Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210623 DOCKET: C64896

Feldman, Miller and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Zachary Barton Appellant

Counsel: Nathan Gorham and Breana Vandebeek, for the appellant Robert Hubbard and Katie Doherty, for the respondent

Heard: June 17, 2021 by video conference

On appeal from the convictions entered on February 16, 2017 by Justice Suhail A.Q. Akhtar of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Overview

[1] Zachary Barton was convicted by a jury of firearms-related offences. During a warrantless search, police found a semi-automatic handgun inside a planter located in a common hallway outside Mr. Barton’s apartment. The next day, while executing a search warrant, police found ammunition for the firearm and a bullet-proof vest inside Mr. Barton’s apartment.

[2] Mr. Barton appeals his convictions. He contends that the trial judge erred in concluding the semi-automatic handgun was not “obtained in a manner that infringed or denied” his rights under the Canadian Charter of Rights and Freedoms, given the causal, contextual, and temporal links he alleges between the search of the planter and what was conceded by the Crown to be unconstitutional police conduct in seeking to search his apartment without a warrant. In the alternative, Mr. Barton argues that the trial judge erred in finding that he did not have a reasonable expectation of privacy in the hallway or the planter.

Analysis

[3] We agree with Mr. Barton’s submission that the trial judge erred in concluding that the semi-automatic handgun was not “obtained in a manner” that infringed his rights or freedoms in the meaning of s. 24(2) of the Charter.

Causal connection under s. 24(2)

[4] Police officers discovered the semi-automatic handgun as a result of a step they had taken to gain unlawful warrantless entry into Mr. Barton’s apartment. Specifically, they moved the planter in the hallway to assist their efforts in breaching the front door. After moving the planter, the officers observed a string protruding from its cylinder. Inferring that the string might be attached to a key that would give them warrantless entry to Mr. Barton’s apartment, the officers pulled the string which led to a bag secreted in the planter. They opened the bag and discovered the semi-automatic handgun inside.

[5] Since the semi-automatic handgun was discovered as a result of a step officers had taken to gain unlawful entry to the apartment, the discovery is causally connected to the Charter breach: see, R. v. Goldhart, [1996] 2 S.C.R. 463, at paras. 33-35. The trial judge erred in finding otherwise.

Contextual and temporal connections under s. 24(2)

[6] The trial judge also erred in drawing the conclusion on these facts that the contextual and temporal connections between the unlawful entry of the apartment and the discovery of the semi-automatic handgun were remote and attenuated. We see no basis in the evidence for these holdings.

[7] We are therefore persuaded that the semi-automatic handgun was unconstitutionally obtained. As a result, reference to the discovery of the semi-automatic handgun must be excised from the information to obtain the search warrant.

Related issues necessitating a new trial

[8] Unfortunately, we are not in a position to determine whether this outcome undermines the grounds for the search warrant. Having decided that the semi-automatic handgun was not unconstitutionally obtained, the trial judge upheld the warrant without resolving the Crown’s fall-back position that, even without the unconstitutionally obtained evidence, the warrant could be upheld at “Step Six” of the test from R. v. Garofoli, [1990] 2 S.C.R. 1421 by disclosing and considering redacted information that was before the issuing judge. That issue cannot be resolved on the record before us.

[9] A new trial is therefore required to determine whether excision of the discovery of the semi-automatic handgun from the warrant information will lead to a finding that the later warranted search was unconstitutional. This finding could, in turn, have an impact in deciding whether to exclude the semi-automatic handgun itself, since additional Charter breaches occurring during the same investigation can enhance the seriousness of each of the Charter breaches: see e.g., R. v. Davidson, 2017 ONCA 257, 352 C.C.C. (3d) 420, at para. 48.

[10] Moreover, if the ammunition and vest are excluded at the retrial, this would not only resolve the possession charges with respect to those items, but could affect the strength of the evidence regarding Mr. Barton’s possession of the semi-automatic handgun. It is therefore prudent for us to refrain from attempting to determine the admissibility of the semi-automatic handgun, or to resolve any of the charges before us, based on incomplete information.

[11] It is also unnecessary for us to determine whether Mr. Barton had a reasonable expectation of privacy in the hallway or in the planter that could support an additional s. 8 Charter violation. That issue can be determined by the trial judge during the retrial.

Conclusion

[12] Accordingly, we set aside Mr. Barton’s convictions and order a retrial on all charges.

“K. Feldman J.A.” “B.W. Miller J.A.” “David M. Paciocco J.A.”