



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rafiq, 2017 ONCA 185

DATE: 20170303

DOCKET: C58932

MacFarland, Pardu and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shikar Rafiq

Appellant

I. Grant and R. Silverstein, for the appellant

Gillian Roberts, for the respondent

Heard: March 1, 2017

On appeal from the conviction entered on April 25, 2014
    by Justice Joseph Fragomeni of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant submits that the trial judge erred
    in admitting evidence of a gun found in a vehicle operated by him. The
    appellant argued at trial that he was arbitrarily detained when police stopped
    their vehicle two feet behind his vehicle which was parked at a gas station,
    and when an officer went to each side of the vehicle to speak to the occupants.
    He says further that police violated his s. 10(a) and s. 10(b)
Charter
rights when they failed at that time to advise him of the reason for
    detention and his rights to counsel.

[2]

The trial judge agreed that the appellant was
    then detained but found that it was not arbitrary. He found that the police had
    a reasonable basis to suspect that the occupants of the car were engaged in
    criminal activity. He found that there were violations of s. 10(a) and s. 10(b)
    of the
Charter
because police did not,
    immediately upon this detention, advise the appellant of the reason for
    detention and his rights to counsel.

[3]

The trial judge applied the test in
R.
    v. Grant
2009 SCC 32, and refused to exclude the
    evidence, concluding that the short delay occurred because of concerns for
    officer safety, and because the police, acting in good faith, did not think
    they had detained the appellant until they asked him to step out of the car.

[4]

The appellant argues that the bases advanced by
    the police for a reasonable suspicion were insufficient. However, the appellant
    and each of his two companions all acknowledged in statements made by them that
    an onlooker observing their behavior at the time would have found it
    suspicious. While each of the factors in isolation relied upon by the police
    would not be sufficient, the cumulative effect of the appellants and his
    companions behavior, was, as found by the trial judge, sufficient to support
    the investigative detention.

[5]

The appellant has not established that the trial
    judge erred in admitting the evidence, despite the violations he found. No
    challenge is made to the trial judges underlying factual findings which are
    entitled to deference. Assuming the correctness of the trial judges decision
    that the appellant was detained when police pulled in a car behind him, and
    went to speak to the occupants, here the police made no efforts to elicit
    inculpatory evidence after pulling behind the appellants vehicle but asked
    only very general questions. This case is nothing like
R. v. Wong
2015 ONCA 657. The appellant made no inculpatory statements to
    police before being advised of his rights and the reason for detention. The
    police did advise of the reason for detention and gave the appellant his
Charter
rights as soon as it was safe to do so. The presence of a
    loaded gun in the glove-box of the car was a significant finding. It was not
    uncovered as a result of evidence police compelled the appellant to produce.
    There was a substantial public interest in determination of this case on the
    merits.

[6]

Accordingly, the appeal is dismissed.

J. MacFarland J.A.

G. Pardu J.A.

G. T. Trotter J.A.


