal Code.[^54]

[162] The Crown alleges that Mr. Yusuf placed the firearm underneath the seat in front of him, and that this amounted to “using” the firearm.

[163] Assuming for the purposes of this discussion that the Crown can prove that Mr. Yusuf did in fact place the firearm underneath the seat in front of him, the question that arises is whether this act falls within the definition of “uses a firearm” for purposes of s. 86 (1).

[164] The Crown did not cite any authority for its position on this issue and there appears to be limited appellate authority defining the term “uses a firearm” in s. 86 (1). However the Supreme Court of Canada in R. v. Steele considered in some detail the meaning of “uses a firearm” in s. 85 (1).[^55] Both s. 86 (1) and s. 85 (1) are listed under the heading “Use Offenses” of the Criminal Code and, as such, the interpretation of the term “uses a firearm” in s. 85 (1) is of considerable assistance in defining the same term for the purposes of s. 86 (1).

[165] In Steele, the Supreme Court of Canada noted that merely possessing or carrying a concealed firearm while committing an offence is not “using” a firearm. Rather, “use” requires the active employment of the firearm for an ultimate purpose, or to “put into action or service, especially to attain an end.”[^56] Thus, revealing by words or conduct the actual presence or immediate availability of a firearm in order to facilitate the commission of an offence or for purposes of escape would amount to “using” the firearm.[^57]

[166] Given this definition, I find that merely placing the firearm under the seat in order to conceal its presence from the police cannot amount to “use” of that firearm. The action of placing the firearm under the seat is merely an aspect of concealing the weapon, which Steele expressly states cannot amount to using the firearm. There was no attempt to actively employ the firearm for an ultimate purpose and thus no use of it.

[167] I therefore find Mr. Yusuf not guilty of count 1.

B. Count 2

[168] Count 2 alleges that on or about March 23, 2017, Mr. Yusuf possessed a weapon for a purpose dangerous to the public peace, contrary to s. 88 (1) of the Criminal Code. In order to find Mr. Yusuf guilty of this count, it is necessary for the Crown to prove the following essential elements: that Mr. Yusuf possessed a weapon; that Mr. Yusuf knew that what he possessed was a weapon; and that Mr. Yusuf possessed the weapon for a purpose dangerous to the public peace;

[169] Considering the first essential element, there is no dispute that the firearm that was found in the Dodge Charger constitutes a “weapon” for the purposes of the Criminal Code. The issue in relation to this essential element is whether Mr. Yusuf had possession of the firearm.

(i) Did Mr. Yusuf Possess a Weapon, namely, the Firearm located in the Dodge Charger?

[170] The Crown alleges that Mr. Yusuf had physical possession of the firearm and that he placed it under the passenger seat in front of him in order to conceal it from the police. In order to prove that Mr. Yusuf had physical possession of the firearm, it is necessary for the Crown to establish that he had knowledge of the firearm and exercised control over it.[^58]

1. Relevant Evidence

[171] The firearm was found under the passenger seat of the Dodge Charger, immediately in front of where Mr. Yusuf had been sitting when the vehicle and its occupants were detained by the police. Allawneh testified that shortly after AB called out for the three occupants of the vehicle to be arrested, he had looked into the rear passenger area of the vehicle. Allawneh testified that he could see the extended magazine that was loaded into the firearm, as well as the bottom part of the handle of the firearm, sticking out from underneath the passenger seat. Allawneh indicated that photographs taken at the scene, entered as exhibits, accurately depicted what he had observed. These photographs show what appears to be an extended magazine as well as the bottom portion of a firearm handle, sitting on the floor of the vehicle in front of the rear passenger seat, beside a plastic bag containing a number of unidentified items.

[172] The Crown also tendered a number of videos, photographs and texts that were found on a cell phone that was sitting on the rear passenger seat that Mr. Yusuf had been occupying. This cell phone contained 12 photographs depicting a firearm with an extended magazine which resembled the firearm found in the Dodge Charger. In two of the photographs, an individual can be seen pointing the firearm. However, it is impossible to identify this individual.

