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Case Name:
R. v. Humphrey

Between
Her Majesty the Queen, and
Raynford Humphrey

[2011] O.J. No. 2412

2011 ONSC 3024

237 C.R.R. (2d) 109

Ontario Superior Court of Justice

M.A. Code J.

Heard: March 14-18, 2011.

Judgment: May 30, 2011.

(157 paras.)

Counsel:

Ryan Wilson, Counsel for the Crown.

Edward L. Greenspan, Q.C., and Sherri J. Beattie, Counsel for the Accused.

[Editor's note: A correction was released by the Court June 10, 2011; the change has been made to the text and the correction is appended to this
document.]

REASONS FOR JUDGMENT

M.A. CODE J.:--

A. OVERVIEW
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1 The accused Raynford Humphrey is charged in a nine count Indictment with various offences
relating to three firearms that the police found in his car, late at night on March 8, 2008. More
specifically, he is charged with three counts of possession of three loaded .40 calibre handguns - a
Beretta, a Sturm Ruger and a Taurus - without a license or a registration certificate, contrary to s. 91
of the Criminal Code. He is also charged with three counts of possession of loaded "prohibited
firearms", contrary to s. 95 of the Criminal Code, in relation to the same three handguns. Finally, he
is charged with three counts of being the occupant of a motor vehicle in which he knew there was a
firearm, contrary to s. 94 of the Criminal Code.

2 There is no dispute that the accused Raynford Humphrey was the lessee and driver of the 2003
Cadillac motor vehicle that was stopped by the police on the night in question. The vehicle was
stopped in a particularly busy area of downtown Toronto known as the "entertainment district".
There were two passengers accompanying Raynford Humphrey, namely, his younger brother Jason
Humphrey in the back seat and his friend Raymond Powell in the front passenger seat.

3 There is also no dispute that the police found the three handguns in reasonably accessible,
although not visible, locations within the car. One gun was hidden in the cavity behind the back seat
arm rest, which was folded up and into the back seat at the time that the police found the gun. This
gun was easily accessible to the back seat passenger, Jason Humphrey. The other two guns were
located under the two front seats, but towards the back of the seats on the floor area that runs
underneath the seats. Again, these two guns were most accessible to the back seat passenger and
less accessible to the accused Humphrey and his friend Powell, who were in the front seats. The
Crown's theory was that these latter two guns could not be fully hidden on the front part of the floor
area, under the front seats, due to the mechanical and electrical equipment located in this area.
Accordingly, the Crown submitted that these two guns must have been passed into the back or
placed in the back as there was more room to completely hide them on the floor towards the back of
the front seats. There is some support for this theory, as one of these two guns had Powell's
fingerprint on the magazine and, as noted above, Powell was seated in the front passenger seat.

4 Finally, there is no dispute that the three handguns are all "firearms", within the meaning of ss.
2 and 84 of the Criminal Code. None of the guns were registered and none of the occupants of the
car were licensed to possess them.

5 The main issue on the merits is whether the accused Raynford Humphrey had knowledge of the
three guns in his car. He testified and advanced an exculpatory account, denying knowledge of the
guns. The two co-accused, Jason Humphrey and Raymond Powell, both pleaded guilty after the
preliminary inquiry and they are not before me. Neither of them was called as a witness.

6 The trial was conducted quickly and efficiently. The defence challenged the admissibility of the
three guns, alleging breaches of ss. 8, 9, 10(a) and 10(b) of the Charter of Rights. The evidence on
the Charter motion and the Crown's case at trial were called at the same time, largely in writing, in
the form of transcripts from the preliminary inquiry and an Agreed Statement of Fact. There were a
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few narrow issues of credibility and, in relation to these issues, the Crown witnesses were called
and testified before me. At the conclusion of both the Crown's case and the Charter motion, the s.
24(2) admissibility issue was argued. I dismissed the motion and admitted the three guns, in brief
oral reasons, with more thorough written reasons to follow. The defence then called its case on the
merits and the accused testified. I reserved judgment.

7 Counsel are to be commended for proceeding in this focused and expeditious manner. There are
certain risks in conducting the case largely on a written record, if conflicts arise in the evidence or
issues of credibility need to be resolved. See: R. v. Coburn (1982), 66 C.C.C. (2d) 463 (Ont. C.A.);
R. v. Barron (1985), 23 C.C.C. (3d) 544 (Ont. C.A.). However, counsel were alive to these dangers
and called viva voce evidence where such disputes existed.

8 The main issue on the Charter motion is whether the police used a violation of the Highway
Traffic Act, R.S.O. 1990, c. H.8, as a mere pretext or ruse to stop the car, and then conducted what
was really a broad and unfocused criminal investigation of suspected gang members. Having
stopped and detained the driver of the vehicle in this manner, in breach of s. 9, further violations of
ss. 10(a) and 10(b) are alleged in failing to promptly inform the accused Raynford Humphrey of the
reasons for the stop or of his right to counsel. Finally, the back seat passenger Jason Humphrey was
arrested for being in breach of the curfew terms of two recognizances that he was bound by at the
time. He was handcuffed and placed in the back seat of a police cruiser. A warrantless search of the
back seat area of the Cadillac was then conducted which led to the discovery of the guns. It is
alleged that this search was unlawful and, therefore, in breach of s. 8.

9 These are my reasons, both on the Charter motion and on the merits at trial.

B. FACTS

(i) The TAVIS patrol of the entertainment district

10 The two officers who stopped the accused Humphrey's car on the night in question, P.C.
Oliver Ho and P.C. Matt Stuart, are both members of a police unit known as TAVIS (Toronto
Anti-Violence Intervention Strategy). TAVIS officers are deployed to troubled high crime
neighbourhoods, throughout Toronto, with a mandate to engage in traditional law enforcement
duties but also to proactively engage with the community by talking to people, handing out TAVIS
cards and generally letting it become known that TAVIS is in the neighbourhood.

11 On weekends, the TAVIS officers attend in the entertainment district in downtown Toronto in
the late evening. There is a heavy concentration of clubs and bars in this area. Large numbers of
young people, who have generally been drinking, are on the streets late at night. There can be as
many as one hundred police officers in the area because fights generally break out and there have
been shootings.

12 Officers Ho and Stuart were in uniform in a marked police car, patrolling in the area, on
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Friday night, March 7, 2008. They had driven downtown to begin their patrol at about 10:30 p.m. or
11:00 p.m. and had noticed a silver Cadillac with tinted windows on one or two occasions. They
could not see the driver or occupants of the car and there was nothing unusual about it. It is
common for cars to drive around the entertainment district at night and this particular car was doing
nothing wrong.

(ii) The expired "val tag"

13 At about 1:19 a.m. on Saturday morning, March 8, 2008, the police cruiser was proceeding
west on Richmond Street, approaching the traffic light at Peter Street. Traffic was heavy and a
silver Cadillac was immediately ahead of the police cruiser. It may or may not have been the same
car they had previously noticed. The Cadillac and the police cruiser came to a stop as the traffic
light at Peter Street turned red. The officers noticed that the licensing sticker on the rear license
plate of the Cadillac had expired. This is referred to by the police as an expired "val tag". It was
dated January 2008 and had been expired for almost two months.

14 There is no dispute that the accused Raymond Humphrey's Cadillac, in fact, had an expired
val tag affixed to the rear license plate on the night in question. It is plainly visible in the
photograph taken of the rear of the car, later that night, after the car had been seized by the police
and searched. There is also no dispute that it is an offence, contrary to s. 7(1)(b) of the Highway
Traffic Act, to drive a vehicle without a valid licensing sticker affixed to the rear license plate.
Finally, it is not disputed that this offence provided the police with proper grounds to stop the car,
pursuant to the Highway Traffic Act. The issue is whether this was the true reason for the stop, on
the particular facts of this case.

15 Upon noticing the expired val tag, and while waiting at the red traffic light, the police quickly
checked the license plate through their computer system in the police car. They learned that the
owner of the vehicle was Raynford Humphrey, they learned his address and they learned that he had
purchased a current val tag but had simply failed to affix it to his license plate.

16 P.C. Ho had been an officer at 43 Division in Scarborough, prior to his assignment to TAVIS,
and he recognized the name Raynford Humphrey. He had seen Raynford Humphrey being stopped
by the police in his Cadillac in Scarborough, on another occasion by another officer, and he knew
that his brother was Jason Humphrey, on the basis of prior contact. In addition, he knew that the
brother was alleged to be involved with a criminal gang in Scarborough known as the Galloway
Boyz. The tinted windows of the Cadillac were quite dark and it was night time, so the police could
not see who was inside the car. P.C. Ho knew that the accused Humphrey and his brother Jason are
black. P.C. Ho advised his partner P.C. Stuart of his prior knowledge of the accused Humphrey and
of his brother's alleged connection to the Galloway Boyz.

(iii) The call for "back up"

17 The Cadillac turned left at Peter Street and the police cruiser followed it. P.C. Ho was driving
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and he activated the cruiser's emergency lights and pulled the Cadillac over. It was about 1:21 a.m.
when the officers stopped the car. They called for "back up", over the police radio, prior to getting
out of the cruiser to speak to the occupants. There was a great deal of evidence about the strict
meaning of the term "back up" and whether the officers had used this precise term when calling for
a second unit. It appears that "back up" is a term of art, amongst police officers, and that it means a
call for help. Merely calling for a second car to drop by, if another unit happens to be in the area, is
just normal routine and is not a call for help. Especially in the entertainment district, where there are
numerous police units in a small area, it is common place to simply ask for a second unit to stand
by. The officers insisted this is all that they did and that they were not calling for "back up" in its
true sense. In either case, whether calling for "back up" or simply asking for a second unit in the
area to stand by, the rationale for making both types of call is officer safety. There are numerous
potential safety issues, even when just pulling a car over for a minor ticketing offence. In the
entertainment district, with a lot of people out on the streets, these safety issues are enhanced. In
this particular case, the potential connection to associates of the Galloway Boyz was a further
consideration. The officers agreed that they made the call for a second unit for all of these
safety-related reasons.

18 In spite of conceding the officer safety rationale for making this radio call, the officers were
adamant that it was not a call for "back up" in the strict meaning of this term. After they had
testified, the tape and a transcript of the radio call were produced and filed as exhibits. They
disclose P.C. Stuart saying the following:

We're just about to pull a vehicle over, southbound ... Peter from Richmond. I'll
give you the marker if you just want to have a look, if you guys could back us up.
[Emphasis added.]

19 As it turned out, there was a second TAVIS unit nearby and it immediately pulled in behind
the first TAVIS unit. Officers Astolfo and Taylor were in this second unit and they stood by at the
scene, while Officers Ho and Stuart conducted the investigation. At some point, additional units
arrived at the scene and a large number of police officers were present. There are a number of clubs
in the immediate area where the Cadillac was pulled over and a lot of people were on the street.

(iv) The reasons for the stop

20 On the crucial issue of whether the expired val tag was the true reason for the stop, or merely a
ruse or pretext for a broad criminal investigation, the officers were questioned at considerable
length.

21 P.C. Ho testified that "the non-affixed val tag was my grounds for pulling it over." He agreed
that his enforcement options were to simply give the driver a warning, issue a Provincial Offences
Act ticket, or require the registered owner to attend at a police station with the sticker affixed. P.C.
Ho denied having any plan to conduct a general criminal investigation and denied using the expired
val tag as a mere opportunity to conduct a broader investigation. P.C. Ho acknowledged preparing a
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"will say" statement for this case in which the opening line stated:

On March 8, 2008 the writer had the opportunity to stop a vehicle while in the
entertainment district of 52 Division.

He testified that his use of the word "opportunity", in this context, simply meant "occasion".

22 As the investigation progressed, and P.C. Ho saw that the two passengers in the car were
Raymond Powell and Jason Humphrey, he developed a "hunch" or suspicion of criminal activity.
P.C. Ho knew both Powell and Jason Humphrey, from his years at 43 Division in Scarborough. He
had read police intelligence reports and occurrence reports, connecting the two passengers to
criminal gangs. He decided to run police computer checks on the passengers, and not just on the
driver, because of this "hunch" or suspicion. P.C. Ho explained, "I'm just being a policeman ... I'm
investigating ... I was being thorough ... To see if he [the passenger Jason Humphrey] was on any
charges or any curfews or any breaches."

23 It can be seen that P.C. Ho's admission, that he had a criminal law purpose based on a "hunch"
or suspicion, does not relate to the reasons for the initial stop of the vehicle. Rather, it relates to his
interest in the passengers, once he saw who they were, and to his reasons for running their names
through the police computer after the stop.

24 P.C. Stuart gave somewhat different evidence on this point. He had no prior knowledge of the
accused Raynford Humphrey or of the two passengers who were found in the car. He was entirely
dependent on P.C. Ho, in this regard, and on the police computer. The officers jointly decided to
stop the Cadillac, after a brief discussion which P.C. Stuart described in the following terms:

Q: Do you recall what the discussion was?

A: Well, the fact that Mr. Raynford Humphrey was a known associate to the
Galloway Boyz and the fact that his license plate had an expired val tag, we
decided that we had the grounds to stop the vehicle, why not stop them and talk
to them.

Q: I see. So it was to stop him because of the validation sticker and also to see
what he was about since he appeared to have some association to the Galloway
Boyz, would that be fair?

