Overview

[1] On July 19, 2019, officers of the Toronto Police Service set out in an unmarked police van to conduct surveillance on the accused, Ahmed Mohamed. They had information that Mr. Mohamed was selling drugs near Queen Street East and Sherbourne Street and that he was in possession of a firearm.

[2] Shortly after they set out, the officers spotted Mr. Mohamed riding an electric bike near the intersection of Queen and Sherbourne. He was carrying a black fanny pack over his right shoulder, diagonally across his body. Mr. Mohamed, who was heading north on Sherbourne, quickly made a U-turn to go back south, and then turned left to go east on Queen. The van also turned to follow him. After travelling a short distance on Queen, the van turned and blocked the path of Mr. Mohamed, who was riding on the sidewalk. Three officers quickly exited the vehicle. After a brief struggle, the officers arrested Mr. Mohamed and found a handgun in the fanny pack.

[3] Mr. Mohamed is charged with nine firearms offences, including possession of a loaded, restricted firearm knowing he was not the holder of a licence; careless storage of a firearm; careless storage of ammunition; possession of a prohibited device without licence; and carrying a concealed weapon. Mr. Mohamed elected to be tried by a judge sitting without a jury.

[4] Mr. Mohamed brings an application under s. 24(2) of the Charter to exclude the firearm and magazine found in his possession from evidence on the basis that his rights to be free from unreasonable search and arbitrary arrest under ss. 8 and 9 of the Charter were infringed. The Crown and defence agreed that the evidence on the Charter motion and the trial could be heard at the same time.

[5] The defence’s position is that the arrest was arbitrary because, at the time of the arrest, the officers did not have reasonable and probable grounds to believe a criminal act was being committed. The defence further submits that the search was unreasonable because it was not incident to a lawful arrest. The defence submits that the seriousness of the breaches and the impact on Mr. Mohamed’s Charter-protected interests outweigh society’s interest in an adjudication of the case on its merits.

[6] The Crown disputes that Mr. Mohamed’s Charter rights were breached, and maintains that even if there was a breach, the evidence ought not be excluded because the breach was not serious, the impact on Mr. Mohamed’s Charter-protected interests was not significant, and society’s interest in an adjudication on the merits is high.

[7] The Crown agrees that if the evidence is excluded on the basis of a Charter breach, there would be insufficient evidence for a conviction. Conversely, the defence acknowledges that if the evidence is not excluded, the Crown will have met its burden of proof beyond a reasonable doubt.

Issues

[8] The issues on this Application are as follows:

(a) Were the Applicant’s rights under s. 9 of the Charter breached?

(b) Were the Applicant’s rights under s. 8 of the Charter breached?

(c) If the Applicant’s Charter rights were breached, should this court exclude the firearm and magazine that were found in the Applicant’s possession under s. 24(2)?

Facts

[9] The Crown called as witnesses the four officers who were in the van conducting surveillance on Mr. Mohamed on July 19, 2019: Detective Constables Allistair Blair, Rui Esteves, Paul Walker, and Jeff Freeman. All four officers were members of the Major Crime Unit (“MCU”) at 51 Division of the Toronto Police Service for approximately one year at the time.

[10] The following is a brief account of the steps leading to Mr. Mohamed’s arrest. The witnesses’ evidence will be further detailed in these reasons.

The Briefing

[11] At approximately 4:20 p.m. on July 19, 2019, DCs Blair, Esteves, Walker, and Freeman participated in a briefing conducted by DC Durst. At the briefing, DC Durst provided the following information about Mr. Mohamed: he sells crack cocaine in the area of Queen and Sherbourne, he is possibly in possession of a firearm, and he will carry a firearm in a satchel when in the area selling drugs. The team was to attend the area and conduct surveillance on Mr. Mohamed. The briefing lasted approximately seven minutes.

[12] The briefing was based on a tip from a confidential informant. The officers had no further information regarding the source or date of the tip. The Crown admits that the tip was “stale” at the time.

[13] At the briefing, the officers were provided with a “surveillance bulletin” which included the details noted above, a physical description of Mr. Mohamed, his photograph, date of birth, and last known address.

Mr. Mohamed is Located

[14] At approximately 9:23 p.m. on July 19, 2019, the officers set out in a black, unmarked police van.

[15] Shortly after the officers took the road, at approximately 10:02 p.m., one of the four officers spotted Mr. Mohamed riding an e-bike westbound on the north sidewalk of Queen approaching Sherbourne. At Sherbourne, Mr. Mohamed turned right and headed northbound.

[16] Mr. Mohamed was carrying a fanny-pack type bag, which all of the officers referred to as a satchel, over his right shoulder and crossing over his body with the pouch portion on his front left side. The fanny pack was black with white lettering on the pouch.

[17] The van, which had been driving east, turned left on Sherbourne after Mr. Mohamed turned and also headed north. The van and e-bike both headed north on Sherbourne for a few seconds.

[18] The officers then saw Mr. Mohamed do a quick U-turn and go southbound on Sherbourne. When he reached the intersection of Queen and Sherbourne, Mr. Mohamed turned left to go eastbound on Queen on the north sidewalk.

The Arrest

[19] DC Freeman, who was driving the van, also made a U-turn on Sherbourne and headed south toward the intersection of Queen and Sherbourne. At Queen, he turned left to go east.

[20] After driving a short distance on Queen, DC Freeman then turned the van 90 degrees, drove it across the westbound lanes on Queen, and mounted the north sidewalk so that it was perpendicular to Mr. Mohamed’s e-bike, blocking his path.

