Her Majesty the Queen v. Ellis

[Indexed as: R. v. Ellis]

Ontario Reports

Court of Appeal for Ontario,

Watt, Lauwers and Hourigan JJ.A.

August 4, 2016

132 O.R. (3d) 510 | 2016 ONCA 598

Case Summary

Charter of Rights and Freedoms — Search and seizure — Inventory search of vehicle — Whether vehicle "apparently abandoned" — Police officer observing vehicle street racing and pursuing it to dead-end street — Accused leaving vehicle parked in stranger's driveway and walking away — Accused arrested for careless driving some distance from vehicle — Police discovering loaded handgun in car after using car keys first located in accused's pocket in course of pat down during investigative detention and seized minutes before his arrest — Accused denied knowing where car was and denying driving it — Accused not registered owner of vehicle — Officer deciding to impound vehicle and have registered owner pick it up — Vehicle "apparently abandoned" within meaning of Highway Traffic Act — Search of vehicle authorized by law as inventory search conducted pursuant to police power to impound under Highway Traffic Act s. 221(1) — No evidence inventory search pretextual — Search not violating accused's rights under s. 8 of Charter — Canadian Charter of Rights and Freedoms, s. 8 — Highway Traffic Act, R.S.O. 1990, c. H.8, s. 221(1).

Charter of Rights and Freedoms — Search and seizure — Search as incident of arrest — Police officer observing vehicle street racing and pursuing it to dead-end street — Accused leaving vehicle parked in stranger's driveway and walking away — Accused arrested for careless driving — Keys to vehicle seized from accused's pocket — Police using keys to search vehicle and discovering loaded handgun — Search not incident to arrest as it was not necessary to prevent accused from securing weapon or destroying evidence and as it could not have yielded evidence of careless driving.

Charter of Rights and Freedoms — Search and seizure — Search as incident of investigative detention — Car abandoned on residential street in driveway of woman who did not reside at location at which car left after being seen street racing — Police seeing man wearing oversized white T-shirt walk away from car — Accused found wearing similar clothing walking away from car — Police officers detaining accused for investigation and conducting pat-down search for officer safety — Hard objects found in accused's pocket — Officer telling accused to empty his pockets — Accused pulling out cellphones and keys — Pat-down search and search of pockets being lawful searches incident to investigative detention given officer's reasonable safety concerns.

Criminal law — Firearms offences — Sentence — Police finding loaded firearm in accused' vehicle — Accused subject to lifetime firearms prohibition — Sentence of seven years' imprisonment for various firearms offences affirmed on appeal.

The accused was charged with unauthorized possession of a firearm, being an occupant in a motor vehicle in which he knew there was an unauthorized firearm [page511] and ammunition, unauthorized possession of a loaded prohibited firearm, and possession of a firearm contrary to an order. A police officer observed a vehicle engaging in street racing. After pursuing the vehicle to a dead-end street, he saw a man wearing an oversized white T-shirt walking away from the vehicle, which was parked in what turned out to be a stranger's driveway. Backup officers stopped the accused, wearing an oversized white T-shirt, some distance from the vehicle to conduct an investigation, and advised him that he was being investigatively detained. The officers did not inform him of his right to counsel or the reason for the detention. The accused was not the registered owner of the vehicle, but his driver's licence listed the same address as that of the registered owner. He volunteered that there was a warrant out for his arrest. The investigating officer's check of the accused's identification revealed that the accused was a gang member, was potentially armed and dangerous, and had a previous firearms conviction. The officer conducted a pat-down search and then asked the accused to empty his pockets after feeling a hard object in his pocket. The search revealed two cellphones, keys and cash. Those items were immediately returned to the accused. One of the officers who had remained near the car asked the officers who had stopped the accused if he had keys with him. Upon being told that he did, he asked the detaining officers to take them back from the accused. The accused denied knowing where the car belonging to the keys was located or that he had been driving it. The accused was arrested for careless driving and on the outstanding warrant. The police had decided to impound the vehicle and have the registered owner pick it up. They performed an inventory search of the car because it was being impounded. During that search, they discovered a loaded handgun. The accused applied unsuccessfully to exclude that evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms. He was convicted and sentenced to a total of seven years' imprisonment, less a credit for pre-trial custody. He appealed the conviction and the sentence.

Held, the appeals should be dismissed.

In light of the information the police had about the accused's background, they reasonably regarded the situation as dynamic and potentially life-threatening. The pat-down search, including the search of the accused's pockets, was incidental to a lawful investigative detention and was conducted in a reasonable manner. The pat-down search did not violate the accused's rights under s. 8 of the Charter.

Although the seizure of the car keys was conducted a few minutes prior to his arrest, there were already reasonable grounds to believe that he had committed the offence of careless driving and it was a permissible seizure incidental to his arrest. The search of the vehicle was not incidental to the accused's arrest. The vehicle was approximately 50 meters from where the accused was arrested. The accused was taken back to the vehicle after being handcuffed. The search could not be justified on the basis that it was necessary to prevent the accused from securing a weapon or destroying evidence inside the vehicle. Moreover, the search of the vehicle was not going to yield any evidence that the police might reasonably have been seeking in connection with the careless driving offence. The police knew that the accused and the owner of the vehicle lived at the same address so the vehicle was unlikely to be stolen, and it was not otherwise necessary to seize any ownership or registration documents.

The vehicle was "apparently abandoned" within the meaning of s. 221(1) of the Highway Traffic Act. The accused fled from the police, parked the car in a driveway to which he had no right or association, and then walked away. His actions were consistent with those of someone who wished to dissociate himself from the vehicle. When the accused abandoned the car in a stranger's driveway, the police had the authority to impound it under s. 221(1) of the Highway Traffic Act and to [page512] conduct an inventory search. The search was authorized by law and did not violate the accused's rights under s. 8 of the Charter.

