



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ellis, 2016 ONCA 598

DATE: 20160804

DOCKET: C57843

Watt, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Winston Ellis

Appellant

Candice Suter, for the appellant

John Patton, for the respondent

Heard: January 27, 2016

On appeal from the convictions entered on February 4, 2013
    and on May 21, 2013 and the sentence imposed on May 29, 2013 by Justice Kenneth
    L. Campbell of the Superior Court of Justice, sitting with a jury, with reasons
    reported at 2013 ONSC 3092.

Hourigan J.A.:

A.

Overview

[1]

This is one of two appeals
heard together
that consider the interaction
    between the authority of the police to conduct an inventory search of a vehicle
    impounded pursuant to s. 221(1) of the
Highway Traffic Act
, R.S.O. 1990, c. H.8

(the 
HTA
)

and the right under s. 8 of the
Canadian Charter of Rights and
    Freedoms
to be free from unreasonable search and seizure
.

[2]

The factual background may be briefly stated. A
    police officer observed an Acura street racing and pursued it to a dead-end
    street. The appellant was seen in the distance walking away from the Acura.
    Backup officers engaged the appellant in an investigative detention and performed
    a pat down search of the appellants pockets that revealed keys to the Acura. The
    appellant was eventually arrested for careless driving and pursuant to
    outstanding warrants. The police then used the keys to search the Acura and
    discovered a loaded handgun. The appellant was charged with three firearms
    offences and with breaching a weapons prohibition order.

[3]

Prior to trial, the appellant applied to have
    the handgun excluded pursuant to s. 24(2) of the
Charter
, alleging
    breaches of his ss. 8, 9, and 10
Charter
rights. The trial judge heard
    the application. He found that, while police had not complied with their duties
    under s. 10, there were no breaches of ss. 8 or 9 and that the police were
    authorized to conduct an inventory search of his vehicle under s. 221 of the

HTA
.

He also found that the gun should not be excluded from the
    evidence.

[4]

The appellant was convicted of all charges and
    sentenced to seven years imprisonment, less credit for pre-sentence custody, for
    a total sentence of five years and eight months imprisonment.

[5]

On appeal, the appellant submits that the search
    of his pockets and subsequent seizure of his car keys, as well as the search of
    his car and subsequent seizure of a gun, violated his s. 8 rights. He further
    submits that the handgun should have been excluded from the evidence. The
    appellant also seeks leave to appeal his sentence, submitting that the trial
    judge erred in failing to consider various sentencing principles and in
    imposing a sentence that is demonstrably unfit.

[6]

For the reasons that follow, I would dismiss the
    conviction appeal. While I would grant leave to appeal from sentence, I would
    also dismiss the sentence appeal.

B.

Facts

[7]

In the early morning hours of May 24, 2010, Sgt.
    Martin of the Toronto Police Service was driving a marked police cruiser when
    he saw two vehicles apparently racing. He followed them and chose to pursue
    one, an Acura, into a residential area. The Acura eventually turned down a
    dead-end street. Sgt. Martin located it parked in a mutual driveway
    between two houses. As he pulled up, he saw a man in an oversized white t-shirt
    walking away from the Acura toward the back of the houses. A licence plate
    check revealed that the Acura was registered to a 68-year-old woman who did not
    live at any house on that street.

[8]

Sgt. Martin called for backup. While waiting in
    his cruiser, he noticed two men, one of whom was wearing an oversized white
    t-shirt, walking in the distance and looking in his direction. He radioed to
    dispatch that if the responding backup officers saw the two men, they should
    stop and investigate them. Shortly thereafter, two responding officers, Csts. La
    Vella and Chudzinski, stopped the two men not far from the parked Acura. The
    officers questioned them about their activity in the area and asked for their
    identification.

[9]

Cst. La Vella advised the man in the white
    t-shirt, the appellant, that he was being investigatively detained but did not
    advise him of his right to counsel. The appellant told Cst. La Vella that he
    was walking to the area from his home nearby, looking for a party. His drivers
    licence listed the same address as that of the registered Acura owner. The
    appellant volunteered that he had an outstanding warrant for his arrest from
    Windsor/Essex County. Cst. La Vellas check of the identification on his
    computer revealed that the appellant was a gang member, was potentially armed
    and dangerous, and had a previous firearms conviction. Cst. La Vella performed
    a pat down search of the appellant and then asked the appellant to empty his
    pockets. The search revealed two cell phones, cash, and keys. These items were
    immediately returned to the appellant.

