



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bejarano-Flores, 2020 ONCA
    200

DATE: 20200311

DOCKET: C65183

Feldman, Gillese and Miller
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Isaac Bejarano-Flores

Appellant

Michael Dineen, for the appellant

Kerry Benzakein, for the respondent

Heard: November 19, 2019

On appeal from the convictions entered
    on December 13, 2017, by Justice Kelly P. Byrne of the Superior Court of
    Justice, with reasons reported at 2017 ONSC 7480.

Gillese J.A.:

A.

OVERVIEW

[1]

The appellant was convicted by a judge, sitting
    without a jury, of possessing MDMA for the purpose of trafficking and
    possessing the proceeds of crime. He was sentenced to 14 months in jail. He appeals
    against conviction.

[2]

The convictions stem from a police stop of a
    taxi van made in response to a 911 gun call, which is a telephone call
    reporting that a person has been seen with a gun. A customer at a York
    University food court reported the sighting to an employee, who reported it to York
    University security officers (York Security). York Security made the 911 gun
    call. DC Rand and his partner were in the area and immediately dispatched on
    the gun call.

[3]

York Security were in constant communication
    with the police. Through surveillance cameras, York Security saw the gun suspect
    enter an orange and green taxi van. They described the route that the taxi van
    was taking, which they observed through the cameras, and dispatch broadcast that
    information. Using that information, DC Rand and his partner located the taxi
    van and stopped it to investigate.

[4]

The appellant was the lone male passenger in the
    taxi van. When he stepped out of it, DC Rand saw that he matched four key aspects
    of the physical description of the gun suspect: male, medium build, early 20s,
    5 6. However, he appeared to be Hispanic, not Black, as the gun suspect had
    been described.

[5]

Despite the non-matching descriptor, DC Rand
    believed that the appellant was the gun suspect because, in addition to
    matching certain key aspects of the physical description of the gun suspect, he
    was sure that the taxi van was the one that York Security had seen the gun
    suspect enter only minutes earlier.

[6]

DC Rand told the appellant that he was investigating
    an allegation that a person with a gun had boarded an orange and green taxi
    van. He then conducted a brief pat down search of the appellant that lasted
    less than a minute. He found no gun.

[7]

A different police officer who had arrived on
    the scene searched the appellants knapsack  which was in the taxi van  for a
    gun. It did not contain a gun but it did have packages of what appeared to be
    controlled substances. Based on the drugs in his knapsack, DC Rand arrested the
    appellant. At that point, the appellant told DC Rand that he also had drugs in
    his jacket pocket and turned them over.

[8]

About two minutes elapsed between the police
    stop of the taxi van and the appellants arrest.

[9]

At trial, the appellant asserted that his ss. 8
    and 9 rights under the
Canadian Charter of Rights and Freedoms
had
    been violated. He took no issue with the initial traffic stop of the taxi van but
    maintained that there were no grounds to continue to detain him once it was
    apparent to the police that he did not match the description of the gun suspect.

[10]

The trial judge held that the appellants brief continued
    detention was constitutionally sound and that the pat down search was lawful.
    She concluded that the search of the knapsack was not lawful but admitted the evidence
    pursuant to s. 24(2) of the
Charter
.

[11]

On appeal, the appellant submits that the trial
    judge erred in finding that his continued detention was lawful. He asks this
    court to exclude the evidence under s. 24(2), set aside the convictions, and
    enter acquittals.

[12]

For the reasons that follow, I would dismiss the
    appeal.

B.

BACKGROUND IN BRIEF

[13]

Late on November 19, 2014, a customer in the
    York University food court told a Shopsys employee that he had seen someone
    with a gun. The employee reported the gun sighting to York Security who, in
    turn, called 911. At that time, the Shopsys employee did not have a
    description of the gun suspect.

[14]

At 23:36:12, DC Rand and his partner were
    dispatched to respond to the gun call. They responded immediately. A gun call
    is the highest priority for police response because of the safety risks that
    accompany a firearm, especially in a busy place like a university campus.

