Court File and Parties

Citation: R. v. Aselford, 2009 ONCA 28

Date: 2009-01-14

Docket: C47746

Court of Appeal for Ontario

Before: Doherty, MacPherson and Lang JJ.A.

Between:

Her Majesty the Queen (Appellant)

and

John Charles Aselford, Ian Ross Fletcher, Michelle Anne Fortin, Ian James Patterson, and Sharlyn Leigh Thornhill (Respondents)

Counsel:

Roderick Sonley and Rosemarie Fincham, for the appellant

Jonathan Dawe and Karen Ann Reid, for the respondent John Aselford

James Harbic, for the respondents Ian Fletcher and Ian Patterson

Edward Conway, for the respondent Michelle Fortin

Heard and released orally: January 12, 2009

On appeal from the acquittals entered by Justice Dianne M. Nicholas of the Ontario Court of Justice on August 14, 2007.

Endorsement

[1] The Crown appeals from the ruling and concomitant acquittal by Nicholas J. on 14 August 2007 for a violation of the Charter, coupled with the exclusion of the evidence (marijuana) under s. 24(2).

[2] The Crown contends that the trial judge erred by finding a contradiction between the evidence of Constables Pender and Schultz on the question of whether Pender’s seizure of the toy guns and discovery of the first bag of marijuana were simultaneous. Although the word “contradiction” is perhaps a bit strong, her evidence was not confirmed by any of the other officers’ testimony. Moreover, it is clear from the reasons of the trial judge that she rejected Constable Pender’s evidence as unreliable. We see no basis for disagreeing with this rejection.

[3] The Crown submits that the officer safety rationale permitted Pender to continue the search for weapons inside the vehicle after she had confirmed that the guns in plain view were, as Aselford told her, toy guns. The problem with this submission is that Pender specifically disclaimed this rationale for continuing the search; in fact she said that once she knew that the guns in the back seat were toys, she “didn’t need to investigate further”. In closing submissions, Crown counsel made the same point, conceding that unless Pender seized the toy guns and marijuana at the same time, “the officer would have had no reasonable and probable grounds to continue her search of the vehicle”.

[4] Finally, we see no basis for interfering with the trial judge’s determination that the respondents had standing to raise Charter challenges.

[5] The Crown contends that the trial judge failed to conduct a proper s. 24(2) analysis. It is true that the trial judge’s reasons on this issue are cursory. However, read on their whole, her reasons disclose a consideration of the various components of s. 24(2) and her exclusion of the evidence. In particular, the foundation for her decision to exclude evidence of the marijuana is clear – she disbelieved Pender and thought that the continuation of the search after the guns were ascertained to be toys was completely inappropriate. In addition, the offences with which the appellants were charged were not particularly serious. A trial judge’s decision on s. 24(2) is entitled to substantial deference: see R. v. Chaisson 2006 SCC 11, [2006] 1 S.C.R. 415. We see no basis for reaching a conclusion different from the trial judge’s in this case.

[6] The appeal is dismissed.

“Doherty J.A.”

“J.C. MacPherson J.A.”

“S.E. Lang J.A.”