[10]

Meanwhile, Csts. Aleksandrowicz and Vanderburgh
    joined Sgt. Martin at the location of the Acura. Earlier, Sgt. Martin had
    learned that Csts. La Vella and Chudzinski had detained the two men. He detailed
    Cst. Aleksandrowicz to attend at their location to determine whether either man
    had been driving the Acura.

[11]

Cst. Aleksandrowicz arrived at the appellants
    location. Sgt. Martin radioed him and enquired if either of the detained men
    had any keys on them. Cst. La Vella replied in the affirmative and
    asked for the keys from the appellants pocket. The appellant gave them to Cst.
    La Vella, who gave them to Cst. Aleksandrowicz. It was immediately
    apparent that the keys were for an Acura.

[12]

At this point, Cst. Aleksandrowicz engaged the
    appellant in a conversation about the keys and the Acura. The appellant denied
    knowing the location of the Acura or driving it, but said that his girlfriend
    had been driving it earlier that night. Cst. Aleksandrowicz relayed to Sgt. Martin
    over the radio that he had found Acura keys, but that the appellant denied
    driving the vehicle. Sgt. Martin responded that given the appellants denial,
    they would impound the vehicle and have the registered owner pick it up. Sgt.
    Martin told Cst. Aleksandrowicz that the appellant was arrestable for careless
    driving and to bring the appellant to his location.

[13]

After continued questioning, the appellant told
    the police that he had left the Acura in the driveway and Sgt. Martin was
    advised of this information. Cst. Aleksandrowicz placed the appellant
    under arrest for careless driving and for the outstanding warrants, and brought
    him to Sgt. Martins location, where the appellant was placed in a police
    cruiser.

[14]

Sgt. Martin and Cst. Aleksandrowicz then searched
    the Acura. According to Sgt. Martin, the search was incident to the appellants
    arrest for careless driving. He wanted to find proof of ownership, to see if
    the ignition had been tampered with, and to see if there were any signs that
    the vehicle had been stolen. Further, an inventory search was necessary to
    check for valuables because the vehicle was being impounded. Cst.
    Aleksandrowicz testified that he was conducting a search incident to arrest.
    During the search, Sgt. Martin discovered a handgun hidden behind a console
    panel. The appellant was arrested for illegal possession of a firearm and
    advised of his right to counsel.

C.

DecisionS Below

(1)

Ruling on
Charter
Application

[15]

The trial judge first assessed the investigative
    detention of the two men. He found that the detention did not violate s. 9 of
    the
Charter
because at that point, the police had articulable cause
    or reasonable grounds to suspect that the appellant was involved in the
    offence of careless driving. Sgt. Martin observed the vehicles speeding and his
    suspicion that the man in the oversized white t-shirt was the driver of the
    Acura was a reasonable one. This justified the subsequent investigative
    detention by Cst. La Vella, the results of which made the appellants arrest
    inevitable. The address on his licence matched the ownership of the Acura,
    which tied him to the offence of careless driving and was sufficient to form reasonable
    and probable grounds for his arrest. The outstanding warrants revealed by the
    CPIC check also gave the police reasonable and probable grounds for the
    appellants arrest.

[16]

The trial judge next assessed the pat down
    search of the appellant and concluded that it did not violate s. 8 of the
Charter
.
    Cst. La Vella had learned that the appellant was affiliated with a gang,
    potentially armed and dangerous, and had a previous firearm conviction.
    Therefore, his decision to conduct a pat down search for officer safety was
    objectively reasonable. Where objectively justified, such searches may extend
    into the pockets of the detainee, and here, Cst. La Vella had ample grounds
    to search the appellants pockets given that there were hard or sharp objects (a
    cell phone and car keys) within. The search was executed reasonably and the
    items were immediately returned to the appellant, suggesting that the search
    was not merely a pretext to discover keys but actually for the purpose of
    officer safety.

[17]

The trial judge found that the police were entitled
    to seize the Acura keys from the appellant pursuant to their powers to search
    incident to his subsequent arrest. The police did not obtain knowledge of the
    keys through illegal or unconstitutional means. Once the police discovered that
    the appellant resided at the same address as the Acura owner, his arrest was
    inevitable. It took time for the various officers to put the available
    information together, but this was unavoidable and the arrest just a matter of
    time. Given the reasonable and probable grounds for arrest that the police
    possessed in relation to both the careless driving and warrant offences, the
    seizure of the key was properly viewed as incidental to the appellants arrest.

[18]

With respect to the search of the Acura that
    revealed the handgun, the trial judge concluded that it did not violate s. 8.
    However, he held that the police were not entitled to search the vehicle
    incident to arrest. At the time of the appellants arrest, the Acura could not
    reasonably be said to be within the appellants immediate surroundings or
    under his immediate control. There was no risk of the appellant gaining access
    to the vehicle to obtain weapons or to destroy evidence. Furthermore, it was difficult
    to understand what evidence the police might have been seeking in connection
    with the offences given what they already knew about the ownership of the
    vehicle and given the unlikelihood of finding evidence relating to the offences
    listed in the outstanding warrants.

