



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Steele, 2015 ONCA 169

DATE: 20150316

DOCKET: C53511

Feldman, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Martin Ashbourne Steele

Appellant

Anthony Moustacalis and Selwyn Pieters, for the
    appellant

J. Sandy Tse, for the respondent

Heard: January 13, 2015

On appeal from the convictions entered on October 7, 2010
    and the sentence imposed on October 8, 2010 by Justice Patrick J. Flynn of the Superior
    Court of Justice, sitting without a jury.

Pardu J.A.:

A.

Overview

[1]

Richard Steele was convicted of possessing a loaded, prohibited,
    semi-automatic firearm. A police officer noticed the gun under the front
    passenger seat occupied by the appellant, while attempting to assist the driver
    to locate the insurance slip. He appeals from his convictions on the ground
    that the evidence of the gun should have been excluded, as it was found through
    an unreasonable search. He says the search was not authorized by law, that the drivers
    apparent consent to the search was insufficient, and that the police stop and
    subsequent search, purportedly for purposes under the
Highway Traffic Act
,
    R.S.O. 1990, c. H.8, was motivated in part by racial bias.

[2]

He also submits that the convictions were unreasonable, and could not be
    supported on the evidence before the trial judge.

[3]

I would dismiss the appeal. As the appellant lacked a reasonable
    expectation of privacy in the car, his right to be secure against unreasonable
    search and seizure under s. 8 of the
Canadian Charter of Rights and
    Freedoms
was not infringed. Furthermore, there is no basis to interfere
    with the trial judges factual conclusion that the stop and search were not
    racially motivated. Finally, the convictions were supported by the evidence and
    were not unreasonable.

B.

Did the search infringe s. 8 of the
Charter
?

(1)

The trial judges factual findings on the
Charter
application

[4]

At around two oclock in the morning on November 25, 2007, in downtown
    Hamilton, P.C. Stephens stopped a car in which four young black men were
    riding. The appellant occupied the front passenger seat.

[5]

The trial judge found that P.C. Stephens stopped the car with the
    intention of checking for proper documentation and driver sobriety. He accepted
    her evidence that she first saw the car as it passed her, going from east to
    west. While she could see a driver, she could not discern the drivers sex or
    skin colour. She did not know that there were three other occupants of the
    vehicle.

[6]

The trial judge found that it was only as P.C. Stephens approached the
    drivers door that she saw there were four black men in the car. When she saw
    the number of occupants in the vehicle, she called for assistance. Three other
    officers arrived and stationed themselves at the vehicles other doors.

[7]

P.C. Stephens asked the driver for his drivers licence, ownership for
    the car, and proof of insurance. The driver, White, produced the ownership,
    showing that Valarie Steele was the registered owner of the car. White told P.C.
    Stephens that the car belonged to a friends mother. The officer had no way of
    knowing that the friend was the appellant, who was seated in the front
    passenger seat, and remained silent throughout this exchange.

[8]

White seemed flustered and produced several expired insurance pink
    slips, and could not produce a drivers licence. As White was cooperative,
    though nervous, and making efforts to find proof of insurance, P.C. Stephens
    asked White if he would like her to help find the valid insurance slip. White
    agreed. The other occupants, including the appellant, were asked to get out of
    the car.

[9]

With White still in the drivers seat, P.C. Stephens went to the front
    passenger side of the car and knelt on the ground. With her head, torso and
    arms inside the car, she looked inside the glove box for the insurance slip,
    without success. As she rose to leave the passenger compartment, with her left
    hand on the seat and her right on the floor, she saw in plain view part of the
    black butt and silver barrel of a gun on the floor. The gun was partially under
    the front passenger seat.

