His Majesty the King v. Shayne Guerrier, 2024 ONCA 838

COURT OF APPEAL FOR ONTARIO

DATE: 20241118 DOCKET: COA-22-CR-0018

Miller, Favreau and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

Shayne Guerrier Appellant

Counsel: Richard Litkowski and Geoff Haskell, for the appellant James Clark, for the respondent

Heard: April 2, 2024

On appeal from the convictions entered by Justice Trevor A. Brown of the Ontario Court of Justice on June 22, 2022.

B.W. Miller J.A.:

[1] This appeal raises the issue of the scope of police authority to search a vehicle under the Liquor Licence Act, R.S.O. 1990, c. L. 19 (the “LLA”).

[2] The appellant and his two friends attended a rap concert in downtown Ottawa. So did four police officers who were members of a specialized anti-gang unit, PIVOT. After the appellant and his friends left the concert and had driven part way across the city, their vehicle was pulled over for speeding. The officer who performed the traffic stop was one of the four officers from the anti-gang unit who had been at the concert. Shortly thereafter, each of the other three officers arrived in separate vehicles and assisted.

[3] One of the officers spotted an open bottle of cognac behind a child’s car seat next to one of the passengers in the back of the car. The appellant and the passengers were directed to exit the vehicle. They refused and were removed from the vehicle and placed under arrest for obstruction of an investigation. The police proceeded to search the vehicle for further evidence of breaches of the LLA. What they found instead was a loaded handgun in the centre console, next to the appellant’s wallet, and a second handgun in a gym bag in the backseat, together with a high-capacity magazine, ammunition, and documents in the appellant’s name. The appellant was re-arrested on firearms charges.

[4] At trial, the appellant argued that the traffic stop was a pretext for an improper purpose, turning into an investigative detention on a criminal matter unrelated to the stop. The appellant argued that the search of the vehicle breached his rights under s. 8 of the Canadian Charter of Rights and Freedoms, and that he was denied his right to counsel in breach of s. 10(b) of the Charter. The trial judge rejected these submissions, finding that the appellant was stopped because he was speeding, that the investigation throughout the stop up to the discovery of firearms had a valid regulatory purpose, that the vehicle search was authorized by the LLA and did not violate s. 8 of the Charter, and that the appellant was provided with his right to counsel as close to immediately as possible from the moment when that right arose.

[5] After the rejection of his initial arguments in a blended voir dire, the appellant also argued that the evidence was equally consistent with another passenger possessing the firearms, entitling the appellant to an acquittal. The trial judge rejected this submission as well, pointing to the appellant’s overall control of the vehicle and the presence of documents belonging to him in the same locations as the firearms. The theory that a passenger had, without the appellant’s knowledge, placed firearms in the centre console or backseat gym bag was held not to be a reasonable possibility on the evidence.

[6] The appellant was convicted on multiple counts related to firearms and ammunition possession and sentenced to 6.5 years less credit for pre-sentence custody and restrictive bail conditions.

Issues on appeal

[7] Although the appellant renews on appeal the arguments that (1) the traffic stop was a pretext and the trial judge made a palpable and overriding error in misconstruing aspects of the appellant’s testimony as to whether he was speeding, and (2) the evidence was equally consistent with another passenger possessing the firearms and ammunition, the appeal primarily turns on (3) the scope of the police power to search a vehicle under the authority of the LLA.

[8] The appellant has abandoned his sentence appeal. Given its primacy, the LLA issue is addressed first.

Analysis

(1) The search pursuant to the LLA

[9] The police conducted a warrantless search of the appellant’s vehicle. A warrantless search is prima facie unreasonable, and the Crown is therefore required to establish on a balance of probabilities that: (1) the search was authorized by law, (2) the law authorizing the search is reasonable, and (3) the manner in which the search was conducted was reasonable: R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 21.

