R. v. Stevens, 2011 ONCA 504

CITATION: R. v. Stevens, 2011 ONCA 504

DATE: 20110712

DOCKET: C50860

COURT OF APPEAL FOR ONTARIO

Laskin, Feldman and Armstrong JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lawrence Stevens

Appellant

John Norris and Brydie Bethell, for the appellant

David Finley, for the respondent

Heard: February 14, 2011

On appeal from the judgment of Summary Conviction Appeal Judge Sandra Chapnik of the Superior Court of Justice dated July 7, 2009, with reasons reported at 196 C.R.R. (2d) 32, dismissing the appeal from the convictions for careless storage of a firearm and ammunition entered on July 10, 2006 by Justice Lloyd M. Budzinski of the Ontario Court of Justice.

ARMSTRONG J.A.:

INTRODUCTION

[1] The appellant was convicted on July 10, 2006 of four counts of careless storage of a firearm and one count of careless storage of ammunition by Justice Budzinski of the Ontario Court of Justice. He received a suspended sentence and probation for 12 months. He appealed his convictions to the summary conviction appeal court. His appeal was dismissed by Justice Chapnik of the Superior Court of Justice on July 7, 2009. He now applies for leave to appeal and, if leave be granted, he appeals to this court.

[2] The main issue on the appeal is whether the search and seizure of the guns and ammunition in the appellant’s apartment was in breach of s. 8 of the Canadian Charter of Rights and Freedoms.

THE FACTS

[3] The appellant and his girlfriend, Lourinda Beaver, lived in an apartment on Islington Avenue in Toronto. A dispute arose between the landlord and the appellant’s girlfriend over the failure to maintain the property and Ms. Beaver withheld the rent. The landlord obtained an eviction order. The dispute was resolved through mediation and an agreement was entered into on January 5, 2005. The landlord agreed not to enforce an eviction order if certain payments were made in accordance with a payment schedule. The first payment was due on January 14, 2005. Despite the first payment having been paid on time, the landlord, apparently through inadvertence, commenced the eviction process by faxing instructions to a paralegal firm, which requested the sheriff’s office to proceed.

[4] On February 9, 2005, two sheriff’s officers attended at the appellant’s apartment to enforce the eviction order. They were met at the apartment building by the superintendent of the building. The sheriff’s officers had been provided with a risk assessment form, which stated that there was no risk in respect of the particular apartment.

[5] The sheriff’s officers knocked at the apartment door and received no response. The superintendent opened the door with a master key. When the sheriff’s officers walked through the apartment, they noticed what appeared to be two gun cases in one of the bedrooms. They did not know if the cases contained guns. They did not touch them. They also observed an Ontario Provincial Police shirt, a police badge from the Prince Edward Island provincial police and a bullet-proof vest (without panels).

[6] After satisfying themselves that the apartment was vacant, they signed the eviction order. They advised the superintendent that they had found firearms on the premises and that the police would be called. The police were called and the superintendent and sheriff’s officers waited in the apartment for the police to arrive.

[7] Two police officers arrived shortly thereafter. One of the police officers testified that they believed they were called to the apartment due to a concern that police property was present in the apartment. The sheriff’s officers explained that they were executing an eviction order and told the police about the gun cases. The police decided to open the gun cases. On opening the cases, they found firearms that were not properly stored or locked.

[8] The superintendent of the apartment building changed the locks on the apartment door.

[9] The more senior officer of the two instructed his colleague not to search any further because he intended to contact the Major Crime Unit about a search warrant. Subsequently three officers from the Major Crime Unit arrived at the apartment. They advised the first two officers that they would obtain a search warrant and instructed them to stay in the apartment.

[10] About an hour later, the appellant arrived at the apartment. His key would not fit the lock. One of the police officers opened the door and the appellant was arrested. Ms. Beaver arrived at the apartment some time later and was arrested.

