COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Johnson, 2013 ONCA 177

DATE: 20130325

DOCKET: C52362 and C52826

Doherty and Epstein JJ.A. and Cavarzan J. (ad hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

Patrick Johnson

Appellant

Patrick Johnson, acting in person on the conviction appeal

Russell Silverstein, as duty counsel on the conviction appeal

Chris Dwornikiewicz, for the respondent on the conviction appeal

Susan L. Pennypacker, for the appellant on the sentence appeal

Holly Loubert, for the respondent on the sentence appeal

Heard: October 23, 2012 (conviction appeal) and October 25, 2012 (sentence appeal)

On appeal from the conviction entered by Justice Frank N. Marrocco of the Superior Court of Justice on February 2, 2010, and from the sentence imposed on June 1, 2010, with reasons reported at 2010 ONSC 1490 and 2010 ONSC 3213.

Epstein J.A.:

[1] Patrick Johnson was a passenger in a Chevrolet Cobalt that was stopped by police on a summer day in the Regent Park area of Toronto. The police stopped the car as a result of some unusual driving activity. Johnson was sitting alone in the backseat. There was another passenger in the front.

[2] One officer, Constable MacArthur, was preparing tickets for various violations of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). In the meantime, another officer, Constable Dury, directed Johnson to put his hands on the back of the seat in front of him. Dury then asked Johnson for his name and date of birth. The officer requested this information in order to run Johnson’s name through the Canadian Police Information Centre (the “CPIC”). The check yielded nothing of note.

[3] While MacArthur was finalizing the HTA documentation, Dury noticed the butt end of a handgun protruding from a knapsack that was on the seat beside Johnson. Dury retrieved the knapsack and discovered a loaded semi-automatic handgun tucked inside. Johnson was arrested for weapons offences and was advised of his rights to counsel.

[4] Johnson brought a Charter application at the outset of his trial, alleging several violations of various constitutionally-protected rights. The trial judge dismissed Johnson’s Charter arguments and admitted the gun into evidence. Johnson conceded that, with the admission of the gun, the Crown had made out its case against him on all charges and offered no defence. Johnson was therefore convicted of possessing a loaded prohibited or restricted firearm, possession of a loaded firearm knowing he was not licensed, three counts of possession of a firearm while prohibited by three separate s. 109 orders, and breach of a probation order term prohibiting him from possessing a firearm. He received a total sentence of nine years in prison.

[5] Johnson appeals from conviction on the basis that his rights under ss. 8, 9 and 10(b) of the Charter of Rights and Freedoms were breached and that the gun should have been excluded from evidence. Johnson’s sentence appeal focuses on his argument that the trial judge failed to properly consider Johnson’s Aboriginal status in determining his sentence.

[6] I would dismiss the conviction appeal. There was no violation of s. 9 or s. 10(b). Even if Johnson`s s. 8 rights were breached, in my view, the gun was nevertheless properly admitted.

[7] With respect to the sentence appeal, I would give Johnson leave to appeal his sentence but dismiss the sentence appeal.

I. The Facts

[8] On July 24, 2008, Toronto Police Constables Dury, MacArthur, Ponzi and Sommer, and Sergeant Spanton were on duty in Regent Park. They were accompanied by a Toronto Sun newspaper reporter who was interested in the Toronto Anti-violence Initiative Strategy (“TAVIS”) and its effect in Regent Park. Constables Dury and MacArthur had been assigned to TAVIS policing that summer. Their responsibility was to provide high-visibility uniform policing in an effort to improve the quality of life for the residents of Regent Park and to encourage communication between members of the community and the police.

[9] MacArthur and Dury, in a marked police car driven by MacArthur, drove to 605 Whiteside Pl., located in South Regent Park. The others, including the reporter, followed in separate cars. The reporter was in Sergeant Spanton’s car. The driveway leading into 605 Whiteside Pl. is U-shaped. It opens onto Dundas Street East at two places.

[10] MacArthur testified that he saw a Chevrolet Cobalt travelling eastbound on Dundas Street. For no obvious reason, the car stopped for about five seconds at the western-most entrance to the driveway. The car was stopped partially in a traffic lane and partially on the boulevard. A car behind the Cobalt was forced to drive around it and enter 605 Whiteside Pl. from the more easterly driveway entrance. MacArthur testified that when he saw this, he made a U-turn. As he did this, the Cobalt turned into the driveway at 605 Whiteside Pl.