[21] DCs Walker and Esteves quickly exited the van and identified themselves as police. They approached Mr. Mohamed. DC Walker’s hand touched the fanny pack Mr. Mohammed was carrying. DC Walker testified that he felt something heavy, metal, and with sharp corners, which he believed to be a firearm. He grabbed Mr. Mohamed and yelled “gun” to alert the other officers and passersby.

[22] Mr. Mohamed struggled and flailed his arms. DC Blair, who had exited the van after DCs Walker and Estevez, tackled Mr. Mohamed and both officers to the ground. DCs Esteves and Walker handcuffed Mr. Mohamed. DC Esteves opened the zipper of the fanny pack and located a handgun. DC Blair gave Mr. Mohamed his right to counsel. Mr. Mohamed was picked up by uniformed officers and taken to 51 Division.

The Agreed Facts

[23] The Crown and defence agreed to the following facts, which relate mainly to the seized firearm:

(a) Inside the bag Mr. Mohamed was wearing, officers located a Camik TP9 SF army-green semi-automatic firearm loaded with 13 rounds of nine-millimetre hollow-point ammunition in an over-capacity magazine (18-round). The ammunition in the firearm was capable of being discharged by the firearm in which it was loaded and the firearm was in working order. The serial number of the firearm seized was T6472-17 AT10461. It was not registered to anyone;

(b) The firearm was analyzed by officer Detective Constable Grant Sutherland and the barrel was determined to measure 114 mm, thereby classifying it as a restricted firearm under the Criminal Code;

(c) The detachable cartridge magazine, carrying 13 rounds of ammunition, was analyzed by DC Sutherland and found to be capable of holding more than 10 cartridges, and was therefore classified as a prohibited device under the Criminal Code;

(d) Mr. Mohamed was read his rights to counsel, cautioned, and transported to 51 Division pending a show cause hearing;

(e) Mr. Mohamed is not and has never been in possession of a licence to possess any firearm for which a licence is required or a licence to possess an overcapacity magazine or a licence to carry a concealed firearm. He was aware at the time that he was in possession of the firearm and he was not in possession of any licences;

(f) Mr. Mohamed is not and has never been in possession of a registration certificate to possess the Camik firearm and was aware that he did not possess that registration certificate;

(g) Being in the bag, the firearm and the ammunition therein were carried in a careless manner; and

(h) Being in the bag, the firearm and the ammunition therein were concealed.

Analysis

Were the Applicant’s Rights under Section 9 Breached?

[24] Section 9 of the Charter states that “[e]veryone has the right not to be arbitrarily detained or imprisoned.” The purpose of s. 9 is to protect the individual from unjustified state interference. Section 9 limits the state’s ability to impose intimidating and coercive pressure on citizens without justification: R. v. Le, 2019 SCC 34, at para. 25.

[25] Mr. Mohamed bears the onus of establishing on a balance of probabilities that his s. 9 rights were breached.

[26] Section 495(1)(a) of the Criminal Code allows a peace officer to make an arrest without a warrant if they believe, on reasonable grounds, that the person has committed or is about to commit an indictable offence.

[27] In order for an arrest to be lawful, police must have reasonable grounds to believe that an offence is being or has been committed. The reasonable grounds inquiry has both a subjective and objective component. The officer must hold an honest belief that the person committed an offence. In addition, the belief must be objectively reasonable in the circumstances known to the officer at the time of the arrest: R. v. Canary, 2018 ONCA 304, at para. 21.

[28] In order for a belief to be reasonable, a reasonable person standing in the shoes of the police officer must be able to see the grounds for arrest: R. v. Brown, 2012 ONCA 225, at para. 14. In Brown, the Court of Appeal further stated: “the individual’s constitutional right to be left alone by the state cannot depend exclusively on the officer’s subjective perception of events regardless of how accurate that perception might be. The issue is not the correctness of the officer’s belief, but the need to impose discernable objectively measurable limits on police powers.”

[29] When considering whether an officer’s subjective belief is objectively reasonable, the court looks at the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45-47. “The standard is met at the point where credibly-based probability replaces suspicion. Of course, the totality of the circumstances is to be considered.”: R. v. Dhillon, 2016 ONCA 308, at para. 25.

[30] The defence submits that Mr. Mohamed’s arrest was not lawful because the officers did not have reasonable and probable grounds to believe that an offence was being committed, specifically, that they did not have reason to believe that Mr. Mohamed was carrying a firearm. In support of its position, the defence points to the weakness of the tip that formed the basis for the officers’ belief, the ambiguous nature of Mr. Mohamed’s conduct, and the inability to rely on the appearance of the fanny pack/satchel.

[31] To support the objective reasonableness of the officers’ subjective belief that Mr. Mohamed had a firearm, the Crown relies on the totality of the circumstances, including the information the officers had about Mr. Mohamed, as well as his behaviour, and the appearance of the fanny pack/satchel.

The Tip

[32] In R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at para. 53, the Supreme Court of Canada articulated the following considerations when evaluating whether a tip provides a reasonable basis for a detention:

• Is the information predicting the criminal offence compelling?

• Was the source of the information credible?

• Was the information corroborated by police investigation?

[33] It is not necessary, however, that a tip satisfy every element before it can be relied upon as a basis for an arrest: Debot, at para. 53.

