Court File and Parties

Ontario Court of Justice

Date: 2019-12-13

Court File No.: Newmarket 17 02097

Between:

Her Majesty the Queen

— and —

Evarista Perez

Ruling on Charter Application

Before: Justice David S. Rose

Heard on: October 1, December 13, 2019

Counsel:

• Ms. L. McCallum, Ms. M. Rumble — counsel for the Crown
• Ms. A. Audet — counsel for the accused Evarista Perez

Decision

ROSE J.:

Introduction

[1] On March 8, 2017 the police seized Ms. Perez' car. Two days later they executed a search warrant and seized a loaded 9mm handgun from its glove box. As a result she was charged with several Criminal Code violations: possession of a firearm without a permit; careless storage of a firearm; possession of prohibited firearm without a registration certificate; possession of a loaded prohibited firearm without an authorization or licence. She argues that her Rights under the Charter of Rights and Freedoms have been violated and seeks a ruling that the gun found in her car be excluded from evidence at this trial. This is my ruling on that discreet issue.

Facts

Police Respond to Shots Fired

[2] The police received a 911 call on March 8, 2017 at about 12:49 am that shots had been fired in the area of 12 Woodstream Blvd. That is near Highway 7 in Vaughan. PC Arcuri was the first to respond. He arrived in the vicinity at 12:56 am. When he arrived at the location he saw a lone female leave Unit 112 and walk to a white car parked in front of the Unit. He described its manner of parking as normal. The woman was on her cell phone. He described #112 as a condominium Unit in a strip, near a number of highrise condominiums. He stopped his car to talk to her. At that point he was looking for suspects and victims.

[3] Arcuri asked the female if she saw or heard anything, and she said that she hadn't. PC Arcuri noticed nothing unusual about the car. The woman walked to the driver's side of the car. PC Arcuri was by then joined by PC Kandur and both started to canvass the area for shell casings. Both officers drove to the closest driveway, which fed the garage for the entire complex. PC Arcuri described the driveway as a roundabout, and by then the woman he had seen earlier was driving the white car in the driveway trying to get around the police cars and go into the underground garage. She was still alone. That area was close to Unit 112, perhaps a minute's walk away.

[4] PC Arcuri continued searching for shells and found 9 on the west sidewalk area in front of Units 112 and 110. Sgt. Nyagi was by then present and passed information to PC Arcuri about bullet holes found in the front of Unit 112. At that point a different female approached PC Arcuri in the company of another officer. That woman told him that she had been in a Tim Hortons across the street from Unit 112 and saw a male in all black shooting at the white vehicle in front of Unit 112. Arcuri passed that information along to other officers on scene. He himself had seen the white car going into the underground parking lot nearby. PC Arcuri didn't go into Unit 112 or the underground parking lot.

[5] Sgt. Kojevnikov was an acting Sergeant that night. She arrived on scene at 1 am and found PC Arcuri, Sgt. Nyagi and others. She learned that there was no victim of the shooting but that there were bullet holes in Unit 112. She learned that Unit 112 belonged to an individual named Vince Asanti. He was not home at the time of the shooting, but his girlfriend Evarista Perez was. She testified that three other officers were taking statements from witnesses. Sgt. Kojevnikov received information that 10 shell casings were found on the sidewalk outside Unit 112.

Police Entry into the Parking Garage

[6] Sgt. Kojevnikov got information from PC Arcuri that he had seen a female move the car from in front of Unit 112 to the garage. With that she went down into the garage and found the car. It was a white Hyundai Elantra with licence plate BYVK 206. She explained her reasons for going into the garage. As she put it, she was looking for victims, and evidence of the shooting. She got into the garage by walking in.

[7] When she saw the Hyundai it was parked in the visitors area. No one was inside the car. She didn't open the car. For continuity reasons she stayed with the car. Sgt. Nyagi gave directions that the car be sealed and then towed. She arranged for that, and gave instructions to the Forensic Identification Unit. She never went into Unit 112 and wasn't involved in the decision to go in there.

[8] Sgt. Nyagi got the same weapons call as the other police witnesses that morning. He received a lot of information over the radio, including the names of the callers, the fact that several gun shots were heard and that the suspect was seen running northbound to a vehicle on Highway 7. That information included the tip that the shooter had come across the street from Unit 112 and, notably, someone had been shot.

[9] Nyagi arrived at 12:59 am. He saw two officers speaking with a security guard from the condominium complex. He spoke to a witness to find out what happened and was told that several shots were fired and a male with a suitcase had run north to a vehicle.

