COURT FILE NO.: CRIM J(P) 228/22 DATE: 2023 03 28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: His Majesty the King v. Peyton Brown
BEFORE: Fowler Byrne J.
COUNSEL: Jeff Marshman, for the Applicant, Peyton Brown Sarah Burton, for the Respondent, Crown
HEARD: February 21, 22, 2023
E N D O R S E M E N T
[1] The accused Mr. Peyton Brown has brought this application to exclude evidence that was obtained during an investigative detention, search and subsequent arrest, pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms (“the Charter”). He seeks this relief on the basis that his rights under sections 8 and 9 of the Charter were infringed.
I. The Charges
[2] The Applicant is charged with the following offences, all of which are alleged to have occurred on December 1, 2021:
a) Possession of a loaded prohibited firearm and not being the holder of an authorization or license under which he may possess said firearm in that place, contrary to section 95(1) of the Criminal Code, R.S.C., 1985, c. C-46 (“the Code”);
b) Possession of a firearm, to wit: a handgun, knowing that he was not the holder of a license under which he may possess it, contrary to section 92(1) of the Code;
c) Without authorization under the Firearms Act carrying a concealed weapon, to wit: a handgun, contrary to section 90(1) of the Code;
d) Being an occupant of a motor vehicle, to wit: a 2010 BMW, in which he knew that there was at that time a firearm, to wit: a handgun, contrary to section 94(1) of the Code;
e) Possession of a firearm knowing that the serial number on it had been altered, defaced, or removed, contrary to section 108(1)(b) of the Code; and
f) Possession a prohibited device or prohibited ammunition to wit: a 12-round capacity magazine, knowing that he was not the holder of a license under which he may possess it, contrary to section 92(2) of the Code.
[3] On the application, I heard evidence from police constable Matt Huntington (“PC Huntington”), police constable Jeff Hawkins (“PC Hawkins”), acting sergeant John-Paul Moore (“Sgt. Moore”), police constable Daniel Caggiano (“PC Caggiano”), and police constable Paul Gallucci (“PC Gallucci”).
[4] The Defence called no evidence but relied on the transcript of a 9-1-1 call and the report of the Intergraph Computer Aided Dispatch (“ICAD”) which records what is dispatched to the officers who are out on duty.
II. Background
[5] Shortly before 10:00 p.m. on the night of December 1, 2021, the 9-1-1 dispatcher received a call from a woman who reported that she had just driven by a couple of cars, and it looked like there were two guys fighting and one of them had pulled out a gun. She reported that she witnessed this on Maitland Street between MacKay Street and North Park Drive. She was particularly concerned because people continued to drive by. She was unable to identify the colour of the gun but could say that it was a handgun and not a long gun. She could not identify the type of vehicles except to say they were cars, not SUVs. She said that “it looks like one drove away” toward North Park Drive on Maitland Street. She stated that the second car was still there, parked with its headlights on. She indicated that all the men involved were Black, including the man with the gun. She could not see how old he was as she didn’t see his face, but thought he was close to six feet tall, medium build and wore a blue and white jacket. The conversation with the 9-1-1 operator continued as follows:
OPERATOR: Okay, do you remember anything else about him [the man with the gun]?
CALLER: That was it. I, I-, it was really a glimpse, 'cause I-, it caught me off guard, and I just drove away fast.
OPERATOR: Okay, do you know if that was the one that left in the vehicle? Or do you not know?
CALLER: I think it-, that was the one, because he was the-, in the-, he came out of the car that was behind the one that's still there, if that makes sense.
OPERATOR: Okay, hey, do you remember what colour the vehicle was?
CALLER: I didn't, sorry. I should have paid more attention.
OPERATOR: No worries. And the other vehicle's still present, correct?
CALLER: Yeah, the lights are on.
[6] The 9-1-1 operator stayed on the line with the caller until an officer arrived.
[7] The ICAD report shows that at approximately 9:52 p.m., the dispatcher advised officers in the area that a complainant had reported that she saw a male point a gun at someone’s head. The dispatcher indicated that the complainant saw two sedans, one of which had driven away. The man with the gun was described as Black, six feet, medium build with a blue and white jacket. Officers were also advised that the complainant thought the male with the gun left in the vehicle but that she didn’t know what colour the other vehicle was and one of the vehicles involved remained at the site.
