R. v. Dougherty, 2026 ONSC 454

CITATION: R. v. Dougherty, 2026 ONSC 454

COURT FILE NO.: 24-90000469-0000

DATE: 20260123

SUPERIOR COURT OF JUSTICE – ONTARIO

RE:

HIS MAJESTY THE KING, Crown/Respondent

AND:

dougherty, Shaquille, Accused/Applicant

BEFORE: Mainville J.

COUNSEL: David Morlog and Abrahim Ahmed, for the Crown/Respondent

Josephine Baldassi, for the Accused/Applicant

HEARD at Toronto: December 1, 2, 3 and 5, 2025

REASONS FOR JUDGMENT

MAINVILLE J.

1On June 5, 2023, Shaquille Dougherty was the victim of a drive-by shooting during which he suffered a gunshot wound to his left arm. After his uncle called 911 to obtain the assistance of the police, the police attended to Mr. Dougherty who was outside in a parking lot near where the shooting had taken place. They ultimately discovered various controlled substances and a loaded 40 calibre semi-automatic handgun in a bag said to have been carried by Mr. Dougherty immediately after the shooting and located inside his uncle’s vehicle.

2Mr. Dougherty is accordingly charged with drug and firearm offences, including possession of cocaine, fentanyl and oxycodone for the purpose of trafficking.

3He challenges the admissibility of the drugs and firearm seized, in addition to other evidence, based on what he alleges are violations of his rights under ss. 7, 8, 9 and 10(b) of the Charter. He also seeks a stay of proceedings based on these same violations.

4On the trial proper, the defence takes the position that the Crown has not proved beyond a reasonable doubt that Mr. Dougherty had knowledge and control of the contraband – that is, that he was in possession of it. It argues that I should therefore acquit Mr. Dougherty of the offences charged.

5The evidence on the trial and Charter voir dire was heard in a blended fashion. It was agreed that all of it, including the accused’s testimony, is admissible on the Charter application and the trial proper.

6The Crown called several police officers and Mr. Dougherty’s uncle as witnesses. The accused testified in his defence.

7I find no violation of Mr. Dougherty’s Charter rights and therefore do not need to address the remedies requested. I consider those Charter issues first before considering the trial on the merits. Ultimately, I find that the Crown has proved its case on all counts beyond a reasonable doubt.

Facts

8On June 5, 2023, Mr. Dougherty was driving near his family’s home in a black Nissan Kick that did not belong to him. There were no passengers in the vehicle. He encountered his uncle driving by and waved him down so that he would let him into the residence.

9Mr. Dougherty’s uncle turned his car around to do so. In the interim, Mr. Dougherty’s vehicle was shot at, and he suffered a gunshot wound to the arm. Mr. Dougherty exited the vehicle and took refuge in his uncle’s vehicle, a black Nissan Qashqai.

10Video evidence captures this occurrence and shows Mr. Dougherty carrying a black plastic bag to the front passenger seat of his uncle’s car.

11Mr. Dougherty’s uncle called 911 and requested police assistance. He informed the 911 operator of the drive-by shooting and that he was driving the victim to the hospital. The operator told them to stay put and that an ambulance would come to them instead. Mr. Dougherty’s uncle accordingly pulled into a nearby plaza parking lot. Mr. Dougherty was bleeding in the vehicle and could be heard in the background expressing pain and indicating that he needed to get to the hospital right away.

12The police were dispatched and located Mr. Dougherty outside the vehicle in the parking lot of the plaza, sitting on the curb. His uncle was standing outside his vehicle. Police officers first approached cautiously with at least one firearm drawn before observing that Mr. Dougherty was injured and the uncle informing them that he had called 911.

13Officers then began administering first aid to Mr. Dougherty, who was visibly angry and in pain. They continued to do so until a medic and eventually the ambulance arrived. Officers remained present as Mr. Dougherty was being treated by EMS, asking him questions about the shooting.

14In the meantime, Mr. Dougherty’s uncle informed the police that his nephew had a bag in the glovebox and gave permission to search his vehicle. The police retrieved the bag and observed it to contain a firearm.

15Mr. Dougherty was placed under arrest and transported to the hospital by ambulance. The police remained with him at the hospital and eventually re-arrested him after the police also discovered controlled substances inside the bag. He was subsequently put in touch with duty counsel while at the hospital.

Alleged Charter Violations

16The crux of Mr. Dougherty’s complaint is that the police treated him as a suspect, not a victim requiring urgent medical care. He argues that the police detained him from the outset of the interaction, without grounds and with no regard for his well-being and medical needs. In treating him in the manner they did – and considering that he was in pain and wanted to go to the hospital for his gunshot wound – he was effectively subjected to excessive force by the police. He also argues that the police lacked grounds for his arrest. He submits that based on the above, the police breached his rights under ss. 7 and 9 of the Charter.

17Mr. Dougherty also argues that the police violated his right to be free from unreasonable searches and seizures under s. 8 of the Charter. He submits that they unreasonably subjected him to the equivalent of a strip search including in a public area, and that the warrantless search of his uncle’s vehicle and the bag located therein was unconstitutional. Finally, he argues that a delay in informing him of his right to counsel and in implementing that right occasioned a violation of s. 10(b) of the Charter.

General Findings of Fact

18I find that up until the time the police located the firearm and arrested Mr. Dougherty, he was a victim in the eyes of the police and was treated as such.

19Indeed, when the police first attended the plaza, they tended to Mr. Dougherty and administered first aid pending the ambulance’s arrival. The various body-worn camera (BWC) footage makes clear that this was the officers’ central focus and that they were assisting Mr. Dougherty.

20Certainly, there was momentary confusion when officers first arrived on scene in the midst of a dynamic situation. This was only natural. The police had been advised of a drive-by shooting with a shooter or shooters still at large. The shooting had occurred around the corner from the plaza. Officer Storey, one of the first officers on scene, arrived with information that the suspect vehicle was a Black Nissan. He observed a Black Nissan upon arriving at the plaza and believed it to be a suspect vehicle. Officers approached with caution. They then came upon Mr. Dougherty and came to understand that he was a victim of crime. His uncle informed them that he had called 911.

21As soon as they received this information, officers changed their stance and began administering first aid.

22The officers attending to Mr. Dougherty tried to determine whether he had been injured anywhere else. It is in this context that Officer Arnott asked him to lift his shirt and raise the bottom of his shorts to ensure there were no other wounds. She explained that injured persons can be in a state of shock and, with the adrenaline, not even be aware of all their injuries. They are trained to perform such an assessment as a priority, before anything can get worse. Officer Dean’s evidence was to the same effect. I readily accept that in providing these directions to Mr. Dougherty and checking for additional injuries, the police were doing what they were medically required and trained to do.

23Indeed, the first paramedic who arrived on scene did the very same thing. I accept that the police were rendering assistance to Mr. Dougherty, not searching him for drugs or weapons.

24The officers did ask Mr. Dougherty questions about the shooting, such as what happened, where he lived, and who might’ve shot at him. I accept that they did this in his capacity as a victim of the shooting.