The failure to inform the accused of the reason for his detention and of his right to counsel when he was detained for investigation violated his rights under ss. 10(a) and 10(b) of the Charter. Although the police were not acting in bad faith, it was negligent not to give the accused his s. 10 rights upon detention. The trial judge did not err in declining to exclude the evidence of the handgun under s. 24(2) of the Charter as a remedy for those violations. The violations occurred in a rapidly evolving investigation and were not deliberate, the firearm would have inevitably have been discovered regardless of the violations, and the firearm was an inherently reliable and objective piece of evidence which was essential to the Crown's case. Admission of the evidence would not bring the administration of justice into disrepute.

A significant penitentiary sentence was warranted and the sentence imposed did not reflect an artificial increase because of the mandatory minimum sentence of five years. The accused was a repeat gun offender who was subject to a lifetime weapons prohibition. He was driving in a residential area with a loaded .25 semi-automatic handgun at the ready. The sentence was not unfit.

R. v. Patrick, [2009] 1 S.C.R. 579, [2009] S.C.J. No. 17, 2009 SCC 17, 387 N.R. 44, J.E. 2009-665, 242 C.C.C. (3d) 158, 304 D.L.R. (4th) 260, 64 C.R. (6th) 1, 4 Alta. L.R. (5th) 1, [2009] 5 W.W.R. 387, 454 A.R. 1, EYB 2009-157141, apld

R. v. Caprara, 2006 CanLII 18518 (ON CA), [2006] O.J. No. 2210, 211 O.A.C. 211, 144 C.R.R. (2d) 287, 69 W.C.B. (2d) 727 (C.A.); R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, [1998] S.C.J. No. 3, 155 D.L.R. (4th) 19, 221 N.R. 281, [1999] 4 W.W.R. 303, J.E. 98-217, 123 Man. R. (2d) 208, 121 C.C.C. (3d) 97, 13 C.R. (5th) 1, 48 C.R.R. (2d) 189, 37 W.C.B. (2d) 81; R. v. Mann, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49, 2004 SCC 52, 241 D.L.R. (4th) 214, 324 N.R. 215, [2004] 11 W.W.R. 601, J.E. 2004-1495, 187 Man. R. (2d) 1, 185 C.C.C. (3d) 308, 21 C.R. (6th) 1, 122 C.R.R. (2d) 189, REJB 2004-68801, 62 W.C.B. (2d) 516; R. v. Nicolosi (1998), 1998 CanLII 2006 (ON CA), 40 O.R. (3d) 417, [1998] O.J. No. 2554, 110 O.A.C. 189, 127 C.C.C. (3d) 176, 17 C.R. (5th) 134, 52 C.R.R. (2d) 265, 36 M.V.R. (3d) 125, 39 W.C.B. (2d) 132 (C.A.); R. v. Wint (2009), 93 O.R. (3d) 514, [2009] O.J. No. 212, 2009 ONCA 52, 244 O.A.C. 324, 184 C.R.R. (2d) 57 [Leave to appeal to S.C.C. refused [2009] S.C.C.A. No. 164, 399 N.R. 397n], consd

R. v. Nolet, [2010] 1 S.C.R. 851, [2010] S.C.J. No. 24, 2010 SCC 24, 213 C.R.R. (2d) 52, 76 C.R. (6th) 1, 403 N.R. 1, 320 D.L.R. (4th) 1, 95 M.V.R. (5th) 1, EYB 2010-175730, 2010EXP-2088, 256 C.C.C. (3d) 1, J.E. 2010-1151, 350 Sask. R. 51, [2010] 8 W.W.R. 1, distd

Other cases referred to

Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, [1990] S.C.J. No. 10, 105 N.R. 241, 30 Q.A.C. 241, 53 C.C.C. (3d) 257, 74 C.R. (3d) 316, 46 C.R.R. 37, J.E. 90-314, EYB 1990-67780, 9 W.C.B. (2d) 193; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, 38 D.L.R. (4th) 508, 74 N.R. 276, [1987] 3 W.W.R. 699, J.E. 87-516, 13 B.C.L.R. (2d) 1, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193, 28 C.R.R. 122, [1987] D.L.Q. 416, 15 W.C.B. (2d) 387; R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 118, 102 N.R. 161, J.E. 90-12, 37 O.A.C. 1, 52 C.C.C. (3d) 193, 73 C.R. (3d) 129, 45 C.R.R. 49, 8 W.C.B. (2d) 803, affg 1986 CanLII 113 (ON CA), [1986] O.J. No. 994, 17 O.A.C. 141, 30 C.C.C. (3d) 207, 54 C.R. (3d) 120, 26 C.R.R. 275, 17 W.C.B. 398 (C.A.); R. v. Fountain, [2015] O.J. No. 2509, 2015 ONCA 354, 20 C.R. (7th) 371, 335 C.R.R. (2d) 35, 324 C.C.C. (3d) 425, 123 W.C.B. (2d) 244; R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, 82 M.V.R. (5th) 1, 309 D.L.R. (4th) 1, 245 C.C.C. (3d) 1, EYB 2009-161617, J.E. 2009-1379, 66 C.R. (6th) 1, 193 C.R.R. (2d) 1, 391 N.R. 1, 253 O.A.C. 124; [page513] R. v. MacKenzie, [2013] 3 S.C.R. 250, [2013] S.C.J. No. 50, 2013 SCC 50, 290 C.R.R. (2d) 99, 448 N.R. 246, 2013EXP-3114, J.E. 2013-1700, EYB 2013-227101, 363 D.L.R. (4th) 381, 4 C.R. (7th) 260, 423 Sask. R. 185, [2013] 12 W.W.R. 209, 303 C.C.C. (3d) 281; R. v. Nur, [2015] 1 S.C.R. 773, [2015] S.C.J. No. 15, 2015 SCC 15, 332 C.R.R. (2d) 128, 18 C.R. (7th) 227,469 N.R. 1, 322 C.C.C. (3d) 149, 385 D.L.R. (4th) 1, 332 O.A.C. 208, 2015EXP-1133, J.E. 2015-622, EYB 2015-250517, 121 W.C.B. (2d) 117; R. v. Peterkin, [2015] O.J. No. 100, 2015 ONCA 8, 326 C.R.R. (2d) 1, 328 O.A.C. 321, 319 C.C.C. (3d) 191, 119 W.C.B. (2d) 574; R. v. Plummer, [2011] O.J. No. 2034, 2011 ONCA 350, 234 C.R.R. (2d) 15, 279 O.A.C. 359, 272 C.C.C. (3d) 172, 85 C.R. (6th) 41, 95 W.C.B. (2d) 571; R. v. Polashek (1999), 1999 CanLII 3714 (ON CA), 45 O.R. (3d) 434, [1999] O.J. No. 968, 172 D.L.R. (4th) 350, 118 O.A.C. 312, 134 C.C.C. (3d) 187, 25 C.R. (5th) 183, 62 C.R.R. (2d) 331, 48 M.V.R. (3d) 174, 42 W.C.B. (2d) 6 (C.A.); R. v. Sinclair, [2005] M.J. No. 96, 2005 MBCA 41, 192 Man. R. (2d) 283, 64 W.C.B. (2d) 563 [Leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 263, 347 N.R. 200n]