[8] PC Hawkins was on patrol that night as a uniform patrol supervisor. He received the dispatch call and was the first to arrive on the scene at approximately 9:55 p.m. The complainant was still parked down the road from where she witnessed the altercation and she waved PC Hawkins down. She told PC Hawkins that she was driving eastbound on Maitland Street and saw two men on the south side of the road, one aiming a gun at another. She pointed out one of the cars that was involved, which remained parked by the curb with its headlights on. The officer told the complainant to remain where she was and that he would investigate to make sure everything was okay.
[9] PC Hawkins indicated that it was easy to identify the vehicle pointed out because it was dark out and the vehicle still had its headlights on. PC Hawkins proceeded westbound in his marked cruiser on Maitland Street. As he approached the subject vehicle, he observed three men on the boulevard, near the driveway to a school. Two of the men appeared Black and one appeared of mixed race. He made eye contact with the men as he drove by. PC Hawkins saw no other individuals in the area. He saw no firearm as he drove by and did not see anyone wearing a blue and white jacket.
[10] PC Hawkins then did a three point turn with the intention of returning and called in the plate number of the vehicle. He also turned on his emergency lights and immediately thereafter the three individuals moved quickly off the boulevard and started to get into the vehicle with its headlights on, which PC Hawkins recognized as a BMW.
[11] PC Hawkins parked about two car lengths behind the BMW, a little away from the curb, as he was concerned about the possible presence of a gun. He got out of his cruiser. He approached the driver side door as one of the men was getting into the driver’s seat. As PC Hawkins approached the BMW he noticed that another car was parked behind it, with its engine running, but he did not see anyone in the car. He focused his attention on the BMW.
[12] As he approached the BMW, PC Hawkins observed a man in the driver’s seat, who was later identified as Kyle Brown (“the driver”), a man in the passenger seat, who was later identified as Peyton Brown, the accused, as well as someone in the rear passenger-side seat.
[13] PC Hawkins had the sense that the men in the car wanted to leave. He does not recall whether the BMW was running or whether any of the interior lights were on.
[14] PC Hawkins focused his attention on the driver. The driver’s side door was open. He advised the driver that he was investigating a firearms offense and that they were being detained. PC Hawkins did not draw his firearm, nor did he have any other use of force deployed, such as a taser. The driver denied involvement with a firearm but eventually complied with PC Hawkins directions to get out of the car. None of the other men in the car did or said anything.
[15] When questioned why he removed the driver from the car, PC Hawkins stated that there was possibly a firearm in the area, which posed a safety risk for himself and other officers but may have also posed a risk for the other men in the car and the community at large. He did not want the vehicle to go anywhere until he finished his investigation. PC Hawkins stated it was his intention to do a cursory search of the driver, given that they were investigating a firearms offense and he wanted to ensure everyone’s safety.
[16] Sgt. Moore also heard the dispatch and arrived shortly after PC Hawkins. Given that he heard that the call involved a firearm, and in his capacity as a sergeant, he immediately called for the Tactical and Rescue Unit (“TRU”) to assist, as well as the K-9 unit, in the event someone tried to escape on foot. He arrived after PC Hawkins, and the TRU arrived shortly after him.
[17] Sgt. Moore testified that from the dispatch, he understood that someone had observed two men fighting and that one man had pointed a gun at the other’s head. He understood that the man with the gun was described as Black, six feet fall, medium build and wore a blue and white jacket. He also understood that two sedan style cars were involved and that one had already left the scene. Sgt. Moore testified that he did not catch from the dispatch that the complainant thought that the man with the gun was in the car that had left.
[18] When Sgt. Moore arrived, he observed a police cruiser parked on Maitland Street with its lights flashing. He also saw a BMW parked, facing eastbound with its headlights on. Sgt Moore parked his cruiser directly in front of the BMW, nose to nose.