[11] A search warrant was obtained authorizing the police to enter the appellant’s apartment and search for certain specified items. The police seized a number of items including firearms and ammunition.

THE PROVINCIAL COURT TRIAL

[12] After a voir dire, the trial judge dismissed the appellant’s motion to exclude from evidence the guns and ammunition seized by the police. The evidence was admitted for the purpose of the trial and convictions followed.

[13] The trial judge held that the sheriff’s officers were proceeding under the authority of a valid eviction order. The police were initially assisting the sheriff’s officers in what was essentially a civil matter. The trial judge concluded that s. 8 of the Charter did not apply in the circumstances and dismissed the motion to exclude the evidence.

THE SUMMARY CONVICTION APPEAL

[14] On the summary conviction appeal, the Crown conceded that the police are not exempt from the Charter when assisting sheriff’s officers to carry out an eviction. However, the Crown argued that there was no breach of s. 8.

[15] The Superior Court judge on the summary conviction appeal posed the question: “Was s. 8 of the Charter breached when the police entered the appellant’s ‘private residence’ or when they opened the gun cases, then waited about six hours in the premises prior to the obtaining of the warrant?”

[16] The Superior Court judge approached her analysis on the basis that this was a warrantless search and is presumptively unreasonable. She found that in the circumstances, the police acted reasonably throughout and the presumption of unreasonableness was rebutted. At paras. 21, 22 and 23 of her reasons, she said:

In this case, the police had been called to the apartment to investigate a serious safety issue. The search of the premises did not commence, nor was one attempted, before the search warrant was obtained. The police entered the apartment not for the purpose of a search, but in response to a call for assistance. Upon entry, they were shown a copy of the eviction order. Clearly, it was not feasible for them to obtain prior judicial authorization for the search. The police actions, including the securing of the apartment for several hours prior to the obtaining of the warrant, were both subjectively and objectively reasonable in the circumstances and not, I find, intrusive in relation to the appellant’s privacy interests. The police acted throughout pursuant to their common law duty to preserve the peace and prevent crime.

In my view, the factual situation here is exceptional and the state interest compelling such as to justify overriding the general prohibition against warrantless searches of a home.

The Crown has satisfied the onus of demonstrating that exigent circumstances justified the entry by the police, the opening of the gun cases and the securing of the premises as they did, prior to obtaining the warrant. The concerns of the Sheriff’s officers, the safety issue and the request for police assistance in securing safe transfer of the property were all found to be reasonable in the circumstances.

[17] Finally, she concluded that if there was a breach of s. 8, the evidence would be admissible on a s. 24(2) analysis.

LEAVE TO APPEAL TO THIS COURT

[18] The respondent does not oppose the granting of leave to appeal pursuant to s. 839(1) of the Criminal Code. The trial judge considered the issues to be “somewhat novel” and the Superior Court judge described the factual situation as “exceptional”. The issues appear to have importance beyond the appellant’s own case and raise a question of law concerning the proper application of s. 8 of the Charter. I am satisfied that this case meets the test for leave to appeal in R. v. R.R. (2008), 2008 ONCA 497, 90 O.R. (3d) 641 (C.A.).

THE APPELLANT’S POSITION ON THE APPEAL

[19] The appellant submits that both the sheriff’s officers and the police officers carried out unlawful searches in contravention of s. 8 of the Charter. Sheriff’s officers are state actors who perform their duties in these circumstances under the authority of various statutes including the Tenant Protection Act, 1997, S.O. 1997, c. 24, now the Residential Tenancies Act, 2006, S.O. 2006, c. 17, and are therefore bound by the Charter.

[20] The appellant further argues that the searches carried out by the sheriff’s officers and the police officers constituted searches of the appellant’s home and his belongings to which he had a subjective expectation of privacy and an objectively reasonable expectation of privacy.

[21] Both the sheriff’s officers and the police conducted searches before the police obtained a warrant, which were presumptively unreasonable. The Crown failed to rebut the presumption of unreasonableness.

