COURT FILE NO.: CR

DATE: 2012-05-11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

M. Poland, for the Respondent

Respondent

• and –

Pierre Robert

A. Bond, for the Applicant

Applicant

HEARD: February 27, 28, 29, March 1 and 2, 2012

The Honourable Mr. Justice D. J. Gordon

PRE-TRIAL RULING: SECTION 8 SEARCHES AND SEIZURE

INTRODUCTION

[1] Pierre Robert stands charged with four offences, alleged to have occurred in the City of Kitchener on February 17, 2010, namely:

i) possession of a 9 millimetre Ruger P85 mark two firearm, without being the holder of a licence to possess it, contrary to Section 91(1);

ii) possession of a prohibited device, a 15 round cartridge magazine, without being the holder of a licence to possess it, contrary to Section 91(2);

iii) possession of a restricted firearm together with readily accessible ammunition capable of being discharged in the firearm, not being the holder of a licence to possess, contrary to Section 95 (1); and

iv) store a 9 millimetre Ruger P85 mark two firearm in a careless manner, contrary to Section 86 (1).

Mr. Robert has made application for an order declaring his right to be free from unreasonable search and seizure under Section 8, Canadian Charter of Rights and Freedoms, was violated and for an order, pursuant to Section 24(2), excluding the evidence obtained by the police officers from the search of his residence.

BACKGROUND

[2] Mr. Robert is 24 years of age at present. He resides with his mother, Mary Ann Aylott, at […], Kitchener. The property is owned by Ms. Aylott.

[3] Some years ago, Mr. Robert’s older brother, Daniel Robert, and his father were convicted of attempt murder of his mother. In 2010, Daniel was granted parole on condition that he resides in a halfway house in Belleville. When he did not report to the facility one night, a Canada wide warrant for his arrest was issued by the parole office.

[4] In each region of the Province, police forces have assembled a team to find and apprehend parole violators, known as the Report Offender Parole Enforcement Team, commonly referred to as the R.O.P.E. squad.

[5] Having received a request from the East R.O.P.E. squad, the Central West team began a search for Daniel. They attended the residence of Ms. Aylott on February 17, 2010, at approximately 7:15 a.m. The police officers sole function was to find the parole violator. They did not have any information suggesting Daniel would be at the residence. Rather, it was their practice to first check with family members. They knew Ms. Aylott had been the victim of the prior crime.

[6] The purpose of the visit was to ascertain if Ms. Aylott had been in contact with her son. The officers also wanted to search the residence so as to exclude the possibility Daniel was there. On other occasions, parole violators have been found hiding in a family residence.

[7] The police officers requested Ms. Aylott’s permission to search the house. They did not have a warrant for this purpose. Ms. Aylott granted permission but indicated another son was sleeping downstairs. Ms. Aylott went to Mr. Robert’s room and brought him, and his Doberman dog, upstairs. Mr. Robert and his dog waited outside while the search was conducted.

[8] Several officers proceeded to search the residence. In the bulkhead area above the bar in the basement, one officer observed a black object that looked like the back of a person or object. He reached to touch it and discovered it was a bag containing a handgun, magazine and balaclava.

[9] After being informed by Ms. Aylott the items were not her property, a police officer went outside and placed Mr. Robert under arrest for possession of a restricted weapon.

ISSUES

[10] The primary issue requiring determination is whether the consent provided by Ms. Aylott was valid and, if so, whether it was binding on Mr. Robert. The secondary issue brings into play the provisions of Section 24 (2).

[11] If Ms. Aylott’s consent is found to be valid and if the consent of Mr. Robert was not required, defence counsel concedes there is no issue as to whether the police officers exceeded the scope of the consent in finding the handgun and other items.

POLICE OFFICERS

[12] Six police officers with the R.O.P.E. squad were involved in the search of Ms. Aylott’s residence. Two testified at the hearing; Robert Shelp, a detective constable with Waterloo Region Police Service, and Peter Foulds, a detective constable with Hamilton Police Service. Both officers have considerable experience in police investigations. They were assigned to the R.O.P.E. squad in 2009.