(2)

The trial judges legal analysis

[10]

The
    trial judge concluded that the initial stop was authorized by the
Highway
    Traffic Act
, which he said permits random stops to check driver and
    vehicle documentation, and driver sobriety. He indicated that this legal
    authority also gave police officers the right to search the vehicle to find
    proof of insurance. He found that the appellant had no standing to challenge Whites
    consent to the search of the vehicle. He concluded that there was no evidence
    of racial bias or racial profiling. Even if there had been a
Charter
violation, he would not have excluded the evidence of the gun under s. 24(2) of
    the
Charter
, applying the analysis required by
R. v. Grant
,
    2009 SCC 32, [2009] 2 S.C.R. 353, and
R. v. Harrison
, 2009 SCC 34,
    [2009] 2 S.C.R. 494.

(3)

Issues

[11]

The
    appellants
Charter
claim raises the following issues:

1)

Did the appellant have a reasonable expectation of privacy in the
    vehicle?

2)

Was the search authorized by law?

3)

Was the finding that conscious or unconscious racial bias did not
    motivate the stop or search unreasonable?

4)

In any event, should the evidence have been excluded under s. 24(2) of
    the
Charter
?

[12]

I
    now turn to the first question.

(1)

Did the appellant have a reasonable expectation of privacy in the
    vehicle?

[13]

According
    to admissions filed at trial, the owner of the car, Valarie Steele, loaned the
    vehicle that same day to White and the appellant. They left with the vehicle
    from the Toronto residence of the appellant and Valarie Steele sometime in the
    afternoon of November 24, 2007.

[14]

Valarie
    Steele is the appellants mother. There was no other evidence about the terms
    upon which she loaned the vehicle to White and her son, if any.

[15]

Assessing
    whether a person has a reasonable expectation of privacy requires consideration
    of all of the circumstances, including the following factors identified in
R.
    v. Edwards
, [1996] 1 S.C.R. 128, at para. 45, and
R. v. Belnavis
,
    [1997] 3 S.C.R. 341, at para. 20:

1)

Presence at the time of the search;

2)

Possession or control of the property or place searched;

3)

Ownership of the property or place;

4)

Historical use of the property or item;

5)

Ability to regulate access, including the right to admit or exclude
    others from the place;

6)

The existence of a subjective expectation of privacy; and

7)

The objective reasonableness of the expectation.

[16]

As
    indicated in
R. v. Cole
, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 40:

The totality of the circumstances test is one
    of substance, not of form. Four lines of inquiry guide the application of the
    test: (1) an examination of the subject matter of the alleged search; (2) a
    determination as to whether the claimant had a direct interest in the subject
    matter; (3) an inquiry into whether the claimant had a subjective expectation
    of privacy in the subject matter; and (4) an assessment as to whether this
    subjective expectation of privacy was objectively reasonable, having regard to
    the totality of the circumstances.

[17]

The
    court indicated in
Cole
, at para. 35, that [p]rivacy is a matter of
    reasonable expectations. An expectation of privacy will attract
Charter
protection if reasonable and informed people in the position of the accused
    would expect privacy.

[18]

In
Belnavis
, at para. 38, the Supreme Court held that there was, in
    general, a diminished expectation of privacy in a motor vehicle. The court also
    held, at para. 22, that whether a passenger in a car has a reasonable
    expectation of privacy in the car depends on the circumstances. In
Belnavis
,
    a passenger was held not to have a reasonable expectation of privacy in a car
    driven by the owners friend. The passenger was present at the time of the
    search. However, there was no evidence that she had control over the vehicle,
    that she had used it in the past, or that she had any relationship with the
    owner or driver which would establish some special access to or privilege in
    regard to the vehicle:
Belnavis
, at para. 22. There was no evidence
    she had any ability to regulate access to the vehicle or that she had a
    subjective expectation of privacy in the vehicle. There were also three garbage
    bags filled with new clothing in the car. While the passenger stated that each
    of the occupants in the vehicle owned one of the bags, she did not assert
    ownership of a particular bag. The Supreme Court held that she also had no
    reasonable expectation of privacy in the bags:
Belnavis
, at para. 24.

[19]

In
    the circumstances of the present case, the appellant did not have a reasonable
    expectation of privacy in the car. The appellant was a passenger in the vehicle
    at the time of the search, and he was authorized by his mother, at the very
    least, to be a passenger in the vehicle. However, the appellants degree of
    possession or control, historical use, or ability to regulate access to the
    vehicle is unknown.

