COURT OF APPEAL FOR ONTARIO
Feldman, Simmons and Pardu JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Richard Martin Ashbourne Steele
Appellant
Anthony Moustacalis and Selwyn Pieters, for the appellant
J. Sandy Tse, for the respondent
Heard: January 13, 2015
On appeal from the convictions entered on October 7, 2010 and the sentence imposed on October 8, 2010 by Justice Patrick J. Flynn of the Superior Court of Justice, sitting without a jury.
A. Overview
1Richard Steele was convicted of possessing a loaded, prohibited, semi-automatic firearm. A police officer noticed the gun under the front passenger seat occupied by the appellant, while attempting to assist the driver to locate the insurance slip. He appeals from his convictions on the ground that the evidence of the gun should have been excluded, as it was found through an unreasonable search. He says the search was not authorized by law, that the driver’s apparent consent to the search was insufficient, and that the police stop and subsequent search, purportedly for purposes under the Highway Traffic Act, R.S.O. 1990, c. H.8, was motivated in part by racial bias.
2He also submits that the convictions were unreasonable, and could not be supported on the evidence before the trial judge.
3I would dismiss the appeal. As the appellant lacked a reasonable expectation of privacy in the car, his right to be secure against unreasonable search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms was not infringed. Furthermore, there is no basis to interfere with the trial judge’s factual conclusion that the stop and search were not racially motivated. Finally, the convictions were supported by the evidence and were not unreasonable.
B. Did the search infringe s. 8 of the Charter?
(1) The trial judge’s factual findings on the Charter application
4At around two o’clock in the morning on November 25, 2007, in downtown Hamilton, P.C. Stephens stopped a car in which four young black men were riding. The appellant occupied the front passenger seat.
5The trial judge found that P.C. Stephens stopped the car with the intention of checking for proper documentation and driver sobriety. He accepted her evidence that she first saw the car as it passed her, going from east to west. While she could see a driver, she could not discern the driver’s sex or skin colour. She did not know that there were three other occupants of the vehicle.
6The trial judge found that it was only as P.C. Stephens approached the driver’s door that she saw there were four black men in the car. When she saw the number of occupants in the vehicle, she called for assistance. Three other officers arrived and stationed themselves at the vehicle’s other doors.
7P.C. Stephens asked the driver for his driver’s licence, ownership for the car, and proof of insurance. The driver, White, produced the ownership, showing that Valarie Steele was the registered owner of the car. White told P.C. Stephens that the car belonged to a friend’s mother. The officer had no way of knowing that the friend was the appellant, who was seated in the front passenger seat, and remained silent throughout this exchange.
8White seemed flustered and produced several expired insurance pink slips, and could not produce a driver’s licence. As White was cooperative, though nervous, and making efforts to find proof of insurance, P.C. Stephens asked White if he would like her to help find the valid insurance slip. White agreed. The other occupants, including the appellant, were asked to get out of the car.
9With White still in the driver’s seat, P.C. Stephens went to the front passenger side of the car and knelt on the ground. With her head, torso and arms inside the car, she looked inside the glove box for the insurance slip, without success. As she rose to leave the passenger compartment, with her left hand on the seat and her right on the floor, she saw in plain view part of the black butt and silver barrel of a gun on the floor. The gun was partially under the front passenger seat.
(2) The trial judge’s legal analysis
10The trial judge concluded that the initial stop was authorized by the Highway Traffic Act, which he said permits random stops to check driver and vehicle documentation, and driver sobriety. He indicated that this legal authority also gave police officers the right to search the vehicle to find proof of insurance. He found that the appellant had no standing to challenge White’s consent to the search of the vehicle. He concluded that there was no evidence of racial bias or racial profiling. Even if there had been a Charter violation, he would not have excluded the evidence of the gun under s. 24(2) of the Charter, applying the analysis required by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494.
(3) Issues
11The appellant’s Charter claim raises the following issues:
Did the appellant have a reasonable expectation of privacy in the vehicle?
Was the search authorized by law?
Was the finding that conscious or unconscious racial bias did not motivate the stop or search unreasonable?
In any event, should the evidence have been excluded under s. 24(2) of the Charter?
12I now turn to the first question.
(1) Did the appellant have a reasonable expectation of privacy in the vehicle?
13According to admissions filed at trial, the owner of the car, Valarie Steele, loaned the vehicle “that same day” to White and the appellant. They left with the vehicle from the Toronto residence of the appellant and Valarie Steele sometime in the afternoon of November 24, 2007.