[22] The appellant submits that the Superior Court judge erred in concluding that there were exigent circumstances that justified the police opening the gun cases before obtaining a warrant.

[23] The fact that the police ultimately obtained a warrant is of no consequence. The search warrant was obtained on the basis of information unlawfully obtained and cannot be used to legitimize the earlier illegal conduct.

[24] The appellant also submits that the fact that the police remained in the premises for several hours constituted a further unreasonable search.

[25] Finally, the appellant argues that both the trial judge and Superior Court judge erred in considering that the gun cases were “in plain view” to the sheriff’s officers and to the police, which rendered the search and seizure of the guns reasonable, ex post facto.

[26] The appellant submits that a proper analysis under s. 24(2) of the Charter pursuant to R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 leads to the exclusion of this evidence.

THE CROWN’S POSITION

[27] Counsel for the respondent Crown summarizes his arguments for dismissal of the appeal as follows:

(i) The sheriff’s officers entered the apartment pursuant to their statutory duty to enforce a facially valid eviction order, and thereafter conducted a lawful search of the apartment in order to provide the landlord with possession of the apartment free of persons and pets. That search afforded them a plain view discovery of the two firearms cases.

(ii) The police thereafter entered the apartment with the implied consent of the landlord, who had re-acquired possession of the apartment through the eviction process. As the landlord had come into possession of the appellant’s personal possessions by operation of law, and the police had been called for assistance, the police had the implied consent of the landlord to open the two firearms cases in order to determine whether they posed a potential liability.

(iii) In any event, the summary conviction appeal court judge correctly concluded that the admission of the impugned evidence would not bring the administration of justice into disrepute.

[28] There is no issue between the parties that the sheriff’s officers entered the apartment on the authority of a valid eviction order. The Crown, therefore, submits that the execution of the eviction order objectively diminishes the appellant’s expectation of privacy in his apartment. The sheriff’s officers were obliged to walk through the apartment to ensure that it was vacant before turning the premises over to the landlord. The discovery of the gun cases was a product of that exercise and prompted the landlord and sheriff’s officers to call the police.

[29] According to counsel for the Crown, the police officers had the implied consent of the landlord to enter what was a repossessed apartment. The police entry was therefore not unreasonable.

[30] Under s. 42 of the Tenant Protection Act, a landlord must store the personal property of an evicted tenant at a proximate location for a period of 48 hours to give the tenant an opportunity to collect his belongings. From this, the Crown reasons that in carrying out his obligation to take an inventory of the evicted tenant’s personal property, he would be entitled to open the gun cases. In these circumstances, the appellant would have a diminished expectation of privacy in the contents of the gun cases.

[31] The police in opening the gun cases did so with the landlord’s implied consent. When they discovered the guns, they closed up the cases and took appropriate steps to obtain a search warrant.

[32] In the alternative, counsel for the Crown argues that the police were justified in opening the gun cases on the basis of exigent circumstances although he concedes that the Superior Court judge’s conclusion in this regard was “perhaps generous[s]”. In oral argument, counsel for the Crown said he preferred the description “pressing circumstances” rather than “exigent circumstances”.

[33] Crown counsel submits that the police had been called to the apartment of an evicted tenant to deal with a situation involving what appeared to be firearms. The uncertainty of what was in the gun cases raised a concern for safety. To address the concern for safety, the police officers were justified in opening the cases. When they discovered the guns, they closed the cases, secured the premises and took steps to obtain a search warrant. However, the Crown concedes that before the police opened the cases, they did not have a basis to apply for a search warrant and were not then engaged in a criminal investigation.

[34] Finally, the Crown submits that if there was a breach of s. 8, the evidence should not be excluded under s. 24(2) of the Charter.

ANALYSIS

(i) The Law

[35] There does not appear to be any case of this court or the Supreme Court of Canada directly on point. Similarly, we were not cited any authority from other provincial appellate courts that addressed these circumstances. The two most relevant cases appear to be R. v. Mercer (1992), 1992 CanLII 7729 (ON CA), 7 O.R. (3d) 9 (C.A.) and R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631.