[15]

DCs Wenzel and Rodriguez were in a separate police
    car and also nearby. They, too, were dispatched and responded immediately.

[16]

DC Rand and his partner drove toward York University,
    listening closely as dispatch continued to broadcast information about the
    unfolding events. DC Rand understood that someone had seen a person with a gun
    in the York University food court and reported it to a Shopsys employee, who
    had reported it to York Security. He also heard the following broadcast information:

23:37:31  the gun suspect was
    described as male, Black, early 20s, 5 6

23:37:58  the gun suspect
    was further described as having a medium build and wearing a dark blue or black
    baseball hat, a black hoodie with the hood pulled over the cap, grey
    sweatpants, and a black jacket

23:39:05 York Security saw
    a male matching the gun suspect description on Vanier Lane

23:39:17  York Security
    saw the male outside Chimneystack Road, getting into a cab

23:39:32  York Security was
    advised not to approach the male

23:39:40  the cab was
    identified as an orange and green taxi van

23:39:50  the taxi van was
    driving north onto Ian MacDonald Boulevard

23:40:14  the taxi van proceeded
    north on Founders Road towards Steeles Avenue

23:41:41  York Security
    lost their visual of the taxi van, having last seen it travelling westbound
    on Steeles Avenue, at the rear of the track and field center

[17]

As DC Rand and his partner heard this information,
    they followed the same route as the taxi van. They drove onto the York
    University grounds, along Ian Macdonald Boulevard, up to Founders Road, and
    then westbound on Steeles Avenue.

[18]

At 23:43:19, DC Rand saw an orange and green Beck
    taxi van headed westbound on Steeles Avenue, almost at Jane Street, in the curb
    lane. There were few other vehicles on the road. DC Rand was sure that the taxi
    van he saw was the same one that York Security reported seeing the gun suspect
    enter approximately four minutes earlier. As they got closer to the taxi van,
    he saw a single passenger inside. He decided to stop the taxi van and investigate.

[19]

At 23:44:55, DC Rand and his partner stopped the
    taxi van just north of Steeles Avenue on Jane Street. DC Rand went to the rear passenger
    door and his partner went to the driver. As soon as he got to the taxi van, DC
    Rand opened the passenger door and saw that the appellant was the lone passenger.
    He was seated in the middle row of the van on the passenger side.

[20]

DC Rand asked the appellant to step out of the
    taxi van. When he complied, DC Rand saw that he was the same gender, age,
    height, and build as the suspected gunman. However, he immediately noticed that
    the appellant appeared to be Hispanic, not Black. At trial, DC Rand testified
    that he identifies as Hispanic; he described the appellants skin tone as
    medium and a little darker than his own.

[21]

DC Rand took the appellant to a grassy boulevard
    by the side of the road, told him he was investigating an allegation that a
    person with a gun had boarded an orange and green taxi van, and conducted a
    brief pat down search of the appellants person, looking for a weapon. He found
    none. No force was used and no weapons were drawn. The search was over in less
    than a minute.

[22]

DC Wenzel and his partner arrived on the scene
    just after the taxi van was pulled over. Safety was their primary concern as
    they suspected a firearm was in the taxi van. DC Wenzel looked inside the taxi
    vans open door and saw a knapsack between the bucket seats in the middle of
    the van. When he picked it up, he thought its weight was consistent with it
    containing a firearm so he opened the knapsack and looked inside. He did not
    find a gun but he did see several packages of what appeared to be controlled
    substances. He told DC Rand of his discovery. DC Wenzel then did a further
    visual search of the interior of the passenger area of the taxi van. He found
    no gun. His search of the knapsack and interior of the passenger area of the
    taxi van took about one minute.

[23]

DC Rand arrested the appellant based on the
    drugs in his knapsack. At that point, the appellant produced a further bag of MDMA
    from the left vest pocket of his jacket. DC Rand lodged the appellant in his
    scout car. It was 23:49.

