



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Stevens, 2012
    ONCA 307

DATE: 20120514

DOCKET: C48927

Weiler, Simmons and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bob Stevens

Appellant

Louis P. Strezos and Shannon S.W. O'Connor, as Duty
    Counsel

James K. Stewart, for the respondent

Heard: April 16 and 17, 2012

On appeal from the conviction entered on April 18, 2008
    by Justice Feroza Bhabha of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals his conviction for unauthorized possession of a
    firearm, careless handling of a firearm and failure to comply with a condition
    of his recognizance.

[2]

The background facts giving rise to this appeal are that a confidential informant
    told police that the appellant was a drug dealer and that he kept a handgun and
    ammunition at his residence.  The informant claimed to have been in the
    residence and seen the gun during a certain time period.  The Information To
    Obtain (ITO) that was drafted by the officers observing the appellants home
    was used to obtain a search telewarrant.

[3]

A stealth search was executed in the middle of the night.  As police
    were at the door and moments before they entered the residence three officers
    outside saw someone throw an item inside of a white sock out the window.  The
    item landed in an adjacent yard.  It was found to be a semi-automatic firearm.

[4]

The appellant was the sole occupant of the residence.  No other drugs or
    weapons were found inside.

[5]

As the ITO contained some significant errors, the main issue at trial
    was the validity of the search warrant and therefore the search.  The trial
    judge declined to determine the validity of the warrant.  She held that the gun
    was discarded into an area where the appellant had no reasonable expectation of
    privacy and that he had abandoned it.

[6]

The trial judge further held that the gun was discovered independently
    of the warrant.  Notwithstanding her conclusion that the gun was lawfully
    seized by police and that there was no violation of the appellants s. 8
Charter
rights, the trial judge proceeded to engage in a s. 24(2)
Charter
analysis
    and, using the Collins test (in place at the time), would have admitted the
    evidence.

[7]

On appeal, the main argument put forward by
amicus
is that,
    because the trial judge declined to determine the validity of the search
    warrant, this court is not in a position to determine whether the appellants
Charter
rights were breached and a new trial is required.  A determination of the
    validity of the search warrant in light of the errors in the ITO was essential.
     The question of abandonment of the gun could not be properly decided without
    first determining whether the appellants
Charter
rights had been
    infringed.

[8]

We disagree.  In the factual circumstances here, the trial judge was not
    required to determine the legality of the search.  In order to engage a
    persons rights under s. 8 of the
Charter
, that person must first
    establish a reasonable expectation of privacy:  see
R. v. Edwards
,

[1996] 1 S.C.R. 128, at paras. 33 and 39.  Having thrown the handgun out
    the window into a neighbours yard, the appellant no longer had any reasonable
    expectation of privacy respecting the gun.  He no longer had possession or
    control over the gun; instead, he attempted to divest himself of possession or
    control of it.  Indeed, he gave up the ability to regulate access to it when he
    threw it away.  Furthermore, he offered no evidence of any subjective
    expectation of privacy in it.  The absence of these factors was sufficient for
    this court to hold that the accuseds s. 8 rights were not engaged in
R. v.
    Nesbeth
,

[2008] O.J. No. 3086 (C.A.) at para. 22, leave to appeal
    to the S.C.C. refused, [2009] S.C.C.A. No. 10. See also
R. v. L.B.
, [2007]
    O.J. No. 3290; and
R. v. Plummer
, [2011] O.J. No. 2034 (C.A.).

[9]

Usually, it is only after the appellant has established a reasonable
    expectation of privacy and the court is considering whether the search was an
    unreasonable intrusion on that right to privacy that there is a need to
    consider the reasonableness of the search and whether there has been police
    misconduct:
Edwards, supra
.  Here, as the trial judge had correctly
    held that the gun had been abandoned, s. 8 was not engaged, and the trial judge
    was not obliged to consider the validity of the telewarrant or the legality of
    the police search.

[10]

Having
    regard to this conclusion, it is unnecessary for us to address the balance of
    the arguments put forward by
amicus
as they all relate to the legality
    of the search (e.g. whether the trial judge erred in holding there was no
    cognizable legal nexus between the execution of the warrant and the seizure of
    the firearm and whether the validity of the ITO and therefore the search
    warrant would have had a bearing on the issues whether the police acted in good
    faith for the purpose of a s. 24(2) analysis).

[11]

The
    grounds of appeal in the appellants notice of appeal were not pursued before
    us and, in any event, having regard to our conclusion it is unnecessary for us
    to deal with them.

[12]

The
    appeal is dismissed.

Karen M. Weiler
    J.A.

Janet Simmons
    J.A.

E.A. Cronk J.A.