[11] Dury did not notice anything unusual about the way the Cobalt was being driven. However, he did testify that he saw the driver of the car make a sharp turn into the driveway at 605 Whiteside Pl. with the result that the rear of the vehicle was blocking the driveway. As the Cobalt was slowing to a stop, Dury heard the passenger in the backseat of the car yell "Southside" (which Dury understood to refer to the south side of Regent Park, south of Dundas). MacArthur testified that he told Dury that he was going to stop the Cobalt, but Dury did not recall this comment. Rather, Dury testified that he said to MacArthur something to the effect of "let's talk to these fellows".

[12] The officers pulled alongside the Cobalt, which was moving slowly at the bottom of the U in the driveway, and asked the driver to stop. The officers did not activate their lights or siren. Dury did not command the driver to stop. He said something to the effect of "hello would you mind stopping the car". The police pulled up beside the Cobalt after it came to a halt.

[13] Both MacArthur and Dury got out of the police car and Dury approached the driver, Bradley Jarvis. When asked for his driver's licence, Jarvis replied that he held a G1 licence but he did not have it with him. The person in the passenger seat beside him was also not a fully licensed driver. MacArthur was behind Dury while this conversation took place. MacArthur was junior to Dury, but had more recent experience with motor vehicle work and therefore took over the traffic investigation at this point.

[14] Soon after MacArthur and Dury pulled over the vehicle, Sergeant Spanton arrived with the reporter.

[15] Dury was waiting for MacArthur to write up the traffic tickets when he started talking to the passenger in the back seat of the Cobalt. The conversation was cordial, polite and respectful on both sides.

[16] At the outset of this exchange, Dury directed Johnson to keep his hands on the back of the driver seat where he could see them. Dury testified that he was curious about the reason Johnson had yelled "Southside" but did not ask him about it. MacArthur performed a CPIC search on Jarvis. The search confirmed that Jarvis held a G1 licence. MacArthur asked Jarvis to step away from the car and told him that he was going to issue three provincial offence notices to him for violations of the HTA – driver unaccompanied, failure to surrender a licence and having no current tag on his licence plate.

[17] At Dury’s request, the passenger identified himself as Patrick Johnson and provided Dury with his date of birth. Dury asked Johnson where he lived, and Johnson gave an address in Barrie. Johnson advised that, while he had no identification, he did have a puffer with his name on it. However, he could not find the puffer. Dury told him not to worry about it. Dury gave Johnson a contact card for the TAVIS project.

[18] Dury gave MacArthur Johnson’s name and date of birth to enable a CPIC check. The results were inconsequential.

[19] In the meantime, Constables Sommer and Ponzi arrived. The two additional officers and Dury stood talking among themselves outside the Cobalt in which Johnson remained, as directed, with his hands on the back of seat in front of him. Dury then noticed the end of a gun sticking out from a Spiderman backpack on the seat next to Johnson. Dury reached into the car and took the bag. In it he found some items belonging to Johnson including his inhaler with his name and date of birth on it, and a loaded semi-automatic handgun. Dury arrested Johnson and gave him his rights to counsel.

II. Judgment Below

[20] Johnson challenged the admissibility of the gun based on arguments that his rights under ss. 8, 9 and 10(b) had been breached. He proceeded on the basis of the evidence given at the preliminary inquiry, the transcript of which was filed. Johnson had not testified at his preliminary inquiry.

[21] The trial judge dismissed the application. He held that Johnson had not been detained and accordingly his Charter rights had not been violated.

[22] The trial judge found that the interaction between the police and Johnson was cordial. Requiring Johnson to put his hands on the top of the car seat in front of him during this period of time was a routine act to protect the safety of officers. A reasonable person informed of all the circumstances would understand that the officer was taking a safety precaution in an area of the city that, according to the evidence, regularly experienced a spike in violence in the summer months. Further, the extended amount of time Johnson was required to assume the position directed by Dury was due to the time it took for the three HTA infractions to be documented.