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 8, 9, 10, (a), (b), 24(2)

Highway Traffic Act, R.S.O. 1990, c. H.8, s. 221, (1)

The Highway Traffic Act, S.S. 1986, c. H-3.1 [rep.]

APPEAL by the accused from the convictions entered on February 4, 2013 and on May 21, 2013 and the sentence imposed by K.L. Campbell J., sitting with a jury, [2013] O.J. No. 2409, 2013 ONSC 3092 (S.C.J.).

Candice Suter, for appellant.

John Patton, for respondent.

The judgment of the court was delivered by

HOURIGAN J.A.: —

A. Overview

[1] This is one of two appeals heard together that consider the interaction between the authority of the police to conduct an inventory search of a vehicle impounded pursuant to s. 221(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "HTA") and the right under s. 8 of the Canadian Charter of Rights and Freedoms to be free from unreasonable search and seizure.

[2] The factual background may be briefly stated. A police officer observed an Acura street racing and pursued it to a dead-end street. The appellant was seen in the distance walking away from the Acura. Backup officers engaged the appellant in an investigative detention and performed a pat-down search of the appellant's pockets that revealed keys to the Acura. The appellant was eventually arrested for careless driving and pursuant to outstanding warrants. The police then used the keys to search the Acura and discovered a loaded handgun. The appellant [page514] was charged with three firearms offences and with breaching a weapons prohibition order.

[3] Prior to trial, the appellant applied to have the handgun excluded pursuant to s. 24(2) of the Charter, alleging breaches of his ss. 8, 9 and 10 Charter rights. The trial judge heard the application. He found that, while police had not complied with their duties under s. 10, there were no breaches of ss. 8 or 9 and that the police were authorized to conduct an inventory search of his vehicle under s. 221 of the HTA. He also found that the gun should not be excluded from the evidence.

[4] The appellant was convicted of all charges and sentenced to seven years' imprisonment, less credit for pre-sentence custody, for a total sentence of five years and eight months' imprisonment.

[5] On appeal, the appellant submits that the search of his pockets and subsequent seizure of his car keys, as well as the search of his car and subsequent seizure of a gun, violated his s. 8 rights. He further submits that the handgun should have been excluded from the evidence. The appellant also seeks leave to appeal his sentence, submitting that the trial judge erred in failing to consider various sentencing principles and in imposing a sentence that is demonstrably unfit.

[6] For the reasons that follow, I would dismiss the conviction appeal. While I would grant leave to appeal from sentence, I would also dismiss the sentence appeal.

B. Facts

[7] In the early morning hours of May 24, 2010, Sgt. Martin of the Toronto Police Service was driving a marked police cruiser when he saw two vehicles apparently racing. He followed them and chose to pursue one, an Acura, into a residential area. The Acura eventually turned down a dead-end street. Sergeant Martin located it parked in a mutual driveway between two houses. As he pulled up, he saw a man in an oversized white T-shirt walking away from the Acura toward the back of the houses. A licence plate check revealed that the Acura was registered to a 68-year-old woman who did not live at any house on that street.

[8] Sergeant Martin called for backup. While waiting in his cruiser, he noticed two men, one of whom was wearing an oversized white T-shirt, walking in the distance and looking in his direction. He radioed to dispatch that if the responding backup officers saw the two men, they should stop and investigate them. Shortly thereafter, two responding officers, Csts. La Vella and Chudzinski, stopped the two men not far from the parked Acura. The officers questioned them about their activity in the area and asked for their identification. [page515]

[9] Constable La Vella advised the man in the white T-shirt, the appellant, that he was being investigatively detained but did not advise him of his right to counsel. The appellant told Cst. La Vella that he was walking to the area from his home nearby, looking for a party. His driver's licence listed the same address as that of the registered Acura owner. The appellant volunteered that he had an outstanding warrant for his arrest from Windsor/Essex County. Constable La Vella's check of the identification on his computer revealed that the appellant was a gang member, was potentially "armed and dangerous", and had a previous firearms conviction. Constable La Vella performed a pat-down search of the appellant and then asked the appellant to empty his pockets. The search revealed two cellphones, cash and keys. These items were immediately returned to the appellant.

[10] Meanwhile, Csts. Aleksandrowicz and Vanderburgh joined Sgt. Martin at the location of the Acura. Earlier, Sgt. Martin had learned that Csts. La Vella and Chudzinski had detained the two men. He detailed Cst. Aleksandrowicz to attend at their location to determine whether either man had been driving the Acura.

