R. v. McKenzie, 2011 ONCA 42

CITATION: R. v. McKenzie, 2011 ONCA 42

DATE: 20110118

DOCKET: C51595

COURT OF APPEAL FOR ONTARIO

Rosenberg, Goudge and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronald Keith McKenzie

Appellant (Applicant)

Daniel Moore, for the appellant

Eliott Behar, for the respondent

Heard: December 22, 2010

On appeal from conviction entered by Justice Barry MacDougall of the Superior Court of Justice, dated May 19, 2009 and sentence imposed on June 23, 2009.

By the Court:

[1] The appellant appeals from his conviction and sentence following his conviction by MacDougall J. on numerous firearms offences and one count of illegal possession of drugs. For the following reasons, the appeals are dismissed.

Conviction Appeal

[2] This case turned entirely on the lawfulness of the appellant’s arrest and the subsequent search of his automobile incident to that arrest. The trial judge found that the police officers had reasonable grounds to arrest the appellant and therefore, there was no violation of his rights under the Charter of Rights and Freedoms. He went on to find that even if there were a Charter violation, the evidence should not be excluded under s. 24(2) of the Charter. We agree with both conclusions.

[3] The investigation of the appellant began in the spring of 2006 when the Durham Regional Police received information from a reliable confidential informer about someone named “Dave”. Dave lived in the Durham Region and was involved in gun smuggling and gun trafficking. A short investigation could not confirm the information in the tip. However, in the fall of 2006, the police received a second tip from another confidential informer about “Dave”. This tip had somewhat more information: Dave was entrenched in the gun subculture in the Region and was involved in smuggling firearms from the United States and trafficking in those firearms at the rate of 30 to 40 firearms per month. One of the guns had been used in a fatal shooting in the Region. This informer provided an address for “Dave”, which was the appellant’s home address. There was no information about the reliability of the second informer.

[4] The Provincial Weapons Enforcement Unit now conducted an intensive investigation of the appellant. They began by obtaining dial number recorder (DNR) warrants for the appellant’s various telephones. The police also engaged in intermittent physical surveillance on the appellant. The information gathered from the DNR warrants showed a huge volume of telephone traffic. This information was analyzed and demonstrated that the appellant had frequent contact with a number of persons who had been charged with and, in some cases, convicted of, firearms offences. The information also showed that the appellant was in frequent contact with Roger Peddie, who lived in the Region, and also frequently stayed with his girlfriend who lived in Kitchener. Further, the police obtained a tracking warrant so that they could track the movements of the appellant’s automobile.

[5] Finally, on June 5, 2007, the police obtained information from a third confidential informer that the appellant would be travelling to Kitchener to pick up firearms from “Roger” in a day or two. The police were able to verify that a few days before June 5, the appellant had travelled to Kitchener. They also confirmed that on June 4, Roger Peddie crossed the Canada-U.S. border with a woman who was not his girlfriend. Meanwhile, on June 6, the police observed the appellant meet with two men, one of whom the appellant had been in frequent telephone contact with and had a record for a firearms offence. The other man appeared to be carrying a concealed firearm. Finally, on June 7, the woman who had crossed the border with Peddie returned alone to Canada. A cursory check of the automobile at the Canadian border did not result in finding any firearms or other contraband. The next day, the appellant’s vehicle was tracked to the area of Peddie’s girlfriend’s home in Kitchener.

[6] The police believed that they had reasonable grounds to believe that the appellant was now in unlawful possession of firearms. As they followed the appellant’s vehicle they observed him engage in counter-surveillance; making sudden lane changes, unexpected turns and taking a circuitous route as he returned to the Durham Region. The police stopped the appellant in a “high-risk takedown”, which involved an arrest at gunpoint. The appellant’s vehicle was subsequently searched. The police found a small amount of drugs in the car and various firearms in the vehicle’s door panels: a fully automatic machine pistol with three over-capacity magazines and a silencer, two pistols and a revolver.

[7] It was not contested that the police had the requisite subjective belief that the appellant was in unlawful possession of firearms. In our view, the totality of evidence also established the requisite objective grounds. By the time of the arrest, the police had information from three independent sources that the appellant was engaged in unlawful trafficking in firearms. As predicted by the second informer, the appellant was shown to be involved in the gun subculture in the Durham Region. The activities in early June 2007 suggested that the person believed to be the source of the appellant’s firearms was travelling to the United States after meeting with the appellant. Then, Peddie’s companion returned alone to Canada the day before the appellant went to Peddie’s girlfriend’s neighbourhood. Finally, the counter-surveillance observed by the police confirmed that the appellant was probably in possession of contraband shortly after going to a residence associated with Peddie in Kitchener.