[34] The surveillance bulletin reviewed at the briefing stated as follows: “CI info male is in possession of a firearm and sells crack cocaine in the Queen St E and Sherbourne St area.” CI refers to a confidential informant. DC Blair testified that when he prepared the surveillance bulletin, he recognized Mr. Mohamed because he had interacted with him a few months earlier in connection with an investigation for trespass.

[35] None of the witnesses had any further information regarding the tip, other than the fact that the information came from DC Durst. The information passed on by DC Durst is contained in his notes from the briefing, which state that Mr. Mohamed was “possibly” in possession of a firearm. The notes further state that Mr. Mohamed “will carry [firearm] in satchel when in area selling drugs.” The Crown did not call DC Durst as a witness. The Crown and defence agreed that DC Durst’s notes were in evidence, and both relied on them for the truth of their contents.

[36] The tip does not satisfy any of the factors articulated in Debot.

[37] First, the information that Mr. Mohamed was selling crack cocaine in the Queen and Sherbourne area was not compelling because it provided no detail or specifics about the alleged illegal activity. As all of the officers testified, the area is a high-crime neighbourhood known for drug-related activity. DC Walker testified that dealers come to the area to prey on vulnerable individuals with addictions. Similarly, the information that Mr. Mohamed was in possession of a firearm, and that he carried it in a “satchel” was also lacking in detail and not compelling, since many individuals carry bags of various kinds. Moreover, the tip was stale and there was no information as to when it was received.

[38] The defence relies on the use of the term “possibly” in DC Durst’s notes to argue that the information conveyed to the officers was speculative, and therefore less compelling.

[39] In their testimony, the officers did not specifically recall whether DC Durst said that Mr. Mohamed was “possibly” in possession of a firearm. The surveillance bulletin, which was the basis for the information provided at the briefing, stated: “male is in possession of a firearm.” Based on DC Durst’s notes, the information was that Mr. Mohamed was “possibly” in possession of a firearm, but also that he “will carry [firearm] in satchel when in area selling drugs.” Contrary to the defence’s submission, there was information that Mr. Mohamed was in possession of a firearm, and not just that he was “possibly” in possession of a firearm. I have nonetheless found that the tip was not compelling based on the lack of specifics.

[40] Second, the Crown adduced no evidence that would assist the court in determining whether the source of the information was credible. Because there is no information regarding the source or reliability of the tip, including whether it was based on first-hand information, it is not possible to find the source credible: R. v. Chioros, 2019 ONCA 388, at para. 18.

[41] Third, the Crown admits that the tip was stale and uncorroborated. No further investigative steps were taken to corroborate the information about Mr. Mohamed before the officers set out the night of July 19, 2019. The Crown concedes that the tip alone would not constitute reasonable grounds for the arrest.

Sighting of the Applicant on July 18, 2019

[42] DC Esteves testified that on July 18, 2019, the day before the arrest, he saw Mr. Mohamed on the northeast corner of the intersection of Queen and Sherbourne when he was driving back to 51 Division from court. When he returned to the station, DC Esteves reported to DC Durst that he saw Mr. Mohamed, and DC Durst told him he had information about Mr. Mohamed.

[43] DC Esteves drafted an undated will-say statement in which he stated that he had seen Mr. Mohamed on July 18, 2019 at Queen and Sherbourne. The will-say further stated as follows: “That particular intersection [is] notorious for drug activity. There was information in regards to MOHAMED dealing crack cocaine and in possession of a firearm. MOHAMED did have the satchel on his person… Once I got to the station, I made my team aware that I had spotted MOHAMED.” The will-say further stated that DC Esteves was familiar with Mr. Mohamed because he arrested him in 2016.

[44] Although the will-say contains information about Mr. Mohamed dealing crack cocaine and possessing a firearm, on cross-examination, DC Esteves acknowledged that he did not have that information until the briefing on July 19. DC Esteves did not observe anything in Mr. Mohamed’s conduct on July 18 that would suggest that he was selling drugs. DC Esteves further admitted that he drafted the will-say “some time this year” after a conversation with the officer-in-charge about this case. The will-say was not provided to the defence until shortly before the trial date, on January 25, 2021.

[45] The defence submits that the will-say raises serious concerns about the veracity of DC Esteves’ evidence.

[46] On July 18, the day before the briefing took place, DC Esteves had no information about Mr. Mohamed or his activities. To the extent that the will-say suggests that DC Esteves had information about Mr. Mohamed on July 18, it is inaccurate. Because he was not aware of the tip on that date, there was no particular reason for DC Esteves to notice Mr. Mohamed, or his black satchel, while driving back to the police station. Moreover, it seems unlikely that DC Esteves would have remembered Mr. Mohamed from an arrest three years earlier enough to recognize him standing on a street corner.

[47] DC Esteves admitted that, at the time, he made no note of having seen Mr. Mohamed. On cross-examination, he stated that he does not believe he mentioned having seen Mr. Mohamed to his fellow officers at the briefing the following day. None of the officers who participated in the briefing made a note that DC Esteves told them that he saw Mr. Mohamed the day before. DC Freeman did not recall DC Esteves having said anything about seeing Mr. Mohamed. When cross-examined on this point, DC Blair testified that he recalled being aware that DC Esteves had seen Mr. Mohamed in the Moss Park area. DC Blair admitted that he did not mention this in his notes even though this was pertinent information. This is inconsistent with DC Esteves’ evidence that he did not believe he mentioned having seen Mr. Mohamed the previous day.