[36] In Mercer, a hotel maid entered a suite with a “Do Not Disturb” sign on the door for the purposes of cleaning the suite. When looking into a closet for a missing pillow, she found a pillowcase containing a large sum of money. The manager was called to the suite. He observed the money and a brown, waxy block. The police were called. When the police arrived, they looked into the pillowcase and found $6,900 and what they believed was a block of cannabis resin. The money and block of cannabis resin were placed back in the closet with the intention of getting a search warrant. When the appellants returned to their suite, they were arrested.

[37] Arbour J.A., writing for the court, found that there was a breach of s. 8. She concluded at p. 15 that there was a reasonable expectation of privacy in a rented hotel suite:

I am not persuaded that hotel guests’ awareness that cleaning staff will enter their rooms at least daily removes the reasonable expectation of privacy. Objects not left in plain view or stored in areas which do not require daily maintenance, such as inside drawers, closets, toiletry bags, briefcases and suitcases, can be reasonably expected to remain private despite access to the room by hotel staff for cleaning purposes.

[38] The police officers justified their actions on the basis that they entered the suite and searched the closet with the hotel manager’s consent. Arbour J.A. addressed the issue of consent as follows at p. 16:

[I]t is, in my view, more useful in the Charter context to determine whether, in the particular circumstances of a case, the consent given by a third party, which led to an invasion of the suspect’s privacy by agents of the state, was an acceptable substitute for the absence of prior judicial authorization.

[39] Arbour J.A. concluded at p. 19 that there was no issue of urgency as follows:

There was no urgency compelling a warrantless search in this case. The purpose of the entry by the police was to verify the hotel manager’s suspicion that something illegal had taken place in the room. The respondent conceded that the police could not have obtained a search warrant because they had insufficient grounds. In such a case, the avenues open to law enforcement authorities are to continue to investigate by methods less intrusive than a search and to seek to obtain a search warrant should the proper grounds upon which to do so materialize.

[40] After doing a s. 24(2) analysis, the court did not exclude the evidence.

[41] In Buhay, marijuana, rolled in a sleeping bag, was left in a bus terminal locker. Security guards reported that they smelled the odour of marijuana emanating from the locker and advised the bus line. A bus line employee opened the locker and the security guards found the marijuana. They returned the sleeping bag and marijuana to the locker and called the police. When the police arrived, they also smelled the marijuana and the bus employee opened the locker. The police seized the marijuana. The appellant, who rented the locker, was arrested.

[42] By the time Buhay found its way to the Supreme Court, Arbour J. was on the court and wrote the reasons for judgment. She held that the appellant had a reasonable expectation of privacy in the rented locker, stating at para. 21:

The appellant had control and possession of the locker’s contents through possession of the key. Although he did not own the locker, and although it remained the property of the bus companies, the appellant did pay the required fee to rent the locker for his exclusive use for a particular period of time. Through the use of a key, the appellant had ability to regulate access to the locker for the rental period. Moreover, the signs on the lockers made no mention of the possibility that they might be opened and searched. The key holder would, in my view, have a subjective expectation of privacy and this expectation is objectively reasonable. Indeed, generally, the purpose for renting a locker in such a location is to secure one’s belongings against theft, damage, or even the simple curiosity of others. A reasonable person would expect that his or her private belongings, when secured in a locker that he or she has paid money to rent, will be left alone, unless the contents appeared to pose a threat to the security of the bus depot.

[43] The court concluded in Buhay that the initial search by the security guards did not infringe s. 8, because they were not agents of the state. However, the opening of the locker by the police and the taking of the contents constituted a search and seizure – the intervention of the guards did not destroy the reasonable expectation of privacy. The search was unreasonable; there were no exigent circumstances and the search was not authorized by law. The “plain view” doctrine was inapplicable, as without a warrant, the police could lawfully enter the bus station but not the locker itself.

