CITATION: R. v. Grant, 2007 ONCA 26

DATE: 20070118

DOCKET: C44104

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and- WENDELL MARCELLO GRANT (Appellant)

BEFORE:

LABROSSE, CRONK and ARMSTRONG JJ.A.

COUNSEL:

Mark Halfyard

for the appellant

David Friesen

for the respondent

HEARD & RELEASED ORALLY:

January 15, 2007

On appeal from the conviction entered on December 13, 2004 by Justice John F. Hamilton of the Superior Court of Justice, sitting without a jury.

E N D O R S E M E N T

[1] The appellant appeals his conviction on one count of possession of a firearm while prohibited and one count of breach of probation with respect to the firearm.

[2] The appellant was stopped by the police, searched and found to be in possession of an unloaded sawed-off rifle. He submits that he was unlawfully detained and searched and that his rights under ss. 8, 9 and 10(b) of the Charter of Rights and Freedoms were infringed. He submits further that the evidence gathered from the unlawful search should have been excluded under s. 24(2) of the Charter.

[3] The incident occurred in a high crime neighbourhood where the police had been requested to attend by the community. The police officer knew the appellant and knew that he did not reside in the area. He also knew the appellant’s prior criminal activity and initially observed the appellant with a woman who was known to the officer to be a prostitute and a crack user. The police officer observed suspicious behaviour (“blading”, a police term for an attempt to conceal a weapon) on the part of the appellant. The Crown accepts that the appellant was detained from the moment the officer asked him to walk to the scout car for a C.P.I.C. check, at which point the officer noticed a bulge in the left side of the appellant’s pants.

[4] Assuming, that the appellant was arbitrarily detained, as the appellant argues, the evidence nonetheless should not be excluded. In our view, this case cannot be distinguished from the recent decision of this court in R. v. Grant (2006), 2006 18347 (ON CA), 209 C.C.C. (3d) 250.

[5] As stated in Grant, the reliability of the evidence and the nature of the police’s conduct that led to their obtaining the evidence, suggest that though the admission of this evidence would have had some impact on trial fairness, that impact would not have been so great as to preclude consideration of the other two Collins factors.

[6] With respect to the seriousness of the violation, the detention was quite brief, the appellant had a lesser expectation of privacy in a public area than he would have in his home and the questioning was minimally intrusive. The trial judge did not make a finding of bad faith and the record does not support a finding that the police acted in bad faith even though the officer had some prior knowledge and dealings with the appellant.

[7] We note that the Crown’s case depended entirely on the gun.

[8] Finally, as stated by this court in Grant, “In this case, where the police did not grossly overstep the bounds of legitimate questioning, acted in good faith, used no force, and were patrolling one of Toronto’s high-crime areas, … the repute of the justice system would suffer if the evidence were excluded.”

[9] The appeal is dismissed.

“J.M. Labrosse J.A.”

“E.A. Cronk J.A.”

“Robert P. Armstrong J.A.”