25Indeed, the police were also investigating the shooting at this time. But they were treating Mr. Dougherty as the victim of that shooting, and nothing else. The questions put to him were naturally asked of him as a person who had just been shot in broad daylight. He was not a suspect in any way. And despite asking these investigative questions, they prioritized his medical treatment.

26It is true that one officer roamed around for some time carrying an assault rifle. But the presence of this weapon was not unjustified given that the police were responding to an active shooting in a nearby public space with no one having yet been apprehended for it. The firearm was not pointed at Mr. Dougherty or anyone else. While its presence may have been intimidating, Mr. Dougherty was at this time being treated by several officers who were not acting hostile in any way.

27Mr. Dougherty only became the subject of investigation once the police located the contraband in his uncle’s vehicle. His uncle voluntarily offered this information to the police, unprompted. He also consented to the police searching his car including the glovebox to retrieve the bag.

28I found Gerald Dougherty, Mr. Dougherty’s uncle, to be very credible. He testified in a straightforward manner, without any apparent agenda or bias. He was fair and measured in his responses and spoke plainly. His evidence made sense and many aspects of it was corroborated by video evidence.

29While there may be reliability issues on minor points based on memory and perception, such as how far he was standing from his nephew in the parking lot, these do not undermine his credibility and the gist of his evidence. He came across as an upstanding individual who is upfront, as he was with the police on June 5, 2023. He is retired and, at the age of 64, does not have a criminal record. I assessed him to be a straight-shooter and to have testified honestly and candidly to the best of his knowledge and ability.

30Once the police found the firearm and drugs that had been attributed to Mr. Dougherty, they clearly had grounds to arrest him. Mr. Dougherty went from victim of a shooting, to also being arrestable for possession of a firearm.

31It is against these factual findings and background that I turn to address the specific Charter violations raised.

Section 9: No Arbitrary Detention or Arrest

32The defence argues that Mr. Dougherty was under detention without grounds from the moment he was directed to the parking lot and the police arrived on scene.

33I completely reject this characterization of his status prior to arrest.

34As set out above, Mr. Dougherty was the victim of a shooting and was treated by the police solely as a victim up until the point of his arrest. He was never detained in the intervening period.

35The Supreme Court in R. v. Suberu, 2009 SCC 33, at paras. 3 and 23, explained that not every interaction with the police will amount to a detention for the purposes of the Charter, even when a person is asked questions or is physically delayed by contact with the police, and indeed, even where the person is under investigation for criminal activity: detention under ss. 9 and 10 of the Charter refers to “a suspension of the individual’s liberty interest by a significant physical or psychological restraint”.

36Mr. Dougherty was not initially under investigation, and he was never detained for this purpose. Up until the point of his arrest, the police did not subject him to physical or psychological restraint.

37Importantly, Mr. Dougherty’s uncle called 911 for police assistance because his nephew had been shot. The police responded to the call for this purpose and based on this information.

38As for being directed to stop and wait for an ambulance, the purpose of this direction from the 911 operator was to get emergency medical assistance to Mr. Dougherty. Mr. Dougherty’s uncle decided to follow this direction and stopped his vehicle in the plaza to await the ambulance there.

39I have no reason to question this direction as being based on anything other than best practice in the face of a medical emergency. There is certainly no basis to say that it was given in bad faith or that it led to Mr. Dougherty’s detention by the state. Detention does not crystalize as soon as contact is made with the police, even where a person is delayed.

40The 911 dispatcher understood that Mr. Dougherty was the victim of a shooting, that he needed medical attention and that he was headed to the hospital. He was advised that an ambulance would instead be dispatched to him. This did not result in a detention.

41The police happened to arrive first and observed that Mr. Dougherty had been shot. As per their duty as first responders, they began administering first aid pending EMS’s arrival.

42While one officer approached Mr. Dougherty’s uncle with his gun drawn and several officers approached the scene ready to pull out their guns if needed, they very quickly changed their stance as they realized that Mr. Dougherty was the victim of a gunshot wound and they came to his aid. The initial police approach was justified given the limited information the police were acting on in responding to an active shooting call. This was a chaotic scene, and they took mere moments to sort out the situation. Investigations and detentions are often a dynamic process and, in such a context, a Charter analysis “ought not to be reduced to an over-analytical parsing of events into static moments without practical regard for the overall picture”: R. v. Amofa, 2011 ONCA 368, at para. 19.

43When it was put to him in cross-examination that he knew the police were there to help him, Mr. Dougherty answered “somewhat”. He acknowledged running towards the police when they arrived. He heard his uncle calling 911 for help. They attended this location because he had been shot and his uncle requested the assistance of the police.

44I find that prior to his arrest, Mr. Dougherty did not sense that he was being detained. He was cooperating with the administration of first aid by the police, lifting his shirt and shorts to assist with locating any other wounds or injuries. Mr. Dougherty was displaying a significant amount of anger at this time and the officers were trying to calm him down, for his own well-being. Officer Arnott told him “Buddy, it’s OK, we’re gonna figure it out”.

45While the police questioned Mr. Dougherty about the shooting at the same time as they administered first aid, they did so in his capacity as the victim and a witness to the shooting. Indeed, they had no reason to believe that Mr. Dougherty was involved in any wrongdoing at that point in time. It is clear from the officers’ statements that that is what they were doing – not treating him like a suspect.

46The questions they were asking him – in addition to amounting at most to general questioning that does not trigger a detention – related to locating the shooter and understanding what had happened in respect of the incident for which he was a victim. He could not have understood it any other way.

47Mr. Dougherty did eventually become the subject of investigation, but of a different investigation. The first investigation was into the shooter or shooters who wounded him. Mr. Dougherty was merely a victim in relation to that investigation. It was not until a firearm was mentioned and located that a second investigation was initiated, into that firearm. Mr. Dougherty was immediately arrested for that. He was not detained in the interim.

48It is true that the police intended to travel with him by ambulance even prior to his arrest, for an investigative purpose. They were interested in collecting the bullet fragments lodged in Mr. Dougherty’s arm, to assist in the investigation of the shooting. Again, Mr. Dougherty was the victim in that investigation. The police explained that it is their practice to attend the hospital with a victim of a shooting.

49Mr. Dougherty was not restrained in any way until the point of arrest.

50The circumstances that existed here are precisely ones referenced by the Supreme Court at para. 36 of R. v. Grant, 2009 SCC 32, as not constituting a detention:

We may rule out at the outset situations where the police are acting in a non-adversarial role and assisting members of the public in circumstances commonly accepted as lacking the essential character of a detention. In many common situations, reasonable people understand that the police are not constraining individual choices, but rather helping people or gathering information. For instance, the reasonable person would understand that a police officer who attends at a medical emergency on a 911 call is not detaining the individuals he or she encounters. This is so even if the police, in taking control of the situation, effectively interfere with an individual’s freedom of movement. Such deprivations of liberty will not be significant enough to attract Charter scrutiny because they do not attract legal consequences for the concerned individuals.