Police Entry into Unit 112

[10] Nyagi organized a search to look for a victim. In his evidence, "We needed to locate a victim." As he walked the area he saw bullet holes in front of Unit 112. There were holes into the glass in the front of the Unit. He testified that he needed to make sure everyone was safe. He knocked on Unit 112 and Ms. Perez opened the door. He asked her if everyone was ok, and she said that she didn't know anything and had just got out of the shower.

[11] With that Sgt Nyagi walked into Unit 112. He testified that the reason was "to find out 100% if anyone else inside was injured". His discussion with her at the door wasn't a long one. He was clear in his evidence that he was going inside Unit 112. Ms. Perez wasn't resisting but Nyagi considered it urgent. As he testified "Someone may have been shot. I wasn't thinking about getting a warrant". He walked through all 3 floors of the Unit in about 2 minutes. He found no one else inside, other than Ms. Perez. When he was in the upstairs bedroom he saw a firearm on a bed. He left it in place.

[12] He then supervised other officers to investigate the shooting outside Unit 112. He went with Sgt. Kojevnikov to the underground parking lot. He testified that his only concern was that someone might be hurt. When he saw the Elantra he saw a bullet hole under the licence plate, and damage to the door which looked like it had been caused by a bullet graze. He was satisfied that no person was in the car injured, and detailed Sgt. Kojevnikov to stay with the car.

[13] Sgt. Nyagi went back to the area in front of Unit 112 and spoke with two officers, DC Duffy and DC Burford. He went back into the house briefly, and confirmed that the gun he had seen on the bed upstairs in Unit 112 was a replica, and not a genuine firearm. He left it where he had seen it. He seized nothing from the house or the car.

[14] Sgt. Nyagi testified that he saw 4 bullet holes in front of Unit 112. Two of them were low on the sill and 2 above that. He agreed that the two lower ones were unlikely to enter the condominium, but he had no idea one way or the other if bullets entered the Unit. He agreed that from the bullet holes there was nothing to suggest that anything entered the Unit. He said that his authority to enter Unit 112 was exigent circumstances to make sure that everyone was safe. He was candid that he would have entered Unit 112 to make sure everyone was safe regardless of what Ms. Perez said. He testified that when he saw the bullet holes in Unit 112 he was concerned that someone was shot. The original 911 caller had said that someone was shot, and he needed to confirm for himself that no one was injured.

Search of the Elantra

[15] Officer Williamson is a Detective Constable with the York Regional Police Forensic Identification Unit. On March 8, 2017, just before noon, he was shown a search warrant for a Hyundai Elantra, which was by then at York Regional Police Headquarters. He knew nothing about the circumstances which brought the car into the custody of the police.

[16] The Elantra was moved into a Forensic Identification bay at the police garage, and PC Williamson removed the seals on it. By that time he knew that he was searching the car looking for "Evidence consistent with a bullet hole and retrieval of the projectiles." PC Williamson started his search of the car at 1:24 in the afternoon by first taking pictures. He noticed a bullet hole in the rear bumper below the licence plate. The car was locked, so he obtained the assistance of another officer to unlock it. When that was done he opened the driver's door and unlocked the trunk using the car's trunk release.

[17] When Williamson opened the trunk he followed the trajectory of the bullet. He noticed black Styrofoam on the rear interior lip of the trunk. He removed it and concluded that the bullet had passed through the rear bumper and entered the trunk. He used a flashlight but couldn't locate it there. With that he entered the cabin of the car believing that the slug had travelled there. He first looked for documents. When asked why, he said that he always looks for ownership documents when he searches a car. It was part of his training. He has executed a large number of search warrants on cars and always looks for vehicle documentation.

[18] Williamson opened the glove box. He said that the search warrant gave him authority to look anywhere in the car. His initial search for a bullet was unsuccessful. Initially he said that he didn't know if the bullet was in there because the glove box may have been open at the time of the shooting. In cross-examination he admitted that the search warrant authorized a search consistent with a bullet hole and projectiles and not documentation. He testified that if he had found the bullet in his first examination of the trunk he would not have continued the search, but he still would have looked for the vehicle's ownership papers. With that said, he went into the cabin of the car on March 8 because he thought that the bullet entered that area of the car. No one asked him to look for ownership documents. He believed that he was legally within the car.