[19]

The trial judge concluded that the Acura search
    was instead authorized under s. 221(1) of the
HTA
. Sgt. Martin had
    determined that the Acura would be impounded, given that it had been abruptly
    abandoned, and explained that it could not remain in the private driveway. Thus
    the vehicle was apparently abandoned within the meaning of s. 221. Once the
    vehicle was taken into police custody, the case law establishes that the police
    were lawfully entitled to perform an inventory search of the vehicle. The fact
    that Sgt. Martin also admitted to looking for firearms or other weapons did not
    change the legal analysis. Further, individuals who have apparently abandoned
    their vehicles can hardly be said to have any significant, continuing
    reasonable expectation of privacy in them.

[20]

The trial judge concluded that when Cst. La
    Vella advised the appellant that he was under investigative detention, he did
    not fulfill any of his obligations to provide a reason for the detention and to
    advise the appellant of his right to counsel under ss. 10(a) or (b) of the
Charter
.
    The Crown conceded the inadmissibility of any statements made by the appellant
    to the officers as a result, but the admissibility of the gun under s. 24(2)
    was still to be determined. Accordingly, the trial judge conducted the
    requisite analysis under
R. v. Grant
,

2009 SCC 32, [2009] 2
    S.C.R. 353, to determine if the gun should be excluded from the evidence as a
    consequence of the s. 10 violations.  After reviewing the relevant factors, he
    concluded that the handgun should not be excluded from the evidence.

[21]

The appellant was convicted of unauthorized
    possession of a firearm, being an occupant in a motor vehicle in which he knew
    there was an unauthorized firearm and ammunition, unauthorized possession of a
    loaded prohibited firearm, and possession of a firearm contrary to an order.

(2)

Sentencing Decision

[22]

After considering the relevant mitigating and
    aggravating factors, the trial judge concluded that the appropriate sentence
    for the firearms offences was six years imprisonment, emphasizing the need to
    denounce and deter gun crime, and the need for specific deterrence. He further concluded
    that the breach of the weapons prohibition order required one year consecutive
    because an additional sanction was necessary.

[23]

The appellant received 1.5:1 credit for his 199
    days of pre-trial custody, and an additional 6 months credit for his almost 2.5
    years on restrictive bail conditions. The total sentence was therefore five
    years and eight months. The trial judge recognized that the sentence was a
    significant jump from the appellants last term of imprisonment but found it was
    warranted in the circumstances, including the fact that the appellant was a
    mature repeat firearms offender.

D.

Issues

[24]

This appeal raises the following issues:

1)

Was the search of the appellants pockets and
    seizure of the car keys a violation of s. 8 of the
Charter
?

2)

Was the search and seizure of the vehicle a
    violation of s. 8 of the
Charter
?

3)

Should the handgun be excluded from the evidence
    pursuant to s. 24(2) of the
Charter
?

4)

Was the sentence demonstrably unfit?

E.

Analysis

(1)

Search of the Pockets and Seizure of the Car Keys

[25]

A police officer may detain an individual for
    investigative purposes where there are reasonable grounds to suspect in the
    circumstances that the person is connected to a particular recent or ongoing crime
    and detention is required:
R. v. Mann
, 2004 SCC 52, [2004] 3 S.C.R.
    59, at para. 45;
R. v. MacKenzie
, 2013 SCC 50, [2013] S.C.R. 250, at
    para. 38.  In the present case, there is no issue that the officers had a
    reasonable suspicion that the appellant was involved in street racing and that
    they were justified in engaging him in an investigative detention.

[26]

The appellant submits, however, that the trial
    judge improperly relied on
Cloutier v. Langlois
, [1990] 1 S.C.R. 158, for
    the proposition that pockets may be examined during a pat down search, since
    that case dealt with the power to search incident to arrest, not an
    investigative detention. According to the appellant,
Mann
confirms
    that the two search powers are distinct and that police are authorized to frisk
    but not to examine the contents of pockets when conducting a search during an
    investigative detention. He further argues that the searching officer offered
    no basis for extending the search beyond a pat down because cell phones, car
    keys, and cash are not shaped like guns and do not feel like guns.