[23] The trial judge found that the car in which Johnson was a passenger was lawfully stopped by police. The police had two sets of interests in stopping the car: the first being the HTA offences, and the second being Dury’s curiosity as to why Johnson had yelled out "Southside" to people at the playground at 605 Whiteside Pl. Relying on Brown v. Durham (Regional Municipality) Police Force (1998), 1998 CanLII 7198 (ON CA), 43 O.R. (3d) 223 (C.A.), the trial judge held that a lawful police interest beyond highway safety concerns did not taint the lawfulness of the stop.

[24] The trial judge held that while the CPIC check of Johnson was an unlawful search, the search did not turn the delay into a detention. Moreover, the search did not lead to the finding of the handgun. Finally, the search did not result in any additional police interest in Johnson.

[25] The trial judge found that the interaction between Dury and Johnson amounted to a brief conversation while Johnson was sitting in the car waiting for the HTA paperwork to be completed. He reasoned that while Johnson’s movements were temporarily restricted by the officer, the police are permitted to detain someone briefly to allow them to make a quick assessment of the situation before it can be said that a person is detained within the meaning of s. 9 of the Charter: see R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460.

[26] According to the trial judge, Johnson did not establish that he was detained.

[27] While the trial judge found that Johnson was not detained, he did, as previously noted, find that the police questioning of Johnson was an unlawful search in breach of his s. 8 rights. The trial judge therefore proceeded to consider s. 24(2). In concluding that the evidence should not be excluded, the trial judge noted that:

• The conduct alleged to amount to a Charter infringement – the questioning – did not lead to the discovery of the gun.

• If Johnson was detained, it was pursuant to a lawful HTA investigation.

• The police treated Johnson with respect and at all times were acting in good faith.

• The handgun was discovered in plain view.

• There was a low expectation of privacy given Johnson was a passenger in a car he did not own, and the gun was found in a knapsack he did not own.

• The delay was brief and in daylight. There were no racial factors in play.

• The presence of the reporter and his taking pictures of Johnson at the scene did heighten the impact of the detention.

• The gun was highly reliable evidence critical to the Crown’s case.

[28] The trial judge, relying on the guidance provided by 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, concluded that even if Johnson had been detained, the evidence should not be excluded. He reasoned that although the impact on Johnson’s Charter-protected interests pointed toward exclusion, the nature of the state conduct and society's interest in an adjudication on the merits militated strongly in favour of admitting the evidence. The trial judge further concluded that the exclusion of reliable evidence crucial to the Crown’s case in circumstances where the police acted appropriately, viewed reasonably and from a long-term perspective, would have a negative effect on the repute of the administration of justice: see R. v. Blake, 2010 ONCA 1, 257 O.A.C. 346, at para. 31.

[29] The trial judge therefore admitted the gun into evidence. Johnson conceded that the admission of the gun meant that the Crown had made out the elements of the offence. Johnson was therefore found guilty on all counts.

III. Analysis

(a) Was Johnson detained when asked to put his hands on the back of the seat in front of him?

[30] A person can be restrained physically or psychologically. Either amounts to detention: see R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214, at para. 17. If a person obeys a police command on the basis that he or she believes there is no alternative, that person is detained for the purposes of ss. 9 and 10 of the Charter: see Grant, at para. 25; R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, at p. 505.

[31] The controlling authority on the issue of whether an individual is detained for s. 9 purposes can be found in the Supreme Court’s trilogy in Grant, Harrison and Suberu.

[32] Grant involved the investigative detention of a pedestrian told to keep his hands in front of him. The Supreme Court held, at para. 51, that the order was “in itself inconclusive”. The court considered it necessary to have regard to the entire context of what happened, because asking someone to put his hands in front of him “might be insufficient to indicate detention, on the ground that it was simply a precautionary directive” (at para. 48). The court noted that that there are real risks involved in street policing against which officers are entitled to protect themselves. Nonetheless, having regard to the circumstances, it held that “[t]he sustained and restrictive tenor of the conduct after the direction to Mr. Grant to keep his hands in front of him reasonably supports the conclusion that the officers were putting him under their control and depriving him of his choice as to how to respond” (at para. 51).