[19] When he opened the glove box, DC Williamson saw a handgun inside. He didn't touch it, and left it in place. He spoke with DC Seal, who was in charge of the search, because he wasn't sure if the search warrant permitted the seizure of the gun. As Williamson put it, it was DC Seal's call about what to do. Seal told him to stop the search and seal the car up.

A Second Warrant

[20] A new warrant was obtained by March 10, and at 3 pm that day DC Williamson went back into the garage bay to continue searching the Elantra. He seized the gun from the glove box, and started using trajectory rods to locate the bullet. He found it on the floor of the trunk. It had lodged in the frame of the car between the rear seat and trunk. When DC Williamson removed the plastic covering over the horizontal metal frame of the car the bullet fell onto the floor of the trunk. The location of the bullet damage would suggest that the slug entered the rear trunk underneath the rear licence plate, bounced to the driver side, and slightly upwards, ultimately lodging in the area just underneath the rear dash of the car behind the rear passenger seat on the driver's side.

Agreed Facts

[21] The evidentiary record was completed with filing both the March 8 and 10 Search Warrants to search the Elantra. An Agreed Statement of Facts (ASF) was filed with details about the 3 witnesses who heard 5 – 6 loud bangs believed to be gunshots in the vicinity of Woodstream Avenue south of Highway 7. The ASF outlined that the sole tenant of 112 Woodstream was the boyfriend of Ms. Perez. His name is Vincent Asanti. Ms. Perez lived in Barrie and would visit Mr. Asanti there and would sometimes stay overnight. Ms. Perez told this to Officer Duffy, the night of the investigation. She told other officers that she lived at the residence with her boyfriend and another person.

[22] The ASF also admits that the gun seized from the Elantra was a 9mm semi automatic pistol. It was loaded with 9mm ammunition at the time it was found in the car. Four rounds were in the magazine, and 1 was in the chamber.

Issues

[23] The defence makes four Charter based arguments:

1. Was Sgt. Nyagi's entry into Unit 112 unlawful?
2. Was the warrantless seizure of the vehicle unconstitutional?
3. Was the manner of execution of the First Search Warrant unreasonable?
4. If Issue #3 is decided for the defence what becomes of the Second Warrant?
5. If there was a Charter Breach should evidence be excluded?

First Issue – Warrantless Entry into Unit 112

[24] Ms. Perez argues that Sgt. Nyagi's entry into Unit 112 was a warrantless entry into a dwelling. She argues that the warrantless nature of the entry makes it prima facie unreasonable and that there is no law which permitted it. The Crown replies with two arguments. The first is that Ms. Perez had no standing in law to make the argument because it was not her dwelling, and the second is that if I do find that she had standing, the entry was permissible as an exigent circumstance.

Standing

[25] If an accused person has a reasonable expectation in a place, then they have standing to argue that their Charter rights have been infringed by a warrantless entry into that place. In R. v. Edwards, 45 C.R. (4th) 307 the Court ruled that a boyfriend did not have a reasonable expectation of privacy in his girlfriend's apartment. The Crown in this case simply turns the facts of Edwards around and argues that here Ms. Perez had no expectation of privacy in her boyfriend's condominium.

[26] When the privacy interest is territorial, as the claim is here, the totality of circumstances must be assessed. It is a contextual analysis. In Edwards (at para. 45) the Court outlined several factors to be examined in that finding. They are:

(i) presence at the time of the search;

(ii) possession or control of the property or place searched;

(iii) ownership of the property or place;

(iv) historical use of the property or item;

(v) the ability to regulate access, including the right to admit or exclude others from the place;

(vi) the existence of a subjective expectation of privacy; and

(vii) the objective reasonableness of the expectation.

[27] This list can be divided into 4 lines of inquiry: the subject matter of the alleged search; the claimant's interest in the subject matter; whether the claimant had a subjective expectation of privacy in the subject matter; and whether the subjective expectation of privacy was objectively reasonable, see R. v. Spencer, 2014 SCC 43, R. v. Yu, 2019 ONCA 942.

[28] In this case Ms. Perez' reasonable expectation of privacy is not overwhelming. Nonetheless I am prepared to find that she had one in Unit 112. On the facts before me she was a part time visitor to the place, which was solely occupied by her boyfriend. Notably, she was present in Unit 112 when Sgt. Nyagi arrived at the doorstep of the Unit to speak with her. It is also important that it was about 1 am and she was alone in the Unit, having just got out of the shower. That provides some support for her subjective expectation of privacy She had been a visitor at the place in the past because of her relationship with the sole tenant. It is also notable that she could exclude anyone from the Unit. She had a reasonable expectation that she would remain alone in the Unit, and therefore had a privacy interest. I therefore find that she has standing to advance an argument that her s. 8 rights were violated when Sgt. Nyagi walked into the Unit without prior judicial authorization.