[27]

In my view, this submission misstates the law
    from
Mann
. In that case, the Supreme Court held that a police officer
    may conduct a protective pat down search of an individual detained for
    investigation where the officer has reasonable grounds to believe that his or
    her safety or that of others is at risk:
Mann
, at

para. 45.
    The decision to search must be reasonably necessary in the circumstances:
Mann
,
    at

para. 40.  In
Mann
, the court found that the officers had reasonable
    grounds to detain the accused and to conduct a protective pat down search. 
    However, the court held that the decision to go beyond the pat down and search inside
    the accuseds pockets after feeling a soft object was an unreasonable violation
    of the accuseds reasonable expectation of privacy.

[28]

What the Supreme Court did not do in
Mann
was pronounce a general rule that a protective pat down search incident to an
    investigative detention can never extend to a search of the contents of
    pockets.  Implicit in the courts holding was that, had the pat down search revealed
    a safety concern, the officers would have been justified in extending the
    search to the accuseds pockets. Indeed, there would be no point in conducting
    the pat down search if, as suggested by the appellant, an officer cannot take
    further steps to protect his or her safety on having a reasonable basis for
    believing that there is a safety concern:
R. v. Plummer
, 2011 ONCA
    350, 272 C.C.C. (3d) 172, at para. 53.

[29]

In the present case, the pat down search was
    reasonable and necessary for officer safety.  The officers received information
    that the appellant was a gang member, potentially armed and dangerous, and had
    a previous conviction for a firearms offence. I agree with the trial judges
    observation, at para. 54, that in these circumstances it would have been
    foolhardy to continue with the investigation without conducting the pat down
    search.

[30]

During the pat down search, the officer felt
    hard objects in the appellants pockets that could have been weapons. This was
    not a case like
Mann
where the pat down did not give rise to any articulable
    safety concern. The officer had a reasonable belief that the appellant might be
    armed. In these circumstances, it is not the function of this court, many years
    after the incident and with knowledge of what was actually in the pockets, to criticize
    the officer for searching the pockets to ensure that the hard objects were not
    weapons. A police officer in such circumstances is in a dynamic and potentially
    life-threatening situation and he or she must be able to undertake a protective
    search in a reasonable manner to preserve his or her safety.

[31]

The manner of search in the present case was
    entirely reasonable. As soon as Cst. La Vella ascertained that the hard objects
    were not dangerous, he returned them to the appellant.  There was, in my view,
    no breach of s. 8 as a consequence of this search.

[32]

The appellant further submits that the
    subsequent seizure of the car keys was a violation of s. 8. He argues that to
    perform a search incident to arrest, a searching officer must have a valid
    reason connected to the arrest and that, in this case, the purpose of the
    search was unrelated to the purpose of the arrest for careless driving. Further,
    the police lacked subjective grounds for the arrest since no single officer
    knew all of the relevant information at the time of the search. More
    specifically, the searching officer Cst. Aleksandrowicz was not aware of all of
    the information when he seized the keys. There was also no nexus between the
    search and the arrest for the outstanding warrants.

[33]

In my view, the request to examine the keys was a
    constitutionally permissible seizure, as it was incidental to the appellants arrest.
    The fact that the search was conducted minutes before the arrest makes no
    difference. A search that precedes an arrest is valid as incident to that
    arrest where, prior to the search, there existed reasonable and probable
    grounds for the arrest:
R. v. Debot
(1986), 30 C.C.C. (3d) 207 (Ont.
    C.A.), at pp. 223-25, affd on other grounds, [1989] 2 S.C.R. 1140;
R. v.
    Polashek
(1999), 45 O.R. (3d) 434 (C.A.), at p. 443; and
R. v.
    Sinclair
, 2005 MBCA 41
,
192 Man. R. (2d) 283, at paras. 20-22,
    leave to appeal refd (2005), 347 N.R. 200 (note).

[34]

At the time of the seizure, the police had reasonable
    and probable grounds to arrest the appellant for careless driving including the
    identifying t-shirt, the name and address confirmed by computer checks, and the
    knowledge of the car keys in the appellants pocket. I agree with the trial
    judge that although it took time for the police to put together all of the
    relevant information, the appellants arrest was inevitable. In these
    circumstances, there was no breach of s. 8.

(2)

Search and Seizure of the Acura

[35]

Warrantless searches are presumptively
    unreasonable. The Crown has the burden of establishing on a balance of
    probabilities that such a search is reasonable. For a search to be reasonable
    under s. 8 of the
Charter
, it must be authorized by law, the law
    itself must be reasonable, and the search must be carried out in a reasonable
    manner:
R. v. Caslake
, [1998] 1 S.C.R. 51, at para. 10;
R .v.
    Collins
, [1987] 1 S.C.R. 265, at p. 278.