14Valarie Steele is the appellant’s mother. There was no other evidence about the terms upon which she loaned the vehicle to White and her son, if any.
15Assessing whether a person has a reasonable expectation of privacy requires consideration of all of the circumstances, including the following factors identified in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 45, and R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341, at para. 20:
Presence at the time of the search;
Possession or control of the property or place searched;
Ownership of the property or place;
Historical use of the property or item;
Ability to regulate access, including the right to admit or exclude others from the place;
The existence of a subjective expectation of privacy; and
The objective reasonableness of the expectation.
16As indicated in R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 40:
The “totality of the circumstances” test is one of substance, not of form. Four lines of inquiry guide the application of the test: (1) an examination of the subject matter of the alleged search; (2) a determination as to whether the claimant had a direct interest in the subject matter; (3) an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and (4) an assessment as to whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.
17The court indicated in Cole, at para. 35, that “[p]rivacy is a matter of reasonable expectations. An expectation of privacy will attract Charter protection if reasonable and informed people in the position of the accused would expect privacy”.
18In Belnavis, at para. 38, the Supreme Court held that there was, in general, a diminished expectation of privacy in a motor vehicle. The court also held, at para. 22, that whether a passenger in a car has a reasonable expectation of privacy in the car depends on the circumstances. In Belnavis, a passenger was held not to have a reasonable expectation of privacy in a car driven by the owner’s friend. The passenger was present at the time of the search. However, there was no evidence that she had control over the vehicle, that she had used it in the past, or that she had any “relationship with the owner or driver which would establish some special access to or privilege in regard to the vehicle”: Belnavis, at para. 22. There was no evidence she had any ability to regulate access to the vehicle or that she had a subjective expectation of privacy in the vehicle. There were also three garbage bags filled with new clothing in the car. While the passenger stated that each of the occupants in the vehicle owned one of the bags, she did not assert ownership of a particular bag. The Supreme Court held that she also had no reasonable expectation of privacy in the bags: Belnavis, at para. 24.
19In the circumstances of the present case, the appellant did not have a reasonable expectation of privacy in the car. The appellant was a passenger in the vehicle at the time of the search, and he was authorized by his mother, at the very least, to be a passenger in the vehicle. However, the appellant’s degree of possession or control, historical use, or ability to regulate access to the vehicle is unknown.
20In general, it would be objectively reasonable for an individual using a family member’s car to have a reasonable expectation of privacy in that vehicle. Here though, the appellant did not identify himself as a person to whom the car had been loaned, and he did not indicate his connection to the vehicle’s owner. He was only a passenger in a vehicle driven by another person who claimed to have borrowed the car. Further, the police had no reason to believe that the appellant had any connection to the vehicle other than as a passenger. Moreover, the driver was attempting to produce required documentation to police, and had apparent control of the vehicle. Under these circumstances, there is no basis for a person in the appellant’s position to have subjectively expected privacy in the vehicle.
21As the appellant had no reasonable expectation of privacy in the car, it is unnecessary to address the effect of the driver’s apparent consent to the search.
(2) Was any “search” authorized by law?
22Given my conclusion that the appellant lacked a reasonable expectation of privacy in the car, there was no “search” within the meaning of s. 8. (R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37.) It is unnecessary to go on to determine if the police conduct was unreasonable and therefore a violation of s. 8 of the Charter.
23I do note however that to establish the reasonableness of a search, the Crown must show on a balance of probabilities that the search was authorized by law, the authorizing law was itself reasonable, and the authority to conduct the search was exercised reasonably: Cole, at para. 37. In this case, there was no statutory authority permitting the search of the vehicle for proof of insurance. Some provinces explicitly authorize the search of a vehicle where an officer has reasonable grounds to believe that the vehicle is being operated in violation of regulatory requirements.1 However, neither the Highway Traffic Act nor the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, contains any such provision that is applicable in this case.
(3) Was the finding that conscious or unconscious racial bias did not motivate the stop unreasonable?
24A stop or search motivated by racial bias or racial profiling violates the Charter rights of the person stopped or searched. The appellant submits that the trial judge ought to have concluded on the following grounds that the reason the vehicle was stopped and searched was because one or more of the occupants was black:
This was a random stop without any apparent driving misconduct;
The four occupants of the vehicle were black;
The inconsistencies between the officer’s trial evidence and her notes and previous testimony lend credence to the submission that the stop was racially motivated.
25In R. v. Brown (2003), 2003 CanLII 52142 (ON CA), 64 O.R. (3d) 161 (C.A.), at para. 45, this court noted, “where the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why he or she singled out the accused person for attention”, it could be open to a court to infer that the stop was racially motivated.