[44] Arbour J. upheld the trial judge’s decision to exclude the evidence under s. 24(2) of the Charter.

[45] I now turn to the case at bar.

(ii) Did the appellant have a reasonable expectation of privacy in the apartment?

[46] There was an agreement in writing between the appellant’s girlfriend (who was the tenant) and the landlord that the landlord would not enforce the eviction order if the rent was paid in accordance with a payment schedule. The trial judge found that the appellant had an honest belief that the eviction order would not be executed.

[47] The execution of the eviction order was the result of mistaken instructions given to the sheriff’s officers by the landlord. In these circumstances, it seems to me that the appellant continued to have an expectation of privacy in respect of the apartment, which was objectively reasonable.

[48] In my view, the execution of the eviction order on the inadvertent and mistaken instructions of the landlord cannot diminish the expectation of privacy of the appellant in the apartment, which was his home. The fact that no steps had been taken to rescind the eviction order does not change the analysis. The landlord had undertaken not to take steps to execute the order as long as the rent was paid.

(iii) Did the appellant have a reasonable expectation of privacy in the gun cases?

[49] The appellant retained his interest and privacy expectations in his personal property stored in his apartment. Assuming that the landlord were acting under a valid eviction order, his building superintendent was under an obligation to keep the appellant’s belongings in a nearby place for 48 hours to permit the appellant to claim them. In so doing, the landlord was required to respect the appellant’s privacy interest in his personal property. If the landlord had a duty to make an inventory of the appellant’s property, such a duty did not require the landlord to open the gun cases. A simple notation of “two gun cases” would have been sufficient.

[50] The Crown argues that R. v. Wint (2009), 2009 ONCA 52, 93 O.R. (3d) 514 (C.A.), in which an inventory search by police of an impounded car did not violate s. 8, is analogous. In Wint, this court held at para. 15 that for inventory searches to be meaningful, the police “must be able to search and itemize the contents of objects such as purses, wallets and bags like the one observed in this case, to determine their contents.” In my view, the privacy interest in the contents of an apartment home after an eviction are different and much greater than that in the contents of an impounded car, and the custodial role of the landlord is qualitatively different than that of the police. In any event the circumstances in this case, given the landlord’s breach of the agreement not to proceed with the eviction process, are very different.

[51] The Superior Court judge appeared to rely on, and the Crown advocates, the “plain view” doctrine because the gun cases were located in a room of the apartment where they could be readily observed – thus reducing the expectation of privacy. While the gun cases were in plain view, the guns were not and I do not agree that the plain view doctrine is of assistance.

[52] I am satisfied that the appellant had both a subjective expectation and an objectively reasonable expectation of privacy in the gun cases.

[53] I now turn to the question of whether the conduct of either the sheriff’s officers or police officers constituted a breach of the appellant’s s. 8 rights.

(iv) The Sheriff’s Officers

[54] I agree with the submissions of the appellant that the sheriff’s officers are state actors and their conduct is subject to Charter scrutiny. That said, I do not find anything in their conduct which constitutes a breach of the appellant’s s. 8 rights. The sheriff’s officers were carrying out their statutory duties pursuant to an eviction order that was valid on its face. Their role was to return the vacant premises to the landlord and it was within their authority to walk through the apartment and to check for people or animals. The sheriff’s officers were not engaged in a criminal investigation and, more importantly, they did not open the gun cases. There was no unlawful search by the sheriff’s officers.

(v) The Police Officers

[55] The trial judge and the Superior Court judge found justification for the conduct of the police in s. 141(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43:

A sheriff who believes that the execution of an order may give rise to a breach of the peace may require a police officer to accompany the sheriff and assist in the execution of the order.

