Court of Appeal for Ontario

Date: 2017-02-28

Docket: C61178 & C61762

Judges: Cronk, Rouleau and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Gregory Allen Appellant

Counsel

Michael Dineen, for the appellant

Michael Fawcett, for the respondent

Heard: February 21, 2017

On appeal from: the conviction entered on June 4, 2015 and the sentence imposed on September 25, 2015 by Justice Glenn A. Hainey of the Superior Court of Justice, sitting without a jury.

Endorsement

[1] The appellant was convicted of possession of a loaded prohibited firearm, possession of cocaine for the purpose of trafficking, and dangerous driving following a high risk, vehicular police take-down triggered by a confidential informant's tip. He received a global sentence of five years' imprisonment, less credit for 820 days' pre-sentence custody. He appeals both his conviction and, if leave is granted, his sentence.

[2] On the conviction appeal, the appellant is represented by counsel. With respect to sentence, Mr. Dineen, who represents the appellant on the conviction appeal, made submissions on behalf of the appellant but did so in his capacity as duty counsel. The appellant was content that Mr. Dineen do so and that, in the circumstances, the matter proceed in his absence.

[3] At the conclusion of the hearing, the conviction appeal was dismissed, leave was granted to appeal sentence and the sentence appeal was allowed. The sentence was varied to make the six-month sentence imposed for the dangerous driving conviction run concurrently with the sentence imposed for the firearm conviction (three years' imprisonment), rather than consecutively. Reasons were to follow. These are those reasons.

A. The Conviction Appeal

[4] The central issue at trial was whether the police had violated the appellant's rights under ss. 7 to 10 of the Canadian Charter of Rights and Freedoms. The trial judge found that they had. The trial judge then had to go on and decide whether the evidence seized at the time of arrest should be excluded under s. 24(2) of the Charter. He determined that it should not and admitted the handgun and the drugs seized from the appellant's vehicle incident to arrest. He concluded that to admit the evidence would not bring the administration of justice into disrepute.

[5] The only issue on the conviction appeal is the trial judge's s. 24(2) Charter analysis. The appellant argues that, in carrying out this analysis, the trial judge erred in at least two respects.

[6] First, the appellant maintains that the trial judge overemphasized the seriousness of the offences by placing particular significance on the public interest in the prosecution of firearm charges. This, the appellant submits, disregards the Supreme Court of Canada's holding in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, that the seriousness of the offence, including the fact a firearm was seized, can "cut both ways" and should add little to the balancing exercise. In the appellant's view, Grant and the case law since Grant have held that "there is not a different test for admission where the impugned evidence is a firearm": R. v. Dunkley, 2016 ONCA 597, 131 O.R. (3d) 721, at para. 53.

[7] We do not give effect to this ground of appeal.

[8] In our view, the trial judge committed no error in his consideration of the Grant factors and, absent error, his weighing of those factors is entitled to deference in this court. The trial judge found that the first Grant factor, the seriousness of the police conduct, was neutral given that the police acted in good faith, with an honest but mistaken belief as to the lawfulness of the arrest, and there was no intentional violation of the appellant's Charter rights. These findings are well supported in the record.

[9] Although the second Grant factor, the impact of the breaches on the Charter rights of the appellant, favoured the exclusion of the evidence, we agree with the trial judge's conclusion that the third factor, the societal interest in adjudicating the case on the merits, tipped the balance in favour of admission. The trial judge did not, as the appellant suggests, give undue weight to this factor and the fact that a firearm was involved.

[10] The second suggested error is that the trial judge viewed the fact that the police had obtained two warrants to search a different vehicle associated with the appellant as being indicative of good faith. In the appellant's submission, the judicial authorizations that had been obtained are irrelevant because they pertain to a vehicle having a different license plate than the one stopped by the police.

[11] We disagree. The trial judge's factual assessment of the officers' conduct and his conclusion that they acted in good faith is entitled to deference.

[12] The trial judge accepted the officers' testimony that they considered the informant's tip to the effect that the appellant was in possession of a firearm to be reliable. The fact that the informant provided a different license plate number for the vehicle (although the description of the car was generally accurate) does not render the tip as to the appellant being in the possession of a firearm valueless. The two judicial officers who reviewed the informant's tip concluded, as did the arresting officers, that the tip provided reasonable and probable grounds to believe that the appellant was in possession of a firearm and that it would be found in the vehicle he was driving. That information proved to be correct.

[13] As a result, we dismiss the conviction appeal.

B. The Sentence Appeal

[14] Before committing the offences, the appellant was seriously injured by a stray bullet originating from a confrontation that occurred near his place of work and in which he had no involvement. As a result of this injury, the appellant lost his business and now suffers from serious physical limitations that make his imprisonment particularly difficult.

[15] The appellant is confined to a wheelchair. For the 12 months before trial, he had to be housed in segregation because of the absence of facilities at the institution to accommodate his condition. In addition, he has not received the physiotherapy he requires to prevent the atrophy of his leg muscles and has had to supplement his diet with food items from the canteen. This is because he suffered a ruptured stomach in the shooting and cannot digest many processed foods.

[16] The trial judge mentioned the fact that the appellant had suffered the injury and was currently in a wheelchair. In fashioning the appropriate sentence, however, the trial judge does not appear to have considered the appellant's condition and specifically, the adverse impact that the injuries suffered as a result of the unfortunate shooting will have on his incarceration. It was apparent on the record that, due to the exceptional difficulties encountered in managing the appellant's condition, incarceration has a disproportionate impact on him: R. v. T.L.B., 2007 ABCA 61, 409 A.R. 40, at para. 34; R. v. C.D., 2012 ONCA 696. In our view, this impact ought to have been taken into account.

C. Conclusion

[17] It is for these reasons that we dismissed the appellant's conviction appeal, granted leave to appeal sentence and varied the sentence by making the six-month sentence imposed for dangerous driving concurrent, rather than consecutive, to the sentence imposed for the firearm offence.

"E.A. Cronk J.A."

"Paul Rouleau J.A."

"B.W. Miller J.A."