[48] In the absence of any contemporaneous notes of DC Esteves’ sighting of Mr. Mohamed on July 18, I have some doubt as to whether the sighting took place. In any event, I find that at the briefing, DC Esteves did not mention that he had seen Mr. Mohamed the previous day. If DC Esteves had reported the sighting to his team at the time, it would be reasonable to expect that one or more of the officers, including DC Durst, would have mentioned it in their notes of the briefing. The fact that none of the officers mentioned DC Esteves’ sighting of Mr. Mohamed leads me to conclude that he did not mention it, which is consistent with DC Esteves’ recollection.

[49] Based on my finding that DC Esteves did not advise the other officers that he saw Mr. Mohamed on July 18, the sighting is not a relevant circumstance that should be considered in determining whether the officers had reasonable grounds to arrest Mr. Mohamed. None of the officers relied, or could have relied, on the sighting as corroborating the information contained in the tip. Moreover, DC Esteves’ sighting of Mr. Mohamed on July 18 was not corroborative of the information contained in the tip. At most, DC Esteves’ evidence that he saw Mr. Mohamed at the corner of Queen and Sherbourne confirms nothing more than that Mr. Mohamed was there the day before.

Mr. Mohamed’s Behaviour

[50] The Crown relies on Mr. Mohamed’s behaviour when the officers were following him as one of the circumstances giving rise to reasonable and probable grounds for the arrest, specifically, that Mr. Mohamed was staring into the van and then made an abrupt U-turn to evade the police.

[51] DC Blair testified that the unmarked police van was heading eastbound on Queen Street East when he first saw Mr. Mohamed, who was on the north sidewalk of Queen, heading west. The van was in the left turn lane on Queen at the intersection of Queen and Sherbourne. DC Blair, who was sitting in the third row of the vehicle, saw Mr. Mohamed through the front windshield. DC Blair recognized Mr. Mohamed because he had investigated him a few months earlier in connection with a trespass matter. He testified that Mr. Mohamed took “a hard look” at the van and kept staring at the vehicle. DC Blair testified that after Mr. Mohamed turned right onto Sherbourne, and as the van turned left to go north on Sherbourne, Mr. Mohamed kept turning his head, as if to check if the van was still there.

[52] DC Esteves, who was sitting in the front passenger seat of the van, also saw Mr. Mohamed riding west on Queen just before the intersection at Sherbourne. He did not give evidence as to whether, at that time, Mr. Mohamed was looking at the van.

[53] DC Walker, who was sitting in the second row of the van, and DC Freeman, who was driving, did not see Mr. Mohamed until both he and the police van were heading north on Sherbourne. DC Freeman also testified that he knew Mr. Mohamed, although he did not provide any further details as to how. DC Walker had not had prior contact with Mr. Mohamed.

[54] All four officers testified that the unmarked van is one of two unmarked vans that the 51 Division MCU uses and that it is well-known in the neighbourhood. DC Walker testified that individuals in the neighbourhood refer to the van by the last three numbers on its licence plate. When asked why they used the unmarked van for surveillance if it was so recognizable, the officers’ responses indicated that they did not have much choice based on the available vehicles because they needed a larger vehicle to fit four officers and there were only two unmarked vans at 51 Division. DC Walker testified that they intended to go out on foot at some point.

[55] DCs Blair, Esteves and Walker all testified that as the van and Mr. Mohamed’s e-bike proceeded north on Sherbourne, Mr. Mohamed stared at them in the van. DC Blair, who estimated that Mr. Mohamed travelled approximately 10 feet before stopping to make the U-turn, testified that Mr. Mohamed repeatedly turned his head in the direction of the van. He estimated that the van and e-bike were beside each other for three to five seconds.

[56] DC Walker testified that he first noticed Mr. Mohamed when the van came to a stop around the Maxwell Meighen Centre approximately 30 to 50 feet north of Queen. When he looked out the window, he saw Mr. Mohamed staring into the van. DC Walker stated that Mr. Mohamed “was kind of stopped” and looking at them, and then did a U-turn. DC Walker described the U-turn as jerky, and testified that Mr. Mohamed made the U-turn so quickly that he almost fell off the e-bike and had to put his foot down. DC Walker believed that Mr. Mohamed saw the van, saw them and tried to move quickly away.

[57] DC Esteves testified that Mr. Mohamed made a U-turn “as soon as he made eye contact with me” and that Mr. Mohamed knew who they were.

[58] DC Freeman testified that the e-bike was in front of the Maxwell Meighen Centre when it made the U-turn. DC Freeman testified that he saw in the passenger side mirror of the van that Mr. Mohamed made the U-turn, which means that the van must have been ahead of Mr. Mohamed’s e-bike at that time. DC Freeman waited until Mr. Mohamed went left on Queen before making the U-turn. When the van reached the intersection of Queen and Sherbourne, DC Freeman stopped the van slightly north of the intersection so that it could not be seen from Queen.

[59] DCs Blair, Walker and Esteves testified that they believed that Mr. Mohamed made the U-turn and went in the opposite direction because he knew that they were police and he wanted to evade them. All three officers testified that as a result of the U-turn, and their observations of the satchel as further detailed below, they believed they had reasonable grounds to arrest Mr. Mohamed.

[60] DCs Blair, Walker and Esteves placed significant reliance on Mr. Mohamed’s behaviour, specifically, the staring and the U-turn, as a basis for their belief that he was in possession of a firearm. However, this assumes that Mr. Mohamed knew that he was being followed by police. For a number of reasons, I am not satisfied that Mr. Mohamed knew that they were police and that his actions were therefore evasive or suspicious.