Warrantless Entry

[29] The police have a common law power to enter a dwelling, and therefore interfere with the occupant's liberty and or freedom in exigent circumstances. This is an ancillary, common law, power which is dependent to fulfilling two criteria:

1. The police were acting in the course of their duty when they effected the interference; and

2. The conduct did not involve an unjustifiable use of police powers in the circumstances.

See R. v. Simpson, 79 C.C.C. (3d) 482 (Ont. CA)

[30] In R. v. Godoy, [1998] S.C.J. 311 Chief Justice Lamer was clear that "… public policy clearly requires that the police ab initio have the authority to investigate 911 calls, but whether they may enter dwelling houses in the course of such an investigation depends on the circumstances of each case." It is a fact driven inquiry which determines whether the entry is lawful because of exigent circumstances. Godoy was a case flowing from the problem of 911 calls which hang up before the caller can connect with emergency services. That is not the case here. Nonetheless, the Court was clear that the police have an obligation to investigate the interior of a house where they have reason to believe that there may be an occupant in need of emergency help. As Lamer CJC put the point (at para. 20), "I certainly cannot accept that the police should simply take the word of the person who answers the door that there is "no problem" inside."

[31] On the facts before me, Sgt. Nyagi and his team had the following information when he entered Unit 112:

• multiple callers had contacted 911 to report a shooting in the immediate vicinity;
• one caller had said that someone had been shot;
• the callers were known, and had spoken to the police at the scene. They were therefore more trustworthy than anonymous tipsters;
• the witnesses reported a gunman running away from the shooting scene in the moments after the shots were fired;
• nine shell casings were found on the sidewalk outside Unit 112;
• four bullet holes were found in the front entrance of Unit 112;
• there was an occupant of Unit 112 who said that she had just gotten out of the shower and knew nothing about a shooting;
• a car which was parked outside Unit 112 had been found parked nearby. It had been moved from the Unit by a woman. The car had a bullet hole in it.

[32] When Sgt. Nyagi entered the Unit he had one intention, looking for victims of the shooting. He ignored a gun which was openly situated on a bed. It turned out to be a replica and therefore perfectly innocent, but he paid no real attention to it.

[33] With these facts established I have no difficulty in finding that the police entered Unit 112 to look for persons who may have been shot. They had multiple sources of credible information that a shooting had just occurred. Simple logic told them both that Unit 112 was the target of the shooting, and that only 4 shots had been accounted for. Of the 9 spent shell casings found on the sidewalk only 4 were in the front of Unit 112. That left several unaccounted for. I also find that Sgt. Nyagi's assertion that he was only interested in determining if anyone inside Unit 112 had been shot is confirmed by the fact that he ignored the gun on the bed.

[34] Unlawful shootings are sudden, violent and terrifying events which can take place. The police have a clear power to investigate them, neutralize the scene, determine if anyone is injured, and treat the wounded. Shooting victims require immediate urgent medical attention. The argument that in these circumstances the police were required to seek judicial authorization prior to entering a dwelling is misguided. Prior judicial authorization is normally required before the police enter a dwelling, see R. v. Feeney, [1997] 2 S.C.R. 13, but not if they have fresh information about a potentially acute public safety issue – as they did here. This limb of the Charter Application is dismissed.

Second Issue – Was the Warrantless Seizure of the Elantra a Violation of Ms. Perez' Right to be Free from an Unreasonable Search or Seizure

[35] Ms. Perez abandoned her argument that the police required a search warrant before entering the parking lot to view the Elantra. This was a fair concession in light of the Court of Appeal's recent ruling in R. v. Yu et al., 2019 ONCA 942 at paras. 78 – 80.

[36] With that established I have no difficulty finding that the police were lawfully situated when they viewed the bullet hole in the Elantra. By that point they knew that the Elantra had been parked outside of Unit 112 in close proximity to several shell casings. It is an overwhelming inference that the Elantra was shot at during the incident that drew the police to the scene.