51Mr. Dougherty was not detained until the time of arrest. And there were sufficient grounds for his arrest, on the basis of the loaded firearm the police located in a bag in the vehicle, and the uncle’s statement that the bag belonged to Mr. Dougherty. His arrest was not arbitrary.

Section 7: No Excessive Use of Force or Issues with the Manner of Arrest

52The defence argues that the police were not focused on Mr. Dougherty’s care, as demonstrated by: they did not ensure that an ambulance was on the way; there was a heavy police presence; they asked him investigative questions; and they didn’t afford him the privacy usually afforded to patients, such as by not turning off their BWCs and entering the ambulance while he was being treated by paramedics.

53I completely reject the notion that the police were not focused on Mr. Dougherty’s medical care. They promptly and carefully administered first aid in the manner they were trained to do.

54The officers knew from the get-go that an ambulance was on the way. Officer Dean testified that that is automatic when a priority 1 shooting call like this one is placed. In any event, Officer Storey did testify that he requested an ambulance after ascertaining that Mr. Dougherty had been shot. Based on the video footage, there was at least one paramedic on scene by 15:18.

55The police in this case were the first to respond. Rather than waiting for EMS, they started administering first aid. The fact that the ambulance was not the first to arrive cannot be equated with a lack of attention to Mr. Dougherty’s medical needs, as submitted by the defence.

56The police observed the one wound and immediately checked Mr. Dougherty for other wounds. The paramedics undertook the same exercise when they attended. As set out above, this was not a pretext for searching Mr. Dougherty.

57The police then applied a bandage to Mr. Dougherty’s wound. They tried to calm him down as he was very agitated.

58Defence counsel submitted that Mr. Dougherty should have immediately been brought to the hospital as he had requested. At minimum, counsel argues, he should have been afforded some privacy, rather than being dealt with in the middle of the parking lot in public view. Counsel pointed to a bystander video of Mr. Dougherty that was later posted online, which was upsetting to him and his family.

59As set out above, Mr. Dougherty’s uncle was the one who decided to stop at the plaza to await an ambulance, based on the 911 operator’s good faith direction in the face of medical emergency.

60Mr. Dougherty then exited his uncle’s car on his own. He put himself in public view before the arrival of police. Officers then merely treated him medically where he was. The ambulance was already on its way.

61Counsel suggested that they should have placed him in a car to treat him, pending the ambulance’s arrival. Officer Arnott testified that based on their training, it was not advisable to move him as there may have been internal injuries that they could not detect. I accept this to be the case. The officers had good reason not to move Mr. Dougherty. He was suffering from a gunshot wound and in clear distress. Even EMS did not initially move him anywhere as first aid continued to be administered in the parking lot. Officer Dean also testified that Mr. Dougherty was very upset and moving around a lot, not staying put. This is confirmed by the video evidence.

62I see no basis to suggest that the police should have done anything differently.

63In support of her argument that excessive force was used, counsel also pointed to the heavy police presence and one officer brandishing an assault rifle in front of Mr. Dougherty, in the face of him being visibly in pain and requesting to go to the hospital. Counsel also pointed to the police questioning Mr. Dougherty about the investigation in the midst of him needing and receiving medical treatment.

64The police were dealing with a dynamic situation involving an active shooting call. The fact that there were several officers around as they waited for the ambulance was to be expected in the circumstances. Some were speaking to the uncle who had called 911, while others were canvassing the scene including video footage of the area. Mainly they were tending to Mr. Dougherty as the victim of the shooting, whether to administer medical treatment or ask questions relating to the shooting that he was a victim of. No one at that time had their weapon drawn and they were not acting with any aggression or hostility; quite the contrary.

65The officer who had an assault rifle strung around his neck, Officer Henderson, explained that these weapons are brought to shooting or firearm calls for the safety of the victim and officers. In this case, they had a shooter at large and an unknown number of suspects. The officer quickly put it away once the scene was secure. It was never pointed at the accused or anyone else. While it may have been intimidating, the presence of the weapon was justified.

66Moreover, the fact that investigative questions were asked as Mr. Dougherty was being treated does not detract from the fact that the officers’ priority was rendering the first aid he needed. This did not prevent them from asking questions of him as the victim of the shooting to try to determine what had happened and what other officers who were not on scene should be on the lookout for in terms of a shooter or shooters at large. Refraining from doing so would have been counterproductive and nonsensical in the circumstances.

67While at least one officer entered the ambulance while Mr. Dougherty was being treated by EMS, the police did not stand in the paramedics’ way as they provided medical treatment. They complied with directions and requests made by EMS personnel.

68Counsel also argued that the fact that the police recorded Mr. Dougherty receiving medical treatment on their BWCs shows that they were not treating him as they would a patient, as was the fact that the officers did not warn him that they were recording.

69I address the use of BWCs in the circumstances of this case below, in the context of the s. 8 argument where it was more directly raised. Suffice it to say for present purposes that there were several moving parts to the police intervention on June 5, 2023, and that the use of BWCs was entirely warranted and indeed advisable. The fact that these cameras captured Mr. Dougherty, including in a vulnerable state, does not mean that the police were not initially or also treating him as a patient. Nor does it mean that Mr. Dougherty’s s. 7 rights were violated.

70Similarly, the fact that they omitted to inform him that he was being recorded, amid trying to render first aid, does not inform the manner in which they viewed and treated the accused. Counsel on the one hand argues that the police should have been focused on Mr. Dougherty’s health first and foremost, yet on the other hand argues that they should have been talking to him about the BWCs recording. I find that it is precisely because they were focused on the former that they did not turn their minds to the latter.

71I accept that up until the point of arrest, the officers’ focus was still on Mr. Dougherty’s medical care, and they treated him as a victim. There was no use of excessive force. Nor were there any issues with the manner of Mr. Dougherty’s arrest and subsequent treatment once he became a target of police investigation.

Section 8: No Strip Search or Unreasonable Invasion of Privacy

72Defence counsel argues that Mr. Dougherty was subjected to a strip search when his body was searched and exposed by the police, including in public view and on BWC. This, she says, occurred in the parking lot of the plaza when police first attended, in the ambulance while still on scene, and in the hospital.

73As set out in R. v. Golden, 2001 SCC 83, at para. 47, a strip search is “the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments.”

74In my assessment, the police in this case were not seeking to inspect Mr. Dougherty’s private areas, such that it is questionable whether he was in fact subjected to a strip search.

75Officer Arnott asked Mr. Dougherty to lift his shirt. Instead, he proceeded to remove it entirely. Similarly, after EMS personnel directed him to check his groin area for injuries, Mr. Dougherty, of his own volition, pulled down his shorts, thereby exposing his underwear. The police did not direct him to remove his shorts, nor were they conducting a visual examination of his private area. The instruction to check himself and the officers’ actions in checking his body were not done for the purpose of them examining his private areas.

76In any event, their examination did not in my view amount to an unreasonable search.