A: That's fair, yes ... we'd been asked to come down by 52 Division to assist with
the level of heightened violence in the entertainment district. So when you see a
vehicle that does have an associate to a gang member and you do have grounds to
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stop it, then, yeah, I'm going to stop the vehicle, yeah ... if it's someone that's
known to the police and you have reasonable grounds to stop them, then, yes, I'm
going to stop that vehicle ... Our mandate also includes Highway Traffic Act. It
also includes criminal investigations. We're police officers ... We stopped the
vehicle to speak to Mr. Humphrey ... to at least notify him that his val tag is
expired.

25 The above answers were elicited by the first counsel who cross-examined P.C. Stuart at the
preliminary inquiry. The second counsel then referred back to these earlier answers, in the
following questions, which were relied on heavily on the Charter motion:

Q: But you've already told us that you wouldn't necessarily have pulled over this
person for a val tag but for the fact that it was also a gang member and it gave
you a reason to talk to him, right?

A: Yes

...

Q: With respect to the val tag is it fair to say that if you're suspicious of
someone's criminal activity or criminal behavior, suspected criminal behavior,
that the HTA is often used, well really it's an excellent tool that's available to you
to check things out?

A: That's correct.

26 Finally, the third counsel to cross-examine at the preliminary inquiry re-visited the topic yet
again and elicited the following answers:

A: ...the fact that his val tag was indicated expired sparked our interest. Now we
had legal grounds to run the vehicle which we did.

...

Q: You see the validation, decide you're going to run it through. As you know, of
course, if you have any suspicions about the vehicle this gives you a perfect
opportunity to use this fact as a way of investigating it.
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A: Yeah.

Q: You're not really concerned too much about an expired registration on a

vehicle with the job you've got that night. That's not that important to you. It's
certainly a legitimate part of your job.

A: No. But Officer Ho knew who the driver was when he ran the vehicle. That's
what sparked the extra interest ... Officer Ho provided that information that
possible associations but, I mean ... it was just a general investigation of, well,
the H.T.A. offence which Officer Ho conducted and I didn't have any other belief
of anything. I just wanted to identify the guys in the car.

Q: Well, you weren't just checking out a Highway Traffic Act offence here.
You've made that clear.

A: Yeah.

Q: You were stopping the vehicle because of the registration but you were not
really interested in that. You were interested, from your point of view anyways,
you were interested in who is in the car and you heard from Ho the Galloway
Boyz ... That's all you were interested in. Is that not true?

A: Yes.

Q: Now Ho might have been interested in something else, the registration

perhaps, but that's not what you're interested in.

A: No.

Q: You're investigating.

A: Correct.
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27 It can be seen that the third cross-examiner subtly shifted the focus of his questions from the
grounds for P.C. Ho's stop of the vehicle to the grounds for P.C. Stuart's questioning of the
passengers.

28 In re-examination, Crown counsel asked the following question:

Q: Would you stop the car in this case simply knowing the val tag had not been
or was expired or had not been affixed properly.

A: Yes ... Yes, I would stop the car.

(iv) The alleged breaches of ss. 10(a) and 10(b) of the Charter

29 Upon stopping the Cadillac, the two officers exited the police cruiser. P.C. Ho approached the
driver's side and P.C. Stuart approached the passenger side. Both officers confirmed that they did
not observe any suspicious movements inside the car, such as the moving or hiding of anything.
They also confirmed that the three occupants of the vehicle were polite and cooperative. There were
no guns in plain view that the officers could see.

30 P.C. Ho testified that he saw the two passengers inside the vehicle, for the first time, when he
approached the driver's window. As he knew both Raymond Powell and Jason Humphrey, and
recognized them, he agreed that he likely exchanged pleasantries with them before asking the
driver, the accused Raynford Humphrey, for his ownership, insurance and driver's license
documentation. Humphrey provided these documents, although he only had a temporary driver's
license with no photo affixed to it.

31 P.C. Ho admittedly did not inform the accused Humphrey of his s. 10(b) Charter right to
counsel, at the time of the roadside stop. In relation to s. 10(a) of the Charter, and the reasons for
the stop, he testified at the preliminary inquiry:

I'm sure I told him why I stopped the vehicle ... Well, I'd have no reason not to ...
I can't recall but usually I do. I usually give the reason if I'm pulling over a car ...
Well, I don't remember. I don't remember.

32 At trial, P.C. Ho gave essentially the same evidence on this point. He testified that he had no
specific recollection of advising the accused Raynford Humphrey of the reason for the stop. He also
had no note in his notebook of telling Humphrey the reason for the stop, although his notes do set
out the H.T.A. reason for the stop. P.C. Ho insisted that he always tells drivers the reason for a
motor vehicle stop and that he would have told Humphrey about the val tag issue. Drivers usually
ask for the reason and, in any event, it avoids problems to tell the driver. However, P.C. Ho agreed
that it is "possible" he did not tell Humphrey the reason for the stop, given his lack of any specific
recollection and his lack of a note on the point. In re-examination, he testified that there is a high
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probability that he told Humphrey the reason for the stop, as he does this with all drivers as a
common courtesy.

33 No defence evidence was called on the Charter motion in relation to this point, or any other
point. The defence relies on the police evidence in order to satisfy its burden.

(vi) The discovery of Jason Humphrey's breach of recognizance

34 P.C. Ho returned to the police cruiser with the accused Raynford Humphrey's documentation,
in order to confirm that he, in fact, had a temporary driver's license and to check his address. All of
Humphrey's documentation turned out to be in order. P.C. Ho did not write out a Provincial
Offences Act ticket for the s. 7(1)(b) Highway Traffic Act offence that Humphrey was committing.

35 P.C. Ho ran the passenger Jason Humphrey's name through the police computer, pursuant to
the "hunch" or suspicion referred to previously. P.C. Ho discovered that Jason Humphrey was
currently released on two bail orders and that terms of both recognizances required that he obey a
curfew between 10:00 p.m. and 6:00 a.m. The earlier bail order dated from September 19, 2006 and
related to a charge of simple possession of marijuana. The second bail order dated from February
14, 2007 and related to a charge of trafficking cocaine and four counts of breach of recognizance.

36 In addition to discovering that Jason Humphrey was in breach of both of these bail orders,
P.C. Ho read a "caution" on the police computer that described Jason Humphrey as "armed and
dangerous". This caution had been entered in the computer on August 5, 2005 and it was not
removed until June 30, 2009. In other words, it was still current at the time of the stop on March 8,
2008. The "caution" also stated that Jason Humphrey was a "person of interest" in a homicide and to
contact Detective Kyriacou.

37 P.C. Ho testified that these kinds of "cautions" or "bulletins" are placed on CPIC for officer
safety reasons. He did not know anything about the underlying details in support of the "caution".
He simply assumed that there was a reason for it.

38 P.C. Stuart similarly conceded that he knew nothing about the age, origins or reliability of the
information on the police computer to the effect that Jason Humphrey should be considered "armed
and dangerous". He testified that these "cautions" usually relate to an ongoing investigation and it is
the responsibility of the investigating officer to update it and to eventually remove it from CPIC.
P.C. Stuart simply relied on the information from the computer in order "to do my job".

(vii) The questioning of the passengers

39 While P.C. Ho spoke to the accused Raynford Humphrey at the driver's side window, and then
returned to the police cruiser to check his documentation, P.C. Stuart spoke to the two passengers at
the passenger side of the vehicle. As previously noted, P.C. Stuart was interested in identifying the
two passengers because of the information he had received from P.C. Ho about the accused
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Raynford Humphrey having possible gang associates. He testified as follows:

I asked them for their identities just because Officer Ho told me that the driver
was known as an associate to a possible gang. I just felt that, you know, it would
be nice to know who is with him, so I asked the two gentlemen for their
identifications and they were quite cooperative. They didn't put up any attitude or
anything. So I just went with it and asked them for their ID.

40 The front seat passenger, Raymond Powell, handed his driver's license to P.C. Stuart and the
backseat passenger, Jason Humphrey, gave his name orally as "Jamal Monkhouse". P.C. Stuart
wrote their names and descriptions down on what are known as "208 cards", which document all
police contacts. The cards are submitted at the end of each shift and are stored in a police database.

41 Jason Humphrey was on the passenger side of the back seat but was slouched over on his side
towards the middle of the back seat. Both passengers were very polite and cooperative and there
was nothing suspicious about their behavior. P.C. Stuart testified that the two passengers were not
obliged to cooperate with him, although he did not tell them this. He testified that:

I felt obligated to at least try and identify the other two guys in the vehicle ...
Because it's nice to know the associates ... if they had told me, I'm not giving you
my name, I'm not giving you any information, I wouldn't have thought anything.
But because of their attitude, they were cooperative. Their demeanour, they were
very respectful of what was happening ... I said, "Can I see your ID, please?"

42 Once P.C. Stuart had obtained the two passengers' names, and had filled out the 208 contact
cards, he had no further questions. As he put it, he would normally have let them go and would have
said something like "Good night gentlemen. Here's your val tag papers. There was nothing else".
P.C. Stuart agreed that what he was doing was "gathering intelligence" that could potentially be
provided to other officers involved in some subsequent investigation. He explained:

Because a lot of times what happens is if there's an incident that happens in a

specific area it's nice to know that if one person is pointed out it's nice to know,
well, they were with these other two, whether that information cleared those
other two from the incident or not or corroborated them into being involved in
that. It's just an investigative technique that is commonly practiced. I asked them
for their ID. They provided it to me.

43 When P.C. Stuart returned to the police cruiser and told P.C. Ho the names of the two
passengers, P.C. Ho advised P.C. Stuart that "Jamal Monkhouse" was not the true name of the back
seat passenger. P.C. Ho retrieved Jason Humphrey's photograph from the police computer and
showed it to P.C. Stuart, who agreed that this was the back seat passenger. P.C. Ho then advised
P.C. Stuart that the passenger Jason Humphrey was in breach of the curfew term of his two
recognizances and was arrestable. P.C. Ho also showed P.C. Stuart the "armed and dangerous"
 Page 12

bulletin on CPIC concerning the passenger Jason Humphrey.

44 At this point, P.C. Stuart returned to the Cadillac. He arrested Jason Humphrey for fail to
comply with the terms of his recognizance and handcuffed him. It was 1:30 a.m. so the Cadillac had
now been stopped for nine minutes. P.C. Stuart did a pat down search of Jason Humphrey's person,
for officer safety reasons, as a result of the "caution" that Jason Humphrey was considered "armed
and dangerous". There were no weapons on his person. At this point, Jason Humphrey was placed
in the back seat of the police cruiser. P.C. Ho remained in the cruiser with Jason Humphrey.

(viii) The warrantless search of the back seat area of the Cadillac

45 P.C. Stuart returned to the Cadillac and conducted a warrantless search of the back seat area,
which Jason Humphrey had occupied immediately prior to his arrest. P.C. Stuart explained that he
was continuing the search incident to arrest and that he was looking for a weapon. He testified as
follows on this point:

... I went back up to search - incident to arrest I searched the general area of the
back seat ... I just searched the general area of where Jason was sitting.

46 P.C. Stuart pulled down the back seat arm rest and found a loaded handgun in the cavity
where the arm rest folds into the back seat. P.C. Astolfo, who was standing by at the time of the
arrest of Jason Humphrey, was asked to assist in the search of the back seat area. He looked under
the back of the driver's seat and found a second loaded handgun on the floor. He described it as
being "tucked underneath" the back of the driver's seat. It was "as far forward as possible". The time
was now 1:32 a.m.

47 When pressed in cross-examination as to the rationale for the warrantless search of the back
seat area of the Cadillac, P.C. Stuart testified as follows:

... any area that he [Jason Humphrey] has reasonable access to can be searched as
a part of incident to arrest ... For the possibility of any weapons and evidence or
what have you ... I was continuing the search incident to arrest. I arrested him at
the vehicle ... immediately prior to being arrested he had reasonable access to
certain areas of the back seat of the car and, yes, I did search those areas that he
had immediate access to ...

Q: You said you might be searching for evidence.

A: The possibility of any further evidence, that's correct, a weapon or any further
evidence ... the caution, "armed and dangerous", certainly sparked my attention,
so I figured why not check the area ...
 Page 13

Q: So really the evidence you were looking for might be a weapon.

A: I would be negligent with the information that I had, that he was cautioned
"armed and dangerous", if I didn't check the immediate area that he had access
to.

Q: But just in terms of addressing the question I was asking, the evidence you
were looking for was?

A: Was a firearm.

Q: Described by the "armed and dangerous", not by the word curfew?

A: Correct.

48 P.C. Stuart agreed that Jason Humphrey was no longer a danger, at the time of the search, as
he was under arrest and handcuffed in the back seat of the police cruiser. P.C. Stuart also agreed
that he was not searching for evidence of the breach of recognizance offence that was the basis for
the arrest. He reiterated that he was searching for a "weapon":

... because of the information of the "armed and dangerous" it was reasonable for
me to believe that he may, maybe, may have something in the back seat.

49 Although P.C. Ho did not participate in the search of the back seat of the Cadillac, he
understood the rationale for the search in similar terms to P.C. Stuart:

The subject is on file as "armed and dangerous". Just as an officer safety, from an
officer safety standpoint, just check the immediate area of where he was sitting ...
something could have been left behind or if anything was tucked under the seat ...
I would assume at the time possibly there could be a weapon.