The trial judge said that “[t]he police had a statutory obligation to assist the sheriff in matters concerning the potential breach of the peace, which includes public safety.” The Superior Court judge accepted this conclusion. Also, the Superior Court judge found that, “exigent circumstances justified the entry by the police, the opening of the gun cases and the securing of the premises as they did, prior to obtaining the warrant.”

[56] I disagree. There were no exigent circumstances and, in particular, no threat of a breach of the peace. There was no serious safety issue. When the sheriff’s officers and later the police arrived, neither the appellant nor his girlfriend were in the apartment. Once the locks had been changed, the appellant could not access the gun cases. The safety concern, if any, was not genuine and immediate. The safety concern of the sheriff’s officers, as found by the trial judge, was sufficient to explain why the police were consulted, but was not grounds for the police to open the cases. To the extent that the police were acting pursuant to their common law duty to preserve the peace and prevent crime, in the circumstances – particularly the absence of any urgency – this common law duty does not excuse the police from their obligations under the Charter.

[57] The landlord could not authorize the police to open the gun cases. Neither express nor implied consent of the landlord justified the police in opening the gun cases. The landlord could allow the police to enter the apartment and look around and while the gun cases were in plain view, the contents of the gun cases were not. As indicated, the Crown concedes that, at that point, the police had no basis to obtain a search warrant. The distinction has to be made between the right to be present and the right to search. The police had the former, but not the latter. I repeat what Arbour J. said in Mercer at p. 19:

The respondent conceded that the police could not have obtained a search warrant because they had insufficient grounds. In such a case, the avenues open to law enforcement authorities are to continue to investigate by methods less intrusive than a search and to seek to obtain a search warrant should the proper grounds upon which to do so materialize.

[58] I conclude that the conduct of the police officers in opening the gun cases constituted a breach of s. 8.

[59] The appellant also argues that the police remaining in the apartment for several hours pending the arrival of the warrant was a “further search and ongoing breach”. I do not agree. The mere presence of the police in the apartment, including any plain view observations of the appellant’s other belongings, did not constitute a breach of s. 8.

(vi) Should the evidence be excluded under s. 24(2) of the Charter?

[60] The first factor for consideration, in accordance with the Supreme Court’s direction in Grant, is the seriousness of the Charter-infringing state conduct. The Crown submits that the police acted in good faith. However, the fact remains that the appellant was subject to the entry to his home by police, at the behest of a landlord who had agreed not to engage the eviction process. While that conduct cannot be laid at the feet of either the sheriff’s officers or the police, the subsequent conduct of searching the gun cases by the police was without any lawful authority. The police did not have the basis for obtaining a search warrant before opening the gun cases and there were simply no exigent or pressing circumstances to justify their acting as they did. In my view, this conduct weighs in favour of excluding the evidence.

[61] The second Grant factor is the impact on the Charter protected interests of the appellant. The appellant enjoys a very high expectation of privacy in his home and in his personal property kept in his home. The second factor favours exclusion.

[62] The final Grant factor is society’s interest in an adjudication on the merits. The evidence here is both reliable and critical to the prosecution’s case. Counsel for the Crown appropriately argues that “[g]enerally speaking, firearms related offences are serious”. While this court has often clearly stated that gun crime is very serious, it is usually in reference to gun violence. Gun safety is clearly very important, but the offences of careless storage of firearms and ammunition are far less serious than violent crimes involving guns. The less serious character of these offences is reflected in the appellant’s sentence, which was a suspended sentence and twelve months probation. That said, the third factor does favour the admission of the evidence.

[63] It is then necessary to balance the three factors – two in favour of exclusion and one in opposition to exclusion. I conclude that the privacy interest of the appellant in the circumstances of this case is paramount and I would exclude the evidence.

DISPOSITION

[64] For the above reasons, I would grant leave to appeal, allow the appeal and set aside the convictions and enter verdicts of not guilty on each of the charges.

RELEASED:

“JL” “Robert P. Armstrong J.A.”

“JUL 12 2011” “I agree John Laskin J.A.”

“I agree K. Feldman J.A.”