[173] The Crown argued that this cell phone belonged to Mr. Yusuf and that he had taken, or caused to be taken, the 12 photographs of the firearm. The Crown argued that this connection between Mr. Yusuf and the cell phone could be inferred not only from the fact that it was found sitting on the seat which he had been occupying, but also from the data on the phone. The cell phone included 22 videos, along with dozens of photographs, depicting Mr. Yusuf. The Crown argued that the overwhelming inference arising from these videos and photographs, combined with the fact the phone had been located on the seat he had been occupying, was that the phone belonged to Mr. Yusuf.

[174] Counsel for Mr. Yusuf objected to the introduction of five of the 22 videos, two of the 98 photographs, as well as some texts that were found on the phone. Counsel argued that the videos and photographs were highly prejudicial to Mr. Yusuf and that this prejudice outweighed the probative value of the material in question.

[175] A voir dire was held to consider the admissibility of the data on the phone to which defence counsel objected. The data was reviewed by the court, and counsel for both Crown and defence made submissions as to its probative value and potential prejudicial effect.

[176] At the conclusion of the voir dire, I ruled that all of the videos and 96 of the 98 photographs tendered by the Crown were admissible. I further ruled that the texts tendered by the Crown were inadmissible.

[177] Considering first the 22 videos, I found these videos to be highly probative of the fact that the phone belonged to Mr. Yusuf. The fact that the phone contained so many videos and photographs of Mr. Yusuf, taken on what appeared to be many different occasions, strongly supports the inference that he regularly used the phone over an extended period of time. I also note that many of the videos appeared to be “selfies”, taken by Mr. Yusuf of himself while he was engaged in various activities such as driving a car or dancing to music. Further, there was no evidence of any videos on the phone which did not include Mr. Yusuf.

[178] Counsel objected to the introduction of five of the 22 videos on grounds that they were highly prejudicial to Mr. Yusuf. The prejudice was said to arise from the fact that in some of the videos Mr. Yusuf was wearing a T-shirt with a photograph of a firearm; in others he was dancing and singing to music and the lyrics to the song included some reference to a firearm; in certain videos Mr. Yusuf made hand gestures which counsel argued were suggestive of a firearm.

[179] Having viewed the videos, I find that there was no significant or material prejudice arising from their admission as evidence. The videos are not being introduced for any purpose other than to show that Mr. Yusuf regularly used the phone and that it therefore belonged to him. The videos show Mr. Yusuf engaged in everyday activities on many different occasions. What he was wearing, or what he was doing at the time, is irrelevant to the purpose for which the videos are being tendered. The specific content of the videos will not be considered by the court in determining whether the phone belonged to Mr. Yusuf. On this basis, I ruled all of the 22 videos to be admissible.

[180] The same analysis applies to the vast majority of the photographs. The 98 photographs tendered by the Crown generally show Mr. Yusuf engaged in normal day-to-day activities, and defence counsel agreed that 96 of the 98 photographs were admissible. Defence counsel objected to one photograph which depicted Mr. Yusuf wearing a firearm. I agreed that the potential prejudice arising from this photograph was material and, further, that this particular photograph had minimal probative effect in light of the fact that there were so many other photos of Mr. Yusuf that were conceded to be admissible. I therefore ruled the photograph depicting Mr. Yusuf with a firearm to be inadmissible.

[181] Defence counsel also objected to the admissibility of a photograph of what appeared to be a police occurrence report from the province of Saskatchewan naming Mr. Yusuf. There was no explanation as to the precise nature of this document or of how this photograph came to be taken. In the absence of such context, I found that the photograph had limited probative value. I also found that it was potentially prejudicial in that it made reference to an incident apparently involving Mr. Yusuf and the Saskatchewan police. I therefore ruled the photograph of the police occurrence report to be inadmissible.

[182] The Crown also tendered some texts from the cell phone containing what appeared to be song lyrics. However, the texts made no reference to Mr. Yusuf. I found that the texts were not probative of whether the phone belonged to Mr. Yusuf and they were accordingly not admissible.

2. Analysis

[183] I find that the cell phone found on the seat which Mr. Yusuf had been occupying belonged to him. This is evident from the large number of videos and photographs depicting Mr. Yusuf that were found on the cell phone. There is no suggestion that the phone contained videos or photographs of either Mr. Ahmed or Mr. Isaac.