[19] When Sgt. Moore got out of his cruiser, PC Hawkins advised him that he had detained the occupants of the car. Seeing that PC Hawkins was already at the driver’s side door of the vehicle, Sgt. Moore proceeded to the passenger side of the vehicle. He did not draw his firearm or have any additional use of force options at the ready, such as a taser. He observed three people in the car, the two front passengers who were Black and the rear passenger who was White. The man in the passenger seat had his hoodie over his head and was wearing a dark blue jacket.
[20] Sgt. Moore told the passenger, the accused, to hold up his hands and not move or reach for anything, and that they were being detained for a firearms investigation. The accused raised his arms. The passenger door was open. Sgt. Moore observed that the accused was being antsy, quiet, and with shaking hands, which he found not aggressive, but unusual. He had the sense that the detainee wanted to flee. Sgt. Moore was standing in such a way as to prevent the accused from fleeing.
[21] Around this time, the driver had stepped out of the BMW and PC Hawkins took him to the rear of the car, where he told him again the reason for his detention and advised him that he would do a cursory search.
[22] Shortly thereafter, TRU officer PC Caggiano arrived at the scene. He too had heard the dispatch. From which he understood that a person had seen two people fighting, and a gun had been pointed at someone’s head. He understood that the complainant believed that one of the vehicles involved had left. He understood that the man with the gun was described as Black, 6 feet tall with a medium build and was wearing a blue and white jacket.
[23] As PC Caggiano arrived, he saw the flashing emergency lights of the other police cruiser. He saw two other non-police vehicles, one of which was the BMW, which was parked nose to nose with another cruiser. Right behind the BMW was a Nissan, and behind that, the cruiser with flashing lights. He parked his truck on a diagonal so as to block the street and positioned the front end of his truck at the front corner of the driver’s side of the BMW, preventing it from leaving.
[24] PC Caggiano observed that PC Hawkins was at the rear of the BMW with someone and that Sgt. Moore was at the passenger side of the car talking to the occupants. From what he could hear, the man in the passenger seat was not being cooperative. From these observations, he determined that the BMW was the focus of the officers, so he turned his focus there as well. PC Caggiano stepped out of his truck. He was concerned as he could not see what was happening inside the BMW. He knew that there was a gun involved in some way, that one vehicle was left behind, and that PC Hawkins had someone already at the back of the car.
[25] When PC Caggiano approached, he saw that there was an individual in the back seat, and he focused his attention on him. Sgt. Moore told him, as he approached the BMW, that the accused was acting “hinky”. As PC Caggiano approached the vehicle, he observed that the passenger’s eyes were opened wide; he appeared nervous, more nervous than a person at a regular traffic stop ought to be. PC Caggiano stated that at that point he could not see everyone’s hands and his sense of alert was heightened. He took out his taser, pointed it at the rear passenger and stated “don’t fucking move! Get your hands up! If you reach down with your hands, I will taser you!” PC Caggiano reported that the rear passenger froze and obeyed his commands.
[26] Sgt. Moore directed the accused to get out of the vehicle and told him to not think about running. He advised him again that everyone was being detained due to a possible connection to a firearms investigation. He held him by his right wrist to prevent him fleeing. Sgt. Moore admitted he was keyed up at the time and may have used foul language, but this is because he was involved in a possible firearms offense. It was Sgt. Moore’s intention to conduct an officer safety pat down search, so as to ensure the safety of the other passengers in the car as well as of the other officers.
[27] As the accused exited the BMW, with his hands still up in the air, the accused’s shirt and jacket were lifted, and Sgt. Moore was able to observe the butt of a gun in the accused’s waistband even before he started the pat down search. He immediately yelled “gun” and then pushed the accused to the ground.
[28] PC Hawkins was in the process of conducting his pat down search of the driver when he heard Sgt. Moore say “gun”.
[29] When Sgt. Moore yelled “gun”, one of the TRU officers, either PC Caggiano or PC Jansen Storring, helped Sgt. Moore handcuff the accused behind his back. PC Caggiano removed the gun and took possession of it. At this point, both Sgt. Moore and PC Hawkins believed they had reasonable grounds to believe the occupants of the vehicle had firearms, so the driver and the accused were arrested for possession of a firearm.
