



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Bashir, 2012
    ONCA 793

DATE: 20121120

DOCKET: C53556

Laskin, Sharpe and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Faysal Bashir

Applicant/Appellant

Christopher Hicks, for the appellant

J. Sandy Tse, for the respondent

Heard: November 14, 2012

On appeal from the conviction entered on July 28, 2010
    and the sentence imposed on August 10, 2010 by Justice D.M. Nicholas of the Ontario
    Court of Justice, with reasons reported at 2010 ONCJ 317 and 2010 ONCJ 548,
    respectively

ENDORSEMENT

[1]

The appellant was convicted of several offences in relation to the
    illegal possession of a loaded handgun following a trial in the Ontario Court
    of Justice. He was sentenced to six years, less one-for-one credit for the five
    months he spent in pre-trial custody. He appeals both his conviction and his sentence.

Conviction appeal

[2]

The sole ground of appeal from conviction is the appellants submission
    that the primary piece of evidence against him was improperly admitted. The appellant
    submits that the investigative detention to which he was subjected was unlawful
    and a breach of his s. 9
Charter
rights and that the evidence of the
    loaded firearm found in the car from which he had just exited on the drivers
    side should be excluded under s. 24(2).

[3]

Assuming, without deciding, that there was a breach of the appellants
    s. 9
Charter
rights and assuming, without deciding, that there was a
    sufficient link or nexus between that
Charter
breach and the search of
    the vehicle, we agree with the trial judge that the evidence of the loaded
    handgun found in the vehicle should not be excluded under s. 24(2).

[4]

In our view, the factors identified in
R. v. Grant
, [2009] 2
    S.C.R. 353 are fatal to the appellants contention that the evidence should be excluded.

[5]

With respect to the seriousness of the
Charter
-infringing state
    conduct, the trial judge found that the officer acted in good faith. Even if
    there were insufficient grounds to suspect the appellant of a specific offence,
    his behaviour clearly gave rise to a legitimate concern regarding officer
    safety that required some defensive action.

[6]

The s. 9
Charter
breach, if one occurred, had a minimal impact
    upon the
Charter
-protected interests of the appellant. There was only
    a temporal connection between the investigative detention and the search of the
    vehicle. The appellant effectively abandoned any interest in the vehicle. He
    was not the owner, he told the officer that he was not the driver and he
    invited the officer to have the vehicle towed away. The officer was entitled to
    look into the window of the vehicle and when he saw open bottles of alcohol, he
    was entitled to search the vehicle pursuant to s. 32(5) of the
Liquor
    License Act
, R.S.O. 1990, c. L-19.

[7]

As to the third
Grant
factor, society has a strong interest in an
    adjudication on the merits of these serious offences involving a loaded handgun,
    and the evidence was clearly reliable.

[8]

Accordingly, the appeal from conviction is dismissed.

Sentence appeal

[9]

A six-year sentence was, as acknowledged by the Crown, at the higher end
    of the range, but we are not persuaded that it was outside the range. This was
    a very serious offence involving a loaded gun carelessly stored in a motor
    vehicle. There was a bullet in the chamber in a position ready to be immediately
    fired. The appellant has a lengthy criminal record and was subject to no fewer
    than four s. 109 prohibition orders.

[10]

At
    the sentencing hearing during submissions, the trial judge provided a valid
    reason for according only one-for-one credit for pre-trial custody, namely, her
    assessment that given his serious record, the appellant was unlikely to secure
    early release.

[11]

The
    trial judge explained the need for general deterrence, denunciation, and public
    protection with regard to loaded handguns in the community. When all this is
    considered together with the appellants record and the fact that he had shown
    a disregard for court orders and weapons prohibitions, we see no reason to
    interfere.

[12]

Accordingly,
    leave to
appeal sentence is granted but the sentence appeal
    is dismissed.

John Laskin J.A.

Robert J. Sharpe J.A.

E.E.
    Gillese J.A.