26In this case, the officer gave evidence at length about the car’s location when she first saw it, and when she first realized that one or more of the occupants was black. The appellant argues that her observations that White and the appellant were nervous and that the appellant appeared to be hiding something at his feet reflected stereotypical thinking.
27However, the trial judge found that:
P.C. Stephens was credible, “steadfast and uncontradicted”;
She first saw the vehicle when it passed her going from the east to the west on Jackson Street at 2:00 a.m.;
She could not determine the race or gender of the driver;
She could not see any other occupants of the vehicle;
She only determined the number of occupants after she stopped the vehicle;
It was only after stopping the vehicle that she saw that the occupants were black; and
When P.C. Stephens went to the front passenger side of the car and looked into the glove box, she was “intent on finding that valid insurance slip”.
28The trial judge made no palpable and overriding error in his evaluation of the uncontradicted evidence before him on the Charter application. There is no basis to interfere with his findings of fact.
(4) In any event, would the gun be admitted under s. 24(2) of the Charter?
29Given these conclusions, there is no need to consider at length whether the evidence should have been admitted pursuant to s. 24(2) even if there had been a breach of the appellant’s Charter rights. However, in my view, the trial judge did not err in his alternative conclusion that the gun should not be excluded.
30Even if the appellant had had some expectation of privacy in the vehicle, it was highly attenuated. The officer acted in good faith. The trial judge found that she was not undertaking a search for evidence of a crime, but was attempting to help the driver find proof of insurance. She asked the driver if he wanted her help, and looked in the glove box in reliance on his consent. The societal interest in a trial on the merits was substantial. The gun was highly reliable and probative evidence unaffected by any Charter breach. The gun would have been admitted under s. 24(2).
C. Were the verdicts unreasonable?
(1) The trial judge’s conclusions
31The trial judge convicted the appellant of possessing a loaded prohibited firearm and occupying a motor vehicle in which he knew there was a firearm.
32The trial judge accepted P.C. Stephens’ evidence that the appellant seemed nervous when she stopped the vehicle and that he was hunched over with his hands underneath the passenger seat, as if he were trying to hide something. The gun was found under the appellant’s seat, where his hands had been. He found that the appellant knew the gun was there and was trying to hide it from police. The appellant had possession of the gun and was exerting a measure of control over it.
33However, the trial judge was not convinced beyond a reasonable doubt that the other three occupants of the vehicle knew about the gun.
(2) Alleged errors and analysis
34The appellant argues that the trial judge drew an inference of guilt from his earlier silence when he did not identify himself to the police as the son of the vehicle’s owner. There is no basis in the trial judge’s reasons to come to this conclusion. The appellant also argues that his guilt was not the sole rational inference in this circumstantial case. However, the trial judge indicated, “the only rational explanation for Mr. Steele being hunched over and his hand movements at that stage, combined with the position of the gun when it was found by Stephens, is that Mr. Steele was in actual possession.” The trial judge was convinced of the appellant’s guilt beyond a reasonable doubt. That is sufficient. No other particular form of words is required in a case based on circumstantial evidence: see R. v. Mayuran, 2012 SCC 31, [2012] 2 S.C.R. 162, at para. 38.
35The appellant also argues that it was unreasonable to conclude that he possessed the gun. He submits that one of the other passengers could have slid the gun under his seat.
36An assessment of the reasonableness of a verdict requires an appellate court to independently weigh the evidence. As indicated in R. v. Wills, 2014 ONCA 178, 308 C.C.C. (3d) 109, at para. 31, aff’d 2014 SCC 73:
The court weighs the evidence, however, not with a view to making its own assessment as to the appropriate verdict, but for the more limited purpose of determining whether the verdict is beyond the reasonableness limit. In making that assessment, the court must give due weight to the advantage a jury gains from actually seeing the witnesses and hearing the narrative unfold.
37Here, the Crown’s case was uncontradicted. A reasonable trier, acting judicially – that is to say, “acting dispassionately, applying the law and adjudicating on the basis of the record and nothing else” – could reasonably conclude that the appellant had possession of the gun: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 40.
D. Conclusion
38Accordingly, for these reasons, the conviction appeal is dismissed. The appellant did not pursue the sentence appeal.
Released: (KF) March 16, 2015 “G. Pardu J.A.”
“I agree K. Feldman J.A.”
“I agree Janet Simmons J.A.”
Footnotes
- See, for example, R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851 at paras. 27-28, and The Highways and Transportation Act, 1997, S.S. 1997, c. H-3.01, s. 63(5).