[13] The sole function of the R.O.P.E. squad is to find and apprehend parole violators. This is a full time activity, average 5 to 7 cases a week in the region according to Det. Foulds.

[14] The R.O.P.E. squad attend family residences on a frequent basis. Based on their experience, the police officers find that parole violators often make contact with family members, friends, and former associates. Even when the family member was the victim of the prior crime, as here, the officers make contact as they are unaware as to whether a reconciliation has occurred or continued concern for safety exists. Notice is not given prior to arrival to avoid the person fleeing.

[15] Det. Shelp was the team leader on this case, as the residence was located in his region. The officer advised that he has never obtained judicial authorization to search a residence as a member of the R.O.P.E. squad. Rather, he relies on the co-operation of the resident and seeks a verbal consent to search. If permission is denied, Det. Shelp said the team would leave. Det. Foulds agreed with this approach.

[16] On this occasion, Det. Foulds arrived first and verified the address by checking a motor vehicle licence plate. He described the area to the other team members so they could decide where to go on their arrival.

[17] The rest of the team arrived at 7:15 a.m. Det. Shelp went to the front door. The other officers took up a position so as to be able to observe all exits.

[18] The Crown admitted that one officer, Det. Kummar, may have stepped into the backyard of the property to observe an exit prior to delivery of the consent from Ms. Aylott.

[19] The officers testified that they always seek permission to search the residence even when, as here, the homeowner reports the fugitive is not present. Det. Shelp spoke of finding other parole violators in similar circumstances. The officers also reported that they have never charged an occupant with hiding a parole violator.

[20] Det. Shelp knocked on the front door. Ms. Aylott responded. She was wearing a nightie. They had a conversation in the front foyer. Det. Shelp informed Ms. Aylott that they were looking for Daniel. Ms. Aylott was co-operative, he said. She indicated Daniel was not in the residence but provided a cell phone number, said to be for Daniel, but subsequently determined to belong to someone else in the Belleville area. Receiving this information caused Det. Shelp to consider whether Ms. Aylott had been in contact with Daniel, a heightened awareness.

[21] Det. Shelp requested permission to search the house. He said Ms. Aylott could accompany them. According to Det. Shelp, Ms. Aylott provided a verbal consent. He informed the other officers. Det. Foulds came to the front door. Ms. Aylott reported another son and his dog were downstairs. Det. Foulds referred to Ms. Aylott as suggesting the dog be secured before the search occurred.

[22] Ms. Aylott went downstairs, returning several minutes later with Mr. Robert and his dog. Mr. Robert and his dog went outside.

[23] Dets. Shelp, Foulds and Gies went downstairs to conduct the search. Det. Foulds described their process as a “cursory search”, meaning they were looking for a person and not an object. Hence, they do not open drawers and small areas.

[24] The officers checked the recreation room and then moved to the furnace room. The rear portion of the bar is in the furnace room area.

[25] Det. Foulds found the handgun and other items as previously described. He referred to the bulkhead area as being an appropriate space to hide. His attention was drawn to the space and then the black object.

[26] Det. Foulds advised the other team members as to the “gun”. Their concern now focused on officer safety. Det. Gies secured the firearm. Det. Shelp called Waterloo Region Police Service to send a detective to investigate. Det. Foulds made the arrest and informed Mr. Robert of his Charter rights. At this point, Mr. Robert replied “how did you find a gun if you are looking for a person”.

[27] Det. Shelp acknowledged the mattress and clothing in the basement was consistent with someone living there. Nevertheless, he did not ask Mr. Robert for permission to search.

[28] Consent forms are not used by the R.O.P.E. squad for the purpose of a residential search. Det. Shelp indicated such forms are used in other types of investigations. He went on to say he relies on his experience and training in seeking a homeowners consent to search, being well aware of their right to deny such occurring. Det. Foulds made similar comments.