[24]

The entire period the appellant was detained, from
    the initial stop of the taxi van to when he was arrested, was approximately two
    minutes.

The Trial

[25]

At trial, the appellant asserted that his ss. 8
    and 9
Charter
rights had been violated and sought exclusion of the
    evidence on that basis. He otherwise conceded his guilt.

[26]

He took no issue with the initial vehicle stop.
    He agreed that, based on the information the police had available, it was
    objectively reasonable for the officers to conclude that the Beck taxi van was
    connected to the gun call. However, he maintained that his continued detention
    after he exited the taxi van was not justified. He argued that, once it was
    apparent to the police that he did not match the broadcasted description of the
    gun suspect, they had no grounds to detain him and they had to stop their
    search efforts.

[27]

The trial proper and the
Charter voir dire

proceeded as a blended hearing. An agreed statement of facts was entered.
    It stated that 29.28 grams of MDMA were found in a clear ziplock bag in the
    appellants knapsack and that he turned over to the police a further 27.89
    grams of MDMA from his left vest pocket.

[28]

Three police officers testified: DC Rand, DC Wenzel
    and DC Rodriguez. All three police witnesses testified that their focus that
    evening was on determining whether there was a gun and neutralizing the risk to
    public safety.

[29]

As DC Rands testimony played a crucial role in the trial judges
Charter
ruling, key elements of it are now summarized.

[30]

DC Rand testified that there was no doubt in his
    mind that the taxi van he stopped was the one that the gun suspect had
    boarded. He spotted it within a couple of minutes of the last reported
    observation of the van that York Security had identified as carrying the gun
    suspect. It was the same type of vehicle that York Security had described and
    was unusual for the area. The timing of the events, information he had received
    about the route taken by the taxi van, distinctive characteristics of the green
    and orange Beck taxi vans and their scarcity in the vicinity, and the
    appellants resemblance to the suspect on four key descriptors gave him a
    reasonable suspicion that the appellant was in possession of a firearm.

[31]

He testified that it was only when the appellant
    stepped out of the Beck taxi van that he observed that the appellant did not appear
    to be Black.
DC Rand identifies as Hispanic and he
    recognized that the appellant also appeared to be Hispanic.
He described
    the appellant as male, Hispanic, 5 6, in his 20s, and of medium build.

[32]

DC Rand also testified that the appellants
    clothing, while similar to the description of the gun suspects clothing, did
    not match. DC Rand was less sure when he noticed the differences in the
    appellants clothing from the description given of the clothing worn by the gun
    suspect but thought it was likely during the pat down search. He said he was
    less concerned about the non-matching clothing because it is not uncommon for
    suspects to change or discard pieces of clothing to avoid police detection.

[33]

DC Rand testified that, despite the non-matching
    physical descriptor, everything else that had happened up to that point had
    been so bang on that he believed that the appellant was the gun suspect. His
    belief was based on the physical descriptors that the appellant did match and the
    following information, which he believed to be accurate:

·

the vehicle was a taxi van, which was rare for
    that area, and no other Beck taxi vans had been observed in that area that
    night;

·

the last known location of the Beck taxi van, as
    observed by York Security, was very specific and consistent with DC Rands
    initial observations of the vehicle and the location of the vehicle stop;

·

the traffic stop took place within just a couple
    of minutes of the last reported observation of the Beck taxi van by York
    Security; and

·

there was a single male passenger inside the
    Beck taxi van.

[34]

DC Rand testified that, after 18 years of
    policing experience, he was familiar with the frailties attached to eyewitness
    identification evidence. He said that stress and a host of other factors can
    impair an individuals ability to accurately observe and retain information and
    so he did not place much weight on the non-matching physical descriptor,
    especially when considered in combination with the other information he had,
    which he found to be reliable, such as the nature of the vehicle in question.

C.

THE
CHARTER
RULING

[35]

The trial judge began by addressing the defence
    submission that the police violated the appellants s. 9
Charter

rights
    because they lacked sufficient grounds to detain him once they saw that he did
    not match the gun suspects description.