77Section 8 of the Charter only protects against a claimant’s reasonable expectation of privacy against unreasonable state intrusion: R. v. Tessling, 2004 SCC 67 at para. 18. It does not in my assessment find application where the state “intrusion” relates to the police acting not in their investigative capacity but in their capacity as first responders who are administering first aid. There can be no reasonable expectation of privacy and no “search” within the meaning of s. 8 in such a circumstance.

78In Golden and related cases, the issue was the power to strip search incident to arrest. The context here is very different. I have already found that Mr. Dougherty was not detained, much less under arrest, at the time the police were rendering first aid in the parking lot. Rather, he was receiving medical treatment.

79Counsel argued that the officers should have turned off their body-worn cameras, as Mr. Dougherty’s body was being exposed.

80Officers Dean and Arnott testified that they were focused on administering first aid. And Officer Arnott did turn away when he was checking his groin area, to afford privacy.

81The police were certainly acting properly by having their BWCs turned on as they attended an active scene relating to a shooting investigation. There was at least one shooter at large. As set out above, the police had not initially ascertained whether Mr. Dougherty or his uncle were victims or not. The police were dealing with the matter in a public space. Civilians in the vicinity, such as Mr. Dougherty’s uncle, had potential information to offer. Even Mr. Dougherty as the victim of the shooting had important information that should justifiably be captured on BWC as the police attended to their duties.

82BWCs are intended to offer transparency of police actions and better protect individual rights. They provide an objective and reliable record of exchanges between the police and ordinary citizens, witnesses, suspects or detainees.

83Once officers began administering first aid, that was their primary focus. They did not apparently turn their minds to whether they should be turning off their video cameras or not. The images of Mr. Dougherty that were recorded in the parking lot were automatically captured by the BWCs – they were not purposely obtained. Images of private matters made automatically by a recording BWC will not result in an automatic Charter violation.

84Mr. Dougherty was already outside in the public domain and visible to bystanders when the police arrived on scene. The police did their job and administered first aid on site, as should have been the priority.

85As the Supreme Court held in R. v. Wong, [1990] S.C.J. No. 118, 60 C.C.C. (3d) 460, at para. 47, video surveillance can, where there is a reasonable expectation of privacy, constitute a search within the meaning of section 8 of the Charter:

A person has the right, under s. 8, to be free from unauthorized surreptitious electronic surveillance where that person has a reasonable expectation that the agents of the state will not be watching or recording private activity nor monitoring or recording private conversations. Whether such an expectation is reasonable will depend on the particular circumstances; a person does not necessarily enjoy this right in all circumstances.

86If the recording is not surreptitious, it will be difficult to find that there was a reasonable expectation of privacy. In my assessment, persons knowingly and overtly communicating with the police do not have a reasonable expectation of privacy in those interactions. And there is plainly no reasonable expectation of privacy in dealing with the police in a public parking lot, including when they are providing medical attention: see R. v. Tuck, 2009 O.J. No. 6090 (S.C.J.); R. v. Ismail, 2013 O.J. No. 2193 (Ont. C.J.).

87The circumstances here are unlike those involving tracking devices or other forms of electronic surveillance in public spaces. They do not engage the right to anonymity recognized by appellate courts in such contexts: see R. v. Wise, [1992] 1 S.C.R. 527; R. v. Spencer, 2014 SCC 43, at para. 43.

88Finally, the fact that the police did not inform Mr. Dougherty that they were recording does not confer an expectation of privacy. This is not an instance of surreptitious recording: BWCs are plainly visible on police uniforms, and their existence is widely known. Officer Dean testified that he did not inform Mr. Dougherty he was recording because he was trying to make sure he was OK. The situation was hectic, and he did not think of it.

89As for recording Mr. Dougherty inside the ambulance while he received medical attention, Officer Dean did wait to go inside the ambulance because Mr. Dougherty might be undressed. He did then enter with his BWC on, as Mr. Dougherty continued to receive medical attention, but none of his private areas were exposed.

90In any event, not everything done or said in a hospital or emergency room is wrapped in a cone of constitutionally-protected privacy: R. v. Singh, 2024 ONCA 66, at paras. 52-53 and 56. The same can be said of an ambulance: see R. v. Lachappelle, 2007 ONCA 655, at paras. 34-37; Singh, at para. 39. Section 8 is not engaged simply because the police are present in an ambulance or hospital room and making observations.

91Finally, the video capture of the side of Mr. Dougherty’s buttocks in his hospital room was accidental. This was not a situation where the police sought to make a visual inspection of his private areas.

92Officers Dean and Arnott attended the hospital with Mr. Dougherty and turned off their BWCs to respect patient privacy. Officer Dean turned his BWC back on temporarily to re-arrest Mr. Dougherty after having received information about the drugs located in the black bag.

93When he did so, the first several seconds of the video captured Mr. Dougherty lying in a hospital bed, with the side of his buttocks uncovered. The video then shows Officer Dean moving up so that only Mr. Dougherty’s upper body is captured. He proceeds to re-arrest him and inform him of his rights anew, given that his jeopardy had changed. The video ends thereafter.

94Officer Dean testified that it was important for him to record this occurrence as there was a change in the accused’s jeopardy, and he wanted to document that he had been notified of this and that his rights and the police caution had been reiterated. The accused is seen on camera nodding along to what the officer is stating, indicating that he understood.

95Officer Dean indicated that he sought to minimize the intrusion on Mr. Dougherty’s privacy, by placing himself at the head of the bed so that his lower body would not be captured. He then turned the BWC back off for privacy reasons, as Mr. Dougherty was still receiving medical treatment, and people were coming and going.

96The evidence revealed that when officers activate their BWCs, the BWC automatically preserves 30 seconds of the video image, without audio, leading up to the BWC being activated. This makes sense given that this may allow for the recording of an unforeseen occurrence that took place when the BWC was not activated and that constituted the reason for activating the camera.

97The functioning of this mechanism can be seen on Officer Dean’s BWC recording from the hospital. Indeed, Officer Dean’s hand is seen on the BWC footage activating the camera, as he testified to. This occurs when he is already at the head of the bed, facing Mr. Dougherty’s upper body. I am able to infer that the footage that immediately precedes this, and that partially shows Mr. Dougherty’s behind, was inadvertently recorded prior to activation.

98Defence counsel argued that this worsened the breach, given that it signifies that the BWC is always recording.

99I do not accept this argument. The recording is only retained if and when the officer activates the BWC, and only for a few seconds preceding the activation. As indicated above, there is good reason for this. This functionality does not generally result in an invasion of privacy, or one that is any greater than the one that results from the point of activation of the BWC.

100In the circumstances of this case, the footage of Mr. Dougherty’s buttocks was inadvertent. The officer had taken care to avoid such an unnecessary intrusion. In this context, I do not find that it resulted in a violation of his right to privacy as protected by s. 8.

Section 8: No Standing to Challenge the Searches

The Accused Does not Have Standing to Challenge the Vehicle Searches

101Mr. Dougherty does not purport to have any reasonable expectation of privacy in the Nissan Kick, which was a stolen vehicle that he abandoned after being shot.