[30] Very soon after the discovery of the firearm, the Nissan that was parked behind the BMW suddenly accelerated out of its parking spot, took a sharp U-turn to turn westbound - due to PC Caggiano’s truck blocking the eastbound route - damaged the moulding on the front of its wheel well on the curb, and then accelerated westbound. None of the officers occupied with the gun were able to pursue the Nissan.
[31] The main point of contention in the evidence is exactly when the firearm was discovered by Sgt. Moore. Sgt. Moore states that he observed the gun before he conducted his pat down search, when the accused was exiting the vehicle with his arms raised. The difficulty with his evidence is that a different sequence of events was recorded by PC Gallucci several hours later in the running brief that was prepared on the arrest. In his role of keeping a running brief, when the officers involved returned to the police station, they would provide PC Gallucci with an oral account of what occurred, which he would put in the brief. This running brief then formed the basis of two Informations to Obtain (“ITO”), sworn by PC Gallucci in support of two search warrants. The running brief, which was then repeated in the ITOs, clearly states that Sgt. Moore reported that he conducted the pat down search first, and in the process, discovered the gun.
[32] PC Hawkins did not hear the interaction between Sgt. Moore and the accused and was not able to see when the gun was discovered.
[33] PC Caggiano stated that he did not observe the pat down search conducted by Sgt. Moore as he had his taser focused on the rear passenger. Only after he heard “gun” did he pay attention and move the focus of his taser to the accused. PC Caggiano conceded that he wrote in his own notes that Sgt. Moore conducted the pat down search and discovered the firearm. He stated that his notes were based on his assumption that this is what occurred when he heard Sgt. Moore yell “gun”. He maintains that he does not know for sure as he did not personally observe the accused exiting the car and the discovery of the firearm.
[34] PC Gallucci started preparing the running brief at approximately 1:54 a.m., several hours after the incident. PC Galluci testified that as the officers brief him, he types what they say. He believes it is possible for the officers to see what he is typing but he does not know if any of the officers who briefed him were actually watching or if they needed glasses to do so.
[35] As indicated, according to the running brief, Sgt. Moore told him that the male exited the vehicle, he conducted a pat down search, and found the firearm. PC Gallucci claims that he would have recorded it this way because that is what Sgt. Moore told him. He has no independent recollection of the exact words that Sgt. Moore used, but relied on his notes. He believes he would not have confused Sgt. Moore seeing a gun prior to a pat down search, as that is an important detail. If Sgt. Moore told him that he saw the gun first, he would have written that down. While he concedes that it is possible that he mixed up the order of events, he does not think he would make this kind of mistake.
[36] In determining what actually occurred, I have to weigh the direct evidence of the officer who discovered the gun against the evidence of two officers who did not witness firsthand how the gun was discovered but wrote down what they thought happened or what they were told happened.
[37] In light of all the circumstances, I accept the evidence of Sgt. Moore that the gun was discovered prior to the pat down search. I make this finding for a number of reasons.
[38] First of all, Sgt. Moore is the only person to give direct evidence on the issue. PC Gallucci was not at the scene. He testified that he swore an ITO based on his honestly held belief as to what happened, which was based on what he was told. His notes of what occurred were second hand – relayed to him by another person. He also stated that having previously worked in patrol, he would have assumed a pat down search would have occurred in this scenario.
[39] PC Caggiano was not able to observe what happened. By his own evidence, he was focused on the individual in the back seat, with his taser focused on him. It seems unlikely that PC Caggiano would relax his concentration on the rear passenger to observe what Sgt. Moore was doing. His evidence is clear that while focusing on the rear passenger, he heard Sgt. Moore yell “gun”. He recorded what he assumed had happened, not what he observed.
[40] Second, I note that no evidence was provided of Sgt. Moore’s own notes. Clearly they existed, as Sgt. Moore requested permission of the court to refer to them, indicating that they were been prepared shortly after the event in question and that there were no alterations to them. The accused did not object to Sgt. Moore using the notes to refresh his memory. If the accused had seen that Sgt. Moore’s own notes stated that he found the gun as a result of the pat down search, I would assume it would have been put to Sgt. Moore in cross-examination to challenge his credibility.
[41] Accordingly, I find that the firearm was observed upon the accused exiting the vehicle with his hands up, prior to Sgt. Moore conducting the pat down search.
