Court of Appeal for Ontario

Citation: R. v. Wright, 2013 ONCA 778 Date: 2013-12-24 Docket: C56668

Before: Doherty, Feldman, MacPherson JJ.A.

Between: Her Majesty the Queen (Respondent) and Sylvanus Wright (Appellant)

Counsel: Matthew Gourlay and Christine Mainville, for the appellant Stacy Young, for the respondent

Heard: December 10, 2013

On appeal from the conviction entered on April 30, 2012 by Justice Lack of the Superior Court of Justice, sitting without a jury.

Endorsement

[1] The appellant appeals his convictions for possession of a weapon for a dangerous purpose (s. 88(1) of the Criminal Code, R.S.C. 1985, c. c-46), unauthorized possession of a firearm in a vehicle (s. 94(1)), and careless transport of a restricted weapon (s. 86(1)). The basis for the appeal is the trial judge’s rulings, first that the search of the trunk of the vehicle was not unreasonable and not contrary to s. 8 of the Canadian Charter of Rights and Freedoms and second, if the search was a breach of the appellant’s right against unreasonable search and seizure, that the weapon should be admitted into evidence under s. 24(2) of the Charter.

[2] The search took place under the following circumstances. On July 5, 2008 at around 1:00 a.m., wiretap officers informed Detective Jones that they had heard communications between the appellant and Emyries Lewis indicating that the appellant might have a firearm in one of two cars, a Honda or a Lexus. Detective Jones travelled to Oshawa, where around 2:00 a.m., having located the two cars in the parking lot of a club, he briefed officers in the vicinity of that parking lot. He told the officers he had reliable information that there was a firearm in one of two cars, which he described with their license plate numbers.

[3] Lack J. found that Detective Jones did not pass on the names of the two suspects, nor did he convey that the source of the information was a wiretap. Although he testified that he wanted the cars stopped and searched, the officers understood that they were to stop the two cars to try to determine if there was a firearm, but had no direct order to search.

[4] The Lexus, driven by Mr. Lewis, was stopped but eventually let go.

[5] Two other officers attended the Honda which had been stopped by two officers almost immediately after the Lexus was stopped. One officer smelled liquor on the breath of the driver, McLean, who was administered the screening test, registered a “warn” and received a 12-hour license suspension.

[6] The other officer checked the appellant’s identification and received information from the Toronto Police database that the appellant was considered “armed and dangerous”.

[7] As the appellant’s license was also suspended, he could not drive the car in McLean’s place. The appellant called his girlfriend to come but she could not. The police then told the two men that the car would have to be towed. At that point, the appellant’s demeanor changed from relaxed to very nervous. He made a point of saying the car was his girlfriend’s, he did not know what was in it and that nothing in it belonged to him. He disavowed ownership of the cell phones in the car and told McLean strongly, when McLean was going to take one, “that’s not yours”.

[8] The appellant’s demeanor and attitude changed once the car was going to be towed, and after one of the officers inadvertently opened the trunk when he hit the release button while taking the keys from the ignition. Based on that change in demeanor, the officers decided they had reasonable and probable grounds to search the vehicle. In the back of the trunk inside a black shoulder bag wrapped in some shirts the officers found a handgun. The officers never, however, considered whether there were exigent circumstances requiring an immediate search.

[9] The trial judge concluded, based on the totality of the circumstances, that the officers had reasonable and probable grounds to search the car. These included the reliable information about a gun from a superior officer and the appellant’s change in demeanor and attitude once the trunk was opened and the car was going to be towed to the police station.

[10] Section 117.02 of the Code allows a warrantless search for firearms in exigent circumstances. It provides:

117.02 (1) Where a peace officer believes on reasonable grounds

(a) that a weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of an offence, or

(b) that an offence is being committed, or has been committed, under any provision of this Act that involves, or the subject-matter of which is, a firearm, an imitation firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance,

and evidence of the offence is likely to be found on a person, in a vehicle or in any place or premises other than a dwelling-house, the peace officer may, where the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practicable to obtain a warrant, search, without warrant, the person, vehicle, place or premises, and seize any thing by means of or in relation to which that peace officer believes on reasonable grounds the offence is being committed or has been committed.

[11] The trial judge did not consider whether there were exigent circumstances that allowed the officers to search the trunk without a warrant.

[12] On appeal, the Crown argued that there were exigent circumstances because of the threat either to public or to police safety, from the fact there may have been a firearm in the car. The Crown also argued that the search was justified under the common law Waterfield doctrine (R v. Waterfield, [1963] 3 All E.R. 659) on the basis that once the police had control and responsibility for the vehicle, they had the power to examine its contents for personal or public safety.

[13] The problem with both of these arguments is that the appellant and McLean had been patted down and had no access to the car by the time of the search. Further, the police were not performing a safety check but a search for the weapon they had been directed to.

[14] It is not necessary, however, to finally decide whether there was a breach of s. 8 in this case. We are satisfied that even if there was a breach, the firearm was properly admitted into evidence under s. 24(2) of the Charter and that its admission would not bring the administration of justice into disrepute.

[15] Applying the three criteria from R v. Grant, 2009 SCC 32, the first is the seriousness of the Charter-infringing conduct. We agree with the trial judge’s finding that the officers acted in good faith in the sense that they did not decide to search the vehicle until they had developed the requisite reasonable and probable grounds in light of unfolding events at the scene of the vehicle stop. They knew they did not have reasonable and probable grounds when they first stopped the Honda, and were only satisfied that these grounds developed once the appellant (a) became noticeably concerned about the police taking the car, and (b) began to dissociate himself from the car and its contents. Although the officers should have but did not advert to the existence of exigent circumstances or to officer or public safety, if that failure caused a breach of s. 8, it still places the seriousness of the Charter–infringing conduct at the lower end of the spectrum on this occasion.

[16] The second Grant factor is the impact of the breach on the appellant’s expectation of privacy. Again, the impact is relatively low in the specific circumstances of this case. A person’s expectation of privacy in his (or his partner’s) vehicle is less than in his residence: R. v. Caslake 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51; R. v. Alkins (2007), 2007 ONCA 264, 85 O.R. (3d) 161 (C.A.) at para 40; R. v. McKenzie 2011 ONCA 42 at para. 11. In this case, the vehicle was about to be towed to the police station under the statutory authority of s.48(11) of the Highway Traffic Act, R.S.O. 1990 c. H.8, which permits the police to impound a vehicle where the driver fails the roadside test. As this court determined in R v. Wint, 2009 ONCA 52, 93 O.R. (3d) 514, the right to impound a vehicle also includes the right to inventory its contents. This further reduces the expectation of privacy when a vehicle is driven on the roads.

[17] The third factor is society’s interest in the adjudication of the case. Gun violence and gun possession are matters of serious concern in our society. A loaded firearm is also reliable evidence and was essential to prove the Crown’s case. All of these factors favour inclusion.

[18] The final step is to balance all of the Grant factors. Given the finding that the officers were acting in good faith and that any potential breach was at the lower end of the spectrum, the reduced expectation of privacy and the seriousness of the charges, the balance favours admission of the evidence.

[19] Counsel for the appellant did, however, raise one further concern. He pointed out that if in future, officers believe they can search for a gun where there are no exigent circumstances and the gun will be admitted, then the purpose of s. 117.02 of the Code will be undermined. That is a legitimate potential concern which will have to be addressed if such circumstances arise in the future.

[20] On balance, in the particular circumstances of this case, the gun should not be excluded under s. 24(2).

[21] The appeal is therefore dismissed.

“D. Doherty J.A.”

“K. Feldman J.A.”

“J.C. MacPherson J.A.”