102He does, however, argue that he had a reasonable expectation of privacy in his uncle’s Nissan Qashqai. Subsidiarily, he argues that even if he did not have any reasonable expectation of privacy in the vehicle itself, he did have such an expectation in respect of the black bag located therein and that was attributed to him.

103I address the vehicle first.

104The Crown argues that Mr. Dougherty had no reasonable expectation of privacy in respect of the second Nissan and therefore no standing to raise a section 8 challenge in respect of that search. I agree.

105The applicable test under R. v. Edwards, [1996] 1 S.C.R. 128, has me consider the totality of the circumstances, including the nature or subject-matter of the evidence gathered by the police; whether Mr. Dougherty had a direct interest in the contents; whether he had a subjective expectation of privacy in the informational content; and whether any such expectation was objectively reasonable, having regard to a number of factors.

106The analysis readily fails this last prong of the test.

107The Qashqai belonged to Mr. Dougherty’s uncle, who testified that Mr. Dougherty had never previously been inside his vehicle. On the day of the shooting, Mr. Dougherty briefly travelled in the passenger seat of the vehicle from where he abandoned the Nissan Kick right after the shooting to a plaza around the corner. Mr. Dougherty then exited the vehicle voluntarily before having any interaction with the police. He was not told to get out.

108Mr. Dougherty’s uncle consented to the police searching his vehicle. I accept that he voluntarily gave this consent both at the scene in respect of retrieving the black bag and subsequently at the police station by filling out a consent to search form. This was his prerogative, as the owner and driver of the vehicle.

109Mr. Dougherty had no claim to this property, nor the ability to grant or deny access to it. Once the police had obtained the owner’s consent to enter and search the vehicle, it was plainly in their power to do so. Mr. Dougherty could not reasonably have any expectation that the vehicle’s contents would remain private: see R. v. Belnavis, [1997] 3 S.C.R. 341, at para. 19.

The Accused Cannot Claim a Reasonable Expectation of Privacy in the Black Bag

110The defence argues that even if Mr. Dougherty did not have a reasonable expectation of privacy in his uncle’s vehicle, he has standing to challenge the search of the black bag located inside that vehicle.

111Although Mr. Dougherty testified and denied – for the purpose of both the Charter application and trial proper – that the bag was his, the Crown takes the position that it was his. When the police searched the bag that day, they also believed it to be Mr. Dougherty’s, based on the uncle’s statement.

112It is on this basis, and pursuant to the reasoning in R. v. Jones, 2017 SCC 60, at para. 9 and R. v. Labelle, 2019 ONCA 557, at para. 31, that the defence urges me to find a reasonable expectation of privacy in the black bag such that s. 8 is engaged.

113The Crown agrees that, generally speaking, Mr. Dougherty may rely on its position – attributing the bag to him – to establish an expectation of privacy for the purpose of the s. 8 analysis. However, the Crown relies on R. v. Farah, 2011 MBCA 49, at para. 20, which was decided prior to Jones, and R. v. Allen, 2018 ONSC 6583, which post-dates Jones, to argue that Mr. Dougherty cannot renounce ownership or control of the bag for the purpose of the trial, and by the same token claim that he had a reasonable expectation of privacy in the bag based on the Crown’s position, for the purpose of the Charter application.

114In Allen, the accused relied on the Crown’s theory that he resided at the impugned address to assert standing on a Charter challenge to a warrant for the residence. After the application was dismissed, the accused testified on the trial proper that he in fact did not reside at that address and he sought to distance himself from it.

115Justice De Sa, at para. 25, found that “while the accused can rely on the Crown theory without having to call evidence, it is still the accused’s assertion of privacy that is the underlying basis for the Charter claim. Absent that assertion, there is no Charter claim to be adjudicated.” Jones should not be interpreted to mean that the accused can take inconsistent positions on the Charter application and the trial proper: Allen, at para. 24.

116In the present case, Mr. Dougherty testified on the Charter application and trial proper in a blended fashion. He did not assert a personal privacy interest in the black bag. To the contrary, he claimed that he grabbed it from the Nissan Kick – which he said he had borrowed from a friend – in a moment of panic, not knowing its contents. He stated that he never looked inside the bag and left it in his uncle’s car. The bag, in short, was not his.

117While Mr. Dougherty could have relied on the Crown theory to assert a personal privacy interest in the contents of the bag, he cannot do so in the face of disavowing such a privacy interest. Reliance on the Crown theory cannot simply be a means to raise a challenge that has no basis in fact: Allen, at para. 26.

118The accused cannot rely on the Crown theory to establish standing if he disputes the Crown’s theory at trial or on the application: Allen, at para. 27. That does not mean that in order to get standing, the accused would be forced into admitting guilt of the underlying offence. As explained in para. 28 of Allen:

An accused[’s] assertion of privacy does not mean that the accused must admit the offence or concede the Crown has established residency at trial. The Crown must discharge its onus at trial without the assistance of the accused. However, the accused is not entitled to knowingly advance a false position on the application.

119Based on Mr. Dougherty’s testimony that applies to the Charter voir dire, he did not have any privacy right in the black bag searched by the police. He therefore does not have standing to challenge its search.

120In any event, there was no s. 8 violation in the circumstances of this case. The police received information from Mr. Dougherty’s uncle that there was a bag inside the glovebox that Mr. Dougherty brought inside the car and he believed it contained a gun. The uncle consented to the search of his own vehicle so that the police could retrieve the bag, which had been left in his car. When Officer Henderson retrieved the bag, the uncle confirmed that it was the right bag. In those circumstances, the police were entitled to open the bag to check on the presence of a firearm.

121If the uncle’s consent was insufficient for the police to check a bag that had been left in his car that he said was not his but that he did not want in his car, and that he believed contained a firearm, the police were justified to check the bag for a firearm based on exigent circumstances: Criminal Code, s. 117.02. Arguably, the police were also empowered to search the bag incident to arrest based on the information provided by the uncle about the bag, even though the search preceded the arrest: R. v. Richards, 2015 ONCA 348, at para. 41.

122The police proved the firearm safe and put it back without initially searching through the rest of the bag. They arrested Mr. Dougherty for possession of an unauthorized firearm, then proceed to search the rest of the bag incident to arrest.

123I accept that this was within the scope of their power of search incident to arrest. There was no violation of Mr. Dougherty’s s. 8 rights.

Section 10(b): No Undue Delay in Providing Right to Counsel Information

124Upon arrest, section 10(b) of the Charter guarantees that a person will be advised of their right to retain and instruct counsel without delay. It also guarantees that they will be afforded the opportunity to do so without delay, should they choose to exercise that right.

125After the police located the firearm in the black bag, they promptly placed Mr. Dougherty under arrest. He was immediately informed of the reason for his arrest and cautioned. Officer Dean then went to his scout car to retrieve his notebook to read Mr. Dougherty his rights to counsel. This took a minute.

126The defence complains that Officer Dean thereby breached the informational component of s. 10(b), as he did not inform Mr. Dougherty of his right “without delay”.