[184] Mr. Yusuf’s cell phone had a dozen photographs of a firearm with an extended magazine which appeared to be identical or very similar to the firearm found in the Dodge Charger. This supports the inference that the firearm belonged to Mr. Yusuf and that he had been in possession of it immediately prior to stepping out of the vehicle.

[185] I further find that Mr. Yusuf must have been aware of the presence of the firearm in the vehicle. The extended magazine, along with the bottom portion of the firearm handle, was visible to him from his seat in the car. He therefore had knowledge of the firearm.

[186] I would also observe that there was no evidence connecting either Mr. Isaac or Mr. Ahmed to the firearm.

[187] The overwhelming and inescapable inference from the evidence as a whole is that Mr. Yusuf was in physical possession of the firearm and that he placed it under the passenger seat immediately in front of him prior to stepping out of the vehicle. I further find that Mr. Yusuf placed the firearm under the seat in front of him to conceal it from the police. As such, he did not intend to abandon possession of the firearm when he stepped out of the vehicle.

[188] The result is that the Crown has proven beyond a reasonable doubt that Mr. Yusuf was in possession of the firearm.

(ii) Did Mr. Yusuf know that what he possessed was a Weapon?

[189] It is not necessary for Crown counsel to prove that Mr. Yusuf knew the legal definition of “weapon”. It is sufficient for the Crown to prove beyond a reasonable doubt that Mr. Yusuf knew that he possessed something that could be used, or was designed or intended for use in killing, hurting, threatening or intimidating another person.

[190] I have already found that Mr. Yusuf knew that there was a firearm located under the passenger seat in front of him. It therefore follows that he knew that he possessed a weapon.

(iii) Did Mr. Yusuf Possess the Weapon for a Purpose Dangerous to the Public Peace?

[191] Possession of a weapon with the intention of doing harm to persons or property, or showing a reckless disregard for harm to persons or property, is possession for a purpose dangerous to the public peace.

[192] The subject firearm was a Restricted Firearm loaded with a magazine holding 26 cartridges of nine millimetre centrefire ammunition. Possession of such a firearm in a motor vehicle, combined with the attempt to conceal its presence from police, suggests that Mr. Yusuf possessed it for a purpose dangerous to the public peace. Indeed, defence counsel did not make any submissions to the contrary on this particular issue. I find that the Crown has proven beyond a reasonable doubt that Mr. Yusuf possessed the firearm for purpose dangerous to the public peace.

[193] I therefore find Mr. Yusuf guilty of count 2 in the Indictment.

C. Count 3

[194] Count 3 alleges that, on or about March 23, 2017, Mr. Yusuf possessed a prohibited device for a purpose dangerous to the public peace, contrary to s. 88 (1) of the Criminal Code.

[195] I have already found that Mr. Yusuf possessed the firearm located in the Dodge Charger, and that he did so for a purpose dangerous to the public peace. It is conceded that the detachable box magazine that was loaded into the firearm is a prohibited device.

[196] I therefore find Mr. Yusuf guilty of count 3 in the Indictment.

D. Count 4

[197] Count 4 alleges that on or about March 23, 2017, Mr. Yusuf possessed a restricted firearm, without lawful excuse, and without being the holder of a required license or registration certificate for the firearm, contrary to s. 91 (1) of the Criminal Code.

[198] I have already found that Mr. Yusuf possessed the firearm. It is conceded that the firearm is a restricted firearm, and that Mr. Yusuf did not hold a license or a registration certificate for the said firearm. There was no suggestion or argument to the effect that Mr. Yusuf had a lawful excuse for possession of the firearm, or that he was unaware of the fact that he did not hold the required license and registration certificate.

[199] I therefore find Mr. Yusuf guilty of count 4 in the Indictment.

E. Count 5

[200] Count 5 alleges that on or about March 23, 2017, Mr. Yusuf possessed a restricted weapon which was not a replica firearm, without lawful excuse, while knowingly not being the holder of a license permitting such possession, contrary to s. 92 (2) of the Criminal Code.