[36]

After setting out the legal principles that govern
    investigative detentions, the trial judge noted that the defence took no issue
    with the initial traffic stop. The defence accepted that on the information the
    police had, it was objectively reasonable for the officers to conclude that the
    taxi van was connected to the 911 gun call. The trial judge then considered
    whether the appellants continued detention, after the initial stop, was
    justified. She observed that to justify the continued detention, the Crown had
    to show that the police had reasonable grounds to suspect, based on the
    totality of the circumstances, that the appellant was the individual connected
    to the gun call they were investigating.

[37]

The trial judge rejected the defence submission
    that DC Rand failed to turn his mind to the non-matching physical descriptors. She
    found, on the contrary, that DC Rand had taken them into consideration.  In
    making this finding, the trial judge relied on DC Rands testimony that: (1) immediately
    on removing the appellant from the taxi van, he was aware that the appellant
    appeared to be Hispanic, rather than Black, as the gun suspect had been
    described; and (2) while less sure of when he noticed the differences in
    clothing, he thought it was likely during the pat down search. DC Rand testified
    that he was less concerned about the non-matching clothing because it is not
    uncommon for suspects to change or discard pieces of clothing to avoid police detection.

[38]

The trial judge accepted DC Rands explanation
    for why he reasonably suspected that the appellant was the gun suspect despite
    the non-matching descriptors.  She referred to his evidence on the frailties
    attached to identification evidence: stress and a host of other factors can
    impair an individuals ability to accurately observe and retain information so he
    did not place much weight on it, especially when considered in combination with
    the information he had that he deemed accurate, such as the nature of the
    vehicle in question.

[39]

The trial judge found that DC Rand was entitled
    to rely on his 18 years of policing experience in assessing how much weight to
    attach to the physical descriptors. She also found that DC Rands conclusion
    that witness descriptions can often be wrong was reasonable, in the
    circumstances, when he knew nothing of the perspective or ability of the
    witness, or witnesses, who gave the description of the gun suspect.

[40]

The trial judge distinguished the case before
    her from
R. v. Clayton
,
2007 SCC 32, [2007] 2 S.C.R. 725,
    relied on by the defence. She explained that in
Clayton
, the police had
    only two physical descriptors available to them: skin colour and gender. In the
    case before her, there were multiple physical descriptors and the appellant
    matched several of them; the vehicle description was distinctive and a match; and,
    the geographical and temporal connections were relevant and accurate. She found
    that, when combined with the other factors, they provided ample and reasonable
    grounds for the appellants continued detention. She concluded that, even after
    taking into consideration the non-matching descriptors, the appellants initial
    and continued detention were objectively reasonable.

[41]

The trial judge then addressed whether the pat down
    search and/or the search of the appellants knapsack violated his s. 8
Charter

rights.

[42]

In holding that the pat down search was justified,
    the trial judge relied on her findings that justified the appellants continued
    detention and added that the police were responding to a 911 gun call; they had
    ample grounds to suspect the appellant was the individual that had been seen
    with a gun; and, the immediate concern for officer safety and the safety of
    others was self-evident. She found that the timing of the continued detention
    and the pat down search were responsive to the circumstances. Given how quickly
    the police located and stopped the orange and green taxi van, she found it
    reasonable to conclude that the appellant would still have had access to the firearm
    when the police detained and searched him. She concluded that the danger to
    safety was immediate and that the brief, non-intrusive and reasonable pat down search
    was lawful.

[43]

However, the trial judge held that DC Wenzels search
    of the appellants knapsack was unlawful. She noted that a search incident to
    investigative detention is anchored in preserving safety from immediate danger.
    In this case, the immediate danger was directly attached to the suspect, who
    was being detained by DC Rand. She said that a simple instruction removing the
    driver from the taxi van or seizing the knapsack, without searching it, would
    have alleviated all immediate safety concerns.