127As stated by the Supreme Court in Suberu, at para. 42, the words “without delay” mean that officers have an obligation to inform the detainee of their right to counsel “immediately”, subject to concerns for officer or public safety or reasonable limitations prescribed by law or otherwise justified under section 1 of the Charter.

128I do not accept that the one- to two-minute delay in this case infringed Mr. Dougherty’s rights under s. 10(b) of the Charter.

129There is certainly no need for rights to counsel to be provided based on the exact language contained in police officers’ notebooks to meet the requirements of s. 10(b). Officers should generally inform detainees of their right in general terms pending a full rendering of the right if that is not immediately available. Nevertheless, there is no automatic violation of s. 10(b) when an officer is readily able to retrieve their notebook to read the notice verbatim.

130Police officers frequently rely on their notebooks to recite rights to counsel in full. This avoids omissions or use of language that may be unclear or misinterpreted.

131That is what happened here. Officer Dean did not have his notebook on him at the time of arrest, but he knew it was close by. It took him less than a minute to retrieve it and he proceeded to read Mr. Dougherty his rights to counsel in full and ensure he understood. All of this was completed within two minutes of arrest.

132I find no violation of the informational component of s. 10(b) in these circumstances.

Section 10(b): No Undue Delay in Providing Access to Counsel

133Mr. Dougherty also argues that there was a breach of the implementational component of his right to counsel, given that he was not afforded an opportunity to speak with counsel until about an hour and a half following his initial arrest.

134Providing the detainee with a reasonable opportunity to exercise their right “without delay” means “at the earliest practical opportunity” or “at the first reasonably available opportunity”. While the ultimate burden to prove a Charter violation rests on the defence, the burden is on the Crown to show that a given delay was reasonable in the circumstances: R. v. Taylor, 2014 SCC 50, at paras. 24-25 and 32.

135Mr. Dougherty was arrested for the firearm at 3:35 pm. He requested to speak to duty counsel around 3:37 upon being advised of his right to do so. At that time, he was in an ambulance receiving medical attention from paramedics. He was informed that they were headed to the hospital. Officer Dean informed him that he would be connected to counsel once they could afford reasonable privacy.

136As they took off for the hospital, Officer Dean specifically reminded Mr. Dougherty that he should not say anything that could worsen his jeopardy as his BWC was recording.

137The ambulance arrived at the hospital sometime around 3:45 pm, and after proceeding to triage, Mr. Dougherty was placed in a room.

138Officer Dean testified that he and Officer Arnott then stood by while medical staff took over to provide treatment. The staff administered first aid and Mr. Dougherty received an I.V. Officer Arnott testified that the doctor came in around 4:05 pm, after the nursing staff and medics had attended to Mr. Dougherty.

139The medical staff and police also dealt with Mr. Dougherty’s identification documents. Officer Dean bagged his hands to preserve any gun residue and seized bullet fragments from around his wound which were presumably removed medically. Officer Dean indicated that they were otherwise on standby due to the medical procedures.

140Around 4:15 pm, Officer Dean received the information about the drugs. He re-arrested Mr. Dougherty on BWC and reiterated that he had the right to counsel.

141Officer Dean then considered that a call to counsel was feasible and once he understood that Mr. Dougherty would be at the hospital for some time, he did not wish to delay the call any further. He arranged for duty counsel through his connected phone while Mr. Dougherty was still in his hospital room.

142Officer Dean placed the call to duty counsel at 4:46 pm and left a voicemail for the call to be returned. Duty counsel returned the call and spoke to Mr. Dougherty as of 5:04 pm, approximately an hour and a half after the initial arrest, and less than an hour following re-arrest. In the interim, Mr. Dougherty’s family arrived, and the police allowed them to visit with the accused.

143The call with counsel took place inside the same room where Mr. Dougherty was receiving treatment. The officers left the room at that time.

144In Taylor, the Court addressed the assertion that access to counsel had to be delayed because the accused was at the emergency ward. It stated, at para. 33:

Not everything that happens in an emergency ward is necessarily a medical emergency of such proportions that communication between a lawyer and an accused is not reasonably possible. Constitutional rights cannot be displaced by assumptions of impracticality. Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel.

145In that case, the police did not attempt to provide the accused with an opportunity to speak to his lawyer or determine whether such an opportunity was even logistically or medically feasible at any point during his time in hospital. The Court held that they at minimum needed to turn their minds to whether it was feasible.

146When access to counsel at the hospital ought to be facilitated will depend on the circumstances of the particular case. Officers need to turn their mind to the specific circumstances of the case, and there should be a reasonable basis for concluding that the delay is necessary: R. v. Rover, 2018 ONCA 745, at paras. 24-27, 32-34. In some circumstances, it will not be feasible to facilitate private access to counsel for a detained person receiving emergency medical treatment: Taylor, at para. 31.

147While I do not have a full accounting of the medical procedures that Mr. Dougherty was subjected to upon his arrival at the hospital or the times at which he was being seen by medical personnel, I accept Officer Dean’s evidence that from the time they arrived until he reached out to duty counsel, Mr. Dougherty was receiving medical treatment for his gunshot wound, and they were on standby.

148Mr. Dougherty was seen by nursing staff and the doctor in turn, and bullet fragments were removed from his arm. Mr. Dougherty had visibly been experiencing significant pain and was being administered pain medication. The fact that he was in pain was still noticeable on the video footage from his re-arrest at the hospital. A nurse is also seen inside the hospital room when Mr. Dougherty is on BWC being re-arrested.

149And it is clear that the officers did not wait until Mr. Dougherty was cleared or indeed until he left the hospital to facilitate a call with counsel. Indeed, after the call with duty counsel, Mr. Dougherty went for a CT scan. A decision was made to leave the bullet in his arm, and he later received a temporary cast. Mr. Dougherty was granted access to counsel while still inside his hospital room, in the midst of receiving medical treatment. Once practicable, Officer Dean arranged a call.

150There was no violation of s. 10(b).

Remedies Sought

151Should I be wrong and there was a violation of Mr. Dougherty’s rights, I would not have excluded the evidence seized in this case, much less granted a stay of proceedings.

152The police officers engaged with Mr. Dougherty in good faith. They provided medical assistance to him to the best of their ability. That was their singular focus at the same time as they were dealing with an evolving situation involving a shooting. A civilian then told them about a black bag that might contain a firearm. They immediately responded to render the firearm safe. They then arrested Mr. Dougherty and proceeded with dispatch.

153To the extent that they intruded on his privacy, they did not do so in bad faith.

154Further, any violation would be minor. In the face of society’s interest in the prosecution of these serious offences, the evidence should be admitted.

155In light of the above, the defence has certainly not met the high standard for a stay of proceedings. Defence counsel made the submission that a stay was warranted by drawing an analogy to the Good Samaritan laws, and the argument that a person who is looking for help should not be deterred from calling 911 and risk being detained and investigated by the police.