50 It is important to note that when P.C. Stuart and P.C. Astolfo searched the back seat area, the
two handguns that they found were not visible. Furthermore, they did not see the third handgun at
all. It was not discovered until much later, after the Cadillac had been seized by the police and
towed back to 52 Division.

51 P.C. Astolfo also found a small plastic bag in the console between the two front seats. It was
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partially in plain view and it contained 8.29 grams of marijuana.

(ix) The arrest of the accused Raynford Humphrey and the further search of the car

52 The accused Raynford Humphrey and his friend Powell were asked to step out of the front
seat of the car, while the police searched the back seat area. Upon finding the two loaded handguns,
the police arrested all three men for possession of the handguns. At this point, they were read their
s. 10(b) Charter rights. It was now 1:34 a.m.

53 Given the large number of pedestrians and vehicles in the entertainment district at this time,
the police decided to suspend any further search of the Cadillac. Seals were placed on the car and it
was towed to 52 Division station. At 4:18 a.m., the seals were broken and a further search of the car
was conducted in the garage at 52 Division. At 4:40 a.m., P.C. Horace Harvey found the third
loaded handgun. It was on the floor under the passenger side front seat, but towards the rear of the
seat. P.C. Stuart testified that he did not see this gun, when conducting the roadside search of the
back seat area, because you would have to bend down low to the ground in order to see under the
back of the front seat.

54 P.C. Steven Head took photographs of the Cadillac. His photographs show that there is a lot of
electrical and mechanical equipment under the two front seats. It would not be possible to pass a
gun underneath these seats, from the front to the back, because this equipment would obstruct the
passage. There is more room to hide a gun at the back of these seats than at the front. It would be
possible to place a gun on the floor at the front of these seats but it would protrude somewhat or
would not be hidden as well as at the back of the seat.

55 The only fingerprint found on the three handguns that is of interest, belonged to the front seat
passenger Powell. His print was lifted from the magazine of the gun found by P.C. Astolfo. This
gun was located on the floor at the back of the driver's seat.

(x) The accused Raynford Humphrey's exculpatory account

56 As previously noted, the accused Raynford Humphrey testified at the trial, but not on the
Charter motion. He is now 25 years old. He was 22 years old at the time of his arrest in this case
and had no criminal record. He was released on bail and subsequently acquired a criminal record,
for obstruct police and fail to comply with his recognizance, as a result of an incident where he gave
the police a false name.

57 He was born in Montreal and raised in Toronto by his parents. He attended high school in
Scarborough and graduated in 2004 at age 18. He has four siblings. His brother Jason, who is now
23 years old, is the youngest of the five children.

58 Raynford Humphrey has been a musician and has played in bands since his high school years.
He writes his own music and performs and records. After graduating from high school, he dedicated
 Page 15

all of his time to his music. A few years later, around 2007, he started to become known and began
to be paid for performing. He had a manager and he would be invited to play at concerts with his
band and he would also be asked to appear at clubs. At the time of his arrest, in March 2008, his
career was just starting to pick up. He had recordings on CD and he would be paid $500 to $1,000
for appearances at clubs and for performances at concerts. In a good month, he would make about
$2,000.

59 He had been brought up in his parents' home at 22 Apsco Avenue in the Galloway Road area
of Scarborough. He continued to live there for a few years after high school but his mother moved
to the United States and he also had a falling out with his father. By 2006, he was living at both his
aunt's house in Whitby and at his girlfriend's mother's house at 35 Valia Road in Toronto. He and
his girlfriend, Renée Richards, had a baby on October 31, 2006. By the time of his arrest, in March
2008, Raynford Humphrey was living at the Valia Road home with his girlfriend, her mother and
their baby. His brother Jason was living at their aunt's home in Whitby.

60 Raynford Humphrey knew that his brother was on bail at the time of the relevant events in
March 2008, although he did not know the bail conditions. He did not think his brother had a
criminal record and he did not think his brother was a member of the Galloway Boyz gang. He and
his brother were fairly close, as they grew up together in the same house. But once Raynford and his
girlfriend had their baby in 2006, he saw less of his brother. By 2008, they were not living together
and they were not talking a lot. Raynford Humphrey was focused on his child, his girlfriend and his
music career.

61 He had heard about the Galloway Boyz gang and he and his friends often talked about it, as
they were growing up in the neighbourhood. There was even a book that had been written about the
gang. His brother Jason denied being a member, when Raynford discussed the matter with him.
Raynford Humphrey denied ever having a gun and denied ever being a member of the Galloway
Boyz.

62 In 2007, Raynford Humphrey leased the used Cadillac car for $400 per month. He had been
leasing the car for about nine months by the time of the relevant events in March 2008. It was his
only major expense, aside from his cell phone, as he was living rent-free at the Valia Road home.
Lots of other people drove the car. His girlfriend Renée, her mother and her brother were the most
frequent users, other than himself. They would use it to run errands from the Valia Road house. His
brother Jason would also borrow the car, if he needed to go somewhere, as he did not have a car of
his own. Raynford left a spare set of keys for the car at his aunt's home in Whitby, where Jason
lived. His cousins, who lived at the Whitby home, could also borrow the car.

63 Raymond Powell was a childhood friend. They had known each other since junior high school
and were fairly close. Powell lived nearby at 30 Valia Road and Raynford Humphrey would see him
about once a month. He knew Powell had a criminal record. Powell had his own car, a small fast
Nissan two-seater, but he did not drive it when there was snow in the winter. Raynford Humphrey
 Page 16

had let Powell borrow the Cadillac on two or three occasions, as Powell lived nearby and would ask
for the car to run errands if it was snowing.

64 Raynford Humphrey would drive downtown a few times a month in his Cadillac. His
recording studio was in the entertainment district and he would be asked to appear at clubs in the
district, in order to promote his music. He had been stopped by the police numerous times, mainly if
he was driving in the Galloway area of Scarborough. He had only been stopped by the police once
in the entertainment district, and it was for a valid reason, as he drove into the studio lot too fast. He
had purchased a new license plate sticker for his car and he kept it with him in the cup holder in the
car. He agreed that he had not yet affixed it. He explained his failure to affix it as being due to the
fact that he had only been leasing the car for nine months, it was the first time that he had ever had
to renew a license plate sticker and it had been wet and snowing outside.

65 On the night in question, Raynford Humphrey was being paid a fee by a promoter to attend at
a club called "Pur" in the entertainment district. His job was to be at the club at a certain time, to
mingle with fans and, perhaps, to perform one or two songs. The promoter would advertise his
appearance as a way of attracting fans to the club. This particular promoter was from the Galloway
area of Scarborough and had grown up there, with Raynford Humphrey and his friends. Raymond
Powell and Jason Humphrey knew of the event, as they all knew the promoter. They asked
Raynford if they could attend the club with him and he agreed.

66 It was the first time that he had ever taken Powell and his brother to an event like this, given
that this more successful phase of his career was still relatively new. He was allowed to take a few
friends and his manager to paid events like this one. However, he had closer friends than Powell and
they would normally accompany him. He had made similar appearances at clubs in Hamilton,
London, Windsor and Montreal. He would normally arrive at a club around 1:00 a.m. for an
appearance like this. The crowd would be warmed up by this point and the bar would still be open
until 2:00 a.m. The clubs close at 3:00 a.m.

67 Raynford Humphrey told Powell to be at his house on time, so that they could drive
downtown together and be at the club by about 1:00 a.m. Powell arrived on time but Raynford was
putting his baby to sleep and was not ready to leave. He gave Powell the keys to the Cadillac and
told him to warm up the car. It was a cold stormy night in early March. After putting the baby to
sleep, which took five to ten minutes, he left his house and joined Powell in the car. Powell was in
the front passenger seat. It was about 12:30 a.m. when they drove off. They were now late.
Raynford Humphrey had agreed to pick up his brother Jason at a gas station at Markham Road and
Lawrence Avenue. Jason was visiting at a friend's place in this area, and Raynford had to get gas, so
they agreed to meet at the gas station. These arrangements were all made by cell phone on the night
in question.

68 When Raynford drove into the gas station, Jason was there waiting. Raynford got out of the
car, pumped gas and went into the station to pay for it, while Jason got into the backseat of the car.
 Page 17

They all drove downtown, with Jason in the back seat and Powell in the front passenger seat. They
listened to music and talked during the drive. Nothing unusual happened in the car. It took about 45
minutes to drive downtown.

69 Raynford Humphrey denied knowing that any of the three guns were in his car. He would not
have allowed his brother or Powell to bring guns into his car. He probably would not have allowed
his brother to come with him at all, if he knew about the curfew. There are security guards at the
clubs and guns are not allowed in the clubs. Raynford agreed that it is possible they could have gone
on from the club to attend an after-party, after the club closed at 3:00 a.m. He would often learn of
after-parties at a club appearance and his manager would sometimes pay him to attend.

70 Raynford Humphrey described stopping at the traffic light at Richmond and Peter Streets, in
heavy traffic, turning left onto Peter Street, and being pulled over immediately by the police. There
was no movement by anyone inside the car, such as when hiding something. Raynford was not
wearing gloves. P.C. Ho knew Jason Humphrey and spoke with him. P.C. Ho then asked Raynford
for his driver's license, insurance and ownership papers. P.C. Ho did not tell Raynford Humphrey
that the reason for the stop was the expired or non-affixed val tag. There were a large number of
police officers present. Raynford Humphrey was surprised that he was stopped and wondered what
he had done.

71 Raynford Humphrey gave a somewhat different account from the police officers of the exact
sequence of events, once the car was stopped by the police. However, he agreed that everyone was
polite and cooperative with the police and that the main focus was on Jason Humphrey, because
P.C. Ho knew him and because he was arrested for breach of recognizance shortly after the stop.

72 Raynford Humphrey was clear in his testimony that he did not regard the stop of his car by the
police as "harassment". Indeed, he was clear that he had never been "harassed" by the police in the
entertainment district, in the sense of being stopped for no good reason. He was simply unaware of
the fact that it is an offence to drive a car without affixing the new val tag, given that he had
renewed it and he had it with him in the car. He also agreed that the bag of marijuana in the console,
which belonged to Powell, could have been partially in plain view when P.C. Astolfo seized it.

73 I asked Raynford Humphrey whether he could explain how three loaded handguns came to be
in his car, with three men travelling in the car, unless each one of them had brought a gun. He
responded that he could explain but that he learned the explanation from asking his brother at some
point after the arrest.

C. LAW i. The Charter motion to exclude the seized handguns

74 As noted at the beginning of these reasons, the defence brought a motion seeking to exclude
the three seized handguns on the basis of alleged breaches of ss. 9, 10(a), 10(b) and 8 of the Charter
of Rights and Freedoms. The calling of evidence on the motion was blended with the calling of the
Crown's case on the merits. The defence filed a substantial documentary record, mainly made up of
 Page 18

preliminary inquiry transcripts. The Crown called three police witnesses, who were cross-examined,
in order to supplement the documentary record on the motion. No defence witnesses were called on
the motion.

75 All of this evidence has been summarized above, as it also forms part of the trial record.

76 I will address the four alleged breaches of the Charter in the chronological order in which they
are said to have occurred.

(ii) Section 9 of the Charter: random "check stops" without articulable cause; use of the Highway
Traffic Act as a "pretext" or "ruse"; and "dual purpose" stops under regulatory statutes

77 Mr. Greenspan sensibly conceded that the accused was committing an offence, contrary to s.
7(1)(c) of the Highway Traffic Act, by driving his vehicle on the night in question without "a
currently validated permit...affixed, in the prescribed manner, to one of the number plates." The
officers directly witnessed the offence being committed when they pulled up behind the Cadillac at
the stop light at Richmond and Peter Streets. The officers conceded, however, that they also had
criminal investigative interests in the occupants of the vehicle.

78 There is a factual dispute on the motion as to the true reasons for the officers' decision to stop
the vehicle. There was also a great deal of legal debate as to the scope of police powers in relation
to motor vehicle stops. I will address those legal issues, before turning to the factual dispute, in
order to set out the legal framework in which the facts are situated.

79 Section 216(1) of the Highway Traffic Act authorizes a police officer to stop a vehicle, even in
the absence of any reasonable grounds to believe that an offence is being committed against the Act.
Arbitrary stops pursuant to this statutory provision have been held to violate s. 9 of the Charter, but
are nevertheless saved by s. 1 of the Charter, provided the officer's true purposes for the arbitrary
stop relate to enforcement of the Highway Traffic Act. In this regard, fixed road blocks can be used
to stop entirely innocent drivers and random roving stops, without any articulable grounds, have
also been held to be justified under s. 1 of the Charter, provided the police act on the basis of
"reasons related to driving a car such as checking the driver's license and insurance, the sobriety of
the driver and the mechanical fitness of the vehicle". In other words, the s. 1 justification for
arbitrary H.T.A. stops depends on the officer's subjective motivation, and not on the existence of
objective grounds. See: R. v. Hufsky (1988), 40 C.C.C. (3d) 398 at 406-7 and 409 (S.C.C.); R. v.
Ladouceur (1990), 56 C.C.C. (3d) 22 at 37 and 44 (S.C.C.); R. v. Mellenthin (1992), 76 C.C.C. (3d)
481 at 487 and 490 (S.C.C.).