MARY ANN AYLOTT

[29] Ms. Aylott is the mother of Daniel and Pierre Robert. Since the attempt murder conviction in 2002, the family unit has been Ms. Aylott and Mr. Robert. Her son was 15 years of age when his brother and father went to prison.

[30] Since 2002, Ms. Aylott and Mr. Robert have resided in a number of rental dwellings. In September, 2009, she purchased […]. They continue to reside at this property.

[31] Ms. Aylott is employed as a personal support worker by ComCare. She works with elderly and disabled persons. She does not have a criminal record.

[32] In September 2009, Ms. Aylott reported her son to be working. They shared the bills for the residence although she said Mr. Robert did not pay a specific amount. Ms. Aylott estimated her son’s contribution to be approximately $400 monthly. She would add in re-examination that Mr. Robert also provided money for utility expenses.

[33] As to the use of the residence, Ms. Aylott stated that Mr. Robert occupied the basement. He had a bed, dresser, television and two chairs. She went on to say this was his “exclusive” area although she went through it on occasion to get to the furnace room or laundry room. Ms. Aylott reported telling Mr. Robert in advance if she needed access to his area.

[34] Ms. Aylott cleaned Mr. Robert’s living area upon request. She also did some of his laundry. Ms. Aylott indicated watching Mr. Robert’s television and caring for his dog when he was not at home. Her son would invite guests over from time to time but she was not involved out of respect for his privacy.

[35] Mr. Robert also used the kitchen and the bathroom shower, both on the upper level.

[36] Access to the bar area is through the furnace or utility room. Ms. Aylott said this area was not used.

[37] When the police officers attended the residence on February 17, 2010, Ms. Aylott was sleeping. She said it was 7:30 a.m. Ms. Aylott answered the door. She was wearing pyjamas. Ms. Aylott indicated there were two or three men, one saying “you know why we are here”. She replied “yes” as a call had been received five days earlier from victim’s services indicating Daniel had taken off from the halfway house. The men informed Ms. Aylott they were with the R.O.P.E. squad. She opened the door. They came inside.

[38] When asked if she knew where Daniel was, Ms. Aylott responded she did not. She said each officer asked her the same question. The officers requested permission to search the house.

[39] Ms. Aylott testified as to then being uncomfortable. She felt the officers did not believe her. None of them said she could deny them entry. Ms. Aylott said she felt there was no choice and that the only way the officers would leave was to allow the search. She gave them permission but testified she did not want them searching the house.

[40] An officer inquired if there were any other persons in the residence. Ms. Aylott reports her other son was living downstairs. They asked her to remove her son prior to the search. Ms. Aylott indicated going downstairs and telling Mr. Robert the police were there wanting to search for Daniel. She could not recall if her son said anything in response. Both of them went upstairs. Mr. Robert took his dog outside, she said, when one officer instructed him to do so.

[41] The officers went to the basement. Ms. Aylott retrieved a housecoat from her bedroom. One officer then advised Ms. Aylott a gun was found downstairs.

[42] Ms. Aylott was required to vacate the residence and did not return until the next day. It appears a search warrant had been obtained for a more detailed search of the premises.

[43] Ms. Aylott had never seen the handgun before. It was in the house without her permission. Ms. Aylott said whoever put the gun in the bulkhead would have snuck it into the house. She was surprised when it, and the other items, were discovered. Mr. Robert had never informed her of the hidden gun.

[44] After the gun was found is when Ms. Aylott said she informed the officer she had spoken to Daniel two weeks earlier. Apparently, the telephone conversation was at Daniel’s request, arranged by his grandmother. Ms. Aylott indicated this event was not a step in normalizing their relationship. Rather, she spoke to Daniel as she wanted answers for the prior attempt on her life and to ease her mind that he was not in Kitchener.