[20]

In
    general, it would be objectively reasonable for an individual using a family
    members car to have a reasonable expectation of privacy in that vehicle. Here
    though, the appellant did not identify himself as a person to whom the car had
    been loaned, and he did not indicate his connection to the vehicles owner. He was
    only a passenger in a vehicle driven by another person who claimed to have
    borrowed the car. Further, the police had no reason to believe that the
    appellant had any connection to the vehicle other than as a passenger. Moreover,
    the driver was attempting to produce required documentation to police, and had
    apparent control of the vehicle. Under these circumstances, there is no basis
    for a person in the appellants position to have subjectively expected privacy
    in the vehicle.

[21]

As
    the appellant had no reasonable expectation of privacy in the car, it is
    unnecessary to address the effect of the drivers apparent consent to the
    search.

(2)

Was any search authorized by law?

[22]

Given
    my conclusion that the appellant lacked a reasonable expectation of privacy in
    the car, there was no search within the meaning of s. 8. (
R. v. MacDonald
,
    2014 SCC 3, [2014] 1 S.C.R. 37.) It is unnecessary to go on to determine if the
    police conduct was unreasonable and therefore a violation of s. 8 of the
Charter
.

[23]

I
    do note however that to establish the reasonableness of a search, the Crown
    must show on a balance of probabilities that the search was authorized by law,
    the authorizing law was itself reasonable, and the authority to conduct the
    search was exercised reasonably:
Cole
, at para. 37. In this case, there
    was no statutory authority permitting the search of the vehicle for proof of
    insurance. Some provinces explicitly authorize the search of a vehicle where an
    officer has reasonable grounds to believe that the vehicle is being operated in
    violation of regulatory requirements.
[1]
However, neither the
Highway Traffic Act
nor the
Compulsory
    Automobile Insurance Act
, R.S.O. 1990, c. C.25, contains any such
    provision that is applicable in this case.

(3)

Was the finding that conscious or unconscious racial bias did not
    motivate the stop unreasonable?

[24]

A
    stop or search motivated by racial bias or racial profiling violates the
Charter
rights of the person stopped or searched. The appellant submits that the trial
    judge ought to have concluded on the following grounds that the reason the
    vehicle was stopped and searched was because one or more of the occupants was
    black:

1)

This was a random stop without any apparent driving misconduct;

2)

The four occupants of the vehicle were black;

3)

The inconsistencies between the officers trial evidence and her notes
    and previous testimony lend credence to the submission that the stop was
    racially motivated.

[25]

In
R. v. Brown
(2003), 64 O.R. (3d) 161 (C.A.), at para. 45, this court
    noted, where the evidence shows that the circumstances relating to a detention
    correspond to the phenomenon of racial profiling and provide a basis for the
    court to infer that the police officer is lying about why he or she singled out
    the accused person for attention, it could be open to a court to infer that
    the stop was racially motivated.

[26]

In
    this case, the officer gave evidence at length about the cars location when
    she first saw it, and when she first realized that one or more of the occupants
    was black. The appellant argues that her observations that White and the appellant
    were nervous and that the appellant appeared to be hiding something at his feet
    reflected stereotypical thinking.

[27]

However,
    the trial judge found that:

1)

P.C. Stephens was credible, steadfast and uncontradicted;

2)

She first saw the vehicle when it passed her going from the east to the
    west on Jackson Street at 2:00 a.m.;

3)

She could not determine the race or gender of the driver;

4)

She could not see any other occupants of the vehicle;

5)

She only determined the number of occupants after she stopped the
    vehicle;

6)

It was only after stopping the vehicle that she saw that the occupants
    were black; and

7)

When P.C. Stephens went to the front passenger side of the car and
    looked into the glove box, she was intent on finding that valid insurance
    slip.

[28]

The
    trial judge made no palpable and overriding error in his evaluation of the
    uncontradicted evidence before him on the
Charter
application. There
    is no basis to interfere with his findings of fact.

(4)

In any event, would the gun be admitted under s. 24(2) of the
Charter
?