80 Given the fragile constitutional basis for these kinds of random "check-stops", the above line
of authority places strict limits on the scope of police questioning and police procedures in the
course of such a stop. As Cory J. stated in Ladouceur, supra at 44, explaining the narrow s. 1
justification for random H.T.A. stops:
 Page 19

Finally, it must be shown that the routine check does not so severely trench upon
the s. 9 right so as to outweigh the legislative objective. The concern at this stage
is the perceived potential for abuse of this power by law enforcement officials. In
my opinion, these fears are unfounded. There are mechanisms already in place
which prevent abuse. Officers can stop persons only for legal reasons, in this case
reasons related to driving a car such as checking the driver's licence and
insurance, the sobriety of the driver and the mechanical fitness of the vehicle.
Once stopped the only questions that may justifiably be asked are those related to
driving offences. Any further, more intrusive procedures could only be
undertaken based upon reasonable and probable grounds. Where a stop is found
to be unlawful, the evidence from the stop could well be excluded under s. 24(2)
of the Charter. [Emphasis added.]

81 In other words, if the police exceed the narrow s. 1 road safety justifications for a random
stop, the s. 9 breach can no longer be saved and the Charter will be violated. In Mellinthin, supra at
487 and 490, Cory J. quoted the above passage from Ladouceur and reiterated the point:

The police use of check stops should not be extended beyond these [road safety]
aims. Random stop programs must not be turned into a means of conducting
either an unfounded general inquisition or an unreasonable search. ... The rights
granted to police to conduct check-stop programs or random stops of motorists
should not be extended.

82 In the case at bar, however, the above line of authority has no application. The police were not
engaged in the kind of random stops, dealt with in Hufsky, Ladouceur and Mellinthin, where there
has clearly been a s. 9 violation and where the stop depends on s. 1 for its constitutional
justification. On the contrary, Officers Ho and Stuart had strong grounds to believe that an offence
was being committed against the Highway Traffic Act, based on their own direct observations. No s.
1 justification was needed for the police action in this case unless there was a s. 9 violation. If the
police truly stopped the vehicle, on the basis of sufficient grounds related to the expired val tag,
there could be no breach of s. 9.

83 Assuming this was not a random "check stop", the meaning of s. 9 "arbitrariness" and the
standards or grounds that the Charter requires in the H.T.A. context, has been considered in a
number of cases. LeDain J., speaking for the Court in Hufsky, supra at p. 407, described the s. 9
violation in that case and explained why it was "arbitrary":

... the spot check procedure ... resulted, in my opinion, in an arbitrary detention
because there were no criteria for the selection of the drivers to be stopped and
subjected to the spot check procedure. The selection was in the absolute
discretion of the police officer. A discretion is arbitrary if there are no criteria,
express or implied, which govern its exercise. The appellant was therefore
 Page 20

arbitrarily detained, within the meaning of s. 9 of the Charter, as a result of the

random stop for the purposes of the spot check procedure ... [Emphasis added.]

84 In R. v. Iron (1987) 33 C.C.C. (3d) 157 at 177-8 (Sask. C.A.), another case dealing with motor
vehicle stops, Sherstobitoff J.A. (Bayda C.J.S. concurring) took a similar approach to the meaning
of s. 9 arbitrariness in this context:

For any detention to be constitutional under s. 9 it must be provided for by either

statute or common law, and the law providing for the power to detain must not
permit detention to be effected on the basis of unfettered police discretion or in
the absence of reasonable and probable grounds to believe that an offence has
been or is being committed.

... The essence of arbitrariness is capriciousness in, and the lack of a reasoned
foundation for, the interference with the right that is at the center of both ss. 8
and 9: the right to be left alone. [Emphasis added.]

85 Hufsky and Iron required some criteria for motor vehicle stops, so that police powers are not
exercised on the basis of unfettered discretion. In Brown et al v. Durham Regional Police Force
(1998), 131 C.C.C. (3d) 1 at 21-22 (Ont. C.A.), Doherty J.A. gave the judgment of the Court and
described the kinds of standards or criteria that must be met, in the Highway Traffic Act context, in
order to satisfy s. 9:

The holding in Ladouceur makes it unnecessary to distinguish between arbitrary

and non-arbitrary stops under s. 216(1) [of the H.T.A.] when a s. 9 claim is made.
Both are constitutional. That is not to say, however, that all stops made under s.
216(1) are arbitrary and rendered constitutional only by the saving provisions in
s. 1 of the Charter. A stop made under s. 216(1) will not result in an arbitrary
detention if the decision to stop is made pursuant to some standard or standards
which promote the legislative purpose underlying the statutory authorization of
the stop: R. v. Jones, [1986] 2 S.C.R. 284 at 303, 31 D.L.R. (4th) 569, 28 C.C.C.
(3d) 513. If the police exercise their power to stop and detain under s. 216(1)
based on criteria which are relevant to highway safety concerns, they do not act
arbitrarily. Those criteria are sometimes referred to as "articulable cause", e.g. R.
v. Wilson, [1990] 1 S.C.R. 1291, 56 C.C.C. (3d) 142, per Cory J. at p. 1297, per
Sopinka J. (dissent) at p. 1293.

...

The phrase "articulable cause" used in connection with stops made under s.
 Page 21

216(1) does not refer to factors which standing alone would justify interference
with the liberty of the subject, but rather refers to the reasons behind the exercise
of the statutory power to stop and detain. Articulable cause exists under s. 216(1)
if the police have a reason for stopping the vehicle which is legitimately
connected to highway safety concerns. In this context, articulable cause is used
only to distinguish between those lawful stops which are random and, therefore,
arbitrary and those lawful stops which are selective and not arbitrary.

When articulable cause is used in reference to a stop under s. 216(1), it may refer
to a stop flowing from a reasonable suspicion that a driver is violating some law
pertaining to highway regulation and safety. [Emphasis added.]

86 In the case at bar, if the police were honestly and legitimately stopping the car because of their
observations of the expired val tag, they had more than "articulable cause" or "reasonable
suspicion". They had reasonable and probable grounds, or even a prima facie case, and there could
not possibly be a s. 9 violation.

87 Mr. Greenspan, of course, accepts the above analysis of the s. 9 case law, in the motor vehicle
context. He does not suggest that this was a random "check stop" and he agrees that the expired val
tag could provide proper s. 9 grounds for the stop. His submission is that the police were not, in
fact, acting on the basis of the expired val tag. It was simply a "ruse" or a "pretext" for the real
purpose behind the stop, which was to conduct a general criminal investigation of suspected gang
members. In addition, he alleges "racial profiling" as an underlying factor that contributed to the
stop.

88 There can be no doubt that both branches of Mr. Greenspan's s. 9 argument are sound in law.
It would clearly violate s. 9 of the Charter to use Highway Traffic Act grounds as a mere "ruse" or
"pretext" for a broad and unfounded criminal investigation. In the passages set out above from
Brown et al v. Durham Regional Police Force, supra at 22, Doherty J.A. stated that the s. 9 inquiry
involves examining "the reasons behind the exercise of the statutory power to stop and detain", in
order to determine whether they are "legitimately connected to legitimate highway safety concerns".
In an earlier passage in the judgment, Doherty J.A. expressly acknowledged the first branch of Mr.
Greenspan's present argument (at 13 C.C.C.):

The appellants argued at trial and on appeal that highway safety concerns were a
ruse used by the police to justify the stopping of the appellants, their friends and
associates. Had this argument been accepted, s. 216(1) of the HTA could provide
no lawful authority for the stops and detentions: R. v. Dedman, [1985] 2 S.C.R. 2
at 31, 20 D.L.R. (4th) 321, 20 C.C.C. (3d) 97; R. v. Zammit (1993), 13 O.R. (3d)
76, 81 C.C.C. (3d) 112 (C.A.). [Emphasis added.]

89 The second branch of Mr. Greenspan's s. 9 argument, concerning racial profiling, is based
 Page 22

both on Brown et al v. Durham Regional Police Force, supra at 17-18, and on the subsequent case
of R. v. Brown (2003), 173 C.C.C. (3d) 23 at 29 (Ont. C.A.). In the latter case, Morden J.A. (as he
then was) gave the judgment of the Court and stated:

There is no dispute respecting the test to be applied under s. 9 of the Charter.

The question is whether the police officer who stopped the motorist had
articulable cause for the stop. Articulable cause exists where the grounds for
stopping the motorist are reasonable and can be clearly expressed: R. v. Wilson
(1990), 56 C.C.C. (3d) 142 (S.C.C.) at 144. If a police officer stops a person
based on his or her colour (or on any other discriminatory ground) the purpose is
improper (Brown v. Durham Regional Police Force (1998), 131 C.C.C. (3d) 1
(Ont. C.A.) at 17), and clearly would not be an articulable cause.

Accordingly, to succeed on the application before the trial judge, the respondent
had to prove that it was more probable than not that there was no articulable
cause for the stop, specifically, on the evidence in this case, that the real reason
for the stop was the fact that he was black. [Emphasis added.]

See also: Peart and Grant v. Peel Regional Police (2006), 217 O.A.C. 269 at paras. 89-96 (C.A.).

90 It can be seen from the above authorities that both branches of Mr. Greenspan's s. 9 argument
turn on an inquiry into the officers' purposes or reasons for stopping the accused's car on the night in
question. The evidence on this issue is set out in some detail above. In summary, P.C. Ho's evidence
was that he stopped the vehicle under the H.T.A., due to the expired val tag. However, once he saw
and recognized the two passengers, he had a "hunch" about criminal activity and he ran their names
through the police computer in order to check for any relevant information such as outstanding
warrants or bail orders. A fair reading of P.C. Stuart's evidence is that this dual purpose existed
prior to the stop and that it was a combination of the expired val tag, and the possibility of
investigating criminal gang activity, that led to the stop. It is P.C. Stuart's evidence that the
Applicant relied on most heavily on the Charter motion. Indeed, P.C. Stuart was not called before
me, in order to challenge his credibility. Instead, the transcript of his preliminary inquiry testimony
was repeatedly cited and relied on by the Applicant. Given that P.C. Stuart's evidence, on the s. 9
issue, is arguably somewhat more favourable to the accused than P.C. Ho's evidence, I will proceed
on the basis that P.C. Stuart's account at the preliminary inquiry more accurately reflects the
officers' true purposes. See: R. v. Barron, supra at 547.

91 There is now a strong line of binding authority holding that the kind of dual purposes for a
motor vehicle stop, described by P.C. Stuart, do not violate s. 9 of the Charter. Where the police
proceed to stop a vehicle for proper regulatory purposes under the Highway Traffic Act, the fact that
they also have criminal investigative interests which, standing alone, would not justify the stop,
does not give rise to an arbitrary detention. It is, of course, conceded by the Crown in the case at bar
 Page 23

that P.C. Ho's "hunch" about criminal activity would not justify the stop, if it stood alone. See: R. v.
Simpson (1993), 79 C.C.C. (3d) 482 at 501-2 (Ont. C.A.).

92 The earliest case in this line of authority about dual purposes is R. v. Annett (1984), 17 C.C.C.
(3d) 332 (Ont. C.A.). In that case, the officers had observed an open bottle of beer in a car. This is a
regulatory offence and it gave the officers grounds to search the car, without a warrant, under s. 48
of the Liquor Licence Act, R.S.O. 1980, c. 244. The two occupants of the car were suspected of drug
trafficking and the officer conducting the search, Cst. Twigg, "testified that when he opened the
trunk he was looking for liquor. However, narcotics were also in the back of his mind ... he was
searching for liquor although he realized that drugs might also be found." A large amount of
cocaine was found in the car and on the s. 8 Charter motion at trial, the defence argued that the
regulatory basis for the search "was merely a pretext or a ploy". The trial judge found as a fact that
"it was a multiple purpose search", dismissed the s. 8 motion and convicted the accused. On appeal,
Martin J.A. gave the judgment of the Court and held:

In our view, the finding of the trial judge that the search was made pursuant to
the provisions of s. 48 and was reasonable is a finding which he was entitled to
make and it is supported by the evidence. The lawful search was not converted
into an unlawful or an unreasonable search because the officers, in addition, had
the expectation that the search might also uncover drugs. The evidence obtained
pursuant to the search, in our view, was, therefore, properly admitted. [Emphasis
added.]

93 Although Annett was a s. 8 case, it was subsequently applied in the s. 9 context in Brown v.
Durham Regional Police Force, supra. In that case, the police stopped numerous motor cycle club
members on their way to a large weekend party at a lakefront property owned by the club. The club
members sued the police, alleging violations of their s. 9 Charter rights. The trial judge found as a
fact that "highway safety concerns", under the Highway Traffic Act, were only "one of the purposes
motivating the stops" and that he "could not rank the highway safety purpose for the stops as more
or less significant than any of the other police purposes for the stops". One of the other purposes
was somewhat akin to the "intelligence gathering" purpose, concerning suspected criminal gang
members, that P.C. Stuart acknowledged in the case at bar. In Brown v. Durham, supra at para 7,
the police had videotaped the motor vehicle stops in order to gather intelligence about suspected
gang associates. As Doherty J.A. explained:

Those stopped were videotaped by the police. The videotapes were used
principally to assist the police in identifying persons who were associating with
members of the various gangs.

94 Accordingly, a central issue in Brown v. Durham, supra at paras. 29-33, was whether a dual
purpose stop, that involved both regulatory purposes under the Highway Traffic Act and criminal
intelligence gathering, violated s. 9 of the Charter. Doherty J.A., speaking for the Court, answered
 Page 24

this question in the negative:

The trial judge's finding that the stops were multi-purposed does, however, raise
a further issue. Can purposes other than those related to highway safety matters
take the stops and subsequent detentions outside of the ambit of s. 216(1) of the
HTA and render those stops unlawful?