[10] The trial judge accepted that the vehicle search was precipitated by Constable Bell having seen an open bottle of cognac in the backseat of the car. All of the occupants were then removed from the vehicle. The trial judge accepted Constable Bowie’s evidence that the basis for his search was that he believed he might find further open alcohol in the vehicle, and that he searched the centre console for that purpose. The trial judge found that the search was authorized by s. 32(5) of the LLA. The relevant provisions of the LLA (now superceded by the Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sched. 22), are set out below:

Conveying liquor in vehicle, boat

32 (1) No person shall drive or have the care or control of a motor vehicle as defined in the Highway Traffic Act or a motorized snow vehicle, whether it is in motion or not, while there is contained in the vehicle any liquor, except under the authority of a licence or permit.

Exception

(2) Subsection (1) does not apply if the liquor in the vehicle, (a) is in a container that is unopened and the seal unbroken; or (b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle.

Search of vehicle or boat

(5) A police officer who has reasonable grounds to believe that liquor is being unlawfully kept in a vehicle or boat may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.

[11] The trial judge applied what he understood to be binding authority interpreting s. 32(5), notwithstanding that he had some doubts as to its soundness. He accepted Constable Bowie’s testimony that he believed the console could contain an open container of alcohol and concluded that the search of the console was lawful. But the search of the gym bag gave him more difficulty. Constable Bowie was unable to recall whether the bag was “opened or fastened closed”. The trial judge believed that had the bag been zipped shut, it would have been “fastened closed” within the meaning of the statute, and therefore any unsealed container of alcohol inside it would not be “unlawfully kept”. There could therefore be no grounds to search the bag for alcohol unless s. 32(5) authorized searches both for alcohol that is lawfully kept and alcohol that is unlawfully kept.

[12] The trial judge believed himself bound by R. v. F. (J.), 2015 ONSC 3068, which held that s. 32(5) authorizes the search of vehicles for both liquor that is lawfully kept and liquor that is unlawfully kept. Accordingly, the trial judge found that regardless of whether the gym bag was opened or closed, and whether any alcohol contained therein was sealed or open, the search was lawful. He therefore admitted the evidence of the gun, magazine, ammunition, and documents found in the gym bag.

[13] The appellant advanced several arguments challenging the trial judge’s reasoning.

[14] The first is that the search of the console was unreasonable, because the officers had no grounds to believe there would be any open alcohol there. The appellant argued that there was no evidence to suggest the appellant had been drinking, or any other evidence to support reasonable grounds to believe there was alcohol in the console; reasonable suspicion was not a sufficient basis to conduct a search.

[15] I do not agree that the trial judge made a reviewable error. On the evidence before the trial judge, it was an available finding that the investigating officer had reasonable grounds to believe there was unlawfully kept alcohol in the vehicle, authorizing a search under s. 32(5). The investigating officer did not need to have reasonable and probable grounds for each specific location searched. This is consistent with the general approach to offences associated with impaired operation of motor vehicles. As this court recently held in R. v. Singh, 2024 ONCA 66, 432 C.C.C. (3d) 527, at paras. 64-65:

[64] …The operation of motor vehicles on public streets is a highly regulated and inherently dangerous activity. Because of the nature of the activity, the community expects and accepts significant limitations on individual privacy. The dangers presented to the community increase exponentially when drivers choose to drink and drive. The community as a whole has a vital interest in identifying persons who are drinking and driving and removing them from the highways.

[65] The extended powers given to the police under federal and provincial legislation to require drivers to provide certain information, and participate in certain roadside investigative procedures, speaks to the legitimacy and importance of public safety concerns. Those societal concerns must also be taken into account when settling upon the proper relationship between state interests in effective law enforcement, and the individual’s interest in being left alone by the state.

[16] The s. 32(2)(b) exception requires that open alcohol not be readily available to any person in the vehicle. There were three occupants of the vehicle, including one in the backseat. The entirety of the passenger area was within reach of an occupant. On the facts of this appeal, the officer was entitled to search the entire cabin of the vehicle, which included the console and the back seat area.

