Court of Appeal for Ontario

Date: 2018-10-22 Docket: C62962

Judges: Sharpe, Lauwers and van Rensburg JJ.A.

Between

Her Majesty the Queen Respondent

and

Alexandre Lacroix Appellant

Counsel

Leo Adler, for the appellant

Carmen Elmasry, for the respondent

Heard: October 5, 2018

On appeal from: The conviction entered by Justice Kevin B. Phillips of the Superior Court of Justice, sitting with a jury, on June 30, 2016, and from the sentence imposed on October 28, 2016.

Reasons for Decision

[1] The police recovered a .45 calibre semi-automatic handgun and ammunition when they executed a search warrant at the appellant's residence. The appellant was convicted of unlawful possession of a firearm and given a 12 month conditional sentence that included eight months of house arrest.

[2] He raises three grounds of appeal against conviction and seeks leave to appeal his sentence.

(1) Validity of the Search Warrant

[3] The appellant challenged the validity of the search warrant on a pretrial motion. We see no error in the comprehensive reasons of the motion judge rejecting that challenge, reported at 2015 ONSC 6258, that could warrant appellate intervention.

[4] Any inaccuracies in the ITO were minor and inconsequential.

[5] The ITO provided evidence that the appellant was the registered owner of a cell phone with a billing address at the appellant's residence. On an intercepted call for which that cell phone was used, the speaker stated in coded language that he was "still holding on to" the .45 calibre firearm. This was one of 150 intercepted drug and gun related phone and text message conversations involving a speaker the officer identified as having the same voice.

[6] In our view, the motion judge was entitled to conclude that the issuing justice of the peace could find on this record a reasonable basis to believe that the speaker was the appellant.

[7] The appellant argued that there was no evidence linking the gun to the residence. He asserted that the speaker's statement that "I'm still holding on to the [handgun]" did not indicate that he was holding it at the residence in the absence of evidence establishing the speaker was in his residence and not in another location at the time of the cell phone call. In oral argument, the appellant acknowledged that evidence showing that the speaker was in the immediate vicinity of his residence at the time he made this statement would establish reasonable grounds linking the handgun to the residence.

[8] However, the speaker himself stated "I'm just at home" at the beginning of the call prior to making the statement about the handgun. Later in the call, the speaker made statements indicating that he was just relaxing and was not sure if he would "step out" that are consistent with him being at home that evening. These statements provide a reasonable basis for inferring that the speaker was at home at the time he made the handgun statement.

[9] It follows that the motion judge did not err in concluding there was sufficient credible and reliable evidence to permit the issuing justice to find that there were reasonable grounds that the handgun was in the residence. The officer provided evidence that a residence is one of the usual places where individuals in possession of illegal firearms will store and conceal those weapons. The issuing justice was entitled to rely upon this opinion: see R. v. Prosser, 2016 ONCA 467, at para. 18, leave to appeal refused, [2016] S.C.C.A. No. 327. There was ample evidence to show that the appellant lived in the residence.

(2) Admissibility of Utterances Upon Arrest

[10] We do not agree that the second motion judge erred in ruling, in reasons reported at 2016 ONSC 3052, 355 C.R.R. (2d) 219, that utterances the appellant made as to the location of the firearm following his arrest should be admitted into evidence.

[11] The statement the appellant made was spontaneous and voluntary and he was appropriately cautioned before he made it.

[12] In the immediate circumstances of the arrest, it was reasonable for the motion judge to find that it was not feasible to provide the appellant with a phone to speak to a lawyer before he reached the police station.

[13] The motion judge concluded that the arresting officer did not have reasonable grounds to arrest the appellant and that the police breached the appellant's s. 9 right under the Canadian Charter of Rights and Freedoms.

[14] We see no reason to interfere with the motion judge's conclusion in his s. 24(2) analysis that the evidence should be admitted despite the s. 9 breach. The motion judge reasonably concluded that the Charter-infringing state conduct was not serious and the connection between the arrest and the utterance was indirect.

[15] While the execution of the search warrant did not provide reasonable grounds to arrest the appellant, it did afford reasonable grounds for an investigative detention. The motion judge was entitled to find that the concern that motivated the appellant's statement was his concern about his house being searched and the possible jeopardy in which that placed his partner. He did not engage in improper speculation by concluding that the accused would have had the same motivation to make the utterances had the police subjected him to investigative detention instead of arresting him. Accordingly, we are of the view that the motion judge did not err that in concluding that the appellant would have made the statements notwithstanding the Charter breach. He appropriately concluded that this lessened the impact on the accused's Charter-protected interests: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 96. He appropriately placed significant weight on the fact that the utterances were reliable evidence given after the appellant was cautioned and were important to the prosecution's case: see Grant, at paras. 81, 83.

(3) Jury Instruction

[16] The appellant complains that there were discrepancies between the oral and written versions of the jury instruction. While there were some discrepancies, they were minor in nature. Neither version of the jury instruction revealed legal error and the differences could not have affected the jury in its deliberations.

[17] Nor do we agree that the trial judge erred in his instruction on possession.

(4) Sentence

[18] We see no merit in the appellant's submission that the trial judge erred by imposing a conditional sentence rather than a conditional discharge. The trial judge provided careful reasons considering the mitigating factors, including the significant rehabilitation of the appellant since the commission of the offence. He concluded that given the serious nature of the offence, the considerations of general deterrence and denunciation made a discharge an unfit sentence. That decision attracts deference in this court and we see no basis upon which we could interfere and substitute an even more lenient sentence.

Disposition

[19] Accordingly the appeal from conviction is dismissed. Leave to appeal sentence is granted and the sentence appeal is dismissed.

"Robert J. Sharpe J.A."

"P. Lauwers J.A."

"K. van Rensburg J.A."