[37] The Criminal Code permits police to seize evidence without a warrant if they are in execution of their duties, and have reasonable grounds to believe that the thing will afford evidence in respect of an offence. Section 489(2) makes this clear:

489 (2) Seizure without warrant Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds

(a) has been obtained by the commission of an offence against this or any Act of Parliament;

(b) has been used in the commission of an offence against this or any other Act of Parliament; or

(c) will afford evidence in respect of an offence against this or any other Act of Parliament.

[38] I also have no difficulty in finding that Sgt. Nyagi had reasonable grounds to believe that the Elantra would afford evidence of any number of firearms offences under Part III of the Criminal Code. There is no conclusion available on the facts before him at the time but that the bullet which entered the Elantra was still in it. This limb of the Charter Argument is dismissed.

Third Issue – DC Williamson Opens the Glove Box and Sees a Gun

[39] The Search Warrant issued on March 8, 2017 was clear on its face that the police were entitled to enter the Elantra and search for "Evidence consistent with a bullet hole and retrieval of the projectiles." There is no question that DC Williamson had lawful authority to go into the car to search for those things. He did that in the initial phase of the search when he entered the trunk of the car. When his search of the trunk area turned up nothing the Warrant permitted him to follow the obvious path of the bullet and enter the cabin of the car.

[40] I have no difficulty in finding that he therefore had lawful authority to be in the cabin of the car until the point when he opened the glove box. At that point, in his evidence, he paused the search for the bullet to look into the glove box to search for documentation of ownership of the car. By that point the police had reliable information that Ms. Perez was the owner of the car. They knew that from the VIN number clearly visible on the dashboard and the Ontario licence plate.

[41] Search warrants contain specificity for good reason. The search must be tailored so that it is no more intrusive than necessary, see R. v. Vu, 2013 SCC 60 at para. 22. The Ontario Court of Appeal summarized this proposition in R. v. Saint, 2017 ONCA 491, where Miller JA said (at para. 7),

With respect to prior judicial authorization, the law is clear that a warrant must contain an adequate description of the place to be searched and the property to be searched for. There are multiple reasons for this demand for specificity. First, meaningful judicial pre-authorization requires specific details. It is crucial for effective judicial control of the search that the reviewing justice understand the parameters of the proposed search, and that the search conducted be the search that was in fact authorized: R. v. Ting, 2016 ONCA 57, 333 C.C.C. (3d) 516 (Ont. C.A.), at para. 49. Second, by providing a precise description of the place to be searched, the warrant directs the actions of the executing officers, guiding them to the specific place to be searched and defining the boundaries of the search. An insufficiently specific warrant will fail to provide the requisite guidance to the executing officers, leaving them to fill in the blanks with their own knowledge, or to pursue attractive leads at their own discretion: Ting, at paras. 60-61. Third, specification of place in the warrant allows a person served with the warrant to readily apprehend that executing officers have legal authority to enter and conduct the search, reducing the risk of conflict and violent resistance to the search: Ting, at para. 49; Eccles v. Bourque, [1975] 2 S.C.R. 739 (S.C.C.).

[42] Casting the facts before me against this jurisprudence I find that DC Williamson paused his search for a bullet in the cabin of the car so that he could look for documentation confirming ownership of the Elantra. This may have been logically connected to the investigation but it was not authorized by the Search Warrant. The gun was not in plain view until the glove box was opened, and the glove box was not opened to look for a bullet but paperwork. DC Williamson did testify initially that he didn't know if the glove box was open when the car was shot at, but after being cross-examined he admitted that he didn't go into that specific space for the bullet. I therefore find that he opened the glove box for a reason which was not authorized by the March 8, 2017 search warrant. His view of the contents of the glove box was therefore unlawfully obtained, and a violation of Ms. Perez' right to be free from unreasonable search or seizure. This limb of the Charter Application is granted.

Fourth Argument – Excision of Paragraphs from the March 10 Search Warrant

[43] The subsequent Search Warrant granted on March 10, 2017 clearly permits search of the Elantra for purposes of seizing the gun in the glove box. Firearms, and firearm related evidence are stipulated in Appendix A of the March 10 Search Warrant as items that may be searched for.

[44] When a search warrant contains factual assertions which arise from unconstitutional acts those paragraphs must be excised in order to determine if the warrant could still be issued on the balance of the Information to Obtain. As the Supreme Court said in R. v. Plant, [1993] 3 S.C.R. 281 (at para. 33),

… peace officers cannot benefit from their own illegal acts by including in informations sworn to obtain warrants facts which were retrieved through searches without lawful authority.