[201] I have already found that Mr. Yusuf possessed the firearm, and it is conceded that the firearm is a restricted weapon that is not a replica firearm. It is further conceded that Mr. Yusuf did not hold a license permitting possession of the firearm. There is no evidence to suggest that Mr. Yusuf was unaware, or could have been unaware, that he did not have the required license.

[202] I therefore find Mr. Yusuf guilty of count 5 in the Indictment.

F. Count 6

[203] Count 6 alleges that on or about March 23, 2017, Mr. Yusuf possessed a prohibited device while knowingly not being the holder of a license permitting such possession, contrary to s. 92 (2) of the Criminal Code.

[204] It is conceded that the firearm in question is a prohibited device and that Mr. Yusuf did not have a license permitting such possession. I have earlier determined that Mr. Yusuf possessed the firearm and that he was aware that he did not possess a license permitting its possession.

[205] I therefore find Mr. Yusuf guilty of count 6 in the Indictment.

G. Count 7

[206] Count 7 alleges that on or about March 23, 2017, Mr. Ahmed and Mr. Isaac, without lawful excuse, occupied a motor vehicle knowing that there was in that motor vehicle a restricted firearm which was not a replica firearm, contrary to s. 94 (2) of the Criminal Code.

[207] It is conceded that Mr. Ahmed and Mr. Isaac occupied a motor vehicle in which there was a restricted firearm that was not a replica firearm. There is no evidence to suggest that any of the grounds enumerated in s. 94 (1) (a), which might constitute a lawful excuse, or the circumstances identified in s. 94 (3) or 94 (4), are relevant or applicable.

[208] The issue that arises in relation to this count is whether either Mr. Ahmed or Mr. Isaac knew that Mr. Yusuf had a prohibited firearm in the Dodge Charger, and whether they knew that Mr. Yusuf did not have an authorization to possess the firearm.

[209] As noted above, the Crown’s case in relation to this count is entirely circumstantial.

[210] The Crown tendered surveillance videos taken from cameras on the exterior of 3001 Finch Avenue West, which show a Dodge Charger pulling up in front of the building at approximately 8 PM on the evening of March 23, 2017. The Charger appears to be the same vehicle that later drove up and parked in front of 3001 Finch Avenue West, and which was occupied by the three accused. However, it is not possible from the video to identify the number or identity of the occupants of the Charger which pulled up in front of the building at 8 PM.

[211] After the Charger stops in front of the building at around 8 PM, an unidentified male wearing a toque exits an SUV that had previously parked in front of the building and gets into the front passenger seat of the Charger. The Charger then moves to a parking lot slightly south of the building. After sitting in the parking lot for approximately five minutes, the Charger drives back to the front of 3001 Finch Avenue West and the unidentified male wearing the toque exits the front passenger seat of the Charger, gets back into his SUV, and drives away. The Charger then turns onto Ardwick Boulevard and drives away in a southbound direction.

[212] At approximately 8:11 PM, a Dodge Charger can be seen driving northbound on Ardwick Boulevard coming towards 3001 Finch Avenue West. The Charger pulls up beside another unidentified vehicle on Ardwick Boulevard and stops briefly. The Charger can then be seen speeding away northbound on Ardwick Boulevard at a high rate of speed, crossing Finch Avenue West.

[213] The Crown invites me to find that the Charger depicted in the video between 8:00 and 8:11 PM is the same Charger occupied by the three accused. The Crown notes that both vehicles are clearly associated with 3001 Finch Avenue West. The vehicles appear identical in the video. It is highly unlikely that there could be two different Dodge Chargers, associated with this particular apartment building, present at the same time.

[214] Counsel for Mr. Isaac also invites me to find that the Charger depicted in the video between 8:00 and 8:11 PM is the same Charger occupied by the three accused. Neither counsel for Mr. Yusuf nor Mr. Ahmed made any submissions on this issue.

[215] Having viewed the video and considering the totality of the circumstances, I find that the only reasonable conclusion to draw is that the Charger depicted between 8:00 and 8:11 PM is, in fact, the same Charger occupied by the three accused.