[11] Constable Aleksandrowicz arrived at the appellant's location. Sergeant Martin radioed him and enquired if either of the detained men had "any keys on them". Constable La Vella replied in the affirmative and asked for the keys from the appellant's pocket. The appellant gave them to Cst. La Vella, who gave them to Cst. Aleksandrowicz. It was immediately apparent that the keys were for an Acura.

[12] At this point, Cst. Aleksandrowicz engaged the appellant in a conversation about the keys and the Acura. The appellant denied knowing the location of the Acura or driving it, but said that his girlfriend had been driving it earlier that night. Constable Aleksandrowicz relayed to Sgt. Martin over the radio that he had found Acura keys, but that the appellant denied driving the vehicle. Sergeant Martin responded that given the appellant's denial, they would impound the vehicle and have the registered owner pick it up. Sergeant Martin told Cst. Aleksandrowicz that the appellant was arrestable for careless driving and to bring the appellant to his location.

[13] After continued questioning, the appellant told the police that he had left the Acura in the driveway and Sgt. Martin was advised of this information. Constable Aleksandrowicz placed the appellant under arrest for careless driving and for the outstanding warrants, and brought him to Sgt. Martin's location, where the appellant was placed in a police cruiser.

[14] Sergeant Martin and Cst. Aleksandrowicz then searched the Acura. According to Sgt. Martin, the search was incident to [page516] the appellant's arrest for careless driving. He wanted to find proof of ownership, to see if the ignition had been tampered with, and to see if there were any signs that the vehicle had been stolen. Further, an inventory search was necessary to check for valuables because the vehicle was being impounded. Constable Aleksandrowicz testified that he was conducting a search incident to arrest. During the search, Sgt. Martin discovered a handgun hidden behind a console panel. The appellant was arrested for illegal possession of a firearm and advised of his right to counsel.

C. Decisions Below

(1) Ruling on Charter application

[15] The trial judge first assessed the investigative detention of the two men. He found that the detention did not violate s. 9 of the Charter because at that point, the police had "articulable cause" or "reasonable grounds" to suspect that the appellant was involved in the offence of careless driving. Sergeant Martin observed the vehicles speeding and his suspicion that the man in the oversized white T-shirt was the driver of the Acura was a reasonable one. This justified the subsequent investigative detention by Cst. La Vella, the results of which made the appellant's arrest inevitable. The address on his licence matched the ownership of the Acura, which tied him to the offence of careless driving and was sufficient to form reasonable and probable grounds for his arrest. The outstanding warrants revealed by the CPIC check also gave the police reasonable and probable grounds for the appellant's arrest.

[16] The trial judge next assessed the pat down search of the appellant and concluded that it did not violate s. 8 of the Charter. Constable La Vella had learned that the appellant was affiliated with a gang, potentially "armed and dangerous" and had a previous firearm conviction. Therefore, his decision to conduct a pat-down search for officer safety was objectively reasonable. Where objectively justified, such searches may extend into the pockets of the detainee, and here, Cst. La Vella had ample grounds to search the appellant's pockets given that there were hard or sharp objects (a cellphone and car keys) within. The search was executed reasonably and the items were immediately returned to the appellant, suggesting that the search was not merely a pretext to discover keys but actually for the purpose of officer safety.

[17] The trial judge found that the police were entitled to seize the Acura keys from the appellant pursuant to their powers to [page517] search incident to his subsequent arrest. The police did not obtain knowledge of the keys through illegal or unconstitutional means. Once the police discovered that the appellant resided at the same address as the Acura owner, his arrest was inevitable. It took time for the various officers to put the available information together, but this was unavoidable and the arrest just a matter of time. Given the reasonable and probable grounds for arrest that the police possessed in relation to both the careless driving and warrant offences, the seizure of the key was properly viewed as incidental to the appellant's arrest.

[18] With respect to the search of the Acura that revealed the handgun, the trial judge concluded that it did not violate s. 8. However, he held that the police were not entitled to search the vehicle incident to arrest. At the time of the appellant's arrest, the Acura could not reasonably be said to be "within the appellant's immediate surroundings or under his immediate control". There was no risk of the appellant gaining access to the vehicle to obtain weapons or to destroy evidence. Furthermore, it was difficult to understand what evidence the police might have been seeking in connection with the offences given what they already knew about the ownership of the vehicle and given the unlikelihood of finding evidence relating to the offences listed in the outstanding warrants.

[19] The trial judge concluded that the Acura search was instead authorized under s. 221(1) of the HTA. Sergeant Martin had determined that the Acura would be impounded, given that it had been "abruptly abandoned", and explained that it could not remain in the private driveway. Thus, the vehicle was "apparently abandoned" within the meaning of s. 221. Once the vehicle was taken into police custody, the case law establishes that the police were lawfully entitled to perform an inventory search of the vehicle. The fact that Sgt. Martin also admitted to looking for firearms or other weapons did not change the legal analysis. Further, individuals who have apparently abandoned their vehicles can hardly be said to have any significant, continuing reasonable expectation of privacy in them.

[20] The trial judge concluded that when Cst. La Vella advised the appellant that he was under investigative detention, he did not fulfill any of his obligations to provide a reason for the detention and to advise the appellant of his right to counsel under ss. 10(a) or (b) of the Charter. The Crown conceded the inadmissibility of any statements made by the appellant to the officers as a result, but the admissibility of the gun under s. 24(2) was still to be determined. Accordingly, the trial judge conducted the requisite analysis under [page518] R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32 to determine if the gun should be excluded from the evidence as a consequence of the s. 10 violations. After reviewing the relevant factors, he concluded that the handgun should not be excluded from the evidence.

[21] The appellant was convicted of unauthorized possession of a firearm, being an occupant in a motor vehicle in which he knew there was an unauthorized firearm and ammunition, unauthorized possession of a loaded prohibited firearm and possession of a firearm contrary to an order.

