Court of Appeal for Ontario

Citation: R. v. Stevens, 2012 ONCA 307

Date: 20120514

Docket: C48927

Before: Weiler, Simmons and Cronk JJ.A.

Between

Her Majesty the Queen

Respondent

and

Bob Stevens

Appellant

Counsel:

Louis P. Strezos and Shannon S.W. O'Connor, as Duty Counsel

James K. Stewart, for the respondent

Heard: April 16 and 17, 2012

On appeal from the conviction entered on April 18, 2008 by Justice Feroza Bhabha of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant appeals his conviction for unauthorized possession of a firearm, careless handling of a firearm and failure to comply with a condition of his recognizance.

[2] The background facts giving rise to this appeal are that a confidential informant told police that the appellant was a drug dealer and that he kept a handgun and ammunition at his residence. The Information To Obtain (ITO) that was drafted by the officers observing the appellant’s home was used to obtain a search telewarrant.

[3] A “stealth search” was executed in the middle of the night. As police were at the door and moments before they entered the residence three officers outside saw someone throw an item inside of a white sock out the window. The item landed in an adjacent yard. It was found to be a semi-automatic firearm.

[4] The appellant was the sole occupant of the residence. No other drugs or weapons were found inside.

[5] As the ITO contained some significant errors, the main issue at trial was the validity of the search warrant and therefore the search. The trial judge declined to determine the validity of the warrant. She held that the gun was discarded into an area where the appellant had no reasonable expectation of privacy and that he had abandoned it.

[6] The trial judge further held that the gun was discovered independently of the warrant. Notwithstanding her conclusion that the gun was lawfully seized by police and that there was no violation of the appellant’s s. 8 Charter rights, the trial judge proceeded to engage in a s. 24(2) Charter analysis and, using the Collins test (in place at the time), would have admitted the evidence.

[7] On appeal, the main argument put forward by amicus is that, because the trial judge declined to determine the validity of the search warrant, this court is not in a position to determine whether the appellant’s Charter rights were breached and a new trial is required. A determination of the validity of the search warrant in light of the errors in the ITO was essential. The question of abandonment of the gun could not be properly decided without first determining whether the appellant’s Charter rights had been infringed.

[8] We disagree. In the factual circumstances here, the trial judge was not required to determine the legality of the search. In order to engage a person’s rights under s. 8 of the Charter, that person must first establish a reasonable expectation of privacy: see R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at paras. 33 and 39. Having thrown the handgun out the window into a neighbour’s yard, the appellant no longer had any reasonable expectation of privacy respecting the gun. He no longer had possession or control over the gun; instead, he attempted to divest himself of possession or control of it. Indeed, he gave up the ability to regulate access to it when he threw it away. Furthermore, he offered no evidence of any subjective expectation of privacy in it. The absence of these factors was sufficient for this court to hold that the accused’s s. 8 rights were not engaged in R. v. Nesbeth, 2008 ONCA 579, [2008] O.J. No. 3086 (C.A.) at para. 22, leave to appeal to the S.C.C. refused, [2009] S.C.C.A. No. 10. See also R. v. L.B., 2007 ONCA 596, [2007] O.J. No. 3290; and R. v. Plummer, 2011 ONCA 350, [2011] O.J. No. 2034 (C.A.).

[9] Usually, it is only after the appellant has established a reasonable expectation of privacy and the court is considering whether the search was an unreasonable intrusion on that right to privacy that there is a need to consider the reasonableness of the search and whether there has been police misconduct: Edwards, supra. Here, as the trial judge had correctly held that the gun had been abandoned, s. 8 was not engaged, and the trial judge was not obliged to consider the validity of the telewarrant or the legality of the police search.

[10] Having regard to this conclusion, it is unnecessary for us to address the balance of the arguments put forward by amicus as they all relate to the legality of the search (e.g. whether the trial judge erred in holding there was no cognizable legal nexus between the execution of the warrant and the seizure of the firearm and whether the validity of the ITO and therefore the search warrant would have had a bearing on the issues whether the police acted in good faith for the purpose of a s. 24(2) analysis).

[11] The grounds of appeal in the appellant’s notice of appeal were not pursued before us and, in any event, having regard to our conclusion it is unnecessary for us to deal with them.

[12] The appeal is dismissed.

“Karen M. Weiler J.A.”

“Janet Simmons J.A.”

“E.A. Cronk J.A.”