[44]

In light of the unlawful search of the knapsack,
    the trial judge conducted a s. 24(2) analysis to determine whether to exclude
    the evidence. In her view, all three steps in
R. v. Grant
,
2009
    SCC 32, [2009] 2 S.C.R. 353,

favoured admitting the evidence.

[45]

On the first step, the trial judge found that the
    breach was on the less serious end of the spectrum, since the police had acted reasonably
    and in good faith. On the second step, she found that, given the brief and
    circumscribed nature of the search of the knapsack, the breach had a minimal impact
    on the appellants privacy interest in its contents. On the third step, she
    viewed society as having a strong interest in the trial being resolved on its
    merits because of the serious nature of the drugs, and that the drugs were
    reliable evidence and essential to proving the Crowns case.

[46]

Accordingly, the trial judge admitted the
    evidence.

D.

THE ISSUES

[47]

The appellant submits that the trial judge erred
    in:

1.

finding that his continued detention was lawful;
    and

2.

failing to exclude the evidence pursuant to s.
    24(2).

E.

ANALYSIS

(1)

Did the
    trial judge err in finding that the appellants continued detention was lawful?

[48]

As soon as the appellant emerged from the taxi
    van, DC Rand saw that he did not match one key aspect of the description of the
    gun suspect: the appellant appeared to be Hispanic, not Black. The appellant
    submits that, at that point, the police had no grounds to continue to detain
    him and the trial judge erred in ruling otherwise. He argues that the trial
    judge erred in accepting DC Rands explanation for discounting his non-resemblance
    to the description of the gun suspect, placed undue weight on DC Rands belief
    that the taxi van was the same one that York Security saw the gun suspect
    enter, and failed to persuasively distinguish
Clayton
from the present
    case.

[49]

I do not accept this submission or the arguments
    made in support of it. In my view, in that dangerous and dynamic situation
    where public safety concerns were paramount, these experienced police officers
    had reasonable grounds to suspect that the appellant was the gun suspect.

The Relevant
    Legal Principles

[50]

The legal principles governing investigative
    detention are well settled and neither party contends that the trial judge erred
    in her articulation of them. Before setting out those principles, I remind
    myself that, in reviewing the decision below, this court must engage in a
de
    novo

analysis. This is so because whether the facts as found by the
    trial judge meet the standard for a reasonable suspicion is a question of law
    and reviewed on a correctness standard:
R. v. Chehil
, 2013 SCC 49,
    [2013] 3 S.C.R. 220, at para. 60.

[51]

A police officer may detain an individual for
    investigative purposes if there are reasonable grounds to suspect, in all the
    circumstances, that the individual is connected to a particular crime and such
    a detention is necessary:
R. v. Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59,
    at para. 45.

[52]

The following recitation of the legal principles
    governing the reasonable suspicion standard comes from paras. 25-35 and 45 of
Chehil
.

[53]

The reasonable suspicion threshold respects the
    balance struck  in this case under s. 9 of the
Charter
 by permitting
    law enforcement to employ legitimate but limited investigative techniques (
Chehil
,
at para. 25). Reasonable suspicion derives its rigour from the requirement
    that it be based on objectively discernible facts that can then be subjected to
    independent judicial scrutiny. This scrutiny is exacting and must account for
    the totality of the circumstances (
Chehil
, at para. 26).

[54]

While reasonable grounds to suspect and
    reasonable and probable grounds to believe are similar, in that both must be
    grounded in objective facts, reasonable suspicion is a lower standard as it
    engages the reasonable possibility, rather than probability, of crime (
Chehil
,
    at para. 27). The fact that reasonable suspicion deals with possibilities,
    rather than probabilities, necessarily means that in some cases the police will
    reasonably suspect that innocent people are involved in crime. However, the
    suspicion cannot be so broad that it descends to the level of generalized
    suspicion (
Chehil
, at para. 28).

