



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lacroix, 2018 ONCA 842

DATE: 20181022

DOCKET: C62962

Sharpe, Lauwers and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alexandre Lacroix

Appellant

Leo Adler, for the appellant

Carmen Elmasry, for the respondent

Heard: October 5, 2018

On appeal from the conviction entered by Justice Kevin B.
    Phillips of the Superior Court of Justice, sitting with a jury, on June 30,
    2016, and from the sentence imposed on October 28, 2016.

REASONS FOR DECISION

[1]

The police recovered a .45 calibre semi-automatic handgun and ammunition
    when they executed a search warrant at the appellants residence. The appellant
    was convicted of unlawful possession of a firearm and given a 12 month
    conditional sentence that included eight months of house arrest.

[2]

He raises three grounds of appeal against conviction and seeks leave to
    appeal his sentence.

(1)

Validity of the search warrant

[3]

The appellant challenged the validity of the search warrant on a
    pretrial motion. We see no error in the comprehensive reasons of the motion
    judge rejecting that challenge, reported at 2015 ONSC 6258, that could warrant
    appellate intervention.

[4]

Any inaccuracies in the ITO were minor and inconsequential.

[5]

The ITO provided evidence that the appellant was the registered owner of
    a cell phone with a billing address at the appellants residence. On an
    intercepted call for which that cell phone was used, the speaker stated in
    coded language that he was still holding on to the .45 calibre firearm. This
    was one of 150 intercepted drug and gun related phone and text message conversations
    involving a speaker the officer identified as having the same voice.

[6]

In our view, the motion judge was entitled to conclude that the issuing
    justice of the peace could find on this record a reasonable basis to believe
    that the speaker was the appellant.

[7]

The appellant argued that there was no evidence linking the gun to the
    residence. He asserted that the speakers statement that Im still holding on
    to the [handgun] did not indicate that he was holding it at the residence in
    the absence of evidence establishing the speaker was in his residence and not
    in another location at the time of the cell phone call. In oral argument, the
    appellant acknowledged that evidence showing that the speaker was in the
    immediate vicinity of his residence at the time he made this statement would
    establish reasonable grounds linking the handgun to the residence.

[8]

However, the speaker himself stated Im just at home at the beginning
    of the call prior to making the statement about the handgun. Later in the call,
    the speaker made statements indicating that he was just relaxing and was not
    sure if he would step out that are consistent with him being at home that
    evening. These statements provide a reasonable basis for inferring that the speaker
    was at home at the time he made the handgun statement.

[9]

It follows that the motion judge did not err in concluding there was
    sufficient credible and reliable evidence to permit the issuing justice to find
    that there were reasonable grounds that the handgun was in the residence. The
    officer provided evidence that a residence is one of the usual places where individuals
    in possession of illegal firearms will store and conceal those weapons. The
    issuing justice was entitled to rely upon this opinion: see
R. v. Prosser
,
    2016 ONCA 467, at para. 18, leave to appeal refused, [2016] S.C.C.A. No. 327. There
    was ample evidence to show that the appellant lived in the residence.

(2)

Admissibility of utterances upon arrest

[10]

We
    do not agree that the second motion judge erred in ruling, in reasons reported
    at 2016 ONSC 3052, 355 C.R.R. (2d) 219, that utterances the appellant made as
    to the location of the firearm following his arrest should be admitted into
    evidence.

[11]

The
    statement the appellant made was spontaneous and voluntary and he was
    appropriately cautioned before he made it.

[12]

In
    the immediate circumstances of the arrest, it was reasonable for the motion
    judge to find that it was not feasible to provide the appellant with a phone to
    speak to a lawyer before he reached the police station.

[13]

The
    motion judge concluded that the arresting officer did not have reasonable
    grounds to arrest the appellant and that the police breached the appellants s.
    9 right under the
Canadian Charter of Rights and Freedoms
.

[14]

We
    see no reason to interfere with the motion judges conclusion in his s. 24(2)
    analysis that the evidence should be admitted despite the s. 9 breach. The
    motion judge reasonably concluded  that the
Charter
-infringing state
    conduct was not serious and the connection between the arrest and the utterance
    was indirect

[15]

While
    the execution of the search warrant did not provide reasonable grounds to
    arrest the appellant, it did afford reasonable grounds for an investigative
    detention. The motion judge was entitled to find that the concern that
    motivated the appellants statement was his concern about his house being
    searched and the possible jeopardy in which that placed his partner. He did not
    engage in improper speculation by concluding that the accused would have had
    the same motivation to make the utterances had the police subjected him to
    investigative detention instead of arresting him. Accordingly, we are of the
    view that the motion judge did not err that in concluding that the appellant
    would have made the statements notwithstanding the
Charter
breach. He
    appropriately concluded that this lessened the impact on the accuseds
Charter
-protected
    interests: see
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at
    para. 96. He appropriately placed significant weight on the fact that the utterances
    were reliable evidence given after the appellant was cautioned and were
    important to the prosecutions case: see
Grant
, at paras. 81, 83.

(3)

Jury instruction

[16]

The
    appellant complains that there were discrepancies between the oral and written
    versions of the jury instruction. While there were some discrepancies, they
    were minor in nature. Neither version of the jury instruction revealed legal
    error and the differences could not have affected the jury in its
    deliberations.

[17]

Nor
    do we agree that the trial judge erred in his instruction on possession.

(4)

Sentence

[18]

We
    see no merit in the appellants submission that the trial judge erred by
    imposing a conditional sentence rather than a conditional discharge. The trial
    judge provided careful reasons considering the mitigating factors, including
    the significant rehabilitation of the appellant since the commission of the
    offence. He concluded that given the serious nature of the offence, the
    considerations of general deterrence and denunciation made a discharge an unfit
    sentence. That decision attracts deference in this court and we see no basis
    upon which we could interfere and substitute an even more lenient sentence.

Disposition

[19]

Accordingly
    the appeal from conviction is dismissed. Leave to appeal sentence is granted
    and the sentence appeal is dismissed.

Robert J. Sharpe
    J.A.

P. Lauwers J.A.

K.
    van Rensburg J.A.