The issue is whether the second warrant could have been issued after excision of those paragraphs which flow from DC Williamson's initial opening of the glove box using the test from R. v. Garofoli, [1990] 2 S.C.R. 1421 at paragraphs 66 – 68. Put bluntly, could the second warrant still have been issued without DC Williamson's observations of the contents of the glove box?

[45] The second search warrant refers to DC Williamson's view of the glove box in paragraphs 14, 17, 21 and 22. Once those paragraphs are excised from the search warrant I find that it would not have been issued. The second search warrant could have been granted to search for a bullet, and projectile related things, but nothing more. The 4 paragraphs referred to infra are necessary to establish reasonable grounds to believe that the car contains something more than a bullet. I would therefore quash paragraphs 1 and 4 of Appendix A of the second search warrant. This limb of the Charter Application is granted.

Fifth Argument – Exclusion of Evidence under s. 24(2) of the Charter

[46] Applying the three part test from R. v. Grant, 2009 SCC 32 in turn:

Seriousness of State Misconduct

[47] DC Williamson's observation of the interior of the glove box was logically connected to the investigation insofar as documentation for the car was part of the overall case. The police may well have had reliable information about who the owner was, but it was still incidental to their investigation to obtain documentation about the car. This was not a cavalier attitude to state power, as seen in R. v. Brown, 2012 ONCA 225. I would describe the misconduct as minor, see R. v. Mahmood, 2011 ONCA 693. In making this finding I have considered the fact that DC Williamson was clear in his evidence that looking for documentation during the search of a car was part of his training. DC Williamson's training is part of the state apparatus which must be considered as part of the Charter infringing conduct. He simply implemented his training. Were it not for the fact that the police training does not sufficiently tailor vehicular searches to what the warrant specifically permits this would have been a technical breach, see R. v. Butters, 2014 ONCJ 228. Because this has systemic elements to it, the breach is therefore more than technical, but still at the less serious end of the spectrum.

[48] It is significant in my finding that DC Williamson was not looking for contraband, but rather public documents about ownership. It is also a factor that DC Williamson was in the cabin of the car pursuant to a lawful search warrant. He was looking for what was permitted in the search warrant. He went beyond that authorization, but just barely. It is also relevant that the police got a second warrant. This furnishes evidence of their genuine interest in conducting a Charter compliant investigation. It was that second warrant that gave them judicial authorization to seize the gun. There was no pattern of conduct in this case which supported a finding of Charter infringing conduct.

[49] The first factor in the Grant analysis modestly favors admission of the handgun into evidence.

Effect of the Charter Violation on the Charter Protected Interests of Ms. Perez

[50] The interior of a motor vehicle has a privacy interest but it is diluted, see R. v. Diamond, 2016 SCC 46. For example, motor vehicles are subject to meaningful inventory searches when the car is in police custody for a traffic violation, see R. v. Wint, 2009 ONCA 52. A motor vehicle may be searched incidental to arrest for purposes of confirming the identity of the accused without violating s. 8, see R. v. Caprara, 211 O.A.C. 211 (C.A.). This informs my finding that Ms. Perez had a lessened privacy interest in the interior space the car. It follows that she suffered a lessened impact on her Charter protected interests. At the time that the car was taken into custody by the police it was parked in a visitor's spot in a condominium parking lot. The search of the glove box was not within the plain view doctrine, but Ms. Perez' car was subject to a viewing by anyone passing by it in the lot. The lawful search warrant permitted DC Williamson to search the whole of the car for the bullet, including the glove box.

[51] I therefore find that the second phase of the Grant test pulls toward admission of the gun.

Societal Interest in Adjudication on the Merits

[52] Society always has an interest in a trial on its merits. The question is by how much? This is a case involving a gun in the glove box of a parked car. The impugned evidence is quite reliable because it is a physical object. The Agreed Statement of Facts makes clear that the gun is a Kel-Tec 9 mm semi-automatic pistol. It meets the definition of a firearm in s. 2 of the Criminal Code. Illegal handguns are of extreme concern in Canada. The Greater Toronto Area has been subjected to an intolerable spike in shootings in the past few years. For these reasons the societal interest in a trial on the merits is quite high. The third factor of Grant heavily favors admission of the evidence.

Result

[53] Having balanced the Grant factors I would admit the evidence. Despite Ms. Audet's able submissions the Charter Application is dismissed.

[54] This Charter Application was very well prepared and argued by all Counsel who appeared.

Released: December 13, 2019

Signed: Justice David Rose