[216] I further find that Mr. Ahmed was the driver of the vehicle throughout the period of time depicted in the videos. Mr. Ahmed had leased the vehicle. He was driving the vehicle when it pulled up in front of the building at 8:28 PM. There is no suggestion that either Mr. Isaac or Mr. Yusuf ever drove the vehicle. The only reasonable inference to draw from the evidence is that Mr. Ahmed was the driver of the vehicle throughout.

[217] The further consequence is that Mr. Ahmed must have been driving the vehicle when it engaged in an exchange of some sort with the unidentified vehicle on Ardwick Boulevard at 8:11 PM. It was at this point that two witnesses indicated that they heard gunfire. They further stated that they saw a dark vehicle speeding away. It is not possible to determine precisely what happened at 8:11 PM. However, based on the totality of the evidence, particularly the video evidence, the 911 calls, and the fact that Mr. Yusuf possessed a firearm while in the vehicle, I find that there was some exchange of gunfire involving the Dodge Charger at that time.

[218] It is not possible to make a finding as to the source or precise nature of any gunfire, including whether it originated from the Charger or from the other vehicle on Ardwick Boulevard. Nevertheless, I find that the only reasonable inference that follows is that Mr. Ahmed must have been aware that Mr. Yusuf was in possession of a firearm. Having been involved in some exchange of gunfire, Mr. Yusuf would have either used the firearm himself, or made Mr. Ahmed aware of the fact that he had a firearm. I therefore find Mr. Ahmed knew that Mr. Yusuf was in possession of a firearm in the vehicle.

[219] On this basis, I find Mr. Ahmed guilty of count 7.

[220] Mr. Isaac is in a somewhat different position. As noted earlier, an unidentified male wearing a toque got into the front passenger seat of the Dodge Charger at approximately 8 PM, and then exited the vehicle at approximately 8:05 PM. As such, at 8:05 PM the front passenger seat of the Charger was not occupied. The vehicle then drove away.

[221] By 8:28 PM, Mr. Isaac was sitting in the front passenger seat of the Charger. Therefore, sometime between 8:05 PM and 8:28 PM he got into the front passenger seat. However, it is not possible to determine the precise point in time at which this took place. In particular, Mr. Isaac may have gotten into the vehicle just moments before it pulled up in front of 3001 Finch Avenue West at 8:28 PM. The consequence is that it is entirely possible that Mr. Isaac was not in the vehicle at 8:11 PM when the exchange of gunfire with the other unidentified vehicle took place on Ardwick Boulevard.

[222] Given the realistic possibility that Mr. Isaac may have gotten into the Dodge Charger just moments before it drove up in front of 3001 Finch Avenue West, it cannot be said that the only rational conclusion from the evidence is that Mr. Isaac was aware of the fact that Mr. Yusuf possessed a firearm. I am therefore unable to find that the Crown has proven beyond a reasonable doubt that Mr. Isaac knew that there was a firearm in the vehicle.

[223] I therefore find Mr. Isaac not guilty of count 7.

H. Count 8

[224] The only difference between counts 7 and 8 is that count 8 refers to a prohibited device as opposed to a firearm. It is conceded that the firearm in question was a prohibited device.

[225] It therefore follows that Mr. Ahmed is guilty, and Mr. Isaac is not guilty, of count 8.

I. Count 9

[226] Count 9 alleges that on or about March 23, 2017, Mr. Yusuf did, without lawful excuse, possess a loaded restricted firearm, without being the holder of the required authorization, license or certificate, contrary to s. 95 (1) of the Criminal Code.

[227] It is conceded that the firearm was a loaded restricted firearm and that Mr. Yusuf did not have the required authorization, license or certificate for the firearm. I have earlier found that Mr. Yusuf was in possession of the firearm and that he was aware of the fact that he did not have the required authorizations.

[228] I therefore find Mr. Yusuf guilty of count 9.

J. Count 10

[229] Count 10 alleges that Mr. Isaac possessed a firearm while he was prohibited from doing so by reason of an order under s. 109 (1) of the Criminal Code, contrary to s. 117.1 (1) of the Criminal Code

[230] I have earlier found that the Crown has not proven beyond a reasonable doubt that Mr. Isaac knew that there was a firearm in the vehicle. It follows that the Crown has not proven that he possessed the firearm.