[8] This constellation of objectively discernable facts showed that the police had reasonable grounds to believe that the appellant was in unlawful possession of firearms when he was arrested and his vehicle searched. The careful and lengthy investigation provided information that passed the threshold from a mere hunch or educated guess to reasonable and probable grounds.

[9] As noted earlier, the trial judge held that even if there were a violation of the appellant’s Charter rights, the evidence should not be excluded under s. 24(2). The trial judge did not have the benefit of the Supreme Court of Canada’s decisions in 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, where the court revised the s. 24(2) test to focus on three lines of inquiry: the seriousness of the Charter-infringing conduct, the impact on the accused’s Charter-protected interests, and the societal interest in an adjudication on the merits. Applying the Grant and Harrison test, we come to the same conclusion as did the trial judge.

[10] As to the seriousness of the Charter-infringing conduct, if the police fell short of reasonable grounds, it was only to a minor degree. Any violation of the appellant’s rights tends to fall on the less serious end of the continuum identified by Doherty J.A. in R. v. Blake (2010), 2010 ONCA 1, 251 C.C.C. (3d) 4 (Ont. C.A.) at para. 23. The good faith of the police is demonstrated by the frequent resort to lawful means of investigation including judicially authorized DNR and tracking warrants. The actual arrest was conducted quickly and professionally.

[11] As to the impact on the appellant’s protected interests, admittedly there was a significant intrusion into the appellant’s liberty interest given his arrest in public at gunpoint. The intrusion into his privacy rights was less significant. The search of a motor vehicle on a public street is less of an intrusion into privacy interests than other intrusions, such as search of a private dwelling.

[12] Finally, as to the societal interest in an adjudication on the merits, as noted in Harrison at para. 34, the seriousness of the charged offences must not take on disproportionate significance. However, given the reliability of the evidence that was critical to the successful prosecution of these very serious offences, there was a strong societal interest in an adjudication on the merits.

[13] The first and third inquiries identified in Grant favour admissibility of the evidence. The second inquiry may tend to favour exclusion, but not overwhelmingly so. On balance, the inquiries lead to the conclusion that the evidence was properly admitted. Accordingly, the appeal from conviction is dismissed.

Sentence Appeal

[14] We would also dismiss the sentence appeal. Taking into consideration pre-sentence custody, the trial judge imposed an effective sentence of six years imprisonment. Thus, he imposed a sentence of 23 months concurrent on five of the counts and 12 months concurrent on three others, after giving 2:1 credit for a total of 49 months of pre-sentence custody. The appellant asks this court to adjust the sentence having regard to the immigration consequences he may face. Under s. 64 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, the appellant cannot appeal his deportation to the Immigration Appeal division if he was convicted of any one offence for which he was sentenced to a term of imprisonment of at least two years. The Federal Court has held that in determining whether the offender was sentenced to at least two years, pre-sentence custody must be taken into account: Ariri v. Canada (Minister of Public Safety), 2009 FC 834. The appellant asks us to impose a sentence on the various counts by distributing the pre-sentence custody among the eight convictions so that no one sentence is two years or more.

[15] As this court recognized in R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1, at para. 156, while immigration consequences can be taken into account, the risk of deportation cannot justify the imposition of an unfit sentence or use of the sentencing process to circumvent the provisions and policies of the Immigration and Refugee Protection Act. Of the eight counts upon which the appellant was convicted, the most serious was count one, possession of firearms for the purpose of trafficking contrary to s. 100 of the Criminal Code. A sentence of less than two years for this offence would be manifestly unfit, given the number of firearms and their characteristics, especially the possession of the fully automatic pistol with its three over-capacity magazines and silencer.[^1] As such, to adjust the sentence in the manner suggested by the appellant would infringe the principles identified in Hamilton.

[16] Accordingly, while leave to appeal sentence is granted, the appeal is dismissed.

RELEASED:

“MR” “M. Rosenberg J.A.”

“JAN 18 2011” “S.T. Goudge J.A.”

“R.A. Blair J.A.”

[^1]: At the time the appellant committed the offence, s. 100 carried a minimum punishment of one year imprisonment. The offence now carries a three year minimum sentence for a first offence.