[55]

Reasonable suspicion must be assessed against
    the totality of the circumstances. The inquiry must consider the constellation
    of discernible facts that are said to 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 (
Chehil
,
    at para. 29). Reasonable suspicion need not be the only inference that can be
    drawn from a particular constellation of factors (
Chehil
, at para.
    32). Exculpatory, neutral or equivocal information cannot be disregarded when
    assessing a constellation of factors (
Chehil
, at para. 33).

[56]

The requirement for objective and ascertainable
    facts as the basis for reasonable suspicion permits an independent
    after-the-fact review by the court and protects against arbitrary state action.
    The onus is on the Crown to show that the objective facts rise to the level of
    reasonable suspicion, such that a reasonable person, standing in the shoes of
    the police officer, would have held a reasonable suspicion of criminal activity
    (
Chehil
, at para. 45).

Application to
    this Case

[57]

To be constitutionally sound, the inference of
    reasonable suspicion must be

grounded in
    objectively discernable facts known to the police and tied to both the
    individual being detained and the specific offence being investigated. In my
    view, assessed against the totality of the circumstances, a reasonable person
    standing in DC Rands shoes would have had a reasonable suspicion that the appellant
    was the gun suspect.

[58]

A consideration of the totality of the circumstances
    begins by placing the events in context. It will be recalled that these events
    began late at night in a food court on the York University campus, when a
    customer saw a man with a gun. The customer told a Shopsys employee who called
    York Security. York Security immediately made a 911 gun call and two police
    vehicles in the vicinity were deployed: DC Rand and his partner were in one
    car, DC Wenzel and his partner were in the other. Through video surveillance
    cameras, York Security saw the gun suspect get into an orange and green Beck
    taxi van and they described, to the police dispatch, the route that the taxi
    van was taking.

[59]

DC Rand and his partner knew that the suspected
    gunman was seen entering an orange and green Beck taxi van. They followed the
    same route as that of the taxi van and, within a very few minutes, they found
    and stopped an orange and green Beck taxi van carrying a lone male passenger,
    the appellant. At trial and before this court, the appellant accepts that the
    initial traffic stop was justified  that is, that it was objectively reasonable
    for the police officers to have concluded that the Beck taxi van was connected
    to the gun call.

[60]

As soon as the appellant stepped out of the taxi
    van, DC Rand knew that he did not match the gun suspect description in all
    respects. He was the same gender, age, height and build as the gun suspect but he
    appeared to be Hispanic, not Black. Later, during the pat down search, DC Rand also
    realized that the clothing the appellant was wearing was also different from
    that given for the gun suspect, although he felt it was similar.

[61]

However, DC Rand was certain that the taxi van
    he stopped was the one that the gun suspect had boarded. Its temporal and
    geographical proximity to the gun call, the information he had about the route
    the taxi van followed, the distinctive characteristics of the orange and green
    taxi van, the absence of other such vans in the area, and the presence of a
    single male passenger inside the taxi van all contributed to his certainty.
    This certainty, coupled with the appellants resemblance to the gun suspect on
    four key markers, gave DC Rand the reasonable suspicion that the appellant was
    in possession of a firearm.

[62]

The appellant says that the trial judge erred
    in accepting DC Rands explanation for why, despite the non-matching
    descriptors, he believed he had reasonable grounds to suspect that the
    appellant was the gun suspect. I do not agree.

[63]

It will be recalled that, at trial, DC Rand
    explained why the discrepancies in skin colour and clothing did not undermine
    his suspicion that the appellant was the gun suspect. During his many years as
    a police officer, he had worked dozens of gun calls and learned that eye witnesses
    are often mistaken when they try to describe a person they have just seen. He
    explained that there are many factors that can impair a witnesss ability to
    accurately observe and retain information about eyewitness identifications. In
    this case, DC Rand knew almost nothing about the eyewitnesss capacity to
    observe the gun suspect. And, in his experience, it is not uncommon for a
    suspect to change clothes while police are in pursuit.