[29]

Given
    these conclusions, there is no need to consider at length whether the evidence
    should have been admitted pursuant to s. 24(2) even if there had been a breach
    of the appellants
Charter
rights. However, in my view, the trial
    judge did not err in his alternative conclusion that the gun should not be
    excluded.

[30]

Even
    if the appellant had had some expectation of privacy in the vehicle, it was
    highly attenuated. The officer acted in good faith. The trial judge found that
    she was not undertaking a search for evidence of a crime, but was attempting to
    help the driver find proof of insurance. She asked the driver if he wanted her
    help, and looked in the glove box in reliance on his consent. The societal
    interest in a trial on the merits was substantial. The gun was highly reliable
    and probative evidence unaffected by any
Charter
breach. The gun would
    have been admitted under s. 24(2).

C.

Were the verdicts unreasonable?

(1)

The trial judges conclusions

[31]

The
    trial judge convicted the appellant of possessing a loaded prohibited firearm
    and occupying a motor vehicle in which he knew there was a firearm.

[32]

The
    trial judge accepted P.C. Stephens evidence that the appellant seemed nervous
    when she stopped the vehicle and that he was hunched over with his hands
    underneath the passenger seat, as if he were trying to hide something. The gun
    was found under the appellants seat, where his hands had been. He found that
    the appellant knew the gun was there and was trying to hide it from police. The
    appellant had possession of the gun and was exerting a measure of control over
    it.

[33]

However,
    the trial judge was not convinced beyond a reasonable doubt that the other
    three occupants of the vehicle knew about the gun.

(2)

Alleged errors and analysis

[34]

The
    appellant argues that the trial judge drew an inference of guilt from his
    earlier silence when he did not identify himself to the police as the son of
    the vehicles owner. There is no basis in the trial judges reasons to come to
    this conclusion. The appellant also argues that his guilt was not the sole
    rational inference in this circumstantial case. However, the trial judge
    indicated, the only rational explanation for Mr. Steele being hunched over and
    his hand movements at that stage, combined with the position of the gun when it
    was found by Stephens, is that Mr. Steele was in actual possession. The trial
    judge was convinced of the appellants guilt beyond a reasonable doubt. That is
    sufficient. No other particular form of words is required in a case based on
    circumstantial evidence: see
R. v. Mayuran
, 2012 SCC 31, [2012] 2
    S.C.R. 162, at para. 38.

[35]

The
    appellant also argues that it was unreasonable to conclude that he possessed
    the gun. He submits that one of the other passengers could have slid the gun
    under his seat.

[36]

An
    assessment of the reasonableness of a verdict requires an appellate court to
    independently weigh the evidence. As indicated in
R. v. Wills
, 2014
    ONCA 178, 308 C.C.C. (3d) 109, at para. 31, affd 2014 SCC 73:

The court weighs the evidence, however, not with a view to
    making its own assessment as to the appropriate verdict, but for the more
    limited purpose of determining whether the verdict is beyond the reasonableness
    limit. In making that assessment, the court must give due weight to the
    advantage a jury gains from actually seeing the witnesses and hearing the
    narrative unfold.

[37]

Here,
    the Crowns case was uncontradicted. A reasonable trier, acting judicially 
    that is to say, acting dispassionately, applying the law and adjudicating on
    the basis of the record and nothing else  could reasonably conclude that the appellant
    had possession of the gun:
R. v. Biniaris
, 2000 SCC 15, [2000] 1
    S.C.R. 381, at para. 40.

D.

Conclusion

[38]

Accordingly,
    for these reasons, the conviction appeal is dismissed. The appellant did not
    pursue the sentence appeal.

Released: (KF) March 16, 2015                                            
    G. Pardu J.A.

I agree K. Feldman J.A.

I agree Janet Simmons J.A.





[1]
See, for example
, R. v. Nolet
,
    [2010] 1 S.C.R. 851 at paras. 27-28, and
The
Highways and Transportation Act
, 1997
,
    S.S. 1997, c. H-3.01, s. 63(5).