[231] I therefore find Mr. Isaac not guilty of count 10.

VII. Disposition

[232] I find Mr. Yusuf not guilty of counts 1, 7 and 8, and guilty of counts 2, 3, 4, 5, 6, and 9.

[233] I find Mr. Ahmed not guilty of counts 1, 2, 3, 4, 5, 6, and 9, and guilty of counts 7 and 8.

[234] I find Mr. Isaac not guilty on all counts in the indictment.

P. J. Monahan J.

Released: October 22, 2019

[^1]: R. S. C. 1985, c. C–46. [^2]: Ardwick Boulevard runs south from Finch Avenue, just east of 3001 Finch Avenue West. [^3]: AB is the officer whose evidence was the subject of a s. 715 application by the Crown. During the hearing of that application, on consent, I issued an order pursuant to s. 486.5 (1) of the Criminal Code prohibiting publication of any information that could identify AB. This order was issued in order to protect his privacy, given the circumstances which gave rise to the application. [^4]: Although there was no sound on the surveillance footage taken from the camera on the apartment building, AB can be heard on the footage from the in-car camera in his scout car indicating that he had located a firearm and that the three occupants of the vehicle should be arrested. [^5]: I note that it was also agreed through the ASF that neither Mr. Ahmed nor Mr. Isaac were the holders of the relevant certificates or licenses. However, since the Crown is not proceeding with the charges arising from those facts in relation to either Mr. Ahmed or Mr. Isaac, those aspects of the ASF are no longer material. [^6]: I note that the Crown did not seek admission of AB's preliminary inquiry testimony on the basis of the "necessity" branch of the principled exception to the hearsay rule and relied solely on s. 715. As such, the analysis herein is limited to the requirements of s. 715. [^7]: I refer to this as the "principal remaining issue" since, even if the mandatory requirements of s. 715 are met there is still a residual discretion in the trial judge to determine whether it is appropriate to admit the preliminary inquiry evidence. See R. v. Zaganjori, 2019 ONSC 3390, at para. 31. [^8]: The Crown advised that the WSIB takes the position that its staff are not compellable witnesses, based on the Board’s authorizing statute. Regardless of whether this interpretation of the WSIB's authorizing statute is correct, a provincial statute cannot have the effect of modifying or limiting the requirements of the Criminal Code, which is paramount federal legislation. [^9]: See the Psychology Act, 1991, S.O. 1991, c. 38, ss. 3 – 4. [^10]: R. v. Clayton, 2007 SCC 32, 2 S.C.R. 725, at para. 4. [^11]: 2004 SCC 52, 3 S.C.R. 59, at para. 34. [^12]: Mann, at para. 34. [^13]: Mann, at para. 45. [^14]: Mann, at para 40. [^15]: Mann, at para. 40. [^16]: 2013 SCC 50, 3 S.C.R. 250. [^17]: MacKenzie, at para. 39. [^18]: MacKenzie, at para. 41 citing Karakatsanis J. in R. v. Chehil, 2013 SCC 49, 3 S.C.R. 220, at para. 26. [^19]: MacKenzie, at para. 62. [^20]: MacKenzie, at para. 84. [^21]: MacKenzie, at para. 74; Chehil, at para. 27. [^22]: No issue was taken with respect to standing of Mr. Ahmed, the driver of the vehicle, to raise a s. 8 claim in relation to the search of the Dodge Charger. [^23]: 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341. [^24]: In Belnavis, the driver of the motor vehicle was also charged with possession of stolen property. However, it was conceded that the driver had standing to assert a s. 8 claim. [^25]: See Belnavis, at paras. 14-15, 24, affirming the same conclusion reached by Doherty J.A. in R. v. Belnavis, 1996 CanLII 4007 (ON CA), [1996] 29 O.R. (3d) 321, at para. 30 [^26]: R. v. Jones, 2017 SCC 60, 2 S.C.R. 696, at para. 9. Note that, as the Court of Appeal held in R. v. Labelle, 2019 ONCA 557, at para. 26, Jones applies regardless of whether the accused elects to tender evidence at the voir dire. [^27]: Jones, at para. [40](https://www.minicounsel.ca/scc/2017/60