(2) Sentencing decision

[22] After considering the relevant mitigating and aggravating factors, the trial judge concluded that the appropriate sentence for the firearms offences was six years' imprisonment, emphasizing the need to denounce and deter gun crime, and the need for specific deterrence. He further concluded that the breach of the weapons prohibition order required one year consecutive because an additional sanction was necessary.

[23] The appellant received 1.5:1 credit for his 199 days of pre-trial custody, and an additional six months' credit for his almost 2.5 years on restrictive bail conditions. The total sentence was therefore five years and eight months. The trial judge recognized that the sentence was a significant jump from the appellant's last term of imprisonment but found it was warranted in the circumstances, including the fact that the appellant was a mature repeat firearms offender.

D. Issues

[24] This appeal raises the following issues:

(1) Was the search of the appellant's pockets and seizure of the car keys a violation of s. 8 of the Charter?

(2) Was the search and seizure of the vehicle a violation of s. 8 of the Charter?

(3) Should the handgun be excluded from the evidence pursuant to s. 24(2) of the Charter?

(4) Was the sentence demonstrably unfit?

E. Analysis

(1) Search of the pockets and seizure of the car keys

[25] A police officer may detain an individual for investigative purposes where there are reasonable grounds to suspect in the circumstances that the person is connected to a particular recent [page519] or ongoing crime and detention is required: R. v. Mann, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49, 2004 SCC 52, at para. 45; R. v. MacKenzie, [2013] S.C.R. 250, [2013] S.C.J. No. 50, 2013 SCC 50, at para. 38. In the present case, there is no issue that the officers had a reasonable suspicion that the appellant was involved in street racing and that they were justified in engaging him in an investigative detention.

[26] The appellant submits, however, that the trial judge improperly relied on Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, [1990] S.C.J. No. 10 for the proposition that pockets may be examined during a pat-down search, since that case dealt with the power to search incident to arrest, not an investigative detention. According to the appellant, Mann confirms that the two search powers are distinct and that police are authorized to frisk but not to examine the contents of pockets when conducting a search during an investigative detention. He further argues that the searching officer offered no basis for extending the search beyond a pat down because cellphones, car keys and cash are not shaped like guns and do not feel like guns.

[27] In my view, this submission misstates the law from Mann. In that case, the Supreme Court held that a police officer may conduct a protective pat-down search of an individual detained for investigation where the officer has reasonable grounds to believe that his or her safety or that of others is at risk: Mann, at para. 45. The decision to search must be reasonably necessary in the circumstances: Mann, at para. 40. In Mann, the court found that the officers had reasonable grounds to detain the accused and to conduct a protective pat-down search. However, the court held that the decision to go beyond the pat down and search inside the accused's pockets after feeling a soft object was an unreasonable violation of the accused's reasonable expectation of privacy.

[28] What the Supreme Court did not do in Mann was pronounce a general rule that a protective pat down search incident to an investigative detention can never extend to a search of the contents of pockets. Implicit in the court's holding was that, had the pat-down search revealed a safety concern, the officers would have been justified in extending the search to the accused's pockets. Indeed, there would be no point in conducting the pat-down search if, as suggested by the appellant, an officer cannot take further steps to protect his or her safety on having a reasonable basis for believing that there is a safety concern: R. v. Plummer, [2011] O.J. No. 2034, 2011 ONCA 350, 272 C.C.C. (3d) 172, at para. 53. [page520]

[29] In the present case, the pat-down search was reasonable and necessary for officer safety. The officers received information that the appellant was a gang member, potentially armed and dangerous, and had a previous conviction for a firearms offence. I agree with the trial judge's observation, at para. 54, that in these circumstances "it would have been foolhardy" to continue with the investigation without conducting the pat-down search.

[30] During the pat-down search, the officer felt hard objects in the appellant's pockets that could have been weapons. This was not a case like Mann, where the pat down did not give rise to any articulable safety concern. The officer had a reasonable belief that the appellant might be armed. In these circumstances, it is not the function of this court, many years after the incident and with knowledge of what was actually in the pockets, to criticize the officer for searching the pockets to ensure that the hard objects were not weapons. A police officer in such circumstances is in a dynamic and potentially life-threatening situation and he or she must be able to undertake a protective search in a reasonable manner to preserve his or her safety.

[31] The manner of search in the present case was entirely reasonable. As soon as Cst. La Vella ascertained that the hard objects were not dangerous, he returned them to the appellant. There was, in my view, no breach of s. 8 as a consequence of this search.

[32] The appellant further submits that the subsequent seizure of the car keys was a violation of s. 8. He argues that to perform a search incident to arrest, a searching officer must have a valid reason connected to the arrest and that, in this case, the purpose of the search was unrelated to the purpose of the arrest for careless driving. Further, the police lacked subjective grounds for the arrest since no single officer knew all of the relevant information at the time of the search. More specifically, the searching officer Cst. Aleksandrowicz was not aware of all of the information when he seized the keys. There was also no nexus between the search and the arrest for the outstanding warrants.

[33] In my view, the request to examine the keys was a constitutionally permissible seizure, as it was incidental to the appellant's arrest. The fact that the search was conducted minutes before the arrest makes no difference. A search that precedes an arrest is valid as incident to that arrest where, prior to the search, there existed reasonable and probable grounds for the arrest: R. v. Debot, 1986 CanLII 113 (ON CA), [1986] O.J. No. 994, 30 C.C.C. (3d) 207 (C.A.), at pp. 223-25 C.C.C., affd on other grounds 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 118; R. v. Polashek (1999), 1999 CanLII 3714 (ON CA), 45 O.R. (3d) 434, [1999] O.J. No. 968 (C.A.), at p. 443 O.R.; and [page521] R. v. Sinclair, [2005] M.J. No. 96, 2005 MBCA 41, 192 Man. R. (2d) 283, at paras. 20-22, leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 263, 347 N.R. 200n.