[36]

In order for a search to be authorized by law,
    it must meet three criteria. First, the state authority conducting the search
    must be able to point to a specific statutory provision or common law rule
    authorizing the search. Second, the search must be carried out in accordance
    with the procedural and substantive requirements that the law provides. Third,
    the search must not exceed its authorized scope:
Caslake
, at para. 12.

[37]

The Crowns argument that the search of the
    Acura was authorized by law is two-fold: (i) it was a search incident to
    arrest; and (ii) it was an inventory search of an abandoned vehicle being
    impounded pursuant to s. 221(1) of the
HTA
.  As referenced above, at
    trial, the Crown succeeded only on the second justification. Below I consider
    each of these justifications for the search.

(i)

Search Incident to Arrest

[38]

The Crowns position is that once the police
    learned the appellants keys were for an Acura, they were authorized to conduct
    a search of the vehicle incident to his arrest for careless driving and for the
    outstanding warrants.

[39]

A search incident to arrest is an exception to
    the general rule that warrantless searches are unreasonable. Lamer C.J.
    summarized the relevant legal principles in
Caslake
, at para. 25:

[S]earches must be authorized by law.  If the law on which
    the Crown is relying for authorization is the common law doctrine of search
    incident to arrest, then the limits of this doctrine must be respected. The
    most important of these limits is that the search must be truly incidental to
    the arrest.  This means that the police must be able to explain, within
    the purposes articulated in
Cloutier
,
supra
(protecting the
    police, protecting the evidence, discovering evidence), or by reference to some
    other valid purpose, why they searched.  They do not need reasonable and
    probable grounds.  However, they must have had some reason related to the
    arrest for conducting the search at the time the search was carried out, and
    that reason must be objectively reasonable.  Delay and distance do not
    automatically preclude a search from being incidental to arrest, but they may
    cause the court to draw a negative inference.  However, that inference may
    be rebutted by a proper explanation.

[40]

The Crown submits that the search of the Acura
    was incidental to the careless driving arrest as the vehicle was involved in
    the offence. Thus the Crown argues that there was a causal nexus, as well as a
    geographic and temporal nexus. The Crown also argues that the Acura was likely
    to contain personal documentation and, with respect to the arrest for the
    outstanding warrants, that it would not be unheard of for an individual to
    bring legal documentation into a vehicle he or she is familiar with. According
    to the Crown, the trial judge took too narrow of a view of the applicable
    factors that could provide the police with a reasonable basis to search
    incident to arrest.

[41]

In my view, the trial judge correctly concluded that
    the search of the Acura was not incident to the arrest of the appellant. The
    vehicle was approximately 50 metres from where the appellant was arrested. He
    was taken back to vehicle after being placed under arrest and handcuffed. In
    these circumstances, the search cannot be justified on the basis that it was
    necessary to
prevent the appellant from securing a
    weapon or destroying evidence inside the vehicle.

[42]

I also agree with the trial judges conclusion
    that the search of the vehicle was not going to yield any evidence the police
    might reasonably have been seeking in connection with the offence of careless
    driving.  The police knew that the appellant and the owner of the Acura
    lived at the same address so it was unlikely to be stolen, and it was not otherwise
    necessary to seize any ownership or registration documents.  It is also
    not clear to me what documentation relevant to the outstanding warrants could
    be discovered in the vehicle.

[43]

I conclude that the search of the Acura cannot
    be justified as a search incident to arrest.

(ii)


Search Pursuant to s. 221(1) of the
HTA

[44]

The Crown submits that the search of the Acura
    was authorized pursuant to its power to impound vehicles under s. 221(1) of the
HTA
, which provides:

A police officer or an officer appointed for carrying out the
    provisions of this Act who discovers a vehicle apparently abandoned on or near
    a highway or a motor vehicle or trailer without proper number plates may take the
    vehicle into the custody of the law and may cause it to be taken to and stored
    in a suitable place.

(a)

The Governing Legal Principles

[45]

The starting point for determining the scope of
    police power to conduct inventory searches is the Supreme Courts decision in
Caslake
.
    There a police officer, six hours after arresting the accused for possession of
    narcotics, conducted an inventory search of the accuseds vehicle pursuant to
    police policy and found cash and two packages of cocaine. The court held that
    the search was not incident to arrest, as the purpose of the search, to
    inventory the vehicles contents, fell outside the legitimate purposes for a
    search incident to arrest.

[46]

The Supreme Court heard the argument that there
    ought to be an inventory search exception under s. 8 of the
Charter
for
    the protection of the accuseds belongings but declined to decide the issue,
    noting that the Crown lacked a statutory or common law authority for the
    inventory search.

[47]

The next case of significance is
R. v.
    Nicolosi
(1998), 40 O.R. (3d) 417 (C.A.).