The trial judge rejected the submission that other purposes in addition to highway
traffic concerns rendered the stops unlawful. He said, at p. 335:

I think such a conclusion would be unreasonable because it would remove

the authority of the police to stop motorists where they had an unrelated
purpose which might not lawfully justify a stop but also had highway
traffic concerns which would alone justify a stop. It would mean that
where a police officer has other reasons to want to stop a motorist he is
thereby deprived of the right under the Highway Traffic Act to use his
established right to stop a motorist in order to investigate highway traffic
matters.

It seems to me that where the police have highway traffic concerns and
other unrelated concerns, then the limit on their conduct should be imposed
by limiting their conduct after the stop.

I agree with this conclusion as long as the other purposes motivating the stop are
not themselves improper. For example, the police are entitled on a s. 216(1) stop
to require drivers to produce their licences. That requirement is consistent with
the highway safety concerns which underlie the power granted by the section. In
addition to ensuring that the driver is properly licensed, the police may wish to
identify the driver for other purposes. It may be, as in this case, that the police are
interested in knowing the identify of all those who are connected with what they
believe to be organized criminal activity. The gathering of police intelligence is
well within the ongoing police duty to investigate criminal activity. As long as
the additional police purpose is not improper and does not entail an infringement
on the liberty or security of the detained person beyond that contemplated by the
purpose animating s. 216(1) of the HTA, I see no reason for declaring that a
legitimate police interest beyond highway safety concerns should taint the
lawfulness of the stop and detention. As the trial judge pointed out, known
criminals should not be more immune from s. 216(1) stops than law abiding
 Page 25

citizens who are not known to the police.

...

The reasoning in Storrey, [1990] 1 S.C.R. 241, is equally applicable where the
police intend, within the confines of the stop and detention authorized by s.
216(1) of the HTA, to avail themselves of the opportunity to further some other
legitimate police interest: see also R. v. Annett (1984), 17 C.C.C. (3d) 332 (Ont.
C.A.); leave to appeal to S.C.C. refused [1985] S.C.C.A. No. 222, 17 C.C.C. (3d)
332n. [Emphasis added.]

95 The above line of reasoning, from Annett and Brown v. Durham, was recently adopted by the
Supreme Court of Canada in R. v. Nolet (2010), 256 C.C.C. (3d) 1 (S.C.C.). In that case, the initial
stop of the transport truck was a random "check stop", pursuant to the Hufsky line of authority.
However, the police quickly discovered an expired fuel sticker and other truck licensing
irregularities. As a result, the stop developed into one that was based on solid Highway Traffic Act
grounds, and thus became somewhat like the case at bar where proper H.T.A. grounds existed from
the outset. As the inspection of the truck in Nolet progressed, the police developed suspicions of
criminal activity. They eventually discovered large amounts of cash and marijuana hidden in the
truck. The trial judge, [2006] S.J. No. 524, found as a fact that "the predominant purpose" for the
warrantless search of the truck was not truck licensing and regulatory concerns, which would have
provided a lawful basis for the search, but suspicion of criminal activity. Evidence of the seizures
was excluded, pursuant to the Charter, and the accused were acquitted. The trial judge concluded
that "the officer was more interested in looking for evidence of criminal activity than for
contraventions of commercial trucking regulations" and that there were insufficient grounds to
justify a criminal law search.

96 On appeal, the Supreme Court of Canada unanimously rejected the utility of inquiring into the
officer's "predominant purpose", in cases of "dual purpose" stops and searches. Instead, the Court
adopted the Ontario Court of Appeal's approach in Annett and Brown v. Durham, holding that the
real issue is whether "there is a continuing regulatory purpose on which to ground the exercise of
the regulatory power" and whether the particular exercise of that power violated the Charter. Binnie
J. gave the judgment of the full Court and held (supra at paras. 33, 37 and 43):

The officer made no secret at trial of his interest in finding contraband. It was
part of his job to take an interest in contraband. In the nature of things,
contraband is a bigger issue for police than trucking documents.

...
 Page 26

It is to be expected that RCMP officers patrolling the Trans Canada Highway are
interested in any number of potential infractions including criminal offences as
well as provincial matters. It could hardly be otherwise. However, as pointed out
by Martin J.A. [in Annett], "the lawful search was not converted into an unlawful
or an unreasonable search because the officers, in addition, had the expectation
that the search might also uncover drugs."

...

I do not agree that the officer's concurrent interest in contraband (even if it was
"predominant") rendered the H.T.A. search unlawful or unreasonable within the
scope of s. 8 of the Charter.

The Court upheld the Court of Appeal's reversal of the acquittal and ordered a new trial.

97 Even more recently, in R. v. Sandhu (2011), [2011] O.J. No. 619 (C.A.), the Court of Appeal
dealt with yet another dual purpose stop of a motor vehicle. The trial judge in Sandhu, [2009] O.J.
No. 4106, like the trial judge in Nolet, found that even if the officer initially "had a regulatory
enforcement intention at the time that he originally stopped behind the white transport truck, it is
clear on his own evidence that that intention was very soon superseded by the criminal law concern
of the possibility of guns being present at the site". The trial judge found a serious breach of s. 8 of
the Charter, excluded the large seizure of cocaine found in the truck and acquitted the accused. The
Court of Appeal reversed, holding that "the existence of a concurrent criminal law search purpose
does not, in itself, preclude the existence of a valid regulatory search purpose - nor does it, in itself,
make a search that is otherwise authorized by law unreasonable under the Charter". Simmons J.A.,
speaking for the Court, stated (supra at paras. 61 and 62):

... as Nolet demonstrates, the presence of a criminal law purpose for conducting a
search does not, of itself, preclude the existence of a valid regulatory purpose.

Accordingly, the issue for the trial judge was not simply whether Officer Leeman
had a criminal law purpose - even a predominant criminal law purpose - as
events progressed. Rather, the issues were whether Officer Leeman actually
formed a legitimate intention initially to search the tractor-trailer for regulatory
purposes (whether he possessed a concurrent criminal law purpose or not) and if
he did, whether that legitimate intention was still subsisting when Officer
Leeman opened the trailer doors.

98 Faced with this now formidable line of authority, Mr. Greenspan conceded that the police
were entitled to stop the car for "dual purposes", both regulatory and criminal. Indeed, he conceded
 Page 27

in light of Nolet and Sandhu that the criminal investigative purpose could even be "predominant".
Mr. Greenspan's position, consistent with his "ruse" or "pretext" argument, is that the sole purpose
for the stop was to conduct a criminal investigation of suspected gang members and that there was
never any intention to investigate the expired val tag.

99 The difficulty with this position is that it requires me to make findings of credibility against
both Officers Ho and Stuart. They testified that the expired val tag, at a minimum, was one of the
concurrent reasons for the stop. P.C. Ho was called to testify before me but P.C. Stuart was not. I
have only the transcript of his evidence at the preliminary inquiry and that is not a proper basis for
making findings of credibility. See: R. v. Coburn, supra at 466 C.C.C.

100 A more fundamental difficulty is that the inference that Mr. Greenspan asks me to draw, that
this was solely a criminal investigation and that the expired val tag was simply a "ruse" or "pretext",
is based on a number of circumstances that I do not find sufficiently persuasive. In particular, the
inference is said to be based on the following: P.C. Ho knew the registered owner of the car, prior to
the stop, as a result of the computer check of the license plate; he knew the owner was black; he
suspected the owner's brother was a criminal gang member; he called for "back up"; the primary
focus of TAVIS is on violent crime and not on the H.T.A.; prior to the stop, P.C. Ho knew that the
owner of the vehicle had purchased a new val tag and had simply failed to affix it, thus making the
H.T.A. offence quite trivial; a large number of officers arrived at the scene as a result of the call for
"back up"; both P.C. Ho and P.C. Stuart investigated the passengers and not just the driver; and
finally, no H.T.A. ticket was ever issued for the expired val tag.

101 I am satisfied that all of these circumstances, when assessed together, are consistent with the
police having concurrent purposes or interests in investigating the occupants of the car, both for
possible criminal gang activity and for the expired val tag. The officers clearly understood that their
only legal basis for stopping the car was the expired val tag. Furthermore, P.C. Ho did take the
driver's license, insurance and vehicle ownership documentation, went back to the police cruiser,
and verified this documentation through a police computer check. The fact that the officers called
for "back up" simply reflects the admitted officer safety concerns that existed, especially given the
suspicion of criminal gang associates. The fact that numerous police units showed up may simply
reflect the reality that there were numerous units deployed nearby in the entertainment district.
Finally, the fact that no H.T.A. charge was ever laid is of no moment. P.C. Ho agreed that one of his
enforcement options was always to simply issue the driver a warning. More importantly, the
investigation quickly led to serious criminal charges and it would have made no sense to issue a
minor H.T.A. ticket in these circumstances.

102 I am simply not persuaded, on a balance of probabilities and on this record, that the expired
val tag was a mere ruse or pretext. Once the police had direct evidence of an H.T.A. offence, as they
did, as well as information from P.C. Ho that the owner of the vehicle possibly had criminal gang
associates, the entire course of events is consistent with the "dual purposes" described by P.C. Stuart
in his evidence. Far from undermining his credibility, the circumstantial evidence is consistent with
 Page 28

his frank acknowledgement that the officers were acting on H.T.A. grounds but that they also had an
"extra interest" in possible criminal gang activities. I cannot see how the case is distinguishable
from Annett, Brown v. Durham, Nolet and Sandhu.

103 The second branch of Mr. Greenspan's s. 9 argument, concerning racial profiling, is
dependant on the first branch and would simply add weight to it. Once it is determined that the
H.T.A. grounds for the stop were not a mere ruse, and that the police genuinely acted, at least in
part, on the basis of the expired val tag, it becomes very difficult to establish racial profiling. As
Morden J.A. put it in Brown, supra, the burden on the accused is to establish on a balance of
probabilities "that there was no articulable cause for the stop" or that the H.T.A. grounds were "a
pretext for a racially motivated stop", as Doherty J.A. put it in Peart, supra. On the facts of the
present case, the "extra interest" that motivated the police to stop the Cadillac was the possible
association of the car to criminal gang members. As in Brown v. Durham, the racial make-up of the
possible criminal gang associates does not appear to have been a factor. Whether they were black or
white, the possibility of gang associations was a perfectly good reason to show some "extra interest"
in the car.

104 For all these reasons, I am satisfied that there was no violation of s. 9 of the Charter when
the police stopped the accused Raynford Humphrey's car on the night in question.

(iii) Sections 10(a) and 10(b) of the Charter: the alleged failure to advise the accused of his rights at
the roadside

105 There is no question that Raynford Humphrey, and his vehicle, were "detained" within the
meaning of s. 10 of the Charter when P.C. Ho signaled for the driver to pull over, after the car
turned south on Peter Street. A long line of authority has held that when the police order a motor
vehicle to stop, exercising Highway Traffic Act powers, a s. 10 "detention" occurs. In R. v. Elias; R.
v. Orbanski (2005), 196 C.C.C. (3d) 481 at 496 (S.C.C.), Charron J. gave the unanimous judgment
of the full Court on this point:

The Crown conceded that Orbanski and Elias were each detained within the
meaning of s. 10(b) of the Charter when pulled over by the police. In my view,
this concession was well founded. In each case, the degree of compulsion or
coercion necessary for there to be detention was present as defined in R. v.
Therens, [1985] 1 S.C.R. 613 at pp. 641-42, 18 C.C.C. (3d) 481, 18 D.L.R. (4th)
655, and reiterated in R. v. Thomsen, [1988] 1 S.C.R. 640, 40 C.C.C. (3d) 411. It
also accords with the meaning of "detained" under s. 9 as defined in R. v. Hufsky,
[1988] 1 S.C.R. 621, 40 C.C.C. (3d) 398 and R. v. Ladouceur, [1990] 1 S.C.R.
1257, 56 C.C.C. (3d) 22. It may be more readily apparent how being stopped and
pulled over by the police amounts to a detention for s. 10 purposes when s. 10(a)
of the Charter is considered. I suspect every motorist would fully expect "to be
informed promptly of the reasons" why he or she is being stopped.
 Page 29

106 In relation to s. 10(a), P.C. Ho conceded that it was "possible" he did not inform Raynford
Humphrey of the H.T.A. reasons for the stop, as he had no specific recollection on the point and no
note of what he said to Humphrey at the roadside. However, he also testified that it was highly
probable that he did tell Humphrey the reasons for the stop as he would routinely do this when
pulling over motor vehicles.

107 There was no defence evidence called on this point, on the Charter motion. As the Applicant
relies solely on the police officer's evidence, the s. 10(a) Charter violation has simply not been
established on a balance of probabilities.

108 In relation to s. 10(b), P.C. Ho conceded that he did not inform Raynford Humphrey of his
right to counsel, at the time of the roadside stop. It was only later, once he was arrested pursuant to
the Criminal Code for possession of the handguns, that the accused was advised of his s. 10(b)
rights. It is, therefore, not disputed that there was no compliance with s. 10(b) at the time of the
roadside stop. The real issue in this case is whether s. 1 of the Charter limits the accused's s. 10(b)
rights in the context of this roadside stop.