[34] At the time of the seizure, the police had reasonable and probable grounds to arrest the appellant for careless driving including the identifying T-shirt, the name and address confirmed by computer checks, and the knowledge of the car keys in the appellant's pocket. I agree with the trial judge that although it took time for the police to put together all of the relevant information, the appellant's arrest was inevitable. In these circumstances, there was no breach of s. 8.

(2) Search and seizure of the Acura

[35] Warrantless searches are presumptively unreasonable. The Crown has the burden of establishing on a balance of probabilities that such a search is reasonable. For a search to be reasonable under s. 8 of the Charter, it must be authorized by law, the law itself must be reasonable and the search must be carried out in a reasonable manner: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, [1998] S.C.J. No. 3, at para. 10; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, at p. 278 S.C.R.

[36] In order for a search to be authorized by law, it must meet three criteria. First, the state authority conducting the search must be able to point to a specific statutory provision or common law rule authorizing the search. Second, the search must be carried out in accordance with the procedural and substantive requirements that the law provides. Third, the search must not exceed its authorized scope: Caslake, at para. 12.

[37] The Crown's argument that the search of the Acura was authorized by law is two-fold: (i) it was a search incident to arrest; and (ii) it was an inventory search of an abandoned vehicle being impounded pursuant to s. 221(1) of the HTA. As referenced above, at trial, the Crown succeeded only on the second justification. Below, I consider each of these justifications for the search.

(i) Search incident to arrest

[38] The Crown's position is that once the police learned the appellant's keys were for an Acura, they were authorized to conduct a search of the vehicle incident to his arrest for careless driving and for the outstanding warrants.

[39] A search incident to arrest is an exception to the general rule that warrantless searches are unreasonable. Lamer C.J.C. summarized the relevant legal principles in Caslake, at para. 25:

[S]earches must be authorized by law. If the law on which the Crown is relying for authorization is the common law doctrine of search incident to [page522] arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. However, that inference may be rebutted by a proper explanation.

[40] The Crown submits that the search of the Acura was incidental to the careless driving arrest as the vehicle was involved in the offence. Thus, the Crown argues that there was a causal nexus, as well as a geographic and temporal nexus. The Crown also argues that the Acura was likely to contain personal documentation and, with respect to the arrest for the outstanding warrants, that it would not be unheard of for an individual to bring legal documentation into a vehicle he or she is familiar with. According to the Crown, the trial judge took too narrow of a view of the applicable factors that could provide the police with a reasonable basis to search incident to arrest.

[41] In my view, the trial judge correctly concluded that the search of the Acura was not incident to the arrest of the appellant. The vehicle was approximately 50 metres from where the appellant was arrested. He was taken back to vehicle after being placed under arrest and handcuffed. In these circumstances, the search cannot be justified on the basis that it was necessary to prevent the appellant from securing a weapon or destroying evidence inside the vehicle.

[42] I also agree with the trial judge's conclusion that the search of the vehicle was not going to yield any evidence the police might reasonably have been seeking in connection with the offence of careless driving. The police knew that the appellant and the owner of the Acura lived at the same address so it was unlikely to be stolen, and it was not otherwise necessary to seize any ownership or registration documents. It is also not clear to me what documentation relevant to the outstanding warrants could be discovered in the vehicle.

[43] I conclude that the search of the Acura cannot be justified as a search incident to arrest.

(ii) Search pursuant to [s. 221(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html#sec221subsec1_smooth) of the [HTA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html)

[44] The Crown submits that the search of the Acura was authorized pursuant to its power to impound vehicles under s. 221(1) of the HTA, which provides: [page523]

221(1) A police officer or an officer appointed for carrying out the provisions of this Act who discovers a vehicle apparently abandoned on or near a highway or a motor vehicle or trailer without proper number plates may take the vehicle into the custody of the law and may cause it to be taken to and stored in a suitable place.

(a) The governing legal principles

[45] The starting point for determining the scope of police power to conduct inventory searches is the Supreme Court's decision in Caslake. There, a police officer, six hours after arresting the accused for possession of narcotics, conducted an inventory search of the accused's vehicle pursuant to police policy and found cash and two packages of cocaine. The court held that the search was not incident to arrest, as the purpose of the search, to inventory the vehicle's contents, fell outside the legitimate purposes for a search incident to arrest.

[46] The Supreme Court heard the argument that there ought to be an inventory search exception under s. 8 of the Charter for the protection of the accused's belongings but declined to decide the issue, noting that the Crown lacked a statutory or common law authority for the inventory search.

[47] The next case of significance is R. v. Nicolosi (1998), 1998 CanLII 2006 (ON CA), 40 O.R. (3d) 417, [1998] O.J. No. 2554 (C.A.). There, the police stopped the accused after observing him drive in a reckless manner. A CPIC check revealed an outstanding warrant for driving without insurance. The accused was abusive with the police and a brief struggle ensued. He was placed under arrest and told that his vehicle would be impounded. The accused sought to have a gun found during an inventory search of the vehicle excluded from the evidence.

[48] Doherty J.A., writing for the court, observed that no one in the position of the accused could reasonably expect that the police would not enter the vehicle that was in their custody. Accordingly, he concluded that the search did not infringe the accused's reasonable expectation of privacy in violation of s. 8. However, he stated that, if he was wrong, and the accused's privacy rights were engaged, the search was a warrantless search authorized by law. Doherty J.A. reasoned that the police had a responsibility to keep impounded property safe and that, in order to fulfill that responsibility, they must have the authority to search and inventory the vehicle. It is noteworthy that, in reaching this conclusion, Doherty J.A. distinguished Caslake on the basis that in that case there was no statutory authority for an inventory search, as the search was performed pursuant to an internal RCMP policy. [page524]

[49] In R. v. Wint (2009), 93 O.R. (3d) 514, [2009] O.J. No. 212, 2009 ONCA 52, leave to appeal to S.C.C. refused [2009] S.C.C.A. No. 164, 399 N.R. 397n, the accused was arrested for stunt driving and his vehicle was impounded. The police conducted an inventory search and located a small bag, which they believed might contain a gun. They opened the bag and a quantity of crack cocaine and marijuana was discovered.