There the police
    stopped the accused after observing him drive in a reckless manner. A CPIC
    check revealed an outstanding warrant for driving without insurance. The accused
    was abusive with the police and a brief struggle ensued. He was placed under
    arrest and told that his vehicle would be impounded. The accused sought to have
    a gun found during an inventory search of the vehicle excluded from the
    evidence.

[48]

Doherty J.A., writing for the court, observed
    that no one in the position of the accused could reasonably expect that the
    police would not enter the vehicle that was in their custody. Accordingly, he
    concluded that the search did not infringe the accuseds reasonable expectation
    of privacy in violation of s. 8. However, he stated that, if he was wrong, and the
    accuseds privacy rights were engaged, the search was a warrantless search
    authorized by law. Doherty J.A. reasoned that the police had a responsibility
    to keep impounded property safe and that, in order to fulfill that
    responsibility, they must have the authority to search and inventory the
    vehicle. It is noteworthy that, in reaching this conclusion, Doherty J.A.
    distinguished
Caslake
on the basis that in that case there was no
    statutory authority for an inventory search, as the search was performed pursuant
    to an internal RCMP policy.

[49]

In
R. v. Wint
, 2009 ONCA 52, 93 O.R.
    (3d) 514, leave to appeal refd (2009), 399 N.R. 397 (note), the accused was
    arrested for stunt driving and his vehicle was impounded. The police conducted
    an inventory search and located a small bag, which they believed might contain a
    gun. They opened the bag and a quantity of crack cocaine and marihuana was
    discovered.

[50]

On appeal, the accused argued that this court
    should have rejected the testimony of the police officers that they were
    conducting an inventory search and found that they were searching for a gun.
    This court rejected that argument, noting that the trial judge did not find that
    the search was a sham or that it was conducted for an improper or ulterior
    purpose. Relying on
R. v. Caprara
(2006), 211 O.A.C. 211 (C.A.), at
    para. 8., this court also stated that the fact that the police may also have
    been looking for a gun did not render the search unlawful.

[51]

This court rejected the accuseds other
    principal submission
,
being that the police were limited to itemizing visible
    property and had no authority to open the bag. The court found this argument
    contrary to the underlying rationale for inventory searches  safeguarding the
    vehicles contents. Police had to be able to review the contents of the bag to
    understand what was contained therein.

[52]

The final case for consideration on this issue
    is the Supreme Court of Canadas decision in
R. v. Nolet
, 2010 SCC 24,
    [2010] 1 S.C.R. 851. In that case, the accused were operating a commercial
    tractor-trailer in Saskatchewan. A random police stop disclosed that the
    vehicle was not authorized to operate in the province. The immediate search of
    the trucks cab was found by the court to be authorized pursuant to the
    officers statutory authority to investigate under the
Highway Traffic Act
,
    S.S. 1986, c. H-3.1. The court also upheld a search of a bag within the cab and
    a later search of the trailer at the station.

[53]

Despite these findings, the Supreme Court held
    that an inventory search conducted the next day by an RCMP officer was not
    constitutionally valid. At para. 53, the court noted that the officers search
    was incidental to RCMP administrative procedures rather than to the arrest of
    the appellants.

(b)

Application to the Facts

[54]

The appellant submits that the Supreme Courts
    decision in
Nolet
has overtaken
Nicolosi
and
Wint
. He
    argues that, although this court recognized the power of police officers to
    perform an inventory search of a seized vehicle in the latter cases, in
Nolet
Binnie J. characterized the inventory search of the tractor-trailer to be an
    administrative procedure that did not meet the requirements of a warrantless
    search. The search was therefore not authorized by law.

[55]

I would reject this argument. The basis for the
    inventory search in
Nolet
was an RCMP administrative procedure, not
    any statutory authority. In this way, the decision is entirely consistent with
    the courts earlier decision in
Caslake
, which found that an inventory
    search conducted pursuant to RCMP administrative procedure relates to concerns
    extraneous to the criminal law and thus does not serve a valid objective of the
    criminal law. Indeed, the Supreme Court of Canada in
Nolet
relied on
Caslake
in reaching its conclusion.

[56]

Those cases do not change the fact that an
    inventory search is authorized by law where, as here and in
Nicolosi
and
Wint,
statutory authority for the search that has been invoked. The
    law has been consistent that an inventory search of a vehicle will not be
    authorized by law and will therefore be unconstitutional where there is no
    statutory authority invoked for the search.

[57]

The appellant further submits that the trial
    judge erred by finding that the search was an inventory search, given that: there
    was no documentation of the inventory search, an inventory form, or even an
    officers note that he performed an inventory search; the other searching
    officer only testified that it was a search incident to arrest; the decision to
    impound the car was not made before the search; and the timing, location, and
    person executing the search was inconsistent with an inventory search.