[45] Ms. Aylott did not recall giving the police Daniel’s phone number. The only 613 numbers she had were for the penitentiary and victim services. Counsel would later file an admission indicating the phone number provided by Ms. Aylott to the officer was for a cell phone registered to someone else having a Belleville address.

[46] In cross-examination, Ms. Aylott said her objection was to the manner the event happened. She said she would have co-operated had the officers acted in a less intrusive manner, by calling in advance.

[47] Ms. Aylott was concerned with Daniel being at large. She wanted the police to find and apprehend him.

[48] Ms. Aylott acknowledged being aware the police required her permission to search the house. The search made no sense to her as Daniel was not there. Ms. Aylott also acknowledged the search did not commence until she provided consent.

[49] In re-examination, Ms. Aylott indicated that if an officer had called in advance requesting permission to search the residence, she would have asked Mr. Robert as he was paying to live downstairs.

PIERRE ROBERT

[50] Ms. Aylott was the first witness called to testify by defence counsel. Mr. Robert took the stand after his mother.

[51] Mr. Robert is now 24 years of age. He was 15 at the time his father and brother were convicted of attempt murder of his mother. Mr. Robert took two years off school after his mother was attacked, he said, so as to financially assist the remaining family. He returned to school, completing grade 12. Mr. Robert reported working at various jobs over the years, providing money to his mother for rent and household expenses.

[52] In his affidavit, Mr. Robert reported paying his mother $800.00 monthly for rent. In his examination- in- chief, he said he paid this amount when employed, but that he had been off work with a back injury when the property was acquired. Mr. Robert went on to say he paid for his living expenses, some of the groceries, hydro and cable T.V. and food for his dog. He indicated $800.00 a month “roughly” covered rent and bills.

[53] In cross-examination, Mr. Robert acknowledged being off work six months after moving into the residence in September, 2009. He said he was paying $500.00 monthly, or less, as he was receiving accident benefits for his injury. Mr. Robert reported the payment to vary from time to time, that it was not a fixed amount.

[54] In his affidavit, Mr. Robert also said he had exclusive use of the basement. In examination-in-chief, he referred to the downstairs level as being for him and his dog. He had a mattress and television. His clothes were in the basement or in the upstairs second bedroom closet. Mr. Robert also used the kitchen and bathroom shower on the upper level in common with his mother.

[55] Mr. Robert stated he did not consume alcohol and, therefore, did not use the bar area. Some of his clothes were placed on the actual bar.

[56] Guests were periodically invited to his basement area. Mr. Robert said he did not need permission from his mother but would tell her if a female guest was present out of respect.

[57] Mr. Robert indicated his mother would go through his area to get to the laundry room or the furnace room, the latter so as to change the furnace filter. He said she always informed him in advance. His mother was allowed to watch his television when he was not at home. She also kept his dog company.

[58] In cross-examination, Mr. Robert said he did not use the upstairs living room, second bedroom or his mother’s bedroom without speaking to her first. He went on to say he is now less inclined to sit in his basement area since the police found the handgun because “my space was invaded.”

[59] Mr. Robert acknowledged his mother could go through his living area to get to the laundry room whether he was home or away. He said his mother would seek his permission in a sense, but was actually telling him she would be coming through.

[60] Mr. Robert was asleep when the police came to the house on February 17, 2010. He was wearing boxer shorts. His mother knocked on the door and came in. She informed him the police were there to search for Daniel. Mr. Robert reported telling his mother “ask them to leave”. Her response was that she could not and that the police officers wanted him to leash the dog and take him outside.

[61] After getting dressed, Mr. Robert leashed his dog and went upstairs. He said there were five officers, one of whom told him to go “out that way” referring to a door to the backyard. Nothing else was said to him. None of the officers asked for his permission to search the house.

[62] A few minutes later, Det. Foulds came outside and asked him to let the leash go. Another officer grabbed his hand and told Mr. Robert he was under arrest.