III. Analysis
[42] I will analyze the two alleged Charter breaches in the order in which they allegedly occurred.
A. Section 9
[43] Section 9 of the Charter guarantees that everyone has the right not to be arbitrarily detained or imprisoned.
[44] A detention is not arbitrary if (a) the detention was authorized by law, (b) the authorizing law was not arbitrary, and (c) the manner in which the detention is carried out was reasonable: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 124.
[45] A police officer can, lawfully, briefly detain a person if the officer has reasonable grounds to suspect that the individual is connected to a recently committed or still-unfolding criminal offence and that the detention is reasonably necessary in all the circumstances. The detention must be conducted in a reasonable manner. A detention for investigative purposes must be brief in duration and should not impose an obligation on the detained person to answer questions posed by the police: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45.
[46] Reasonable grounds to suspect is a lower standard than reasonable grounds to believe, and involves a standard of possibility, not probability. Factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not the probability of doing so: Mann, at para. 34; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 28 and 32.
[47] An investigate detention will not infringe a detainee’s rights where it is carried out in accordance with the police officer’s common law powers. This means that the detention must be 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 detained and the recent or ongoing criminal offence: Mann, at paras. 20 and 34.
[48] Reasonable grounds to suspect must be grounded in objective facts. Given that reasonable suspicion deals with possibilities, in some cases, the police may reasonably suspect that innocent people are involved in crime. Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience. A constellation of factors will not be sufficient to ground reasonable suspicion where it amounts merely to a generalized suspicion, because that would include such a number of presumably innocent persons as to approach an objectively administered random basis for search. While some factors alone could give rise to a reasonable suspicion, other elements in the constellation will not support reasonable suspicion except in combination with other factors. The totality of circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion: Chehil, at paras. 27-33.
[49] The overall reasonableness of the decision to detain must be assessed against all of the circumstances, including the extent to which the interference is necessary to perform the officer’s duty, the liberty interfered with, the nature and extent of that interference, and the importance of that duty to the public good: Mann, at para 39; R. v. Godoy, [1999] 1 S.C.R. 311, at para. 18.
[50] This includes an assessment of the seriousness of the offense, the information known to the police about the suspect or crime, and the extent to which the detention was reasonably responsive or tailored to the circumstances. This means balancing the seriousness of the risks to public or individual safety with the liberty interests of members of the public to determine whether, given the extent of the risk, the nature of the stop is no more intrusive of liberty interests than is reasonably necessary to address the risk: R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 31; R. v. Aucoin 2012 SCC 66, [2012] 3 S.C.R. 408, at para. 36.
[51] The Applicant argues that PC Hawkins and Sgt. Moore’s detention of him and the other passengers of the car, was the product of unconscious bias, given their race. The accused argues that people of another race or gender may not have been detained by the police.
[52] I do not agree. While I do not disagree that the court must be alert to unconscious bias, in this situation, I do not find that the officers’ conduct was affected by it. I find their response would have been the same, regardless of the race or gender of the people involved. I make this finding for the following reasons:
a) This situation arose because a witness saw someone point a gun at another in a residential neighbourhood;
b) The officers investigating this matter were aware that a handgun was seen by a witness and that some of the people involved remained on the scene;
c) The witness who called 9-1-1 said that she only got a glimpse of what happened and that she “thought” the man with the gun had driven away - that it “made sense” - but did not convey any degree of certainty that the gun had left the scene;
d) The witness was only able to describe the man with the gun based on his race, height and what he was wearing;
e) The witness was not able to tell the officers what colour the car was that had left;
f) The witness pointed the officer to the other car that was involved, and that had remained on the scene;
g) This was not a random investigation; it was a focused investigation based on information received from a witness and reported to the police; the officers arrived within a few minutes of receiving the dispatch about the sighting of the gun;
h) The witness was still concerned about the situation despite believing it possible that the man with the gun had left, and still felt it appropriate to call the police, especially given that the other parties involved in the incident remained on scene; and
i) When PC Hawkins first drove by, the men on the boulevard did not waive him over for assistance, but in fact, moved from the boulevard and got into their car when the officer activated his emergency lights and approached.