[58]

I would reject this submission on the same basis
    that this court rejected it in
Wint
. In the trial judges analysis of
    the s. 221(1) search issue he makes specific findings of fact regarding the
    intention of Sgt. Martin in searching the vehicle, at para. 104 of his reasons:

I accept the testimony of Sgt. Martin that such an inventory
    search of this vehicle was part and parcel of standard police procedure
    typically employed in such circumstances, and was one of his
bona fide
purposes in searching the Acura.  I also accept his evidence that the
    Acura had been abruptly abandoned by the person who he had seen walking away
    from it, and that simply leaving it in the driveway was not an option as it
    would have continued to impede the homeowners access to their own
    vehicles.  As Sgt. Martin testified and I accept, the inventory search was
    necessary to see if there were any valuables in the car.  The fact that
    Sgt. Martin was also, admittedly, looking for any firearms or other weapons
    that might be in the vehicle does not change this legal analysis. 
    Therefore, I conclude that the police discovery of the illegal firearm in the
    console of the Acura was the result of a search conducted in accordance with s.
    8 of the
Charter of Rights
.

[59]

I am not satisfied that the trial judge erred in
    his consideration of the evidence.  Sgt. Martin was the officer in charge and he
    made the decision to conduct the search. There is no basis to interfere with
    the trial judges findings.

[60]

The appellant further submits that the Acura was
    not apparently abandoned within the meaning of s. 221 of the
HTA
,
    given that the appellant was under arrest for an
HTA
offence and
    admitted to being the driver.

[61]

There is no merit in this submission. The appellant
    fled from the police and admitted to trying to avoid arrest on his outstanding
    warrants. He then parked and locked the car in a mutual driveway to which he
    had no right or association, and then walked away. His actions up to that point
    were consistent with those of someone who wished to dissociate himself from the
    vehicle.

[62]

The test for abandonment articulated by the
    Supreme Court of Canada in
R. v. Patrick
, [2009] 1 S.C.R. 579, is
    whether the individual acted in a manner that a reasonable and independent
    observer would believe, based on the totality of the circumstances, that a
    continued assertion of privacy over the object was unreasonable.  That case
    involved the search of the accuseds garbage. It is worth noting that s. 221
    speaks of apparently abandoned vehicles.

[63]

The determination of whether a vehicle is
    apparently abandoned is necessarily fact specific. In this case, the moment the
    appellant left the car the police had authority to impound it under s. 221(1)
    and then to conduct an inventory search.

[64]

In the alternative, the appellant submits that,
    even if the vehicle was apparently abandoned, the search was unreasonable as
    the registered owner was known to the police and the appellant or his passenger
    should have been given the opportunity to arrange for the cars removal.

[65]

In my view, the eventual discovery of the
    identity of the driver and his subsequent arrest did not change the fact of the
    apparent abandonment of the vehicle. As a practical matter, nothing changed
    once the appellant was arrested and taken back to vehicle in handcuffs. He was
    under arrest and had no ability to move the vehicle. The police were not
    obligated to permit the appellant to make other arrangements for moving the car
    and their failure to do so in this case is insufficient to establish an
    unreasonable search: see
Nicolosi
, at para. 17. Nor was there any evidence
    that the appellant requested the opportunity to do so.

[66]

In summary, I conclude that the trial judge made
    no error in his conclusion that the search of Acura was authorized by law as an
    inventory search conducted pursuant to the police power to impound under s. 221(1)
    of the
HTA
. Accordingly, since the law itself is not unreasonable and the
    manner of search is not challenged, the inventory search did not violate the appellants
    s. 8 rights.

(3)

Exclusion of the Evidence under s. 24(2)

[67]

As noted above, the trial judge undertook a very
    careful analysis of the
Grant
factors and determined that the gun
    should not be excluded from the evidence pursuant to s. 24(2) of the
Charter
.

[68]

The trial judge found that the seriousness of
    the state conduct supported the exclusion of evidence. Officers should have
    known better how to provide the appellant with his rights under ss. 10(a) and
    (b). At the same time, he observed that the investigation evolved rapidly, and
    there is no suggestion that the omissions were deliberate. However, the
    officers were negligent and negligence is not good faith.

[69]

Concerning the impact of the violations, the
    trial judge found that this branch strongly favoured exclusion of the
    incriminating statements but strongly favoured admission of the firearm.
    Without knowledge of his rights and that he could access legal advice, the
    appellant made inculpatory statements. However, these statements had nothing to
    do with the firearms offences before the court. The trial judge also concluded
    that the firearm would have inevitably been discovered regardless of any
    breaches of ss. 10(a) or (b).