[63] Mr. Robert testified he did not want the police searching the residence. He said he was unaware at the time that he had a choice.

[64] In cross-examination, Mr. Robert expanded on this point. He said his objection was based on his personal feelings, that it brought back the attempt murder case and that he was still trying to heal. Mr. Robert questioned the need to search for someone who was not there.

[65] Ms. Aylott had not informed Mr. Robert as to Daniel leaving the halfway house. He said he had no feelings for his brother and that he wanted him caught and returned to custody. Mr. Robert went on to say he expected the police to believe him when he said Daniel was not in the house.

[66] Also, in cross-examination, Mr. Robert acknowledged the handgun was his and that he did not have a lawful reason for possession. He did not tell his mother about the gun.

[67] Mr. Robert reported acquiring the handgun and ammunition in case his brother returned and tried to attack his mother again.

[68] The balaclava, according to Mr. Robert was used for shovelling snow. He denied the use of the balaclava was with the gun or that it was placed with the gun and magazine so as to avoid any noise.

[69] Mr. Robert also acknowledged having been a member of the “Bloods” gang. He reported being involved with this group from age 14 to 17. He acquired gang tattoos. Mr. Robert plans to have them covered up some day.

[70] In re-examination, Mr. Robert admitted to a youth record, ending at age 18. No details were asked or provided.

ANALYSIS

[71] Counsel spent considerable time and effort in addressing numerous potential issues. A decision on this application, however, need only involve the legal principles that relate to the actual facts. Hence, it is fist necessary to address the evidence.

[72] F or reasons unknown, and not explored at the hearing, the Aylott/Robert family suffers from significant dysfunction. A husband/father and the older son were convicted of attempt murder of the wife/mother. The younger son was, at least, a member of a violent street gain and is now caught in possession of an illegal handgun.

[73] Ms. Aylott has had to contend with many family issues. She has made great effort in rebuilding her life since the attempt murder and to raise a younger son on her own. Ms. Aylott has continued her employment as a personal support worker and be a contributing member of society. She has been able to acquire ownership of a residence.

[74] Morally, Ms. Aylott wants to do what is right and to be seen in this light. She wants to co-operate with the police. That is her nature. But now she is in a dilemma. Her younger son faces serious consequences if convicted. Ms. Aylott knows he is facing incarceration and must be upset with continued criminal activity by members of her family.

[75] In my view, this latter emotion has impacted her evidence. Her consent to the search, as perceived by the police officers at the time, became confusing, at best, in her testimony. She was upset with the rudeness of the officers and now feels they should have conducted themselves in a different manner.

[76] Ms. Aylott has always demonstrated a desire to co-operate. What she did not know was that her son was hiding an illegal handgun in her house.

[77] Ms. Aylott and Mr. Robert, in my view, attempted to structure their evidence to fit the caselaw. There was no flow to their testimony and they had great difficulty in reacting to confrontation during cross-examination. In this regard, I am certain there was never a discussion of “exclusive use” until the problem with the gun. Further, when Ms. Aylott was the first witness, Mr. Robert had great difficulty in his testimony as to his possession and financial contribution. His affidavit evidence no longer stood up and he had to adapt to the situation. In this regard, Mr. Robert was unsuccessful.

[78] Mr. Robert attempted to explain his possession of a handgun, ammunition and balaclava. The gun was to protect his mother; that is, to shoot his brother if she was attacked. The balaclava was for shovelling snow and to cushion the handgun and ammunition. This evidence makes no sense.

[79] I am not persuaded a balaclava is necessary when shovelling snow in Kitchener. The gun and ammunition were not being moved at the time. These items, however, are often used in tandem. Mr. Robert’s history is of obvious concern.

[80] The impact of this evidence on the application is credibility. I reject Mr. Robert’s evidence on this point. He was not a credible witness.

[81] Before continuing this discussion, I choose to address the actions of the police officers.