[33] The court took the opportunity in Grant, at para. 44, to provide a non-exclusive list of factors that may be used in determining whether an individual was psychologically detained, as follows:

a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[34] The interesting issue of whether passengers in cars that have been stopped by the police are detained has been considered in a number of cases. In Harris, at paras. 18-19, Doherty J.A. left open the possibility that upon an HTA stop, the driver and the passengers are immediately and automatically detained. Some courts have been of the same view (see e.g. R. v. Pinto, [2003] O.T.C. 1095 (S.C.), at para. 45; R. v. J.R.M., [2005] O.J. No. 4708 (S.C.), at para. 17), while others have held that something more was necessary before it could be said that a passenger in such circumstances was detained (see e.g. R. v. Frank, 2012 ONSC 6274, at para. 46; R. v. Bradley, 2008 NSCA 57, 266 N.S.R. (2d) 126, at para. 16). In Harris, Doherty J.A. declined to decide this issue, instead resolving the case based on the general fact-specific approach to determining detention.

[35] Here, the trial judge proceeded on the basis that passengers are not automatically detained upon an HTA stop. In considering the issue of detention, the trial judge focussed on Dury’s direction to Johnson to keep his hands on the back of the seat in front of him. As in Harris, given my conclusion on this issue, I find it unnecessary to decide the broader question of whether passengers are automatically detained upon an HTA stop.

[36] At para. 23, the trial judge stated:

Constable Dury asked Mr. Johnson to keep his hands on the back of the driver's seat so that he could see them. This type of routine concern for police officer safety, objectively viewed, does not result in a finding of detention. A reasonable person informed of all the circumstances would understand that the officer is taking a routine safety precaution in an area of the city that, according to the evidence in this case, historically saw a spike in violence in the summer months.

[37] It is clear that determining whether an individual is psychologically detained must be based on a broad consideration of many circumstances relevant to the interaction between the police and the individual who is asserting that he was detained. The difficulty I have with the trial judge’s analysis is that his consideration of the issue of detention was limited: he focussed almost exclusively on the police perspective of the consequences of Dury’s direction to Johnson.

[38] According to Grant the perspective must be broader, taking into account factors including the circumstances giving rise to the encounter with the police, the conduct of the police and the circumstances and conduct of the individual claiming to be detained.

[39] According to Grant at para. 51, asking a person to keep his hands in front of him was, “in itself inconclusive”. But, here, other factors were in play. Significantly, Johnson was not merely asked to keep his hands visible; he was directed to put his hands on the seat in front him – in a fixed place. It was clear that Johnson could not obey Dury’s command to keep his hands on the seat and at the same time, open the car door, get out and walk away. Johnson was effectively instructed to stay put.

[40] The facts of this case are similar to those in Harris. In that case, Doherty J.A. held that a passenger in a car stopped for HTA reasons was under psychological constraint, at the very least from the point in time when the demand was made that he keep his hands in plain view, if not when the driver of the car was told to stop.

[41] I conclude therefore that, viewed objectively, Johnson would reasonably believe that he was not free to move his hands off the seat in front of him. Johnson would reasonably believe he was not free to get out of the car and walk away. Indeed, Johnson would almost undoubtedly have aroused the police officers’ suspicions had he tried to leave, since that would necessarily involve disobeying Dury’s direction to keep his hands on the seat. It follows that Johnson was under psychological restraint at least from the point when Dury ordered him to keep his hands on the car seat in front of him.

(b) Was the detention arbitrary? Was there a breach of Johnson’s s. 10(b) rights?

[42] I have reviewed the able submissions of duty counsel. I agree with the trial judge that there was no breach of Johnson’s s. 9 and s. 10(b) rights. Officer safety is a valid reason to take reasonable steps to control the vehicle. It is well-established that lawful detention arising out of an HTA matter does not engage a person’s rights set out in s. 10(b) of the Charter: see Harris, at para. 48.

(c) Were Johnson’s s. 8 Charter rights violated?

[43] Johnson was detained at the time Dury, without lawful authority, asked him for information necessary to conduct a CPIC check. Before this court the request was treated as a violation of Johnson’s rights under s. 8 of the Charter. As a result, for the purposes of this appeal, I will proceed on the basis that Johnson’s s. 8 rights were breached: see Harris, at para. 34.

(d) Should the gun have been excluded under s. 24(2)?

[44] Although the trial judge found no Charter breach, he still conducted a s. 24(2) analysis. As I am proceeding on the basis of a breach of s. 8, it is appropriate that I conduct a new assessment of the admissibility of the gun under s. 24(2) of the Charter: see Grant, at paras. 265-66.

