Ontario Court of Justice

Date: 2024 04 29

Between:

HIS MAJESTY THE KING

— AND —

JASON BARTLEY

Before: Justice F.M. Finnestad Heard on: March 28, 2024 Reasons for Judgment released on: April 29, 2024

Counsel: Mr. K. Saliwonchyk ............................................................................ counsel for the Crown Ms. M. Di Sabatino ........................................... counsel for the defendant Jason Bartley

FINNESTAD, J.:

[1] Jason Bartley was charged on June 18, 2022 with unauthorized possession of two firearms contrary to s. 91(1) of the Criminal Code.

[2] His trial proceeded on the basis that several facts were not in issue. These included that the items seized met the definition of a firearm, the identity of Mr. Bartley as the driver of the vehicle in which the firearms were located, the date in question and the jurisdiction of this Court to try the charges. His subsequent statement to police that he did not hold a licence to possess the guns was introduced in evidence.

[3] Counsel for Mr. Bartley filed an application pursuant to the Charter of Rights and Freedoms seeking exclusion from evidence of the firearms seized, on the basis of a s. 8 violation. The Notice alleged a warrantless search, one not incident to arrest nor provided for by statute.

The Evidence

[4] In light of the admissions, only one witness testified. The largely uncontradicted evidence was as follows.

[5] On June 18, 2022 an experienced OPP officer, Robin Carmount, attended a call for a motor vehicle accident. When he arrived at the scene he found a pickup truck which had gone off the side of the road and was in a swamp at the bottom of a deep ditch. He received information that the driver, agreed to be Mr. Bartley, had been taken away by ambulance. There was no person remaining on scene who was associated with the vehicle.

[6] Officer Carmount spoke to two witnesses to the accident who were still on the scene. He called a tow truck to remove the vehicle and spoke to Dysart Fire staff who were present.

[7] Officer Carmount received information from Dysart Fire personnel that they had gone through the vehicle for safety reasons after the accident, and seen two firearms and a cross-bow on the back seat.

[8] He testified that because fire personnel had already done a safety check of the vehicle he had no reason to go into the ditch to look at the vehicle before it was towed out. Once the truck was on the roadside he approached the passenger side where he could see both firearms in the back seat. He testified that he did not search the truck, but only removed the guns and seized them until such time as their ownership could be determined and they could be turned over to an authorized person.

[9] Counsel for Mr. Bartley suggested that in light of the airbags deployed in the truck the officer could not have seen the firearms as he described. I note that in the photograph of the vehicle in the ditch, both rear doors are open. The photo from the roadside shows only one side of the vehicle, but the rear door on the side shown is still ajar. He testified that he could not recall if the door were capable of being closed or not, as a result of the damage to the vehicle.

[10] I see no reason not to accept the officer’s credible evidence that when he looked in the truck he saw the two guns. However, in light of the fact that the fire personnel saw the guns and passed this information to the officer, it does not matter whether they were patently obvious or not. The officer was acting on the basis of credible information received when he went to the truck to remove the two guns he was told were visible inside.

[11] Officer Carmount testified that he seized the firearms for a number of reasons. The driver had left the scene and there was no one else there to secure them. He did not at the time know if the driver was authorized to possess firearms. The truck was about to be towed to a towing yard where its security was not assured.

[12] Officer Carmount testified that while the tow company was a common and reliable one, he had prior experience where things had been taken from their tow yard without permission. He did not know if all of the door locks of the vehicle were still functioning but testified that it would not be difficult to break a window if someone were motivated to steal guns that were visible in the truck. He did not feel that leaving firearms in plain view in an unattended vehicle on a tow compound was a viable and safe option. He testified that for public safety reasons he intended to keep them in police possession until he could return them to a licensed owner.

[13] Officer Carmount was asked if he had considered keeping the truck at the scene and applying for a search warrant. He testified that he did not at the time have reasonable grounds to believe that an offence had been committed, and no criminal investigation was being conducted.

[14] These were not prohibited weapons and their possession to be lawful required only a licence. While subsequent to the seizure an ownership search of the truck’s licence plate showed Mr. Bartley as the owner and a further check showed that he was not licensed to possess firearms, the officer testified that this did not give him grounds to believe an offence had been committed. He was aware that even if a person did not have a licence, there were statutory provisions authorizing possession for a reasonable time to acquire that licence, when the guns were received as an inheritance. In fact, as it turned out, Mr. Bartley had acquired them by way of inheritance.

[15] In conclusion the officer did not hold up the towing process and apply for a search warrant as he felt there were no grounds to obtain such a warrant.