156This analogy finds no application here given my finding that Mr. Dougherty was not in fact detained and medical assistance is what he received. Moreover, even if the analogy was apt, the Good Samaritan laws – a statutory enactment – merely preclude an arrest for possession of a controlled substance when the evidence justifying that arrest was discovered because a person sought emergency assistance for, or remained at the scene of, a drug overdose. They most decidedly do not prevent the police from investigating other criminal activity: R. v. Wilson, 2025 SCC 32, at paras. 72 and ff.

Possession of the Firearm and Controlled Substances

157The central issue on the trial proper is whether Mr. Dougherty had possession of the contraband.

158The firearm, cocaine, crack cocaine, fentanyl and oxycodone seized by the police were in a black bag in the glove compartment of the Nissan Qashqai belonging to Gerald Dougherty, Mr. Dougherty’s uncle. The nature and quantity of the substances are admitted.

159Mr. Dougherty testified, denying any knowledge of the drugs and firearm in the bag. He admitted to carrying a black bag from the Nissan Kick he had been driving to his uncle’s vehicle after being shot but stated that he never looked inside the bag.

160Mr. Dougherty explained that he borrowed the Nissan Kick from a friend, whose name he did not recall. Upon being shot, he grabbed the bag before exiting the vehicle. He did not know why he did that, he just grabbed it out of panic. Once inside his uncle’s vehicle, he says he did not look inside the bag but merely set it down, he believes in the back seat.

161The Crown argues that I can find beyond a reasonable doubt that Mr. Dougherty had possession of the drugs in the bag. If I accept that possession has been established, the defence concedes that the quantities and other circumstances substantiate that it was for the purpose of trafficking.

162Knowledge and control are the essential components of possession: R. v. Bains, 2015 ONCA 677, at para. 155. The main issue in this case turns on knowledge of the contents of the bag.

163I have no hesitation in finding that the bag that Mr. Dougherty admitted to bringing into his uncle’s car is the same one that contained the contraband. Accordingly, he had physical custody and control of the bag.

164Defence counsel pointed to a second black bag inside the glove box to argue that it is uncertain if the bag the accused brought to his uncle’s car is the same one that contained the contraband. I do not accept this argument.

165I accept Gerald Dougherty’s testimony that the bag containing the contraband was not his. I have already set out my reasons for finding his evidence credible. Gerald Dougherty was present when the police retrieved the bag that contained the firearm and did not assert that it was the wrong bag. It was the one he directed the police to on the basis that his nephew had brought it into his car.

166Moreover, the plastic bag that the accused is seen on video transporting to the Nissan Qashqai is weighted and has the same size and appearance as the one in which the contraband was located.

167The defence is correct that when Mr. Dougherty enters his uncle’s car, he can be seen placing the bag into the backseat. There was, however, ample opportunity for Mr. Dougherty to then move the bag to the glovebox, in particular once he understood that the police were attending his location.

168The bag was located inside the glovebox, which aligns with Gerald Dougherty’s account of his nephew trying to rid himself of the bag and placing it there. I am not prepared to accept that there was coincidentally a second black bag already inside Gerald Dougherty’s glovebox, that matched the one that Mr. Dougherty, without knowing what was inside of it and despite it not being his, happened to bring with him to his uncle’s car that day. There is also no indication that another black plastic bag was located on the back seat of the vehicle.

169In any event, as set out above, I am confident that the gun and drugs did not belong to Gerald Dougherty. His reaction when the police informed him that the bag did contain a firearm, which is visible on BWC, is compelling on that point.

170The central issue is whether Mr. Dougherty knew what was inside the bag he was carrying.

Knowledge of the Contents of the Black Bag

171The defence argues that I should have a reasonable doubt regarding Mr. Dougherty’s knowledge of the firearm and drugs located inside the bag.

172The drugs and firearm were not in plain view, and there is no suggestion that Mr. Dougherty looked inside the bag after taking it from the Nissan Kick and leaving it inside his uncle’s vehicle. Nor did his uncle provide direct evidence of Mr. Dougherty’s knowledge of its contents.

173Any inference of knowledge turns on the circumstantial evidence in this case. The accused having testified, the principles set out by the Supreme Court in R. v. W.D. apply. That is:

If I believe the evidence that is inconsistent with the accused’s guilt, I must acquit him.

Even if I do not believe the evidence that is inconsistent with the accused’s guilt, if I cannot decide whether that evidence is true or if it raises a reasonable doubt in my mind, then I must acquit.

Even if I entirely disbelieve the evidence inconsistent with guilt, the mere rejection of that evidence does not establish guilt. Instead, I must be satisfied that the evidence I do accept proves the accused’s guilt beyond a reasonable doubt.

174I have no hesitation in finding beyond a reasonable doubt that Mr. Dougherty knew about the contents of the black bag.

175First, as set out above, I found Gerald Dougherty, his uncle, to be a very credible witness. He testified that when Mr. Dougherty was inside his vehicle, he told him that he needed to get rid of this, in reference to the bag. The uncle told him to put it in the glovebox, which Mr. Dougherty proceeded to do.

176Defence counsel argues that had this statement in fact been made, it would have been captured in the 911 call given that Mr. Dougherty was in the vehicle throughout the 911 call and could be heard in the background.

177However, Mr. Dougherty’s uncle testified that this statement was made as they were waiting for the police. The 911 call began before Mr. Dougherty entered his vehicle, but it appears to have ended prior to the officers’ arrival at the plaza. Indeed, the call seems to disconnect approximately three minutes in, as the operator is still trying to sort out what happened and where the ambulance needs to be dispatched to. The statement could very well have been made after the 911 call was disconnected, or simply not been captured by the recording.

178I accept that Mr. Dougherty made the statement, and that it suggests knowledge of the contents of the bag. Indeed, with police and an ambulance on the way, the bag’s contents – contraband – explains why Mr. Dougherty wanted to distance himself from it.

179Second, I do not accept that Mr. Dougherty grabbed the bag in a moment of panic or confusion, despite not knowing its contents.

180It does not make sense that, having been shot and still potentially being in the line of fire, in addition to being in pain and requiring medical attention, Mr. Dougherty would have gone out of his way to retrieve a bag that had no value to him. Grabbing any bag even out of panic does not make sense in a context where Mr. Dougherty indicated that nothing in the Nissan Kick belonged to him.

181Mr. Dougherty did not immediately exit his vehicle upon getting shot. He first turned his vehicle around, before flagging his uncle again and telling him to go to Tower Street where he ultimately left his vehicle before jumping out of the car. He was not in such a state of shock or panic as to be incapable of these actions.

182Moreover, Mr. Dougherty did not recall where the bag was in the Nissan Kick when he retrieved it. When the police first entered the Kick, the glovebox was open. An overcapacity magazine was located inside the glovebox in a yellow bag. It contained the same kind of ammunition as was located inside the black bag that could be used in the seized firearm. I infer that Mr. Dougherty purposefully retrieved the black bag from the Nissan Kick’s glovebox. The suggestion that he did so out of panic makes no sense.