[17] Second, with respect to the search of the gym bag, the appellant argued that open alcohol in a zipped gym bag could not be “unlawfully kept” because it would be “packed in baggage that is fastened closed”, and therefore not subject to search under the LLA unless the LLA authorizes the search for lawfully stored alcohol, which the appellant argues it does not.

[18] Parenthetically, for the purposes of the admission of the evidence found in the gym bag, nothing turns on this argument. Having found the first gun in the console while conducting a lawful search under the LLA, the search of the vehicle for additional firearms was lawful and inevitable.

[19] Nevertheless, the appellant raises two further questions as to the scope of the LLA search power over which there is some uncertainty. With respect to the first, whether the LLA authorizes a search for lawfully stored alcohol after unlawfully stored alcohol has been located in a vehicle, although R. v. F. (J.) suggests that it does, this proposition seems open to question but is best left to be resolved on an appeal that turns on this question. This appeal can be resolved on a second, narrower question of statutory interpretation.

[20] The interpretive question presented on the facts of this appeal is whether a zipped gym bag that is within reach of a vehicle occupant is baggage that is “fastened closed” within the meaning of the LLA. As explained below, I do not believe that it is.

[21] The dominant approach to statutory interpretation was summarized by Driedger, who labelled it the modern or orthodox principle. That principle was described by Iacobucci and Major JJ. in R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757, at para. 77:

The approach to statutory interpretation can be easily stated: one is to seek the intent of Parliament by reading the words of the provision in context and according to their grammatical and ordinary sense, harmoniously with the scheme and the object of the statute (Interpretation Act, R.S.C. 1985, c. I-21, s. 12; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Gladue, [1999] 1 S.C.R. 688; E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87).

[22] The modern approach has been further distilled to the useful shorthand of “text, context, and purpose”: see, for example, Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, 485 D.L.R. (4th) 583, at para. 69.

[23] As I elaborated in R. v. Walsh, 2021 ONCA 43, 154 O.R. (3d) 263:

[139] There is no sequential ordering of the modern principle factors, beyond beginning with the text of the statute to be interpreted. The factors are closely related and need not be addressed separately in every case: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 31. Their unity is in serving the same inquiry: what can the interpreter ascertain about Parliament's intention? What changes to the rights and obligations of persons did Parliament intend through the legislation enacted?

[140] As Driedger explains, at pp. 2 and 105, the first step in discerning what Parliament intended is to consider the words it used in the context it used them, giving those words their grammatical and ordinary meaning: see also Sullivan, at §3.7; Hutchison, at pp. 46-47. Absent an ambiguity, which requires the interpreter to distinguish among multiple senses of the same word, the text will normally dominate interpretation, although it may not always be sufficient: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10. Reading the words of a statute in the context of the legislative scheme as a whole can help with understanding parliamentary intent, as can considering what it is that Parliament intended to achieve through the statute: Rizzo & Rizzo Shoes Ltd. (Re) 1998 837 (SCC), [1998] 1 S.C.R. 27.

[24] Section 32 of the LLA governs the operation of a motor vehicle, and proscribes anyone from driving a motor vehicle carrying alcohol without a licence or permit to do so. It provides two exceptions. One is if the alcohol is “in a container that is unopened and the seal unbroken”. The other is if the alcohol “is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle”.

[25] The interpretation of s. 32(2)(b) is reasonably straightforward, notwithstanding a degree of vagueness in the descriptor “fastened closed”. In its ordinary meaning, baggage that is fastened closed is baggage that has been secured according to its design to prevent the contents of the baggage from falling out. The means of securing baggage is various: ties, zippers, buttons, buckles, and other mechanisms. But as noted in R. v. F. (J.); R. v. Phillips, 2021 ONSC 5343, 74 C.R. (7th) 121, at paras. 61-62; and R. v. Williams, 2024 ONCA 68, 169 O.R. (3d) 481, at paras. 58-61, the meaning in the context of this provision (or its equivalent s. 12(2)(b) of the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1), is influenced by the phrase “or is not otherwise readily available to any person in the vehicle” (emphasis added). The phrase suggests that “fastened closed” presupposes that the alcohol contained in baggage that is fastened closed is not readily available. So “fastened closed” in this context requires something more than just closed by design: it means that the alcohol contained in the baggage must be closed in a manner that results in it being not readily available. Open alcohol placed in a gym bag that can be opened effortlessly by the passenger seated next to it by pulling a zipper is readily available, and so is not contained in baggage “fastened closed”.