[16] The officer’s testimony that he did not have grounds to do a search, is supported by the evidence that he did not in fact conduct any search of the vehicle itself, but simply removed the items he was told were in the truck and which he considered to be inherently dangerous.

Section 8 of the Charter

[17] Section 8 provides that everyone has the right to be secure against unreasonable search or seizure. Because the seizure of the guns was warrantless, the onus is on the Crown to justify it as reasonable, and not a violation of s. 8.

[18] The test to be applied is whether on the balance of probabilities the search was authorized by law, the law was reasonable and the search was conducted in a reasonable manner pursuant to that law.

[19] In describing his actions as being to remove inherently dangerous items from an insecure location for safekeeping until they could be returned to an authorized owner, Officer Carmount was relying on police ancillary powers. Where that is invoked, reference is to be had to the two-step test set out in R v Waterfield (1964) 1 Q.B. 164 (Eng. C.A.) as subsequently refined and applied post-Charter.

[20] In R v Stairs, 2020 ONCA 678, O.J. No 4590 the Court of Appeal for Ontario noted that this involves a consideration of police duties and their relationship to police powers (para 13). The first step was to determine whether the officer was operating within the scope of a duty imposed by statute or by the common law.

[21] At common law the police have a duty to preserve the peace, prevent crime, and protect life and property. The Court of Appeal noted at para. 15 that pursuant to s. 42(1)(c) of the Police Services Act, R.S.O. 1990 “to a large extent, the common law duties of the police rest in sync with their statutory duties”.

[22] I am satisfied that Officer Carmount was acting within the scope of his common law duties, and his statutory obligations, when he entered the vehicle for the sole purpose of removing dangerous items that would otherwise go to an insecure location.

[23] The second part of the test involves a consideration of whether the action the officer took in carrying out that duty constituted a justifiable use of the powers, or was reasonably necessary in the circumstances.

[24] In the circumstances, where the owner of the vehicle had left the scene, there was no one to take responsibility for it or its contents, and it was to be taken to an insecure location, the need to prevent crime, and to protect life and property necessitated removing the firearms from the vehicle about to be towed. There was no criminal offence being investigated that would support the application for a search warrant, a search incident to detention or arrest, or the “plain view” concept. No search of the vehicle was conducted; the firearms identified by the fire personnel were easily located and removed without the need to look any further in the vehicle.

[25] In this situation the only viable alternative to seizing the firearms was to let them go in a potentially unlocked vehicle to a towing yard from which the officer knew, from previous experience, that items could be, and sometimes were, removed. Even if the doors could be locked, the officer testified that it would not be difficult to gain entry to the truck if one were motivated to steal firearms visible in an unattended vehicle on a tow compound.

[26] I find that removing the firearms was reasonably necessary in the circumstances, and a justifiable exercise of the powers associated with the officer’s duties. It was authorized by a reasonable law and the seizure was conducted in a reasonable manner, with the least possible impact on Mr. Bartley’s privacy interests consistent with executing that duty. In conclusion I find that the seizure was a reasonable one, and did not violate s. 8.

Grant analysis

[27] In the event that this conclusion is in error, I turn to a consideration of the factors to be considered in a s. 24(2) analysis as set out in R v Grant, 2009 SCC 32.

[28] I do not find any breach, if there were one, to be a serious one. There is a reduced expectation of privacy in a motor vehicle, particularly where it is damaged and apparently undriveable, and left in the hands of emergency personnel. While I would not describe it as abandoned by the owner, the expectation of privacy in it and its contents is not high. The seizure itself was minimally intrusive, and did not involve a further search. The officer relied in good faith on credible information about dangerous items. He articulated his common law obligations for acting as he did. This militates in favour of inclusion of the evidence.

[29] The impact on Mr. Bartley’s privacy interests was minimal. There was no search beyond that involved in the removal of the firearms. This militates in favour of inclusion of the evidence.

[30] Society’s interest in adjudication of the case on its merits involves a consideration of whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or its exclusion. The evidence is reliable and important to the Crown case. The seizure was carried out in a good faith manner, and one minimally intrusive of the reduced privacy interests of Mr. Bartley. There is no need for the court to distance itself from such conduct.

[31] A consideration of these factors in all of the circumstances of this case would strongly support the admission of such evidence, despite a breach of s. 8, if one were properly found.

[32] Accordingly the firearms are admissible in evidence, and together with the other evidence, the offence charged has been established beyond a reasonable doubt and there is a finding of guilt.

Released: April 29, 2024 Signed: Justice F.M. Finnestad