183Mr. Dougherty could have grabbed any number of items that were within reach, in plain view. Many such items are apparent on the BWC footage the officers took upon entry into the Nissan Kick. There was no reason for him to grab anything, as he testified that none of the items in the vehicle were his.

184Yet anything he did retrieve he had to retrieve quickly. The video footage of the car shows it barely stopping before Mr. Dougherty jumped out. The car was still running when the police came upon it. Mr. Dougherty got out in a rush, and began jogging towards his uncle’s vehicle, carrying the bag.

185In those brief moments, I find that Mr. Dougherty would only have thought to retrieve a bag that was located inside a glovebox of the vehicle he was trying to escape, because he knew what it contained. He took it consciously and purposely. This was not a case of fleeting or innocent possession as argued by the defence: see R. v. Chalk, 2007 ONCA 815.

186In this and other respects, I completely reject the accused’s testimony. I did not find him to be credible in any way.

187Aside from the nonsensical explanation about the bag, Mr. Dougherty could not recall the name of the supposed friend from whom he borrowed the car, despite having known him for several years. Not even a first name or nickname was proffered. Mr. Dougherty indicated that he met this person while in custody where they were together for 8 to 9 months, had entertained a relationship with him for at least 6 years, including communicating via text and social media, and having stayed over at this home including the previous night. Despite this, he could not provide this person’s identity.

188Mr. Dougherty also could not answer a question posed by his counsel regarding the difference between a previous firearm case on his record and the present one. When the question was asked differently, he indicated that he had pled guilty in the previous case. When asked why he pled, he stated he could not remember. These answers followed lengthy pauses that detracted from his credibility.

189Mr. Dougherty also claimed to reside at his uncle’s address, which is something that his uncle denied. While there are several people residing at that same address, including Mr. Dougherty’s mother, and the living arrangements are such that Gerald Dougherty may not have been aware of how often Mr. Dougherty stayed over, Mr. Dougherty did not have any keys to the residence, nor did he have a phone. This is why he asked his uncle to let him into the house on the day of the shooting. His explanation for why he had no keys despite stating that he had resided there for at least 10 years was nonsensical.

190Indeed, he claimed that he had lost them a couple times previously, so his mother did not want to give him a new key. Yet this would mean that someone always needed to be home for him to be able to enter. On the day in question, Mr. Dougherty drove approximately an hour from his friend’s place in downtown Toronto to his supposed residence to shower and give some money to his mother, yet he acknowledged not having any idea whether anyone would be home at that time. It was only by chance that he ran into his uncle on the street outside the residence. He said he did not call his uncle ahead of time because he had lost his phone at a party the day before, so he did not have his number.

191Mr. Dougherty also said that he was not driving his own car that day, despite owning one, because it did not have any plates as it had recently been purchased.

192All these answers are dubious. While some on their own could be true, collectively they paint a compelling picture of dishonesty. Mr. Dougherty was not a remotely credible witness.

193I not only reject the accused’s testimony, it also does not raise any doubt in my mind as it relates to his knowledge of the contents of the black bag.

194The quantity and value of the drugs in the bag is another consideration in my analysis. It can generally reasonably be inferred that a valuable quantity of drugs would not be entrusted to anyone who did not know about them: Bains, at para. 157; R. v. Bryan, 2013 ONCA 97, at para. 11.

195In this case, the quantities were significant: just over 170 grams of fentanyl, which based on the Agreed Statement of Facts, could be resold for anywhere between $6,000 and $37,000; approximately 26 grams of cocaine and 13 grams of crack cocaine, which could be resold for up to about $2,500 each; and 67 oxycodone tablets worth over $300.

196This is in addition to the firearm, which would be a valuable commodity for a drug trafficker. The firearm and drugs were located alongside $6,150 in cash, three cell phones and two digital scales. It is admitted that – whether the accused possessed them or not – the drugs were for the purpose of trafficking.

197No one else was in the Nissan Kick with Mr. Dougherty at the time he was shot on June 5, 2023. It is highly unlikely that someone would have lent him this car with this quantity of drugs and a firearm inside, without him knowing about it.

198In addition, one of the cell phones began ringing when the police had it in hand at the plaza. It is unlikely that a third person would have left their powered and activated cell phones in a car lent to someone else. The only plausible explanation is that the items in the bag belonged to Mr. Dougherty.

199I find based on the above points that he very well knew what the bag contained.

200In sum, I find beyond a reasonable doubt that Mr. Dougherty had both knowledge and control of the firearm and controlled substances. This is the only reasonable inference in light of all the circumstances I have accepted.

201The defence admits that the handgun is a prohibited firearm that was loaded and operational.

202It is also admitted that at the relevant time, Mr. Dougherty was bound by two 10-year s. 110 weapons prohibition orders, imposed in 2015 and 2018 respectively. He was also not the holder of a valid firearms license nor the registered owner of the seized gun.

203Accordingly, the Crown has proven all elements of the offences set out in counts 1 to 6 and 8. Mr. Dougherty is guilty of possessing cocaine, fentanyl, and oxycodone for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act; possessing a restricted firearm contrary to s. 91(1) of the Criminal Code; possessing a loaded restricted firearm contrary to s. 95(1) of the Code; occupying a motor vehicle knowing that there was a restricted firearm in the vehicle contrary to s. 94(1) of the Code; and possessing a firearm while prohibited from doing so, contrary to s. 117.01(1) of the Code.

Knowledge and Control of the Extended Magazine

204As set out above, an over-capacity magazine containing 28 rounds of 40 calibre ammunition was located not inside the black bag or the Nissan Qashqai, but inside the Nissan Kick. Mr. Dougherty is also charged with possession of this prohibited device under s. 92(2) of the Code.

205It is admitted by the defence that the magazine is a prohibited device within the meaning of s. 84 of the Code. It was operational and suitable for use in the Smith & Wesson handgun that was seized from the black bag.

206It is also admitted that the 40 calibre ammunition was suitable for use in the 40 calibre semi-automatic handgun seized.

207The issue again is possession.

208I find that Mr. Dougherty knew about this magazine and controlled it just as much as the items located inside the black bag. The magazine was located in a separate bag inside the glovebox, in the same place where he retrieved the black bag containing the firearm.

209The magazine and ammunition are a match for the handgun, in that they are suitable for use in the gun. They are the same calibre of ammunition as was found inside the black bag and loaded inside the handgun.

210I have already found that Mr. Dougherty was very much aware of this handgun and ammunition. I find that he had knowledge of the contents of the Nissan Kick glovebox, which is why he retrieved the black bag from it. It defies credulity to believe that he was not aware of the magazine and additional ammunition located therein.

211I find that he also knew about the magazine, but simply did not grab it in the rush and panic of the moment. His focus was the firearm and significant quantity of drugs located in the black bag.

212Accordingly, Mr. Dougherty is also guilty of count 7, possession of a prohibited device, contrary to s. 92(2) of the Code.

Conclusion

213I find Mr. Dougherty guilty on all counts.

___________________________ Christine Mainville J.