[50] On appeal, the accused argued that this court should have rejected the testimony of the police officers that they were conducting an inventory search and found that they were searching for a gun. This court rejected that argument, noting that the trial judge did not find that the search was a sham or that it was conducted for an improper or ulterior purpose. Relying on R. v. Caprara, 2006 CanLII 18518 (ON CA), [2006] O.J. No. 2210, 211 O.A.C. 211 (C.A.), at para. 8, this court also stated that the fact that the police may also have been looking for a gun did not render the search unlawful.

[51] This court rejected the accused's other principal submission, being that the police were limited to itemizing visible property and had no authority to open the bag. The court found this argument contrary to the underlying rationale for inventory searches -- safeguarding the vehicle's contents. Police had to be able to review the contents of the bag to understand what was contained therein.

[52] The final case for consideration on this issue is the Supreme Court of Canada's decision in R. v. Nolet, [2010] 1 S.C.R. 851, [2010] S.C.J. No. 24, 2010 SCC 24. In that case, the accused were operating a commercial tractor-trailer in Saskatchewan. A random police stop disclosed that the vehicle was not authorized to operate in the province. The immediate search of the truck's cab was found by the court to be authorized pursuant to the officer's statutory authority to investigate under The Highway Traffic Act, S.S. 1986, c. H-3.1. The court also upheld a search of a bag within the cab and a later search of the trailer at the station.

[53] Despite these findings, the Supreme Court held that an inventory search conducted the next day by an RCMP officer was not constitutionally valid. At para. 53, the court noted that the officer's search was "incidental to RCMP administrative procedures rather than to the arrest of the appellants".

(b) Application to the facts

[54] The appellant submits that the Supreme Court's decision in Nolet has overtaken Nicolosi and Wint. He argues that, although this court recognized the power of police officers to perform an inventory search of a seized vehicle in the latter cases, in Nolet Binnie J. characterized the inventory search of [page525] the tractor-trailer to be an administrative procedure that did not meet the requirements of a warrantless search. The search was therefore not authorized by law.

[55] I would reject this argument. The basis for the inventory search in Nolet was an RCMP administrative procedure, not any statutory authority. In this way, the decision is entirely consistent with the court's earlier decision in Caslake, which found that an inventory search conducted pursuant to RCMP administrative procedure relates to concerns extraneous to the criminal law and thus does not serve a valid objective of the criminal law. Indeed, the Supreme Court of Canada in Nolet relied on Caslake in reaching its conclusion.

[56] Those cases do not change the fact that an inventory search is authorized by law where, as here and in Nicolosi and Wint, statutory authority for the search that has been invoked. The law has been consistent that an inventory search of a vehicle will not be authorized by law and will therefore be unconstitutional where there is no statutory authority invoked for the search.

[57] The appellant further submits that the trial judge erred by finding that the search was an inventory search, given that there was no documentation of the inventory search, an inventory form or even an officer's note that he performed an inventory search; the other searching officer only testified that it was a search incident to arrest; the decision to impound the car was not made before the search; and the timing, location and person executing the search was inconsistent with an inventory search.

[58] I would reject this submission on the same basis that this court rejected it in Wint. In the trial judge's analysis of the s. 221(1) search issue, he makes specific findings of fact regarding the intention of Sgt. Martin in searching the vehicle, at para. 104 of his reasons:

I accept the testimony of Sgt. Martin that such an inventory search of this vehicle was part and parcel of standard police procedure typically employed in such circumstances, and was one of his bona fide purposes in searching the Acura. I also accept his evidence that the Acura had been "abruptly abandoned" by the person who he had seen walking away from it, and that simply leaving it in the driveway was not an option as it would have continued to impede the homeowners' access to their own vehicles. As Sgt. Martin testified and I accept, the inventory search was necessary to see if there were any valuables in the car. The fact that Sgt. Martin was also, admittedly, looking for any firearms or other weapons that might be in the vehicle does not change this legal analysis. Therefore, I conclude that the police discovery of the illegal firearm in the console of the Acura was the result of a search conducted in accordance with s. 8 of the Charter of Rights.

[59] I am not satisfied that the trial judge erred in his consideration of the evidence. Sergeant Martin was the officer in [page526] charge and he made the decision to conduct the search. There is no basis to interfere with the trial judge's findings.

[60] The appellant further submits that the Acura was not "apparently abandoned" within the meaning of s. 221 of the HTA, given that the appellant was under arrest for an HTA offence and admitted to being the driver.

[61] There is no merit in this submission. The appellant fled from the police and admitted to trying to avoid arrest on his outstanding warrants. He then parked and locked the car in a mutual driveway to which he had no right or association, and then walked away. His actions up to that point were consistent with those of someone who wished to dissociate himself from the vehicle.

[62] The test for abandonment articulated by the Supreme Court of Canada in R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, [2009] S.C.J. No. 17 is whether the individual acted in a manner that a reasonable and independent observer would believe, based on the totality of the circumstances, that a continued assertion of privacy over the object was unreasonable. That case involved the search of the accused's garbage. It is worth noting that s. 221 speaks of "apparently abandoned" vehicles.

[63] The determination of whether a vehicle is apparently abandoned is necessarily fact specific. In this case, the moment the appellant left the car the police had authority to impound it under s. 221(1) and then to conduct an inventory search.

[64] In the alternative, the appellant submits that, even if the vehicle was "apparently abandoned", the search was unreasonable as the registered owner was known to the police and the appellant or his passenger should have been given the opportunity to arrange for the car's removal.