[26] This reading is in accordance with the object of the provision, which is to govern the safe transport of alcohol. Allowing a driver or other occupant of a vehicle easy access to open alcohol would be inconsistent with that purpose.

[27] The search power in s. 32(5) authorizes a search without a warrant where an officer has reasonable grounds to believe that alcohol is unlawfully kept in a motor vehicle. On the facts of this appeal, if there had been an open bottle of alcohol contained in the gym bag, it would have been unlawfully kept. The search of the bag on the back seat was therefore authorized by s. 32(5) regardless of whether the bag was zipped closed or not.

[28] I would therefore dismiss this ground of appeal.

(2) Was the traffic stop a pretext?

[29] The appellant argued that trial judge erred in not finding that the traffic stop was a pretext to investigate the appellant and his companions without reasonable grounds.

[30] On appeal, the appellant further argued that the trial judge erred by not considering whether the circumstances surrounding the traffic stop suggest that the traffic stop was motivated at least in part by negative stereotypes about young Black men. Had the trial judge found that the police had engaged in racial profiling, the appellant argued, this would have provided an additional reason to doubt the evidence of the police witnesses that the appellant had been speeding.

[31] This argument was not advanced at trial, and the Crown rightly objected to it being raised for the first time on appeal. Although the trial judge found there were unusual aspects about the PIVOT team’s role in the traffic stop, the trial judge also found that Constable Bell did not know the identities of the vehicle occupants when she initiated the traffic stop.

[32] It is not appropriate to springboard from a failed argument at trial that the stop was a pretext to investigate criminal activity, to an argument on appeal that the circumstances should lead to the conclusion that the stop was racially motivated, in the absence of any evidentiary record that would support this issue.

[33] The second aspect of the pretext argument was that the trial judge erred by excusing various inconsistencies in the evidence of the police witnesses as to the appellant’s driving, while making an adverse credibility finding against the appellant for minor differences in his testimony in chief and on cross-examination.

[34] I would not accept this argument. The appellant fairly argues that the trial judge need not have concluded that some of the details he provided on cross‑examination were inconsistent with his account given in chief. But the larger problem for the appellant is that some of his evidence was not believed because it was not believable – particularly that although he agreed he might have passed other vehicles on the road, he would have done so while driving below the speed limit and in the curb lane. The trial judge was entitled to reject the evidence of the appellant and made no reversible error in doing so.

(3) The Villaroman error

[35] The appellant argued that the conviction for possession of the firearms, ammunition, and oversized magazine were unreasonable because the evidence was equally consistent with the firearms and associated items being in the possession of someone else.

[36] This argument was rejected at the hearing of the appeal without calling on the Crown. There was ample evidence linking the appellant to the two firearms and associated items. The first firearm was located in the centre console beside him and next to his wallet. The gym bag that contained the second firearm also contained court documents addressed to the appellant related to the appellant’s upcoming family law proceeding. Given the firearm’s value and proximity to the appellant’s wallet and family law documents, and that there was no evidence as to how they could have got there without his knowledge, the trial judge made no error in concluding that the elements of the offence were proved beyond a reasonable doubt.

DISPOSITION

[37] The appeal against sentence was abandoned and is dismissed. I would dismiss the appeal against conviction.

Released: November 18, 2024 “B.W.M.” “B.W. Miller J.A.” “I agree. L. Favreau J.A.” “I agree. J. Copeland J.A.”