109 A long line of authority has held that the operational requirements of statutory police powers
to stop motor vehicles, pursuant to provincial Highway Traffic Acts, are incompatible with s. 10(b)
of the Charter. It must be remembered that s. 10(b) requires not only that the accused be informed
of his right to counsel but that he be given an opportunity to exercise the right. Brief roadside
detentions of drivers, to check their licenses and their sobriety, would not be feasible if prior access
to counsel had to be facilitated. Accordingly, s. 10(b) rights are subject to s. 1 reasonable limits in
this context.

110 Most of the cases on this point involve suspected drunk drivers, and they deal with roadside
sobriety checks, unlike the case at bar which involves only a license check. However, in R. v.
Harris (2007), 225 C.C.C. (3d) 193 at paras. 45-49 (Ont. C.A.), the same s. 1 reasonable limits on s.
10(b) rights were held to apply generally to any H.T.A. stop "for road safety purposes". In that case,
the motor vehicle was stopped due to failing to signal a left turn. Doherty J.A., speaking for a
unanimous Court on this point, held:

... it was accepted at trial that the police are not required to give a detained person
his s. 10(b) rights during a brief lawful Highway Traffic Act roadside stop. That
concession was not qualified on appeal. I think the concession is consistent with
those cases that hold that the exercise of the rights guaranteed by s. 10(b) is
incompatible with the brief roadside detention contemplated by a stop made for
road safety purposes: see R. v. Orbanski (2005), 196 C.C.C. (3d) 481 (S.C.C.); R.
v. Smith (1996), 105 C.C.C. (3d) 58 (Ont. C.A.); R. v. Saunders (1988), 41
C.C.C. (3d) 532 (Ont. C.A.).

111 Similarly, in Orbanski, supra at para. 41, although it was a case of suspected drinking and
driving, Charron J. applied the s. 1 justification for limits on s. 10(b) rights to license and insurance
 Page 30

checks. In this regard, she relied on Ladouceur, supra, which was a case involving a roadside
license check, and held that it was the "same kind" of power as a roadside sobriety check:

It is the same kind of general statutory power that is in question on these appeals.
As the Court stated in Ladouceur, police officers can stop persons under such
statutory power only for legal reasons - in the circumstances of that case (as
here), for reasons related to driving a car such as checking the driver's licence
and insurance, the sobriety of the driver and the mechanical fitness of the vehicle.

112 There was considerable argument in the case at bar as to whether the Supreme Court of
Canada's most recent decisions on the meaning of "detention", and s. 10 rights, have overtaken and
qualified Orbanski and Harris. In R. v. Grant (2009), 245 C.C.C. (3d) 1 (S.C.C.) and R. v. Suberu
(2009), 245 C.C.C. (3d) 112 (S.C.C.), the Court developed a purposive approach to the meaning of
"detention", under s. 9 and s. 10 of the Charter. More importantly, the Court held that once a
"detention" occurs, the police must inform the detainee of his/her s. 10(b) rights "immediately". In
this regard, the Court rejected previous authorities holding that the words "without delay" in s. 10(b)
allow for "a brief interlude ... during which the officer makes a quick assessment of the situation".

113 I am satisfied that nothing in Grant or Suberu changes the well-established principle that s. 1
of the Charter limits the s. 10(b) right to counsel during roadside H.T.A. stops. There is no
suggestion in these recent decisions that Orbanski has been qualified or altered. Indeed, in R. v.
Suberu, supra at 128-9, the majority of the Court expressly referred to Orbanski and to s. 1 limits on
s. 10(b) rights:

In our view, the words "without delay" mean "immediately" for the purposes of
s. 10(b). Subject to concerns for officer or public safety, and such limitations as
prescribed by law and justified under s. 1 of the Charter, the police have a duty
to inform a detainee of his or her right to retain and instruct counsel, and a duty
to facilitate that right immediately upon detention.

...

There is no question that the right to counsel, as any other right guaranteed by the
Charter in case of detention, is subject to reasonable limitations as prescribed by
law under s. 1. For example, in R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3,
196 C.C.C. (3d) 481, 253 D.L.R. (4th) 385, the fact that there was a detention
was not in issue. Indeed, the police directive to pull over coupled with the
restrictive demand that the driver perform sobriety tests provided a clear basis to
ground a detention. Charter rights were therefore triggered, though ultimately the
breach was saved under s. 1 of the Charter.
 Page 31

114 In the result, the accused Humphrey was detained at the roadside stop for s. 10 purposes, and
he was not informed "without delay" of his s. 10(b) Charter right to counsel. However, this s. 10(b)
violation is saved by s. 1 of the Charter for the reasons explained in Orbanski and Harris.

(iv) Sections 8 and 9 violations of the passengers' rights: the questioning, arrest and search incident
to arrest of Jason Humphrey

115 Once the Cadillac was stopped, and P.C. Ho began checking Raynford Humphrey's licensing
documentation, it is alleged that three further Charter violations occurred: first, it is submitted that
the questioning of the passengers violated s. 9; then, asking for the passenger's identification is said
to have violated s. 8 of the Charter; and finally, it is submitted that searching the back seat area
without a warrant violated s. 8 of the Charter. The Crown took the preliminary position that the
accused Raynford Humphrey had no standing to raise alleged s. 8 and s. 9 Charter violations that
arise out of the passenger's questioning and arrest and the subsequent search of the back seat area.
These alleged violations, the Crown submits, relate to Jason Humphrey's Charter rights. See: R. v.
Edwards (1996), 104 C.C.C. (3d) 136 (S.C.C.); R. v. Belnavis (1996), 107 C.C.C. (3d) 195 (Ont.
C.A.), aff'd (1997) 118 C.C.C. (3d) 405 (S.C.C.).

116 I do not need to address the issue of standing, or whether it is even properly characterized as
an issue of standing. Assuming that the accused Raynford Humphrey has standing in relation to a
search of his own car, and in relation to evidence tendered at his trial, I am satisfied that there were
no violations of the Charter rights of the passengers or, more importantly, of the accused's rights.

117 The first issue is whether s. 9 of the Charter was violated when the passengers were
questioned in the car without any basis to believe that they had committed an offence. It is conceded
on the evidence that the police had no Highway Traffic Act interest in the passengers and that the
officers' criminal investigative interest in the passengers never rose to more than a "hunch" or
suspicion.

118 It is clear that s. 9 is only engaged by a "detention" and I am satisfied that the passengers
were never detained. There is nothing wrong with police officers asking questions, indeed, it is their
job to ask questions. It is the power to "detain" that is regulated by s. 9 of the Charter and the fact
of "detention" then triggers additional rights under s. 10 of the Charter. Merely questioning the
passengers, short of "detention", does not engage any Charter rights.

119 The leading authority on the "detention" of passengers, in the context of Highway Traffic Act
stops, is R. v. Harris, supra. Like the case at bar, Harris was a case where the police had valid
H.T.A. grounds to stop the vehicle as they had observed the driver make a left hand turn without
signaling. It was not a random "check stop" that violated s. 9 and that was, therefore, subject to the
strict s. 1 limits on police questioning and police procedures that are spelled out in Ladouceur,
supra and Mellenthin, supra. Doherty J.A. gave the unanimous judgment of the Court on the s. 9
point in Harris, supra at paras 7-8 and 17-22. He held that the question of whether a passenger is
"detained" or not, in an H.T.A. vehicle stop, "demands a fact-specific inquiry". On its particular
 Page 32

facts, the police officer in Harris who pulled over the vehicle became concerned for his safety, due
to certain movements he observed inside the car. The officer "ordered everyone in the car to keep
their hands where he could see them". The passengers complied and were then asked for
identification. One passenger, Harris, was not wearing a seatbelt and the officer was considering
charging him with a seatbelt offence. He provided his identification and, after a CPIC check, he was
found to be in breach of a curfew. He was arrested, searched and found to be in possession of
cocaine.

120 On these facts, the trial judge found a psychological detention, relying most heavily on the
police direction to the passengers to keep their hands where the officer could see them. Doherty J.A.
agreed with the trial judge and held (supra at paras. 20-22):

The trial judge, however, did not proceed on the basis that Harris was detained
from the moment the vehicle was pulled over. Instead, she focused on Constable
Lipkus's direction as he approached the vehicle to all of the occupants that they
keep their hands where he could see them. She characterized this as a demand
and concluded, at para. 36:

In my view, however, it would have cast an aura of psychological

oppression over the occupants. It appears that the officer gave no
explanation for the demand, which would add to the oppressive
atmosphere. It was inevitable that Mr. Harris would have felt compelled
not only to remain at the scene but also to answer any questions that
followed. [Emphasis of Doherty J.A.]

As the determination of whether a person is detained demands a

fact-specific inquiry, it is appropriate that this court consider the question
of detention on the same factual basis as did the trial judge. I, therefore,
decline to decide whether Harris was detained when the vehicle was
stopped.

I agree with the trial judge's conclusion that Harris would reasonably
understand that he was not free to leave the vehicle after Constable Lipkus
ordered him to keep his hands in open view. Harris was under
psychological constraint at least from the point when Constable Lipkus
made that demand. He remained in detention for the rest of his encounter
with the officer. It follows that Harris was detained when Constable Lipkus
asked him to identify himself.

121 Doherty J.A.'s approach in Harris, that is, not treating every H.T.A. stop of a vehicle as
 Page 33

necessarily involving a "detention" of the passengers, makes intuitive sense. One can imagine many
fact situations, involving H.T.A. stops, where the passengers would clearly not be detained. For
example, consider a driver who is stopped in downtown Toronto for an H.T.A. offence, such as
speeding, and the driver's spouse and children are also in the car and they are late for work or school
or an appointment. A police officer stopping the car, who had no officer safety concerns, would
surely not prevent the spouse and children from exiting the car and taking a taxi, assuming it was
going to take the officer some time to complete the H.T.A. investigation and write up the ticket.
There would be no "detention" of the passengers on these facts. Also see: R. v. Bradley (2008), 233
C.C.C. (3d) 129 (N.S.C.A.).

122 The "fact specific" approach taken in Harris and Bradley is also consistent with the
subsequent Supreme Court of Canada cases, Grant, supra and Suberu, supra, which stress the need
to take a purposive approach to the meaning of "detention". On the framework for analysis
developed in those cases, merely asking the passenger Jason Humphrey for his identification could
not amount to a s. 9 "detention".

123 Prior to the recent decisions of the Supreme Court of Canada in Grant and Suberu, a long
line of Ontario Court of Appeal authority had held that simply asking a suspect for identification
does not amount to a detention. See: R. v. Grafe (1987), 36 C.C.C. (3d) 267 (Ont. C.A.); R. v. Hall
(1995), 22 O.R. (3d) 289 at 295 (C.A.); R. v. Grant (2006), 209 C.C.C. (3d) 250 at paras. 13 and 29
(Ont. C.A.); R. v. Harris, supra at para. 42. As Doherty J.A. put it in the latter case:

Those cases accept that the police may in the course of their duties properly
request identification from individuals in circumstances where the police have no
reason to suspect that individual of any misconduct. Grafe and the other cases ...
turn largely on the finding that the person who was asked for identification was
not under police detention ...

124 The root case in this line of authority is R. v. Grafe, supra at pp. 271 and 274, where Krever
J.A. (Martin and Tarnopolsky JJA. concurring) stated, in reference to a police request for
identification:

The law has long recognized that although there is no legal duty there is a moral
or social duty on the part of every citizen to answer questions put to him or her
by the police and, in that way to assist the police: see, for example, Rice v.
Connolly, [1966] 2 All E.R. 649 at p. 652, per Lord Parker C.J. Implicit in that
moral or social duty is the right of a police officer to ask questions even, in my
opinion, when he or she has no belief that an offence has been committed.

...
 Page 34

The Charter does not seek to insulate all members of society from all contact
with constituted authority, no matter how trivial the contact may be.

125 In my opinion, Grant and Suberu have not changed this approach to s. 9 "detention". If
anything, the police now have even more flexibility when asking preliminary non-coercive
questions, such as requests for identification, without causing a "detention" and thereby triggering s.
10 rights. In Grant, supra at paras. 6-7 and 37-52, McLachlin C.J.C. and Charron J., speaking for
the majority, adopted the above passage from Grafe, and held that the preliminary questioning of
the accused Grant, in which he was asked for his identification, did not amount to a "detention" for
s. 9 and s. 10 purposes:

Section 9 of the Charter does not require that police abstain from interacting with
members of the public until they have specific grounds to connect the individual
to the commission of a crime. Nor does s. 10 require that the police advise
everyone at the outset of any encounter that they have no obligation to speak to
them and are entitled to legal counsel.

...

The encounter began with Cst. Gomes approaching Mr. Grant (stepping in his
path) and making general inquiries. Such preliminary questioning is a legitimate
exercise of police powers. At this stage, a reasonable person would not have
concluded he or she was being deprived of the right to choose how to act, and for
that reason there was no detention.

It was only later in the encounter, when the police took further more coercive steps, that the Court
found a "detention" on the facts of Grant, supra.