[61] First, although the officers’ evidence is that the van used that night was well-known by individuals who frequent the Queen and Sherbourne area, the evidence does not support that Mr. Mohamed himself knew that the van was a police vehicle. DC Blair, who had previously interacted with Mr. Mohamed, could not specifically recall whether the same vehicle was used on that occasion.

[62] Moreover, while the officers immediately recognized Mr. Mohamed from the photograph on the surveillance bulletin and/or their previous dealings with him, there is no evidence that Mr. Mohamed actually recognized any of them from having dealt with them in the past. It is unlikely that Mr. Mohamed would have recognized DC Esteves from an arrest in 2016 or DC Blair from an investigation a few months earlier that did not result in any charges. It is unclear how visible DC Blair, who was in the back of the van, was to Mr. Mohamed. While DC Freeman said he knew Mr. Mohamed, no detail was provided as to their previous interactions. Mr. Mohamed could not have recognized DC Walker, because they had no previous interactions.

[63] In addition, the arrest took place after 10:00 p.m. DC Walker described the area as well-lit from artificial street lighting and from additional lighting on the exterior of the Maxwell Meighen Centre on Sherbourne just north of Queen. DC Freeman described the area as “dark” with artificial lighting. The officers acknowledged that the van has tinted windows in the rear, although DC Esteves described the tint as “light.” While the officers were able to see Mr. Mohamed clearly, it is unlikely that he would have been able to see as clearly into the van.

[64] While DC Blair believed that Mr. Mohamed noticed the van when both the van and the e-bike were stopped at the intersection of Queen and Sherbourne, there would have been a limited opportunity for observation. Although the van was stopped at the light, Mr. Mohamed was on the sidewalk, about to turn right. As a result, he did not have to stop at the light. The fact that he looked across the intersection does not necessarily mean that he was looking at the unmarked van or that he recognized it as a police van at that time.

[65] Based on the short distance travelled north on Sherbourne, the time during which Mr. Mohamed could observe the officers was also very brief. According to DC Blair, the van and e-bike were parallel to one another for approximately three to five seconds. According to DC Freeman, they drove approximately 100 feet north on Sherbourne before Mr. Mohamed made the U-turn. As a result, I am not satisfied that Mr. Mohamed recognized the officers or the van, as they believed.

[66] Second, the officers testified that their suspicions were raised by Mr. Mohamed staring into the van. While both DCs Walker and Esteves describe Mr. Mohamed as staring, DC Blair described numerous head turns, including when he was heading north on Sherbourne. It is difficult to see how Mr. Mohamed could have been staring so noticeably, or making head turns, given that it was only approximately three to five seconds that he was proceeding north on Sherbourne.

[67] Moreover, none of the officers made note of the alleged staring in their notes. If, as they testified, the staring was so significant to their basis for believing that Mr. Mohamed had a firearm, it would be reasonable to expect that they would have made note of it. When asked about the absence of any mention of the staring in his notes, DC Esteves admitted he did not make note of a significant ground for arrest. DC Walker testified that he put enough in his notes to refresh his memory. Given the number of interactions police officers have every day, it would be more logical to note a key detail that one might otherwise be likely to forget after a period of time. In addition, the purpose of officers’ notes is not only to refresh their recollection. The notes are also relied upon by others in the context of the prosecution. The officers’ explanations for not mentioning the staring in their notes was not satisfactory.

[68] Based on the foregoing, I find that Mr. Mohamed was not staring into the van or at the officers as they described.

[69] Third, despite the certainty of the officers’ testimony, there is evidence to suggest that they had not determined conclusively that Mr. Mohamed detected and recognized them when he made the U-turn. DC Freeman testified that he waited until Mr. Mohamed went east on Queen before making the U-turn in case he had not recognized them and because he did not want Mr. Mohamed to know that they were going to follow him. Similarly, after DC Freeman turned the van to go south and approached the intersection of Queen and Sherbourne, he stopped the van north of the intersection so it could not be seen by Mr. Mohamed, who was going east on Queen. The fact that DC Freeman continued to take steps to avoid detection by Mr. Mohamed suggests that at the time, the officers were not certain that Mr. Mohamed had detected them when he decided to make the U-turn. At least, they were not as certain as their testimony would suggest.

[70] All four officers testified that the Queen and Sherbourne neighbourhood is a high-crime area known for drug-related activity, and that this contributed to reasonable and probable grounds for Mr. Mohamed’s arrest. In R. v. Le, in the context of a detention, the Supreme Court of Canada found that the fact that an individual is located in a high-crime area should not, without more, form the basis for a detention: Le, at para. 132.

[71] It is also plausible that because he was in a high-crime area, Mr. Mohamed sought to avoid the van because he thought he was being followed by an unknown vehicle with a number of men in it.

[72] As a result, I am not satisfied on the evidence before me that Mr. Mohamed knew that the unmarked van was a police vehicle and that he was taking evasive steps when he made the U-turn on Sherbourne.

[73] After turning east on Queen, DC Freeman then turned the van onto the sidewalk to block Mr. Mohamed in front of an establishment known as Alfie’s bar, the fourth establishment from the northeast corner of Queen and Sherbourne. DC Freeman estimated that the location where Mr. Mohammed was stopped was approximately 60 feet from the corner of Queen and Sherbourne. DC Walker exited the van, followed by DC Esteves and DC Blair. DC Freeman could not open the driver-side door because Mr. Mohamed’s e-bike was directly in front of it. DC Freeman testified that Mr. Mohamed was stopped or close to stopped at the time, or he would have run into the side of the van.

