DATE: 2006-06-26

DOCKET: C40372

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – MARK AUGUSTUS MALCOLM (Appellant)

BEFORE: MACPHERSON, SIMMONS and CRONK JJ.A.

COUNSEL: Boris Bytensky for the appellant Eliott Behar for the respondent

HEARD & ENDORSED: June 22, 2006

On appeal from the conviction entered on December 10, 2001 by Justice Paul Bellefontaine of the Ontario Court of Justice, sitting alone.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant appeals his conviction on the grounds that the trial judge erred in finding that the appellant’s rights pursuant to s. 8 of the Charter were not violated by the search of his motor vehicle and failing to exclude the evidence found in the search pursuant to s. 24(2) of the Charter.

[2] Although the trial Crown conceded the s. 8 violation at the trial, we are inclined to agree with the trial judge’s conclusion that the search of the appellant’s vehicle was a lawful search incident to arrest.

[3] In any event, in our view the trial judge’s decision to admit the evidence obtained from the search, including a semi‑automatic handgun, flowed from a proper application of factors relating to s. 24(2) of the Charter: See R. v. Collins, [1987] 1 S.C.R. 265.

[4] The appellant concedes that the evidence obtained through the search was not conscriptive and, therefore, did not affect trial fairness.

[5] Even if the search constituted a violation of s. 8 of the Charter, we agree with the trial judge that it was not a serious violation. The privacy expectation in relation to a vehicle is a reduced one: see R. v. Belnavis (1997), 118 C.C.C. (3d) 405 (S.C.C.). In this case, it is reduced even further by the fact that in relation to the offence with which the appellant was initially charged, dangerous driving, the appellant gave the police an alibi –namely, the vehicle had been car‑jacked at the relevant time – which would obviously compel the police to find and examine the car. In addition, the trial judge found that the police conduct leading to the initial search was done in good faith. In our view, his analysis on this point was fair and balanced. Finally, once the police discovered a firearm during the initial warrantless search, they immediately halted the search, secured the vehicle, and sought and obtained a search warrant.

[6] On the third Collins factor, we cannot disagree with the trial judge’s conclusion that exclusion of the evidence obtained in the search would bring the administration of justice into dispute. The offences with which the appellant was charged – possession of a restricted weapon (which, by the way, was concealed and loaded), contrary to a firearms prohibition order, and in breach of two probation orders – are very serious offences. Moreover, the evidence was entirely reliable and it was crucial to the Crown’s case.

[7] The appeal is dismissed.