126 In Suberu, supra at paras. 23-35, McLachlin C.J.C. and Charron J. maintained the distinction
between "preliminary investigative questioning falling short of detention" and "focused
interrogation amounting to detention". In drawing this line, the majority asked whether there was a
"significant deprivation of liberty", as opposed to mere "delay" caused by "exploratory"
questioning, for example, "for purposes of identification":

However, this latter understanding of detention does not mean that every
interaction with the police will amount to a detention for the purposes of the
Charter, even when a person is under investigation for criminal activity, is asked
questions, or is physically delayed by contact with the police. This Court's
conclusion in Mann that there was an "investigative detention" does not mean
that a detention is necessarily grounded the moment the police engage an
individual for investigative purposes. Indeed, Iacobucci J., writing for the
 Page 35

majority, explained as follows:

"Detention" has been held to cover, in Canada, a broad range of encounters

between police officers and members of the public. Even so, the police
cannot be said to "detain", within the meaning of ss. 9 and 10 of the
Charter, every suspect they stop for purposes of identification, or even
interview. The person who is stopped will in all cases be "detained" in the
sense of "delayed", or "kept waiting". But the constitutional rights
recognized by ss. 9 and 10 of the Charter are not engaged by delays that
involve no significant physical or psychological restraint. In this case, the
trial judge concluded that the appellant was detained by the police when
they searched him. We have not been urged to revisit that conclusion and,
in the circumstances, I would decline to do so. [Emphasis of McLachlin
C.J.C. and Charron J.]

As explained in Grant, the meaning of "detention" can only be determined by

adopting a purposive approach that neither over-shoots nor impoverishes the
protection intended by the Charter right in question. It necessitates striking a
balance between society's interest in effective policing and the detainee's interest
in robust Charter rights. To simply assume that a detention occurs every time a
person is delayed from going on his or her way because of the police accosting
him or her during the course of an investigation, without considering whether or
not the interaction involved a significant deprivation of liberty would overshoot
the purpose of the Charter.

127 The extent and the nature of the questioning of the accused in Suberu, while seated in his car
and wanting to leave, was far more intrusive, focused and incriminating than the questioning of the
passenger Jason Humphrey in the case at bar. And yet the majority found no "detention" on the facts
of Suberu. In the present case, the evidence is unchallenged that P.C. Ho engaged in nothing more
than innocuous banter with Jason Humphrey and that P.C. Stuart did no more than politely ask him
for his identification. Jason Humphrey was very cooperative and verbally identified himself, albeit
by giving a false name. The case is identical on its facts to Grafe, supra, except that Humphrey
happened to be seated in the back seat of a car whereas Grafe was standing on the sidewalk. In
Bradley, supra at paras 3, 15 and 16, the accused was seated in the back seat of a car when asked
for his identification, and he too gave a false name. The Nova Scotia Court of Appeal, applying the
"fact-specific" approach in Harris, found no "detention". In two recent decisions of Marrocco J. and
Spies J., this Court has found no "detention" of passengers who were merely asked for their
identification during H.T.A. stops. See: R. v. Johnson [2010] O.J. No. 975 (S.C.J.); R. v. Yousofi and
Safi, 2011 ONSC 2298.
 Page 36

128 For all these reasons, I am satisfied that Jason Humphrey was not "detained" for s. 9 or s. 10
purposes, when the police asked for his identification. There is no doubt that the detention of the
accused Raynford Humphrey was lengthened somewhat, when P.C. Ho took the time to run Jason
Humphrey's name through the police computer, to determine whether he was in breach of any court
orders. The evidence is that it took two to three minutes to run all the computer checks on all three
suspects. The entire H.T.A. stop, prior to Jason Humphrey's arrest, lasted nine minutes. Given that
Raynford Humphrey was already lawfully detained, for purposes of the H.T.A. investigation, the
brief additional "delay" caused by the computer check of his brother cannot amount to the
"significant deprivation of liberty", required by Suberu, for this small part of the investigation to
independently engage s. 9.

129 As for the alleged breaches of s. 8 of the Charter, the Court in Harris, supra divided over
whether asking a passenger in a car for identification, in order to run a CPIC computer check,
amounts to a search and seizure. Doherty J.A., for the majority, held that it did. In a judgment
concurring in the result, O'Connor A.C.J.O. held that the request for identification did not engage s.
8 of the Charter. Although finding a s. 8 violation, Doherty J.A. repeatedly stressed that it was
contingent on the fact that the passenger Harris had been "detained", on the particular facts of that
case (Harris, supra at paras. 33-44):

Answers to police questions may or may not give rise to a s. 8 claim. As with
other aspects of the s. 8 inquiry, a fact-specific examination of the circumstances
is necessary. Where the subject of the questioning is under police detention and
reasonably believes that he or she is compelled to provide the information sought
in the questions, I do not think it distorts the concept of a seizure to describe the
receipt of the information by the police as a non-consensual taking of that
information from the detained person.

...

A person under police detention who is being asked to incriminate himself has
more than a reasonable expectation of privacy with respect to the answers to any
questions that are put to him by the police. That person has a right to silence
unless he or she makes an informed decision to waive that right and provide the
requested information to the police: R. v. Hebert (1990), 57 C.C.C. (3d) 1
(S.C.C.). In the circumstances, Harris's identification in response to the officer's
question constitutes a seizure and attracts s. 8 protection. [Emphasis added.]

130 In the case at bar, Jason Humphrey was not detained when he was asked for identification. In
these circumstances, Doherty J.A. held in Harris, supra at para. 42, that the Grafe line of authority
applies and the police may "properly request identification", without engaging either s. 8 or s. 9 of
 Page 37

the Charter. Accordingly, there was no s. 8 violation when P.C. Stuart simply requested the
passenger's identification, without any grounds to suspect him of any offence. P.C. Stuart
understood that he had no power to require identification, absent some express or implied statutory
duty to identify, and that his success in obtaining identification depended on the passenger's
cooperation. Of course, the absence of any legal duty to identify himself, did not allow Jason
Humphrey to give a false name. See: R. v. Moore (1978), 43 C.C.C. (2d) 83 (S.C.C.); R. v. Spezzano
(1977), 34 C.C.C. (2d) 87 at 95-6 (Ont. C.A.); Rice v. Connolly, [1966] 2 All E.R. 649 at 652
(Q.B.D.); Glanville Williams, "Demanding Name and Address" (1950) 66 L.Q.R. 465.

131 The other aspect of the alleged s. 8 violation is the search of the back seat area. The police
officers conceded that Jason Humphrey was securely in police custody, at the time of this search,
and so he was no longer a threat to officer safety. In addition, the officers agreed that they were not
searching for evidence related to the breach of recognizance offence on which they had just arrested
Jason Humphrey. However, the lawful purposes for a common law search incident to arrest include
securing the scene of the arrest, for public safety and officer safety reasons. This was the reason for
searching the back seat area as the officers suspected that Jason Humphrey may have left a gun
behind, when he was removed from the car and arrested. The "caution" on CPIC warned the officers
that he may be "armed and dangerous". The car was stopped in a very busy public place, with large
numbers of pedestrians nearby on the sidewalks. The car was still the subject of an ongoing H.T.A.
investigation and numerous officers were standing by. In these circumstances, a search for weapons,
in the back seat area where Jason Humphrey had been seated, was both reasonable and lawful.

132 The leading authority on the common law power to search incident to arrest, without a
warrant, is R. v. Caslake (1998), 121 C.C.C. (3d) 97 at paras. 13-25 (S.C.C.). Lamer C.J.C. gave the
majority judgment and held that the power was not limited or controlled by any particular "place to
be searched" nor by any particular "temporal limits". Furthermore, the Court held that a search of an
automobile, long after the accused had been removed from it and placed in custody, could still be
lawful at common law. The only limits on the power "arise out of a need for the law enforcement
authorities to gain control of things or information which outweighs the individual's interest in
privacy".

133 In order to give greater precision to this potentially broad definition of the common law
power, Lamer C.J.C. referred with approval to the Court's earlier decision in Cloutier v. Langlois
(1990), 53 C.C.C. (3d) 257 at 278 (S.C.C.) where L'Heureux-Dubé J., on behalf of a unanimous
Court, exhaustively reviewed the authorities and concluded as follows:

The search must be for a valid objective in pursuit of the ends of criminal justice,
such as the discovery of an object that may be a threat to the safety of the police,
the accused or the public, or that may facilitate escape or act as evidence against
the accused. The purpose of the search must not be unrelated to the objectives of
the proper administration of justice, which would be the case, for example, if the
purpose of the search was to intimidate, ridicule or pressure the accused in order
 Page 38

to obtain admissions. [Emphasis added.]

134 In Caslake, supra at paras 19-20, Lamer C.J.C. elaborated on the above passage from
Cloutier in the following terms:

As L'Heureux-Dubé J. stated in Cloutier, the three main purposes of search

incident to arrest are ensuring the safety of the police and public, the protection
of evidence from destruction at the hands of the arrestee or others, and the
discovery of evidence which can be used at the arrestee's trial. The restriction
that the search must be "truly incidental" to the arrest means that the police must
be attempting to achieve some valid purpose connected to the arrest. Whether
such an objective exists will depend on what the police were looking for and
why. There are both subjective and objective aspects to this issue. In my view,
the police must have one of the purposes for a valid search incident to arrest in
mind when the search is conducted. Further, the officer's belief that this purpose
will be served by the search must be a reasonable one.

To be clear, this is not a standard of reasonable and probable grounds, the

normal threshold that must be surpassed before a search can be conducted. Here,
the only requirement is that there be some reasonable basis for doing what the
police officer did ...

The police have considerable leeway in the circumstances of an arrest which they
do not have in other situations. [Italics of Lamer C.J.C. in the original;
under-lining added.]

135 Applying the above principles, the police purpose in searching the back seat area of the car
falls squarely within one of the three purposes set out in Cloutier, namely, "the discovery of an
object that may be a threat to the safety of the police ... or the public." Furthermore, the Caslake
requirement that "there be some reasonable basis for doing what the police officer did", short of
reasonable and probable grounds and while giving the officers "considerable leeway", is also met.
The "caution" on CPIC to the effect that Jason Humphrey may be "armed and dangerous" was still
current at the time of the arrest and it appeared to relate to some ongoing investigation. The officers
were in a situation of immediate urgency and could not be expected to look behind the "caution"
and somehow test its sufficiency. In this latter regard, I note that in R. v. Mann (2004), 185 C.C.C.
(3d) 308 at para. 48 (S.C.C.), the Court held that there was a "logical possibility" of finding
weapons, justifying an officer safety pat down search on the street, in a case involving nothing more
than the stop of a break and enter suspect. Also see: R. v. Golub (1997), 117 C.C.C. (3d) 193 at
para. 18 (Ont. CA) where Doherty J.A. noted, on behalf of the Court, that the "available
information" on which the police must make decisions, in the context of an arrest, "is often less than
 Page 39

exact or complete."

136 It is also helpful, in applying the Cloutier and Caslake principles to the facts of the case at
bar, to refer to Doherty J.'s decision at trial in R. v. Lim and Nola (1990), 1 C.R.R. (2d) 136 (Ont.
H.C.J.). Lamer C.J.C. referred with approval to this early decision on the scope of common law
search powers, in Caslake, supra at para. 18. The facts in Lim disclose some relevant similarities to
the case at bar. The accused had been arrested for conspiracy to commit murder, while working on
his car in an underground parking garage. He was "handcuffed and placed in the back seat of the
police vehicle." Doherty J., as he then was, described the basis for the ensuing search of the car:

I conclude that [Officer] Craddock directed the search because he was concerned
that there could be a gun or guns in the car. Paspaporn had indicated that Lim had
given him a weapon ... There was no urgency which necessitated the immediate
search of the vehicle, nor was the search actually necessary to protect the police
officers from immediate harm at the hands of Lim, who by the time of the search
was in close custody in a police car.

In my view, the same two justifications referred to in Cloutier v. Langlois, supra,

combined with the reduced privacy expectation, support the right of the police to
search the immediate surroundings at the scene of an arrest. The passages set out
from Cloutier v Langlois clearly indicate that the justification extends beyond the
search of the person to the immediate surroundings of that person. Just as with a
search of the person, a search of the immediate surroundings may well lead to the
discovery of evidence or the discovery of items which could imperil public safety
at the scene. [Emphasis added].

137 Doherty J. found that the search of the vehicle for weapons, after the accused Lim was in
custody, was lawful at common law and not in violation of s. 8. The subsequent decision in
Caslake, supra confirms the correctness of Doherty J.'s reasoning.

138 For all these reasons, I am satisfied that there was no violation of the s. 8 rights of the
passenger Jason Humphrey and no violation of the s. 8 rights of the accused Raynford Humphrey.
The search of the car was lawful at common law and did not violate s. 8 of the Charter.

(v) Section 24(2) of the Charter

139 Having found no violation of Charter rights, it is not necessary to address s. 24(2). I simply
repeat what I said in brief oral reasons at the time of my ruling at trial:

If I am wrong about the ss. 8,10(a) or 10(b) violations, I would still have
admitted the evidence pursuant to s. 24(2) and the principles set out in R. v.
Grant, supra. The s. 9 violation, had it been made out, would lead to a quite
 Page 40

different s. 24(2) balancing of the Grant factors.

(vi) The merits of the case: proof of possession

140 The Crown alleges that the accused Raynford Humphrey was in possession of all three
handguns found in the car, either as a principal or as a party. There is no direct evidence that the
accused was in possession of any of the guns. As in most cases alleging possession of a prohibited
thing or a prohibited substance, the evidence is circumstantial.

141 It is well established in the law of possession that the mental element is knowledge of the
prohibited thing or prohibited substance. The physical or conduct element is control of the
prohibited thing or prohibited substance. See: R. v. Beaver (1957), 118 C.C.C. 129 (S.C.C.); R. v.
Terrence (1983), 4 C.C.C. (3d) 193 (S.C.C.).