[82] Finding parole violators quickly is an obvious priority. Hence, the existence of the R.O.P.E. squad, a specialized group of officers whose sole function is re-apprehending such criminals. Daniel Robert had a history of violence. Crime prevention and safety of the public were strong motivating factors in bringing him back into custody.

[83] Diligent police work often involves ruling out possibilities. I accept the officers’ evidence in checking with family, friends, and known associates in the initial inquiry. These officers were unaware of the family dynamics, other than the prior crime. Reconciliation of family members can occur. Further harm to a prior victim is also a possibility. Common sense, therefore, supports the decision to check the family residence.

[84] So too is searching the residence if consent is provided. Officers have, in the past, uncovered parole violators in this manner. Having received a telephone number from Ms. Aylott, and being made aware of recent contact with Daniel, the officers’ interest would have been elevated.

[85] It must be recognized that time is of the essence in finding parole violators. This is not a criminal investigation. Accordingly, I am not persuaded other investigative techniques, such as surveillance are required. The police officers are looking for a convicted criminal, not a suspect.

[86] The police officers advised Ms. Aylott of their purpose in being at her residence. She was not surprised, having been made aware some days previously of Daniel’s flight. The officers asked for Ms. Aylott’s permission to search the residence solely for the purpose of looking for Daniel. They perceived that voluntary consent was provided by Ms. Aylott.

[87] While consent forms or a checklist might be helpful, such are not mandatory. Co-operation of citizens is of critical importance in finding parole violators. As hereafter discussed, verbal consent is sufficient to authorize a search.

[88] Although police officers are trained to keep notes, the evidence indicates such are not routinely made when obtaining a verbal consent. Then again, this is the first time these officers have been challenged in court. Notes are helpful as officers cannot be expected to have total recall given their caseload. The lack of notes is not fatal in this case as there was sufficient corroboration from Ms. Aylott.

[89] Although not vigorously argued, there was a potential issue raised with respect to Det. Kummar being on the property prior to the consent provided by Ms. Aylott. There was no clear evidence to say he was or was not on the property. In any event, such an act did not constitute a sufficient intrusion to be considered a search: see R. v. Latozky, 2006 CanLII 21041 (ON CA), 210 C.C.C. (3d) 509 (Ont. C.A.).

[90] Returning to the evidence of Ms. Aylott and Mr. Robert, I find that Ms. Aylott provided clear, verbal consent to a search of her residence. There was no threats or any improper representations by the police officer. The officer may well have been rude or, perhaps, have provided minimal information; however, he did not know all of the family circumstances and had to operate, in my view, on the basis that Daniel may be hiding in the house.

[91] Ms. Aylott’s evidence at the hearing attempted to pull back on her consent. She was not successful. Ms. Aylott’s consent was motivated by two legitimate reasons:

i) a general desire to co-operate as a good, upstanding member of the community; and,

ii) a specific desire for the apprehension of Daniel, of whom she likely was still in fear due to his past violence.

[92] Although a search of a residence is one of the most serious in terms of privacy interests, Ms. Aylott’s consent results in a section 8 waiver: see R. v. Simon, [2008] ONCA 578 at para 52.

[93] The conduct of the police officers, and the resultant search, must be considered in context. This was not a criminal investigation. There was no suggestion of any criminal activity involving Ms. Aylott or Mr. Robert. Rather, the R.O.P.E. squad was looking for a parole violator, acting on a warrant issued by the parole officer. As crown counsel pointed out in his submissions, the police officers were exercising regulatory powers, not criminal law powers. Consent or other valid authority is still required for a search. Nevertheless, the context of the circumstances impacts on the nature of the Charter protection: See R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757, at paras. 61 and 88.

[94] In this regard, I am of the view the high waiver standard, as set out in R. v. Wills, (1992), 1992 CanLII 2780 (ON CA), 70 C.C.C. (3d) 529 (Ont. C.A.), does not apply. The police officer requested consent from Ms. Aylott. The officers waited for her response before commencing the search. Regardless as to how she felt at the time, Ms. Aylott had to understand that she could either allow or deny the search to occur.