[45] Before a s. 24(2) analysis is necessary, the court must consider whether the evidence was “obtained in a manner” that violated Johnson’s Charter rights: see Grant, at para. 171. However, as previously noted, it is not the improperly seized information that Johnson alleges the trial judge erred in admitting - it is the gun. In this case, the causal link between the Charter breach and discovery of the gun is tenuous. However, this lack of a causal link is not dispositive of the “obtained in the manner” requirement.

[46] In R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at para. 40, the Supreme Court cautioned that requiring a causal link “leads to a narrow view of the relationship between a Charter violation and the discovery of evidence.” Consequently, in R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463, at para. 40, the Supreme Court held that a “temporal connection [between the breach and the discovery of evidence] may be so strong that the Charter breach is an integral part of a single transaction. In that case, a causal connection that is weak or even absent will be of no importance.”

[47] The court gave the example of R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223. In that case, the police conducted unconstitutional warrantless perimeter searches, and included information derived from those searches in a warrant application. Even though the warrant could have been issued without the illegally-obtained information, the authorized searches were “tainted by illegal warrantless searches which formed an integral part of a single investigatory transaction”: Goldhart, at para. 39.

[48] In my view, in this case, it is not realistic to view the search as severable from the discovery of the gun. The temporal connection between the Charter breach and the discovery of the evidence was sufficiently strong so as to form a single investigatory transaction. Therefore, notwithstanding the tenuous nature of any causal connection, I would undertake the full 24(2) analysis so that the impact of the Charter breach on the repute of the administration of justice can be properly considered.

[49] It therefore falls on this court to determine whether the evidence should be excluded. In Grant, at para. 71, the Supreme Court affirmed that the ultimate consideration under s. 24(2) is “whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.” In coming to this determination, the Supreme Court held that a court must balance three factors: 1) the seriousness of the Charter-infringing state conduct, 2) the impact of the breach on the Charter-protected interests of the accused, and 3) society’s interest in the adjudication of the case on its merits.

[50] Concerning the state conduct, Dury’s decision to run a CPIC check out of curiosity does demonstrate a certain casual attitude towards Charter values and tends to make the violation more serious. However, examining the entire interaction leads me to the conclusion that the police misconduct in this case is closer to a good faith error than a blatant disregard for constitutional rights. The unlawful search was a minor part of what was, for the most part, a valid HTA investigation. Dury asked for Johnson’s name in the course of a polite conversation while securing the car, with no evidence of any intention to disregard Johnson’s rights.

[51] On the whole, a consideration of the first Grant factor favours admission of the evidence.

[52] On the second Grant factor, the impact of the breach in this case was not trivial and tends toward exclusion of the evidence. By asking Johnson his name and running a CPIC check, the police conducted an invasive unwarranted search into private personal information: see Harris, at para. 63. However, the handgun was discovered in plain view by police acting within the scope of their lawful investigative powers. The gun would inevitably have been discovered apart entirely from the questioning of Johnson. These considerations mitigate the seriousness of the impact of the breach on the Johnson’s privacy right.

[53] On the third Grant factor, society has a great interest in the adjudication of this case on the merits. The loaded handgun is highly reliable evidence that is essential to prosecuting a very serious offence of a nature that is of considerable public concern: see Blake, at para. 31. I note that the serial number of the gun had been obliterated, suggesting that Johnson did not have a lawful purpose in possessing it.

[54] While the breach in this case was not trivial, it does not rise to the level required for exclusion. On balance, the repute of the administration of justice would suffer by excluding this evidence. In my view, the gun was properly admitted. I would therefore dismiss the conviction appeal.

IV. Sentence Appeal

[55] When the events took place that formed the basis of the six weapons-related charges for which Johnson was convicted, Johnson was bound by several court orders pursuant to s. 109 of the Criminal Code and to a probation order that stipulated that he not possess any weapons. He had a prior conviction for possession of a firearm. As a result, Johnson was subject to an escalated mandatory minimum sentence of at least five years.

[56] The defence argued for a range of sentence between five to six and a half years. The Crown sought a global sentence of 12 years – ten years for the firearm possession offence and two years consecutive for the weapons prohibition offences. At the time of his conviction, Johnson had been in custody just over 22 months.

