November 28, 2022 By Mike Novakowski
Ontario’s highest court has found that the stop and search of a vehicle matching the description of one seen in the area of a shots fired call did not violate the Charter, and the gun found as a result was admissible at trial. In R. v. Ahmed & Yusuf, 2022 ONCA 640, the police received two 911 calls reporting the sound of gunshots near an apartment building. The calls identified a dark-coloured car, possibly a Charger, which was speeding away after the shots had been heard.
About 12 minutes after the 911 calls, officers saw a black Dodge Charger pull into the driveway and park in front of the apartment building. The driver (Ahmed) got out of the Charger and walked toward the apartment building while talking on his cell phone. An officer called out to Ahmed, walked towards him and told him about the reports of gunfire. Backup officers also arrived and approached the passenger side of the Charger. The two other occupants in the Charger, including Yusuf, who was seated in the right rear passenger seat, were told about the possible involvement of a Charger in the reported shooting. These men appeared nervous to police. They became argumentative, questioned the stop and interrupted the officers. They were instructed to exit the Charger and all occupants were patted down, but nothing was found.
An officer then stuck his head through the open rear door of the charger and looked into the rear portion of the vehicle using a flashlight. He saw a firearm in plain view on the floor protruding from under the front passenger seat, immediately in front of the where Yusuf was seated. The men were arrested, advised of their s. 10 (b) right to counsel and the Charger was sealed. A search warrant was subsequently obtained, which resulted in the seizure of a loaded restricted firearm with an extended magazine. Both Ahmed and Yusuf were each charged with firearm offences.
At trial in the Ontario Superior Court of Justice, the two men argued that the gun should be excluded as evidence because the police breached their Charter rights. But the trial judge found the investigative detention and protective pat-down searches lawful. However, the trial judge concluded that the police breached s. 8 when the officer stuck his head into the car in the area where Yusuf had been seated because there was no evidence for why the officer did this. The officer who found the gun did not testify and the judge could not determine the grounds that informed the police decision to search the rear of the car. The judge admitted the gun under s. 24(2) and Ahmed and Yusuf were convicted of weapons offences. Ahmed and Yusuf then challenged their convictions to the Ontario Court of Appeal arguing, in part, that the trial judge was wrong to conclude their detentions and the pat-down searches were lawful, and in admitting the gun as evidence.
“The law is clear that the police have the power to briefly detain individuals for investigative purposes.” – Justice Coroza for the Court of Appeal
Ontario’s top court agreed with the trial judge that the detention of the Charger occupants was lawful. “The requirements for a justifiable investigative detention are twofold,” said Justice Coroza for the Court of Appeal. “(1) Police officers must have reasonable grounds to suspect that the specific person is implicated in the criminal activity under investigation; and (2) the decision to detain must be reasonable on an overall assessment of all circumstances.” In this case, the trial judge took a common-sense and practical approach to the issue. The Charger matched the description of the vehicle that was seen speeding away from the approximate location of the gunshots. This supported a reasonable suspicion that the occupants had knowledge of what occurred and provided the requisite reasonable grounds to detain the three males to investigate their potential involvement in the reported gunfire.
The Appeal Court also upheld the trial judge’s ruling that the protective pat-downs were lawful. “The law is clear that the police have the power to briefly detain individuals for investigative purposes and to conduct a limited pat-down or safety search incident to that detention,” said Coroza. “When an officer has reasonable grounds to believe that their safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual.” Here, the circumstances established reasonable grounds to believe that a potential imminent threat to safety existed and that a pat-down search of the Charger’s occupants was reasonably necessary. Moreover, the searches were brief, non-intrusive and did not go beyond what was appropriate in the circumstances.
The car search
Unlike the trial judge, the Court of Appeal ruled that the police didn’t violate s. 8 when the officer stuck his head through the open rear passenger door. “A pat-down alone would be pointless if the occupants could simply return to the car and arm themselves with a gun left in easy reach. The 911 calls and the circumstances of how the occupants and the Charger came to be investigated provided specific, articulable and reasonable justification for [the officer] to look in the area where Yusuf had been sitting for safety,” said Coroza. “Although the officers did not find anything from the pat-down search, given the nature of the call, the fact the call had been made only shortly before the occupants were detained, and the possibility that one of the occupants of the vehicle was armed with a firearm, the officers could not eliminate the possibility that there was a gun to be accounted for.” Only about three minutes had elapsed between the time the occupants of the Charger were detained and the discovery of the gun. Based on the totality of the circumstances, looking in the car was a modest extension of the pat-down search in this case and was reasonable because specific safety concerns called for it.
The gun was properly admitted as evidence, but the accuseds’ conviction appeal was allowed on other grounds.
Mike Novakowski is Blue Line’s case law columnist.
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