[95] Verbal consent was provided by Ms. Aylott. Further, she then asked Mr. Robert to vacate the residence with his dog to facilitate the officers’ search. Ms. Aylott’s co-operation was complete and voluntary.

[96] The only issue in this case is whether Ms. Aylott had the ability to consent to a search of the residence without Mr. Robert’s approval. I conclude she did.

[97] The residence was owned by Ms. Aylott. Mr. Robert provided some financial contribution although the evidence on this point varied with the resultant lack of clarity and consistency.

[98] Ms. Aylott and Mr. Robert might be described as joint occupants although quite frankly, such designation places Mr. Robert’s status higher than the photographs reveal. Mr. Robert may have spent the majority of his time in the basement, sleeping, watching television, care of his dog and entertaining guests, however, he did not have exclusive possession. I reject the evidence of both Ms. Aylott and Mr. Robert on this point.

[99] Ms. Aylott also occupied the basement. In part, she used the laundry room and the furnace room for regular household requirements. She alone was the one changing the furnace filter. Ms. Aylott had to use the area designated for Mr. Robert to gain access to these two rooms. She did so when Mr. Robert was home, by prior announcement, or when he was away from the residence, without notification. Ms. Aylott also used part of Mr. Robert’s area for cleaning purposes or watching television and keeping his dog company when he was not at home.

[100] Neither Ms. Aylott or Mr. Robert had a need to use the bar. The rear of the bar area was part of the furnace room. Ms. Aylott was the only one needing to use this room for lawful purposes. Mr. Robert’s use of this area was restricted to the storage of an illegal handgun and related items.

[101] At best, the furnace room and bar was a common area. In reality, it appears only Ms. Aylott had a need to use this area.

[102] Ms. Aylott, therefore, had the ability to consent to a search of the whole of the residence. Although the officer might have considered seeking Mr. Robert’s approval, such was not required. (See, for example, R. v. Wells, [1998] O.J. No. 3371 (Ont. Gen.Div.) at para. 21; R. v. Van Wyk, [1999] O.J. No. 3515 (Ont. S.C.J.), at paras. 41-43; R. v. C.G., [2000] O.J. No. 3548 (Ont. S.C.J.), at paras. 32-33; R. v. Figueroa, [2002] O.J. No. 3138 (Ont. S.C.J.), at paras. 9 – 15; R. v. Shears, [2008] O.J. No. 4895 (Ont. S.C.J.), at paras 52-54; and R. v. T.W.B., 2012 MBCA 7, at paras. 37-38.)

[103] Simply put, Mr. Robert had no expectation of privacy in the bulkhead of the bar area in the basement of his mother’s residence.

[104] Accordingly, I find there was no breach of Mr. Robert’s section 8 privacy rights.

[105] Given this ruling, a detailed section 24(2) discussion is not required. However, in the event my analysis above in incorrect, I am of the view the evidence as to the handgun and other items is still admissible. The principles set out in R. v. Grant, 2009 SCC 32, 2009 S.C.C. 32, [2009] 2 S.C.R. 353, 245 C.C.C. (3d) 1, apply.

[106] If there was a section 8 breach by the police officers, it was at the low end of the spectrum. The search was for a person, a parole violator, and not for an object. The search, therefore, was minimally intrusive. The area where the handgun was found was not used by Mr. Robert for other purposes. Hence, the impact on his rights was also minimal.

[107] Lastly, this case involves a handgun and it is key to the prosecution. An illegal handgun has few purposes. Society’s interest, therefore, in a determination of this case on its merits is overwhelming.

[108] Accordingly, Mr. Robert’s application is dismissed. The handgun, associated magazine and ammunition, and the balaclava are admissible as evidence.

Gordon, J

Released: May 11 , 2012