[74] The defence submits that had Mr. Mohamed intended to evade the police van, he would have been further east on Queen than he was and would not have stopped in front of Alfie’s.

[75] DC Freeman testified that between the time the van first turned left to go north on Sherbourne and when the van then waited at the stoplight at Queen to go east, there was only one signal cycle. The Crown submits that Mr. Mohamed could not have gotten very far on Queen during that time.

[76] It is not possible for me to determine, based on the evidence, how far Mr. Mohamed could have gone along Queen in the amount of time it took for the van to catch up to him. I have no evidence as to what speed the e-bike was travelling. However, the fact that Mr. Mohamed was stopped or almost stopped, as DC Freeman testified, such a short distance from Queen supports the defence position that he was not evading the police van.

The Appearance of the Fanny Pack/Satchel

[77] In addition to Mr. Mohamed’s behaviour, the Crown relies on the officers’ observations of the fanny pack/satchel as part of the totality of the circumstances that gave rise to reasonable grounds to arrest Mr. Mohamed.

[78] DCs Blair, Esteves and Walker all testified that they observed that Mr. Mohamed was carrying a black “satchel” with the strap over his right shoulder, going diagonally across his body. They observed that the pouch part of the satchel was on the upper left side of Mr. Mohamed’s body around his mid-chest or rib area. Because the van was to Mr. Mohamed’s left, they would have been able to observe it.

[79] Irrespective of where they recall Mr. Mohamed riding the e-bike, all three officers testified that they were able to see him and the fanny pack/satchel he was carrying.

[80] DC Walker testified that he saw there was “clearly something in there” and that because of the tip, he had a “hyper-focus” on the bag. DC Walker testified that based on his experience with firearms, because of the weight and the location of a “bump,” he believed “beyond a shadow of a doubt” that there was a gun in the bag. In chief, DC Walker testified that because the bag was made of a thin, nylon material, he could “practically see the outline of a gun.” On cross-examination, DC Walker clarified that he could not see the outline of a gun but could see a bump or protrusion on the outside of the bag.

[81] DC Walker further testified that when Mr. Mohamed made the quick U-turn, the bag appeared to him to be heavy because it did not bounce as it would be expected to if it were light.

[82] DC Esteves testified that when Mr. Mohamed made the U-turn, he “saw the satchel fly but could see heaviness” and that the satchel had “significant weight” and “went with him.” At that point, he believed Mr. Mohamed to have a firearm.

[83] DC Blair, who was in the third row of the van, testified that he could not see much and was looking at the fanny pack/satchel to determine whether it was “weighted.” He testified that the bag appeared to have some “hang” to it. He explained that it was curved as opposed to flat at the bottom, as if it was being weighed down by something. DC Blair drew an analogy with a shopping bag, which would be flat when empty but would be curved if there were items in the bag. On cross-examination, DC Blair confirmed that his notes stated that it was “difficult to make out weighted, however there is some pull/hang to it as opposed to if it were empty[.]” On cross-examination, DC Blair explained that the bag was “perhaps not definitively weighted.”

[84] As noted above, DC Walker believed “beyond a shadow of a doubt” that Mr. Mohamed had a firearm. DC Walker testified that he formed his belief that the fanny pack/satchel contained a firearm based on his significant experience with firearms, including 11 years with the Toronto police and two tours with the British armed forces. He testified that he had recovered approximately 20 guns in the past year, of which he estimated 10-15 were found in satchels such as the fanny pack Mr. Mohamed was carrying. DC Walker described how individuals carry guns in similar bags, with the handle pointing up, so that they can easily reach into the bag and grab the handle. DC Walker testified that this was how the firearm was positioned in the fanny pack when he felt it when reaching for Mr. Mohamed.

[85] However, DC Esteves, who removed the firearm from the bag, did not recall how the firearm was positioned in the bag. DC Esteves recalled that the firearm was a “snug fit” in the bag and that another firearm would not have fit.

[86] The bag that Mr. Mohamed was carrying was in evidence. It is what would commonly be referred to as a “fanny pack” as opposed to a satchel. It is made of black nylon fabric. The fabric is not particularly thin, as DC Walker testified. Rather, it is of a medium or regular thickness for a bag of that type. I find that DC Walker’s testimony in chief was overstated, as was evident when he corrected his evidence to say that he could see a protrusion, as opposed to the outline of a gun.

[87] The fanny pack has a strap that would normally go around the waist and is therefore not very lengthy. When the bag is worn over the shoulder, the pouch part of it would be close to the body. The shape of the pouch portion of the fanny pack/satchel is rounded or curved at the bottom even when it is empty. Contrary to DC Blair’s testimony, the bottom would not appear flat when empty, like an empty grocery bag. It is possible, however, that the bottom would appear more rounded if something heavy was in the bag.

[88] While the officers would not be expected to describe the movement of the bag in the same way, DC Esteves’ testimony that he saw the bag “fly” was inconsistent with DC Blair and Walker’s testimony that it was weighed down and did not move when Mr. Mohamed turned. In any event, a fanny-pack worn around the body is unlikely to move significantly. Unlike a shoulder bag, which would swing as the individual carrying it moves, the strap of the fanny pack is short and the bag is worn against the body. The movement would be more limited. The officers testified that the pouch portion was over Mr. Mohamed’s body at mid-chest height. As a result, it was unlikely to move a great deal, even if it was empty.