[57] The trial judge imposed a sentence of seven and a half years for the firearms offences and six months for each of the three weapons prohibition offences, to be served consecutively to the firearm possession offence and to one another. Johnson was also sentenced to six months for the breach of probation to be served concurrent to the sentence for the corresponding weapons prohibition offence. Johnson was given credit for 44 months of pre-trial custody.

[58] The two factors that necessarily dominated the determination of a fit sentence for Johnson was first that he was of Aboriginal descent and second, the seriousness of the offences and the corresponding mandatory minimum sentences of five years in the penitentiary that they attracted.

[59] Counsel for Johnson submits that the trial judge failed to pay “particular attention to the circumstances of Aboriginal offenders” as required by s. 718.2(e) of the Criminal Code. Specifically, rather than giving tangible consideration to Johnson’s Aboriginal origins, the trial judge focused on the seriousness of the offence, Johnson’s criminal record and the mandatory minimum. In effect, Johnson was treated just like any other offender.

[60] I do not agree.

[61] The sentencing reasons demonstrate that the trial judge was very much aware, from the submissions of counsel and from the comprehensive Gladue report, of Johnson’s Aboriginal background. He specifically commented on the fact that Johnson was significantly disadvantaged as a result of being born into an impoverished and abusive environment. The trial judge also, as required, considered the other applicable sentencing principles that apply to all offenders.

[62] Counsel for Johnson also argues that, given his Aboriginal status the starting point for the sentence, the sentencing floor, should be considered differently. Otherwise, the impact of Johnson’s Aboriginal status is unjustifiably watered down, if not totally eliminated.

[63] The difficulty I have with this submission is that there can be no denying that the five-year mandatory minimum applies to all cases, including those, such as this, where s. 718.2(e) of the Code applies.

[64] As pointed out in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 68-73, sentencing of all offenders, including Aboriginal offenders, is an individualized process. Section 718.2(e) must be addressed in all cases involving Aboriginal offenders. However, the considerations relevant to s. 718.2(e) must still have some connection to the offence and/or the offender before they will impact on the sentence. As explained in Ipeelee, at para. 83:

[65] Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. This is not to say that those factors need not be tied in some way to the particular offender and offence. Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence.

[66] As the trial judge correctly recognized, his sentencing options were restricted by the fact that Johnson faced a five-year minimum prison sentence. And it was against the background of this restriction that the trial judge was obliged to consider the circumstances of the offence and the offender, including his Aboriginal status. These circumstances included the fact that the crimes for which Johnson was being sentenced were serious as was his criminal record.

[67] The trial judge described the appropriate range as five to ten years. I see nothing wrong with this. As admitted by counsel for Johnson, this was not a case for the minimum sentence. The multiple aggravating factors, particularly the fact that Johnson was under several court orders prohibiting the possession of any firearm, demanded a sentence greater than the five-year minimum.

[68] The trial judge’s detailed reasons indicate that he appreciated that he had to consider Johnson’s Aboriginal background in affixing the appropriate sentence and that he did so. The sentence he imposed is entitled to deference.

[69] Like the trial judge, I would give Johnson credit for 44 months based on his pre-sentence custody. I would grant leave to appeal but dismiss the sentence appeal.

V. Disposition

[70] For these reasons, I would dismiss the appeal as to conviction. I would grant leave to appeal sentence and dismiss the sentence appeal.

“Gloria Epstein J.A.”

“I agree J. Cavarzan per GE. J.A.”

Doherty J.A. (Concurring):

[71] Like my colleague, I would dismiss the appeal.

[72] I see no reason to review the trial judge’s finding that the appellant was not detained. Even if there was a detention, it was not arbitrary and did not engage the rights in s. 10(b).

[73] The trial judge held that the questioning of the appellant by the police officer was an unlawful search. It would follow from that finding that the questioning breached the appellant’s s. 8 rights.

[74] Assuming that the questioning was a violation of s. 8, I agree with my colleague that there was a sufficient nexus between that breach and the discovery of the gun to engage the remedial powers in s. 24(2). I also agree with her analysis of the factors relevant to the admissibility of the handgun under s. 24(2). The trial judge did not err in refusing to exclude the gun from evidence.

[75] I would also dismiss the sentence appeal for the reasons given by my colleague.

RELEASED: “DD” “Doherty J.A.”

“MAR 25 2013”