[70]

With respect to the truth-seeking function, the
    trial judge found that this branch clearly favoured admission of the evidence.
    The firearm was an inherently reliable and objective piece of evidence. The
    Crowns case must fail if it were excluded, while the accused could still try
    to raise a reasonable doubt about his possession of the handgun. Societys
    interest in the adjudication of the case on its merits would be seriously
    undercut if it were excluded.

[71]

Ultimately, the trial judge found that the handgun
    was admissible. He noted that he would have reached the same conclusion even if
    he had found that the search of the Acura violated s. 8, since Sgt. Martin
    honestly believed he was entitled to search the Acura and he acted reasonably
    and in good faith.

[72]

In
R. v. Peterkin
, 2015 ONCA 8, 319
    C.C.C. (3d) 191, at para. 75, Watt J.A. wrote that where a trial judge has
    considered the proper factors and has not made any unreasonable finding, his or
    her determination [under s. 24(2)] is owed considerable deference on appellate
    review (citations omitted): see also
R. v. Fountain,
2015 ONCA 354, 324
    C.C.C. (3d) 425, at para. 51.

[73]

I see no error in the trial judges conclusion regarding
    the s. 10 breaches or in his analysis that, had there been a s. 8 breach, the
    handgun should not have been excluded.  Any breach by the police was not
    deliberate and the appellant has a very limited privacy interest in a vehicle
    that he does not own and has apparently abandoned. I agree with the trial judge
    that societys interest in the adjudication on the merits strongly favours
    admission.

(4)

Sentence Appeal

[74]

The trial judge considered the following aggravating
    factors in crafting an appropriate sentence: the appellants criminal record for
    the same offences; the outstanding bench warrants; the gun was loaded and ready
    to fire; the gun was possessed while driving around in public; the gun was
    concealed but available for quick access; and no evidence or explanation was
    offered for the possession of the gun.

[75]

The mitigating factors included: the fact that
    there was no evidence that the gun was ever fired or removed from its storage
    location; the gun was not traced to any offences; there was no evidence of
    involvement in the sale of drugs; the manner of storage reduced its potential
    danger to the public; the offender had excellent prospects for rehabilitation;
    and the fact that he complied with strict bail conditions while his charges
    were pending.

[76]

With respect to the applicable mandatory minimum
    of five years for a second firearms offence, the trial judge stated that he
    would only consider the constitutionality of the mandatory minimum if he
    concluded that a sentence less than five years imprisonment was appropriate. Since
    he did not, the mandatory minimum was not an issue on sentence.

[77]

The appellant argues that his sentence was based
    on an inflationary floor due to the existence of the mandatory minimum. I would
    reject that submission.

[78]

Parliaments enactment of mandatory minimums for
    gun crimes reflected a public consensus that steps must be taken to reduce the
    incidence of gun crime in Canada. Although the Supreme Court has found mandatory
    minimums to be grossly disproportionate in hypothetical gun licensing scenarios,
    it emphasized that courts should continue to impose weighty sentences for truly
    criminal behaviour involving guns:
R. v. Nur
, 2015 SCC 15, [2015] 1
    S.C.R. 773, at para. 120. There is no inflationary floor at work in this
    case. Rather, recent sentences reflect Canadian societys intolerance for gun
    crime and are in keeping with the direction given by the Supreme Court of
    Canada.

[79]

The circumstances of this case cried out for a
    significant penitentiary sentence. The appellant is a repeat gun offender who
    is subject to a lifetime weapons prohibition. He was driving in a residential
    area of Toronto with a loaded .25 semi-automatic handgun at the ready.

[80]

The trial judges careful and thorough reasons
    for sentence reflect a complete understanding of the circumstances of the offender
    and the applicable legal principles. He did not, as was suggested by the
    appellant, inappropriately consider the appellants silence as an aggravating
    circumstance. Instead he considered the fact that, even after addressing the
    court at sentencing, the appellant had not explained why he had reverted to
    loaded handgun possession. Contrary to the appellants submission, the trial
    judge considered the jump principle, the gap between these offences and his
    previous convictions, and the totality principle. The sentence is fit and the trial
    judges reasoning is sound. There is therefore no basis for appellate
    interference.

F.

Disposition

[81]

I would dismiss the conviction appeal. I would
    grant leave to appeal from sentence, but I would dismiss the sentence appeal.

Released: August 4, 2016 DW

C.W.
    Hourigan J.A.

I
    agree David Watt J.A.

I
    agree P. Lauwers J.A.