[89] This was made clear when DC Walker was asked to demonstrate, by putting the fanny pack/satchel on, how Mr. Mohamed was carrying the bag. DC Walker testified that the bag would appear looser on Mr. Mohamed, because Mr. Mohammed is slimmer than he is. Nonetheless, in my view, based on both the length of the strap and the manner in which it is worn, the fanny pack/satchel would not hang loosely and the pouch would remain close to the body.

[90] DC Walker testified that the combination of the firearm and the high-capacity magazine would result in significant weight in the fanny pack. On cross-examination, DC Walker denied that the fanny pack would look the same whether empty or whether it held a gun.

[91] On cross-examination, DC Esteves admitted that not having seen the bag before the day of the arrest, he would not be able to tell if that is the way it always looked or if that is how it looked when there was something heavy in it.

[92] The fact that an individual is carrying a bag does not lead to the conclusion that they are carrying a firearm. The purpose of a bag is to be able to put items in it and to carry it around. Similarly, the fact that the bag appeared to be weighted, or have something in it, does not lead to the conclusion that it must contain a gun. Nor does the fact that a person is wearing a fanny pack/satchel in a high-crime neighbourhood lead to that conclusion.

[93] Based on the foregoing observations regarding the fanny pack and the officers’ evidence, it was not objectively reasonable for them to conclude, based on the limited opportunity they had to observe the bag, that it contained a firearm. In my view, based on the information contained in the tip, the officers jumped to the conclusion that Mr. Mohamed had a firearm without considering other possibilities. Given that the tip was not compelling, credible or corroborated, I find that it was not reasonable for the officers to conclude, based on their brief observations of the fanny pack/satchel, that Mr. Mohamed was in possession of a firearm.

The Totality of the Circumstances

[94] In determining whether the officers had reasonable grounds to arrest Mr. Mohamed, the question is not whether each fact standing alone supports or undermines the grounds for arrest but, rather, whether the facts as a whole, seen through the eyes of a reasonable person who has the same knowledge, training and experience as the arresting officer, make the arrest objectively reasonable: R. v. Canary, at para. 30.

[95] In R. v. Hassan, 2020 ONSC 6354, at para. 50, Himel J. stated that “there must be something in the conduct observed by police along with the rest of the circumstances that leads the officer to form the belief that there are reasonable grounds to arrest.”

[96] According to the testimony of DCs Blair, Walker and Esteves, the combination of Mr. Mohamed’s staring at them, the abrupt U-turn, and the appearance of the fanny pack/satchel caused them to believe that Mr. Mohamed was carrying a firearm. DCs Blair, Walker and Esteves all testified that once Mr. Mohamed made the U-turn, which they believed was to evade them, the situation was no longer one of surveillance, and they had reasonable grounds to arrest him.

[97] As detailed above, I am not satisfied that Mr. Mohamed knew that the van was a police van. Consequently, I am not satisfied that he was staring into the van or that he sought to evade the officers. I have also found that the officers’ certainty that the fanny pack, based on its appearance, contained a firearm was not justified.

[98] As noted previously, DC Esteves’ prior sighting of Mr. Mohamed was not reported to the other officers and is not a circumstance that the Crown can rely upon as a basis for reasonable and probable grounds.

[99] The defence does not substantially dispute the officers’ honest subjective belief that Mr. Mohamed was in possession of a firearm. However, their subjective belief, while perhaps honestly held, was formed hastily, and was based on their assumption that Mr. Mohamed had detected them.

[100] As was the case in Hassan, I find that the officers acted precipitously. They quickly concluded that Mr. Mohamed had a firearm in his fanny pack/satchel, a conclusion that was to a large extent influenced by a stale, uncorroborated tip. The tip was devoid of compelling details or information and there was nothing to support its veracity. Despite the weakness of the tip, the officers took no steps to verify or determine if the information was credible or reliable.

[101] Moreover, the officers did not turn their minds to further investigatory steps. Although they initially set out to conduct surveillance to corroborate the tip, once they came across Mr. Mohamed, they failed to consider less intrusive means of investigating and raced to arrest: Hassan, at para. 117, citing R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631. The officers rushed to arrest after observing Mr. Mohamed for an exceedingly short period of time, and when Mr. Mohamed’s actions were ambiguous. The limited time frame and information available to assess the situation were the result of the officers’ actions and decisions.

[102] For the reasons given above, Mr. Mohamed’s behaviour and the appearance of the bag are not sufficient to make their honest belief objectively reasonable. It was not reasonable for the officers to conclude, based on their limited interaction and observations of Mr. Mohamed, that he was in possession of a firearm. In light of all the circumstances, the officers did not have reasonable grounds to arrest Mr. Mohamed. I find that Mr. Mohamed’s s. 9 rights were breached and that the arrest was therefore unlawful.

Was the Search Unreasonable?

[103] Section 8 of the Charter states that “everyone has the right against unlawful search and seizure.” The purpose of s. 8 is to protect the property and privacy rights of persons against unwarranted incursions by the state: Hassan, at para. 56.

[104] A search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search was carried out is reasonable: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278.

[105] In respect of s. 8 of the Charter, once the applicant establishes that the search was without a warrant, the onus shifts to the Crown to demonstrate that the search was reasonable and justified in the circumstances. Because a warrantless search is presumptively unreasonable, the Crown must rebut the presumption by showing that the arrest was lawful. During an arrest, a search incident to arrest, including one’s belongings, would be lawful so long as the arrest is carried out in a lawful manner and public or police safety issues exist: Canary, at para. 33.