142 The Criminal Code definition of possession makes it clear, in s. 4(3), that there are three
distinct forms of possession: first, having the prohibited thing or substance "in his personal
possession", for example, in one's hand or pocket or purse; second, knowingly having the prohibited
thing or substance "in the actual possession or custody of another person" or "where one of two or
more persons, with the knowledge and consent of the rest, has anything in his custody or
possession" (known as joint possession); third, knowingly having the prohibited thing or substance
"in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of
himself or of another person" (known as constructive possession).

143 The three statutory forms of possession are substantially the same as the law of possession at
common law. All three forms require proof of both knowledge and control. See: R. v. Martin
(1948), 92 C.C.C. 257 (Ont. C.A.).

144 In the case at bar, the element of control is easily made out as the accused Raynford
Humphrey was the owner and driver of the car. If he had knowledge of any of the three guns, it
could easily be inferred that he had permitted or allowed his passengers to store and transport the
guns in his car. This would be sufficient to make out the element of control. As O'Halloran J.A. put
it, in his famous pronouncement concerning the conduct element of possession, in R. v. Colvin and
Gladue (1942), 78 C.C.C. 282 at 287 (B.C.C.A.):

If there is the power to consent there is equally the power to refuse and vice
versa. They each signify the existence of some power or authority which is here
called control.

145 Martin J.A. applied this definition of control in Re Chambers and the Queen (1985), 20
C.C.C. (3d) 440 at 446-9 (Ont. C.A.), a case where it could be inferred that the accused Chambers
had allowed her visiting boyfriend Cardenas to store his cocaine in her bedroom:
 Page 41

There was evidence that the room in which the drug was found was the
respondent's [Chambers'] room and, consequently, she could give or withhold her
consent to the drug being in her room ... the respondent in the present case had
the power to either consent or withhold her consent to her room being used to
store cocaine ... a court [may draw] appropriate inferences from evidence that a
prohibited drug is found in a room under the control of an accused where there is
also evidence from which an inference may properly be drawn that the accused
was aware of the presence of the drug. [Emphasis added.]

Also see: R. v. Terrence (1980), 55 C.C.C. (2d) 183 (Ont. C.A.), aff'd R. v. Terrence, supra; R. v.
Mohamad (2004), 182 C.C.C. (3d) 97 at para. 61 (Ont. C.A.); R. v. Savoury (1996), 94 O.A.C. 318
(C.A.).

146 Given that the element of control over the guns can be inferred from the accused Humphrey's
ownership and control of the car, provided he had knowledge of one or more of the guns, the only
real issue in the case is whether the Crown has proved the element of knowledge.

147 In order to satisfy the Crown's burden of proof beyond reasonable doubt in a circumstantial
case, it is often said that the inference of guilt must be the only reasonable inference from the
primary facts. In the present case, this means that the Crown cannot succeed unless the only
reasonable inference from the facts is that the accused knew that one or more of the guns was
present in his car. See: R. v. Cooper (1978), 34 C.C.C. (2d) 18 at 33 (S.C.C.); R. v. Elmosri (1985),
23 C.C.C. (3d) 503 at 506 (Ont. C.A.); R. v. Griffin and Harris (2009), 244 C.C.C. (3d) 289 at 303
(S.C.C.).

148 The first step in a circumstantial case is to determine what primary facts have been proved.
The second step is to determine what rational non-speculative inferences flow from the primary
facts. See: R. v. Arcuri (2001) 157 C.C.C. (3d) 21 at 31-2 (S.C.C.); R. v. Morrissey (1995), 97
C.C.C. (3d) 193 at 209 (Ont. C.A.); R. v. Alexander (2006) 70 W.C.B. (2d) 321 (S.C.J.).

149 In the case at bar, the primary facts are not seriously in dispute. It is agreed that the three
guns were in the accused's car, in the entertainment district late at night, in the three locations in the
car where the police found them, at a time when the accused and his two passengers were all present
in the car. The Crown submits that the inference of knowledge is the only rational non-speculative
inference from these primary facts, based on the following process of reasoning:

* First, there were three occupants in the car and there were three loaded
handguns in the car, all proceeding together to a common destination. The
natural inference is that each occupant brought a gun due to some common
plan or purpose;
* Second, the three guns were not in a place of permanent storage. Rather,
they were all located in places where they were readily accessible. The
front seat passenger Powell appears to have passed his gun (with his
 Page 42

fingerprint on its magazine) into the back seat, probably because there
were better places to hide it in the back seat area. It can be inferred that the
accused Raynford Humphrey would have done the same thing with his
gun;
* Third, the three occupants of the car were either close friends or close
family members and were therefore unlikely to deceive one another by
secretly bringing guns into the car, unbeknownst to the accused Raynford
Humphrey.

150 Mr. Greenspan challenges the cogency of the above inferences and submits that other
rational inferences, consistent with innocence, could be drawn from the primary facts. In addition,
he has called his client who has testified and provided an exculpatory account. The credibility of
that account must be assessed in accordance with the well-known principles relating to the burden
of proof, when exculpatory evidence negates an essential element of the Crown's case. See: R. v.
Nimchuk (1977), 33 C.C.C. (2d) 209 (Ont. C.A.); R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont.
C.A.); R. v. Morin (1988), 44 C.C.C. (3d) 193 (S.C.C.); R. v. W. (D.) (1991), 63 C.C.C. (3d) 397
(S.C.C.); R. v. B.D. 2011 ONCA 51.

151 In my opinion, the most important circumstances in this case, in relation to proof of the
element of knowledge, are the following:

* All three of the guns were hidden and could not be seen. In particular, they
would not be visible to Raynford Humphrey, seated in the front driver's
seat;
* The three guns were all located in the back seat area and were most easily
accessible to the back seat passenger, Jason Humphrey;
* There is no evidence of suspicious movements in the car, suggesting
hurried efforts to hide the guns, prior to the police stop of the vehicle. Even
after the vehicle was stopped, the officers observed no suspicious behavior;
* There is no forensic evidence, such as fingerprints, DNA or gunshot
residue, linking the accused to any of the guns. There is also no conduct,
either before the fact or after the fact, inferring a connection between the
accused and the guns;
* The accused's exculpatory account includes an assertion that others had
access to the car. More importantly, the accused has advanced an
explanation as to how his two passengers entered the vehicle, and took
their seats, at specific times when the accused was not in the car. In
addition, the two passengers appear to have been of less than good
character. In these circumstances, the two passengers had the opportunity
to hide the guns in the car, at times when Raynford Humphrey was not
present;
* The accused's exculpatory account includes a work-related reason for his
 Page 43

arrival in the entertainment district, late at night, at the time when the
police stopped his car. In addition, the events in question took place at a
point in the accused's music career when he was beginning to achieve
some success. In all these circumstances, there would be little or no reason
for him to bring a gun.

See: R. v. Douglas (1974), 18 C.C.C. (2d) 189 (Ont. C.A.); R. v. Grey (1996), 28 O.R. (3d) 417
(C.A.); R. v. Bertucci (2002), 169 C.C.C. (3d) 453 (Ont. C.A.); R. v. LePage (1995), 95 C.C.C. (3d)
385 (S.C.C.); R. v. Pham (2005), 203 C.C.C. (3d) 326 (Ont. C.A.), aff'd. 209 C.C.C. (3d) 351
(S.C.C.).

152 It can be seen that two of the above six circumstances depend entirely on the accused's own
evidence. The credibility of his account is in issue and it must be assessed. That assessment must be
made in the context of all the other evidence. I stress, in this regard, that the first and second stages
of the W. (D.) framework for analysis can only be undertaken by weighing the accused's evidence
together with the conflicting Crown evidence. The model instruction in W.(D.) is not clear on this
point as it refers only to "the evidence of the accused", at the first stage, and to "the testimony of the
accused", at the second stage, when applying the burden of proof to the issue of credibility.
However, subsequent case law has made it clear that credibility can never be assessed by viewing
the accused's evidence in isolation. For example, Feldman J.A., speaking for the Court, approved of
a trial judge's instructions to this effect in R. v. Hoohing (2007), 74 W.C.B. (2d) 676 at para. 15
(Ont. C.A.):

He also properly told the jury that they were to weigh the evidence cumulatively
and not in isolation. A jury does not consider an accused's version of events in
isolation as if the Crown had led no evidence. When the jury is applying the first
two prongs of the three-pronged test in W.(D.), they are deciding whether they
accept the accused's version of events or whether it leaves them with a reasonable
doubt. Clearly they can only do that by assessing the accused's evidence and the
other evidence that favours the accused in the context of all the evidence. See: R.
v. Hull, [2006] O.J. No. 3177 at para 5 (C.A.). The evidence of any witness,
including an accused, may be believable standing on its own, but when other
evidence is given that is contradictory, or casts doubt on the accuracy or
reliability of the witnesses' evidence, that evidence may no longer be believable,
or in the case of an accused, may no longer raise a reasonable doubt. [Emphasis
added.]

Also see: R. v. Campbell (2003), 57 W.C.B. (2d) 363 (Ont. C.A.); R.v. D. (J.J.R.) (2006), 215
C.C.C. (3d) 252 at para. 53 (Ont. C.A); R.v. M.(R.E.) (2008), 235 C.C.C. (3d) 290 at para. 66
(S.C.C.).

153 I am satisfied that the accused's account has some degree of credibility for the following
 Page 44

reasons:

* His demeanour as a witness was good. He is bright and articulate and his
manner, when testifying, was polite and responsive. When he was unsure
on a point, he would acknowledge his uncertainty, rather than embellishing
his account. In short, he appeared to be honest and sincere. I should add
that this one factor, concerning demeanour, should not be given undue
weight;
* His account was quite detailed. Especially in relation to events on the night
in question, and the circumstances in which he came to meet up with his
two passengers, there were telling details that gave his story the ring of
truth. At no point in his testimony did he retreat into vague generalities;
* His account was generally logical and coherent, in the sense that he
provided a rational explanation for why he drove down to the
entertainment district late at night, why his two passengers had joined him
and how they entered and were seated in the car at times when he was not
present. However, there is no explanation as to why the passengers would
have brought three loaded handguns with them, unbeknownst to Raynford
Humphrey;
* He was not an obviously partisan witness as he was willing to concede
points that arguably favoured the Crown, for example, that the police
decision to stop the car was not "harassment", that the police were polite
and that the marijuana bag in the console may have been partially in plain
view when the police seized it;
* There is no direct evidence that contradicts his account. Indeed, some of
the more important items of circumstantial evidence, such as those set out
above at para. 151, are consistent with his account.

154 I am not convinced that the accused's exculpatory account is true, in particular, because there
is some force to the Crown's argument, summarized above at para. 149. The accused's denial of
knowledge of the three handguns, if true, requires some rational explanation for why his two
passengers would bring three handguns with them, on this apparently lawful work-related trip
downtown, and would not tell Raynford Humphrey about the guns. There is no evidence of any
such rational explanation.

155 However, there is no burden on the accused to convince me of the truth of his exculpatory
account. I am satisfied that his story might reasonably be true for the reasons set out above. As
noted, his account has some credibility and some of the circumstantial facts support it, such that I
cannot completely reject it.

156 I should add that my conclusion to the effect that the accused's account, denying knowledge
of the guns, "might reasonably be true", is meant to capture the so-called second stage of the W.(D.)
 Page 45

analytical framework. As I read the long line of authority on which W.(D.) is based, the second
stage in Cory J.'s analytical framework in that case refers to the trier of fact being in a state of
uncertainty. As Morden J.A. put it in Challice, supra at pp. 556-7, it refers to "something in
between" either "total acceptance" or "total rejection" of the accused's exculpatory account. These
latter two states of mind, at which a trier of fact may arrive when assessing all the evidence at the
end of the case, are addressed at the first and third stages of the analytical framework. The "in
between" state of mind was also referred to in Challice, supra as simply meaning that the trier is
"unable to resolve the conflicting evidence". In Nimchuk, supra, Martin J.A. referred to it as
meaning that the trier does not know "exactly where the truth of the matter lay", unlike the other
two states of mind where the trier of fact is sure where the truth lies. It is in these senses that I use
the phrase "might reasonably be true" and not in the sense of imposing some tactical or evidentiary
burden on the accused to disprove his guilt. I simply mean that his story has neither been accepted
nor rejected, that it might be true, and that I am left in a state of reasonable doubt. I am aware that
there is a line of authority holding that the phrase "might reasonably be true" can be understood, in
some historical common law contexts, as placing a burden on the accused. I am not using the phrase
in this sense. See: R. v. Mathieu (1994), 90 C.C.C. (3d) 415 (Que. C.A.), aff'd. (1995) 101 C.C.C.
(3d) 575 (S.C.C.); R. v. Phillips and Baker (2001), 154 C.C.C. (3d) 345 at 358 (Ont. C.A.); R. v. K.
(V.) (1991), 68 C.C.C. (3d) 18 (B.C.C.A.); R. v. Rattray (2007), 74 W.C.B. (2d) 12 (Ont. C.A);

157 For all these reasons, the Crown has not proved the element of knowledge beyond reasonable
doubt. Accordingly, the accused is NOT GUILTY on all nine counts of the indictment.

M.A. CODE J.

*****

Correction
Released: June 10, 2011

On page one, the name of Sherri J. Beattie has been added as counsel for the accused.
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