



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Owusu, 2019 ONCA 712

DATE: 20190911

DOCKET: C64722

Pardu, Brown and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ayobami Owusu

Appellant

Andrew Furgiuele, appearing as duty counsel

Benita Wassenaar, for the respondent

Heard: September 5, 2019

On appeal from the conviction entered on
    July 28, 2017 and the sentence imposed on November 1, 2017 by Justice Bonnie
    Croll of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals from conviction and sentence for various firearms
    offences. He was arrested on an outstanding warrant, and during the search
    incident to that arrest, a loaded handgun was found tucked into his waistband.
    At trial, the appellant argued that when the vehicle in which he was a
    passenger was stopped, immediately before the arrest, his rights under the
Canadian
    Charter of Rights and Freedoms
to be secure from arbitrary detention were
    violated, and that the evidence of the gun and ammunition should be excluded.

[2]

The appellant conceded that the handgun was a restricted firearm and
    that the magazine on the firearm was a prohibited device. He further conceded
    that he was not authorized under the
Firearms Act
, S.C. 1995, c. 39,
to carry a concealed
    handgun, and that he was not authorized, licensed or in possession of a
    registration certificate to possess such a firearm.

[3]

The appellant argued that the police did not have reasonable grounds for
    an investigative detention when they stopped the vehicle, and that the stop was
    a ruse intended to effect the arrest of the appellant and others.

[4]

The trial judge correctly identified the circumstances in which
    investigative detention is permissible. Applying the principles from
R. v.
    Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59, the trial judge stated:

Did the police have reasonable
    grounds to suspect that the individual is connected to a recent criminal
    activity and was the detention objectively necessary in the circumstances?
    Framed for this court case, did the police have reasonable grounds to suspect
    that Mr. Aarons [a suspect in a robbery] was in the car and was the detention
    objectively necessary in the circumstances?

[5]

She elaborated on the definition of reasonable suspicion, citing
R.
    v. Kang-Brown
, 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 75:

Suspicion is an expectation that the targeted individual is
    possibly engaged in some criminal activity. A reasonable suspicion means
    something more than a mere suspicion and something less than a belief based
    upon reasonable and probable grounds. As observed by P. Sankoff and S.
    Perrault, Suspicious Searches: Whats so Reasonable About Them?:

the suspicion must be supported by factual
    elements which can be adduced in evidence and permit an independent judicial
    assessment [citations omitted].

[6]

According to the evidence, two robberies involving the use of a firearm occurred
    on April 22, 2016. The two identified robbers, Aarons and Kolo, lived in or
    near the Chester Le area. The next day, police saw Aarons in the Chester Le
    area, with the appellant and others. Police knew that the appellant was wanted
    on outstanding warrants.

[7]

On April 24, 2016, police arrested Kolo but found no firearms. Later
    that day, police observed Aarons in a parking lot, talking to the driver of a
    grey Mitsubishi Lancer. Aarons was wearing a red top and was the only person in
    the parking lot wearing red clothing. As the Mitsubishi left the parking lot,
    police thought Aarons was no longer in the parking lot. Police followed the
    Mitsubishi. One officer confirmed that the front seat passenger was wearing red
    clothing; another officer saw someone in the vehicle was wearing red clothing.
    Police stopped the vehicle and immediately arrested the appellant on the
    warrant. As it happens, Aarons was not in the vehicle.

[8]

The trial judge rejected the argument that the vehicle stop was a ruse
    to arrest the appellant and others. Police did not need a ruse to arrest the
    appellant and there were also grounds to arrest two of the other passengers.

[9]

The trial judge found that the officers had reasonable grounds to
    suspect that Aarons was in the Mitsubishi, and that their suspicions were
    founded on objectively discernable facts. All of the officers who looked in the
    vehicle saw the red clothing in it. The police had not seen anyone else wearing
    red in the parking lot that afternoon. Police did not stop the vehicle until
    they had confirmed that the front passenger was wearing red, in the context of
    information that Aarons had been seen talking to the driver. The trial judge
    found that the police faced a dynamic situation and had to respond quickly,
    effectively and flexibly to that situation. She dismissed the
Charter
application, finding no violation of s. 9.

[10]

We
    see no error in the trial judges conclusions. Aarons had been identified as a
    participant in a robbery committed with firearms. There were reasonable grounds
    to believe that he was in the stopped vehicle.

[11]

There
    were some gaps in the information available to police. At one point, Aarons was
    seen riding away on a bicycle, but was shortly seen again, wearing a red top
    and red pants, and again talking to a group of others. Police did not have
    information as to the bicycles location.

[12]

The
    appellant argues further that since he is dark skinned and Aarons was light
    skinned, the police could not have thought the front seat passenger wearing red
    clothing was Aarons. The officer who drove by the vehicle to see if the
    passenger was wearing red clothing testified that she could not see the face of
    the passenger as she drove by, and the trial judge accepted this explanation.

[13]

These
    issues do not detract from the reasonableness of the trial judges conclusions.

[14]

The
    trial judge dealt with the same arguments now advanced on appeal and we see no
    error in her finding that the police had objectively based, reasonable grounds
    to believe Aarons was in the vehicle.

[15]

In
    so far as the appellant was concerned, the investigative detention lasted only
    seconds. As soon as he was found in the vehicle, he was arrested on the
    outstanding warrant.

[16]

The
    appellant also seeks leave to appeal his sentence.

[17]

The
    appellant received a six-year global sentence less 18 months pre-sentence
    custody credited at 1.5:1, leaving three years and nine months remaining to be
    served. The Crown sought seven years, while the defence sought five years. The
    appellant was only 19 years old at the time of the offence and had made efforts
    to further his education while in custody.

[18]

Most
    notably, however, the appellant had been found guilty under the
Youth
    Criminal Justice Act
, S.C. 2002, c. 1, for possession of a loaded firearm
    just ten months before the date of the offences for which he was to be
    sentenced. The trial judge noted that the appellant endangered himself, the
    other occupants of the car, the police, and the public by carrying the
    concealed handgun.

[19]

The
    appellant has not identified any error on the part of the sentencing judge and
    the sentence was fit.

[20]

Leave
    to appeal sentence is granted, but the appeal from sentence is dismissed. The
    appeal from conviction is also dismissed for the reasons given above.

G. Pardu J.A.

David Brown J.A.

Gary Trotter J.A.