[53] In these circumstances, I find that there are ample objective reasons for the police to be cautious and detain the men for a firearms investigation. Individuals who were connected to the firearm that was reported remained at the scene. These men went to their car when a police officer activated his emergency lights. From this I infer that they were planning to leave. While the witness described the colour of the coat of the gunman, which was not seen on any of the individuals, a coat is something that is easily removed. The remainder of her description, albeit vague, matched the men on the boulevard. Also, the officer had no way of knowing whether all the occupants of the vehicle were there voluntarily. None of them indicated that they were a victim of a firearm offence and needed assistance.
[54] Based on the constellation of factors, I find that the officer had reasonable grounds to suspect that these men were connected to a criminal offence – namely, possession of a firearm. Other than the colour of the coat, they matched the vague description of the gunman. Similar to the facts in Clayton, the police arrived within minutes of receiving the call about the gun. The men remaining on the scene got into their car when the police approached, attempting to leave. There was uncertainty on the part of the police if the gunman had actually let the scene. The possible presence of a firearm posed a substantial security risk.
[55] I also find that the manner of the detention of the accused was reasonable. The officer immediately advised the occupants of the car of the reason for their detention. While the accused was asked to raise his hands, no firearms or other uses of force were utilized by the officer. Sgt. Moore only held the accused by the wrist when he was asked to exit the vehicle and no other use force was used. There was potentially a firearm at the site, which would have been extremely dangerous for the officers, the community, and potentially the others in the vehicle.
[56] There was no evidence that the accused was unnecessarily questioned, and the detention was short in duration prior to the discovery of the firearm.
[57] Accordingly, I find there was no violation of the accused’s rights under s. 9 of the Charter.
B. Section 8
[58] Section 8 of the Charter guarantees that everyone has the right to be secure against unreasonable search or seizure.
[59] The accused argues that he was searched upon detention and that the search was unreasonable. He argues that the search was in violation of his rights under s. 8 of the Charter.
[60] Any search incident to the limited police power of investigative detention is a warrantless search, which is presumed to be unreasonable unless (a) the search is authorized by law, (b) the law itself is reasonable and (c), the manner in which the search is carried out is also reasonable: R. v. Collins, [1987] 1 S.C.R 265 at p. 278; Mann, at para. 36.
[61] The general duty of officers to protect life may, in some circumstances, authorize the power to conduct a pat down search incident to investigative detention. To be lawful, the police office must believe on reasonable grounds that his or her safety, or the safety of others, is at risk. The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition: Mann, at para. 40.
[62] Where an officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat down search of detained individuals. This must be conducted in a reasonable manner: Mann, at para. 45.
[63] In this situation, I have found that the search had not yet been conducted when the gun was discovered. Accordingly, there can be no violation of the accused’s rights under s. 8 of the Charter. Sgt. Moore did not conduct a pat down search until after the gun was discovered and the accused was arrested. In these circumstances, a pat down search was warranted to ensure the safety of the officer and others. A handgun had been discovered. The officer had to ensure all parties’ ongoing safety.
[64] Nonetheless, even if I was wrong and that the gun was discovered on a pat down search, I find that the search was reasonable. Sgt. Moore was aware that a firearm had been seen but was not yet apprehended. As a result, he had a reasonable belief that his safety and the safety of others was possibly at risk.
[65] In so finding, I must look at the totality of circumstances that were present when the officers approached the BMW. A gun was witnessed on the scene. The gun had not yet been located. The witness who saw the gun was not certain the man with the gun had left the scene. The other men involved in the incident, who remained on the scene with their vehicle, were pointed out by the witness. The accused and the other passengers got into the car when they saw the police approach. The occupants of the vehicle denied any involvement yet one of them was witnessed as being, at the very least, someone who had a gun pointed at their head.
[66] In these circumstances, even if the gun was found on a pat down search, the search was reasonable in the totality of circumstances.
[67] Accordingly, I find that there was no violation of the accused’s rights under s. 8 of the Charter.
C. Section 24(2)
[68] Having found no violation of the accused’s Charter rights, it is not necessarily to conduct this analysis.
IV. Conclusion
[69] For the foregoing reasons, Mr. Brown’s application is dismissed.
Fowler Byrne J.
DATE: March 28, 2023