[64]

The trial judge found that DC Rand was entitled
    to rely on his 18 years of police experience in assessing how much weight to
    attach to the physical descriptors. She also found his conclusion that such
    descriptions can often be wrong was reasonable in the circumstances where he
    knew nothing of the perspective or ability of the witness who had given the
    description of the gun suspect.

[65]

I see no error in the trial judges findings on
    this matter.  The known frailties of identification evidence have been identified
    both in social science literature and in Canadian jurisprudence: see, for
    example,
R. v. Hay
, 2013 SCC 61, [2013] 3 S.C.R. 694, at para. 40,
R.
    v. Hibbert
, 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 78-79. Further, the
    trial judge was obliged to determine whether a reasonable person standing in
    DC Rands shoes would have had a reasonable suspicion that the appellant was
    the gun suspect. In making that determination, it was open to the trial judge
    to consider DC Rands policing background and to find, as she did, that he was
    entitled to rely on his 18 years of policing experience when assessing how much
    weight to give to the non-matching physical descriptors.

[66]

The appellant also complains that the trial
    judge placed undue weight on DC Rands belief that the taxi van was the same
    one that York Security saw the gun suspect enter. Again, I see no error in her finding
    on this matter. The initial traffic stop was objectively reasonable, as the
    appellant conceded. Only a few brief minutes elapsed between York Security
    advising it had seen the gun suspect enter the orange and green taxi van and
    the police stop of a vehicle of the same description. Further, the location of
    the taxi van was fully consistent with the route which York Security described
    the taxi van carrying the gun suspect to have followed.

[67]

Finally, the appellant takes issue with the
    trial judges treatment of
Clayton
. Again, I do not agree. As the trial
    judge noted, in
Clayton
, the police had only two physical descriptors
    available to them. In this case, the appellant matched several of the physical
    descriptors; the vehicle description was distinctive and a match; and, the
    geographical and temporal connections were relevant and accurate.

[68]

In conclusion, I remind myself that in determining
    whether there are objective facts that rise to the level of reasonable
    suspicion, the court must conduct an exacting scrutiny. However, while probing,
    the judicial inquiry must be fact-based, flexible, and grounded in common
    sense. As well, it is important to recall that reasonable suspicion need not be
    the only inference that can be drawn from a particular constellation of
    factors.

[69]

In this case, the appellant matched four key
    characteristics of the gun suspect  gender, age, height and build. It is true
    that the appellant appeared to be Hispanic, rather than black, as the gun
    suspect had been described, and that his clothing was also different from that
    given for the gun suspect. But DC Rand did not disregard these non-matching
    physical descriptors. He explained why they did not detract from his certainty
    that the passenger in the Beck taxi van was the gun suspect and his explanation
    was found to be reasonable by the trial judge. The matching four physical
    characteristics, the distinctive features of the Beck taxi van, the absence of
    other such vehicles in the vicinity, and the temporal and geographical
    connections between the Beck taxi van and the gun sighting are objectively discernible
    facts to be understood within the context of a 911 gun call. The police were
    faced with a dangerous and dynamic situation in which public safety was the
    paramount concern. In my view, based on the totality of the circumstances, the
    appellants continued detention was objectively reasonable.

(2)

Did the trial judge err in failing to exclude
    the evidence?

[70]

The trial judges s. 24(2) analysis is based on
    her conclusion that the search of the appellants knapsack was the only breach
    of his
Charter
rights. The appellants submission is that his continued
    detention, following the initial stop of the taxi van, was unlawful and
    constituted a breach of s. 9. Accordingly, he says, this court owes no
    deference to the trial judges application of the
Grant

test.

[71]

As I have found that the appellants continued
    detention was lawful, it is unnecessary to revisit the trial judges s. 24(2)
    determination.

F.

DISPOSITION

[72]

Accordingly, I would dismiss the conviction appeal.
    The Crown has conceded that the mandatory victim fine surcharge should be quashed
    and I would so order.

Released: March 11, 2020 (K.F.)

E.E. Gillese
    J.A.

I agree. K.
    Feldman J.A.

I agree.
    B.W. Miller J.A.