[65] In my view, the eventual discovery of the identity of the driver and his subsequent arrest did not change the fact of the apparent abandonment of the vehicle. As a practical matter, nothing changed once the appellant was arrested and taken back to vehicle in handcuffs. He was under arrest and had no ability to move the vehicle. The police were not obligated to permit the appellant to make other arrangements for moving the car and their failure to do so in this case is insufficient to establish an unreasonable search: see Nicolosi, at para. 17. Nor was there any evidence that the appellant requested the opportunity to do so.

[66] In summary, I conclude that the trial judge made no error in his conclusion that the search of Acura was authorized by law as an inventory search conducted pursuant to the police power to impound under s. 221(1) of the HTA. Accordingly, since the [page527] law itself is not unreasonable and the manner of search is not challenged, the inventory search did not violate the appellant's s. 8 rights.

(3) Exclusion of the evidence under s. 24(2)

[67] As noted above, the trial judge undertook a very careful analysis of the Grant factors and determined that the gun should not be excluded from the evidence pursuant to s. 24(2) of the Charter.

[68] The trial judge found that the seriousness of the state conduct supported the exclusion of evidence. Officers should have known better how to provide the appellant with his rights under s. 10(a) and (b). At the same time, he observed that the investigation evolved rapidly, and there is no suggestion that the omissions were deliberate. However, the officers were negligent and negligence is not good faith.

[69] Concerning the impact of the violations, the trial judge found that this branch strongly favoured exclusion of the incriminating statements but strongly favoured admission of the firearm. Without knowledge of his rights and that he could access legal advice, the appellant made inculpatory statements. However, these statements had nothing to do with the firearms offences before the court. The trial judge also concluded that the firearm would have inevitably been discovered regardless of any breaches of s. 10(a) or (b).

[70] With respect to the truth-seeking function, the trial judge found that this branch clearly favoured admission of the evidence. The firearm was an inherently reliable and objective piece of evidence. The Crown's case must fail if it were excluded, while the accused could still try to raise a reasonable doubt about his possession of the handgun. Society's interest in the adjudication of the case on its merits would be seriously undercut if it were excluded.

[71] Ultimately, the trial judge found that the handgun was admissible. He noted that he would have reached the same conclusion even if he had found that the search of the Acura violated s. 8, since Sgt. Martin honestly believed he was entitled to search the Acura and he acted reasonably and in good faith.

[72] In R. v. Peterkin, [2015] O.J. No. 100, 2015 ONCA 8, 319 C.C.C. (3d) 191, at para. 75, Watt J.A. wrote that "where a trial judge has considered the proper factors and has not made any unreasonable finding, his or her determination [under s. 24(2)] is owed considerable deference on appellate review" (citations omitted): see, also, R. v. Fountain, [2015] O.J. No. 2509, 2015 ONCA 354, 324 C.C.C. (3d) 425, at para. 51. [page528]

[73] I see no error in the trial judge's conclusion regarding the s. 10 breaches or in his analysis that, had there been a s. 8 breach, the handgun should not have been excluded. Any breach by the police was not deliberate and the appellant has a very limited privacy interest in a vehicle that he does not own and has apparently abandoned. I agree with the trial judge that society's interest in the adjudication on the merits strongly favours admission.

(4) Sentence appeal

[74] The trial judge considered the following aggravating factors in crafting an appropriate sentence: the appellant's criminal record for the same offences; the outstanding bench warrants; the gun was loaded and ready to fire; the gun was possessed while driving around in public; the gun was concealed but available for quick access; and no evidence or explanation was offered for the possession of the gun.

[75] The mitigating factors included the fact that there was no evidence that the gun was ever fired or removed from its storage location; the gun was not traced to any offences; there was no evidence of involvement in the sale of drugs; the manner of storage reduced its potential danger to the public; the offender had excellent prospects for rehabilitation; and the fact that he complied with strict bail conditions while his charges were pending.

[76] With respect to the applicable mandatory minimum of five years for a second firearms offence, the trial judge stated that he would only consider the constitutionality of the mandatory minimum if he concluded that a sentence less than five years' imprisonment was appropriate. Since he did not, the mandatory minimum was not an issue on sentence.

[77] The appellant argues that his sentence was based on an inflationary floor due to the existence of the mandatory minimum. I would reject that submission.

[78] Parliament's enactment of mandatory minimums for gun crimes reflected a public consensus that steps must be taken to reduce the incidence of gun crime in Canada. Although the Supreme Court has found mandatory minimums to be grossly disproportionate in hypothetical gun licensing scenarios, it emphasized that courts should continue to impose weighty sentences for truly criminal behaviour involving guns: R. v. Nur, [2015] 1 S.C.R. 773, [2015] S.C.J. No. 15, 2015 SCC 15, at para. 120. There is no inflationary floor at work in this case. Rather, recent sentences reflect Canadian society's intolerance for gun crime and are in keeping with the direction given by the Supreme Court of Canada. [page529]

[79] The circumstances of this case cried out for a significant penitentiary sentence. The appellant is a repeat gun offender who is subject to a lifetime weapons prohibition. He was driving in a residential area of Toronto with a loaded .25 semi-automatic handgun at the ready.

[80] The trial judge's careful and thorough reasons for sentence reflect a complete understanding of the circumstances of the offender and the applicable legal principles. He did not, as was suggested by the appellant, inappropriately consider the appellant's silence as an aggravating circumstance. Instead, he considered the fact that, even after addressing the court at sentencing, the appellant had not explained why he had reverted to loaded handgun possession. Contrary to the appellant's submission, the trial judge considered the jump principle, the gap between these offences and his previous convictions, and the totality principle. The sentence is fit and the trial judge's reasoning is sound. There is therefore no basis for appellate interference.

F. Disposition

[81] I would dismiss the conviction appeal. I would grant leave to appeal from sentence, but I would dismiss the sentence appeal.

Appeals dismissed.

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