[106] If the arrest was not authorized by law, the search would be in breach of Mr. Mohamed’s s. 8 rights: Chioros, at paras. 51-60. Because I have found that the arrest was unlawful, the search was not a valid search incident to a lawful arrest.

Should the Evidence be Excluded?

[107] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, the Supreme Court of Canada held that in determining whether the admission of evidence would bring the administration of justice into disrepute, the court must balance the following three factors:

(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.

[108] In assessing the seriousness of the breach, the court is required to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct: Grant, at para. 72. The main concern is to maintain public confidence in the rule of law and its processes.

[109] In my view, the breach was a serious one. Despite the absence of reasonable and probable grounds, Mr. Mohamed was taken down on a public street. The police acted on an admittedly stale and uncorroborated tip. While their initial intent was to conduct surveillance on Mr. Mohamed and to determine his current address or to verify whether he was engaged in unlawful activity, the situation quickly escalated when they saw him. They did not take steps to verify the tip, nor did they pursue investigation.

[110] The police could have but did not continue to observe Mr. Mohamed, including whether he sold any drugs or lived at the last known address. If they believed him to have a firearm, they could have, but did not, sought judicial authorization for a search warrant to search his home.

[111] The fact that the tip was acknowledged to be stale suggests there was no urgency in arresting Mr. Mohamed that night. The information had been available long before. There was no suggestion in the evidence that someone was in danger that night. Yet, the police chose not to take steps to continue to observe Mr. Mohamed in an effort to corroborate the information received from the unnamed source. In my view, the arrest was opportunistic.

[112] Even after the officers located Mr. Mohamed, there were no exigent circumstances that required his immediate arrest. While the officers stated that, believing Mr. Mohamed had a gun, they acted out of concern for public safety, there was no suggestion that Mr. Mohamed was about to discharge the gun, which was zipped up in the bag. The risk in fact was heightened when they abruptly decided to take Mr. Mohamed down on a busy public street.

[113] Mr. Mohamed had a right to proceed without interference by police. The police interference caused by his arrest was neither fleeting nor technical. The breach resulted in Mr. Mohamed being taken down on the street in a dramatic manner. DCs Walker and Esteves approached Mr. Mohamed on a busy public sidewalk and reached for his arms. When he resisted, DC Blair tackled all three of them. The police action was highly intrusive of the appellant’s liberty and privacy interests: Brown, at para. 27. The impact on his Charter-protected interests is significant.

[114] In this case, there is a strong public interest in having the charges, which are serious, adjudicated on their merits. The Applicant concedes that given the nature of the evidence, it is reliable, thus supporting its admission. As noted above, excluding the evidence would cause the case against Mr. Mohamed to fail.

[115] The Crown relies on R. v. Johnson, 2013 ONCA 177, where the Court of Appeal held that the loaded handgun was highly reliable evidence that was essential to prosecuting a very serious offence of considerable public concern. In Johnson, the evidence was found to have been properly admitted even though the impact of the breach was not trivial.

[116] In Johnson, the first Grant factor was found to favour admission because the unlawful search was a minor part of a lawful Highway Traffic Act investigation. The firearm was discovered in plain view by police acting within the scope of their lawful investigative powers and would have been discovered irrespective of the questioning and CPIC check, which were in breach of the accused’s rights.

[117] In this case, unlike Johnson, the first Grant factor does not favour admission of the evidence. The breach of Mr. Mohamed’s rights was not minor. By acting on uncorroborated information and failing to pursue other investigative options, the police showed a disregard for Mr. Mohamed’s Charter rights. Rather than proceeding with judicially authorized steps, they acted precipitously in non-exigent circumstances. Unlike Johnson, but for the breaches of Mr. Mohamed’s Charter rights, the firearm would not have been located.

[118] In R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63, Doherty J.A. held that “if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence.” (Internal citations omitted.) See also: Le, at para. 142.

[119] The Charter-infringing conduct was serious and had a significant impact on Mr. Mohamed’s interests. The court should dissociate itself from evidence obtained through a negligent breach of the Charter: Le, at para. 143. A reasonable person informed of the relevant circumstances and familiar with Charter values would conclude that the admission of the evidence in this case would bring the administration of justice into disrepute.

[120] Under the circumstances, given the serious nature of the breaches and the impact on Mr. Mohamed’s Charter-protected rights, in my view, the admission of the evidence would bring the administration of justice into disrepute.

Conclusion

[121] For the foregoing reasons, the application is granted. Mr. Mohamed’s arrest on July 19, 2019 was in violation of his rights under ss. 8 and 9 of the Charter. Pursuant to s. 24(2) of the Charter, the evidence of the firearm and magazine is excluded.

[122] Accordingly, the accused, Ahmed Mohamed, is found not guilty of the charges.

Nishikawa J.

Released: March 30, 2021

COURT FILE NO.: CR-19-70000006

DATE: 20210330

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Ahmed Mohamed

REASONS FOR JUDGMENT

Nishikawa J.

Released: March 30, 2021

R. v. Mohamed, 2021 ONSC 2336

Case Summary

Overview

Issues

Facts

The Briefing

Mr. Mohamed is Located

The Arrest

The Agreed Facts

Analysis

Were the Applicant’s Rights under Section 9 Breached?

The Tip

Sighting of the Applicant on July 18, 2019

Mr. Mohamed’s Behaviour

The Appearance of the Fanny Pack/Satchel

The Totality of the Circumstances

Was the Search Unreasonable?

Should the Evidence be Excluded?

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 3

Legislation 1